Графични страници
PDF файл
ePub

the costs of the action, and to return the same forthwith to the division court of the division wherein such warrant was issued, upon receipt of which warrant the bailiff or constable to whom the same may be directed shall (upon being paid his lawful fees for levy, mileage, and otherwise thereupon, including the fees of appraisement) forthwith execute the same, and make a just and true inventory of all such personal estate and effects as he shall seize and take by virtue thereof, and such bailiff or constable shall within twenty-four hours thereafter call to his aid two freeholders, who shall first be sworn by such bailiff or constable, to appraise the said personal estate and effects so seized; and such bailiff or constable shall forthwith return the said inventory, which shall be attached to such appraisement, to the clerk of the division court of the division within which such warrant was issued, and which warrant may be in the form of that in the schedule to this act annexed, marked E: provided always, that the said appraisers shall be entitled to receive for each day they may be employed in carrying its enactments into effect the sum of two shillings and sixpence each, to be paid in the first instance by the plaintiff or plaintiffs, and allowed in the costs of the cause: provided always, that proceedings may be conducted to judgment and execution in any case commenced by attachment under the provisions of this section, in the division court of the division within which the warrant of attachment shall issue; and that when proceedings shall be commenced in any case before the issuing of an attachment under the provisions of this section, such proceedings may be continued to judgment and execution in the division court within which such proceedings may have been commenced; and the property seized upon any such attachment shall be liable to seizure and sale under the execution to be issued upon such judgment, or the proceeds thereof, in case such property shall have been sold as perishable, shall be applied in satisfaction of such judgment: provided further, that it shall not be lawful for any plaintiff to divide any cause of action into two or more suits for the purpose of bringing the same within the provision of this section, but any plaintiff having a cause of action above the value of twenty-five pounds, for which an attachment might be issued under this section if the same were not above the value of twenty-five pounds, may abandon the excess, and upon proving his case, shall and may recover to an amount not exceeding twenty-five pounds, and the judgment of the court in such case shall be in full discharge of all demands in respect of such cause of action, and the entry of judgment therein shall be made accordingly.

[blocks in formation]

A. B. of in the county of (here state the county) the plaintiff (or agent, as the case may be) maketh oath and saith, that C. D., (the debtor's name) is (or are) justly and truly indebted to (the creditor's name) in the sum of

of lawful money of Canada, for (here state the cause of action briefly :) and this deponent further saith, that he hath good reason to believe, and verily doth believe, that the said C. D. hath absconded from this province, and hath left personal property liable to seizure under execution for debt within the county of ; (or) that the said D. C., is (or are) about to abscond from this province, or to leave the county of with intent and design to defraud the said

(the creditor) of the said debt, taking away personal estate liable to seizure under execution for debt; (or) that the said C. D. is concealed within the county of to avoid being served with process, with intent and design to defraud the said (the creditor) of his said debt; and this deponent further saith, that this affidavit (or affirmation as the case may be,) is not made, nor the process thereon to be issued, from any vexatious or malicious motive whatever. A. B.

Signature of deponent. Sworn (or affirmed as the case may be,) before me, the day of

one thousand eight hundred and

County of (here insert the county)

}

SCHEDULE E.

To A. B., bailiff of the division court of the said county of (or to A. B., a constable of the county of) (as the case may be.)

You are hereby commanded to attach, seize, take and safely keep all the personal estate and effects of C. D., (naming the debtor,) an absconding, removing or concealed debtor, of what nature or kind soever, liable to seizure under execution for debt within the county of (here name the county) or a sufficient portion thereof to secure A. B., (here name the creditor,) for the sum of (here state the amount sworn to be due) together with the costs of his suit thereupon, and to return this warrant with what you shall have taken thereupon, to the clerk of the (here state the number of the division) division court of the county aforesaid forthwith: - and herein fail not.

Witness my hand and seal, the

day of

E. F.

(L.S.)

18

Judge, clerk or justice of the peace, (as the case may be.)

ACCESSORY.

An accessory is one guilty of felony, not as a principal, but by participation, command, advice or concealment. In high treason there can be no accessories, as all concerned are considered principals. The mere concealment of a felony intended to be committed, does not render the concealer an accessory. It is only misprision of felony. -2 Haw. c. 29, § 23.

There are accessories before and after the fact.

An accessory before the fact is, as Hale defines it, one who being absent at the time the crime is committed doth procure, counsel, or advise the commission of it; and his absence is necessary to constitute him an accessory.

Accessories after the fact, are those, who knowing the felony to have been committed by another, receive, relieve, comfort or assist, the felon.-1 Hale, 618.

But if others accompany the principal to commit a felony, and keep within hearing, or upon watch, all are in such case deemed principals. -2 Haw. c. 29, § 7, 8.

A wife cannot be accessory to her husband, either before or after the fact, unless she be any way guilty of procuring him to commit the felony. - 2 Haw. 320.

Anciently, the accessory could not be tried unless the principals were attainted; 3 Ed. I. c. 14; but the law in this respect has been altered by several statutes, * and now, by the 4 & 5 V. c. 24, § 37, accessories before the fact to felony at common law, or by statute, shall be deemed guilty of felony, and may be indicted and convicted as accessory before the fact to the principal felony, either together with, or after the conviction of the principal felon, or may be indicted for and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, and may be punished in the same manner as any accessory before the fact to the same felony, if convicted as an accessory, may be punished, and such accessory may be tried and punished by any court having jurisdiction to try the principal felon. § 38. Accessories after the fact, may also be tried where the principal felony was committed, or where the party shall have become accessory: accessories not liable to be again indicted for the same offence. § 39. Accessories may be prosecuted, notwithstanding the principal felon shall die or be pardoned, or otherwise delivered before attainder. § 33. In the case of every felony punishable under this act, every principal in the second degree, and every accessory before the fact, shall be punishable with death or otherwise, in the same manner as the principal in the first degree is by this act punishable, and every accessory, after the fact to any felony punishable by this act, (except only a receiver of stolen property), shall, on conviction, be liable to be imprisoned for any term not exceeding two years; and every person who shall aid, abet, counsel, or procure the commission of any misdemeanour punishable under this act, shall be liable to be indicted and punished as a principal offender.

*1 Ann. c. 9, § 1. 19 G. II. c. 30.

By the 4th and 5th V. c. 25, § 54, if any person shall aid, abet, counsel, or procure the commission of any offence which is by this act punishable on summary conviction, either for every time of its commission, or for the first and second time only, or for the first time only, every such person shall, on conviction, before a justice or justices of the peace, be liable for every first, second, and subsequent offence, of aiding, abetting, counselling, or procuring, to the same forfeiture and punishment to which a person guilty of a first, second, or subsequent offience, as a principal offender is by this act made liable.

The 4th and 5th V. c. 27, § 26, also contains a provision similar to the 4th and 5th V. c. 25, § 54, for the punishment of accessories to felonies, &c., under that act.

And by the 4th and 5th V. c. 27, § 35, principals in the second degree and accessories before the fact to offences under this act, shall be punishable as the principal in the first degree: and accessories after the fact shall be liable to imprisonment, not exceeding two years. See also post title, "Receivers of Stolen Goods," "Explosive Substance." See also further on this subject under the title of "Indictable Offences," and "Summary Conviction."

Form of Information and Complaint against an Accessory before the fact.

PROVINCE OF CANADA:

County of

The information and complaint of A. B.

of the township of

to wit.

yeoman, taken

this

,

before

day of in the year of our Lord the undersigned, (one) of her Majesty's justices of the peace, in and for the said county of who saith that on the

day of

,

was

last, his dwelling house, situate at about the hour of ten o'clock, in the night of the same day, feloniously and burglariously broken and entered, and that (describe the property stolen) his property were then and there feloniously stolen, taken, and carried away, and that he hath just cause to suspect, and doth verily suspect and believe that C. D, of aforesaid, labourer, did commit the said felony and burglary, and that E. F., of

aforesaid, labourer, did

advise, aid, and abet, the said C. D., in the said felony.

Sworn before (me) the day and

year first mentioned.

}

Warrant thereon.

PROVINCE OF CANADA:

County of

to wit.

Whereas C. D., of

C. D.

J. P.

To all or any of the constables or other

peace officers in the county of

have this day

and E. F., of been severally charged upon oath before the undersigned (one) of her Majesty's justices of the peace, in and for the said For that he, the said C. D., did on the

county of

,

day of last, about the hour of ten o'clock, in the night of the same day, feloniously and burglariously break and enter the dwelling-house of A. B., situate at and feloniously steal, take, and carry away (describe the articles) the property of the said A. B., and that the said E. F. did advise, aid and abet, the said C. D. in the said felony. These are therefore to command you in her Majesty's name, forthwith to apprehend the said C. D., and E. F., and to bring them 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 so preferred against them respectively, and to be further dealt with according to law.

Given under (my) hand and seal this day of

year of our Lord, 185 at

aforesaid.

,

in the county of

in the

J. S. (L.S.)

Warrant to apprehend an Accessory after the fact, for harbouring the principal.

PROVINCE OF CANADA;

County of

to wit.

To all or any of the constables or other peace officers in the county of

Whereas C. D., of

stands charged this day upon oath before the undersigned, (one) of her Majesty's justices of the peace in and for the said county of the said C. D. (stating the offence as above); and whereas G. H.

For that he

« ПредишнаНапред »