sureties, &c. (as in the former precedent of a supersedeas.) Therefore, I do command you that if the said C. D. do remain in the said gaol for the said cause, and none other, then you forbear to grieve or detain him any longer, but that you deliver him thence and suffer him to go at large, and that upon the pain which will fall thereon. Given under my hand and seal,. this day of

18

Form of Articles of the Peace.

PROVINCE OF CANADA:

County of

to wit.

J. C.

C. D., wife of E. D., of in the said County, labourer, prays surety of the peace against the said E. D., her said husband, for fear of death or bodily injury.

First-This informant, on her oath, saith, that she intermarried with her said husband about years ago, since which time he hath often in a cruel, barbarous, and inhuman manner, beat, abused, and ill-treated this informant, and frequently threatened to take away her life.

Secondly-This informant saith, that on the day of last past, her said husband in a violent passion, (state the particular acts of cruelty.)

Lastly-This informant saith, that she is actually afraid her said husband will do her some bodily injury, if not murder her, should she return home again to him; and saith, that she doth not make this complaint against her said husband out of any hatred, malice, or ill-will which she hath or beareth towards him, but purely for the preservation of her life and person from further danger.

Articles of the peace should have the signature of counsel.

ASSAULT AND BATTERY.

An assault is a forcible attempt to do corporal injury to another; a blow, however trifling, is a battery; every assault, however, is not a battery; but every battery necessarily includes an assault.-1 Haw. P. C. 263. So, striking at another, or even holding up a fist in a menacing manner, will amount to an assault.-1 Haw. c. 62.

An unlawful imprisonment is also an assault in law.—1 Haw. c. 60.

An assault in some instances may be justified: thus a party may justify an assault, molliter manus imposuit in de-, fence of his goods, his wife, father, mother or child, and a wife in defence of her husband.-1 Ld. Ray. 62.

A servant may also justify an assault in defence of his master, but doubtful whether a master may do so in defence of his servant.-1 Salk. 407.

So also may a master reasonably correct his apprentice or servant; and a master his scholar; but immoderate correction, or with an unlawful instrument, will constitute an assault.-3 Salk. 47.

A common assault is punishable as a misdemeanor; and the punishment usually inflicted is, fine, imprisonment, and the finding of sureties.-4 Bl. Com. 417.

Aggravated Assaults.

Are such as are committed by persons with intent to commit felony, or some illegal act: assaulting a magistrate or constable in the execution of his duty; or a servant his master; and the like.

And any servant assaulting his master or mistress, may, upon conviction before two justices, and upon the oath of two witnesses, be imprisoned for a year, or less.-5 Eliz., c. 4, § 21. Also, any person assaulting or challenging another for money won by gaming, shall forfeit to the King all his goods, and be imprisoned for two years.-9 Ann, c. 14, § 8.

By the 4 & 5 V., c. 27, § 25: where any person shall be charged with, and convicted of any of the following offences as misdemeanors; that is to say, of any assault with intent to commit felony; of any assault upon any peace officer or revenue officer in the due execution of his duty, or upon any person acting in aid of such officer; of any assault upon any person with intent to resist the lawful apprehension or detainer of such party so assaulting or of any other person for any offence for which he or they may be liable by law to be apprehended or detained; or of any assault committed in pursuance of any conspiracy to raise the rate of wages; any such case the court may sentence the offender to be imprisoned for any term not exceeding two years, and also (if it shall so think fit) fine the offender, and require him to find sureties for keeping the peace.

§ 26. And if any person shall unlawfully and with force hinder any seaman from working at, or exercising his lawful trade, business or occupation; or shall beat, wound or use any other violence to him with intent to deter or hinder him from working at, or exercising the same; or if any person shall beat, wound, or use any other violence to any person, with intent to deter or hinder him from selling or buying any wheat, or other grain, flour, meal, or malt, in any market or other place; or shall beat, wound, or use any other violence to any person having the care or charge of any wheat or other grain, flour, meal, or malt, while on its way to or from any city, market, town or other place, with intent

to stop the conveyance of the same; every such offender may be convicted thereof before two justices of the peace, and imprisoned and kept to hard labour in the common gaol, or house of correction, for any term not exceeding three calendar months: provided always that no person who shall be punished for any such offence, by virtue of this provision, shall be punished for the same offence by virtue of any other law whatsoever.

36. And when any person shall be convicted of any offence punishable by this act, for which imprisonment may be awarded, the court may sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour in the common gaol or house of correction, and also direct that the offender shall he kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet.

Common Assault.

By the 4 & 5 V., c. 27, § 27, where any person shall unlawfully assault or beat any other person, it shall be lawful for any justice of the peace, upon complaint of the party aggrieved praying him to proceed summarily under this act, to hear and determine such offence; and the offender, upon conviction thereof before him, shall forfeit and pay such fine as shall appear to him to be meet, not exceeding, together with costs, (if ordered,) the sum of £5, which fine shall be paid to the treasurer of the municipal district, or place in which the offence shall have been committed, and make part of the funds of such district; or if the conviction be had in any place not within any municipal district, then such fine shall be paid over to such officer, and be applicable to such purposes as other fines and penalties by law are; and the evidence of any inhabitant of the municipal district shall be admitted in proof of the offence, notwithstanding such application of the fine; and if such fine and costs (if ordered) be not paid upon conviction, (a) or within such period as the said justice shall appoint, it shall be lawful for him to commit the offender to the common goal or house of correction, there to be imprisoned for any term not exceeding two calendar months, unless such fine and costs be sooner paid: but if the justice, upon the hearing of such case, shall deem the offence not to be proved, or shall find the assault or battery

(a) The 14 & 15 V., c. 119, & 4, now authorises the amount to be levied by distress.

to have been justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint, he shall forthwith make out a certificate under his hand, stating the fact of such dismissal, and shall deliver such certificate to the party against whom the complaint was preferred: and if such costs (a) shall not be paid immediately upon dismissal, within such period as such justice shall at the time of such dismissal appoint, it shall be lawful for him to issue his warrant to levy the amount of such costs within a certain time to be in the said warrant expressed; and in default of sufficient distress, may commit the party by whom such costs shall be so ordered to be paid as aforesaid to the common gaol of the district, county, or division where such offence. shall be alleged to have been committed, there to be imprisoned for any term not exceeding ten days, unless sooner paid. 28. Such certificate, or in case of conviction the payment of the amount adjudged, or imprisonment awarded and suffered for nonpayment, shall release the party from all further proceedings, civil or criminal, for the same cause. 29. When any person shall be summarily convicted before a justice of the peace of any offence against this act, it shall be lawful for such justice, if he shall so think fit, to discharge the offender from his conviction upon his making such satisfaction to the party aggrieved, for damages and costs or either of them, as shall be ascertained by the said justice. §30. If the justice shall find the assault complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is, from any other circumstance, a fit subject for indictment, he shall deal with the case accordingly: justices not to determine any case of assault in which any question shall arise as to the title to lands, or any interest therein, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice. §33. Any person aggrieved by any summary conviction or decision under this act, may appeal to the next court of general or quarter sessions which shall be holden not less than twelve days after the day of such conviction, giving to the other party a notice in writing of such appeal, and of the cause and matter thereof, within three days after conviction or decision, and seven days at the least before such sessions, and shall also either remain in custody until the sessions, or enter into a recognizance with two sufficient sureties before a justice of the peace, conditioned personally to appear at the said sessions and to try such appeal, and to abide the judg

(a) Quare-What costs?

ment of the court thereupon, and pay such costs as shall be by the court awarded, and upon such notice being given and such recognizance entered into, the justice shall liberate such person, if in custody, and the court, at such sessions, shall hear and determine the matter of the appeal; and shall make such order therein, with or without costs to either party, as to the court shall seem meet; and in case of the dismissal of the appeal, or the affirmance of the conviction, shall order and adjudge the offender to be punished according to the conviction, and to pay such costs as shall be awarded, and, if necessary, issue process for enforcing such judgment.

§ 34. The court shall have power to empannel a jury to try the matter, and on the finding of the jury shall give judgment accordingly: provided, that the court shall not in any case adjudge the payment of a fine exceeding £5, in addition to the costs, nor order imprisonment for any period exceeding one month; and all fines imposed and recovered. by the judgment of the court shall be applied as other fines recovered under this act.

§ 40. And for the more effectual prosecution of offences punishable upon summary conviction by virtue of this act, be it enacted, that when any person shall be charged on the cath of a credible witness, before any justice of the peace, with any such offence, the justice may summon the person charged to appear at a time and place to be named in such summons; and if he shall not appear accordingly, then (upon proof of the due service of the summons upon such person, by delivering the same to him) the justice may either proceed to hear and determine the case ex parte, or may issue his warrant for apprehending such person and bringing him before himself or some other justice of the peace; or the justice before whom the charge shall be made may (if he shall so think fit) issue such warrant in the first instance, without any previous summons.

§ 41. The prosecution for every offence punishable on summary conviction by virtue of this act, shall be commenced within three calendar months.

For forms, see "Summary Conviction.”

County of to wit: township of

Indictment for a Common Assault.

The jurors for our lady the Queen, upon their oath, present, that A. O., late of the in the county of , butcher, on the year of the reign of our Sovereign lady Victoria, with force and arms, at the township aforesaid, in the county aforesaid, in and upon one A. I., in the peace of God

day of

in the