ever shall incur the penalty for doing so without a 33 & 34 Vict. licence" (a). c. 29, s. 14. (a) The penalty is in sect. 3, ante, p. 155, Chap. IX. Vide also excise penalties in Chap. XV., and 37 & 38 Vict. Excise penalc. 49, s. 15, ante, p. 191. ties. houses where As to refreshment-houses where no intoxicating Refreshmentliquor is sold, see offence under 27 & 28 Vict. c. 64, no intoxis. 5, set out in Chap. XIV., post, p. 240. cating liquor sold. Preliminary observations. 35 & 36 Vict. C. 94. Summary proceedings for offences under this act, &c. Ib. s. 51. Constitution of court. Ib. CHAPTER XII. MODE OF RECOVERY OF PENALTIES, &c. (EXCEPT THE enactments and practice given in this Chapter (1) Mode of Recovery of Penalties, &c. By 35 & 36 Vict. c. 94, s. 51, “except as in this act otherwise expressly provided, every offence under this act may be prosecuted, and every penalty and forfeiture may be recovered and enforced, in manner provided by the Summary Jurisdiction Act, 1848 (a), subject to the following provisions: (1.) The court of summary jurisdiction (a), when hearing and determining an information or c. 94. Ib. s. 51. complaint,-other than in a case where the 35 & 36 Vict. offence charged is that of being found drunk in any highway or other public place, or any licensed premises (b),-shall be constituted either of two or more justices of the peace in petty sessions sitting at a place appointed for holding petty sessions, or of a stipendiary magistrate, or some other officer for the time being empowered by law to do alone any act authorized to be done by more than one justice of the peace (c), and sitting alone or with others at some court or other place appointed for the administration of justice : (2.) Where the court of summary jurisdiction orders that a distress shall be made in default of payment of any penal sum exceeding five pounds, including under that expression costs actually adjudged in respect of an offence, the court may order that in default of the said sum being paid as directed, the person liable to pay the same shall be imprisoned for any term not exceeding the period specified in the following scale (d): For any sum exceeding five pounds but not not exceeding fifty pounds, six months; Scale of imdefault of prisonment in distress or payment of penalty. Ib. (3.) The description of any offence under this act Description of offence. in the words of such act, or in similar words, Ib. shall be sufficient in law (e): (4.) Any exception, exemption, proviso, excuse, or Who to prove 35 & 36 Vict. c. 94. an exception, &c. Ib. s. 51. Defendant competent to give evi dence. Ib. Disposal of forfeitures and application of penal ties. Ib. Penalties under act not revenue penalties. Ib. Revenue officer may ties, &c. qualification, whether it does or does not accompany the description of the offence in this act, may be proved by the defendant, but need not be specified or negatived in the information, and if so specified or negatived, no proof in relation to the matters so specified or negatived shall be required on the part of the informant or complainant (ƒ);— and in all cases of summary proceedings under this act, the defendant and his wife shall be competent to give evidence (g): (5.) All forfeitures shall be sold or otherwise disposed of in such manner as the court may direct, and the proceeds of such sale or disposal (if any) shall be applied in the like manner as penalties, but the court may direct that such proceeds may be applied in the first instance in paying the expenses of and incidental to any search and seizure which resulted in such forfeiture (h): (6.) Penalties and forfeitures under this act shall not, for the purpose of any act respecting the application of such penalties, or the costs, charges, and expenses attending proceedings for recovery of such penalties or of forfeitures, be deemed to be penalties or forfeitures under any act relating to the inland revenue. Any officer appointed by the commissioners of inland sure for penal- revenue may sue for any penalties under this act, and when so sued for any penalties which may be recovered shall be applied in the manner in which excise penalties are for the time being applicable by law (i). Ib. Costs ordered separately how to be recovered. Where under this act any sum for costs (other than costs upon a conviction or order of dismissal of an in c. 94. Ib. s. 51. formation) or for compensation, or both, is ordered or 35 & 36 Vict. awarded to be paid by any person, the amount thereof shall be recovered in manner directed by the Summary Jurisdiction Act, 1848, for the recovery of costs awarded upon the dismissal of an information or complaint" (j). (a) The act referred to is Jervis's Act, 11 & 12 Vict. c. 43, 11 & 12 Vict. and the acts amending it, regulating the proceedings before jus- c. 43. tices out of sessions with regard to summary convictions and orders, stated in sect. 74 under the definition of "court of summary jurisdiction," at pp. 28, 33, the provisions of which, if not given in the lettered notes, will be found under the heading of "Practice" at the close of those notes. (b) This exception refers to the cases of drunkenness in the Drunkenness. first paragraph of sect. 12, ante, p. 202, Chap. XI., which, con sequently, may be heard by one justice under 11 & 12 Vict. c. 43, s. 12, as the number is not fixed by this statute. (c) The "other magistrate or officer" here referred to is stated in note (o) ante, p. 33, and see sects. 39 and 61, ante, p. 36, as to jurisdiction over waters, &c. ing penalties. (d) In all the sections of the 35 & 36 Vict. c. 94, imposing Imprisonpenalties, there is no alternate imprisonment in default of pay- ment in dement provided, and, therefore, the penalty must be recovered by fault of paydistress and sale of the defendant's goods, except where that would be ruinous, or the defendant has no goods (11 & 12 Vict. c. 43, s. 19). Where the penalty, including the costs adjudged, 28 & 29 Vict. is not exceeding 57., the Small Penalties Act, 1865 (28 & 29 Vict. c. 127), dispenses with the distress, and lays down the following maximum terms of imprisonment in default of payment, viz. : For any penalty not exceeding 10s., seven days; Exceeding 21. but not exceeding 5l., two months (see the c. 127, to be applied where penalty not exceeding 51. where pe The scale of imprisonment in subsect. 2 when the penalty, in- Scale of imcluding costs, is above 5l., and is not recovered by distress or prisonment otherwise paid, comes into operation. The cost of conveying nalty above the defendant must also be paid by him (11 & 12 Vict. c. 43, 51. ss. 19, 21, 22, 24). (e) Probably, without this enactment it would have been Stating ofsufficient to state the offence in the like words of the section fence. creating it. See Ex parte Perham, 29 L. J. (N. S.) M. C. 33; 1 Law T., N. S. 91; Reg. v. Pearham, 1 Law T., N. S. 106; Reg. v. Hague, 33 L. J. (N. S.) M. C. 86; 9 Law T., N. S. 648; Oke's "Synopsis," 11th ed., vol. i., pp. 132, 133). |