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t, neglect, oes by the execute divide
hath also this day been charged upon oath before me, the said Justice, for that he the said G. H., since the said felony and burglary was committed, hath received, harboured and maintained him the said C. D., in the dwelling-house of him the said G. H., at
a foresaid: he the said G. H. well knowing the said C. D. to have committed the said felony and burglary. These are therefore to command you in her Majesty's name, forthwith to apprehend the said G. H., and to bring him before (me), or some other of her Majesty's justices of the peace, in and for the said county of to answer unto the said charge, and to be further dealt with according to law.
Given under (my) hand and seal, this day of in the year of our Lord 185 , at in the county of aforesaid.
J. P. (L. S.) ACCIDENT. By 10 and 11 V. ch. 61, in case of death by the wrongful act, neglect, or default of any party, such party may be sued for damages by the executor or' administrator of the deceased party, and the amount divided among the deceased's wife and family, as the jury by their verdict shall find and direct.See post title “Duet.”
ACCIDENTS ON RAILWAYS.
And seem“Autrefois Acquit." An acquittal is the deliverance and setting free of the accused from the imputation of guilt; as when a prisoner is found by a jury not guilty of the offence with which he stood charged before them upon his trial.-Deacon's C. Law, 18.
Where there is no evidence whatever to affect a party who is unjustly made a defendant with others in a prosecution, the judge may, in his discretion, direct the jury to acquit him in the first instance, and such an acquittal will enable him to give evidence in behalf of the other defendants.—1 Holt. 275; Gil. Ev. 117; Bull N. P. 285.
Every prisoner upon his acquittal, it has been said, has an undoubted right to a copy of the record of such acquittal; and after a demand of it has been made of the proper officer, the latter may be punished for refusing to make it out.-R. v. Brangan, 1 Leach, 27.
But if there was probable cause for the indictment, or where the acquittal arises from the incompetency of a witness, the court will not then permit the prisoner to have
a copy of the indictment.—R. v. Quick, 1 Leach, 28, Note (a); R. v. Bevan, Ibid 1; Ld. Ray., 253.
ACTION. By Imperial Statute 24 G. II., c. 44. No action shall be brought against any constable, or any officer acting by his order, for any thing done in obedience to any warrant of a justice, until demand made, or left at his usual place of abode, by the party intending to bring such action, or by his attorney or agent, in writing, signed by the party demanding the same, of a perusal or a copy of the warrant, and that the same hath been refused or neglected for six days after such demand : and if after any demand and compliance, any action shall be brought, without making the justice who signed the warrant defendant, on producing and proving such warrant on the trial the jury shall give a verdict for the defendant, notwithstanding any defect of jurisdiction of the justice; and if such action be brought jointly against the justice and constable, &c., on proof of such warrant the jury shall find for the constable; and if the verdict shall be given against the justice, the plaintiff shall recover costs against him, including such costs as the plaintiff is likely to pay to the defendant, for whom the verdict shall be found. “And where the plaintiff in such action against a justice shall obtain a verdict, and the judge shall certify on the record that the injury was wilful and malicious, the plaintiff shall have double costs. It is not necessary in the notice that the attorney's christian name should be written in full, but his residence must be specifically stated.--7 Taunt, 53; 2 Marsh, 367; 3 Bos. and Pull.
By 16 V. c. 180, $ 7, no action shall be brought against a justice of the peace for any thing done by him in the execution of his office, unless the same be commenced within six calendar months next after the act complained of $ 8, nor until one calendar month at least after a notice in writing of such intended action shall have been delivered to him, or left for him at his usual place of abode, by the party intending to bring such action, or by his attorney or agent, in which said notice, the cause of action, and the court in which the same is intended to be brought shall be clearly and explicitly stated; and upon the back thereof shall be endorsed the name and place of abode of the party so intending to sue; and also the name and place of abode, or of business, of the said attorney or agent, if such notice have
been served by such attorney or agent.-See further on this subject under the title of “ Justices of the Peace." Notice of Action from the Attorney of the Party to a Justice
of the Peace, for false Imprisonment. To A. B., one of Her Majesty's Justices of the Peace, act
ing in and for the County of SIR,
I do hereby, as the attorney of C. D., of , gent., give you notice, according to the form of the statute in that case made and provided, that I shall, at or soon after the end of one calendar month from the time of the service of this notice upon you cause a writ of summons to be sued out of her Majesty's Court of Queen's Bench* at Toronto against you, at the suit of the said C. D., for false imprisonment; for that you, on or about the day of last, by warrant under your hand and seal, dated the day of, did cause the said C. D. to be apprehended and conveyed to the common gaol of (as the case may be) and to be there imprisoned, and kept and detained there without any reasonable or probable cause for a long time, to wit, for the space of then next following. Dated this day of ,18 .
E. F., residing at City of Toronto,
Attorney for the said C. D. Demand on a Constable of perusal and copy of his warrant. To MR. C. D.
I do hereby, as attorney of and for A. B., of , &c., according to the form of the statute in such case made and provided, demand of you the perusal and copy of the warrant, by virtue or under colour whereof, you did, on or about the day of last, apprehend the said A. B., and carry and convey him in custody to and before S. P., Esq., one of Her Majesty's Justices of the Peace in and for the County Dated, &c.
City of Hamilton.
I do hereby, as the attorney for E. F., of , &c., according to the form of the statute, &c., (as before) demand of you the perusal and copy of the warrant of commitment and detainer under which you received into your custody the said E. F. on or about the day of instant. Dated, &c.
* Or the Court intended.
City of Hamilton. It seems proper that constables should retain their warrants, and not return them to the magistrate, otherwise they cannot comply with the directions of the act.-(Toone.)
ACTS OF PARLIAMENT. * By the 41 G. III., c. 11, it is enacted, that the Secretary of this Province shall endorse on every act of the legislature which should pass during the then present and every future session thereof, immediately after the title of such act, the day, month and year, when the same shall have passed, and received the royal assent: and such endorsement shall be taken to be a part of such act, and to be the date of its commencement, when no other commencement shall be therein provided.
* By the 1 W. IV., c. 1, § 2, all aets of the Provincial Parliament, public or private, shall be taken notice of judicially in all Courts of Law in this Province, without being specially pleaded; and a copy of such act printed by proper authority, shall be taken as sufficient evidence.
By the 4 & 5 V. c. 24, $ 50, in cases of indictment or summary conviction, the singular number or masculine gender shall be understood to include several matters as well as several persons, and females as well as males, and bodies corporate as well as individuals, unless otherwise provided or repugnant to the act; and forfeitures shall be payable to a body corporate, if the aggrieved party.
A penal statute is to be construed according to its spirit and the rules of natural justice, not according to its very letter.-Rex v. McIntosh, Easter *7 W. IV., Cameron's Digest, p. 55. See also “ Interpretation Act.”
ADJOURNMENT. When a court of sessions of oyer and terminer, and gaol delivery breaks up without any adjournment, or upon a void one, as being made without the consent of the majority of the commissioners, the commission is determined, if no time be limited for its continuance, as where it is appointed pro hac vice only; but if it be granted for a certain time, or, quamdiu nobis placuerit, it does not necessarily require
te corporate, if thet; and forteless otherwise
any adjournment, and may be holden again on a new summons.-2 Haw. c. 5, § 7.
AFFIDAVIT. An affidavit is an oath of some fact, testified in writing and sworn before some person who hath authority to administer such oath. The true place of habitation and true addition of the deponent must be inserted in the affidavit. -1 Lill. Ab. 44, 46.
An affidavit ought to set forth the matter of the fact only which the party intends to prove by his affidavit, and not to declare the merits of the case, of which the court alone is to judge.—21 C. 1 B. R.
And the matter sworn to must be positively set forth, with all material circumstances attending it, that the court may judge whether the deponent's conclusion be just or not.1 New. Abr. 66.
Therefore, on a motion to put off a trial for want of a material witness, it must appear in the affidavit that sufficient endeavours have been made to have him at the time appointed, and that he cannot possibly be present, though he may be, on further time given.-7 Mod. 121; Comb. 421, 422.
When an affidavit is read in court, it ought to be filed with the proper officer, that the adverse party may see it and take a copy.-Pasch. 1655.
The affidavit must be made before the judge or commissioner of the court where the cause or matter was pending.–Sty. 455.
An affidavit improperly entitled cannot be read, as no indictment thereon will lie for perjury.-Salk. 461.
Affidavits in aggravation of punishment are not receivable in cases of felony.—R. v. Ellis, B. & C. 148.
Any person making or knowingly using a false affidavit, purporting to be taken abroad before a foreign magistrate, for the purpose of misleading our own courts, is guilty of a misdemeanor, in attempting to prevent public justice, and is punishable by indictment.-Omealy v. Newall, 8 East, 364. Affidavit of being prevented by illness from attending the
Sessions, (to be made by a medical man, if convenient] in order to move to continue a party upon his recogni
zance. County of A.B., of in the said County; surgeon,
to wit. ) maketh oath and saith, that C. D., of yeoman, is confined to his house by severe illness, and that this deponent saw the said C. D. this day, and verily believes he is incapable of travelling without manifest danger of his life. Sworn, &c.