GUIDE TO
POLICE MAG-ISTRATES
AND
JUSTICES OF THE PEACE.
►
A PRACTICAL GUIDE
I^OLICE MAGISTRATES
JUSTICES OF THE PEACE.
WITH AN ALPHABETICAL SYNOPSIS OF THE CRIMINAL LAW
AND AN ANALYTICAL INDEX
BY
JAMES CRANKSHAW, B.C.L., MONTREAL
A, hoc,,/, „.iu/ lin-ishui ll(trrl>if,T : Anllu,,- (>/".!/< Ayiuotatal IMition „r
f/ic Criminal Codr of Ciiiimla, ISUJ.''
MONTHEAL:
WIHTKFORI) \- Tiri;()IN<7r.
LAW 1500KSELJ,EItS, PlULISMEIiS, LMl>OHTEH.S AND MLNDKHS
2a AM) 25 ST. .LvMES STREET.
180.5
EnTKKKI> ACCORTIINO TO ACT OK PAIU.I A M KNT OK C A \ ADA, IN
Tiiio YKAH WJn, iiY WHITEFOHD & TIIK()1{KI'. ix thi:
OFFICE OF THE MINI8TKR OF AGRICUI/I'lHK, Ar OlIAWA.
TO THE HONORABLE
SIR CHaRLES HIBBERT TUPPER, K.C.M.G., Q.C.
MINISTER OF JUSTICE OF THE DOMINION OF CANADA
THIS WORK
MOST RESPECTFULLY DEDICATED.
PHKFACE.
Encouraged by tlie favor with which his aiinotatt'd edition
of the CanfiNAL Code op Canada lias been received by the
profession throngliout the Dominion, and prompted, also, by
the urgent solicitation of his publishers, the Author ventures
to make another effort in the field of legal literature.
The present work is inteiided for the guidance of Justices
of the Peace, and to be of practical use, — as a book of ready
reference, — to Police Magistrates, Magistrates' Clerks, and
legal practitioners. It is based, mainly, though not solely,
upon the Criminal Code; and, with the view of bringing the
work up to date, the latest statutory changes and amendments,
including those made by the Dominion Parliament in 1894, as
well as the most recent judicial decisions of importance have
been incorporated and carefully noted in their proper places.
After a short introduction on the origin of the office of a
Justice of the Peace and the growth of the institution to its
present state of importance, the work is divided into four
divisions. The first treats of the modes of and the formalities
attending the appointment of Justices of the Peace and Police
Magistrates and of their respective powers, duties and respon-
sibilities ; the SECOND treats of the parties to the commission
of crimes, and of the extent of the Criminal Law as to time,
persons, and place ; the third deals with the prosecution of
criminal offenders, the jurisdiction of the criminal courts and
of Magistrates and Justices of the Peace, the general powers
VIII I'UACTIl'AI. (HIDE T<> MAll I SI'KATES.
of HUimuary arrest ol" t'riiniiml ofteiiders, tliu modes of prose-
cuting iiidictalde ott'eiices, the procedure l)etbre and at the
Itrcliniinary enquiry into eliarges triahle by indictment. \]iv
procedure in Hiinimary trials of indictable oftences, 8[»ee(ly
trials, and triah- of juvenile nffendern, and the procedure in
connection with tlie summary trial and convicttion of persons
charged with non-indictable ottenees, including the subsecjuent
proceedings by way of appeal, reserved case, certiorari, and
habeas rorjms ; while the fouktii division consists of an alpha-
betical synopsis of the criminal law.
Besides all the necessary forms, appropriately distributed
according to the several subjects to which thcj' relate, a tiible
of indictable offences is placed at the end of the chapter upon
procedure in preliminary enquiries, and at the end of the
chapter on sumniary convictions a table is given of non-indict-
able offences.
J. C.
Montreal, Slat January, 1895.
TAHLK OF CONTKNTS.
— •♦• — •
Preface vii
AMln'cviatioiis ^vji
Table of C'uHes xx.'
INTKODUCTION.
Origin of the Office of Justice of the Peace.
Karly Knulisli Courts I
('oiiHcrviildrH of the IVace IH
Institution (if .lust icfs (if t lie I'eaee Ill
(Creation of their .Suimiiary Jurisdiction IV
FIEST DIVISrON.
Appointment of Justices of the Peace and Police Magistrates: and
their Powers, Duties and Responsibilities.
CHAl'TEK I.
JusTiiKs (IK THio I'kaci;.
I'AGB
How Constitnterl i
' Their Aiipointinent 4
Proi)ert.v (^ualilleation d
Oatli of Q\iiilitlcation 7
Oaths (if Allegiance and of OfHce Id
CHAPTER II.
Appointment of Police Macistkates.
In Ontario y
In Quebec j^
In Xova Scot ia, Manitoba, and Keevvatin I7
In British Columbia and X. W. Territories 1«
CHAPTER III.
The Powers, Duties and Resi'onsihii.ities of Juhtuks and Police
Maiustkates.
Nature and extent of their Powers 18
Disijualifying interest, bias or partiality 2.5
Ouster of Summary Jurisdiction 32
Power to Maintain Order ;^(j
Liability for IllcKal Acts [[ [ ;ji)
Formalities of Actions against Justices .50
Mandiunus 51
Rule in the Nature of a Mandamus 5<5
X PRACTICAL, GUIDE TO MAGTSTKATES.
SECOND DIVISION.
Parties to Crimes : Extent of the Criminal Law, as to Time, Persons
and Place : Special Sestrictiona.
CHAPTER IV.
PAKTIES to CiMMlSS.
I'AGK
Principal Ollenders .58
AccessoriL's after the Fact (J3
CHAPTER V.
Extent of the Chiminai. Law as to Time, Persons and Place.
Liinitations of Time under the Criminal Code (i.T
Othur Limitations (f?
Computation of T>imiti'd Time (38
Limitations in Summary I^rosecutions 70
Persons to whom the Criminal Jjaw extends 72
Extent of the Criminal Law of Canada as to Place 73
CHAPTER VL
Special Restrictions.
Prosecutions requiring consent of Gov.-Gen 77
Prosecutions recjuiring consent of Atty.Gen 77-78
Prosecutions reciuiring consent of Min. of Mar. and Fish 78-79
THIED DIVISION.
Prosecution of Criminal Offenders.
CHAPTER VIL
Indictable and Non-Inpic table Offences ; Jurisdiction ; Summary
Arrest.
Jurisdiction of Criminal Courts 80
Exclusive Jurisdiction of Superior Criminal Courts 81
Concurrent .Jurisdiction of General or Quarter Sessions 82
Where Offenders may be Tried 83
Magisterial Jurisdiction 83
Exorcising Powers of Two Justices 84
Local .Jurisdiction in Special Cases 85
Summary Arrest 90
Justification of Summary Arrest 95
Statutory power of Arrest 98
Justification of Force used in Arrests 98
Duty of Persons Arresting 99
Preventing Escape 99-100
TABLE OP CONTENTS. Xl
CHAI'TKH VIII.
Proskcution ok I.\imTAHi,E Offenck.s.
r.xoK
Modes of Prosecution 1"<'
("oiiipi'lliiiK AppciiiMiR'i' befr)iv Justices lOl
OIlViiccs Committed out of Magistrate's Jurisdiction W.i
Liiving Information 1'"
Ileariiitr Information and Issuing Summons or Warrant 105
Warrant in Cases of OlFeiKes Committed on tlie Iligli-Seas 101)
Contentsof Sunnnons, Service 107
I'xeeution of Wairants 10!) 11 1
Endorsed Warrants ll'>
Proceedings in Canada on Warrants issued Elsewliere 110
Search Warrants 117- LSI
Forms under Part XLIV of tlie Code 135
Additional Forms 1-1
ICxamples of the manner of stating Ofrences 143.1811
CIIAPTKP IX.
{Putt XLW vf the Cuili:)
Pi{()(i:mi£K O.N Ai'1'KABANc;k op Accused.— Pudi.imi.nahv ExyuiHY.
When Prellmiiiarv En(|iiiry to 1)0 llehl IIKI
Property found on prisonei' lUO VJ2
I rregularity in Procuring Appearance Iit2
I 'rocuring .\ttendance of Witnesses 103
Evidence Under Commission KKi
Conunitment of Witness Refusing to he E.xainined 19S
Disciftion of .liistice at Preliminary Knciuiry 1!K)
Accused Persons Under Ki to be Kept Separate 2tKl
Hall on Remand 201
Evidence for the Prosecution 202
Interest or Crime no Har to a Witness' Competency 204
Accused a Comi)etent Witness 204
Oi'dering Witnesses Out of Coui't 2(M
Evidence on Oath or Atlirmat Ion 205
Modes of Adoilnistering the Oath 207
Evidence of Mute • 20!)
Evidence of Foreign Witness 20!)
Examination in Cliief 200
Cross-i'Ixaminatlon 210
Re-Examlnation 211
Evidence of Young Child 211
Evidence to be Read to the Accused 212
Caut ion to the Accused , 212
I*;vlden('e of Confession or Admission 213
I'lvldence foi' the Defence 210
Expediency of Callinu Witnesses for Defence 217
I )lscharge of the Accused 220
Committal for Trial 221
Recognizances to Prosecute or Give Evidence 222
Xll PRACTICAL GUIDE TO MAGISTRATES.
i-a(;e
Transmission of Documents 22H
null- as to Hail 221
Bail After Committal 22()
Warrant of Di'liverance 22S
Warrant to Arrest a Hailed Person About to Abscond 228
Delivery of Accused to I'rison 22!)
Forms Under Part XLV of the Code 229-241
Additional Forms 245 24!)
l.isl of Indictable Offences 2:)1 2(((>
CHAPTER X.
(Parf IJV of the Cod,:)
Si'EKDY Trials ok I n dicta hi. k Ofkknces.
Application. -Meanings of cxpretisions "Judge," etc 267
Judge to be a Court of Record 2ttS
Otlences Triable Cnder this Part 208
Duty of Sherirt' After Committal of Accused 2(t8
Arraignment 2(i!)
Costs 20!)
Compensation to Bona Fide Purchaser of Stolen Property 271
Restitution of Stolen Property 271
I'ersons Joiiu iy Accused 273
Klection Afier Refusal to be Tried by Judge 273
Flection After Committal Under Part LV or LVI 274
Tiial of Accused 274
Powers of .Judge 275
Reserving Questions of Law 278
Appeal "When Question Not Reserved 270
Admission to Bail 27!)
Adjournment.— Powers of ^Vmendment 270
Recognizances to Prosecute or Give Evidence 270
Attendance of Witnesses 280
Forms Under Part LIV of the Code 281-284
Additional Forms 285
CHAPTER XI.
{I'tirt LV of thr Code.)
Summary Tuiai, ok Indk tahi.u; Okkencks.
Dennitions 287
Otlences to be Dealt With under this Part 288
When Magistrate sliall have Absolute .lurisdictitin 289
Summary Trial in certain cases in Ontario 290
Summary Trial in Certain Other Cases 290
I'roceedlngs on Arraignment of Accused 2tK)
I'uiiishmenis under this Part 291
Proceedings for Otlences in liespect to I'roperty Worth Over Ten Dollars,
and I'unishment on Plea of Uuilty in Such Cases 292
TABLE OF CONTENTS. Xll
PAGE
INIii^ist rati' May Decide Not to Proceed Sumiuiirily 2!>2
Klcitioii (if Tiiiil liy Jury to be stated hn V/arniiit of Coniinittal 2!W
F.ill Defence Allowed 20:1
Proceedings lo l)e in Open Conrt. 2!):{
Procuiinjj; Attendimee of Witnesses 2!):!
Service of Summons 2!M
Dismissal of t'liame.- Ktl'ect of Conviction 204
Certidcate of Disnussal a liar to Fuitlier Proceedings 294
I'roeeediHKs not to l)e Void for Defect in Forn) 2!)")
Hrsnli of Hearing; to i>e Filed in t'ourt of Sessions 21(i>
Evidence of Conviction or Dismissal 2tM)
llestitul ion of Propert y 2!M>
Remand for Further Investigation 2!l()
Non-appearance of Accused Under Kecogni/ance 2(M>
Aiijilication nf Fines 2i)7
Certain Pro\ , ins not Api)licat)le to this Part 2i)S
Forms under Part LY. of the Code 21)8 299
CHAPTER XII.
(Pitrt LVI. of the Code.)
TKr.M. Ol' .IrVKNIIiK Ol'l-'KXnKKS FOR IndICTABLK Oir'KNtKS.
Definitions 800
P\inisliment for Stealing :t01
Procuring Ap|iearance of Accused ;{01
Ueniand of Accused a02
Accused to Elect How he Shall he Tried ;«)i!
Wlien Accused Shall not be Tried Summarily 'M'S
Summons to Witness. — Hinding Over Witnesses :{()H
Wai'rant Against, Witness 'M'.i
Si'rvice of Summons ',M
Discharge of Accused :>0l
Form of Conviction ;{()!
Further Proceedings Dai'red 1504
Conviction and Kecogni/ance to l)e Filed 'MiH
Quarterly Helurns :!()")
Hi'stitution of Projjerty 'Mii
Proceedings When Penalty Imposed on Accused is not Paid .105
Costs.- Apiilicat ion of Fines :j(X)
Costs to be Certified by Justices ;107
Ai)plication of tliis Part :10H
No Imprisonment in Reformatory in Oniario Under this Part liOH
Otiier Proceedings Against .Invenile Otl'enders Not Affected ;t08
Forms Under Part UVI. of the Code 308-309
XlV PBACTICAIi GCIDE TO MAGISTRATES.
CHAI'TKIf XIII.
{Part L\ III. of the Coih:)
SUMMAKY CoNVIcriONS.
l'A(iK
Intei'prctiit ion.— Application ;il(l
Time Within W'liich Proceedinf^s Shall hp Coninicnced 311
.Inrisdiction 311
Iloarin^ Mofoi-e Justices 312
Hacking U'ai rants 314
Irfoiniations and Uoniphiints ; . . . 315
Ci'i'tain Oh.jcct ions not to N'itiatc FrceoediriKs 310
SuninioMs or U'aiiant to Witness 311)
Hfarinn to lie in Open Conrt 31))
Counsil for Part ies 310
Evidence .320-324
NonapjH'arnnce of Accused oi- of Prosecutor 32.5 32M
Proceedinj^s When Moth Parties Appear 32H
ArraiKmiit'iit. — Adjournment 32!)
Adjudication.— Form of Conviction Ml-IWi
I)if<l)osal (»f Penalties on Conviction of .Joint Otleiulers IWH
First Conviction in Certain Cases 338
Certiticate of Dismissal .'ttO
Disohedieiice to Order of .fust ice :i31)
Assa\ilts.— Disnussal of Complaint for Assault 'Mi)
Kelcase from Further ProceediuKN 340
Costs 342
Recovery of Costs 342-343
Fees 343
Provisions Respecting Convictions 345
Order as to Collection of Costs 347
Kndorsement of Warrant of Distress 'Ml
Distress Not lo Issue in Cei'tain Cases 'M8
Remand of Defendant When Distress is Ordered - 348
Cumulative Punishments 348
Recoyn izances 340
Appeal 3.TO-;i55
Conviction Not to he Quashed for Defects of Form 355
Certiorari 3.50
Conviction to be Transnutted to Appeal Court 350
Conviction not to be Held Invalid for In-egularity 3.50 .■^(iO
Protection of .Justice Whose Conviction is Quashed 3(H)
Condition of Hearing Motion to Quash 301
Imperial Act Superseded ;^61
.Judicial Xotic! of Proclamation 301
Refusal to Quash. — No procedendo necessary on 362
Costs 302
Abandomneiit of Ap])eal ;^03
Statement of Case by .Justices for R«;vie\v 363-307
Ilaimas Corpus 308-370
TABLE OF CONTENTS. V
Tciulcr and I'.iyim-iit '^71
Hflnins lU'spcctiiiK Ct'iivictioiis H72
I'i'.bliciitioii, cK-., of Ht'tunis 1173
I'fOsocutiiiiiH for Penalties Under Art. Wi 374
Hcinedies Saved -174
Dt'ffctive HetnrnH '174
( 'crtain Dcfeits not to Vitiat^^ Proceedings 374
Pi-csci'viiifi Order in Court 375
l{esist;ince to I'lxecntion of I'' .^<ss 375
{■'ornis I'nder I'art LVIII. of tlie Code 375 3i)8
Additional Forms 3iW-402
Tal)le of N'onIndictal)le OHences I'ncivr the Code 4()3-40S
CIIAPTKR XIV.
{Piirf LIX o/ thf Codr.)
KiaO(iNIZANlKS.
Kendcr of Accused by Surety 409
IJail After Wender .' 400
Uischarfie of Kecoj^nizauce 409
Render in Court 410
Sureties not Discliarged liy Arraijinnient or Conviction 4U>
Hin'lit of Surety to Render 410
Entry of Pines, etc., on Record anil Recovery Thereof 410-411
Ollieer to Prepare Lists of Persons I'nder Recognizances Mnkinfi'
Default 412
Proceedings on Forfeited Recognizance 412-415
Apiiroiiriation of Moneys Collected by Slierilf 415
Special Provisions as to Quebec 415-417
Form under Part LIX of the Code 118
CHAPTER XV.
{I'arf /.AT of thv Code.)
SiTRETIES KOR KkEI'IXC TIIK PeacE.
Persons Convicted may be Fined and Bound Over to Keep the Peace. . 419
Recognizaiu'cs to Keep the Peace may be Recpiired of Per,*)ns Charged
With Ofl'ences or U))on Complaint of a Person Threatened 419-421
Proceedings wlien a person does not find .sureties 42
I'orms under Part LXV of the Code 422-425
FOURTH DIVISION.
Al.PH AHETK'AL SyXOI'SIS OK THE CRIMINAL Law CE CANADA 420 fi72
XVI PRAOTICAI, UUIIlE TO MAGISTRATES.
APPKNDIX.
TiiK KxriiADiTioN Act.
PAGE
ExtnuUtion frr.ni C"iiiiii<la. 07H
Kxtrudit'on from Foroitin State 07,5
Kxtnulition of iTinuiiiilh iH'twce 1 Canada and I'. S (W!
List of oCieuces extraditable but veeu Canada and U. S (VIT
Forms (i77, (ufi
TiiK Kii(irnvK OrrKXiiKns Act.
Ap|)lication of Act, and crimes allected by it (i78, Cuit
Manner of return of fugitive • (W(l
Evidence 081
Amkn'ojiknt to Tin: Codk.
An Act to further amend the Criminal ("ode, I8!)2 ()82
YOUTHFUI- OlIKNDKRS.
An Act respecting the Arrest, Trial ami Imprisonment of youthful of-
fenders (W)
An Act respecting juvenile olFenders in New Brunswick ()87
CrE:NEEAL INDEX G8'J
ABHREVIAFIONS AND REFKRENCKS.
Ad. & K. ((**• A. & E.) Adolpliiis & i;ilih" Hcpdrts.
A Hull Allen's New Hruiiswick Heports.
Am. Hi']) Amci'iciiii Reports.
.\iiii. Hl'H Aiiiiiial l{e}.?isiei-.
Anon AnonyniDUN.
Areh. Cr. PI. & Ev Arclibold's ('riniinal I'leadin^i- and Kvidoiice.
15. & Aid Banu'wall it Alderson.
B. & Ad Marnewall & Adolplms.
H. & B. {or Brod. & B.) Broderip & BhiKlnini.
B. & C. (or B. & Cr.) Barnewall Hi Cre.sswell.
Barn Barnai'diston.
Hell CO BelTs Crown Cases.
B. &S Best & Sniitli.
B. .t P. {or Bos. & 1».) Bosan(|uet it Buller.
Bln^ Bingham.
Bisli. \e\v Cr. L. Com Bishop's \e\v Criminal Law Commentaries.
Hi. Com Blackstone's Commentaries.
Broom's I.e^c. Max Broom's Lefj;al Maxims.
Broom's Com L Broom's (,'ommon Law Commentaries.
Bull. X. P Buller's Nisi I'rins.
Bur. DiK Burliridfje's Dijiest Criminal l,aw.
Burr Burrow's Reports.
(^ald Caldeeolt's I'ases.
Camp Camphell's Reports.
Can. L. J Canada Law .Journal.
("an. L. T. (oc C. L. T.) Canadian Law Tinu's.
Can. S. C Canada Supreme Court Reports.
("arr Carrington's Criminal Law.
(' & K Carriufj;tou & Kirwan's Reports.
C. & M. {or Car. & M.) Carrington & Marsliman's Reports.
C. & P Carrington & Payne's Reports.
Cliit Clntty's Criminal Law.
Cliit. Rt'p Chitty's Reports.
Cartli Cnrtliew's Rei)orts.
CI. & F Clark * l''inuelly.
Co. Litt Coke upon Jjittleton.
Comb Comberbach.
C S. Consolidated Statutes of Canada.
C. S. L. C " " Lower Canada.
C. S. U. C " " Upper "
Cranch Crancli's U. S. Supreme (^ourt Reports.
B
XVIll AHiiKEVIATIONS AND 11EPEKENCE8.
("f. li. Man Criminal Law IVIiiK<ixiiu>.
("roirii). &, M Cromptoii it Mccsoh'm HcportH.
('. M. (fe H Ciomplon, Mcfsoii i\: Hiiscou'm Ht'iHirtH.
■C. C. R Crown Cuscm IJe.scrvecl.
Cowp Cowper'.s Hi'port.s.
Cox U. C Cox'.s Ci iinintil Cases.
Dalt Diilton's Justice of the Peace.
1). & M Diivison it Meriviil's Hcports.
Dears Dearsley's Crown Ciiscs.
Dears. & H Dearsley & McM'm Crown Cases.
Den Denison's Crown Cases.
Dick Dickinson's Quarter Sessions Practice.
Dor. Q. B Dorion's Queen's Dendi Hep. (Quchec.)
DouK Douglas' Reports.
Dowl DowlinK's Ueports.
Dowl. & L. {or D. & L.) Dowlinj^ & Lownde's Reports.
D. & R DowliuK & Ryland's RejMjrts.
East East's Re))()rts.
East P. C East's Pleas of the Crown.
E. & B Ellis & Blackhurn's Reports.
E. H. & E Ellis, Blackl)urn& Ellis.
E. & E Ellis & Ellis.
Esp Espinasse.
F'ort Eortescue.
F. & F Foster & Finlason.
Fost Foster's Crown Ca.ses.
Greenl. Ev Greenleaf on Evidence.
Greenw. & M. Mag. G Greenwood & Martin's Maptisterial Guide.
Hale, P. C Hale's Pleas of the Crown.
Han Hannay's \ew Brunswick Reports,
Hawk. P. C Hawkins' Pleas of tlie Crown.
H. L. C House of Lords Cases.
How. St. Tr Howell's State Trials.
H. & N Hurlstone & Xornian.
Inst Institutes (Coke's). ^
Ir. C. L. R Irisli Common Law Reports.
Ir. L. T Irisli Law Times.
Jur The Jurist
J. P Justice of the Peace.
Keb Keble's Reports.
Kel Kelyng.
L. J. (M. C.) Law Journal (Magistrate's Cases).
L. J. (P. C.) ... Law .Tournal (Privy Council).
L. J. (Q. B.) Law Journal (Queen's Bench).
AHUREVIATIONS ANI) REFKRENCES. XIX
I,. IS. App. C'li l.iiw H('|)orlM (Api)ciil fuses, ||o\ist- of Lords
mid I'rivy ('oiiiicih.
L. H., C. C. U I'iiw lU'ports (Crown ('uses Rt'siTvcd).
L. H., F. & I) I"iw lifiioils (I'lolmtc & Divorce).
L. H.. Prol) I^iiiw Reports (rioliiite).
L. R., Q. H Law Reports (Queen'- Heiich).
I,. M. & I' Lowndes, Maxwell & Polloek's Reports.
L. T Law 'I'iines.
L. N LckhI .News (Montreal).
L. * C LcIkIi i^ ("ave's ("rown Ca.ses.
Lev Levinz.
Lew liewins ('rown Cast's.
Ld. Hayni Lord Raymond.
L. C. .1 Lower Canada .Iiirist.
L. ('. L. .1 Lower Canada Law .lonni.d.
L. C. R I jO wer Canada Report s.
Leacli Leach's Crown Cases.
M. & G. (or M. & Gr.) MannhiK & Gran^ier's Repoits.
Mall. L. R Manitoba liaw Reports.
Marsh Marshnll's Reports.
M. & Sel Manle & Selwyn.
M. & W Meoson & W'el.shy,
Mod Modern Reports.
Moo Moody's Rejiorts.
M. & M Moody & Malkins Reports.
Mon. L. 1) Monthly Law Digest (Montreal).
M. L. R. (Q. U.) Montreal Law Reports (t^neen's Bench).
M. L. R. (S. & C. C.) Montreal Law Reports (Snperior and Circuit
Courts).
Moo. & R Moody & Robinson's Reports.
M. & P Moore & Payne's Reports.
M. & S. {07- Moo. & S.) Moore & Scott's Reports.
N. B. R New Brunswick Reports.
N. S. R Nova Scotia Reports.
Odg. Lib. & SI Odgers on Libel & Slander.
Oke's MaR. Syn Oke's Magisterial Synopsis.
Ont.^App. Rep. {or Ont. A. R.). .Ontario Appeal Reports.
Ont. B. (or O. R.) Ontario Reports.
Palcy I'aley on Summary Convictions.
P. E. I. Rep Prince Edward Island Reports.
P. & D Perry & Davidson.
Plow, (or Plowd.) Plowden.
P- & B Pugsley & Burbridge's Reports (N. B.).
P"Ks Pugsley's Report.s (N. B.).
Q. L. R. . .T Quebec Law Reports.
Que. Otr. Rep. (Q. B.) Quebec Official Reports (Queen's Bench.)
XX AHHREVIATKlNS AND KKKERENCEH.
a R. &H R "Till! Hi'ports" (Clmncery Division).
in. &i)i{ " " (Ciiu'fii"« Uciicii Appi'iiiH).
.") |{. & 10 it " " (Ciufcn's lifiicli DiviNJon.)
It. S. I' •. I{('vi»i'(l Sditiili's ill' Caiiadii.
R. S. U.C " " Uiili-h ("olnmliiu.
R. S. .\. U " " Nt!\v Miuiiswick.
R. S. N. S " " NoviiScollu.
R. S. O " " Ontario.
R. S. Q " " Quel)ec.
Rev. r,('g Ri'vnc Lejjiilc (Qnclicc).
Hoscoc Cr. Ev Roscoe's Ci-iininiil K\ idcnct'.
liuss. & CiM. (id- R. &(;.) Husscll &(;cl(U'rt'H Reports (X. S.).
l{. & It. {or RuKH & Ry.) Rnssi-ll & Ityan.
RuHs. Cr Russell on Crinii's.
R. & M. (m- Ry. & M.) Ryan & Moody.
Sallv Salkuld'H Reports.
Saund Saunders' Reports.
Show Shower's Reports.
Sid Siderdn's Reports.
Sir T. Rayni Sir 1'. Itaynmnd's Rejiorts.
Sni. L. t.' Smith's Leading Cases.
Stark. f<]v Starkie on Evidence.
Stark Starkie's Reports.
Steph. Com Stephen's Commentaries.
Slepli. DIk- Cr. Pro Stephen's Digest of Criminal Proeedurc.
Steph. (ien. V. C. L Stephen's (ieneral X'it'w of Criminal Law.
Steph. Hist. C. L Stephen's History of the CJriniinal Law.
Str StraiiKe's Reports.
Stev. Dig Steven's Digest of New Hrnnswiek Reports.
St. Tr State Trials.
T. R Term Reports (I)nrnford & East).
Tayl. Ev Taylor on Evidence.
Taunt 'I'aunton's Reports,
Tyrw. (or Tyr.). . . Tyrwhitt.
U. C, C. P Upper Canada, Common I'leas.
U. C, Q. H Upper Canada, Queen's Bench.
Ventr Ventrls. *
Ves Vesey's Reports.
W. Bl William Blnckstone's Reports.
W. N Weekly Notes.
W. R Weekly Reporter.
Whart. C. L Wharton's Criminal Law.
TAHLK i)V (^ASPX
CITKD BY NA.MIv
I'.UiK
Aiiron, (Louis) and others R v. , 128
AI)l)Ott, U. V 5!H(»
Alinihiiiiis, H. V 5;W
Accrro, V. I'etroni 210
•\(krov<l, H. V 'M'i
Ailimis, 1{. V :>!»:(, (««»
Artiuiison, U. V 54, n(l, ai(!, 5;«I
AicUleM, U. V 546
Aiken, R. v :H21)
Ali'xiindi'r, R. v a^tt
Alliiii, R. V (M, :C)0
Allen and others, R. v iVtH
Allen, R. v, , . M2, 45, 74, :«7, H5H,
47(1, (144
Allen V. Worthy 72
Allen V. Wright !>«
Allison, He 3(W, H71
Allison, R. V 475, 470
All Saints, Southanipton, R. v.. a)
Alwartl, R. V (HKl
Anderson, R. v % . . 74
Andrews, R. v (KW
Angel, S. V 4!)K
.4/(0(1 2<i, fi59
Apothecaries Co., v. Jones tilH
Archer, R. v 5;«, 5(59
Armstrong, R. v 75
Armstrong v. McCafl'rev 37
Arnold, R. v " 21
Arrowsmith, R. v 41
Arscott V. Lillie 47
Aspinall, R. v 5()7
Aston, R. V .57, 72
Aston V. Blagrave 38
Atc^^eson v. Mallow 501
Athay, R. V 42
Atkinson, R. v 00, 522, (««)
Atty.-Gen. v. Bradlaugh .32:1
Gen. {Hong Kong), v.
Kwok-a-Sing 72
(Jen. (N. S. Wales), Mnk-
ens and Wife, v 526
Gen. (N. S. Wales), Mc-
Lend, V 76, HS, 478
(ien. V. Radlott' 323
Gen. V. Sheffield Gas Con-
sumer's Co (529
Gen. V. Sillem 323
At well, R. V 047
.Vit wood, V. .lolilfe 44
.Vttwood, R. V 439
Andl.-v, 1{. V 044
.Austin. K. V 68, 588
Ayard v. ( 'avendish 21, :W2
Azzopardi, R. v 76
Hadger, R. v 43, 220
llaileyA Collier, Ri- 371
Haines, R. v 308
Baker. R. v 4.55. 0.50
Ballv Castle, Magistrate of, R.
V 35
Bannen, R. v 60
Barliere, iV/""'''^ 32
Barclfiy v. Bearson . 013
Uavkt-y, Ex jKirte ,597
Barker, B. v 45, 337
Barnard, R. v 535
Barnes, H. v 532
Barrelt, lir 689
Barr tt. R. v 09
Barratt, v. Burden 615
Barron, R. v 40, 43
Barronet's Ca.se .570
B.'Vrronet, R. v 49(5
Bartlett, R. v 621
Barton v. Brieknell 47
Baselie v. Matthews 47
Basten v. Carew 44
Bate, R. V 215
Bates, R. V 203
Bauld, R. V 581
Baylis, R. v 42
Beard, R. v .55
Beekwitli v. Philby 90
Beeching. Kr parte 370
Beetner, R. v 20
Bell V. Oakley 121
Berry, R. v 577
Bellamj', R. v . (i!)
Bennett, R. v 4, 336, 586, .599
Berkshire, ,1. J., R. v 5!)9
Best, R. V .502
Berwick on Tweed v. Murray. . . .524
Bertles, R. v 53)5
Bessell v. Wilson 191, 329
xxii
TAIII.E OK ('AHF8.
I'AllK
licit luMil, S, V .">H2
Hctii'iwoiih, H. V .">;(
Miitiiv. /iV .. ;wi. :ii:»
HilliiiKH, H. V ; 21
IliiiKstnck, 11. V ■'».■!
Kiiiiii'V, K. V :ri7
ItiicliV. I'ctkins IH
llcinif v. .MiiiHliiill :«l
ifir'dii, |{. V .'i7
Mil I If, 1{. V :wt(
lijiiriiscM, U. V 7;<
niiuk, u. V .")i»i
lllair. 1{. V olW
Hliiki-. H. V nOn
llliss V. Iliill (121)
Ilolinu'lnokf, U. v :«)
Molion, U. V ST)?, :H70
Moiid V. Plumb 47;<
IlDi.th, It. V 4;io
lioli V. Ackiovd 47
Moiillhci'. I{. V :tt7
How (1. 11, 1{. V (MW
Ilo\v(ll..|'s Cwe :itll
Hiiw ver, U. V 452
lidNNViT V. IVrcy Supper Club. . 588
M.pwl, 1{. V 213
lli.ylf, it. V 10
l{()/:mi|ui'l V. Wiiodfonl 20
Itiiulfonl, H. V (120
Miailv V. .McArgle 514
Miady, It. V 5!^4
Mi'iiliiun V. .lojce 340
Mr.wstcr, 1?. V (12
HriuKldc, It V 421
Hrissoii V. LiifDiitiiiiie ."ilH
hristdl. .1. .1., It. V 57
Hilttaiii V. Kliinaird 44
Hr.iadluirsI, It. v 21
Mrod.ilp, It. V 54
Urouk." and others, II. v 41
Mrookcs. H. V 27ti
|{r(;()ks, H. V (IS, ;T'24
nniniiic. It. V 22(i
Hross V. lluber 21, Xi
Hroiijilitoii, 1{. V ."j31
Mrowii, H. V 55, 104, HW
Hrown V. liinden 1147
HrnwiK'll, It. V (121
liuilgc V. Parsons 513
Mull, It. V 524
Hiilliick, R. V 27(1
HiiMii, I{. V 50-1, :m\
Murdi'tt, R. V 87, 277
Uni'ncss, R. V .502
Mur^on, It. v .-,3(i
Huniaby. R. v 133
Murridjii", R. v (14
Riirrows Case 570
Mush, R. V 4
Hutterworth, R. v 277
H\itterv, R. V H7
Bvkerdike, R. v 277
T'A(iK
( 'a<lby, /•.'.'■ /iiirtr 5'|(l
("allanhan v. .'-inc. , (7r 511
Caiid.ridticsh, .1. ,1., R, v 21
Caniliriduc RtM order, R. V 32
Cainpliell, R. V 5K7
Caniplii'll V. .MeDonuld 31
("anipliii, R. v 015
Canadian rrisonern Cane Oiuiii
Re WaiHon) 71
Cai'den, II. V 271
Carr. It. v 74
CaiMin, It, V 277
Carler, It. v 21, 5!+!, (I4H
Caiiier v. lini'ian<t 44
Carlwriuhl v. (Jreen (101
Cams WiisoMM Case 3(10
('asl)oll. It. V (W, (IP
Case, It. V 403. (H5
Casey. It. v 185
Cashiohnrv, R. v 350
Cass, It. V.' 213
Cassidv. R. V .-)24
Calell V. Ireson 323
("aton. It. V 315, ..■>5
Cave V. .Mountain 44
Cent. Cr. Ct., .1..!., R. v 272
Chandler. R. v 108
• 'lian<ller v. Home 205
Chauev \ . I'avne 45, 33S
Chai.niiin. It.V 27, 210
Cliapple, R. V 04
Charles. R. v 502
Chassen. It. v Ill
Cheesenian. It. V 518
Chellenhain Coniinrs., It. v....
• 27, 32, 357
Cheney, C. v 471
Chester. .Mcrei'is & Ironinon-
iU'Vs Co. V. Ilowker 25
Child, It. V 70
Christopher, R. v 2(M, tiOl
('Itv of .Stewart v. Cunniiifihani. (i;t5
Cla'rUe V. Mradiautfh 2(Ki
Clark, it. V 218, .'.iw
('le<! V. Oshoni 57
(^lissold V. .Maehell 30
t'ohheltv. Hudson 205
Cohen v. M(U'gan lOti
( 'ole oujih, R. V 51S
Coleman. It. v (MiO
Collins, It. V 4(i7
Collyer. R. v :W
Ctjionial Hank of .\ustralftsia, v.
Willan 358
Complon. It.V 270
Conner, It. v 510, ."»0!)
Connolly, It. v 450, m>
Connor, R. v 535
("onnor v. Kent 581
Cooke, R. V 645
Cook. It. V 1»3, 204
C loper, R. V fil
Coote, R. V 215
TAIII.B OK CASES.
XXIII
Paor
(•(irl)cl V. ]\i{\nh nlKI
Coinwill V. K t«M
Corriw 'll V. SaiidtTs 'Ml
Ciiritdi'ilidii III' lhililiiiK<l<>ii &
.\l.)ir .Wl
('(Pipoiuiidii (pf St. I''ri.n (iIh <le
.S.ili's, St. Ainuiir v nHTi
lostar 1. llftlii'rinKl"". T^. '-SM, 'M'i
Coiioii. u. V :«'
(•oiiJM.n. n.\ (IIH
Ciiiiiitv >V DitiKiviiii, H. V K7
CiiiirtiMMi V. 'PdiiNf 21(1
C'owiip ■. Allii'iloii 'M
CdWiiid V. Hiuldcli'y 4r)7
CdwicH \ . Diiiiliiif JKl
('d\, |{. V 524, (H7
Cd/ui s. K. V Ill, 12
Ciiimi), li. V i:i2, W.'i
CniMsliiiw, I!. V 570
('n'P|)-,\. Diinli'ii 31(1
CrUlliiiKl, U. V :«
Cijsi., I{. v." mi
CroniM , |{. V 455
Cross, H. V (K«l
Crd-slcy, |{. V
( 'i-owdcr v. Tlnklff. .
( 'rduliui'si, H. V
('rnziiT V. Ciindy .
Crnsc, It. V
Crvcr, It. V
Ciidily, It. V
I'idlcM V. 'riliidili'. . . ,
('iiiiiiiii^liaiii. H. V . .
Ciirtrciu I'M, li. V . . . .
Ciiri'.iii, li. V
('iiii'iui V. 'ri'flciivon .
DnUKcIt V. ("attcrus.
Dale, It. V
Daltdii, h'.fjKirtf. . . .
Dalldii V. Colt ,
llalv. It. V
Dam, It. V
lla\ idsoii, It. V
Davi.'s, It V
Davis, It. V
Davis V. Itusscll
D lyniaii, II. v
Dawsdti, It. V
I)cl!t'i'ciii;i't'. It. V
Dclilcv. I!. V
Do Mill Ids. It. V
Dcnl.i^dislijiv, .I..f., li. v..
DL'iiiiiaii, I!. V . . . .
Dt'iiiiis, V. Lane
Dcriiiv V Tliwaitiis
Di'iiy,' It. V
Deny and others, R. v
Di'Hiidycis V. Hazin
D('|iai'dd, H. V
Dospatii', Kr piirfc
Df Wilt Wire Cloth Co. v
.lcr>cy Win- Cutli Co..
40, 4!l:i
ilO,
:W2,
I12!l
211)
121
.-)7(l
H7
m\
72
177
ii:i
.-)Sl
Xevv
472
i:i2
'MS
208
071
5()i»
;t4
:«
04S
Oli
37
545
507
210
7.<
:!.T:t
105
420
421
:i.57
594
7:i
071
501
I»A(!K
Dillon V. O'lJrli'ii llo
Dlim-'s Case. !«l. :i7ii
Dime's V. (Jmiid .liuict. Can
Co 25. :t2
Dixon. If. V .-.Id
Dixi.n. V. WidU IIMl
■.)l(liin, It. V lilt
ilodds. It. V Ill I
Dodson. H. V ;i;i
Ddhirlv, U. V 421
llolii riy V. .Muiivn :tl7
Diiiini'i'lv. /.'<• .-)hO
Dns-rll.' It. V 451, .-)20
Ddwcll V. MrnniuKtlidd 00
Dowry, It. V 5;{4
iliw ninK V. t'apid Kl
DiMKi'. It. V lUK
Drisidll. h'.i' jKi rfr IlO, 5S7
l)iur\. It. V :i:«t
Dndil'v, H. V 75
Dii-aii, /•;./• /iiirfc 001
Duiidas, It. V .");I4
Dinii'iiii V. 'I'liwaiti's iiiiH
Diinldp. /■.'.!■ /Kirtt' 5il.'i
DiiMii, It. V 421. 51.-., Ids
Dniiiii'll, II. V 5114
Diiniiin)^'. It. v :i24
Dkvyi'i'. It. V 177
Kau'lfldii It. V 4(«l
Kfid.'s. It. V 507
Iviinoiids V. IJowu 20H
I'^ichcnl.rr^;. Com. v 11:14
lO^I-iiilon, /;'.•■ /iiirfr IKW
I'llilcr. r. S. V 5S2
Kldcishaw, It. V 044
Kldiidir,.. H. V 2i:{
Kli, H. V ao, 22S
Kllins, 11. V 277
Kiiiot, u. V my
KlriiiKton, H. V 205
ICIsci. V. ,S nith 120
KIw.dl, a. V :ioo
hmmoiis V. C'ty of Lowi.ston. . . (Wl
lOMti-i'hman's Case 207
Ksdaili-. It. V .->0S
Ksop. It. V 570
Ksscr, It. V H7
Ks.srx, .1. .1., H. V ;40, :152
Kvans, It. V 277
Kwan. It. V 41
KxftiM' (.Mayor of) V. Heaman.. :W0
Kf iKiitv Marhcre. !12
HarktT 507
Heoching :t70
— — Cadhy 540
Dal I (in 511(1
Dfspatie 071
DrLscoll :iO, 587
DuKaii 001
Dunlop 503
E^rginton :KW
I'Vntiman 40, I;)
XXIV
TAHLE OF CASES.
PAliK
Ex /itirti Fonlkfs 341)
— Klcmiii'j: 303
Fitzpat rick ... 0)13
(Irk'Vi's :i!t
- Hopwooil 327, 32'J, 357
Jackliii ; 3(18
.loliii.soii 332
I.e^'ori' (101
. I.ewis 37
Lu^z 313
{'.iveeii mil
- Martin 22
Farke oSl)
— - Ransley 337
- Hi'id. . ■ 5ti
HiL't',.Ioiu>s lOS
Robert Tiionms 35
Simkiii (lit
Sniitli HIS
Tiin-ion 371
Wallace 31
Whalen («I2
White (i(H)
Willianison 4
Woodhouse 3S(i
Falkiiigham, R. v 427
Faiienf, R. v 20
Farrant, H. v 27
Farre's Case 401
Farrow, R. v 432
Fearman, R. v 20
FY'ist, R. V 31(i
Fonnell, R. v 400
Feiitiniaii, Kv parte 40, 43
Field V. Jones 71
Fdewood, R. v 10
Fitz|)atrii-k, A'/> pnrfi; H03
F'inklesteiii. R. v 548
Flaniiagan v. Hisliop of Wear-
iiiouth (571
Flattery. 1{. v MS
F'lemin)?, E.r parte 593
Flint. R. V 534
F'liuton, R. V 071
Fontaine. R. v 477
ForVies, R. v 4«2, .540
F'oulki'.s, Ex parte 340
F\)x, R. V 40
Francis. R. v .'i2((, 051, 062
F'ranks, R. v 311
Frii.zer v. McKeiizie 9
Freeman, R. v 01.5
Freeman v. Reed 71
French, R. v 89, :}30, .587, 588
Fretw II, R. v 5(57
Friel v. Ferguson .52
F iller-i V. Foteh 44
F'lilhvood's Case 428
Furnival, R. v 4!K)
Gaisford, R. v 28, 30
Oallaut V. Young 31
(iardner, R. v (>(i3
(Jarreis v. Alexander 547
(Jaseoi^ifie's Case 491
(iiilley. R. V .502
tiauvm V. Moore 30
(iavin, R. V 215
(ieaeh, R. v .546
(Jee, 1{. V 3:'()
(ieerini;. R. v 32()
Ceswood. lie 3(58
(iihlx n's Case 492
(ii'lxins V, I'epper 4.50
(iihson V. Lawson .581
(iiles, R. V .510, .533
(iilham. R. v 207, 214
(iillis, R. V 214
(iillyani, R. v 337
(iirdwood. R. v 87
Cloneestershire, .T. .1., R. v .'522
Coddard, R. v 210
Coodnniii, R. v 275,4.52
(Jou-h, R. V 332
(lonld V. .Tones 347
(Jonid, R. V .543
(iraliam V. McArlhur 47
(Iran 'lis R. v 58()
(irant. R. v 4.52
Gray, R. v 4.51, 319
(Jraham v. Cookson 45, 3157
(ire});orv, R. v 01, 400
(Jrey, \\. v .5(59, ()02
(irieves, £",<• parte 29
(iritlin, R. v 519, 569
Gritliths, R. v 191
(irimwade, R. v (563
(Jroom bridge, R. v 495, ()44
(it. Yarmouth, R. v 20
Gudridf^e, R. v 20
(Juthrie, R. v 4(54
Hadtield, R. v 020
Haigh V. Shedield Town Council 472
Hall, R. V 214, 327, •Xii\
Hallett V. AVilniott 44
Hallidav, R. v 5(i2
Hamilton. R. v 317, 6&5
Hamilton v. Bone 623
Hancock v. Somes 72, 294, 342
Hands, R. v m.)
Hann& I'rice, R. v 40
Hanson. R. v 35(5
Hants, .T. .1., R. v .55
Hanwav v. Boulthee 93
Hardy f{. v 210, (520
Hardy v. Ryle .52, 71
Hargreaves "v. Diddanis 3:5
Harley, R. v .547, 5(50
Harmaii, R. v 3.58
Harnier. R. v 220, 4.53
Harper, R. v 613
H iriier v. Marcks 51.3
HarriuKton v. Fry 347
Harris, R. v .' 451, 590
TABLE OF CASES.
XXV
PA(iK
IliU'Khnmii, H. V :i-l
lliirt, H. V im
llailli'V, H. V :m
ll;irv.y. H. v 477, WH)
11 irvi'V V. Faniic 477
II.ilcli'v. Taylor 52
lliitton's Case. . 22
lliiwlcy, U. V 4;W
II, ly lock V. Sparks 47
1 lav wood, H. V 624
Hazel, K. V 51H
llazlctoii U. V 5:«
llcani, K. V 21:1
llcarh, K. V 5!)7
llcllV'rinan, Pt v ;W0
llclici- V. IJi'iiliursl 20
llciniiin'. U. \' 43
Ilciniiiilifi, H. V (i(i5
llciiiiiiiiigs, H. \ 051
1 Iciiilfr.son, R. V fiHo
ll.'iikiMs, H. V 42!)
Ilcmiali, R. V 432, 435
llcn-fonl, J. J., R. V 2()
Hit. fortlsh, .1. J., R. V 52
llfi riiiKloii, R. V 341, 342, 351)
Hcrtfor.isli,.!. .]., R. v 2t)
1 l('s<'ot I 's Case o'M
llcvnian, v. R ,5()5
llU'kliii. R. V 58()
llkks, R. V .55
llijJKiiis, R. V 460
Hill V. ("oombe 210
Hill V. Thorncroft 71
Hill. I!. V 277, 545, &18
lliiululin'e's Ca.se 400
lliiilev R V 88
lloaiv V. Silverlock 608
1 lo(i;;e, R. V 24, 58;^, 505
Hodge V. R 5Ki
Hodge V. S 514
Hodgiiis, R. V 10
Hodgson, R. V 045
HoKtr V. Ward JXi
HoRg, R. V 038
llolhorii, R. V 20
Holland, R. V .503, 505
Holland V. Foster 40
Hollingherry, R. v 276
Hollis, R. V 4;^l_ 432
llolloway V. R 465
Holniaii," R. V 30
Ho nie.s. R. v 463, 645
Hood, R. V 114
Hopkins, R. V .'. 430
Hopley, R. V 518, .560
Hop^vood, Rv parti' ...327, .320, 3.57
Horn 'I'ooke, R. v .547
Horsen\an, R. v 505
HosiNtson, R. V . 25
H.iwarth, R. v 93, 019
H well, R. V o;^
Howell v. Armour SS, 121
Hoye v. Rush 114
PA(iE
34, .571
20, 210
Hudson, V. Maerae
Hughes, R. V
Hull. R. V
Hunt, R. V
Hunter's License, lie
Hunter, R. v
Huuingdon (Corporation of) v.
Moir
Huntingdon, R. v
Huntley, R. v
Hunt.sworth, R. v
Huston, V. Corheil
Hutton V. Fowke 32
Imperial (Jas Light & Coke Co.
V. Rroadbent 029
Ion, R. V .548
Isaacs, R. v 432
68
277
585
.534
584
337
5m
371
40
.Jaeklin, E.r parte
368
.lackson, R. v 40,
534,
(«rt
.laeohs, R. v
470
.lacoml) V. Dodgson
71
.lames, R. v
.:«,
193
■V<(1
.lamiesou, H. v
614
Jarvis, R. v
(U,
203
.leffreys, R. v
22
.Ieirries& Bryant, R. v
60
.Jenkins, R. v
210
.Jennison, R. v
533
Jepsoii, R. V
065
.Jessop, R. V
535
.TolniHon, E.v pnrfe
.3.52
Johnson, R. v.. 104, 327, 497,
.53.3.
t«i7
John.son v. Colam
.21.
;«4
Jones, R. v
4i)0,
5;«
.Tones v. Grace
48
.Toyce, R. v
.58?!
.Jordan, R. v
4<X)
Judge V. Bennett
.581
.Jukes, R. V
571
Justices of Berkshire, R. v..
509
Bristol, R. V. .
.-)/
Cambridge, R. \
21
Cent. Cr. Ct., R
V. .
272
Denbighsh, R. \
3.5:1
Essex R. V.
30
352
Gloucestersh., H
. V.
;}22
Hants, R. v
55
Hereford, R. v.
20
Herefordsh.. R.
V. . .
52
Hcrtfordsli., R.
V. .
26
• Lancashire, R.
V . .
41
Llanfillo, R. v..
30
MertlnrTydvill,
R.v
518
Middlesex, R. v
:«:<
Salop, R. V
:i.59
Shropshire, R. \
52
Stallbrdsh, R. v
40
SuHblk, R. V...
..
2(t
Surrey, R. v . . .
20
West Riding (York-
sLire), R. v.
:«2
XXVI
TABLE OF CASES.
P
Kaylor, R. v
Ki'ir V. IjeeiTiiiii
Kellv H. V
Ki'iillall V. Wilkinson
Kl'Mt, 1^ V
Kerr, \i. v 52,
Kcyn, H. v
Kllhiiiiistcr, R. V
Kill^^ H v (i2, 441, ri«8, 589,
Kin- V. 1'
Kiniicrsley, R. v
Kinni'r.slcy v. Orpo
Kinvoy, R. v
Ki|)pH, R. V
Kirby, R. V
Kitclien v. Shaw
Kite & Lane's Case
KiisDM, R. V
Kleui]), R. V
Knidit cSc Rodev R. v
Kniglit V. llalliwell
Kdliri, R. V
Alii'}
428
502
51)
47
;u«
(Mil
78
70
(U7
471
505
101
m)
525
•a
152
:«
402
72
l-al)ric, R. v 042
Lai'oursieie, R. v 30
hancashive, .I.J.. R. V 41
Lancaster v. (i raves lO
Lanjitord. R. v 30, 45(i
Landlord & ot liers, R. v 485
Laiinley. R. v 38
Laiij^tMcad, R, v 047
LauKwil li, V. Dawson 20
Lara, R. v 534
IjatlesH V. Holmes 71
Lawrence v. Hill KMi
Lear, R . v (Mil
Lecleiv V. Copeland 40
Lee. R. V 5";;, 5:14
Leete v. Ilarte 93, «i
Lejjere, A,'.c /itirtc 001
LejjK V. I 'ardoe 33
LejiKct. R. V 519
Leonai'd AVatson & others, Nf . . 308
Lester V. (iarland 71
Leveciiuc, R. v 671
Levitt, R. V 571
Lewis V. Kernier 514
Lewis, E.r piirtr 57
Lewis V. Lew (K)7
Lewis, R. v.." 73,490, 507
Liwht, R. V 402
Linl'nrd v. Fit/roy 220
Lindsav v. Leigh 44, ;W7
Little, R. V. ... :ia5
I-lantillo. .F.J., R. V 30
Lloyd, R. V 0(i5
Lindsay v. Rook 540
Local ()ption Act, tie 584
Locost, R. V 492
Lolly. R. V 477
London iCHi/ of), R. v 273
liopez, R. V 74, 75
Lord Vane's Case 421
Paok
Lorl V. Mutton 421
Love, R. V 208
Lovett, R. V 310
Lul'kin, Coin, v 514
Lntz, Ex lutrte 313
Lyons, R. v 590
McAthcv, R. V 047
McCadeitv, R. v 213
-MeCann, R. v 407
.McCarthy, R. v 45, XM
McC;iuley R. v 587
M<I)i)Maj.;h. R- v .s7
McDonald, l{. y :«, 58(i
McDonald v. Sfackey 53
McCilverv v. Gait. . .' .22, 53
McKecn. A'.c imrtv fMIl
McKenzie, R. y 08
:\IcLcan, R. v 594
Mcl,eo(l. Atty. Cell. (N. S.
Wales). V 70, S;!. 178
McMahon, R. v 210, 017
McNicholl. R. v 323, 589
AIcNafililen's Case 575
Mal)c<', R. V 320
Macarlv, R. v 507
^Macanlev, R. v 050
Mackerel, R. v 024
Mac^raih. R. v 000
.Maden v. Calaiiagh 200
Maiiuille v. I'oitras 013
Mainwarinji, R. V 09, 475
.Makeiis & Wife, v. Alt. Cell. N.
S. Wales 520
Mallinson, R. v 420
Mankleton, R. v 4;iO
Mauley, R. v 00
Mann v. Devers 44
Mannin^j;, R. v 451
Margate I'icr Co. v. Ilannen 10
Marois V. Holdnc 49
Mai'iiott y. Shaw 310
Marshall, R. v 540
Martin. Kr jjarte 22
Martin, R. v.. . .480, 512, 502, 580, 045
Mason, S. v 70
Mason v. Barker 10, 337
Mason y. Rihby 108
Massey v. .lohiisJii 45, 52
Mathews. R. y 310
Matthews, R. V 022, 001
Mayers. R. v 045
Mayhcw v. Lo( ke 38
Mayor of Ivxef er v. Ileanian .... 330
Mayor of Hereford's Ciuse 25
Mead v. Young .... 545
:\Ieakiii, R. v 530, 570
Mee V. Reid 208
Mellor. R. V ;10S
Mcllor V. Denham 323
.Mcrriman v. Clii|)peiihani Hun-
dred 052
TABLR OF CASES.
xxvn
Pagk
Mftc-ilf, AV (KI4
.Mcrtliy 'lydvil, .I..I., H. v niM
>Ii'nuifr, /I'c I)7(i
M.'vci>. 1{. V (i2i)
.\li('ha.-l, U. V 5C.7
MidilU'scx. .1..!., H V ;i.'):{
Middlesex, (Sheritrof), H. v.... :m
MidlMiii. U. V 4."), ;t:i7
MMdi-Diie, K. V 20,s
.Miles. 1{. V 2i)5, -XV.)
Millaid. I{ V .")4S
Milledjie, U. v iS
.Miller, l{. v 4-J.U
Miller, S. V .ni
Mills, I!. V .");(.-)
.Mi liter Hart, K. v Mti
Mitihelj. 1{. V 88, m< .
Miteliell v. Defrie.s niS
Mileliell V. Foster 72
.Miin-iil Sle iiLsliip Co., V. Mcdre-
-■(.r r,oi
.Moiidelet, l{. V 42!t
.MDiMiiciutli, I!. V 52
.Moore, I!, v 8J), 5S((. 05()
.Moruaii, H. V 207
.Mor,i;aii v. Hr.v(l!.ces 524
.Moriraii V. Ilii;;lies 10
.Moiiev, i{. V um
.Mount lord, 1{. v 507
.Morris, I{. v 205, (i:fO
.Most, a, V 542
.Mnlcaliev V. U 505
-Mullikin, S. v 582
Miillins v. Collin.s 441
.Mnrlis. |{. V 524
Miirphv V. .Maiiiiiiifj 514
.Mnrpli.v. I{. V .524, 504
.Miisseii. 1{. V 'Xi
.Myeock, H. V 420
.Myei's, (". V 4i)H
Myer.s, H. v 28
Xalal, {I.DrtUiislinpof) Ih... i'M
Navlor, U. V ' Ti\-^
-Neill V. .Me.Millan 52 '
Newhoiild V. C'ol'iiian 20, 47
Neu man v. Jon .s 441, 588
.Newton Ferrers, v 20
-Newton, I{. V 40. .5:{, 475
Nieliolls, H. V 505
.Vieholls V. DowdiiiK 20!)
Niiiin, 1!. V ;{;i5
Niiuiiely, H. V :{4, ;j7o
Olirien, I{. v ;i4
O'Donnell, H. v. . . . !{){
Ollord, U. V '.'.'.'.'.'.'.'. 575
t)'(!rady. I{. v ' 9(}
<>':i er,'H. v 42!)
^'I'VT. H. V 277, 4({4
Oniielnind v. Harker 207
Osliorn V (!oujj;ii g;j|
Oshorne V. Veiteli .' . . . 4.55
]'AUK
Owen, H. V 405
Owens, H. V 024
Oxford, 1«. V 575
I^iddle, R. V
l'aliniali-;j:ay, K. v
I'aley V. liircii
I'alnier v. Hndson, \\. \
Palmer. U. v 548,
I'arke, /■'.r/mrtr
I'arkes, H. v
Parker, v. (ireen
Parker. P. v (W, 450,
Parkin, H. v
Parkvn v. Staples
Pariildl, l{. V
I'arrart, li. v
Peat, H. V
Peekliani, P. v
Peerless, /.V 22,
I'ellew V. Inliahilants of Woii-
ford 71,
Peltier, ){. v
Peinl)letoii, P. v
Penn v. .Mexander
Perluv, H. V
Perry, U. v
1 Vt ers V. Cowie
Petrie, P. V
I^liariiiaeetitieal Soc. v. Arinson.
V. Delve...
v. Piper. .
Philips, li. V 00,
Pliiliniore, H, v
I'hipo.', U. V
Pierce, P. v
I'ierson, P. v ,
I^ifjeoti V. .Vlainvillc
P()<-oek, P. V
Povnton, P. V
Price, P. V
I'rice V. Me.sseiijier
Prince, P. v. . . .4;10, .5a2, 571, 580,
l^riee V. Saiiio
Purdv, P, V
Pyni,'R. V
flfin
200
:«
00
501
58!)
545
;j2:i
015
8t>
5:4
421
214
051
(!!)
■.m
:i52
542
025
5!M>
;«:4
428
071
278
040
(UO
04t)
(i44
57
cm
27;i
471
OW
':w
051)
457
121
(MiO
211
;15H
5ii3
Queen's Case.
Qnigley, P. v
211, 215
... 108
Rudelirte, P. V 5:42
Palelide v. Partholoinew 71
Padford, P. v 547
Patlles. P. V :W7
PauK, P- V 5:14
Piiinsav & Foote, P. v 470
Pand, i{. V 28
Randall, P. v flUO
Rankin, S. v OHO
Ransford, R. v 4(!fl
Ransley, /■'■v/Kir/r IW
Pawlinjis V. Tell 450
Ray, K. v 475
XXVIU
TABLE OF CASES.
I'
.204,
.;i6K,
Rend v. Hunter
Heed, I{. V
]{ediiiaii, H. V
Heed v. Nutt
Hees V. Diivies
Heid, n.v
Hevel, H. V
Jir Allison .
Bailey & Collier...
Barrett
■ Bibby 331,
Donnelly
Geswood
Hunter's License
Leonard, Wat.son & others.
Local Option Hct
Lord Bisliop of Natal. . . .
Me, calf
- — -Meunier
Peerless 22,
• Robert Hunter's License. . . .
Sjjain
• Taylor
Watson (Canadian Prison-
er's Case)
Smith ( M'Uliam)
Rice, li. V
Rice, .Tones, Ex parte
Richards, R. v 54, (io,
Richardson, R. v
Riley, R. v 463,
Risliton, R. V 2(5
Histeen, R. v
Roberts, R. v 270, 4(i7, 5()7,
Ri)l)-rt, Thomas, E,e parte
Robins, R. v 4:W,
Robinson, R. v
Roddy, R. v
Rodgers, R. v
Roebuck, R. v
Rojiers v. Hanard
Rogers, R. v
Rosinskv, R. v
Russell, 'R. V 450,
Russell V. R
Sainsbury, R. v 23,
Salop, ,L J., R. V
£aii(tinuin v. Breach. . ..104, 315,
Sansonie, R. V
iianta Clara V. M. & L. Co. v.
Hayes
Satchwell, R. v
Sattler, R. v
Saunders, R. v 62, 226,
Saunderson, R. v
Schmidt, R. v
wScolield, R. V
Scott's Case
Scott, R. V
Shellard, R. v
Sellwood V. Mount 45,
Serva, R. v
32(i
(Mil
(Mil)
342
33
573
38
371
371
.iWI
343
.")S!»
:«)H
."i,S5
3(i8
5H4
437
(i04
()7(i
334
586
635
317
371
327
471
108
213
587
645
32
,599
002
55
650
660
323
546
535
106
■Mi
4.55
629
sm
40
3sH)
055
212
301
452
75
4()2
600
649
466
.531
37
.505
.3:17
206
P
Sharp, n. V 76,
Sliarpe, R. v
Sharpc's Case
Shaw, H. V
Shaw V. Morley
Shetlield B. Co., R. v
Sherwood, H. v
Shore V. Wilson
Shropshire, .IJ., R. v
Shurmer, R. v
.Simkiri, K.r parte
Sinimonds, 11. v
Sinniions, R. v 23, 28,
Sini)).ion v. Wells
Simpson, R. v 327,
Siaverton v. Ashburton
Slavin, R. v
Smith, R. V
219, 32ti, 477, 489, 4JK),
Smith ( Williain), lie
Smith V. R
Smith, E J" parte
Solomons, R . v
Societv for Prevention of Cruel-
ty to Animals v. Graetz
Sol'tau V. De Held
Somerset v. Hart
Soper, R. V
Somerset v. Wade
Somerville v. Mirehouse
Southey v. Nash
Southwick, R. V 2i),
Spain, Re
Sjjarham, R. v
Sponsonby, R. v
Spotland, R. v
Spring V. Anderson
Sproule, R. v
St. Amour v. Corp. St. Francois
de Sales
St. (ieorge, R. v
Stainforth, R. v . . . .
Stapvlton, R. V
Statlbrd, R. v
Staffordshire, .T. .!., R. v
Stallion, R. v
Stanton, R. v
Starkey, R. v 22,
Stephens v. Myers
Stephens v. Stephens
Stephens v. Watson
Steward, R. v
Stimpson, R. v
Stockton, R. V
Stone, R. V 32, lOt,
Story V. Chall lUds
Stripp, R. V
Suffolk, J. J., R. V
Surrey, .1. J., R. v
Surrey, R. v 54,
Suter, R. V
S wendon's Case
Swindall, R. v
A(iK
510
89
89
4m
472
3.57
.534
478
52
198
69
SH
215
33
658
20
63
2I(i
.597
327
(!71
108
660
513
629
441
;W2
571
47
204
.590
ti35
3:i3
547
41
40
27
585
4.55
20
317
.587
40
4.50
295
;M3
^5(i
KMi
582
650
34
20
327
m.)
203
20
2!'
3lti
.531
428
,569
TAHI.E OK CASKS.
XXIX
Svlvi'sti-
Syiiioiis,
•, V. S.
li. v..
Paiik
.. 471
.. 3U
'I'iiccv. H. V
I'afl," I{. V
'I'arrv v. Newman
■I'iivll.r. Hi
I'a'vl"!'. li- v.. 8fi!t, 453, 404, 4fi7,
'I'liylor, V. Oriiin
Ti.ylDi >'. Siiietton
Tt-anue, H. V
I'ha.Mi-, I{. V
riu'Xtmi, R. V
■I'liomas, H. V 213, (K«»,
'^il()IUll^oll, R. V 213,
■riimliorn, R. v «5H,
TidltT. R. V
'I'illadani v. Rristol Inhabitiints
Tiiiiiiuiis, R. V
'riiiisoii, K.r parte.
Tisdalf, R. V
TolU'v, H. V
Took!', R. V
'I'otiuss, R. V
'I'owci.s, R. V
Townlev. W. v
'I'ract'y, R. v
Train, 1{. v
Trogaitlien, R. v
'I'uckwell, R. V
TuUcv V. C'orric
lunuT, R. V 49H, 519,
'I'uriU'i' V. Rostniaster-Geii
'rni'sU'toii, R. V
Tu icklcr, R. v
'I'wosf, R. V
Tyrcl, R. V
025
540
44
317
003
307
«13
545
505
\M\
0(W
('><)2
(«il
024
(«»
am
371
5:hi
0!»
27
20
502
575
220
029
421
00
434
509
32
430
210
454
497
I'sill V. Hrea.sley 008
(.'hirke 00«
Iliilfis 008
N'aiR' (Lord) Case of 421
Vau-'han, R. v 57, 204
N'aiix's Case ,59
Villcnskv. R. V 049
\'iiicciil, R. V 480, 524
Vokc, H. V 451
Wailo, R. V
Wagstair, R. V
Wakolii'ld V. West Riding and
(irinishy liy
Wallace, hj.v nurte
Wallac,., R. V
WallinKford, R. v
Walls, R. V
Walker v. Brewster
Walker, R. v
Walklev, R. V
Walne.'R. v
Walsh, R. V
Walton, R. V
059
(«i5
32
31
3:^0
55
(toO
582
295
214
534
059
050
FA(iK
Ward, R. V 03O
AN'are v. Staiistuad 22
Wari'iufiliani. H. V 213
Warw 'id<sliairs Case 213
Warwickshire Slicrill', R. v 32
Wasoi., R. V 324
Wasoii V. Walter 008
Watkins v. Major. ;W, 35
Watson, lif 371
Watson, R. V 522
Watson (Leminnl) and others,
Re 368
WattH, R. V 203
Weale, R. v 22
Wehster, R. v 41
Weeks v. Honhain 693
Weir V. Snivth 9
Wellard. R." v 573
Welcii, R. V 023
Welnian, R. v 5;«
Weltje, R. V 39
W.dsh, R. V 511, 599
West, R. V 5:«, 024
West Ridin^MVorA-.s-) .1,1., R. v.. 'Xfl
West V. Small wood 44
Wes.lake. R. v 58ft
Westlev, R. V 205
West wljod, R. V 489
Whalen, Ex parte (02
Whatelv, R. V 43
Wheeler, R. v 494
Whitchurch, R. v 323
Wliite, A'.i- jmrte 000
White, K. V 200, 427
AVhite V. Beckham 505
White v.tJardiier 532
Wliitehead, R. v 359
Whitenian. R. v 025
Whittier V. Dihlde 4S
Whictingham, R. V 022
Wliittle V. Frankland 319
Wigg, R, V 519
Wild, R. V 214
Wild's Case 400
Wilev, R. V (U7
Wilkins, R. V 435
Wilkinson, R. v 659
Wilks, R. V 540
Williams, R. v , 40
276, 327, 330, 471, 498, 589
V'illiams v, Adams ;ifl
William Smitli, Re 327
Williamson, Ex jxirte 4
Wilson's Case 36
Wilson, R. V 220, 432
Wilson V. Stewart 441
Wiltshire, R. v 475
Windmill Loc. Bd. of Health v.
Vint 503
Wittman, R. V 500
Wood, Com. V 514
Woodhead. R. v 524
Woodhouse, Ex parte 58ft
X X X
TABLE OP CASES.
PAdK
VVoodlDck V. Dickie 001
Workington Overweers, R v 'M
Wiiiv V. Toke 31fi
Wri^iiit, H. V 477, 540, («)H
Wrottcsli-y, R, V : :«
Wynne, R. v (Hil
Yiirl pole, R. V 20
Pack
Yea, R. V 40
Yeiidon, H. v 277, 404
YounK V. Siiylor ;W
YouiiKiV I'itts, R. V 42
YounK V. Higf^ins .52
YounK, R. V. ;«1, ;«4, 490
Zoucli V. Empsey 72
INTRODUCTION.
ORIGIN OF THE OKFICK OF JUSTICE OF THE l*EA('E.
I<iai*l.i KiikIImIi €'4»iiriN. — The icrritonal divisidns liciii'inir
ii|ii)ii tlic sulijcct nt till- inliiiinisl nilinii ol' justice in lMiii;liiiiii. at iho
time of till- Xui'iiinii ( 'oiKiiU'st, were tin' K l.Vd hum, t lie iin nty or
SIIIKK. ill!' IIINHUKI) III' WAPKNTAKK. illlil tilt' I'lrillNCi. I'l >\V NS|| If or
I'AKisii. llic iiTciitci' towiisliiits l)i'inif callt'd 6a/7ts. Tlic Iluiidivds
or Wa|H'iital<fs were larn'c dist ricts or divisions ot' t lie ( "oiinl y ; and
tlic tow iisln|is. titiiinys. iiarislii's, and burh^, or Itoronu'lis. wi-i'i'
sniidivisions of tlic llundivd.
Vav cacli county or sliirc tlicrc was an e<ddon)ian. — (whose ot1ici>
l)ceanic. alioiit tin' time ot tlie Coininest. nicri^i'd in the titnlar
dii;-nity of an earl ). — and there was also a viscount or sheriff tor ea(di
county. Tlu're were, for cacli township or lithinji'. a reeve and foni"
other |irinci|ial inhahitants, and their was, vi'ry likely, a chief officer
for every liun<lrcd.
This orii;aiiization fornu'd the ])oliee .system of the eonntry. and,
nominally, at U'ast, continues to the |treseii1 day. Kor Kiiy'land
still has its shires witii their sheriffs, its liniidreds with — until IStJl),
— tlii'ir hiii'h hailitfs. (diief constaMes. or other siudi otlicers. and its
parislu's. townships, or tithini^s. with. — until IS72. — their pari.sli
constahU's : althouydi the |)oiice functions of tliese \arious ollicerw
wvvv. liefore tl'.c dates just mentioned, practically superseded hy
mori' modern police arraiiyemcuts.
From a perioil nundi iMiiier than tlii' Com^iiest. tiie Kinu; of
Kiiiijland. had come to he rcifarded as tlu' " source of Justice, the
lord and patron of his people, and the owner of the jiuidic lands.''
Occasionally, lu' I'xercisod his lii<;h ]treroa:ative of administering
pistiee either ptTsonally oi- hy his offieers in inunodiatc attendance
n INTIlKDICTroN.
upon him. I>iit I In- rcifiilnr aiid stattMl mctliiMl of doiiii^ so was
lliroii;;li tlic local coiii'ts, licid lictui-c Ills ollici-rs in tlii' Coimlii's
und tiu- llundi'cds. i>u(di siu li coui'l hciiiii; in llic Mature of a |iul)lic
mei'tin/ij iittoiidiMl by HpiH-iHod -suitors" or nu'inlu-rs. 'VUv suitors at
the ![undn*d (-'ourt wrrc the parish priest, tlus reeve, and the lour
prin('i|)al men of eaeli to\vnsiii|i in tiie Hundred ; and. at tlu'
County <' )urt. the suitors were the same jiersons from every town
ship. |)arish oi" tithini^ in the whole county, toifether with all the
county's liind owners und puhlic olHcers.
These County and Ilundreil Courts had <'ivil and ci'iminal
jurisdiction. On the erimiiuil side the Court was called t lie ^owrn
or circuit of the Sheritf, wiio. wIkmi the ealdorman's oHice was
merged in the eari, became, in connection with tlu- administration
of justice, the chief officer of the county; and then' appeals, in
reality, to have been no distinction, for the ))urposes at least of
(Ti'mmai jurisdiction, bet ween thi' Hundred Court and the County
(Jourt ; the Shevitf's tourn or circuit Iteing simply the County
Court held in and for a particular Hundred.
Tlie Court seems to have consisted of tlu- suitors collectively-;
but a representative body of twelve men (possibly the predecessors
of the Grand Jury of later time.s), appears to have been instituted
as a Judicial Comniitteo of the Court.
The procedure eonsistod oi' accusotion and trial; the accusation
being made either by the above meiitioned Committee, by the
reeve and the four ])riiu'ii)al men of a townshij). or by a private
accuser ; and, as the ])roceedings Avere conducted orally, the mem-
orials of the Court wore entrusted to the recollections of the Witan.
the Judges by whom tin; decrees were pronounced ; so that if
evidence was required of judicial transactions, the proof was made
by the Hundred or the Shire in its corjiorate capacity, the suitors
bearing witness to the jiulgments jtronounced b}' them or their
predecessors. (1)
I>o('liii<' ot'the County or Hundred <'oiirtN. — It
will thus be seen that, before the Conquest, the ordinary Court in
(1) 1 Steph. Hist. Cr. L., 65-68.
INTItnlHCTinN.
Ill
criiiiiiial tiiscs was tin- ("tuiiity ur lluiidrixl C'oiirl, whii-li, liowovor,
wiis siil.icct to till' 1,'t'tu'ral sii|u'rvisi(iii iiiiil <'()Mcurn'iit jurisdictioii
nfilic Kiiin's ("(iiirt : ami tlu' saiiu' stall' dT iliiiii;-s was ('(iiiliiiiicil
liv tlic ('(iiKiuiTiir and liis sons, with this (lilli-fi'iicc. liiat'thf
supfrvisinii ot'tlic Ivins^'H Court and thi- I'Xfiviso <it' its coiu'iiriviit
jm'isdicliDM wiTf ifrailually incrcasi'd and tlic jurisdiction and
iinpoi'tanci' of tin- local coufts were i,n'adiwilly narrowed and diin-
iiiisiicd : aid as llic Kiii;j;"s Court di'velo|K'd into the Court ot
Kinu;s lU-iuh and tho Courts of tiic Kini^'s .Iiisticcs of Assize
Ovfi- and Terminer and Caol I)elivoiiv. and as the exercise of tlie
criminal jurisdiction of these Courts and of the (Quarter Sessions
oft lie local Justices of tiu' I'eacc, estahlished under Hdmird III,
Itecame more and nutre j^encral. tiie ri'sult was tinit. in the rcii^n
of Kdward IV, the County Court, althoui^h it still retained a
separate existeiico, wiiH virtually ahoiishod.
4'<»iiN('i'% Htoi'M ol tilt' ■■«MM*«'. — The^mce in its hroaiU-st
scMsc coni|>risc<l the whole of the criminal law. ALost offences
were said to he ai^ainst the peaci'. and all tiio.so magistrates who
hail authority to take coifnisance of criminal otfences wore con-
sidered as i;;iiardians aud conservators of the ])eace, ex officio.
Sue h. for instance wero tlie Kini!;s .Justices, the inferior Judi^es,
and the Sheriffs, Ileeves, Constahles, Tithing men, lleadboi-oughs,
and .so on. The other keepi'rs and conservators of the peace, —
custodes or comervatores pads, — were tiio.se wlio, — without having
any othei' ottice, — were simply and merely conservators of the
peace, either hy prescription, or hj'the tenure of their lands, or l)y
liaving lieeii elected hy the freeholders asseinhled in full County
Court, in pursuance of the writ directed for that purpo.se to the
.Sheriff (l)-
IiiNtitiitioii ofJuNticfM ot the Peact'.— The statute
instituting Justices of the peace, — 1 FaUv. Ill, st. 2, c. Iti, passed in
IH27. — ordained tluit. for the hetter maintaining and keeping of
the i)eace in every county, goo<l aud lawful men should he assigned
hy commission of the king. The election of conservators of the
])eacewas tlius taken from the people, ami their appointment given
(1) 2 Steph Comm., ()42-644; 2 Reeves i:ng.L. (Finl.) 228, 329.
IV INTKiilil ( TKi.V,
to the Kini,'. Hut, altlioiiLch l»y tlic 4 Kdw. Ill, <■. 2. (wliicli coii-
tiiim-d also llu' rc^iilatinns tor a|>|H)iiiiiii!^ tin- .luKticcs of Assi/c
and (iaol hdivciT ),^ — ^lln' powers oi' the new coiiscrvalors cij' (lie
licaci' wcrt' incrcast'd, and althoinjli \<\ ilic is Kdw. Ill, st. 2. c. '2.
it waw I'liat'tcd tiiat, wlicii lu'cos.xarx . t hey — jointly with nthers wite
and Uarned in the laiv. — slioidd lu- nssii^ued. hy tin- Kiii;,;s ('oimiiis
>ioii, to hear and tleJermine in\\\\i\H\ otlcuci's, — tliey were not called
./(Mfj'ccs of the peace milil. hy latei' lei^islatioii, they, themselves.
independent I ij of others learned in the law, wei-e empowered to hold
courts, four times in l lie year, for I he t rial of criminal otVeiiders ( 1 ).
Oculioii <>r ilioir Niiiiiiiiary J.ji*iM«li«*(li4»ii. — \\y
successive statutes the powers e.xereisulile liy .luslices in \Miarter
Sessions foi- the ti'ial of otfeinlers were miwdi e.xlemled ; Imt they
had MO ^I'lieral powers of summaiw e(mviction. and, except in cases
i)ftoreil)le entry (2). or of riot (;{). or on the coutession in certain
cases, ol the |)arty (duiriji'il (4). they could oidy proceed aecordinii;
to tiie common law modi' of trial liyjury. until the passiui<; ot t he
'1 Ih'U. T, c. .5, liy which individual .lustices weri- authorised, at
their discretion, to hear and <letei'mine ujjon iid'ormalion (tor the
king) all otfeuccs, short of felony, against any statute then in
Iteing. Under this statute Justices of the Peace were i-nahled to.
summarily, and without any preseiitnu'ut or trial ly Jury, deal
with and punish all oti'ences short of felony. Hut it was repealed
hy the I lien, S, e, (! ; and the earliest instance which wi- find re-
corded of a Hummary conviction hy a .lustiee of the Peace, upon a
pi'ual statute, is one rendei'ed on the statute IJIJ JTeii, S. c. (i. against
the practice of carrying dags or short guns. (5).
In the reign of .lames I. great additions were made to the |)owers
of Justices of the Peace : and the pjissing in that and the two fol-
lowing veigns of numerous statutes res[)ecting ale hou.ses. |(rofane
swearing, drunkenness, embczzloment, the excise, the regulation ot
(1) 34 Edw. Ill, c. 1; 3ti Kdw. Ill, st. 1, c. 12; 2 Steph. Com., (;44 j 2
Keeve's Ent?. L. (Fin).), 330, 332.
(2) 12 Ric. 1. c. 2.
(3) 13 Hen. 4, c. 7.
(4) 2Hen. 5, St. l,c. 4.
(5) Paley Bum. Conv. (5 Ed. 10.
INTKiinrcTKlN,
Ira.l.', iiihl III.' (lam.. Act ( I'l.' aii.l li.i Car. 2. c. 2.')). .)ccasi.,iu'.l a
niDiv h-c.|iiciit ivcouiNi. to llu' <'.\i'rfis(. oftlu'ir.siiiiiiimiy junsdii'-
tioii. ( I ).
At lirst. the jii(|o;Mifiils <•(• 111,' .liistic(.s <,(tl„. ['..aci" wciv final.
Tlicrc was no apjical tV<im ii .lii.sticc s dccisioii in simnnurv Mialt.'i>
until the 22 Cm: 2, c. I.— called l Iw ('..nvcnticic Act.— jraVc arit,'!.!
«)fa|.lK-id t(. the vi-rdict ofajiii-y iit llu- n.'xt (^^ul•lc«l• So.sHion.s :
uiul tlii.s was sliortly iiftorwanls ulttToil. liy (iu" '2.2 and 2:i Car. 2
f. 2r>. lo an a|i|u'al to tiic .Insticcs in Se.ssions. witliont a Jiirv. (2)
(.-').
(1) Kerr's Mag. Acts, 2, :5; Carter, 22.
(2) f'lirter, l'.'!.
FIRST DIVISION.
Appointment of Justices of the Peace and Police Ma(jistrates : aM
their Powers. Duties and Responsibilities.
ClIAPTKE I.
JrSTICES OK TIIK I'KACE.
How Coiistitlitt'd. — ,lusti^•o^s of the peare avo gonorally
(lividc'd into two ilasses. nanu'ly, those who are such by virtue of
and while hohiiuif some otlier otHee, and those who arc eonstituted
such hy conunission.
•IllNtic't'N Kx-01li«*io. — Of those who are justiees of the
]H'a(e by virtue of and wliile lioldini; some other ottiee are the
Judu^es of all the Su]>erior Courts of hiw, inehuliiig the Supreme
and Kxeliequer Courts of Cana«hi, the Supreme Court of Judicature
in Ontario, and the Court ot (Queen's Bench of the province of
(^(U'hec ; (1) and every ])olice or sti[)endiary magistrate, recorder,
nniyor, alderman, counsellor and reeve is, during his tenure of
ottice as such, a Justice of the peace ex officio. (2)
Kvery comndssioner of police ap])ointed hy commission of the
(Jovernor (ieiu'i'al in council, for anyone or more of the provinces,
territories, or districts of Canada, or for any one or uiore of the
districts or counties in any province, territory, or district or for
any temporary Jmlicial district in Ontario, is given, for the carry-
ing out of the criminal laws and other laws of Canada the right of
(1) R. S. O., c. 71, sec. 1 ; R. S. il, Art. 2447.
(L') R. S. Q., Arts. 2485, 24S9, 2492 ; R. S. O., c 72. sec. 18 ; C. S. B. C, (1888),
c. 78, sec. 3 ; R. S. Man., (1S91), c. 93, sec W ; 52 Vic, (Que.), c. 79, s. s. 13, Ki.
A I'HACTK'AI, oriltK Ti> JlAdlSTRATES.
oxi'i-ci.-ini;-. witliiii tlu' limits of liis jiii'isdiftioii. all thf powci's.
authority, rifjlits aiwl ])nvik'i!;fs liy law a|)]K'rtniiiinii; to jiistiri's of
thi> peace ii;i'iierally. (1)
Kvi'i'v commiNsioiu'r ami cvc'ry assistant coniinissioiu')' of tlio
Xortli West Mounted I'olic-e Koree is vested with all the ])o\vers of
two Justices ot the peace, under the Mounted Police Act, lSit4. or
any other .\ct in force in tlie North West Territories; and evi-ry
supt'rintcndcnl of the force is ex officio a justice of the jieace. (2).
For all tiie ]mrposcs of thi' Indian Act. or of any other Act re-
sjjectinn- Indians, and with rey-ard to any offence ay'ainst tlie |»ro-
visions of such Acts, or atfainst the provisions of Article !)S of the
Criminal Code {Inciting Indians to riotous acts), or of Article l!ll)
(Prostitution of Indian women), and with referi'nci' to any otfeiu-e !)y
an Indian a<;'ainst any of the provisions of I'art Xlll of the
Criminal Code (Offences against morality), cwvy Indian a,ii:(!nt is e.i-
offlcio a Justice of the I'eace. and is vested with the power and
authoritv of two .Instices of tlu' I'eace. anywlu're witinii the terri-
torial limits of his jurisdiction, as di'tined liy his appointnii'Ut or
otlu'rwisi." detint'd hy the (iovei-nor in Council, whether the Indian
oi" Indians chari^ed with or in any way concerned in or att'e(;te(l
i)y the otience. matter or thiny- to he tried, invi'stiu'ated or dealt
with, art' or ai'c not within his ordinary jurisdiction, (duirye or
supervision as an Indian a.nH'iit : (3) and in the N'oi'th West terri-
tories, and in the jn'oviiu'es of .Manitoha and Biitish Columhia.
every Indian aifent is, tor all siudi ))ur])0ses. and with ivspect to
any smdi offence as aforesaiil. a justice of tlii^ |)eace p..x-ojficio. and
has the power and authority of two justices ot the |ieace any-
wlu'rt' in the said territories or jirovmces within wliich his
aijency is situated, wliether or not the territorial limits of his juris-
diction as a justice, as dctined in his a|i)iointnient or otlu'i'wise de-
tiiied. e.xtend to the phu'c where he may havi" occasion to act as
su(di justice or to exercise such ))ower oi' authority, and whether
the Indians charged with ov \\\ any way concerned in ov att'ected
(1) R. S. C, c. 184, 8.8. 1, ;!.
(2) .'>7 and .')8 Vict., c. 27, sec. 0.
(3) 57 and .")8 Vict., c. 32, sec. 8.
.irSTICKS OF TI!K PKACK. KX (iKKirro. '^
liy tlu' offi'iicc. inattor or tliiiii;" to lie triod. iiivostif^atod or other-
wise (U'iilt with, an' or arc not within liis ordinary jurisdiction,
cliariiH' or su])rrvision as Indian aj^tMit. (1)
The Governor General in coiineil may, l>y tlie retfuhitions to he
niaiU'. from time to time, for the enforcement of the ]»rovisions of
tile (Quarantine Act, constitute any (luarantine otticer to he, hy
virtue of ins ottice or employment, a Justice of the peace for and in
connection with the ((uarantiiu' station to which he is assigned,
whether su( h otticer lie otherwise (jualiticd oi' not. (li)
Kvery fishery officer appointed undei- the Fishery Act is. for all
the pui'posesof the .\ct and the ri'n'ulations nuule under it. a justice
of tiie peace ex officio within tlie district for whitdi he is ap|)ointed
to act as such fishery officer. (3)
ruder the •■ Dominion Elections Act." every returning officer and
every deputv returning officer is. from the time of his falling the
oath ofotfici'. on the occasion of an election, until the day after tlie
closing of the election, a conservator of the peace, with all the
jiowevs a](|iertaiiiing to a justice of the peace. (4)
Some of the provincial statutes confer similar powers upon
returning officers and tlu'ir di'puties during elections for the local
legislatures. (5) And on the occasion of any poll for taking the votes
of the electors of a county or city for and against the adoption of
ii petition for hringing the • Canada Ttmperance, Act " into force,
every returning officer and every deputy returning officer is. from
the timeof taUiiig his onth of office until the day after the summing
u|iof the vott's. a conservator of the peace investeil with all powers
appertaining to a justice of the peace. (6)
Whenever a vessel of Her Majesty's Xavy enters the (lulfofSt.
Lawrence. cver\- otficer attached or helongino- to such vessel, and
(1 ) 57 and 5S Vic, c. 32, sec. 8.
(2) R. S. C, 0. 08, sec. 5.
(3) K. S. ('., c. !)fi, sec. 2.
(4) R. S. C, c. 8, sec. 73.
(5) See R. S. Q., Art. 3!).-,, and ;V, Vict., (Ont.), c. 3, siec. 137.
(0) R. S. C, c. 106, sec. do.
4 I'HACTICAI. (ilJlDK TO MAOISTR.VTKS.
lK)l(lini;; llio ('oiniiiissioii of vicc-adiiiiral. |iost-cii])tiiiii. caiitiiiii, or
conimaiKU'r in Ilcr .Majesty's iiavv. and any lit'uti-nant in siicli
navy, liavinu; tlio comnnind of any sue li vessol is, while siioh vessel
remains witiiin the limits of the iirovince of (i\U'\)Vi\ ex officio a
justice of the peace for the districts of (Jaspi'. SaLfuenay and
Rimouski, without takina; any oath of ottice and without being
subject to the general requirements of the law as to residence and
property qualitication. (I)
•lllNti<'«'N hy C'oiiiitiiNMioii. — Of this class are those com-
monly known as Justices assiifneil to keep the ])eace in and for
some ])artieular county, district, or place.
Their u]>|>oiiitiiii'iit in <'uiiudu. — Although the prc-
ro<i;ative riijht to a])])oint Justices of the i)eace within the Dominion
of Canada and in eacdi of the |)rovinces is e.xerciseable by the
("nnvn, directly, the power to up})oint them is also vested in the
Dominion Government by virtue of the British North America
Act ; but as the administration of Justice is by that Act delegated
to the provinces, the appointments are, for that reason, and by
virtue, moreover, of various Acts of the Dominion and Provincial
legislatures, invariably made in each province by the Jjieuteiumt
(tovernor in council, who names, for each county, disti'ict or plaee^
any number that he may deem necessary. (2)
In Ontario, Justices of the peace may be ■ J'pointed in and for
any county, city and town, and in aiul for any provisioiuil Judicial,
temporary Judicial, or territorial district or provisional county, or
for any jtortion of the territory of the jtrovinee not attached to
any county for ordinary' municipal or Judicial purposes. (3)
The Lieutenant-Governor of Quebec a])))oints as Justices of the
jteace in the several districts of the ])rovinee the most eflrtcient
jiersons dwelling in such districts res])ectively : and all qualitied
(1) R. S. Q. Art. 2567.
(2) R. S. Q., Art. 2545 ; R. S. O., c. 71. sec. 3 ; R. S. C, c. 50, sec. 64 ; R. S. C,
c. 53, sec. 23; R. v. Bush, 8 C. L, T. 131 ; R. v. Bennett, 1 Ont. R., 446 ; Ji^x
parte Williamson, 24 Supr. Ct., (N. B.) 64.
(3) R. S. O,, c. 71, sec. 3.
JUSTICES OF THE PEACE. BY COMMISSION. 5
])or8()iis so :i])pointC(l liiivf all llie ])<)\vi'rs. authoritit's. ri<;-lits and
privileges ami are sul>jeet to all the duties, oldiifations and resjion-
sihilities conferred or impo.sed upon Justices ot'tlie peace. (1)
In till' ])rc)vince of Quebec the Lieutenant-tiovernoi- in ( 'ouiicil
may also from time to time a])i)oint justices of the ]ieace with
Jurisdiction extending outside the territorial limits assigned to any
district or county in the 2)rovince and over places Avhich. though
comprised Avithin the limits of a district, are in remote jiarts of the
])rovince ; and. in regard to any such justice, it is not necessary
for him to he resident within or to possess any ])roperty qualitica-
tion whatever in that pai't of the province for which he may bi-
appointed or over which his jurisdiction may extend. (2) The Licu-
tenant-tiovernor in Council may. moreover, by special commission.
a])point one or more Justices of the peace with Jurisdiction extend-
ing over the whole of the jirovince of Quebec, oroversuch districts
as may l)e na..ied in such special commission ; every justice so
appointed being invested with all the rights and ])owers of one or
more Justices of the peace ; and it being unnecessary for him to
ivside or possess real estate in the province. (3)
In each of the Provinces of Xova Scotia and New Brunswick
the Lieutenant-Governor ma}' appoint, in and for the sevei-al and
respective counties of the Province, such justices of the peace as
may be deemed expedient and ])roper. (4)
The Lieutenant-Ciovernor of the Xorth AVest Territoi-ies of
Canada may ajjpoint justices of the' jieace, with jurisdiction as
such throughout the Territories. (5) And the CTOvernor-General of
Caiuida in Council, or such 2)erson as he de])utes for the purpose,
may a])])oint game guardians in the Xorth West Territories to
can-y out the ])rovisions of the North West Game Preservation Act,
18!t4 ; and. after taking the oath of office prescribed by the Act.
every gaine guardian so ajipointed has. for the pur])Oses of the Act,
within the district for which he is a])]iointed game guardian, all
(1) K. S. Q., Arts. 2545, 2562.
(2) lb., Arts. 25ti5, 256(5.
(3) K. S. Q., Arts. 2572, 2573, 2574.
(4) R. S. N. S. (1884), c. 101, sec. 1 ; C. S. N. B. (1877), c. 2i), sec. 1.
(5) R. 8. C, c. 50, sec. 64 ; 57 & 58 Vic. c. 17, sec. 7.
G PRACTICAL (iriDK TO MAdlSTltATKS.
tlu' jiDWors (ila .lustier ol' tlu' IV'acc in and lor tiii' North West
Torritorics. (1)
In .Manitol)a. jnstioi's of tiic |n'ac(' may lio ajipointt'd liy tiu'
Lit'Uti'uant-liovt'i-nor in or tor any city, town or other muiiici-
l>aHty in the Provinee, or for the whole Province ; and tliey must
he ciiost'n from the most competent persons dvvellini>; in the places
for whieii tiiey are ajijiointed. (2) And the Lieuteiiant-tiovernor of
Manitoi)a — wiio is ex-officio Lieutenant-Governor also of Keevvatin.
u se])arate district of the North West Territories — is authorized to
ap]ioint justices of the |)eace for the Keewatin district. ("5)
In Uritish Columhia. Justices of the ])eace may i)e appointi'il in
and for any eounty or electoral district in the Provinee. or in or
for any less extensive jurisdiction. (4)
The Commission aii])ointin^ Justices of the jieaee may be general
or special. It is a ii-eneral commission of the ])eace when it names
or replact's all the Justices of a certain district, coutity or |)lace :
and it is special when it names oni' or moi'c Justices to 1)C added to
tlu' ii'enrra! commission.
The commission, whether i^enoral or special, bears the siifuature
of the Jiieute\iant-( Jovernor and the i^'reat .seal of the Froviiu'c
wlu're it is issued. It is addri'ssed to the persons therein uanu'd,
and it is sent to and remains deposited with the clerk of the ])eace.
I*r«l»«'rty <|llHlili(*»tioil. — With rei>:ard to a Justice of
the jieace who is sueh exqfficio. no ))i'o])erty timilitication is required
of him. and some of the statutes exi)ressly declare that the ])rovi-
sions of the law as to jjroperty qualitication shall not ap])ly to
the .Members of Her .Majesty's l^LKCcutive Council, nor to the .ludu'cs
of the Su])reine Court of Judicature, or of the courts of (Queen's
Bench or of the County courts, nor ti) any i)olice maii'ist rate, nor
to Her .Majesty's Attorney-Ceneral. nor to any of Her Ma-
(1) 57 and 5S Viet., c. 31, sec. 22.
(2) li. S. Man. (1S!)1), c. 93, ss. 4, 6.
(3) E. S. C, V. 53, 88. 3, 4, 23.
(4) 55 Vict. (B. C), c. 29, sec. 6.
QIAI,ll''l(ATIn.V.
jcsty's ( 'oiinsi'l Ifjinicil in llic liiw. who. \>y reason of tlicir otticn,
:trc justicrs of llu- |ii'ii('i'. iioi' )o iiiiy mayor, iildcniuin. coiiiicillof.
rt'i'vr or (lf|iuty reeve of any ninnici|iality wlio is ex o{fi(v'o a
justice of tlie Jieaee. (\) Hut. a justice ot (lie peace appointefl liy
contniission. must as a rule, have a property qualitication.
In tlie jirovinet's ot Ontario ami (^uel)ec it is s|ieeiall\- enacted
that in ail cases not otherwise ju'ovided liy law. no person shall he
a Justice of the |ieace, or act as siudi within any district or place,
(except. — as to the province of (^uehec. — the Magdalen Islands. and
the counties of Chicoutimi and Say-uenay). uide.ss he has in his
actual possession, for his own proper use. an interest in real estate,
lyiii^ and heinij; witiiin tlu' |)rovince. of or ahove the vahu-of 81200,
over and ahove all encumhrani'i's. rents and charii'es pavahle out of
or aHectiuij: the sanu'. (2) In Manitoha. a Justice of the peace
must, in all cases not olhei'wise i)i'ovi<led. he the owner, in fee
siiujile. for his own proper use, of lands lyini;- and heiny- in that
province, ot or ahove the net value of goOO. ovei- and ahove wluit
will satisfy and diseharn'e all eiu'\imlirances affecting- the same, and
over and ahove all rents and chai-yes payaiile out of or attectinj;-
I he same : (:{) and in the .North west Territoi-ies. a Justice of the
peace must he the owner in fee simple of lands there of tlu- not
value of 8:30(1. and have hcen three years resid in <-• in the Territo-
ries. (4
flatll or 4tiiulili4'alioii.— A Justice of the peace, mimed
l.y y,'eneral or s|)i'cial commission, must, hetore actin-.' as su(di. take
and suhscrihc an oath that he has the property (jualitication
i'e(|uin'd hy the law of his pi-ovince.
In the province of (^uchec the oath of (jiialificati..n is taken
l>efore the clerk of the peace, or hetore .some Justice (.f the peace
I'M- (he disiricl for which the new Justice intends to act. or hefore a
commissioner cliaro-ed l.y dedlmus potesiaiem to administer oaths
:ind receive declarations, and it must he in the tWliowiny- foi'in ;—
24,S8^ '^4ni' -vV»' '^' '''''■ " ' ^' ^' ^^^''' ^^'''^^^' "■ '*^' '^''" -' ' ^- ^- '^•' ^'*'-
VI) K. S. O., c. 71, sec. 9 ; R. 8. Q , Art- 2547.
(a) K. 8. Man. (1801), c. 93, sec. 9.
(4) 57 & 5S Vic. c. 17, sec. 7.
8 l'UA( TICAI, (II [|)K Til JIAdlSTKATKS.
■1, A. H.. ill) swciir lliiit I truly and bond fide \mi\<'. \i> and i\iy
mv own |ir<>|ifr use iuul lifiu'tit. siicli an estate {sfn'citijing the some
by its local description, rents, or nni/thiiKi else), as dotli ipialitV me to
act as a Justice of tlie |teace for tlu' district of.
accordiui;- to llu' true intent and nu'unini; of section second of
diajiter fourtii of title sixtli of the .UeviHod Statutes of t lie Province
of (^ueiiec. ri'spectiiiiC tiie (|ualitication of jiistices of tlie peace;
(lint lire of such estate, whether land, and if land, designatimj it), and
that the same is lyiny; and heiuif. (or issuiui^out of lands, tenoments
and hereditaments, situate) within the township, {jarish or seigniory)
,,(• (or in the si'vei-al townsliips ( parishes
or seigniories) of (or as the case may be).
So help me (iod." (1)
In tlie |)rovincc of Ontario tin' oath of (lUalitication must he
taken within three months from the date of the commission under
which the justice is appointed, or the commission so far as it relates
to him, is deemeil to lie ahsolutely revoked and cancelled. (2) it is
taken hefore some other .lustice of the I'eacc or liefoiv any jierson
a))l)ointed hy the Lieuteiuint-(iovt'rnor to a<lminister oaths and
declarations, or hefore the clerk of the peace for tlu' county or
district for which the new justice intend.- to act. and it must he in
the following; form :
" I. A.H., do swear that I truly and bond fide have to and for my
own proju'r use and henetit such an estate as iiualities me to act as
a justice of tlu' ])eace for the county, (or as the case may he), of
_ accordiuij; to the. true intent and mean-
ing of the Act reH])ectini>,- the qualification and appointment of
justices of the jieace. to wit. {nature of such estate, whether land, and
if land, designating), and that the same is lying and heing, (or, is
issuing out of lands, tcnoments and hereditaments situate), within
the townshi]) (or. in the several townsliips. or. as the case may he)
of So help me (Jod."' (H)
In the ])rovince of Manitoha the oath of qualitication is taken
(1) R. S. Q., Art. 2547.
(2) 54 Vict., (Ont.), c. Iti, sec, 2.
(3) R. S. 0.,c. 71.8. 10.
(lATIl III' (ilALIKICATlnN. {)
Jii'lorf some jii>lici' III' t lie |K'iict' or (M licr pfi'soii autlioi'izi'd to tako
alli(lii\ ils. ,ni(l is in the t'oHowiiin' t'oriii ;
"I. A. 15.. of in tlic province of Manitoba,
<lo .swear llnit I Inilyand bond fide liave, to and for my own proper
use and iienetit. an estate in tee simple in lands situate in tlu-
province ot .Manitolia of such a value as dotii (|ualifv uu' to act as
u Justice of llie peace, accordinu,' to the I rue intent and meaninjj;
of tiie statute in tiiat iKduilf. and that sucli lauds are the followinif :
{fiarish, township, ranije etc.) So help me Ood." (1)
In the North West Teri'itories. the oath of <|ualitication is in a
.similar form, and it and the oath of ottice must he taUen hefore tlu-
liieulenant ( iovernor. a Supri'uie ( 'ourt judu'e. or .some other j\is-
tice of the peaci'. (2)
A certiticate ot' the oatli of (pialification luiviuif l)een so taken
nnd suhscrihed must in the provinces of (^uehec and Ontario he
forthwith de]tosited.— hy the justice of the jieace who has taken the
«anu'. — with the eh-rk of the peaei- lor the district or county
witlnn whiidi the newly a]ipointed justice is to act ; (:>) and in tlie
])rovince of .Manitoha such a certiticate must ho fortliwith (leposited
in tlu' ottice of the provincial secivtary. (4)
If the land u|)on wiiicdi a Justice of tlu' peace qualifies he moi't-
juraged. it will he sutticient. if over and ahove the amount of tlu-
inorti>-ai,'e it he of the ni't value rc(|uiri'd hy the law tixin<r the
pro]ierty ([ualitication. (5)
Tlie (>i^e/rsn)f a Justice of the peace in property in respect of
whi(di he (|iudities as such, under the H. S. O.. c. 71, sec. 9. need
not he in itself worth $Um. It will l,e sutticiont if ho hnxo. inlands
which are of the raluf ot ^Vim over and above what will satisfy and
discharge all encumbrances affecting the same, such an estate or inter-
est as is nuMitioned in the section, no matter what may he the
actual value of the estate or interest whi(di he possesses, ((i)
(I) K.S. Man., (1891), c. 93, 8- 9.
(■J) 57 <& 58 Vic. c. 17, sec. 7.
t;i) K. S. Q., Alt. 2548 ; E. S. 0., c. 71, s. 12.
(4) R. 8. Man. (1891), c. 93, p. 10.
(5) Frazer v. McKeiizie, 28 U. C. Q. B., 255.
(B) Weir v. Smyth, 19 App. Rep. (Ont.), 433 ; 12 ('. L. T. 347.
10 l'U\<TI<"AI, lil IliK TO M AfilSTIIATES.
A |pi'rs()ii wlio iicis iis ii Justice dI' I lie iiciicc witlmnl li:iviii;f
liiUi'ii or HuliHci'ilii'd (111- oiitli of (|iiiiliti(iiti<iii i>v wiilioiil ImviMt!;
till- ri'(iiiii'('<l |ir()|icr1y (lUiiliticiitioii is iiiilili' In :i |iciiiilty. wliicli in
ciicli (tf llu' |ir<)viiic('s ol' (^iiclicc. Oiitai'in iiiid Mjiniloiiii is (ixcd al
61tl(». (1) Mill iintw itiisliiiiiliiii;- liis liiilii!ily to a pi'iially. it seems
lliat wliei'e a pei'soii. uliost' name is in t lie commission, acts as a
jnst ice of t lie peace, witlioiit liavini'- tlie necessary in'operly (|iiali-
ticatioii. his acts ai'e not. on tliat acco\iiit. invalid. (2) .\ ditfereiit
rule. lio\\i'\i'r. prevails if a justice of the peace acts in a matter
over wliicli lie lias no Jiirisdiclion : so tliat a Jiistici' ulio committed
a man for a supiioscd oll'eiici'. wlicn. in fact, lliere was no aecusa-
titiii an'ainsl liini. was held liahle to an action in I respass. (;{)
.\ |ierson who assnmes to act as a .liisliee <if the Peace hy virtiu'
of his lieinn" an aldi'rman of a city, and not under a c<miiiiissioii of
the peace, is not K\ii;ally (|naliticd to so act as a .Instiee of the I'eace
until he has taken the oath oj'tpmlitication re(|iiired of him as an
alderman under the .Municipal .\cts. (4) Mut when lu' haslaUeii his
oath of i|Ualitication as an alderman he docs not (as we ha\e
alrt'ady seen) need any additional i»rt>perly (|nalificatioii. nor to
taUe any further oalh. to eiiahle him to act as a .Instiee of tln^
I'eat'c ity virtue of his ottiee as an alderman. (5)
llufliM of All4'K;iunc'0 uikI of 4^fli«'«>. — The new .rustici^
of the I'eact- must. 1 1 'fore eiilei'iiiii' upon tin' duties ot his ollit'c,
take the oath of alicn'iance and an ojitli of ottiee.
In the pro\iiice of ( )ntario these oal lis may Ik' lakt'ii hefore any
other jiistict' of the peace, or hefoi'c any other person appointed
hy the Jvieutenant-iioveriior to adniinisu-r oaths and declarations,
or ln'fore thecK'rk of tlu' ])t'ace (d' t hi' county or district in wliitdi
the new Justice is to act : and the oaths must then hv forthwith.
transmitted or delivered to and tiled iiy the clerk of the peace of
(1) R. S. Q., Art. 2ri!iO ; K. S. 0., c 71 , s. 1 ') ; R. S. Man., (1891), c. 93. s. i;5.
(2) Margate I'ier Co , v. Haiinen & JJysoii, ;5 B. iV A., 26H ; R. v. Hodtjins
12 Ont.;Rep. ;i67.
(3) Morgan v. Hughes, 2 T. R. 225 ; Lancaster v. (iraves, 9 B. & C. f)2S ;
Mason V. Barker, C. & K. 100.
(4) R. V. Boyle, 4 C. L. J., N. S., 25(5 ; 4 P. R. (Ont.) 2o(>.
(5) R. S. O., c. 71, sec 2 ; R. S. Man- (1891), c. 93, .sec. 21, ci7. at p. 7 ante.
OATHS (>!•' AI.I.Kdr.WrK A.\l» or orKICK.
11
llic coiiiil V or (listricl witliiii wliicli I lie new justice is to jut. (1)
And cvci'v piTsoii ;i|)|)()iiitf(l a Jiistici' of the pciu'c in ()iitano,
al'ti'f tlu' iiassiiiif ortlii'r)4 Vict.. (Oiil.). c. Ki. iiiiist. a<'coi-<liiii; to
section '1 oi'tlial .\cl. tako tlic oatli ot'olficc as well as the oatli of
([iialificalion witliin three months froni t lie ilate of i lie conimission
nndei' wliicli lie is a|i|)ointeil, oi- llic commission so far as the saino
I'eiates to liini. is deemed to In' alisoluteiy revoUed and cancelled.
In the iiroviiices of Nova Scotia and .New liniiiswiclv the new
Justice is sworn Ind'ore the cli-i'lv tjf the |ieaic for tliw county or
city and county for which sucii Justice is a|ipoiuted, and tju' clerk
id' the peace must keep a ri'cord thereof. (:i)
, In the province of lii-itish ("olumliia t he nafhs of alle^'ianei' and
^ ofotHeemusl lie taken liefore some oiherJusti<'e of the peace with-
in t/iirti/ (\i\\s after the appointment, .ind they must witliin the
same delay, he transmitted to the Provincial Seeri'lary to he tili'd
hy him ai'.oMM' t|,,. recoi-ds (d' his oUice. Qi)
ForillN <»r4»alli of AII«'u-iailC«'.— The tfeneral form of
I he oath (d' allegiance is as follows:
•• I. A. 15.. do sincerely promise and swear that I will he laithful
and liear true allenianee to Her .Majesty (^ueeii N'ictoria {or the
reigning Sovereign for the time being) as lawful Sovereiu-ii of tho
United Kiiii^dom (d' (Ireat Mritaiu and livland. and of this l)omin-
. ion of Canada. de|iendeiit on and helon^-iiii;- to the sai<l l\iiiy'dom
and that I will defend Her to the utmo.st (if my [lowei' aii-ainst all
Itraitoroiis conspii'acies or attempts whatever. Mliich shall he nuido
laj^aiiist Her person, crown and diii-iiity. and that I will do my
[Utmost endeavor to disclose and make known to Her .Majestw Her
leirs or successoi's. all treasons or traitorous conspiracies and
Isittempis wlii(di I shall know to he au-ainst Her or any of t hem ;
rand all this 1 do swear without any e((nivoeation. mental evasion
fov secret reservation. — So help me <iod.' (4)
(1) R. S. 0.,c. 71,8. s. 11, 12.
(2) R. S. N. S. (1884), c. 1(11, sec. 3; C. S. N. B. (1877), c 29, sec 3.
(:'.) C. S. B. C. (ISSS), c. 7S, m\ t) ; 55 Vie. (B. C), e. -."J, sec. !).
(4) K. S. C.,c. 112, 8. 1.
12
IMIACTICAI. (II IDK Td .MAlilHTIlATEH.
Ill the province of IJritisli ( 'oluiiiliiii. flic I'onii of oiitli of iillr-
yiiiiici' r('i|iiiml of t'\iT\ person appoinleil a Jiisliee of llie peiieo
or a siipeiidiary iiia«,istrali' in as follows : (I)
•• I (jo soloiniily pr<»iiiis»' and sweav liial I
will lie faillifiil and liear true alle;;ianee to Her Majesty (^men
Victoria. IKt lii'irs or successors. — So help me (Jod.
(Si\fnature of Stipendinry j\Ta(jistrafe on J. P.
Sworn and snhscrilied liy tlie said
before inc. at this
(lav of \.l). lH!t
ForillM 4»f'Oalll <»!' fiflioo. — The ti.-eiieral forni<d'natli of
idlici' is as follows :
" I. A. 15.. do swear that I will well and truly serve oiir Sovereign
T;a(ly. «^iieen N'ictoria. in the otiice of justice of the peace, in and
for the district (or county, etc.) of and I will
do riyht to all manner of people, uccordinu; to the laws and iisa!.::es
(if tliis province, without fear or favor, alleclion oi- illwill. — So
help nu' (iod." (2)
In the I'rovinci' of ( )ntario the form of the oath of oftice is as
follow.s :
" I. A. I{.. of in the county of
do swear that 1 will well and truly serve our Soveivifj^n Lady,
{^ueeii Victoria, in the otticc of Justice of the peace, and J will do
ri,u;ht to all manner of peoph' after the laws and iisai^es of tliis
Province, without fear, affection or illwill. — So help me (Iod." (3)
In the Province of IJritish Columhia the form of the oath of
oftice to lie taken hy every person ajipointed a stipendiary magis-
trate or a Justice of the peace is as follows :
(1) C. S. B. C, (1888), c. 78, sec. 6-
(2) Oke's Mag. Syn., 13 Ed., 5.
(3) R. S.O, c 71, sec. 11.
I'KllSnNS Willi CANMIT ACT AS .MMTICKS. 13
• I swciir tliiil. as a sti|M'iiiliary
m;i,tci''ti'ati' (ni' iM-<licf III' ill.' |(i'iicc), for llic cnuiily (or clcfloral
ili-lrict. ni' jiarl of till' I'lniiity or clri'lural ilisi i-ii'l) of
ill tlic I'l'ovincc of Hriti-<li ( 'oluinliia. in all articlfs in tin-
<^ni'i'n's nanic to nn- ilirrdt'd. I w ill do ('ipial rii^li' <o tlic poor and
In I lie ricli, at'li'i' my I'lniniiiy'. wit and |po\vi'r. anil at'lcr I In- lawn
and rnstoms ol' tlic realm and stalnli's tlicri'in made and that I
will lake niitliinic for my otlii'c of sti|K'ndiary maifistratr to lie
doiu' Imt of till- (^iit'cn, and fees acciistomi'd and costs limited liv
statute. — So lu'lp me (iod. {Siijnnture of Stijiendutri/ Magistrate <>r
J P.)
Sworn and siiliserilied l>y tliesaid
Iiefore me. at tliis
^ day of \.l).. 1S!I .-(1;
l*('rM4»iiM l*iM»liil»if4>«l ir4»iii Avf iiiu' um .liiMti<'('M of
til*' l"«'U«**». — ("I'rtain persons and ottieials are sonu'tiines pro-
liiiiited IV.'in aetinu' as justices of the peace, h'or instance, the
Ontario statute I'elatini;' to justices of the peace enacts that, ex-
c('|)t where otherwise specially provided hy law. no solicitoi-in anv
eo\irl whati'ver sliall he a Justice of the peace duri lit; tlie time he
continues to practice as a solicitor ; ami tliat no person haviui;.
usinii" or exercisiiiif tlu' ottice of slu-ritf oi- coroner, in and for any
county, district or place in Ontai'io. shall he coinpetent or ([iialitiod
to be H ju^tiee of the peaee. or to act as such for any county, dis-
trict or |)laeo wherein he is sheriff or coroner, duriiii; the lime
that he uses or exercises such otiice ; and that every act done hy ji
sheriff or coroner hy autliority of any commission of the peace
durini:; the time aforesaid shall he void. (2)
in the province of (^)ui'hec. no coroner can act as a justice of the
Peace in cases arisiiii;- out of facts which have heon the suhject of
ail}' iii([uest held hy him ; and every act .s«) done hy sudi coroner
is iilwolutely voiil. (3)
(1) C. S. B. C. (1S88), c. 7cS, 9ec. <J ; .■)5 Vic.(B. C), c. 29, sec. 8.
(2) R.S.O.,e. 71,88.7, 8.
(:]) r)7 Vic. (tiue.), c. 26, sec. 1.
u
rKArTicAi, (aiOK to maciisthatks.
\() shcrifV in tlic districls of (^iu'Ihh- iiiid Mmitrciil ciiii In' a
jiistict' of tlu' |n'ii(H' for till' district wherein lie is slieritf. diiriiiy;
tlie time lie exei'cises siieli oHice : and evt'iy act (loni- liy siudi
slieritf. as a Justice of the peace diiriiii;- such time is al>solutely
void. ( 1 )
When not otherwise specially provided hy law. no advocate can
1)1' a justice of tln' peace in and for any district f)f the ])rovince of
(^hiehec dnriini,' the time he continues to practice his professiim. (2)
In .Manit(diu. when not otiu'rwise proxidcd liy law, no harrister.
attoriu'y. or solicitor in any court whatever, shall he ajipointed or
act as a Justice of the I'eace in and for any jiovtion ot the province
diiriiiii' tlie tinu' lu' continues to practice as sucdi. (H)
ClIAPTKR II.
Al'l'OINT.MK.NT Ol^' PoLICE MaiUSTRATKS.
Ill Olltai*i4». — In the province of Ontario a .-^ilaried police
maicisti-ate is apiiointed by the Lieutenant-Governor for every city
and for every town haviiiii; more than o.ddO inhahilants. and also
tor every other town. — that is, every town of less than r).(l(MI in-
hahitaiits. — if two-thirds of tlu' inenihei's of its council pass a
I'esolution atiirmiiii;' tlu' e.xpedii'iicy tlu'reof : tlu' salary of such
l»olict' mas^'istrati' to he paid hy the city or town for which he is
appointed. (4)
The rjieutenant-(ioveruor may. moreover, at all times appoint an
unsalaried police maii,'ist rate for any town ot' less than ,"),(H)n
inhaliitants. without any resolution tVom its council. (5)
(1) 57 Vic (Que.), c. 2(i, sec. 1.
(2) K. S. Q., Art. 2540.
IS) K. 8. Man. (ISOl), c. 9:5. sec. 7.
(4) R. S. 0., c. 72, SH. I, 2, :5.
(.')) lb., sec. 5.
Al'r JINTMKNT DP I'llLICK >IA(ilSTHATKS. 15
A siiliirii'd )Hilicf iniiifist rail' may also In' appoiiitt'd tor am-
(.•(iiinly ol' Ontario, wliose county I'oiiiicil |)a-<sf.s a I'csolution attirni-
iiiif tlio oxjirdit-ncy tlu'ivol'. tin' salary of such m a u;! strati' to lio
|iaiil liy I lie county ; (I) and every sucli county nia.u;ist rate is vested
witli and exercises, witliin the county for which he is appointed,
all the jiowers liy law appi'i'tainiuir to police nia^'ist rates appointi'il
for cities : (2) and he need not lie actually resident within the
county or district for which he is appointed (;>).
The Lieuteiumt-Oovernor of Ontario may appoint more ])oliee
maifistrates than one for any county oi- union of counties or disti'ict
or part of a disti'ict in which the Canada Temperance Act or a like
Act is in force ; and any sncii niai;-istrati' holds ottice durinii' jileas-
ure. save that he ceases to lie s'lch |)oiice nuiij;ist rate in case anil
from the tinu' that the said .\ct <ir any new Act sulistituted there-
fore ceases to lie in force in the county or district or ])arl of a
district aforesai<l. (4)
The following- is the oath of otHce to be taken by a Police Magis-
trate in Ontario :
'• i. A. H.. of in the CVninty of
do swear that I will well and truly servo our Sovereit>-n
Lady, Queen Victoria, in the office of j)o]ico iua_s>:istrati'. and \ will
do right to all manner of ]ieople. after the laws and usages of this
Province, without fear or favoi'. affection or ill-will. — 80 help me
God." (5)
'Phis oath may lie taken liefore any justice of the peace or before
any pei'son appointed liy the Lieutenunt-Uovernor to administer
oaths or declarations, or liefore the clerk of the peace for the
eounty or district in which the police magistrate is to act. and it
must W forthwith transmitted by him to the clerk of the peace. (C)
(1) H. S. 0., c. 72, sec. 8.
(2) Ih., sec. 12.
(3) //)., sec. 15.
(4) oO Vic. (Ont.), 0.11, seel.
(5) K. S. 0., c. 72, ss. 22, 2.'?.
((i) lb.
16 I'KAc rrc.vi, oiidk t>> M\t;\sr\\\rv.s.
In Onliirio ii |i(ilicc iiKm'ist rate ik'1'<|s nn |)ro|)crty (|ualiHciiti(iii.
iini- lo takf ... _ otliiT tliaii llu' tDrcii'ttiiig' nalli. to oiiaMc liiiu to
act as a jiisti(H' of tlic peace. (1)
III 4|ii«'Ikm*. — 'I'lic lacut('iiant-( iovcnioi' of tlic I'roviiici' (jf
(^iiclicc may a|ipoiiit sti|u'iiiliai'y inan-ist I'alcs. called judi^H's ot" the
se^ssi()lls of the ]teace. for each of the cities of Montreal and (^ue-
hec. with jurisdiction over tiie wiioh' Province, to execute the
duties of justices of tlie peace and such otlier duties as may l>c
from time to time directeil hy tiie provincial seci'ctary. foi- thi'
more otiieient ailminist ration of the police witlun tlie limits of the
sai('l cities. (2) and they are declared to he. in virtue of their ottico,
justices of the peace f(n' the districts in which the said cities are
respectively situate, with jurisdiction as su(di ovei' the whole Pro-
vince and ^vith all tlu' )po\\i'rs and authority of any one or two
justices of tlu' ]»(.'ace. as the case nniy recpiiri'. notwithstandini; that
they may not ])ossess the property ([ualitication re(|uired l)y law of
any other pi'rson performini;- the duties of jiistices of the ])eace. (;>)
Befoi'e heyinning- to execute the duties of' his otticc every person
appointed a judsje of the sessions of the peace for the city of (Que-
bec or for the city of AFontreal must talce. hidbre a judije of the
Court of (Queen's Hi-neh. or <>{' the Superior Court, the followiuij
oath :
" I. A. B.. do swear that 1 will faithfully, impartially and
honestly, aeeordiuii' to the hest of my skill and knowledy-e. execute
all the |)owers and dutit'sof a judn'e of sessions of the pi'ace. un-
der and hy virtue <d' sections fourth and tifth of cha])ter third of
title sixth of the iii'vised Statutes of the Pi'ovince of (^uehec." (4)
Police magistrates imiy also he ap])ointed hy the Lieutenant-
Govei'iior of (^uehec within any one or more districts of the Pro-
vince or in any ju<licial district : and no ]»oliee mai^istrate so
appointed need possess any property (lualitication, nor he domiciled
(1) R. S. 0., c. 72, sec. 24.
(2) R. S. Q., Art24S5.
(3) lb., Art. 2488.
(4) R. S. Q., Art. 2487.
AI'l'DINTAIKNT OK I'lUJCK M \(i ISTHATKS. 17
oi' iiiiuiillv iTsiilcnt williiii any disfrici I'm' wliicli lie is ap-
pointcil ; (1) ami tlic iiolicc iiiau'ist rates so aiipoiiitcd liave ami
exercise ail tiie jiowei's and autliority, riiflits and iiriviley-es appor-
laiiiinji' til ]i(ilice nia,u:ist rates of eities (exeejit as rey;ards ortencoM
auainst niiniieipai iiy-laws an I as reii'ar<ls other purely inuiiieipa!
matters), and all t lie powers and antlmrity. rin'lits and privileges
appertainini;' to justiees ol' the peaee g-enerall}'. (2)
III ^o«» ^>4*otia. — rpon the I'ejiort oi'a eommitteeaitiiointed
ii|)on pt'tition in that liehalf hy thetJeiieral Sessions of any county
or district in the I'mvinci' of \ova Scotia, any place mentioned in
and assiii'ned liy su(di rejiort may. after com]iliance with certain
tornnilitics. he formed into a police division, to wiii(di one or more
stipendiary juslices are a]ipointcd frinn iimoni; the justices of the
peace rcsidiuLC within tin- limits of such police division, the st'ke-
ti( II heinii; made hy the majority of such justices asscnihled at, a
ineetinif s|)ecially called forthat |iurposi' hy the clerk of the peace ;
and the stipendiary justice or Justices s(j selected, or one of them,
acts as a police court within the limits of the saiil division wiien-
ever occasion re(|uircs or he or they thiidv necessary. (3)
III .Ylaiiit4»b)l. — In .Manilidia the Lieutenant-dovernor ia
Council may appoint one or more police maicistrates. and may
detine the territorial limits of their sejiaratc and ri'spcctive juris-
dictions. (4)
III l4('('\VJliiii. — 'I'lie (ioveriior-tieneral in Council may ap-
point, hy commission under thi' i^riMt seal, one or m(jri> tit and
pro|ier persons as stipendiary magistrates within the district of
Kccwatin : ami I'very su(di stipendiaiy manMstrate I'.xercises within
the district (d' 'vccwatin. or within such limited portion of the
--ame as is prescrilu'd hy the (iovernor-< Jencral in Council, the
powi'rs appertaininii: to any justice of the peace, or to any two
(1) R. S. Q., Arts. 2490,2491.
(2) lb., Art. 2492.
(o) R. S. N. S. (1804), c. 12S, as amended and contained in Appendix A,
\l. S. N. S. (1884), pp. 15-16.
(4) K. S. Man. (1891), c. 93, sec. 2.
18 PHACTICAI. (IflDK Tfi .HAdlSTHATES.
juHlict's of tlu' pi'iU'i'. uiidci' any laws or ordiiianeos in t'oi-co from
tinu' to tiiiu- in thai district. (1)
III ISritiNli <'ollliiihiH. — In l^ritisli ('oiiunl)ia stipoiidiavy
luau'lst rail's may Ix' a|i]pointi'd liy tlic liiiMitcnant-dovcrnor in
('ouncil. to ai't as siu'li for any coiuity or cii'ctoral district in llic
I'rovincc. or lor any less extensive jurisdiction. (2)
Kvery person api^ointed a stipendiary may;istrate in Britisli
Columliia must taivi' the oaths of oHice and of alien-iancc within
thirty dn\'< from liis a])pointmcnt (uidi'ss such time is extended hy
tl\e liicutcnant-liovernor in Council), or his appoiutnu'Ut ahso-
lutely ceases and determines. (3)
III <li«' Xortli-Wost T«'rrit«»ri<'N. — In the North-
West 'rerritories. the Judges of the Sujiri'ine Court id' the territories
are vested with all tlu- powers, authority and jurisdiction of stijien-
diary mai;ist rati's ; and the (iovernor (ieneral in Council may aj)-
]>oiut ])olice mag'istrati's in the Territories with all the powers of
Iwo justices of the jieace under any law in <!aiuida : hut no person
can be so appointed unless he has practiced as an advocate, liarris-
ter oi- solicitor in Canada for three years, or unless he is a nuigis-
trate of three vears standin;;' inCaiuida.. (4)
CHAPTER III.
TllK I'oWKKS, DlTlKS. A.M> UksPONSIIU I.ITI KS OF ,Ti;STK'j:s 01'
TlIK I'KACK and I'oI.K'K .M AlilSTIt.VTES.
]Vaf iiiH' aiiKl <':vt«'iii <»!' Ilicir |»4»n«'rN. — The o-eneral
powi'rs of justices of the peace ari' dcrivi'd tVom the commission (d'
tlu' peace whi(di is addressed to and assinns the persons therein
mimed jointly and severally to keep the peace in a particular
(1) R. S. C, c. 53, 8.8. 24, 25.
(2) 55 Vic. (13. C), c. 29, sec. 5.
(3) 55 Vic. (B. C), c. 29, sec. 9. For the forms of oath of office and alle-
giance, gee pp. 12, 13, ante.
(4) I{. S. C, o. 60, 8ec. 54 ; "i? it 5S Vic. c. 1 7, sec. 7.
I'UWKHS, DITIES AND HESPONSFHI MTIKS. 19
(■(iiiiilv. ilisti'ict. city, til' ](l;ici'. with :ill tlic iiown-s aiid privilcnTs
li\- law anil of riyht aii]H'rtaiiiiiii«- to tlif otMcc of Jiistiot,- of t lu'
jicaci'.
Bosidos tlu' i^i'iu'rai ])o\vt'rs wliidi tlicy (Icrivo from tlic coin-
inissioii of tlu' ]K'ac('. — which include all the powers of the
ancient conservators of the ))eace. at the common law. to su]tpress
riots, to take securities for tlu' ]ieact' and to ap]»rehend and commit
criminal ollenders. — there are nuiuy other jiowers and duties,
(including;; tl>e holdiny of sj)ocial sessions for the ii-rantini>; of
licenses and other special Inisiness). which hy virtue of <>-eneral
and local legislation, devolve upon justices (d' t he peace, and in the
e.\'iM'cise of whi<di they have sometinu's ci\il as well as criminal
jurisdiction. In their civil jurisdit'tion are included cases in whiidi
tlieyai't- called upon to ht'ar and determim- complaints hetween
nuisters and sei'vants. and claims for assessments, rates, and other
matters of a similar nature, under pi-ovmcial Acts and civic and
municijial hy-laws. Ihil their most important functions are those
whi( h they I'xercise in I'rimimd iiuitteis ; and tlu'se are so exten-
sive that, while, as a n-eneral and almost invariahle rule, the case
(d'l'very person accused and lu'ought to trial upon an indictment
must, in the first instance, luive heen enquired into hcfoi'e a ma<j;is-
t rate or a justice of t he ]ieat'c. and have heen hy him sent for t rial,
and while, in tlu- general or (puirter .sessions cd' the ])eace. certain
.May-ist rates, have (under Article 5;{!l of tlie Code). Jurisdiction. —
concurrently with the Su]ierior Courts of criminal jurisdictiou. —
to try a i^'rcat many indictahle oflences. and while, moreov r.
exclusive jurisdiction is oiven. in some cases to a single jtistice,
and. in others, to two justices, to try and determiiu'. in a sunnnary
manner, out (d' sessions and without the intervention of a jury, a
multitude of ortence- Mhich are not indictahle. and whi(di are
punishahle either under the Crinunal Code and other statutes of
Canada, or under tiu' statutes of tlu' different ])rovinces. or the
hydaws of cities, towns and municijtalilies. they have. also, umli'r
sjK'cial coiulitions. the rii^dit to summarily try and (lis|iose of
some otleiu'cs whi(di. in the alisi'iu-e of siudi special conditions, are
indictahle.
It will he readily .seen that the jurisdiction and ]mwers of justices
of the peace are in .some cases ancillary to — whilst in others they
20 ritACTICAl, lillhK T(i MAdlM'UATKS.
arc suli.-lilulcd tor — tlioso of a siijicrior ti'iliiniiil; ami t lu'ir acts
nw c]\]\vy iin'nisterMl ov judicial. In so fai" as llu'ii' acts relate to
tlic |ircsci'vatioii of' the peace, tlic |ireliiiiiiiary iiivestiifatioii ot'
iii(li<talile otleiici's trialile ■ liy aiiollicr trilmiial. tlie issiiinjf of a
suiniuoiis or a warrant, tin- liiiidiiitf over of tlu' [larties to prose-
cute or ot' t lie witnesses to ifive evidence, tlie aiiniission of tlu-
accused to liaii. or coniniittin.i;: Idni foi' trial, tlu'varc ministerial
acts: liui witli rei;'ar<l to olh'nccs ovi'r whiidi they I'xoi'cist' sum-
mary jui'isdiction. their acts arc liotii ministerial and judicial :
ministerial, in causing' the ott'endcr to he hrouu'ht licforo them, and
Judicial, in lu'arinn; and examinini;' the t'videiu'c and in determinini:;
till' case; the test of an act heiiiu; minisicrial or judicial liein<f
wlu'tlicr tlie justices are entitled to withhold their assent, if they
thinU tit. or whether they can he compelled, citlii'r \)\ vinndamus or
hy a rule in the nature of a mandamu<. to do the act in (|ucsti(ui. (1 )
Tile Judicial acts of a Justice lu.st lie done witiiin llic territorial
limits (d' the district, county or place tor whicli he is aii]»ointO(l ; (2)
uiik'ss lie he spcciaiiy iiutiiori/.ed hy statute oi- otiicrwisc to i-xi'r-
cisi' his judicial functions I'lsewiierc 'i'lu' judicial acts of a Justice
(wlio is not so sjiecially aiithori/ed) are. wiieii done outside of tiie
territory tor wiiicii lie is appointed, ahsoiuti'iy null and void. (15)
111 tiie alisence. iiowcvci". of ovidt'iicc to tlic contrary, a ma^'is-
trate will \n' presumed tt) lie actiny; witiiin tiie territorial limits of
his Jurisdiction. (4; And. witli reijard to acts wiiicii arc nicrolv
ministi^riai. tlie ride is tiiat tliey may always lie done iiy a Justice
iicyoiid the limits (jf iiis district. (5)
(1) /Vr Wifrhtman, J., in Staverton v. Aslibnrton, 1'4 L. J. M. C. 53; 4
El. & B. 5-2(1.
(2) R. V. Totness, 18 L. J. M. C. 4(! ; R. v. Stockton, 7 Q. B. 520; R. v.
Newton Ferrers, <) Q. B. 32; R. v. Holborn, (i E. & B. 715; 51) L. J. M. C.
110 ; NewbouUl v. C'oltman, 6 Exch. 18!) ; 20 L. J. M. C, 14!), 151, 152.
(3) Helier V. Benliurst, Cro. Car. 211; R. v. All Saints, Southampton, 7
B. »fc C. 785 ; Bosan(inet v. Woodford, 5 Q. B. 310; R. v. Hughes, 5 Russ. &
Gelil. 194 ; R. V. Beemer, 15 Ont. R. 2()(i.
(4) R. V. Fearman, 22 Ont. R. 456.
(5) R. V. Slainforth, 11 Q. li. CG; Langwith v. Dawson, .".O U. C. C. R 375.
iMiWKKS. I ITIKS AM) U F.SI'i iNSI It 1 1. Ill KS, 21
Tlif |i(i\V('rs n'ivcn to Justices hy stilt life law imisl In- <'.\('rcis((l liy
ilifiii ill strict iicconlaiicc with tlic statutes liy wliicli tlic |i(i\vcrs
are iijiveii and under wliich tliey act. hi oilier words, tlicii- statu-
tory powers iiiiist l>e n-iveii to tliem in exprt-ss terms, and not liy
ine)-e mference. At coiMinon law. justices of'tlie jieace have no juris-
diction to convict suninuirily in any case, it is not Ipccaiise a
statute creates an ottence tliat justices liave power to try it. IMs-
tinet loiijislative authority to deal with it suniniavily must lie >i-iveii
to them. (1) Hut where, owiny; tti some omission in a statute, the
|iowt'r to summarily try and convict is not n'ivt'ii in express \vords.
the justici's may still proci'cd. it' from the rest of the statute it imiy
lie reasonalily implied that such jurisdiction was intendcil to lie
H'iveii to them. Thus, where a statuti' declared that any person
<'xposiiiii'. in a piililic place where animals art' commonly exhihited
lor sail', any animal infecti'd with a contaifious or infectious dis-
ease, siiould he deemed n'uilty of an ott'cnce and he lialde to paA' ii
penalty, it was held that, althouifh theri' were no express words
making the penalty recoverahh' hy sumnuiry procedure, a juris-
diction to deal summarily with oti'enees under tiie statute was
imj'liedly confei'red ujion justices. (2)
Wiiere tiu' statute pre.serihes any particular justice or descri])-
tioii of justice, the justice must lie shown to come within that
deseri]>tion. (3)
Whcnevei" the concurrence of two or more justici's is ri'(|uisito,
the cjeueral rule is that they must he present, acting- together,
duvinjif tho whole of the liearinu: :iiid determiiiatiim of tlie ease. (4)
And wliere a view is re(iuired to ln' had hy two justices, it should
lie i\ joint view. (5) Whei-e more than two justices arc actiu"-
(I I Ayard v. Cavendish, Saville, 134; Bross v. Hiiber, IS U. C. (i. B. -JSii;
i;. v. Carter. 5 0. R. 651.
(!') C alien v. Trimble, L. R., 7 Q. B. 416; 41 L. J. M. C. 1:!l>; .Tolnison v.
( olam, L. K., 10 Q. B. 544 ; 44 L. J. M C. 135 ; Greenw. & M. ]Msg. G., I ; Pal.
Sum. Conv., 6 Ed., IS-
IS) K. v. Broadlmrst, 32 L. J. M. C. 168.
(4) Billings V. I'rinn,2 Bla. Rep. 1017 ; R. v. Arnold. 1 Str. 101. See also
snb-sec. 6 of Art. 842 of the Code, post.
(5) R. v. Cambridgesh. .1. J., 4 A. & PI 111.
22 I'HArTICAI- uriiiK TH mauisthatks.
loifi'tluT Judiciiilly. tlic net dlllic iiiiijority ik'i'idi's ; (1) iiml wlicrc
the stiituti' rctrrs tin' niiitltT In iiny luo jiistices. tlicv must lie
justices actiiiu; witliiu tlie limits of tlieirjurisdietiiui. (2)
Tlie autluu'itv i,'iveh l>y statute to two justices cannot in f^eiioral
1k' exei'cised liy one justiee. (3) Sotliat wlu'i'e a statute riMpiires
the conviction of an ott'i'UcK'r to lie licfore two justices, a convic-
tion hy one, alt)Uo. is liad. (4) And where an act pi-ovides
that tlio prosaeutioii is to l)i' brought heforo any police mai^istrate
or before any two Justiees of the jjeaee, it seems tiuit. as ilu' layiiKj
of the information is tlie hriiujin<j of the prosecution, it (the layini>- of
the information) must l> • done either liL'fore a police nuigistrate or
hefore ^u;o justices ; and where in a case suhjeet to sueh a statute,
the information was laid before only owe justiee. the eonvietion wa-^
quashed for want of jurisdiction, althonii'li heard and detei-mined
by two. (5) Hut whert' the direction in the statute is that the
final determination of a thinii; is to be by tiro justices, one of these
justices may receive the complaint and grant his warrant to arrest
the oH'endev and brin<j liim before the same or any other justiee to
tind surety for his appeai'ance at the sessions ; ((3) and if the
authority is y-iv^'U to one justice, it may. of course, be exerci.sed by
any ^'reater number. (7)
A power e.K|iressly o-ivi-n to a justice of the ])eaee to do a par-
ticular act cannot be enlarged, by infen'uce. Thus, wlu're the (!
(Jeo. '1. c. ;il. gave a single justice authority in bastardy cast's, to
take the examination of any unmarried woman if she should charge
any person with having gotten her with child, it was held that the
statute did not incidentally give the justice jiowev to compel tlu
woman to be examined. (S) So. although justices of the |)eaee
(1) K. V. Jeflreys, 34 J. P. 727 : 2 1.. T. (N. S.) 78(5.
(2) lie reerless, 1 A.I. & Ell 143; 1 Q. B. 143, 153.
(3) Dalt. c. (>; 4 Co., 4(i.
(4) McGilvery v. Gait, Pugs. & B. (141.
(5) R. V. Starkey, 7 M. L. R., 43 ; Aff'. on apjieal, lb., 489.
(li) Ware v. Stanstead, 2 Salk., 488; R. v. Simmons, 1 Pugs., loS; See also-
Art, 842 of the Co(le,;)o.'i<.
(7) Hatton'8 Case, 2 Salk., 477 . R. v. Weale, 5 C. & P., 135.
(S) Ex purte Martin, 6 15. & C. 80; d Dowl & Ryl., GO.
I'oWKHS. DITIKS AND HKSlMl.N'Snil I, ITI KS. 23
were y;i\t'ii jiirisdict ion. Iiy tlu' (i (Ico. ."{. c. -'). to flctciiiiiiif
(lis|Mil('s lictwfcii iiKislci'^ ami servants employed in mamifuctures or
traile. it was lu'ld tlial lliisiliil not M;ivc tln'iii jurisdiction to settle
dis|)iites lietweeii masters and /lOl/seAoW sei-vants. (1)
All tlu* justiees of a district are er|iial in antliority : Init tlic
jurisdiction attaclies in any iiarticiilar case to tlie tirsi set id' didy
aiitlioi-ized nni^i'ist rates, wlio Inive possession and coi;ni/,aMee id' t lie
matter, to the e.Nchision of the s,'|parate jurisdiction of all oi liers ;
and tliouctsof any ol liers exce|)t in conjunction witli tlie tir>t are
wliolly void. (2)
In Ontario, it is expressly ciuicted tliat no justice of the peace
shall admit to hail or discduii'i;*^ a prisoner, or adjudicate u|ion or
otherwise act in any case for a town or eit\' when' thiu'e is a police
man-ist rate, except at the Court of (Jeiu-ral Sessions id' the Peace,
or in the case of the illness or aiisence or at the request of the
police maifistrati". (15) Hut in the case of justices for a county, in
which a town hni>in(j no police ma<j;istrate is situate, their jurisdic-
tion over otlences committed in such town is in no way interfereil
with, (l)
The appointment of a jtolice ma^'ist rate for a county or district
ill Ontario may exclude any city or town wiiiidi has a ]iolice
iiKiiiist rate ; and. otke.nvise. a police mai^'ist rati' a])pointed for a
county or dist rict has jurisdiction in the whole of the countv or
district, inclusively of every city or town therein, whether suidi
city or town has also a police maii'istratu of its own oi- not : (5)
and a jjolice ma,ii,'istrate for a county or part ot' a county niav sit
or hold his courts within a town separated from tlie count\' or a
city situated within the limits of the county for juilicial purposes,
whether such city or town has a police mau'islrate or not. and may,
ill siiidi town or city, hear com|(laints and dispose thereof as police
niaii,Mst rale ill respect of all matters arising within the countv or
(1 ) Kitchen v. Shaw, (i A. & E., 729.
iL') H. V. Sainshiirj', 4 T. R. 450.
(3) R. S. 0., c. 72, sec. li.
(4) //)., sec. 7.
(5) R. S. ()., c. 72, sec. 11 ; 50 Vict. (Ont), c. II, sec.
5
I
-t I'HACTICAI, (illKK TO M.Xd ISTIIATKS.
till' |i;(rl nf I 1h' ciMiiily tor wliicli lie is n|i|ii)iii(c(l. ami do :il! iK'ts.
malttTs and lliiiii^s in llic iliscliari^'c of t lie diilics and iiowci's i>\'
liis office as I'lillv as wiicn siitinifor lioldinij conrl in anv oilier
|>art of the county lor wliicli he is a|i|iointe<l. (I)
.hislices of tlx' peace are ex|ii'essly ])roliilMted. in Ontario, from
interferini;- wi'li proeei'dinii's liail liefore jiolice nianist rates. (2)
Hut iioihinn' is to lie construed to interfere willi tlie Jurisdiction of
just ices nf t he peace in cases in which the initiatory proccedinifs
ai'c not taken hy the ]ioliee nian-ist rate, nor to prevent ot Ium'
justices iVoiii actiiin; with the po|i<'e niai^'istrate at tiie police niai;is-
trate's I'lMjuesi. (."!) And. in case of the ah.sence or illiii'ss. or at
the reipiest of a police luan-ist rale, any I wo or more justices of t he
peact- may act in his place in any matter within the jurisdiction of
tlu' police niaii:istrate ; and tiie justices or a majority of them shall,
in such case, htive ail the powers whi(di hy any statute arc <fivon
In the Jiolice mai;-isl rate ; and any one Justice of I he |n'uce miv so
act foi' the police maii'ist rate in casi's in whi(di hy law one justice
of till' peace has i.-eiu'rally Jurisdiction in that hciialf. (4) When-
ever any Justice of the jieace acts for a police niay:istrate in case of
till' hitter's illness or ahsence. or at his ri'(|uest. the \i\n\'\\\\ omnia
praesumuntur rite esse acta applies, and the Justice who so acts for u
police mairistrate is i»resunied to he properly authorized, uiile.s.stho
contrary ajipear. (5)
No |ioliee magistrate in Ontario need act in any case arisiii<r
outsidi' of the limits of the city, town m- place for which lie is
police maii'ist rate, unless he sees tit so to do. (b'_) And. except in
eases of urn-eiit necessity, no atteiidaiici' hy him at the police otKco
is reipiired on Sundays or ot her holidays or on any day set apart
hy the muiiici[)al council as a civic holiday. (7)
(1) R. S. 0., c. 7?, see. K! ; oO Vict. (Ont.), c. 11, sec 7.
(2) R. S. O., c. 72. sec. 13.
(3) R. S. 0., c. 72. sec. 14.
(4) Ih., sec. 20.
(5) R. V. llodfie, 23 Ont. R., 450.
(6) R. S. O.. c. 72, sec. 26.
(7) //-., sec. .SO.
rNTKUK"*?. ItlAS, (lit I'ATIAI.ITV
25
l»iMqiiiilil> iiiK IiiIoim'mI. ItiaM or l*ai*liiilil,y.—
N'n 111111,'isl rail' ami no jiislii'c ol' tin- pcafc lias a i'iy;lil li> act
jinliciallv ill any <asi' in ulncli In- liini^clf is a |iarty. nr in w liicli
lie lias any iliri'cl ur imlii-.'ct |H'ciiniary intci-csi. Ikiwh'Vit small.
The |>laiii |ii'iii(i|i!c 111' justii'c llial no oiii- can lie a jndii'c in liis
iiwii causi' pcrvailcs every lirancli ot I lie law. andisasuld as t lie law
itsell': ami everv iiroceediii!;,' in i'es|)cet nf wliicli lliis uiticclion
exists, is. — illlie (ilijeclion ajilieais upnii llie lace ol' I lie pi'ucced-
iiiM-. -alisolnleh xnid : and e\iM'y |iriiceediiii;'. in res|iect iit'wliicli
tills nliiccliim exists. ilimiMdi nut a|i|(carin^' n\\ its face, is voiil-
al.le. (1 )
Tliere are instaiii'es n|iiin record of man'ist rates bcini;' |iMnislied
liy atta(dinicnt for actiny' as Judnjes in matters in wliiidi tiiey
tlieniselvt's weri' parties. (2)
Wliere a crimnial inforniiitioii was moved for airaiiist a justico
of tlie peace who. ii|Mni a complaint made hefore liim. in liis
maii'isleria! ca|iacity. Ky his own liailitf. had coiivicle(| and sen-
teiici'd to piiiiisiunent a lahorer employed on his ( tho Justice's)
own fai'in. for refusiiii; to perfoi-m his woriv accordiiii; to contrai't.
tiie Kiiu'lisli Coui't of (Queen's Bench i,n-anted a rule to show cause,
and only declined makiiiij the rule ahsojutc. from a consideration
that, under all the circumstances, liie stt'jis taUen appeared to
proceed from an error in judirment. rather than a had motive : hut
at the sanu' time t hoy severely re|)ridiendi'd the conducl of tho
man-istrate in sitiiiit;' in jud,i;mont upon a cliary;e in whicii he him-
self was to ho considered as the i-eal coni|)lainant. thoun'h in form
.the complaint was pri'terrod hy his hailiti'; and they declared tliat
it was a most almsive inter|)i'etatioii of the law that a man should
presiuiu' to erect liimself into a criminal Judice o\-er the servants
on his own farm {'iw an otft'uce aijainsl liimstdf. (.!)
(1) Co. T>itt. 141« ; Dimes v. Grand June. Can. Co.,.". H. of L. Cas. 759-785;
Cliostor Mercers \ Ironmonjiers Co. v. Bowker, 1 Str. (339.
(.■-) Mayor of Hereford's case, per Holt, C. J. 2 Ld. Raym. 76G; 1 Salk.
201 ; 306.
(3) R. V. Hoseason, 14 East, 6!i6.
-ft I'llACTIlM, iirir>K TH M AiilSTH ATKS.
Ma<;iHli'iiii's aiul jiistici's *>{' the |iciii'c jir>' imi unly disiniulitit'il
tVitiii ailiiiix JiKlicially in any liisi- in wliich llicy llu'iiisclvcs ari-
partits. lull also in any ra^' in wliicli lln-y liav«' any din'tl intcrcsi.
Imucvt'i" small; ami I licy slioiild. mori'DVtT. refrain from takiiii;'
any part in |iniccciiiiin's in w liidi llicy an- iiulirertlif intcn'sicil ;
fur. ajtliou^'li tht'ir coniliu't may Ik- tin* most Inuioralilc. llic fad o|'
llicir iu'ini; in any way. (alllioiii;li only imlircd ly ). inlcn'stcd in
tlu' mutter at issue. U'uves them opi'n to suspn'ion. (1)
It is most esseiitiul for liie satisfactory administration of jnstii'e
lliat parties interested in a ileeision sjionid not oidy laUe no paiM
in I lie deeision. lull that they slionid avoid i;'i\inii' any t;'ronnd for
the lielief that tliey intluenee oiliei's in arrixinLt' at a decision. (2)
So jealously have (lie Sujicrior ('onrls rciiarded pi-occed inn's in
whicli the ap|ieai'ance of partiality conl<l exist that when one ot' a
s,'t of man'istrates who heai'd u case at t he si'ssions was inti'rested
in tlie result, tin- I'",nii'lish Court of (Queen's MiMudi (|inished the
ordei' made in the ea-e. inasmuch as tin' interested inaifistrato
appearc(l to have joined in diseussiui;' the matter wit h t he ol her
maii'ist rates, althouii'h there was a majority in favor of the Judy;-
ment, without re(d<oninii; ins vote, and althoui;h he withdn'W
licfore the other maijistrates rendereil their decision; and the
courl would not eiiier into a discus>ion as to the e.xteut of tlu-
ilitlueue ' e.\er<'ised iiy t he intel'este(| party. (.J)
I'lven where an interested luaii'istrate had decided (/(/(j/nsMus own
interest it was held, nevertheless, that in cases where tlu-y are
directly or indirectly interested. maij;ist ratesshonid not intertei'i'.( t)
In another case three ma.i^ist I'ates. who were inlcresteil in tin'
matter at issue, joined eii^ht otiu'r nia.i^ist rates in the proceedin<;s
in a cast' taki'n under an Ael wiiicdi took away, in e.xpi'ess ti-rms.
(1) Anon., I Sulk. :!!•(! ; H. v. Yarlpole, 4 T. R. 71 ; K. v. Gt. Yarmouth, tl
B. & C, G46 ; K. v. Risliton, 1 Q. B. 47!) (w).
(2) U. V. Suffolk, ,1. J., I'l L. J. M. V. 1()9; 18 (l B. 410. And see R. v.
Hereford, J. .1., •_' D. &. L. 500; and R. v. O'Grady, 7 Cox C. C. 247.
(3) R. V. Hertfordsliire. J. J., 6 Q. B 75;1; 14 L. ,i. M. ('. 7"..
(4) R. V. Gudridge, 5 B. i^c C. 459.
INTKKKST. IIIAS. nil I' \ 1111 \ I. ITV.
27
ill.' ri:;'lil Dit'erti'iruri. I'imhi an ii|»|«li<'iili'iii l.riiiii' iiiiidr tnr;i \\v\l
,,\' I'.rti'iniri \\ was rcsisti'il. llu'rcrnrc. "u ilic irrniiinl^ l.lliat lln-
wi-il ll^(•c/*^■or(^r^■ \viis'c.\|iri'>sly liiUi'ii away lpy llic Ad. aml.li. Iliat
lllc lircsclirc nl' tlic llllTf illhTi'sU'il Justices iliil lii>l allfi't llic
.Iccisimi. as llic result woiiM liave lieeii the same had they l)eeii
al.selll. |{llt l-nni Deliliiail. ('..I., said. •The ehlll-e wliich laUes
a\\a\- I lie certiorari (h)es not iireciiuh' <>iir exereisiiiu; a sii|ieriiiteiid
.•iH-e (i\cr liie pvueeediiiu-s so I'ar as tn see Jiisjiee executed, .\iiil
liere 1 am (dearlv nf >i|iiniiiii liiat justice has iml heeii eNcciited. It
i- clear liial. dm tlie sei'dlid day. lliree man'ist rates who were inter-
ested took a |iarl in tiie ijecisioii. It is eiioiiii'li to siiow tliat this
decision was joliowed ly an order; and I will not eni|iiire wliat
the imi'ticuhir (|uestion was. nor liow llie majority was made up.
nor wlial the resnll would lia\e lieeii it' the inlerested imiiiist rates
iiad retire(|. The court was im|iro|ierly con^liiuled. and that
rendered the decision invalid." (I)
It has heeii iield that where a iimirislrate siuino' on a ca-e was
called as a witness, this did not dis(|ualiiy him iVom t'lirt her actiuii'
in the case. {'!) .\nd a mau'istrale is not di.s(|iialitie(l IVom sittiiii;'
in a ease hecaiis' he has heeii suli|i(en!ied and i-- lo he called as a
witness at iIk- hearini;'. (."!)
Any pi'cuniary interest, howi-ver siii^^lit. and even allliouu'li it
may In' indirect, will as a rule dis(|iiality a inai,'ist rate from lakiiiii:
jiarl in tiie <le(isi(ni of the case. Thus, where a deleiidiiiit was
convicted ot' a hreatdi of a miiiiiciiial hy-law. in haxiiii:; made an
auction sale without license, ami two of the convicliny' Justices,
who were licensed auctioneers. p('rsiste(l in sittinj.^- after heini;
oliiecled to as iiv'iiii;'. on that aciiuinl. interested, it was held that
they were dis(|iiaiified ; and the coii\ietion was. on that y'roiiiid.
i|ua^hei| witli costs a li'ai list tlu'in. (1)
'I'he interest, in onler lo he a dis((ualifyiiiy one. need not he a
pecuniary one. hut. if not peciiiiiarv, it must he siihsiantial. The
mere poasihiliti/ (d' hias in favor of one of the parties (h)es not ij)io
(1) H. V. Cheltenham Commrs., 1 Ad. it K. (N. S.) 4(i7; 10 L. J. M. C. 9!».
CJ) R. V. Spn.nle, 14 Out. 1{. 875.
(H) H. v. Farrant, L'd q. I). I). 5S. See aho R. v. Tooke, ".I W. R. 753.
(4) K. V. Clmpuian, 1 Out. 1!. ."82.
2S I'HACTICAl, (il IllK, TO MAOIS'l'UATKS.
f-icto iwo]!] llu' Justice's (Iccisiou. In oi'dci' to liaxc tliat cll'cct tlu^
bias mii'^t licsliowii at least to Ke real ; and it' a iiiai;'ist rate liassiicli
a siilisiantial interest — whether pecuniary or not — as to nial<e it
liUeiy t'oi' liiui to luivi' a rt'al liias in l!u' matter, he slH)uhl not onlv
taUc no ]iart iu tlu' (h'cision whicli would render it void, hut sluuild
entirely withdraw diirin;;' the whoU-ease. ( 1 ) Where, for instance,
a jusiiie was a nu'Uilter of a di\isi<Mi of ilie Son> ot' 'l'eni|(ei'auee
whicli carried on a |)roseculion for selling' li(|Uor. he was iiehl in-
coiu)ieli'nt to try the case, and a eonxiction ohtained hefore him
was held 1)H(1. (2) And. where, at a vest i-y meeliui;- held to con-
sider the ohst ruction of a hii;'hway. the re>olntion. direeiiui;' that
the otleuder he called u]iou to remove tlu' (dist ruction, was the
r.'snlt td' a nu)lion nuide hy a justice of the peace who afterwards
sat. and. witli aiH>tlu'r justice, adjudicated upon the hearinn- of a
case taken ay'aiust the olfender for lunini;' deposited the ohstiaic-
tiou and tor having' failed to remo\'e it after heiuii- notitii'd to do
so. it was hehl that tlie justice wiio had moved the rt'solution was
(lisqualitied from adjiKlieatiuii' upon the case, hecaus;' the fact of
his haviiiii' moved t he resolution afforded u'round for a reasonahle
sus]iicion of huis oil his part, althonnh there iiiii;ht not ha\'e heeii
any liias in fact, (yi)
111 ])ursuaiice of a resolution, jiassed hy tin- town council of W.,
to take steps to remove a nuisance, a summons was issued aii'aiust
the owner «d' t he premises on wlii(di the nuisance existed, and at
the lieariiig an order was made for the ahateiiieiit of the nuisance.
Two ot' tiie justiei's who sat in tlie case wi-ri- iiiemhers of the town
council when the rt'solutioii was passed ; and it .was held that they
iiad siudi an intert'st as niii;'lit n'ive tlu'iii a Mas in the matti'r. and
that theyouii-ht not, to liavt' sat as justices upon t he heariiiii,' of I he
suniUKUis. (4)
Where a uumlier of persons were associated tou'etherto aid iui'u-
foveinuMlie Canada Temperance Act, audoueof tliem. X.. with money
(1) R. V. Myers, L.R., 1 Q.B.D., 173; 34 L.T.N.S. 1'47 : R. v. Hand, 35 L. J.
M.C. 157; L.R.I Q.B. 230.
(2) R. V. Simiiioiis, 1 Pugs. loO.
(3) R. V. Gaisford, L.R., 1 (l-B., :W1.
(4) R. V. Milledue, L.R., 4 (i.B.D. 332.
INTKHKST. litAS. (lit I'AUTrAMTV.
29
lnnii>lic(l li\- jiiiiitlicr lit' tlicm. purclKiscil li(|uor in i)i-(1»t Id iiiaiii-
liiiii a pfdsi'cution, ami liu' iiii'oriiial ion was laid at llic i'i'((ut'st of
(iliici- iiu'iiilior?* of llu' association wlio fnrnislicil nioncy for carry-
iiiH" on liu' [n'oi-i'dlinii-s. ami <in the cviilcnci- of X.. who was a
cnnsin of llif justice who iricil i he case, tlie detendant was con-
victed, it was held that the justice was not inconi]HMeul to try the
case. ( 1 )
Where, duriuii; the heariui;' of an appeal from a refusal to u'rant
a license, one of the justices who haii I'etused the license was pi'cs-
ent on the liencii. and conversed with some of tiie ina<i:istrates who
were lieariuii' the a])iieal. on some nnitler unconnected witii the
a]ppeal. it was hehl that. hciuLC ju'cscut. he formed part of the
coui't. and that. alllioui;-li in reality he did not act in the heariui;
or deteriniuatiou id' the apjieal. the order of the Sessions was
invalid. (2)
.\l the sumuniry trial of a d(d'eudant for an otfence aii-ainst the
Liipior Ijceuse .\ct. the hench at whicdi the inau'isi rates sat con-
sisted of a desk on a rais.'d jilat foi'm. at t he end of i he court i-o(uii,
and on this platform, some four fe.'t \'v(i\\\ the desk, tlu'i-e was a
chair for the use of tin- constahle, hnrin<i' the trial a liecnst' com-
missioner, who was also a justice of the |ieace. went from tlie
counsers tahU'. where he had heen sitting, and sat in the cou-
stahle's chair on the ]datform. There was no I'vidence that lie in
any way improperly inlei'fered in the triid : and it was held that
i under the circumstances he could not he dei'mcd to ha\e heen sit-
ting;- (HI the hem-h and taking' part in the trial. (I!)
Where ])rost'cutions for otfences ay'ainst \\\i' Canada Temperance
lyl('M\ei'(.' taken hefore nniii'ist rates who were notoriously •■ thoronyh-
jgoiiig Scott Act men. " it was alle^'cd that these man'ist rates had
Baiil tluit in no case (f conviction wotdil they inflict a less line t inm
J.ilf and that one of tliem was. moreover, a memln'r of a local com-
linittee for takiiii!; jirosecntions under the Act; hut it transiiiiod
that he had. hefore llu' .\ct came into oju'ration in the c(Mintv
resiii'ueil fi'iun the commiltee: and i( was held hv the court that
there was no disipialifyinn' interest In ihe may;ist rates, nor any
(1) Ex parte Cirieves, 29 S.C". N.B. 543.
•2) K. V. Snrrpy, .1. J., 1 Jnr. N. S. li;!8 ; 21 L. J. M. C, 1<)5.
(3) R. v. Southwick, 12 ('. L, T. 173.
30 I'UACTICAI, (illDK Til MAli I STKATKS.
rciil iM' suli>laiili:il liias all rilmtalilf ti> lliciii. nor any reason wliy
I licy slioiiM not law't'ully adjuilicatc in the case. (1)
'J'lu- tiU'l tliat a jiistiee of tlie jK'ace is a i'aU'|iayer ]ieciiniariiy
intei'esteil in tiie I'esull (j|' a ease may <lis(|uality iiiin from takiiiii'
|iurl ill liie lieai'iiii;' of it. (2) Sometimes, liowever. a Justice ot t lie
peace is e.\|n'cssly em|iowereii to act . ail iioiiy'li inlei'csted to some
extent in llie I'esult of a decision. Foi' instance, tiie Imperial
statute. Id (ieo. II.. c. IS. sec. 1. pvoxiiU's tliat justices of tlie peace
may enforce tlic law as to rates made in any parisli witiiin tiieir
jurisdiction, altiiouyh tiiey tlieinsei\-es are cliaryealije to rates made
in the sami' parisli ; and in a casi' inxolviui;- a lull considi'ration of
the )n'ovisions of that statute and id' the Union Assesaiiient Commit-
tee Amnuimtnt Art. ]S(i4. (."i) it was ri'cciitiy held (hccemlier. 1S!I;{).
liy the I'lnulish Court of A)ipeais. that, under tlu-se Acts, a justice
of the peaci- is not dis(pialilie(l frimi actiiiii'. at Special Sessnins. in
the determination (d'a ratiiii;' ap]ieal l>y reason of his heiii<;- a rate-
payer in the parish in whiih the rate appealed ayaiiist was
made. (4)
In like manni'r llu' ]ioli(H' iiiaii'ist rate of Si.,Iohn. New l>rui
wick, is not dis(|iuditii'd from trying' offenci's aii'ainst the Li(|iio
license Act hy reason (d' liis hciiiu' ;i ratepayi'r. there iK-iiiii,- a local
statute prexentiiiii' such dis(|nalilicat ion. (5)
l>elatiotishi|i may he a i;'round id' dis(|ualilication.
Thus, in a case of assault, where t he complainant was the daiiii'li
lei'id' the con\ictinn' mai;'isl rait', tlii' conviction was (|uashcd. ((1'
\\\i\. in a prosecution, fo; cruelty to aninnils. taken ay;ainst the
father of the (diildreii who ,\cie alle^'cd to ha\e comiidtled the
acts complained of. the justice was the father of the eoni]ilaiiiani ^
and. on tiiis i>-round. the eon\ictioii was i|uaslu'd. (l)
(1) K. V. Klemp, 10 Ont. R. 14;). ii,c nhn R. v. Eli., In 0\\\. R. 7l'7.
(2) R. V. GaiNford, L. R., 1 Q. B. 381.
[Z] L'T and -'S Vict. (Imp.), c ".U.
(4) T^.c ;)aWc Workiii^tton Overseera, 5) R. (Feb. 1894). Fullnuivg, R. \.
Boliiifibroke, 5 R. 5'M; 02 L. .1. M. C. ISO; Oi) L. T. 717; imil R. v. Esses.
J..I..ri M. its. r.i.s.
(5) Ex parte Driscoll, 27 S. C. N. B. 210.
((i) R. V. Lantrford, L") Ont. R. 52.
(7) R. V. Holtnan, ;i Riiss. & C'lies. 375.
is-
r
INTKKKSr. )!1AS. (I U I'A KTI Al, I T V
31
A mai;is(riitc was lu-ld lo Ik' (lis(nialili*'<l in a casi' in wliicli tin-
(li'lrmlant. Iicrscit'. was tiic widow nt' tlu- niaii;isl rate's (li'ci"ast'<l
sou. (1 ) liiit wiii'i'c (111' iji'lrnilant was the husfiand of llic widow
of tiic nian'istrati's (U'coasi'd son. it was licld tiiat t lie luaijist rati'
wa> not dis(nialiH('d. (2)
A iiiaiiiM rate wliosi' n'randfatlu'r is a iirothcrof tlu' drfcndant's
'^wn\ n'l'aiidniotlu'r is inconiiR'ti'nt under the Canada Temj erance
Art. (.',)
Wiicrr. on appeal from eouxiriions liy four jiisiiees in se\eral
cases of assault arising' out of tiie same nuitter, it ap])ear,'d tlutt
oneof tlu' four justices was a tirsi cousin ot' tiu' principal rcspiuid-
cnt.ami that llie other ri'si)on(K'nts. tlioundi not rciated to any of
tile justiees. Were, at the time of the allcn'cd assault. scr\'ants of
itiic i)rincipal rcspondent.it was luld that no distiuction could he
liiuulc hetween the case ot the principal rcs|)undent and the cases
lof liis sei'vants. and that all the convictions must Ik* set aside. (4)
Where it appeared that at the time of a trial hcfori' a I'arish
iCourt ( 'ommis>iouer. the plaintiff in the case was a servant ol' tlu-
connnissioner. it was liehl. upon a rt'view of tlu' conuuissiouer s
deci>ion. that it was improper for liim to act wInU' under such
relatious with the jilaintilf; ami a nou-suit was ordered. (."))
I'nder the Trades Union Act. a master and tiu' father, sou or
lu'otlier of a masti'r in the particulai' t rade or husiiie.ss. iu or in con-
nection witii wiiieh any olfeiiee under tlu' Act is cluirL^'ed to iuivc
lieen coiundtted. arc respectively disinuditied from actiui;,' as a jus-
lice of llu' peace, or as a memhcr of any court heariny; an\' aiM'cal
undei' the Act. ((])
There is a similar provision coutained in the Act relatiuu' to
threats and intimidations. ( 7)
In ()iitario no police maiiMstrate and no partner or clerk of an\'
(1) E.r parte W-.MM-e, L'7 S. C. N. B. 174.
(2) Ex part,' WalliU'o, '.'(i S. C. N. B. 593.
(3) A'.r parlt Jonos, '11 hi. C. N. B. r)o2.
(4) Caiupbell v. McDoniikl, 1 W E. 1. 423.
(o) Gallant v. Youiik, 11 C. 1.. T. 217, 218.
(tn H.S.C.c. 131,8. 21.
(7) U. y. C, c. 17;i, sec. 12,8.8.5.
I'KACTICAI, (M IliK I'd .MAdlSTHATES.
|iiilicf miiii'isl rate can acl as an'cnl. sdlicitor or counsel in any case.
iiialU'v. prnsi'ditini: oi' |iv(icc('(linii- of a crniiinal nature; nor can
tsiU'h ]>()lici' niaii'istrate. partner kv eiei'l< ait as afort'said in any
case -wliicli liy law may \iv investiii'ated or tried lietuve a nnin'ist I'ato
or justice of the peace. ( I )
'I'iie |iriipcr course to lie pursni'd. in i)Vi\vv \i) preoent a nni^istrale
tVoiu actinn' in and adjndicatiui;' u|M)n a case in wliicli he is iuter-
esii'd, is to apply lor a writ id' projiiliition. (2) Bui. when tliis
course liy proliiliition is not a<lo|iled. and the intevesti'd magis-
trate ii'oi's on with and adjudicates upon ihe case, llie ohjt'ction of
interest may he used as a i;round n\' error t<i attack and set aside
his jndii'nu'nt. (i!)
The uiijection that a ma,u;isti'ate or a justice is di.stiualitied. hy
inlevr.M. from sittini;; in and adjudicaliiin' uj)Oii a case may he
waived : .'ind. therefore, tlu' ohji-ction siiould Ite raised In-fore tiie
e\idi'nce is taUen : for if a jiarty. knouiui;' of tlu' inli'rest. <lo not
raise the ohjeotion, hut i;<) on with tli/ casi-. and take the chance
of a (h'cision in Ins fa\(n'. there will lie a waivi'r ol'the olijectioii of
interest, and the jn'oceedings will not he void on the yrouiid of
(sutdi interest. (4)
lint the ohjection is not waived liy reason of its not lieinti; lalcen
at the lieariny. unless the jiai'ty entitU'd to take the ohjection was
then aware of the judu'e's interest. ( ."))
€>iinI«'i* **V 1Ii«' Mil miliary .liiriMilioiiiiii itt tTiiK-
ti<'<'H. — Whenewr jiniperty or title i> in ([uestion oi' there is a
hi'ma fide claim of Ici^'al riyht to do tin' act complained of. justices
are ousted of their jurisdiction to hear and determine in a summary
manner, and their hands art' lii'd from interfei'iui;'. althouii;h the
(1) R. S. O, r. 72, sec. 27.
(2) Hutton V. Fow ke, 1 Keb. 64S ; Anon., 1 Salk. 330.
(3) l'(r Baron I'arke, in Dimes v. Urand Junt'tion ('anal Co., 3 H. of L.
Ca?. 7.59-785.
(4) R. V. ClieUenham Comnirs. 10 L. .1. M. C. 911; R. v. Riahton, 1 Q. !!•
47il; R. V. Allen, nil L. .1. IM. C. !i8 ; Wakefield v. West Ridlntt k Grimsby
Ry., 3") 1 . J. M. C. 09; R. v. Stone, L'3 Ont. R. 4G ; Turner & anor. v. Post-
master-Gen., 34 L. J. M. ('. 10; Ex parte Barbere, 12 C. L. T. 449.
(5) R. V. Recorder of Cambridfi;e, s El. ct Bl. 037; 27 L. J. M. C. 160; K.
V. Warwickshire Sheritf, 24 L. T. 211.
Ml STKH <>K Si;M.\rARV .11 KISDrCTION.
33
\\\vl> lie silcli ;l^ lIli'V t it IliTwisc liavr illlt lliil'it V to tilUc ru^ui/.aiict)
of. (1) ■ • '
Tills jii'liuliilf is not f'ouiiilcd iii)on any k-ijlslativo provHioh. i.ut
is a (|ualiticatioii wliicli the law itself raises in iho execution of
penal statutes, and it is always implied in tlieii- consti'uetion. (2)
It is sonieliines. also, the sulijeet of special statutory cnaclnient.
{•'(U' instance, tlu' ('ode provides that no Justice shall hi-ar and
detennine luiy case of assault or liattery in which any c[uestioii
arises as to tiie title to any lands, hereditaments, or any interost
therein or accruinii' iherolVom. or a- to any hatdcruptcy or insol-
! vet icy. or any execution under t he process of an_\" court of justice, f;!)
11* The jurisdiction of a justiei' is not to he ousted, however. Ip\- an\'
ii\>-n- /ircJence o\' tith-. (4) or even hy a buna fide claim of a li^dit
wlii(di cannot, in law. exist. (5)
There niu>t he some color for the claim (d' title, ((i) And it is
for t he justices to determine, from ;dl the facts and circumstanci's
^'Hi.of the case, whether a claim of I'iii'ht. when juit forward, is madi^
bona fuk and with a showof i-i'a.son. (7) Jf they determine that it i.s
not so made.it is their iluty to pi-oceed witii and decide the case, (8)
Still, if t he grounds u|!oii wliicii Justices decide an-ainst the fairness
and rt'asonahleness of a claim of rindit he iiisutticient. the court will
review their iletermiuation and ovi'rrule it. (!l)
If the justices I.elieve that there is a 6o/(a _/7Vfi question of title
they have no jurisdiction. (10) And, even when the juatti'r is
(1) Paley, 4 E.l. 41; R. v. Cridland, 7 E. & B. Ho?,\ '21 L. J. M. C. 28 ;
iinjrstoik v. Raynor, -Ifi J. P. 240; Watkins v. Major, 44 ].. J. M. ( . 164;
Denny v. Tiiwaiie.s. 4(i L. J. M. C. 141.
(2) l'alov,4 !•:,]. 117.
(.'!) (ode, Art. 842, sub sec. .S, po.s«.
(4 I H. v. Wrott»8ley, 1 B. & Aid. 048 ; R. v. Speed, 1 Ld. Raym. r..s3 ; R. v.
Biirnahy 2 l.d. Hiiyni. 9ii0; Kinnersley v. Orpe., Doug. 41)9.
(•">) Simpson v. Wells, 41 L. .1. M. C. ln5 ; llargreaves v. Diddams, 44 L. .1.
M. C. 1 7.S.
{()) Roes V. Davies, 8 C. B. N. s. ,-,0.
(7) K. v. Dodson, !) Ad. & El. 704.
(8) R. V. Mussett, 26 L. T- N. S. 427.
(i>) R. V. Dodson, »vpra; Paley v. Birch, 1(1 L. T. N. S. 410.
(10) I.egg V. Pardee, !» ('. B. N. S. 28'J.
34 I'HACTICAI, (il nil', I'll MAiilSTItATKS.
<l(nilit fill, il Will lie rn<)U<j;li In stop tlicir |)rocci'(l i luff's ; itiiil tlu-y
viiniiot i>,i\(' llicmschi's jurisdictiiiii liy a false (Iccisioii. (1)
rpoii an iiitorinatidii I'nr •• iiiilawt'iilly and williilly" lishini!: in a
nun-navii^'aiilc river, tlie |ii'i\iile pniperty dC anollier. a claim of
i'iy;ht, liy I he defendant as one of tlie piililie. to tisli in tiie river
was lield not to oust tlie jnstiei's id' inrisdietinn. as siudi a I'iii'lil
eonid not [lossiMy lie aeiiuired. and tlu' bona fide lielief of t lie
dcdeiidant that he had tlie riiiht to lisli \' unld not |ire\ent his
lieiiiii' coiiNicted. a n'nilty mind not lieini;- an essential ingredient to
constitute t he otVeuee. (2)
NVhere. in an action of trespass t<> land, tried hefore a justice of
the peace, the defendant set u|i a title, and otlered a deed in
evidence, and the plaintitV also jirodnced evidence of deeds au<l of a
lilh' arising' li\' csto|>pe|. on w lii( h t he just i<-es undei'ioid< to decide.
it was held tiiat the title was bi'ma fide in (|nestion. and that the
justice's jui'isdict ion was ousted. (."I)
Where in a prosecution for an injury, amountiiiii' to twi-uty-five
cents, doll" to o-rowinn- t rees. the defendant si-i up and proved a binui
fidi claim of title, the ( 'ourt held that t lie jurisdiction of I he justice
W;is ousted. (4) And wiiere a defendant was convicted under a
statute which |)rovided that iiothiiiy; therein contained slioidd
e.xti'iid to any case in \\lii(di the jiai'tx' acted under a fair and
reasonalilc supposition I hat he had a ri^dit to ilo i he act complained
of. and it appeared liy the e\ideiice adduced hcfoiH' the mau'lst rate.
that there was a disjiute lietwcen the parties as to the ownership,
it was held that a title to land came in (|tiestion. and that the
defendant was imiirojierly convicted. e\cii thonydi the mauisti'ate
did not helieve that the defendant had a title. (5)
I'poii a idiai'ii'c of t resjiass upon a lishery. the defendants, who
claimed a i'ii;lil to tisli tiu'rein. jiroduced evidt-'uci- of lon^,' usi'i- and
ottered security tor costs in case the comjilaiuant would institute a
(1) R. v. Nuunely, E. B. & E. 852; '-'7 L. J. M. C. 2(J0; K. v. SlimiisoD, :\2
L. .]. M. C. lW.
(L') Hudson V. :Macrao, ;!:^ L. J. M. C. C") ; 9 L. T. N. S. GTS.
(:j) R. V. Harshiiiiui, 1 Pups. [U6.
(4) R. v. O'Brien, 5 Q. I-. R. 1(11.
(5) R. V. J)avidson, ^5 U. C. (l B. 91.
IIISTKK OK Sr.M.MAHY .llHISlUCTIn.V,
35
civil uclinii ; and it was iicld tlml lliis was siicli a bona fide claiiii nf
title tlial llir jiii'iMliclioii cifliic inan-isl I'atc:- was oiisd-d. (1)
Wlicii. ill order to constitute an otlcnce a mens rea oi- crimiiial
intention must lie shown, an lioiiest claim of I'iudit will avoid a
Mimmarv conviction ; Imt. wliere tlic aiisencc of a cfiminal intent
is not iiecessai'ily a defence, the piivty settinii,' iij) the claim of rin'lit
must show soiiu' eTound for its assertion, and if he fails to do so
he is lialile to he convicted of the otVt'iice (diaru'cil. (2)
S. owned a lot of land in X. in iStii; he sold the west lialf of it
to the comiilainant. reservinii;. howe\er. a strip of t iiirty feet along
tlie mu'tli line tiicreof. as a road, for himself and successors in title.
to and from the east half of t he lot. S. put uji a nale at tlic west
limit of the land, when' it met tiu' hiiidiwav. which i;-ate remained
there from iSlKi until it was removed hy tlie ih'feiidants. who wi'i'c
the siu'cessors in title to S. The defemlunts vi'inoved the u'ate in
(piestion as an olistrnction : and they were convicted on a (diary'e
|f of lia\'inn' nnlawfiiUy and maliciously hrokeii and destroyed tiio
yate as the iiroperty of the com|ilainant . Held, that in claiminii' a
riii'lil to remove the i^'ate the did'endants were acting' in ^'ood faith
and under a fair and ivasonahle supposition of riii'iit todotiie act
complaiiu'd id': and tlie conviction was tiierefore ipiashed. Held,
also, that the (piestion cd' fair and reasonalile supposition of riyht
to do the act (■om|)lained ot was a fact to he determined hy the
justice, and his decisictn upon a matt(.'r of fact would not. as a nth',
he reviewed ; hut t his rule did not iijiply where, as here, all t he facts
showed that the matter or (diar^H' itself was one in wliiidi smdi
r.'ascmalile supjiosition existed ; that is. where the case and the
e\-iilenee were all one way. and in favor of the defendants. (."J)
OiK'Ovide l.acoiirsiere. on lieiiiy; (diari;'ed with reei'iviiiy- a hed-
stead. k'uowiiii;' it to he stolen, claimed to he tlic owner of it. hut.
hciiiy summarily tried and convietiMl. he sii;Mied. in consideration of
not lieiiiii' sent to li'aol. a written aiii'>'*'nieiit providiiiii- for his dis-
ciiarn'e from conviction oii restorim;- the iK'dstead. and on pavinji-
the costs and S.")ll daiiiaycs to the jirosecutor within Hfteeii days.
(1) li. v. Magistrate, Bally Castle, 9 L T. R., N. S. 88,
(:.') Watkin.-! v. Major, L. K. lli C. P. (i(i2 ; .'53 L. T. l\., N. S, .3.")2.
(.'!) i;. V. .McDonaki, VI O. \l. 381.
36 rit\( TICAl. Ill IDK T.I MA(i|STI!ATKS.
lu' iiUii anTcciiin' llial tlu'i'c sliniilil lu' im jiplK'iil i>r |ir(i(ri'(liii<;-.s
ai^iiinst I lie ciHiNicliiiii. I'|i(iii itn ii|i|ilicaiii>ii t<>r ii rcrttorari. llic
I'oiirl lo()l<i'i! l<i t lie cxiik'iicc In sec if it criiniiial hIIcik'c whs coni-
luiltcd. and it was licld thai tlicrc was a Iudki ji'/e claiiu ol' title
wiiicli sliiiiilil iiavc inis!i'(l liic justices' Jiirisdict inn, thai the writ-
ten iijureeineiil was wiilionl \aliil consideratinn and entirely ille-
iral and voi<l. and tluit llie action ni' tlie justices was an almse of
the |)i'ocess |irovided liy tlie ei'iniinal law. (1)
'I'lie acts of a jiersou's servants under his H-ui<lance in assert in li; a
riifiit would uoi I'cnder tlicni liaMe to conviction, if the master
himself lie not so liahle. (2)
.Mthoiiifh. as a ride, justices iiave no power to eu(|nire into a
ease iiivolviim; u ([uestion of iitle to real |)ro|K'rty. yet when the
title is itself the ([Uestion wldtdi thiy havi' to tlecide. or of thi' very
essi'iiee of the en(|uiry lud'ori' them, their jurisdiction remains. (,'{)
.\nd the juris(|i(ti(Mi of justices is not ousted in cases in whicdi
the\' lia\e ))ower l>y statute to <lelermini' the rin'lit to which the
(daim is made. (4)
l*4»tv('i* to .llaiiiiaiiii IIimIoi* aiii«t to 4'<»iiiiiiif Vur
€'4»iil('iii|»l. — 'I'here are some few ca.se.s — tornduii'. as it wei'e. an
exct'jition to the ifeiK'i'al ruK' — in whiidi. from neci'ssiiy and from
the special nature of the occasion, a jiavty altlmiiii'li interested is
allowed to aiijudicate. it lieini;' considered a less (■\ii that he should
do so than that there shoidd he an entire failure of Justiei'. '^herl^
are cases in whicdi cii'ciimstances of su(di a iduiractt,'!' arise that* it
liecomes the \infort uiiate duty of the court to act as hoth jtarty ;ind
judye. (5) j-'or instance, justices ot' t he jieace. acting' judicially in
au_\' i-ase in whicdi they have the riydit to tine and imprison, are
Jiidii'cs of rccorcl. with jiower to maintain order, and to orally ami
(1) K. V. Lacoiirsiere, 12 C L. T., 3;!4. 4//. in appeal, S \' an. L. U. :]02.
(!') li. V. Thexion. '.'S .1. P. 323; J'.irnie v. Marshall, 35 L. T. 373; 41 .I.P. 22
(3) U. V. Llaiitillo (I'.recknockshire), J. ,1.. 15 1.. T. N. S. 277; 31 J. P. 7 ;
William.s v. Adams, 31 ].. J. !\I. C. lO'.i.
(4) K. V. Young, 52 L. .1. M. ( '. 55-
(5) Per Lord Denman, C. .1., Wilson's Case, 7Q. P.. lOlo; Dime's Case, 12
Beav. (i3; 14 g. P.. 554.
.MAI .VIA I MM I nItliKH. 37
'Aitliniil wiiiTiiiil (iiiniiiil pciv-niis to prison for conlciniil (■oinmiltcd
ill tilc liicc of 1 lie couiM. ( 1)
I'mlcf .\rti<'l(' oS.") of llu'('oiir. wiiicli liiis rt'fcrciicc |o lln' in'c-
liiiiiiiiif\' (•.Xiiiiiiuiitioii of persons cliiiryi'il \vitli indicliiipli' otlfiiccs.
llic in\u'stin'iilin,n' nnii^ist rule Inis tlic power \<y Marriint to eoniinit
for eonleinpt any )ierson. wiio liaviiii;' iijipeiireil niider <iilipo'iia or
iieiiii;- otiierwise present, refnses to ije sworn or to answer sneii
iiuestions as are pnt to him. or ri'fnses to pnxlnee any (loeiiineiits
oi' to siii,-n liis (K'position. And Artiele ilOS (d' tlie Code expressly
provides that ever\' jndii'e of sessions of t lie jieaee. (diairiiiaii id' the
eonri of (leiieral Sessions of the ])eaee. ]>oiiee man'ist rate, distriet
nnii^'ist rate or slijiendiary nia^'istrate sliall liave sncdi and liie iii<e
powers and autliority to presi'i've oivU'r in tlie said coni'ts diiriiii;"
I tlie hoi<liiii;' there(d' ami liy the iiUe ways and means a-^ now hy
law are or may he e.\ereised and used in like eases and for the like
purposes iiy any court in Canada, or hy the indices thereof durini;'
the sitting's thereof.
.\ecordiny. however, to a recent Ontario decision, (conlirini'd in
appeal) the powers n'ivi'i I hy ,\rticie '.Ids of the Code are not exer-
eisahie iiy a sin^-h' justici' of tlu^ peace, in this case a lawyer
■while acting' as counsel for the <lefeiice in a suimnary trial 1k'-
fore a Justice of the peace was arri'sicd hy order (d' tin- Jiistict'
and. without any formal adjudication or warrant, excluded from
the court and imiirisoned. for an allcii'i-d conti'iii|il and disoj'-
(lerly conduct hefore the court ; and. in an action foi- assault and
false arrest and imprisonment an'ainst the Justice of tlu' peace and
a.ijfainst the conslahle \\ho made tlii' arrest upon the Justice's order.
it was held that the Justice' had no jiowt'i" to summarily punish for
a contem|il committed in the fact' of the court, at any ratV not
Avithout a ftu'inal adjudication an<l a warrant settiiii;' out the con-
tempt in (piestion ; hut it was held that a Justice has the rin'ht to
B remove iicr.sons who hy ihi'ir disoi-dei-ly conduct oiislruct or inter-
i fere with the hiisine.ss of the court ; and it was also held that the
' propi-r exercise of the priviley;e (d' counsel in examiuiiiii; witnesses
(hK's not constitute an interruption of the proci'i'diiiii's so as to
warrant his excdusion : hut. that, if tiu' justice in this case had
(1) .Armstrong v. ^h (•'affrey, 1 Ilannay, 517. And .ve U. v. Siott, 2 U. C
L. .J.N. S. 82:).
',\8 I'llACTICAI. Ill IDK T." M A(l I STH ATKS,
issued Ills wiiiTiiiit I'lir llic ((111111111 Micnt <if llic |iliiiiilil1' tor tlic
ulk'lii'il i()iil('lii|i| , illid liiid stilled lliereill sllrtieieiit i^roilllds tor
siic'li edimiiiliiieiit. llie e(Hirt would not liiivi' revii'wed t lie facts
tliei-eiii iilK'!j:e(l ; liiit tliiit iis lliere was no warrant oC (•oniniit inenl,
tlie ju-liee Wiis lioiind to estalilish sueli fuels as would iiistifv the
eolll'se lie li;ld lilkell. (!)
Tliere seems to lie no doiilil lliiit justices, while ;icliiii;- in t lie
))evtoniiance of their judicial duties, lia\(' the jiowit id |>ro|ecl
themselves from shinder and almse. And if a |>erson ( hai'ii'es a
iiia^i>t rate to his face or in his |iresi'nce with a<Miiiii' corru|itiy or
|iartially. the iiKiL;'istrale may. if this lie said while he is acting'
judicially, fort iiwit h commit the oll'eiider, jtrovided su(di conmiit-
nieiit he made out in writing- and he duly sii;-iied. (2) It iinist.
however, he a commitment tor a time certain: and. therefore, a
cominiimeiit until the clef enilant he discharged hy due course of law \s
had. (;!)
A niai:;istrate thus ahnsed and iiisiilteil while actiiiy: Jndieially
may insti-ad of exercisinn-. himself, the jiower of committ.il for
eontem|it. |iroeeed. if he thinks til. in a U'ss sunnnary maniK-r iiy
way of indiclmeiil an'ainst the oilender. (4)
It is said tiial the jiroper coarse is. first, to ohlin'e the oilender to
tind sureties for his i^-ood li(dia\iour. and in default of his doiiiij; so
tlu'ii to commit him until the lu'xt ([iiarler sessions, unless he
sooner tind sin h suri'tics and also enter into his own recoii'iiisanco
for his n'ood hidiavior. (5) the result of such a course heinii' t"
ohiiye him to answer any indict meiit \\hi(di may he prtderreil
aii'ainsi him for the coiitem|il.
It seems ihat the power of committal for sticdi contemiit docs
not exist wlu'ii the almse or insult is ottered while the justice is
merely actiiii^ ministerially. ((!)
(1) Yonnj; v. Saylor,23 Ont. K. 513. Af. in Appeal. 2(\ .Vpp. Rep. (Ont.'),
1140.
(2) Aslon V. r.laiirave, 1 Str. (ilT.
(:!) i;. V. .lanics, .") B. iSt A. Si»4.
(4) fi. v. (ollyer, 1 Wils., 3:!L'; U. v. Kevel, 1 Str- 420.
(5) H. V. Langley, Ld. Ray., 1030, per Holt, ('. .1.
(()) May hew v. Locke, V Taunt. 63; It. v. Jame.s, mpra.
I.I.MIM.ITV rmt II.I.I'.ciAl, ACTS. 39
Hill M iiiiiii'i>l I'.itc is iii)| willioiil ml COS. if Nl.'iiidfr or iilnisc is
intrinlrii ii|»iii liiiii iil ii tinir w lifii lie is uni acliny Jiidirinlly. lie
iiia\' liji\>' iiii actiiiii I'df siK'li words jis ilic Inw di'cins aclioiiiililc :
or lie may causr llic s|i('al<i'r to he. Ity aiiotlicr jiislici' oi- maifis-
Irah', lioinid oxer for liis ;.;'oiid Ixdiaxjor. (1)
ll scciMs tliat. willi rrii.'ai'd to slmidcroiis words s|ioI<cii of a
Jiisiici' l)(diiiiil liis iiack. lln'V arr iioi iiidiclalik'. Tims, where a
defeiidanl said of a .Midillese.s mau'istrale. I hat he was a scniindrel
and a liai'. and the words wei-e ma<le the sulijeei of an iii<licl iiieiit
jU'eferred aii'ailist the did'endalit. as ha\■in^■ heeli s|)id<t'ii of the
|irosceulor ill his eharaelei' of a Justice and with intent to dcfaine
him in that cajiacity. Lord Kllcnhoroiioh iiiler|ioscd and said that
as the words wtTc not spoken to tiic Justice, they wen- not indicl-
ahie. (2)
The ini|ioriaiice of mainlainini^ |>i'o|pei- respect for and <leconim
lieforc Justices in the I'.xecutioii of t heir duty should render them
careful not to lie t^uilty. ihcinselvcs. of any outraL'c wliiidi nia\- he
the occasion of \ioleiice or aliiise heinif ust'd towards t lien i. W here,
npoii an ap|i!icatioii for an inforinatioii ai;ainsi a nerson for
sirikiny a mayor in tiie execution of his duty, it a|i|iearc<i that
the mayor struck the first Mow. tiic court refused lo liranl tiie
information. (;;) Tiiey should also he careful not to ahiisc their
])»)sition and not to iiiliicl a wroiii,^ ujioii or iiialii'ioiisK |Miiiish a
])arty or witness, hy the use of iiisultiuii,- or ini|iro|ier laii^niaifc.
A Justice who makes u.se of laiii^uaii'c of this idiaracter. without
any legal Jusiiticaiiou. will he liaMe for exemplai''- damai;c, (4)
liiabilil.v of .^iiKiMiralt'^ and .IiinHoivh of Ilic
l»«'a«'«' r«r lll<'K-al A«'<« — .Ma,--ist rates and Jiisti.e- of the
peace who I'Xercise their functions illen-illy uiay render themselves
liahle ill daiiiai;'cs and I'vcii to criminal iiroccedinys.
<'riiiiiiial Uabilil^v.— They are suhject to a criminal infor-
mation or to a iiroseciitioii hy indictment when their acts. , hesides
ll) K. V. Cotton, 8. ('., 2 liernard, :^13: W. Ke.l. i;)3.
('.') i;. V. Weltje, 2 ('ami)b. 142. iiee K. v. Pocock, 2 Str. 1157.
(:i) H. V. Symons. Ciia. Temp. Hardw. 240; (irady's C. P. 2!).
(4i Clissold V. Macliell, 2.-) U. C. Q. J5. SO; 2(j U. C.t^ li. 422.
4(1 I'UAithai. hiihk ■{■!> mauisiiiatks.
Iiciiiu- illciTiil niid iirmlnrtivf of |iriviili' injury, hit ilnm- dislioii-
csllv nr t<)iTii|(lly. nr witli |iiirtiiilily, "f IVnni viii(licti\ •• or n|.-
|ir*'Ksivi' iimtivt's. (1)
Till- iiTnUllil> ll|inll wllicll llic rolll'l ".vill i III crrcri' liV i;Til III i Hi;' 11
criiiiiiKil iiilnriiiiitinii iin' iml ildiiiilc i'IhmilcIi In iiilniil nt iiiiv tixi'il
rule; liiil il iimy lie mi'mI llml. w 1 I'licvci- I lie iinwi-rs of Justices in
tlic ^iiiiiiiuirv fXt'ciilioii ol" |i('iiiii laws iii'f fxcrcisiMl liy liiciii tVom
.•,,i'ni|ii (ir iiiT-niKil iiiniivt's. tiiis iin.clf cif |iinii>liiiiriii will lu-
cxlciiilol. (•_')
CriiniiKil iiilnniiations liavc iicfii -jraiitt-il airaiiist ina,i,'ist rales in
the tolldwiiij,' aiiidii;;- t'ilier ea-es ;— t'nr a «(//'«i i-efiisal t<> perfonii
tlieir (liil\- ; (;!) for (./7o/-^'';n iimlei- ccilor of nllii'e : {[ for ailjiidi-
eatiiii,' ii|ioii a mailer in wiiieli lliey liave a direcl |ie.iniiary
interest ; (."») for grant iuf^. in order lo serve eieetion purposes, a
di-.t ress warrant for poor rales. ai,Miiis| tlie oeeiipiers of a iiouse.
after tile iaiiiliord liad tendered tiie amount to t lie overseer ; ((1)
for refnsiiiii' lieeiist'N to piiliiieaiis wlio. at a iioroiitjii eieetion. liad
voted aifiiinsl llie candidates recomiiieiided iiy tin- magistrates, tlie
maijistrates liaviii^'. iii't'ore llu' election. iiireatene(| to witliiiold
liceiiM's from tliose win) slionld so vole: (7) for refiisine' a lieer
licen-e to an innkeeper merely from a nioiiveof resentment against
liiiii for liaving Joined in an atlidavit made in sujiport of some in-
terest adverse to tiiat (■spoused i.y tiie Justices and llieir friends : (S)
for improjierlv ii'rantiiiir iin ale license to a per.-on to w lioni tiie
<;cneral nieetinu' of matiistrates liail. on tlie ground of mislieliavior.
refused a license ; (!•) and in anotiier ease tlie iua,ni>t rate was. for
a similar ott'eiiee. prosecuted liy indictment. (I(>)
(1) Ej pnrh Fentiman, 2 Ad. iS: Kl. 127; R. v. .Iiickson, 1 T. R. fio:^ ; H. v.
liarron, ". 1!. & Aid. 4;!2 ; R. v. StafJ'ordsliire, J. .1., 1 Ciutt. li. 217.
{'.') Paley, 4 I'.d. 42o.
(3) R. V. Vox, 1 Str. 21 ; R. v. Newton, 1 Str. 413.
(4^ R. V Yon. ctf. 1 (Inde.'s Cr. Pr. \\l,vott: Seealsu R. v. Junes, I Wilg. 7.
(5) R. v. Davis, l.oll't. f,2.
(0) R. v. ( "o/.ens, 2 Done- 42(1.
(7) R. V. Williams, :'> 15nrr. 1:517.
(8) R. V. llanii & Price, :> Rnrr. 1710.
(!)) R. V. Holland it Foster, 1 T. R. ()92. See also R. v. Filewood 2 T.
H. H,").
(10) R. V. Saiusbury, 4 T. R. 451.
< IILMIN.M. I.IAIIII.ITV. 41
It i>< lint lli'fiw^iiry In >lin\\ ii cnl'I'Mlil Inulisr in | lit' nnlinjll'V
•srii-f III' llic wiii'il • (ui'i'iipt." I r t lie illc;,'al jicl of tin- iiiiiiiisi rale
i> ilniii' ri'iiin /)iis«iiin "T ojijiosiliim on liis [tiii'l. lliMl. ininnlini; In
.\sliiir-l. .1. i- ;i- I i'ri'ii|p| ji- if lie artcd tVdin |ii(iiiiiiirv tiiii>i(|i'iii-
rh.ii>. (1)
So. lliiil. wIiiTf ciTtiiiii pcrsniis wci'c (Inly runiniilh'd liy n nni^is
tnilc lor riMirlfcii (l;iy>. nndcr I lie \'iii,n'iinl Ad. (IT ( iru. 2. c .')).
ami w I'lT. liy ni licr nut L;isl fill cs. disclnii'^fcil IVnni cnsidiU' dii ^^JTiny
li;iil In a|p|ii';inil llu'nt'Xl i|M;irlci' s(.^>iiins In |irn>ccnl(' :ni ii|i|M';d.
llwcniii'l luiidf iil»nliut' 11 iMilc I'nr :i criniinid intni-niiition iij^aiiist
tin- lallcr nia<j;itl riili'-. llirir aclinn licini^ cnnsidcr.'d yrnxs mis-
l)i'iia\ inr wliicii cniild nnl iir iMi|iiit('d l<> Micrc inisiakc nr i<;nni'aiici'
*<\' liir law. (:.')
in annlliri' ra>f a rnic nisi was issn('(| a/^idnsl a inairislralf i'i>y
having', in iii> nllicc ny fajiacily as sucli. s|ink('n alMisivcl\- .rf ni Imm'
niajjislraU's. and {'>>\- liavin^ ini|inli'(| In lln- lallcr cmTiiiiiinn in
lin-ir adiiiiiiislralinn n|' jnslicc, (."!)
.\ criminal injnrmalinn was yranicd aj^ainsi jnsiico \i,y niakinij
a false I'cinrn in a inandanms ; (4) luil in a sulisciiufnl case the
iniirt cxin'i'ssi'd a dnul)l wlu-l Iht a;» iiitui-nnitinii slinnld lie yranird
in siwli a case, iinlt'ssilic i-clnrn was cniTniilly and wilt'nll\- lalsr. (5)
An intnrnialinii will not lie ^ranlt'(l 'i^ainsi a nni^iNl rale tnv
(•nnvictinii-. unless. Iiesides setting; InrtJi the nlliei- essential grninid-.
the a|i|ilieanl sweai's in Ids attidavil tlial lie is imioocnt nf tlie
<-liarge aiiainsi liini. ((i)
An iiiini-nuitinn was I'l'tused against a nnigistrale {\<v an a^-aull
cohiniitti'd hy luiii nn an attorney who liad sevi-fal davs previnusly
(•nndneted certain pfoceedings anainst inni liel'nre n| Iter magist rates,
tlie assanll nnl l.eing niie cnrnmilted l.y luin in Ids inililie and
niagisterial l>nl in Ins [irivate ca|)acil\-. (7)
(1 ) R. V. Brooke and otliers, 2 T. U. H)o.
(•-') lb., ]!I5.
(:i) Expurtf Ewen, 25 .1. I'. 339.
(4) K. V. Spotlund, ('as. Temp. IFanl 1S4.
(•')) R. V. l.aMca.sliiro, .T. ,1., 1 I). iS: Ry. 4s.-).
(<!) R. V. Webster, :!T. K. :!8S.
(7) H. V. Arrowsmith, 2Do\vI, N. S. 704.
IL'
I'liACTICAl. (illl)K Til M.\(i|STI(ATKS.
1 1' I lit' ;ict (liiiic liy ii iiiaijjisi I'iilc lie, (ili(>ii,y;li illegal). lli«' n'Mill
of lioiii'st ci'i-nr nr dl' a iiii'i'c inisiakc of iu(li;-inriil. lie will incur no
criminal rcs|i<insiliilil y.
in R. r. ^o::rns. (1) l^ord Mansticld said; — -No justice of the
peace ougiil I o sutler lor igniu-anct' wliei'e tlie heart is right ; on
ijic otiier hand wiiere magistrates act from undue. corru|it or
indirect motives, they are always |Minisiied hy this court." in
anotlu'r I'ase. which was an aiiplication for a <'riniiiial int(M'mati(Mi
against justices for arhit rarily. ohstinately ami uureasonaMy I'cfus-
iug to gi'anl an alehouse license tiie same learned judge saiil : —
••The court has no power oi' claim to rv'view the reasons ot justices
of the peace upon wiii(h they form I heir judgnu'Uts in gi'autiiig
licenses, hv way of appeal from thi-ir judgments oi^ iiverruliug llu'
dis-relion entruste(| to them. Hut if it cleai'ly apjiear that the
justices have heeii partially, nuiliciously or corruiitly intluenced in
the exercise of this dist'retion. and have consequent ly ahused the
trust repose(l in them, tliey are liahle to prosecution hy indict nient
or iuformalion or even jiossihly hy action if the malice he very
uross and injurious. 1 f their Judgment he wrong, yi't their heart
ami intention pure, (iod forliid that they should he ]iuuished." (li)
.\ criminal iulormation will not he granted, theretoi'c. i'mIcss.
coupled witli llu' illegal act. tluu-e he some di>houest. coi iijit or
opjiressive motive: under wlii(di <lescription. Ahhott. ( '. .1.. .says
tiial fear and favi.i- mtiy gi'uerally he included. And if. on an
apldication for a criminal infornuitiiin. an order nisi lias heeii
gi'auted. the court will dischiirge it on seeing that the magistnite
did not act fr<un thecoi'i'upt motives charged. (:>)
The wends of Ahhott. C .1.. are as follows : — -Tliey are indeed,
(the justices), like any other suiiject. aiiswerahle to tiie law for tht'
faithl'ui and upright disciiarge of tlieir trust and duties. Hut
whenever they have lieeii ehalU'iiged upon this head, either hy
way of indietment or application for a criminal information, the
(iuesti<in has always Iteeii. not whetiier the act done might upon
full investigation he found strictly right. Imt from what motive
(1) H. V. Cozcnfl, 2 Dong. 416.
(•2) R. V. Yonng & Pitts, 1 Hnrr. 55(i.
(M) H. V. Bayhs, 3 Burr. K-.KS; R. v. Ailiay. •_' Burr. (m-J.
CUIMINAI, I.IAIill.lTV. 43
it liiid |prnccc(K'(|. wliftlici- tVnii. a dislioiicst. opju-cssivc or corriiid
iii(ili\c — (uiidiT wliicli tear and lavnr iiiuy <^i'ii('rally he iiicludcil).
— or rrniii luislakt' nr error. In tlif lomii'i' cast-, alone, liny liave
iieciMne 1 he oiijeels o|' jinni^linnMil . (1 )
It', llmuiili the nnigi.^trate was iiol actuated liy any coriMiiit
iiioii\-e. Ins act was an illegal one. the eoniM. in diseli.ii'giiig t In-
fule against liini. may make liim pay tlie costs. (2)
'i'lius. w hcfe a magistrate i-el'nscd. as hail, eei'lain )iei'soii> uf
lUKjUestionalilc snllici(.'iH-y. Iieeause they wei'c ( 'Inii'tist I cade is — I lie
<liarge against the prisoni'i- sought to he hailed heiiig sediiiou —
and it apjieat'ed. u|ion cause shown against a rule tor a crimimil
information, that the magistrates acted only in |mrsuaiH'c of a
resolution |irevi(m>ly come to at a general nu'ctiiiif ot' the mayis-
1 rates of the comity, witii the sanction of the Lord Lieutenant, the
court disciiarged tlu' rule, hut the magist rati-s were orderi-d to pav
1 he costs, as t heir refusal of hail, merely on t he ground of personal
character or political opinions, was illegal, (,'i)
The motion for a rule /ks/ to tile a criminal inlormation should
always he made prom|)tly. ami hefoi'cit is made, a notice of si.\ davs
must he given to the justice of the intended aiiplieati(m agaiiist
him. in (U'der that he may show cau.st' against the apiilicatioii. in
the first instance, if he thinks Ht. (4)
A rule nisi was gi'auted against a justice for iiegleetiug his duty
as a county magistrate hy refusing to c'all in the inilitar\- n\- to
<stah|isli a suMicieiit force to repress a i-iot at an i-leetiou : hut the
rule was discdiargcd hecaiisc the requisite notice had not heen
given. (;"))
It is expressly enacted hy tlu' CriiMiiuil Code that any justice of
ilic pence who corruptly accepts or ohtaiiis or agrees to accept or
attempts to ohtain for himself or for any other poi-son any nionev
orvaluahle consideration, ottic*'. place or employment, isguiltv .if
an indictahle otfence and liahle to fourteen y.'ars iinprisounienl'. ((;)
(I ) R. V. Jiarron, 3 B. & Aid. 4;!4.
(:.') I{. V. Whately, 4 M. <S: Ry. 4;!l.
(?>) R. V. Badger, 4 (^ B. 4(i8 ; (1 .Inr. <,l<)4 ; 7 Jur. 'Jdl.
(4) Ej- parte Fentinian, 4 N. i<: M. li'tj; 2 Ad. i*c V.\. 127.
(5) R V. lleming, :> J5. i*i Ad.fiGC.
(<>) Code, Art. i;i2.
44 PKACT[CA1. (UIHK to MA(iISTltATKS.
C'ivil ■iial»illlj'.— The goncval rule of magisterial lialiility
is tluit it is only in I'ascs whero a magistrate or justice of tlie peace
has no jurisdiction or where ho exceeds liis jurisdiction, that lie is
liahle in damages to the |iarty aggrieved hy his acts, and that,
where he has jurisdiction over the subject matter liefore him and
acts judicially, he is not liahle for any act done hy him within his
jurisdiction, however erroneous the conclusion at which he arrives
may lie. (1)
The pi-ojiositinii that a magistrate is not liahle to an action for
anv act done hy him judicially in any matter within iiis jurisdic-
tion is so weli estalilislu'd that in the event n\' an action heing
hrought against him for false im]>i'isonment oi' for causing a
seizui'e. under the conviction, to he made of the phiintift's goods, a
conviction valid on its face will, if prodiict'd at the trial, he con-
clusixc evidence of the facts tlu'rcin stated, and iif) ])roof in denial
theri'of will he allowt-d to he adduced : (2) jirovidcd. of course,
that the conviction was not made maliciously and without reason-
able and ])rohahle cause, and provided also that the execution
U'vied thereunder has been regular: altliotigh the magistrate in
nuiking the conviction may have foi'med an erroneous judgment
upon the facts. (I!)
The liability of justices in cases where they either have no juris-
4lictiou. or exceed it. must not be taken in its limited sense, but
must be understood to include not only those cuhoh where tliere
has biH'n an absence of jurisdiction in fact over the case, but also
Avlu'i'c some statutable or formal requisite has been omitted, if such
requisite lie an I'ssential ingi'edient. (4)
The defendant is entitled, upon a]tplicaliou. to a copy ,)f the
(1) Dice's Syn. 13 Kd. 40; West v. Small wood, '.) M. & W. 418; Cartier v.
Bnrlan 1, 2 Rev. Leg. 47."i ; Birch v. Perkins, 2 Pugs. 327: Ilallett v. Wihnott,
40U. ('. Q. n. --'6;!.
(2) Basten v. Carew, 3 B. <.t ('. (149; Brittain v. Kinnaird, 1 Brod. & Bing,
432; Mann v. Denvers, ;'. B. & Aid. 103; Tarry v. Newman, ir> M. it W. 65!!
Cave V. Mountain, 1 Man. & Gr. 257.
(3) iMillers V. Fotch. Holt, 287.
(4) Lindsay v. Leigh, 17 L. .1. M, ('. bO; Attwoml v. Jolift'e, 3 New Sess.
Cas. IIB.
civri, i.iARii.tTv. 45
(•(iiiviciiiiii (Vciiii llif cniivictiiig inagistriilcs. (I) TI103- aro not
liniiiid. Iidwcvcv. Iiyllic t'ojiy they dcliviT : and if it sliould be
rniiiid to lie dcrcctivc oi' infonnal. from misstating tlic nanicof flio
inlni'Micr oi- any otlii'i- fact, witlnmt liu'rc hciug any Ira ud or
iiiti'iiliiin In niislt'ad. a more coiTcrl oni' may i)c rctiiriu'd to tlio
sessions: and liiccouiM can only tai^o iiotic<" df tlie latter. (2)
It seems, indeed, that the formal conviction ma\' he drawn nji at
any time hefore t hi' retui'n of tlie certiorari, altiiough such return
lie after a commitment. (H) or afti'r the j)enalty has heen levied by
distress. (4) or after action hrouglit against the magistrates. (5)
A magistrate has even heen aihiwed to I'ctui'n an amended i-mx-
viction to the sessions after iiaviiig returned an erroneousoiu' : ((J)
iiut it \va,s held that he couiil not do this after tlu' conviction as
first relurne<l iiad heen (|uashed either on apjieal or iiv tlio Court
of (^»ueen's Heiudi. nor after the dis(dnirge of the defendant iiy tJie
(j»uei'ns Hen(di hy reason of t lie convict ion recited in the warrant
of commitment iieing had. (7)
in many of the provinci's the(|uestion of the liahility of magis-
trates and Justices of the jieace is the suhject (d'exjiress statutorj-
cmictment.
In Ontario, the act relating to justices of the j)eace jtrovides
tiiat. in case of an action hoing brought against a ])olice magistrate
or otiier justice of the |ieace. for any act done hy him in the execu-
tion of his duties as such ju.stice. with respect foanynmtter witliin
his Jurisdiftion as such justice, whether such duties ari.se out of
the common law or are imposed l)y any act either of the Tmperiul
or Donunion Tarliament. or of the legislature of the ])rovince. it
•shall he expressly alleged in the statement of claim that the act
A\ as done maliciously and without reasonable and probable cause
and that, if at the trial of the action the i)laintitt' fails to prove
(
(1) K. V. Midlam, 3 Burr. 1720.
{'>) R. V. Allen, 15 East, 333, 34(5.
(3) Massey v, .Fohnson, 12 East, 82; R. v. McCarthy, 11 O. R. 657.
(4) R.v. Barker, 1 East, ISti.
(5) Lindsay v. Leigh, 11 Q. B. 455; Gray v. Cookson, 16 East, 13.
((>) Sellwooil V. Mount, 9 ('. & P. 75 ; 1 Q. B. 729.
(7) Chaney v. Payne, 1 Ad. & Ell. (N. S.) 712; 10 L. J. M. C. 114.
4(5
I'liACTKAI, <il IHK. Ill MAiilSI'UA'I'KS.
sucli allcf,'iiti<>ii. lie sli:ill lie iioH-siiiU'd. or :i vcrdicl ov iinlgiiu'iit.
shall lit' jfivi'ii tor tlir (iflciidiml. (1)
'PIk' siiinc stiilutc also jn'ovidcs that, lor any art done hy a justice
ol'tlu' iK'acc ill a matter in which, hy law. he has not jiifisdictioti.
ov ill which he has I'xceeded his jurisdiction, or tor any act done
under a conviction of order made or wananl IssiumI hy the justice
in studi matter, aiiv iiei'son injured t hcrehy may maintain any
action against the justice that in the same ca.se he iiii<,dit havedone
hefovc t!u' iiassini,^ of the act. without making any allegation in his
stateineni o1' claim that the act c(miiilained of wasdone maliciously
and without reasonahle and prohaMe •-•insc : (2) and further that,
if one justice niid<cs a c(mviction or order, and another iu>tiee. in
good faith. grants a warrant of distress or cominitnu'iit thereunder,
the action, if any. must he against the justice who made the con-
viction or <irder. (.!)
It is also jirovided that no acticm. as mentioned in the \i\. shall
1k' iu'otight for anything done ui-ler a conviction or order until
the conviction or order has l.eei (|'n. lied, either njion ajipeal or
njion aii])licati.ni to the high co'.rt. and *hat m. such action -hall
he lirniighl for anything dom under any w ;., v:'.iit issued hy such
justice to jirocure the aiipi':' .•ance of the iiarty. and whi(di has heeii
followed hv a conviction or order in the sami' matti-r. iintti the
conviction or order has heeii <iuaslied as aforesaid. (4)
In ease of a justice of the peace having gi-anted a warrant of
diHtvess or a warrant of comnulnient upon a conviction or order
which, either hefore or after the granting of the warrant, has l.eeii
contirnied n|ion appeal, it is jirovideil that no action is to he
hrought against the justice hy reason (dany defi'ct in the convic-
tion or order, for anything done under the warrant. (5)
It has heeii held that section 4 (ahove set forth) of llu' U- S. O.
c. 7:5, prevents any action heing hrought for anything done under
a conviction so long as the conviction renniins niHUiashed and in
(1) K. S. O.,o. 73, sec. 1.
(2) R. S. O., c. 73, sec. 2.
(.^) R. S. O., c. 73. eec. 3.
(4) R. S. O., c. 7;i. t-ec. 4.
(5) R. S. 0.,c. 7;*., sec. 7.
civil. I.IAIIII.I TV. 47
(■(ircc. wlicllicr llicfc Wiis jii iiliction to iiiiiUf tin- cnnvictioii or
M..1. ( 1)
'Die jusiici' is not (k'lirivrd oT llic |irolr((ion oT tlic Act liy a
lucre ii'iTii'iiliU'ily ill (Iniwiiii;- up llui conviction, such as lcaviii<f a
liiaiii< lor liic amount ol' costs to he al'lerwarils tilled u|i liy tlu'
clerk, (li)
Tlie iirsi and second sections of I lu' Iiu|ierial Act. 11 iV \'2 N'ict.
c. -14. are to tlie same idt'cct as llic Hi'st and second sections (aliove
set I'ortii) (dtlie l>. .•<. O. c. T-"! ; :ind it lias Ih'cii lield. in I'lngiaiid.
tliat lliese two sections must lie ri'ad logel her. and t iiat secti(ni 2
aiijilies only to those cases wlu're tiie |iarliciilar iiroceeilinif in I'cs-
liect of winch an a<-tion is |p|'>)Ufj;lit af^ainst the justice is in itself an
I'xcess of jurisdiction ; sotliat where a justice convicte(l liie |dain-
titVin a penalty and costs and adjinlgt'd that this penalty inid costs
should he levied hy distress and sale, luit exceeded his jurisdiction
in ordering the plaintiff, in default of payineiil. to he .set in the
sto(l<s. which however was never done — hut tlu' penalty was levied
ly distress, it was hehl that an action of trespass for soi/.ing the
goods undor the disti'c'ss wari'ant was not within section 2. and
was not inaintainai)le uu(h'r st'ction 1. whicdi re(|uires tlu' action
to he one on tlie case and to allege malice and want of reasoiialde
ml prohalile cause. ('!)
The falsity <if tlu' cliarge in an inforiiiatioii laid hefore a iiiagis-
ate canirot give a cause of action against tiie magistrati' who acts
upon the assumption and helief of the truth of tlie charge : and
where an iiifonnation contiiined every material avernieiii necessary
to give tlie magistrate jurisdiction to make an order to tind sureties
to Ui'cp the jieace. hut also contained additional matter which, us
was contemled. so ([ualitied these averments as to remler them
iiugatoiy. it was held that this was a Judicial question for tho
magistrate to decide, and that, therefore, in issuing his wari'ant for
(1) Arscott V. Lilley & al., 11 Ont. R. 285 ; Af. in Api^eal, 2:1 C.L..I. -JSS.
Graham v. McArtliur, 2.") U.C.Q.B. 478.
(2) Bott. V. Ackroyd A anor. 28 L.J.M.C. 207 ; 33 L.T. 89.
(3) Barton v. Brlcknell, 20 L. J. M. ('. 1 ; 16 L. T. 212 ; Somervilie v. Mire-
houae, 3 L, T., N. S. 294; See also Newbould v. ( bltman, 20 L. J. M. ('. 149 ;
Haylock v. Sparke, 22 L. J. M. C. 72; Kendall v. Wilkinson, 24 L. .1. M. C.
94 Basebe v. Matthews, 36 L. J. M. C. 93.
a
ti
48 I'liACTUAl, (illDK Til .MAdlSTHATKS.
till' ;i))|pi'iiv:iiic(' of ihr luiuscd. lie wiis ii(i( acting Avitlmul jurisdiit-
tiuii. even iilthoiigh a suiK'rior coiii't might •|iiash his order to find
sureties. (1)
ft is only ill casi's wlicrc llic |iroductioii of a (•oiiviction would
justify the act ujiou which an action ot'daniagcs is iiascd tiiat the
(|iuisliing of the conviction is ni'ccssary hcl'orc bringing the action.
Jt IS therefore uiinecessarv to qinisli tlie conviction iiefore bringing
an action against a magistrate wlio lias haci<cd a warrant of com-
mit nieni in a county otlier tiian that in wliieh tiie conviction took
jiiace. for tliis cannot he an act ihuie under the conviction or an
act wliirli tlie conviction justities the magistrate in doing. (2)
It lias hccn held ill Xew limnswicU that wiiere a justice of tiie
[leace issues a warrant witlnuit jurisdiction, as on an iiisutticieui
information, he is liahle to an action of tn's|>ass for assault and
false imiirisonment ;U tlu' instance of the person arri'sted under
such warrant, and that the ([uesiion of reasoiiahU' and jirohaliie
cause cannot arise in such a case as this, hut only in a case in
Avhieh the justice has jurisdiction, (li)
Hiiactmeuts. similar in effect to those aiiove cited from the
Ontario slatnte. are contained in the statutes of the |irovinees of
Xova Scotia. Xew BriinswicU and i'riuee Kdward Jsland. it being
tliere jn'ovidi'd that every action against a justice of the peace or a
stijiendiary magistrate for any act done in the execution of his
ottiee. with respect to any matter witliin his jurisdiction shall
expressly allege that the act complained of was done maliciousl}'
and without reasonable and jirobahle cause ; and that in case of
the plaintiff failing at the trial to jirove this alk'galion. judgment
shall be given for the defendant ; (4) and. furthei'. that no justice
/wn(//?(/e issuing a warrant of distress or commitment founded on
the conviction of another justice shall be liable for iiuy defect in
the conviction or order or other want of jurisdiction in llie justice
who made it. (;"))
(1) Sprung v. Anderson, L'li U. C.,C. P. 152.
(2) .lones v. (irace, 17 Ont. R. tiSl.
(3) Whittier v. Diblee, 2 Pugs. 243.
(4) R. S. N. S. (1884), c. 101, sec. 12; C. S- N. B. (1877), c. 90, sec. 1 ; Acts
of P. E. 1. 185:! to 1862), c. 16, sec. 1.
(5) R. S. N. S. (1884), c. 101, sec. 15, C. S. N. B. (1877), c 90, sec. 3; Acta
of P. E. I. (1853 to 1802), c. 13, sec. 3.
civil- I.IAJJIMTY. 49
Tt is nlso provided tlisit ;iii action liroiii^lit aLfaiiHt a jiisiicc of
the peace lor an act done in a nnitter wliei'e In- Inis no jurisdiction
or exceeding Ids jurisdietitm need not alle:i;e malice and want of
reasoiialile and proiiaMe cause, iiul tiiat no action in such a case,
siudl he hrouu'ht until such conviction shall iuive heen «[uaslied. (1)
In Nova Scotia and .New Brunswick, it is turther pi'ovided tinit.
where a warrant of distress or coiiiniitmeiit siiall hi' ifraiited hy a-
justice o| the peace u|>on a conviction ()!• oi'der winch, eithi-r hefoi'w
oi" aftei- the n'ranliuy- of the warrant, shall havi- heen continued
ui>on appeal, no action shall he hroui;-ht an'ainst the Justice ^-rant-
ing the warrant, for anylliin!.i- done thei'i'uuder. hy reason of any
detect in suidi conviction or order. ('2)
ruder the ()ntario .Vct.no action can he hroui^dit a^'aiiist any
Htipeudiary ny police magistrate or justice of tlu' pi'ace for anv act
done liy him under tin- supposed authority of u statute or statutory
provision of the Province or of the Dominion of ('anaila. which
'Statute or statutory provision was heyond the lenishitivi' jurisdic-
tion of the Li'.ii-islature of the J'rovince or of the Parliament of
Canada, as the easi^ may he. jirovided tlu' action would not lie
a,i,'aiiist him if tlu' stiitute or statutoiy lu-ovisiou had heen within
the le.n'islative Jurisdiction of tlu' I'arliament or Legishiture which
assunu'd to enact tlu- .same : (3) and that where an order is niado
quashing a suiniuary conviction, tiie court may. if it thinks tit so
to do. provide tluit no action for a trespass shall he l)rought again.st
the Jusiice of the peace win) made the conviction. (4)
Til the I'rovince of (Jue h'c. it has been held that in order to ren-
der a Justice of the pea( ■ lial)le in damages there must he malico
and a want of reasonable and i»robal)le cause whether the act com-
plained of is within his jurisdietion or not. (5)
U^iere Justices of the peace acted illegally and maliciously, iu
committing a person to gaol for refusing as a witness to answer
(I ) R. S. N. 8. (1884), c. lul, sec. 13 ; C. S. N. B. (1877), e. 90, ss. 1, 2 ; Acts
of P. E. I. (1853-1 S(i2), c. 13, sec. 2.
V2) R. S. N. S. (1884), c. 101, sec. 17 ; C. S. N. B. (1877), c. 9(i, sec. (i.
(3) R. S. 0., c. 73, sec. 8.
(4) R. S. 0., c. 73, sec. 10.
(0) Maroisv. Bolduc, 7 Rev. Ug. 148; Leclerc v. Co.,eland, Ramsay's
A pp. Cas. l>35; Huston v. ('orbeil, 7 L. N. 325.
60 I'KArTICAl, (il IIiK, TO .MA( ; I STK ATKS.
an irri'lrxiiiil i|ii('s|inri at a trial wliuli i<m)U |p|a(i' ln'lurc | licm. — -tlic
ordi'V i)f iiii|H'is()iiiM('iil liciiiif siii-iicd out ol' court soiiic ilay> al'lt'f
the tcnniiialioii of tlir trial, and iiiidcr circiiinstaiici's indicaliiii;'
inaliff.--! licy wci'c held rcspoiisililc in daiiian'cs. (1)
M|><'4'ial l*r4»viNi4»iiK4»l llio ('4»4I«'iim f <» l<'4»i*iiialili«'N
itV A4'ii4»ii. — Tlic ( 'I'iiiiiiial ( 'o<lf contains t he I'oMdwini;' |iro\'i-
sions witli rci;ard to tlic lorinaiitics necessary to l>e (disei-ve(| in
coiinectioii witli actions aiiainst [lersons ailniinistcrinu' tlie criminal
law :
liiiiiil»H4»ii 4»l Tiiii«' aiKl I'Iikm' <»!' A4*li<»ii. — Mvery
action and prosrcution an'ainst any person for (tni/thinij purportliuj
to be done in pursuance of any Act of the Parlinment of CanaJa
relatimj to criminal law. shall, unless otlierwise provided, lie laid
andtrie(| in tlu' district, county oi' other judicial divisiou, wliere
the act was counnitted and not elsewliere. and shall not he coin-
menced t-xcept within six nunillis ni'Xt at'lei- tht- act coniinitted.
(Art. !I7.").)
X4»tio«' ol A«'ti4»ll. — Notice in wi'itinn' of smdi action and of
the cause thereof shall he y-iven to the defendant one month at
least hefore the commencement cd' the actitm. ( Ai'l. !t7<i.)
llofViK'C. — In any su(di action the defendant may i>lead the
iicueral issue, and ii'ivi- the pro\isi()us of this title an<l the special
matter in evidence at any trial Innl thereupon. (Art. DTT.)
Tt'iidcr <»r l*»yiii«'iif in ('4»iirt. — No |ilaintilf shall
recover in any su(di action if teiuU'r of sutHcient amciids is made
hefore sucdi action l>roui>;ht. or ii' a surticient sum of n\oney is paid
into court hy or on heludf of I lie defendaid after sucli action
brouiylit. (Art. !I7H.)
€'oMtN. — If sucli action i.s commeiu-ed after the liiiu- liereliy
limited for hriun'in^ the same, or is hrouii;ht or (iu- venue hiid in
any other ])lace tlian as aforesaid, a vei-dict shall lu' found or
judgment shall he given for tlie dofendaid ; and thereupon, or if
(1) Gauvin v. Moore et al., 7 Mont. L. R. ^76.
KnItM M.ITIKS iiK ACTlnNS AliAlNST .MSTICKS.
51
llic |iliiin(itl' luM'oiiu's iKnisiiit. or iliscoiiliimcs any siicli nctioii iit'tor
isKiic jniiicd. or il' ii|m>ii (Icimirri'r ni- otlicrwisc iii(li;-iii"iit is Lcivcii
imiiiu-l iIh' |ilaiiilitV. tin- (Icffiiilaiil sliall. in tiif liiscrctioii of tlio
court. I'ccovci- \\\> full costs as Ih'Iwccii solicitor and client, aixl
sliall iiavc the liUc remedy for the sanu' as any defendant lias l)y
law in other cases ; and allhoiiiidi a verdict or judii'nient is y'lviMi
for the plaintilV in any su(di action, sncli jdainlilf shall not have
costs au'ain^l the ih'fendant. unless ihc jndi;-e licfore whom the
I rial i-' had cert i lies ins approval of the action. ( .\ rl . HTH. )
miicr ll«'iii«"«li«'« ^aiv«'«l. — Notliinii' herein sliall prevent
ihcclVeit of any Act in lorce in any Province of Canada, for the
protection o|' justice- of i lie peace (U- other otlicers trom vexatious
actions for thiim's purjiorlinu' to he done in the |ierforniance of
llieir duty. ( .\rt. MSd.)
NpiM'iiil l*i*4»viHi4»ii!s 4»l I'iMiviiK'ial Aol*>». — The sia
tutes of iIh' l*ro\inccs of ( )nlario. (^ludiec. Nova Scotia and New
iirunswi(dv provide that no ai'lion shall he l)r(Uindit aiiainsi a Jus-
tice of the in'ace foi' any thiui;' done iiy liini in the i'.\ecutioii of lii.s
ottico. unless t lie saiiu' is coniiuenced within six nionlhs after the
act coniplaiiu'd of was cominilti'ij : (1 ) nor unless notice in writing
(d' such action and of the cause tliereid' siiail Ite niven to tlio
defendant one month at least lieforo the conimencenieut of tiio
acticni. (!')
In I'rince Kdward island tiu' time limited for commencinn' an
action aiiiiinst a justice of the peace for any act done i>y him in
the execution of his otHce. is tliree Tiioutiis: and there must he ii
month's notice in writing; given before the action is commenced. (3)
As to the computation of the limited time where tiie cause of
action is a continuing one. — imiu'isonment for instance. — the action,
wlien the limited time is six montlis. may ht' l)rought within six
months from the last day of the imi)risoiimcnt ; and wlicrc in a
(1) R. S. O., 0. 7;'., sec. i:'.; R. S. Q., Art. 25!t8; R. S. N. S. (1884), c. 101,
sec. 19; C. S. N. B. (1877), c. 29, sec. 19.
(2) R. S. 0.,c. 73, sec. 14; C. C. P. (Que.), Art. 22; R. S. N. S. (1884), c.
1 1(1, sec. 20 ; C S. N. B. (1877), c. 90, sec. 8.
(3) Acts of P. E. I. (185;'. to I8(*2), c. KJ, ss. 7, 8.
6'J I'HACTICAI. (il lliK 'I'n M \(i ISTIIATKS.
imrliculiir cii-^c llic impi'isinniU'Ul fxpii'i'd im ilic lUli I >r(tiiilici'.
iiiiil llic wril ill llic iii'lioii was siK'd <ml on the I Uh .Funr fullow-
iii^', it was licid tiiiil llic loniiiT day \va> tu ln' cxcliidt'd, and tlial.
I licri'Inrc. tlic ariiuii was in time. (1)
As. Iiy ArticK' it'd (aliovc set lorlli) of ilic Code, ilic notice of
action iinist lie given one iiiontli. (tt least, iiel'ore ilic suit i- coin
iiieiiccd. llic liay ol'giviiiu: llic notice and tlic day of .Miing (nit tin-
writ ill the action arc lioili to l>c excluded. (2)
In Ontario, it has lieeii licid ilial wliere a nian-i--t rate act- in
direct coiit ravciil ion of the statute in issuing a warrant, without,
the |iro|iei' inforination under the statute, or without e\-en a verhul
charge having heeii laid against the |)laiiitiff. and t Iicih' is no
evidence (d' goiKl faith on hi> part, he is not eiilitlcd to notice of
action. (I!)
Ill another Ontario case.it was held that where a magistrate acts
ciearl_\' in excess of. or without Jiirisdiciion. he is lu'verthcU^ss
(jjitilk'd to iiotiei'. unless the lionajides of his conduct he dis|>roved :
hut that the |ilaintill' may roqiiiro the ([uesHon to lie left to tin-
Jury, and that if they find that he did not hoin-stly helieve iu- was
a(-ting as a magistrate, he has no claim to notice-. (4)
When- a justice acts (-itlii-r without jurisdiction, or i-ntirely in
excess of his jurisdiction, the notice of action lu-i-d not contain an
alh'gation of inaliee. (5)
A justice of the pence is entitled to iiotici- of action whenever the
act coiiiplained of has heeii dom- hy him in the honest helief that
he was acting in the exc-cution of his duty as a imigist rati-. (G)
ill an action against a Justice of the peace and a ciJiistahle for
having issued and executed a search warrant against rhe plaintiff
for having and concealing goods helonging to another, it was held
that the notice of action and statement of claim being each ol them
(1) Hardy v. Ryle, 9 B. & C, 003; Massey v. Johnson, 12 East. 67.
(2) Young V. Higgins, (i M, & W. 49, 5L'; R. v. Herefordshire J. J., 3 B. &
Aid. 581 ; R. v. Shropshire .T. ,1., 8 A. & E. 113.
(3) Friel v. Ferguson, 15 U. C. C. P., 584.
(4) Neill V. McMillan. 25 U. C, Q. B., 485.
(5) Hatch V. Taylor, 1 Pugs. 39.
(6) Sprung v. Anderson, 23 U. C. C. P. 159.
SI'KflAI. I'ltn\ ISKiNS iiK I'Hn \' I N(l.\ I. ACTS. 58
t'oiiii(lf(l ii|i()ii ii fiiiiM' of iiclinii iiriNiiin- ill ii cnxc in wiiicli \Uv
iiiiiLcislriilf liad JiirisdiclioM. vert- (IcH'clivc lor Wiint of ihr iillc^'ii-
tioii tliiil llii' jiislicc liiiil iictcil niiiiicioiisly uikI witlioiil ivasoiiiihlo
itiid |.n>liiil>if rinisf. :mil tluit llic >t:itfiiiciil of chiim wiis also ilcfin!-
livc ill nol slmwiiii,' a rii;lit to rt-slil iilioii of tlic proiicrtv. altlioiiifli
liic |ilaiiititV was aciiiiiltcd of any wrongful taking, ilclciition or
coiHcaliin'iil of llic same. (1)
Tlic nolicc of aclioii niiist ^tal(• tlic tiiii.> wlnn ami llic placo
ulicrc llii' acl forming tin' hasis of ilic aclion looU plafc ; (2) and
it nuisl stall' tlic I'avisc of action cxplicilly. WIutc. for instance,
a jiislicc liad issued a void warrant directing the constaMc lo taUc
the |ilaiiitills goods, and. m (/fi^du/^ o/f/wt/s. to take his liody. and
(he coiistalilc. under this warrant, arrested the iilaintitf. although
there weri' g Is which he might have levied, a nolici' id' action
alleging a joint trespass agaiiisi the justice and the eoii-talijc was
lleld defective for liol clea rlv set t ilig t'oi'lh the grounds t<\' the
jiisiicc's lialiiiiiy. (^)
Tlic notice iiiiisl slate the iiaiiie ami place of aliode of i he phiiii-
tifl's attorney ; and it will he siillicieiit if it appears on any jiart of
the notice. (4)
.\ nolicc of action dcscriliiiig the phiintitf's attoriuy's roidcnce
as (d' Uiriniiigiiain generally is siitHcicnt. (5)
A notice descrihing the plaint iff s residence as of I lu' township of
H,. in the coniity of I*., is sutticieiit. (if)
Jn the provinei- of (^lichee, it is i-xju'e^sly Jirovidcd that every
justice of the pcaei' and other dersoii fiiltilling a puliiie duty
shall, in all cases. Ipceiilitled to tlu' henetit of the iM'oteclivc clauses
of the statute with refereiiee to the limitation and notice of action,
tender of ainends. and otlierwise. altliough he may not ha\'e acted
bona fide in the execution of his duty, and altliough in the tloing of
(1) Howell V. Anuour, 7 0. K, :!(;".
(2) I'arkyn v. Staples, 19 U. C. C. P. 240 ; Bettersworth v. Hough, Ki L. C.
K. 411».
(;'.) Mc'tiilvery v. Gault, 1 Pugs, it Bur. 641.
(4) Bross V. Huber, L") U. ('., Q. B. 62.").
(5) Osborn v. Gougli, :! B. & P. 551.
(<;) McDonald v. Stuckey, 31 U. (J., Q. ]}. 377.
54
I'KAfVJ'K AI. (JIIIIK TO MAOISTIIATKS.
tin iict doiH' liy liiiii 111' lijis rxc-i'i'dcil liis powi'i's or jurisdiction uini
luis acted clearly coiitrarv to law. (1)
<'oiii|»4'lliii^: JiiNtivcM. hy iiiuikIuiiiiin. f<» ex«'i*-
oiMC tll«'ir lillK'tillllK. — Ifa (diargc la- laid lie to re a Justice,
ami there lie no ri'asoiiai)le utouihI ibr doiihtiiii;- liis jurisdiction or
tlu' proiirii'ty (d' exercisiun- it. the Justice ou<i;ht to receive the
iiit'oriuation or coni|ilaiut and issiu' the summons or warrant ; and
it' lie should refuse he may l)e conii)elled to do so, as otherwise the
\nw would r.'inain unadmiuistei'i'd. Hut if the justice has reason-
ahle yirouud for douhtinii- his jurisdiction, tlu' court will not com|iel
him to do an act whiidi niin'ht sul)iect him to an action. (2)
if Justices rt'Ject an aii]ilication. on the erroneous i;roiiud that
they have no power to li'rant it. the court will interfere, so far as
to set the Jurisiliction of the Justices in motion, hy directiui;- them
to hear and didermine u)iou the a|i|)lication. {'^)
If persons excrcisint'' au interior Jurisdiction ri'fi\se. on a inis-
tai<en view of the law. to hear a case, they erroneously decline to
exercise their Jurisdiction : and the c(nirt will compel them, hy
numrlanms. to hear and decide it. (4)
AVhen an infci'ior court alistains from entering- u|Min the mei'its
of a case, in consi'(Hience (d its arriving at a wronu,- decision ujion
a prelinnnary point of law. this will he re,u;arded as a refusal to
hear: and a mandamus to hear and determine will l)e granted. (5)
A statute whiidi provides that a Justice may issue a summons or
warrant, if he thinks fit, gives him a discretion in the issuing of the
summons or warrant ; l>ut he is Ixmnd to I'xercise this disci-etion.
on the evidence oY a criminal olfence whi(di the information dis-
closes : and if. on a consideration of something I'xtraneous or
extvu-Jiidiciiil. he refuses the summons or wan-ant. the court will
order him to issue it. (6)
(1) R. S. (i., Art. 2m\).
(2) R. v. Broderip, 5 B. & C. 2159 ; 7 I). & R. 861.
(3) Pit Lord EUenboroiigh, in R. v. Kent, 14 E^at 397. See also R. v.
Surrey, 2 Show, 74, n.
(4) Per Blaekburn, .!., in R. v. Monmouth, L. R. 5 Q. B. L'56.
(,'.) Per Coleridge, J., in R. v. Richards, 2u L. J. li. B. 3.')2.
(6) R. V. Adamson, L. R., 1 (J. B. D. 201,
MAN DAMPS. 55
Where. iipDii a cliar^^e being laid against a di'fendant (or violat-
ing, in tlie Connty of Cumlierlaiid. tlie ^^ Canada Temperance Act.''
tiie justiees deeiined to i.ssue a warrant, on tlie ground that the
notice to the Seeretavy of State required to be tiled with the
sheriff or registrar of deeds of or in the eouiity was not regnlarh'
tiled, ieasnineh as there were two registrars of deeds in Cumberland
County, and the notice had only been de|tosite(l with one. and that
therefore the Act was not legally in force in the county, it was
held bj' tlie court, in gi-anting an aiiplication for a writ of
mandamus, that the ])rovisions of tlu- Act with regard to the tiliuii'
of the notice were inert^ly directory, that the proclaniatiou having
issued and the election having taken place and resulted in the
ailoption of the Act. the Act was in force, and that at all events, it
was not oiien for the justices to ijuestion the ivgularitv tf the pre-
liniinary prociH'dings for bringing the Act into forc(^ (1)
A mandamus has been issued in the following cases : — to receive
an information or coiniilaint ; (2) to i>sue a distress warrant for
costs upon a conviction ; (;!j to hear a complaint when the justices
have declined jurisdiction. (4)
A munilamus was granted against a justice who refused to pro-
ceed upon an information under the PawnbroUers' Act. (;i!t and -id
(leo. ;i. c. ilil). on the erroneous ground that it was not a case for a
HUinmaiy conviction in a penalty witliin the statute; (■")) and in
another case it was granted against justices who refused to hear
and determine an ap[)lication for a bastardy oi'der. on the erroneous
supposition tliat they had no jurisdiction. ((1)
In oni' case, the Court granted a mandamus to compel justices to
hear and determine an a|ii)lication for a suninions against certain
persons for unlawfully conspiring to break the peace and do griev-
ous bodily harm ; although there was no misapprehension of the
m. and the ju.stices heanl all the evidence ottered, before they de-
(1) I.', v. Hicks, 19 X. S. H. SO.
(2) R. V. .^Hwton, i Hr. 413.
C!) H. v. Hant., J.l, 1 K. ^ Ad., (154 ; See Ex parte Robert Thomas, Ki L.
.1- M. ( . 5(.
(4) K. V. Brown, 2(> L. J. .M. ('. i,s3.
(5) H. V. Hoard, 12 Kast, (i72.
(6) Hj; parte Wallinj^Cord, 9 Dowl. 987.
56 • I'KAC'frrAI, (HIDK to MAiasTHATKS.
cliiu'd to issiicllic summons, :iii(l alllioiii^li tlio words of the sta-
tutu, (11 cS: 12 Vict. (Im]).). r. 42, .soc. !•)■ w^^v tliat the justicoH
may, if th^l/ shall think fit. \s>^\u' a summons. Tlio Court jtroceodod
on tlic ground tliat tlu' cvidcnci' g'iviMi in suii])Ort of tho ajipiica-
tion was so stvony; as to induct' a belief that the justices must have
acted upon a consideration of something extTaneous and exti'a-ju-
dicial. wiiich ouglit not to have affected their decision, and tliat
this amounted to a declining of jtirisdiction. (1)
AVhere a magistrate refused to issue a summons for perjur}' upon
an int'ormation setting fbi'th facts on \vlii(di no jury would convict,
the court would not. under tliese circumstances, grant a mandannis
to interfere with the magistratt''s discretion. (2)
The Ontario statute provides that no action or other proceeding
shall 1k' commence<l or prosecutt'd against any person or [)ei'sons
for or by reason of anything done in obedience to a peremptory
writ n\' mandamus. (;>)
In the ])i'ovince of (Quebec, the code of civil proci'dure provides
that a mandamus nuiy issue, whenever any pt'rson hohling any office
in any corporation. ])ublic body, or court of inferior jurisdiction
omits, neglects or refuses to perform any duty belonging to such
ottice or any act whiidi by law he is bound to perform, and also
in all cases where a mandamus would lie in Kngland. (4)
ltiil«' ill tlio ^ ait lire of u ]VIuii«Ihiiiiin. — The statutes
of some of the provinces, in imitation of linpi'rial k'gislation. ])r()-
viile us with a useful sul)stitute for the writ ^A' mandamus, in such
simple questions as may be conveniently argueil and disjtosed of
upon a rule, the more important (|Uestions ln'ing still the pro|ier
subject of an apjilication foi-the writ u\' mandamus.^
This j>rovision. which is to the same effect, variously worded, in
the statutes of different pn)vinces. provides that, in case of a justice
of the peace or a stipendiary nmgistrate refusing to do any act
relating to tlu' duties of bisollice. tlu' party re(juiring sntdi act to
(1) K. V. Adanison, mpra.
(2) KxparhRe\<\,WK\\eOU. ' ^ ^
(3) R. S. O., c. 7:5, sec. 124. ' ' '
(4) C.C. v. (Que.) Art. 1022.
lU I.K [\ THE NATUKE *>V A MANDAMUS.
57
be il(iiu> may. upon an affidavit oftlio facts, apply, in the ])i'<)vince
of Ontario, to the High Court, or a County Court judge, and. in the
])rovinoe,s of Nova Scotia and New Brunswick, to the Supreme
Court, or a Judge tluMvof. for a rule calling ujjon the ju.stice and
also ui)on the party to be atfet ted by such act, to show cause why
such act should not be done, and if. after service of such rule,
good cause be not shoAvn against it, the court may make the rule
absolute, with or without co.sts. as may seem meet ; and the jus-
tice or sti|)cn(liarv magistrate, upon lieing served with the rule
absolute, shall obey the same, and do the act required ; and no
action or jn-oceeding shall be commenced or prosecuted against
him for having obeyed such rule. (1)
The course here ])rovidcd is not intended simjjly for the benetit
I of justices, or ccmtined to cases in Avhich their jurisdiction is doubt-
I ful ; l)Ut it extends to all cases in which they refuse to do an act
■ relating to the duties of their office. (2)
■L It does not ap|)ly where a mandamus woidd not luive been
^granted : (3) nor is it intended for cases in which the justice has
heard and adjudicated and done what he believes to be his duty,
whatever may be the eonclusion to which, in the exercise of his
(lis( ivtion. he has arrived. (4) ft applies only to cases in which
tiic magistrale does not consider the pro[)riety of doing or not
doing the act in ([uestion. (5)
(1) K. S. 0., c. 7r., sec. 6; R. S. N. S. (1884), c. 101, see. 25 ; C, S. N. B.
(1877i, (!. 90, sec. ■").
(2) R. v. Aston, 1 L. M. & P. 491 ; R. v. Fhilimore, L. R. 14 Q. B. D. 474
ti. ; 51 L. T. N. S. 245 ; R. v. Biron, 51 L T. N. S. 429.
(:5) R. V. Bristol, .T. .1., 18 .Jur. 421! n.
14) Re Clee I'i Osborn, 21 L. J. M. C. 112; R. v. Dayman, 26 L. .1. M. C.
^29; H. V. Vauglian, 9 B. & S. 329.
(5) Ex parte Lewis, 16 Cox 449.
SECOND DIVISION.
Parties to Crimes ; Extent of the Criminal Law as to Time, Persons,
and Place; Special Restrictions.
CMAVTVAl IV.
I'aktiks to tiik Commission ok Oh kkncks.
I*riii«*i|»ul OftVn«l'i<'rM. — Kvcry oiic \- a party to and i^niilty
of an otVciH'i' wlio — »
(a) actually coimiiiis i) ; or
(/<) (Iocs or omits an act tor the •)ur|tosc of ai(lin<>; any person to
coinniit tlu' ott'cncc ; oi"
(c) abets any i»crson in the commission of the ott'encu^ ; or
(d) counsels or pi'ocures any |ti'rson to commit the ott'ence.
it' several persons form a common intention to |)rosecute any
unla\vf\il |i irpose. and to assist t'ach other tlierein. each of them is
a pai'ly to I'very otfeiuH' cominitti'd hy anyone of tiiem in the ])ro-
seciition of such common purpose, the commission of whicli otfenci'
was or ou<>-ht to have heen known to be a probable conseciuence of
the ])rosecution of such common ]mrpose. (Code. Art. (51.)
Hvi'ry oni' who counsels or procures another to be a i)arty to
an otfeiice of whi(di that other is afterwards ifuilty, is a party In
that otl'ence. althou,ii;h com nifled in a way ditterent from that
whicii was counselled oi' suit<j;'ested.
Every oui- wlio counsels or procun-s anotluu' to bi' a Jiarty li
an otfence is a party to eveiy ott'ence which that other commits
in consequence of siudi coiinsellini^ or procuring, and which tlu
person counsidlini;' or procurinii; knew, or ought to have known
to be likely to be committed in consequence of such counselling m
procuring. (Code. Art. <i2.)
PKINOIPAI- OFFENDERS. 59
Tlu' distinctions lu-twci'ii |)riiicii)iils of the first luul second degree
ami iK'tweeii jtrineipiils and accessories before the fact are here
done away witli. and all are expressly made principals or [larties
to. and cfjually u'nilty of an offence, who (a) acfnally commit it,
(b) who do 01' omit anythiny; to help its commission, (c) who abet
or assist at its commission, or (d) who connsel or procure its com-
mission. .
Ill reality, and for all jiracfical pur|)osos. the distinctions between
lirincipals and accessories before the fact were removed years ago
both in Kngiand and in Canada ; (1) and have since existed only
ill name.
The Criiiiiiiai < 'ode has di'o[ipi'd these unnecessary nominal dis-
tincti(ms. and it gives only two classes of persons as being, in re-
garil to the degree of their guilt. |>arties to or implicated in a cri-
minal oft'eiice. namely, principdls. and accessories after the fact.
.\ principal may lie the actual perpetrator of the act, that is,
Ithe f)iie who. with his own hands or through an innocent agent,
does the act itself: he may be oiu^ who. before the act is done
does or omits something to help its commission ; he may be one
who counsels or ]>rocuves the doing of it. or who does it through
the medium of a guilty agt nt ; or he may be one who is present
aiding ami abetting another in >1 he doing of it .
.ii'tiial r«'r|M'lralor tvitli His i^wu HandN.— To
be the actual perpet rator of the deed, with his own hands, the
offender may or may not be present when it is consummated.
.\.. i)ur])Osely lays |)ois()n for B. who takes it. and dies from it.
A. although absent wiieii the poison is taken, is tlie actit.^1 per-
])elrator of the deed. (2)
.iciiial l*4'r|»(>tratoi* TIii>ouk:Ii liiiiocont Ag;oiit.
—To be the actual perpetrator of the deed, by means of an innoceni
agent, is. for instance, where an offender, who may be absent
when the act is done. uses, as an instrument lo (■ttcct his purpose, a
(1) 24 and 25 Vie. (Imp.), c. Si; R. S. C, c. 145.
(2) Fost. M{) ; 1 Ruas. Cr., 5 Ed., 161 ; Burb. Di^j. Cr. L. 42 ; Vaux's Case,
-I Co. 44 ; Bish. New Cr. L. Com., s. 651. See aho R. v. Kelly, C. & K. 379.
5
60 l'HA( TICAI, (IIIDK Til MA(irSTKATF,S.
child luidei' ymirs of discrotioii. a inadmaii (V Dtlior porson of
defective mi'iital capacity, or any (Hie excuwod from ivsjioiisiliilit y
liy iii'iioraiice of fact or otiicr canst'. (1)
Where A induced 15. a cliiid of nine, to take money from his
father's till, and give it toliim. A. it was hd't to the jury to sav whe-
ther H was uctina,' unconsciously of i;-uill at the dictation an<l as
tlie innocent a,i::ent of A. (2)
A ii'ivi's to H. a note \\lii<di he knows is forced, and asi<s him to
H'et it eashi'(h If H n'ets it caslied. not knowiuLj; it to lie forii'ed.
the innocent ntteriiii;' liy him is the guilty uttering of A. tliough
A is alisent wlien it is done. {'4)
if a per.sou lunployed as an instrument is aware of tlie nature ot'
tlie act, hut mcreh' concurs in it. in ordei- to detect and punish
the person omi)loying him. hi' is. in that case, also consideri'd and
treated .is an innocent agent. (4)
K<>ii4loi*iii}>' Aid Bdoroliaiid. — A ]ierson who. before
tlie commission of an offence, does something to aid in its heing
committed, may also he a ]irincipal. without heing ]iresent when it
is actually committed or com)ilete(l.
A. a servant, let \\ into his master's house to steal therein his
masters money. M continued inside until he committed the theft,
hut A left tilt! house before the theft was actually committed. A
was a liarty to the offence ; (5) and would now he held a
lirincijial.
A. u servant, unlocks the door of the house, that H nuiy enter
and steal therein, which he doc^s aliout 20 minutes after A has left
the house. A is a ]irincipal otfender. ((>)
('oiiiiNelliii^: or AdviNiii^ an Oftc>iic*(>. — A person
who counsels or pi'ocures the commission of an ort'ence. or who
(1) Fost. 349 ; 1 Bish. Cr. Law Com. s. 651.
(2) K. v. Manley, 1 Cox. C. C. 104.
(3) R. V. Palmer i*!; Hudson, i New Rep, 9().
(4) R. V. Bannen, '-' Mood, C. C. 309 ; 1 C. & K. 295.
(5) R. V. Tuck well, C. & M. 215 ; 1 Russ. Cr. 158.
(G^ R. V. Jeffries & Bryant, Gloucester Spr. Ass. 1848, Cresswell iV
Patterson, JJ., MSS., S. G., 3 Cox, C. C., 85 ; 1 Russ. Cr. 159.
COUNSEI.MMi (iH ADVfSFNd AN OFB'ENCK. 61
(ln(> ii ilirou;:,li llu' iiu'diiiiii ot'u (juiUij a^i'iit is noci'ssiirily iihsnit
wlicn tlic ott'oiife iw actuiilly (Minuuilti'd ; or. if ])ivsi>iit. \w would
lie dninu' or iiidiiig iit tliu very act itself. It sct-ins to 1k' in tin-
very iiiitiirt' of tldnii's that there sliould he no dislinclinii drawn
hetwceii tlu- n-uill of one wiio |iro(!invs a erime to heihtne and tliat
of the ai^-ent wlio does it tor iuiii ; or. at least, the distintition. if
any. >hoidd not lie in favtir of tlie procurer. It is only rii,'ht that
the iiroeurer or any one who commits an otfeiice hy the ai,'encv of
another should he treate(l as a |(riii(i|ial. whether his agent or
in>trunient l>e a guilty or an innocent one : for qui. facit per alium
I'acit per se, — what one causes to he done hy another is regarded as
done hy himself. ( 1 )
The procurenu'nl nuiy he personal hetween the procurer and the
iloer : or it may he through the intervention of a tldrd party:
and it will he sulticient even though the emjiloyei- merely direct
his agent to jjrocure some otlier person, without nanung'him. (2)
It may he direct.—hy hire, counsel, (u- command, or hy conspiracy ;
or it imiy he indirect.— hy expressly evincing, (that is. evin.'ing hy
some words or actions), a liking for, approhation of or assent to
another's criminal design of coiumitting an ortenee. (I',) StU' a
mere silent acquiescence would not he sutticient. (4)
The procurement must he continuing ; for if th.' procurer re-
pent, and. hetbre the otience is cunmitted. actually countennaml
his order, and the person whom he has ordered coun.sellcd or
procured per.sists in comnut ting the offence, in spite of the ccmnter-
mand. it seems that the original contriver will not he held re-
nponsihle as a party to the offence. ; (5) but, by having counsulled
the commi.ssiou of the crinu>. he may be held guilty of an attempt to
commit it, notwithstanding his subsequent repentance. For when
a per.sou with crimimil intent advi.ses another to commit an offence
winch the other does not commit, the soliciting or advising, in that
ca.-e. constitutes, on the part of the per.son counselling and ail
i vising, an attempt to commit the offence solicited by hini! (t;)
(1 ) Broom's Leg. Max.. i' VA. 643 ; Co. Lit. 258 a.
(2) Fost. 121, 125 ; R. v. Cooper, 5 C. & P. 535.
(3) R. V. Cooper, 5 C. & P. 535.
(4) R. V. Atkinson, 11 Cox C. C. 330.
(5) Arch, Cr. PI. 11.
(6) R. V. Gregory, L. R. l C. C. 77 ; 10 Cox, C. C. 459.
62 PKACTICAL (iriDK To MA(1 ISTRATES.
ll' 11 purHon ordrr, uoiinsi'l or advisi- oiu- criiiu'. ainl llu- itiTson
ordered, counsi'llod or lulviMed intentionally cominit anotlu'r. as, for
instance, ii" ho bo ordered to Imrn a Iioiisc and instead of tliul lie
coinmit atliet't. or if his instniclions arc toconiinil a crinie au"ainst
A, and instead oi' doinju; so \w purpose 1 1/ (lunmit (lie crime ai;ainst
IJ, the person so ordering will not In' answerable. Mill if it be
merely by mistake that he eonmiits the ottence ay-ainst H instead of
A, in that ease the person ordcrinif would l)c responsililc. (1) And
it is eleaily laid down by liic above Art icii'. (!2. tliat be who
eounHels or procures the eommission of any ntlciHc is a parly to it,
althongh the oll'ence itself be eonimitled in a way ditlerent from
that which was connselled, and he is a party to every ottence
which is eoinniittcd in coiise(incnce of siicli coiinscilini;', and wbicli
he knew or onglit to have known (o be likely to be coiiiiiiittcd in
consequence of sueh eonnselliny ; and. therefore, both by this
Article and Ijy the common law, he is liable for every t hi nn' that
ensne-> upon the execution of (he unlawful act counselled or com-
manded.
A comnninds B to beat ('. and B beats bini to such an extent
that he dies. A is a part}' to the iiiurdi'i". (2)
A commands B to burn C's bouse, and in the burniiiy;. the lumse
of I) is burned also. A is a party to the otfence of burniii!;- D's
house. (H)
A hires B to kill (' by means of poison, .ind instead of poisoning
him. B kills C by shooting liim. A is a ]>arty (o (hi' murder. (4)
Not only is a person liable for what is done under his actual or
jiresumed authority ; (5) but the agent also is liable for an un-
lawful act done by him under the express or implied authority of
bis jirincipal. (6)
AidiiiK aiiKl Al»ettiii}i; at tlit' C'uiiiiiiiM.sioii ol
tli*"^ OIlViK**'. — A jierson may be considered as a principal
(1) Fost. :570 et seq. ; 2 Hawk., P. C, c. 29, s. 22.
(2) 4 Bl. Com. 37; THale, ()17.
(3) R. V. Saunders, PJowd, 475.
(4) Fost. 3(19, ;i70.
(5) R. V. King, 20 U. C. C. P. 248.
(6) R. V. Brewster, S U. C ('. P. 208.
ArCKHSORIKS AKTKR TlIK FACT. 63
in'csfut aiiliiiLf iiiid iiln'ttin.!;- in tla- I'omiiiissioii of an dH'cnei', with-
out Ills |iriscnri' lit'ini,' siu-li a strict, actual. inmuMliatc ))rcsonco as
\V(,ulii iMiilo' liim !iii eye or car witness of wluit is |»assini,' ; it may
lie a (■on>liMicliv(' iircsciu-c. (I) So that if a nnniluT of jxtsoiis set
dill toi-'dlicr, or in small parties, iijion one common design, lie it
nnirdcr or an\- oiher otVence. or for any other unhiwful purpose.
*an<! each taUcs the part assi-iMied to him; Homo to commit the act.
(ilhci's to watch at pi'ojK'r distances and stations to prevent a sur-
priNC or Id favor if in'cd lie the escape of tliose more immediately
enuimcd. lh"V are all. provided the act he committed, present at
il. in the eye of ilie law. for the jiart talien by cadi miin in his
parlicnlar sialmn tended to o-ive countenance, cm-ouragemcnt an<l
proteclioii to ihe whole n'aiin- and to ensure the success of their
common cnterpi'isi'. (2) If. however, the oriji'inal purjtosc of per-
sons assemhlinii' and setting out togetlier he a lawful one, and if
their t-ommon jinrpose he prosecuted hy lawful mi-ans. aiul opposi-
tion to them he made hy others, and one of the o])[iosing party is
killed in the slrngnle. the |ierson actually hilling may be guilty of
culpable homicide, but the |)ersons engage<l with him will not be
involved in his guilt, uidess they actually aided and abetted him in
the fact. (■!)
.!<•«•«'«!»««» I* ii'.s an«'i' <li«' FaH. — Article (JiJ of tlie Code
declares that. "An accessory after the fact to an otlence is one who
receives, comforts or assists any one who has bei'U a l>arty to
smdi olVence. in order to emihle hiiu to esca]ic, knowing him to
have ln'cn a i)arty tliereto : and. that, no married j)er.son whose
h\isband or wife has been a pai'ty to an ott'ence shall become an
accessoiy after the fact thereto, by receiving, comforting oi* as-
sisting the oth'r of them, and no married woman, whose Imshand
has been a ]iarty to an offence, shall become an accessory after the
fact thereto, by receiving, comforting or as-sistiug, in his presence
and by Jiis authority, any other person who has been a party to
such (dfence. in order to enable her husband or such other person
to c^ca]K'.
(1) 1 Russ. Cr. 5 Ed. 157.
(2) Fost. ;^50 ; R. v. Howell, 9 C. & P. 437. Sea also R. v. Slavin, 17 U.C.
C. 1'. 205.
(3) Fost. 354-5 ; 1 Russ. Cr. 163-4.
64 I'llACTK Al. (il IKK TIP M.\<1 ISTHA IKS.
The evident luisis ol' this otVeiice i>. lluit li> iissisi iin oU'eiMler to
esca|K' |iimishmt'iit is. in principle, iiii olislnielinn nt' |iiil>lie justice,
ol'tlie snine iiiitiire as reslstinn- a peace i>tliecr in niai\in^ an arrest,
or resciiinii' a prisoner under arrest, and otiier iiki' otVencL's. 'I'o
lie an accessory after tin' tact, a man must lie aware of the •;Miiit of
tlie |)crson wlioin lie harliors or assists And one does not lieeonu'
an accc'ssory after the fact hy mei-ely nci^'iectinn' to inform ihe
authoi'ities that a crime has liecn committeil. or hy forln'ariny to
ai'vest the oll'ender. (1) 'l"he accused niiist ha\'i' done some act to
assint tlie pvineipal otti'iider in relation to the crime whiih he has
eoniniitti'd. (2) liul if a person employ another to harhor or
relievo the priiici|ial otfeiider. he is e(|iially n'li'lty as an accessory
after the fact as if he did the harhoriny,- and i'elic\ inn' per.sonally. (8)
The test of an acci-ssory alter the fact seems to lie that he reii-
dorw tlie princii»al ottondtM' some active personal help to eiialile him
to escape jiunislinient. as. hy furnishiiii;- him with money or food
to s\ip])()rt him in liiilin<;-. or hy siipplyinn- him with a horse to
eiiahle him to tly from his pursuers, or a house or other shelter to
ooncoal him in. or hy using open force and \ ioleiice to protect him.
or hy conveying instruments to an ott'ender to enahle him to hreak
jL^aol, or hy hrihiii<>- the ii;aoler to let him escajK-. (4) Of course,
when a ])i'rs()n actually I'cscucs an oth'udcr from jirison or from
lawful custody, the rescuer is not tndy uuilty of heing an acci'ssory
after tlie fact to the otlier's ott'eiice. if he has actually eomniitted
one, but also of the suhstantive oti'enee of rescue ; and lie may be
indicted either way at the election of the ])rosecutioii. (5) Hut
where the reseue is ejected hefore the princi|ial ottender has heeii
eonvictcHJ. the pro.secntion would ]irolialily prefer to prosecute the
rescuer on the suhstantive otfence of rescue : for. when a person is
in ])risoii or in lawful custody upon a criminal dnirge. it is an
ottence to reseue him oi- to he)]) him to hreak ]»rison. whether the
j)risoner be guilty or not of the crime charged against him. ((!)
(1) IHale, P. CGI 8, 619.
(2) R. V. Chappie, 9 C. & P. 955.
(3) R. V. .Tw.rvis, 2 M. & R. 49.
(41 4 Bl. Colli. 3H.
(5) R. V. ^iirridge, 3 P. Wms. 439, 483,485, 493.
(6) See Articles 1G5-167 of the Code. R. v. Allan, Car. ili M. 295; R. v.
Haswell, R. & R. 458.
rj.MITATHiNS iiK TIMK. I NhKIt TIIK ciiDE. 6S
Wlifi'c si'\('riil itriiicipil otlciidi'i's iu'c n'liilly of ii JninI cfiiiic. I lie
jpfrsiPii li;irlMiriiiii' lliciii is tfiiilty nt' n si'|iiinit(' oflciicc tui- caili nl'
I lie (iHcllilfr'^ wliolll lie liill'lpol's, (I)
CMAI'TKIf V.
I'lXTKNI' (iK IIIK ('itl.MINAI. L.WV AS TO Tl.MK. PkUSUNS. AM>
I'l.A.K.
!\o liiiiiilalioii 4»f' Tiiii«' iiikIoi* <Ii4> (oiiiiiioii
lill%v. — I iiilcr t lie cominoii liiw. lliiM'c is n<> tiiiic limited lortlu^
pi'dsi'ciitioii of iirocei'diiin's jil tlic suit uf tlic Crowii ; and. tlicro-
tofe. tlif iiroccfdinn-s in all iTimiiial cases, in relation to wliieli tho
lime is not limited hy stat ute. may lie |iroseeiile(i durinfr the lifo
of tlie jierson (diarized, at any leiiL'tli of lime after tin' eomiiiission
of llie otfeliei'.
liiiiiitalioiiNot' Tiiiio iiiidoi* llicfriminal <'od<>.
— It is |irovided. hy Article i)'>\. llial no iiroseciilion for an ott'eiu'o
ay-aiiist tlie Code, or action for penalties or forfeitures, shall bo
eonimenced —
(a) after tin e.\|iiration of tiikkk vkahs from the time of its
commission, if siudi otience he —
1. TREAso.N. e.\ce|it treason hy killini'- Her ^rajesty. or wliere tlie
overt act alle.i>-ed is an attemjit If) injure the person
of Her .Majesty (section (J5) ;
2. TUK.\so.vAiii,K oKPENCES (section (i!t) ;
:!. any offence a.^ainst Part XXXIII.. relatiiijn' to the KRAiiU-
ri.KNT MAHKi\(i OK .mkrcha.ndisk ; nor
(b) after the c.vpii'alion of two veahs from its commission, if
smdi otfenei' lie —
1. A FUAIil ll'o.V THE (iOVERNMENT (sOCtioU VVi]) •
2. A roRRiri'T PRACTICE IN MUNICIPAL AFt^'AIRS (sCCtiOTl VAG) \
3. CNLAWFIM-V SOI.E.MNIZINO .MAKRfAliE (soetioH 27!)) ;
(c) after the expiration of one veak from its commissi ir.. if such
otfence ho—
(1) K. V. Richards, L. R. 2 (.1. B. D. :ill.
66 PUACTUAI. (il riiE TO MACJISTRATKS.
1, OPPOSlNd KKATtlNll OK KIOT ACT Ulul ilSScmllHllH- ilf'tOV ))VOC,]a-
iimlioii (st'ction s;^) ;
2, KEFUSING TO DKI.IVKK WKAI'ON to JISTK'K (si'ctioll 1K5);
3, COMINO ARMED NEAR I'l BLIP MEETIXC (scctioil lit) ;
4, I,YtN<i [N WAIT NKAR I'lHI.K' MEETINti (si'ctioil 115);
5, SEDiTTioN ul'jj;-irl iiiidi'V sixti'on (soct-'oii ISl) ;
6, SEDUCTION iinik'T promise of mavriiigo (section 1H2) ;
7, SEDUCTION of il wai'd. clc. (section ISi-J) ;
8, UNIiAWKUUUy DEKll,IN(i \V(t.MEN (section IS')) :
9, PARENT OR (ilARDlAN PROCURlNCi DEKl I.K.MENT OK GIRL (Sec-
tion 1S(>) :
1(1. IKiUSEilOLDERS PKRMITTINO DEFILEM Eh'T ol' (ilRLS OX THEIR
PREMISES (section 1ST) ; nor
(d) after the ex|iiiMtion of SIX :montiis from its commission, if
the otfenee be —
1. UNLAWFUL DRiLLiXd (section S7) :
2. BEING UNLAWFULLY DRILLED (section SS) ;
3. IIAVINO POSSESSION OF ARMS for ])UViJOses thmgernus to the
l)nl)lic peace (i'art VI.. section 102) :
4. PROPRIETOR OK NEWSPAPER PUBLISHING advertisement oti'er-
ing REWARD for recovery of stolen i)ro|K!rty (section
157, pi.ra,i;ra])h (d) : nor
(p) after the e: i iration of three months from its commission,
if tlie offence be —
1. cruelty to ANIMALS (under sections 512 and 5i:]) :
2. railways vioLATiNti PRoAMSiONS relating to conveyance of
cattle (section 514) :
3. REFUSING PEACE OFFICER ADMISSION To CAR. etc. (section
515) ; nor
(f") after the ex})iratioii of one month from its commission, if
the otfence be —
1. IMPROPER USE OF OFFENSIVE WEAPONS (sections KKS. and
1(I5 to 111. inclusive).
And the same Article furthei- i)rovides as follows : —
No person shall be prosecuted, under the provisions of section
(i5 or section (!!» of the Code, for anv overt act of treason.
itTllEK LIMITATIONS. 6*7
t'xpivsscMl or (lecliiird \>y (^pcii and mlvisi'd sjioakiiig-, unk'ss iiifonu-
ation of suoli overt act, and of the words by wliicli the same was
exprcHst'd or declared, is u-jvoii u|ioii oath to a justice within six
DAY.s after the words are spoken, and a warrant for tlie a])pre-
hension of tlie oti'eiider is issm-d within tk.\ days after such
information is yivi-n.
Otlit>r UiilitatioiiM.— An infornialion or eo!n|tlaint in
summary proceedings in respect of any otfence under tiie follow-
ing Acts, must lie laid within twki.vk months from tlie time when
the matter a'-ose. namely, in respect of —
(a) .Vny otfence agair.st the Steamboat Inspection Act; (1) or
(Jj) Any ortence against the Inspection of Ships Acts; (2) o.
(c) Any otfence against (he Deck and Load Linei Act. Qi)
All ijroceedihgs under the Trade Marks Act must he hrouglit
within twelvk months froni the commission of the otfence. (4)
Kvery penalty and torfeiture incurred under the Cullers' Act
must (excejil where otherwise provided) he. sueil for within
TWELVE MONTHS after the otfence is committed, (f))
No action ov i.vosecution tmder the Copyright Act can he com-
menced more than two vkaks aftei' the cause of action ari.ses. (6)
; IVnalties under the Fisheries Act. or the regulations made under
[ it. must he sue.l for within two ye.vhs from the commission of
! the offence. (7) And i)ru.seeuti()ns under the Electric Light Inspec-
tion Act must he commenced within three .months, (8)
No information or complaiul. in suTiimary proceedings, in the
ca.se of any violation of the Montreal Harbor Commissioners' Act.
1S!)4. or of any hy-law uiuh-r that Act. can he made or laid after
(1) 52 Vic, c. 23, sec. 5.
(2) 54 and 55 Vic, c 37, sec 13.
(3) 54 and 55 Vic, c 40, sec. 18.
(4) R. S. C.,cap. 03, sec. 3(i.
15) R. 8. C, c 103, sec 43.
(6) R. S. C, c 62, sec, 34.
(7) R. S. C, c. 95, sec 19, subsec. 3.
(8) o7-58 Vic, c. 39, sec 'M.
G8 I'KAITIC.VL (II IIIK rn MA<;lSTKATKS.
lln' i'X|iiriitii)ii of TWit YKAKs tVoin tlic tinu' wIumi llic inuttor of
i-()iii)»liiiii1 (H- iufonnatioii arnsc. (1)
I'roci'i'diiiys for tlu' rccovorv of any iK-iialty uikKt tlie Act of
1888. aiiK'udiiig the Weights and Measures Act as to packages of salt.
must In- instituted within twknty i>Ays after (kdivery of the
l)acka,ii:e of salt, in res pee t of \vlii(di a contravention of tlie Act
is ehiinu'd to have been eonimitted. (2)
Coiiipiitatioii of the liiiiitoil time. — In a ease based
n]»:in the re|)eakMl statutes relatinif to coin, it was iield that the
information and jtroeeediiiifs liefore the magistrate, upon the de-
fendant helng taken, was to lie (U-emed tlie ••commencement of the
prosecution." Q\)
Where the wan-ant of eojnmitinent for ti'ial for the otfenee
was within the time limited. b\it the indictment not till afterwards,
it was held suttieient. (4)
The mere isSMmi/ of a warrant to apprehend the tlefendant was
held not to bt a commencement of the prosecution ; (5) but that it
was necessary to show, in addition to the issuing of the warrant,
that it was executed within the tinu» limited for the commencement
of the prosecution. (0)
Proof of a warrant to apprehend the defendant was held not to
be evidence of the commencement of a jivosecution within the time
limited by the 9 Geo. 4. c. 6J>. s. 4. although the warrant was issued
within the twelve months prescribed by that section, and although
it recited the laying of the information, but it was held that the
information itself shoiUd have been given in evidence. (7)
• Bringing the prosecution " is not the hearing or trial, but it is tlie
initiation of the proceedings by the prosecutor. (8)
(1) 57 and 58 Vic, c. 48, sec. 52.
(2) 51 Vic. c 25. sec 4.
(3) R. V. Willace, 1 East, P. C. 186. *- aho R. v. Brooks, 1 Den. 217.
(4) R. V. Austin, 1 C. & K. 621.
(5) R. V. Hull, 2 F. & F. 16.
(6j R. V. Casbolt, 11 Cox, 385, 38().
(7) R. v. Parker, L. & C. 43? ; 33 L. J. (M. C.) 135.
(8) R. V. McKenzie, 23 N. S. R. 6.
('(».MPirTATIf)N IIF TlIK M.MITKI) TIMK. (I!)
Wlu'ir till' liiw ivquiirs tliat the |»avty sluill l)i' prosecuted nr tluit
Ihi' prosiTiitioii shall Ik- CDinmeiiced within a limitod tiiiu' after the
coniiniHsion of the ottcnce .it i.s Muffic-ioiit ti) make the e()in|ilaiiit oi'
lay the iiilbi-matioii within that time, althoiii^h tlio eonviotioii
may "<>t taUe |)lace until after the expiration of the time limited. (1)
Mut where the law provides tlnit the part}- shall lie ronvicted with-
in a stated timeafterthe eommis.sion of the otfenee. the mere laying
of the information witliin that time will not sufliee ; in that ease,
ilie eonvietioii itself must bj maile witiiin the limited time, or it
will he void. {'!)
'•Sunday" must he eounted, uidoss expressly excluded. (;{)
Verbal pr 'that a prisoner, cdiarged with a treasonable otl'enee
respeeting the coin, was apprehended, within three montlis after the
otieiice was committed, that being the time limited for j)i'osecuting.
was held insutticieut. where the indictment was after tliree months,
and the. warrant to apprehend or to commit was not produced. (4)
Where the prisoner was imlieted, in 18(5!). for nighl ])oaeiiing
alleged to have been committed in 1S(>3. and pleaded guilty, he
was allowed to withdraw his plea, and plead not guilty, and no
infornuition or warrant being produced showing that the prosecu-
tion had hoeii commenced within twelve calendar months as
directed by !> <Jeo. 4, c. CO, sec. 4. Byles. ,]., directed an acquittal. (5)
The time limited [\\y the commeucomont of a criminal prosecu-
tion liegins to run as soon as the act whidi constitutes the otfenoe
has taken place. For instance, it was hehl in an American case
that the crime of embezzlement was committed, and the statute of
limitations, relating to that otfence. began to run wlien the defen-
dant, as treasurer of a county, failed to i)ay over the county's
money, in his lumds. to his successor in otftce. and that the mere
(1) R. V. Barrett, 1 Salk. ;!,S3.
(2) R. V. Mainwaring, E. B. & E. 474; 27 L. J. M. C. 278 ; Dowell v. Ben-
ningfield, 1 C. & M. 9; R. v. Bellamy, 1 B. & 0. 500; R. v. Peckham. Comb
439; R. V. Tolley, 3 East, 4(i7 ; 1 Oke's Syn. 13 Ed. 13G.
(3) Ex parte Mmkin, 2 E. & E. 392; 29 L. J M C '>3
(4) R. V. Philip.s, R. & R. 3()9.
(5) R. V. Casbolt, ,-mpra. See, also.Tilladam v. Inhabitants of Bristol, 4 N.
& M., 144 ; 2 A. & E. 388 ; 4 L. J. M. C 35.
/
7tt I'RACTICAI, (il riiK Til MAiilSTIIATES.
tact of ii subsequent (Iciniiiid and refusal did not lake tlu' case out
of the oiteratiou of the statute. (1)
A defeiK-e l)ased upon the provisions of Article 551. !is to the
limitation of the prosecution., need not lie specially |iieade(l. but
may, under Article (iUl of the ('o<lo. be relied on under the ]ilea of
not guilty.
The Supreme Court of Kansas recently helil that the failure of
a defective indictment and the jireseutation of a new and correct
one, after the statute of limitations has lie«>-un to run, does not
revive the statute: but that the statute is put aside by the iiresen-
tation and tiliiiif of an indictment ajLjainst a defendant, and renniins
silent until the legal proceedings thereon are terminated : and. that
if a defective indictment is withdiawn by means oi'nnolle prosequi,
or dismissed with consent of the court, and an information is tiled
charging the defendant with the same otl'ence, the information
continues the legal proceedings which were commenced by the
presentation and tiling of the original indictment. (2)
In an Knglish case, an indictment for night p)oaching preferred
against the defendant. MMthin twelve months after the commission
of the otl'ence, was ignored. Four years afterwards, another bill
was laid and found against him. for the same olfence. and. upon an
objection that the proceeditig was out of time, Coleridge. J., doubt-
ing whether the tirst indictment was not a proceeding sutticient to
entitle the prosecutor to jiroceed. reserve<l the ])oint : but the
defendant was acquitted by the jury, on the merits. (H)
liiiiiitatiuii ot'tiiiii' in Niiiiiinary rroNC'ciitioiiN.
— In the ease of any offence punishable on summary conviction,
if no tivxe is specially limited for making any complaint or laying
any information in tin; Act or law relating to the ]iarticular case.
the complaint must be made or the information must be lanl within
six months froni the time when the matter of complaint or informa-
tion arose, except in the Northwest territories, where the time
within which such complaint may be nuide or such information
(1) 8. V. Mason, (Ind. Supr. Ct.), 8 N. Eaat Kep. 71l). See, also, Labal-
mondiere v. Addison, 1 Ei. & El. 41.
(2) S, V. Child, 24 Pac. Rep. 952.
(3) R. V. Klilminster, 7 C. »t P. 228.
MMITATION IN SUMMAK JT I'ROSEOUTIONS. Yl
mav hv laid shall l)o oxtoiuU'd to twelve months from the time
wJu'ii tlio luattcr of the eoinphiint or information arose. (Code
Art. S41.)
Although this article mentions the making of the complaint and
ihe laymj of the information as the necessary thing to be done
within the time iimiied. th" making of the complaint or the layin"
ofthe inl'ormation. as the ease maybe, should be followed uj) by
u.seful proceedings in the shape of a warrant or summons, and the
arrest of or otherwise bringing the 'lefendant before tlie magistrate
or justice.
The tinu' limited is counted from when the matter which gives
rise to the ( ffence or cause of information or complaint is com-
plete. (1)
The general rule is that where the law rcuiuires an act to be
done witiiin a certain time after the hajtjjcning of an event, the
day of the hai)i)ening of the event — for instance, the day of the
coinniission of the otlence, or of the arising of the matter of com-
jiiaint— is to be excluded, and that on which the act is done— for
instance, the laying of the information or complaint — is to be
included. (2) So that where the law required the com))laint to be
made within on", calendar month after the cause of complaint should
arise, and it appeared that on June 30th a comjdaint was made in
respect of an offence committed on May HOth. it was lield to be
made in time. (3)
Fractions of a day are not taken notice of. (4)
The w(jrd month " means a calendar month. (5)
Some offences may be continuing offences, such as, for instance,
neglecting to nniintain a family, punishable under the law as to
(1) Hill V. Thorncroft 3 E. & E. 257 ; Jacomb v. Dodgson 27 J. P. 68 ; 32
L- J. M. C. 113.
^i'^vM.'^'"' ''■ ^"'"''^"^"tsof Wonford, 9 B. .t C. 134; Hardy v. Ryle, ib.,
bb3; Williams vs. Burgess. 12 A. ct E. 635 ; Freeman v. Reed, 32 L. J. M. C.
C') Radfliffe v. Bartholomew, L. R. 1 Q. B. 161.
(4) Lester v Garland, 15 Ves. 248 ; Field v. Jones, 9 East. 154 ; Latless v.
Holmes, 4 T. R. 660 ; Freeman v. Reed, supra.
(5) See Interpretation Act, R. S. C, c. 1, sec. 7, par. 25.
7- PRACTICAL OriDK TO MAC1I8TRATES.
vagrants : and tlicsiMiiaA'-lii' always williin ilic limited tinu' ; and
tlicii' aiT Dtlonc-i's \vl)i(di may bi' constantly vt'cnrrini;-. as wliore tlu^
law imiiosos a ])onalty foi' disoboying a notice or order, and each
disobedience is a distinct otl'enoe, a fresh penalty beinif incurred
every lime a similar order or notice is served and disobeyed. (1)
in su(di c.ises the time for ayini>- the infornnition runs from the
• late of the service of the f ret h notice or order. (2)
•• Imme<liatel3' " and -forthwith" do not mean on the instant.
but with reasonable ])romptne,ss. and without unreasonable delay,
iiavinu rei!;ard to all tlu' cii'cumstances of the case. (;^)
Where a statute dii'ccts any act to be imide within somi.iydays.
or a notice to be given so many days -at the least." these words
mean •clear days." i. e.. a number of intervening days. (4)
PcrNoiiN to whom tliv i'riiiiinul I^hw Kxtc'ndN. —
The criminal law extends to all jjcrsons. cxce|it the I'eigning Sover-
eign, who is absolutely exempt from it. and foreign ambassadors,
who are exempt to an extent not precisely determined. (5)
liXtoiit of tlio I'riiiiiiial Ijau' of Canada aw to
l*la<'l'. — ft is said that, " tlie criminal law of Canada extendM to
all otleiu'cs committed in Canada, or on su(di ]iart oi' the sea adja-
cent to the coast of Canada as is witlun one marine league trom
ordinary low water mark, or is deemed, by International law. to be
within the territorial sovereignty of Her Majesty, or committed by
any jierson on board any Mritish shi]) or l>oat,on the great lakes or
on the high seas, or in any place wliere the Admiralty of Kngland
has jurisdiction, and to [)iracy by the Law of Mations wherever
committed." (6) •
(1) Allen V. Worthy, L. R. 5 Q. B. KCi
(2) Knight v. Halliwell, L. R. 9 Q. B. 412.
(;!) R. V, Aston, 1 L. M. & P. ''.91 ; 19 L. J. M. C. 2:56 ; Hancock v. Somes
lEl. iS: El. 795; 28 L. J. M. V i96; Costar v. Hetherington, 28 L. .1. M. ('.
198; Hudson v. Hill, 43 L. J. C. P. 273; R. v. Berkshire, J. J., 48 L. J. M. C.
137.
(4) Mitchell v. Foster, 12 A. & E. 472; Zonoh v. Empsey. 4 B. <& Aid. 522.
(5) 2 Steph. Hist. Cr. L., 2-9, and 43-56.
(B) Bur. Di).'. Cr. L. 9 ; R. v. Cunningham, Bell,C. L. 72 ; Atty.-Gen. (Hong
Kong) V. Kwok-a-Sing, L. R.7 P. C, 179; 2Stepli. Hist. Cr. L. 27.
KXTKNT OK TIIK TRIMINAI, LAW. AS To IM.ACE 73
All Ai'ticlc to tlii.s ottl'ct wiis coiitiiiiu'd in our ( "rimiiiiil Code,
wlu'ii tivst inti'odiU'od. I)ut. in comnutti-o. it was allnwrd to diMji,
;illlinuii:li considi red to 1h' a correct statement of tlie law.
A tbreiiiiici' who comnxits a criminal ottenoe against anotlu'i-
forciii'iier. or aii,'ainst a lii'itisli snl)ject. on hoard a foreign ship, on
the 'iii:;h seas, outside of tiie territorial waters of Her .Majesty, is
not triahle in ITer Majesty's Dominions. (1) This was held even
in I lie case of a slii|> wliicli (thou^di foreiii,-n hnilt) carried the
iiritisli tinix. 'I'he jirisoiier was one of tiie crew of a slii|i Imilt in
ilol^tein. whence she .mailed to Louihin. Huijland. All the olticers
and crew were foveifjners. The reifistored solo owner, one H.. was
an alien horn, tlnm^ih described in the register as 'of London.
Mcrcliant. " The shi|i sailed on a voyage from London, under the
liritisli flag. While on the voyage, tlie prisoner killed the master.
on lioard the vessel, when several thousand miles from England.
and 200 miles from land. On tho trial for murder, no evidence
was given that \l. the owner of the ship, luid heen naturalized, or
had (ihtained letters of denization ; and it was held that there was
HO cvidi'iicc that the ship was British, and that, consequently, the
prisoner could not he convicted in England. (2) * ■
Kormcriy. liei' Majesty's Courts luul no jurisdiction over an
otteiH-e committed hy a toreigner on hoard of a foreign ship, even
if at the time of the crime heing committed, the ship was within
the tci'ritorial waters of Her .Majesty's dominioTis.
It was ,so held in the case of H. v. Keyn. (•{) That deci.sion led
to the jiassiiig of the Imperial Statute. 41 & 42 Vie. e. TA. (The
Territorial Waters Jurisdiction Act 1878), amending the law. so tliat
a foreigner.as well as a British subject on board a foreign shi]. nniv
he tried by tiie courts of Kngland or of any of iler Majesty's Doi.'i-
unons for an otfence committed on the open .sea. ])rovided the
occurrence takes place w(//tm the territorial waters of Jler Majesty's
donunions (section 2). and subject to the consent, as to the United
Kmg<lom, of one of Her Majesty's Principal Secretaries of State,
(1) R. y. Lewis, 26 I.. J. M. C. 104; U. v. De Mattos. 7 C. & P. 458; K. v.
Kohn, 4 K ct F. 6(i ; R. v. Depar.lo, R. <.t R. 134.
(2) R. v. Bjornsen, 34 L. J. M. C. 18(i.
(3) K. V. Keyn, 46 L. J. M. C. 17.
74 PRACTICAL (HIDE T<l MAGISTRATES.
or. — US to casoH iirisiiKjf in any part of IIov Majosty's dominions
oulHidi' of tiic; United Kingdom, — Hubjt'ct to the consent of the
Governor of that part, (section 3). •
The jurisdiction of tlie Admiralty extends over British ships, not
oidy on the high seas, l)ut also ii. foreign rivers, helow bridges
where tlie tide ebbs and Hows, and where great ships go. although
the muniei])al authorities of tlie foreign country may be entitled
to concurrent jurisdiction. (1) So. that a person, wliethera Urilish
subject or a ibreigiu-r, on board a liritish ship, on the high seas, or
in foreigi\ rivers below bridges, where the tide ebbs and Hows,
and where great ships go, is subject to the laws of Kngland,the
same as if he were on Hritish soil, such a ship being, in law, part of
the territory of the United Kingdom. (2)
Thus, where a foreigiu'r was eonvicted. in Hiigland. of man-
slaughter committed on board a British shi[» in the river Garonne,
in France, about H5 miles from the sea, and about ;{00 yards from
the nearest shore, within the ebb and How of the tide, the convic-
tion was upheki. (Ii)
So. also, where a ])erson committed a larcetiy on board a Britisli
ship lying aHoat in the open river at IJotterdani. moored to the
([uay in a i)lace where large vessels \isually lay, 18 miles from sea,
between which and the ship there were no bridges, and within the
ebl) and How of the tide, it was held that the larceny took place
within the jui'isdiction of the Admiralty, and, therefore, that a
person who. afterwards, in England, received the property so stolen,
could be tried at the Central Criminal Court, as the thief himself,
even if he had been a foreigner, not one of the crew, might have
been so tried. (4)
U])on an indictment for larceny on board a vessel lying in a
river at Wamjiu, in China, the jtrosecutor gave no evidence as to
the tide Hewing ; but the judges held that the Admiralty had
jurisdiction, it being a place where great ships go. (5)
(1) 11. V. Anderson, L. R. 1 C. C. K- IGl.
(2) R. v. Lopez, Dears & B. 525.
(3) R. v. Anderson, supra.
(4) R. V. Carr, 10 Q. B. J). 76 : 52 L. .7. M. C. 12.
(5) R. V. Allen, 1 Mood C. C. 4!)4.
EXTENT OP THE rillMINAf, LAW, AS TO PLACE. tB
It lias Id'cii lu'ld that tlic litil)ility of a t'om^rior is not uflbotod
l>y tlic tiicl tliat 111' waH. ill tlii' first iiistanci', brought, illi-guliy on
lidiini llic siii) . uii'i'ss llio oHence committed by him was one com-
iiiitti'd iiu'ri'iy IWr tiic |)uriioso of frociiig liimscif from sucli uiilaw-
fiii n'stniiul. Tiicrofuiv. whoro a foi'oigiior, Inving commiltod a
criiiii' ill Kiighind, had tied to Hamburg, and was there arrested
iiiid torcfd on board an English shii), and, wliilo kept in custody on
board such slii],. on I be high seas, he killed the oftict^r wlio had
arrested him. not in order to escape, but of malice pre[)ense, it was
held that, even assuming such arrest and detention to l)e illegal, he
was guilty of murder. (1)
liy section 2(57 of the .Merchant Shipping Act, 17 and 18 Victoria,
chapter 1(14. (Imp), all otiences against property or ])er.son com-
mitted ill or at any place either ashore or afloat out of Her Majesty's
dominions, by any inastor, seaman, or apprentice, who at the time
when tlieotienceis committed is, or, within throe months previously,
i has been employed in any liritish sliip. shall be deemed to be
offences of the same nature resjtectively and be liable to tlie .same
imnishnieiits respectively, and be enquired of, heard, tried, deter-
mined, and adjudged in the same manner and by the same courts
and in the same jilaces, as if such offences had been committed
within the Juri.sdiction of the Admiralty of Kngland. (2)
F A hulk containing the general ait[)()intments of a ship, registered
as a British ship and hoisting the liritish ensign, although only
used as a floating warehou.se, is a l^ritish ship within the meaning
of the above enactment. (3)
Section 21 of the 18 & V.) Vic. c. !»1, enacts that if any Brifisb
subject charged with liaving committed any crime or offence on
board any Hriti.sh ship on the high seas, or in any foreign port, or
harbour, or if any person not being a British subject charged with
having committed any crime or offence on board any Jirilish .ship
on the high seas is found (that is to say, is found to be at the time
of his trial), (4) within the Jurisdiction of any court of justice in
Her Majesty's dominions, which would have had cognizance of
I] ) R. v. Sattler, Dears & B. 525.
(2) R. V. Dudley, 11 Q. B. D. 273 ; 54 L. .1. M. C. 32.
^ (3) R. V. Armstrong, 13 Cox, 184.
(4) R. V. Lopez, Dears & B. 525.
76 I'llACI'K AI, (11 IliK Til MAdlSTKATKS.
siicli criiiic orolVi'iicf il' (■(iimiiiltrd w itliiii I lie limits of it > nnliiijii'V
iiirisilictiiiii. sucli coiirl sinill liuvi- jiiriHiliclidii to Urnv ainl li-v I lie
OiiNC. as if siicli criini' nr olVfiicc liail Kcfii (•niiiiiiiUcil williin siidi
limits.
My soctioii 11 of'llu'i^d & :{1 Vict, c 124. if ii Mritisli sul.Jirt
coiumits il criiiic on lioai'd a l?ritisli sliip. or on lioiinl a forriirn
KJiiu to wliicii iu- (iocs not iicioni;. any court in tiic (^iici-n's
doiiiiiiioiis. w iiicli would liavc c(i(>'iiizancc of sikIi crime it
committcil on lioard a Hi'itisli slii|i williin tlic limits of tlic
oi'dinavv jurisdiction of sucdi court, shall liavc jurisdiction to licai'
and determine till' cast", as if the Huid ci'imc had liceii c(unmitted as
last aforesaid. (1) . "
I iider section :»of2-l(&2r) Viet. c. KKt. a British suliject who. in
a forcin'u country, within the dominion of a forci^-n powci'.
nuirdcrs a Mritisli suhjcet or a foi'eiu;ncr. is triable in Kngland.
This, in fact, was the stale of the law lieforo the passing of 24 & 2.')
Vict. e. loo. (2)
The leij;islalive jiowersofa colonial Icii'islature areeiuilined toils
own territorj-, and it cannot leijislate foi- ort'enees eonunitted heyond
the limits of tlie colony. (."5)
A magistrate has authority to enquire into otl'ences eommitti'd
on the i!;reat inland lakes ot Canada. thoULjli in American waters,
for they are witliin the admiralty jurisdiction and as thouii'ii com-
initte(l on the hitfh seas. (4)
Section 7 of the Territorial Waters Jurisdiction Act delines the
territorial ivaters of Her Majesty as hein.«r ••such i>art of the sea
adjacent to the coast of the l'nite(l Kin,i>;doin, or the coast of some
other part of Her Majesty's dominions, as is deemed, hy inter-
national law. to he within the territorial sovereii;-nty of llci'
Majesty." and declares that, ••for the purposes of any otiemc
declared hy the act to be within the jurisdiction of the Admiral.
any part of the open sea Avithiu ouo marine league of the coast.
(1) See Arcii. Cr. Fl. & Fa-. L'l Ed. p. 30.
(2) See R. v. Azzopardi, 2 Mood. C. C 2H8.
(3) See McLeod v. Ally. (ien. N. S. Wales, 14 L. N. 402-405.
(4) R. V. Sharp, 5 P. R. (Out.) 135. vSee, also, Art. 5(10 of the Code, p. 106, po^l.
HI'KOIAI. HKSTIirOTrnNS.
77
iiu-fisiircd I'niiii Inwvviilci' iimi'U. shiill In- (Iccincil fn lie opt'ii mcu
within till- Icn-itiiriiil watci-s of llci- .Miijcsty'sdoiuiiiiiius. '
Si'ctioM IS ofilic Iiii|>oriiil stutiiti', 5:^ & "t'.l Vict., c (i.{ (77te
Interpretation Act, IHS'.l). (Iwlairs that tlio oxiuvhsIoh •• (iovi'i-rntr '
>liiill, as ivs|)i'cts Cuiiadu ami Imlia, moan tlu^ (Jovi'i-iior (n'Mcral,
and incliidi' any piM'son who, foi- the time hoiny;. has the |iowcrs of
I he (Jovi'i'nor-dt'noral.
( Mr APT MR VI.-
Si'KciAi, Rkhtrictionh,
\ IMloSKCl TIO.NS liElil IKl.NO ('(INSKNT OK Til K ( i OV KII.Noll-( J KN KKAI, .
OHciMTw by Foi*(>i(>;ii<>^rN in Ad mi rally JiiriM-
-di<'li<»il,— The criminal code of Canada conforms to (he ahovc
mentioned Imperial enactments iiy providin<jj, in article .")42. that
procoodiiiirs for the trial and punisliim'nt of a person who is not a
Kuhject of Ifer .Majesty, and who is char<red with any ott'once com-
mitted within the jurisdiction of the Admiralty of F.ni^'land shall
not he instituted in any court in Canada, except with the leave of
the (lovcrnor-Cronoval. and on his eertiticate that it is expedient
that snih proceedings should lie instituted.
Proseci;tco.\s liKm;iiu\u tiik Co\sk.\t of tkk Atim.hnky-
(tKNEKAI,.
4»l»laiiiiiiK ««• <'oiiiiiiiiiii«>utliiK OfKriai liilor'
|llialioil — Xo person shall he prosecuted for the otR uce of unlaw-
[fidly ol.tainiiiii: an<l communicatiniu; ofKcial information, as deHned
'in se.-ti(ms 77 and 78. of the Code, without the consent of the At-
t..rney-Gencral or of the Attorney-tieneral of Canada r \rt -)4!
"ft he Code.) ^'
JlKlioial l!«rrii|»tioii.-Xo one holdin- anv jmlicial olKce
shall he prosecuted ibr the oftence of judicial corruption, as detined
n. section \?A ot the Code, without the leave of the Attorney-Gene-
ral of Canada. (Art. 5-14.)
7H VRACTICAI. (iriUE TO MAUISTRATES.
.^ukiiiiK or llaviiiK KxploMivf'M. — It' imy ikm-sou is
chiirgod hot'oro uJuHtic-o of tin* poiifc with tlii' ottbiici* ofmakiug or
having cxploHivo HuhstiiiiccH, as dcHiu'd in section 1((0 of the ('oth',
IK) ftirthcr prococdiiig shall Ik" taUi-n against, sucdi |u'rson without
till' consont of thn Attorncy-titnu-ral, oxccpt such as tlu- justico
of the peace thinks necessary, by remand or otherwise, to secure
the safe custody of such person. (Art. 545.)
€'riiiiiu»l llrcucli <»! TriiNt. — Xo proceeding or prose-
cution against a trustee for a criminal hrcach of trust, as dctiiuMJ
in section 'AGH of the (!ode. shall he corunieiiced witliout the
sanction of theAttorney:<reneral. (Art. 547.)
C'oiii'caliiitC KiK'UiiibriiiiccN. — No prosecution for c(>n-
cealing deeds and cncunihraiiccs, as dctincd in section ."{TO of the
(Jode.shall he commenced without the consent of tlie Attorney-
General, given after previous n()ti<'e to the person intt'iided to he
prosecuted of the ap])licatioii to the Attorney-<Tencral for leave to
prosecute. (Art. 548.)
IJttcrilli; Dc'latU'd 4*oill. — No jirocecding or prosecution
for the otfi'iicc of uttering defaced coin, as defined in section 476,
of the Code, shall he taken witliout the consent of the Attorney-
General. (Art. 54!t.)
Prosecutions REQtiiRiNO the Consent op uhe Minister of
Marine and Fisheries
Nondiiifi^ or Takiii;>; an UiiNcauorf liy Nliip to
Mt'a* — Xo ])ersoii shall he prosecuted for any otfence under section
256 or section 257 of the Code, without the consent of the Minis-
ter of Marine and Fisheries. (Art. 546.)
Live Stock Shii'PInu Act. — Xo ]>rosecution under section 7 of
this Act can he instituted except by or with the consent of the
Minister of Marine and Fisheries. (54 & 55 Vic. c. H6, sec. 7.)
Ofkences aoainst the Safety of Siiirs Act. — No prosecu-
tion under section ID A f)f the Act respecting the Safetij of Ships and
the prevention of Accidents thereon, (namely, sending or carrying dan-
gennis goods) can be instituted without the consent of the Ministei-
of Marine and Fisheries. (54 &. 55 Vic. c. 3?!. )
Sl'KdrAf, UESTKirTIONM. 79
Deck anh Ijoad liixKs Act. — Xo prosocution iiiidcr this Act
ciin lu' instituted oxcopt by or with t\w coiiMmit ol' the MiriiMtor of
.\[aniu' iiiid Kislu'rii'H., (si & 5'. Vic. c. 40, hoc. I'.t.)
('4»iiM«'iil Xoo<l X«l Ik* Avo»*r«'d. — It is uniiocoHsuiy to
stiitf in iui indictment tii:it any coi,«oiit required liy the above
Articli's of tiie Code liiis lieen oi)tainc{l. (\)
(1) Code, Art. 01 :!(/«).
THIRD DIVISION.
Prosecution of Criminal Offenders.
CIIAPTKJJ VII.
Indictable and XoN-lNDrrTAHLE Offences. — Jurisdiction.
Summary Arrest.
IiKlicfakli' and ^I'oii-liidictablo OftViK'cs.— £3-
the C'riminal Code, the di.stinction l)et\veon felony juul misde-
meanor has been abolished : and eriniinul offences are divided into
•• indictable offences." — that is. ott'enees which may be ]irose-
euted by indictment. — and, •• offences " Avhich are. not indictable,
but which are punishable on summary conviction. (Code, Arts.
535, 530).
With regard to indictable oitences, justices have merely the power,
as a general rule, to hear, by way of |)reliminary enquiry, the evid-
ence on both sides, and, if they think it sutticieut to put the accused
on his trial, to commit him accordinglj^ for trial by a highei- Court,
while, with regard to non-indictable offences and certain indictable
offences specially provided for. they have the right to hear and de-
termine them in a summary manner, that is. to hear all the evid-
ence on both sides, and either to convict or make an order against
the accused, or to dismiss tlie case.
*liiriMlii*tiwii ot tlit' CViiitiiial C.'ourtN.— In regard
to some indictable otfences. the power to tiy them is vested
exclusively in the Superior Courts of criminal jurisdiction ; while,
in regard to others, the Courts of (neneral or (^uai'ter Sesnions
of the Peace have jurisdiction concurrently with the Superior
CourtB.
|>l{i>SK( ITl'iN OF riUMINAI- (tPFENPERS. — JUlUSDICTrnN. SI
JiiriMliHioii of the Nii|M'rior Oiminal <'oiii*tN.
KvtTV Su|K.'riov Uoiirt of criiuiiiiil jurisdiction, and ovovy jiulgt!
of siicli court sitting as a court for the trial of criiuiiial causes,
and every Court of Oyer and Terminer and (reiicral flaoi delivery,
has powi-r to try any indictahie otl'enee. ((!o(le. Art. oMS. )
The Superior <'oiirtN of* Oiiiiiiiiil JiiriN4li('ti4»n
in the several I'roviiit'ON, — The expression •• Superior
Court of I'riniinal jurisdiction" means and includes the following
couvts :
1. ill till' jirovince of Ontario, the three divisions of the High
( 'ourt of .lustiee :
2. In the province of Quebec, the Court of Queen's Bench :
'.>. hi till' provinces of Nova Scotia. Xew Brunswick and British
Colniniiia. and in the .North West Territories, the Su[)renu' Court ;
4. In the province of Priiu-e Kdward Island, the Supreme Court
of .ludicat.ire :
.'). Ill the ]irovince of .Manitoba, the Court of tiucen's Bench
(Cmwii side). (Code. Art. '-i >/■)
KxeliiMive Jiiri.s<li«*f ion of Niiporior Courts.—
The indictable ott'ences which the Superior Courts of criminal
jurisdiction have the exclusive power to tr}' are enumerated in
Article o-tU of the code ; and. iilphabetically arranged, they are as
follows :
Ass.vii/rs ON TMK (it'EEN, (Art. 71 of the Code.)
AnMl.NISTKKI.NO. TAKIMi. OR PROCURING UNLAWKCl. OATlIt!, (Arts .
120. 121.)
Breach of Trist bv Pinuac Oipi^er. (Art. IHf).)
Co.MRI.VATIO.NS IN RESTRAINT O •' TUADE. (Art. 520.)
CoMMlNICATING INFORMATION OBTAINED BY HOLDINd OFFICE
■ (Art. 78.)
CoRHii'Tio.v OF Judges. (Art. \S1.)
CoRRii'Tio\ OF Proseci;ting Okpicers. (Ai-t. 1:52.)
CouKii'T Practices in Municii-al Affairs. (Art. I'M.)
Defamatory Libei,. (Arts. 285 to :{01'.)
82 PRACTICAL GUIDE TO MAOISTRATKS.
Frauds on the (tovernment. (Art. 133.)
Inciting to Mutiny. (Art. *72)
LiEELs ON Foreign Sovereigns. (Art. 125.)
Murder ; Accessory after the Fact to Murder ; and
Attempts, Conspiracies, and Threats to Murder. (Arts. 231
to 235.)
Piracy. (Arts. 127 lo 130.)
Eape ; and Attempt to Eape. (Arts. 'ZGI, 2CH.)
Selling or Purchasing Offices. (Art. 137 a.)
Spreading False News. (Art. 126.)
Treason ; Accessory after the fact to Treason ; and
Treasonable Offences. (Arts. (J5, 67, 68, 60. 70.)
Unlawfully Obtaining and Communicating Official In-'
formation. (Art. 77.)
Conspiring to commit, Attempting to commit, or Being Ac-
cessory AFTER THE FACT TO ANY OF THE ABOVE OFFENCES.
Article 540, as originally passed, included the otlences punish-
able imder Articles 159 to 169 of the code (Escapes and Eescues), as
being within the exclusive jurisdiction of the Superior Courts. At
the last session of the Dominion Parliament this was altered, so as
to give the General or Quarter Sessions concurrent jurisdiction
over them. (1)
Concurrent . I iiriNcliotioii ut (j}en(>ral or 4|iiurti>r
St'NNioiim.— All indictable offences, other than those above
enumerated as being within the exclusive jurisdiction of the
Superior Courts, may be tried either by a Su])erior Court of
criminal jurisdiction, or by any Court of (lenei'al or (Quarter
Sessions of the Peace, when presided over by a Superior Court
judge or a County or District Court judge, or — in tlie cities of
Montreal and Quebec — by a recorder or a judge of the Sessions of
the Peace ; and, in the province of Xew Brunswick, they may be
tried by any County Court judge. (Code, Art. 539.)
(1) 57 & 58 Vic. c. 57, sec. 1.
PROSECUTION OF CRIMINAL OFFENDERS. — JURISDICTION. SJ:}
Wliere Oltenders may he Trioil. — Subject to Artitlos
538. 5iJ!> anil r)4(), ovory <H)urt of criniiual jul•i^s(lic!tioll in ('aiiada is
competent to tiy all ott'encos, w/ierfiyer committed, if the accused is
found ov apprehended within the jurisdiction of such court, or if
he lias been committed for trial to such court or ordered to be tried
before such court, or before any other court, the jurisdiction of
which has by lawful authority been transferred to such first men-
tioned court undei- any Act for the lime being in force : Provided
that nothing in this Act authorizes an}' court in one province of
Canada to try any person for any offence commitied entirely in
iuuither ])rovince. except in the following case :
Every proprietor. ])ublisher. editor or other person charged with
the pnlilication in a newspai)er of any defamatory libel, shall be
dealt with, indicted, tried and ])unished in the province in which
he resides, or in which such newspaper is printed. (Code, Art. 640).
The words ■■all offences wherever committed" used in this Article,
nnist be interpreted to mean otf'encos committed wherever the
criininal law of Canada extends. (1)
.1lsi$;iNtoi*ial •liiriN(li4*tion —Of the many duties and
functions devolving upon, and exerciseable by, magistrates and
justices ot tiie jieaee, the most important are: 1, the ministerial
functions wiiicli I liey exercise in the ])reliminary investigation of
indictable otl'ences triable before a jury ; 2, the ministerial and judi-
cial functions which they exercise at and in connection with the
summary trial, without a jury, of non-indictable offences, and of
indictable offences subjected under special conditions to their sum-
mary jurisilietion ; and, ;^, the judicial functions exercised by the
magistrates authoriy.ed, under Article 5:59, to preside at the trial
of the indictable offences which are within the jurisdiction of the
'General or (Quarter Sessions.
The ])reliminary investigation of indictable offences may, under
the Code, be initiated by and be held before a single justice of the
])eace or more justices than .>ne ; (2) the iiulictable" otfences ren-
dered subject to summary trial under certain special conditions, are
triable before a magistrate or other functionary or tribunal having
(1) McLeod V. Attorney-Gen. N. S. Wales, 14 L. N. 402-405.
(2) Code, Arts. 654, 557, pp. 1(11, 103, post.
84 PRACTICAI, (IIIIIE TU MAUISTKATES.
du' |ii>\\xTs of two justices i»f the iK'a(.'i':(l) !iii(l.iii fho summary
Iriiil i)t' U()ii-iii(lictiiblc! oHi'iu-es. a siui^le justice will iiave jurisdie-
tioii. unless. Iiy the eniU'tmeut under which tlu' otleuee is triable
suniMKirily. two or luore justices are speeitied. (2)
Kxt'r<*i*«iii^^ lli«' P<»\v«'i*K 4>l Two •liiNtiot'N, — The
Judiff oft lie Sessions of the IVact' for the city of (^lU'liee. the Judge
of the Sessions of the Peaee for the city of ^^()ntveal. and every
recorder, police magistrate, district magistrati' or stipendiary nui-
gistrate aiipointed for any leri'itorial division, and ever}- nuigis-
trate iiuthorizod. i>y the law of the Province in which he acts, to
]ierform acts usually required to he done hy two or more justices
of the peace, may do alone whatever is authorizeil hy tins Act to
he done hy any two or more justices of the ])eace. and the several
forms contained in tlu^ Code may he varied as fur as necessary to
render tlu'iu applicahle to sucdi case. (Art. r)41.)
^'^orlli-Wf'Nt Tori'itorio.s aii«l li«'«'%t-atiii. — The pro-
visions of the Crimiinil Code extend to and ari' in fore in the
North-West Territories and the District of Iveewatin. exee]»t in so
far as tiny are inconsistent with the ]»rovisions of tlie iVbr(/i-PFes^
Territories Act or tlie Keewatin Act aiul the ami'udments tliereto. (3j
XTn(h>r the North- West Territories Act. tlie judges of tlu' Su])renie
Court of the Territories are vesteil with all the powers, authority
and jurisdiction vested, before the passing of the Act, in the
.-.tipeiuliary magistrates of tlie Territories : and the Uovernor-
(ieneral in Council may a|)point jiolice Magistrates in the Terri-
tories witli all the powers of two justices of the peace. (4)
Every jiulge of the Supreme Court of the Xorth West Territories
is given and exercises the powers of a justice of the peace, or of
any two justices of the peace under any laws or ordinances in force
in the territories; (5) and everv such judge has also the same
(1) Code, Arts. 782,783.
(2) Code, Art. 842.
(3) Code, Art. 983.
(4) R. S. C, c. 50, sec. 54 ; 57 & 58 Vic, c. 1", sec. 7. See p. 18, ante.
(5) R. S. C, c. 50,,sec.GG.
I'ltosKCHTloN OK CRFMINAL (IKH'KMIERS. — JtJRISDK Tln.X. K.")
powcc iiinl iiiillioi'ity tni' Iryiiiif otii'iu-fs in tlu' district of Kccwal in
as iriippoiiitcd asti))oii(liiiry niiigistratc uikIit \\w KeewatinAct. (1)
OtlVMiocs a,u;ai list t lie Uii'jrf/anised Territories' Game Preserration
Act. I8!)4. may (after llu- 1st .laTuiarv. l.S!)6) lie sii larily tried l.y
(a.) Any judirc of tlic Sujuvme Conrt of tlic Xoi-tii-wost Ten-i-
tories.
(b.) Any jiislice of tlio iK'ace in and for tlie Xortli-west Terri-
toi'ies.
(c.) Any conimissinnod otWcor of tin- Xorth-wost Mounted Police
(d.) Any game guardian appointed under the Act. (2)
F«slior.v O1li«'0rN— Under the Fisheries Act. any tisliery offi-
cer or other Justice of t lie peace may. on view, convict of anvof the
otfences punishuhli' under the ])rovisions of the Act. (ij)
liO<'al .liiriHilivfioii ns to Offf4>ii<'«>N Coiniiiittcd
iiiMlcr N|»«'«'ial <'ircuiiiNtuii<'C>.s.— For the purposes of the
dnU'. the following provisions shall have effect with respect to tlie
jurisdiction of justices :
(a.) Where the offence is committed in any water, tidal or otlier,
hetween two or more magisterial jurisdictions, such offence may be
considered as having heen committed in cither of such jurisdictions ;
(6.) Where the offence is committed on the bounttary of two or
more viagisterial jurisdictions, or within the distance of five liundred
yards from any such boundary, or is begun within one magisterial
Jurisdiction and completed within another, such offence may I.e
considered as having been committed in any one of swh juksdic-
tions ;
(c.) Where the offence is committed on or in respect to a mail, (.r
a person conveying a post-letter bag. jiosl -letter oranything sent by
|"'s(. or on any i)ers(>n, or in respettt of any propertv."m nvup.vi any
vehicle employed in ajourney,or on board any vessel employed on an'v
uavigable river, canal or other inland navigation, the person accused
(1) R. S. C, c. 53, sec. 28.
(2) 57-58 Vice. 31, sec. l(j.
(3) R.S. C.,e.9o,8ec.I7.
W(J I'UAOnOiVL (iriDK TO MAOISTRATES.
shiill bi' foiiMidered as liaviiig i-oinmitted hucIi ottenco in any magis-
torial juvindiction tlirough which wueh vehieie or vohsuI passed in the
conrso of the Journey or voyage during wliieh tlieott'enee was com-
niitted : and wliere tiie eentre or .other ])art of tiie road, or any
navigalile river, canal or other inland navigation along which
the vehicle or vessel passed in the coui'se of such journey or voyage,
is the i)oundary of two or more magisterial jurisdictions, the person
accused of having committed the offence may lie considered as hav-
ing committed it in any one of such jurisdictions. (Coile, Art. i)5'A)
This Article is, in etfect. a i*e-enactment of .sections 10, 11, and 12
of l{. 8. ('., c. 174. whidi were derived from sections 12 and 13 of
the rm])crial statute, 7 (xeo. 4, c. (34, clause (b) being only slightly
varied from the wording of section 12 of 7 (Jeo. 4, c. (i4. which is
as follows : " Where a felony or misd'iineanor is committed on the
boundary of two or more counties, or within the distance of tive
hundred yards from any such boundary or is begun in one county
and completed in another, the venue may be laid in either county.
in the same manner as if it had been committed therein.''
In oases of murdei- or manslaughter, where the cause of death
arises in one magisterial jurisdiction and the death takes place in
another, the ])ri.soner may. under the above Article, be iiulicted
in citlu'r jurisdiction. (1)
If a man commit theft in one nuigisterial jurisdiction and carry
tlu* stolen goods with him into another, he may be iudicteil
within the limits of the jurisdiction where he committed it, or in
the place into which, or any of the places through which he car-
ried the goods ; for in contemplation of law there is such a taking
and carrying away as to constitute the ott'ence of thett in every
jtlace through which, at any distaiu',o of timo, the gt)i)ds were car-
ried b\' him. (2) For instance, where a prisoner, on the 4th of
November, stole a note in Yorkshire, ami, upon the 4th of March,
he carried it into Durham, the judges wore clojir, upon a case re-
served, that the interval between the first taking and carrying the
note into Durham did not prevent it from being a theft in Durham,
and that the conviction in that county was right. (3)
(1) 1 Russ. Cr. (by Greaves), 4 Ed. 753.
(2) 1 Hale, 507 ; 2 Hale, 163 ; 3 Inst. 113 ; 4 Bl. Com. 304.
(3) R. v. Parkin, 1 Mood. C. C, 45.
PROSECUTION OP CRIMINAL OFFENDERS. — JURISDICTION. 87
A countvy l»ank notfl was stolen during its transit, througli the
post, from Swindon, a town in Wiltsiiiro, to the (vity of Bristol,
which lies hetween the counties of Somerset and Gloucester, and
the same note was afterwards enclosed hythe defendant in a letter
posted by him in Somersetshire and addressed to the bankers at
Swindon, requesting payment of it, which letter, with the bank
note in it. arrived in <lue course at Swindon. The defendant was
held triable in Wiltshire, the po.s.session ol" the po.st office servants
or of the bankers at Swindon, in Wiltshire, being held, for this pur-
po.se, the defendant's possession, (1)
A charge of sending a threatening letter may l»e prosecuted
either in the Magisterial jurisdicition where the prosecutor received
it. or in the place from which the offender sent it ; becau.se the
ort'ence. in such a case, is begun in the one and completed in the
other. (2)
Where money obtained by a false pretence was transmitted in a
letter ])oste(l. in accordance with the defendant's request, in Countv
A.. l)ut which reached him in County B.. it was held that this was
an obtaining of the money in County A. (3)
If two persons steal a thing in one county, though one of them
alone carry the ])roperty into another county, yet if both after-
wards co-operate to secure the thing in the latter county, both nuiy
be indicted there ; for the subsequent concurrence may be connec-
ted with the previous taking. (4)
Where two jointly committed a theft in one county, and one of
them carried the stolen goods into another county, the other still
acconijianying him. without their ever being separated, they were
held both indictable in either county ; the possession of one beino-
the po.ssession of both, in each of the counties, as long as they con-
tinued in company. 5)
(1) K. V. Cryer, Dears & B. 324 : 36 L. J. (M. C.) 102.
{2)R. V. Ginlwood, 1 Leach, 142; R. v, Esser, 2 East. P. C. 1125- R. v
Burdeit, 4 B. & Aid. 95.
(3) R. V. Jones, 1 fieri. 551; 19 L. J. (M.C.) Iti2 ; R. y. Buttery, 4 B. &
Aid. 179. •"
(4) R. V. County & Donovan, East. T. 181(i, M. S. Bailey, .7., 2 Russ. 175.
(5) R. v. McDonagh, Carr. Supp., 2d. Ed., 23.
88 I'KAcrrcAi, m'lDK to ma<iistii.\tks.
'I'lic tiiUiiin' into llic 1)1 lu'i' (MHiiity IT Jiirisdiclioii must \>v aniino
tunmdi. For instiiiK-o, a constahli' upiu'clii-iMli'd a |)ris<)iu'r with
twostoli'ii horses at ('roy(h»ii in Surivv. On hcinifso arrested, the
|>i'isonei' saiil lie Inid lieen at Doi'Uiiii;' to t'etcli tlu' iiorses. and tliat
tliey liel()ni,a'd 1u iiis lirot liei-. who lived at Urondey. 'Die polico
eonstalihi offered to yo with liini to Di'omley ; and tliey took the
liorses and rode toi^vtlier as fai' as |{eci<enlnun Cliundi. wiien tlio
prisoner said lie had left a i>iireel at the Black Ilnrse. in some plaeo
in Kent. The eoiistahle. aeeordinj^ly. went there with idm each
ridini;- one of the horses. When they ,i;"ot there, the eonstable i^avc
the horses to the osth-r. The pi'lsoni-r did not (uujuire for any
paret'i. hut miide his eseape. and was. afterwards. a,i>'ain appre-
lieiided in Surrey, iind indiiMi'd in i\enl for steaiini;' the two horses.
Tjion a case resei-vt^d. tlu' jud^'es were unaniiaously of opinion
that there was no evidence to he left to the jury of stealing in
Kent. (1)
Where a thett was committed in County A., and the receivinjj; of
the propi'rty tooU place in Counly J}.. it was hold that hoth woro
trialili- in A., and that the stealiui^' and reci'iving could both hi-
aiU'U'ed to have heeii in A. (2j
Where an offonce has lieen committed within 500 yards of the
hoiindary between two maf^isterial Jurisdictions, it seems that
( 'lause [b) of Article 5515 will not enable the pro.secutor to lay it in
one jurisdiction and try it in anotlier, but it merely gives him tlie
option of both laying and Irving the offence in either juris-
diction. (;j)
With regard to (.'lause {c) of Article 55;j. it seems that, in order
to maintain an indictment in a magisterial jurisdiction other tlian
that in which an offence has been committed, in resjiect of property
in or upon a vehicle or vessel enijiloyed in a journey, etc.. it would
be necessary to prove that the offence was committed in or upon the
vehicle or vessel itself. For instance, a defendant was held to bail
to ap])ear at the Cumberland Assizes to answer a charge of steal-
ing committeil on a journey. He had acted as guard of a coach
■ •
(1) R. V. Simmonils, 1 Mood. C. C 408.
(2) R. v. Hinley, 2 M. & Rob. "^24.
(:ij R. V. Mitchell, 2 (4. & Day. 274 ; 2 Q. H. (iSS.
IMliiSKl TTIiiN iiF CltlMINAI. OKFENDKRS. — JI'HISItlCTH'N. H!t
(Vnrii I'l'iii'illi ill till' (•((uiily of ( 'iiiiilH'i'laiul to KcmkImI in Wot-
iiioi'cIiiimI. iiiiil vvit^ •'ii'i'ii^'<'il ^vitli :i hiiiikcr's jmrcd. cuntiiiiiiiiu;
hiiiiU iidii's Mini l\vi> sovcri'iii'Ms. ( )ii cliiiiiLfiiii!; horses al smm' ilis-
Ijiiict' IVniii I'i'iiritli. lu' carricil tlu' |iarccl to a |>rivv. and wliilc
tlit'ic took out nfil 1 lie sovcri'iyiis ; and I'arkc 15.. licld tlial.astlic
;ict of sti'aliiiic was iiol " in oi- ii|ioii tlio foucli." the case was not
within llie statute, and the teinny liaviiii!; heeii coiMmilted in West-
niorehind. thi'indietnieiit onyiit to he |irefen'ed in tliat county. (1)
Clause ic) is not eonliiii'd to the cari'iaii'es of eoninion eari'iei's
or to |»uiiiie conveyances, luit extends to any vehicle employed in
;iny journey, (li )
Clause (c) applies to an otl'ence coinniitted in a cafi'iaye of a
train niiiniui;- through several Jurisdictions. (!{)
A jirisoner was tried at (^uehec and convicted tliere of luan-
slauii'hter. lie an<l the deceased had lieeii serviiiir on hoard a
British ship and the latter had died, in the district of Kaniouraska.
where the -hip was loadiiii;'. from injuries inflicted hy tlu' pri.soner
on lioiird tlie ship whih' on the higdi si'as.
llild. that ;is the injuries were intlicted at sea. tliat is. witliin
the Admiralty Jurisdiction and tlie tleath happeiu'd in the ilistrict
of Kamouraska. he should have heon tried in tlie latter district,
and not in the district of(^ut'hee. (4)
If any otleiice ai,'aiiist the Fisheries Act be committed in upon oi-
near any waters t'orniiiii;- the houndary hetween different counties
or ilisti'iets. or fishery (list ricts. such offence mtiy he ])rosecuted
hetbri' any Justice of the peace in either of sucli counties or dis-
tr".'ts. or hefore the tishery oftieer for either of such districts. (5)
Kvery offence against the Animal Contagious Diseases Act is. for
the i)ur]ioses of pnieeedings under the Act. deemed to have heen
committed and every cause of complaint under the .Vet is deemed
to liave arisen either in the place where the same actually was
(1) Sharpe's Ca.se, 2 Lew. 23:!.
(2) R. V. Sharpe, Dpars. 41."); 24 J,. .1. M. ('. 40.
(3) K. V. Frencli, s Cox C. (\ 252.
(4j 'li. v. Moore, 8 t.1 L. K. »
(5) li. S. ('. c. 05, sec ] 7, sub sec. :!.
!•(» PRACTICAL mil UK Til .MAOIHTRATEH.
corainitti'il or arose, or in any placf in wliicli thf porsoii diurged
or conipltiini'd against ha|i|ionH to he. (1)
Under the Canadian Government Vessels Discipline Act, any jus-
tice ol'tlie jKuico tor the county or district in vvhieh is nituiiled the
port where tlie vessel, on hoard of whicli an ott'enee against the
provisions of tiie Act has Imhmi eoniinitted, tonehes next after the
time of its eoniniission, is given juritidiction over the ofrence. (2)
And with regard to offences against Hcctionn 10 & 11 of the Act
resjiecting tiie Safety of Ships. Jurisdiction is given to any justice of
the jieaee either in (lie place where tlu' otl'enee is coniniilti'd, or, if
committed while the steamer is under way, then, in the place where
it next stops. (;i)
In any complaint, information or conviction under the Dairy Pro-
ducts Act 18!K{, the matter coinjilained of may he declared and shall
Ik' lu'ld to have arisen at the place where the (diei'se oi* hutler com-
plained of was manutiictured, sold, offered, exposed, or had in
])Ossession for sale. (4).
In any complaint, information or conviction under the Act
against frauds in supjilying milk to (du'cse and hutter nnmufactur-
ers, the matter complained of nniy 1k( declared and will he held to
have arisen at the |)lace whei-c the mdk com]ilained of was to he
manufactured, notwithstanding that the detei'ioration thereof was
etfected elsewhere. (5)
Nliiiiiiiury Arrt'Nt. — The first paragraph of Article 552
of the criminal code provides that any one found committing an^' of
the oHences therein enunu-rated ma}- he ari'csted. withoit WAR-
RANT, hy ANYONK ; and tlie following is an alphabetical list of
sudi oftences ;
Abduction. (Artu-le 281).
Administering, taking, or procuring uiUawfnl oaths, (Articles
120, 121).
(1) R. S. C c. 69, sec. 45.
(2) R. S. C, c. 71, sec. 14.
(3) R. S. C, 0. 77, sec. 2(1.
(4) 50 Vict. c. 37, sec. 7.
(5) 52 Vict. c. 43, sec. 8.
SUMMARV ARllKST. 91
Arson, sctlini,' flros, otc. (Articlos 482, -t^iJ, 48-1, 485).
Assaults (III the (iiu'oii. (Article 71).
.Vtti'iiipt to (lamui^o by explosives. (Article 488).
Hciiigat large while under sentenee of" iinprisoiimont, (Article
KV.i).
lireaUing [irisoii, (Article l(il).
bringing stolen i)roporty into (Jauudu, (Article :{55).
lireaivini^' place of worship. (Articles 408, 409). '
lUiiglarv. housebreaking, shopbreaking, etc. (Articles 410, 411,
Hi'. 4 i:!. 414).
r.ciiiij; t'oiiiHl in a dweljiiig by night. (Article 415).
I'niui;- finiiid armed with inteiit to break a dwelliiighou8e,(Ai*ticle
lltl).
Being (lisi^'uised or in jiossession of housebreaking instruments ;
(Article 417).
Clippinu' ("urreiit coin ; Possessing clippings ; (Articles 4()8, 4'70).
('iiunterfeiting seals : Counterfeiting stam]>s. (.Vrtides 425. 435).
( 'oimlerfeiting gold and silver coin: Making coining instru-
ments : and Uttering counterfeit current coin. (Articles 402, 40().
JT7).
('(iiiiiterfeiting cojiper coin. (Article 472).
('iiiiiiterteitiiig foreign gold and silver coin. (Article 473).
I letiiing children, (Article 2()!)). • •
heniandiug i)y threatening letters, (Article 403).
Iicniaudiiig with intent to steal. ( .\rticle 404). . ■»
lliidangering ])ersons on railways. (Ai'ticles 250. 251).
Kscapes, (Articles 1(;3. I(i4).
I'Alortion by threats, (Article 405).
Fulsitying Registers, (Article 436).
I'iMciliiy compelling executiou of documents. 'Article 402).
I'(it'i;ery ; Uttei'ing forged documents ; Possessing forged bank
92 PHACTIfAI. (irillK I'D MAdlSTUATKrt.
noti'H ; Uniiij^ prolijilf olitaiiiccl liy toi-gi-ry or perjury ; Miikiiig.
luiviiig, nr using t'orgory in«tninu!Mts, (ArlicU'H 42U, 424, 480, 432
Iiiciliiig t(» mutiny. (Article 72).
Injuring III' attcnipting to injui'i' ity expioMivos, (ArticleH 247, 248).
Injuring elcetric tek-graplis, el<., (Article 402).
Interfering with murine signals. (Article 4!tr).)
Mur<ler ; Atlemjit to murder; AeccsHory ti> murder. (ArtieleH
2:ji. 2:52. 2;ir)).
Manslaughter. (Article 2:^(1).
Mi.schiefou railways, etc.. (Articles 48!t. 4itS, VM)).
Piracy : Piratical actb ; Piracy witli violence, (Articlen 127, 128,
12!t).
Personation. (Article 458).
iJiot act. oti'ences respecting reatling of. (Article S;-}).
ItiotouH deHtruction : Piotous damage. (Articles 85, 80).
Rape ; Attempt to commit rape, (Articles 2(57, 2(58).
Keceiving stolen jiroperty. (Article :U4).
Hohherv ; Aggravated rol)l)ery ; Assault with intent to roli.
(Articles :{<>H. :5il!t. 4(M»).
Sto])ping the mail. (Article 4(»1).
Suicide. attemi)t at. (Article 2:58).
Stupefying in order to commit iudictahle oirence. (Article 244).
Treason : Accessory ; 'rreasonalile otlences. (Articles ti5 (17, (58.
6!1, 7<l).
Theft hy agent, etc., (Article 320).
Unnatural otlences. (Article 174).
Wounding. (Articles 241. 242).
Wreck. ]ireventiiig escajie from. (Article 254).
Wrecking ; A(temi)t to wreck. (Articles 4!»3. 4!t4.)
"Found committinu " has lieeii held to mean either seeing tin-
party actually committing the otfence or pursuing him immc-
SUMMAIIV AUKEHT. O'.i
.liaii'lv i>r ii'iitinuoiisly ul'tcr he lias Ik'i'm seen ctiminittiiij? it ; so
that !'• juHtify tho iinvst, without warrant, of an ott'cndor. on tin*
irroiUKl of liiM licini; found committimj mi oti'cncc. In- must li(« tiikfii
in tlu' wry tut of comniittini^ it. or lliiTo nuist ho such frosh ami
coiitiiiuoiis pursuit of liini from his lii'lni^ soon and surprisod in tho
act until his uctiuil capture, tiiat the liiidin^ him in tlio act and his
suhsciiuciit itursuit and capture iimy In- coiisidt^rcd to constituto
one transaction. ( 1) " Imincdiatciy means innnedialcly alter tlio
commission of tho otfonco, and not inunodiatoly after the discovery of
its commission. I'nrsuit after an interval of three hours wouhl
not he a fresh pursuit. (2)
It seems that if the oft\'nder he seen in tho commission of an
otVeiice hv one person, he may hi' ai'i'osted l»y anotlu'i- person who
(lid not see him commitliiny it. (3)
Clause 2 of .Vrticlo '152 provides that a I'Eack ofkiper may
arrest, without warrant, any one found committing any of tlie
tulldwiiiij otl'eiices :
.Vlteiiipliiii; to injure or poison cattle (Article T)!)!)).
( nu Ity to animals (Article 512).
( 'iitliiii; hooms. or hreakiiii^ loose rafts or ci'lhs of timlior (Article
4!IT).
('iniiilerfeitini^ foreign copper coin (Article 473).
K\|MirtiiiL!,' couutorfoit coin (Article 4()5).
Keepiiiif cock-pit (Article 513).
Ohtainiiin' hy 1'al.se pretence (Article .'J5it).
olitainiiii;- execution of valuahh' securities hy false pretence
(Article 300).
I'ossossing counterfeit current coin (Article 471).
I'osscssing counterfeit foreign gold or silver coin (Article 473).
A i'KA( K oKFicEK uuiy ari'cst. without warrant, any one whom
lie tinds (•(ijiimitting any ott'ence against the ("ode. and anv I'EHSon
(1) H. V. Ciirran, 3 C. & P. TO? ; 1 Russ. Vr., 5 Ed., 715; Hanwny v. Boult-
hee, 1 M. i\: K. 15.
(■-') Downing V. ('ai»l, L. 1{. 2 C. P. 4(il ; Leele v. Hart, 37 L. J. C. P. 157.
i;^) H. V. liowarth, R. c»i M., C. (". H., 207.
!»4 PRACTICAL GUTDE TO MAGISTRATES.
miiy iirrest, without warnint. tiny one whom lie finds by night coni-
mittiiig any ott'ence against the (!o(le. (('otU'. Avticlf 55ii. })iU". 3).
AN"i' ONE may arrest, without warrant, a pci-son whom he, on
reasonable and probable grounds,' believes to have committed an
otifenje, and to be e8C'a])ing from and to be freshly i)ursue(l by,
those whom the person arresting, on reasonai)ie and probaltle
grounds, believes to have lawl'ul authority to ari-est such person
(Code, Article 552, par. 4).
The OWNER of any property on or in respect to which any person
is found committing an ott'ence against the Code, or any jiorson
authorized by such owner, may arrest, without warrant, the person
so found, who shall forthwith l)e taicen before a justice of the peace
to be dealt with according to law. (Code. Art. 552. par. 5).
Any OFFICER in Her Majesty's service, any warrant or petty
OFFICER in the navy, and any non-cOiMMissioned officer of marines
may arrest, without warrant, any person found committing any of
the offences mentioned in section ll'J of the (!ode. (Code, Art. 552.
par. 6).
Any PEACE OFFICER may, without a warrant, take into custody
any i)erson whom he finds l^'ing or loitering in any highway, yai'd,
or other place during the night, and whom be has good cause to
suspect of having committed, or being about to commit, any indict-
able ott'ence. and may detain such person until be can be brought
i)efore a justice of the peace, to be dealt with according to law.
No pei-son who has been .so apjjrehended shall be detained after
noon of the following <' ay, without being brought before a justice
of the peace. (Code, Article 552, par. 7).
The expression ''peace officer" includes a mayor, warden, reeve,
sheritf, dei)uty sherirt", sheritt 's officer, and justice of the peace, and
also the warden, keeper or guard of a penitentiary and the gaoler
or kee])er of any prison, and any police officer, police constable,
Itailifl'. constable, or other person em])Ioyed for the preservation
and nnuntenanceof the public jjcace, or for the service or execution
of civil process (Article 3 s).
"Night" is the interval between !» p. m. and (! a. m. of the follow-
ing day (Article ;{ q).
SUMMARY ARREST. 95
Till' Crimiiiiil I'rocodiuv Act, li. S. ('.. clui]). 174. — section 26 of
w liicli cniiH'Wt'ivd persons, to wlioni snoods susjiectcd to bo stolen
wvvv otli'ivd for sale or for |):i\vn. to arrest and carry before a jus-
tice anv one so ottering. — is now repealed. But the Pawnbrokers'
Act. which is still in force, provides, ijy sections 9 and 10, that if
anv |)erson otters to any ])a\vnl)rol<er by way of pawn or pledge,
etc.. any goods, and is. by giving an unsatisfactory uccount of the
goods or otherwise. sus]iected of having stolen or illegally obtained
such goods, the pawnlu'oker may seize and detain such person, or
anv person trying to redeem ))awned goods to which ho is not
entitled, and cari-y him before a justice of the poaoe, who, upon
examination and enquiry anil ui)on tinding cau.se to suspect a theft
of the gooils. or an attein])t by (he person so apprehended to redeem
(idodstd whicdi he is in)t entitled, may commit lum for safe custody,
iuid. if lie tind the goods to be stolen, etc.. lie may, unless the
otVencc iiulhorizes commitment by any other law. commit the
otVender to gaol for any term not exceeding tliree months.
riuii r tlie Indian Act. any constable or peace officer may arrest
without warrant any person or Indian found gambling, or drunk,
or witli intoxicants in Ins possession, on any jtart of a reserve,
and may detain him until he can be brought before a justice of
the peace, and such person or Indian shall be liable u])on sum-
mary conviction to imprisonment for a term not exceeding three
iiiontlis. <ir to a penalty not e.xceeding tifty tlollars and not less
than ten doliai's. with costs of jirosecution. half of whicdi penalty
shall lu'long to the informer. (1)
Any constable may. witlu)iit warrant, apprehend any j)erson
found committing any ofl'ence against the Animal Contagious Di-
seases A v\ with I'cspect to infected places, and lake any person so
a|ipr('licnded before a justice of the peace to be dealt with accord-
ing to law. (li)
Jiisfificalioii 4»f' Niiiiiinary Arrest l»y Peace
Olii<'<>r ol'SiLspeeteU Ofteiider.— Article 22 of the Code
provides that, every ]ieace otticer who, on reasonal)le and probable
gro'.Mids. believes that an otfence for which the oflender may be
(1) 57-5S Vice. 32, sec. 7.
(2) 1!. 8. C, f. (iit, see. 44.
06 I'KACTICAL (iirDK TO MAOISTRATKS.
arreeted witliout wavrant has been committed, whether it has been
committed or not. and who. on reasonable and ])rol)al)le ujrouiuls,
believes that any [lerson has committed that ott'ence, is Justified in
arresting such person without warrant, whether sueli person is
guilty or not.
JiiNtifiration of'PerNoiiN ANfiiii«tin}r Poa<H' Ottict^r
to Arri'St ^UHpeet. — Kvery one called upon to assist a peace
officer in the arrest of a person .sus])ected of having coinniitted
such offence as last aforesaid is justified in assisting, if he knows
that the i)erson calling on him for assistance is a jjcace officer, anil
does not know that there is no reasonable ground for the suspicion.
(Code. Art. 2;i)
As the common law justitied a c(mstable in making an arrest
witliout wari'ant. upon a reasonable ground of suspicion of a felony
luiving been committed, although no felony luid in fact been com-
mitted. (1) it was. in .so tar as felonies were concerned, identical
with the law as now made api)licable by Article 22 of the Code to
the particular offences (enumerated in Article 552), for which
offenders nuiy be arrested without warrant.
Of course, the grounds of belief upon which a peace officer ads
under this ])rovision of the law must, as shown by all the authori-
ties in point, be such as woulil lead any reasonable person, acting
witliout bias or [»rejudice, to believe the arrested party guilty ol
the offence. (2)
JiiNtifi<'uti4»ii of NiiiHiiiary Arrest hy Private
IndivillualN. — Kvery one is justified \\\ arresting without war-
rant any person whom he finds committing any offence for which
the offender nuiy be arrested without warrant, or may be arrested
when found committing. (Code. Art. 24)
If any offence, for which the offender may he arrested without
warrant, has been committed, any one who, on reasonable and pro-
(1) Beckwith v, Philby, C B. & C. (i35; Davies v. Russell. .'> Bing. ;!5t ;
Hogg V. Ward, 27 L. J. Ex. 443; Cowles v. Dunbar, M. L<tM. 37; 2 Oke's
Syn. 913.
(2) Allen v. Wright, 8 C. & P. 522; Leete v. Hart, L. R., 3 C. P. 3'JJ;
Greenwood & M's Mag. G. 2 Ed. 117.
jrSTIFICATION OF SUMMARY AllHEST. 97
hiil>lt' i^nmnds. iK'lii-vcs that any person is ,i;;uilty oi'tliat ottonco is
justified \\y nrrt'stinL!; him without warrant, whotlior such person is
H'liiity HI' not. (("odo. Art. 25/
l';v('r\- one is protected from c.riminnl. responsibility tor arresting
wiliiout warrant any person whom he. on rea.souahle and prohable
o founds. Iielii'ves lie finds eoininittiniLj l)y night any offence for
wliicdi tiie ottender nr-y be arrested without warrant. (Code, Art.
2G).
JiiNtifu'atioii oi Arrewt by P(>a<'e Oftieor of* a
PorNoii Whom Hv FiiidN C'OniniittinK an Of-
lVii<*«*. — I'Ai'ry jieaee offieer is justified in arrestiii/:i; witliout war-
rant anv person wliom he finds eoniniit.ting an oft'enct^ ((,'odo.
Art. 27)
JiikU ligation of* Arrc'st of Pitnoii Found Com-
iiiitfiii}>- Any Offence at Bfi{>;lit. — Kveiy one \^ Justified
in arrest inii' without warrant any i)er.son whom he finds by night
coMiMiittiny any ottenee.
2. I'.vi ly pi'aee otfieer is justified in arresting witliout warrant
anv person whom he firuls lying or loitering in any highway, yard
(ir other i>lace. by night, and whom he has good cause to susjioet of
li:iving conmiitted or being about to commit any ottenee foi" which
an olVender may be arrested without warrant. (Code, Art. 28)
Arrest l>nrin}r Flight.— i''.veryone is protected from
criminal ret^nonsiiility for arresting without warrant any person
whom lie, on reasonable and probable grounds, believes to have
coiumitteil an offence and to be esea]iiiig from ;ind to be freshly
pursued by those whom he, on reasonable and probable grounds,
lielicvcs to iiave lawful authority to arrest that person for such
otfence. (('ode. Art. 2J»).
it will noticed that, in some of the foregoing articles the word
■/usi'iV/er/ " is used, while in others the words iisod are ^' protected
from criininnl resjionsUdlity." The different meanings intended to be
lonvcvcd by these two exjires.sions are (explained in the following
cxiiiict. from the Uoyal Commissioners' report on the Knglish
i Matt Code : -There is a dift'ei'onee in the language used in the
98 PRACTICAL tUJIUK TO MAUISTUATES.
sections in this i>art wliicli jn-oluilily rt'ciuiivs oxplatiatiou. Somi'-
times it is said that ihc person ihjiiiif an art is -justified' in so
(loinir under itartienhir eircunislances. The ett'eet of an enaet-
ment usin<f that wonl would he. not only to relieve him t'roni
punishment, hut also to attbrd him a statntaiiie defenee a-^ainst a
eivil action for what he had done. Sometimes it is said that tin-
person doin^ an act is ■•protected from criminal responsibility'
undci- particular eirenmstanees. The etfoct of an enact ment
using this langiuiift' is to relieve liim from ])nnishment. imt to
leave his liahility to an action for danuiges to be determined on
Other grounds, the enactment neitlier giving a defenee to sucli
an action where it does not exist, nor taking it away where it
does."
statutory Power ot Arrest. — The ('ode jirovidcs that
nothing therein contained shall take away or diminish any author-
ity given by any Act in force for the time being to arrest, detain or
put any restraint on any ])erson. (Code. Art. :^(»)-
JiiHtififutioii ol Forc'o iiNod in Arrests. «lro.—
JOvery om; justified ov protected from criminal responsibility, in execut-
ing any sentence, warrant, or ]»rocess. or in nuiking any arrest, and
everyone lawfully assisting him. is justified or protected from criminal
responsibility, as tlu' case nmy lie. in using sn(di force as may be
neces,sary to overcome any force n.^'ij in ri-sisting sn(di execution
or arrest, unless the sentence, processor warrant can ln' execute(l
or the arrest cH'ected by n^asonalile means in a less violent manner.
((>)de. Art.:n).
This article is ba.sed n]ioii the jirincijile that, as in nniking an
arrest or in executing any sentence, warrant, di-der. or jiroccss. a
peace officer or other jierson legally anthori/.ed acts under legal
command or coiiqiulsiini. he may. if resisted, i-ejicl force with force;
and if. in nsing reasonable and necessaiy force to ovi'rcomc resist-
ance, the otticer should hajipi'n. in the struggle, to kill the jiersoii
resisting or any of his acconqiliecs. he will be exonerated : while,
on the other hand, if death should ensue to the otticer or any one
assisting liim. the ]iersonsso resisting will be guilty of murder. (1).
(1) Fost. 270,271, 318 ; 1 Hale, 494; R. v. Porter, 12 Cox, C. C.444.
IHTV (IK I'EltSONS ARRESTING. 99
I>iity ol I'orsoiiN Arr«'Ntiii^;^ — It is tlic duty of ovoiy-
onc oxooutiug any process or uan-aiit to have it with him. and to
produc'i' it. if required.
It is liu' duty of every one arn-stiiiii,- another, whether with or
witliont warrant, to i^ive notice, wlu-rc praelicalilc, of tlie ])rocess
or warrant under wliieh lie aets, or of I lie eause of arrest.
A failure to fultil either of tiie two duties hist mentioned shall
not of itself, deprive the person exeeuting the process or warrant.
or his assistants, or the per-son arresting, of protection from crimi-
nal responsihility, hut shall he relevant to the inquiry whether the
proces.s or warrant might not have lieen executed, or the arrest
etiected, by reasonable means in a K'ss violent manner. (Code. Art.
:{2).
l*iM'V('iitili}>: KN<*a|>«' hy Fli}»:lit.— Kvery peace officer
proceiMling hi\ 'ully to arrest, witli or without warrant, any jterson
tor any otlence for whicli tiie otfendei- may be arrested without
warrant, and every one lawfully assisting in such arrest. \s justified,
if the ]iers()n to be arrested takes to flight to avoid ai'rest. in using
such iorcc as may be necessary to ])revent his esca])e bv such
flight , unless such escajie can be ])reveilled by rea.sonable means
in a less violent manner, (("ode. Art. 31!)
Kvery private pei'son proceeding lawfully to arrest without war-
rant any person for any offence f'oi' which the offender may be
anvsted without warrant is /;/5^//7>(^/. if the per.s.;n to be arrested
takes to Hight to avoid arrest, in using such force as may be neces-
sary to prevent his esca])e liy flight, unk'ss such escape can be
))revente(l by rea.><onable means in a less viok'ut manner: Provided.
that such force is neither intended nor likely to cause death or
grievous hoilily harm. (Code. .\rt. :]\).
Kvery one |irocee(ling lawfully to ari^'st any person foi- any
cause other than sucli offence as in the last section mentioned is
jusUfied, if the pei-son to be arrested takes to flight to avoid arrest,
m using such force as nuiy be necessary to prevent his escape by
tliglit. unless such escape can be prevented by rea.sonable moans in
a less violent manner: Provided such force is neither intended nor
likely t<i cause death or grievous b.Mlily harm. (Code. Art. Ha)
100 I'UACTICAI. (il.IDE Ttl MAGISTUATKS.
i'rt'voiitliiK Kh«'ii|>o or HoNCiie al'tor ArroMt.—
Iahtv OIK' wlu) liiis lawdilly iinvstt'd any iiorsoii tor any oIU'Iict
for which tlu- (.mMHU'i- may Ik- arirstiMl without wurnint \s protected
from criminal responsibil'tij in usini; siu-li torn- in order to iMrvciit
thcn'scuoorosc-uiR'ofthi' jhtsou anrsti'd as he hidicvi's. on irason-
ahh' icrouuds. to ho necessary for that iMirposc. (('.xh'. Art. :!»))■
Kvery oni' who has lawfully arrested any jicrson for any cause
otlicr than an otlence for wliich the ortendcr may he arrested with-
out warrant, is proteded from criminal responsihUitij in usin^r su(di
force in order to |)rcvent"his escape or rescue as he I.eliovcs. on
rcasonahle gn.uuds. to he necessary for that purpose; Provided
tliat such force is neither intended nor likely to cause .leath or
■rrievous hodily harm. (("ode. Art. :5T.)
C'lIAJ'TlvH VI II.
Prosecution of Indictable Ofkences : CoMi'Ki.i.iNci Aitear-
ANCE ; Laying Information : Simmons : Warrants ok
Arrest ; Search Warrants.
:ilo<leN of Prosecution of IndictabU' «ffoii«t'>«
Before the C'ode.— Before tlu> comini,^ into force of the cri-
minal c.xU". there were four dirterent modes of proceeding against
a person accused of having committed an indictahle ott'ence — ^rs^
hy Uiking him hefore a umgistrate an<l having him committed for
trial ; srcond. hv means of an indictment, without heing so commit-
ted : third, in the case of homicide, by committal for trial upon a
coroners in(iuisition ; nud fourth, hy means of a criminal niform-
ation tiled either hy the Attorney-deneral. ex'-#m. or hy the clerk
of the Crown, liy leave of a Sujjcrior Court. (1)
Present Wodes of Proseention.— No oiu. exeei.t tlu
Attoruey-Geiu'ral or some one hy his direction, can now. in any
case or" lor anv otfence, jn-efer a hill of indictment hefore tin'
.rrand jury, uiiless he has first had the charge investigated hetoiv
(1) As to criminal informationa, see Crankshaw's Cr. C. 244-248.
I'KUSECUTI(»N OF INDIOTABLK OKKKNCES. 1(11
;i iiiiiiri"! '"••*' '"■ justici' of tlio poiiCL', and \)vvu IkiuikI ovci' to
lirosi'ciitc. or unless he has the written eoiiseiit of a court of
criniiiial jurisdietictn, or of the Attoruey-tienerul, or of the court
l)c1nn' vvliicli tlie liill of indictment is to he jireferred ; (1) and. as
(■riniiiial informations are very rare. and. as no one can now lu'
trieil n|ion a coroner's iiuiuisition. (2) the practical result and the
ircmral rule is that no one is iniw tried upon an indictment
witiitiut a pi'evious preiiminarv enquiry into tlu' change. Iiefore a
niiinistrate or justice of tne )>cace.
\ortli-W('Nt Territori4'N uii«l Keewatiii. — No
i,M'aiid jury is summoned or sits in tiie \orth-West Territories. (3)
iKir in tiic District of Keewatin. (4)
Coiiipt'lliii); Appearance Bet'ore JiiNticcN. —
Kv( TV justice nuiy issue a warrant or summons as hereinafter
nuiiliiined to compel the attendaiu'c of an accused person hefore
iiiiu. U>v the purjto.sc of preliminary iufiuiry.'in any of the
folldwiiii;- cases :
(((.) If such |)erHon is accused of having committed in any place
whaii'i:er an indictahle ottence triahle in the provinee in which such
justirc icsidcs. and is, or is sus|)ected to he. within the limits over
wliicli such justice has jurisdiction, or resides oi- is suspected to
reside within snch limits ;
(i.) It such person, wherevt'r he nuiy be. is accused of having
ciMnmitleil an indictahle otl'encc within such limits ;
(r.) If su(h person is alleged to have anywhere unlawfully
receiveil jiropertv which was unlawfully obtained within such
limits ;
('/.) If such person has in his po8se.ssion, within such limits, any
stiilen |ir()|ierty. (Code. Art. S")-!).
OftViu'CN C'oiniiiitted in C't'rtaiii PartN of Oii-
tiirio. — Ail ottenees committed in any of the unorganized tracts
111' country in the province of Ontario, including lakes, rivers.
(1) fodo Art. ()41.
('-') Code, Art 642.
(31 H. S. ('., c. 50, sec. 65.
iM K. S. (',,c. 53, sec. 27.
102 PRACTICAL OUIDK T(l MAdlSTKATKH.
and other waters therein, not einltraccd witliiii the limits of
any orsfanized eounty. or within any provisional Judicial district,
may l>e laid and (diarj^cd to have heen committed an<l may l)e
enquired of, tried and punished within any county of su(li
jirovinee ; and such otl'cnccs shall l)e within tiie jurisdiction of
any court having jurisdiction over oti'ences of tlie like nature
committed within the limits of such county, hefore which court
such otVences may he prosecuted ; and su(di court shall proceed
therein to trial, judgment and I'xecution or other punishment foi'
such otl'ence, in the same manner as if such olfencc had heen
committed within the county whore sucli trial is had.
2. When any |)rovisional judicial district oi" new county is
formed and estahlished in any of such unorganized tracts, all
oti'ences committed within the limits of such provisional judicial
district, or new county shall he in(]uired of, tried and |)unishcd
within the same, in like manner as such olfences would have heen
in(|uircd of, tried and punished if this section had not heen passed,
;}. Any person accused or convicted of any ott'ence in any such
])i'()visioiud district may he committed to any common gaol in the
])i'ovince of Ontario; and the constahle or other otiici'r having
charge of such jjcrson and intrusted with his conviyance to any
such common gaol, may ])ass through any county in su(h province
witli such ))erson in his custody ; and the ki'e])i'r of the common
gaol of any county in such province in which it is found necessary
to lodge for safe keej)ing any such person so hcing couvcA'cd
through such county in custody, shall receive such jicrson and
safely keep and di'tain him in such common gaol for such period as
is reasonahli' or necessary ; and the kecpei' of any common gaol in
su(di province, to which any such i)erson is committi'd as afon'-
said, shall receive such per.son and safely kee]) and detain him in
such common gaol under his custody until dischargi'd in due
course of law, or hailed in cases in which hail may hy law lie
taken. (Code. Art. 555). ,„ ,,•-
OftVncH'S C'Oiiiiiiit'tlMl ill CaaNpe — Whenever any otfence
is committed in the district of Gaspe, the ott'onder. if com-
mitted to gaol hefore trial, may he conunitted to the common
gaol of the county in which the offence was committed, or may. in
law, be deemed to have been committed, and if tried before the
I'llOHEOUTrON OK INinCTABI.K oKKENf'KH 108
Coiii't of (^lU'cMs Mcneh. lie .shall U' so tried ut tiic Hitting of huoIi
court liclil in the eounty to tlio gaol of whieh ho has heeii
comiiiittcil. and if iinjjrisoned in the eominoii gaol after trial lie
shall lie so iin|M'isoMed in the eoninion gaol of the e.ouiitv in \vhicli
he has heen tried. (Code, Art. 55()).
OfteiioeN <'oininitto<l out of IflatsiNtratr^M Jiir-
iMliffioii. — The preliininarv iininiry may he held either
hy one Jiistiee or hy more justiees than one : I'rovided that if the
iHciised person is hrought hefore any Justice charged with an
ort'ence conimitted out of the limits of the jurisdiction of such
jiistiee. siudi justice may. after hearing hoth sides, order the
accused at any stage of the iiuiuiry to he taken hy a constahle
hefore some justice having jurisdiction in the place where the
(itlcncc was committed. The justice so ordering shall give a war-
rant for that i)urp()se to a con.stahle, which may he in the kokm A
IN scuEDi i.E o.vE of the Codc, (1) or to the like etlcct, and .shall,
deliver to such con.stahle the information, depositions and recogniz-
ances, ifiiny, taUen under the provisions of the ("ode. to he deliver-
ed to the Justice JH'fore whom the accu.sed jier.son is to he taken,
and such di'iiosiiions and recognizances shall he treated to all in-
tents as iflhcy hail heen taken hy the la.st mentioned ju.stice.
2. Upon the constahle delivering to the justice the wai-rant,
information, if any. depositions and recognizances, and proving on
oath or artirination, the handwriting of the justice who'^has
suhscribed the same, such justice, before whon'i the accu.sed is
produced, shall theren]K)n furnish such con,stahle with a receipt or
certiticale in the koh.m H m sphkoule one of the Code, (2) of his
having received from him the body of the accused', together
with the warrant, information, if any, depositions and recognizan-
ces, and of his having proved to him. upon oath or altirmation
the handwriting of the justice who issued the warrant.
.■{. If such justice does not commit the accused for trial, or hold
iMin to hail, the recognizances taken before the first mentioned
.lustice shall be void. (C^ode, Art. 557).
(1) For Form A, see p. 13.^), pofl.
(2i For Form H, see p. i:So, poKt.
l(Mi PKAOTIOAI. (M'lDK TO MA(USTRATKS.
IjayiiiK III lor mat ion. —Any dmc who. upon rciiKoiuililc
or iirolmlilf i^rouiids, liclii'vi's (liat iiiiy JJorKon Iuih coiimiittcil iui
iii(Uetul)U' otVi'iico ai^iiiiist tlic < 'otio may luako a foniplaiiil or lay an
int'oriiiatioii in wi-itintc and undci- oath hcforc an}' niai^i.stratc or
jiislicc of Ihi' |»oa('i' haviiiif Jui'isdiction to i.ssuo a warrant or sum-
mons a jj;ainsl siicli acciiwd |)(M'Hon in rcMpi'ct of such oft'i'iicc.
2. Sncli comphiint oi' information may Ik- in tlu' koii.h C in
sciiKnri.K o\K of tlic ("odf. (I) or to thclii<c ctVcct. (("odo. Art.
55H).
Hy ArticU' 5;^t of tin- ('o<U' no civil remedy for any act or omis-
sion is to Ik' suspended hy reason ofsu<'li act or omission aniount-
in<; to a criminal otU-nee.
Tlie information and complaint siiould contain the Informant's
or Complainant's name, occupation and address, (2) tlie (hite and
jihice of preferring it. with theiuime and stylo of the justice before
whom it is laiil or nuide. (;{) and the name and description of tiie
))erson charjfcd. (4)
Iftiie Act under whicli tiie proceedings are taken extends only
to iJCi-sons of a jiarticular class, ottice. or situation in life, tlie party
charged should he shown to conie witliin the description of such
persons, hearing in mind the hroad rule, for construing statutes, as
laid down hy Lord Tenterden, tliat, 'where general words follow
particular ones, the rule is to construe, them as applicaijle to i)ersoii>
ejusdem cjeneris. (5)
The iirosecutor may ])rosecutc all or any of the parties, and the
omission of u partireps criminis cannot, as in casesof joint contracts
in civil actions, he taken advantage of !)V tho.se who are prosecute<l.
The al)ove Article 55H recpiires the information or eoni|)laint l'<
he in writing and under oath, and to he in the form (' in schedule
(1) Fpr Form C. see p. 13(), y^os/.
(2) R. V. Sione, 2 1x1. Kaym. lo4o.
(3) K. V. Johnson, 1 Sir. 261.
(4) K. V. Dobbin, 2 Salk. 473.
(5) Saiullman v. Broacii, 7 1!. ^ ('. 100.
(ti) R. V. Brown, 26 L. J. M. C. 183.
I-AYINd ANIl IIKAKINd INI-'CMJMATION.
105
..lie nftlic Codo or to llu' like clloct ; hiit fonn ('. (Iocs not show
liow tlK'oth'iice is to lie (k-scnl.c(|. For »'.\aiii|.k's of tl„. imikmkt
orsljilini,' otrt'iiccs. set' |i|). 14.'!. cf ^^^'(^.. post.
Thf .lcsiTi|.tion ofllu' cliiifi-v in (1h> iiiforniufioii and i'OMi|.laint
siiniild inchidc, in ('xpn'ss terms, every ini,Mvdi..'iit rwiiiin-d hv the
slatnle to.— or a statement of facts which— eoimtitiite the ottence
(1)
It is. however, pn.vided l.y .\rticle 57S <>f' tiie ( 'ode. posr that no
irreirniarity or defect in the sub.stance or form of Mie summons or
warrant, and that no variatico Ijetwecn the ehiir|L?e contained in I lie
sunnnons or warrant and the charjre contained in the information
nrhetween i^ither and tlie evidence ad<lneed on the part of tho
prusccntion at the en.piiry siiail atiect the validity of the proceed-
in->al or suhseqneni to the hearin.ir. The possil.ilily of (aUinir
('■'■iumal ohjections either to the information or com"|)lainl or to
tlH' .as,, as made out in the evidence addnced at the preliminary
iiiveMi,i;ation of an in.li.Mahle otfenee is thus done away with.
'■''"' ii'l'-niiation or complaint in the case of an indictahle ..f-
'n<e is taken merely for the purpose of enahlini,^ the justice to
.lud-e whether or not he should interfere, an.l to i-Miid'e his dis-
ereiH,!, ;,> I,, the propriety of issuin.ir a summons or a warrant ;
(-') so tiiai ;,ncr the summons or warrant issues the inforni-
""<"' '"•.nnipiainl ceases to he of any importance, an.l it neces-
sanly f,.ll„us that if the evi.lence taken hefore the justice re-
veaUan mdirtahle oilVnce as havin- heen committe.l l.y the party
'"" "''"i-TJMvhendod. thoui^h it mav not he the same otlencu
as the one ciun-ed in the infonnati.n. ..r complaint, he is h.mnd
"""'.l"'l"'i>te upon the evidence and to dischariro. hind oyer or
-mnnt ,!,.. ,„.,.„sed. as directed hy Articles 57il, 58.J, 5»7, 5<.4 an.l
•)•'•). /lOSt.
"*'»'•'"«: I II tor mat ion.
rpou receiyinic any such
'•;;'"l'l"""-"'inf,.rmati,m the justice shall hoar and c.msi.lcrthe
='l;',^^.t,ons of the complainant, and. if of opini.mthat a case tors.,
'l'""^- is made out. he shall issue a sunnnons or warra.U, as the case
('I li- V. Kennutn, ! Cl.i.t. Kep. 152: E:v parte Askew, 15 J. P. J85.
106 I'RACTICAI. (il IliK T" M A(MSTKATKS.
Jiuvy l>i'. ill iniiiiiu'r li«Tciiiatlt'r iiifiitioiu-d, iiiiil .su(!li Jiislici' sliiill
not iTi'iiMi- to issin' siu'li siiiiiintiiis or wiirrimt. only lu'ciiuso tho
ulk'^c'tl ort'enco is one (or wliidi an oll'cndci- iiiiiy In- arri'sti-il willi-
out warrant, (('ode. Art. r>r)!t)
This Article expressly provides that the justice sAr»// hear and
consiiier the alle.i^at ions of the complainant. Iielore issiiin/j; a smu-
ii'ons or warrant.
The siuninons or tlie warrant, as the case may he, should bo
issueil liy the nia^'ist rate who hours tin- int')riniition. TMie Courts
disapprove of the pi'actice of tho ma,t,'ist rale's clerk hearini,' tho
conijilaint ami lillin<;- up the summons oi- warrant and getting it
sigm-d hy the mai^istrato, without the latter havini; pi-r.soimlly
heard the party comphiinini;. (1)
Tlio infonnation should he taken as nearly as possible in the
lanirua<;e of the party coniidainiu.u; ; (2) and :i niaj^isti-ate should
not place u[ion the eonipiainant's words a legal eonstruidion whicdi
t hoy do not boar. If, for instunco, tho complainant's statomont
sliows only a civil trosjiass. it should not be construed by the
nu\gistrate as an indictable otlenco. nor should he so describe it in
the information. (3)
If tho infonnation discloses no otVence in law, it will not authorize
tho issue of a warrant, us it contains nothing to found the magis-
trate's jurisdiction. (4) Mut, if it can. by reasonable intendment bo
road as disclosing u criminal otfenco, the rule is to so read it. (5).
Thoro are cases, oooasiomilly, in which it nuiy ho thought advis-
ablo to issue merely a summtms ; but it is very seldom that this
procoss is doomed suttioient upon an information being laid for an
indictable otlence. Tho usual course is to issue a warrant of appre-
hension.
Warrant in C-aNON of tHIVncoH (Joniniitfed on
tht' IIIkIi Svt%Hi Ktc— Whenever any indictable otrenco i,s
committed on tho high sous, or in any creek, harbor, haven or
(1) Dixon v AVells, 2.t Q.B.D. 249.
(2) Cohen v Morgan, D. & R. 8.
(?)) lUifiers v. llassard, 2 App. Hep. (Ont). ofi7.
(4) Stephens v. Stephens, 24 U.C.C.P. 424.
15) Lawrence v. Hill, 10, Ir. C.L.R. 177.
i\UltKST OV MISI'lCTKIi DKSKIITEIIM. 1((7
ullicr |ilii(i' ill wliich llic Adiuii-nlil v ol' Kiii,'lniiil Imvc or clniin to
lijivc iiii'isiliclioii, and, wlii'iii'vor any oUciicc is (•(.nuuitU'd on hind
hcyniid I he seas tor \vhi(di an indictnuMit iua_\- lie |ir«'f'on-n(l. or tho
oUciidcr may lie arrcsti'd in Canada, any Jiistifi' lor anv tfrritorial
division in wliiidi any person (dnu'i,'i'd with, or,siis|)('<'t»'d (d', havinij
coniniiltccl any snidi (dU'iifc is or is suspci-tt'd to he, niav issnc luH
warrant, in iUv form D in schedule one of the (!odo, (1) or to the
lil<c cllfcl. to a|i|>i'(diend sindi |ter.son, to he dealt with as hci-ein
and hcrehy direeled. (('o(h'. .Vrt. 'idO).
As lo otlences eoniniitted willun tlie jnrisdiclion of the .Vdmir-
idiy. see eomnients and authorities at jiji, 72-77.. an^e.
.il'IM'N* 4»f Nll.S|MM't4Ml I»«'N«>r<«'rN.— Every one who is
ivas.nial.ly suspected of heini,' a deserter from ITer Majesty's sor-
vier may he apinehenih'd and hrou;--lit for examination liefc'ire anv
JMsiice of the pcaee, and, if ita|)i)ears tinit he is a deserter, he sjiall
l>e euntined in o'aol until chiinied hy the ndlitary or naval anthori-
lies, nr |ir()cee(|e(l au;ainst aeeordini;- to law.
-'• ^'' fsliidl hrealv open any huildint,' to sear( h tor a deserter,
iihless he liasohiaiiied a warrant for that purj.ose from a justice of
I lie peace.— such Warrant to he founded ..n atlidavit tliat there is
ivasiiM to I.elicve that the deserlei" is concealed in sueh huiidin^-,
and thai adiiiittanee Inis heen demanded and nd'nsed ; {•>) ainl
every one who resists the execution of any sutdi warrant shall
iiKur a penalty of ei.odity (hdlars. reeoveral.le (.n summary con-
victiiMi HI like manner as other penalties under the Code Vcode •
An. r)iil., ^ '
roiiiviilM or .SiiinnioiiN.-Nervu.<'.— Kverv summons
is.sue(l hy a justice under the ( 'ode shall hedirected to the aeeiised,
i'Hd shall re,piire him to appear :.t a lime and place to he therein
""nli"iied. Such summons may he in the form K i.v .schkhulk o.sk
"'■ t '"■ < '.'de. (;{) or to the like idfeet. No summons shall be signed ui
I'link.
(1) I'or Form I), see p. 137. pnsl.
(•-') Korform of inloimalion to <,l)taiM u search warrant, .so^ n 140. post.
['■'<) I'or Forni E, see p. 137, ),nM.
jog I'ltAITlCAI, (illDK T" MACISTRATES.
2. Kvcry such suiuimoiis shall lu' scnvd l.y a coustiihk' or other
iR.act" otti(Vr iii.oii thi- iK>rsou to wlioiu it is (lirocti'<l. I'itht-r by
(K'livcriui;' it (.. liim iicrsoiially. or. if such pcrsou i-anuot con-
vcMiienth'lH. uu't with, l.y Icavi.i- it lor him at his last or most
usiuU i.'lai-c ot al.n.k.. witli sonu' iunuitc ih.n'i'oW apparently not
under sixteen years of (Hje.
:j Tlu' service of auv such suunnoi.s uiay he proved l.y the oral
fstinumv of the pers,m elle.-tiu- the sau.e or hy the alli.lavit of
such i.erson imrportiii- to he lua.le hefore a justice. (Code. Art.
This article re.,unvs that service shall he etVected hy deliveriu.o-
the su.umous itself to the party personalU/. or hy leaviu- the sauu'
:„ Lis last or most usual i-lace of ahode. with s..iue luinate thereot
apparently not under sixteen y.'ars of a,!i;e.
Where the service is ..tlected hy leaviu-.- the su.uuuu.s will,
•n.other person, the coustahle must tell the person wit h whom he
leaves it that i; is tor the defendant, and the jierson with whom
liicsmnmonsis left should he .nade to- understan<l the nature .,1
it.(l)
The words •• last or most usual place of ahode - uu'au the parly s
pveseut place ni aho.le. if he has any. au.l the last place of ahode
whicdi lie had if he has ceased to liave any. (2)
The dclivry -d' the sninm.Mis to a person oii^ the premises
upiuirently residin- there as a servant is sutlicient. (3)
■The service ..fa notice, under the " Public llealtli Act." 11 i 12
Vic (imp), c. .;:;. upon a clerk at the ottice ..f the ••owner,
where the owner carried ..n his husiness. was hehl to he a servin-
upon ■• some inmate of his place of abode. - un.ler section 1..0 ot that
. Act. (4) ' ;..
Uaiiaiii i» \ryvHi In th*' Fi»Nl l..«tai.*t - Tlu
warrant issued hv a justice for the api.reh.M.si..ii of the i.ers...,
a...ainst whom an infornialion or complaint has heeii laid. n.
(1) i?x/;(ir/t Smith, oil . I. !'• (.1-1-
(2) Ex parte lJi(v, .tones, I L. M- i*^ I'- •''•">'• _ . ■
(3) R. v. Cliandler, 14 East, 'JeT.
(4) Maton v. Ihhhy, i. h T. N. S. .W2; ;!P. L. .h M. C. S5.
BXKCVTIOX OK WAKKANTS. 10!)
|ii-ii\i(l(M| ill scctii)ii five liiiiidird and Hfty-«'iiflit. may ho in the
Foiui F i.v sciiEULir.E ONE of {\\v ( \nU'^ (!) or to (lio liivi' t'tt'ect. No
such warrant shall be signed in blank.
•1. Kvfiy sucii warrant shall he nndiT llie hand and seal of the
Justice issninir the sainc. and may he directed, cither to any
constahle hy name, or to such eonstahle. and all other eonstahles
within the territorial Jurisdiction of the Justice issuinij it. or
H-eiieraily to all eonstahles within such Jurisdiction.
:;, The warrant shall state shoi-tly tlie ott'enee for wliich it is
issued, and sludl name or otherwise deserihe tlie ott'ender. and it
shall order the otticer or otticers to whom it is diivcted to
ai'iu'elieiid the olfender and hrinu; him hefore the justice or
justices issuing- the warrant, or hefore some other justice or
justices, to answer to tlu' charire contained in the sidd information
or coiii|ilaint. and to he furlhei' dealt with aecordiii(r to law. It
shall not he necessary to make such warrant returnahle at auv
IMriieular lime. I.ut the same shall renmin in force until it is
e.Xcculed.
I. The fact that a summons has heen issued shall not prevent
any Justice from issinni,^ such warrant at any time hefore or after
the time nientiniied in the summons for the a|i])earance of the
accused ; and. where the service of the summons has heen jn-oved.
aiul the accused does not appear, or when it apjjcars that the
summons cannot he served, the warrant (foum (i) mav issue (•>)
(<'o(le. .Vrt. r)(;;i)
F.:«o<'iitioii of U'arrjnitN.— Hvery sued, warrant may
!"• <xecuted hy anvstino- the accused, wherever lu' is lound in
|1"' "'n'ilofial jurisdiction of the Justice hy whom it is issued, or
III the ease ollVesj, pursuit, at any jjlace in an adjoinin;.- territorial
'livision uitl, in seven miles <d' the hor.ler of the first -n.enth.ned
ili\ i^ioii.
-'. Kvery sueli warrant may heexe.aited hy anv consfahle named
"'"■'■'•I'l- "!• hyan\ one ,.f the eonstahles to whom it is .lirected,
(1) I'or Form F, see p. 138, ,,oH.
(-') Fer Form G, see pj.. 138, 139, poH. For form ,.f dep.sition provini;
service „l .summons, see p. ) 41 , ;)o.<!/.
\
110
rUACTICAl, (JlIliE TO MAGISTRATES.
whi'Mu'v or not tlu' pliict' in wliicli it is to lie oxcoiited is witliiii tlic
place I'oi' \. . ic'li he is constaliic
3. Evoiy warrant authorized liy tlu- Code may he issued and
executed on a Sunday or statutory holiday, (("ode. Art. 564)
The exprossiDO •holiday" includes Sundays. Xew Year's l)ay.
the Kpiphany. (iood Friday, the Ascension. All Saints' Day. .Con-
ception Bay, Easter Monday. Ash Wednesday. Christmas J)ay, the
liirtiiday (or the day iixed ly proclamation for the celehration ol
the liirthday) oi' the reigning Sovereign. Dominion Day, Lahor
Day, (first Moii(h>y in Se|)teml)ei'). and any daj' appointed ly pro-
chimation tor a gei"'ral fast or thanksgiving. (1)
The ])olice have a right, under a warrant for the arrest of a per-
son (duirged with stealing goods, to take |)osseession of the goods ;
and any ]n'()|)erty found in the ])Ossession of a person arrested for
an indictalilc otl'ence may. — if helieved to have heen used foi- the
])urposi' of committing the ott'enee, — Ijo seized and detained as
evidence in supjiort of the diarge. (2)
A warrant issui'd under the Extradition Act may lio executed in
any ])art of Canada, in the same manner as if it had heen originally
issued, or suhse([uently endorsed, hy a justice of the peace havini;'
juris(iietion in the jjlace wliere it is executed. (;5) and everythinu'
found in the possession of the fugitive at the time of his arrest
which may he material as evidence in making proof of thecrinu',
may i)e delivered up with tlie fugitive on ids surrender, suhject lo
all rights of third pi'rsons with regard thereto. (-I-)
A fugitive ottender accused of having committed an otl'ence in
some part of Her Majesty's dominions outside of Canada may W
apprehended in Canada uudt'r an endorsed warrant or a provisional
warrant. (5)
A Magistrati' in Canaila may issue a jjrovisional warrant for tlio
apprelu'usion of a fugitivi^ who is or is suspecteil of heing in or en
his wav to Canada, on such inforniation and under sui..i circuiii-
(1) R. S. C.,0. l.sec. 7, par.26;r)6 Vic, c.ao.eec. I ; 57& 5S Vic, c55. ser, I.
(2) Dillon v. O'Brien, 16 Cox, 245.
(3) K. S. C, c. 142, EBc. 7.
(4) Jb.. sec 18.
(5) K. S. C, c 143, sec 4. As to endorsed warrants, see pp. 115, 116, /*"■•/.
EXECUT£i»N OF WARRANTS .lUSTIFIEn. Ill
stiiiiccs as \vi)iil<l. ill liis opinion, jiistity i'k' issiu' of a warrant, if
the oIli'iHi' of wiiich the fugitive is iiceusad liad iici-n t'ommitted
wiliiiii Ills jurisdiction : and su(di warrant may in' lia(d<t'd and
cxccutfd ac<'or(iini,d_v. (1)
FiXOi'iifioii oT I-.awfiil Process JiistifitMl. — Kvory
niinisti'i-iai otHoi-r of any court duly autliori/A'd to execute any
lawful process of sudi court, whether of a civil or criniinal nature,
and every iierson lawfull}^ ussiHting him, is jwsf'l/jerf in executing
the >ianie -. and every gaoler who is required under such process to
receive and detain any person is justitied in receiving and detain-
iiiii- liiin. (Code. Art. Iti )
KxiHMitioii oflitiwriil Warrants <Tiistifi<'4l. — Hvery
one duly aulhori/.ed to execute u lawful warrant is.sued l)y any
court or justice of the i)eace or other person having Jurisdiction to
issue su(di warrant, and I'very ]ierson lawfully assisting him. is
justijicd ill execiUiug siuli warrant ; and every gaoler who is re-
quired under siudi warrant lo receive and detain any per.son is
Justin'ed 'u\ receiving and delaiiiing him. (Code, Art. 17)
Where, upon warrants iicing issued for tiie arrest of parties
accused of having committed an otVence in one county, pcr.sons
from another comity came to assist the constahles of the county
avIumv llu' otfence was committed in making the arrests, the per-
sons so assisting were held cut il led tu the saiae protection as the
consiaiiles. (2)
Kx<M'iitioii 4>l* fr^rroiiouiis Koiitciice or l*roc<>ss
Jlistifiod. — If a sentence is passed or jirocess issued hy a court
liiiving juri.sdiclion under any circumsiances to jiass such a sen-
teiici' or i.ssue such |irocess. or if a warrant is issued hy a court or
pri'MMi Iniving jurisdiction under any circumstances to issue such a
wiinanl. the .sentence passed or process or warrant issued shall he
siillicieiit {(> Justifi/ tho offii-or or per.son authori/,e<l to execute the
le. and every gaoler and person lawfully assisting in executino-
larryiiig out such .sentence, process or warrant, althougli the
irt passing the sentence or issuing the process had not. in the
(1) //'., sec. 0.
'-M U. v. Cliassen, 3 Pugs. 546.
112 I'UACI'KAI, (illDK I'd MAGISTRATES.
pai'ticiilar rasf. iuUliority In pass ilic scntfiicc or td issue tlic |ii'i)-
cess, or altliougli tlu' (.-oiirt. justice or other person in the particular
case had no jurisdiction to issue, or exceeded its or his Jurisdiction
in issuiiii;- the warrant, or was. at tiic time when sucii sentence was
|iassed or process or warrant issui'd. out of the district in oi- tor
which sutdi court, justice or person was enlilled to act. (('oih'.
Art. 18.)
In their coninients upon sections of the Hni^lish Draft (.'ode ot
the same import as tlie foren'oinn" Articles l(i to IS. tlu' Ko_\al ( 'om-
niissionei's say: ■ 'IMie result ot' tiie anthovitii's justities us in saviny,-
tiiat whcrexer a ministei'ial otticer. who is hound to ohey t he orders
of a court or maii'isi rate. (as. for instance, in exi'cutinn' a sentence
or etlectiuif an arrest under warrant), and is punishahle hy indict-
ment for disohedience. merely oheys the oi'der whitdi he has
re(-n'i\'e(l. he is Justified, if that order was within the Jurisdiction o|
tlu' i)erson ii'iviny it. And we fhiid\ thai llu' authorities show-
that a miinsterial otticer oheyinii; an order of a court or the war-
rant of a maii'istrate. is ju->tifi('<l if the order or warrant was one
whi(di the court (U' nuiiiistrali' could umU'r any circumstances law-
fully issue, thoiiii'h the order or warrant was. in fact, ohtaiiied
iin]>roperly. oi- lhoUi>-li there was a tlefect of Jurisdiction in the
particnlar cast.' whi(di miii'ht make the magistrate issuini'' the war-
rant civilly responsihlc. on the plain primiple thai llie nnni>teri;il
otticer is not liound to omiuire what went the n'rounds on whi(li
the order or warrant was issued, and is not to Idame for acting- on
the supjiosition that tlu' court or nninMslrate had Jurisdiction."
Wll«>1l fiX4M*llti4»1l 4»r M«>llt«'1IC*(' 4»l* l*ro<*4'NM Witli-
4»llt •llll*iM4li4'ti4»ll is ■*r4»t4'4*<4'4l. — I'lvery ollicei'. i;'ao|er. or
|K'rson executiuij;- any sentence, process or warrant . and every |iersnii
lawfully assisting such otHcer. gaolei'or |)erson shall \)v protected from
criminal responsibiliti/. if he acts in good faith, under tlu' heli(d' that
the sentence or process was that of a court having Jurisdiclion. or
that the warrant was that ol a court, justice of tlu' peace, or otlni'
pei'son having authority to issue warrants; and if it 1k' proved
tlnit th«' person jyassing the sentence or issuing the jiroct'ss actcil
us such a court under color of having some a|ipointnu'nt or com-
mission lawfully autliori/.ing him to ai't as sucdi a (M)urt. or lliat
the |ierson issuing the warrant acU'il as a justice of the peace 'H'
AltKESTINCi TIIK WKiiM; I'KUSoN. 1|;;
otluT i>crsi)ii li;iviiin-siich iuit liorit y. ail Imuii'li. in fact, sudi a|iii(iint-
iiiciil (If ciiiiiniissioiMliil 111)1 oxisl.or liail cxiiirt'd. or alllioiin-li. in
lad. ill!' ctiiiil 'ly till' jK.'r.'^on passinii,- llic srHtcncc or issniny liio
|iro('i'ss was not tlic court ov tlic |)crson aullnifizc(l liy tin' coniniis-
sion to act. or tiu' jicrson issuing' tiic warrant was not duly autlmr-
i/,c(l so to ad. (Code. .\rt. lit.)
It will lie seen tliat Article IS prolcds an otliccr who executes
llie sentence or warrant of a court or |iei'>^on haviui;- Jurisdiction,
ii;eiierally sjieakiuii'. luit actiuii'. in tlie pai'ticular case in Inmd.
eitlici' witliout oi- in excess ol' sutdi Jurisdiction, oi- outside ot' liis oi-
its district ; and tliat Article I'.t protects an otiicer in executiui;'. in
ii'odd t'aitli.a sentence oi- warrant which lu' helieves has licen jiassed
nv issued liy ^ui h court, or |icrson under some color of lawful
authority.
In c<ininieiitinii- iijioii the latter clause t he i-jii^'lish c<unniissioner.s
say ; • Though cases ot' this sort ha\'e rarely arisen in |)ractici'. wo
think we are Ju>lilied iiy the opinion of Lord ilale(] [lak'.4it8) in
sayihii,- that the ordei' of a court, haviiiii' a coloi- oi' jurisdiction,
thdiiijh acting erroneously, is enough to justify the ministerial
otiicer. "
.ii'iM'NiiilK' lli4> \%'roil{r Pei'NOil.— Mvery one duly
autliori/.e(| to execute a warrant \o arrest, wiio thereupon
arrcNts a person, iielieviug. in ^-ood faith and on ivasonable and
prohahle grounds, that he is the person named in tlie warrant.
>hall lie protected froin criminal, respomilnliti/ to tlie same extent and
sulijed to the same |irovision as if the person arrested had heeii
llie |iei'>(iii named ill I he warrant .
I'lvery iiiir called on to assist the person nuiking sucdi arrest, and
I'l'iieving that llie person in whose arrest he is called on to assist
is ihe person for whose arrest the warrant is issued, and every
Uirnlcr who is iv.piired to receive and detain such |)er.son. shall ho
i'rutcdod. to the same extent and suhjoct to the .same provisions as
'I ilie arrested person had lieen the jierson named in the warrant.
(' ' .\i'l. I'd. )
llii> .\rticle ot' the Code made an important (diaiige. \W tho
c<>iii!!i-i. law. if an otiicer. having a warrant for ono porson. ar-
rested an.. ilier. the anvst was illegal and unjustitiahle. Kor instanoo,
I
114 PHACTICAI. lillDK Tii MAdlSTRATES.
ill OIK' case.;! nuiu^istratc issiu-d a warrant n\H>\\ a criiuinal diarize
against a man wlio was (U'scrilu'd in tlio warrant iiy the name of
John H. IJiuU-r lliis warrant llic (•(iiistai)l(' arrcstcil lliciiai'd II.;
and. altliongli till' man so arrest im I was. in reality. I lie person against
whom tile warrant was intendi'd. and was pointed out as sncii to
the constahle liy tin.- prosecutor, wiio supjiosed tiie man's name to
be Jolin II.. Mr. Justice Coltnian directed the jur}-. and his ruling
was afterwards npiield. that a person conhi not lie lawfully taUeii
under a warrant desei'ihing liim l>y a name that did not heloiig to
him. unless he hail assumed or called himself liy tlu' wrong
name. (1)
Of courst', as a constahle could always a|)|»rchcnd. without war-
rant, any oni' suspcctt'il on ri'asonalile grounds of ha\ing committed
a felony, he was ahle to justify an arrest on that ground, although
he had a warrant which happened to he illegal. (2)
The ri'marUs of the I'higlish commissioners in support of a simi-
lar clau.se in their Draft Code aiv as follows: •• Tliis is new. As
an otiici'r ai'resting foi- felony without warrant is hy the common
law justitied. even if he, hy niistaUe. arrests the wrong person, we
think that tlu' one who arrests any person with a warrant for any
otfcnce shall at least he protected from criminal I'cspon.sihilify.
The right of action is not atfected hy it."'
Irr«'}>;iil»r Warrant <*v ProocsN. — Kvcry one acting
undci' a wai-rant or process which is liad in law. on account of
Home defect in suhstance or in form apfiarcnt on tlie face of it. if
he. in good faith and without culjiahle ignorance anil negligence,
believes that tlu' wan-ant or proeess is good in law. shall he pro-
tected from crivdi'ttl resjionsibiUty. to the same extent and suhj<'ct to
the sann' provisions as if the warrant or ]»rocess wiu'c good in law,
and ignorance of the law shall in such case he an excuse : providcil
that it shall he a (|Ui'stion of law whethei' the tacts of which there
is evidence may or may not constitute ctdpahlc ignorance or negli-
gence in his ,so helieving the warrant or pi'oeess to hi' good in law.
(Code. Art. 21.)
(1) Hoye V. Bush, 1 M. iS: Gr. 77.'), 780. 1 Rnss. Cr., otli F,d., 738; R. v.
Hood, \{. ik M. C.C. K. 281.
(!') Hoye V. Bush, . M. & Gr. 775, 780.
I'UncEEDINdS IMlElt EN'DDUSEI) WAHIIANTS. Uf)
III I'd'crcnci' ti> this claiiM tlu- Kiii>'lisli coinmissiiMicrs say : "It.
is ill Ifiisi ijiiiiliU'iil. oil tlu- cxistiiii;' autlioritics. wiictiici' a piTson
Ii()ii('>li\ arliiii'' iiiiiit^r a iiad warraiil. (Ict'i'ctivf on tiir ta<'i' i>t' it,
lias aii\' (icCi'iKT. tli()iifz;li doiiii;- only what would hnvv honn Iuh
iliitv it' tlu- warrant was ijood. Tlii' section as tranu'd protects
him. 'riic proviso is new. hut .seems to lie reasonahle. Jt does not
toucli the (piestion of civil responsibility."
l*iMM*«'«>diii^N Wli«'ii IIro OftViiflcr is not Within
flic «lllNti('<'*M JliriMlictioil. — If the per.soa a>>'ainst whom
aiiv warrant has hecn issued cannot be found within the jurisdiction
of liie jiistice by whom the .same was i.ssued. but is or is suspected
to lie in any other part of Canada, any justice within whose juris-
diction he is or is suspected to be. upon pi'oof bi'ing luadi' on oath
or atlirniation of the handwriting of the justice who i.s.sued the
same, shall niaUe an endorsement on the warrant, sii^ned with his
name, authorizing the execution thereof within his jurisdiction ;
and such endorsement shall be sufticient authority \i> the person
luiniiini; sucli warrant, and to all other persons to whom the same
was oriu'lhidly directed, and also to all constables of the territorial
divi>ion w iiei'e the warrant has been so endorsed, to execute the
.same llici'eiii and to carry the per.son against whom the warrant
issiieij. when a|ij)reheiuled, bid'ortMlu' justici' who isstu'd the Wiir-
rioil. or hetore soiui' other justices for the same teri-itorial division.
.Sueli endorsement may be in the fohm il in sciikim i.k onk of the
Code. (]) (Code. Art. 565).
iliK|»4>Mal of'l*«'rMoii ArroNtcd on KndorMMl ivar-
railt. -If the jirosecutor or any of the witnesses for the j)rosecu-
lion are in the territorial division where such jierson has been api)re-
liiiiilnl u|ioii a warrant endorsed as provided in the last preceding
section, the constable or othei' person or persons who have appre-
liemled him nuiy. if so directed by the justice endorsing the warrant,
take iiiin before such justice, or before .some other justice for the same
lerritoria! division; and the said justice nuiy thereupon take the
examination of such ]»i'osecutoi' or witni'sses. and proceed in I'very
lesjiect iis if he had himself issued the warrant. (Code. Art. 506).
(1) For Form H. see p. 13tt, poxt.
11() I'UACTII'AI. (illDK T.I MAOISTKATKS.
W
l*r4»«'«'«Mliii^;N ill t'aiiiiKlii 4»ii warruiii ImmikmI l<ilM«'-
ill«'l*«'.- W'lu'iu'vcr ii Wiirranl liiis lici'ii issucil in ;> purl d' Hit
.Miijfsly's (loiiiitiidiis lui' tlu' iiiiprt'lu'iisioii of a t'liifitivt' from tliiit
|iiirt who is. or is siis|i('ct('(i lo he in or on tlic Wiiy to ('iiiuKln. tlu)
tJovci'noi'-di'nci'iil or ii Jiidj^c of a court, if satisH('(| l lial I lif warrant
wasissni'd iiy sonic person liaxini;,' lawfnl ant liorit y to issue t lie same,
may indorse sncli wai'rant in manner provided liy tiie Fu</ifive
Offenders .1'7. and llie warrant so indoi'sed sliail lie a sutlieient
avitliority lo appridiend the fui^itivi' in Canada and iirini;- liim lie-
fore a ma.iiisl I'ale. (1)
.\ii endorsement ot a wari'anl. in pursuance of tli<' Fugitive
Olf'enilers Act. must lie sii^ned liy the autiiority cndorsiuii; llic same,
and it authorizes all or any of the ])ersons mnned in the endorse-
ment and all or any of the persons to whom the warrant was
oriirinally directed, and also eveiy constalile. to e.\ecute t he wari'ant
within Canada hy apprcdiendiny the piu'son named in it. and liring-
ing him hefoi-e a maf^istrate in Canada, whetlu'r lu' is the niaii'is-
trate named in tiii' indoi'seineut or sonic other. (2)
Itriiig-iiiK' Arr«>Nl«Ml l*«>rMon BcIoim' a Jiiistioo. —
When any pei'snn is arreste<l upon a warrant, he shall, except in
the case jn'ovided foi" in .\rti(de i'UUi. lie lii'onn'ht . as soon as is
practicalile. Iielore the justice who issued it or some other justice for
the same terril<iiMal division, and su(di justice shall either proceed
with the iiMpiiry or postpone it to a future time, in which latti'r
case he shall ei; her commit the accused person to proper custody,
or admit him to hail, or permit him to lie at larii'e on his own re-
eon-nizauct'. accor<lini!,' to the provisions hereinalter contained.
(Coile. Art. rxiT).
Coroiior*« lii<|iiiNiiioii.— Kvery coroner, ujion apy iu-
<)uisitioii takt'ii liefore him. whendiy any ]K^rson is (duu'^;ed with
nuuislaujfhter or murder, shall (if tlie jier.son or ))ei'sons. or either
of them, atfecti'il hy stndi verdict oi' tindiiii:; he not already (harifiMl
with the said otl'ence he fore a mayist I'ati' or justice), hy warrant
under his hand, dii'eet that such person he taUen into i-ustody ami
(1) K. S. C.c. 143, sec. 5.
(2) Ih. sec. 14.
SKAIU II WAItKANTS. ( i KN Kit A I.I.Y. 117
lie I'Diivc'vcil. witli iill coiivfinciit speed. In'torc ii iiiiii^nst rut r or Jus-
tice : or siieli enroiier iiiiiv direct siieli |iers(iii to t'liter into a
reciiniiizMiiee lielnre liim. witli of witlioiit ii surety or sureties, to
;i|i|ieiir iielore II iniiii-ist riile, or justice. In either ease, it siudl lie
the diitv t'l' the coroner to triiiisinit to sueli maii'istnite or justice,
llie lU'liositioiis taken hefore him in I lie matter. I'poii aii\ sik h
person lieiiiii; lii'oui^ht or ai»peariiin' liefore any such ma.ii'istrate or
justiee. he shall pi'ocv'ed in all nspi'ctsas tluuinh siicii per.son had
liceii hroiiy'hl or had appeared het'ore him upon a warrant or suiu-
iiioiis. (( 'ode. Art. TidS)
\ii one can now he trie(l upon a coroinu's iii(|iiisition. (('ode.
.\rl. (IPJ).
Noai'4'li warraiilN. €ir«'ii«'r«II,v. .Vny justice wiio is
salisticil hy iiil'oriuation upon oath in tiie i'ok.m .1 in sciiKuri.K o.nh;
III' liie ('ode. (1 ) that thort^ is re!is()nul)le <>;round for hclievinn' that
there i- in any huildinu;. reeejitacle. or place —
((() aiiythinn' iijioii or in resjieet of \vhi(di any otienci' against the
Code has heeii or is suspected to have heeii commilted : or
ih) any! hini^' which tluu'e is reasonahle tfround to helii^xc will
allord evidence ;is to the e(uiiniissioii ol'aiiy sindi otl'emH' : or
((•) aiiythiiiii' wlii(di t Ihu'i' is reasonahle n'round to helieve is in-
tended to he used tor the purjiose ofcominittinu' any otlence ai^'ainst
the person for whicdi the otl'i^nder may Ik- arrested without warrant,
—may at any time issiio a warrant uikUu' his hand aiit liorizin<r
siiiiie rn\\~.\n\,U'. or other person named therein, tosearcli smdi huildiii<if,
iMTcptai'le or piacl^ for any siudi thiiiif. and to seize and carry it
1 let ore llir justice issuiiiir the warrant, or some other justice for the
same territorial division to he hy hiiu dealt witii accordinii' to law.
-. I'lvcry searcdi warrant shall he execiiti'd. hy day. unh'ss the
justice shall hy the warrant authori/,e the eonstahh' or ot her pers(ui
to execulr it. at niii'hf. • , ,
.'). I'lvery search warrant may he in llie kokm I in sciir.mi.K onk.
of the Code. (2) or to tlie liUe etiect.
(I) For form J, see p. 140, pnH-
(■-') For Form I, see p. I Id, pout.
lis PIIAOTIOAI, (lllltK IM MAOISTUATKS. '
4. Wlii'ii iiiiy siicli tliiiiii; is seized ami in'oiiiclil Iteture >iieli Jiislico.
lie iiiiiv (letiiiii it. talviiiif reiis(iiiiil)le cure tn preserve it till tlie coii-
clusioii i>\' I lie ill vest igatieii ; and. if aiiv nne is ediinnilled I'ur i rial,
lie may order it rurtiier to lie delaiiieil for tin? |ini'|iose of evidence
on the trial. If no one is coinniitted. die justice sliall direct such
tliini!; to lie re>*ore(| |o I lie iii-rsoii from \vli<»m it was taken, except
in tlie cases iie.\l liercinafler nieiilioiied. unless lie is autliorized or
rc(iuire(l liy law to dispose of it ollierwise. in ease any ini|irovi'd
arm or ammunition, in respect to which any otfiMice under section
one hundred and si.\tecii has hcen committed, has lieen sci/A'd, it
Hhaii lie foi'l'citi'd to 1 he ( 'rowii.
5. if. iMidei' any such warrant. I here is liroun'hl, lieforc any justice,
any forifed hank note, hank note-paper, instrument or other tliiiii;'.
the jios.session whereof in tlieahsence of lawful excuse isan ott'encc
undei' any jn'ovision (d'the Code, or of any other. Act. the court to
wliicli any such person is coniniiltcd for trial or. if there is no
commitment for ti-ial. such Justice may causi' such tliiiii;- to hi' de-
faced or destroyed.
t). if. under any sucli warrant, there is hrou<rlit hefore any Justice,
any counti'rfeit coin (U- other tliiiii;; the possession of which, with
liiiowledge of its nature and without lawful excuse, is ;in indictalile
otlenc(' underany jirovision of I'art XXXV. of the ("ode, (l)every
such thinir. as soon as it has liccn product-d in evi<lence. or as soon
as it appears that it will not he reciuired to he so jii'oduced. shall
forthwith lie defaced or otherwise disposed of as the Justici' or the
court directs.
7. I'lvery ]iersoii actiny- in the execution of any sucli warrant may
seize any explosive suhstanct' whicii lie has i^ood cause to suspect is
intended to he used for any unlawful ohject, — and shall, with all
convenient Hpecd. after the seizure, remove the same to such proper
place as he thinks tit. and detain the same until oi'dei'cd hy a Judge
of a Superioi- Court to restori' it to tlu' person who claims the sanu'.
H. Any explosive suhstancc so seized shiill, in the event of the
person in whose jjosscssion the same is found, or of the owner
thereof, heing convicted of any oft'enee under Part VI. of the
(1) Part XXXV of the Code deals with offences relating to the Coin.
SKAUCll WAIUIANTS. UKNKIIAM.V. ll!t
Codt', ( 1) I"' I'orl'fitc"! ; ami tlic same sliall iKMlcHd-uycd or hoM
iiiiili'i- till' iliri'flioii of lilt' roiirt lu'lon- wlildi such in'i'soii in I'on-
\ii.|,.,|, jiiiii. ill llic case of sail', tlic |iroctH'(l.s arisiiiif llitM'cfrom
^liidl 111' paiil lo till' Minister ol' Finaiicc and iiccfivcr (Jcncral, foi-
ill,' |iiil)lic uses of Canada.
'.I. If olfi'iisivc wcaiMHis. Iiclii'vcd lo he daiii;'i'i'on.s lo I lie inililic
iicacf. iirr st'i/.fd under a search warrant, t lie same shall he kepi in
safe (UstddN- ill such [daee a-- l he justice directs, unless t lie owner
thereof proves, lo llu' .satisfaclion id' such Juslice, that sindi idfen-
sive weapons were not kept for any purpose (lan.!j;eriMis to the
piiiilie peace : and any iierson from whom any such otfeiisive wea-
Mdiis are ^o taken may. if the justice of the peace upon whose
warrant the same are taken. u|ioii application made for that pur-
pose, refuses to restore I he same, apply to a Jiidi^'e of a superior or
(■iiuiit\' court for the restitntion of siudi olfeiisivi' weapons, upon
i^ivini;' ten days' previous notice of siudi application to siuh Jus-
lice : and such Judii'e shall make such ordei', for I he rest it ut ion or
safe custody of such olVeiisive weapons, as u[ioii such ajiplieation
appears to him to he proper.
III. If o-oods or thiiiii's hy means of which it is suspected that an
(ilVenee has heen committed under Part XXXill. are seized under
a search waiM'aiit, and hrouijlit hefori' a justice, such Justice a i<l
line or more other Justice or Justices shall determine Hunimarily
whether the same are (U- arc not to he forfeited under the said I'art
X X\l 1 1. (2) and if the owner of any <>'oods or thinn-s whi(di, if
liie owner tiiereof have lieeii eouvieted, would he forfeited under
ilic I 'tide, is unkuowu nor cannot lie found, an information or eom-
I'laiui may he laid for the purpf)se only <d' enforciiiii,' such for-
ri'iture. and the said Justice may cause notice to he advertised
statinir that unless cause is shown to the contrary at the time and
place naiiu'd in the notice, such goods or things will he declared
forfeited : and at such lime and place the justice, unless the owner,
er any person on his helialf. or otlier ])ers()n interesU'd in the
ifiMiils or things, shows cause to the contrary, may declare such
goods or things, or any of them, forfeited, ((.'ode, Art, 5(!!t,)
(1) Part Vf, of tlie Code deals with the unlawful use and possension of ex-
plosivB substances and offensive weapons.
I-') PiirtXXXllI, of tlie Code deals with forgerj- of trade marks and
I'raiululent inarkinjjof merchandise.
120 PH.\< TICM. lillliK Ti» MAillSTKATKH.
It HoiiH'tiiiH's liii|>|u'iis tliiil. willmiit iiiiy flirt'ct pniol' uf ^iiill cx-
isfiiijif a^^aiiist a |iiii'ly. llict'c is I'vidciicc of liis liciiii; in iiosscssimi
of <;()(nls wliicli Imvc liccii stuli'ii mill wliidi llif nwiu'i' is altU* to
idciiliiy. Ill smii ii (iiM-. (•nmiiial- |)roci'i'(liii<^s may lie iiiitialcil |»y
an a|i|ilii'aliiin lo a jiisticc tor a scurdi warrant, wliicli licinu;
grunti'il. llif siis|i('cl('(l |ii'cmisfs ai'c scarclii'il hy a constaliii', and
»lioul<l the ijoods lie discovered, lliey are taken piLsscssioii of. untl
tlie oeen|iier of llie |preiiiises wliereoii tliey are found is liiniself
apprelieiiiled and iiroiiirlit liefore I lie magistrate lo answer the
(•liarixe eillier ot' iiaviiiij stolen tlieiii or of having reieived tliem
knowiiii;' tlieiii to have lieen s|(den,
Wiieii tiie eharL''e is lii<ely lo nionid itself into one of reeeiviiii;
^oods knowing' I hem lo have heen sloieii. t he ohlainin^' of a seartdi
warrant in the llrsi in>laiiee will he the most advisahle course,
siiiee the |ii'oseeiitor is therehy enahleij al the same lime not (inly
to sei/e the :;'oo(|s u|ion the premises liefore I hey are made away
witii. — and soolitain eoii,ciil evidence in siippijrl of his cune. — l)iil ul«o
to apprcdiend t he parly siis|pceted of ifuilt in the transaction : where-
as, if merely a warrani to apprehcml he ohtained in the tii'sl in-
stance, ^reat dillicully may afterwarils he c.\perienced in i;-etlim( al
till' propertw and a ease, otherwise almost conclnsive. may fail for
want of t he nceosary evidence to support it.
When, thei'd'on-. a jiarly whose i;'(((m1s have heeii stolen has rea
sonahle L;r.iuiii|s tin' suspecting that they are upon the premises of
Homeolher person, he should ijo hefore a juslice having; jurisdictidii
in the district where (he premises to Ik^ searched arc siluale. ami
make oath hy himself or hy witness of the facts upon which he
liases his application ; and. ii])on the justice lieiny,- satisfied cithci-
that the i;'oods have heen stolen, or that there is reason to snspcci
tliey are stolen, and I hat there is also rea.soii to helieve they are
ii])on the premises indicated, he will grunt his warrant to search
the premises and si'ize tlie goods and also to ajiprehend the party
in whose jiossession they may he found. (1))
The aho\'e A rl icle .")(!!) aut hori/es 1 he issiu^ t»f a si'arch warrani
whenever the justice is .satisfied hy information upon oatli thai
tlierc is reasonahle ground for helieving that tlnM'c is in any ]»rein
(1) Elsee V. Smith, 1 D. cS: K. !I7.
SKAItCII KiiH I'lllMf STlillKH. 121
im's. 1. aiivtliiiii!; iipKii iir in rfspcct ol'wiiicli iiiiy otU-iici' has licfii
or i> xiispfttcil til have Ik'cii committt'il. or, 2. aiiyl liiiiij wliicli iIutc
In i-cii'i'iiaMi' yrniiiiil to lii'licNi' will all'ord cvidciict' as ti> tlu' cotii-
iiii>-ii>ii lit any olVciicc. or. II. anylliin^ wliidi ilicrc is rcasoiiulilc
ijroiinii to liclii'vc is intemliul to he imeil to cotnniit any oMciicc tor
wliicli the otrcnilcr may Itc arrt'sicil williont warrant.
Till' foh>talili' to wlioni a srarcli warrant is (jircclcil ami to wIkmh
il i>< I'nl rnstcd si ion Id n>c ^I'fat rant ion in i he cxccntion of it. He
slioidd lie acronipanicd to llu' [ircniiscs l>y llif owner of tjic pro-
pcru or l>y sonn- ollii'i" pt-rson aide to point onl and swear to ijic
tfoods in (picsiion. If tlic prcndscs jirt' elosrd and t lie consiaMi' is
denied adnns>ion after nuiUinn' demand ofadnnssion and dis(dosini;
ills aul liorily and I lie oliiffl of Ins visit, i he premises may l>e forced
open liy Inm. ( I)
In making the searcdi. care innsi lie tiiU'cn that no o'her .yjoods
llian I hose desiivnali'd in the warrant. (-) or sutdi as have heen
acliially stolen, (.-i) he sei/eil.
.sijiould the i^oods souvht lor he found, the ccmstahle will sei/.e
and keep I hem in his po>ses>iun. and he will t hen, also, hy \irt ne of
lii^ warrant . ajipridiend I he person on whos;' pi-eniises they have
keen lonnd and take him hid'ore tlu' man'istrate l<i answer the
cliari,'e wdn(di will then he preferred ai^ainsl him.
W'iiere. on I he preiinnnary enipHry into a (dniri^e of havini;' and
cnncealin;;- pi'operly helonyinij to iinother. the prisoner was
acipiillecl of any wrony;fnl taking;, detention or concealment theiv-
I'l'. it was held tlnil the magistrate was still entitled lo retain the
piopei'iy. it proved to Iiuve heen .stiden, until tiu' otienee could he
I I'ied. or nniil for sonu' sutticient reason no trial eouhl he liail ; Itnt
that if il appiiire(| that the properly was not stolen it should he
returned to the owner. (4)
Koarcli for l*iil>li<> NIoroN.— Any <'onstalile or otlier
otiicer. if deputed hy any puhiie de|iarlment. nniy. within the limits
(1) Saunders Prac Mag. Cte. 5 Ed. 198, 19'9.
(2i IVice V. Mosseuser, 2 B. & R 158; Bell v- Oakley, 2 M. & Sel. 259.
(31 Cro/ier v. ruiidy, G B. & C. 232.
(4 ) Howell V. Armour, 7 Ont. R. 303.
122 PRACTU'.Vl, (il'lliK TO M.VOISTItATKS.
for wliich 1k' is such coiistabli' <>i' pi'ticc ortiiH'i'. sti)|i. <U'taiii and
st'arcli any iktsoii irasoiial)!}' Kuspocted of havinijj or coiiv-yiiig in
any manner any public stores dcrincd in section aS.! of tlic (,'ode,
stolen or unlawfully oiuained. o.r any vcssi'l. Iioat or vtdiiclc^ in
or on wliich there is reasim to sus[)ect that any puhlic stores
stolen or unlawfulh' ohiained may bo found.
2. A constable or other peace ottieer shall be deemed to be de-
l)uted within the nu'anini^- of this section if lu' is doputod by any
writiui^- siirned iy the ])ersou who is the lu-ad of such department,
or who is authorized to siga documents on behalf of such de[iart-
iiient. (Code. Art. 570.)
The expression ■ pulilic stores " includes all stores under the care,
superintendence or control of any jiuiilic department or of any
jierson in (beser\ice of su(di de])arlment. (Code. Art. .'JS;!. b. )
Noarrh Warrant lor ITIiiii'd (irold, Kilver. otc. —
On complaint in writiiii;- made to any Juslit'cof tiie county, district,
or place, by any person interested in any miinim; claim, that mined
gold oi- yokl-bearing quartz, or mined or unmauufacturi'd silver or
silver-ore. is uidawfully depositc'd in any place, or held by an\- per-
son contrary to law. a general .search warrant nuiy be issued by
such justice, as in the case of stolen goods, including any number
of places or ])ersons nanu'd in sucdi complaint : and if. ui)on such
80ur(di. any such gold or gold-bearing (|uart/,. o'- silver or silver-ore
is found to be unlawfully deposited or held, the justice shall nnike
such oi'iler for the restoration tiiereof to the lawful ownt'r as he
eon.siders right.
2. The <lecision of the justice in su( h casi' is subject to apjieal ;ts
in ordinary casi-s coMiing within the provisions of Pari L\'lll.
(Co<le. Art. 571.)
Part LVIIl of the Code relates to SumiTiaiy Convictions. Sec
post.
Koar«*li l>y Fea<*o <>fti«*or for l>«>taiiio«l IjIiiiiImm*.
«»t<*. — If any constable or olhei- jieace otiicer has I'easonable ca\i--t'
to suspect that any timbei'. mast. s|)ar. saw-log. oi- otherdesci-iptidii
of lumber, belonging to any lumbernuin or owner of lumln'r. ami
bearing the registeri'd trade nnirk id' su(di lumberman (u- ownei" nl'
SEARCH WARRANTS. 123
liimluT, is kvp\ oi' (lotaiiuid in any suw-miil. inill-yanl. boom or raft,
wiliioiit tlic knowlodyo or consent of the owner, such constable or
ntlici- |>cacc officer may enter into or upon tin; same, an<l searcli or
examine for the purpose of ascertaining whtitlier such timin'r. nuist
s|)ar. saw-loy or other description of lumber is detained tlierein,
without such knowledge and consent. (Code, Art. 572.)
K(>ur«*li lor and Noixiiro of Iiitoxicatiii;; i^fq-
iior.s on Her Jlajt'Nty'.s Ships.— Any otlicer in Her
.Majesty's service, any warrant or |)etty officer of the navy, or non-
commissioned oihcer of nuirines, with («• without Hcameii or persons
under his command, may search any boat or vessel which hovers
about or approaches, or which has hovered about or approached,
any of Her Majesty's ships or vessels mentioned in section 1 1!). I'art
\'l. nf the Code, and nuiy seize any intoxicating liquor found on
liiiurd such l)oat or vessel ; and the li(|uor so foutid shall be forfeited
to the Crown. 0"'><l^'- Art. ,")7;!.)
Warranto f o Noarcli IIoiinon olTlI-laiiio.- Whenever
ilirrr i> reason to believe that any woman or girl mentioned in sec-
tion IS,"). PaiM XIII, of the (!ode has been inveigled or enticed to u
house of iil lame or assignation, then, upon complaint thereof bein"-
luadf under oath by the parent, husband, master or guardian of such
woinaii orgirl, or in the event of such woman or girl having no
known |iaiviit, iiusband, nuister nor guardian in the place in which
liic ollrnie is alleged to have bei-n committed, by any othei' pi-rson,
lo any jusiice of the pi-ace, or to a judge of any court authorized to
issue warrants in cases of alleged otfences against the crimiiuil law,
Midi jusiice ,,| the jieace or judge of the court may issue a Wiu-rant
lo enter by day or niglit. such iu)use of ill-fame or assignation, and,
if necessary, use force for the i)urpose of ettecting such entry
whether hy breaking o]ten doors or otherwise, and to search lor
siuh woman or girl. an(! bring her, an.l the person or jHu-sons in
whose kee|mig and po.ssession she is. bi'fore su(di justice of tlu>
|""ii>' or judgeof the court, who may. on examinati(m. or.lcr her to
'»' delivered to her parent, husband, master or guardian, or to he
discharged, as law and justice re.|uire. (Code. Art. r)74.)
Article 1S5 of the Code deals with oftcnces against women and
9
U'U
124 PRACTICAI, GUIDE TO MAOISTKATES.
S<'»i*<'liiii}>' tiiaiiiiiiy; IIoiinon, liettiii^; lloiiMrN,
anil IjO<<«'I*I*'«. — If llu' chiof t'onstablo or deputy chief
coiistiilili' of any city or town, or other oiticor authorized to act in
his absence, reports in writinijj to auy of the coiuinissioners of
poHce or mayor of sucli city or town, or to the j)ulic(^ niagistrat(^
of any town, that tiiere are good grounds for believing, and that
he does believe, that any house, room or p]ac(i within the said city
oi' town is i<cpt or used as a common gaming oi' iictting-house as de-
fined in i'art XIV.. sections l!t(i and ll»7 of the ("ode. or is used for
the purpose of carrying on a lottciy. or for the .sale of lottery tickets,
contrary to the pi-ovisions of Part X.V., section 205 of the (Jode.
whether admission thereto is limited to those possessed ot' entrance
keys or othi'rwisi', the said commissioners or commissioner, oi" nui\'or,
or the said ])olieeiuagisti'ate. may. by ordi'r in writing, authorize the
chief constable, tleputy chief constable, or other ofticcr as afore-
said, to enter any su(di house, room or place, with su(di constables
as are deenu'd ri'ijuisitc by the chief constable. de])Uty chief
constabk' or otlu'r otticer. — ami. if necessary, to use force for the
])uri)ose of I'tfecting such entry, whether i)y breaking open doors
or otherwise. — and to take into custody all persons who are found
therein, and to si'ize. as the (asi' may be. 1. — all fables ;ind instni
ments of gaming, or betting, ami all momys and securilies for
money, or 2. — all instrunuMits or <levices for the cai'rying on ot
sucli lottery, and all lottery tickets found in su(di house oi'
]i remises.
2. The (diief constable. de])Uty (diicf constalile or other oHicei'
nmUing siudi I'litry. in oliedjence to any order, may. with the assis-
tance of one <u' more constaiiles. si'iircb all parts of the lionsv'. room
or place which be has so enti'ieil. where he suspi'cts that tables oi'
instruments of gaming or betting, or any such instrunu'uts or
dcNMces for the carrying on of such lottery (U' any lottery ticUets.
arc conct'alcil. and all ))ersons \\hom lu' tinds in sindi honsc or
jiremisi's. and sei/.e all tables and instruments of gaming, or bet
ting, or any such insti'uments or devices or lotler\' tickets, wlii. li
he so tinds.
;». The police magistrate or other .jiistlcc of the peaci- before
■whom any |ierson is taken by \irtue of an order or warrant luider
this section, may direct any cards, dice, balls, counters, taldes or
other instrnnienis of gaming, used in playing any gann-. ami
SKAI<rill.\(i ()AAI1N(J ICOr.SES. 125
seized unilcr I lit' ('(xk' in any placv usi-d as a common <famino--
liousc. oi- any taldi's and instfunu'uts of l>ottin<f so si-ized in anv
jilacc used as a coiiinion l)ottiiig-h()nsc oi- any siudi instrunicnts or
dcviros I'oi' llic caiTvinif on of u lottery, or of anv siudi lottorv
iicl<('ts as afori'said. to lie fortiiwitli dcstroyfd. and anv monoy or
sccnrilic's si'izod nndor thisscotion sliall he forfoitod to tlio Crown
tor I ill' |iul)li(' uses of Canada.
4. Tic expression •chief constable" includes chief of police,
city marshal, or otlier head of the ])o]ice foirc of anv city, town
or place.
;■). The expression ••deputy chief constable " includes deputy
chief of iiolice. deputy or assistant city marsiial. or otiier deputy
head of tlie |iolice force of any city, town or place, and the expres-
sion • iioiice magistrate " includes stipendiary magistrates. (Code.
Art. ."jT."). as amended by iiT-oS Vic., c. 57. sec 1.)
A COIUIIKHI UAMlNa-HOUSE i.s —
(,7.) a house, room or place ke|)t by any p(>rson for gain, to
which ).ersons resort for the purpose of playing at any jrame of
chance ; or
(h.) a house, room or place kept or used for Jilaying therein at
any -ame of cIkiimc. or any nii.xed game of chance and skill, in
which —
(i.) a l)ank is kcpl by one or more of the players exclusively of
the others : nr
(ii.) ill whicii niiv --aine is played the (dianccs of wlii.d. i .v not
:dike lavonraMc in all the players, inclmling anmng the jilayers
111'' banker or other persmi by wh..m the game is n.anaged. or
a-amst wlmni the game is managed, or against whom the other
playeiN slake, play or bet. (Code. Art. liXI.)
A comnioi, BETTlN.i-HousE is a Inmsc. .itfice. room or other
place —
" ' "l"'i"'d. kept, or us,.,| tor the purj.osc of betting between
pciM.h- r(.s,.rtiiio. ilicrcto and —
'!:^ " ^^'i"''- '"•'■npier or keeper thereof :
(" ' anv person iwjng ilu. same ;
126 I'RACTICAl- GUIDE TO MAGISTRATES.
(iii.) any jjoason prociuvd or oiui)loyed l)y. or iu'tiiig lor oi- on
behalt'ot' any sui-h jtcrson ;
(iv.) any ]n'rson having tlu- caro and inanagonionl. or in any
maimer condiifling tlio business thoroof ; oi-
(6.) opened, kepi, or nsi'd tor liic pur|)oso of any money or vain-
able thing being rotvived by or on bohalf ol' any sn(di person as
aforesaid, as or for the considoration —
(i.) for any assurance or undei'laUing, express or implied, to pay
ov give thereafter any money or valnalile thing on any event or
eontingeney for or I'elating to any liorse-i-ae(M)r other raee, tight,
game, or s])ort : or
(ii.) for seenring the paying or giving by some other person of
any money or valuable thing on any sueh event or eontingeney.
(('ode. Art. l!)7.)
Article 201. par. ;!. of the Code makes a bueki't-shop. that is (n
sav. an otiiee or plaee of liusii\e.ss in \vhi(di gaming in stocks is
earric'l on. a c(unmon gaming-house.
The above Article 575. with reference to warrants to search
houses suspected of being common gaming-houses. ])rovides that
such a warrant may be issued to the chief r.-^nJabk or deputy cfvef
constable of any city or town ; and by claust's 4 and 5. it detines tlic
expression '•chief constable" as iiududing thi' chief of police, city
marshal, or other head of the police force of any city, tnwn or place.
and the expression '• <leputy (diief constable " as including llu-
deputy c hi ff of police, etc.. of any city, town w place.
It woidd app-'ar. therefore, that such searcli warrants are only to
be issued to and i'xecuted by the head or deputy head oVupolice force
of a citi/. toKn or place, (tlu^ word • idace" being probably meant tn
incliule places under the control of the head of a jirovineial or ;i
county police force), and that, under the terms of Article 575. tiny
cannot be issued to or executed by. for instance, the high constalilc
or deputy high {'unstable of the district of .Montreal, (who seems
to be more of a head or chief bailitf of the Criminal Courts than ;i
police otticer) nor by any other constable or otticer unconnecicii
with and not occu])ving the ])osition of head oy deputy head of lln'
police force of a city or town or the head or de[)Uty head of a pro-
vincial or county police force.
SKARflllNIi GAMI.NMi HOUSKS.
127
l*>iil. qunere. siipiiose a coiistaltk' or other peaci' ofHoor not
i>ccii|iyiiiii' till' |ii)sitioii of he(vi or deputy head of a police, force, wcm-c
to rt'ccivc ami ad upon siicli a warrant, and lo tiii'l. iii>oii ciitorinij
the siis|icct('(l prciuisi's. ij, niiml)L'r of ifainiiiu; in.striimi'iits and
soMic iKTsoiis ciiii'aLfi'd tlicrt- in iilayini>\ would lie not have thi'
riii'lit (ind('|icn(h'ntly of any warrant), to apprt'luiud siicli p^'rsons.
undci' the authority of clause Hof A rticK' r)")^. (inte. wliicdi pi-ovides
I hat ANY I'F.AcK oi'i'icKH may arrest. icUhout warrant, any one
whom he finds ctnnmittinn- an ott'enee a,i"'ainst tliis Aet ? (^r,
would the fact of su(di coustahle. or peace ottici'r not hein^- the
proper ottieer authoriy.ed liy .\rticle 575 to receive and act upon a
warrant to scarcdi a susi)ecti'(| n-aniiui.,^ house, dehar him from
makiiii;- any valid arrest of jjcrsons found in the premises entered
liy him liy virtue of sued: a warrant.
.\ case soMU'whai in point recent ly arose in tlu' city of Montreal.
On the l-Mli Octol.ci'. !S!i;i. a warrant was issue(|. (uiiilei- Article
575). hy I'nlice .Magistrate Duii'as to l)e])uty .lli<>;h Constalile IJis-
sotinctte to sear(di jiremi.ses allej^'ed to lie kept hy oni* Mahmev as
a common naniin.i;' house. I'lider tliis warrant Hissonnette, with
the assistance of several other otth-ers entered the premises and
found therein a numher of oiuniuii- insti'unu'uts consisting- of cards,
I (lice, halls, counters, rcudctte tahles. card cutlers or nuirkers. etc.,
^ and live or six pers(>iis seated at a n'aminii' tahle. Tlu' otHcers
■^5* .sci/.ed and carried away the iiamiui:; instruments together with
;^; several thou.sand dollars in cash, and tlicy appre'hended .Maloney
,;!^ and tlie five or six jtersons found in the premises. On the follow-
"^i inn- .Monday (ItJlh OcK.hcr). .Maloney was (diari^-ed. un(ler;Artiele
',r 1!1S of the Codi'. with the iiulictahle otfeiu'c of kee|)ing a ifaiuinjif
' liousc. and .Judge l.)ugas. after fixing a tinu' for liolding the pre-
liminary iiivcsfigafion and after hearing 'special evidence as to the
nature of the articles seized, ordci'ed the destruction of |iu- gaming
iiisti'umcnts and the conliscation of tlie monies. With regard to
the persons t, ,1111(1 in the premises, they were h rough t hefore Polieo
Magisii'.it,. Dcsnoycrs to he sumnuirily tried under_Artiele ]!»!• of
ilie ("o(h>. for the non-indictahle olfcuce of having licen found
I'laymg in a common gaming Ikuisc. The counsel for the defen-
dants raised the ohjcclion that iiissonnette the Deputy High Con-
siahlc was not smdi a ficer as is autJK.rized umler Article 575 to
i'<''ive and c.veculc .i warrant to .search a suspected gaining house,
128
rKACTICAr. (il IDK TO .MA(ilSTRATKS.
itiiisiinu-li as 111- is only a I)i')iiily lliu'li Cniistal)!*' in (•oiMicctiiin
will) tho ('riiniiial ("diii-Is ami not tin- lu'ad oi- (l('|iiily head ol' any
liolice foire. l)Ut tlial the |)ni|HTi)tH('oi' to ri'ci'ivc and t-xi'cuti' sncli
il warrant was tlu' Cliicfor l)i'])nty Cliii'f of tlu' police t'oi'co ol'tlu'
City of NFontival. lliat tlu' warrant and the entry ihcnMindiT of
the ]>ivn)ises in (piestion iieiny; ilK'^'al. the arresi made at the sanu'
time of the defendants was also illeji-al. and that therefore they
conld not lie lei;-aliy tried njion theidiarii'e |>'eierred a^'ainst ihem.
.luciije Di'snoyers tooU a note (d' tlu' ohjeetion. the defendants
pleadeil not .'i-nilty. the trial was proei'ed with, and at its elose the
Tiidge reserved his deeisiim nntil ihe l!;>rd Oetoher, ISiKS. when he
rendered judginent against the defendants, linding theii gnilly of
being fouie' ])laying in a gaming house and imposing a fine upon
eaeli. lie held that, whatever force there miglit be in the ohjee-
tions raised hy the defendant's eoimsei. they wcmv of no avail in the
ease against the defendants, although tliey might he found to have
some value in that hraneh of the tran.saetion wliiidi related to the
case against Maloney. as the keeper of the house, and in deciding
that tlie defendants were ivgnlarly before him, he relied upon
Articles 22, 24, 552. 557 and 84H of the Code, and jiartieulai'ly upon
Article 24, "which," he said, -gives any private individual the
riglit of arresting without warrant any person whom he tinds com-
mitting an ott'euce." and upon .\rticle 577. whicdi (when read in
connection with .\rticle S4H). provides that when any person
accused of an otfenee-is before a justice whether voluntarily or upon
summons or after being a|)itr(dien(led icith or without a warrant, the
.Fustioe shall proceed to eu(iuire into the matters charged against
such person. (1)
Sections!) and 10 of H. S. (',. tdiap. 15S. (whi(di are unre]ieale(l i.
empower a Polici' Magistrate to swearand examine, wlu'u brought
before him. any ])ersons found in any gaming liouse entered and
searched under the ]>rovisions of Article 575. Tliese sections are
as follows :
" The police magistrate, mayor or justice of the peace, before
whom any person is brought who has been foun<l in any Iioum'.
room or place, entered in jinrsuanee of any warrant or order issmd
(1) R. V. Louis Aaron and others, Crankshaw's Cr. C. 646, 647.
SKAHl'llINd (iA.MIN<i IIIHSES.
129
iiiidfr tlic CimK'. iniiy ivtiuiiT any «iu"li ixTson to l)o oxamiiiccl on
oalli iiml In n'ivo t-vidt'iu'c louchiiii!; any u.,lji\vful i^ainiiiujin such
liniisc, I'oinii or iilaci^. or toiicliiiiy; any a. t ilonc for the jinrposo of
lirt'vcntiu!;-. olistrni-tinii- or dolayinu; the entry into sncli liousc,
room or plai't'. or any purl llu'rt'of, of any constaltk' or olHcior
antliori/i'd as afori'saul ; and no person so roquiriMl to l)i' cxanuncd
as a witncssslnill l)i' excnsi'd from licinif so examined wlion brought,
licfore su(di police nuit;Mst rate, niayoi' or justice of tlio peace, or
from lieinu; so examined at any sui)se<iuent time liy or before the
police nuiiiistrate or nniyor or any Justice of tlie jteace. or by or
iieforc any court, on any proceedinif. oi- the trial of any indictment,
information, action or suit in anywise reiatiiii;' to such unlawful
liiinnui;- or any nucIi acts as aforesaid, or tVoni answerinii; any i|ueH-
lion put to bini toU(diinif the nuitter afon'said. on tlu' ground tluit
his evidence will tend to eriniiiuite himself ; and any such person
so re(|uired ui lie examined as a witness who refuscN to nuike oath
accor(linii-ly. or lo answer any suidi (pu-stidn. sluiU he siibject to b<'
dealt wilh in all respects as any person appearing; as a witness l»e-
forc any justice or court in obedience to a summons or sul)]>(Bna
and refusing-, without lawful cause or excuse to be sworn or to
y-ivc I'vidence. nniy. l>y law. be dealt witli ; l)Ut notliing in this sec-
lion shall rentier any offender, liable on his trial to examination
licreunder." (Sec. It.)
■■ l^ver}' person so re([uiri'd to be examined as a witnt'ss. who,
Upon su(di examination, nuikes true disclosure, to the best of his
knowledge, of all things as to which lie is examined shall receive
[^irom the judge, justice of the peace, magistrate, examiner or othei"
Judiciiil otticer before whom sutdi proceeding is had, a certificate in
writing to that etiect. and shall be freed from all criminal [jrosecu-
tioiis and penal actions, and from all j)enalties. forfeitures and
)unis|imciits to which he has become liable for anything done be-
ifore that time in respect of the matters regarding which he has
pK'cM examined ; but sindi certificate shall not be effectual for the
p)urpose aforesaid, urdess it states that such witness made a true
[disclosure in respect to all things as to which he was examined ;
|an<l any action, indictment or ])roceedings pending or brought in
lany court against .such witiu'ss. in re.s))eet of any act of gam-
ling regarding which he was so (examined, shall be stayed, upon the
hu'oduction and proof ..fsu.di certificate, ami upon sununary appli-
13(1 I'RArTirAI, (il IDE TO MAOISTHATES.
<'.iiti()M 1() llic court ill wliicli siicli aclioii. iiKlicliiiciit or profci'd-
iiiii; is |K'ii(liiiii;, oi" iiny jiid^t' tlu'i'cot. or iiiiy jinlifi' of any ol' tlut
supoi'ior rourls of iiiiy province. ' (Sec. 1((.)
Warrant lo Scarrli lor I'ayjraiiixj. -Any sti|nn(li:iry
or |iolicf iniiffistratc, mayor or warden, or any two justices of llie
peace. u|ion inlbrniation Ind'ore tlicni made, llial any iierxni de-
.scrilicd in I'arl }iY . of t lie ( 'ode as a loose, idle or disorderly person, or
van'raiit. is, or is rt^asonalily suspecteil to In-, harliored or coneealeil
in any <iisorderly house, liawdy-liouse. house of ill-faiiie. tavei'ii or
boardiny-hou.se. may, hy warriint. authorize any constnhle or other
]terson to enter, at any time, such housi' or tavern, and to appre-
hend and hrinif hefori! them or any other Justii-es of the |H'acc,
<-ver}' person found therein so suspccteil as aforesaid. (('ode.
Art. r)7tf.)
<ltli«>r Srarrli Warranto and l*4»w«'rM 4»r ^ioaroli
or ol" l<jlltr;|°. — Any fishery otticer or other jiistiei- of the peace
may scar(di, or <rrant a wan-ant to seartdi. any vi'ssel or phuc
\vhere there is reason to l(clie\'e that any tish taken in violation of
the Fisheries Ad, or anything used in violation thei-cof. is con-
cealed. (I) And certain ortici^rs and persons are empowered hy
the .1,"/ respectimj Fishin;/ hij Foreign Vessel.^, and its amendiiu'iits. to
liriny,- into port any ship, vessel or hoat. hcinn' wit liiii an_\' liarhor
in Caiuula, or hovcrinif in British wati'rs within threi' marine miles
<d' any of the coasts, hays, creeks or liarluirs in ('aiiada. and to
si'ar( li her carijjo. (2)
ruder the Wrecks and Salvage Act. a wreck receiver, who sus-
pects that any wreck is secreted or concealed, may (ditain from any
justice' of llie peace- a search warrant to search for. rc'inove. and
detain the secreted wre(d<. (.!)
Whenever a warrant for the ap])rehonsion of a person accused
<d'an offence' has iiecn endorsed in pursuance i)t' [\)v fui/itice Offend
ers Act. in Camula. any iiiaf>'ist rate in Canaila has tlu' .same power
of issuing a warrant to search for any property alleged to have
> (1) K. 8. C, c. Kj, sec. 17, par. 2.
(2) 40 Vic, c. 114, sec. 1.
(:i) H. S. C, c. 81, sec. 41.
UTIIEII SEAKCII WAIUIANTS. 131
lifcii st(ilfi) ni' fo lie olii'.'i'wisc uiiljiwCiilly (alvcii or ulilaincd liy
Micii iicrsoii. oi' iitlu'rsvisc to lie liic siiliji'ct of sucli otl'dK't', as tliiit
iiiaifistrali' woiiM liavi' iC llic |ii'o|ici'ty liad \)vv\\ stolen oi- otlu'r-
wise uiilaw't'nily taken or olitained. or the oll'enee Inul hoen eoni
niitled \vli(dly uitliin tiie jnrisdielion (d'sii(d» niagiistruto. (1)
Any coniinissioner aiijiointed nnder the Act respeetinu,' tlie Pri'
sensation of the. Peace, in the I'irinitj/ of Publie Works, or any
Jnstiee of tlie peace liaviiii;- autlioi'ity within the place in \vhi(di
the Act is at the time in foi'ci', may — u|)on liie oath of a crodihle
witness that he helieves that any weapon is in the possession (d'
any person, oi- in any Ikmisc or place, contrary (o the provisions (d'
the Act — issue his warrant to any constahle or peat'e otlici'r to
suarcdi for and si'ize tlie same ; and he or any person in his ai<l
may sear(d> for and seize the same in the poss(>ssion of any ])('rson
oi' in any such house or place. (2) And a warrant may l>i' issued
to searcdi for intoxieatini;- Iniuoi- witli respect to w]n(di a \iolation
of the ]irovision> of tlu' Act is hi'lieved to have hcen committed oi'
to he intended t(. lie conunitted. ('!)
In the Xorth West Teri'itoi'ies, any Justice of the peace or anv
judjie of the Sujireme Court of the Territories, upon complaint
nnide hcfore him. supported hy t he evidence of one ei'edihle witness,
that any intoxicating- li(|Uor is manufactured, imported, sold. I'x-
eiiangcd. traded or hartercd in violation (d' the North West Terri-
tories Act. may issue a searcdi warrant as in eases of stolen j^oods.
(4) And in I he district of Keewatin a sinnlai' wari'ant to searidi
foi' intoxicatiriii' li(pior may. upon a like complaint, he i.ssued liy
any .judi;'e. stijiendiary ma^'istrate or Justice of the peace. (5)
Hy the North West Mounted Police Act, 1S!)1, it is provided that,
u|ion infoi'nuitio! .o- upon reasonalile i^'rouuds of suspicion, and
without the necessity of any intervention or process of law. the
iiiemhei's of the force nuiy, -in tho.se portions of the Xorth West
Territ<M-ies in whicdi the law relating- to the jirohiliition of into.xi-
canls remains in force. — enter any shop, store, hut. tent. wi>--wam,
(1) R. S. C, c. 14:i,.sec. 12.
(-') R. 8. C.,c. 151, sees.
(3) /fc., sec. 16. ,
(4) K. 8. C. c. oO, sec. i)l.
(5) H. S. C. c. 53, sec. 37.
l;}2 l'lt.\( TIPAI, (il IliK Til MAtilSTKATES.
(Iwclliim; or Idiililini;'. oc idiirc. oi' ciiclosun'. iiiid also t-iitcr iiiid
for such |nii'|((is(' s(<i|i iiiiil (liMaiii wliilc ti'iix cHiim,- iiiiy vessel, cunuc.
c'urriiijjfe. \va,iiu;nii. ciirt. sleiiili. orntlier veliicle or nieiiiis ><{' edii-
vciymuio ot'iiny liesri'iptinii. iiiid searcli all parls iliereuf. ami any
kcijs. harrcls. eases, iioxes. m- |)aekati;es or reeejilaeles of any kind,
I'oi- spirits, sli'oiii;- walers. s|iirilnoiis licniors. wines, or t'ei-nienteil
or eoHi|)onn(led liipiors. oi' iuto.xieatini;' drink ol' any kind, and
break and destroy any sindi keu;s. hurrels. eases. Iioxes or |ia(d\ai^eH
or otiier receptacles of any kind found eontainini;' tlu' sanu'. and
ponr ont and destroy all spirits, slronu; waters. spiritn<nis ii(|iiors,
wiiH's. or fermented oi' coin|)ouiiiled licpiors oi- intoxicatinii" drink ;
l)ut no constaliie slnill so enli'r any liut. tent. wi<;wain or dwellinti;.
iiidess accojiipanied jiy or nndei- tlu' tu'der of a eoniniissione<l
otlieer. (1)
Hndi'i' tlie Act for tin' preserxation of y'ame in the un.irgani/.eii
portions of the North West Territories, any n'arne y-nai'dian who
lias reason to suspect that a iireach of any of t lie provisions ol the
Act has heen committed, or that any ln'ast, hird oi- e^'.i!,'^ in resjiect
of whndi siudi a lireach has heen eominit ti'd, or any part of any
heast or hird. in rcsjiect of wliich smdi a lirea(di lias hei-n com
niitted. is likely to 1k' in any lent or on any |)rcrnises or on hoard
any ve.s.sei or in any conveyaiKH'. may hy warrant under his hand
autliori/.e any constahle to enter and search smdi tent. |)remises,
ve.s.sel or conveyunee. and if found to seize any sutdi heast. hird or
eggs or any such part of any heast or hird. (2)
Tinder the Seamen's Ac^ justices of the peacoat any jiort or place
in the Provinces of Q\iehee. Nova Scotia. New liruuHwiek, I'l'ince
.Kdward Island and Uritish Colnnihia, are authorized to grant war-
rants to .search for seanu-n oi- apprentices unlawfully concealed or
secreted ; (;i) and any police otHcor or constable recjiiired by the
Act, to assist in apprelu'ndingaiiy seaniun orapitrcntico unhnvtully
absenting himself from his ship, may eiitei- any tavern, inn. alc-
liouse. beer house, seamen's boarding-house orolher house or phui
of entertainment o'' into any liquor shop or other I'cfreshment place
or any house of ill-faim\ (-1) And luider the Inland Waters Sea
(1 ) 57 & 58 Vic. v.- '11 , sec. 13.
(2) 57 & 58 Vic. c. 31, sec. 20.
(:!) R. S. C. c. 74, sec. 1 19.
(4) //;.,Keo. 124.
iTIIEII SEMK'II WAItllANTS.
i;!:5
meii'.s Art
iiiirl in (
'. ^imiliir jinwcrs an' y;ivcii In jiislici's of llic |i('iici'. ill iniv
'iiiimla. In ii-raiil \\iirraiit> to si'im-li forsfiimi'ii iiiihiw rully
I, ;,,•!.<. ivil ,.!• secret. 'il. aii'l I" |>"li''«' "llicers and constal.li's to eiitiT
taverns, etc. ( 1 i
Any siii.i-rintenilent of liarlmr and river police and any conslal.ie
j,|,|„,i'iiic(| under llie autliority of tlie Ad respeHiii.^; llie llarlmr
and Uiver I'.dice of llie I'roviiiee of (^uel>ee. may lioard any vessel
for the imrpose of arrest in j^; or seareliin.i-' for any person I'or whoso
arrest a warrant lias lu'i'ii issueil. (2)
Anv inspector or other ollicer appointeil under the Animal Con-
tagious Diseasfs Art may. at any time, for the purpose of eai-ryini;-
into elleel any of the provisions of the Act. t'liter any eonimotij
' ■ ■' ' s within his district, in
tield. stalde. cowshed or other preniisei
wlii(h he has reasonahle i;'rouiid for supposinif that any animal
atVi'cted with any infectious or conian'ious disease is to lu' found,
iiut shall, if reipiired. slate in wrilinm the g'nuind on which he so
enters. (:>) lie may also at all times enter on hoard any steiuuship.
steamer, vessel or hoat in respect whereid' he has reasonahle n'roiind
for supposing that any coniiiany or pei-son has faih'd to eoni]ily
with the requirements id' any ordei- rospuctinii; the cleansing and
(lisinfectiiitr of steamshiiis. steamers, vessels, hoats. pens, eavriages,
trueUs. horse-hoxi's or vehicles used hy such company or jierson
i'or the carriage of animals, and on pl■enlise^ where he has reasoii-
iihlo ground for supposing that any pen. carriage, ear, vessel, truidv,
hoi'sc-hox or vehicle in respect wlierecd' any eoiniiuny or person
has on any occasion so faileii, is to lie found. (4)
Any jieaceotticeror eonslahle may. at all times, enter any jprem-
fises where he has reasonaiile ground for su|)|iosing that there is
hiiiy cai'. truck, or vehicle, in respect of whicdi any compan\' <ir jiei'son
[lias tailed to comply with the jirovisions of .\rticle 5 14 of the ('o(le.
Mis to the treatment of eiittle while in transit hy rail or water, or to
[enter on hoard any vessel in respect of which he has reasonahle
ground for supposing that any comjiany or person has, on any
occasion, so failed. ((Jode, Art. 515).
(1) R. S.C. c. 75,8.8.42,43.
(2) R. S. (". c. 89, sec. 6.
(3) U. S. V. c. G9, sec. 34.
(4) lb. sec. 35. .
134 I'KACTICAI. Ill I UK Ti> MAdlHTKATErt.
Any iCiis iiispcctnr :i|i|M)iiil('(l iiiidfr tlif <7rj,s fns/ierfion Act. inav
at all rt'asoiialtlc hours imiIit any placid witliin liis (listrict wIut.-
any inoU'i* Ih umimI for im^aHiiriii^ j^as (Iclivcri'd (o a imrcliascr. tor
tlu- |tiir|ioMi' of ins|»i'ctinif tlu- nu'h'r so usivl ; (I) iuid, uiidcr tin-
Petmleuin fim/ii'' tion Ant. any duly aiil liorizrd inspcclor may. at
any tiiiu- diiriiii; ordinary JMisiiicNS liours, i-ntci- the rclim-rv slioii
or wari'lioiisc of any person who refiucs or ki-cps petroleum oi-
naptiia for sale, ill oi-der to test the (|iialily of the petroleum or
naptha found tiierein. (2)
A u-eiu'lils' and measures' inspeetoror his assistant miiy at all rea-
somilile times, without notiee, enter any sliop. store, warehoii.se, stall.
yard or place, within hin divisioii, where any commodity is houijcht.
sold. oxpOHwl or Icopt for sale, or where a chary;i' is made for the
carriau'i' <»!• conveyance there(d' liy weiifhl ny measure, and tluu' •
examine ail wciirhts. measures, scales, steelyards or other weii^hini;-
maciiines. (.{)
I'liiler the Kli'ctric fjight rnspei-tion Act. any ofli^er of the con-
tractors furnishin/j; electricity for lii^htinjjj pur|)()Si^s may. \>y writ
ten authority of the inspector. I'liter. at all reasonahle times, anv
jiremises (o whi(di elect ricity is or has hcen sup|iiied hy the contrac-
tors, in order to inspect their electric wires, nutters, accumulators,
tittinifs, works and ajiparatiis for the supply of electricity, oi- for
the purpose of ascertainini^ the ipiantity of electricity c(nisume(l or
su|iplied. or. where a supply of electricity is no Ioniser rei|uire(l or
the contractors are autliorize(l to take away and- cut otl' the su[»ply
of electri(Mty from any pi'emises, for the purpose of removing any
electric lines, accumulators, tittings. works and apjiaratus helong-
ing to the contractors, repairing all damagt' caused hy such entry,
inspection or removal. (4)
(1) H. S. Co. 101, sec. 6,
(2) R. 8. ('. c. 102, sec. 17.
(3) R. 8. C. c. 104. sec. 45.
(4) 57 and 58 Vic, c. 39, sec. ll.
VOKMM. liif)
FORMS i;:^i)KR I'Airr siav, ok thh (Jode.
A.— {Section ^^1.)
WMIUANT I'H I'DNVEY HEKOKK A .JUSTICE OK ANOTHER rOUNTV.
( 'Miiaila.
I'roviiiiM' of
Cniuilv el'
1
Wlicrciih iiitKriiiiilinii ii|i(>n nulli was this dny mukIc hcfori' tlio
iiiMlirsigiH'd. lliat A. R. of , on llic day of ,
ill ilii' yoar . at. , in I lie t'oiinly of ,
(state the rhanje. (1)
Ami ulici'cas I have taken llir deposition o|' X. Y. as to tiie said
ollcnee.
And wliereas tlie (dnu'ge is of an otl'ence conunilted in tlieconnty
el'
Tiiis is to eonmiand you to eonvey tiie said {luivie ol acfusfd),
of . Iiefore some jusliei^ of tiie last-numtionod ronnty,
near liie aliove |ilaee. and to deiivei" to Inni t Ids warrant and lln'
said ile|iiisilioii.
jiatcd at . in the said county of ,
tili^ day of , in tiie your
.1. s.r
J. /■*.. {Name of coiniti/.)
To of
n.-iSeciion 557.')
IlKrKII'T IM liE (IIVEN TO TlIK CONSTABI-E HV TIIE .lUSTlrK FOR
TMK ('01 NTV IN WHICH THE OFFENCE WAS COiM.MITTKl).
• 'aiiada. ")
i'rovnice of , C
Ceuiily of . )
I
0) Fur I'lirms of Statements ofOfiFeoces, see pp. 143, et seq., pa^l.
I'I'I I'liACTICAl, (HIDE Td .MACUSTKATES.
I. .1. Ij.. ii juslicc (if llic peace in and tbi- tlie counly (if ,
liereliy eei'tity tliat \V. '\\. peace oHicer oj' (lie county of ,
liiis. (Ml iliis (lay of . in the year of ,
by \irHie of and in olu'dience (o a warrant of ,1. S.. I']s(|uire. a
Justice of the jieaee in and for the ('(uinty of . prodnced
lii'fore me one A. B.. cliari;-ed liefore the said. I. S. with havini;-
(eti\. statimj shortUj the offence), and (lelivere(| hint into the cus-
tody of . l)y my direction, to answer to tlie said ( harye.
and further to lie dealt with aecordiui;- to law. and has also
deiieered unto me the said warrant, toi^'ether with the information
{if any) in liiat hehalf. and the de])osilion (s) i>\' ( ". D. (and
of ). in the said warrant mentioned, and tliat he has also
pi'dved to me. upon oalii. tlie handwriting of the said .1. S.
si.liserilied to t lie same.
I>ate(| the day and ye.ar first ahove mentioned, at . in
the said count\' of
J. L.,
J. P.. (Name of county.)
('.— (Section rm.)
INKOIl.MATION A.\n COMPLAINT FOR AN INDICTABLE OFFENCE.
( 'anada.
Province of
Count V of
:t
'The information and e()mj)laint of ('. I), of
(yeoman). taki'U this day of , in the
year hefove the undersiirned (one) of ITer
ALaJesty's justices of the peace in and for the said county of
. who saith that (1) on at , (<l''C.. statinij
the offence). (2)
(1) If the offender is merely sn-spected to have committed tiie offence, and
the informant did not see him commit it, insert liere, — " he hath jn.<<t catw
to believe and mupcct, and doth believe and suspect that." Then insert the name
and address, etc., of the otfendor, if known, or, if his name and address, etc.,
be not known, insert his description, as follows : — " a certain man " (or if he
be a foreigner, "a certain Italian, or, as the case ma>i be") ''whose name is not
knoim, l)Ut the description nf }rhose person is staled in tlie margin hereof."
t'J) For Forms of statements of offences, see pp. 143, et seq., post.
FOHMS. 137
Sworn tn'iurc (me), llic ihiy and year first above nuMitionod. at
.1. S.,
J. P., (^Name of county.')
ll— (Section niid.)
WARRANT TO APPREHEND A PERSON CHARGED WITH AN INOICTABLE
OPKENCE COMMITTED ON THE HIGH 8EAS OB ABROAD.
For offences committed on the high seas the warrant may he the same
as in ordinary cases, but describing the offence to have been committed
■ on tlu' Ilit!;]) seas, out of tlic liody of any district oi- county ot'
Canada ami witiiin tlu- jurisdiction of the Admiralty (d' lOn^'land."
For offences committed abroad, for which the parties may be indicted
in Canada, the loarrant also may be the same as in ordinary cases, but
describing the offence to have been committed ■• on land out of Canadu,
to wit : at in the Kingdom of . (or. at
. in tlic Island of , in the West Fndies. or at
. in the East Indies, " or as the case may be.)
V..— {Section 5(12.)
SU.MMONS TO A PERSON CHARGED WITH AN INDICTABLE OFFENCE.
( "anada, '\
rroviucc of , j-
* 'oinity of , J
To A. IV. of , (labourer) :
Whereas you have this day heeu charged before the undorsigned
, a justice of the peace in and for the said coiinty of
, for that you on . at (stating
shortly the offence) : Tliese are therefore to command you, in Her
Majesty's name, to he and appear before (me) on . at
o clock in the (fore) noon, at . or before such other j\istice
Of justices of the peace for the same county of . as sjiall
tlicii lie there, to answer to the said (diarge. and to be further dealt
with according to law. Herein fail not.
<uven under (my) haiul and seal, this day of . in the
.^*''"' , at , in the county aforesaid.
J. S., [seal.]
J. P., (JVame of coun'y.)
138 IMlACTirAI, (illUK TO M AdISTHATES.
F. — (Section r)!)'}.)
WAKHANT IN THE I'lliST INSTANCE TO AI'I'KEIIENil A I'EUSON CllAKUED
WTl'll AN INItlCTAHI.E Oh'h'ENCE.
''aiiiida. )
J'voviiu'i' ol' . >■
('ouiity of , 3
To all and any of tlic coiistalilcs and oIIut iioacf oftici'i's in the
said county of
Whcivas A. U, of , {labourer), lias this day been charged
uiion oath licforc the undersigned , a justice of the peace in
and for the said county oi' . for that lie, on . at
. did (t&c, stating shortly the offence) : These are there-
fore to command you, in Her Majesty's name, forthwitli to appre-
hend till' said A. H.. and to liring liim before (me) (or some otlu'r
justice 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 (7?(j/) hand and Hcal, this day of . in the
year , at , in the county aforesaid.
.1. S.. [seal.]
J. P.. {Name of county.)
G.— {Section 5G;3.)
warrant when the summons is disobeyed.
Canada, ^
Province of , >•
County of , J
To all or any of the constables and other peace officers in the said
county of
Whereas on the day of . (instant or hist
pa.st) A. H.. of , was (diarged before {me
or us.) the undersigned {'r name the justice or justices, or as the case
may he), (a) justice of tlie jieace in and for tlie saiil county <>{' j
, for that (&e., as in th". suinmonx) ; and whereas 1
{or he the said justice of the peace, or we or t lu^y the said justices of
the peace) did then issue {my, our, liis or their) summons to the said
A. I).. oniiiiKiiiiliii;;' liiiii. ill lli'i' >riijcsty"s ikiiiic to he ;iiiil !i|i|ici(r
lii'loi'c {iiie) nil III o'clock ill tlic [lore) noon,
ill . or lu'lorc siicli oi lici' jusiicc oi- jusliccs of t lie iicacc
•■i^ sli MiM liu'ii li,' iliT.'. lo aiisw.T to till' said cliarii-.' ami lo be
t'lii'liiT (ictli wiih ac ■ ir.liiin' lo law; ami wlc'i'i'as i h;' saiil A. IJ
lia> iK'U'lccicil lo lio or appear at the lime and place appointed in
ami liy llie ^aid ^uiiiinoiis. allli<uin'li it lias now been prowd to
(me) up. Ml oath th:it liie >aid siimiuKiis was dulv served upon thi'
said A. I). : Til '^ ■ are I li 'ivt'orc to coniiuand you in Iter .Majesty's
name, forlhwitii to apprehend the said A. H.. and to liriiiL;- him he-
I'ore (me) or s;,nii. otli ■!• jiisiee of ih' p,'a-e in and for lit' said
"•"•""y "I' . lo aii>wer liie said (diari;-e. and lo lie furl her
dealt w illi aeeonliiiL;' to law.
(riven under (mij) iiand and seal, this day of . in the
yctyy . at in the couiily aforesaid.
•I. S.. [seal.]
J. P.. {Xame of county. y
If. — Section ')(i'>.
ENDORSEMENT IN BACKING A \^ARRANT.
( 'anada.
J'roxince of ,
County of J
Wliemis proof upon oalh has this day been made before lue
. a Justice of the peace in and for the said county of
.tliat the uan.eof .1. S. t.> ihe within warrant sub.scribo.i i.s.if tlu'
;l.andwr,i,ii. of the jnslice of .ho peace witl.in luentioued ■ I do
:thcrcfure hereby auihorixe W. T.. who brings to me this wan-ant
and all other persons to whom this warrant was orio-inallv directed
or Uy whom i, n.ay he lawfully exocute-L and also all peace office x
'', \'\'' r' ::"■"•; "' > ^^ ----ute the sanle w.thin the
said last mentioned county.
(iiven inider my hand, this dav of • <,,
.,, . . "*'•> '" , III llieyear
' *y ■ 111 the county aforesaid.
J. S..
^. P., (iVawie of county.).
10
140 I'UACTICAI. .;rll>K rn MAdlSTUATES.
WAKKANl' T'l SKAltCll.
('aiiiiiUi. ^
l'rii\'iiuT of . r
( 'nUllty lit' , J
Wl.,.,va-^,tap|K.a">nntlu.oathofA. n.of . tl.alllKMV i.
roasoM tu siis,,..ct ihat {Dcmb,' tlun<,s 1o b.' mirrhed for. and ofience. in
respect of ivhich search is made) arc coiiccali'd iu
'' 'Plus i. tlu'ivfoiv. t.. autlH.riz." ai.'l nM,uiiv y..u to .■nl.'V Ixtwocn
,1,, hour> oUas the /iistice shall direct) \uio llu- sai.l ]>rvuM^vs. ainl
,,,s.-a.vl, for tlu. sai.l things, ami to l.rii.g tlu' saiur Mnvr mm,
sdiiic tulicr justice'.
Dated at
(lav of ■ ii> '1'*' .^■'■'"
ill the sai<l county of
iii-
To
.1. S..
J. P.. (iA^flMU' 0/' county).
of
j._(Seci(on 5(i!»).
INKOIOIATION TO OHTAIN A SKAHCll WAUKANT.
Canada.
Province of
County of
;!
The intorniation ot A. n., oi
county (i/eoman). tiikeii this t c n '•' ,
' ,iu the year ■ 1»'<'"'^> me. J. S. Esqunv. a
iustiee of the peace, in an.l for the county, of '
who savs that (£>escrihe things to be searched for and offence mrespe>t
of wMck search is made), have heen stoU-n. (or as the case may h..
,,„., „,at he has just and reasouahU. ..ausc to sns,.eet. and sus,,eH.
,,,,, tue said goods and chattels, or sonu' part of them are coneealr
in'the (dwelling-house. &c.) of C. D.. of • i" the sanl
..ountv (Here add the causes of suspicion, whatever they may b) .
Wlu.rcl"ore (he) prays that a s..arch .arrant nu^y h' granted to
ADIHTKl.NAI. KdHMS.
141
liiin 111 M'lircli tlic ('hvellinij house, d-c ) lA' thcsniil ( '. I),, as ai'nre-
>aiil. till' iIk' -:iiil udiiils and cliatti'ls so uiilawt'ully- stulcn. (or as
the case miuj be), a^ alnroaiil.
SwniMi (0;' allii'iiu'.l) lii'lWri' nil' ilu' day and ycai' tirst aluivc nien-
tidiicil. al . in llir said ('(iniity (d' .
J. S..
.7. P.. {Name of county.)
AI'IMTloNAI- I'olJMS.
liKl'.isriliiN. Ill' Cii.NSTAm.K <ilt iil'MKIi IKACK nlTICKlt, 111''
SKHVICI', 1)1' SIMM. INS.
( 'anada.
U'ri'Nincc 111' ,
IC'iiunty (or. District, etc.) di)
I
ill' d('|iii^itii>ii iif A. 1!.. nf laUi'n
Fal ' in tln'^aid {County) of tliis
day id' A. !>.. 1S!I . Ixd'uri' iiu-. tlu-
iniU'iNi^'iH'd. a Jnsticc ui' ilu' jicaci' (dp. as the case may be), lor tin-
■paid {county) nT wlm lu'inn' duly swnni dutli dt'|iosi'
and say lliat al in llio {county). <il' on
Ih! day 111' he tlio said A U. did serve (M).
f witli ih;' smiiiiions licri'imto aniicxcil n'arU'cd A.
ov. icithin set forth). \>y iK-livorin-;- a diiplicaU' llu'ivot' to liinitlu'
luid CD.. HI jirrson. [ur. tjy leavin'j a duplicate thereof, for him th".
lid ' '.!>., at his last, (m- most usual) place of abode, to wit. at Xo.
treet, -« icith an inmate thereof apparently not under si.itecn
ears of aye.]
I'alvi'ii and swoi-n. Iii'ldrc mi'. )
it ihis dav ,'
Sr A.D. ls;i . ■ )
A. B.
142 l'l!A( TliAL t:\ IHE I'l' MAMSCIiATKS.
IiYI.\(i liKCl.AKAI'ltiN. IN (ASKS nP I'KltSo.NA 1, IN.II ItlES. (1)
('illKlilll. ")
ri'iixilUT of >•
<'in\t]\y(^iu\ District, eti:.) n\') ■
I, ('. !>.. nf ill ilic -;ii(l {County) ot
(1(1 lici'cliy -olciiiiily ;iii(l --inccrcly (Ircliirc iliai [Here set out the
statement in the renj irords used.J
Ttikci! lict'tirc inc. ill lliis I I ^
(liiy ..f A.D. isii y ■'■ ' ■
One (if llci' .Maji'siys justices of the peace for 1 lie said (County)
of
(1) No particular form of this declaration is necessary: bnt it maybe
somewhat lil^e the above. The iirincijial intrredienis of such a declaration,
in order to render it admissable in evidence a).'ainst the accused after tliL'
declarant's deatli, are, 1. The cause of tlie death of the declarant must be the
8iil)ject of en(|uiry; 2. 'Jhe circuiiistances of the deatli must be the subject
of the declaration ; and .'1. It must iipiiear to have been made at a time when
the declarant (diccamd) was well aware of his danirer and entertained no
hope of recovery.
If the accused can be brought into the ])resence of the person injured,
the examination should be taken in the usual form.
STATK.MKNTS (iK dl' K KNC KS. l^l*
EXAMPLES OF THE MANNER OF STATING OFFENCES. (0
ABANDONIN<r CHILD UNDKH TWO YHARS OF AGE.
Qf^ at A. unlawfully did
aliiiiuloii and expfise A., a i^liiM then under the age of two yeais, whereby the
life of the said A. was and is endanj:erod ; (or " the health of the said A. has
been and is permanently injured.")
ABUUCTION.
On at A. unlawfully did
take away (ar "detain") a^'ainst her will a certain woman, to wit, B., with
Intent to marry {or " eanudly know ") the said V,. ; [or "with intent to cause
^er, the said B., U> ne married to (or " earnally known by ") l'."J
ABDUCTION OF AX HEIRESS.
; C)n at , A., from motives of
fiiore, did nniawfidly take away 'or "detain," or "takeaway and detain")
against lier will, a certain woman, lo wit. B., she then iiaving a (certain lG>:al
{or "etiuitable") present absolute (or "future absolute" or "future condi-
tional" or "continijent") interest in certain real {or "personal") estate, to
wit (DiDrrihr the estate or propirti/), with intent to marry (or "carnally know")
the said B.. [or with intent to cause her. the said B , to be married to (or
'' caniallv known bv ") C]
OR,
On at , A, from motives of
lucre, and with intent to marry (or "carnally know") a certain woman,
to wit. I!., did niilawfully take away (or "detain ") atrainst lier will, her, the
said r.., she then beinsr a presumptive heiress [or "co-heires-s " or " pre-
snmiitive next of kin"] to C, a person then liaving a certain legal (or
"eqnitalile") present absolute or " future absolute," or " future conditional "
«r " contingent ") interest in certain real [or " personal"), estate, to wit.
(pe'scrilii the eatutf or propt rtij. \
ABDUCTION OF A MINOR HEIRESS.
<'n at A., with intent to
marry [or ''carnally know") a certain woman, to wit, B., then being under
(I) See Form FF of Schedule One of tlie Criminal Code, as authority for
these examples.
f;
1
144 l'HA( TK'AI, (il lUK I'll MA'lI^TIiATEs.
tho ai^o of twenty-one years, did tViindiilt nily allure {or "take away" or
"detain") tl'e said I', nut of tho |iiis.sn-Hicn and U'-'aiiiHt tiie will of C, her
fatlier ("c " motlier," rtr.), slip, the said \'., ilien liavin>; a certain lejjal (tic.)
interest {etc.) in certain real estate, to wit, [or " heint; a iiieanniptive lioiress.
etc., to D., a person then liavin;.' a certain le^'al interest, il,:] {Folium Uh
I'onyoh (J, wroTiVmg to c'lrcvv^nioi cis.)
ABDUCTION OF A (llitL r.MtKU SIXTHEN.
On at , A. unluwl'nlly did taki'
((((• " cause to be taken ") a certain nnniarried j^iil, to wit, B., then und.er the
ajie of sixteen years, out of the possession and avrninst tiie will i»f C, her
father [or " mother" or " a person iiaving the la« fid care and cluirge of her,
the said B.").
AI'.o.MINAI'.LI': CKM.MKS. (1)
BKSl'IAMTY.
A., on at , with a certain inun^
("uni/ otlnr liiiroj creoiim'') nn^awi'uWy, wickedly, and a^^ainst the order of
nature, did have a venereal all'air, and then aiul there unlawfully, wickedly,
and ajiainst the order of nature, did, with the said mare, comnut and per-
petrate ihat detestable and ahonunable ('rime of bngjzery.
SODOMY.
A., on at ■ ' - unlawfully
did assault, and then and there unlaw'.uUy, wickedly, and a^rainst the order
of nature, have a venereal affair with and carnally know B., and then ami
there unlawfully, wickedly, and a^aiuf-t the order of nature, with tlie :^;iiil
B., did commit and perpetrate that detestable and abominable crime of iniL'-
gery.
ATTEMPT TO COMMIT SODOMY.
A., on at unlawfully
did assault B., and then and there unlawfully did attempt to wickedly, aiil
against the order of nature, have a venereal affair with and to carnally kim"
and commit and perjietrate, with the said B.. that detestable and ah. niii:-
able crime of buggery.
ABORTION. (2)
On at , A., with inteii
thereby to procure the miscarriage of a certain woman to wit, oneH-,il:^
(1) For " Indecent Assaults," see p. 14S, po,'!<.
(2) For " Concealmoi:' of Birth," see p. 157, po.it.
STATEMENTS ii|' oFKENCES.
1 IJ
unlawfully iulniinistcr to (or " imiish U> \m tiikoii l>y"') lier tli(( sai.l 1^., a c.t-
taiii ilrii;: [or "a certain noxious thing") to wit. [Ihm-rihr lli,' driuj itrmixiinm
Ihiiltj iisal- and uhiitinu lite 'lUanlltil.)
OR,
Qn at , A., witii inttMit tliereliv
to proi'iiiv tliL> ini.s('arria.ri' of a certain woman, to wit, o:ih B., did nnlaw-
fiilly use upon tiit< pnrson of the sail 15., a uerlain instrument, to wit, [Uc
ncrllit till iiinlriiKii lit iisril.)
01!,
On at , A., a woman, did, witli
intent tlmrehy tn procnro lier own miscarria'.;<!, unlawfully administer (or
" |x»rmit to bo administerod") to liorst^lf a certain drutf (or " certain noxion.s
tinntj") to wit, ( 7)('«Ti'» thi <lriii/ nr i'o.i/i/ks thiiuj, itml ininlion llir inumtlh/
iimiL)
Ol!,
On at , A., unlawfully did
Isupply (or " piocuro") a certain drir.: (or "a (iertaln noxion.s tliinji") to wit,
\{DeKrri>H: mill mi'iilion thr iiuinilili/ (if il) hti the Haiil A., then knf)win<: that tlie
laine wax intemled to lie unlawfully used or employed with intent to pro-
loure Uw uuscarria<_'e of a certain woman, to wit, one U.
[At'CESSOliY AITKR Till': FACT TO AX INDICTABLK OFFENCE,
PROSIX'UTED WITH Till', I'KINCIPAL.
{Ajtir lUKCvihincj the offence nf the principal nffinder, A., proceed thim) : —
And that C; of well kiio\vin<r the said A. to have done
band comuutted the said offence, a.s aforesaid, <li<l, after the same was so done
jind committed, as aforesaid, to wit at aforesaid, on the
lay and year aforesaid, (or, nn the daij of ), unlawfully
pceive, comfort and assist him, the said A., in order to enable him to escape.
tCCE.SSOKY AFTER THE FACT, PROSECUTED WITHOUT TH 15
PKIXCIPAL, OR WHERE THE PKINCrPAL IS UNKNOWN.
At on A., (or, .lomt' perKon or
lersons unkrwim h/i name), did {Describe the offence of the principal or princi-
pah). And that C, of , well knowing' the said A., (or, pemou
pr persona laihiown) to have done and committed the said ofl'ence, as afore-
said, did, afterwards, to wit, at aforesaid, on the day and
|rear aforesnid (or, on the dai/ of ), unlawfully receive coni-
nrt and assist him, the said ('., (or, prrmn or per mm unknown), in order to
Enable him (or them) to escai:.).
in; IMlArlliAI, 1,1 lUK In MAi; ISIHAI'K'^.
ACJESSOUY Al'TKll 'I'HK FACl' I'KOSKcrTKI) Al.oNK, TlIK I'lMN-
CIl'Al. IlAVINli BKEN (ON\ K'Tlll).
(Afbr MutiiKj IIk' jirliicijxtl ojl'i no , mitl tin prhiciiKi/ "jl'i ndi r'-i rnurirtioii, i>iii-
ceeO lhn» ) ; —
Andtliat C, woU knowing; the fiiiiil A. to hiivc lUnie iiiul coiiiinitteil tlie
eaid otl'enco sih aforesaid, did, afterwards, to wit, at aforesaid.
,,„ til,. day of miiawfuily receive, comfoit.
and asaist liiin, the saitl A., in order to enalile iiiiii to e.^caiie.
AUHON.
\X on , A., unhiwfnily, wil-
fully, without lenaljustiticrtlionor excuse, and without color of ri^riit, did wi
lire to a cortain l)iiildin<;, to wit, a dwellingdmiiso l)e]'ini_'ini:- tf) H., and
-Kitiiited in aforesaid.
OH,
At on , A., nnhnvfully, wil-
fidly, without lenal justification or excuse, witiiout color of ri^'hl, and with
intent to defraud, did 6et fire to a certain huildiii^', to wit, a store situated in
aforesaid and lielonjiin^' to him the said A.
01{,
At on , A., unlawfully, wil
fully, without legal justification or excuse, and without color of rij;ht, did set
fire "to a certain sta-k of vejietahle produce (or " mineral" (»,• vej;etable fuel")
to wit, (Dincrih,' tluslnck) helon<:in^: to B.
ATTEMl'T TO COM-MIT AKSt)N.
\t, on ' . A., unlawfully, wilfully,
without lejial justification or excuse, and without color of right, did attempt
to set fire to a certain building, to wit, a dwelling-house belonging to B., ami
situated in atbresaid.
WILFULLY t^ETTINO FIltK To CUoFS, TliEES, F/rr.
At on , A., unlawfully, wilfully.
■witlioutlegaljustificationorexcu.se, and without color of right, did set lire
to a certain crop (or "tree," or "wood," or " forest,"' or "coppice," or "plan-
tation," or "heath," or "gorse," or "furze," or "fern"), to wit [Deixrihe iu»l
give the niluaiion of the crop, etc.], the jjroperty of B.
NEGLIGENTLY SETTING FIRE TO FOREST, Etc.
At on , A., negligently, recklessly,
and with wanton disregard of consequences (or " in violation of a certain
STATK.MENTS (i|' nllEM ES. I 17
(.roviiii'ial law, to wit, "l, 'iiil niilawfiilly wet liro to a
ciTtaiii fornst <»r "tree," or " inanui'ai'turod lllmlJl^r," rtc), fitiiateil {or
"beiii'-'"; im the Crown ilumain (or "hind leased or lawfully lield for the
[iiirpns;* nf ciittinj; timlipr,'' itc). so that the said forest («■(-■.) was injured {or
' destroyed ">•
ASSACI.T. (1)
On at , A. assaulted (or
"assaulted and lieat" i me this deponent loc " 1'..") .
ASf?AULT CAUSLNir ACTUAL BODILY 11AU^L
On at , A., did make an
assaidt up lU and heal and oecasion actual bodily harm to me Una dejMjnent,
(or !•.)•
A <_i (. i U A \' A'l' V. U A SS A L' LI'.
On at , A., ill and upon un'.
this deiH.nent (or " B,") did make an assault, w ith intent to commit an in-
dictable ollenee, namely. { Dincrih, til' oil'divc iiiUml((l.)
( 111
On at , A„ in and upon me
this deiTOuent i or "B "'), a public ollicer (or " a peace ollicer," or '' a baililf ").
then and tiien* enL'ay;ed in tlie execution of his duty, to wit, while [Descriln'
the iJuty heiiiij pa'jormal), did unlawfully make an assault.
OK,
On at , A., in and upon me
this deponent (or '• B."), did unlawfully make an a.ssault, with intent to
resist (oc " prevent ") the lawful ai)preliension (or "detainer") of him the
said A. (or "one C") for a certain offence, to wit. (Sktte the offence.)
OR,
<^» at , A. did unlawfully
make an assaidt upon B., who was then and there, in his (piality of a duly
; appointed bailitfof , enjra^'ed in the lawful execution of a certain
: process a-ainst [or "in the making of a lawful seizure of") lands (or
"jrgods").
OK,
<5n at , A. did unlawfully
make an assault upon me this deiwnent (or " B."), a duly appointed bailiff
^^ . «itli intent to re>cue certain troodd then and there taken
and held by me this deponent (or " the said B."), under legal process (or
" distress " or " seizure ").
( 1 ) For " Assaults on the Queen," see Forms under the head of " Treason,"
post.
MS l'U.-\( TKAI, lillKE TO .MA(iISTIt ATES.
OR,
At on , a clay whereon a poll
fur the election of mnaii-'ipal ronneillovi, for the tnunicipalhy of ,
was heinj: proceeded witli.A., being then and there, within two miles from
the place wheresnch poll was iieinir held, did anlawfnlly make an assault
ujion and beat nie this deponent, {or " B.").
INDIX'KNT ASSAULT OX A I'EMALE. (1) .
On at , A, nnlaAfnlly and
indecently did assanlt I!., a female.
INDECENT ASSAULT ON A MALE.
On at , A., a male person,
unlawfully and indecently did a.ssault B., another male person.
ATTEMPT TO COMMIT AN INDICTABLE OFFENCE.
At on , A. unlawfully did
attempt to steal one ^old watch, of tlie value of sixty-five dollars of the goods
and chattels of B.
OR,
At on' , A. unlawf'illy did
attempt, by fahe pretences, to obtain from B., one horse, of the value of
seventy dullars, the property of the s.i<d 15., with intent to defraud.
OR.
At on , A. unlawfully did
S'llicit and advise R. to unlawfully steal one jiiano of tho jzoods and chattels
(if C, whereby he the said A. did unlawfully attempt to commit the indict-
able offence of theft.
OK,
At on , A. unlawfully did
attempt to co^nmit the indictable offence of bigamy [or "burglary," etc.),
by then and there. (Sd nut tin' niixnin unnl in maki)}g the altcnipl.)
CHOKINC OR niSAP.LING WITH INTENT To COMMIT AN
INDICTAliLi: OFFENCi:.
At on , A., with intent thereby
to enable him the saitl A. (or " one B.") to rob C, unlawfully did attempt to
choke (or "suHocate," or " strangle") the said C.
OR,
At on I A., with intent thereby
to enable liim the said A. (oc "one B") to rob (nr " to commit a raiw upon"!
(1 ) For " Indecent Acts," see p. 10", po.<
STATEMENTS OP OFKEXCES. 149
('., iinlawfiilly dicl attempt to render the said C. insensible (or " nncon-
sc'ions," or " incapable of resistance "), by gagsiing (or ";_'arrottinp, or "sand-
hajiging," or [.Vention the nrhial minvf iinfd]). tlie said V. in a niannLT calcu-
lated to choke (or "sutlbcate," or "strangle"] the said ('.
HRUGGING WITH INTENT TO COMMIT AN INDICTABLE 01"FE>'CE.
\t on , A, with intent thereby
to enable him the said A. (or "one B.") to rob (or " to commit a rape upon")
C, nnlawfnlly <lid apply and administer (or " attempt to apply and adminis-
ter"') to (or "cause to he taken by") the said C. certain chlorofbrin ["r
" laudanum," or ( Mention the gtvpefying or over powering drug, molltr or thimj
Hsal.) ]
BIGAMY. (1)
On at , A., being already
tlieretofore, married to and having as and for his lawful wife (or "her lawful
husband"), one !'>., did unlawfully marry and go through a form of marriage
with and take to wife (or "hus\>aud ") another '.vomau, (or " man"), to wit,
C, and, to her (or " him ") the said C, was then and there married,— his, the
said A's, said first wife (or " her, the said A's, said first husband", being still
r>., alive.
BLASPHEMOUS LIBEL (2)
On at A., unlaw fully did pub-
lish a certain hlas[)liem()us, indecent anil |)iofane lilxd of and concerning
the Holy Scriptures and tin- Christian religion, in one part of v>hich said
libel there were and are con tai noil, amongst other things, certain blasphemous,
indecent and profane matters and things, of and coiicerniiig the Holy Scrip-
tures and the Cliiisiian religif]n, of the tenor following, that is to say, (Here
ml mil thr lihdloan ^MumyA, to the high disi)leasure of Almighty God, and to
the great scandal and reproach of the Chri.>stian religion.
I'.UEAKING PRISON.
<>n the day of at A.,
being then a prisoner confined in the common gaol or piis in in and for the
county (or " district") of on a criminal charge, did unlaw-
(nlly, hy force and violence, break the said gaol tr prison, liy cutting and
removing two iron bars of the said gaol or prison, and by also then ami
there breaking, cutting and removing a (piantity of stone, parcel of the wall
of the gaol or prison aforesaid, with intent thereliy, then and there, to f-et
himself, the said A., at liherly.
(1) For " Polygamy " see p. 177, post ; for "Feigned Marriages" see p. Kid,
pott ; and for ".Soltfttnuizing Marriages unlawfully," see p. ISi-, ;>„.«/.
(-') For " Defamatory Libel," see p. Vi\\poKt.
150 PKAf'TK'AL (illDE TO MAdlSTRATES,
BURGLARY.
At on , about the lioiir oC
twelve, ot night. A., unlawfully ami bur<:larlously did break and enter tlie
dwellinjr-liouse of B., there situated, with intent unlawfully and burglariously
to steal the goods and chattels of the said B., then and there in the said
dwellintr-house, {or " with intent to commit, in the said dwellinghouse, an
indictable offen'-e, to wit." [Dairriljc the oj/rticc] ).
OR,
At on , about the hour of
twelve, «/ tiiijhl, A., unlawfully and burglariously did break and enter the
dwelling-house of B., there situated, with intent unlawfully and burglariously
to steal the goods and ibatttls of the said B., then and there in the said
dwelling-house ; and he the said A., having so broken and entered and then
being in the said dwelling-house did unlawfully and burglariously steal
twelve silver forks and twelve silver spoons of the value of forty dollars,
of the goods and chattels of the said B., in the said dwelling-house then being
found.
OR,
At on A., then being in the
dwelling-house of I!., inilawfully did steal twelve silver foiks and twelve silver
spoons of the vahie of forty dollars of the goods and chattels of the said B.
in the said dwelling-house, and the said A., being so as aforesaid in the said
dwelhng-liouse anil having rouunitted the theft aforesaid, did afterwards,
to wit, on the day and year aforesaid, about tlie hour of twelve, at night, un-
lawfully and burglariously break out of the said dwelling-bouse.
HOUSE BREAKING.
At on , A, unlawfully di'l
brenk and enter hi/ ilaii, the ilwelling-house of B., here situated, and, twelvi^
silver forks cf "je value of twenty dollars, the property of the said B., tlieii
and there being found therein, did then and there unlawfully stea'.
OR,
At en , A, unlawfully did
break and enter, b;/ dnii, the dwelling-house of B., there situated, with intent
to commit an indictable ollence therein, to wit, to steal the goods then and
there being in the said dwelling-hoUso.
BREAKING 81I0B. Krc.
At on , A., unlawfully, did
break and enter t:.e shop of B., there situated, and five boxes of cigars of the
STATEMKNTS OK OFPEXCES. 151
Viilno of twenty dollars, the property of tlio said !>., tlieii and there being
found therein, did, then and there, unlawfnlly steal.
OR,
At on , A., unlawfully, did
break and enter a certain buildinj?, there situated, and being within the cur-
tilage of and occupied with tiie dwelIin<?-hoiise of B., hut not connected with
or forniinji part of the said dwellinghouse either ininiediately or by means
of any covered or enclosed passage, and one horse of the value of seventy-
five dollars the proi)erty of the said B., then and there in the said buildinj:
did tlieii and there unlawfnlly steal.
OR,
^^ on , A., unlawfully did
break and enter the shop of B., there situated, with intent to commit an in-
tli<ttal)le olfence therein, to wit, to steal the jioods and cliatteis of tli9 said B.,
then and there in the said shop.
r.EING FOUiND IN A DWELLING-HOUSE, BY NIGHT.
"^^ on about the hour of twelve,
at nifiht, A. unlawfully did enter (or " was in " ) the dwelling-liouse of B., there
r situated, with intent the goods and chattels of the said B. unlawfully to steal.
BEING FOUND ARVIPZD, WITH INTENT TO BKEAK AND ENTER.
> , '\' . , «" A., was found, by dav,
I {or by night), unlawfully armed with a certain dangerous and offensive
I weapon {m- " instrument ", to wit, [D.s-cribe !l] with intent to break and enter
the dwelhng-hou.e lor a certain building) of P.. there sitmited, and to commit
therem an indictable offence, to wit, unlawfully to steal the goods and chat-
tels of the said B. then being in the said dwelling-house, (or building).
HAVING POSSES.SION, BY NIGHT, OF H0USE-BRE\K1NG
INSTRUMENTS.
li ' I ,. , . . °" , A., was found, about
Ihe hour of twelve, at night, imlawfully an.l without lawful excuse in nos-
fcession of certam house-breaking instruments, to wit. (Dei>cr!hc them).
HAVING POSSESSION, BY DAY, OF HOUSE-BREAKING
INSTRUMENTS, WITH INTENT.
^^ on
::■¥!'■
15l' I'llACTICAL (iUIDK To MAGISTRATES.
BEING FOUND DISGUISED BY NIGHT.
At on , A., was fomul, by
nijilit, unlawfully ami without lawful excuse, with liis face masked (or
"blackened"). • . .
BEING TOI'XD DISGUISED, BY DAY, WITH INTENT.
At on , A., was found, by day,
unlawfully and without lawful jxcuse, in a certain disguise, to wit/ Difcriln-
tltc ilhguise) with intent then and thereto commit an indictable oli'ence, to
wit, [Mention tJir o/Zlxci).
CAUSING DANGKROUS EXPLOSIONS.
On tit ' , A., by a certain ex-
plosive substance, to wit, unlawfully and w ilful'y did
cause an explosion of a nature likely to endanger life, (or "of a nature like-
ly to cause injury to property.")
CONSPIRACY TO CAUSE A DANGEROUS EXPLOSION.
On at ,A.p.nd B. nn'awf'iily
did conspire, confederate and agree together to cause, by a certain explosive
substance, to wit, an explosion of a nature likely to endanger life
(or " likely to cause t^erious injury to property.")
:MAKING, ok POSSESSING EXPLOSIVES.
On at , A. unlawfully am!
wilfully did make {or "have possession" or " control of") a certain explosive
substance, to wit, with intent, by means thereof, to
endanger life (or ''to cause serious injuty to profierty" or '' to enable C, by
means tiiereof, to endanger life," or "cause seriouB injury to property.")
OR,
On at A. unlawfully did make
(or " knowingly have possession " or "control of ") a certain exj)losive siili-
stance, to wit, , under such circumstances as to give
rise to a reasonal)le suspicion that his making [or "liaving possession " nr
" control of") it was not for a lawful object, the said circumstances being as
follows: (Rtlate them.)]
CAUSING BODILY INJURY, BY EXPLOSION.
On at , A., by the explosion of
a certain explosive substance, to wit, , unlaw fuily
STATEMKNTS Ml' i iI'l'ENf'ES. 15;{
ilid Imrn, (or '• maim," or " distigiire," or "disable," or "do grievious bodily
liarui to ") B.
CAUSING EXPLOSION, WITH INTENT TO INJURE.
At on , A., witli intent tiioie-
\<y to burn (or " maim," or " disiij-'ure," or "disalilo," or " do <:rievous bodily
barm to") B. (or "any person "j nnlawfully did cause a certain exi'losive
substance, to wit, , to exi)lode.
SENDING AN EXl'li<)SlVE SUBSTANCE, WITH INTKNTTO INJUR K.
-^t' on , A., with intent there-
by to burn {nr " maim," or "disfi^'nre," or " disalile," or "do p-ievous bodily
barm to") B., unlawfully did send (or "deliver") to, (or "cause to be taken
into the possession of" or "to be received by ") the said B., a certain ex-
plosive substance, to wit,
I'LAdNc; DESTRUCTIVE FLUIDS, Etc., WITH INTENT TO INJURE.
') ' 0" , A ., with intent thereby
to burn lor maim," or "disfigure," or " disable," or " do grievous bodilv harm
to")B., unlawfully did F>"t and lay, in a certain place, to wit, (D,srn7;<- the
place) a certain tluid [or "destructive" or "explosive substance") to wit,
{Describe the jiuid or siihHlnnce.)
I CASTING DESTRl t'TIVE FLUIDS, Ere, WITH INTENT TO INJURE.
. ^^ , °" . A., with intent there-
by to burn (or " maim," or " disfigure," or "disable," or " do grievous bodily
liarm to") B., unlawfully did cast and throw at and u[X)n the .said B., a cer-
tain corrosive fluid (or " destructive "or " explosive substance ") to wit ( Dck-
crtlie the Ihdd or >'iihMance ti/'ed.)
COMBINATION IN RESTRAINT OF TRADE.
.■^V ,. , °" A., unlawfully con-
spired, combined, agreed and arranged with B., C., and D., and with the
Company, to unduly limit tlie facilities for trans-
port:ng,(or "producing," or "supplying," or "storing," or " dealing in "or
" manufacturing,") cotton goods (etc.).. a subject of trade and commerce.
OR
At
„ • I , . , *^" -A., unlawfully con-
spired, combined, agreed and arranged with B., C, and D., and with the
154 I'HACTir.M, (illDK TD MAillSTRATES.
COMMON BAWDY-HOUSE.
^j. on > aiiil 'J" 'in'l ^^t divem
(Java anil times since that date. A, and 15.,— the wife of tlie ^aid A.,— unlaw-
fully did keep and maintain a disorderly house, to wit, a common bawdy-
)'ouse, bv keepins? and maintaining,' a certain house (or '-room," or " set of
rooms " lie. ). situate and being , for purposes of itrostitution.
COMMON GA^IIXG-HOUSE.
^i on I and on and at divers
other days and times since that date. A., (or "A., B., and C.,") unlawfully did
keep and maintain a disorderly house, to wit, a common uamin'r house, by
keepinji and maintainin«; for gain a certain house {or '• room" elr.), situate
and being to which persons did and do resort for the
purpose of playing at games of chance.
OR
[Commence as ahore) unlawfully did keep and maintain a
disorderly house, to wit, a common gaming-house, by keeping {or " using")
for gain, a certain house {or " room " (•(<■.), situate and being
for playing therein at games of chance and mixed games of chance and skill.
an ■ in which a bank was and is kept by one or more of the players exclu-
sively of the others, {or " hi irhicli, in the (james played therein, the chances are
not alike fuvoruhle to all the players.")
COMMON NUISANCE, ENDANGEiaNG LIFE, kc.
Q .jt , and on and at divers
other days a . times before and since that date, A., unlawfully, and injur-
iously did, and he does yet continue to {Set out the particular act or omimon,
complained of) and thereby unlawfully did commit and does continue to
commit a common nuisance endangering the lives (or " safety " or " health ")
of the public.
COMMON NUISANCE, OCCASIONING PERSONAL INJURY.
p^^ on and on and at divers
other days and times before and since that date. A., unlawfully and injur-
iously did, and he does yet continue to {Set out the particular act or omisiti(m
complained of) and thereby unlawfully did commit and does continue to
commit a common nuisance by which the public were and are obstructed in
the exercise or enjoyment of a right common to all Her Majesty's subjects,
to wit, {Set out the common right obstructed) and which common nuisance dul
at afw/esaid on the day of
occasion actual injury to the person of B.
STATEMENTS <1P (IPKEXCES. 155.
OR
At on , and on and at divers
other days ai(d times before and since that date, A., unlawfully and injnr-
ously did and he does yet continue to (Set out the particular act or omixitlon
complaiiinl of) and thereby unlawfully did commit and does continue to
commit a common nuisance, endangering the property (or "comfort") of the
public and which common nuisance did at aforesaid on
the day of occasion actual injury to the person of B.
CHEATING AT PLAY, Etc.
At . on , A", unlr*wfully, and'
with intent to defraud B., did cheat in playing at a game with cards (or "dice.")
COININ( i AND COUNTERFEITING.
COUNTERFEITING CURRENT SILVER COINS.
-^t on A., did unlawfully m ake
(or "besrin to make") and counterfeit twenty pieces of false and counterfeit
coin resembling (or " apparently intended to resemble and pass for ") current
^ silver dollars \or " half dollars," or " ten cent pieces.")
IMPORTING OR EXPORTING COUNTERFEIT COIN.
/^* 0^ , A., did unlawfully an^t
without lawful authority or excuse* import and receive 'nto Canada (or '■ ex-
port from Canada"), twelve pieces of false and counterfeit coin resembling (or
"apparently intended to resemble and pass for") current silver dollars he
the said A., then and there well knowing the same to be counterfeit.
MAKING COINING INSTRUMENTS.
L."^* °" ' A., unlawfully and
Irithout lawful authority or excuse, did make, (or " mend," or" begin or pro-
feed to make or mend ") one puncheon (or " counter puncheon " etc.), in and
Ipon which there was then made and impressed (or " which would make
Ind impress " or " which was adapted and intended to make and impress ")
Ihe fi.L'ure and apparent resemblance of one of the sides, to wit, the head-side
of a current silver dollar.
• BHINGINc; COINING INSTRUMENTS INTO CANADA.
I, "^^ , .„ ,, ,, ?" . , A., unlawfully, know-
ingly and without lawful authority or excuse, did conve" out of Hsr Majesty's
'Mints into Canada, one puncheon (or -'counter-puncheon," or "matrix" etc )
Bsed or employed in or about the coining of coin.
11
ISt; PRACTICAL OlTDK TO MA(i ISTUATKS.
CLIPPING CUlMtKNT COIN.
,\^ on . -■^•1 *'''! nnlawfiilly
impair (or "aiminish," or " ligliten,") twelve pieces of cnrront silver coin
c'iiUed dollars, with intent that eiV(!h onhe said twelve pieces so inii>aired, (or
" diminished," or " li;_'htenod") miuht i)ass for a current silver dollar.
DEFACING CUKRENT COIN, AND TENDERING SAME.
j^+ OP , A., unlawfully diii
deface ono jiiece of cnrront silver coin, called a dollar, by then and there
.stampiuii thereon certain names {or " words,") to wit, , and did
.afterwards unlawfutly tender the said current silver coin, so defaced as afore-
said.
POSSES.SIN(f COUNTKRFEIT COIN, WITH INTF.NT.
j^^ on . A., unlawfully, had in
hiscustodv and pr.ssession twelve pieces of counterfeit coin resenihliuir ('/)•
' apparentiv intended to resemble, and i)a8S for ") current silver dollars, with
intent to utter the same, he the said A., then well knowing the same to he
.fouuterfeit.
COUNTr.RFI'.ITING CURRENT COPPFR COIN.
. 0,1 , A., unlawfully, did
make and counterfeit two hundred pieces of fal.-e an.i counterfeit coinresen.
bl'insi (or •' apparently intended to resemble and pass for") the current copper
icoin^called a one cent piece.
COUNTERFEITING FOREKlN COIN'.
^^ on - -^v unlawfully, di.l
luile (or « he-'in to make ") and counterfeit coin resembling (or " apparently
intended to resemble and pass for") the silver coi.. of a foreign country, to
wit, tiie silver coin of the United States of America, called a dollar.
BRINGING COUNTERFEIT FORF-IGN COIN INTO CANADA.
^ on . -■^•. unlawfully and
without lawful authoritv or excuse, did bring into (or " receive in ") Canada.
wentv pieces of false and counterfeit coin resembling (or "apparently
intended to resemble and pass for") the silver coin of a foreign country, to
wit the silver coin of the United States of America called a dollar, he the
said A , then well knowing the same to be counterfeit.
UTTERING COUNTERFEIT COIN.
on . A., unlawfully, did
.utter to B., one piece of counterfeit coin resembling [or " apparently intended
STATE.ME.NTS (pF (IKI'ENCES. 157
to resomblc uiul pass for'M tlie current silver coin called » dolUr, [or tlie cui-
renlcoiipor coin <'alled one cent,) knowin;^ it to he (lounterfeit.
UTTERING LIGHT COI>
At on , A. nnUwfiilly did
litter, as hein^ current, a certain silver coin, to wit, a silver dollar of le.«s
tliiin linviiil wei'jrlit, he the said A. well knowin>: the said coin to have
hecM inipaired (!■■ " diiiiinisiied," ")■ " lij,'htoned ") otherwise than by lawful
wear. ■■ .
UTTi;RIN(i U.NCUllKKNT COIN.
At on , A., unlawfully and
with intent to (IcCrand, did utter, as heiiif; current,, a certain silver coin,
not liein^i a current silver c(;in, Imt re.senil)linj:> in size, liirure and color, a
current silver dollar, and heini; of less value than a current silver dollar.
UTTERING MEDALS, Etc., AS CURRllNT fOIN.
At on " , A., nnlawf'idiy and
with intent to defraud, did utter, as being a current silver dollar, a certain
medal (or " piece of metal") resembling, in size, figure and color, a current
silver dollar, and being of less value than a current silver dollar.
COUNTE RFEIT I NG SEA LS.
At on A., unlawfully did make
an i counterfeit a certain public seal, to wit, the public seal of the Dominion
of Canada.
UTTERING COUNTERFEIT SEALS-
■At oil A., knowing a certain
seal, to wit, a seal jmrporting to be the public seal of the Doininion of
Canada, to be counterfeited, did unlawfully use the said cornterfeit seal.
COUNTERFEITJNii REVENUE STAMPS.
^t on A., unlawfully and
fraudulently diC counterfeit a certain revenue stamp, to wit, (di'scribe it).
SELLINti COUNTERFEIT REVENUE STAMPS.
-^t on A., unlawfully and
knowingly, did sell (or -'expose for sale" or "utter" or "use") a certain
counterfeited revenue stamp, to wit, {descrihe if).
CONCEALMENT OF BIRTH. (1)
*^" at , A., was delivered of a
child, and (hat, subsequently, on at aforesaid the
saiddiild being dead, the said A. (or "B") unlawfully did dispose of the
(1) For " Neglect to procure Assistance in Chilibirth " see p. 175, posi.
168 PRACTICAL aUIDE TU MACIISTKATES.
dead body of the said child, by secretly burying it (or State the actml mcaiiK
u$ed), with intent to conceal the fact that the said A. had been delivered of
such child.
CONSPIRACY TO BRING FALSE ACCUSATION OF CRIME.
^(. ,,n A. B. and M. B.,— his
wife,— C. I), and E. F„ unlawfully did conspire, combine, confederate and
agree together to prosecute (1. H. for an alleged offence, to wit, upon u false
charge and accusation, falsely charging and accusing that he the said G. H.
had, then, lately before, unlawfully assaulted, ravished and carnally known
the said M. B., without her consent, they the said A. 15., M. B„ C. 1>. and E.
V. then well knowing the said G. II. to be innocent of the said alleged
offence.
That, afterwards, at aforesaid, on the day and year afore-
said, the said A. B. and M. B., (his wife,) C. D. and E. F., in pursuance of
their said conspiracy, did attend together before .T. N., Fsciuire, one of Her
Majesty's .Justices of the Peace for tlie District of , to whom
they the said A. 1'.. and M. B., (his wife,) ( '. D. and K. F., .lid, then and there,
make the said false charge and accusation, falsely charging and accusing
the said G. H. with and of the rape aforesaid ; and, then and there, before
the said .T, N., she the said M. B., in the presence of and in company with
the said A. B, C D. and E. F., and in further pursuance of the said
conspiracy, did make her written and sworn information and complaint,
falsely charging and accusing that the said d. II. had, then, lately before,
unlawfully assaulted, ravished, and carnally known her, the said .M. 1"..,
without her consent.
That, afterwards, to wit, in tho Court of Queen's Bench (or [Name the
court] as tlie ca^e in'uj he) of tlie province of , holden at ,
in and for the district (or " county ") of , on
in the year aforesaid, they, the said A. B. and M. B., (his wife,) ( '. D. and E.
F., in further pursuance of their said conspiracy, did cause and procure to be
falsely laid and exhibited, before the Grand .Fury then and there sworn he-
fore the said Court, a bill of indictment falsely charging and accusing the
said (i. H. witti and of the rape aforesaid; which said bill of indictment
was by the Grand .lury, then and there, retu rned into the said Court, thus
endorsed :— " No Bdl."'
CONSPIRACY TO COMMIT AN INDICTABLE OFFENCE.
At on , A. B. and C, unlawfully,
did conspire, combine, confedeiate and agree together to commit a certain
indictable ofifence, to wit, the crime of arson (or " burglary " or " aggravatwl
assault," or " rape," or " forgery," etc.), by then and there conspiring, com-
bining, confederating, and agreeing together to unlawfully, etc.. set fire to
[or " unlawfully break and enter" or, etc, (Describe the crime agreed up nn
STATEMEATS OF OFFENCES. 1,")!)
and mentiun Ihf proptrtii or penon, or both, as the case may be, to be affected
Iherthij.) ] (A clause nu.y be added setting out the overt acts of the con-
spiracy.)
CONSPIRACY TO DEFRAUD.
At on , A., B. and C. did,
unlawfully, conspire together to defraud the public (or"D") by deceit, [or
" falsehood," "r " by the fraudulent means following, to wit,'' {Set out the
fraudulent means agreed upon],
CRIMINAL BREACH OF CONTRACT.
At on A., unlawfully and wil-
fully did break a certain eoitract, to wit (describe it), theretofore made by
him, well knowing 'or "having reasonable cause to believe") that the
probable conseciuences of his so doing would be to endanger human life (or
'■ cause serious bodily injury,' or "expose valuable property to destruction,"
or "serious injury ").
CRIMINAL BREACH OF TRUST.
•^^ o" , A., then being — under
and by virtue of the will of B.— a trustee of certain property, to wit (Describe
it), for tjie use and benefit of ( ., D., E. and F., did, unlawfully, and in viola-
tion of his trust, convert the same to a use not authorized by the said trust,
with intent to defraud.
DEFAMATORY LIBEL.
^" at A. unlawfully did publish
on, and of and concerning B., a defamatory libel, in a certain letter directed to
C, which libel was in the words following, that is to say (Set out the part of
the letter complained of a.« libellous), and which libel was written in the sense
of imputing that the said B. was yas the case maij be.)
PUBLISHING A DEFAMATORY LlBEu KNOWING IT TO BE FALSE.
i ,. ?". »t A, unlawfully did pub-
, hsh, in a certain newspaper called the , a defamatory libel, on.
and of and concerning B., he the said A. well knowing the same to be false,
which libel was contained in the said newspaper in uu article therein
hea.lBd (or 'commencing with") the following words, to wit, (Set out the
heading, or the commencing, and, if necessary, the concluding words of the libel,
or otherwise give so much detail as is sufficient to furnish the accused with reason-
able rvformatwn as to the part of the publication to be relied on against him), and
which hbelv.M written in the sense of imputing that the said B. was (as
trie case may be-)
160 T'liACTrCAI, (IlIUK T(l ,M AO ISTIiATKS.
EXTOUTION BY DEFAMATORY LIBEL.
On at , A., nnlavfiiUy did
publish (or "threaten to publish" ur "LtFer to abstain from publishing" tic.)
a ilofiiniatorj' libel of and ooni'eniinjz I?., with intent, thereby, then and
tiiere, to extort money from the said B., (m- " from C")
OR,
On at A, unlawfully dill pub-
lish (or "threaten to i)ublish" or "offer to abstain from or prevent the
pnbli.shins.'of') a defamatory libt'l of and concorniuir B., with, intent thereby,
then and there, to indut-e t>.e said B., [or "one i'."), to confer upon, (or
"procure for") the said A., (or "one D,") a certain appointment (or '•otlice")
of profit (or " trust") to wit, {^f(•)^tiot) the uppoiiitiiinit or ojlicr in qxu-Mlon.)
OR,
On at A, uidawfully did pub-
lish (nr '• tlirealcn to publish") a defamatory Hbel of and corii'ernin>; B. in
conseiiuence of the said A. having been refused money theretofore demanded
l)y him the said A. of and from tiie siud B. (or " in consecjuence of the said
A. having been refused a certain appointment, i/c, theretofore sought by hi\ii
the said A., of or from or at the hands or by the influence of the said B.")
i>i:fili-;.mi:nt ov wo.mii.n and (iiiiLs.
PKoCUUINt; DEFILEMENT OF A WdMAN UNDEli AUE.
On at A, unlawfullly did
procure [or "did attempt to procure") B, a girl, (or "woman") then under tiie
age of twenty-one yir-ars, to wit, of the ago of years, and not
being a prostitute nor of known immoral character, to have uniauful car-
nal connection with another i)erson (or "other persons").
ENTICIN^(i A WOMAN, UNDEll AGE, TO PROSTirUTION.
On at A, unlawfully did in-
veigle (or " entice') B, a girl, (or " woman"), tiien under the age of twenty-
one years, to wit, of tlu\ age of , and not being a prostitute nor
of known immoral character, to a house of ill-fame, (or " as-signation'), fr
the purjmse of illicit intercourse (or " prostitution";.
CONCEALING A WOMAN SO ENTICED
On at A, unlawfully and
knowingly did conceal, in a house of ill-fame, (or " assignatioi»"), B. a girli
(or "woman"), then being under the age of twenty-one years, to wit, of the
age of years, and not being a common prostitute nor of known
STATEMENTS fiK (iri'ENCES. •, 1(U
iinnioial cliiiracter, slio the saiil B, luiviiiii been unlawfully inveiirled,
{or "onticed") to the said house of ill-fame {or " ussignatiou") for the pur-
jwse of illicit intercourse {or " prostitution".)
PUOCUKING A WOMAN TO BECOME A PROSTITUTE.
On at A, unhuvfully di<l pro-
raro (or "attoiupt to procure"), B, a womau {or "<2;irl") to become, within
Canada, (or "out of Canada"), a common prostitute.
PROCURING A WOMAN'js DEFILEMENT BY THREATS.
Oil at A, unlawfully and by
threats (or "intimidation") did procure {or "attempt to procure") B, a
woman {or •'s,'irl") to have unlawful carnal connection within Canada (or
"out of Canada")
DEFILIN(i BY ^IRANS OF DRUGS.
OU at ' A, unlawfully did
apply (or "administer") to and cause to be taken by B, a woman, (or "sirl"),
acertiin drug, t(i wit, (or "some in toxicatinii liiinor,' or
some other matter or tliini.', ax the cow mai/ he), with in tent to stujiefy (or
'overpower") her the said' 15, so as thereby to enable the said A (or " a cer-
tain man, to wit C,") to have unlawful carnal connection with her the said B.
CONSPIRACY TO INDUCE A WOMAN TO COMMIT ADULTERY OR
FORNICATION.
On * "t A, and B, unlawfully
did conspire, combine, confe;lera'.e, and a>.'ree tofrether, unlawfully, and by
false pretences, false representations, and other fraud ulent means to induce
( ', a woman, to commit adultery (or " fornication") with D.
EXTORTIf)N, BY THREAT.S TO ACCUSE OF CERTAIN SERIOUS;
CRIMES. (!)
'■^' on A., unlawfully, did ac-
. USB (or " threaten to accuse ") B,, of having: committed an offence punishable
by law witli death (or "imprisonment for seven years or more") to wit,
tnnrder, (or "for^rery," or "bur>;lary," or "bigamy," etc.), with intent'
thereby to extort and gain money from the said B.
OR,
^* "» A., unlawfullv,did ao-
'•use^or " threaten to accuse") B. of having committed an assault wuh intent
(1) For '-Threatening Letters " and " Demandini: with threats," see p. 1S8.
i poM. lor "Threats to Murder," see p. l7i,post.
162 PRACTICAL GUIDE TO MAGISTRATES.
to commit a rape, (or "attempted or endeavored to commit a rape"), with
intent thereby to extort and gain money from the said B.
OR,
At on A., unlawfully, did ac-
cuse (or " threaten to accuse ") B. of having committed an infamous oflFence, to
wit, the abominable crime of buggery, with intent thereby to extort and gain
money from the said B.
OR.
At on A., with intent to ex-
■♦ort and gain money from B., unlawfully did cause the said B., to receive a
certain document accusing {or " threatening to accuse") the said B., of hav-
ing counselled and procured one C, to commit an infamous offence, to wit,
the abominable crime of bugpery, he the said A. then well knowing the con-
tents of the said document, which is as follows : (Set out the document.)
EXTORTION, BY THREATS TO ACCUSE OF OTHER '"RIMES.
At on , A., unlawfully did
accuse (or " threaten to accuse ") B., of having committed the offence of poly-
gamy (or "libel" or "aggravated assault " or " gaming in stocks," or " frequent-
ing bucket shops," or " corrupting jurors," or " obtaining money by false pre-
tences," or "defrauding creditors" etc), with intent, thereby, to extort
and gain money from the said B.
FALSE PRETENCES.
At on , A., unlawfully, and by
false pretences, did obtain from B., five barrels'of flour of the value of
with intent to defraud.
OBTAINING EXECUTION OF VALUABLE SECURITY BY
FALSE PRETENCES.
At on , A., unlawfully, and by
false pretences, did cause and induce B., to execute (or " make " or " accept,"
or "endorse" or "destroy "i a certain valuable security, to wit, a promissory
note for one hundred dollars, with intent thereby to defraud and injure tlie
said B.
OBTAINING PASSAGE BY FALSE TICKET.
At on , A., fraudulently, un-
lawfully, and by means of a false ticket (or " order "), lid obtain (or " attempt
to obtain ") a passage on a carriage or car of the Montreal Street Railway
Company, (or, as the case muy be)-
STATEMENTS OF OFFENCES. 163
FALSE ACCOUNTING BY CLERK.
\^ on • A., then being a clerk
in the employ of B., did, unlawfully, with intent to defraud, destroy (or
" alter," or " mutilate," or " falsify ") a certain book (or " paper," or " writing,''
or "valuable security,") to wit, [describe the book, etc.), belonging to (or "in
the possession of," or "received by the said A., for and on behalf of") the
said B.
FALSE WAREHOUSE RECEIPT.
j^t on A., then being the
keeper of a warehouse, etc., for storing timber, etc., unlawfully, knowingly,
wilfully and with intent to misled (or "injure." or "defraud,") did give
to B. a certain writing purporting to be a receipt for, (or "acknowledgment
of"), certain goods, to wit, (describe thtm), as having been received into his
the said A's warehous«, etc., before the said goods had been received by him,
the said A., as aforesaid.
FALSE STATEMENT BY A PROMOTER, DIRECTOR, PUBLIC
OFFICER OR MANAGER OF A PUBLIC COMPANY.
At on , A., being then a pro-
moter, (o?" "director," or "public officer," or "manager") of a certain body
corporate {or " public company ") then intended to be formed and to be called
, (or " then actually existing and called
") did, unlawfully, make, circulate, and publish (or " concur in mak;
ing, circulating, and publishing ") a certain prospectus (or " account " or
"statement,") well knowing the same to be false in certain material particu-
lars, to wit (slate them), with intent to induce certain persons unknown,
to this deponent, to become shareholders or partners (or "with intent to
deceive and defraud the members, shareholders and cieditore,") of the said
body, corporate {or " public company.")
FALSE TELEGRAMS.
At on , A., unlawfully, and
with intent to defraud, did cause and procure a certain telegram, in the words
and figures following, [Set out the telegram) to be sent, (or "delivered,") toB.,
as being sent by the authority of C, knowing that it was not sent by such
authority, and with intent that the said telegram should be acted on as being
sent by the said C.
SENDING FALSK TELEGRAMS, OR LETTERS, WITH INTENT
TO IN.IURE OR ALARM.
/^^ on , A., unlawfully and
with intent to injure (or "alarm") B., did send (or "cause" or "procure to
be sent") to the said B., a certain telegram (or "letter,") containing matter
1(1-1: I'UAf'TlCAL (il'IIiE TU MAUISTHATES.
which he the saiil A., know to be false, to wit, a telegram {or " letter,") in the
words and figures following, (.>>< out the telegrum or Ultir).
FALSIFYING REGISTERS.
At on , A., unlawfully, did
destroy («r ''deface " or " injure ") a certain register then and there lawfully
kept as the register of births {or '"baptisms," <>r " marriages," or " doatlis " or
" burials"; of Ihe parisli of
OR,
At on , A., unlawfully, did
insert in a certain register then and theielawfully keptusthe rejiister of births,
(.'(", of tlie parish of a certain entry, known by him, the
said A., to be false, and relating to the birth (or " marriage," uc,) of
OR,
At on i*., unlawfully, did eraze
from a certain register then and there lawfully kept as the register of births
(or " marriages," (tc ), of the parisli of a certain
material part of such register, to wit, {Dcpcriie the mutLrial part i:ra:id).
FALSELY CERTIFYING EXTRACTS 1<R0:\I REGISTERS.
At on A., being a i)erson au-
thorized and required by law to uive certified copies of entries in a certain
register then and there lawfully kept as the register of births {or •' marriages''
lie), of the parish of , unlawfully did certify a
certain writing to be a true copy of (or "extract from ") a certain entry in the
said register, to wit, an entry of the birth (or " marriage," etc.), of
FRAUD BY OFFICIAL.
^t on , A, then being a dir-
ector or " manager," etc.i of a certain body corporate called
did unlawfully destroy (or "alter," or "mutilate," or "falsify,") a certain
book (or " pafier," or " writing," or " valuable security ") to wit, {Dincribe thi
hook, etc.), belonging to the said body corporate, with intent to defraud.
OR,
At on A., then being a dir-
ector, itc, of a certain body corporate called did unlawfully,
and with intent todefraud, make(rr "concur in making") in a certain book
of account, to v,it, (dcscrihi' it) of the said body corporate, a certain false entry,
by then and tliere falsely entering in such book (Describe the fahe entrtj).
ei
STATEMENTS OF OFFENCES 165
OB,
. . on . -^'i then bein<: a Jir-
•tor clc, of a certain body corporate called did, unhv.vfuHy
and with intent to defraud, omit {or "concur hi omitting") ceriaiu material
particulars f>om a certain book of account of tl^.e said body corpo/ate, to wit,
(Dm-Tibe the omimon).
FKAUDULENT ASSIGNMENT BY A DEHTOIJ.
.. on A. .unlawfully, and with
intent to defraud his creditors, did make (or "cause to be made") a gift, {or
" oonveyaiice," or " assignment," or " sale," or " transfer," or " delivery," I of
Ills property, to B.
OR,
j^t on ^^'i unlawfully, did re-
niovf, lor " conceal," or " dispose of") hie property, with intent to defraud his
creditors.
IRAUDULENTLY RECEIVING A DEBTOR'S PROPERTY.
At on A., unlawfully, au<l with
intent that B. should defraud his creditors, did receive, the property of the
suid B., tlien and there given, or " conveyed," or " assigned," or " sold," or
" transferred," Of "delivered,'' or "removed," or "concealed," or "disposed
of") hy the said B., with intent to defraud his creditors.
FRAUDULENT CONVERSION 1^' A PERSON ENTRUSTED
WITH :\10NEY.
At on , A.,— liavini: thereto-
fore received from B., the sum of one hundred dollars, on terms reijuiring
him, the said A., to pay over the same toC, — did fraudulently convert to his
own use and thereby steal the said sum of money.
FRAUDULENTLY DESTROYING D0( UMENT OF TITLE TO GOODS.
At on , A., unlawfully, and
for a fraudulent purpose, did destroy, (or "cancel" or "conceal," or
"obliterate") a certain document of title to goods, to wit, (De><cribc il).
FRAUDULENT TRANSFER OF STOCK.
At on , A., a transfer of a
certain share and interest of and in certain sto(;k, (annvily or oUur public
fmtJ), transferable at the Bank, to wit. the share and interest
of B., of and in ( J/en/ion the amount and description of the i^lock, df.), did unlaw-
fully, and with intent to defraud, make, in the name of C, he the said C. not
ICl) PRACTICAL GUIDE TO MAGISTRATES.
being then the true and lawful owner of the said stock, etc., or any part
thereof.
: FEIGNED MARRIAGE.
At on , A., did unlawfully
procure a feigned and pretended marriage between himself, the said A., and
a certain woman, to wit, B.
" OR,
At on , A., did unlawfully
aid and assist B., in procuring a feigned and pretended marriage between him,
the said B., and a certain woman, to wit, C.
. FORCIBLE ENTRY.
A, B, C, and D on unlawfully, forcibly, and with a strong hand,
did enter into a certain dwelling-house situate and being at and then
in the actual and peaceable possession of E, and unlawfully, forcibly, and
with a strong hand, did expel and put out the said E. from the said dwelling-
house, in a manner likely to cause a breach of the peace.
■ -''.•■■ ■ - , ■ ■ . ,.,•-/■
.,, FORGERY.
At on ^ A., unlawfully and
knowingly did forge a certain document, to wit, {Describe the document by itn
usual name, OT, set forth a copy of it). ■ - ,
UTTERING A FORGERY'.
At on A., knowing a certain
document, to wit, {describe it) to be forged, did unlawfully utter (or " use " or
"deal with," or ''act upon," or "attempt to u«e," etc.), the said forged docu-
ment, as if it were genuine.
FURIOUS DRIVING. ' -
On at , A. being in charge
of ft certain veliicle, to wit, a four-wheeled cab, did, by his wanton and fur-
ious drivinjf, {or '"racing") of and with the said vehicle unlawfully do (")'
'' cause to be done ") bodily harm to B.
INCEST.
On at A,, and B., being and
knowing themselves to be brother and sister, did unlawfully commit incest
[or " did unlawfully have sexual iiitercourse ") with each other.
STATEMENTS OF OFFENCES. • 107
INDECENT ACTS. - .
On at A., a male person, in
public (or " in private") -lid commit auact of gross indecency, with B., ano-
ther male person.
OR,
On at A., a male person was
a party to the commission of {or "did procure the commission of" or " did
attempt to procure the commission ol") an act of gross indecency, in public,
(or " in private" ) by B., also a male person, with C, another male person.
INTIMIDATION.
At on A., and B., unlaw-
fully, and without lawful authority, did use violence to ior " injure the pro-
perty of")C., by [Dcucriln' the personal i^iolence or the injtcrii to property, (as the
case may In')], with a view to compel the said C. to employ D., E., and F.,
whom he the said C. had a lawful right to refuse to employ {or " to comjjel
tiie said C. to discharge from and refuse to keep in his employ G., and 11.,
whom he the saidC. had a lawful right to retain in Ids employ.")
OR
At on A., B., and C, being
workmen in the employ of D., unlawfully, wrongfully and without lawful au-
thority did, by means of threats of using violence to (oc ■ ' of injuring the pro-
perty of") the said I)., intimidate the said D., with a view to compel the
said D., to raise and advance the wages of them the said A., B., and C.
Ol{, • . , . , .
•'^^ on A., and B., unlawfully,
wrongfully, and without lawful authority, did persiste ntly follow C, from
Ijlace to place, with a view to comijol the said C, to cease working for D., he
the said C, having a lawful right to continue to work for the said D.
I>'TIMIDATION, BY PICKETING.
°" • and on divers other
days before and since that date, A ., and B., unlawfullv, wrongfully, and with-
out lawful authority, did beset and watch the building, workshop, and prem-
ises of C, where D., was then working in the employ of the said C, with a
view to compel the said D., to cease from working in the employ of the said
C he the said D., having a lawful right to continue to work in the employ
of the said C, (or "with a view to comj^el the said C, to discharge and to
chscontinue employing the said D., he the said C, having a lawful right to
continue the said D., in las employ.")
l(iS PRACTICAL aUIDE TO MAUISTKATES.
INTIMIDATION, BY ASSAULTS Oil THREATS, IN PUKSrANCE OF
AN UNLAWFUL COMBINATION.
At on , A., B., and C.havinK
before then, unlawfully conspired, combined, confederated and agreed to-
getlier to raise tlie rate of wa,;?es, then usually payable to worlvnion in a cer-
tain trade, business and manufacture, to wit, the trade, business and manu-
facture of brass fornding (or "calico printing,'' or ''cotton spinniu<x" or ""Bilk
weaviu'j ' or "enjiine making" or " cigar makinu;" or " brickmaking," etc.),
did, then and there, in pursuance of the said conspiracy, unlawfidly make an
assault upon (or " use violence " or " threats of violence to") B., witli a view
to liinder hiui friKii working {or " being employed") at such trade, business
and manufacture.
KIDNAPPING.
On at , A., unlawfully, forcibly,
and witiiout lawful authority, did kidnap B., and did unlawfully, forcibly,
anil without lawful authority, seize, confine and imprison him, within the
Dominion of Canada, with intent to cause the said B., to be secretly confined
and iinf)risoned in Canada aforesaid, against his will, (or " with intent to
cause the said B., to be unlawfully sent and transported out of Canada
aforesaid.")
MANSLAUGHTER.
A. unlawfully did kill and slay B. at on
OR,
At on A. did commit man-
slaughter.
311S<'inKF : ()I{ WJLFUL DAMAdE, DHSTJIUCTIOX. AXD
I XJU J{y.
WILFULLY DAMAGING A CANAL, Etc.
At on A. unlawfully, wilfully,
without legal justification or excuse, and without color of right, did damatrt'
a certain canal (or " navigable river "), to wit {Describe it), by interfering with
and breaking down the flood-gates {or "sluices") thereof, with intent, and
so as thereby, to obstruct the navigation thereof.
WILFULLY DAMAGING MANUFACTURING M.VCJHINES.
At on A., unlawfully, wilfully,
without legal justification or excuse, and without color of right, did damage
(or "destroy ") certain agricultural {or "manufacturing") machines, to wit
{Decr'ile them), the jjropjrty of B., with intent thereby to render them use-
less.
I
STATKMENTS nK (iKh KNCKS. 109
WIM'CJLLY DAMA(;lN(i A POSr LETTER BA(;, Etc.
At in A., unlawfully, wilfully,
without lej;al justific-ation or excuse, and without color of right, did damage
(or 'destroy") a certiiin post-letter b:i<.r (or "post-letter," or "ofeet letter
ipox." Of "pillar box"), the property of tlie Postmaster-* leneral.
WILFULLY I)AMA(;iN(l A PARCEL SENT BY POST.
.\t on A., unlawfully, wilfully,
without le<,'al justification or excuse, and without color of right, did damage
('•r "destroy") a certain parcel sent by parcel post, the property of the
Postmaster-General.
WILFULLY DAMAGING A PRIVATE FISHERY.
At on A., unlawfully, wilfully,
without legal justification or excuse, and without color of riglit, did da.nage
a certain private tiwluM'y (of "salmon river"), by putting into it a large
ijuantiiy of liine, willi intent, thereby, to destroy the fish therein.
WILFULLY DAMAGING A SHIP. WITH INTENT TO DESTROY OR
RENDER IT USELESS.
At on A., unlawfully, wilfully,
without legal justification or excuse, and without color of right, did damage
a certain ship, {Dcfcrihc it), with Intent to destroy it, (or "render it use-
less.")
WILFULLY DAMAGING THE SLUICE OF A PRIVATE WATER.
-U on A., unlawfully, wilfully,
without legal justification or excuse, and without color of right, did damage
(or " destroy ") the flood-gate (or " sluice ") of a certain private water, to
wit, the fish pond of 15., situated in aforesaid, with intent
to take (or "destroy" or "to cause the loss of") the fish therein.
AVILFULLY DESTROYING BIUDGES.
f"^^ on , A., unlawfully, wilfully,
without legal justification or excuse, and without color of right, did destroy
(or "damage") a certain bridge (or "viaduct," or "aqueduct") situated in
aforesaid, and over (or " under") which a certain high-
way (or "railway," or "canal") to wit, (dcsxribe it), passes, and the said
destruction {or "damage") was so done by the said A., with intent and so as
to render the said bridge {or "viaduct," etc.) dangerous and impassable.
WILFULLY DESTROYING CATTLE, Etc.
, ,f * on , A., unlawfullv. wil-
fully, without legal justification or excuse and without color of rigjit, did
ItO 1'aA.OriOAL, OriDK to MAdlSTIlATES.
destroy (or "damage") one cow, the property of B., by then and there killing
{or "maiming," or "poisoning," or "wounding") the said cow.
WILFULLY DKSrROYING GOODS IN PROCESS OF MANUFACTURE.
At on ■ A.,unlawfiilly,wilfully,
without legal justification or excuse, and without color of right, did destroy
{or "damage"') certain goods. {Describe them) the property of B., then in
process of manufacture, with intent thereby to render them useless.
WILLFULLY DKSTROYING A HOUSE, ETC., AND ENDANGERING
LIFE.
At on , A., unlawfully, wil-
fully, without legal justification or excuse, and without color of right, did, by
means of an explosion, destroy (or "damage") a certain dwelling-house (or
"ship," or "boat") to wit, {VeKcribe it), the property of H., there being certain
persons to wit, C, and D., then in the said dwelling-houso, etc., and the said
destruction or "damage") did then and there cause actual danger to life.
WILFULLY DESTROYING A UIVIOR BANK, 1:TC., AND CAUSING
DANliER OF INUNDATION.
At on , A., unlawfully, wil
fully, without legal justification or excuse, and without color of right, did
destroy, {or "damage") the bank (or -'dyke") of a certain river, {Same it),
whereby there was actual danger of inundation.
WILFULLY DESTROYING OR DAMAGING, BY NIGHT, PROPERTY
TO THE AMOUNT OF TWENTY DOLLARS.
At on A., unlawfully, wilfully,
without legal justification or excuse, and without color of right, did damage,
{or " destroy,") by night, seven birch trees, {or " thirty-five patterns for the
making of waterproof coats,") the property of B., thereby then and there in-
juring the said trees {or "patterns") to the amount of twenty dollans.
WILFULLY DESTROYING, BY DAY, PROPERTY TO THE AMOUNT
OF TWENTY DOLLARS.
At on , A., unlawfully, wil-
fully, without legal justification or excuse, and without color cf right, did
damage {or "destroy,") by day, one crate of crockery ware, the property of
B., thereby injuring the said crockery ware to the amount of twenty dollars.
WILFULLY DAMAGING OR DESTROYING TREES IN A PARK, Etc.
At on A.,unlawfully,wilfully,
without legal justification, and without color of right, did damage {or "des-
' STATEMKNTS (iK nl'KKNCES. 171
troy") two lir trees, the property of B., then growing in a certain park, (or
"l)leii8uro >.'ronn(l," ")' "),'arden," or "land adjoining and belonginii to tlie
(hvolling house") of the said B., thereby injuring the said trees to an ex-
tont exceeding live dollars.
WILFUIdA' DKSTROYING OR DAMAGING VEGKTABLE PRODUC-
TIONS GROWING IN A GARDEN, Ivrc, Ai^TER A PREVIOUS
CONVICTION.
At on , A., nnlawfnlly, wil-
fully, without legal justidfiation or excnse, and without color of right, did
damage (or -'destroy ") forty caulillowers, tue property of B., then growing
in a wrtaiii garden of the said i>., situated in aforesaid.
That, heretofore, to wit, at on
( before the committing of the above mentioned offence,') the
said A., was duly convicted before C, one of Her Majesty's justices of
the peace, for the district of of having at on
{Set (lut Iht (ill'cnccj'orininy the lidnii^ of the Jlrst roif
vkliou,) and was adju^'cd, for his said offence, to pay, {fir.), and in default of
payment, etc., to be imprisoned, {etc.) And that, therefore, on the day and
year lirfst aforesaid, the said A., did uidawfuUy, wilfully, without legal ju>-
tilication or excuse and wiihout color of right, damage (or "destroy "i the
said foity caulillowers al'ler having been previously convicted of a like of-
fence of wilfully damaging (or "destroying") vegetable i)roductions in a
garden, ttr.
WILFUL INJURIES TO BUILDINGS, BY TENANTS.
At on , A., being then pos-
sessed of a certain dwelling-house situated in aforesaid, and
thou held by him the said A., as tenant tht'reof, for an unexpired term of
three years, did unlaul'idly, wilfully, without legal ju^tilication or excuse,
■without color of right, and to the prejudice of B., the owner thereof, pull
down and demolish tiie said dwelling-house.
■ MISCHIEF ON RAILWAYS.
^^ on , A., unlawfully and in
a manner likely to cause danger to valuable property, to wit, to certain
cars of the Canadian Pacific Railway, on their railway at
aforesaid, did displace a rail {or " sleeper, etc.), on and
belonging to said railway, (or "did make a false signal on {or near]
the said railway.")
MISCHIEF ON RAILWAYS, WITH INTENT.
^^ on , A. did unlawfully break
and injure a rail (or "sleeiier") on and belonging to the railway of the
Grand Trunk Railway Company, at aforesaid, with intent
12
172 I'liACTICAl. (11 mi', '!•(( M \(ilSTII.\'l'KS.
t'lereby to t'lmst! daiijjor to certain curs (jf tlio Haid liiiilw../ (jinpany on
tlieir said railway.
WJI.FUI.LY DKSTUUYING OR DAMAGING A RAILWAY.
At on , A., nnlawfully, wilfully,
without lejxal justifi(;ation or excuse, and without color of ri^ht, did dostroy
(iif "daina)J!e") a certain railway, {Dmcrilif it), with intent and so as to
render the same danj^orous and iniyassablo.
WILFULLY RK.MOVlNti MARINp: SIGNALS.
At on A., unlawfully, wilfully,
without le^'al justification or excuse, and without color of rif;ht, did alter (or
" remove," <>r " conceal ") a certain sitrnal 0"' '' buoy ") used upon the river
ijt. Lawrence for the purpose of nuvigatioii.
INTENTIONALLY EN1)AN< IKRING RAILWAY PASSEN(iK]!S.
On at , A., u[)()n and across
ft certain railway {Drscribe it), a certain piece of wood {or "stone,'' etc.) did
unlawfully put (or- "throw") with intent thereby to injure or endanger the
safety of jiersons travelling (or "being") upon the said railway.
OR
On at , A., a certain point (or
other machimrij) then being upon and belonging to a certain railway (£>i*-
ori6(^ i7), did unlawfully turn ((*r " move," or " divert", with intent thereby
to injure or endanger the safety of persons travelling (or "being") thereon.
OR,
On at , A., unlawfully, did
make (or "show," or "hide," or "remove") k certain signal (or "light")
upon {or "near to") a certain railway {Drfcrilie ■il), with intent, thereby to
injure or endanger the safety of persons travelling (or "being") upon tlie
said railway.
OR,
On at , A., a certain piece of
wood {or "stone," etc.), unlawfully did throw {or " cause to fall " or ''strike")
at (or "against," or "into," or "upon") a certain engine (" or "tender," "c
"carriage," or "truck "), then being used and in motion upon a certain rail-
way (Describe it), with intent, thereby, to injure or endanger the safety of
B., then and there being upon the said engine {or "tender," etc., or "an-
other engine, etc., of the train of which the said llrst mentioned engine, ('(•,
then formed part.")
STATK.MK.VTS i p |' (H'l'KXCKS. 17;{
NKGUGKNTLY r,ND.\.\< iKRiNG TIIK SAFETY OF RAILWAY
PASSl'.NGI'JUS.
^^" " «H , A., l)y wilfully omitting
and iie^floctin.i; to do liis ihity, tn wit, 1)y wilfully orr'''in^' and lU'tilm'tin^r
to (Sil mil III, piirlirnldf art iiiiiith'il), wliicli it was i.ien liis duty to do,
unlawfully did endan<:er (or " ninse to he endanjiered ") thesafetyof i^er-
sons tiien conveyt'd (../■ "tminn") i'> aiid upon a certain railway there
called
MURDEli.
A. nnirdered I!, ut on
Oil,
•^' on A. did commit murder.
ATTEMl'T TO .MUUDKl;, iJY OROVVNING,
'^^ «» , A., unlanfullv did
atte;iii)t t.> drown (or •'snllWate," or "stranijle") 1!., with intent, thereby,
to nuink.r the said 1',., (or '■ witli intent, thereby, to commit nuirder").
ATTEMI'T To MURDER, I'.Y EXPLOSION.
/^' , . „ '^" .A., unlawfully, did, by
the ex|)lo8sion of a certain exi)lusive substance, (1 ) to wit, (Difcrihc the explo-
kIi-c], d(^slroy (or "damaiu'e " a certain building; situate ami lunng in
conuui, murcM.' "' ^'°'''-'"^' ^^"'' '""^"*' '^'^'''^- ' *"
ATTEMPJ To MURDER, IJY POISONING ult SHOOTING.
^!' \. , . ?" • '•^•' unlawfully did
with a certain gun (.)/■ pistol, or revolver), shoot at {or unlawfully did ad-
minister, or cause to be administered certain jwison, or a certain destructive
, "■'"*-'• .'" ^^■''' to) me, (or B.), with intent, tberebv, to
1 commit murder. '
■-
ATTEMPT TO MURDER BY WOUNDING, Etc.
, , ., . ""^ . A., unlawfully did
wound [or cause grievous bodily harm") to B. with intent, thereby to
murder the said B. (or " with intent, thereby, to commit murder ").
ATTEMPT TO MURDER BY ANY MEANS.
f , . , . °" . A., by cutting the
rope of a certain hoist lor "breaking the chain of a certain elevator '' i in
a certain buiklini: situate and being in ♦ . •
... street m
aloresaid, (or, Olherwise describe the actual deed) did
imlawlully attempt to murd«r B. (or " to commit murder ").
(1) See arlicle 3 (i), of the Code, for definition of explosive substance."
174 PRACTICAL Gl'IDi: TO MAOISTRATES.
CONSPIRACY TO MUKDEK.
At 'on , A., B. and C. did
unlawfully conspire and a;:;ree together to murder D., (or " to cause I),, to be
murdered.")
COUNSELLING MURDER.
At on , A., did unlawfully
counsel (or "attempt to procure") B., to murder C.
THREATENING, BY LETTER, TO KILL OR MURDER.
At on ". , A., unlawfully did
send (or '' deliver "), to {or " cause to be received by ") B., a certain letter (or
'•writing") tlireatoning to kill (or "murder") the said B., he the said A.,
then knowing the contents of the said letter (or " writing").
OR,
At on , A., unlawfully did
utter a certain writing, (or "letter"), threatening to kill (or "murder")
B., he the said A., then knowing the contents thereof.
NEGLECT OF DOMESTIC DUTIES, ETC. (1)
OMISSION OF FATHER TO PROVIDE NECESSARIES FOR
CHILD UNDER SIXTEEN.
At on , and on divers
other days before and since that date. A., being the father of !>., a child
under sixteen years of age, then and there a nieud)er of the said A.'s house-
hold, and the said A., being as such fathei', under a legal duty and boun.l
by law to provide suMicient food, clothing lodging and all other necessaries
for the said B., did, in disregard of his duty \u that behalf, unlawfully, re-
fuse, neglect, and omit, without lawful excuse; to provide necessaries for the
said B., his said child, by means whereof the said B's life has been and is
endangered ; (or "the said B's health is now and is likely to be permanently
injured.")
OMISSION OF HUSBAND TO PROVIDE NECESSARIES FOR WIFIv.
{Commenrc as abov: ) A., the husband of B., lieing, then and
there, under a legal duty and bound by law to jirovide sullicient food,
clothing and lodging und all other necesisaries for B-, his said wife, did, in
disregard of his duty in that behalf, unlawhiily, refuse, neglect and omit,
without lawful excuse, to provide necessaries for her the said B., by means
whereof the said B's lifu has been and is endangered, (or, " the said B.'s
heallh is now and is likely to bo permanently injured.")
(1) For " Abandoning Child," see p. 141!, a?i/f'.
STATEMENTS OF OB'FENCES. 175
OMISSION OF MASTER TO PROVIDE ]SECESSARII':S FOR SERVANT
OR APPRENTICE.
{Commence as above) A., being the master of B., a
Bervant, (or " an apprentice"), under sixteen years of age, and being under
contract and legalh- bound to provide necessary food, clothing and lodging
for the said B., as his servant, {or "apprentice,") did in disregard of such
contra(!t and the legal duty imposed upon him by law, in that behalf, un-
lawfully refuse, neglect and ora^t, without lawful excuse, to provide neces-
sary fooil, clothing and lodging for tho said B., by means whereof the said
B's life has been and is endangered; (or "the said B's health has been and
is likely to be permanently injured.")
CAUSING BODILY HARM TO SERVANT OR APPRENTICE.
On at A., being the master
ofB., a servant {or "an apprentice"), ivdlawful'y did do and cause to be
done bodily barm to the sai<l B., whereby the life of the said B. was and is
endangered; (or "the liealth of the said B. has been and is likely to be per-
manently injured.")
NEGLECT TO OBTAIN ASSISTANCE IX CIIILD-BIRTII.
^^ oil , A., being with child
and about to bo delivereil thereof, unlawfully, with intent that the child
should not live, did, neglect to provide reasonable assistance in herdeliverv
in consequence of which neglect her said child was and is permanently
injured, (or " died during or shortly after birth.")
OR,
{Commence an above) witli intent to conceal the fact
of her having had a child, did neglect to piovide reasonable assistance in her
delivery, in consequence of which neglect, her said child was and is perma-
nently injured, {or " died during or shortly after hirth.")
' ' OBSCENE ACTS.
' °" ** , 1 in a certain open
and j.ublic store of him tlie said A., there situate, unlawfully, knowingly,
and without lawful justification or excuse, did hell (or " ex|K)se for public
sale," or " expose for public view,") a certain, lewd, wicked, indecent, and
obscene picture (or " photograph" or •' model") representing a naked man
and a naked woman in a lewd, indecent, and obscene (Misture together, (or,
09 the case may be), and having a tendency to corrupt morals.
OFFEN.SIVE WEAPONS.
^" at A., unlawfullv did
carry (^or " have in Ids i ossession," vr " custody") a certain offensive weapon,
116- PRACTICAL GUIDE TO MAGISTRATES.
to wit, a sword {or "an air-gun," or " a dasrgrer," or " a pistol," w "metal
knuckles"), for a purpose dangerous to tlie public peace.
SMUGGLER? CARRYING OFFENSIVE WEAPONS.
On at • , A., did unhuvfully
have possession of certain goods, to wit, {describe Hum) liable to seizure {or
" forfeiture") under {mention the Act or lair) relating to inland revenue, (or
" the customs," or " trade," or " navi^ration") knowing them to 1)b so liable,
and that he did then and there and at the same time unlawfully carry a cer-
tain offensive weapon to wit. {describe it.)
OFFICIATING CLERGYMAN,— OP.STRITTION OF.
A., on at unlawfully did, by
force, (tlirratu or force) obstruct and prevent B., a clergyman from celebrating
divine service in the parish church in the parish of C, (or " in the perfor-
mance of his duty in the lawful burial of the dead in the church yard of the
parish church of the parish of C")
STRIKING OR ARRESTING OFFICIATING CLEilGYMAN.
A., on at unlawfully did
arrest upon a certain civil process, {or " did .strike," or did offer violence to")
B., a clergyman whilst he, as such clergyman, was going to perform divine
service, he, the said A., then well knowing that the said B., was a clergyman
going to perform divine service
PERJURY.
A. committed perjury, with intent to procure the conviction of B. for an
offence punishable with imprisonment for more than seven years, namoly,
robbery, by swearing on the trial of B. for the robbery of C, at the Court fit'
(Quarter Sessions for the < 'onnty of on the day of
18 ; JirM, that he, A. saw B. at on the
day of ; secovdly, that B. asked A. to lend B. money on a watch
belonging to C. ; tliinlly, etc.
OR,
\. committed perjury, en the trial of B. at the Court of Quarter Sessions
held at on for an assault alleged to lia^o
been committed by the said 15. on C. at Toronto on the day nf
, by swearing to the efl'oct that the said 13. could not have Ijecii
at Toronto at the time of the alleged assault, inasmuch as the said A. Iiad
seen him at that time in L'ort .\rthur.
SUBORNATION OF PER.IURY,
Same an last form to the end, and thi . proceed : —
And that before the committing of the said jierjury by the said A. to wit,
STATEMENTS nK OFt'ENCES. ITT
on the ilay of . at , C unlawfully,
(lid counsel and procure the said A., to do and commit the said iJerjury.
PERSONATION,
^j on , A. unlawfull}' did
personate B., (or " tlie administrator," or " widow," or " next of kin of the
late C," or "the wife of D.") witli intent thereby fraudulently to obtain
{Dcfmbe the monnj or property intended to he obtained.)
PERSONATION AT AN EXAMINATION.
^Yt on , A., unlawfnlly falsely
and with intent to ^rain an advantage for himself, {or " one H.") did personate
C„ a candidate at a comjietitive (or " qualifyins;") examination held under
authority of law, {or " in connection witli the McGill College University, "or
" tlie I.aval University " of Montreal."]
PERSONATING AN OWNER OF STOCK.
At on , A., unlawfully, false-
ly and deceitfully did parsouate B., the owner of a certain share and in-
terest in certain stock {amndty or ollter public fund) to wit, {<jire the amount
and discrijilinii of the fiaid 8lock, etc.), then transferable at the
Bank, and did, by means of such personation, transfer (or "en-
deavor to transfer,") llie said share and interest of the said B., in the said,
stock, etc., as if he the said A., were tiie lawful owner thereof.
ACKNOWLEDGING AN INSTRUMENT IN A F.\LSE NAME.
At on , A., did, before the
Court of Queen's Bench for the Province of Quebec, sitting? in and for the
District of Montreiil, (or "tlio Honorable Mr. Justice — " etc.), unlawfully,
and without lawful authority or excuse, acknowledge in the name of B,, a
certain recognizance of hail, (or " cagnovit actionem" etc.), to wit, {Describe the
instti-ument and the cause, nction , or proa ediug to which itrelates.)
PIRACY.
A., B., and ('., on with force of arms, upon the high seas, to
wit, in and on board a certain ship called the Alabama, in a certain place
n])on the high seas about ten leagues from Baltimore in the Uriited States
of America, then being, did in a!idn|)on certain mariners whose names are
unknown, then and there being, unlawfully, piratically and violently make
an asisault and them, the said mariners, put in bodily fear and danger of
their lives.
POLYGAMY.
^* on , and on divers other
days before and since that date, A., a male person, and B., C , and D., three
ITS PRACTICAL (HIDE TO MAQISTRATES.
females, unlawfully, did practice, (or " agree to practice ") polysamy toge-
ther.
OR
At on , A., a male person, and
B., C, and D., three females, did unlawfully, by mutual consent, enter into a
form of polygamy together.
OR
At on , and on divers other
days before that date, A., unlawfully did practice (or " agree to practice")
polygamy with certain women, to wit, B., C, and D.
OR
At on , A.,amaleiierson,and
B., C, and D., three females, did unlawfully enter into a conjugal union {or
•' spiritual or plural marriage," etc ), together, by means of a contract [or" the
rites" or "rules," etc., "of a certain denomination," or "sect" or "society"
called Mormons, [or " called" etc.) ]
PUBLIC STORES— UNLAWFULLY APPLYING MARKS TO THEM.
At on . A., unlawfully and
without lawful authority, did apply, in and on certain stores, to wit, fifty
yards of canvas, and twenty yards of fearnauglit, a certain mark, to wit, a
blue line in a serpentine form.
OR,
At on , A., unlawfully and
without lawful authority, did apply in and on certain stores, to wit, fifty yards
of bunting, a certain mark, to wit, a double tape in the warp of the said
bunting.
UNLAWFUL POSSESSION, Etc., OF PUBLIC STORES.
At on , A., unlawfully, and
without lawful authority, did receive (or " possess," or "keep," or "sell," or
"deliver") certain public stores, to wit, twenty five pounds of candles, bear-
ing a certain mark, to wit, blue threads in each wick, to denote Her Majesty's
property therein.
RAPE.
On at , A., in and upon B., a
woman, not his wife, did unlawfully make an assault, and did unlawfully
ravish and have carnal knowledge of her the said B., without her consent.
OR,
On at , A., did unlawfully
have carnal knowledge of B., a woman, not his wife, with consent by him
STATEMENTS OK OFFENCES. IT!'
obtained from the said B., unlawfully, and by throats, (or "iinlavi fully and
by personating the husband of the said B.," or "by false and fraudulent re-
presentations as to the nature and quality of the act.")
ATTEMPT TO COMMIT RAPE.
On at , A., in and upon B., a
woman, not his wife, did unlawfully make an assault, with intent to un-
lawfully ravish and have carnal knowledge of her without her consent.
CARNALLY KNOWING A GIRL UNDER FOURTEEN.
On at , A., did unlawfully
have carnal knowledge of B., a girl under the age of fourteen years, to wit, of
the age of thirteen years and six months.
ATTEMl-T TO CARNALLY KNOW A GIRL UNDER FOURTEEN.
On at , A., did unlawfully
attempt to have carnal knowledge of B., a girl under the age of fourteen
years, to wit, of the age of thirteen years and six months.
RECEIVING PROPERTY STOLEN, OR OBTAINED BY ANY
INDICTABLE OFFENCE.
At on , A., did unlawfully
receive and have one piano, belonging to B., and theretofore unlawfully
stolen [or " obtained by an indictable offence, (o wit, by false pretences," or
(Dencribe the njlenrc b;i iiliich thr piano vas obtained], he the said A., then well
knowing the said piano to have been so unlawfully stolen, (or "obtained by
the said indictable ofl'ence.")
OR,
At on , A., unlawfully stole
one piano belonging to B. And, that, afterwards, at
on C^, unlawfully did receive and have, the said piano so
stolen as aforesaid, he, the said C, then well knowing the same to have
been stolen.
RIOT.
On at A., B., and C., with divers other per-
sons unknown, unlawfully, riotously and in a manner causing reasonable fear
of a tumultuous disturbance of the peace, did assemble together, and, being so
a.ssenibled together, did make a great noise, and thereby began and conti-
nued for sometime to disturb the peace tumuliuously.
RIOTOUS DESTRUCTION OF BUILDINGS.
A., on at , with two other persons at least,
<lid unlawfully, riotously and tumultuously assemble together to the distur-
180 PRACTICAI, (iriDK J'li AfAOISTRATES. r . I- . ' ■
bance of the public peace, and with force did unlawfully demolish and pul)
down {or " begin to demolish &c"), a certain building of B. .
RIOTOUS DAMACiE TO BUILDINGS. '
A., on at , with two other j^ersons at least, did un-
lawfully, riotously and tumultnously assemble together, to the disturbance of
the public peace, and with force did unlawfully injure and damage certain
machinery of B.
NEGLECT TO SUPPRESS RIOT.
On at the city of . within tlie juris-
diction of A., then the mayor of and present in the city of ,
there was a riot, and the said A., then havini: notice thereof, unlawfully arid
without any reasonable cause, did omit to do his duty as such mayor in
suppressing the said riot.
OMITTING TO AID PEA( E OFFICER TO SUPPRESS RIO'".
On at , there was a riot, and
that A., B. and C, then and tiiere present, being called upon and requested
by D., a peace officer in the exercise of his duty in that behalf, to render
him their assistance in suppressing the said riot, did unlawfully and without
any reasonable cause refuse and omit to do so.
ROBBERY. f - '
At on , A., unlawfully, and
by means of violence {or " threats of violence") used by him to and against
the person [or "property ") of B., to prevent [or "overcome ") resistance, did
steal frem the person {or "in the presence") of the said B., and against
his will, moneys of him the said B., amounting to fifty dollars.
ROBBERY BY SEVERAL PERSONS TO<iETHER.
At on , A., B. and ('., being
then and there together, did, with and by means of violence {or " threats of
violence ") used by them to and against tiie person {or " property ") of B., to
jirevent (or "overaome") resistance, unlawfidly and violently steal from
the person (or "in ihe (iresence"') uf the said B., and against the said B's
will, moneys of the said B., amounting to one hundred dollars.
ROBBERY Bi' A PERSON ARMED WITH AN OFFENSIVE WEAPON.
At on , A., being armed
with a certain offensive weapon, to wit, a brass knuckle-duster {or "lead-
loaded cane," or "sand-bag," or "pistol," or "knife"), did, with and by
means of violence (or " threats of violence"), used by him to and against
the person (or " property ") of B., to prevent {or " overcome ") resistance,
STATEMENTS OF OKt'E.VCKS. 181
unlawfully and violently steal from the person (or "in the presence")
of the said 1!., and ajrainst his will, one diamond rinii: belon<;iug to the said
B.
ROBBERY, WITH WOUNDING, Ere.
At on , A., with and by means
of violence {or "threats of %iolence") used by him to and aj^ainst the per-
son [or "property") of B,, to prevent (or "overcome") resistance, did
nnlawfully and violently steal from the j)er.«on {or "in the presence") of
the said B., and against his will, one gold watch belonging to the said B. ;
and that at the time {or "immediately before," or "immediateh after")
he 80 robbed the said B., \wi the said A. did unlawfully wound (or " beat,"
"r " strike," or " use personal violence to ") the .said B-
AS.SAULT, WITH INTENT To KOB.
.At on , A., in and upon !>.
unlawfully did make an aesaidt, with intent the moneys, and goods of the
said B., unlawfully and v'olenUy to steal from the i)erson and against the
will of the said B.
ASSAULT BY AX ARMED PERSON.
-At on , A., then being armed
with a certain ofiensive weapon, to wit, a heavy bludgeon, did, in and upon
B., unlawfully make an assault, with intent the moneys of the said B., un-
lawfully and violently to steal from tlie. i)erson and against the will of the
.saitl B. , •
, ' STOBPlN(i THE .AIAIL.
^* . on , A., unlawfully did stop
a certain mail, to wit, the mail for conveying letters between
""'^ . I with intent to rob (or "search") the same.
• ROBBERY, BY FORCIBLY COMPELLING EXECUTION OF A
DOCUMENT. .,
o"^ . A., bv means of un-
lawful violence to {or " restraint of") the pe-son of B., did unlawfullv compel
the said B. to execute {or "sign," or "destroy") a certain deed; to wit,
[Ui!>cTthe H), with intent to defraud (or " injure ").
( )H,
, ■ *"* , A., by means of a
threat to employ unlawful violence to (or "restraint of") tlie i)erson of B.,
|hd unlawfully compel the said B. to sign {or "accept," or "endorse," or
itestroy," or "alter") a certain promissory/note {etc.) to wit, (Dci^cribe it),
with nitent to defraud (or "injure").
18li I'HACTICAL (HIDE Tl» MAOISTRATES.
SEDUCTION OF GIRL r.ETWEEN FOURTEEN /VND SIXTEEN.
Ou at , A. juilawfully did seduce
(or "have illicit connection with") B., a girl of previously chaste char-
acter, then being of {or "above") the age of fourteen years and under the
age of sixteen years.
SEDUCTION UXDKU PROMISE OV' .MARRIAGE.
On at , A., then above
the ago of twenty-one years, did, unlawfully, and under promise of mar-
riage, seduce and have illicit connection with B., an unmarried female, of
previously chaste character, and under twenty-one years of age.
SEDUCTION BY GUARDIAN OF WARD.
On ' at , A., then being the
guardian of B., unlawfully did seduce {or ''have illicit connection with")
the said B., his ward.
SEDUCTION OF FACTORY E]MPLOYEE.
On at A., unlawfully did seduce
{or "have illicit connection with") B., a woman of previously chaste char-
acter, and under the age of twenty-one years, to wit, of the age of
years, and then also being in the said A's employ, in the said A's
factory {or •' mill," or " workshop").
SETTING SPRING-GUNS, Etc.
On at , A., unlawfully did set
and place {or " cause to be set and placed ") in a certain place {Describe nhere
set) a certain spring-gun {or "man-trap") calculated to destroy human life
{or " inflict grievous bodily harm") with intent that the same {or " whereby
the same") might destroy {or "inflict grievous bodily barm upon") any
trespasser or other person coming in contact therewith.
SOLEMNIZING MARRIAGE WITHOUT .AUTHORITY.
On at A., without lawful
authority, did unlawfully solemnize {or "pretend to solemnize") a marriage
between B. and G.
OR,
On at , A., then knowing
that B. was not lawfully authorized to solemnize a marriage between C
and D., did unlawfully procure the said B. to unlawfully solemnize a mar-
riage between the said C. and D.
SOLEMNIZING A MARRIAGE CONTRARY TO LAW.
At on , A., a clergyman of
, having lawful authority to solennize marriages, did solemnize
STATEMKXTS OK ttFFENCES. 183
n uiarriape between B. and C, unlawfully, and in violation of tlie laws of the
province of , in which the said marriage was so solemn-
ized, to wit, by solemnizing the same without any previous publication of
banna, and without any licence in that behalf (or; ^V< out the particular violn'
tion complained of).
STEALING CATTLE.
At on , A., unlawfully did
steal one horse the property of B. .
ST i; A LING CHILDREN UNDER FOURTEEN.
On at , A., unlawfully did
take (or " entice ") away {or " detain ") one B., a child under the a<?e of four-
teen years, to wit, aged twelve years, with intent, thereby, to deprive C, the
father {or " mother," or "guardian" etc.), of the said B., of the possession of
the said B. [or with intent thereby, then and there, to steal certain articles,
to wit, (Mention lliem), then being on or about the person of the said B.]
OR,
On ^^ > -^•. unlawfully did
receive (or " harbor") one B., a child under the age of fourteen years, to wit,
aged years, knowing the said 1>. to have been tliere-
toforo taken (or "enticed") away, with intent to deprive ('., the father (o?-
" mother," or " guardian " etc.) of the said B., of the possession of the said B.
STEALING FROM A DOCK.
At on , A unlawfullydidsteal
from a certain dock, (or " wharf") adjacent to the navigable river St. Law-
rence, one sack of flour belonging to B., and then being upon the said dock.
STEALING FROM THE PERSON.
At on , A., unlawfully did
steal one gold watch, and one silver watch-chain from the person of B.
STEALING IN A DWELLING-HOUSE.
-^t on , A., unlawfullv did
steel twelve silver spoons, of the value of twenty-five dollars, belonging to B.
in the dwelling-house of the said B., situated in aforesaid
OR,
^\ oil , A., unlawfullv did
steal twelve silver forks belonging to B., in the dwelling-house of the said
B. situated in aforesaid, there then being in the said
dwelhng-house,one<'.,who was put in bodily fear by the menaces and
threats of the said A.
ISl I'I1A( TICAI, (it IDK TO M.\(ilSTIIATKS.
STEALING GOODS IN IMANUFACTORUvS.
At on * , A., r.nhiwfiiliy did
steal forty yards of calico worth five doilars. liclonginj,' to B., in a certp.in
weaving shod of the said P.., situated in aforesaid,
whilst tiip same woro tiiero oxposed upon the looms of tlio sai<l 13., diirinjj; a
certain stage, process or progress of tho niannfactnro thereof.
FRAUDULENTLY lUSl'OSING OF GOODS ENTRUSTED FOR
MANUFACTURE.
At i>n , A., did frnndnlontly
dispose of one hiuidied yards of tweed cloth, tho iiropcrty of l'>., which the
said A. had been tlieretofore entrusted with to manufacture.
STF.ALING IN OK FROM RAILWAY STATIONS, Ere.
At on . A., unlawfully did
steal one umbrella and one rug belonging to B., in (w "from,") a certain
railway station, to wit, a station of the Grand Trunk Railway Company {or
" the Canadian I'acltic Railway Company ,"j and situated at
aforesaid.
STEALING IN A SHIP ON A NAVIGABLE RIVER.
At on ' , A., unlawfully did
steal in a certain ship called the " Nepigon " twelve bars of iron of the goods
and merchandise of B., then being in tho said ship, upon the navigable river
St. Lawrence, (or " in a certain port of discharge, to wit, the port of Montreal.")
STEALING OYSTERS..
At on , A., unlawfully di<t
steal from a certain oyster-bed, called , tho property of P..
one hundred oysters.
STEALING A POST-LETTER BAG, POST-LETTER, Etc.
At on , A., unlawfully did
steal one jiost-letter bag, {nr "post-letter" or "parcel in transit through the
post,"') the property of the Post-Master General.
STEALING A P0ST-L1:TTER FROM A POST-LETTER BAG, Etc.
At on , A., unlawfully did
steal one post-letter, ihe property of the Post-Master General, from a post-
letter bag, (or " from a post-ofllce " or " from an officer employed in the jiost-
office of Canada.")
STATEMKNTS dl' (iKTKVCKS.
STEALING A POST-Ll'-TTHl! AViril MONKY IN IT.
185
fi
^j, on - ''■' "nlawfnlly did
steal one" post-letter, the property of the Po8t-^[a8ter General which post-
h.tter fontaine.1 a certain chattel, to wit. (I>>'^rribi- U), [or "certain money to
wit, [Amount), " or " a certain valuable security, to wit," {Descnlw it).']
STEALING MONF.Y, Etc., OUT Ol' A POST-LETTER, Etc.
. 'on t -^-i 'inlawf"lly did
steal a certain chattel, to wit, (D.Kvlhe it), [or "certain money, to wit,
( imoiml) " nr ■' a certain valuable security, to wit," (Disrribc <l], from ai.d
out of a post-letter (or " parcel,") the property of the Post-Master (General.
STEALlN(i TREES WOWTll MORE THAN $2.").
^^ oil , A., unlawfully did
steal one ash tree worth twenty-six dollars, the property of B., tiieu growing
in a certain field of the said 15., situated in aforesaid.
STEALING A TREE (WORTH *5), IN A PARK, Etc.
\^ ' on • . A., unlawfully did
steal one apple tree, of the value of six dollars, the property of 15., growing in
a certain orchard of ttie said 15., situated at aforesaid.
STEALING TREES AFTER TWO PREVIOUS CONVICTIONS.
At on A., unlawfully, did
steal one shrub worth fifty cents, the property of 13., then growing in a
certain plot of land situate in aforesaid ; that
at on
(before the committing of the above mentioned oflfence), the said A., was duly
convicted, before ('., one of Her Majesty's justices of the peace for tne district
of , of having at
on [Set out tht olflnce forminy the basis of thejirsl convi-
ction) and was adjudged, for such offence, to pay, etc., and in default of pay-
ment, etc., to lie imprisoned, e<c. ; that at
on (before the committing of the firstly above
mentioned ofl'ence, but after the next hereinbefore mentioned conviction,
the said A., was again duly convicted, before D., one of Her Majesty's jus-
tices of the peace for the district of
of having at on {Set out the
necond conviction) ; And, therefore, on the day and year firsi aforesaid, the
said i\.., did unlawfully steal the said slirub worth fifty cer'd, after having
been twice convicted of tlie ofl'ence of stealing a shrub, ( r " tree," f^c),
worth at least twentv-five cents.
1*^0 I'ltAcriCAl, (Jl IliK Til MAfilSTltATES.
STEALING WKE( K.
At on , A., unlawfully di<l
steal one coil of roiie, and ono com puss, lielnj; jwrtionH of the tackle of a cer-
tain ship, called the "Havk," the proparty of B., and other perKonB, which
sliip was then and there lying stranded and wrecked.
OR,
At on , A., unlawfully did
steal one bale of raw silk helonjjinj: to B., and forming part of the cargo of a
certain ship called the " J 'omcnrnian," then and there lying stranded and
wrecked.
8 UK TDK.
AIDING AND ABETTING SUICIDE.
At on , and on divers other
days before that date, A., unlawfully did counsel and procure B., to commit
euicide, in conseciuence whereof the said B., then and there, did commit
suicide-
ATTEMra 10 COMMIT SUICIDE.
A., at on unlawfully did attempt
to commit suicide, by then and there endeavouring to kill himself.
TIIEET BY A BANK OFFICIAL.
.\t, on A., being then and
there a cashier {or " assistant cashier," or " manager" or ' '•k," etc.,) of the
Bank, {or "Savin^.s Bank ), did imlaw fully
steal certain money, to wit, five thousand dollars, [or "bonds," or "obliga-
tions," etc., [Deacribc tlitm],) belonging to, {or "lodged," or " deposited") in the
said Bank, [or " Savings Bank."].
THEFT BY A CLERK OR SERVANT.
At on A., being a clerk, {or
" employed for the purpose and in the capacity of a clerk") to B., his master,
(or " employer"), did unlawfully steal certain money, to w it, one hundred dol-
lars, certain goods, to wit, one gold watch, and a certain valuable security, to
wit, one promissory note for twenty dollars, belonging to (or " in the po8se.s-
sion of") the saiJ B., his master, {or " employer.")
THEFT BY GOVERNMENT EMPLOYEE.
At on A „ being employed in
the service of Her Majesty, {or " the (Tovernment of Canada," or " the Gov-
ernment of the Province of Ontario," or " Quebec," or " the Municipality of
I
STATEMENTS (IK (iKKE.NCK.S. 18T'
") and boin^, by virtue of his said employment, in poH-
sosHion of certiiin moneys to the amount of ten thousand dollars, [or "cer-
tain valuable securities, [Describe them]), did unlawfuily steal the said
moneys, elc.'')
THEl'T IJY HOLDER OF A POWER OF ATTORNEY.
At on , A., having been
then tofore entrusted, by B., with a power of attorney to sell certain land
am' buiitliugs, to wit, (Dewrihc the properti/,) and haviuf,' theretofore sold the
spid land and l)uildin>;8, did, fraudulently convert tiie proceeds of the said
sale, to wit, till! sum of two thousand dollars, to a purpose other than that
for which lie was entrusted with the said power of attorney, by applying
and converting.' tlie said money to his own use.
THEFT BY MISAPPROPRIATING MONEY HELD UNDER DIRECTION,
At on A., having theretofore re-
ceived from B., the sum of one hundred dollars, with a direction from him
tiie said B., to ilio said A., tluit tlie said money should be paid to (',, did,
in violation of good faith and contrary to the terms of the sa'd direi^tion,
fraudulently and unlawfully convert to his own use and thereby steal
the said sum of money.
THEFT BY A PARTNER.
At on , A stole one car load
of coals of the value of the property of a co-partnership
composed of the said A. and one B.
th:;ft by a tenant.
-^^ "" A., being then and
there a tenant, (oc "lodger") of or in a certain house (or "lodging,") to wit,
(Dcitcribe the pmnms), did unlawfully steal a certain chattel, (or "fixture")',
to wit, (Iks'rihe it), belonging to B„ and let to be used by him the said A.
in or «ith tiie said house, (or "lodging.")
- , * THEFT OF A DOCUMENT OF TITLE.
^^ 0" , A., unlawfully did
steal a certain document of title to goods, (or " to lands"), to wit. one bill of
lading, (or "deed." or "map," or "paper." c<c.,) containing evidence of the
title, (or " a part of tlie title") of B., to certain goods, (or " real proi)erty,") to
wit, (d>'scribe the property), belonging to the said B. (or " in which the said
B. has an interest.")
■ ■ 13
188 PRACTICAL (iUIDE Tli MAorSTKATKS. : ] , /
THEFT OF JUDICIAL DOCUMENTS, Etc.
At . on , A., unlawfully diil
steal, a certain record, (or "writ," or "petition," ilc, forminji i)art of a cer-
tain record") of and helon^inir to the Superior Court of Lower Canada, for
the District of Montreal, in a certain cause {iJencribc the cauw, matter or pro-
ceeding,) then (or "theretofore") depending; in the said Court.
THEFT OF THINGS UNDER SKIZURE.
At on . , A., w'ithout lawful
authority, did unlawfully take or car'-y away, one horse of the value of
belonging to the said A., (or "one B,") and tlien and there be-
ing under lawful seizure.
THEFT OF A WILL.
At on A., did unlawfully
steal a certain testamentary instrument, to wit, the last will and testament
[or " a codicil to the last will and testament") of B.
THRI-'.ATENING LETTER. (1)
At on , A,, did unlawfully
send to (or "cause to be received by") B., a certain letter (or "writing") de-
manding of him the said B., with menaces, a certain sum of money, to wit,
, the said demand teing witb.out reasonable or probable
cause, and he the said A. then well knowing the contents of the said letter
(oc "writing"), which is as follows. (Set il out.) .,
DEMANDING, WITH THREATS, WITH INTENT To STEAL.
At on , A., with menaces,
tinlawfuUy did ilemand of me, this deponent (or " B."), one liundred dol-
lars, with intent to steal the same from me, ("r " the said B.")
TRADE MARK,— FORGERY OF.
At on , A., unlawfully did
forge (or " cause to be forged"), a certain trade-mark, to wit, (Describe it).
FALSELY ArPLYIN(i A TRADE-MARK.
At- on , A did unlawfully,
falsely apply (or " cause to be applied ") to certain goods, to vf\t,(I)eitcrihe them)
a certain trade-mark to wit, (Describe il), ("r "a mark so nearly resembling a
certain trade-mark to wit" (Describe it), "as to \>& calculated to deceive.")
(1 ) For "Extortion by Threats," see p. 161, ante.
STATEMENTS OK OKKKNCES. 189
TREASON.
On at . within Her Majesty's
Jioininions, A, with clivers other false traitors unknown, and armoil, ariayed,
ami assembled together in warlike niaiinor, did nniawfiilly and traitorously
levy and make war against our Sovereign Lady the (^ueen, with intent
tliereby to depose Her Majesty from the st>le, honor and royal name of the
Iiiii)erial Crown of the United Kingdom of Great Britain and Ireland and
of Her other IXmiinions.
ASSAULTS ON TFIE QUHEN.
( )n at A., a certain pistol,
which he the said A., in his right hand then had and held, unlawfully, and
wilfully did point, aim, and present at (*'ator near lo") the person of our
l.iiily the Queen, with intent, thereby, to alarm our said liady the Queen.
INCITING TO MUTINY.
A., on at , unlawfully, and for
a traitorous and mutinous jmrpose, did endeavor to seduce one B., he the said
B. then being a person sers'ing in Her Majesty's forces on land, from his
duty and allegiance to Her ^lajesty.
UNLAWFUL OATH,— ADMINISTERING OR TAKING.
A., on at did unlawfully take,
(nr '' administer and cause to be administered to B."), a certain oath and
engagement purporting to bind the said A., [or " I!.") not to inform or give
evidence against any associate, confederate or other i)er8on of or belonging
tn a certain unlawful association or confederacy, (Add, — in cam of u cliargefcr
ixkiiKj thr <Hi(h,~" he the said A. not being then comi)elled to take the said
oiilh and engiigenient," <ir,—ih ruse of a chanjc for wlimimttrimj,—'- and whicli
snid oiUh and engagement was tlien and there taken by the said B.")
WOUNDINii, AVITH INTENT TO MAIM, Etc.
^'" at A., with intent to maim
(or "disligure," or "disable" or "do grievous bodily harm to") B,, uid.iwfully
did wound (or " cause grievous bodily harm to") the said B. (or " unlawfully
<iid, with a certain loaded gun, or putol or revolver, shoot or attempt to
discharge a loaded arm at the said B,"]
OR,
. ° at , A., with intent to re-
sist the lawful apprehension (or " detainer") of him the said A. (or " of B.")
unlawfully ,lid wound (or "cause grievous bodily harm to") C. [or "unlaw-
100 PKACTICAr, litlPK TO MAGISTRATES.
fully did witli a certain loaded gun or pistol, or revolver, shoot {or attempt to
discharge a loaded arm at) C]
WOUNDING, WITHOUT INTENT.
On at , A., unlawfully did
wound [or " inllict grievous bodily harm upon ") B.
WOUNDING A PUBLIC OFFICER.
At on , A unlawfully did maim
(or " wound") B., a public oliicer engaged in the execution of his duty, (or
" a i)erson acting in aid of C, a public olficer engaged in the execution of his
duty.")
CJlAl'Tlvli IX.
(Part XL V of the Code)
I'llOC'EKIHliE (i\ Al'I'EAHANCE i>l' A(('rsEI>.
I'ltEI.I.MINAHV EM^iriliV.
577. — M lii'ii I'rt'li ill ilia i\v I'^iiqiiiry i** !»*' Il«>l<l.
— Whoii any ])its(iii aoi'usi'd ol' an iiHJii'taldo oIloiK'f is iu't'oiv a
\ns\\vc, \\\\r\\\vv voluntarili/, ov upon summons. i>r al'tcr iiciuu- apprc-
Iwnded, with or iritkout warrant, up wivk in custodij tWr ihr same nr
aii\' DthiT Dli'ciicc, till' justice slial' |ii'i>cci'il tn iiwpiirc into the
matliTs eliargi'd a!j,'aiiist siicli piTson. in tlu' iiiaiiiu'r licrcinat'tei-
(IcIilH'd.
l*i*o|»«'i*<.v I'oiiikI ii|»oii a l*i*i!S4»ii«>r uli«'ii .i|»|ii'«'-
llciKlt'll. — if, ujion iiis ap|)i'i'lu'iisii)ii, tlio aci'U.st'il has ln'cii di'-
iirivL'd liy the ciiiistaliio of his money and other \ !ilnal>les, it will
be ]>ropi'r, undov certain ciniiinstaiu'cs, to make an ajijilicatioii to
the magisti'ale tof theii' festoration.
Tliere can lie im dnuiil tlial, when a peison is a|i|)i'ehendeil upon
a criminal charii'e, it is rii;hl and proper that all weapons as well
as evervthinu" conneeteil with or liaviny a tendency |o (lirow light
>p)on the siilijeet matter of the ehari>;e shn\ild be searched for and
taken from liini, and lie kept in safety until I he chari;'!' is in sum (■ way
PKELIMI.VARV ENQUIRY. 191
<li-.|)ii>((l 111', or somo order niade in reference thereto. Hut to deprive
;i |iri-nncr of liis])ro]KM;ty forany other pnri>ose is Ijoth iinjiistitiiible
mid ( Tiu'l., as he may lie tiiereliy deprived of his best, if not his only.
iiH'iiiis of (U'feuce. ■
To searcii a |)arty on his api^rehension, and, without scruple, to
lake from him every particle of property in his ])o,ssession, without
rciiiinl to the nature of the charge upon which he is ap|ireliended
is not riii'lit, and is too frecjuently the course adopted by constables
and other otficers,
r|i(in tills subject, .^^r. Justice Patteson, in a case which came
iHturc liiiu, remarked as follows : "The prisoner complain.s that
his money was taken from him and that he was tlierel)y deprived
of the means of nmklnii his defence. (Jenerally speaking, it is not
right that a nnin's money shoidd be taken away from him, unless it
is connected, in some way, with the property stolen. If it is con-
nected with the r(ddiery, it is (|nite ])ro])er that it should hi' taken,
lMit,\udess it is, it is not a fair thing to take away Ids money which
lie nught re(juii'i' for his dcfen<-e." (1)
Sonic imjiortant observations wen' also made, u])on this snbji^ct,
liy Lord Campbell, ( '. .1., in the case of Hesscll v. Wilson. (2) In
that case, which was an action of ti'esjtass. the plaintiff had been
sniiinioned for an infringement of the (lopyrijht of Designs Act, and
ordered to pay a tine and costs, upon non-|>ayment of which he
wa> -^iiiiimoned to show ciuise why he did not pay according to the
aiijuilieation : and, as he did not attend persomdiy, but only by
counsel, toshow cause, lie was arrested, undera warrant to compel liis
liei'Miiial attendance, and taken to |M'ison, where he was searched
aiiil detained until iirought before the magistrates. Suitsequently,
the conviction was (juashed ; and hence the plaiiititf'saction of tres-
pass, in tlie eourst> of which, his Lordship said; "At the conclu-
Moii iil'tlif trial of this case, fexpressed my disapprtdiation, — whidi
I now ic|iei(t, — of the luannci- in wlii(di the plaintiff was searched
"lien taken to the station-honst'. Tiiere is no right, in a case of
tins kind, to inflict the indignity to which the plaintiff wassubjected.
(1) R. V. O'Donneil, 7 C. & P.. 138. See also R. v. Kinsey, 7 C & P„ 449
R'V. <iritlitli8, 9.1. 1'. (iti.
(2) Bcssellv. Wilson, 17.1. l'.. 52,567.
192 PEACTICAr. GUIDE TO MACUSTRATES.
But 1 am intoi'iiuMl that an I'l-roneoiis iiii|trossi(Tii of what I said lias
i^'onc aliroail, and tliat it has Ih'cmi siijiposo/l tliat I. assortoil that
tiieiv was no ri<jht in any one to search a prisoner. I havo not said so.
It is oi'ton liic duty of an otliccr to suan-h a prisoiu'r. If, for in-
stanc't', a man is takt'U in Ihi' commission of a iVlony, lu' ma\' In'
scarrlu'd to see whcthov the stolen articles are in his possession, oi-
whether hi' has any instrument of violence ahout him. I have
never said that scarehini;- a prisoner was a foi-hiddcn act What 1
said applied to circumstances such as existed in the present ca->e.
If a tradcsnuin he charged with au otlence such as that with which
the ])laintitV in the jiresent case was charged, and he apjjcar hy
counsel and not in person and a warrant Ik- issued against him, not
chai'ging him with any crime, hut merely to make him appear in
person, the act of sear(diing him is contrary to law."'
If, therefore, tlu' accuHod has been deprived of his property upcm
his apprehension, an a|)i)liciition should l)e nuide to tlu^ Uiagistrate
to order its restoration ; and if it ajiitcars to the justice, after due
consideration of the circumstances, thai there is no connection lie-
twei'U the suhjcct matter of the charge and the jpropcrty applied
for, and that su(di propi'rty is not the produce of crimes which may
form the subject (d'enipiiry, he will act wisely in ordering it to he
restored, jirovided, of course, that tlu' projK'rty itself is not of a
dangerous nature.
57<S. — lrr«')i;iiinrit^Y in l*ro<Mii*iiiK; A|»|»«>Hi'aii<*t'.
— No irregularity or defect in the substance or form of the sum-
mons or warrant, and no variance betwei'U the charge contained in
the summons or warrant and the charge contained in the informa-
tion, or between either and the evidence adduced on the part t>\' the
prosecution at the inquiry, shall iitfect the validitv <d'any ])Toceed-
ing a( or subsequent to (he hearing.
This Article does away with all possibility of taking any technical
objection to the information or complaint, oi' to the case as madt'
out at the preliminary cn(|uiry. Jf the evi<lence ailduced tends to
show (he comnnssion, by the accused, of an indictable otfcnci' —
whethei' it be tlu' same as, or ilitferent from, the one (diarged by
the information ()r comi)laint — the magistrate is bound to proceed
upon and examine the evi<lence adduced, and to cithi'i' dis(diaigi'
PKKLIMIN.\RY ENQUIRY. 193
f .11' ;i(i used — if lie ciiiisidtM's tl\t' evidence insufficient — or commit
iiim fill- trial fni- (lie crime disclosed liy such evidence — it' he con-
.-'(Ici's it sufficient.
HiJii' — il«1j«»iiriiiii«^iit. ill CiiNO of Varinii«*<'. — Tf it
iipiiciirs to tlie justice that the person charged has heen deceived or
iiiiskMl hy any such variance in any summons or wai'rant, he may
adjourn the hearinu; of the case to sonu' future "lay, and in tlie
meanlimc may I'cmand siu-h person, or admit him to hail as herein-
after nientioned.
•IMO.— l*ro4'iii*iii};- tUv Attt'iidaiK't' of WitiicNNt'N.-
If it a|»|)ears to the justice lliat any jierson, being or residing w/Y/art
the province is iiUeiy to give material evideru'e either for the prose-
cution tiy for the act-usi'd on such iii(|uiry, lu' nuiy iss\u' a summons
under his hand, requiring such pei'son to ajipeai" hefoi'c him at a
time and place nu'ntione^. therein to give evidence res]>ecting the
charge, and to lu'ing with him any docunu'uts in his possession or-
luider his control I'eiating theri'to.
2. Such summons nuiy he in the kok.m K in sciieiule one. or to
the iiki' etfect. (1)
HHi, — N€'i'vi«*o of !!4lliliiiloiiN for WitiiCNS. — Eveiy
Mich summons shall he served hy a coiistahle or other peace otticer
upon llie person to whom it is directed, either personally, or, if such
person cannot convt'iiicnlly he met with, iiy leaving it for him at
iiis last or most usual place of aliode with souuf inmate thereof
aiiparcnlly not under sixteen years of age.
Sec .\ ft. 5(12. and notes and authorities thereon, at p[i. 107. 108,
onte, as to si'rvice of summons.
A witness, upon heing serveil with tlu' summons or with a siih-
pieria, cannot refuse to attend until his e.xptnses are paid : and it
is not necessary, tlu'ivfore. to lendi'r him his expenses. (2)
'>Ht2.— Wurruiil for 1%'ifiK'NN after Niiiiiiiioiin. —
ilaiiv one to whom such last-mentioned sumnu)ns is direcleil does
(1) I'or Form K, see p. 221), post.
(-') H. V. .lames, 1 (". it P., 322 ; R. v. Took, 1 C. & P., 321.
194 ' PRACTICAL OUIDE TO MAGISTRATES.
not appear at tlu' timo and jihifi' appoiiiti'd tlu'i-i>^iy. au<l no j\ist
oxcuso is ofVeivd for siudi nou-appcaranci'. then (after proof upon
oatli that snc-li ^sul^nlons lias buiMi sorvt^d as aforesaid, or tliat tlu'
person to whom the summons is directi'd is Icrepinii' out of tiic wav
to avoid service), the justice, before' whom such jicrson onylit ti>
have ajjpeared. being .satisfied by proof on oath that he is liixoiy to
give materia] evi(h>nce, may issue a warrant under liis hand to
bring siudi ])erson. at a time and place to Ite therein mentioned,
.before him or any other justice, in order to testily as aforesaid.
2. The warrant may be in the fokm L in scuedii.k one. (1) </r to
the like effect. Such warrant may be executed anywhere within
the territorial jurisdiction of the justice by whom it is issued, or. if
necess;iry. endorsed as ])rovided in section 5(1;"). and executed any-
where in the province but out of such jurisdiction.
3. If a person summoned as a witness under the provisions of this
part is brinight before a justice on a warrant issued in consecpience
of refusal to obev the summons, such person mav be detained on
such warrant before the justice who issued the summons, or Ijefore
any other justice in and for the sanu- territorial division who shall
then be tliere, or in the common gaol, or any other place of contiue-
meut, or in the custody of the person having him in charge, with a
view to secure his presence as a witness on the day fixed for the
trial ; or. in the discretion of the justice, such per.son ma}' be released
on recognizance, with or without suretu-s. conditioned for his
appearance to give evidence as therein mentioned, and to answer for
his default in not attending upon the said summcms as for contempt ;
and the justice may. in a summary manner, examine into and dispoBe
of the charge of contempt against such ])erson. who. if found guilty
thereof, may be fined orimpri.soned, or both, such fine not to exceed
twenty dollars, and such im])ri.sonment to be in the common gaol.
Avithout hard labour, and not to exceed one month, and may also
be ordered to pay the costs incident to the .service and execution
of the said summons and warrant and of his detention in custody-.
(The conviction under this section may be in the for.m IT in
scnEni:LE one. (2)
(1) For Form L, see p. 230, poH. For Form of Deposition that a person is
a material witness, see " Additional Forms" at end of this chapter.
(2) For Form PP, see Forms at end of Chapter X, poH.
PRELIMINARY ENQJriRY. — WITNESSES. . 195
o.h:<. — War rant I'wr Witii<'NN(>N in FirMt liiNtunoe.
— It'tlu' justico is satisHi'd by evideiK'e. upon oath, that any person
witliin till- i)i'ovin(.'0. liUoly to giyi- mutorial oyidcnee either for the
proseention or for the aceused, will not attend to give evidence
without being compelled so to do. then instead of issuing u sum-
iimns, he may issue a warrant in the tirst instance. (1) Such wav-
canl nniy he in the form M in sciieoii.e one of the Code. (2) or to
the like effect, and may he executed anywhere Avithin tlie Jurisdic-
tion of sucli justice, or. if necessary, endorsed as provided in section
.")(>'). and e.Kecuted anywhere in the province hut out of sucl> juris-
diction. I .
!iH4m — l*ro4*nriiig; Att('ii<lan4*t' of Witnc'NM«'N bc-
;^'Oii<l til*' I*ro%'iii<'t'. — Jf there is reason to helieve tluit any
|iersoii resiiling anywhere in Canada, out of the province, and not
lieing Avithin the province, is likely to give material evidence either
Inr the prosecution or for tlie accused, any judge of a superior
court or a county court, on application therefor hy the informant
or complainant, or the .Vttorney-(ieneral, or hy the accused per-
son or his solicitor t)r some person authorized hy the accused, may
cause a writ of sul)j)(ena to be issued under the seal of the court of
which he is judge, requiring such per,son to appear before the jus-
tice l.)efore whom the incpiiry is l)eing held or is intended to be held,
at a time and place mentioned therein, to give evidence respecting
the charge and to bring with him any documents in his ])osses8ion
or under his control relating tliereto,
2. Such suhpiena shall be served personally u])on the person to
whom it is directed anil an attidavit of such service by a person
etfecting the same. purj)orting to be made before a justice of the
|>eace. shall be sufficient proof thereof.
;{. If the person .served with a subpcena, us provided by this .section.
does not appear at the time and place specified therein, and no just
excuse is offered for liis non-appearance, the justice holding the
inquiry, after proof upon oath that the suhpiena has been served,
may issue a warrant under his hand directed to any constable or
liiace officer of the district, county or place where such person is, or
(1) Tor Form of Deposition, see " Additional Forms," po.f<. '
(2) For Form M, Bee p. 231, po.<i<
10(5 PRACTICAL OUIDK Tn MAGISTRATES.
to all constablen or peace offlt'ers in suc-li district, county oi" jilacc,
directing them or nuy of them to arrest such })erson and bring liim
hcfore tlie said justice or any other justice, at a time and phico
nu'utioned in sucli warrant, in ordei* to testify as iifonsaid.
4. The warrant maj- i)e in tlie kob.m N i.\ sciiemi i,e one. (1)
or to the like effect. If necessary, it nia}' lie endorsed in the
manner provided by section oti'). and executed in a <listrict. county
or place other than the one therein mentione<l.
l*ro«*iiriii{^ Alt«'iidan<*«> of* ii l*riM»ii<'i* tiis a Wit-
iil'NN. — When the attendance of any person confined in an}' pri-
son in Canada is re(|uired in any court of criminal jurisdiction in
any case cognizable therein by indictment, the co\u't before whom
such prisoner is required to attend may, or any judge of such court,
or of any superior court or county court nniy. before oi" duriny
any such term or sittings at which the attendance of such person
is i-eciuired. make an order ujion the warden or gat)lcr of the pri.'^on.
or u))on the sherilf or other ju-rson having the custody of such
jtrisoner. to deliver such prisoner to the ))erson named in such order
to receive him : an(l such person shall, at the timi' prescribed in
such order, conve}- such prisoner to the place at which such j)erson
is re([uired to attend, there to receive and obey siuh further order
as to the said court seems meet. (Code, Art. (180.)
T»kiii;i( Kvid(Mi4'4'. iiii(l«'r ('oiiiiiii.sNioii, of |>4>r-
N01I l>»lig;i'roUNly 111. — Whenever it is made toajtpear at the
instance of the ci'own. or of the prisoner or defendant, to the satis-
faction of a judge of a sui)ei'ior court, or a jutlge of a county court
having criminal jurisdiction, that any person who is dangerously
ill, and who. in the opinion of some licensed medical iwactilionei",
is not likely to recover from such illness, is able and willing to give
material information relating to any indictalde offence, or relating
to any ])erson accused of an}' sucli oflence. such judge nuiy. by
order under his hand, ap))oint a commissioner to take in writing
the statement on oath or affirmation of such person.
Such commissioner shall take such statement and shall subscribe
the same and add thei'eto the names of the persons, if an}', present
(1 ) For Form N, see p. 232, post.
EVfUKNCE INKKII r<lMMlSSI(»\. IHT
at till' taking thoreot', anil, if tlu' (lei»ositioii ivhitcs toanv indiclai)!*'
(ittencc tor wliicli any acciiM-d in-rsoii is already eiimiiiitti'd or
haik'il l(» a[i]it'ar foi- trial, sliall traiisniit tin- >aiiu'. with tlicsaid
addition, to the |in)|H;r otllcrr of till' I'onrt at \\iii(di sncli accnscd
person is to lii' tried : and in o\ei'y oilier case lie sliall transniit liie
same to the elerk of the jioace of the eonnty, division or city in
whieh he has taken tlie same, or to suidi other otlieer as hasehar'j;e
of the reeords and ])rofeedin<;'s of a superior court (d' criminal jur-
isdiction in such county, division or city, and such clerk of the
peace or other otticer shall pr.iserve the same and rile it (d' record,
and upon order of the court or of a Judifc transmit the same to tjie
proper otHcer of the court where the same shall he reijuircd to he
useit as evidence, (("ode, Art. (iKl.)
l*r«>Neii<*4' of* I'riNoiici* a( nik'Ii FiXaiiiiiiatioii. —
Whenever a [irisoiier in actual custody is served with, or receives,
notice of an intention to take the statement mentioned in the last
jireceding section, the Judn'c who has ajipointi'il the coinniissionci"
may, hy an order in writing', direct the otlieer or other person hav-
iiii!,- the custody of the jirisoiier to convey him to the [ilace men-
tioned in tiie saiil notice for the purpose of liciiiL!,' i)rescnt at the
taking of the statement ; and such officer or other jicrson shall
convey the ])ris<)ner accoi'dinglj'. and the expenses of such convey-
ance shall lie ]iaid out of the funds apjilicalde to the other expenses
• d'the jn'ison from which the prisoner has been conveyed. (Code.
Art. (582.:)
Koudiiig; WcpoNitioii 4»f' a Kick WitiiCNN ait tlio
Trial. — Jf the evidence of a sick person has heeii taken under
eommission. as provided in the aliovc section. (!S1. and upon the
trial of any ottender for any offence to which the same relates, the
[lersoii who made the statement is jiroved to lie dead, or if it is
proved that there is no rcasonalde jirohaliility that siudi jierson
will ever he able to attend at the trial to ,i;'ive evidence, siudi state-
ment may, upon the production of tlie judge's onler ajipointing
such commi.ssioner, he reail in evidence, either for or against the
accused, without further proof thereof, — if the same ])ur[iorts to he
signed hy the commissioner hy or hefore whom it purports to have
heen taken, and if it is ]iroved to tiie satisfaction of the court that
1!>S I'llACTtCAl, (iUIKK TO .MAlilSTUATKS.
7 ensonaltle tiotice oi' i\n- intention to inkr siicli statrnu'iit teas served
upon tlic jK'i'son (wIu'IIht proHeciitoi' of iiccuscd ) iigaiiist whom it
is |ivi>|ioso(l to l)c I'l'iul in I'V'idiMici'. and that siicii pi'i'son oi- Ids
C'ounsi'l ov solicitor hatl. ov nii,ii;hl have hail, il' he had eiiosen lo be
present, full opiMirtiinity of eross-exainining the person who iniule
the same. (Code. .\rt. fJSd)
In viewed' the proviso at tiieend of this Article, (»S(!. no state-
ment pr(dessedly taUcn undi'r the provisions thereof and under
the provisions of Article (iSl. can he availahk' as such at tlu' trial,
unless, hcfore taUinn" it, uotiec has been given of the intention to
taUe it ; (]) and such notice must he in writing; otherwise the
stalcnieut cannot at the trial he read against tlu' prisoner, although
he may have l)een piv.sent when it was taUen and have had a full
o]i]>ortuidty of cross-examination. (2)
Tuliiiiu' fiVi4l«'ii<*o. l'n<l<'r 4'oiiiiiiiNNioii, of ^Vit-
IICMM'M out of* (*lliia4la. — Whenever it is made tu ap-
jicar. at the instance of the crown, oi- of the prisoner or defen-
dant, to the satisfaction of tlie Judge of any su])erior court, or tlie
judge of a county court having criminal jurisdiction, that any ])er-
son who I'csidcs out of Canada is able to give nmterial information
Vidating to any indictable otl'ence for which a prosecution is pend-
ing, or relating to any per.son accused of such offence, such, judge
m::iy, liy ordei- under his hand, ajjpoint a commissioner or commis-
sioners to take the evidence, upon oatli, of such jjcrson
rntil otiierwise provided by rules of court, the practice and
]tvocedure in connection with the appointment of commissioners
under this section, the taking of depositions by such commissioners,
and the certifying and return tliereof, and the use of such de])osi-
tions as evidence at the trial shall be as nearly as practicable the
same as those whi(di ])revail in the respective courts in connection
with the like matters in civil caust's. (tV)de, Art. (JSH.)
^HH. — Coiniiiitiiiont of'a M'itneNN K('tiiNiii}>; tobc
KxainiiK'd. — Whenever any person api)earing, either in obedi-
ence to a summons or subpcena, or by virtue of a warrant, or
(1) R. V. Quigley, L. T., N. S. 211, Mellor & Lush, J.I.
(2) R. V. Shurmer, 17 Q. B. D. 323 ; 55 L. J. M. ('. 153.
IHSI'HKTIONAKY I'OWEK.S < F THE KXA.MI \[.\tl .H STK K. l'.M>
ln'iiiH' |>n'sfiil and liciiii^ vi'i'lially ri'qtiircd liy I lu' jiisticc to i;ivo
cxidnu'i', I'l't'usi's to lie sworn. i>r having liccn sworn, ri-fuscs to an-
swer siu'li ([uostions as arc ]iut to him. or rct'usi's oi' ncgU'cts to
]i1'o(1mcc any docnnicnts which ho in rtM^niri'd ti> |iroduci', or ict'usrs
to sii;-n iiis depositions, without in any sn(di case oll'eriny any just,
I'xruse tor su(di refusal, sueh justice may adjourn tin- proceeilings
for any period not exoeediny ei^iit clear days and may in tjie
meantime hy wai-rant in form O in sciiedi i.E one of the (,"ode,
(I) or to the liUe etlV'ct, commit tlu' ])i'rson.so refnsiiiii-. to n'aol, un-
less h(! sooui'r consents to do what is re(|nirc(l of him. If such
person, upon heing hrought up. u|ii)ii such adjourned hearing,
again refuses to do what is so re(|uired oi' him. the justice, if he
sees tit. may again adjourn the })roceedings, and commit liim for
the Jikt) jicriod. and so again IVom time to time until such |ierson
consents to do what is rt'cpured of him.
2. Xothing in this section shall prevent smdi justice from si-nding
any su( h ease tor trial, or otherwise dis])osnig of the sanu' in the
meantime, according to an}' other suflicient I'vidence taken liv him.
•>.S(>. — l>iK<*i*«'tioiiui\y l*ow«'r«« ol llio •liiKli«*4> at
llio PiTliiiiiiiar.v i^xaiiiiiiatioii. — .V justii < iiojiiing i|h.
prelimintiry iu(|uiry may, in his discretion :
(rt. ) permit or refuse pernusssun to the prosecutor, his c<iun>el or
attorney to address him in support of the (diarge, either liy wav ot'
opening or summing \i\) the case, oi- by way of reply upon anv
evidence which may he produced liy tlu' jierson accused :
(b.) receive further evidence on the part of tiie [irosecutor afti'r
iiearing any evidence given on hohalf of tlie accused ;
{c.) a<ljourn the hearing of the matter. tVom time to time, and
change the place of hearing, if, from the alisence of witnesses, the
inahility ofa witness who is ill to attend at the place where the
justice usually sits, or from any otlier reasonahle cause, it appears
desiralile to do so, and may remand the accused, if re(|uired. Ii\ war-
rant in the I'or.m J* in .>^CIIE1)L l.E one of the Code : (2) I'rovided
that no such remand sliall he for more than eight clear da\s, the
(1) For Form 0., see p. 233, post.
(2)' For Form P, see p. 234, post.
-(M> IMIACTICAI. iJI IIpK Th M A II ISTIl ATK.S.
(liiy rolliiwiiij^ tli;ii mi w liidi ilic i-ciiiiin<l is mimiIc licini;' I'luiiilcil as
1 lir lii'st (lay ; a ml t'urt Iht |iMPvi(lri|, I ha I it' the rem a ml is I'nr a liiiic
ihil cxccciliiii!,' llii'<'r clear ilays^ I he justice ina\' vcrlialh' ni'ilcr
llic ciiiislalilc iii'Dtlici- |M'i'siiii ill wliiiM- ciislddy tlic accused IJicii
is. iiy any nilier iii!i>,ialile nv |iersini iiaiiieil liy I lie justice in thai.
Iiehall. lu i<cc|) the accused iiei'snn ill his cusindy and lo iii'iiii;- liini
liid'nfe I lie same or siii'h other justice as shall he t here aiMiiii; at I lie
tunc a|i|ioiiiied I'm' cuni iniiiiii:' the cxaiiiiniitiMU ;
(<l.) order thai iio |pei-mi, of/n'r tli<iu fin; /iroairiitor and ocuscil.
t/ti'ir counsel ond solid f'lr, ^hall have accesN to nr remain in the room
or Imildiiiii' in which i lie iiii|uiry is held, (wjiich slut 1 1 not he an ()|)en
court), if it ajijiears lo Inm thai l he ends o|' justice will he hest
answered hy so (loiny ;
(('.) reu;nlali' I he eoiir^e ol' I he iiH|niry in aii\' \\a\' \\hi(di nia\'
a|i|pcar lo him desirahle, and w hi( h is not iiieimsisti'iit wil h liie pi'u-
vi^imis (d' I he < 'ode. •
ll will he seen hy I his a ft icie ( pa I'. '/j t hilt I he justice's power to
exclude pefscnis from I he place of holdiun' the pivdiminary i'm(uiry
docs not extend to I he cminsel or solicitor of cit lier of the pari ies ;
and that. here, as well as in .\rticle .')!((!. post, there is a distinct
rccou-iiiiiiiii iif ill,. dcf(.ndanl s riii'iit to he represeiil"d. !it tlie pre-
liminary em|uiry. hy hi-- eoun>cl or solicitor.
A4*4MIK('4l l*«'r!^4»ll*<i I'lMlf'l* Sixl4'«>ll 1 4» l»«> li«'|»t
M4'pail*ill<'. >ouiii:- persons apparently under I lie an'c of sixteen
w ho are : —
(a) arrested upon any warrant, or
(A) cimnnitled to custody at any sta^'c of a preliminary emjiiiry
into a (diar^'c for an indiclahle otfence. or
(c) committed to custody at any stai^e of a trial, either for an
indlctahlc ollence oi' for an olfeiice punishahle on suiiimary con-
\i( timi. or
(a') committed to custody after siudi trial, hut hefcu'e impriscui-
ineiit uinler sentence. —
SHAM, lie kept in custody separate from older pci'.sons charn'cd
with criminal olieiices ami scjiiiratc from all persons un(ler(joinij
I'ltKI.IMINAIIV KNI^I IIIV. IIAII. UN llEMANIi. 20.1'
Hi'titences of imprimnmcnt. jiimI sii.m.i. mit he ciiiirnuMl in tlic locU-
ii|is or |)(>lic(' sliitioiis witli iildci' imtsiuis cliiir^fd witli criiniiiiil
(itlciici's. 11(11' witli iii'diiiary (•i'imiii;ils. (I)
Ai'liclf ri.">(l (iT I lie Ci'iiniiiiil ('(i<ic. as oriijinally passi-d. diff(t<'(|
I lie trial id' |h'1S(ims apliarciil ly iiiidcf si.\t(H'ii vi'ars of iif^c to tiil<n
|>lac<' wit limit |iuliiicity. and sc|tai')ifrly and apafl IVoin tliat of
i-tlifi- ar(iiM'i| |M'i's(ins. so I'd r <ts if xhoulil iipfii'dr cxiiedient and /iracti-
< itlilc. Hut tliis aftitli' lias, at tlic last session ol' Parliament. Iteeii
lelVaiiH'd, l.y stfiUinu,- out tlie words almve italicized, and thus
inakini!,' it i \ii'K(t ati \ K tliat tlie trials of all yoiinii,' persons,
appai'ently under tlie ai,'e td' si.\teen years, siiai.i, take plai-e
witlioni pulilieity. and separately and apart IVom llie trials o|'
otliei- ae( Used persons, (li)
.>M7'« -Ifiilil **** llt'lliaild. — II' tlie aceiised is remanded
under tlie next preeedini;' sect ion. t lie justice may discdiar^-e iiiiii,
upon liis eiiterinu,' into a reeoi;'iiizaiiei' in tlie koii.m (^ in sciiKlni.K
o\K.(;!) with (U' wit liont siir«-ties. in the discretion of 1 lie Justice,
eonditioiicd for his appiaraiiet' at the time and place ap|iointeil for
the eontinuaiice <>!' the exainiiiatioii.
•IMS.- ll«'iiriiiK- ytny hv <lr4l«'i*«'d to l*r<M'<'«'d
during; ill«' lime 4»f' lt«'lliail«l.— The Justice may order tin*
accused jierson to Ix' liroiiu'lit Ixd'ore him. or liefore any othiT
justice for the same territorial division, at any time hefore tlm
expiration id' llie time for whitdi such person has heeii remanded,
ami the u;aoler or otlicer in whose oiistody he then is shall <luly
oliey sindi order.
rSMII.— Ilr«>a4*li 4>r lt4'<*4»)>;iiiK»ii<'<' 4»ii If4'iiiaiii4l. — If
tlu'aci'used person does not appoar at the time and place mentioned
in the recogni/.anOe. the said Justice, or auy other justice who is then
and there presi-nt. having- certified upon tlie hack of the reeogni/',-
aiici' the iion-ap|iearaiice of sindi accused person, in the fokm U in
scilKitri.K ONK of the Code, (4) may transmit the recogiiiziiiico
(1) 57 & .-),s Vic, c. 58, sec. L'.
(2) 57 & 58 Vic, c 58, sec 4.
(o) For form Q, see j). 2155, pOKt.
(4) For form R, see p. 230, post.
•202 I'HArTir.M, (irn»K to .maqistrates.
to till' dork of llif couvt wlicrf tlu- accusi'd porsmi is to lie tried,
orotlu-r projuM" ulticcr a|iii()int(.'(l liy liiw. to l)c proci'i-dod iipoii
in liUi' luiuiiu'r as otluT rocogiiizaiici's ; and su(di ci'rtiticati' slnill
\n' prima facie i^yuWuci.' ol' the non-appcai'anco of (he aci'iisi'd |it'r-
sou. ■ . ' ' ■
51*0. — KvidoiK'i' Tor tlie l*ro>*o<*iilioii.— Win n ilio
accnsi'd is bctbri' a justice lioidinii- an in(}niry. siudi jiisliio shall
take the evidenei' of the witnesses called on the i)art ot' tlu'
prosecution.
2. 'I'hi' evidence (tf the said witnesses shall lie iriven upon oath.
and in the presence ot' the accusi'd ; and tlie accused, his counsel oi-
,)licitor. shall lie entitled to cross-exanune them.
;5, The cvideiH'c of eaidi witness shall he taken down in writing-
in the foi'iH <d' a deposition. Avhieh may lie in the foum S in
scuK.nri.K ONK. (1) or to I he like elfcct.
4. Su(di deposition shall, ut some time before tlie accused is
callc(l on for liis defence, he read over to and signed hy the witui'ss
and till' justice, the accused, the witness and justice heiny all
present together at the linieofsiudi reading and signing.
"). The signature td' the justice may eitliei' he at the end of the
deposition of each witness, nr at the end of several nicilall the
depositions in siudi a form as to show that the signature is meant
to aulheiiticate each separate deposition.
(!. livery justice hulding a preliminary iiKjuiry is herehy rei|uii'ed
to cause the depositions to he written in a legihle hand and on <ine
side only of ea( h sheet of paper (111 w hieh they are w ritten.
7. Provided thai the e\ ideiice upon suidi ini|uiry <ii' any jiart of
1 he same may he taken in shorthand l;y a stenographer who may he
ap[)oiuli'd I ly the justice, and w ho he fore acting shall make oat h that
he shall truly and faithfully I'eporl the evidence; and. where evi-
ileiice is so taken, it shall not he necessary that such evidence he
read over to or signed hy the witness, hut it shall hesulHcieiit if the
transci'ipt he signed hy the justice and he aceomiianied hy an alli-
davit of the steiiograplier that it is a true reporl of the evidence.
(1) For form S, see p, 2;)(>, post.
EVIDKNCE Knli THE I'Ki ISKCITID.N. 20:>
This Articlo ('X|ircssly |ir(ivi(lcs tliiil tlic iiccuscd, his coiuiscl. or
solicitor siiall In- fiitilird to cross-cxitiiiiiK' thi- witnesses for tlie jiro-
secution ; and it thus reeon'iiises the riglit of the (Ud'eiKhmt to lie
represented, at the prelinunary investiifidinn. liy Ins eiumsel or
attorney.
It also |)rovi(h's that the evidence of the witnesses shall lie given
in the presence of the accused, and, therefore, the preliminary en-
quiry eanni)( lie pi'dceeded with in his ahstMU-e.
A defendant charged with tlu' coniniissii)n of an indictable ott'ence
is not to lie ealleil n]M)\\ \n plead ; hut the case is to he suhstanliated
against him, in the first instanct' ; for, with tlu- cxce|ition of the
CJlses provided \\,v ],y .\rlieles 7()5, 783 and Sin, post, justices have
no I'ower in indietalile otl'ences to deal witli the accused, sum-
marily, even tlmiigh he openly ailnut his guilt.
The manner iif taking the de|iositions varies : In some places it
is usual in all indietalile eases to take down the e\idem-e in the
form of a depo'^ition. at once ; in o t he rs, a 1 il i re \'i a ted notes are taken
of the examination hefore the tnagistrate, copied vi'rhatim, and
afterwards read o\-er to t he witnesses in the [iresenciMd' theacciised,
the l.ittei' lia\ing cwvy opportunity of cross-t'xamination and of
uuiking oliieciions. The former of these two modes is the more
eorri'ct : luit the latter has lieen approved, and depositions so taken
have heen held admis>il)le. (1) [f the latti'r plan is adoptetl, the
depositions should he merely a plain copy of tiie notes; and the
clerk >honld not. in the alisence of the nnigistrate, ask the witni'sses
any (iiiestions to i'om|iletc the depositions; (2) even though tln^
accused he ])resent at the tinu'. (i!)
The e\idence shmild he taken down as nearly as jiossihle in the
witness' own w<irds, and the (h'position should contain the cross-
exam i mi lion and re-examination as well as the examination in child';
and any inlerrnplion or ohservation which may he made hy the
accused should also he taken down. It may he evidence against
him. (t) Hut it should he made to appear. n)>on the depositions,
under what circumstances t he ohsi'rvation was made. (."> )
(\) K. V. Bales, 2 F. ^ F. olT.
(•-') U. V. Chri.stoi.her, 14 .1. 1'. 83; 10 L. J. M. C. 103.
(;!) U. v. Watts, 33 L. .1. M. C. 63,
(4) R. V. Siripp, 1.'5 L. .1. M. C. 109.
(o) See K. v. .larvis, L. K. 1 ( '. C. R. 94 ; 37 L. J. M. C. 1.
- - 14
204 PRACTICAL (HTDE TO MAGISTRATES.
liitcrc'Mt oi* CViiiie. iio liar to a WitiicMN* C'oiii-
pi't*'H«*y.— A i)erson simll not be iiicoinpoteiit to j-ive evidence
by reason of interest or cri; . (Can. Ev. Act. 1S1),'{. SO A'ic. e. HI,
see. .{).
Act'iiNCMl uiid lliiMhaiKl aii«1 Wife ('onipetciit. —
Every per.son charged witii an otience. and the wife or hu.-^jjand,
us the case may be, ot'thi' |)er.son so charged, shall be a conij)etent
witness, whether thi' person so charged is charged solely or Jointly
with any other per.son. Provided, however, that no husband shall
be com])etent to disclose any connuunication made to him by his
wife during their marriage, and no wife shall be competent to dis-
<'iose any communication made to her by her husband during their
nnirriage. (Can. Ec. Act, iSttli, .see. 4).
^'iiiiibor of WitneMSON Xooessary. — As a rule, one
witness is stitlicient. if he can prove tlu' necessary facts, liut, with
regard to certain ottences. it is specially provided by Article 6S4 of
the Criminal Code that no pei'scm charged with any ol' such of-
fences shall lie convicted u]»on tlu' evidence of one wit ni'ss. unless
such witness is corrolioratcd. in some material particular, liy evi-
di'iiee im])licatiug the accused.
The oHences subject to this special ])i'o\isioii ari' the following :
KoROEKV. (Article \'1'.\ of the Code.)
I'erjiry. (Articii' 1 Mi.)
I'RociRi.Nu A Feioned Marriacje. (Article 277.)
Sedi CTioN ANii Defilement OF Females. (Articles ISl to l!K».)
Treason. (Artick' (If).)
flrderiii^ Wiliio«N<'N l^iit of Court. — On the a]i|>li-
cation of either of the partu's. an order will, as a general rule, be
given for all witnesses, except the one nndei- exanunation. to leave
the court. This order may be applied for at any stage of the
eufjuirv. and it is rarely withheld ;(1) alth(Uigh the authoi'ities are
somewhat contlicting as to whether it can i>e denutnded of strict
right, especially with regard to a jirisoner. (2)
(1 ) Southey v. Nash, 7 C. it P. 632.
(2) Stark. Kv. 162; 2 Tayl. F.v. S Kd., sec. 1400; R. v. Cook, 13 How. St.
Tr. ;W8; R. v. Vaiighan, Ih., 4W4.
EVIDENCE MrST. AS A RILE. HE KI'O VTII. 205
If any of tlu' witnesses ivinain in court aftor an ordov lias
hc'cn made to withdraw, the justiees will have no right to oxelude
llieir ti'stiniony, however niueh the witness" wilful disohedienee of
the order may lessen the value of his evidence. {I)
With regai'd to ordering witnesses out of court, an exception is
made in favor of medical witnesses when their evidence is merely
to nu'dii-al facts. And. of co.irse, the defendant, although he is to
lie called as a witness, will also luive the right to renuiin.
F.vi«l<'ii4'4' j^ffiiNt. UN a Kiilo. I»e 1'|ftoii Oatli. — The
second ]i;iragra|ih of the aiiove Article. ')[){). rc(|uires the evidence of
the witnesses to he given tipon oath. But a person who. when
called upon tt) give evidence, objects, on grounds of c(»nscieutiou8
scruples, to take an oath, or who is obi-ct''d to as incompetent to
liike an oath. , lay (hy virtue of section 'IH of the Canada Evidence
Act. isy3) make an aHirinatiou in the following form : • I solemnly
allirin that the evidence to he given by me shall be the truth, the
whole truth, and nothing hut the truth." And upon maknig such
sok'nin atiirmalion. llu' I'vidence of the person so atlirming is to be
taken, and to have the same etlect as if taken under oath.
The general form of oath is as follows . —
"The evidence you shall give touching thi> information (or
complaint, or the jiresent chanje, or as the case may he), wherein
is the ii\formant (or complainant, or. ns
the case may be), and is the defendant ((u*
as the case may he), shall lie the irulh. the whole truth, and nothing
but the truth. So help you <iod."
The N\'W Testament should, if tlu' witness is a Christian, be held
by him in his right hand, dui'ing the adminiKtration of the oath ;
and at its conclusion he should ki-^s the book.
The form of oath is to be accommodated to the religious perssuu-
sion which the swearer entertains of (iod. and is to be administered
in such a manner as is binding on the witness' conscience. (:i)
(1 ) Chandler v. Home, L' M. A Rob. 42:? ; Cobbett v. Hudson, '22 U J. Q.
H. 13.
(2) Uoacoe. Ev. 5 Ed. 122.
206 PKACTICAL (iUIDE TO MAdrSTRATES.
It' a iRTson ottered as a witness atlinits tliat he lias no helicf in
(rod or in a future state, lie eaunot he sworn, and. formerly iiis
evidence could not he received at all. (1)
Hut \hc Evidence Aviendment Act, l^Ci\h (2) made an imiiortunt
change, in lOngland. Section 4 of that Act providt'd that, if any
jierson called to give evidence in any Court of Justice should ohjecl
to take an oath, or he ohjected to as incompetent to take an oath,
such per.son should, upon the presiding judge heing satisfied that
the taking of an oath would have uo hinding ett'cct on his con-
science, make a solemn ])romisc and declaration to tell the truth.
■\nd. in the famous case of ('larkc v. Hradlaugh. it was held hy
.>[athews. J., (contirmed in Appeal), that, although the Act did
not give to a memher of parliament, hnvimj no relir/ious belief, the
right to atiirm instead of taking the oath rc(|nired of him iiy the
Farliavientary Oaths Act. ISiJG. (:>) heforc taking his seat in ilu'
jrouse.it enahled and even required ii<jrH{)\\s. having no religious be-
lief and upon ivhose consriewe on oath woul<l have no binding effect, to
ifi\e evidence, hv solemnlv atlirming and dcidarin"- instead of
swearing. (4)
Later on, it was enacted, by the OatJis Act, 1888, (5) that, in all
jilaci's. and i'i)v all purposes, where an oath is rc(]nirc(l. hy law. every
Jierson. u]ion o'ljccting to iV' sworn and stating as the ground of
such ohjection. either, that he has i\o religions helicf. or that the
taking of an oath is contrary to his i-eiligious belief, shall he pei-
niitti'd to make his solemn declaration and atHrnnition, instead of
taking an oath, ami that snch atlirmation shall he ol' the same
elVect as if he had taUeii the oath.
Ill Canada, we lia\'e now. in elVeet. the same law. in section 'S.'t ot
the Canada Evidence Act, ISiKJ. supra.
A witness who stati's that he is a Christian caiimjt he furlher
([Uestioiied hefiu'c heing sworn. ((!)
(1) Anon,\ Leach, ;J41 (ii); R. v. White, I Leach, 430, Maden v- Catau-
agh. 2<i J. P. 248.
(•_') 3-'-:);'. Vic, (Imp.), c. tis.
(3) lili Vic. (Imp.), c. 29.
(4) Clarke v. Bradlaugh, L. 1!., 7 <i. 15. D. lis.
(5) 51-52 Vic. (Imp.), c. 47, sec. L
((i) R. v. Serva, 2 ( '. \ K. 56.
MOUES OF ADSirNISTERINO THE OATH. 207
A .]v\\ is sworn on tlu> Pontateiicli, an'l he keeps his head covered
•<hiving the administration of the oath. (1) But a Jew who stated
that he professed Ciiristianity. althougli he had never been ba])-
tized. and hail never formally renounced the Jewish faith was
billowed to bi^ sworn on the Xew Testament. (2)
A Mahomedan is sworn on the Koran. I'lacing his right hand
Hat upon the book and the other liand to his foreliead, he brings
tlie toji of his forehead down to the book, which lie touches with
his head. He then looks, for some time, upon it ; and. being asked
whiit elfect that ceremony produces, he answers that he is bound
by it to s])eaU tin- truth. (H)
A Parsee swears in a similar nuinuer. except that instead of the
i\onui. he swears upon the Parsee prayer book. (4)
Tart of the ceremony of swearing a (ientoo (a native of India or
Iliudostan professing the Hrahmin religion) consists in his touch-
ing, with his hand the fool ot a Brahmin. If the witness, him.self,
is a priest, he touches the Brahmin's haml. (5)
This, however, does not ai)pear to be the only mode of swearing
among the Hindoos ; and it seems that, in some parts of India, the
natives swear on a portion of the waters of the (ianges. (6)
A Chinese witness on entering tlie witness box. kneels down, and
a china saucer being placed in his hand, he breaks it against the
box. The clerk then aihninisters the oath to him (through the
interpreter) in these words. — ■ Vou shall tell the truth and the
whole truth ; the saucer is cracked, and. if you do not tell tlie truth,
your soul will be cracked, like the saucer." (7)
It is said that, in the Island of Ilong Kong, even since it became
an lOnglish possession, jiart of the ceremony of swearing a riiinese
(1)2 Hale, P. C 279 ; (hnichund v. Barker, Willes' Kep. u4() ; Roscoe Kv.
-■> K<]. 12;i.
(2) R. V. Gilhaiu, 1 Esp. 285.
(8) R. V. Morgan, 1 Leacli.C. L., 54. Hoaooe Ev., 5 Ed. 123.
(4) Kerr'a Maj?. Acta, 21 ; Best on Ev., U*i'X
(■>) Omichund v. Barker, 1 Atk. 22.
(()) Best on Kv., 'iUY.\.
(7) Eatrehman'8 Case, 1 C. & Mar. 248.
208 ,, PRACTrrAL orinK to magtstratks.
witness consists in cuttinu: ott' llic lu'ad of a iivo cdck oi-dthci'
fowl. (1)
A witness, who stated tliat he believed iioth the Old and Xew
Testament to be the word ot'(iod. bnt that as tlie latter proiiiljited
and the t'ormer eountenaneed swearing, he wished to be sworn on
the former, was perniitted to be sworn aeccn'dinjujly. (2) And.
where a witness refused to be sworn by laying his riyhl hand on
the book, and afterwai'ds kissinj*; it. but desired to be sworn ly
having;' the liook laid open Ijefore him and holding up liis right
hand, he was sworn accordingly. QV)
Where, on a trial for higli treason, a wilnt'ss retused to be sworn
in the nsual manner, but put his hands to his buttons, and in reply
to a (juestion whethei- he was sworn stated thai he was sworn and
was under oath, it was held snttieient. (4)
A Scotch witness has bei'U allowed to be sworn by holding up
the hand without touching the liook. or kissing it. and the foi'iu of
oath administered to him was. • ^'on swear according to the custom
of 3'our conntry and of tlie religion you profess that tlie evidence,
etc.. etc." (5) Liu'd (ieoi'ge (iordon. before he turned Jew. was
sworn in the same manner, upon exhibiting .\rticles of the jieaee
in the King's Bench. ((I) • \.
The following is given as tlie form of oath of a Scotch ('oxenan-
ter : — •' I. A. ii.. do swear. l)y (lod himself, as 1 shall answer to
him at the great day of judgment, that the evidence i shall give.
tonching the nuitter in question, is the truth, the whole truth, and
nothing but the truth. " (7)
An Indian, who was not a ("hi'istian. and who knew of no cere-
mony, in use among his tribe, for binding him to speak the truth,
was offered as a witness in a murder trial. As lieappeare(l to have
a full sense of the ol)ligation to speak the truth, and as he and his
(1) Berncastte's Voya^'e to China, 'M ; 2 Rest on Kv. SKi.'!. (»).
('-') Fdnionds V. Rowe, Ky. i*t Moo. N. P. C. 77.
(3) Dalton v. Colt. 2Sid. (i. ■■■
(4) R. V. Love, 5 How. 8t. Tr. 113.
(5) R. v. Mildrone, 1 Leach, 319, 412; Mee v. Ueid, I'oake, N. 1'. C 2:!.
(6) Rcscoe Ev., 5 Ed. 123.
(7) 1 Leach, 412 (n). ^ V . >? ,r
EXAMINATION OF WITNESSES. 20!>
tribe Iwul ii liclict' in a Supreme Hoiiii";. wlio ereated all things, and
in a future state of ivward and punishment, he was allowed to be
sworn in the usual way on the New Testament, and his evidence
was lield admissihle. if. however, his tribe had had in uso among
thom any particular eereniony for binding- them to speak the truth,
the witiu'ss would have had to bo sworn according lo that ceremony,
however strange and fantastical it might be: because everything
should 111' doni' that can be done to bind the I'onscience of the wit-
ni'ss according to his notions bowcvi-r supi'rstilious they may b(^ (1)
KvirteiK't' or.llllto. — .V witness who is unable to speak
may give his evideiu'C in any otiier numner in which he can
muki' it intelligible. (2)
l<jvi(l«'ii4«o «»!' Foroi);;'!! %Vitii «•>*•«»»'«,— A witness who
does not speak the language spoken l<y the justice should be sworn,
and give his evidence through the nu'dium of another per.son
duly qiuUitied to inter|)ret him. the inter[)reter being tirst sworn
faithliiily to interpret what the witness may say.
The oath of the interpreter may be as follows : — ■
•■ You shall truly and faithfully inti'riPi'et the evidence about to
be given, and all other matters and things toindiing the present
int'orinatioii (i)V charf/c. or as the case may be), and the Italian (or
(ierman. or as the case mai/ he) langmige into the i-]nglish (or
French) langiuige. and the Kngiish (or French) latigiuige into the
Italian (or German, or. as the case may be) language, according to
the best of your skill and aiiilit)'. .So helji you. <io(l."
Kxuiiiiiiatioii in <iii«>t'.~lii e.Kamination in chief, a
witness must not, as a rule, be asked any leailing questicms. that is.
([uestions in su(di a form as to suggest the answers (lesin'd, (3)
There are. however, several exce]itioiis to this rule. It is not
applied, for instance, to that part of the examination which is
merely introductory of that which is material. (4j And even
(1). K. V. Pah-mah-jray, 20 U. C. Q. B. 195-198.
(2) Van. Ev. Act, 1)39;5, sec. 6.
(3) 2 Tayl. Ev. 8 Ed., sec. 1404; 1 Stark. Ev. 1(«9.
(4) Nicholls V. Dowdint', 1 Stark. R. SI
"JIO PRACTICAI. (ilTDE T(i M.\(i ISTHATKS.
Avith ri'ganl to luiitoriiil })(>ints. K'iidiiiii; ([urstions may sonu'tiini's
Ik' allowi'il to 111' put ill a direct t'xaminatioii ; as. for iiistaiK;e.
Avliore tlie witness b^' his coiuluct in the hox obviously appears to
lie hostile to the party jirodncing him. or interested for the other
party, or unwilling- to give evidence. (I) So. where the oiijeet is
identification, a witness may lie directed to look at a particular
person, and say whether he is the man. (2)
A witness will sonn'times he allowed to be led wlieiv an omission
in his testimony is evidently causetl by want of recollection, which a
sivjijes'lon may assist. Thus, when a witness stated tliat he could
not recollect the names of the members of a tirm. so as to re|)eai
them without suggestion, this was permitted to be <lone. (;>)
Where a witness is called to establish a contradiction, leading
(questions Juay be allowed. Kor instance, where a witness was
called to contradict another respecting the contents of a lost letter,
it was held that after exliausting the witness' memory as to the
contents of the U'tter. he might be ashed if it contained a ]iarticu-
lar passage recited to him. (4) And. where a witness was called
to contradict another who hud denied having used certain expres-
sions, counsel was permitted to ask whether the particular words
/lenied were not in fact uttered by the former witness. (5)
C'roKN-Kxniiiiiitif ion. — in cro.ss-examiiiation. leading ques-
tions may in general be asked ; but this does not mean that counsel
may go the length of putting into the witness" mouth the very
words whicli he is to echo back again ; (0) nor does it .sanction the
jtutting of a question, assuming that facts have been jiroved which
have not been proved, or that particular answers have been given,
contrary to I lie fact. (7)
The rule sho\dd also receive some further ([ualitication where the
witness is evidently hostile to the party calling him ; for, although
(1) R. V. Chapman, 8 C. & P. 559.
(2) K V. De Berenger, 2 Stark. R. 129 {») ; R. v. Watson, .•')2 How. St. Tr.
74.
(3) Acerro v. Petroni, 1 Stark. R. 100.
{4) Courteen v. Touse, 1 Campb. 43.
(5) Edmonds v- Walter, 3 Stark. R., 8.
(6) R. V. Hardy, 24 How. St. Tr. 659, 755-
(7) Hill V. Coombe, at. 1 Stark. Ev. 188, n. ?).
EVIDENCE T<t UK READ To THK ACCI.SKD. 211
it a|t])oiirs to have hcen laid (Uiwn in oiio catsi- that leudiug questions
may always lie ])ut in cross-i-xaniinatioii. whether a witness be
willing or not. (1) some restriction should surely be imposed where
the witness betrays a vehement desire to serve the cross-examining
j.arty. (2)
Ke-Kxuiiiiiiutioil. — A re-examination should be confined
to showing the true color antl beai'ing of the answ«'rs elicited by
tlie cross-examination : and. without the permission of the court,
new facts and new matter, not tending to explain the witness'
answers in cross-examination, should not be allowed to be gone
into. (8)
KviddiiH' of Voiiii|)^ Child. — Section 25 of the Canada
Evidence Act, 1S!»8. provides that in any legal proceeding where a
child of tender years is tendered as a witness, and such child does
not. in theopiiuon of the jiulge. Justice, or other jiresiding officer,
understand the nature of an oath, the evidence of such child may
be received, though not given upon oath, if, in the opinion of the
judge, justice. 'or other presiding officer, as the case may be, such
diild is possessed of sufficient intelligence to justify the reception
of the evidence, and understands the duty of speaking the truth ;
but that no ease shall be <lecided upon such evidence alone, and
that such evidence must be corrol»orated by some other material
evidence.
5!ll. — Kvidenee to bo road to the Aoousod. — After
the examination of the witnesses produced on the ]»art of the prose-
cution has been completed, and after the (le])ositions have been
signed as aforesaid, the justice, unless he discharges the accused
person, shall ask him whether he wishes the depositions to be read
again, and. unless the accused dis])enses therewith, shall read or
cause theni to be read again. When the depositions have been
again read, or the reading dispensed with, the accused shall be
addressed b^' the justice in these words, or to the like ett'ect :
"JIaving heard the evidence, do you wish to say anything in
answer to the charge ? You are not bound to say anything, but
(1) Parkin>, Moon, 7 C. & P. 409.
(2) 2 Tayl. Ev. 8 Kd., sec. 1481.
(3) Prince v. Same, 7 Ad. i<: E. 627 ; Queen's Case, 2 B. & B. 297.
-'- l'H.\( rrcAl, (illDK TO >rA(USTHATKS.
wlmtovcryoii do sav will lie taken down in writinuf mid iiiav lit- ifivcii
inovidi'iicfai'-ainst you. at your trial. Voii must c'U-arly inidiTstaud
lliut you liavi' iiolliiii<r to 1io|k' iVoin any ]ironiise ot favour and
noiliing to ti'ur tVoni any tlircai wliicli may luivc licfii ln-id out to
you to iiidiu'c you to iiuiUi' any admissio?) Or coiili'ssion ol'ifuilt, liut
whatever you now say nniy lie .u;iven in evideiu-e against you n|ion
youi- trial, not witlistandinif suidi [ironiise or tlireat."
2. Wluitever tlie accused tlien says in answer thereto shall he
taken down in writini; in the i-'okm T in scMEitri.E o.ne. {\ ) or to
tlie like etlect. and shall he signed hy the Justice and !<e)it with the
de|iositionsofllie witnesses and dealt with as iierei natter mentioned.
The caution contained in this Article is two-fold. In the tirst
part of it. the accused is told tiuit iu' is not hound to say anything,
hut that wliatever iu' does say will he written down and may bo
given in evidence against liim at liis trial; and. in Iheseeonil part,
he is told that he must clearly understand that hi' has nothing to
hope from any promise of favor and nothing to tear from any
threat whii h may have heen hehl out to him to induce iiim to
make any admission or confession of guilt.
Although the second part of the caution is only of imj»ortance
in cases where some prt'vious prcunise of favoi- or thi'eat has. iu
fact, heen held out. (J) it is better, in all cases to give both parts
«d' the caution, as the Justice nuiy not have tlu' nutans ot' knowing
whether a ]>ri'vious promise of favor or tiuvat lias been held out or
not. ,; .
'I"lu' (diject of giving the caution eoulaine(l in the above Articde
is to t'uable the prosecution to give in evidence upon tlie trial of
the accused, any contessiou oi- iulmission that he may afterwai'ds
make, notwithstanding any previous promise of favor or threat
that may have been held out to him. ' ■ ' ' ' -
The stateinciil made by t he accused jierson before the justice
may if necessary, upon tlK' trial of smdi person, bi' given in evid-
• K'lice against him. without further proof thereof, unless it is jiroved
that the Justice did not iu fact .sign it. (('odo. Art. (iS!);.
(1 ) For Form T, see p. i';'>7, pout,
(•J) K. v. Sansome, 1 Den. C. ( '. 545 ; 1!J L. J. M. C. HS.
N
KVIDKNOE (iK f'<iNKEHSION oil AriMr-iSinN. 218
Whon tlio torrn pi'i'S('i'ili('(l Ity tln" ahovf Aiticlc ')!»!. is |n||()\vc(|,
tin- prisoiuTs stiid'iiu'iit imrpoi'tiiii!; to \h' atlt'stcd liy tin- sin'iiiitiiro
of iIk' exiiiiiiiiin^ Justice thus iiuiUfs proof of itself. uikKt Arli-
clo (>S!t. Mut. wlu'ii till' prt'scrilu'd form has not hcen followed,
the caution, the prisoner's statement, and the Justice's si^'nature
may still he proved liy tlie Justice, oi" his clerU. oi- l>y some per-
son who was present at tlie examination. (1)
{S1II2.— f'Vid<'iic«' 4»r €'oiit«'.NHi4»ii 4»r AdiiilNMioii. —
Nothini^ herein conliiincd shall present any prosecutor from ^iviiiuj
in evidi'uce any atlniission or confession, or other statement made
at any tinu' hy the person accused or chari^'cd. which, hy hiw. would
lie admisMii)le.
A confession must, in order to he admissahle. he entirely free
and voluntary. Wiien it is oiitained from the accused hy the
(latti'ry of hope or the torture ot' ft'ar. it comes in so (|ncstionahle
a shape, when it is to he consi(leri'd as evidence of i;Mnh. that no.
reliance can he |ilaced upon it. and no credit should he ni\en to it.
'I'aUe the followiui;' case as an I'xample : —
'I'lirce men wci'c tried and con\icte(i n\' tiic murder id' a .Mr.
Harrison. One of tiiem. undei' promise of |)ai'don. confessed him-
self guilty of tlu' fact. Thi' confession, tlu'refore. was not n'ixen in
evidence a.^'ainst him; an<t a few years afli-rwards it turned out
that .Mr. Harrison was still alive, (."i)
'I'he confession will not he adnussihie. if it he procured hy a
threat to take the defendant hid'ore a maifisti'ate utdess he i;ivi' a
mort' sutisfiu'tory account. (4) or hy a threat to send for a
constable for that purpose ; (5) or hy .sayiuii,-, -'I'dl me where the
thiiii^s ari', and I will he favonrahle to you ; " (d) or hy saying,
•' Von luul hetter split, and not sutfer for all id' them ; " (T) or hy
(1) R. V. Boyd, 1!) L. .1. M. ('. 141 ; U. v. Uearn C tt M. 109.
(2) Gihb. Ev. 123; R. v. Eldrid>re, R. & H., ('. C. R., 440.
(3) 2 Hale, 2S5 ; R. v. \Varrin>.diam, 2 Den. 447; WarwickshallV case, 1
Leach, 2(j3. . , . ,, ;
(4) R. V. Thompson, 1 Leach, 29. ,
(5) H. V. Richards, 5 C. ,& P. ;^18.
(«) R. V. Cass, 1 Leach, 29;{. Sre aho R. v. McCafferty, 25 S. C, N. B. 3!>i;.
(7) R. V. Thomas, « C. & P. 353.
214 I'ltACTrcAI, (ini)K, rn MA<!ISTHATES.
Miyini;. "It would liiivc liccii lii'tU'r il' you had told at first ;" (1)
ov by sayiiiu;. " Vou liad lirtti'i- tell mctlu' truth. It will he hcttiT
for you." (li )
Whiri' till' jiroHi'cutor askiMl the dcffiidiiiif for tin* moiii'y Avliich
1k' had taUi'ii ; and, hidorc it w^h j)rodui'i'd. .said ; •' I only want
my moni'v. and if you i^ivc nu- that, you may jjjo to tho di'vil. if
you |ilt'asf." upon which llic (U'fi'ndant took part of thr nioiu-y
fri>m his pocket, and .said that was all he had left, ii majority of
the judii;cs heUl that the evidiMici' was inailinissihle. Qi)
A confession made with a view, and under a hop»'. of hein^
thereby jiermitti-d to tui'u (^lU'en's evidence, or of obtainiiii;; a
pardon, or reward, has been held inadmissible. (4) And this is
i'lcarly so where such hope is the reasonable ri'sult of a communi-
cation from, or the conduct of a person in autliority. (5)
Tlic inducement must refer to a temporal benefit. Hopes which
are referable to a future state merely are not within the principle
whii-h ren<lers a confession obtainiul by improper infliieni'e in-
admissible, (t!)
Tlius. where a prisoner, under fourti'cn years of a^t'. was arrested
on a < harge of murder, and was spoken to by a man who Avas
])re.sent at the time of the arrest, as follows : •• Xow. kneel down ; I
am goin.iT to ask you a very serious question, and I hope you will
tell me thi' truth in tlie i)reseiK'e of the Almiifht}'." and tiie
prisoner in consequence made a statement, it was held admis-
r-ible. (T)
It was. ill a ri'cent case, held by A. L. Smith, .1., that, although
a jior.son who is suspecti'd of a crime may. before be is ehai'ged or
is in custody, be asked what lie has to say in answer to or exjilan-
ation of the matter, yet. after be is in custody, the police have no
(1) H. V. Wall^ley, 6 C. & P. 175.
(2) R. V. Fenneli, 50 L J. M. C. 126.
(3) R. V. Jones, R. & R. 152; R. v. Parratt, 4 C. & P. 570.
(4) R. V. Hall, 2 Leach, ri50.
(5) R. V. (dllis, 11 Cox, 69.
(ti) R. V. Uilham, R. it R., C. C. 18().
(7) R. V. Wild, 1 Mood. C. C. 452.
EVIDKNCE liK coNl'FSSIiiN (i|t AH.M ISSION. 215
ri^lit Id iisk liim (iiicstinns. iiiwl itti !iiliiiis>i((ii or (•()iili's>i(>ii ulitaiii-
cd in tliiit way is iMiiiliiiissiMc in cxidi'inc. (1 )
Wlicn lln' |iris(incr lias liccn ilniy caulidn*')! Iiy tin' nni;;isi ralf,
in |inrsiianci' <if Ai'liclc .■)!•!. anylliinif >ai(l liy liim. tlicrciiiion,
will liu adniissilik' in I'vidcncf a^'ainsl liini «>n Ids t rial. alilHMii;li,
ut .sonic tinu' i)ivviniis to su(di caution hy tlic niau'ist rate, llici'c
may liavc Keen a im-ommsc or threat held oiii to him to induce him
to cont'ess. (:i)
Bct'orc thu passinjj^ of tiio Canada Kvidence .\ct. iSli;!. it was held
in the case of a |)i'isouer iudii'tcd for arson, that his de|io>itioii
laki'U on oath at a previous eri((uiry. hefore the |''ire ('omndssion-
iM's into the cause of the tire, was admi>^ilile a^ evidence ai^'ainst
him. (:;)
Hvil sec. 5. (d'tlu' Canada Kvidence .\ct. IS'.t."!. now ])rovides that
•• Xo person shall he exeusi'd from an^werin^- any (|ucsii(in upon
the n'round that the answer to su(di <|Uestion nuiy tend to crinun-
ate him. etc. ; proxided. however, that no exidence >o o'ixcn >hall
ho used or ri'ceivahlo in evideiiei' against su(di ]ier>on in any crim-
inal pnurc'diuu; thcreal'ter instituted ag'ainst him. other than a
pi'o.soculion for perjury in givini^- such evidence.'
What a prisoner has iieeii overheard t<i say to another, or to
himst'If is e(|uaily admi.ssihii' ; thougdi it is a species ol evidence to
be acted on with nuudi caution, as heing lialde to he uiiiiiteiitiun-
ally misre]ircsented hy tho witnesses. (4)
Jn all cases, the whole confession should he proved ; i'ny it is a
general rule, that the whole of the account whiih the |>ai'ty ii;ives
of a transaction must he taken together; and his admission of a
fact disadvantageous to himself shall not lie received without ri'-
ceiving at the sanu> time his contomjioraneoiis ••sserlion of a fact
favorahle to him. (5)
DYING KECLAKATIONS. — "NVhcu t he (leat li of a person is the sub-
ject of a criminal (diargc the (k'clavatioiis made hefore death hy the
(1) R. V. Gavin, 15 (.'ox, 056.
(2) R. V. Bate, 11 Cox, (i8(i.
(3) R. V. Coote, L. K., 4 P. C, 5i>» ; 42 L. J. P. C-, 45.
(4) R. V. Simmons, 6 C. & P., 540.
(5) Taunt, 245 ; Queen's Case, 2 B & B., 294.
•Jh;
l'l(A( rii'AI, (JIIDK Ti> MAillSTIIAIKS.
(l(Ti;|-.ci| JHTXIII inliccnil ML,'' I ll<' Cllllsi' llllll ci I'd! lllsl i| IICI'N 1)1' llli'
ili'iii li ii I'f n(|mi->Mlili' ill r\ idciicc Inr (ir {itfiiiir-il llu' iiciiiscil, il' llic
(|(ilai;il inn wnr iiiadi' liy lln' iIitchsciI wiili n lull (■l)||^<•i(lllsll(■^s
mill lii'lii'l'. williniil liii|ii'. oT ti|i|irii:i('liiii;^ ilc'il II. (I)
i'lii' i|\iiii^ ilnhi lii I iiiiiN III' ;i I'rh) (leaf, were held tu lie ^(mm| (U'i
(Icinc jiLiiiiii^l a |iri'Miii iiidiiti'il t'nr assisliiij^ I he di'ci'aHcd in Ids
hi'h iiiiirdir . and I in' niaincil \ id' I lie jnilffcs were id' ii|iiiii(in I hat
IImn i-\idi-nii- Wnllld cp|' il>rlr III' Mllliciclll to cnlivirl. a II lliilll^ll llii'
|i-lniinn\ (d' I 111' a((iini|iliir. ir li\ in;^'. wniild iml . inilfss riin'olidi'-
add li\ iillnr c\ idciMi'. ( 'J I 'I'liis caM' i> iiu iidrini;! nii'iil ul'llic
/ii-iirrai nili- llia( a iiiaii-^ nwii roii l'r--iiiiii is. as^indi. im cvidcnrc
a^■aillst hi-. ai-i'uiii|ilii !• ; I'nr an arcuni |iIht is aiiiiiissililc as a inluens
ayain-'l lii-- I'rllnws. and a d vin^' dcrlaral inn niadr liv a jicrsnn who,
il iili\f wiMild \>r adiiiiN-'ildi' its a wilm'^s. i> adidssililc as i'\ idrni-c
\S iicli' iIm' di'alll id' llir dcirascd is I lir snliircl id' I lir rliar^i'. and
llii' rail'-i' id' lln- dcalii lln' --illpU'rl nl'llir 1 1_\ i li;^- drrla ra I h m . {'.',)
I'lir I 111' in id I »\ iiin I >irla I'al imi. -^n- |i I | J dntc.
liWl. 10% i4l<'ll«M' t'iH' ilM> lll'I't'lKM'. Alli'l I III' |il'i>
ci'idiii^'^ ri'.|niiiil li\ --riliiin ;V.ll an' iiiiii|p|i'liil .llir acriiscd shall
111' a-ki'd i I III' w i'-lii'- I II lall anv \s il iir-^>rs.
J. K\i'i'\ w il iii'ss callfd li\ I 111- aiTiisi'd. w lii( li'sl ilii"^ In an\ lail
I'i'lt'V aiil In I lie I'iisi' hall 111 hi'ai'd. and his di'|Misiliiiii shall hr lakin
in I 111' same inaiini'i' as I he ih'|insilinnf< oi' the witiicssfs lni- t lu' |)i'n
sciiil inn.
I ' lull' I' this A I'l iili- I 111' lliaL;'isl rale is nhli^'cd In laUr. al I ln' |)l'r
liniinary in\ i "^1 i|:;al inn llir di'jinsil inns id' any wiliit'HHCM thai lln-
|il'isn|i('l' nia \ U l-'h In i'\aillilli' as well as I Imsr id' I he W il ni'sscs In I'
1 lir [il'iisirlll inn
This. hnwi'Ni'r, dill'-- mil anllmi'i/i' ihr nia^^isl ralr In 1 1'\ ihi'
i'ii^>«' . iini' dnrs il is'wr I lii' di'triidiiiil I he i'ii;'lil. I'm' in-'laiiri', in a
|H'ii^('rlll imi Inl' |illlili^ilil|i;- a lilii'l. In |)l'n\i', al I llf prcli lni liai'V
(I I Kcrr'M Mnu AiIm, •..'^•, Il v. .Idiiknin, II dix, '..'51); It. \. (mmIiI.uiI, IT)
Cox, 7; U. V. Kiiiilli, liKux, r;ii; K. v. Mi'Mttlioii, IHOiit,. K. TiOL' ; li. v. Mil
(•hell, 17 Cox.WA.
(•_•) II. V. Twicklur, 1 Kahl, I'. C '.M. , ' '
Ci) Anil. ( 'I. ri. .V I'A. -Jl I'M. 27-1.
K\IIiI':M'K I'lilt INK DKI'KM K.
aw
<'Mi| 111 ry. I lif I nil li ol' 1 ln' imil Icr fliur;;*'<l un ii lilu'l ; Inr il Iimm liccii
liclil ill I'limliiml, >iin't' I 111' icriiiiliiin', Ihi'i'c. nl' I lie ri^lil lo ciili wil
lUiHSI'S fur I lie ilcl'clKC ill :i |M )| ice ('(III I'l i M\'i'hl i;^j|| joll, I Iml . j||| ||il||j[r||
wlicrr I lie cliiiriif wiiMlliiil III' iiiMrKiuiisly /(((/*!/.s////('/ ;i ili'l'iiiiiiilory
lilirl KN'nWI.Nd IT 'I'M III''. lAI.SK, I lie lllilt;'i^l fill <• ll(t(l jll l'iN(|icl inll |i)
I'ccciv'c i'\ idt'licf 1)1' ihc Inilll ol' I 111' iiiicl. M) UN In lli'u;illi\r I lin
ull<'i;':il iiiii lliiil I III' iIi'Ii'IhIiiiiI knkw il In lir I'lilst'. lie liiiil iiid
siii'li juii>iliil inn w lii'i'i' till' clijii'L!.'!' ^^il'^ lli.it nl' >iiii|ily iiuilii'iniisly
yulilmhimj n lirriiiiiiilnry liiifl, (|^
I<i\|»4'4li<'ll4'y 4>r 4'illlillK' %V i<ll4'^iN«'H i\*V I II 4' Il4'-
iVll4*4>. A- In llir i'\ |ii'(|irli(y of raililii;- wi I l|i'>.M'.s inl' I he i|r
IciHc, ill I ill' |iri'liiiiiiiiiry riii|uiry. Iliis uill t^i-i'iilly (|i-|irii(| ii|inii
I 111' mil II I'l' n I I 111- ruse I'sliililislirij liy t lie | p I'nsccu I inl i iilid I lie |M'nli\
Illilc li'Mlll 111' llir rlli|llll'\. Il llirrilM' I'Sl lllilisllii I ill I In rjiif^i' ul'
llll' CSiilcHir I'nl' I lif | il'nsccll I in|| is Midi lllill ;|||\ jirnnl' In lii<
ili|i|l|i'i'i| nil llir |i!il'l nlllli' ill'rusrij will iilll\ illlinlllil ill IlinMl, In ji
inllllirl 111' ('\ jijcliri'. il W i 1 1 linl I ir ilil V isil lilr In liiilkr ll'-'i' nl il
ill lIllN Mliitji', cilice, illl linillill llll' |ilr|Mi|ii|iTii||(i' Wnlllij. j I' |||('
IK Tllscil s wil ll(•,ss(■^ Wrrr rXillili lli'i 1 . Iir ill Ilis I'ilVnr, ||ic |llhliri'
Wiilllil. Ill ill! |irnliiiliil||y , iniillllil I'nr Iriill. il liiillL;' lin |iiil'l n|' his
llllly III ililrnililli' lis In llll' ;;l|i|| i)|' i 1 1 1 inccl ll'c n I' i| |il||'lN' llinlrl'
Hllcli li rcllMlsl iiliccs, 'I'lirrr illr, linW cV c r. Iiliili\ I'ilsi'K nl liruilll
l<(cie u,'iiill w liicli I III' jii'i'iiMil iiiiiy. Iiy I'lillin^ w it iirssi'ii. Iir niiilili'd
MO III i'\|)lllill lis In I'li'iir ll|i ill nlll'C llll' illl|illlill inn t|i|'jiiiis| liiiii
'I'lllls, |l{inli il cliiil'uc ol' llicl'l. il niil\ 111- lllill till' only |irnnr nl'
^(llill lliiilillsj liilil is Ills |inHHCHHillll nl I III' slojcii |i|n|M'|'l\ ; i|||{| il
iiiiiy liii|i|M'ii lllill he is in a silimtinii In .-imw liy ImmIijv ri'^incliilili-
ti--'ruiinll\ lllill 111' liri'lllili' pnsscssril ol llu' |)rn|i('rty ill il licll'i'i'llv
lilir ilinl li'HH'st nilllilli'l' Imliril. in iill tlnsc ciisi's. \\ lirrc llid
ri'iiiiiiuilily 111 till' jiiii'ly iiccnscil itsIs iiii'ii'iy ii|inii tlir |ii'rsiiiii)i
liiill nl' hiw w liiili I lie iH't'llHi'il is II I ill' I o <'\ |iiiilli liy f\ ii Ic'IH r, silrji
rviili'iH'i' iiiiiy 111' iiililiK'i'il willi gi I't'iisonalilr rx|M'<'liilioii of siif
I'CKh. 'I'll!' i|lli'sl|o|i lo 111' llsKi'il. llinlrr >nrll li I'rII lllsl illlii's, lii'lori^
iiiiiliK'iii^j; cviiifiK-f, slioiilil lie Will I 111' |ii'iii|ii('lioii ol llll' nviilciirr
III' riliist likely III I'csiiil ill ihc liisrlnii'^c nf (lie |trisnlii'i' 'i* If' it
will. I lien il will lie jinlieioiiN III uH'ci- il ; hill il' such ii result is nut
;l) |{. V. Ciiriloii,.'. ii H. D. I ; 111 I.. .1. M. (;. I.
218' PUACTIfAI, (iirnE TO MA(fISTHATES.
likely, then its prdductidii at liio |nrliiiiiiiavv riHiuiry will not he
ailvistible.
It is soim'tiini's iinaii'iiiod that, if the aceused has exciilpatory
evideiiee. and tails to olVer it at the prelijniiiary eiii|iiiry iieliu-e the
magistrate, adxaiitaye may he taUeii of tlie oiuission on his after-
wanls iirodueiiig it on his trial. iJiit K-ariied judges have ot'teii
n'|>i'eheiided ohservatioiis made, upoii this grciiiutl. hy iiroseeuliiig
eoiiusel. I'^or instance, in a ease in whiidi the |irison<.'r's eounsi'l.
after addressing the Jury. oliser\ed that he should call witnesses to
])i'o\-c an alibi ; that thesi' witnesses were not examineil before the
eommitting magistrate, and that perhaps some observation might
be maiU' on that account, but that the witnesses had gone to the
preliminary en(|uiry bet'ore t he magistrate and. on the advice of t hi'
|»risoner'.s attorney, were not called. — Pollo(d\. ('. 15., said that in
his opinion no siudi observation should be made a> to witnesses not
iii'ing called foi' a jirisoner ^vhen being examined before the magis-
trate, and if made il would be \<-yy improper. When', at the
preliminary emiuiry. one oi- nn)re witnesses s[ioke of the accused as
the pers(ui by wlioni the crime imiuired into was committeil. it
would be the duly of the magi.-trate to conimil. ami it would bi^
(|uiti' useless to call witiicsscNon the part ol' the prisoner eil her to
]U'ove an a/zii' or anything else m his tavor. It woubl be useless
ex|K'nse to call them, at (inec. to prove the same t hing as could be
]u'o\cil at the trial, and a thing whiidi no discreet attorney (Might
to ad\ isf his client to <|o. This, the learned Judge s;i id. had always
been his opinion, and thcrcfoi'e he ue\H'r allowed >U(di ob>ervations
to lie made. (1)
It will -ometinu's happen, where a jiai'ty is charged with theft.
an<l t he only i'\idcnce against him is that ot' recent po.ssessicm ol'
the stolen article, i hat he defends himself by asseHing tliat he
received the properly in (piestion from a particular |M'vson w bom
he names, it Mudi pei-son so named is procurable, and there is
nothing to show that the statement of the pri-oncr is an utter
liibricalion. he (the person namc<i by I he prisoner) slmulil be sent
for and examined as to i he alleged fact. I'pon this point, several
judgi's have expressed a strong ojtinitui. in one case, the prisoner
was indicted for stealiuij; a piece of wood, the projieriy of a persnn
(1) 1!. V. Clark, o Cox, C. ('• l'3u.
EVIDENCE K(iH THE DEFENCE. lil!)
iiiimod Herman, and it aiipcaivd from the ovidiMu-c t'ortlic i>rosc-
cution that on tlie jiioco of wood boing found \)y a ])olici'man in
tho prisonev's shop. al)out live days after Ilei-man liad lost jtosses-
sion of it, the ]»risoner stated that he had l)ouglit it from a i)er.s(m
named Nash, who lived ahout two miles otf. Xash was not jiro-
duced as a witness for the proseention. and the prisonei- did not
eall any witnesst's. Hiiroii .Mderson, in sumnunii' up. said : •■ in
cases of this nature yon may take it as a general principle, that
where a man in whose jiossession stolen property is found given
a reasonahk' account of how he came liy it. as hy stating the name
f)f the person from whom he rei't'ived it. antl who is known to
he a real persoji. it is iiu'umlient on tl«e [irosecution to show
that that account is false: iiut if the account given liy the jiri-
soner In' uni"east)nahle or inqirohahle on the face of it. the o/ia,s of
proving that it is ti'ue lies on him. Supposi'. for iiisiMiicc. a
person were to charge me with stealing his watch, and i wi're to
say I hought it from a |iarticulai' tradesman, whom 1 name, that
is prima facie a reasonalile account, and 1 ought not to lie convict-
ed, unless it is shown that that account is a fal.se one." ( 1)
This ruling was conlirmed in the case of J{. v. Hughes. (2)
.\nd.in a more recent case. TiOrd J)ennnin. C.J., a]i[)roved >:f it. and
expressly laid ilowu his view, of tlu' duties of justices in sucdi a
case, in these words. — • J tjuite agree Avith the case of K. v. Crow-
hurst. It was nuMitioneil to me j>y jiaron Alder.son. at the time
when it occurri'd. If a person in whose ]iossession stolen proj)erty
is found give a reasonahle account ot' how he came liy it. ami makes
reference to some known ])erson as tlie pi'rson from w honi he re-
ceived it. the magistrate should send for that jierson and e.xanuue,
him; as it may he that iiis statement nuiy entirely exoiu-rate the
accused person, and put an cud lo the charge.'' (;>)
Tills rule, of course, will apply only to the case of a reference
not inconsistent with tlie other facts of the cjise ; for. if t he pris-
oner himselt' ha\e given \ arioiis accounts (d' iiow lie came possessed
of tiie property. (I) or if tliere are in the case circumstances wliicli
(1) K. v. Crowlnirst, 1 C. I'c K. 370.
(2) R. v. IlnLdie.s, 1 Cox, C. C- 170.
(3) H. V. Smith, L' C. & K. 107.
(4) H. V. Deiiloy. 2 C. itK. 81S.
220 PUACTICAL GUIDE TH MAGISTRATBS.
icinlci' till' jirisom'j's at'count unvoasonable or its truth improbable,
t!u' burden tboii of ])ro(lucing tbi' party referred to will be cast
U)><in tlu- accused. (1)
>>!M. — l>iM4'liai'K'«' of A«*«*iin<m1. m lioii ii4» Niifli<'i<'iit.
4'a.so. — When all the wituosscs on the jiart of tlic ])rosccuf ion and
tiic accused have been heard. tbe justice shall, if upon the whole of
the evidence he is of o]iinion that no sutficient case is made out to
])ut tlie accusi'd u])()n his trial, discharge liini : and in such case
any recoi;-nizances taken in respect of the idiarn'c shall itecome void,
unless some person is bound over to ])rosecute under the provisions
ne.Kt hereinafter contained.
When witnesses are ])roduced and examined on tbe jiart of the
prisoner, at tlu' preliminary investigation, the pro])er course to be
followed by tbe magistrate seems to be this. If the prisoner's
witnesses are believed, and tlieir evidence, without actually contra-
dicting the testimony of tbe Avituesses for tbe proseciftion, tends
merely to explain Ibe fads proved in support of tbe charge, and
to thus show the prisoner's innocence, they will have nnule out on
lu'half <if tbe accused a defence whi(di woidd renib-r any further
pi'oceedings unnecessary, liut. if the prisoners witnesses contradict
those for the prosecution, in nniterial points, tlu' case would then
be a itrojx'r one tr be sent to a Jury to ascei-ttiin and decide whi(di
of the two conflicting statements is tbe truth.
It sliould not be supposed that, because the bearing iiefore the
justice is only preliminary, and not (d' a final nature, .slight evi-
dence alone will be suttieient to warrant a committal for trial.
Justices have a right, in tbe pvlirainary investigation of an in-
dictable oit'enco. to expect, and ought to insist upon baving the
best evidence that exists in file case : and although in a ]n'elimin-
ary en(|uiry if is not for them to balaiue tbe evidence, yet such
evidence as is produced ought to W- of tbe same nature and quality
as that which would be admitted at tbe trial of the accused. All
tbe evidence, therefore, that would be re(juired to support the
(duirgi' u])on tbe trial should be carefully gathered togelber for
use u]ion tbe prelimiiuiry examinatiiui.
(I ) R. V. Harmer, 2 Cox, C. O. 487 ; R. v. Wilson, 2 Dears, C. C. 167.
COMMITTAL FOH TRIAL . 221
•>1I»>. — l*i*ow<>4'iitoi* .Hlo«t«'«l to bt' Ifioiiud Ov«>r
to liidi««t.— If tlu' justico discharges tlie accused, and the per-
son iirctiM'i'iniJc 1 lu' charii,'c (li'siivs to prefer an in(iictment respect-
ing tlie said cliai'ye. he may require the justice to liind him over
to prefer and pntsecute such an indictment, and tliereupon the
justice slijill tal<e liis i-ecognizauce to prefer antl ])rosecute an
iiidictnieiit a^'aiiist tlie accused iiefore the court liv wliich sucli
accused would he tried if such justice had coininitted him. and the
justice shall deal with the recognizance, information and depositions
in the >ame way as if he had ((uumitted the accused tor trial.
2. Such recognizance may lie in the b^orm U in sciiBnri,EO.\F,. (1)
or to the like effect.
3. If tlie |)rosocut()r so bound over at his own request does not
prefer and |)rosccute such an indictment, or if the grand juiy do
not tind a trui' liill. or if the accused is not convicted u])on tlie in-
dictment so jireh'rred. the prosi'cutor shall, if tlu' court so direct,
])ay to the accused person his costs, including tlie costs of his
ap]iearauce on the preliminary inquiry.
4. The court before which the indictment is to be tried or a judge
thereof may in its or his discretion order that the i»rosec\itor shall
not be permitted to prefer any such indictment until be has given
siu'Ui'ity for such costs to the satisfaction of siudi court or judge.
f>!N>.— foililllittul l4»l* Trial.— if a justice holding a
preliminary im]uiry thinks that the evidence is sutticieut to jmt tlie
accused on his trial, he shall commit liim for trial by a warrant of
commitment, which may be in the kor.m \' in sciiedi'LK one, (2)
or to the like effect.
SOT* — C'opiOM oi*l>«'|»ONitioiiN. — Kvery one who Inisbeen
commilted for trial, whether he is bailed or not. nniy be entitled
at anytime before the trial to have copies of the depositions, and
of his own statement, if any. from the officer who has custody
thi'reof, on ])aynn'nt of a reasonable sum not I'xceeding five cents
for i-ach folio ot' one hundred words.
(1) For Form V, see p. -SS, post.
(2) I'or Form V, lee p. 23it, poM.
222 I'llACTICAL (irillE 'I'll MAdlSTItATKS.
51»H. -ll«'«*o>{iii*aii<M' <o l*r»M4'4*iil4' 4»r tflvo K* i-
«|4'II4*«'. — VVIhmi iuiy (iiic is coiiuMitlffl lor I rial 1 lie just ice liiiltliiiii,'
tlu! prcliiniiiiiry iiKiiiiry iiiiiy ImihI over, to |>r()scciitc. some [ktsoii
willinji; Ut lu' so IkiuikI, and liiml ovur i-vi-ry wiliu'ss uliosc (li'|iosi
tion lias liiHMi taken, and whose evidenee in liis opinion is nialei'iai.
to fjive evidence at tlu' eonri liel'oi'e wiiieli the aeeiised i> to hi-
indi<'ted.
\i. Kveryrceoi^nizaiiee so entered into shall specify the name and
surname of till' |ierson eiiti'riiin' into it. his occupation oi- piof'ssioii
if any. tlu' place •)!' his I'esidence ami I he name ami niimlier, if any,
ofuny street in which it may he. and whcihei' he is owner ■>!• ten
ant thereof or a lodi^er thei'ein. i
:{. Such recoifni/.aiice may he either at the foot of the depohilion
or separate therefrom, and may he in tlii' J'on.M W, \ or ^' in scme
Dil.K (»NK of the ("ode. (1) or to the liUe etfect.and shall he acknow
ledo'eil hy the per.son eiiteriiif^ into the saiin'. and he siihscrihed hy
tlu' iusti<'i! oi- one of the Justices hefore whom it is ackiiowledu'ed.
•I. I-Acrv sn( h recoirni/.ance shall hin<l I he pcr.'-oii cnteriiiif into it
Id prosecute, or ,i;ive evidence, (hoth or eit her as the case may he),
hidore the court hy which the accused shall he tried.
5. All siitdi recoijnizances and all otln'i' recogui/ances taken iimler
tlie ('o(h' shall he liahle to he estreatetl in the Hanu^ inaimer as any
fui'fcited recoMiii/.aiH'e to apjicar is hy law liahle to he estreateil hy
ihe court hefore whi( h the priiici|ial party ther<-to was hound to
ai.i'ear.
(1. Whenever any person is hound hy recognizance to givi! evi
deuce hefore a Justice of the |ieace. or any criminal court, in res|)(^ct
of any otVence under the ( 'ode. any Justice of the peace, if he see^
tit. upon information I icing niadi' in writing.? and on oat h. t hat micIi
person is ahout to ahscond, or has ahsconded. may issue hi> warrant
for the arn'st of such person: and if su(di per^im is arrested any
iuslice ol' the peace. Upon heing satisfied that the cuds ot' justic
wouhl otherwihc he defeated, may commit such pel.■^ou to prison
until" the time at whi(di he is liound hy siiidi re<ognizaiicc to give
eviileiice. uule.ss ill the meantime he produces sullicieiil Mirt'ties ,
(1) For Foruis W, X and Y. m<m' pp. '-'4(i, nnd '-M1,;>,,w,
UECddNlZANCK I'll I'llusKCITK (Ht IIIVK KVIKKNCK. -li.'J
1)Ut iiiiy |iccs()ii so aiTcstcil sliiill lie chtitlfil (III (Icim.'mkI to rccc'ivn
ii cojiy nf 1 he iiil'uniiiitiiiii u|)(iii wliicli tliu wiin'Mil lor liis arri'st
was issiiiMl.
I r I lie wit iios iniiniiillcd lor I riiil clfcls :i s|K'C(|y 1 im;iI iiinifr I Ihs
jirovisioiis ol I'll It I/I \'. oT I lie ( 'oiif, rcialini;- lo s|)c('(l\ t rials of in -
<liclal)l(' ollciiccs, any rfcoifiii/.aiici' taken iinflcr tlic alio\t' ai'liclc^
r»!(S, \\)v liindini;' a |M'osi'cMlor or a witness will lie olilii^atorx' on
eaeh peison liound lliei'eliy. as to all tllini;s lliel'ein mentioned with
ret'ci'enee to sn(di speedy trial, as if sncdi reeonnizanee InnI lieen
oi'i.H'inally entei'ed into I'oi' tiiedoini:; of sneli tliinii,'s with lud'ereiu'e
to sncli speedy trial; prosideij. iiowexei'. that at least forty eiij lit
hours' nofu'c. shall he i;i\'eii. either personallv or hy h'axini;' the
same at the place of residence of the persons honnd. to appear
lieliire the jndi;'e at tlu' place where Mieli speedy trial is to he
hail. (Codi'. .\rt. 77'.>. jxist.)
•SSm. %%'illl4>N.S ICclllKillU' <<» l»4' It4»llll4l 4l%«'r.--
Aii\' witness who refuses to enter into or aiduiowleili^e any sindi
recognizance as aliiresaiil may hecommittcil hy the insiice holding'
llie iminiry by a warrant in the roiiM Z in sciiKiiii.i.; onk of llie
<!()ile, (l) or to the lik<' ellect. to the pi'ison for the jdace where
tlic trial is to he had. there to he kept until alter the trial, or
until the witiie-s enters into sncii a rccoi^ni/.ance as afoi'esaid,
liefore a ^justice of the peace iiaxiui;' jurisdict ion in the place where
till! |MMson is situated ; l'ro\ided that, if tiie accused is afterwards
disclwiriicd. any ju>ti(e havini;- snidi jurisdiction may onier any sucli
witness to lie discharni'd liy an oi'der wliieii may he in the i'okm A
A in the s.M n sc ukimlk. (2 ) or to t lie like etlect.
<»4IO. TraiiNiiiiiHMioii nV IIo4'Iiiii«'iiIk. Tin l(dlowiu<;
<iocuments >hall. as soon as uniy he alter tiie committal id' liu'
accused, he transmitted totiu' clei'k or other ju'iijicr ojlicer of the
court hy w iiich the accused is to he tried, that is to say. the infoi'-
nuttion. if an\ . the depositions ^d■ the witnesses, llie exliihils tlioi'c-
to, the statement of the accused, and all recoi;ui/,ances enfereil into,
and also any depositions taken hefore a eorom-r if any sueli huvo
heeu sent tot he just ice. t
(1) For Form Z, w«o p. '_'ll, putt.
(2) For Form AA.Heop. 'lA'i^poH.
-24 H.lLCi I'KACTICAL (JL'IDK TO MAUISTKATBS:
2. Whon any order changing tlie place ol' trial is made, the per-
son obtaining it shall serve it, or an office copy of it. upon the
person then in possession of the said documents, who shall tliere-
upon transmit the indictment, if found, to the officer of llie court
before which the trial is (o take place.
Section 12 ol' the North West Territories Act (54-55 Vict., c. 22)
directs that every justice of the peace or other magistrate holding
a )»reliminary investigation into any criminal offence, whicli may
not be tried under the provisions of '• The Summary Convictions Act,"
shall, immediately after the conclusion of such investigation, trans-
mit, to the clerk of the Court for the judicial district in which the
charge was made, all informations, depositions, recognizances, and
papers connected with such charge, and that the clerk of the Court
shall notify the judge thereof.
<»OI. — Kill*' aw to Bail. — AVhen any person appears before
any justice charged with an indictable otfence punishable by im-
prisonment for more than five years. — other than treason or an
otfence ])unishable with death, or an offence under Part IV of the
Code, (1) — and the evidence adduced is, in the opinion of such jus-
tice, sufficient to put the accused on his trial, but does not furnish
such a strong presumption of guilt as to warrant his committal for
trial, the justice jointly with some other justice, may admit the accused
to bail upon his procuring and producing such suret}' or sureties
as, in the oitinion of the tivo justices. yy\\\ be sufficient to insure his
appearance at the time and ]>lace when and where he ought to be
tried for the otfence ; and thereupon the two justices shall take the
recogni^iinces of the accused and his sureties, conditioned for his
appearance at the time and jiiace of trial, and that he will then
surrender and ta're his trial and not depart the court without leave ;
and. in any case in which the offence committed or suspected to
have been committed is an offence ])unishal)le by impi-isonment for
a term less than five years, any one justice, before whom the accused
appears, may admit to bail in manner aforesaid ; and siub justice
or justices ma}', in his or their discretion, require such bail to jus-
tify upon oath as to their sufficiency, which oath the said justice or
(1) Part IV of the ("ode, deals with Treason and other offences against
tfie Queen's authority and person.
RULE AS T(t BAIL. 226
justiceH miiy iulminisUT ; iind in (lotiiult ol' such person procuring
Kufficient bail, such justice or Justices may commit him to prison,
tliere to be k^pt until delivered according to law.
2. The recognizance mentioned in this section shall be in the form
Bli in SCIIBDLLE ONE. (1)
In the case of a prisoner charged with an indictable otl'enct- pun-
ishable by more than live years imprisonment. — other than treason
or an otlence punishable with death, or any ott'ence against Part IV
of the Code — this Article gives to two justices, or. (by virtue of Ar-
ticle 54] of the (!ode, ante,) to a judge of sessions, police magis-
trate, recordei", or other functionary vested, by that Article, with
the powers of two Justices, a discretionary- power to admit him to
bail ; and in the case of a prisoner charged with an ott'ence pun-
ishable by less than Hve years imprisonment, he may be adniitttid
to bail by one Justice.
In deciding whether the accused should or should not be ad-
mitted to bail it should be borne in mind that, the purpose of a
committal to jirison before trial is to ensure the appearance of the
accused at the time and place when and where he is to be tried ;
and justices should consider the circumstances of each case, with
this object onl}' in view. As this duty involves an enquiry in which
discretion must be exercised, no general rule can be laid down.
Usually, however, it will be sufficient for the justices to look at
the nature and magnitude of the charge, the position in life of the
accused, the cogency of the evidence against him. and the probable
severity of the punishment likely to follow a conviction : and, if
they consider it probable that the accused would sooner that he
and his sureties should forfeit a sum of money than run the risl«
of a trial and conviclirin and the sentence likely to follow, they
should rvjfuse to a<lmit the accused to bail.
The amount of the recognizance is entirely in the justice's dis-
cretion, and should depend upon the nature of the charge and the
position of the i)arties. ....
A magistrate must not. however, in a case in which the accused
is entitled to be admitted to bail, require excessive bail, so as in
(1) For Form BB, .soe p. 243, post.
22(! I'KACTICAI, (iUIDE Tn MAdlSTKATES.
cltluM to ainoiint lo a dciiial of bail ; or he may ruiulov lumsolf
liable to an action at tlu' suit of (he ])('rsoii wrongfully imprisoned,
or cM'n to a criniinal proscculion. (1)
Stili.it lias been iicld tliat the power ol.' a inayislrate to aL'('e|)t or
refuse iiail.even in cases where the accused has a right to be hailed.
is a judicial function, and that an action will not lie against him for
refusing to take bail in such cases, in theabsenceof jjroof of express
malii-e. even thoui;h the sureties tendered are found suiHcicnt. (2)
For (lie purpose of determining the sutticiency of the jiersons
tendered as sureties, the justice may require their names to be given
to the ]trosecutor. some time previousl3'. say 24 or 4H liours. and
lie may 'administer to the |)ersous tendered an oath •• to nuilce
true answer to all such (puvstions as may be 'demanded of theni" ;
and he may then put to them the usual qtu'stions as to their
means, property and liabilities and whether or not they are solvent,
and so on : but the justice ought not to interfere in any way to
dis(|uiet them from becoming bimnd as bail : (H) nor can he legally
enquire into the jiensonal eharaoter or political opinions of the per-
sons ottered as bail. His iluty is restricted to an enquiry into tlie
sufliciency of the property of the sureties to meet the recogniz-
ance. (4)
In a case which came before .Martin B.. that learned judge is
reported to have stated his opinion to be that if the justice is satis-
fied of the solvency of the persons tendered as bail, he is not justi-
fied in rejecting them on account of any alleged objections to their
moral character, or from the fact of their being indemnitied by tlie
defendant. (5) ,: ^ '
• «0!J. Bail .liter Coiiiiiiittul.— In case of any ortence
other than treason or an ott'ence punishable with death, or an
ott'euce under Part IV. of the Code, where the accused has been
finally committed as herein ])rovided. any judge of any superior or
(1) R. V. Badger, 12 L. J. M. C. (W ; 4 Ad. & T-:. 4(>8; R. v. Tracey, 15 L. J.
M. C 145.
(2) Linford v. Fitzroy, 18 L. J. M. C. 108; 13 Q. B. 240.
(3) K. V. Saunders, 2 Cox, C. C. 240.
(4) R. V. Badger, mpra.
(5) R. v. Broome, 18 L. T. 19.
llAir, AKTKK ro.MMrTTAI,. ZSl
comity ctiiirl. liaviiin' jurisdiftiiin in tlic county or district witliin
the limits of wliicli tlio aocusotl is contiiicd. may, in his discivtion.
on a|)|)iii'ation made to him for llnit |)nri»osc. order the accused to
he admilti'il to liail on I'nterini^ into recoynizance with siitlicii'iit
surotios iiefore two Justici's. in smdi amount as tiie Judi:;c directs,
and thei'cupon the Justices shall issue a warrant of deliverance as
hereinafter )irovided. and shall attaidi thereto the order of the
Judge dii-eclini;' the admitting of the accused to hail.
2. Su(di warrant of deliverance shall he in the form ('( ' in
SCHKDUI.E ONE. (1) . A
<»OJfi. Iliiil hy Nii|>4'i*ioi* Court. — Xo Judge of a county
court or Justices shall admit any |»i'rson to hail accused of treason
or an otVence punishahle with death, or an otlencc under I'ai't I \^ of
the Code, nor shall any such j)erson he ailmitti'd to hail. exce])t hy
order of a Sui»erior Court of Criminal Jurisdiction lor the province
in whicdi the accused stands committecl, oi- of one of the Judges
thereof, or. in the provinci' ol' (^uehec. hy order of a Judge oi' the
(Joui't of (^uei'u's JJencdi or Superioi- Court.
«04. A|i|»li<«atioii for Kail Al'tor <'omiiiittal.
— When any [K'rson has heen committed for trial l>y any Justice,
the jjrisoner. his counsel, solicitor or agent may notify the commit-
ting Justice, (hat lie will, us soon as c(mnsel (-an be heard, move be-,
fore a Superior Court of the province in which suidi ])erson stands
committed, or one of the Judges thereof, or the Judge oi'tlie county
court, if it is intended to apply to sucdi Judge, uniler secti..:; (i02,
for an order to tlie Justice to admit such prisoner to bail, — vhere-
upon such committing Justice shall, as soon as nniy be, transmit to
the Crown, or the chief clerk of the court, or the clerk of the
county court, or othei- propi'r otticer. as the case may be, endorsed
under his iiand and seal, a certitied co))y of all informations,
examinations and other evidence touching the oflence wherewitli
tlie ])i-isoner has been charged, together with a copy of the war-
rant of conimilment, and the packet containing the same shall be
handed to the ))erson applying therefor, for transmission, and it
shall be certitied on the outside thereof to contain the information
concerning the case.
(1 ) I or Form CC, see p. 244, post.
228 I'RArTioAL (irriiE to maoistuates.
2. Upon such iipplicutiou to any such court or judge the sumo
order concerning tlie prisoner being hailed or continued in custody
shiill he luiido as it' th<' prisoner was hrouglit uj* upon a habeas
corpus.
3. If any justice neglects or offends in anything contrary to tlie
true intent and meaning of any of the j)rovision8 of this section,
the court to whose otticer any such examiinvtion. information,
evidence. i)aiiment or recognizance ouglit to have been delivered,
shall, upon examination and proof of the otl'ence, in a summary
manner, impose such liiu^ upon every such justice as the court
thinks fit.
605. Warrant of llt'livcrant*«'. — Whenever an^- jus-
tice or justices admit to bail any person who is then in any prison
charged with the offence for which he is so admitted to l»aii, sucli
justice or justices siiali send to or cause to be lodged with the
keeper of such prison, a warrant of deliverance under his or their
hands and seals requiring the said keeper to discharge the person
so admitted to bail if he is detained for no other offence, and upon
such warrant of deliverance being delivered to or lodged with such
keeper, he shall forthwith oljey the same.
(>04>. Warrant tor ^lrr«'Nt 4»1' Bail<'«l l*<'rN4»n
About to AI>N('ond. — Whenever a person charged with any
offence has been bailed in manner aforesaid, it shall be lawful for
any justice, if he sees tit, upon the ap))lication of the surety or of
either of the sureties of such person, and upon information being
made in writing and on oath by such surety, or by some ])er.son on
his behalf that there is reason to believe that the person so bailed
is about to abscond for the purpose of evading justice, to i.ssue his
warrant foi' the arrest of the jterson so bailed, and afterwards,
upon being .satisfied that the ends of justice would otherwise be
defeated, to commit such pei-son wlien so arrested to gaol until his
trial, or until lu' produces another sufficient surety or other suf-
ficient sureties, as the case may be, in like manner as before.
For Forms of Information of Sukety. and of Warrant, and
Commitment thereon, see "Additional Forms 'after the general
forms, at the end of this chapter, (pp. 247-250, ^os<.)
KoiiMS. . 229
007* l>ollv«'ry ol AcriiN4>«l in PriNOii. — The con-
Htablo or any of the coiiHtiiblos, or otlu'r |K)rHoii to whom any war-
rant ol'commitnuwil autliorizi'd by the (!riininnl Codo or any other
aot or hiw is din^ctod, Hhall coiivy the uct'UHed person therein
named or (Uiseribeil to the gaol or other priso?! mentioned in such
warrant, and there ileliver him. togetlier with the warrant, to the
keeper of Hueli gaol or jtrison, who HJiall thereupon give the
eonHtal)le or otiier person delivering th(^ |)i"isoner into his custody,
a receipt for the prisoner, setting forth the state and condition of
the prisoner when (U^livered into his custody.
2. Such receipt sbull be in the fokm DI) in scHEDur-E one. (1)
As to Recognizances generally, and remedies thereon, when for-
feited, see Chapter XIV, yos^
FORMS UNJ)K1{ PART XLV OF THE CO DM
K— {Section 580.)
SU.M.MO.NS TO A WITNESS.
(Janada,
Province of
County of
1
To K. F., of , {labourer) • .
Whereas information has been laid^before the undersigned
, a justice of the peace in and for the said county of
, that A. B. (&c., as in the summons or warrant against the
accused), and it lias l)een made to ap[)ear to me upon {oath), that you
are likely to give material evidence foi- {the prosecution) . ; These arc
therefore to require you to be and to a[»pear before me,.on
next, at o'clock in the {fore) nooji. at . or before
such other justice or justices of tlie peace of the same county of
.^as shall then be there, to testify what you know
( 1 ) I'^or Form DD, see p. 245, poM.
280 I'llArTrCAI. guide to MACir.STRATKS.
cdiK^'iMiiiiy tlu' siiiil fluirgc so iiiiuli' against tlu- saiil A. U. as aibiv-
said. llfi'ciii tail not.
(liven nndt'i' my hand and seal, lliis (l;i\' (d'
ill t lie year , at ■ , in tlic county at'oi'i'said.
.1. S.. [SEAI,.]
./. P.. {Na7ne of county)
\..—{Sedim r),s2.)
WARRANT WHEN A WITNESS HAS NOT OHEVI-W) THE Sl.MMONS.
("a- 'da. 1
I'rovinci' o, , /•
(.'(umty of ,3
'I'o all or any (d' tlie ••onstalik's and oMu'V peace officers in tlu' said
county of
Wlieivas infornnition having hecn laid before . a Justice of
the peace, in and for the said county of , that A. B.
{&c., as in tliesuvxmonn) ; and it having Ixrcn made to appear to (vie)
ujion oath tliat E. V. of . (labourer), was likel}- to give
material (nddence for (the prosecution). (/) duly issued (my) sum-
mons to the said E. l\. requiring him to bo and appear before (me)
on . at . or before such other Justice
or Justices of tiie )»eace for the same county, as should then i)e 1 here,
to testify what he knows respecting tlie said charge so made against
the said A. 1^. as aforesaid ; and whereas ])roof has this day been
made ii])on oatli bcdore (ine) of such summons having been duly
served ui)on the said K. F. ; and whereas the said I'j. K. lias neglected
to ap])ear at the time and ))hice a])pointed iiy the said summons, and
no just excuse has l>een ottered for such neglect ; These are there-
fore to command you to bring and have the said K. F. before (me) on
at o'cl()(d< in the (fore) noitn. at
or before such other Justice or justices for the same county, as shall
then be there, to testify what he knows concerning the said charge
so made against the said A. \i. as aforesaid.
(iiven under (my) hand and seal. tluM day of
FliUMS. '2,11
, in llu' yt'iir , at , in the cuinily
at'ort't^iiiil.
.1. S . [seal]
/. P., {Name of coitnti/.)
yi.— {Sectional)
WARRANT FOR A WITNKSS IN TIIF, FIRST INSTANCE.
Cuinula, 1
Province of , >■
('onnty of . )
To all or any of the constahles and other peaee oftieers in tlie sai<l
count}- of .
Whereas information has been laid hetore the undersigned
, a justice of the peace, in and for the said county of
hat (<fc., as in the summons) : and it having heen nnide to ajtpear to
(Hie) u])on oath. (1) that K. F. of . (labourer), is likely to give
material evidence for the prosecutitni, and that it is prohahle that
; he said K. F, will not attend to give evidence unless compelled to do
o ; These are therefore to command you to hringa id have the said
. '. F. before (me) on . at o'clock in the (fore) noon,
at . or before such other justice or justices of the peace for
the same county, as shall then be there, to testify what he knows
concerning tlu^ said charge so nnule sigainst the said A. H. »n afore-
said.
(liven under my hand and seal, this day of ,
in the year , at , in the county aforesaid.
.1. S., [SEAI,.]
./. P. (Name of county.)
(1) For Korni of neposition that a i)er8on is a material witness, see p.
245, fast.
2;J2 PKAOTrCAI- CiirnK Th MAdlsrUATES.
^.—(Seetion 584.)
WARRANT WHKN A WITNESS HAS NOT OBEYED THE SUBPUSNA.
Ciiiiixla, ■)
Province of , >-
County oi' , )
To all or any ofllic constaMi's and otlitr |n'iict' otHccrs in the said
counly ol'
Whoiva.- inlbnnation iia\ ing been laid befoiv , a Justioo
of the ])OiU'c, in and for the said county, that A. li. (&c., as in the
summons) ; and there lieing reason to lielievethal E. F., of
in tlie province of . (labourer), was likely to give material
evidence for {the prosecution), a writ of subpo-na was issued byordi-r
of , jixly^' 'd' (name of court) to the said 10. F„
requiring him to be and a])i)ear befori" (me) on , at
or before sueh other justice or Justices of the j)eace
for the same county, as shouUl then bo there, to testify what ho
knows respecting the said charge so made against the said A. li., as
aforesaiil ; and whereas proof has tliis day been made u])on oath
bei'ore (me) of such writ of subpu'iui having been duly served upon
the said K. V. ; a. id wliereas the said il F. has neglected to ap]»ear
at the tinu! and place appointed by the said writ of sul)p«?na, and no
juMt excuse has been ottered for siu'h neglect : These are tlierefore
to command you to bring and have tiie said K,« F. before (7ne) on
at oclock in the (fore) noon, at ,
or before <uch other justice or justices for the same county as shall
then In- lher«', to testify what he knows concerning tlie said charge
so nuide against the said A. 15. as aforesaid.
Given under (m//) hand and seal, this day of ,
in tlie year , at , in the county aforesaid.
.1 S.. [SEAI,.]
J. P. (Name vf county.)
FORMS. 233
O.— (Section SS").)
WAKHANT UK CDMMITMKNT or A WITNESS FOR RK^•|'sr^■(i Tn HE
SWORN OR TO (JIVE EVfDENCE.
Caiiada. "1
Proviiu'i: of , 1-
County di' I J
To all 111' ;iny <>| tliu (.•on^<tables and otlior poaoc otficcrs in the
county of , and to tho keeper of the common gaol
at . in tho said county of
Wlu'i'ras A. 1). was lately cdiarycd Ijefore , a
justice of tiic peace in and for the said county of , for
that (Ac, as in the summons) ; and it having been made to appear
to (me) ujion oatii tiiat E. F., of , was liicely to give
material evidence for the pi-osecution (I) duly issued (my) sum-
mons to the sail! 10. F., i-equiring him to be and appear before me
on . at . or In-fore such otlier justice or
justices of the ])oace for the .same county as should then be there,
to testiiy what he knows concerning the said charge so made
against the said A. B. as aforesaid ; and the said E. F. now appear-
ing before (7ne) (or l)eing brought before [me] by virtue of a war-
rant in that behalf.) to testify as aforesaid, and being rc.pured to
nuike oath or affirmation as a Avitness in that behalf, now refuses ho
to do (or being duly sworn as a witness now refuses to answer cer-
tain questions concerning the premises which ai'O now here put to
him. and more |)articularly the foUowing : )
witbout ottering any just jxcuso for such refusal. These are there
fore to command you, the said constables or peace officers, or any
one of you. to take the said E. F. and him safely to convc}' to the
common gaol at , in the county aforesaiil, and there
to deliver him to the keeper thereof, together with this jirecept :
And (I) do herebj' command you, the said keeper of the said com-
mon gaol to receive the said H. F. into your custody in the said
common gaol, and him there safely keep for the space of
days, for his .saiil contempt unless in tho meantime ho consents to,
he examined, and to answer concerning the premises ; and for
your so doing, this shall be your sufficient warrant.
-M PRACTICAL (ilU)K TO MACilSTHATES.
(Tivi'ii uiidcr (my) haiul and seal, this day of
in tho vrar , at , in tlic county at'oivsaid.
J. S. [sEAIi]
. . J: P.. {Name III' county)
V. — (Section ")S(;.)
WAIUiANT KE.MANlUNMi A I'UISONEK.
t'linadii. "^
Province o]' . V
County of , j
To ill) or any of tlic oonstalilos and other peace otHcers in the naid
county of . and to tlie lce»'j»i'r of tin' common gaol
at . in tiie said county.
Whorea8 A. B. was this (hiy chargi'd hefon- the ,. . 'ersigned
. a Justice of tiie peace in and tor the said v,ountv
of . for that (itc.. as in the uarrant to ap' rehend). ai'd it
appears to (me) to in' nect-ssary to riMuand the sa'd A. W. : Th<'se
are therefoi-e to comnuind you. tlie said co'.stahles and ])eace
officers, or any of you. in Iler >[ajesty"s mime, forthwitli to convey
the 8Hi<l A. H. to the common lijaol at . in the said
county, anil tlu're to deliver him to the keeper tliert'of. together
with this precept ; And I lu'reliy command you the said keeper
to receive the said A. H. into your custody in tiie said common
gaol, and there safely keep him until the day of
(instant), when I hereliy comnuind you to have iiim at
. at o'clock in the (fore) noon of the same day
liefon- (//le) or hefore such other ju>tici' or Justices of the peace for
the said county as shall then he there, to answer further to the
said charge, aiul to lie further dealt with according to law. unlews
y<m shall he otherwisi' ordered in the meantime.
(tiven undei' my hand and si'al. this day ot
in the year .at . in the county aforesaid.
.1. S.. [SEAI,.]
./. P., (Name of county.)
F )RMS. 235
Q.— (Section 587.)
HECOONIZANCK OK HAII. INSTKAl) tiF RK.MANl) l)N AN All.IOL'RNMKNT
OF EXAMINATION.
Caniula, "I
I'roviiu'c ol' , >
(youiity of , 3
Ho it vemembored that nu the day of , in
tlu' year . A. B.. o.' , (labourer). L. M., of
. (grocer), ami X. ().. of (butcher), per-
sonally caini' liofori' nio. , a justice of
tlio jK-ace for the said county, and severally acknowledged them-
selves to owe to our Sovi'reign Lady the Queen, her heirs and suc-
cessors, the several sums following, that is to say : the said A. B.,
the sum of . and the said L. M. and N. O.. the sum of
ea(di. of good and lawful current money of Canada, to
he made and levied of their several goods and chattels, lands and
tenements, ivspectively. to t'le use of our Lady the Queen, her
heirs and successors, if he, the said A. E., fails in the condition
endorsed (or hereunder written.)
Taken and acknowledged the day and year fii-st above mentioned
at before me.
J. S.,
J. P., (Name of county.)
CONDITION.
The condition of the within (or above) written recognizance is-
such. that, whereas the within luiunden A. B. was this day (or on
last past) charged before me for that (<tr., as in the
warrant) ; and whereas the examination of tlu' witnesses for the
prosecution in this behalf is adjourned until the day of
(instant) : If, therefore, the said A. 1}. appears before
me on the said day of (instant), at
o'clock in the (fore) noon, or itefore such other justice or justices-
of the peace for the said county as shall then Ik- there, to answer
(further) to the said charge, and to he further dealt with aecording^
k;
2:5); I'UACTroAi, ourDE to maoistrates.
ti> l;i\v. till' Niiid i'('f(i,i!;iiiz!iiicc to lu' void. olherwiHo lo stand in full
i'orcf ;tnd virtue.
\l.— {Section oSK.)
CK.UTIKrCATK < > 1' N ON A I'l'KA HANOK TO UK KNOOKSKO ii\ TllK UKOOG-
NI/iANOE.
I lii'i't'liy ccrlify llial the said A. H. lias not a])])('ared at the; timo
and place in tiu' above condition mentioned, l)Ut therein has made
a <let'aull. Iiy reason whereof (he within written recognizanco in
jbrfeited.
.1. S.,
J. P., (Name of county.)
S.— {Section r)!M».)
DErOSITtON OV A WITNESS.
( 'anada,
Province of
Counlv of
:!
The deposition of X. Y., of , taken l)ofore the undcr-
signed. a justice of tho peace for the said county of ,
this day of , in the yeai- , at
{or after notice to C. D.. wlio stands committed for
) in the presence and hearing of (1 D., who stands
<diargeil that [s^tote the charge). The said deponent saith on his
{oath or affirmal ion) as follows : ( fnsert deposition as nearly as
possible in words of icitness). (1)
(1) Wliere the acc'iised interpoFes an oliservation during the examination
(if a witne«8, insert it, as follows : — " The prisoner here voluntarily says
" ( f*ut hifi verij worih) [or " The prisoner — havinj; at this stage of the proceed-
\u'^H, said he desired to make a statement, and having been given (clearly to
iinderHtand that he was not obliged to say anything, now, but that whatever
tm did say ould be taken down in writing and might be used as evident
Hgiiinst hiin, — voluntarily says, as follows: — {Put hii> venj words), or," The
prlHoner, tieing asked whether he wished to put any question to the witness,
voluntarily says, {I^ut hin verij wordu). ]
Kdlt.MS. 237
(// dejidsHionH of serernl witnesses are taken at the same time, they
may he. ttihtn and siijned im follows : )
The (l(.'iH.sili()iis (.r X,, i.f . V..of , Z., ol'
. iV'c. t;ikcii ill llic |ir('S('ii(H' iuiil lu'iiriiiy of C D., who
stani|> cliMri^'cd I liiil
'I'lic <lc|ii)Mciii \. (on his oath or af/irviation) says as iollows :
'I'lic (lf|((>ii('iil \ . (on his oath or afflrmatinn) says as follows :
Till' (li'|MiiicMt Z. (on his oath, <tc., d-c.)
( The dtjnature of the justice may he appended as follows :)
Tlic (l('|iositi()iis of X.. Y., Z., iVc. written on IheHovenil slicotH of
l»:i|n'r. to tin- last of wliicli iii_>' siy;iiatiif(' is aiiiiexed, wuro taken in
till) |)resonce and lieariiiif of C D.. and siijned i)j- tin- said X., V.,
Z., roH|iecliv('ly. in ids pivsciico. fn witiioss whereof 1 have in ilio
prcsenci' of tlie said ( ". D. sii^ned my name.
J. S.,
J. P., {Name of county.)
'[\— Section .")!»].)
Caiuuhi,
Province of
County ol
HTATKMKNT Ol-' THK AOOirSKD.
,\
A. B. stands eharufod liefore the undersiifiied , a
JuHlice of tlie |)eaee in and for tiie eounly aforesaid, this
day of . in the year , for that the said A.
M., on , at (ibc, as in the captions
of the depositions) ; and the said cliarn'e hein^ wml to the said A.
M., and tlie witnesses for the proseeiition. ('. J). an<i K. F., ho'r.g
sovoraily exuininud in liis prt'sence. tlie said A. H. is now addressed
liy me as follows : " lliiving heard the evidence, do you wish to
" suy anything in answer to the charge ? Vou are not ohiiged to
" suy anything uidess >i>ii desire to do so ; hut whatever you Hay
'• will be taken down in writing, and nni}' he given in eviuf'co
2:58 PRACTICAL (HinE TO MAGISTRATES.
'• agiiinst y«>ii s't your triul. You must cli'iU'ly UMdcrstantl that.
" you have nothing to liojx' from any promisi' of favour, and
" notliinir to fear from any throat which may iuivc hccu iicid out
'■ to indufo you to mako any admission or confession of guilt. Iiul
'• whatever you now say may be given in evidence against yon
'■ upon your trial, notwithstanding su(di promise or threat."
Whereupon the .said A. H. says as follows ; {Here state whaterer the
prisoner says, and in his very words as nearly as possible. Get him to
sign it if he icill.) (1)
A. W.
Taken before me, at . the day and year first above
mentioned.
.1. S. [seal.]
J. P. {Name of county.)
v.— (Section 5i»5.)
FORM OK RECOGNIZANCE WUEKE THE l'K(...ECITOR REQt IRES THE
JUSTICE TO BIND HI.M OVER TO PROSECUTE AFTER THE
CHARGE IS DISMISSED. . ' ^ .
Canada, ')
Province of , >•
County of , 3
Whereas C. D. was charged before me upon the information of
E. v., that C. 1). {state the charge), and upon the liearing of the
said charge I discharge the said C. I)., and the said K. P. desires to
prefer an indictment against the said C. .0. respecting the said
charge, and has required me to bind him over to prefer such an in-
dictment at {here describe the hext practicable sitting of the court by
ivhich the person dischargtd would be tried if committed.)
(1) When there are several persons oliarged with the same offence, thert>
need not be a separate statement for each person accused; but all their
namee should be stated at the coniinencement of the above form ; and then,
in the latter part of the form,— alter giving the statement of the prisoner,
whose name comes first, — say, for the second one in order, — "And the said
says, as follows;"— (Acre give the statement of the gecond
prisoner) and so on, with each of the several persons accused.
FCtHMS. 2H!)
Till' niulersii^iuMl K. K. lu'ivhy hiiuls hiinscif to perforin tlic fol-
lowin/:^ ()l)liy;ali()ii, that is to say. tliat lie will ])iTf'er and prosieulc
an inilii'tment rospootiiig tho said chalet' ai^ainst the said ('. I), at
(as above). And the said K. F. aeknowledgos himself bound to
forfeit to the Crown the snni of S in case he fails to per-
form the said ohliijfation.
K. F.
Taken before me.
J. S..
./. P.. (Name of coxiidy.)
Y .—(Section 5\Ul.)
WARRANT OK COMMITiMKNT.
Canada.
Province of , ,
County of , )
I
To the constable of , and to the keeper of
the (common gaol) at , in the said countj''
of
Wliereas A. B. Avas this day charged before me, J. S., one of
Her Majesty's justices of the peace in and for the said county of
, on the oath of C D., of , (farmer),
and othei-s for that (&c., stating shortly the offence) : Those are
therefore to command you the said constable to take the said A. B.,
and him safely convey to the (common gaol) at
aforesaid, and there to deliver him to the keeper thereof, together
witli this precept : And I do hereby command you tho said keeper
of the said (common gaol) to receive the said A. B. into your
custody in the said (common gaol), and there safely keep him until
he shall be thence delivered by due course of law.
Given under my hand and seal. thi,s day of
, in the year , at .in the county
aforesaid.
J. S.. [seal]
J. P., (Name of county.)
240 PRACTICAL GUIDE TO MAGISTRATES.
W.— (^Section 598.)
RKCOGNIZANCE TO PROSECUTE.
Canada,
Province of
County of
:1
Be it remembered that on the day of , in
the year , C. D., of , in
the of , in the said
county of , (farmer), personally came before
lae , a justice of the peace in and for the said county
of , and acknowledged himself to owe to our Sovereign
Lady the Queen, her heirs and successors, the sum of , of
good and lawful current money of Cahada, to be made and levied of
his goods and chattels, lands and tenements, to the use of our said
Sovereign Lady the Queen, her heirs and successors, if the said C. D.
fails in the condition endorsed (or hereunder written).
Taken and acknowledged the day and year first above mentioned
at ' ' , before me.
J. S.,
J, P., (Name of county.)
' CONDITION TO PROSECUTE.
The condition of the within (or above) written recognizance is
such that whei'eas one A. B.. was this day charged before me, J. S.,
a justice of the peace within mentioned, for that (ifcc, as in the
caption of the depositions) ; if, therefore, he the said C D. appears at
the court by which the said A. B. is or shall be tried * and there
duly prosecutes such charge then the said recognizance to be void,
otherwise to stand in full force and virtue.
X.— (Section 5dS).
COGNIZANCE TO PROSECUTE AND GIVE EVIDENCE.
(Same as the last form, to the asterisk, * andthenthus) : — And there
duly prosecutes such charge against the said A. B. for the offence
FORMS. 241
f
ulbresiiid and gives eviilenco thereon, as well to the jurors who
shall then inquire into the said ottenco, as also to them who whall
pass upon the trial of the said A. li., then the said recognizance to
be void, or else to stand in full force and virtue.
Y.— {Section a'.tS).
(Same as the last form but one, to the asterisk, ■^- and then thus:-^
And there gives such evidence as he knows upon the charge to be
then and there ])refeiTed against the said A. E., for the offence
aforesaid, then the said recognizance to be void, otherwise to remain
in full force and virtue.
Z.— (Section 500.)
COMMITMENT OF A WITNESS FOR REFUSINU TO ENTER INTO THE
RECOGNIZANCE.
Canada, ~\
Province of , >
County of ,J
To all or any of the peace officers in the said county of ,
and to the keeper of the common gaol of the said county of
, at in the said county of ,
Whereas A. B., was lately charged before the undersigned (name
of the justice of the peace), a justice of the peace in and for the said
county of , for that (tfcc, as in the summons to the witness),
and it having been made to appear to (me) upon oath that E. P.,
of , was likely to give material evidence for the prose-
cution. (I) duly issued (my) summons to the said E. F., requiring
him to be and appear before (me) on , at or
before such other justice or justices of the peace as should then be
there, to testify what he knows concerning the said charge so made
against the said A. B. as aforesaid ; and the said E. P. now appearing
before (me) (or being brought before (me) by virtue of a warrant in
that behalf to testify as aforesaid), has been now examined before
(me) touching the premises, but being by (me) required to enter
242 PRACTICAL GUIDE TO MAGISTRATES.
into ii recognizance conditi'^ned to give evidence against the said
A. B. now refuses so to do : These are thei-efore to command you
the said ])eact> otttcci-s. or any one of you. to take the said E. F. and
him safely convey to tlie common gaol at , in the county
aforesaid, and there deliver him to the said keeper thereof, togetlier
with this precept : And I do liereby command you, the said kee])er
of the .said common gaol, to receive the said K. K. into j-our custody
in the said common gaol, there to imprison and safely keep him
until after the trial of the said A. M. forthe offence aforesaid, unh'ss
in the meantime the said K. F. duly enters into such recognizance
as aforesaid, in the sum of before some one justice of the ]»eace
for the .said county, conditioned in the usual form to appear at the
court by which the said A. B. is or shall be tried, and there to give
evidence ujion the charge which shall then and there be preferred
against the said A. B. for the offence aforesaid.
Given under my hand and seal, this day of ,
in tlie year , at , in t'le county aforesaid.
J. S.. [SBAF,.]
J. P., {Name of county.)
A A. —(Section 509.)
SUBSEQUENT ORDER TO UISCIIAHOE THE WITNESS.
Canada,
Province of
(younty of
:1
To the keeper of the common gaol at , in the
county of , aforesaid.
Whereas b>- (my) order dated the (hiy of
(instant) reciting than A. H. was lately before tlu-n charged before
(me) for a certain offence therein mentioned, and that E. F. having
ai)peared befoi-e (wie) and being examined as a witness for the pro-
secution on that behalf, refused to enter into recognizance to give
evidence against the said A. B., and I thei-efore tliereby committed
the said K. F. to your custody, aiul required you safely to keep him
until after the t 'al of the said A. B. for the offence aforesaid ; un-
less in the meantime he should enter into such recognizance as
FORMS. 243
aforesaid ; and wherouH for want of sufficient evidence against the
said A. B.. the said A. H. lias not been committed or holden to bail
for the said offence, but on the contrary thereof has been since dis-
charged, and it is therefore not necessary that the said E. F. should
be detained longer in your custody' : These are therefore to order
and direct you the said keeper to discharge the said K. F. out of
3^our custody, as to the said commitment, and suffer him to go at
large.
(liven under my hand and seal, this ; day of
, in the year , at . in the county
aforesaid .
■ .1. S., [seal.]
' J. P., (^Name of county.)
BB.— (Section 601.)
RECOriNIZANOE OF BAIL.
Canada, ^
Province of , >•
County of . j
Be it remembei'ed that on the day of , in
the year , A. B. of , (labourer.) L. M.
of (grocer), and N. O. of . (hutclier). personally
came before (us) the undersigned, (two) justices of the peace for
the county of , and severally acknowledged themselves
to owe to our Sovereign Lady the Queen, her heirs and successors,
the several sums following, that is to say : the said A. B. the sum
of , and the said L. M. and N. O. the sum of
each, of good and lawful current money of Canada, to be made and
levied of their several goods and chattels, lands and tenements res-
pectively ; to the use of our said Sovereign Lady the Queen, her
heirs and successors, if he, the said A. B., fails in the condition en-
dorsed (or hereunder written^.
Taken and aknowledged the day and year first above mentioned,
at befoi-e us.
J. S.,
J. N.,
J. P., (Name of county.)
244 PKA-OnOAI. GUIDE TO MAGISTRATES.
CONDITION.
The condition of the within (^or above) written recognizance, is
such that whereas the said A. B. was this day charged before (us),
the justices within mentioned for that (&c., as in the warrant) ; if,
therefore, the said A. B. appears at the next court of oyer and ter-
miner (or general gaol delivery or court of General or Quarter Ses-
sions of the Peace) to be holden in and for the county of ,
and there surrender himself into the custody of the keeper of the
common gaol (or lock-up house) there, and pleads to such indict-
ment as may be found against him by the grand jury, for and in
respect to the charge aforesaid, and takes his trial upon the same,
and does not depart the said court without leave, then the said re-
cognizance to be void, otherwise to stand in full force and virtue.
GC— (Section 602.)
WARRANT OF DELIVERANCE ON BAIL BEING GIVEN FOR A
PRISONER ALREADY COMMITTED.
Canada,
Province of
County of
:1
To the keeper of the common gaol of the county of
at . , in the said county.
Whereas A. B., late of , (labourer), has before (m)
(two) justices of the peace in and fo*. the said county of
, entered into his owr reco-^niizance, and found sufficient
sureties for his appearance at the next court of oyer and terminer
or general gaol delivery (or Court of General or Quai'ter Sessions
of the Peace), to bo holden in and for the county of ,
to answer our Sovereign Lady the Queen, for that ((fee, 05 in the
commitment), for which he was taken and committed to 3-our said
common gaol : These are therefore to command you. in Her
Majesty's name, that if the said A. B. remains in your custody in
the said common gaol for the said cause, and for no other, you
shall Ibrthwith suffer him to go at largo.
FORMS. 245
Given under our hands and weals, this day of ,
in the year , at , in the county aforesaid.
• " J. S., [seal.] , ;
J. N., [seal.] ' \ /' ,
J. P., {Name of county.)
DT>.— (Section 601.) ' i" , > : .i
gaoler's receipt to the constable for the prisoner.
I hereby certify that I have received from W. T., constable of
the county of , the body of A. B., together with a
warrant under the hand and seal of J. S., Esquire, justice of the
peace for the said county of , and that the said A. B.
was sober (or as the case may be), at the time he was delivered into
my custody.
P. K
Keeper of the common gaol of the said county.
ADDITIONAL FORMS.
PBPOSITION THAT A PERSON IS A MATERIAL WITNESS.
Canada,
Province of
County (or. District, etc.,) of
:!
The deposition of A. B., of , taken at
, in the said (County) of , this
day of , A. D., 180 , before me the
undersigned, a justice of the peace (or, as the case may be), for the
said (County) of , who, being duly sworn, doth
depose and say that , of ,
is likely to give material evidence on behalf of the prosecution (or
" accused ") touching the matter of the annexed (or '" within ") in-
formation (or " complaint ') ; and that he the said A. B. verily
246 PRACTrCAI, OUIDE TO MAGISTRATES.
believes that the said will not appear volun-
tarily for the pur]ioso of being examined as a witness without
being compelled so to do.
Taken and sworn before me. at ")
tl'.is day f A. li.
of , A. D. 189 . 3
ORnER TO BRINO UP ACCUSED BEFORE EXPIRATION OP REMAND.
Canada,
Province of
County (or District, etc.) ot
:1
To the keeper of the common gaol of the (Comity) of
at , in the said (County)
Whereas A. B. (hereinafter called the " accused ") was on the
day of comnutted by (wie) to your c ustcjdy
in the said {common gaol), charged for that (jstc, as in the warrant
remanding the prisoner), and, by the warrant in that behalf,* you
were commanded to have him at on the
day <»f now (next) at o'clock in the fore-
noon, before such justice or ju.stice of the peace for the said
(county) as might then be there, to answer further to the said
charge, anil to be further dealt with, according to law ; (or,
slhortly, from the asterisk,-^- " he was renumded to the day
of next '), unless you should be otherwise ordered
in the meantime ;
And whereas it appears to me. the undersigned, one of Her
Majesty's justices of the peace in and for the .said county) of
, (or, " one of the said justices ") to be ex])edient
that the said accused should be further examined before the ex-
jdration of tlie .said renuvnd ;
These are therefore to order you in Her Majesty's name to bring
and have the said accused at , at
o'clock in the (fore) noon of the same day before (me) or before
such other justice or justices of the ])eace for the said county as
shall then be there, to answer further to the said charge, and to
ADDlTIONAIi FORMS. 247
be further dealt with aecording to hiw, unless you shall Ik- other-
wise ordered in the meantime.
(iiven under my hand and seal, this ilay of
in the year , at , in the county aforesaid.
J. S.,
.7. /*., {name of county).
MEMORANnUM TO BE WRITTEN ON DOCUMENTS PROUUCED IN
EVIDENCE.
This is the plan (or " letter." or, as the case may be) produced to
ine, the undersigned, one of Her Majesty's justices of the peace for
I lie (^county) of , on the examination of A. B.,
•harged with arson (forgery, etc.). and referred to in the deposition
• if (1 1). touching the said charge taken before me this
..ay of , 189 .
J. S.
INFORMATION AND COMPLAINT OF SURETIES FOR A PERSON CHARGED
WITH AN INDICTABLE OFFENCE. 80 AS TO HAVE HIM CO-MMITTED
IN DISCHARGE OF THEIR RECOGNIZANCES.
Proceed as in form C. at p. 136, ante., to the words, " who saith, '
(altering tt to the plural when the complaint is by two or more sureties,
<ind then continue thus:) that the said ('. D. anil E. V. (names of
■sureties complaining) were on the day of
now last ])ast, several!}' and respectively duly bound by recogniz-
ance before ,]. l\. Ksquire, one of ller Majesty's justices of the
peace for the said (county) of , in the sum of
each, upon condition that one A. B., of ,
should appear at the next term of the Court of (Queen's Bench
(f-'rown side) for the district of , (or Court of Oyer
and Terminer ami fieneral (laol Delivery, or Court of (Jeneral or
(Quarter Sessions of the Peace) to be holden in and for the (county)
of , and there surrender himself into the custody
of the keeper of the (common gaol) there, and plead to such indict-
248 I'HACTicAr, (uriDE to maolstrates.
iiu!iit as might bo found aguinst him by the Grand Jury for (»r in
respect of the cliarge of (stating the charge shurtly), and take his
trial upon the same and not dejiart the said court without leave ;
and that these comphiinants have reason to suspect and believe,
and do verily susped, and believe, that the said A. E. is about to
depart fi'om this part of the country ; and therefore they pray of
me the saiii justice that I would issue my warrant of apprehension
of the said A. Ji in order that he may be surrendered to ])rison in
discharge of thcni his said bail.
Taken
of
and
■ i
sworn before me at~
in the (county) o\'
, this day
, 189 . ■ J
C. B
E. F,
WARRANT TO APPREHEND THE ACCUSED UPON THE INFORMATION
OF HIS SURETIES.
"Canada, "j
Province of , >
County (or District, etc.) of .J
To all or any of the constables and other peace officers in the said
county of , and to the keeper of the common
gaol at , in the said county.
Whereas you the said C D. and E. F. were, etc. (as in the infor-
mation and complaint, p. 247, aiite, to the end) : These are therefore
to autliorize you the said V. B. and E. F., and also to command
you the said (constable or other peace officer), in Her Majesty's name
forthwith to a])pxehend the said A. B., and to bring him before me
or some justice or justices of the peace in and for the said (county)
to the intent that he may be c(»mmitted to the (common gaol)
in and for the said (county) until the next Court of Oyer and
Terminer and General (niol Belivery (or Court of General or Quar-
ter Sessi<ms of the Peace), to be holden in and for the said (county)
of , (or, etc., as the case may be), unless he find new
and sufficient sureties to become bound for him in such recogniz-
ance as aforesaid.
ADDITIONAL FORMS. 240
Given undei* my haiKi and soal, this day of ,
in the year of our Lord , at . in Iho
{county) aforesaid.
COMMITMENT OF THE ACCUSED ON 1118 APPREHENSION AT THE
INSTANCE OF HIS BAIL.
Canada. '\
Province oi" . >•
f 'oiinty (or District, etc.) of . )
To all or any of the tojistahles and other peace officers in the said
county of . and to the koe])er of the common
gaol at , ill the said county.
Whereas on the day of , instant, com-
plaint was made to me, the undersigned (or J. S),
one of Her Majesty's justices of the peace in and for the said
(county) of , by C. I), and E. F. of
that {as in the information and complaint, p. 147, ante, to the end) 1 (or
the said justice) thereupon issued my warrant authorizing the
said C. D. ami V). F., and also commanding the said constables ot
and all other peace officers in the said (county)
of . in Her Majesty's name forthwith to appre-
hend the said A. B., and to bring him (follow to end of warrant,
supra) ; and whereas the said A. B. hath beeT\ apprehended under
and by virtue of the said warrant, and being now brought before
me the sai<l justice (or. me the undersigned, one, etc.) and sur-
rendered by the said C. I), and E. F., his said sureties, in discharge
of their said recognizances, T have i-equired the said A. B. to tind
new and sufficient sureties to become bound for him in such
recognizances as aforesaid, but the said A. B. hath now refused so
to do : These are tlierefore to command you the said constables
(t other peace officers) in Her Majesty's name forthwith to take
and safely to convey the said A. B. to the said (common gaol) at
, in the said (county), and there deliver him to the
kee])er thereof, together with this precejit : and T hereby command
you the said keeper to receive the said A. B. into your custody in
the said (common gaol), and him there safely to keep until the next
250 PRACTICAL (HUI)E TO MAdlSTIlATES.
Court of Oyer and Tonniiicr aiui (roneral Gaol Dolivory {or Court
of (Joiicral or (iuartor Sessions of the Peace), to he holden in and
for the said (county) of , unless in the meantime
the said A. B. shall tind new and sultieient sureties to liecome
bound for him in such reeognizanee as aforesaid.
(Jiven under my hand and seal, this day of
in the year of our Lord, , at . in the
(county) aforesaid.
J. S. [i.. s.]
INDICTABLE OKFENCBS.
251
TABLE OF
INDICTABLE OFFENCES UNDER THE CODE,
Offences against public order, internal and external.
Treason and other offences against the Queens authority
and i'erson.
Abt.
05
67
68
70
71
72
73
Treason
Accessory atter fact to Treiuoii-
Levying war, etc
Offkhcb.
Treasonable offences
Conspiracy Co intimidate a Legis-
lature -
Assaults on the Queen
Inciting to mutiny
'D Enticing soldiers or seumun to
desert
Unlawiully obtaining official in-
formation
Communication of information by
official. If to a foreign Stitte..
In any other case J
Punishment.
Death . ...
Two years.
Death
Life
Fourteen years
dcven years
whipping.. .
Lite
and
Five years
One yearorSlOOflne
Life
One year and $!00
fine, or both —
Tribunal.
Sup.CourtCr. Juris
do
Sup.CourtOr. Juris.
or Cuuri Martial..
Sup.CourtOr. Juris.
do
do
do
General or Quarter
Sessions.
Sup.CourtCr. Juris,
do
do
3 years.
3 years.
LIMITATION.
Nate. It will be understood that, with regard to offences mentioned in this tabic as triable
in a Sup. Court of Cr. Juris., those offences cannot be tried in a Court of (ienoral or Quarter
Sessions, and that with regard to offences mentioned as triable in a Court of Ueneral or
Quarter Sessions, the latter Court has not o.Yclusive juris:diction over these offeiooi, but
that, in relation to them, its jurisdiction is concurrent with thatot the Superior Cour'- of Cr
.1 uris.
Unlawful Assemblies, JIiot.s, Breaches of the Peace.
Art.
81
82
83
86
86
87 I
88S
89
90
91
99
Offence.
Unlawful assembly .
Riot
Opposing Reading cf Riot Act.
Riotous destruction
Riotous damage
Unlawful drilling
Forcible entry or detainer..
Affray
Challenge to tight.
Inciting Indians to riot.
PUNISHJIKNT.
One year
Two years
Life
Life
Seven years
Two years
One year
One year: with hard
labor.
Three years
Two years
Tribunal.
General or Quarter
Sessions,
do
do
do
do
do
do
do
do
do
limitation.
one ye
6 mentha
(I) Enticing soldiers, etc., may also be tried summarily. Fine $2U0, and not less than $50,
In default of payment, six months imprisonment.
17
252
I'llACTICAIi GUIDE TO MAGISTRATES.
UNLAWFirL USE AND POSSESSION OF EXPLOSIVE SUBSTANCBS
AND Offensive Weapons.
Art.
1011
101
104
li:i
lU
115
Ofpkncb.
PUNISHIIKNT.
Causing dangerous explosions — Life
llaving explosives Fourteen years
MakinK explosives iSeven years
jllaving arms for dangerous pur-l
j poses IFiveycars..
iSiuuggiers carry! nu arms ^Ten yoar.'< . .
'Refusing to deliver weapon to a
iustioe Five years..
Cuming near meeting armed $10t' tine, or (i m'ths
or both
Lying in wait near meeting i$2U0iine, or 3 m'ths
or both
Tribunal.
Sup.CouttCr. Juris-
do
do
do
do
do
do
do
LIUITATION,
6 months,
one year.
do
do
SEDITIOUS OFFENCES.
Ab;. i
120
I'.'l
124
lai
126
Offence.
PU.N'ISHUBNT.
Administering or taking oath to com-
mit an Indictable oflenoe Fourteen years.
Administering or taking other unlaw-
ful uaths Seven years....,
Seditious offences » Two years
'Libels on foreign sovereigns One year
Spreading false news One year
Tribunal.
Sup. Ct. Cr. Juris.
do
do
do
do
Piracy.
Art.
Offknck.
PrNISHMKNT.
Tbibunal.
127
Piracy by the Law of Nations
Death or Life Impri-
sonmont
Sup. Court Cr. Juris.
128
Life
Death
Piratical Acts endangering Life
Not Fighting Pirates.
do
129
Six months Imprison-
do
INDIOTAnrE OFFBNOES.
253
Offences Against the Administration of Law and Justice.
CORHUPTION AND DISOBEDIENCE.
Art.
131
132
133
13.i
i;J6
lS7a
l.W
139
140
Ml
142
143
144
Corruption of JuiIkcs and Logij
latora
Corruption xf ott'ioers of justice.
Frauds upon tiio Govornnient.
Brench of trust by public otlicer
Corrupt practioes in municipoJ
nffitirs
Offknob.
Selling ofiioes, t&o
PONlaHMENT.
Fourteen years • . .
Fourteen years....
«l,(in() fine and one
year, also (S luos
extra in default of
paying fmu. Dis-
abled from con-
tracting with or
holding office un
der Government.
Five years
Sup.CourtCr.Jiiris
do
do
do
$l,tiO01ine and two
years, also 6 mos,
extra in defauh of
paying tine
Five years. (.See
Art.9.il) Disability
from holding of-
fice
One year
One year
Two years.
One year. .
Disobedience to a statute
Disobedience to orders of Court. .
Neglect of peace officer.<4 lo sup
I)re88 riot
Neglfct to aid peace officer in sup-
pre.^'sing riot
Neglect to aid peace officer arrest-
ing offender {Six noiiths
Misconduct of officers entrusted!
with warrants, etc !Fine and imprison-
1 ment. (See Arts.
I »3t&951)
Obstructing public officer Ton years
Obstructing peace officer. (1) . Two years
Tribukal.
do
do
Gen'lorQu'tr. Sessc
do
do
do
do
do
do
tilHITilTIUN.
2 years.
2 years.
Misleading Justice.
Art.
] *
146
147
l.W
151
162
153
1S4
155
lfi6
157
158
Offbxck.
PuNmRHRNT-
Perjury Fourteen year.« and
Subornation of perjury
False oaths
False statements
Fabricating evidence
Conspiracy to bring false accusa-
tion
Administering oaths without
authority
Corrupting jurors or witnesses
Compounding penal actions. .
Fourteen years.
Seven years.- ••
Two years
Seven years. ...
Corruptly taking reward for
helping to recover stolen
property
Advertising reward for stolen
property -». ,
Signing false certificate of eze-
euting death sentence
Fourteen years and
ten years
.ii.W fine or 3 mos.
Two years
Fine not exceeding
penalty com
pounded for....
Seven years.
$250 penalty.
Two years . . .
Tribunal,.
Qen'l or Qu'tr Sess.
do
do
do
do
do
do
do
LIMITATION.
do
do
Civil Court
Gen'l or Qu'tr Sesg.
6 months
U\T''\? "ff*"*®' ''6»W«? being indictable, may also be tried summarily, before two justices,
and in that case the punishment upon conviction is 6 months with hard labor, or $100 fine.
254
practical guide to jiagistrates.
Escapes anh J?escues.
Art.
159
180
)fil
162
167 I
168
Opfkn'ck.
I
PCNISHMRNT.
Being at large while under sentence. . Two years". .
Assisting eseapo of prisoner of war- ■ Five years
Prison-breach Seven years .
Attempted priiion breach Two years...
Escapes from lawful custody jTwo years...
Rescuing prisoners or assisting escape Seven years and 5 yearf
.Conveying anything into prison to aid:
I escape jTwo years
Unlawfully procuring prisoner's dis-'
' charge Two years
Tribunal.
(jcn'l or Quarter Sess.
do
do
do
do
do
do
do
Offences against Religion, Morals, and Public Convenience.
Offences AiiAixsi Reliuion.
Art.
Offknck.
PUNISHUKNT.
170 i Blasphemous libels Oneyear.
171
172
iObstructing otRciating clergyman.
iViolence to ofliciating clergyman.
Two years
■ Two years
Trii-.unau
Genl. or Quar. Ses^,
do
do
OfFE.VCES A(iAI\ST ^rORALlTY.
Abt.
174
175
176
178
179
180
181
182
181
181
185
186
187
188
18!)
1!W
Ol-FKNCK.
PUXISHMKNT.
Tribunal.
iUHITATION
Unnatural offence ^Life
Attempt to commit sodomy i I'di :,«iir.<
Incest i Fourteen years and
whipping
Acts of grosp indecency Five years
Publishing obscene matter Two years
Posting immoral books, etc Two .year
Seduction of girl under sixteen. . Two yei.rs
SeduetioMunderpromiseol m'riiige Two years
Seduction of a ward or a servant,
fiictory girl, etc .. Two years
Seduction of female passengeis on
vessels MOfiflneoroneycar
Unlawfully defiling women Two years with
hnrd labor
Parent or guardian proo ring de- Fourteen yeors and
filement of girl live yoars . ...
Householders permitting dcfile-
inent of girl.'i. Ton years & two yrs
Consiiiracy todellle I wo y^ars ...
Carnally knowing idJD'S Four years
Prostitution of Indiiin wmnen ShVI fine orsix mths
Qenl. or Quar. Sess.
do I
do I
d. I
do
do
do
do
do
o
do
do
do
do
do
do
One year.
do
do
One year,
do
do
Art.
192
194
198
■201
202
203
204
205
206
indiotabiie offences.
Nuisances.
255
Ofrkncr.
Common nuisance ,
Selliniz things unfit for fond
Keeping disorderly house, (bawdy
house, earning house) (1)
flaming in stocks, etc
Frequenting bucket-shops
Gambling in public conveyances (rail
ways, steamers, etc.) (2)
Betting and pool-sel linii ..
Lot tcries
Misconduct towards human remains .
PUNISHMRNT.
One year, or fine.
Art. 934)
One year
(See
One y ar
Five years and $500 fine
One year
TRrnuNAL.
One year
One year ^nd §1000 fine
Two years A- $2000 fine
Pive years
flenl. or Quar. Uess.
do
do
d
d;
o
o
' o
Offences against the person and reputation.
Duties tending to the pheservation of life.
Art.
215
Ofkknck,
PONISHHENT-
'Neglecting duty to provide necessa-:
ries Three years.,
216 Abandoning ohildren under two years,
1 of age Three years.
217 Causing bodily harm to apprentices or
servants Three years. .
Triiiunal.
Oeneral or Quarter Ses-
sions.
do
do
Homicide, Murdeu, Manslauqiitbr, etc.
Art.
Ofpknck.
PomSIlUKNT
Tribunal.
231
Murder
Attempt to commit murder
Death
Sup. Court Cr. Juris-
do
232
Lite
233
Threats to murder
Ten vfliirs
do
284
235
Conspiracy to murder
Accessory after the fact to murder. . .
Manslaughter
Aiding and abetting siricide
Fourteen years
Life :....
do
do
236
Life
Glen, or Quarter Bess,
do
237
Life
Two years
Life, or
238
239
Attempt to commit suicide
Neglecting to obtain bBEictanoe in child
birth
do
do
24C
Concealing dead body of child
Two veiira
do
(1) These ofTenoes, as well as being indiotable, may also be tried summarily under arliolei
783 and 784, jkm^ (which see).
(2) Railway conductors, steamboat officers, station masters, etc., are obliged to arrest and
prosecute offenders under this article and arc liable to $100 fine, for m gleet to do so.
Every company or other owner of a railway oar, or steamboat must keep a copy <if the
above Article, 203, posted up conspicuously in their railway oar. or steamboat, and are lia-
ble, for neglect to do soi to $100 penalty.
266
PRACTICAL GUIDE TO MAGISTBATE3.
Bodily injueies, and acts and omissions causing danger to
THE person.
Abt.
241
242
243
244
245
246
247
248
249
250
251
252
253
254
256
257
Oppenoe.
Wounding with intent.
Unlawful wounding
Shooting at H. M's vessels. Wounding
j)ubUc officer
DisabKng or dragging with criminal
intent
Endangering life by poison, etc. ■ •
Administering poison with intent to
injure
Causing bodily injuries by explosives.
Attempting bodily injury by explosives
Setting spring guns and man traps. . . .
Intentionally endangering persons on
railways
Negligently endangering persons on
railirays
Negligently causing bodily injury
Injuring persons by, furious driving. . .
Preventing ihe saving of person ship-
wrecked
Sending unseaworthy ships to sea.. .
Taking unseaworthy ships to sea
PU.VISHMINT.
life
Three years.
Fourteen years. ...
Life and whipping.
Fourteen years
Three years
Life
Life or fourteen years.
Five years
Life.
Two years.
Two years.
Two years.
Seven years .
Five years. .
Five years...
Tbibuhal.
Qenl. or Qoar.
do
do
do
do
do
do
do
do
de
do
do
do
do
do
do
Assaults.
Abt.
Ofkknck.
POMSUHRNT.
Tbibunal.
2.59
260
262
Indecent assaults on females (1)
Indecent assaults on males
Assault causing actual bodily harm.. ■ .
Aggravated assaults, assault on public
Two years and whipp'g
Ten years and whippi'g
Genl. or Quar. Sess.
do
do
263
do
264
Seven years
One year or $100 fine..
do
265
(2) do
(1) Under Article 783, jmut, whenever a person is charged before a magistrate with having
committed an aggravated n«sauU, or with having committed an assault upon any female
whatsoever, or upon any male child under fourteen, or with having assaulted, obstructed,
molested or hindered any peace officer or public officer in the lawful performance of his duty,
the magistrate may, subject to the provisions of part LV of the Code, try the charge sum-
marily.
See also Article 785, pual, whieh in reiiard to the Province of Ontario, gives, to a police magis-
trate or stipendiary magistrate, power to try summarily, with the accused'n consnit, any per-
son charged before him, with any offence triable in a court of General or Quarter Sessions.
(2) This offence ifi also triable in a summary manner, and is then punishable by a fine of
$30 and costs, or two months imprisonment, with or without h. 1.
indictablb offences.
Eape and Procuring Abortion.
261
Abt.
267
288
209
270
271
272
273
274
Offrnoi.
Rape
Attempt to commit rape
Defiling itirl under fourteen
Attempt to defile ^rl under f mrteen.
KillinK unborn child
Procuring abortion •_
Woman procuring her own misoar
riage
Supplying means of procuring abor-
tion
Pdnishment.
Death or life imprison-
ment
Seven years
Life and whipping
Two years & whiiining.
Life
Life
Seven years
Two years
Tbibunal
Sup. Ct. Cr. Juris.
do
Gen. or Quarter Se 88.
do
do
do
do
do
Offences against Conjugal and Parental Rights — Bigamy —
Abduction.
Art.
276
277
278
279
280
281
282
283
284
QpraNOK.
Bigamy
Feigned marriages
Polygamy
Solemnization of marriage with
out lawful authority
Solemnization of marriage con
trary to law
Abduction of i woman
Abduction of an heiress
Abduction of an unmarried girl
under sixteen
Stealing children under fourt en.
PONIBHMBNT.
Tribunal.
LIIIITATION-
Seven years (second
oflence fourt' nyrs)
Seven years , .
Five yrs.ife $500 fine
Pinei 1) or two years
Qen. or Quart, Sess.
do
do
do
do
do
do
do
4
2 years.
Pine CI) or one year
Fourteen years
Fourteen y.ars ...
Seven yeard
Defamatory Libel.
Abt.
Ofpbhor.
PuNisniiRifT.
Tribu.val.
300
Rxtortion bv deffunatorv libel
Two years or $600 fine,
or both
PublishiriK libel knowing it to be false.
DefiLtnatorv libel •
Sup. Court Or. Juris,
do
301
Two years or|400fine,
or both
302
One year, or $200 fine,
do
—
(1) See Article 984 of the Code, aa to regulation of fine.
258
PRACTICAL GUIDE TO MAOISTRATES.
Offences aqaimt rights of property and rights arising out of contracts,
and offences connected with trade.
TUEKT AND JtECEIVING. (1)
AttT.
Oppenck.
PUMSHMRNT.
Uenl. or Quar. Sess.
do
do
do
300
356
307}
33U
308
320
309 J
320)
:^ios
SliO)
312 S
354)
314
315
319
321
322
.■i23
324
326
327
328
(2)
329
330
331
;M4
334
335
33b
338
337
.333
341
343
344
345
346
347
348
349
;j60
351
353 S
323 j ^ ^ ^
(1) Under Article 783, of the Code wheneyer a perBon is charged before a magistrate with
having committed theft, or obtaining property by false pretences or receiving stolen pro-
perty, and the value of the property in (|uestion dues not exceed ten dollars the magistrate
may, subject to the provisions of Part lv of tlie Code, tr>- the charge summarily.
(2) R.S. C.,c. 36, »ec. 80.
(3) The fine is in the discretion of the Court.
(4) This means live cattle. The stealing of a dead oow, etc., is punishable under Art. 356,
by seven years.
Theft of things under seizure 'Seven years; 2nd of-
. fence, ten years.
Killing cattle, with intent to steal the
carcase, etc Fourteen years. ..
Theft by Agent Fourteen years. . .
Theft by holder of power of attorney . Tourtecn years . . .
Misappropriating money, etc., held un-i
der direction Fourteen years.. . .
Fraudulent concealment of gold, etc.,'
by mining partner Two years
Receiving stolen property Fourteen years...
Receiving .stolen post-letter, elc Five years
Thefts by clerics, servants. Rank em-
ployees, (iov'ment and other ollicials Fourteen years. . .
Public ."ervants refusing to deliver up
books, etc Fourteen years • • •
Theft by tenant or lodger Two years k four years
Stealing a will ILife
Stealing a document of title Three years
iSU'aling .indicia I or otllcial documents. Three years
Steiilfhg post-letter l)ags, etc Life
Stealing a post-letter, etc Seven years
Stealing other mailable matter Five years.
Unlawfully opening a post-letter, etc . Five years.
Stealing election documents Fine, (S) <ir 7 yrs, or
Stealing railway, tramway, or steamer both
ticket Two years
Stealing cattle (4) Fourteen years. ...
Stealing oysters or oyster brood.. Seven years
Dredging in oyster beds Three months
Stealing fixtures in buildings or lands Seven years
Steolingtrees, etc., worth $25 Two years
Stealing trees, otCj, worth .$5, in a gar-
don, etc Two years
Stealing a tree, etc., worth 25c. after
two other convictions Five years
Fraudulently taking, etc., drift timber,
etc Three years
Stealing plants, etc., in a garden after
one other conviction Three years .
Stealing ores of metils, etc iTwo years
Stealing from the per.«on Fourteen ye»rs....
Stealing in a dwelling-house Fourteen years. . ..
Stealing l)y picklocks, etc il'ourteen years
Stealing goods in process of manufac-;
ture ...'Five years
Fraudulent disposal of goods ent.-ustedi
to manufacture ]Two years .
Stealing from ships, wharves, etc ; Fourteen years,
Stealing wreck
Stealing from a railway ^^tation, or en-
gine, etc
Fraudulently destroying a will ....
Tribunal.
seven years.
Fourteen years. ..
Life
INDICTABLE OFFENCES.
259
OBTAININd BY FaLSE PrETENCES, ClUMKVAL HrEACII OF TrUST,
AND Other KkaijDs.
Art.
353
324
354
355
;tr,6
359
3ti0
361
362
3(t3
364
(6)
(6)
(7)
365
366
36"
368
369
370
371
372
373
374
375
376
377
378
380
381
382
385
386
387
390
OPKRNCE.
Krniiiliilcntly destroying other docu-
ments
Kriiudulent concealment nf property.
IJrinuinK stolen r>roperty intoCiiniida
Stealinp in ciises not othorwise pro-
vided lord)
ObtnininR by false pretences
Obtaininn pxeeutionof valuable secur-
ity by false pretences
Falseb' protending to send money etc
in a post-letter
ObtaininK passage by false ticket
Criminal breach breach of trust. ....
False accounting by a director or
oli'.cial ofa corpo-ato body...
Fraudulent preference by a bank
resident, director, etc . ■ ■
Fiilse bank returns, etc., by bank
otllcials
Unlawlully using thetitleof " Dank,'
etc
Making fal.se prospectus or statement
by promoter or director, etc, of
Company
False accounting by olcrk or servant
False statenieni by public ofllnor —
Fraudulent transfer by a debtor
Fraudidcnt falsification of books by a
debtor
Concealing encumbrances, etc
Frauds in rospect of registration of
titles
Fraudulent sales of real property
Fraudulent hypothecation of real pro-
perty • ■
Frauilulent seizures of land, in Quebec
Fraudulent dealings in mined gold or
silver
Giving or using false warehouse re-
ceipt
Disposal of merchandise in fraud of
consignees
Making false receipts for grain, etc. ■
Unliwfully selling wreck
Secreting wreck, or receiving or keep
ing it, etc. (4)
Buying marine stores from persons
under sixteen, (after two other con
viction«)
Unlawfully applying nnirks to public
stores
Taking marks from public stores
Unlawfidlypiissessing public stores. (5)
Receiving regimental necessities- ■ (6)
Three years
Two years. .
.Seven years.
PtjmShMKNT.
Genl
Soven y.-.i -itfence ten y
I'hrce years
Three 'years..
Three years
Six months..
Seven years.
Seven years..
Two years
Five years
Fine .^lfl(K)or live years
Tribonal.
Five years
Seven years
Five years
Fine $800 and one year
I'en years
Fine or 2 years, or both
Three years.
One year. ...
One year and $100 fine.
One year
Two year8 .
Three years.
Three years-
I hree years.
Seven years. .
Two years...
Five years.
Two years .
Two years.
One year. . .
Five years.
or Quar. Sess.
do
do
do
do
do
do .
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
(1) Art 35i provides that when the value of property stolen ezooeds $200, two yean shall
be added to the punishment.
(2) R.S.C.c. 31, sees. 97,09.
i3) //,., Sees. 100 and 101.
(4) This may also bo dealt with summarily, and in that case the penalty is 4400 or six
months imprisonment.
(5) When Ifhe value of the stores is less than $25, the offence is punishable summarily by
a line of $1(10, or six months imprisonment.
(6) This may also , be dealt with summarily, the penalty in that case being $40 or six
months.
260 PRACTICAL GUIDE TO MAGISTRATES,
FALSE Pretences, etc. (Continued)
Art.
Ofpbnck-
PUNIBHMKNT-
Tbibdnal.
391
Receiving neoesaar le from marines or
deserters. (1)
Receiving a seamen's property, by
purchase, exchange or pawn. (2)
Conspiring to defraud :
Five vea^^
Qenl. or Quar. Sess. t
do
392
394
395
.Seven years
Three years
One vear.
do
do
396
Fortune-telling, witohoratt, etc
do
Eobbery and Kxtortion.
Akt.
400
401
402
403
404
405
406
OVFENCK.
Robbery with 'pounding, etc., or by a
person arme i
Robbery
Assault with intent to rob
Stopping mail with intent to rob
Compelling execution of documents- . .
Sending threatening letter demanding
money, etc
Demanding with intent to steal
Extortion by threats to accuse of capi-
tal or infamous offences
Extortion by threats to accuse of other
offences
Life and whipping.
Fourteen yean
Three years
Life
Life
Punishment.
Fourteen years.
Two years
Fourteen years.
Seven years —
Tribunal.
Qenl. or Quar. Sess.
do
do
do
do
do
do
do
do
Burglary and Housebreaking.
A«T.
408
409
410
411
412
413
414
415
416
417
Breaking a church, etc., and commit-
ting indictable offence jFourteen years jGenl. or Quar. Sess.
Breaking II church, etc., with intent- {Seven years, 2n i offence
' fourteen years I
Burglary Life —
House breaking Fourteen years.
Opprncb.
Punishment.
Tbibunal.
House breaking with intent
Breaking shop, etc
Breaking shop with intent
Entering or being found in a dwelling-
bouse, at night
Seven vears .
Fourteen years.
Seven years
Being found armed with intent
break into a dwelling-house.. . , . . .
Being disguised
tools
to
Seven years, 2nd offence
fourteen years
or having burglars
Seven years, 2nd offunoe
fourteen years
Five years, 2n<l offence
fourteen years
do
do
flo
do
do
do
do
do
(1) This may also be dealt with summarily ; penalty $120 or six months.
(2) On summary conviction, tbepenalty is $100.
INDICTABLE OFFENCES.
FOROEBY.
261
Abt.
423
A
(a) (6)
(c) {ff)
(«/)
(e) (/)
(A)
(.•)
U)
m
(m)
(n)
(o)
(P)
(«<
(r)
<«)
(«)
{«)
(r)
(le)
(X)
B
(a)
(i)
C
((a)
(d) (e)
(/)
(ff)
(A)
(0
./)
i^)
(«
(m)
(n)
425
426
427
42H
429
Offrn'cr.
FORGERY :-
Of |)abliodooument, (Imperial, Col
onial, Dominion or Provinoial). . .
Of doc '■mentr of title to land
Of registers of title to lands
Of land registration doouments ....
Of Notarial Acts etc
Of register of births, cto
Uf copy of register of births, etc. ..
Of wills or probates, etc
Of transfer of public tunds, etc
Of transfer of stocks, etc
of transfer in share of crown lands
Of power of attorney for transfer of
crown lands
Of entry in book of shares or stock, etc
Of liscnequer bills ,
Of bank notes, bills of exchange, 6tc
Of scrip in lieu of land
Of document of title to any public
debt
Of deed, bond order, etc
Of accountable receipt
Of bil's of lad'ng. Insur. Policy, etc
Of Warehouse Receipt, Dock War
rant, etc
Of any document relating to registry!
of personal property Fourteen years (1) .
Of anjf public register, not above
mentioned Fourteen years. ...
PCNISHMBNT.
Life.
Life.
Life
Life.
Life
Life.
Life.
Life.
Life.
Life.
Life
Life.
Life.
Life.
Life.
Life
Qenl.
Life..
Life..
Life..
Life .
Life
Of Court Records, Judicial Doou
ments, etc
regis
Of Magistrates' Documents,
ters,etc
Of Copy Letters Patent, etc
Of Marriage Licenses or certificates.
Of contracts..
Of powers or letters of attorney
Of request for money or goods, etc.
Of ac(|uittanoes vouchers, etc
Documents to be given in evidence in
.iudicial proceedings
Of rail way, tratnw'y or steam'r tickets
Of any other document
Counterfeiting public seals, cto
Counterfeiting seals ot Courts, Re-
gistries, cto
Unlawtully printing proclamations
etc
Sending fraudulent telegrams in a
false name .
Sending a false telegram or letter
with intent to alarm, etc.
Tribunal.
Seven years.
Seven years.
Seven years..
Seven years.
Seven years. •
Seven years-.
Seven years ,
Seven years..
Seven years..
Seven years
Seven years. .
Life ,
Fourteen years.
Seven years
(2)
Two years
or Quar. Sess.
do
do
do
do
do
do
do
do
do
-lo
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
(1) The Uttering of a forgery is subject to the same punishment as the forgery itself.
Code, Art. 424.)
(2) Same punishment as for forgery of a document to the same oflfoot as the telegram. ( Art.
262
PRACTICAT, nUIDE TO MAGISTRATES.
Prei'arai^ion for Forgery and Offences resembi.ino
FoROERY.
Abt. Opfr.<ok.
PuNISHMINT.
Tribunal.
430
431
432
434
43S
Receiving or having forged bank-
notes
Fraudulently malting a document
without authority
Using a forged will or other instru-
ment, or probate, etc., obtained
Fourteen years
(1)
Fourteen years
Fourteen years
Fourteen years
Fourteen years
Ten vears
do
do
do
Qenl. or Quar. Soss.
do
CO
do
do
do
do
do
Making, having, or using* etc.) instru-
436
Cniintorf^itincr stamns fito
4.'j7
FalsifvinfiT reiristors
433
438
Falsifying extracts from registers. . .
Falsely certifying entries in or ex-
tracts from resistera
Seven vears
440
Forging certificates, certifying false
Two years
FourtcPn years
Sevpn verm
441
Making false entries in books relat-
ing to public funds, etc
IssninirfR.lae dividend wnrrsnts . •
Forgery of Trade Marks — Fraudulently marking op
Merchandise.
Akt.
Offence.
Punishment.
J 447 1 Forging a trnde-mark ; or apply-
} 460 S ing a forged trade-mark (4) — Two years & forf t
of goods
5 jS i iSelling goods falsely marked Two yean & forft.
'*'^^ \ ofgoods
Selling marked bottles without^
assent of proprietor of trade-Two years & forft,
mark (4) ; ofgoods
S449|
450 1
Tbibunai.. Limitation.
Genl. or Quar. Sess 3 years,
do do
do
do
(1) Same punishment as for forgery of the document so fraudulently made without author-
ity. (Art. 431.)
(2) These may be dealt with summarily ; in which case the punishment is four months im-
prisonment, and $10U, fine, as well as forfeiture.
INUICTAIJLB OFKENCES.
I'EItSONATION.
263
Abt.
Opkknc.;.
PUNISMMKNT.
jt^l i Fraudulent personation Fourteen years
457 Personation at Exatninatioii. ..-■ One year, or $10(1, fine
45H lAokDowledgiDit an instrument in
I false name Seven years
Tribunal.
Qeui. irQuar. Sesci.
do
do
Offknces Relating to the Coin.
Art.
462
463
465
466
467
46S
469
470
471
471
471i
47S
474
475
4H0
Counterfeiting (if-^, current gold or
silver coin
Dealing in or importing counterfeit
gold and silver coin ... .
Eiporting counterfeit coin
Offenck.
PUNISVMRNT.
Life
Life
Two years, 2nd offence
seven years
Life
Life
Fourteen years.
Makinn, buying, or having counter-
feiting instruments
Bringing coining instruments into
Canada
Clipping current gold or silver coin.
DetacinK current coin and afterwards
tendering same ;Ono year, 2nd offence
„.,.., 1 seven years,
Possessing cuppings of curren.' gold ori
silver coin Seven years.2nd offence
„ . ^ , I fourteen years,
PosseFsing any counterfeit gold or sil-j
ver coin, with intent to utter same.. Three years ,2nd offence
seven years.
Throe years, 2nd offence
sevon Tears,
Three years. 2nd offence
seven years.
Possessing three or more oonnterfeit
copper coins
Counierfeiting current copper coin, or
dealing in same, etc
Counterfeiting foreign coins or utter-
ing same, etc
Uttering counterfeit gold or silver coin
Uttering light coins, medals, base
copper coins, etc •■
Three years, 2nd offence
seven years
Fourteen yrs, 2d offence
life
Advertising counterfeit money, oto. .
Threeyear8,2nd offence
seven years
Five years
Tbibunal.
Qenl. or Quar.
do
do
do
do
do
do
do
do
do
do
do
do
do
do
264
PRACTICAL OiriDE TO MAOtSTKATKS.
MI8MIIEK.
Art.
482
483
484
485
4«6
487
488
489
489
490
492
493
494
495
496
496
497
498
499
A
(a)
(6)
(c)
Ofkkncs.
(rf)
B
('.)
(ft)
C
W
m
(<•)
W)l
(«) I
\^>)
{0)1
(A)
(1)
ii'
(a)
(/')
(c)
id)
(e)
'Arson
; At tempt to oommit arson
Setting Ore to crops, eto
j Attempt to lire crops, eto
Heoklessly settinfc fire to forest, etc.,
on Crown domain. (1)
Seodinit letter threatening to burn
buildings, eto
Attempt to damage any building, etc,
! by oxplosive:' ••
Obstructing a railway in a manner
I likely to endiintter property —
Ob.<(ructing a railway with intint to
I endanger properly
Obstructing construction or free use
of railway
Destroying, damaging, or obstruct-
ing telegraphs, telephones, electric
lights, tire alarms, eto
Wrecking
Attempting to wreck
Willully altering, removing, or con-
oealing marine signals, buo^seto. .
Wilfully preventing the saving of a
wrecked vessel
Wilfully preventing the saving of
wreck. (2)
Injuring rafts booms, piers, etc —
Mischief to mines
PUNISHMKNT.
Life
Fourteen years.
Fourteen years-
Seven years
Two years
Ten years
Fourteen years.
Five years
Life
Two years.
Wilfully damaging a ship, house, eto ,
and causing daniier tn life
Wilfully damaging a river or Fea bank
dyke, etc., and raniiino danger of
inundation
Damaging bridges, viaducts, aque-
ducts, etc., and n ndering Kami' or
highway or railway, etc .dangrrouH
or imiHumahlc
Damaging railway with intent to
rendir it impaanable
Wilfully damaging a ship in distress,
eto
I Wilfully destroying or injuring cattle
by killing, maiming, etc
jWilfully damaging ship with intent
to render it useless
(Wilfully damaging navigation sig-
! n«l, etc
Wilfully damaging a river or sea
bank, etc
Two years
Life
Fourteen years.
Seven years. .
Seven years.
Twoyeors...
1 wo years.. .
Seven years.
Life.
Life.
Life.
Life.
Fourteen yean.
Fourteen years.
Seven years.
S«ven years.
Seven years.
Wilfully damaging river or cai,al,
private water, etc iSeven years. .
Mischief to goods in process of manu-'
faoture ISeven years.
Misohief to machinery, etc Seven years. .
Mischief to hop-binds, ets Seven years..
Mischief to garden trees, etc Five years. , .
Misohief to post-letter, letter boxes,
po't parcelst etc IFive years...
Mischief (by night) to any propertyi
worth *an jFive years. ■ •
Tbibunal.
Genl.
or Quar. Scss.
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
(1) This may be dealt with summarily, and, in that ease, punished by fine (W>), or six
months imprisonment. (Art. 486, sub. sec. 2.)
(2) This IS punishable summarily by fine ($400), or six months imprisonment.
INDICTABLE OFFENCES.
Mischief. — Continued.
2(i5
Abt.
(a)
5110
sol
6<)2
502
504
505
506
508
509
OrFRNCR.
MiBobief to any property, worth $20
by day
Attempt to maim or kill cattle . .
KillitiK. maiming or injuring other
animalu after another conviction
PuNisnHlNT.
Tribunal.
Two years 'Oenl. or Qua> . Sess,
Two years.
Fine, (1) or imprison-
ment, (2) or both
Two years
Written threats to injure cattle..
InjtirinR poll-books, voters' lists and
other election dooumenta Seven years.
Injuries to building by tenants Five years •
Injuring Provincial, Municipal, etc.,
boundary marks Sevenyears
Injuries to other land marks Five years.
Injuring trees totheamountof twenty-
five cents, alter two other convictions Two years..
Injuring vogetAble productions in gar-
dens, etc., after another conviction.. Two years..
do
do
do
do
do
d*
do
do
do
Offences Connected with Trade and Breaches of Contkaot.
Art,
620
520
521
521
521
."123
524
525
526
Offbncr.
Pdnishmbnt.
Combiriation in restraint of trade (thej
offenders being persons) Pino $4000 or two years
Combination in restraint of trade (the!
offender being a corporation) I Fine $10,000
Criminiil breaches of contract, by per-j
sons (3) 1 Fine $100 or 3 months.
Criminal breaches of contract byMuni-i
oipal Corporations, etc 'Penalty $1001
Criminal breaches of contract by rail-i
way companies Penalty $100
Intimidation, by violence, threats of
violence, picketting, etc. , (4) Fine $100 or 3 months .
Intimidation by assaults, or violenee
or threats of violence used in pur-
suance of unlawful oombination Two years
Intimidation of Wheat Dealera, sea-
men, etc, (4) Fine $100 or 3 months. .
Intimidation of bidders for public
lands Fine $4U0, or two yean
i er both
TaiBUNiL. '
Sup. Ct. of Cr. Juris.
do
Genl.or Quar. Se8S>
do
do
do
do
do
do
(1) Sec Art. 934, uf the Code, as to regulation of fine.
(2) See Art. 951, of the Code.
(3) This offence may be prosecuted either by indictment or summarily.
(4) These may be dealt with summarily or by indictment.
266 PRACTICAL (lUIDK TO MAdlHTRATES.
Attempts — Consi-iraoieh — Accessories.
Abt.
627
52H
•V20
531
632
OrPRNOK.
P(INI8IIHKNT,
CongpiraoioR (mil hrrrinhifim pro-
vliliil /or) to comiDit iiii indiclnble
offence 'Seven years.
Attempts {wit hifon: proriilnl for) toi '
commit an indiutable offonco (1)
Aoo'ssory alter the Inct to nn indict-!
able offence (in runin not
priiridiil for)
Ollll
.(1).
Tkiiiiinai..
Oenl. or (Jnar. See*.
do
do
(1) In cases (not otherwiir prorldedfor) of attempts to commiti or of acces8orio<) after the
fact to an indictable offence, the punishment will be seven years, when the indictable i>f-
luDoe itself is punishable by fourteenyearsor more, (?ode, Articles 52<)and53t),or one half
of the loHKcst term of imprisonment for indictable offence itself when such longest term is
less than fourteen years, (Code, Articles 52U and 532.)
Cases of conspiracy to commit, of attempt to commit or of beinK accessory after the fiiot
to an indictable oS'ence are not triable in a Court of Oeneral or Quarter iSessions, unless the
offence itself is so triable. (Code, Art. 540.)
SI'EEDY TKtALS OK INDICTABLE OFFENCES. 2U7
CHAPTEJi X.
{Part Lir of the Code.)
Si'KEDY TlUAI.S OF iNDICTAHFiB OFFENCES.
702. A|»pll««tloii, — The proviHioiis of this part do not,
apply to tho North- WoHt Torritories or tho District of Keewiitin.
7tt^* ^vaniiiKN of* ('xprvMNioiiM. — In thiH part, uiiIumh
the context otherwiHC requires, —
(a.) the expression • .hidge ' means ami includes, —
(i.) in the pi-ovince of Ontario, any judge of a county court,
junior judge or deputy judge authorized to act as chairman of
the (ieneral Sessions of the Peace, and also the judges of the pro-
visional districts of Algoma and Thunder Bay, and the judge of
the district court of Muskoka and Parry Sound, authoi-ized res-
pectively to act as chairman of the General Sessions of tho Peace ;
(ii.) in the province of Quebec, in any district Avhevein there is
a judge of the sessions, such judge of sessions, and in any district
wherein there is no judge of sessitjns hut wherein there is a district
magistrate, such district magistrate, and in any district wherein
there is neither a judge of sessions noi- a district magistrate, the
sheriff of such district ;
(iii.) in each of the provinces of Nova Scotia, New HKirNswiCK
and Prince Edward Island, any judge ot a county court ;
(iv.) in the province of Manitoba, the Oiuef Justice, or a j)uisne
judge of the Court of Queen's Bench, or any judge of a county
court ;
(v.) in the province of British Columbia, the Chief Justice or a
puisne judge of the Supreme Court, or anj' judge of a county
court ;
(6.) the expression •' County Attorney " or " Clerk of the Peace "
includes, in the Provinces of Nova Scotia, New Brunswick and
Prince Edward Island, any clerk of a county court, and, in the
Province of Manitoba, any Crown Attorney, the Prothonotary of
18
2().S I'ttACTIOAL GUIDE TO MAOFSTRATES.
till' Cniiii of (^neon's Bciicli. and any Doputy ]'volhoiiotaiy there-
ot. any (U'|iiity ('k-rU of the l^cacc. ami tho dojnity Clovk of the
(rnwii and i'lcas for any district in tlu' said ]trovineo.
7«4. ilii«lu;(> to hv a <'oiii*t of* K«'<*ord. — Tho Judge
(sittina; on any trial nndrr this |)art of tho Codo, for all the piir-
]K>si's tlu'rcof and ])roi'i'odings coiuifctrd therewith or relating
tlieretn. shall lie a Court of Uee.-rd. and in i^very ])rovinee of Can-
ada. E\( Ei'T THE I'HovmcE OF (ii.EBEc. sueh Court (shull be called
'• 'The County Court Judge's Criminal Court " of tho county or
union iif counties or judicial district in which the same is held.
•J. 'I'he record in any sucdi case shall lie tileil among the records
of the Court over which the judge pre.sides, and as part of such
records.
T<>fl> l^itViK'OK ti'iablo iiii<l«'r tliiM part. — Every
person ci>mmitted to gaol foi- trial on a charge of being guilt}' of
any of the otlences which are mentioned in .section 5;}!). (1) as being
within the jurisdiction of the (ieneral (U' (Quarter Sessions of the
Peace, may. witii his own consent, (of which consent un entry shall
then be nuide of record), and subject to the jirovisions herein, bo
tried in any itrovince. under tlie following ]ti'ovisions. out of ses-
sions and out of the regular ti-rni or sittings of the Court. Avhether
the Court before which, but for suidi consent, the said j)erson
would be triable for (he ott'ence charged, or tho (irand .lury there-
of, is oi- is not then in session, and if such person is convicted, he
may be sentenced by the judge.
This Article applii's t') the speedy trial of persmis actually roM-
MiTTEn i''oii TiUAi.. ill any ]irovinci' of tlu' Dominion, foi- any of
the otiences triable i)efore a (^ourl of <Jeueral or (Quarter Ses.sious.
liut Articii' 7S5. post, contains |)rovisions under which j)ersonH
chaigeil in Ontahio. with offences, triable at Sessions nniy, — not
only after being committed for trial, but evi-n wue.n charoeo witli
any such otVence. before a |»olice Magistrate, or before a Stipeiui-
iary .Magistratt'. — elect to be tried before such Magistrate.
74><i. nniy ol' Nlioritt' ai'tor coiumittal of a«'
<*<IN«'4l. — Every sheritt' shall, within twenty-four hours ai'lei- any
(1 ) For Art. 53!), see p. X2, ante.
AKRAIGNMENT OP ACCUSED FOK SPEEDY TRIAL. 269
prisoiKi' (liui'gotl. as iilorcsaid. is (.•ouiinitted to gaol foi- trial, noti-
fy the jiKlge ill writing that such prisoner is so confined, stating his
naiiif and tlic nature of the charge preferred against him, where-
upon, witli us little delay as possible, such judge shall cause t lie
prisoiu'i- to he hrought before him.
707. .ii*i*aip;iiiii<*iit of aeviiNi'd Itofbre «lii«l)i;e, —
Tbe judge, upon having obtained the dejiositions on which the
prisoner was so eoinmitted. shall state to him,
(a.) that he is charged with the ottence. describing it ;
(6.) that he has the option to l)e forthwith tried before such
Judge without the intervention of a ■lury. or to remain in custody,
oi- under bail, as the Court deci<les. to In' tried in the ordinary way
by the Court having criminal jurisdiction.
2. If the prisoner demaiuls !i trial by Jury, the judge shall re-
mand him to gaol ; but if lie consents to be tried by the judge,
without a Jury, the county solicitor, clerk of the peafce, or other
prosecuting otticer shall jirefer the cliargc against him for which
he has been committed for trial, and il". upon being araigned upon
tbe charge, the jirisoner jileads guilt}', the prosecuting officer shall
draw up a record as nearly as may be in one of the foi'ins MM or
\X in schedule one of the Code. (1) such plea shall be entered on
llu' record, which shall have the same force and eti'ect as if passed
by any Court having Jurisdiction to try the otfeiice in the ordinary
way.
C'owIm. — Article 832 of the Code )>rovides that, upon any per-
son being convicted of an indictable ottence, any Court by whicli,
and any judge, undtr Part LI V. by whom judgment is pronounced
or recorded, ma}', — in addition to sucii sentence as may otherwise
be passed,— condemn such person t(, the ])aynient of the whole or
any part of the costs or cxpen.ses incurred in and about the jirose-
cution and conviction for the offence (d' which he is convicted ; and
that the payment of such costs may be ordered to be made out of
any monies taken from such |>erson on his apprehension {if such
monies ore his oicn) or may be enfin-ced at the instance of any jier-
son lialile to pay or who lias paid the same, in the same manner,
(1) For Forms MM and NN, see pp, *.»81, and 2H2. post.
270 PRACTICAL (JUIDE TO MAOISTRATES.
(Hubjoct to the provisions of" the Codo) as tho payment ofan}- costs
ordered to be ]>aid by the Judgment or order of any Court of
competent jurisdiction in any civil action oi- jirocceding may be
enforced ; that until the rec(/very of such costs and ex]teuses from
the person so convicted, or from his estate, the same sliall l)e paid
and ])rovided for in the same manner as if this section (S;^2) had
not been passed ; and that anj- money recoveird in respect thereof
from the person so convicted, or from his estate, shall be a]tplica-
ble to the reimbursement of any ])erson or fund by whom or out
of which sucli costs and expenses have been paid or deirayed.
And it is provided by Article 8;^5 of the Code that any costs order-
ed to bo paid. i»y a Court pursuant to the foregoint; provisions
shall, in case there is no tariff of fees provided with respect to cri-
minal ]»roceedings, be taxed by the proper otticer of the Court ac-
cording to the lowest scale of fees allowed in such (\>urt in a civil
suit; and that if such Court has no civil Jui'isdiction. the fees shall
be those allowed in civil suits in a Supei-ior Court of the province
according to the loAvest scale.
The provision contained in the above Article, 832. is to the same
etfect as the Imperial statute. 3;{-;54 Vict. c. 23, sec. 3. except that
the latter oidy applies to treason and felony and not to convictions
for mi.sdemeanor : and the Knglish Act does not contain the words.
•if such moneys are his own," above italicised.
In a case in which a prisoner, anvsted on the 4tli Ajtril. was
convicted at the following .May Sessions of the Central Criminal
Court, the Court after i)iissing sentence, made under the above
provision of the Imperial statute, an order for the payment of the
costs of the jtrosecut ion out of the money taken from him at the
time of his aiijirehension. On tlic 2-4th of April — between the
tinu' of his a])prelu'nsi()n and bis coMviction— he had been adjudged
bankru|jt ; and it was held — >vitbout deciding what would have
been the case if the nioui'V in question, though in the |)ossession of,
had not really belonged to the prisoner, or if the act of bankniptcy
had been previous to his apprehension — that the order was valid,
on the ground tbaf the subseijuent banki'uptc}- coubl not affect the
right of the Crimimd Court to nuike the order, such right having
vested at the time of the apprelu'iision and befoi-e the bankruptcv.
(1) K. V. Ro»)«r>, -43 L. J. M. C. 17; L. li !) (^ 15. 77.
COSTS, COMPENSATION. AND RESTITUTION. 2*71
Article 834 of the Code, provides thtit, if u i»ers(tii convicted on
an indictment for assault, whether with or without hatterj- and
woundiuij. is ordered to pay costs as provided in section S;>2. lie
shall lie lialile uidess the said costs are sooner j)aid, to tliree months'
imprisonment, in addition to tlie term of imprisonment, if any. 1o
wiiich he is sentenced for the otl'ence, and the court may. by war-
rant in writing. onU'r the amount of such costs to he levied by
distress and sale of the goods and diattels of tlie ortender. and paid
to tiie jirosecutor. and the surplus, if any. arising from sueh MaUi,
to the owner : and if such sum is so levicil, the ott'ender .shall be
released trom such imprisonmi-nt.
4'oinp«'iiNatioii to lloiiit-Fiilt* Piirc]iaN4>r of*
Moloil l*roj»t'rt;|»'. — When any prisoner has been convicteil,
cither summarily or otherwise, of any theft or otlierott'ence. includ-
ing tlie .stealing or unlawfully obtaining any ])ro))erty. and it
ajipeai's to the court by the evidence, that the prisoner sold sneii
])i-operty or part of it to any jierson who Iiad no knowledge that it
was stolen or unlawfully obtained, and that money has been taken
from the ])ri8oner on his aiiprehension, the court may. on applica-
tion of such ]iurchascr and on restitution of the jiropertj' to its
owner, ortler that out of the monej" so taken from the prisoner. (*/
it is his), a sum, not exceeding the amount of the proceeds of the
sale, be delivered to such purchaser. (Code, Art. 8^7.)
KcMtitiitioii ol'Ntol«>ii Pro|»«>rt.y.— Article 8HS of the
Code, (as amended by ')(> Vict. c. ;{2). ])rovides that if any person,
who is ginlty of any indictabk otfencc in stealing or knowingly
receiving any pm])crty. is indicted for such offence by or on behalf
of the owner of the pi'operty. or his executoror administrator, and
convicted ilu'rcof or is. \inder any of the provisions of the Code
relating lo the trial of indictable oticnces. tried before a judge or
J\isticc for .such offence and convicted thereof, the ]tro]ierty shall
be restored to the owner or his rejtresentativc. By clause
2 of the same Article, it is jirovided that, in every such
case, the court or tribunal, before which such person is tried
for any such oHencc, shall have power to award, from time to time,
writs ' i restitution for the said i)roperly or to order the restitution
thereof in a sumnuiry manner ; and that the court or tribunal nniy
also, if it sees tit. award restitution of tlu> i)ro])erty taken from the
272 PKACTICAL GUIDE TO MAGISTRATES.
prosecutor, or any witness for the prosecution, by such offence,
although the. person indicted is not convicted thereof, if the jury declares,
as it may do, or if, in case the ottender is tried without a jury, it is
proved to the satisfaction of the court or tribunal by Avh9m he is
tried, that such property belongs to such prosecutor or witness,
and that he was unlawfully deprived oi' it l>y such offence. And
clause 3 provides that, if it a])pears, before any award or order is
made, that any valuable security has been bona fide paid or dis-
charged by any person liable to the paj'ment thereof, or being a
negotiable instrument, has been bond fide taken or received by
transfer or delivery, b}' any j)erson, for a just and valuable consid-
eration, without any notice or without .my reasonable cause to
suspect that the same had, by any indictable offence been stolen,
or if it appears that the ]»ropert3' stolen has been transfci'red to
an innocent purchaser for value who has acquired a lawful title thereto,
the court or tribunal shall not award or order the restitution of
such security or pi'operty.
This third clause makes an exception in favor of an innocent
third party who has purchased, for value, the stolen pro]ierty, and
who Ms acquired a lawful title thereto, that is, a lawful title accord-
ing to the law as to civil rights, of the proviiice where the offence
has been committed.
For instance, by the law of the Province of Quebec. " If a thing
lost or stolen be bought in good faith in a fair or market or at a
public sale, or from a trader tlealing in similar articles, the owner
cannot i*eclaim it, without rc-iml)ursing to the purchaser the price
he has paid for it." and ■• If the thing lost or stolen hv sold under
the authority of law. it cannot l>e reclaimed. " (1)
The power to award restitution of property undei- the al)Ove
Article, 83H, extemls to the proceeds of the pi-operty as well as
the property itself Therefore, if the property stolen has been
sold before the conviction, an a]ipiication may be made to the
court, before which the criminal is convicted, for the restitution of
the proceeds, which, if the}' are in the hands of the criminal or of
an agent who holds them for hira, should be granted. (2)
(1) See Civ. Code L. C, Arts. 14H9, 1490.
(2) R. V. .lustices Cent. Crim. Ct, 17 Q. B. D. 598 ; 55 L. J. Q. B., 183 ; Aff.
18 Q. B. D., 314 : 56 L. J. M. C. 25.
RE-EI-ECTIN« AFTER COMMITTAL. 2*73
Where, iiftcr the tri.al and conviction of a prisoner for larceny,
the judges who presided at the trial ordered property found in his
possession, when arrested, to be disposed of in a partic\ilar manner,
such property not being part of that stolen nor connected there-
with, it was held tluit the order was bad, as the judges had no jur-
isdiction t(> make it. (1)
Clause 4 of the above article, 838, provides that nothing in that
article contained shall apply to the case of any prosecution of any
trustee, banker, merchant, attorney, factor, broker, or other agent
entrusted with the possession of goods or documents of title to
goods, for any indictable ottence uu<ler sections 320 or 363 of the
Code.
TOH. Pe«HOii« Jointly Acciisefl. — If one of two or
more prisoners charged with the same ottence demands a trial by
jury, and the other or others consent to be tried by the judge
without a jury, the judge, in his discretion, may remand all the
prisoners to gaol to UAvait trial by a jury.
70». Klcctioii Alitor Kcl'iiNal to Im> Tried by
Jll4l{re.— If under Part LV. (2) or Part LVE. (3) any person
has been asked to elect whether he would be tried by the magis-
trate or justices of the peace, as the case may, or before a jury, and
he Inis elected to bo tried before a jury, and if such election is
stated in the warrant of committal for trial, the sheritland judge
shall not be required to taice the proceedings directed b}* this
part.
2. Hut if such person, after bis said election to be tried by a
jury, has been committed for trial, he may, at any time before the
regular tonn or sittings of the court at which trial by jury would
take |)liU('. n<3tify the sheritf that he desires to re-elect ; where-
Mpmi it shall be the duty of the sheritf to proceed as directed by
section Tliti. and, thereafter, the person so committed shall be pro-
(1) R. V. City of London, E. B. A E. 509; 27 L. .1. M. C. 231 , 1{. v. Pierce,
Bell, 235.
(2) Part LV. (comprising Articles 782-808) relates to the Snmmary Trial
of Indictable Offences. See post,
(3) Part LVL (comprising Articles 809-831) relates to the trial of Juvenile
Oflenders for Indictable Offences. See post.
274 PRACTICAL OUIDE TO MAGISTRATES.
cooili'd against as if his sai<l eloctioii in (lie tirst instance liad not
boon made.
770. C'oKtiiiiiuiKM' of Profe<><liii)rN Before An-
other .llld^re. — Proeoodings under this part of the Code com-
moneed before any .judge may, where such judge is for any reason
unal)le to act. be continued liefore anj' other Judge competent to
try prisoners under (his part in the same judicial district, and such
las( mentioned judge shall have the same ])OAVi'i's Avith respect to
such ]»roceedings. as if such proceedings had been commenced be-
fore him. and may cause such ])orti(m of the i)roceedings to be
repeated before him as he shall deem neeessary.
771. Kleetioii After Coiiiiiiittal Under Part
■iV. or l^VI.— If. on the trial, imder Part LV. or Part LVI.
of the Coile, of any person eharged Avith any otfence triable under
the provisions of this part, the nxagistrate or justices of the peace
decide not to try the same summarily, but commit such ]>erson for
trial, siudi ])erson may. afterwards, with his own consent, be tried
under the provisions of this part of the Code.
772. Trial of Ae<^iiNe4l. — If the prisoi\er, upon being so
arraigned and consenting as aforesaid, pleads not guiltj^, the judge
shall api)oint an early day, or the same day, for his trial, and the
county attorney or clerk of the peace shall subpoena the witnesses
named in the de])ositions. or such of them and such other witnesses
as he thinks requisite to prove the charge, to attend at the time
appointed for such trial, and the judge may proceed to try such
prisoner, and, if he be found guilty, sentence shall be passed as
hereinbefore mentioned ; (I) but if he be found not guilty the
judge shall immediately discharge him from custody, so far as res-
pects the charge in qtiestion.
773. Trial of Oft'eneeN Other Than Thoive for
Whieh A<*enNe<l In Committed. — The county attorney
or clerk of the peace or other prosecuting officer may, with the
(1) See Art. 767 at p. 269, ante. See pp. 269-270, ante, as to costs, also
p. 271, ante, as to comi'knsation to bona fidb i'Urchaser of stolen property,
and pp. 271-272, ante, as to restitution of stolen property.
TRIAL. 215
consent of the judge, pri'lbr iigiiiiist the priHoner u eharge or
charges for any otYonoe or ott'ences. for which he may l)e tried
under the ])rovisions of this part, other than tlie charges for \vhi« li
he has been conuuitted to gaol for trial, although such eharge or
charges do not appear, or are not mentioned, in the depositions
upon which tlie prisoner was so committed.
It seems, however, that when other charges than those for wliieh
the accused has hcen e(nnmitte(i for trial are ])referred against
him. his consent to a spee<ly trial of .such other charges must be
shown. Thu.s, in a case where some ])risoners were chaiged with
having defrauded the ])rosecutor by means of the tliree-card monte
game, they consented to be tried sumnmrlly. When thej' were
In'ought up for trial, the Crown aUorney applied for and obtained
leave to substitute a charge of coml)ining to obtain money by false
pretences ; but the i)risonei"s objected. The trial was then pro-
ceeded with, withont the consent of the prisoners to be tried
summai'ily for this substituted otfence being obtained. And. upon
error brought, it was held tliat the consent of the prisoners to be
summarily tried on the substituted charge should distinctly ap-
pear, and that, by reasim of its absence, the conviction was bad. (1)
774. Powers of Jud^^e. — The judge shall, in any case
tried before him. have the same ]H)wer as to acquitting or convict-
ing, or convicting of any other otfence than that cliarged, as a
jury would have in case the ])ri8oner were tried at a sitting of any
court mentioned in this ]iart, and may render any verdict which
may be rendered by a jxiry upon a trial at a sitting of any such
court.
By Article 711 of the Code, (wliich, together with Articles 712
and "ilH. post, will, under the terms of the above Article 774, apply
to "Speedy trials of Indictable Ott'ences"), it is provided that
when (he complete commission of tlie otfence charged is not
jiroved, but the evidence establishes an attempt to commit the
oti'ence, the accused may be convicted of such attempt. And
Article 712 provides that when an attempt to commit an otfence is
charged, but the evidence establislies the commission of the full
otience, the accused shall not be acquitted, but may be convicted
(1) Goodman v. R. 3 Ont. Rep. 18.
276 PRACTICAL GUIDE TO MAGISTRATES.
of the attempt, or the court may, in its dist'rctioii. direct such per-
Hon to be indicted for the complete otfence ; but it also provides
that after a conviction for such attempt the accused shall not be
liable to be tried again for the olfence which he was charged with
attempting to commit.
Artidle 713 of the Code provides that if the commission of the
offence charged against the accused includes the commission of any
other offence the person accused may be convicted of any offence
so included which is proved, although the whole offence charged is
not proved, or he may be convicted of an attempt to commit any
ott'ence so included.
This article follows the common law rule (now con.siderably ex-
tended by the abolition of the distinction between fehmies and
misdemeanors"), under which it is not necessary to prove, to the
full extent laid, the offence charged in the indictment. ])rovided
the facts actually proved constitute an offence punishable by law,
and for which the defendant may by law be convicted on that in-
dictment. (1)
Under this rule, if, upon a charge of burglary and stealing
goods, there be no burglary but only stealing proved, or, if upon
an indictment for robbery there be proof of the stealing of the
property but not that it was taken from the person by violence or
putting in fear, the prisoner may be convicted of the simple
theft. (2) Indeed, upon an indictment for burglary and stealing,
the prisoner may be conviced either of burghuy,, of entering a
dwelling-house in the night with intent to commit an indictable
offence therein, of houisebreaking, of stealing in a dwelling-house
to the amount of $25 (if the property stolen be laid in the indict-
ment to be of that value), or simply of theft, according to the
facts proved. (3)
Ui)on a charge of assaulting and unlawfully wounding and ill-
treating the prosecutor, and thereby occasioning him actual bodily
(1 ) B. V. HoUiugberry, 4 B. & C. 330 ; R, v. Hunt., 2 Camp. 583 ; R. v.
Williams, 2 Camp. 246.
(2)2 Hale, 203.
(3) R. V. Compton, 3 C. & P. 418 ; R. v. Bollock, 1 Moo. C. V. 423 ; R. v.
Brookes, C. & Mar. 543.
POWERS OF JUIXJE IN SPEEDY TRIALS. 277
hiiriii, the (leJendiint may be eonvicted of a coinmon assault.
(1)
Upon an indictment for conspiring to prevent workmen from
continuing worli, it is sutttcient to prove a conspiracy to prevent
one. workman from working. (2)
Where two intentions are ascribed to one act — as that an assault
was committed on a female with intent to nhise and to camallif
know her — proof of either of the intentions a8cril)ed will be suf-
ficient. (S)
Upon a charge of stealing, if any one of the articles enumerated
in the charge be proved to have been stolen by the defendant, it
will be sufficient. (4)
Upon an indictment for extortion, alleging that the defendant
extorted twenty shillings, it was held sufficient to prove that he
extorted one shilling. (5)
On a charge of obtaining money by false pretences, proof of
part of the pretence alleged was held sufficient where the money
was obtained upon that pai't of the pretence which was proved. (G)
Where several are indicted for burglary and theft, one may be
found guilty of the burglar} antl stealing, and the others of the
stealing only. (7)
View. — Article 732 of the Code, i)rovides that on the trial
of any person for an offence against the Code, the court
n\ay direct that the Jury shall have a view of any place, thing
or ])ci"sf)n. But it does not apj)ear to empower the taking of
such a view by the court or judge in the case of a trial without a
jury. Thus, where upon an indictment for unlawfully displacing
a railway switidi. a prisoner was tried without a jury by a county
couTt Judge, exercising jurisdiction under the '• Speedy Trials Act,''
(1) R. V. Oliver, Bell, l.\S7 ; 80 L. J. (M. C.) 12 ; R. v. Yeadon, L. i<c C 81 ;
:n L. .1. (M. C.) 70.
(2) R. V. Bykerdike, 1 M, & R. 179.
(3) R. V. Evans, 3 Stark, 35; R. v. Dawson, 3 Stark, 62.
(4) 2 Hale, 302. See R. v. EUins, R. & R. 188.
(5) R. V. Biirdett, 1 Ld. Raym. 149. See R. v. Carson, R. & R. 303.
(6) R. V. Hill, R. & R. 190.
(7) R. V. Butterworth, R & R. 520.
278 PRACTICAr. OUIDK TO MAdlSTHATES.
and ut'ter hearing the ovidonci- and tin* addresHOs of couhhoI, tho
judgi' iVHi'VVt'd his decision, and. tiion, lielbiv giving it, having
occasion to pass the |)laci'. he examined the switch in qnestioii,
ni'itlier tlie prisoner nor anj' one on ins beliaif ijeing present, and
tiie prisoner was fonnd guilty ; — it was lield that there was no
avithoritj' for the judge taking a vieiv of the place, and that even
if he had the right to take the view, tlie manner of his taking it,
without the i)resence <>i' the prisoner or of any one on his l)ehaH".
was unwarranted, and, further, that the question whether the judge
had the right to take a view was a question of law arising on
the trial and was a proper question to reserve under the J{. S. C.,c.
174, sec. 25!t, (1)
KeNorviiii; <|H<'NtioiiN of Iwiw. — Article 74H provides
as follows :
1. The coui-t before wliich any accused person is tried maj-', either
during or after the trial, reserve an^ </Mes?ion of iau; arising either
on the trial or on any of the proceedings ^jreijwimary. subsequent, or
incidental thereto, or arising out of the direction of the judge,
for the opinion of the Court of Appeal in numner hereinafter pro-
vided. ,
2. Either the prosecutor or the accused may, during the
trial, either orally or in writing, apply to the court to reserve any
such question as aforesaid, and the court, if it refuses so to reserve
it. shall nevertheless take a note of such objection.
3. After a question is reserved, the trial shall proceed as in other
cases.
4. If the result is a conviction, the court may, in its discretion,
respite the execution of the sentence, or postpone .sentence till the
question reserved has been decided, and shall in its discretion com-
mit the jjerson convicted to prison or admit him to bail, with one
or two sufficient sureties, in such sums as the court thinks fit, to
surrender at such time as the court directs.
5. If the question is reserved, a case shall be stated for the opinion
of the Court of Appeal.
(1) R. V. Petrie, 20 Ont., Rep. 317.
I'llOCKSS (IK AMBNI>MKNT. KTC. 27!>
Appeal ivlien 4|ii(<«Ntion not K<>MC>rv«>d. — If tho
court rct'nsos to ivMorv*' the question, tlio i'ahty amm.yino may,
with the leave, in writing, of the Attorney-lieneral, move the Oourl
of Appeal, after notiee to the accused or 1'Roseci;toh, as tlie ease
may be, for K-ave to appeal ; and, if leave to ap|)eal is granted, a
case shall l»e stated for tlie oiiinion of the Court of Appeal as if the
question had been reserved. (Code, Art. 745.)
7T5. A«1iiliNNioil to Ball. — If a prisoner elects to be tried
by the judge without the intervention of a jury, the judge may, in
his discretion, admit him to bail to appear for his trial, and extend
the bail, from time to time, in case the court bo adjourned or there
is any other reason therefor ; and such bail may be entered into
and perfected before the clerk.
77«S. Bail In Vane ofKlcction of Trial by Jury.
— If a prisoner elects to be tried by a jury, the judge may, instead
of remanding him to gaol, admit him to bail, to appear for trial at
such time and place and before such court as is determined upon,
and such bail may be entered into and perfected before the clerk.
T77. Acljonrnincnt. — The judge may adjourn any trial
from time to time until finally terminated.
77H. Powers of Antendniont. — The judge shall have
all powers of amendment which any court mentioned in this part
would have if the trial was before such court.
Article (>29 of the Code, provides for the amending of defects
apparent upon the face of an indictment when attacked by demurrer
or motion to quash ; and Article 723 of the Code provides for the
making of amendments when there are variances between the
cliiirge as laid in the indictmeut and the evidence given on the
trial. (1)
77SI. Kccoicnixanee to Proweente or f^iw Evid-
cnee. — Any recognizance taken under section 598 of the Code,
for the purpose of binding a prosecutor or a witness, shall, if the
(1) For these Articles 029 and 723, and full comments anc' -xuthorities there-
on, see Crankshaw's Cr. Code, pp. 591-592 and 054-()56.
280 I'RACTtOAI, milDK TO MACIISTKATKS.
])(>rH()H CDininiKcil lor trial elects to !»' tried iiinler tlie |ii'ovisiitiirt
of this |iurt, lie oldiii'iitory on eaeli of tlu' persons liound tliei'el)y,
us to all tilings tlierein mentioned with rei'ei'eneo to 1 lie trial hy
t lie Jii(li;e under tiiis part, as if siieli recoifiiizanee had lieen oviji^-
inally entered into for the doing of such things with ivference to
such trial : I'rovided, that at leaht furty-eiuut hours notice fn
witiTiNd suALi, HK (iiVEN, either personally or hy leaving the sumo
at the \ilaee of residence of the* persons hound hysuch recognizance
as therein descrihed. to appear hoforc the judge at tlio place whoro
such trial is to Ik- had.
7M4K Witii«'MN4'N to iittoud tliroii)r|ioiit trial. —
Kvery witness, wluitheron lu'half of the prisoner or a|^ainst hiju.
duly suninioned or suh[Meiuied to attend and give evidence before
such Judge, sitting on any such trial, on the day ai)pointed for the
same, shall he bound to attend and remain in attendance through-
out the trial ; and if he fails so to attend he shall be held guilty of
contempt of cour., and may be pi-occeded against therofoi- accord-
ingly.
7HI, ('oiiipc'lliiiK att«>iidaii<*« of l¥itii('NN<'N. —
Upon proof to the satisfaction of the judge of the sei'vice of sub-
jidMia u]>on any witness who fails to attend before him as required
by such suhpd'iui, and upon such Judge being satistied that the
presence of such witness before him is indispensuble to the ends of
justice, he may. by his wai'rant. cause the said witness to be a]>pre-
hended and forthwith brought before him to give evidence as re-
quired Ijy such subpcena, and to answer for his disregard of the
same ; m\t\ such witness may he detained on such warrant before
the said Judge, or in the common gaol, with a view to secure his
presence as a witness ; or, in the <liscretion of the Judge, such wit-
ness may be released on i-ecognizance, with or without sureties,
conditioned for his api)earance to give evidence as therein men-
tioned, and to answer for his defa\Ut in not attending upon the
said subptena. as for a contempt ; and the Judge may, in a sum-
mary manner, examine into and dispose of the charge of contempt
against the said witness, who, if found guilty thereof, may be lined
or imprisoned, or both, such tine not to exceed one hundred dollars,
and such imprisonment to be in the common gaol, with or without
FORMS. 281
hard liilxjur. and not to oxfoed the toriii of ninety diiyn. and ho
may alsct lu> oi'di'red to pay tho costs incniont to tlu* execution (d"
such warrant and of his detention in custody.
2. Sucli warrant may l)e in the form 00 (1) and the conviction
for contempt in the form I'P in schedule one of tlie ('o(U>, (2) and
tiio same shall be autliority to tho persons and otttcers therein re-
quin d to act to do as therein they arc respectively directed.
K()i{.Ms rxhKij I'Airr lit of the'cobk.
At
MM.— (Section H]1.)
PiiltAC or IIECOHO v'.IIEN THE I'KISONER PI-EAnS NOT GUILTY.
( 'anada.
Province of
County of
:!
Be it remembered that A. B., being a ]»risoner in the gaol of the
said county, committed for trial on a charge of having on the
day of , in the year , stolen, &c. (one cow,
the property of ('. C. or as the case may be, stairng briefly the offence)
and having been brought before me (describe the Judge) on tho
day of , in the year , and
asked by mo if he consented to be tiied before me without the in-
tervention of a jury, consented to bo so tried ; and that upon tho
day of , in the year , the
siiid A. B.. being again brought before me for trial, and declaring
liinisolf ready, was arraigned upon the said charge and pleaded not
guilty ; and after hearing the evidence adduced, as well in support
of the said charge as for the prisoner's defence (or as the case may
be). I find him to be guilty of the olt'ence with which he is charg-
ed as aforsaid, and I accordingly sentence him to (here insert such
sentence as the law allows and the Judge thinks right,) (or I find him
(1) For Form 00, see p. 283, pott.
(2) For Form PP, see p. 284, pott.
282 PRACTICAL (It'IDE TO MAGISTRATES.
not guilty of the offonco with which \w is riiargod. and discharge
him accordingl}'.)
Witness my hand at , in the county of ,
this day of , in tho year
O. K..
yi^i.— {Section 7ti7.)
POR.M (IK KECORO WHEN THE I'RFSONKR PLEADS OflLTY.
Canada.
Province of
County of
:!
Be it rememhoi'cd that A. B.. heing a prisoner in the gaol of* the
said county, on a charge of having on the (Uiy of
i \ the year , stolen. &c., {one cow, the property of C. D.. or
as the case may be, stating briefly the offence), and l)eiiig hrought be-
fore nu' (describe the Juittje) on the day of
in the year . and asked in' me if he consented to he tried
Itefore me without the intervention of a .huy. consented to he so
tried ; and that the said A. B., Ijcing then arraigned upon the said
( harge. he jdeack'd guilty thereof, whereupon I sentenced the said
A. B, to {Itere insert such sentence as the law <dlous and the Judge
thinks right.)
Witness my hand this »hiy of , in the 3'ear
O. K..
Judge.
FORMS. 283
OO.— (Section 781.)
WARRANT TO AIMMIKHENH WITNESS.
CailiUlil, 1
I'roviiu'o of , >
County of . >
To all or uny of tho constables and other peace officiTs in the
.said county of
Whereas, it haviiiL' l)eon made to ajiju-ar before nie. tliat E. F.,
of . in the said county of , was likely to give
material e\ndenee on behalf of the ]irosecution {or defence, an tfus
case may be) on the trial of a certain charge of (theft, or as the
case may be), against A. B., and that the said H. V. was duly sub-
jxened {or bound under recognizance) to appear on the day
of . in the j'ear , at in the said
county at oclock (forenoon or afternoon, as the case mai/ be),
before nie. to testify what he knows concerning the said charge
iigainst tlu' said A. B.
And whereas, proof has this day been made before me. ujion oath
of such subpiena having been duly served upon the said E. F.. {or
of the said K. K.. liaving been duly bound under recognizance to
appear before me, as the case may he); ami whereas the said K. F.
has neglected to appear at the trial and place appointed, and no
just excuse has been otfcreil for such neglect : These are therefore
to command you to take the said K. K. and to bring him and have
him forthwith before me. to testify what he knows concerning the
said charge against the said A. B., and also to answer his contempt
lor such neglect.
(iiven under my hand, this day of . in tlie
year
(). K..
Judge.
ll>
284 PRACTICAL GUIDE TO MAGISTRATES.
Vl\ — (SertirMlSl.) .; ; V
CONVICTION FOR CONTEMPT.
raiiinlii. "^ . ■ V
l'ri>viiict' ol' . >
( 'cuiily of \j ■ ' , ; ■ ^;
Hi' it rt'iiu'iiihcrcd tliiit on tlie day of
in tin- year . in tlu' oouiitj- of , E. F. is convicted
before mo. for that he the said E. F. did not attend lieforo me to
jujive evidence on tiie trial of a certain ciiarge ai^-ainst one A. H. of
(theft, or as the case may be). aithoii<rh duly sujKcnacd (or l)onnd by
recognizance to a])pear and give evidence in that behalf, as the case
mail he) but made default thci'cin. and has not shown before mo any
sutticiont excuso'for siu-h default, and J adjudge the said H. F.. for
his said otfence. to be imprisoned in the common gaol of the county
of . at , for the s])ace of . there
to be ke])t at hard labour (and in case a fine is also intended to be
imposed, then proceed.) and I also adjudge that the said K. F. do forth-
with pay. to and for the use of Her Majesty, a tine of dollars,
and in default of ])ayment. that the said tine, with the cost of collec-
tion, be levii'd by distress and sale of the goods and chattels of the
said iv F. (or in case a fine alone is imposed then the clause of imprison-
ment is to be omitted.)
(liven under my hand at . in the said county
of , the day and year first above mentioned.
(). K..
Judge.
ADDITIONAL FORMS. 285
A1)])ITIUXAL FOEMS.
ACCUSATION.
Ill the ("ounty Court Judge's (■rimiiial (Vjurt for tlu' county
ftf [or •■ Fn tlu' Court of tho Judge of sessions of the
|jcLi(c t'T tlir district id' ,^ ")
Canada. ) The day of
Province of ^ ; ^ V ^ : ,. " ; ^ A. D. 18i> , at
('ountv of ■ ' : , J' ' ' i" the countv
(or distrirt) of hefore
h]s([uirc. ('ouuty .ludgc of tlic saidicounty
(or Judije of the sessions of the peace for the said district) exercising
crimiiud jurisdiction uniler the provi.sions of Part LIV of the
(Viminal Code, relating to the Si)ee(ly Trials of Indictabk'Otfences,
A. B. who is committed for trial to tlu' common gaol of the said
c(uinty (or district), and is now a jjrisoner in clo.se custody therein,
stands charged this day. before tlie said judge, sitting in open
court assemhled for the trial of the said \. 15.. as follows:
FIRST coiNT. for that he the said A. \i.. on the day
of , in the year A. D.. ISO , at did
(svf out the o{f>nce to be charjjed in the first count.)
SKCOND COINT, and for that, he, the said A. li., on the day and
year last aforesaid at aforesaid did {set out the
offfnce to be charqed in th'- second count.)
.T.N.
County attorney, county of (or clerk of the peace,
district of ).
A. B.. within (orab'/ve) named, upon the within (nv above) charge
licing rea<l to him by the judge in open court, and being informed
l)V the judge that he has his opti»m either of being forthwith tried
without the intervention of a jury upon the .said (diarge, or of
remaining untried until the next court of Oyer and Terminer of
this county (or district), consents to be now tried uiion tlu said
(barge, by the .saiil judge, witluuit a juiT. and the jirisoner i)leads
not guilty to the said charge.
286
PRACTICAL GUIDE TO MAGISTRATES.
SHERIFFS NOTICE.
To llis Honor tlio County .hulge of (or (he
Judge of sessions of the peace for )
Pursuant to Article 76() of tlio Criniiniil Code roliitin<;- to the
Speedy Trials of Indietable oH'cneiss, J.
sherili" of the said county (or district) certify that the several per-
sons whose names are mentioned in the first column of tlu^ schedule
hereunder Avritten were committed for trial to the common giiol of
the said county (or district), and were received by the gaoler of the
said gaol on the days severally mentionetl in the second column of
the said schedule, opposite the names of the said persons respec-
tively, anil were so committed to gaol and severally received under
and by virtue of a warrant from
charged with the commission of indictable ottences triable at a
('ourt of (ieneral or Quarter Sessions of the peace, and that the
nature of the chai'ge against each of the said persons is set forth
in the third column of the siiid schedule opposite each of the names
of the said several persons.
SCHEDULE AHOVK KKFERHED TO.
Name of Prisoner.
A. B
CD
E.F
T i m e w h e n c o lu-
mitted fur trial.
iNature of charge as contained in
the warrant of commitment
for trial.
(Signed) X. Y.,
Sheritfof the county (or district) of
SUMMARY TRIAL OF INDICTABLE OFFENCES. 287
CIIAPTl^i XL .
(Part LV. of the Code.) - , ,. •
Summary Trial of Indictable Offences.
7H*2' 0<'lillitloils.— Ill this |)ai't, mik'ss the contoxt other-
wise requires,
(a) the ex])res8ion • Mai^istrate "' means iivul ineludes —
(i.) ill the proviiues of Ontario. (iiEHEc and Manitoba, any
reeorder. Judye of a ('oiuity Court, lieiiig- a justice of the peace,
coiuinissioiier of police, judye of tlie Sessions of the Peace, pohce
inau;is(rate. district magistrate, or other functionaiy or tribunal,'
iiivesled liy tlie proper legislative authority with power to do
alone such acts as an usually requireil to he done hy two or more
justices of the peace, and acling within the local limits of his or its
jurisdiction :
(li.) ill the provinces of Nova Scotia and New Brunswick, any
recorder, judge of a (^)unty Court, stipendiarj' magistrate or ]»olice
magistrate, acting within the local limits of his jurisdiction, and
any commissioner of ])olice and any functionary, tribunal or
jursoii invested by the |)roper legislative authority with power to
do alone such acts as are usually required to be done by two or
more justices of the peace ;
(iii.) in the ])rovinces of Prince Kdward Island and Uhitisii
Columbia and in the district of Keewatin, any two justices of the
[leace sitting (ogether. and any functionary or tribunal luiving the
])owers of two justices of the peace ;
(iv.) in the North-west Territories, any judge of the Su-
|)reme Coui't of the said territories, any two justices of the peace
sitting together, and any functionary or tribunal having the
powers of two justices of t lie peace ;
(6) the expression ''the common gaol or other place of confine-
ment." in the case of any otfender whose age at the time of his
conviction does not, in the oiiinion of the nmgistrate, exceed sixteen
yeai's, includes any reformatory prison provided for the reception
288 PKACTICAL GUIDE TO MAGISTRATES.
of juvenile offenders in the provim-e in which the conviction re-
ferred to takes place, and to which by the law of that province
the offender may be sent ; and
(c) the expression ••proj)erty '" includes everything included
under the same expression or under the expression " valuable
security," as detined by the Code, and in the case of any '-valuable
security ' the value thereof shall be reckoned in the manner
prescribed in the Code.
7M». OftencoN to hv l>ealt With Under ThiN
Part. — Whenever any pei'son is charged bei'oi-e a magistrate,
(a) with having committed theft, or obtained money or prop-
erty by FALSE PRETENCES, or Unlawfully received stolen prop-
erty, and the value of the property alleged to have been stolen,
obtained or received, does not, in the judgment of the magistrate,
exceed ten dollars ; or
(6) with having attempted to commit theft ; or
(c) Avith having committed an aggravated assault by unlaw-
fully and maliciously inflicting upon any other person, either with
or without a Aveapon or ijistrunient, any grievous bodih' harm, or
by unlawfully and maliciously wounding any other person ; oi"
(d) with having committed an assault upon any female what-
soever, or u]»on an}' male child whose age does not. in the opinion
of the magistrate, exceed fourteen years, such assault being of a
nature wliich cannot, in the opinion of the magistrate, be suf-
ficiently punisiied l)y a summary conviction before him under any
other part of this act, and such assault, if upon a fenuile, not
amounting, in his opinion, to an asuault with intent to commit
a rape ; or
*•''■*■■■■■. /
(e.) with having assaulted, obstructed, molested or hindered
any peace officer or I'UBLir servant in the lawful performance
of his duty, or with intent to |)revent the ])erformance thereof ; ov
(/.) with keeping or being an in.mate or habitual frequenter
of any disorderly house, house of ill-fa.me or hawdy-house ;
or ;
(g.) with using or knowingly allowing any part of any premises
under his control t(j be used —
WHEN THERE IS ABSOLUTE JURISDICTION. 28!»
(i.) for the purpose of RBCORDINQ or registering any bet or
WAGER, or SELLING ANY POOL ; or
(ii.) KEEl'INO, EXHIBITING, Or EMPLOYING, or KNOWINGLY ALLOW-
ING to bo kept, exhibited or eini)loyed, any device or a]>paratus
for the purpose of recording or registering any bet or wager, or
SELLING any POOL ; Or
(h.) becoming the custodian or depositary of any money. ]»rop-
erty, or valuable thing staked, wagered or ])ledged ; or
(i.) recording or registering any bet or wager, or selling any
pool, upon the result of any political or municipal election, or of
any race, or of any contest or trial of skill or endurance of man or
beast, —
The Magistrate may, subject to the provisions hereinafter made,
hear and determine the charge in a summary way.
tH-i. When ^ai^iMt rnte Hliall liavo abwoliitc
•luriMlic^tioil. — The jurisdiction of such Magistrate is ABSO-
LUTE in the case of any person chargeil with keeping or being an
INMATE or HABITUAL FREQUENTER of any DISORDERLY HOUSE. HOUSE
OF ILL-FAME or BAWDV-iiousE, and does not depend on the consent
of the person charged to be tried by such Magistrate, nor shall
such person be asked whether he consents to be so tried ; noi- do
the provisions of this part affect the absolute summary jurisdiction
given to any Justice or Justices of the Peace, in any case l)y any
other }>art of the Code.
2. The jurisdiction of the Magistrate is absolute in the case of
any person who. being a seafaring person and only transiently
in Canada and having no permanent domicile therein, is charged,
either within the city of (Quebec as limited for the purpose of the
police ordiiumce, or within the city of Montreal as so limited, or in
any other seaport, city or town in Canada where there is such Ma-
gistrate, with the commission therein of any of the offences
HEKEINBEPOHB MENTIONED, and also in the case of any other person
charged with any such oftence on the complaint of an}' such sea-
faring person whose testimony is essential to the i)roof of the of-
fence ; and such jurisdiction does not depeiul on the consent of any
such person (o be tried by the Magistrate, nor shall such person
be asked wliether he consents to be so tried.
290 PRACTICAL GUIDE TO MAGISTRATES.
8. Tho jurisdiction of ii Sti|H'iKliary Magiisf nilo in tho province
of Prince Kuward Islano. and of a .Matjistrato in the district of
Keewatin. under tliis part, is ai)solute. without tlic consent of the
person charged.
7.H3. Niiiiiiiinr,v trial iii certain eaMVN, in On-
tario. — If any person is ciiaroeu, in the province of t)NTARio,
before a Police ^Fagistrate or Itefore a Stipendiary Magistrate, in
any county, district or provisiouid count}' in sucli province, with
having committed any offence for which he may be tried at a
Court of (teneral Sessions of the Peace, or if any person is
COMMITTED To A uAOL in the county, district or ])rovisional county,
under the warrant of any Justice of the Peace, for trial on a charge
of being guilty of any such otfence, such person may, with his own
consent, be tried before such Magistrate, and may, if found guilty,
be sentciu-ed by the ^lagistrate to the same punishment as he
would have been liable to if he had been tried before the (Jourt of
(xeneral Sessions of the Peace.
7H6. Proct'«Mliii^;!« on arraign in cut ol* aociiNCMl.
— "VVlienever the ^lagistrate, before whom any person is (diarged as
aforesaid, ])roposes to disi)ose of the case summarily, under the
provisions of this part, such Magistrate, after ascertaining the na-
ture and extent of the charge, but before the formal examination
of the witnesses for the prosecution, and before calling on the per-
son charged for any statement which he wishes to make, shall state
to such ])erson the substance of the charge against him, and (if
the charge is not one that can ha tried summarily without the con-
sent of the accused) shall then say to him these words, or words
to the like effect ; "' Do yoii consent that the charge against you
shall be tried by me, or do you desire that it shall be sent for trial
by a .lury at the (naming the court at which it can probably soonest
be tried) ; " and if the person charged consents to the charge being
summarily tried and determined as aforesaid, or if the power of
the Magistrate to try it does not depend on the consent of the ac-
cused, the ^lagistrate shall reduce the charge to wi'iting and read
the same to such person, and shall then ask him whether he is
guilty or not of such charge. If the person charged confesses the
charge the Magistrate shall then proceed to pass such sentence
PUNISHMENT ON SIMMAKV CONVICTIONS. 2!>1
Upon him as by law may lu' passed in ivsjKiet to siu-ii offcnco, sub-
ject to the provisions ot this Act ; but if the jtcrsun charged says
that he is not guilty, the Magistrate shall then examine the wit-
nesses for tin' |)rosecution. and when the examination has been
(■om[ileted. the .Magistrate shall inquire of the person charged whet-
her he has any defence to make to such charge, and if he states
that he has a defence, the Magistrate shall hear such defence, and
shall then |)roceed to dispose of the case summarily.
7S7. PiiiiiNliinciit for 4H'rtaiii oft«'ii«>i>N under
tlliN part* — In the case (dan ottencc charged under ])aragraph
(a) or (6) of section 7H;{, the .Nfagist rate, after hearing the.wholc
ca.se for the ])r().secution and for the defence, shall, if he tinds the
charge proved, convict the j)er.s()n charged and commit him to the
common gaol or other place of confinenuMit, there to be imprison-
ed, with or without hard labour, for any term not exceeding six
MONTHS.
7MH. 1*11 niMli III cut for certain other oftViiecN
— In any ease summarily tried under paragraph (c). (d). (e), (/),
(y). (h) or (e) of section 7S3. if the Magistrate tinds the charge
])roved. he may convict the perscm charged and commit him to the
common gaol or other place of continenu'nt. there to be imju-isoned,
with or without hard lab(uu\ foi- any term not exceeding six
MONTHS, or nui}- condemn him to pay a tine not exceeding, with the
costs in the case, one hundred dollars, or to both tine and im])rison-
ment not exceeding the said sum and term ; and such tine nuiy be
levied l)j- warrant of distress under the hand and seal of the Ma-
gistrate, or the person ccmvicted may be condemned, in addition to
any other imprisonment on tlu' sanu' conviction, to be committed
to the common gaol or other place of continement for a further
term not exceeding six months, unless such tine is sooner paid.
The Magistrate nniy, in addition to any sentence imposed upon
the pei-son convicted, require him forthwith to enter into his own
recognizance, or to give security tt) keep the peace and be of good
behaviour for any term not exceeding two years. (Code, Art. 958.)
Instead of at once sentencing a person convicted op a first of-
fence the 31 agist rate may direct him to be released on entering
into a recognizance to keep the peace and be of good behaviour
292 I'RACTXCAL GUIDE TO MAGISTKATES.
and to appear and rocoivo Judgment when called upon, if it appears
to the Magistrate that, i-egard beinjf had to tlie youth, character
and antecedents of the offender, to the trivial nature of the otfenco
and to any extenuating circumstances under which the otfenco
was committed, it is advisable to so release him on probation of
good conduct. (Code, Art. St71.)
7M9. Proi'cefliiiKN for Ofl'e»<*i'M in KPNpc<*( of*
Property Worth Over Ten Dollars.— When any
person is charged before a magistrate with theft or with having
obtained property by false pretences, or with having unlawfully
received stolen property, and the value of the property stolen,
obtained or received exceeds ten dollars, and the evidence in
support of the prosecution is, in the opinion of the magistrate,
sufficient to put tht pei-son on his trial for the offence charged,
such magistrate, if the case appears to him to be one which may
properly be disjiosed of in a summary way, and may be adequately
punished by virtue of the powers conferred by this part, shall re-
duce the charge to writing, and shall read it to the said person,
and, unless such person is one who can be tried summarily without
his consent, shall then put to him the question mentioned in sec-
tion TSC), and shall explain to him that he is not obliged to plead
or answer before such magistrate, and that if he does not plead
or answer before him, he will be committed for trial in the usual
course.
7SIO. PunlNlinient on Plea ol' Unilty in Mueh
C'aNe. — If the person charged as mentioned in the next preceding
section consents to be tried by the magistrate, the magistrate shall
then ask him whethoi be is guilty or not guilty of the charge, and
if such person says that he is guilty, the magistrate shall then
cause a plea of guilty to be entered upon the proceedings, and
sentence him to the same punishment as he woiUd have been liable
to if he had been convicted upon indictment in the ordinary Avay ;
and if he says that he is not guilty, the magistrate shall pi-oceed as
provided in section 78G.
701. 9laKiHtrate Hay Oeeiile not to Proeeed
Nuntinarily. — If, in any proceeding under this part, it ap-
pears to the magistrate that the offence is one which, owing to a
ELECTION OF TRIAL BY JURY. 293
prckvious conviction of the porson charged, or from any other
circumstanceK, ought to be made thi^ Hubject of jiroHecution by
indictment rather than to be disposed of Hunimarily. such magis-
trate may, before the accused ])erson has made his defence, decide
not to adjudicate summarily upon the case ; but a previous con-
viction shall not prevent the magisti-ate from trying the offender
summarily, if he thinks fit so to do.
■7 OS. Klcc^tlon of Trial hy Jury to hv Ntatvd
on Warrant of* Coniniital. — If, when his consent is
necessary, the person changed elects to be tried before a Jury, the
magistrate shall proceed to hold a prelimiiuiry inquiry as |)rovided
in Parts XL IV. and XLV of the Code, ante, and if the person
charged is committed for trial, shall state in the warrant of com-
mittal the fact of such election having been made.
TiKi, Full I>et*en«!e Allowed. — In every case of sum-
mary proceedings under this part, the person accused shall be
allowed to make his full answer and defence, and to have all wit-
nesses examined and cross-examined by counsel or solicitor.
7114. Proeeedlnus to be In Open C'ourt. — Kvery
court held by a magistrate for the purpose, of this part shall be an
open public court.
7)15. Procuring Attendance of WitneNNCN. — The
magistrate before whom any person is charged under the pro-
visions of this part, may, by summons, require the attendance of
any person as a witness upon the hearing of the case, at a time
and place to be named in such summons, anil such magistrate may
bind, by recognizance, all persons whom he considers necessary to
be examined, touching the matter of such charge, to attend at the
time and place appointed by him and then and. there to give evi-
dence upon the hearing of such charge ; and if any person so
summoned, or required or bound as afoi-esaid, neglects or refuses
to attend in pursuance of such summons or recognizance, and if
proof is made of such person having been duly summoned as here-
inafter mentioned, or bound by recognizance as aforesaid, the
magistrate before whom such person should have attended may
issue a warrant to compel his appearance as a witness.
2!)4 PRACTICAL aUIDE TO MAOISTItATES.
7»»«. N«'rvi«*i' ol* NiiiiiiiioiiN.— Kvuiy Hummoiis inHucd
under tlio provisions of tliis juirt nmy Iw sorvi'd by dolivorin^ u
copy of till' suniinons lo the person suninioiu'd, or l)y delivering a
eopy of the sunnnous to some inniute of sueh person's iisual jduce
of altode apparently over sixteen years of aye; and evi-ry |)erHon so
recpiired l»y any writing under the hand of any magistrnto lo
attend and give evidence as aforesaid, shall he deemed to have
been duly summoned.
As to service of summons, see comments at [>]>. 108 and 19H, anf'-.
7f»T. l>l»illiN«ul of <liar|t;i'. — Whenever the magistrate
finds the ottence not prove<l, he shall dismiss the charge, and make
out and deliver to the person charged a certificate under his hand
stating the fact of such dismissal.
708. Kfl«>«*t of Conviction. — Kvery conviction under
this ])art shall have the same effect as a conviction upon indict-
ment for tlie same ofi'ence.
799. Ortiii<'at«' of'lliNniiNNul 11 Bar to Fnrtlicr
Pr4»4*C'('<lin}>;N. — Kvery person, who obtains a certificate of dis-
missal or is convicted under tlie i)rovisions of this part, shall be
released from all further or other criminal proceedings Fou THE
SAME CAUSE.
It has been held in England, under statutory provisions similar
to the above Article 709, that, where a case summarily dealt with
has been dismissed, by the magistrate or justice, on its merits, the
defendant has the right ex debito justitiui to rin^ah'o the certificate
of dismissal. (1)
The certificate of dismissal should only be granted when there
has been a full bearing on the merits. If granted on a withdrawal
of the charge before hearing, it will be no bar to subsequent pro-
ceedings for the same offence. (2)
A summary conviction for assault has been held to be a bar to a
suosequent indictment for a felonious stabbing based on the same
(1) Hancock v.Somes 1 E. &E. 795; 28 L. J. M. C. 196. Costar v. Hether-
iiigton, 1 E. & E. 802 ; 28 L. J. M. C. 198-
(2) Reed v. Nutt, 24 Q. B. D. (J69.
PRUCEEDI.NdS NOT TO BE VOID FOR DEKKCT IN KOKM. 295
tranHiictioii : (I) iind il huH boon hold u bur to iin indictiiu'iit for
unlawful wouiuliiiu; uiid an assault occaHJoning actual iMuliiy liarm,
arining out of the numu drt'umstauces. (2)
A summary conviction for assault has, however, been held not
to be u bar to a subsequent indietmeut for manslaughter, in a case
where the man, who was assaulted, afterwards died in consequence
of the assault. (H)
It appears that the production of the cortiticate of dismissal is
of it.self sutticient evidence of such dismissal, without proof of the
signature of the magistrate or justice ; (4) and if the defendant
api>eared before the magistrate or justice, tlie recital, in the certi-
rtcate, of the fact of a complaint having been made and of a sum-
mons having been issued, is sufficient evidence of these facts with-
out producing the complaint or summons. (5)
NOO. ProccedliiKN not to be Void for DcfVvt In
Form. — No conviction, selftence or proceeding under the pro-
visions of this part shall be quashed for want of form ; and no
warrant of commitment upon a conviction shall be held void by
reason of any defect therein, if it is therein alleged that the offender
ha.s been convicted, and there is a good and valid conviction to
sustain the same.
jHOl. KcMult ot* Hearing: to be Flletl in Conrt
of NeHMionw. — The magistrate adjudicating under the provisions
of this part shall transmit the conviction, or a duplicate of a certi-
ficate of dismissal, with the written charge, the dejiiositions of
witnesses for the prosecution and for the defence, and the state-
ment of the accused, to the next Court of General or (Quarter
Sessions of the peace or to the court discharging the functions of
a Court of General or Quarter Sessions of the peace, for the district,
(1) R. V. Stanton, 5 Cox, 324 ; R. v. Walker, 2 M. & Rob. 446.
(2) R. V. Elrinittoii, 1 B. & S. fl88 ; 31 L. J. M. C. 14 ; R. v. Miles, 24 Q. B.
D. 42:i ; 59 L. J. M. C. 56.
(3) R. V. Morris, L. R., 1 C. C. R. 90; 36 L. J. M. C. 84.
(4) See The Canada Evidence Act 1893, sec. 10. See also Art. 802 of the Code,
mjri'.
. (5) R V. Wettley 11 ( ox, 139 ; Arch. Cr. PL & Ev. 21 Ed. 155.
296 PRACTICAL (illDK TO MAGISTRATES.
county or iiliuc tlicrc to Ix' kept liy tlic pi'oju'r officer iimonif the
records of the court.
MOIS. FiVi4l«'iic«' of Coiivi<*tion or DiNiiiiKNal. — A
copy of. such conviction, or of such cortiticate of disiui.ssiil, certitied
by tlie i>ro])er otficor of the court, or proved to be a true copy,
shall be sutticient evidence to prove a conviction or dismissal for tlie
otflince mentioned therein, in any h\i>;al pi'oceedings.
Him. IC<>Ntitiitioii ol" l*ro|»ert;»'. — Tlie magistrate by
whom any [lerson has Iteen convicted under the ])rovisions of this
part may order restitution of the j)roperty stolen, or taken or
oi)tained liy false pretences, in any case in which the court, before
whom the [)erson convicted would have been tried, but for the pro-
visions of tills |)art. might by law order restitution.
As to the ])ower of the .Magistrate to order hestitl'tion. and as
to the further power to order co.mpensation to be made to a bona
proE T'UKcnASER of STOLEN PRopKR'i^^'. see pp. 27(I-2T3. ante.
^04. Ifi<>iiiuii«l I'oi* fiirllii^r I ii%'<'Nti Ration. —
Whenever any pcr.son is (diarged before any Justice or justices of
the peace, with any otfence mentioned in section 783 of the Code,
and in the opinion of suidi Justice or justices the case is proper to
l)e disposed of summarily by a magistrate, as herein provided, the
Justice or Justices bcfori' whom such person is so cdiargi'd may, if
he or they sec tit. remand smdi ]ierson for further examination
before the nearest magistrate in like manner in all I'espects as a
Justice or Justices are authorized to remand a person accused for
trial at any court, under Part X LW section 58(1 : (1) but no justice
or Justices of the peace, in any province, shall so remand :iny i)er-
son for further examination or trial before any such magistrate in
any other jtrovince. Any person so remanded for further examin-
ation betVire a magistrate in any city, may be examined and <lealt
with Ity any otlu'r magistrate in tin- same city.
mm. ^oii A|»|»«'ai*nii<*«> oi* AcciimimI iiii<l«'r K«'-
4*0)(iiiKail<*«'. — if any person suU'ercd to go at large upon enter-
ing into such recognizance as the justice oi- Justices are authorized,
(1) See p. 17'J, iiiilr
APPLICATION OF PINES. 297
undei' Pavt XLV.. section 58*7; (1) 1<> take on the remand of a per-
son ac'cusod. t'onditio\K'd for his a]>pcaranoc before a magistrate,
does not afterwards ap]>ear. pursuant to such recognizance, the
magistrate l)ofore whom he sliould have appeared shall certify,
under his hand, on the ijacU of the recognizance, to tlie clerk of the
peace of the district, county or place, or other proper officer, as
the case may lie. the fact of such non-appearance, and sudi recog-
nizance shall lie proceeded u])on in like manner as other recogniz-
ances ; and such certificate sliall lie prima facie evidence of such
non-appcaniMce without ])roof of the signatun' of the magistrate.
SO<». Application of FiiiC'W. — Hvery tine and penalty
imposed under the authority of this part shall be |>aid as follows,
thai is to say : —
(a) In the province of Ontario, to the magistrate who imposed
the same, or the clerk of the court or clerk of the peace, as the case
may be. to be paid over by him to the county treasurer for county
})urposes.
(6.) In any new district in the province of Quebec, to the sheritf
of such district, as treasurer of the building and jury fund for
such district, to fonn part o\' such fund. — and, if in any other
district in the said province, to the [)rothonotary of such district,
to be ai)|)lied by him. under the direction of the Lieutenant-
(iovernor-in-Council. towards the keeping in repair of the court
house in such district, or to lie added by him to the moneys and
fees collected by him for the erection of a ccuirt house and gaol in
such district, so long as such fees are collected to defray the cost of
such erection ;
(c) In the provinces of Xova Scotia and Xew l}run,swick, to the
county treasurer for count j' pui-poses : and
(c/.) In the ]»rovinces of Prince Kdward fsland. Manitoba and
iJritish (^)lumbia. to the treasurer of the province.
807. ForiilN to he l>H'd.— Kvcry convictiim or certiti-
catc may lie in the form Qt^, JilJ, or SS, in schedule one of the
(1) Seep. 2(il,"?(<e.
2!>8 PRACTICAL OnilE TO MAOISTUATES.
(Jode, applicable to tho caso. or to tlu' liko offoct, (I) niul wlii'iu'vor
the iiatuvo of the L-a^o requires it. siicli forms may l)e altered liy
omitting the words statiuuj the eonsent of the person to lie tried
hefore the mai^istrate. ajul liy .. Iding the requisite words, statiiijj^
the fine imposed, if ainy. and the imprisonment, if any. to wlneh
the jier.son eonvieted is to lie subjected if the fine is not snoner
|iaid.
HOS. Ortain ProviNionN not Applicable to
this Part. — The provisions of the Code relating to jtreliminary
inquiries before Justices — e.veept as mi^ntioneil in sections S04 antl
H05 — and of Part LVIII., (2) shall not a|)ply to any prtieeedings
under this ]tart. Xothing in this part shall affect the provisions
of Part LVI. ; (3) and this ])art shall not extenil to persons pun-
isliablcA under that part .so far as regard.s offences for which such
persons may be punished tlu'i'i'under.
FOK.MS UNDKIt PAKT LV. OF TIIH CODE.
(HI— {Section SOT.)
C<»NVUT10N.
Canada,
Province of . ,
County of ■ j
I
lie it remembered that on the day of in
fill' year .at . A. H.. lieing I'liargi-d before
me. the undersignt'd. . of the said {citt/}. and con-
senting to my trying the charge sumnniriiy. is convicted liefore
me. for that he. the said \. \i. ((tc, statttuj the offvnce. and the time
and place when and where comviitted). and I adjudge the said A. U.,
for his .said otVence. to lie imprisoneil in the (and
there ki^pt to hard labour) for the term of '
{ I ) Fur Forms HR and S.S, see p. '-'!«•, }>ii>'i.
(2) Uelatiiin to Siiminrtfy Coiivii'liuiic, see poH-
(3) Relating to the Trial of Juvenile OtTendenj for Indictable Offen<!e8, see
I'OR.Ms. 299
(liven uiidiT my liaud mid seal, the day aii I year tirst uliove
ineiitii)iied. at al'oi'esaid.
J. S.. [SKAI,.]
J. F. {Name of counti/.)
R\l.~l^Section S(iT.)
CONVlCTIiiN ll'dN A I'l.KA OF GlILTV.
Canada. ^
Pr<j\ini'e ot' , >
County (if . J
I5e il renieniheied iliat (Ui tlie day of
in tlie year . at , A. B.. lieinii; eliar^'etl
hetore nii' llie undersio-iu'd. . of tlie said {citi/) aud
eonsentinij; to my iryiuii' the ( liarge smnmarily. for tliat he the
said A. H. (ifci?., statimj the offence, and the time and place when and
irhere committed), and pleading- j^uilty lo sncli ( har^-e. lie is ihere-
u|ioii eonvicled iK'tni-f nie of the said ofltMU'e ; and I a<ljudge
him the said .\. 1!.. for hi> said otfeiieo, to he imiirisoiied in the
(^and there ke[it to hard labour) for the term
or
(li\-en niider my iiaud and seal, the day and year tirst ahove
meiil iiinc(l. at aforesaid.
.1. S.. [SKAL.]
./. P. (A^aine of county.)
■ ■:■■ >/
S<,.— (Section S(l7.) ' .'.'',-.
CKItTiricATIO Ol- DISMISSAL.
( 'anada . ]
Province of . >
County of .J
1. the undersii;-iied. . of the city (or as the
case may be) of . certify that on the day
of , in the \ear . ut
20
300 ' PRACTir.Ai. r;rii)K to maoistrates,
ufovejsaid. A. B.. ln'iiiii- charii'i'd licfori' iiu' (ami coiist'iitirig to my
tiyiiig the cliaryi' suiiiiiiavily). fur tliat lu'. llio said A. M. ((£•<?.,
stalimj the ojfcnce chanjeil and the time and placa ichen and where
alleged to have been committed). 1 did. al'tcr liaviiiy sinnmarily tried
the said cdiai'i!;c. disiniss ilic sunic'.
Given under my hand and si'al. this day ol' ,
in tlic year . at al'oivsaid.
J. 8., [seal.]
./ P. {Name of county.)
ciiAi'TKi; xrr.
{^Part L VI. of the Code.)
Trial of .Tl VENII.K OkKENKERS for rNJUCTAllLE Ob'FENCES.
MOW. I>l'lillitioilN. — In tlns^iart. uidoss the eontext other-
wise requires, —
(a) Tlie ex])ression "two or moi-e justices," or "the justiees"
inchules. —
(i.) in tlie provinces of Ontario and ^NFanitoba any judge of the
county court heing a Justice of the peace, judice magistrate or
stipendiary magistrate, or any two justices of the peace, acting
within tlieirrespectivi'jtirisdictions ; ;
(ii.) in the province of Quebec any two or more justices of the
peace, tlie slicritf of any <listrict. except ^[ontreal and Quebec, the
deputy sheritf oi' (iasp*?. and any recorder, judge of the sessions of
the peace, police magistrate, district magistrate or sti]»endiary
magistrate acting within the limits of their respective juris-
dicticms ;
(iii.) in the provinces of Xova Scotia. Xew Brunswick, Prince
Edward Island and British Columbia, and in the district of Kee-
watin, any functiomiry or tribunal invested by the proper legis-
lative authority with power to do acts usually requii-od to be done
by two or mor<' justices of the peace ;
I'L'NlSiniENT OK VOITIUIL OFFENDERS. lidl
(6.) Till" expression • the coinmon i>-u<)I or otlier ])liiee ot'c<tiitiiie-
ment'" ineliules uiiy n'tbriiiiitory in-ison proviiled for the reception
of juvenile offenders in the province in wliicli tlie conviction re-
i'erri'd to takes place, and to wlucdi, liy tiie law of that proviiuc.
theoJfeiuU'r may lie sent. -
•HIO* I'liiiiNliiiK'iit for Ntealiii)^. — Kvery person
<dKir!i;e(l with liavinii: committed, or haviny attempted to commit
any oifence whicli is tiikft. or punisliaiiie as theft, and whose a!j,e.
at the period of llie coniiiiission oi' attempted commission of sncii
otfenci'. (h)es not. in the ojiinion of the Justice l)efore whom lie is
lirouf>'lit or ajipi'ars. exceed the agt' of si.XTEEN vears. sIkiH. upon
conviction thereof in open court upon his own confession or upon
)iroof. l)efore any two oi- more justices, he committed to tlie com-
mon gaol or other place of continemeut within the jurisdiction of
such justices. thiM'e to lie im])risoned. with or without hard lahour.
for any term not exceedino three .months, or. in the discretion of
sucii justices, shall forfeit and ])ay su(di sum. not e.vceedino
twenty dollars, as su(di justices ailjudge.
Mil. l*ro«*iiriiiK; Appvairaiit'e of AociimimI. — When-
ever any person whosi^ age is alleged not to exceed sixteen veabs.
is charged with anv otfence mentioned in the next itrecediuir
section, on the oath ot' a cri'dilile witness, hefori' any justice of the
])eace. such justice nuiy issue his summons or warrant, to sumnu)n
or to a|»prehend the person so (duirged. to appear hid'ore any two
justices of tlu' peace at a time and place to lie nanu'il in sucli sum-
mons or warrant.
Section 2 of oT and 58 \'^ic.. c. 5S, provides as follows : —
Young |(ersons apparently umh'r tlu' age of sixteen who are,—
(a) arrested upon any warrant, or
(b) committed to custody at any stage of a preliminary en(£uiry
into a charge for an indictahle oifence. nr
(c) committed to custotly at any stage of a trial, eitlu'r for an
indictahle offence or for an otVence punishahle on sumnuiry con-
viction, or
(d) committod to custody after sucii trial hut hefore InipriHon-
niont under sentence. —
3(12 I'UAt'TICAI, (il IDK Til .MAGrsTUATKS.
SHALL be kept in custody se]tiir;iU' tVi>iu alAvr iicisoiis cliarii-cd
witli criininal (itVi'iioes aiul sojiaratc Irom all persons undergoing
sentences of imprisonment, and suai.i, not lie lonlincd in tlu- JncU-
iijis or ]ii)lici' stations witli older ]k'1soii-. cliarii'ed witli criminal
offenees. nor witli orilinary criminals.
•
• Article o')!) of tlie Code, as anu-nded liv s,ic. 1 of the aliove Act.
makes it i.mi'EHAtive tliat the trials of persons, apiiarently under
sixteen siiAi.i. take place ■\vithoiil imldiciiy. and separately ami
apart from the trials of oilier accused persoii>. (1)
Hi:2. ItolliaiKl 4»r A<*<*IIW<mI. — .\ny justice of llii> peace,
if lie thinks tit. may renuind for further e.xaiiiiiiatioti or for trial,
or suffer to go at large, ujiou his tinding <utlicient sureties, any
sueli jterson cdiarged hcd'ort' him with any sue h olVence as afore-
said.
2. I'lvery such surety shall he liound \<y recogni/.aiice conditioned
for the api)earunci' of siudi person hclore the same or scmie other
justice or justices of the peace for furt her examination, or for trial
hel'ore two or mori' justices (if the peace a>- aforesaid, or for trial
hy indictnu'iit at the ])roper ( 'ourl of < 'riniiiial .lurisdiction. as t hi'
case may i»e.
."!. I'A'ery such reeogui/ance may he enlarged, from time to time.
liy any su(di justice or justices to siuh liirthcr time as he or they
ap|)oiiit ; and every such recognizance not so enlarged --liali he
iliscliargeil without fee or reward, when the person lias appeared
aecoi'diiig to the conditi<ui thereof.
Htii. A<'4'IIM«><1 in VAvvi lloti ll<> Nliall Im' Triod.
— The justices hel'ore whom any person i> ( hargi'd and proceeded
against under the provisions of this part.licfore suidi person is
asked whether he has any cause to show why h<' slnmld not he
CI nvictcd. shall say lo the |ierson ^o < harged. tln'sc words, or
words to the like etfi'ct :
• We shall have to hear what you wisli to say in answer to (he
ihai'ge against you; hut if vmi wish to he tried lp_>- a Jury, you
must ohject now to our deciding u|ioii it at once."
(1) As to disposal of yciun^' children charged with ofleiicus in Ontario, see
sees, o, 4, 5, of 57 tS: OS Vic, o. oS, in the .\ppendix,;io.-(.
Acri SKIi I'D El. KIT .MiMiK <>V TIUAI.. '.WA
2. And il'sucii pfi'sdii. or ;i piii'ciit or <i;uar(liitM of sucli in-rson,
then oltjocts. no fui'tlirr |iroci'c(lin<fs sluill Ik- lisid nndi'r tlu' [trovis-
ionsot'llds ])iirl ; l>iit I lie jusiiccs niaydfid wit li tlu' case according
to tlu' provisions set out in I'arts XJilV, and Xl-N'.. (1) as if
tlie act-nsi'd were lieforc llniii tiiereunder.
Ml 1. %%'li«'ii .i<'4*iiK«'«l hIiiiII not lie Tri«>4l Niiiii-
lliarily. — if the Justices are of (»|)inion. lie fore tiie jierson charged
lias nuide Ids defence, tiiat tlie t iiarge is. from any circumstances,
a tit sniiject foi' |(rosecnlion iiy indi<-tment. or if tiie |)erson cdiarged.
ujiou licing caili'd uiion to answer tiie ciKirge. objects to tlie case
lieing suininariiy dis|io-.cd of under tiie provisions of this part, the
Justices sliali not di'al wiiii it summarily, hut may proceed to hohl
a preliminary in(|iiiry as provided in I'arts XLIV. and XFiV^.
'2. In case the acrusrd lias elected to he tried liy a Jury, the Jtis-
tict's shall stale in tiir warrant of c(Miiniitnien( the fact of such
eifclion haviiiii' heeii made.
Ml«>. Kllllllll<»1IK t4» WillK'KN. — .Vliyjuslii-e of tlic peace
may. hy suninions. re(|iiire the alteiidam'c (d' any |)ersoii a> a wit-
ness upon the hcariiii;' of any case ln'fort' two Justices, under the
authority of this jiari. at a lime and place to lie named in sucli
suinnioiis.
<SIH. ItiiKliiiK' <»v«'r Witn*'N». — Any such Justi<-e may
reiiuire and hind \>y reeogni/.ance every jierson whom he consiilers
necessary to lie examini'il. touching the matter of sucdi change, to
attend, at 1 he time ami plaee appointed hy him. ;ind then and tlu-re
to give eviileiice ujion llie hearing of su(di charge.
H17. M'arraiit au;siiiiNl \%'itiiowN. — if any person, so
summoned or re(|nired or Ipound. as aforesaid, lu'glei'ts or ri'tu.ses
to attend ill pursuance of >u(di summons or recognizanci'. and if
proof is gi\-eii of siudi person having hci'ii duly summoned, as hei'c-
inafter im-ntioned. or hound hy recognizance, as aforesaid, eitiiortd'
t lie Justices hefore wiiom any such person should have attended.
n\ay issue a warrant to compel his appearance as a witness,
(1) Kelaling to the preliminary investigation of indictable offences.
804 PRAOTirAI. (ii:n>E T(l MAGISTRATES.
MIN. N('rvi4*e ol* Niiiiiiiioiim. — Kvcrv summons issued
iimler the autliority of this part may itosiTvod hy delivoviiig a copy
thovoof to llu' person, or to some inmate, apparently over stXTEKX
YEARS OF A(iK. at sueh per.>ion's usual place oC ahode ; and every
person .so renuired hy any writing under the hand or hand.s of any
Justice or Justices to attend and give evidence as aforesaid, shall lie
deemed to have heen duly sum?noned.
HIU. DiM4*llur^«' 4>r .i<*4>IIN(Ml. — if the Justices, upon the
licarini;- of any such case, deem tlu' otfence not provi'd. or that it is
not expi'dient to iutiict any i)unishment. * .ley shall tlismissthe per-
son charg'ed. — in the latter case on his tin. ling sureties for ids future
good hehaviour. and. in the former ease, without sureties. — and
then make out and deliver to the pejson charged a cei-titicatc in
the FORM TT in scheuile one to this Act. (1) or to the like etlect.
under tlie hands of sueh Justices, stating the fact of suiii dismissal.
H20. Form ol* €'<»iivi<'tioii. — 'i'hc Justices, hcfore whom
any ]»erson is suniMuirily convicted of any otVeuce hereinheforc
mentioned, nuiy I'ause the conviction to he drawn up iu the fohm
W, in scnE])ii,E one of the Code. (2) (u- in any other form to the
same ett'ect, and the conviction sliall he good and ettectual to all
intents and jiuriioses.
2. Xo such convictii)u shall he ([uashed for want of form, oi- he
. removed by cerr/orrtn or otherwise into any court of record : and
no warrant of commitment shall he held void hy reason of any
defect therein, if it is thei'cin alleged that the person has heen con-
victed, and there is a good and valid conviction to sustain thesame.
S2I. Fiii'tlit'r l*i*04*«>«'«liiiK; BariH'd. — Kvery person
who obtains such certiticale of dismissal, oris so convicted, shall he
released from all further or othei- crinunal ]inicci'dings for the
same cause.
See comments and and authorities under .\i'ticle T'.tO. at jip. 2!)4-
21^5, ante, us to the certificate of nisMrssAi,. and its etlect as a
bar to further proceedings.
(1) For Form TT, see p. 308, poH.
(2) For Form UU, see p. 309, post.
UBSTITITION. 305
M2S« C'oiivi4*i ion » 11(1 K<>«*4»KiiiKaii<*eN tolic Filed.
— Tho justices iK't'ore whom any jhm'soii is convicted iiiulor the pro-
visions of this |)ai't shall fortiiwitii transmit the conviction and
Tocognizanci's to tiio clerk of the jieatH' or other proper otiicer, for
tlie district, city, county or union of counties wherein tlie ottonce
was committed, tliore to l)e l<eitt liy the proper otiicer among the
records of tlie Court of (leneral or (Quarter Sessionsof tlie peace, or
of any otlier court dischar<^-ini;- the functions of a Court of (leneral
or (Quarter Sessions of the jieace.
MSSi. 4|uart«»rlj|- K4>tliriiK. — i-lveiy derU of the peace,
or other proper otticer. shall ti'ansniit to the Minister of Agri-
culture a quarterly return of the names, otlences and punishments
mentioned in the convictions, with >uch other pai'ticulars as are,
from time to time, requireil,
HS4. ICi'Htitliiioii «!' ■■iM»|it*rt,v.— No conviction under
the authority id' this jtai't shall he attended with any forfeiture,,
except such jienalty as is imposed hy the sentt'uce : but whenever
any person is a<ljudged guilty under the provisions of this jiart,
the presiding justice may ordci- I'cstilution ot' [iroperty in respect
of which tlie ott'ence was committed, to the owner thereof or his
re])resentatives.
2. If siud) property is not then fort hconnng. the justices, whether
tliey awartl iiunisliment or not. may inquiri^ into and ascertain tlie
value thereof in money : and. if they thinU projier, order payment
of such sum of money to the tnu- owner. Iiy the person convicted,
either at one time or hy instalments, at smdi pei'iods as the justices-
tleem I'l-asonahli'.
ii. The jierson ordered ti> pay sm h sum may he sued for the
same as a debt in any court in whith debts of the like amount are,
hy law. recoverabl(>. with costs of suit, according to the jn-actice of
eucli court.
H*Hi, l*i*4»<'<'«Mliiip; on ^'on-pay inent of Penalty
lni|»ONlMl. — Whenever the justices adjinlge any ott'eiider to for-
feit and pay a pecuniary penalty under the authority of this part,
and such penalty is not forthwith paid, they may. if they deem it
expedient, apjioint some future diiy for the payment thereof, and
30(l PIlACTIfAI- (JIIDK TO M.\(; I STIt ATKS.
ordiT till' (itU'udi'v to 111' (Irtaini'd in >iil't' fiistdily uiilil llii' day so
iipiioiiiti'd, uidi'ss suidi otlriidiT i;'ivi's st'i'iii'ily to tin- satistiu'tioii of
till' Justici's. lor Ills a|)|)i'araiiri' on siirli day ;• and the Jnstict's niav
taki) Hiudi si'curily by w'ny of I'd'oonizanci' or otliiTwisi' in tlii'ir
<Uiseretioii.
2. ri' at any tinu' so ai>]iointrd sucli |icnalty lias not Ih'imi paid,
(111' sanio or any otlirr justir>s of tlif prair may. Iiy wai'rant.
iindi'T tlu'lr hands and soals, coniniit tlic oilrndiT to tlic coimiion
gaol or otlior phu'i' of I'oiifiiirnii'iit within their jiirisdictioii. tlioiv
to ri'inaiii for any linii' not I'xri't'dinn' three inoiitlis. ri'cl<oiied from
the day of sueli adjiidieation.
MtS<>. C'o^In. — The justices liefore whom any person is proso-
cuted or tried for aii\' otleiu'e eon-iii/;il>le under this ]»arl may. in
their discretion, at the ri'(|uest of the prosecutor oi" of any other
person who appears on recoyni/.ancc or summons to prosecute or
give evidence against siudi jierson, onh'r payment to the |prosceiitor
and witnesses for the jirosecution. id' such s\ims as to them seem
reasonahle and sulticieut. to reimlmrse such proseeiitor and wit-
nesses for the expenses they lia\e ■severally incurred in attending
hefore them, and in otherwise carrying on sucii |irosecutiou, and
als(.) to compensate them for their troiilije and loss ot' time therein.
— and may order jiayment to the constaliie> and other peace ottie-
ers for the ap]tn'liension and dctuution of any )iersou so charged.
2. The Justices may. although no conviction takes place, order
all or ;uiy of the jtayments aforesaid to he made, when they ai'e of
opinion that the persons, or any of tlieiii. have acted in good faith.
H'i7. Application of Fill«>M. — l-'.vcry tine imposed undei-
the authority of this part shall lie ptiid and applied as follows,
that is to say : —
(a.) in the jirovince of Ontario, to the justices who imjiose the
same or the derU of the county court, or the clerk <d' the ]ieaee.
or other proper oiiicer, as the ease may lie. to he hy him or them
paid over to the county treasurer for county purposes ;
(6.) In any new district in the province of (^uehec. to the sheritt'
of such district as treasurer of the liuilding and jury fund for siu'h
district to form part of such fund, and in any other district in tlio
COSTS. 307
|iroviiicc" oC (^iiflii-c ti) tlic jtrollioiiotiiry oi' such district, to lie
applicil by liiiu, iiiidci' tlu- direction of tlio Ijioutcimnt-dovciMiov-
in-CouiK'il. towards tiic koc[)in^f in r('i»iiir of the court house in
su(di district or to he iid(h'd hy idin to tlu' money or fees col-
lected hy hiiM for the erection of a court house or gaol in such
district, so loii^ as siuli fees are collected ti> defray the coHt of
su(di erection ;
(c.) Jn the pi'ovinces of Xova Scotia and Xew Hrunswick. to the
county treasurer, for county- jturposes ; and
(d.) In the [irovinees of l^rince Kilward Island. .Manitoha and
British Coluinhia to the treasurer of the province.
H2H. 4'oKtM lo he CVrtified b.y JiiNticvN. — The
amount of expenses of attending before the justices and the coin-
pensatiou for t rouble and loss of time therein, and allowances to the
constable and other peace otticers for the ap|irehension and deten-
tion of the ort'ender. and the allowances to be jiaid to the jirose-
cutor. witnesses and constables j'or attending at the trial or
examination of the otfender. shall Ite ascertained by and certitied
under the hands ot' such Justices; but the amount of the costs,
charges and e.\|tenses attending any such pi'osecution. to be
allowed and paid as aioresaid, shall not in any one case t^.xcet'd the
sum of eight dollars.
2. Every su(di oi'der of ])aynu'nt to any ])rosecutor or otlu'r
])er.sou. after the amount thereof has been certitied by the proper
juistices of the jieace as aforesaid, shall be forthwith made out and
deliveivd by the said justices or one of them, or by the clerk of
the })eace or other proper otticer, as the case may be. to such
prosecutor or other person, u])on such clerk or otticer being paid
his lawful fee for the same, and shall be made u])()n the otticer to
whom tines imposed under the authority of this part are required
to be paid ovi'r in the district, city, county or union of counties in
which the otfence was i'f)mmitted. or was supjjosed to have been
committed, who, u])on sight of every such order, shall forthwith
pay to the person named therein, or to any other person duly
authorized to receive the sanu' on his behalf, out of any moiu^ys
received by him under this part, the money in such ordei- men-
tioned, and he shall be allowed the same in his accounts of such
moneys.
i{()S PHArrrrAi, (tlinK t<» mAoihthatIcs.
M2!l. .i|>|»li4'Hlioii of lliiM l*art.— Tlu' jM-nvisioiiH <>t'
this jiiii't shall not apjily to any otli'iuH-. comiMilti'd in the provinces
of I'l'inct' Kdward Ishiml or Hritisli ("olunihia. or the district ot"
Kt'i'watin, |iiinisiiai)li' hy iniprisonnu-nt lor two years and up-
wards ; and. in smh provinct's and district.it slndl not he neces-
sary to transmit any recoi^in/ancc to tlic clerk of the peace or
other pro|ier otlicer.
HilO. .\o liii]>riM»iiiii«'iit ill ltororiiiHtor.v in On
turio. iiiid«'i* tliiM Plirf. — Tlie provisions of this part sliall
not anthori/e two or more justices of the peaci- to sentence oHcn-
dcrs to imprisonment in a reformatory in tht' |)i'ovince of Ontai'io.
Hlil. Otiioi* l*ro<*('«'diii)>;M A^tiiiiMt Jiivoiiilo Oi-
IVll4i4'rw. — Xothin^f in tiiis part shall prevent tiu' summai'v con-
viction of any porsou. who niiiy he tried thi'i'eundcr hefoi'c one or
nioro justices of tlie jd'acc, foi- any otl'ence for wliich he is liable to
ho so convicted undi'r any other jiart of the (.'ode or undei' any
otlier act.
FORMS rXDIOli I'AHT LVI., OK TIIK CoDlv
TT.— (Section H\\).) - , ; '
CEHTII''l<'ATE OK KIS.MISSAl,.
Taiiada, ") "We , JMsti<-es of
Province' of , V the peace for the of
County of , J , { or if a recorder ; &c.,
I, a , of the
of , as the case may be), do herehy cerlity tiiat on
the day <if , in the year
at , in tlie said of , A. B.,
was hrought before us, the said justices (or me. the said )
charged with the folloAviug otience, that is to say (here state briefly
the particulars of the charge), and that we, the said justices, for
I, the said J thereupon dismissed the sai(i ciiarge.
(iivi'ii uiidif iMir liands iiiid seals, (or my liaiul ami seal) this
(lay of , in I lie year . at at'tuvsaid,
.1. I', [sea I,.]
.1. I{. [seal.]
or S. .f. [sBAt,.]
UU.— (Sed<onS20.)
CiiNVICTION.
:!
Canada.
Province of
Connty of
Beit .vememliercd tliat on tlie day of ,iu
tlie yeai- , at , in tlie county of
. A. H. is convicted iK'foiv lis. ,F. 1*. anil .1. W.,
justices of tlie j)cace for the said county (or me, S. .1.. recorder, of
the , of . or as the case
maij be) for tlial ho, the said \. M., did (s/iecif;/ the ojlcnre arid
the fime and place when and where the same was committed, as the
case may be. but without setting forth the evidence), and wi' the said
J. P. and J. U. (or I, the said S. .1.), adjudge the said A. H.. for iiis
said oH'ence, to ii(> imprisoned in the (or to lie imiirisoned
in tlu' . and there l<e[it at hard laliour), for tlie s|iace
of , (or we) (or 1) adjudge' the said A. H.. for his said
offence, to foi-foit and pay (here state the penalty actually imposed)^
and, in default of immediate iiayincnt of the said sum, to he im-
prisoned in the (or to he imprisoned in tlu-
and kept at hard lahoiir) for the term of ,niilessthe
said sum is sooner jiaid.
(iiven under our liands and seals (or my hand and seal), the day
and year first ah<ivo mentioned.
J. \\ [ska I..]
J. JJ. [sea I-.]
or S. J [seal.]
:!i(i
I'I{A( TICAt, (MIlPK T(i .\rA(ilSTHATKS '.
("llAITKi; XIII.
(Part L VIJL. of the Code.)
S I M .M A H V Ci I N VICT r< • .\ S,
H'.IU. llll«>l*|»IM>lalioil.— In tliis |.;irl. lllil.'ss IJic coiilrxl
111 liii-\\ i^c n'([iiii'cs :
{a.) the i'\|)rrs>i(Mi ■•.liislicc " iiu'iiiis ii Juslicr of tlir pciicc mikI
inciudi-. l\\(i or nun\' Juslico il' two or iiioi'i' Jvistii'i's act or iiavi'
Jiii-isdictioii. uikI aUo a police ina-'istratc, a sli|u'ii(liary iiiai;-istrati' ->
and any pcison liaviii;;- ilic powoi- oi' aiitliofitv of two or more jus-
tices lit' t lie jicacc :
(/'.) llic cNprcssi.in ••Clerk of tlic Peace" includes tlie proper
oflicei- oi ill,' conn havinu- jni^i^diclion in ajipeal under tli is part, as
in'ovided liy sectinn ^T'.i :
(c I the e.xpi'es^ioii • lerrit orial division" means ilistrict, count)-,
uniiui ot eonntio, township, ciiy. town, parisli or otlier judicial
divisiiin or place ;
('/. ) tlie e\pre>x|,,ii 'di-.iricr' or •• cmiuty " includes any terri-
ttu'ial or Judicial divi-iMii or place in and for wliicli there is such
JiKlge. Jiisiiec. jii>iice\ court, otlicer or priMiu as is mentioned in
tiu' context :
(('.) 1 he expression ■• eoinn. on y^aid " lU' •■ prison '■ means an\- place •'
other than a penileiiliary in which persons char^^ed with olt'euces
are usually kepi and delained in custoilv.
' .HlO. A|)|>li«'jili4»ii.— Siihieet to any special provision otlK'r-
wiseeiiacieil with rc-pect to such olleiice. act or matter, this part
shall a ppl\' lo ;
(d.) K.x'Kin c.v.sK in which any iierson coniniits. or is suspected
<d' having coiiimitteil, any otfeiu'c or act oVKit wiiinii riiK i'.vki.ia-
MKNTOK CA.\AI>.\ HAS I,E(i 1 Sl.ATI V K AlTllolUTV. ami for which sucil
person is liahle. on summary conxictioii. to iiuprisoninent. tine,
penalty or other punishment ;
SI .M.MAHY CONVICTIONS.
:5ll
(b.) KVEHY CASE ill wliicli !i (■omi)l!iiiil is iiuiilr to any justice in
relation to any malter. ovkk which tiik I'AKI.ia.mk.nt ov canaha
HAS I.KIIISI.ATI VK AITHiilUTV. ail<l witll IVSpi'ct to wliirii SUcll jus-
tifc lias authority iiy law to iiiake- any onior tor tlu' jiayniciit of
monov or otlicrwisc.
Mil. Tiiiio uitliin wliieh 1*i*4»4'«'<><liii}rM isliall hv
C'4»iiiiii<'1I«*«mI. — In till' casL' of any otti'iicc |iniiis|ialiK' on suni-
niary conviotion. if no time is specially liniilcil for nial<iiii;- any
(•oin]ilaint, or iayinn' any infornuition. in tlic Act or law rclatiiiii' to
the jiarticniar case, the complaint shall he iiiailc. or the infonnation
shall he laiii within six months from the time when the matter of
com|ilaint or information arose, exccjit in the Xorth-wx'st Terri-
tories. where the time within which such coiii|ilaiiit may lie nneh'.
or such intorniation may he laid, shall in' extemleil in rwEi.VE
.MONTHS from the time \vlieii ihe matter of ihe ciiiii|(laiiit or infoV
mat ion arose.
It will he seen hy thi> .Vrticle that in summary matter^, not
<itherwise specially limited, the |)roseculion mu-'l he commenced l>i/
the makinij ot the complaint or the layini;' of thi' information wiihin
six months, (in all places except the X. \V. Territories where the
time limiti'd is tweUe months) from \\w lime when the maltcr <if
complaint or information arose. liui lln' layim;' nf ihe cnmplnint
or t he malsiiiii' of t he infoi'iiialion should lie lollowed up l>y useful
proeee(|ini!;s in the shape ofa warrant or summons aiel the arrest
of or otherwise hrinuiny tiie defendant hefore the mayiistrate or
justice. Sei' autluu'ilies and comiin'iits. ujion this vnhjcci. at pp. tlS-
'-. (inie.
.S Iti. •lliri.S<li<*f i<»ll.--l''.very comphiinl and infoi'inal ion
shall he heard, tried, determined and adjiidu'ed hy one ju-tice or
t wo or more Justices as direct ei I hy the Act or law . ujioii whit h the
eomplainl or intorniation is iVameil or l>y any other .\el or law in
that hehalf.
'1. 1 f there is no siudi di reel ion in any .\ct <m' law, then the com-
plaint lu' infornuition may he hea n I, trieil^ determined and adjiidtjed
iiy aii\ one justice for the territorial division whefe the matter ot'
ihe complaint (U' information arose: Provided that every 'Uie who
aids, ahets, counsels or procures the e<mimission ot' any I'lfenee
312 PRArTLCAK (11 lUK T<> MAOISTKATES.
Ituiiisliiililo on suiiimai'v coiivictioH, niiiy lie procot'dod against and
c-onvifli'd t'itln'rin the territorial division or jilaeo where the jirin-
eipai olVender may he eonvieted. or in that in whieh tlie otleneo of
aiding, ahetting, counselling or procuring was eoniniilted.
.!. Any one justiee may reeeive the information or eomplaint,
and gi'ant a summons or warrant thereon, and issue his summons
iir warrant lt> eomjiel the attendance of any witnesses for eithiu"
party, and do ail oihei' acts and matters necessary preliminai'V to
tlie hearing, even if hy the statute in that iiehalf it is jirovided
lliat the infovmatiou or eomplainl shall he heard and deternnnetl
li\' two or more Justiei's.
4. After n tii>v has heen hi-ard and detei'tnined one Justice may
issue ail wari'ants ot' distress or commitment thereon. (I) '
."). It shall not lie necessary for the justice who acts hefoue or
Ai-TEK the hearing to he the justice or one (d" the justices hy whom
the ease is- to he oi' was heard and deternuni'd.
(i. It' it is re([uircd hy any Act or law that an information oi-
coinjilaint shall lie heard and dcternuncd hy two or mori' justices,
or that a conviction or order shall lie maile hy two or m<ire justices,
such justices SlIAM, HE I'KESENT ANO ACriNd TOliETUER iHlil.NtJ THE
WHOLE OF THE IIEAHIM; ANH UETEK.M r.NATIO.N of the case.
5, No justice shall hi'ar ami detci'mine any case of assault or
liallcry. in w hiidi any <|Ucstioii arises as to the title to :iny lands,
tt'iienienls. liei'editanients. or any interest therein oi' accruing tlu'rc-
from. or as to any hankruptcy or insolvency, or any exi'culion
un<iei' ihe process <it' any court ot' justice.
As to the ousti'r of the sunnuuvy jurisdiction of justicis when
ju'operty or title is in (juestion or theri' is a bona fide (daim of legal
right to do the aci rouiplaincd ot'. sei' comment:; and authorities
jit p]i. 'i\'l-M\. ante.
A43. l*r4»4'«M><liiiKM bt'lort' JiiMtitH'M. — Tiie pi'ovisions
of Parts XLIV and AJi\', of the ('ode. relating to com|telling the
apjiearance of the accused hefore tlio justice receiving an iiifor-
niation under section ^'tS. and the |irovisions res[iecting tiic attcnd-
(1) See also Art. H85 po^t, enij)owerin>; any other justice than the justice
who 'jonvicts to issue a warrant of distress or oonimitment.
PROCEEDIN'ciS llKKdKE .lUSTICES. 313
mice of wiliu'sscs on a itivlimiiiiirv iiKiuiry and tlu- taking of
evidence lliereim, siiall. so i'ar as tiu' same aiv ap|tiicai)ie, except as
varied Ity sci'tiniis immediately following, ap]ily to any hearing
\nidei' the ]>i'ovisions of this ])ai't : Provided that whcnevei' a war-
rant is issncd in the tii'st instance against a person charged witli an
otfenci- ]innishal)li' nnder the provisions (d' this part, the Jnsticc
issuing it shall fui'nish a copy or cojiies thereof, and cause a copy
to he served on the person arrt^-iied nt t!'.'.' time of SUuh aiivsi.
2. Notliing herein contained shall ohlige any justice to issue any
summons to piMcnrc the attendance of a ])erson cliarged with an
otfence hy infoi'mation laid hefoi'c sucdi Justice wlu'nevei' tlie apjtli-
cation for any or(ler may. Iiy law. lie made ex parte.
Till' ahove pi'ovision as to service of a copy of tlie warrant is
merelj' directoy ; and it has heeii held tliat. whei'c the defenchmt
apjiears and does not claim to he pT'ejndiced nor ask tor further
time, the omissnni to serve upon him a copy of the warrant at tlie
time of his arri'>t does not go to the magistrate's jurisdiction, and
is no ground for (|uasiiing a conviction. (1)
The wording of these two Articles indicates tiiat tliey are to he
read in conjunction with and as if tlie jirovisions of Parts XLl V
and XLV relating to compelling the a})pearance of persons charged
with rxKtcr.MU.E otfences were here repi'ated in n'lation to non-
iNnicT.viiLK. otfencos ; and. tlu'refore. it seems that a Justice may
comiiel the appearance of an accused ]ierson for the purpose of
heing tried siimmaril}- in any of the cases mentioned in Article
r)")4, ante, namely :
(rt.) Ifsuth pei'son is accusi'd of having committed in any place
(c/w^eyer an (dlcnee Iriahle in the province in which siudi Justice
resides, ami is. or is suspected to lie. within the limits over which
such Justice has Jurisdiction, or resides or is suspected to reside
within such limits :
(J).) if such iierson. wherever hi' nuiy he. is accu.sed of having
ctunmitled an otl'ence within such limits ;
(c.) if su(h person is alh'ged to have anywhere unlawfully
received property which was unlawfull}' obtained within such
limits ; ,
(1) Ex parte Lutz, 27 8. C N. S. 491.
314 I'RACTICAI, (il IDE To .\IA(i I STUATKS.
(r/.) Il'siicli pi'i'soii liiis ill his possi'ssioii, williiii siuli iiiuils, any
stolon property. ' ^
Soi' Artie U' 7h),-i. antf. as to ort'i'iu't's (•(iniiniilcil on or in>artlu'
boundary oftwo or more magisterial jurisdietion^-. or eommitteil
11)11)11 any veliieleor vessel in tlie eoiirse of a journey orofan iniaiul
river or lake voyage, llirougli several magisterial jiiri'-ilietion.-.
And. as lo ott'eiiees committed on the high seas or in any piaci'
witiiin the iurisdiction of tlu' Admiralty, see Article "xiO. anie. and
comments and authorities, on the same siiliject. at ]t]\ Tli 77. ante.
.SI4. Ifiai'liiii^; WarraiilN. — 'I'he provisimisnt' section ,")(;')
of t lie Code, relating tot lie endorsement of warrants nIkiII apply to
the ease of any warrant issued under the jirovisions ot this part
against tlu' accused, whether hkkouk or akteh conviction, and
whetiicr for the A im'Kkiie.nsion or i.Mi'KisoN mknt of any muIi
[lerson .
This section, when reailwith .Vrtiele rxl,") (p. ll."). rt/if*;). empowers
the hacking not only of a warrant (d' arrest, hut also of a wai'raiit
id' coininitmeiit issued upon a conviction made in one county or
district, lor the purpose of arresting the convicteil per-on in any
other part of ( 'anaila. ,
.S4fl. liilViriiialioiiM aii<l 4'(»iii|»l)iiiifK It shall not
he necessary that any coiiiiplaint upon whndi a justice may maUe
an OHDER for the payment of niom-y or oilnrwi-e -hall he i\
waiTlNti, unless it is .>o remiired hy some [larticular .\ct or law
ujion whi( h sin h comjilaiiit is founded.
li. Mvery ('o.mi'|,.\int up hi whi(di a justice is authori/.rd hy law to
make an order, and every i.nko|{.m.*tio.\ lor aiiv otVetice or act lum-
ishahle on suinniary conviction, may. unless it is herein or hy .some
|)iirticuliir Act or law otherwise jirovided. he madeorliad wrniori'
AW OATH ol< Ah I'IKMATION as to tie' Iriilh thereof.
.">. I']\'ei'y coniplaini shall he for om', .m.vttku or compi-.m.nt only,
ami not loi* two or more matters of com|ilaiiit, and every informa-
tion shall he for onk oFrKNCK only, and not for two or moi-e otlV'ii-
ces ;!ind every eom|>laiiit or informatitui may lie laid or made hy
the complainant or inloriiiaiit in |ierson, or hy his <ouiis(d or att'ir-
iicy Of other person authorizeil in that hehalf.
TllK INFORMATION oR fOMl'LAINT. ;>45-
Tlu' distiiK'tioii irciHTiilly iiiiKlc between ;in inforniiUion ami a
coinpliiiiit is as follows :
AVIurn I lie iiroccediiii;- is one tiiUen aguiiist a ])arty cliai-yeil witli
the eoiuniission of, or who is susjiected to have eoinmitted a enm-
iiial aet or offeiiee f'oi' wiiich he is liahle. on suiiiinary eoiivietioii,
to iiiiprisomiient. tine, pt'iialty or othei iiunij^hnient. an information
is laid ; and when th<' proeeedin<«- is oin' aijfunst a iterson liiihle ]>y
law io iiave an order niaile ii|ion hiin to pay a snni of money or to
do some aet whieii lie has illcii;ally failed, nejifleeteil or refnsed to
do. a cOMiM.AiNT is made.
Altlionjili the ahuve Ai'tiele S-i") does not expressly n^([\\\ro an
TNFORM.\TiON to he taken in writing', it evidrnlly im|ilies that it
slionld he sii taken, hy s|H'cially inenliiminn- that a co.mI'I-aint need
not be in writinii;. nidess so re(|iiired by some partieular Act <>!• law
ii]ion whi(di the iMim|ilaint is founded.
The iNF(»R.MATioN should contain the infornnint's name, oeenpa-
tion and addre.ss. the date and |daee of laying- it. with t he name
ami style nf t he justice before whom it is laid, and the name, occii-
jtation and address (if known) of the |n'rson (dniru'ed. or, if his
itami', occniiatioii and address be unk'nown. then scunt' othi'i' des-
cription of him.
When the .\ct Of law undi'r which the |iro<'ccdini;'s are tak'en
extemis only to persons of a particulai' class, ollice or situation in
life, tile party (dnirifcd >hould In- shown to come within thedeserip-
tion of such persons. (1 And where any tiling is declared to be
an otVence stth modo only, the facts should be averred with the
necessary modilication. l-'or instance, in jn'occcdinn' ai;'ains| a per-
son for sellinu; intoxicatin ;■ li(|Uor without a licen.so. it would not
be suHicieiit to simply alleifi- that he sold the li([uor, but it would
b(MU'eessarv to aver that he sold it. without having a liceii-e to
sell intoxicaliii;!,' lienor.
The above Artich' S4r) n'miires that every information shall be
for one olVcnce only, and not for two or more olVeni'cs ; but .Vrticde
W^l.pont, provides that no information, etc., sluill be held to cliargo
l\\ () oll'ences or be held to be uncertain, on account ol' its stating
the oU'enee to have been coinmitled in ditlerent modes, or in i-espfct
(1) Sandmuui v. Breach, 7 B. ^ C. lOn ; K. v. Caton, l(i Unt. R. 11.
^ _ ^ :_., . : -21..-:---'-^
3)16 TRAOTrCAL (illl)K Tn >r AOrSTH.VTRS.
of oui' or ollu'i- of several articlfs eitlu'r (•(Hijinu lively or (lisimiet-
ively.
It' distinct ami soparati^ acts are ooiumitteil on dillerenl days, tlio
oti'onees are distinct and sniiject In sei»arale jienaities. (1) Hnt
aniitignily arises upon a repetition of similar acts npon the same
day. With i'e<;'ard to cases of this kind, no i;\'ni!ral ride can helaid
down ; hut the law in I'acdi case must he delerniined hy tlu' nature
of tlio otience and the numner in \vhi(h the particular statute
applieahle to if is worded. l\illinn' se\eral hares on the satne day
has been held to he a sinu'lc otfeiu-c ; and so. likewi.se. is ', .\ercisin<i-
trade on a Sunday a fiingle otfence. althou<;di sevei-al sales have
taken place. (2)
See further comments at pjt. o3r)-33i). post.
If a justici', u|ion an infornuition or a complaint lieini;- laid or
imide hefore him, declines or refuses |o act. a mandamus will In-
granted, and the court will set the Jurisdn'tion of the Justice in
nu)tion hy directing- him to hear ami d(-terminc the nnitter; (.'!)
and altiiough a Htatuti'. which provides that a justice may issue a
summons or warraid, if he thinksjit, gives him a discretion in the
issuing of a summons or w;u-rant, he is hmmd to exei-(-ise this dis-
cretion, and if. on a (-onsideration id' something extram-oiis. lu-
refuses tlu- summons or warrant, the court will ordei- him to issue
it. (t)
H4G. ('«>i*ttiiii <ll»jc>««ti4»iiK ii4»l !<» ^ ilial«> I*im»4*«m>4I-
ill^;Mo — No infoi-nKitii>n. coiujilaint. warrant, conviction or other
procee<ling under this part shall lie deemed ohjci-tiomihle or insulii-
cient on any of the following groumls. that is to say :
(a.) that it does not contain tin- name ot' the person injured, or
intended or attempted to he injuicd ; or
(b.') thiit it does not state who is the owner of any pi-operty
therein mentioned : or
(1) R. V. Mathews, 10 Mod. 27.
(2) Marriott v. Shaw, Cowp. 278; R, v. Lovett, 7 T. R. 152; Creppe v.
Burden, Cowp. (i4(i ; 1 Smith's L. V. 37S ; Wray v. Toke, 12 Q. B., -ini).
(H) R. V. Kent, 14 F^ast. :m ; R. v. Surrey, 2 Siiow. 74 n.
(4) R. V. Adamson L. R. 1 (i. H. D. 201. See comnientH and authorities at
pp. 64-57, ante, as to comi)elling justices to exercise their functions.
OHKEKINi. Kl HTIIKR I'.VKTICII.AHS. Sl^
(r.) tliat il iltn's lint s]iccity tlu' nu'itiis liy whicli I lie olUiicc was
o()iuinilt('<l ; (If
((/.) tluit it il(M'> iKii iiiinu' 111- (U'sci'ilic \\itl\ pi'ccisioiiaiiy [km'soii
or lliiii;;; : "
I'rnviiii'il iliat t lie justice iii;iy, il' s;iiisli('ii tluit it is iu'ci'ss;tr\' I'M'
a i'air ti'iai. iirdci- iIkiI ;i parliciilar. rurllu'i' (U'sfriliiiig siicli incans.
])('rsnii. |)la<c ny lilill^•. lie fiirnislic(l liy ilic jifoscciitDr.
All ap|iliialii>ii ini' |)ai'ticiilars is aildivssrd to tlu' judicial disci'c-
lioii of the jn'csidiii^' judii'c or iiiaii'istratc, wlio will exercise such
discrctioii upon ilie t'act> as ilicy arc uuide to apjicai' Ik'I'oi'c hiui.
accordiii';' lo c>t;ili|i>|icd riilo ami judicial u>a!^c. (^1)
rpoii ail applicalioii lor part iculars, ii should he >liowii that
there is ivasoiialilc lu'cosiiy tor iiior<' spccilie iiit'oriualioii lli.iu is
contained in the chariiH' as laid ; and. thcrelorc. whei'c in a case of
enihc/./leniciit liie did'enihuit had aiiiplc time to no over iiis iioidis.
which were to proNc his cinlic/./.lenicnt . hi-. ai)plication for a hill of
|>arlicnlars wa^- denied. (2)
The limit of the rii;-lil of a ileteiidanl to a hill of particulars has
he II laid down, in an i'jiii'lish -Xisi Prius t-usr. to he that, on the
one hand, the jiarticulars shall i;-ive him the same infonnaiioii
whi<-h a special emint would i;'i\'e. and on the other hand thai the
specilic acts wit h lime ami place need not he stated. (IJ)
In a laler ca^c hcforc the l'!ni;'li>h ('oiirt oft^hieen's liemdi. it
was held thal.<in a >|iecial count tor conspiracy aliening owrt acts,
ihe coui't would not order iiarliciilars to he furnished, in the
ahsi'iiccofan alhdavit hy t he defendant denying UnowK'd,i>'^' of the
acts chare-ed and ot' vullicient informalioii lo eiiahle him to meet
tliein. '■ 'I'he general principle " said Lord ( "oleridyc,' apjilii's only
to this exteur. — to give sucii information a> is sullicicnt to enahlc
the defendant faii'ly to defend himself wlu-n in court ; lull, on the
ot her hand, not to fetter tlie proseciilor in the conduct of his case.
(/i)
(!) /)* i-c Taylor, 1.. H. 4 ('!<. lOH; Doherty v. Alman, L. K. ;'. App. 728.
(:.'> Stato V. Miller, ;^. N. J. L. J. 3>^1.
{:!) K. V. Hamilton, 7 C. iV: P. 4-18.
(4) R. V. >tapylton, S I'o.'c ('. C. (;!>.
;{18 PUACTICAI, (illUE TO MAOISTIiATKS.
S4T. Variant**'. — Xo objection sliall lu- allowed to any in-
t'orinatioii. complaint, suinnions or warvanl tor any alloijod dot'eot
therein, in suhstanco or in form, or for any variance lietween sucli
information, complaint, summons or warrant and tlie evidence
adduced on the part of the informant or I'cnnplainant at the hear-
ing of such information or^com|)laint.
'I. .\ny variance between t lie inlorniation for any otlence or act
punishable on sunnnary couvictiou and the evidence adduced in
sujiport thereof as to the time at which suidi otl'enci^ or act is
alleged to have been committed, shall not be deenuMJ material if it
is proved that such infornuition was. in fad. laid within the time
limited Ity law for laying the same.
3. Any variance between the information and the evidence ad-
duced in support thereof, as to the place in which the olfence or
act is alleged to liave been committed, shall not lie (U-emed material
if the otlence or act is proved to have been committed within the
jurisdiction of the justice l)y whom the information is heard and
deternuned.
4. If any such variance, or any other \ariance between the
information, complaint, summons or warrant, and tiie evidence
adduct'd in support thereof. aj)pears to tlie justice present and act-
ing at the bearing to be such that tlu' detendanl lias bei'ii thereby
deceived oi' misled, the justice may. upon >ucli terms as he thinks
til . adjourn I lie hearing of t he case to some I iii ure day. ' ' v
It will lie sei'U by the lerms of Arliele .sS:.'. post, that evei'V
objection to any information for any alleged defi-ct therein, in
substance or in form, must be taken before liie magistrate at the
cfimmencement of the trial, or it will be waived. And upon any
ai)pea'. from any summary conviction or order, the case is. accord-
ing to Article SS.;}. post, to lie heard and <lettM'mined upon the
merits, notwithstanding any defect in substance or in form in the
conviction or oi'der ajipealed from.
The variance betwei'U the information laid anfl the evidence
adduced, referri'd to in the above article. SIT. as iieing immaterial,
is merely a ditference between the mode of slating and the mode of
proving one and tiie same thing in substance ; and. therefore,
where the evidence adduced establishes something entirely ditt'er-
ent from that whiidi is cdiarged, the objection to the variance may
I'KO( ri(IN(i ATTENDANCE (F WITNESSES. 319
li(- taki'ii iiiid :ill(>\vt'(l. As. if a dofi'iidaiit wove suinnumed i'or an
assault, and the cvidi'iicc. instead of I'.italilisliiiig-any assault, showed
lliat the dofi'iidanl had coiuinitted soiiu' slii'-iil daiuagc to proiirrty.
lor which, it' cliai'ncd lli(.'i'i'with. hi- might liavc lict'u summarily
tried, t he variance \\iiui(l lie a iijood uTound of ohjeclion. and oui^ht
to be sustained.
Where an i\irorrnation ditfers from the c\idence hy stating the
com|ilainant> to hr ''r. l!. and his |iai'tnt'rs. " instead of an incor-
porated eomiiany hy its ci(r|i(irate nanu' it is sue h a variance as is
cure(l iiy the ahovc article. (1)
.SlH. ^»iiiiiiii4»iiK 4»r Warrant to Witiit'NMOK. — .\
summons nniy he issued to procure tlu' attendance, on tlu' hearini;-
ot any charge under the provisions of this ]iart. of a witness wiio
resides out of liic jui'lsdiction of the Justices hefore whom such
charge i> to \iv heard, and smdi summons and a warrant issued to
]>rocure the attendance of a witness, whetlicr in consequence of
refusal hy su<-h \\itnc» lo ajipear in ohedience to a summons or
othcrwi-e. may he respectively servi'd and e.\ccutcd hy the con-
stal)le or uthrr peace otHcer l<i whom the same is doliveriul. or liy
any other pei'son. as well heynnd as witliin t]\e territorial di\ision
of the justice who issued the same.
.S Ml. Ilcariii^' in he in 0]»«'ii <'<»iirt. — The room or
]ilacc in which the justice sits to hear and try any com|ilaint or
information shall he deemed an open and puhlie couiM. to \vhi(di
the puhlie generally may ha \c access so far as tiic same can con-
veniently contain t hem. .
.S.>0. <'4»iiiiM'l r«r I'articM. — Tlie person against wliom
the complaint is made or infoi'mation laid shall he a(lmitte(l to
malce his full answer and <lefence thereto, and to have the wit-
nessi's e.\-amincd and ci'oss-exanunf'd hy counsel or attormy on his
liehalf
2. Kvery eom|ilainant or inliu'nnint in any such case shall he at
liberty to conduct th<' complaint oi- information, and to have the
witnessi's cNamined and cross-e.\amine(l hy counsel or attorni-}' on
his behalf.
(1) See Wliittle v. Franklaad, 31 L. J. M. C. SI.
,'{2(» I'U AC I'lCAI, (UIHK I'll MAUISTIIAI'KS.
\Vc liiivi' ali'i'iuly si'i'ii tliiit. uikIit si'dion 1 nl' llif Cunola Eri-
dence Act ISJKl. (1; every iicrsmi (•li;ir<;t'(| with :iii ntlciici' :niil tlio
liusliaiid nf will' of (lie iicrsoM I'liiirgi'd aiv (•(Hii|h'1ciiI \viliK's«ics.
\\\\\ lIuTc is sonic (litlcvciici' ol' opinion as lo wlu'tlicr tliis section
rcMilcrs a dct'endant coniiietcnt as a witness on iiis own hclialt'.
wlicn ciiai'ii-ed witli an otlencc |mnislialile under a |ii'ovincial sta-
tute oi' a nuinici|ial liye-law. wiien llierc is an alisence of |(rovin-
ciai leyislaliou renderiuij liini so coni}ietent.
Till' (lue-tion is of some iiici-ty and ini|iortance. and si-enis to dc-
]ii'iid upon the construction to lie plai'cd upon I he sections of l lie 15.
X. A. Act reijulatinn' the resju'ctive powers of liie l»oniiiMon and
Provincial le^'isiaturi's in relation to criminal law and pi'ocedure.
In other words, doi's sulisection 27 of section Ml of the 15. N. A.
Act. extend so far as to vest in the Dominion I'arliantent exclusive
K'yislativc authority to regulate procedure, (including, of course,
evidence, as a hrauch of jn'ocedurc). in relation to am. criminal
offences, no mattt-r liy what authority piiuishalple. — that is. whe-
ther punishahle l>y vivtui' of Domiinon. l'ro\incial. .Municipal oi-
ot hei' laws '.■' ())•. is sulisection 1") ot' sect ion '.t'Jot'ihe 11. .\. \. \(-\.
(which gi\es pro\incial legislatures authority to make laws im|)os-
inglhe punishnn'iit hy tine. ptMialty, or imprisonment lor the en-
forcement of jirovincial laws), to he construed as conferring on
the [)rovincial legislatures the power to regulate ami fix the proce-
dure in regard to oll'ences against provincial laws? .\nd. if this ho
so, are there, therefore, as some have conteucled. two sets of ci'i-
miiial olVences. — FK!)i:iiAi, crimes, and I'kovi.nciai. crimes ?
Sec. 91, subsection 27, of the 15. .\. A. .\(t. declares that the ex-
clusive legislative authority of the Dominion I'arliainent extends
to all mattei's relating to the (MUMl.xAi. law. except tlu' constitu-
tion of the ( 'ourts. luit including \\w ckockdihk in citiMiNAT. .mat-
ters.
This language is very broad, and certainly seems to cover ^iroce-
dure in all criminal matters whatsoever ; ami. as sulisection 15 of
section !t2 says nothing at all aliout ])roce(liire, i' seems that, in
emjiowering provincial legislatures to impose a line (ir ju'iialty or
iTn|»visonnieiit for infraction of provincial laws, it merely con I'ers
(1) Seep. 204, anfe.
KVIDENCE OF THE ACflSElt. 'A2\
Upon tlu' |>rovin(ial l('ii;isliitiirt!s a sPEmAL and mmited iuithority
coiicurrciit witli and in aid of flic (ibnehal authority which the
J)ominioii Parliament possi'sscs over all criminal mattors and cri-
minal procedure.
W'len. under tlu' limited uutliovity confenvd iii»ontheni, provin-
cial legislatures impose, a tine, or a penalty or imprisonment, lor a
disoliediencc of a |)rovineial law. (hey do not tlierehy cirate the
criminal otience involvt'il in suidi disohedionce. IMHoheilienco of a
statute is a crime under tlu- common law. It is a crime under the
[feneral criminal law of the country : and tlie Criminal Code itself
(hy ArticK' 1HS) expressly makes it an indictahle olVence to unlaw-
fully disohey any .\c( of any liCgislalure in Canada, and enacts
that the otlender shall lu- liahlo to one year's imprisonment, unless
there is some other punishnu'ut e.\])ressly provided hy law.
So, that, if the limitcti authority given to the provincial legisla-
tures l)y the iV N. A. .Vet were not in e.Kistence at all, or. if.though
in cNistence. it were not exercised, a contravention of a ]>rovincial
statute would he punishahle under the general criminal law con-
trolled liy the dominion I'ai'liamcnt. And. surely, the mere fact
that the provincial legislatures are granted a limited right to the
extent of fixing the |iunishment in the case of a criminal offence
Avhi(di contravenes a ]>rovincial statute. — a limite<l right which
docs not ovi'i'ride. hut is in aid of the general powers of the Dom-
inion Parliament. — cannot give them tlie further right to regulate,
in rcgai'd to sn(di otfenct^s, the criminal procedure, over which the
])ominion i'arliament is given exclusive control ; suel; exclusive
eorttrol lieing .so given to the Dondnion Parliament in order, uo
doul)t. to secure in the trial t)f criminal offences, uniforndty of pro-
cedure and evidence all over Canada.
It is not easy to reconcile tlie decisions in sonieof the cases which
have arisen upon the (juestions involved in this suhject. and wliich
are hrietly noticed helow. Mul there seems a good deal of reason
in the contention tiiat when the suhject matter of a ])roceeding he-
fore a Justice or a Magistrate is in the nature of a criminal offence,
it should have applied to it the gi'ueral law of crinunal ]irocedure
and evidence, whetlier it is liased upon an infraction of a jirovin
cial law or otherwise.
In .Roddv's case, the defendant wlio was accused, in Ontario, of
:J22
I'HArTlCAl. (illDE Til M Ali ISTKATES.
K(>lliii<;' iiiloxiciiliiiu,' lii|iii>i- nil ,-1 Siiiwliiy. in vinlitiinii ot' (lie Licniso
Ai'(. :;? \'ict. (Oiil.). <•• •'{2. si'cs. 2H iS: .•',4. wiis cniivicti'd nf tlic nf-
f'l'iicc DM liis own cvidi-ncf ; tlic |ir<isi'ciilion luivini;' ciilli'd liiin as a
■witness (iiy-aiiist liis own |ir(>(fst), nndcr t lie iiulliority of .'{(i N'ict.
(Onl.). <■. 1(1. sec. i. rcndi'i'in^ a defendant a coiiiiirtcnl and com-
PEl.LAHLE witness in any niatlfi'. not iieinu a ( rime ; tlic |iosilioii
laio'M ln'inu; tliat a violation of tlu' iici-nsf laws ivas not a (cinii'.
but a nil"*' violation of |H'ovin(ial laws. In a|i|n'al. tlic (|Hfsiion
Avas tlioiou^Idy ii'onc into ; and Harrison. ('. ,!.. in rcndcrini,' tliii
judtfnicnl of the ( 'onrt (|nasliinu; tlic coii\ictioii rcfcri'cd to sec. !)],
siili-scr, 27 of the I}. N, .\. Act. ami said tlial. as tlic iirovincia! Ic-
yislatui'cs iiavc no direct power to le<fislatc citlii'r as to crime or
criminal iiroccdnrc, t lie ijiicstion was wlietlicr the (diari^c at;'ainst
tlic (jcfcndaiit was a cliai'n'c of crime or nol. lie tlieii ijiiolcd from
I'aley on ( 'onvictions as tollows : — • Tlic (|Ucstioii. wliat is a crimi-
nal |>roceedin^ as tlie siiliject of summary coiix'iction dcjiciids on
the maniu'r in wlii(h the Legislatui'e have created the cause of
coiii|ilaiiit. and for this |iur|iosc the scope iiiid olijcct of the sialiite
as well as the lan::-uage of I he jiarticnlar enact men 1- >houl<l he con -
sidei'cd. As a n'cncral I'ulc. every |iroceediiin' licforc a .Maii,'isi rale
where he has [lower to conoict. — in cont radisiinciion to t he [lowcr ot'
makinij an order. — is a criminal procct'din;;-. whether the .Manistrate
he autliori/.ed. in the lirst instance, (o direct payment of a sum of
money as a penally, or. at once, to adjudy-c tlic defendant to he
inijirisoncd ; and il must he hoi'iie in mind thai where a statute
ordi'fs. eiiioins. or proliiiiits an act. every disohediciicc is jninishahle
at common law hy indictment . In su(di cases, the addition of a
]ienalty to he recovered hy sumniaiy conviction can hardly pre-
vent I he |)roceediii>i' from heiiiix a criminal one, ' (1)
After reviewing a iiumher of decisions as to what jiarticnlar
otieiices are crimes, the learned chief justice conclmleil that the
otfeiice of selliii;;; li(|Uor on Sunday heing one of pnhlic interest and
heiiig |iiinislialile hy tine or imiirisonment with hard lahour. it was
so tar of a criminal nature thut tlu' defendant ought not to have
heeii compelled to give evidence against iiimself. under the author-
(1) laley Sum. Conv., 5 Ed. tlL', 113 ; ti Ed. p. 1J8 ; .See K. v. J.I., Glouces-
tershire, L. R. 4 Q. B. -l-l'y ; ;J8 h. .1. M. (X, 73.
■ KVIDENOE OK TUB A("CUSBD. S23
itv of a provinciiil stiitutc n'tidi'i-iii^ him coinpoloiit Jiiid 0(imiu'lla-
lilf as a witness ill any iiiatU'i- not iuMni; a criiiu'. (1)
In Knuland. tlic |uirti»'s and tlu' linsl)ands or wivi-s of (ho parties
loan aetinii or civil proceeding are competent witnesses on their
own ludialf or t'oi- or against each otlier, hut they are not cf>mpe-
t*'nt, as a general rnk'. in any criminal procccdinn's whether triahle
on indictment or snmmai'ily ; (2) and tlie (jiiestion (d' whether a
defendant coidd lie cxamine(| as a witness in a proceedin;^- hefore a
justice or a magistrate has heen ln'ld. there, in a numher of cases
to di'pi'ud uit,>n the further (|Ucstion whether it was a criminal
proceediu";' in wliich the detendaut was chai'ged with c(nunntting
an olVi'iici- punisluil)le on summary conviction. h'oi- instance,
wliere a licensed piildic house kiH'pei" was prosecuted, under tin-
Enfj,-|isli I,i(|Uor i.icensi' liaws, for uniawfidly pi'miittinu; personscd'
notoriously hail ( haractei- to assi-mldo tog-etlier in his house, against
the tenor of his license, it was liohl tliat he was not a comjietent
witness ; Wiglnman. .!.. hcing of opiidon that the slat nte treated
the otl'encc a> a crime. (.! )
In a case auainsi a physician idiarged witii violating a law of the
]iroviiicc of ()ntario. hy piai'tising without heing n'gistei't'd. it was
Jield that, as this was aei'ime. the defendant coidd not he a witness
under Md \'ic. c. lO. sec. 4. (Out.) (4)
In anollier Ontario case, the dcfcn(lant was (duirged with the
violation of a minncipal hy-law. and, as the act c<>mplained (d' was
a crinnnai otfence. he was held incompetent to give e\ideiM-i'. (.">)
fn a recent casi'. u|ion tlie trial, hefore a police magistrate, id' an
(dfence against a city hy-law in erecting a wooden huilding within
the tire limits, the defendant was eonnudled to give evidence under
(1) U, V. Uoddy, 41 U. ('. Q. 15. '.'fll.
(2) 14 & 15 Vict. V. it!t, sees 2 & :i, (Imp) ; 16 ct- 17 Viet., c. 83 (Imp).
(3) Parker v. (ir^en, 9 Cox V. C. Kit); 2 B. & S. 299; :!1 L. J. M. C. 133;
See Catell v. Ireson K. J{. iV; K. Ml ; 27 L. J. M. C. 1G7 ; Atty.-Gen. v. Radlotf,
10 p]xch. 84; 23 L. .T. Exch. 240, S. C; Atty.-Gen. v. Sillem .32 L. .7. Exch.
92, 101 ; Mellor v. Denluim, r, Q. B. I). 467 ; R. v. Whitclnirch, 7 Q. B. L). 534 ;
Atty.-Uen. v. Bradlaugli, 14 (.}. B. D. <!(i9
(4) K. V. Sparham, 8 0nt. Uep. 57(1.
(5) R. V. McNiclioll, 11 Ont. Kep. <i59.
324 PRACTICAL (iriDK TO MAUISTM ATES.
sec. n. Ii. S. ().. c. (il, wliicli fiiiicts iliiit H|ii>ii tin' triiil lu'tni-c :iiiy
justice of tlu' |iciicc. Miiiyor. or police in:in'isli-ale of any matter or
(inestioii 7iot beiruf a crime, the party opjiosiiii;- or ilefciKliiii!,- shall he
com]ieten1 and compellahle to i^ive cviilence : ami. the defemhint
beinn' convictcil, it was helii iylln' Common IMca- hivisioii. in
linashini!,' tiie eonxiction. that an ort'enee ai.'^ainsl the hy-law iiM(ues-
tion was a criminal oll'eiu'e, and that theri'fore tin defendant was
not a com|ietcnt nor ci>m|iellahle witness. \ 1)
in a still nioi'e recent case, howi'ver. a dili'ereni dcciMon .seems lo
have lieen ari'i\'edat. A defendant wa^ convicted, hy the police
inaji'ist rale of Toronto, on a (dnir:;'*' ot selliuii' inio.\icatinii' licpior
without a license, (coiit rary to sec. 7" of the Liquor License At't,
li. S. ()., e. ]!I4). I'lKUi a motion to (puish the conviction, on the
ground o. Cfcndant's e\idence on his own ludi.-ilf haviuii' hecn
vejecled. it was contended for the (h'fendant. t hat he was a com-
l»etent witnes v.ndi'r sec. 114. H. S. ('.. v. Hm; [The, Canada Tem-
per ance Act) : hut it was eontendiMl for the prosecution that si'c. 114
of the Canada Temperance Act was ultra vires ot' the honunion
J*iii'liainenl, and that ihe )iro\ince alone has the riiihl to re<i'ulate
the proceilure under the Licpior l.iceuse Act ; and the Common
JMeas l>ivision ((iait. C. .1., and .Mc.Mahon, .L). held that, notwith-
standing the reservation of crinnnal pioccdui'c to the Dominion
Pavliann'Ut. hy suhsection 27 id' section HI ot the 15. N. A. Act. a
]»rovincial Icii-islature has ])ower to reuulati' and provitle for the
courseof trial and adjudication of otVeiu'cs ayainst ilslawfnl enact-
ments, sucdi as a In-each of the Lii|iu)r License Law. even tlionyh
HUeh ott'ences nniy he termed erinus. and tiiat therefore they liavo
power to ri'n'nlate theifiving of evidence l)y t lie defendant in sncli
il case, as is done hy II. S. ( ).. c, (!L set. !t. hy jirovidiny; that where
the )iroceedin!i' is a crinu' under the jiroxineial law. tlie defendant
is neithi-r a competent nor ecunpellalilc witness. (U)
H!it. Witii«>NM«>.s to !>«' fWiiiiiiiK'il on 4latli or
AflinilHlioil. — Kvei-y witness at any heariuir shall i>e examine<l
U|ton oath or allirniation. and the justice hefore whom any witiu'ss
(1) R. V. Hart, 20 Ont. Uop. (ill. See R v. VVasoii. 1 7 .Vpp. Uep. (Out.) 221 ;
K. V. l)lInnin^^ 14 Ont. Rep. 52.
(2) H v. Hittle, 21 Ont. R. im.
I'ROCEKDING IN DEFKNDANTS AHSENCE 1^25
appears t'ov the i»ur|i()st' ol' hciiii^ cxainiiuMl sliall liavc full |i(>\vi'r
and authority to administer to ovory witness tlie usual oath or
artirmation. (1)
H!i'£ l<]vi<l«'ii<«<' of F:K(>iii|»li4»iiK aiBil F<K«*«>|»(ioiiN.
— 1 1' the inforrnation or complaint in any case ni'iiativcs any
exemption, exception, proviso or condition in the statute on which
the same is founded it shall not \k' necessary for tlu' prosecutor or
complainant to prove sucli negative, hut the defendant may jtrove
the atlirinative tlu'reof in his defi'iice if he wishes to avail him-
self of the same.
HHit ^'4»ll>A|»|»«'ai*ail<'«' of* AccIIMImI. — In case the ac
(•used doc> not appear at the lime and |>lace aiPi>ointc(| hy ;iny
sum-mons issued hy a justici' on infornnition hefore him <d' the
commission of an otVence punishahle on sumnnii'V conviction, then,
if it appears to the satisfaction of the justice tlnit the summons
was <l\dy served- a reasonahle time hcfni-c the linic foi' appeai'auce.
su(di justice may |)roeeed e.r jiarte to hear and determin.' the case
in the absence of the defendant, as fully and elfecinally. to all inients
and purposes, as it' the defendanl had personally appeared in
ohedienci' lo stiidi summons, or the justice may, if he lliiid<s lit,
issue his warrant as provide(| hy section 7^{V,i of the Code, (2) and
adjourn the liearinu,' of the complaint or uiforination until tiie
defendant is aiijirehended.
Met'ore proeeedin<;- in the ahsenee of the did'endant, as provided
hy this article, the service and manner of service of the summons
should lie sworn lo. and llie Justice slnuild he satistied that a
reasoualde time Iwis elapsed since the service to enahle the (h'teml-
ant to oiiey it. He should have strong grounds for comdudiug
that the summons has reached or come to tlu' knowledge (d" the
defendant, and that he is wilfully disoheying it ; and thei'videiice
to satisfy him of this should he miudi stronger wjicre thi' sumin(U\rt
was not sei'ved p<'rsonally than where it was served [H'i'>onally.
(1) As to the different modes of adniiniHtorin^ the oatli to Miit the ro-
hjrious persuasion of the witness, and as to the eases iu wlroh the wit-
ness may aHirm instead of sweariii}:, see pp. l'06-2(iy, ante.
(2) yee pp. Iii8-10",», ((«<<■.
32fi PRACTICAL (IITDE TO MAGISTRATES.
(1) III I'iisi' ot (loul)t. tin' otlu'i' course of issuing' a waiTaul should
1h' taUi'U.
An inroniiatiini was, on the i)tli of .Mai'cli. laid aii'ainsi tiic df-
fondaiit for an assault alli'g('(i to luivi- lu^eii coiuiniltcd (in the (itii
of till' sainr month; wlnTcupon thi' Jiis'ticos issui'd a sunnnons,
wliifdi was. on liic Knli, left at the house of the dct'cndant's mother,
w Ik re he li\'ed n\ hen at home. I poll the return of tiie summons
on the 12th. the defeii<lant did ni>t a|)|>ear, and tlu' ease was lieard
e.r parte: ami the defendant was convicted and sentenced to si.\
luoiillis' ini|)risoniiient witii liard laliour. 'I'iie defendant heing
afterwai'd- a|p|>reheiide(l u|ion a warrant umU-r tliis coiuiction. a
vule for a cirtiorart was mo\-ed tor to hring up the conviction in
order thai it might he (|iiaslieil upon tin- ground of want of Juris-
diction in the justices to make it. Tiie ground of tlu' motion was
thai I he det'eiidanl had not luH'ii legally served with the summons.
It appeared that lie was a lishermaii. and on I he Hth of .March (the
<lay oil \\hi(di llie summon-- was applied tin- and the ilay liefori' it
was >er\cd) he wciii to sea and reiiiaineil on hoard a lugger, tishiiig
olVihc coast, until the l.'illi of Mandi. when he landed and was
immeiliately arreste(| upon the warrant issued under \\\v e.v //arte
conviition. lie denied that he had any knowledge of thi' sum-
mons having Ikh'Ii issueil (U* served until after iiis comietion, ami
there wa- additional in idence of the summons not having come to
his know ledge. In support of the eoiivietiou.it was argued that
the ((Uesiion of the sultieieiiey of (lie service of the siiniinoiis was
one entirely for tlu' justieos. and that, according to tlio cases o| |{.
V. l-",\aiis and <iale. and Re Williams, the service was sulHiMeiit.
The court, however, were unanimous in their judgment that the
st-rvice was liad. ( "o(d<hurii, .1., in deliviM'iiig judgment, said:
'" This is a \ery ilangercuis I'xi'rcise id' power on the jiart of the
magistrates. Tlie alternative c(Mirse of issuing their warrant to
appndiciid the deleiidant and liriiig him In-fore them to answer
tlie eoin|(laiiit would have heeii much safer. They ought not to
l"ivi' acted as they have doiu' unless they were certain that the
.man was keeping out of the way in order to e\ade service of the
summons. ■^- ■'• ■■' It is true tliat the latter part id' section
(1) R. V. Sm 1 1, I-. K., Ill Q. H , (in4 ; K. v. Malej, 17 (). K. 1!»4 ; h'ead v.
Hunter. S V. I.. T. 4L2.
I'ROCKEDLNii IN DKFENDANTS AllSENCE. .'527
i oftlu' 11 and Vl \\c. c. 4;!, i)rnvi(los (hat. if tlu' parly siuiini(>Mc<l
tails t(i appear, tlicn. if it lie prDVcd on oath or attirniation. lo the
Jnslicc orJiis1i<H's then jirt'scnt. that such suninions was duly scrvi'd
upon such party a rcasonaldc tinu' bi'foiv the day so appointtul for
his a.ppcarancc. as atorcsai<l, it sliall he hnvful for such justice
oi' justices of the peace to |»roceed ex iiarte and adjudicate as if
su(di pai'ly had |iersonally apjiearcd : hut, on tliat, I think it
siiould he shown that the circumstances were such, and tiiat the
lime lictween the leaving- of the summons and the time appointed
for ap)iearance were su(di as to lead to the conclusion thai I lie
summons must ha\e reached the defendant.' (1)
It thus appears to lie well estahlislu'd that, to ;^'i\'e Justices jur-
isdiction to jiroceed ex jiarte on the non-appearance of the delcii-
dunt, it must appear that the summons has liecn either scr\cil
personally, or has heen left with some pers((n for him at his
last (U' mo~^l usual |dace of ahinle. and that, in the latter ca>e. t here
are circumstances to lead to the conclusion that the summons
must have rea(du'd the defendant.
it also appears that, where 1 he casi' is not within the opei-ation
of the < 'ode. and where in that case there is no mode of ser\ice of
the summons jirovided ior hy the statute under \vhi(di the ]u-o-
cei'tliiii;' is taken, tiu' service of the summons must lie persdual.
so as to autiu»ri/e the justices to proceed ex parte. It is laid 'lown
in Burn. iJoscaveii. Nares. and other text hooks, that persniiid ser-
vice of the summons is necessary, unless nhere it is ex}>re.islu dis-
jicnsed with by statute. (2)
Tile .lustices must determine what is a reasonahle lime ot service
(having- regard to the nature ami circumstances of tlie charge
against thi' defendant), and also as to tiie sutllciemy of the ser-
vice : hut the (hdendant's apjiearance will, as a ruK'. he a wai\-er
of iiny irri'gularily in (he service. (;i)
Still, the time allowed hetween (he .service and the hearing must
he surticient for the defendant to prepare his defence. For instance,
(1) AV William Smith, 3:.' ].. T. N. S., 3il4 ; 'M J. P. '292, :V22.
{2) Per Bay ley, .1., in K. v. Hall (1 D. & K. M ; and Parker ].. C. .1 , in K.
V. Simjison, U) Mod. 'M'l.
(i) H. v. Joluiaoji. 1 8tr., L'lil : K. v. Stone, 1 Kast, (i4U; ex parte Hopwood,
19 L. J. M. C, 197 : U. v. Williams, L>I L. J. M. C, 4li.
328 I'RACTrCAI, CHIDE TO MAGISTRATES.
ii --uiiiinniis. ciillinn' u|ioii ;i (li't'ciidaiil to ;n»l>;';ir ;it 8.;}0 A.M.. tin u
I'l'i'tain day. was siTvcd at I l'..M.. on tlu' previous day, aiul, at S.L")
A..M. <m lln' day ti.Ncd lor llic dclVMidaiit's a|)]K'araiicc. two othrr
suiuinoM.si's tor similar otVciicrs wcro .si-rvi-d iT(|uirini;- tlu' dct'i'u-
daui to aii|K'ar ln't'orc liic .Mai^'isti-aii' at A. .M. on t hr same
(lay. Wlu'ii lin'('iuirl nirt. ihr lirst case was coninuMncd. Iiul lic-
t'oi'c ii was rloscd tiu' jn'osccntor aslvt'd tlu- Manisl rate to takr up
t iir oilici' I wo casi'.-. Tlic di'l'endant sai<l 1k' had not undcr^iood
t iir niraniiii;' of till' -fcond summons, as it was siT\-('d wliilc he was
in tlicact of K'a\ini;' lionic to allcnd tlic first case ; and. I>y liis
connscrs ad\ii('. lie refused to plead. 'JMu- Magistrate entered a
plea, in eaeli ease, of not guilty, and proceeded with liot li cases,
the defendant ami his counsel remaining in Cmirt awaiting the
completion id' the exideuce in the lirst I'ase. hut refusing to ])lead
or take any part in the second and third cases, or to ask for their
adjouviinieiil . .\fter hearing all (lie evidence in the lirst case, the
-Magistrate, al llie rei|Ue^t of I he detendant. adjoui'iicd that case,
hut. in each of the other case> he proceeded to a< mviction. It
was held that tlie procei'dings were contrary to n-.M.."il pistiiH'.
the sunimonses lieingserved almost iiuiuediati'ly b'i'ore il'e sitting
of ihe( 'ourl. at wlii(li tlu' defendant had ali'ead, lu'eii sumiu. :"'d
to attend; and the ciuivictioiis were ([uashed with costs against
the jirosecutor, (1)
M>>4. ^'4»ii-»|»|»caraii«*t' of l*i*OMi'cut4»r. — If. upon the
day and at the place so appointed, the dtd'endant ajipears volun-
tarily in (diedienee to the siunnious in that lieluilf served u|)on
liim. or is hrought hefore the justice l>y virtue of a warrant, then,
it tlu' conii»lainant or informant, having had diu' notice, (hx's not
appear hy himself, his counsel or attorney, the Justice shall dismiss
the complaint or information, uidess ho thinks projier to adjourn
the hearing of the sanu' until some other day, upon such tornis as
lie thinks lit.
<S{S*1. Pro('«MMliii)i-H %%'lioii lluf li Pairtit'M A|»|>(Mir.
— It liotii jiarties appear, eitlier personally or by their respect-
ive foiNSEi, OK ATTORNEYS, before the justioo Avho is to hear and
il) R. V. Kli, 10 Out. R. 727.
ARKAKINMENT OF ACCIJSKD. 320
ili'tt'i'iniiu' tlif ((iiiipliiiiit or inroriiialioii. >iicli justice shall procci'd
to hear ami (k'tt'i'iiiiiic the saim-.
The a|i|i('araiicc dt' liDih (irriiluT pai'ty may lu' liy coimst'l or at-
tiirncy willmiit |ii'i)nt' of the srrvicr of t he siiiiimous ; (1) and will
ln' sutlicii'iit 111 warrant the Jiistico in in'oe-t'eding to the hearini;;.
iink'ss thi'iT i>- any special pi-nvision to the contrary in the statute
on which the inl'orniatiiin is laid. (2) The (let'endant's appearance,
either liy hini-eU'iir ins atlnriu'y. waives all irn'i;-ularity in tiie ser-
vice of the warrant nr summons, or e\H'n tlu' want of one. ('.))
H!i^. ArraiiK'Hiiiciii **t' A<'4*iik«'(1. — If the defendant is
jivesent lA the heariuii'. tlu' sulivlance of the information oi- coni-
pl.iinl shall he stati'd (o him. and he >hall he asked if he lias any
cause to >ho\v w hy he should not In' con\ ieled. or why an order
sho\dd not he made ayainsi him. as the case may he.
2. If the defendant thereupon adud-^ the truth of the infoi'ma-
tion or complaint, and shows no siitticient cause why lie should not
he convicted, or why an order sliould not lu' made aii'ainst him. as
the case may lie. tlie Justice present at the hearing shall convict
him or maUe an order against him accor<lingl\ ,
3. If the defendant (hn's not admit the truth of the information
(M- complaint, the justice shall prot eed to inquire into tlii' charge,
and. for tlie purpose of su(di inquiry, shall take the evidence of
witnesses lioth for the coin]>lainant and accuseil in the manner
provided hy Part XLV. in the ease of a jn-eliminary inquiry. (4)
Provided that the prosecutor or com|)lainant is not entitled to give
evidence in reply if the did'endant has not adduced any evidence
other than as to his general character; provided further, that in
a hearing under this section the witnesses need not sign their
depositions.
HH7- AdjouriiiiU'iit. — Mefore or during the hearing of
any information or complaint the Justice may, in his discretion
adjourn the hearing of the same to a certain time and place to he
(1) Ejc parte Hopwood, 10 L. J. M. C. 197, 15 Q. B. 121.
(2) Bessell v. Wilaon, 22 L. J. M. C. 94 ; 1 E. & B. 489.
(3) R. v. Aiken, 3 Burr. 1785.
(4) See p. 2(t3. ante.
.33,0: PRACTICAL (illDj: Td MAOISTKATES.
llioii iippoiiitoil and stali'tl in tin- invst'iico jiiid licariiiy <>f the pai-ty
or parties, or of tlu'ir ri'spi'ctivi' solicitors or agents tiien present,
but no such aajournment shall be for more than eight days.
2. It', at tlie time and plaee to whicli tlie hearing' <>r i'lirther
liearini;- is adjoui'ned, eillu'r or l)OlIi of tlu' |)arties do not a])pear,
jtersnnaiiy or liy his oi* tlieii' cDunsei or solicitors respectively,
liet'ore the justice or such other justice as shall then he tlu'i'e. the
justice who is then there may proceed to the heai-inti' or further
heavint"- as if the party or parties were jiresent.
'.]. If the prosecutor or complaiinint does not appear, tin- justice
luav dismiss the infoi'uiation. with or without costs, as to him seems
tit.
4. Wheiu'vev any justice adjourns tlie hi'arini>- ot" any case, he
may sutler the defendant to i^o at large or nuiy commit him to the
common gaol or otlier jirison within the lerritoj-ial division for
which such justice is then acting, or to such ofhei- safe custocly as
su(di justice thinks tit. or may dischaige the defendant upon his
recouni/.ance, with or without suivtii's. at the discreliou of siu-h
justice, conditioned for his appearand' ai the time and place to
whiidi s\udi hearing or further heai'ing is. adjourned.
5. AVheneverany defendant who is discharged u|(ou recognizance,
or allowed to go at large, does not ap|>eai' at the time mentione(| in
the recognizance or to which the hearing or further hearing is
adjourned, the justice nniy issue liis warrant for his apprehension.
Adjournments cannot exceed eight days, I'ven with the consent
of all parties. (1)
Hut if an adjournment for longer than the prescrihed ])eriod is
made at the defendants request, and he afterwards attend on the
resumed jiroccedings. and take his i hance of. and urge a dismissal
of the charge, upini the merits, lie will beestop])ed from afterAvurds
ohjecting that suidi resumed ))roceedings were illegal hy reason of
the adjournment heing for longer than the j)rescrihed period. (2)
And it has been held in Manitoba that tlie absence of a formal a<l-
(1) R. V. Fre-'ih, 13 Ont. R. 80.
(2) R. V. lleuerman, lo Ont. R. 010.
HEAHINO AND ADJi; I)It'ATl<i.\. ;J31
joiiniiiu'iit <if'llu' |ir<)C(H'(lini!;s licforc a miiu'i-^ti'iile inav he wuivcil
li_v llic ili'Tciiilaiit's siilisi'iiiu'iit a]i[K'araiu'i'. (1)
Tlif ailjniiniiiR'iit of the lu'aviii<f ul' tlic case is ciitirfly in tli<-
Jiislici-'s discretion, ami may lake place iimk'i' sevi'i-al ilitt'ereiit, cir-
cumstaiu-es. iiaiiiel\ : I. Hel'ore or lini'iiio' tiie lieariiii;-. whereuiion
tlie (leleiidaiil is >et a( large, oi- committed, or released, ii-iving hail
for his future aiipearauci- : 2. Where the ilefendaut iloes not appear
uj)on I lie summons, and a warrant is granted, and he is a|)preheu<led
and hrought lielore the justice, who ihei-enpon orders hini to he
kojit in custody ami liroughl u|) at a future time, of wliich ihe
coDipiainant or informant is lo have notice ; and l ju-n. if the latter
do not appear hy him.-elf or his attorney, the Justice may dismiss
the ( hnrge. nnle>s for sonu' reason he thiuUs proper to adjourn
upon su(di terms as he thinks tit. in which case I he defendant is.
(••Mumilted or hailed ; and. :!. Where, upon the lu'aringany variance
hetwecn the infornuilion. or com|dainl. or summons or warrant ot'
a|)])i'(diension. and the i-vidence adduced on the part of the com-
plainant or informant shall appear to the justice to have deceived
or misled the did'endant. tlie Justice may njion sucdi terms as he
thinks Hi adjourn the hearing, in wln'eii case tlie defendant is eom-
mitteij or hailed.
.Vs lo the separate trial .d' youtliful otlenders. and the necessity
tor keeping yiuilhful (dfendcrs. wlK'n in cu.stody. separate aud
apart tVom older pei-sons ciiarged with or convicted of crime, see
r)7-:»s \'ic. ( . -j.s. wiii(di is set out in full in tiie A] )pen(l i x. ;)os^ aud
sections ] and 2 of whi"li are noted at ]>p. ;j<H-;^02, ante.
HUH, A«ljii4li<>Htioii hy JiiHti«*«> Tlie justice, having
lu5ard what each |)arty has to say. au<l the witne.s.ses and evidence
adduced, siudl consider the whole matter, and. unles.s otherwise
provided, determine the same and convict or make un order against
the (lefenchmt. oi- disjnisH the information or complaint, as the ca.se
may he.
We have ali-eady seen that, at common law. justices have no jur-
sdiotion to ccmvict summarily, in any ease, but that distinct legis-
(1) He Bibby, 6 M. L. R. 472.
09
;j.>_ PRACTICAL GirilK TD MACJISTRATES.
lativi' ur.tlidiMty nuist \)v given to iK-al witli a case suimiiarily ; (1)
altlumgli.as wo have also socn. IIk' justifi's may procfcd summarily,
wlicrc. owiiio- to some omission in tlic statuU'. tlic |ii)\\cr of sum-
mary trial and conviction is not given exprfsslij. it' iVoni (he rest
of the statute it may be reasonably implied that such jurisdiclion
was intended to lie given to tliem. (2)
The adjudication is contined within the limits o| the information
or i'om])lainl. (sul)j(.'ct however to tlie jtrovisions of Articli' S4".
relating to variances between the informalion ami tlu: evidence
adduced). Tluis. where on an a|ij)lication for sureties to keep the
peace, an assault as Avell as a threat was proved and the Justices not
nnl\ ordered ihe defendant to find sureties, but also, notwithstand-
ing the jM'ote.-t of the complainant, convicted the defendant of
the assault, a certiorari was granted to (piash the conviction. (.!)
After tlie evidence has been ailduced and tlu' case heard and
■closed, the justices may a<ljourn the adjudieation and determination
of the charge ; but in that case they should name a day for deliv-
ering their judgmi'iit. For. the defendant is entitled to be present
.at the rendering of the judgment, in order to protect his rights.
In a case tried in Nova Scotia under the Liquor License Act. the
magistrate, at the close of the evidence, adjourned the case for
judgment, without fixing any particular day. On a subsequent
day. he gave notice in open court that he would give judgment on
the next day. The defendant appeared on the day so named for
judgment, and was convicted after being called and examined as to
a previous conviction ; his attorney not being present. Held, that
the conviction was illegal, because the case liaving been closed,
there could be no adjournment for the adduction of further evi-
dence, and also because the defendant should have been first found
guilty of the offence under consideration, before being questioned
as to the previous conviction. (4)
(1) See Ayard v. Cavendish, Saville, 134, and other authorities cited at p.
21, ante,
(2) See Cullen v. Trimble, and other authorities cited at p. 21, ante. And
for full comments and authorities as to the general powers, duties and res-
ponsibilities of justices and police magistrates, see chap. Ill, pp. 18-57 ante.
(3) R. v. Deny, 20 L. J. M. C. 189. And see R. v. Soper, 3 B. & C. 857.
(4) R. V. Gough, 22 N. S. R. 516.
oowicTFOx, 333
'Plif iuljiiuniiiu'iil li'i' ili'livci'iiig jiidifinciit is iiol. like iKljouni-
tnoiits. 1)0 ton- or (liii'iiin- t lit' Iriiil. liiintcil It) ('iy,'h( ihiys ; I nit iikiv I if
tor a loii^or ]K'rioil. ( 1 )
»
.S5!l. Foi'iil <»!' €'4»ilvi<'tioii. — If thf justifc cnnvicts t-i-
iniiki's an t)nlfi' iin'ain-l till' tlcl'cuilaiil. a iiiiiiutc tn' ini'intu-aiKliiiu
tlicrctit' shall tiikv lif luaiU'. — t'oi' wliicli iit) IVc shall hf |)aiil. — ami
the convict ion tir tu'ilci' shall at'tcrwarils he ilrawii up hy the Just ice.
on iKirclunont or |ia|K'i'. umlcr his jianil ami seal, in such om- of the
forms of conviction lU' of i>rilci' from \'\. tt) AAA, inclusive, in
,sciiKi)ii-E ONK t)f the ( 'title. (2) as is a|)]>licahle to the casi-. or tti
the like etlcct.
- The minute t)r meintiramlnm of the fonvictitih tir ortler. as the
case may he, is here reiiuii'ed to he niatlc. at once, that is. immc-
tliately u]ion the JiuluMiu'iit jiromiuiicing the coiivictit)n or order
heiiiy reiith'retl ; antl this iiiiniite t)r memoramliim shtnild stati'. in
suhstance. the wlitile of the ailjuilicatitui of the justice, as to the
l>unisliiiu'nt intlitteii. or the line tir penalty, or the aintiunt o1' money
ortleri'd to he jiaitl tir tiic thing t)rdercd to ho dtmo. antl tlio mode
of onftircing it. whether hy distress or imprist)nmont. (;>) For.
tho conviction tir tinier, which is the formal ri'ctirtl. is tti he hasotl
ujitm tho minuti'. It is inerely a short statt'inont in writing in any
form of wtirds, such as thi' folhiwing ; •■ 1 find tlio defendant
guilt}^ of the assault herein charged against him. and adjudge him
to jiay a fine of ten dtillars, together with costs tti tho amount of
four tlolhirs. antl that in default of payment ho he iniprisoneil for
one month."
The defendant is entitled, under tho ahove Article, to tho minute
or memonindum of the conviction or order, without any fee.
The judgment in case of a conviction consists of two parts
namely, the atljndicath)!! of conviction, and the sentence or award
of ])unishment.
WluM-e the nuigistrale imposes a fine ami fixes an imprisonment
which are within his (liscretion and jiowor. the formal convictitm
(1) R. V. Hall, 12 P. li. 142 ; R. v. Alexander, 18 Oat. R, 169.
(2) For Forms VV, to A A A, see pp. 375-381, post,
(■i) R. V. Perley, 25 S. C. N. B. 43.
384 PHAOTIOAI, mi UK I'o MAdlMUAl'KS,
must (.■nrrf>|i(iii(l witli the ;iiljii<lifii(i(iii ;is coiiiiiincd in l\\v iiiiiiutc
or iin'iuovaiKlmu ri'quircd to In- insKk- nl tlu' ri'iidcfiiii;- of (In- jiidi;--
iiu'iil . lirciinsc it must lie iiccdi'diiiy; ti> I lie tiict. iiiid 'lie liict is :is
slinwii liy till' minute or mfmoriimlum. (1 )
V
Ai'ticli' IIS2 of t 111' ( 'o(U' di'cliiri's tliiit till' scvci'mI I'orms in srlic-
diile one t lici'c'to. Viiricd to suit tlu- ciisi'. or forms to tlic lii\i' ctVcct,
shall lie diH'MU'd i^ood. Vidid. and sullicicut in law.
Tlu' conviction must show the place for which tlu' justice acts;
and it must also show eitiu'V ll\at the ott'ence, (d' whicli the olt'ender
is convicted was committed within the limits of the justices' jui'is-
dictiou ortliat there are special facts, — whicii must he mentioned. —
<>-ivinii: luvisdiction heyond those limits. (2) For instance, in eases
of jui'isdiction j^'iven, to justices of the territorial division in which
th>' olleuder is t'ound. over an otl'ence committeij in another teri'i-
toi'ial division, it will he ni'ci'ssniy to mention wheri' the (dVenee
was committeil and tlu- fact ot' the person accused of the otVence
being found within the linnts i>\' the convicting justices' jurisdic-
tion. ('^) l-'or. an Act which declares that, '■ an otl'ence or a cause
of complaint shall he di-emeil to havt' heen comnntted or to have
arisen eithei- in the place where the same was actually committed
or arose, t>r in any place in which the person changed or eoni]>lained
a,a;ainst is found or happens to he, " does not n'ive justices jurisdic-
tion to convict a person summoned t'l'oni heyoml their jurisdiction
for an otl'ence that has taUen place out of their jurisdiction; for
(such person hy appearing in answer to their summons is not found
and does not happen iobeM such jilace and within their jurisdiction.
(4)
Where the offenders were taken on hoard a smuggling hoat
within the harbor of Folkestone, — which luul an exclusive local
jurisdiction, — and were afterwards taken, with the boat, to the
port of Dovei', and convicted before two justices of that port and
town, the conviction, which merely stated that the offenders had
been found in a l)oat in the harbor of Folkestone, was held to be-
(1 ) R. V. Hartley, 20 Ont R. 485.
(2) R. V. Young. 5 Ont. R. 400.
(3) Re Peerless, 1 Q. B. 143, l.i4.
(4) .Johnson v. Colam, L. R. 10 Q. B. 544 ; 44 L. J. M. C. 185.
CONVICTION. 335
1)1x1, US not sliowiiiii; jiifisdiclioii. The Just ici's of Kolkcsloiic iiloin'
hiid authority to convicl. tlioy lieiiifi; the jiistici's ot' tlic tirsi |iort or
]iliiii' into wliicli till' vi'ssi'l was oarricd. (1)
Ir tlic law undci" wliicli tlic iirocccdiii^'.- art' laUcii is dirt'ctt'il
au,ainst a parlicular il('scrij)tion of jicrsons. tlic conviction, in si-t-
tiuii' out t lie (dVcnco. must show that the ddcndant is willun tlic
(k'scriptioii of |n'rsons aifuinst whom tlic law is directed. So that,
where. Milder liic i)y-iaws of a town, no transient trader or other
person. occu|iyiiiii; a place <d' linsiness in the town for ;i temporary
period of k^ss than a year anil not duly entered on the asst-ssmi'iit
roll foi' the cnrri'iit year, was allowed to olfi-r goods for sale within
the limits of the town, without having a license, it was held, ujion
a cf)n\iction ohtained nmler this bj'-hiw, that Ihi' omission in the
conviction of an allegation that the defendant was a transient trader
not duly entered (in the (hS'St<vient roll for the current year was fatal. (2)
A coiivictii>n for trading as a hawker and pedlar without a
license was hei<l nol to lie supj)orteil liy evidi'iice <>f a single act
of selling a |iarcel of silk handkertdiiefs to a itartieular pei-sou ;
for tlu' hare act of sale, it was iield. did not show the det"endant
to have bei'ii such a [lerson as by law is required to take out a
license. (3)
We have seen, by Article 84(5, ante, tliat a conviction is not to be
deemed insuiticient for not containing the name of the person
injured, nor for omitting to state who is the owner of any ])ro])erty
therein mentioned, nor for omitting to specify the means by which
the ott'ence has been committed, nor that it does not luime or
describe any person or thing with ])recision. The time when the
ott'ence was committed ought to be statetl. But the precise day
need not be named ; and it will be sufficiently certain if the fact
be alleged to have hajipened between such u day and such a daj'.
j>rovided the last of the days s]KH'itied be within the limited time.
Thus, where the information charged the ottence to have been
committed on the 4th of October and on divers other days and
times between that day and the I'jth of November, and the convic-
tion stated the ott'ence to have been committed on the 8th of
(1 ) Kite & bane's Case, 1 B. & C. 101. See also R. v. Nunn, 8 B. & C. 644.
(2) R. v. Caton, Ki Ont. R. 11.
(3) R. v. Little, 1 Burr. 610.
3Hfi PRACTICAL GUIDE TO MAGISTRATES.
Xovi'iubor. it was held to be valid. (1) .\nd where, in a convic-
tio.i under the Canada Temperance Act. there was a statement
alloginu; that the ott'enee was committed between the thirtietli of
■lune and the thirty-tirst of July, it was h'ebl to be a sutlioiently
certain statement of the time. (2) And a conviction for keeping
a house of ill-fame on the eleventh of October and on other days
and times before that ilay was also held sutticientlv' certain as to
time ; the only offence (diarged by thiise words l)eini'' the keeping
and maintaining of a house of ill-fame : ancl the fact that the
parties accused kept such a house on the eleventh of October and
on other days before that day <lid not constitute a distinct and
separate otfence against them upon ea(di of those days. (;^)
When the summons alleges the offence to have been ccunmitted
on a certain day. and at the hearing it is proveil to have been, in
fact, committed on some other day. the justices should amend the
summons byjdtering the date. (^4)
Under the second clause of Article ^^M. supra, any variance
b.'tween the information and the evidence adducc'd. at the sum-
mary trial thereof, as to the tinu' at wbieb such offence is alleged
to luive been committed is not to iu' deemed matei'ial. if it is proved
that the information was in fact ]ai<l wilhin the time limited by
law t'or laying it.
Before proceeding to a conviction, the Justiees should have evi-
dence whicJi is reasonably sufiicient to show that the otfence
(diarged has Ih'cii committi'd. Where, in a case uikU'i- the Canada
Tiviperance Act, the defendant swore at the trial that lu' did not
sell any intoxicaiing liquor on the day chargeil. an<l there was no
otin^r evidence showing yiositively that the lifiuor sold was intoxi-
cating liquor, the evidence for the Crown being merely that it
RKSEMBi.Ki) intoxiealing liquor, it was held that, under the.se cir-
cumstances, there was no evidi-nce on whiidi to t'ouml a eonviction
for selling intoxicating liquor. (5) .
(1) Onley v, Gee, :!() L. .1. M. C. 2'1'1.
(2) R. V. Wallace, 4 Ont. R. 1'.'7.
(:$) R. • . \Villiam8, 'Al U. C. Q. B. 540.
(4) Mayor of Exeter v. Heamati, ;i7 L. T. 6o4.
(")) R. V. Benne',c, 1 Ont. K. 44.").
CONVICTION. SSI'
So. where, on a eoiiviction under tlio 11 Geo. 1. (Imp.), e. oO.
see. l(i, for Unowingly harbouring and keeping certain spirit)*
liable to ex'ise duty, it ai)peared, from the evidence, that .search
iuivin f been made in the defendant's house durintr the defenchmt's
absente. but in tiie |»resence of his wife, the 8j>irits were found
concealed in an inner room therein, that tlio (Ud'endant before the
convicting justices produced no evidence, but insisted that the
room in which the st'izure Avas ma<U' was (U'tached from his dwelf-
inghousi' and had a door always left unlocked, it was held that the
t'videnci' was too sligiit to found a conviction, and that the mere-
naked fact of the spirits being found in the defendant's house-
during bis absence — although abundant as a ground of suspicion
— could not be considered as satisfactor}' evidence that the defend-
ant ivNow[.\<ii,v barlMtiii-ed or permitted the s]>irits to remain in
the liouse : and the conviction was (puishcd. (1)
The defendant, upon being convicted, is entitled, ujion applica-
tion, to a copy of the conviction ; (2) an<l a justice who refuses
it may have to pay the costs of a certiorari to obtain it. (;}) Hut
the justices are not bound by tlu' copy they deliver; and if it
shoubl be found to be defective or infornuil, from misstating the
name of the informer or any other fact, without there Ijeingany
fraud or intention to nnslead. a more correct one may be returnt'd
to the sessions ; and the court can only take notice of the latter. (4)
It seems, indi'e(l. that the formal conviction may lu- drawn up
at any time before the return (d' the certiorari, allbmigh suidi re-
turn be after a commitment. (5) or after the jK-nalty has been
Icvii'd by distress. ((1) or after action brought against the nuigis
1 rates. (7)
A nnigistrate has even been allowi'd to retiii'u an amended con-
viction to the sessions after having returned an erroneous one ; (S)i ,
(1) Jix parte Ransiey, ;'> D. i^i R. 572.
(I!) K. v. Midlam, 3 Burr, 17l.'0.
(3) K. v. Himiin^'don, r» D. i<i It. 688.
(4) K. V. Allen, 15 Eaat, 333, :i4tl.
(5) Massey v. .lohnson, 12 East, .S2; R. v. McCarthy, 11 0. R. 057.
(6) R. v. Barker, 1 Kast, 18(i.
(7) Lindsay v. I^igh, 11 (^ B. 455; Gray v. Cookson, 1() East, 13.
(8) Sellwood V. Mount, !) C. it P. 75 ; 1 Q. B. 729.
33S PRACTICAI, (MtllE TO AIAiilSTKATES.
Iiiit it was liold that lio could not do tliis at'liT tin- coiivictioii as
first returned had been quashed either on appeal or by the Coui-t
of (Jueens l?eneli, nor after tlie <liscliarni' of the dcfemlant l)y the
Queen's l^eneh by reason of the eonvietion iveited in tlu' wai'rant
of oommitment lieing bad. (1)
MftO. l>iN|»ONnl of |»t'iiulti«>.s 4»ii «*oiivi«'(ioii ol'
joint ollV'lldt'rw. — When several persons join in the conimis-
sion of the same otfonee, and upon eonvietion thereof eaeh is ad-
judged to pay a penalty Avhieh ineludes the value of tlie property,
or the amount of the injury (b)ne. no further sum siiali i)e paid to
the [)ersou aggrieved than sueh amitunt or value, and costs, if an}*,
itnd the residue of tlie ])enalties imjiosed shall be applied in the
same nuiuner as other penalties imposed by a Justice are directed
to be api)lied.
HUl. FirNt convictiuii in <'('rlHiii 4'a.*«<'N. — AVlien-
ever any person is sumnuirily convicted before a .lustice of any of-
feuee against Pai-ts XX. to XXX. inclusive, or I'art XX.Wll. of
the Code, and it is a first conviction, the Juslice may. if he thinks
tit. discharge the offender from his conviction upon his making
such satisfaction to the pei-son aggrieved, for <laniages and costs.
or either of them, as are aseertaint'd by the .Justice.
Parts XX. to XXII I. relate to Assailts. K'ai'jk. laiiEL. etc.;
]iarfs XXIV. to XXX. relate to TiiEFT, Burolahy. etc.. and part
XXXVII. relates to Mischief.
A person summarily convicted of any offence for which no pun-
ishment is specially provided shall be liable t<» a penalty not ex-
ceeding 850. or to im])risonment Avith or without hard labor for a
term not exceeding 6 mcjuths, or to both. (("ode. Art. !»5]. sub-soc.
Whenever the offence of which the defendant is convicted is. in
the ojiinion of the justice, directly against the peace, and if the
justice is of opinion that the oti'enee was committed under eircum-
sfances rendering if probable th'it the person convicted will be
ugain guilty of the same or some other ofl'encc unless bound over
(1) Chaney v. Payne, 1 Ad. iSt Ell (N. S.) 712 ; 10 L. J. M. C. 114.
CERTIFICATE OF DISMISSAL. i{H!t
to good iH'liuviour. sueli justice ma}', in julditioii to or in lieu of
any other sentence, require the accused to give security to keep tin-
peace and be of good behaviour for any teiMu not exceeding twelve
months. (Code. Art. !»5!».)
As to Costs, see p. H42. post ; and as to Compensation to the
BONA VIDE I'URCUASEK OF STOLEN PROPERTY, SCC p. 271, UUte.
H^a. VvrtiHvtkiv ot'iliMiiiiNMal. — If the Justice dismisses
the information or complaint, he may. when requii-ed so to do,
make an onler of dismissal in the form RBH in schedule one
and he sliail give the defendant a certiticate in the form CCC
in the said schedule. (1) which certiticate, upon being after-
wards ])roduced. shall, without further ])roof, be a bar to any
subsequent information or complaint for the same matter, against
the same defendant.
At common law and independently of statutory enactment, a
former conviction or acquittal, whether on a criminal summaiy pro-
ceeding or i>n an indictment, will be an answer to an information
of a criminal nature before justices founded on the same facts.
The true test to show that such previous conviction or acquittal
is a bar is whether the evidence necessary to support the second
proceeding would have been sutficient to procure a legal conviction
on the tirst. (2)
See comments and authorities at p]). 2!t5. ante, and H4(l-;}42, post.
HHii. »iM»lM>di<'n«*<> to CIrdvr wf JiiNti<*t>.— When
ever, by any Act or law, authority is given to commit a person to
prison, oi- to lev\- any sum upon his goods or chattels by distress,
for not obeying an order of a .lusticc thedefendant shall be served
witli a copA of tiie minute of the order before any warrant of com
mitment or of distress is issued in that behalf; and the order or
minute shall not form any part of the warrant of commitment or
of distress.
(1) For Forms BBB and CCC, eeo p. 382, 3S3, post.
(2) Per Coleridge, J., in R. v. Drury, 18 L. J. M. C, 189.
340 I'aAoncAL oirinK to mahistrate.s.
S64I. AssanltM^ — Whenever any person unlawfully assaults
or beats any other person, any .lustice may summarily hear and
determine the charge, unless at the time of entering ui>on the in-
vestigation the person aggrieved or the person aceused ohjeets
thereto.
2. If such Justice is of opinion that the assault or battery com-
plained of is, from any other circumstance, a tit subject for prose-
cution by indictment, he shall abstain from any adjudication there-
upon, and shall deal with the case in all respects in the same
manner as if he liad no authority tinally to hear and determine the
same.
H^a. niMiiiiNNal ol'foiiiplaiiil lor ANMiiilt.— If the
justice, upon the heabino of any case of assault or battery upon
the merits where the coinitlaint is ])referred by or on belnilt of the
pers(m aggrieved, under the next preceding section, deems the
otfence not to be proved, or finds the assault or battery to have
been justified, or so trifling as not to merit i^ny i)uiiishmenr, and
accordingly dismisses the complaint, hv shnW fort hw it, h make out a
certificate under his hand stating the fact of such disniihsal, and
shall deliver such certiticate to the person against whom the com-
]»laint was |ireferred.
soft. Kt'leuMC from I' irtli«>r l*ro«*<'('<liii)(N. — If the
jter.son against whom any such comjilaint has been preferred, by
or on behalf of the person aggrieved, obtains such certificate, or.
having lieen convicted. ])ays the wl\ole anKumt adjudged to be ])aid
or suffers the imprisonment or iiuitrisoument with hard labour,
awarded, he shall be released I'roni idl lurther or other ])roceedings,
civil or criminal. /or the same cause.
In R. V. Miles, already citi'd at ]). 2'J5, ante, a case was stated for
the consideration of the Court for Crown Cases Ifeserved. The
defendant had been convicted at the Central Criniiiuii Court upon
an indictment charging him (in the first count) with .ndawfiilly
and maliciously wounding the ))rosecntor ; (in the second count)
with utilawfully and maliciously inflict ng grievous bodily harm ;
(1,1 the third count) with causing tictual liodil}' harm to the jjros-
ecutor : and (in the fourth count) with common assault. The
defendant pleaded and jjoinfed out at the trial the following con-
RELEASE FKOM Fl'RTllER I'ROCBEIUNUS. 341
victioii ill fosjieot of thi8 sanu' assimlt before a Court of Summary
Jurisdiction : ' (i. J. .Miles, iiereinafter called tiic defendant, is this
day convicted for that he did unlawfully assault an<l beat one
t'hubs Living, and the court being of o|)iiiion that the said offence
was of so trifling a nature that it is inexpedient to inflict any other
than a nominal inuiishment. and the defendant, having given
security to the satisfa -tion of the court to be of goo<l behaviour, is
discharged.' The (iiu'stion for the .opinion of the court was
whether the above summary conviction was a bar to the |>roceed-
ings against him at the Central Criminal Court for the .same offence,
Poland. H. C, and Warburton. for the defemlant, said ; • Kxpress
j)ower is given by the Summary Jurisdiction Act. 187!t (42 k 43
Vict. c. 4!>), s. 1(>, i^ubsec 2. to Justices, upon convicting a person of
assault, to discharge him c(mditionally on his giving security to be
of good behaviour : and the ]>rovisions in 24 it 25 Vict. c. 100, s. 45,
must now be read with the section above referred to. Moreover,
apart from statutes, the sunnnary conviction formed a bar at
common law to the ])rescnt indictment. " hockwood. (IX).. and
Mesley. for the prosecution, said : ■The 24 k 25 N'ict. c. 100, s. 45.
only operates as a bar where a defendant shall have paid the whole
amount adjudged or shall havesuffered tlu' im]»risonment awarded ;
but the Court neither fined nor inii)ris(UUMl ihe d<'fcndant. The
proceedings under the Siimniary .lui'isdiction Act b^SO. did not
bring the case within section 45 of the earlier statute." Cur. adv.
vult. The court (Lord Coleridge, C. .1. Pollock. H.. Hawkins, J..
Charles, .1., and (Jrantham. .1.), upon Ihe aliove tacts, held that the
summary conviction was a good answer at common law tt» the
indictment. a])art altogether from the (question whether the lelend-
ant was entitled to the protection affor<led by 24 & 25 Vict. c. 100,
sec. 45 ; and t^uashed the conviction. (1)
The objection of rgsjuf/'cafa must when raised against a second
])rosecution for an offence already disposed of. be taken before the
magistrates at the hearing and not reserved as a ground fortjuasii-
ing the conviction or onler after it has been made. (2)
The previous proceeding when used as an answer to a new one
(1) R. v. Miles, 13 L. N. 79; 24 Q. B. D. 423 ; 50 L. .1. M. C. 50. See other
eases oit. at p. 295, ante.
(2) R. V. Herri ngton, 12 W. R. 420.
342 PRACTICAL OUn>E T(» MAGISTRATES.
hIiouUI hiivi' Ik'oii cari'iod to a dooision u])()ii tlio merits. (1) And
it seems tlia) tiio ccrtiHcate of" dismissal can only W granted when
tliere lias lieen a iiearing upon the merits. (2)
The graiiting of the certificate mentioned in the aliove Article
8(!() is a ministerial act. and the application f^or it need not he made
ill the |)re.sence of the other party ; and. as it seems, it may he
made at any time, the word kortmwitu in Article SG5 meaning
forthwith on application for it. and not forthwith on dismissal of
the information. (8)
HttT. CoNtN on <'oiivi<*tioii or 4lr«lor. — In every case
of a summary conviction, or of an order made hy a justice, such
Justice, may. in his discretion, award and order, in and hv the con-
viction or order, that the defendant shall j»ay to the prosecutor or
complainant such costs an to the said justice seem reasonahle in that
hehalf and not inconsistent with fees estahlished hy law to he
ttiken on proceedings had hy and hefore justices.
.HON. <'ONtM on DiNniiNNltl. — Whenever the justice, in-
i ead of convicting or nuiking an order, dismisses the infori'iation
or com])laint. he may in his discretion, in and hy his order of dis-
nusfial, award and order that the prosecutor or comjdainant shall
]»ay to the defendant such costs as to the said justice seem reason-
ahle and consistent with law.
M60. Hec'over^i' ol' ConIh on C'on%'iftioii or Din-
uiiNNal. — The sums so allowed for costs shall, in all cases, he
specified in the conviction or order, or order of dismissal, and the
same shall he recoverahle in the same numner and under the same
warrants as any penalty, adjudged to he paid by tlie conviction or
order, is to he recovered.
The recovery of penalties is |)rovided for hy Article 8t2, infra.
A conviction which imposes an amount of costs in excess of those
authorized hy the statute under which the conviction takes place
(1) R. V. Hernngton, 3 N. R. 468 ; 12 W. R. 420.
(2) Keed v. Nutt, 24 J. B. D. 06!).
(3) Hancock v. Somes, 1 E. & E. 795 ; 28 L, J. M. C. 196 ; Costar v. lleth-
eiington, 1 E. & E. 802; 28 L. J. M.C. 198.
FEES. 343
will bo invalid. (1) Hut where the statute authnrizing the justice
to award costs does not fix any tariff, the justice may award ^u(•ll
costs as ho thinks roas()nai)]c. (2)
Whoro justices signed a conviction and warrant of comniitnient
leaving blanks for the amount of costs to ho inserted, it was held
to be an irregularity, but not an excess of jurisdicticm rendering
them liable to an action. (Ji)
STO. Kvv»\evj of i.'ostH wUvn tlit're In iio Pt'ii-
ulty. — AVlienever there is no such ]ienalty to bo recovered, siuh
costs sludl be recoverable by distress and sale of the goods and
chattels of the ]iarty. and in default of distress, by imjirisonmont,
wit.) i'v without hard labour, for any term not exceeding one
MONTH.
871. ■'"'CH'S. — The fees mentioned in the following taritf and
on others shall be andconstiluto the fees to i>e taken on procood-
ings be foi'o justices in proceedings under this part : —
Fees to be taken by Justices of the Peace or their Clerks
S cts.
1. Fuformation or complaint and warrant or summons...... 50
2. Warrant whore summons issued in tirst instance (I ID
;{. Kach necessary copy of summons oi- warrant 10
4. I'lach summons or warrant to oi' for a witness or witnesses.
(Only one summons on each side to bo charged for in
each case, which may contain any number of names.
If the justice of the case requires it, additional sum-
monses shall be issued without charge) 10
5. Information for warrant for witness and warrant 50
(5. Each necessary eo])y of summons or warrant for witness. TO
7. For every recognizance 25
8. Forbearing and determining case 50
0. If case lasts over two hours 1 00
(1) Re Bibby, 6 M. L. R., 472.
(2) R. V. Starkey, 7 M. L. R. 489.
(3) Bolt V. Ackroyd, 28 L. J. M. C. 207.
;!14 PBACTICAI. GUrDE To MAdlSTUATES,
10. Wlu'iT oiu' jiisticf iiliHU' ciuiiiot lawfully lu'ar iiiid dolor-
mine tlio case, tlio Haino loo tor hoariiig and dotoniiiii-
ing to 1)0 allowod to the assooiato justioo.
11. For each wai-rant of distress or oommitniont 25
12. For making u]i rocord of oonviotion or order wlioro tlio
samo is ovdorod to Ito ri'turiiod to sessions or on
cerliorari 1 (in
Hut in all eases wliieli admit of a summary proeoed-
ing liufore a single Justice and wherein no higlior
l)enalty liiau ^2(» can bo imjioscd. there shall i»o
ehargod for the reeord of oonviotion not more than 5n
\'\. For eo|)y of any otliei' paper eonneeted with rnyeaso,
and tlu' minutes of the same if demanded. |)er lolio of
1(1(1 words (I 05
14. For I'very l>ill of costs when demanded to he made out
in detail 10
(Items i;{ and 14 to he oliargoahlo only when there
has hoon an adjiulieation.)
Constables Fees.
1. Arrest of eacdi individual upmi a warrant. (1) 1 50
2. Serving summons , 25
;>. MiU'age to .servo summons or warrant, per mile (one
way) nooossarih' travelled 10
4. Same mileage when service cannot ho t'tfeoted. hut only
upon proof of duo diligence.
5. Mileage taking prisoner to gaol, oxolusivo of dishurso-
ments noeossarily expended in his oonveyanco 10
C. Attending justices on trial, for each day neeossarily
em]>lovod in one or more cases, when engaged less
than four hours. (1) 1 GO
*7 Attending Justices on trial, for each day necessarily em-
ployed in one or more cft'^es, when engaged more than
four liours. (1) 1 50
(1) As amended hj 57-58 Vic., c. 57, sec. 1.
FEES. 345
8. Mileage ti-iivelU'il lo atloiid trial (when |mltlie convey-
juiee ean lie taken only reasonalile (lishursenients to be
alloweii) one way. |)er mile (• !<•
ft. Serving warrant of distress anil returning same 1 00
10. Advertising undi'r warrant ol' distress 1 (lO
11. Travelling to make dislres.s, or, to seareh tor goods to
make distress when no goods are found (one way),
per mile <• 10
12. Apiiraisenients. whetlu'r by one a|)))raiser or more, 2
eents in the dollar on the value of the goods
l;{. Commission on sale and delivery of good,><, 5 eents in tlie
dollar on the net produee of tbe good.'^.
Witnesses Fees.
1. Eaeh day attentling trial 75
2. Mileage travelled to attend trial (one way) per mile 10
N73. ProviNioiiK KcNpectiii}*; Coii% ictioiiM. —
AVhenever a eonvietion adjndge.s a j>eeuniarv ,.Mialty or com-
pensation to be jiaid. or an ord-r requires Ihf payment of a
sum of money, whether the aet or law authorizing sucji conviction
or order does or does not provide a mode of raising or levying the
penalty, ecmipensation or sum of money, or of enforcing the pay-
ment thereof, the justice by his conviction, or order after adjudg-
ing |»ayment of such penalty, compensation or sum of money, with
or without costs, may order and adjudge —
(a) that in default of payment thereof forthwith, or within a
limited time, such penalty, compensation or sum of money shall l)e
levied by distress and sale of the goods and chattels of the defend-
jint. and, if sufficient distress cannot lie found, that the defendant
be imprisoned in the manner and for the time directed by the act
or law authorizing such conviction or oider or by the Code, or foi-
any period not exceeding three months, if the act or law author-
izing the conviction or order does not specify imprisonment, or
does not specify any tei'm of imprisonment, unless such penalty,
compensation or sum of money and costs, if the conviction or
'Mii PRACTICAI, (it IliE T(» MA0ISTHATE8.
oi'dcr IS nia(U' with costs, ami llu' i'X|k'iisi's dI' liic distress and of
coiivt'yiii.ii; (lio dcfoiidaiit lo ijaol ai'c sooner paid ; (l)()f
(b.) tliat in (k't'anll oJ' piiA'mi'Ut ol" lliv saiil |ienalty. compen-
sation or sum ol" money, and costs, if any, t'oiMliwitli. or williin a
limited lime, tlie defendant lie imprisoned in the manner and for
the time mi-ntioned in the saiil act or law. or for any period not
exceedini;' three months, if the act or law autln»rizinii' the convic-
tion or order (hu-s not spi'cily imprisonment, or does not sjiccity
any term of imprisonment, unless the said sums with the like ci>sts
and e.\]»cnses are sooner ])aid. (1)
2. 'Phi' Justice making the con\iction or onler mentioned in the
paragrajth lettered (a) of suhaoction one id' this section ma^' issue
a warrant of distress in the form DDl) or bllvK, as ilu' case re-
quires ; (2) and in the case of a conviction or order under the |)ara-
graph lettered (b) of the said suhsectiou, a warrant in one of the
forms KKJ-' oi' (UKr (8) may issue ;
(a.) If a warrant of distress is issued and tli(> constable or pi'ace
otticev duiryed with tlie execution thereof rclui'ns (form III) that
he can find no gooils or chattels whereon to levy thereunder (4)
the justice may issue a warrant of commitment in the fonu
.I.TJ.'(5) .
I{. Where, by virtue of an act or law so authorizing, the Justice
by his conviction adjudges against tin- defendant payment of a
]ienalty or compensation, and also imprisonment, as punishment,
for an otl'encc. he may. if he thinks tit, order that the imjirison-
nieut in default of distress or of payment, as ]irovidcd for in this
section, shall commence at tlie expiration of the imprisonment
awarded as a punishment for the otl'ence.
4. The like proceeding may be had upon any conviction or order
made as provided by this section as if the act or law authorizing
the same had exjircssl}" provided for a conviction or order in the
above terms.
(1) As amended hy 57-58 Vict., c. 57, sec. !•
(2) For forms DDD and EEE, see pp. 383 and 384, poM.
(3) For forms FFF and GGG, see pp. 385-387, pod.
(4) For form III see p. 388, pott.
(6) For form JJ.T, see p. 389, post.
LEVVINd FINKS, f()8T8, ETC. 347
When iinpriHoniiient is clirocted as a mode of punishmont Cor an
oHbiKc, tlie ilofondunt mufst stay in prison for the period ordered.
But when imprisonment is directed as a mode of onforciiiir pay-
ment of a penalty or fine, the defonchvnt may ])ay, and thns avoid
tb.e imprisonment ; or, if he does not pay at onee, and is sent to
gaol, he can ctbtain his release before the end of the time by
paying.
When the judgment orders the monej* to be levied by disfress,
an<l that, in default of there being sufficient goods, the defendant
shall be imprisoned, the distress warrant should be issued tirst, and
it should be ascertained that there are no sufficient distress iipon
which to levy, and a retiirn to that etiect should be made before
the warrant of commitment is issued. And it seems that the tle-
fendant's goods cannot be sold for part of the penalty and costs,
and the defendant sent to gaol for the balance. So that, if the de-
fendant has ])aid part of the jienalty, it must be returned to him
before he can be sent to gaol for non-pajnnent. (1)
H7li. Order hn to Collection ot* C^osts on a «liN-
nilNNlll. — When any information or comi)laint is dismissed with
costs, the justice may issue a warrant of distrei-s on the goods and
chattels of the ])rosecutor or complainant, in the form KKK, for
the amount of such costs ; (2), and. in default of distress, a war-
rant of commitment in the form LLL may issue. (3) Provided
that the term of imprisonmeni in such case shall not exceed one
MONTH.
MT4. KndorNenient of* Warrant of* UiNtreNN.—
If, after delivery of any warrant of distress i.ssued under this part
to the constable or constables to whom the same has been directed
to be executed, sufficient distress cannot be found within the limits
of the jurisdiction of the justice granting the warrant, then upon
proof lieing made upon oath or affirmation of the liandwriting of
the justice granting the warrant, before any justice of any other
territoi'ial division, such justice shall thereupon make an enrJjise-
ment on the warrant, signed with his hand, authorizing the exocu-
(1) Brown v. Linden, 17 Ont., App. Rep. 173.
(2) For form KKK, eee p. 390, poH.
(3) For form LLL, see p. 391, post.
23
348 PRACTICAL GUIDE TO MAGISTRATES.
tion of the warrant within the hmits of liis jurisdiction, by virtue
of which >varrant and endorsement the penalty or sum and costs, or
so much thereof as has not been before levietl or paid, shall bo levied
by the person bringing the warrant, or by the person or persons to
whom the warrant was originally directed, or b}' any constable or
other peace officer of the last mentioned territorial division, by
distress and sale of the goods and chattels of the defendant therein.
2. Such endorsement shall be in the form HUH in schedule one
of the Code. (1)
N7>1. nistreNH not to lMi«tiir in Certain C'uncn.—
Whenever it ap])ears to any justice that the issuing of a distress
warrant would be ruinous to the defendant and his family, or
whenever it appears to the justice, by the confession of tlie defend-
ant or otherwise, that he has no goods and chattels whereon to
levy such distiess, then the justice, if he deems it tit, instead of
issuing a warrant of distress, maj' commit the defendant to the
common gaol or other prison in the territorial division, there to be
imprisoned, with or without hard labour, for the time and in the
manner he would have been committed in case such warrant of
distress had issued and no sutflcient distress had been found.
M70 Kcniand of Ui'f'ondant Wiion UiNtroNii is
Ordered. — Whenever a justice issues a warrant of distress as
hereinbefore provided, he may sutler the defendant to go at large,
or verbally, or by a written warrant in that behalf, may order the
defendant to be kept and detained in safe custod}', until return lias
been made to the warrant of distress, unless the defendant gives
sutflcient security, by recognizance or otherwise, to the satisfaction
of the justice, for his appearance, at the time and place appointed
for the return of the warrant of distress, before him or before such
other justice for the same territorial division as shall then be
there.
^•77, Cnmulative Pnniiilinient. — Whenever a justice,
upon any information or complaint, adjudges the defendant to be
imprisoned and the defendant is then in prison undergoing im-
(i) For form HHH, see p. 388, post.
RECOGNIZANCES. 349
prisonraent for any other oftence, the warrant of commitment for
the snbsequent offence shall be forthwith delivered to the gaoler or
other officer to whom it is directed ; and the justice who issued
the same, if he thinks tit, maj- award and order therein that the
imprisonment for the subsequent otfence shall commencofat the
expiration of the imprisonment to which the defendant was
previously sentenced.
When the defendant is not already in prison upon some other
conviction, the imj^risonment upon a warrant of commitment is to
be calculated from the earliest moment of the day of the arrest
under the warrant of commitment. (1)
MTS. KectlgiilKances. — Whenever a defendant gives se-
curity by or is discharged upon recognizance and does not after-
wards appear at the time and place mentioned in the recognizance,
the justice who took the recognizance, or any justice who is then
present, having certified upon the back of the recognizance the
non-apj)earance of the defendant, ma}^ tian.'^mit such recognizance
to the pro])er officer in the jirovince a))])ointed bj' law to receive
the same, to be proceeded u])on in like manner as other recogniz-
ances ; and such certificate shall be prima facie evidence of the
non-appearance ot the said defendant.
2. Such certificate shall be in the form MMM in schedule one of
the Code. (2) The proper officer to whom the recognizance and
certificate of default are to be transmitted, in the province of
Ontario, shall be the clei-k of the peace of the county for which
such justice is acting, except in the district of Nipissing, as to
which district the proper officer shall be the clerk of the peace for
the county of Renfrew ; and the Court of General Sessions of the
Peace for such county shall, at its then next sitting, order all such
recognizances to be forfeited and estreated, and the same shall bo
enforced and collected in the same manner and subject to the same
conditions as any fines, forfeitures or amercements im])osed by or
forfeited before such court ; and in the other provinces of Canada
the proper officer to vf hom any such recognizance and certificate
(1) Bowdler's case, 12 Q. B. 612; Ex parte Foulkes, 15 M. & W. 612,
Braham v. Joyce, 4 Exch. 487.
(2) For form MMM, see p. 392, pott.
350 PRACTICAL GUIDE TO MAGISTRATES.
shall be transmitted shall be the officer to whom like recognizances
have been heretofore accustomed to be transmitted under the law
in force before the passing of the Code ; and such recognizance
shall be enforced and collected in the samq manner as like recog-
nizances have heretofore been enforced and collected. .
HTO. Appeal.— Unless it is otherwise provided in any
special Act under which a conviction takes place or an order is
made by a justice for the payment of money or dismissing an
information or complaint, any person who thinks himself aggrieved
by any such conviction or order, — the prosecutor or complainant,
as well as the defendant, — may appeal, — in the province of Ontario,
to the Court of general sessions of the peace ; in the province
of QUEBEC, to the Court of queen's bench, crown side ; in the
provinces of nova scotia, new Brunswick and Manitoba, to the
COUNTY court of the district or county Avhere the cause of the
information or complaint arose ; in the province of pbince edward
ISLAND, to the SUPREME COURT ; in the province of British col-
U.MBIA, to the COUNT! or district court, at the sitting thereof
which shall be held nearest to the place where the cause of the
information or complaint arose ; and, in the north-west territor-
ies, to a JUDGE of the supreme court of the said territories,
sitting without a jury, — at the place where the cause of the infor-
mation or complaint arose, or the nearest place thereto where a
court is appointed to be held.
2. In the district of nipissino, such person may appeal to the
Court of GENERAL SESSIONS of the peace for the county of Renfrew.
See Article 900 of the Code, post, as to 'ating a case for review.
.sNO« Certificate of* Appeal. — Every right of appeal
shall, unless it is otherwise provided in any special Act, be subject
to the conditions following, that is to say : —
(a.) If the conviction or order is made more than fourteen days
before the sittings of the court to which the appeal is given, such
appeal shall bo made to the then next sittings of such court ; but
if the conviction or order is made within fourteen days of the
sittings of sut'h court, then to the second sittings next after such
conviction or order ;
APPEAL. 351
(6.) The appellant shall give to the respondent, or to the justice
who tried the case, for him, a notice is writing, in the formNNJiT
IN SCHEDULE ONE of the Code, (1) of such appeal, within ten days
after such conviction or order ;
(c.) The appellant, if the appeal is from a conviction adjudging
imprisonment, shall either remain in custody until the holding of
the court to which the appeal is given, or shall enter into a recog-
nizance in the form OOO in the said schedule (2) with two suffi-
cient sureties, before a justice, conditioned personally to appear at
the said court; and to try such appeal, and to abide the judgment
of the court thereupon, and to pay such costs as are awarded by
the court ; or, if the appeal is against any conviction or order,
whereby only a penalty or sum of money is adjudged to be paid,
the appellant (although the order directs imprisonment in default
of payment), instead of remaining in custody as aforesaid, or giv-
ing such recognizance as aforesaid, may deposit with the justice
convicting or making the order such sum of money as such justice
deems sufficient to cover the sum so adjudged to be paid, together
with the costs of the conviction or order, and the costs of the
appeal ; and upon such recognizance being given, or such deposit
being made, the justices before whom such recognizance is entered
into, or deposit made, shall liberate such person, if in custody.
(d.) In the case of an appeal from the order of a justice, pur-
suant to section 571, for the restoration of gold or gold-bcai"ing
quartz, or silver, or silver ore, the ai^pellant shall give security by
recognizance to the value of the said property to prosecute his
appeal at the next sittings of the court and to pay such costs as
are awarded against him ;
(e.) The court to which such appeal is nuide shall thereupon
hear and determine the matter of appeal and make such order
therein, with or without costs to either party, including costs of
the court below, as seems meet to the court, — and. in case of the
dismissal of an appeal by the defendant and the affirmance of the
conviction or order, shall order and adjudge the ajipellant to be
punished according to the conviction or to j)ay the amount adjudged
(1) For Form NNN, see p. 392, pott.
(2) For Form 000, see p. 393, post.
362 . PRACTICAL GUIDE TO MAGISTRATES,
hy the said order, and to pay such costs as are awarded, — and shall,
if necessary, issue process for enforcing the judgment of the court ;
and whenever, after any such deposit has been made as aforesaid,
the conviction or order is affirmed, the court may order the sum
thereby adjudged to be paid, together with the costs of the convic-
tion or order, and the costs of the appeal, to be paid out of the
money deposited, and the residue, if any, to be repaid, to the
appellant ; and whenever, after any such deposit, the conviction or
order is quashed, the court shall order the money to be repaid to
the appellant ;
(/.) The said court shall have power, if necessary, from time to
time, by order endorsed on the conviction or order, to adjourn the
hearing of the appeal from one sitting to another, or others, of the
said court ;
(g.) Whenever any conviction or order is quashed on appeal, as
aforesaid, the clerk of the peace or other proper officer shall forth-
with endorse, on the conviction or order, a memorandum that the
same has been quashed : and whenever any copy or certificate of
such conviction or oi'der is made, a copy of such memorandum shall
be added thereto, and shall, when certified under the hand of the
clerk of the peace, or of the proper officer having the custody of
the same, be sufficient evidence, in all courts and for all purposes,
that the conviction or order has been quashed.
In computing the ten days within which the notice of appeal is
to be given, the daj' of the conviction is to be excluded. (1)
The TEN days within Avhich the notice of appeal is to be given
under the above Article must be calculated from the day of the
adjudication and not from the time when the formal conviction or
order is made up and signed. (2)
The notice should state that the appellant is aggrieved by the
conviction or order appealed from. (3)
The object of the notice is to inform the respondents of the par-
(1) Se« Pellew v. Wonford, 9 B. & ('. 134, and other authorities at pp. 71,
72, ante.
(2) Ex parte Johnson 32 L. J. M. C. 193.
(3) R. V. J. J. West Riding of Yorks., 7 B. & 0. 792 ; R. v. J. J., Essex, 5 B.
& C, 431.
PROCEEDINGS ON APPEAL. 353
ticular conviction appealed against ; and the Justice before whom
the conviction took place, and the nature of the conviction itself
should be mentioned in the notice. But the notio« will not be cri-
tically construed, and, if it substantially give to the respondents the
requisite information, it will (apart from statutory provision on
the subject), be held sufficient. (1)
881. JProceedMngs ot appeal. — When an appeal
against any summary conviction or decision has been lodged in
due form, and in compliance with the requirements of this part,
the Court appealed to shall try, and shall be the absolute judge,
as well of the facts as of the law, in respect to such conviction
or decision ; and any of the parties to the appeal may call witnesses
and adduce evidence, whether such witnesses were called or evid-
ence adduced at the hearing before the Justice or not, either as to
the credibility of any witness, or as to any other fact material to
the inquiry ; but any evidence taken before the justice at the hear-
ing below, signed by the witness giving the same and certified by
the Justice, may be read on such appeal, and shall have the like
force and effect as if the witness was there examined : Provided,
that the Court appealed to is satisfied by affidavit or otherwise,
thai the personal presence of the witness cannot be obtained by
any reasonable eft'orts.
If when the appeal comes up for hearing, the appellant be
surprised by the production of a conviction dilferent from the copy
previously delivered to him, he may apply for time, and the appeal
should be adjourned. (2)
The fii'st step after the appeal is called on is for the appellant to
prove his notice, unless it is admitted. Where an appeal is called
on and then adjourned to the next sittings of the Court appealed
to, the re8i)ondent's counsel, although the adjournment takes place
on his application, may nevertheless require proof of due notice of
appeal. (3)
After the notice of appeal has been proved or admitted, the clerk
of the Court reads the conviction i*eturned by the convicting jus-
(1) R. y. J. J. Denbighsh, 9 Dowl. P. C, 509.
(2) R. V. Allen, 15 East. 346.
(3) R. V. J. J., Middlesex, 2 Dowl. N. 8., 719.
364 PRACriCAL aUIDE TO MAGISTRATES.
tice ; and if there are any objections raised as appearing on the
face of the conviction, the appellant usuuUy begins by stating all
his objections thereto at once, in order that they may be met by
the other side. But if thore are rjo such objections taken, or if
when taken they are overruled, the respondent opens his case on
the merits, and calls witnesses ; and, if the Court thinks the case
thus opened and proved requires an answer, the appellant then
opens his case and calls his witnesses. And when the appellant's
case is closed, the respondent has a general reply upon the whole
case.
I.
SM2. Appeal on matters of t'oriii. — No judgment
shall be given in favour of the appellant if the appeal is based on
an objection to any information, complaint or summons, or to any
warrant to apprehend a defendant issued upon any such informa-
tion, complaint or summons, for any alleged defect therein, in sub-
stance or in form, or I'or any variance between such information,
complaint, summons or warrant, and the evidence adduced in sup-
port thereof at the hearing of such infortnation or complaint, un-
less it is proved before. the Court hearing the appeal that such
objection was made before the Justice before whom the case was
tried and by whom such conviction, judgment or decision was
given, or unless it is proved that notwithstanding it was shown to
such Justice that by such variance the person summoned and ap-
pearing or apprehended had been deceived or misled, such Justice
refused to adjourn the hearing of the case to some further day, as
herein provided.
SS3. Judi^nient to bo upon the merits. — In every
case of appeal from any summar}' conviction or order had or made
before any Justice, the Court to which sutdi appeal is made shall,
notwithstanding any defect in such conviction or order, and not-
withstanding that the punishment imposed or the order made may
be in excess of that which might lawfully have been imposed or
made, hear and determine the charge or complaint on which such
conviction or order has been had or made, upon the merits, and
may confirm, reverse or modify the decision of such Justice, or
may make such other conviction or order in the matter as the
Court thinks just, and may by such order exercise any power
which the Justice whose decision is appealed from might have ex-
PBOGEEDINQS ON APPEAL. 355
ercised, and such conviction or order shall have the same effect and
may be enforced in the same manner as if it had been made by
such Justice. The Court may also make such order as to costs to
be paid by either party as it thinks fit.
2. Any conviction or order made by the Court on anpeal may
also be enforced by jjf ocess of the Court itself.
Sf^4. Costs wlicii appeal not prosecuted. — The
Court to which an appeal is made, upon proof of notice of the
appeal to such Court having been given to the person entitled to
receive the same, — whether such notece has been properly
GIVEN or not, — though such appeal was not afterwards prose-
cuted or entered, may, if such appeal has not been abandoned ac-
cording to law, at the same sittings for which such notice was
given, order to the party or parties receiving the same, such costs
and charges as are thought reasonable and just by the Court, to be
paid by the party or parties giving such notice ; and such costs
shall be recoverable in the manner provided by the Code for the
recovery of costs upon an ajjpoal against an order and conviction.
(1)
HHS, Proeeediii|i;s when Appeal Fails. — Tf an
appeal against a convioticm or order is decided in favour of the
respondents, the justice who made the conviction or order, or any
other justice for the same territorial division, may issue the war-
rant of distress or commitment for execution of the same, as if no
appeal had been brought.
HfiG. Convietion not to be 4|uaslied for ]>ef'eets
of Form. — No conviction oi* order affirmed, or atfirmed and
amended, in appeal, shall be quashed for want of form, or be
removed by certiorari into any Superior Court, and no warrant or
commitment shall be held void by reason of any defect therein,
provided it is thei-ein alleged that the defendant has been con-
victed, and there is a good and valid conviction to sustain the
same.
(1) .'Is amended by 57-58 Vict, c. 57, sec. 1.
356 PHACTICAL GUIDE TO MAGISTRATES.
8S7. Certiorari n«t to lie when Appeal Is
Taken. — No writ of certiorari shall be allowed to remove any
conviction or order had or made before any justice of the peace, if
THE DBVENDANT HAS APPEALED from such convictloii Or order to
any conrt to which an appeal from such conviction or order is
authorized by law, or shall be allowed to remove any conviction or
order made upon such appeal.
The writ of certiorari is a writ issuing out of a Superior Court
for the purpose of procuring the inspection of the proceedings of
any court of inferior jurisdiction.
It requires no special law to authorize the certiorari, for it is a
matter of course that all courts of inferior jurisdiction shall have
their proceedings removable for the purpose of being examined
by a Superior Court.
In this respect the certiorari ditt'ere from the right of appeal ; for
an appeal does not exist, unless expressly given by statute, while
a certiorari lies unless expressly taken away by statute. (1)
The practice of taking away the certiorari, by statute, which
Lord Kenyon thought was too frequent, only began to prevail at
the beginning of the reign of William III, not long after the
introduction of appeals to the sessions, which, as already observed
(2), came into use at the latter end of the reign of Charles II.
The power of granting a certiorari is considered as so beneficial
to the subject that it is not allowed to be interfered with by any-
thing short of an express statutory prohibition ; and it is not
taken away, unless there be express words to take it away. (3)
And, even where a statute in express terms declares that the pro-
ceedings shall not be removed by certiorari, this does not prevent its
issuing at the instance of the prosecutor ; for (4) to restrain the pre-
rogative of the Crown, in this particular, there must either be ex-
(1) R. V, Hanson, 4 B. & Aid. 521 ; per Abbott, C. J., R. v. Cashiobury, 3
D. & R. 35.
(2) See Introduction, p. V., ante. For Forms of Certiorari and of Recogn-
izance thereon, see " Additional Forms " at the end of this Chapter.
(3) R. V. Morley and others, 2 Burr. 1041.
(4) R. v. Allan 15 East, 334, 341, 342.
CERTIORARI. 35*7
press words for that purpose, or an intention, manifestly appear-
ing upon the Act, that the Crown, as well as the subject, shall
be i«'ohibited from lomoving the proceedings. (1)
It is in fact beneficial to the subject that th's privilege should
exist on the part of the Crown, for, in several instances where the
certiorari is taken away from the defendant, the Attorney-General
has assisted defendants, — where a doubtful judgment has been
given below, — to have their cases reconsidered by applying on
behalf of the Crown for the certiorari.
Where there is a want or excess of jurisdiction, (2) — (which
may be show.i by affidavit), (3), or where the court has been
illegall}' coiii5tituted, (4) or the conviction has been obtained by
fraud, (5) — express words taking away the certiorcri will not be
applicable. And, notwithstanding that there were express words
taking away the certiorari, the writ was allowed to issue in a case
where the magistrate convicted of an assault upon a complaint
asking only for sureties to be found to keep the peace. (6)
The following objections have been held not to go to the juris-
diction, namely ; that the defendant was convicted on a summons
giving an unreasonably short notice, and in the absence of himself
or anj'oiie on his behalf except an attorney authorized to apply
only for an adjournment, and that the conviction took place with-
out proof of service of the summons, the justices having jurisdiction
over the subject matter. (7)
So, where costs were ordered to be paid to the clerk of the com-
missionei-s instead of the clerk of the peace, it was held to be a
defect in form only. (8)
If a summons is taken out under one statute, and the defendant
(1) 15 East, 337; Paley Conv., 6 Ed. 429.
(2) R. v. Sheffield Ry. Co., 11 A. & E. 194 ; R. v. Boultbee, 4 A. &. E. 498.
(3) R. v. Bolton, 1 Q. B., 96.
(4) R. v. Cheltenham Commre. 1 Q. B. 447.
(6) R. v. Gillyard, 12 Q. B. 627.
(6) R. v. Deny, and others, 20 L. J. M. C. 189.
(7) Ex parte Hopwood, 15 Q. B. 121.
(8) R. V. Binney, 22 L. J. M. C. 127.
868 PRACTICAL OniDE TO MAGISTRATES.
is convicted under another, it is an excess of jurisdiction ; and a
certiorari will bo granted. (I)
Where the ai^plication for a writ of certiorari rests on the ground
of defective jurisdiction, matters on whicli the defect depends may
be apparent on the face of tiio procoedingn, or may be brought
before the Superior Court by atfldavit. (2) And objections of this
kind may bo founded on the character and constitution of the
inferior court, the nature of the subject matter of the enquiry, or
the absence of some preliminary proceeding which was necessary
to give jurisdiction to the inferior court. (3)
The rule for a certiorari is sometimes aljsolute in the tirst instance,
but it is usual to grant it nisi oidy, and the argument thereon
generally decides the case ; for, if it be made absolute after argu-
ment, the conviction is quashed almost as a matter of course when
it is afterwards brought up on the certiorari. (4)
The rule for the certiorari must specify the omission or mistake
or other defect objected to in the conviction, order, or judgment
sought to be removed.
By the above Article, 887, no certiorari is to be allowed to remove
any conviction oi- order had or made before any justice of the
peace, if tuk defendant has appealed from such conviction or
order. But it appears that, under a proper interpretation of this
Article, the defendant may waive his right to ai)peal, and apply
for a certiorari. (5)
It seems, also, that where the objection taken to a conviction
goes to the jurisdiction of the justices, a certiorari may issue, even
although the party applying for it has induced the nuigistrate to
state a case for the oiiinion of a superior court, and although
such case is .still pending before the court. (6)
(1) E. V. Brickhall, 33 L. J. M. C. 156.
(2) Colonial Bank of Australasia v. Willan, L. R. 5 P. C 417 : 43 L. J. C. P.
39.
(3) lb.
(4) See E. v. Purdey, 34 L. J. M. C. 4.
(5) E. v. Harman, Andr. 343.
(0) R. V. Allen and others, 33 L. J, M. C. 98. See Article 900 of the Code,
post, as to stating a case for review, on matters of law.
CONVICTIONS. — IRRBOULARITIES THEREIN. 869
Still, even where there is no objection to the certiorari issuing
before the time for appealing has expired, the court in the
exercise of its dis'-retion will refuse to grant it, if, upon the afti-
davits in supp(»rt of the applicalion, it api)ears that the ground
alleged for it is more j>roperly the subject of appeal (1), or if the
defendant before raising the objection to the jurisdiction of the
justices endeavored to obtain their decision on the merits; (2) or
if the objection is one which ought to have been takon at the hear-
ing, instead of being reserved as a ground for qiuishing the convict-
ion or order, after it has been made, e, g., the objection of res judi-
cata. (3)
HHH. Conviction to be TranMniitteil to Appeal
Conrt. — Every justice before whom any person is summarily
tried, shall transmit the conviction or order to the court to which
the appeal is herein given, in and for the district, county or place
wherein the offence is allegeil to have been committed, before the
time when an appeal from such conviction or order may be heard,
there to be kept by the proper officer among the records of the
court ; and if such con,viction or order has been appealed against,
and a dejiosit of money made, such justice shall return the deposit
into the said court ; and the conviction or order shall be presumed
not to have been appealed against, until the contraiy is shown.
2. Upon any indictment or information against any person for
a subsequent oftence, a copy of such conviction, certified by the
proper otticer of the court, or pi'oved to be a true copy, shall be
sufficient evidence to prove a conviction for the former ottence.
HH9. €on%ietion not to be Hel«l Invaliil for
Irre||;nlarlty . — No conviction or order made by any justice of
the ])eace and no warrant for enforcing the same, shall, on being
removed by certiorari, be held invalid for any irregularity, infor-
mality or insufficiency therein, provided that the court or judge
before which or whom the question is raised is, upon perusal of
the depositions, satisfied that an offence of the nature described in
the conviction, order or warrant, has been com>nitted, over which
(1) Per Lord Mansfield, R. v. Whitehead, Doug. 550.
(2) R. V. J. J. Salop, 29 L. J. M. C 39.
(3) R. V. Herrington, 12 W. R. 420.
360 PRACTICAL GUIDE TO MAOISTRATES.
sufh juHtioo has jurisdiction, and that tho piinishiiU'iit imposod is
not in excess of that which mi;^ht have hccn liiwl'iiliy inii>oscd
for tho said ott'cnco ; and any statemont -wliich, iukUt this act or
otherwise, would lie suHicient if contained in a conviction, sliall
also be sutticient if contained in an information, summons, or war-
rant : Provided that the court or judi^e, where so satisfied as afore-
said, shall, even if tho punishment imposed or the order made is in
excess oi" that which mif^ht lawfully have been imposed or made,
have the like powers in all resi)ects to deal with tho case us .seems
just as aro by section 883 conferred upon the court to which an
appeal is taken under tho provisions of section 87!*.
MHO. Irri>Kiilaritc>N Within tiio Prt'4*('«liii)>; N(>«'-
tioil. — The following matters amongst others shall be held to he
within tho provisions of tlie next preceding section : —
(a.) The statement ot the adjudication, or of any other matter
or thing, in the |)ast tense instead of in tho present ;
{b.) The ininishment imposed being less than tho punishment
by law assigned to tho otience stated in the conviction or order, or'
to tho otfenco which appears by the depositions to have been com-
mitted ;
(c.) The omission to negative circumstances, tho existence of
which would make the act complained of lawful, whether such
circumsta.-ces aro stated by way of exception or otherwise in tho
section under which the offence is laid, or are stated in another
section.
2. But nothing in this section contained shall be construed. to
restrict tho generality of the wording of the next preceding sec-
tion.
As to the writ of habeas corpus, iu cases of illegal commitment,
see pp. 368-311, post.
8SI1. Protection oi* Justice Wliose Conviction
is <|uaHlied. — If an application is made to quash a conviction
or order made by a justice, on the ground that such justice has ex-
ceeded his jurisdiction, the court or judge to which or whom the
application is made, may, as a condition of quashing the same, if
the court or judge thinks tit so to do, provide that no action shall
MOTION TO QUA81I A CONVICTION. 3G1
bo lirouglit ngiiinst tlu' juntico who made Uie conviction, or nj^ainst
any oHiccr acting under any warrant issued to enforce such con-
viction or order.
Hm, €'oii(lill4»ii of lltMirinic Motion to I|iiunIi.
— The Court liaving authority to ([uash any conviction, ordci- or
otlier proceeding l\v or iu-tbre a justice may prescribe by general
order tlwit no motion to ([uasli any conviction, order or other pro-
ceeding l)y or before a justice and brought l)ei'ore such court by
certiorari, shall bo entertained uidess the defendant is shown to
have entered into a recognizance with one or more sulticiont sure-
ties, JK'foro a justice or justices of the county or ]ilacc within which
Huch conviction or oi-der iuis boon nuide, or before u judge or other
officer, as may lie prescribed by sudi general order, or t() liavo
made a de|)osit to l»e pi'oscribed in like manner, with a condition
to ]n'0secute such writ of certiorari at his own costs and charges,
with etfoct, without any wilful or affected delay, and, if ordered ho
to do, to pay the person in whoso favour the conviction, order
or other proceeding is affirmed, his full costs and ihargos to be
taxed according to the course of the court where such conviction,
order or proceeding is attirmed.
S1I3. Iiiiporlal Aot Nll|»«'rNedo<l. — The second section
of the Imperial Act, ])assed in the fifth year of the reign of Ills
Majesty King George the Second, and chaptered nineteen, shall
no longer ai)ply to any conviction, order or other pi'oceeding by or
before a justice in Cana<la, but the next preceding section of the
Code shall be substituted therefor, and the like proceedings may be
had for enforcing the condition of a recognizance taken under
the above section as might bo had for enforcing the condition of a
recognizance taken under the said Imjierial Act.
H\\4. Jiidi«ial I¥oiiee ofProclnination. — No order,
conviction or other proceeding shall be quashed or set aside, and
no defendant shall be discharged, by reason of any objection that
evidence has not been given of a prodaniation or order of the
Governor-in-Council, or of any rules, regulations, or by-laws made
by the Governor in-Council in pursuance of a statute of Canada, or
of the publication of such proclamation, order, rules, regulations,
or by-laws in the Canada Gazette ; but such proclamation, order,
362 PRACTICAL GUIDE TO MAGISTRATES.
rules, regulations and by-laws and the publication thereof shall be
judicially noticed.
M95. ^o procvdciKlo necessary on Ket'nsal to
quash. — If a motion or rule to quash a conviction, order or other
])roceeding is refused or discharged, it shall not be necessarj'^ to
issue a writ of precede io, but the order of the Court refusing or
discharging the application shall be a sufficient authority for the
registrar or other officer of the Court forthwith to return the con-
viction, order and proceedings to the Court or Justice from which
or whom they were removed, and for proceedings to be taken
thereon for the enforcement thereof, as if u procedendo had issued
which shall forthwith be done.
89tt. Coiiviction not to be set aside in certain
eases. — V.'henever it appears by the conviction that the defend-
ant has appeared and ])leaded, aiul the merits have been tried, and
the defendant has not appealed against the conviction, wiiere an
appeal is ailowec^, or, if appealed against, the conviction has been
affirmed, such conviction shall not afterwards be set aside or va-
cated in consequence of any defect of form whatever, but tlie con-
structi(m shall be such a fair and liberal construction as will be
agreeable to the justice of the case.
HSI7. Order as to eosts.— 'If upon any a]ii)eal, the Court
trying the appeal orders either party to pay costs, the order shall
direct the costs to be paid to the ('lerk of the Peace or other pro-
per officer of the Court, to be jiaid over by him to the person en-
titled to the same, and shall state within what time the costs shall
be paid.
H9H, Reeovery of eosts. — If such costs are not paid
within the time so limited, and the person ordered to pay the same
luis not been bound by any recognizance conditioned t»> pay such
costs, the Clerk of the Peace or his deputy, on application of the
person entitled to the costs, or of any person on liis behalf, and on
payment of any fee to which he is entitled, shall grant to the per-
son so ap])lying, a certilicate that the costs have nut been j)aid ;
and upon production of the certificate to any .Justice in and for
the same territorial division, such Justice may enforce the payment
CASE FOR REVIEW. 363
of the costs by warrant of distress in manner aforesaid, and in do-
fault of distress may commit the person against whom the warrant
has issued in manner hereinbefore mentioned, for any term not
exceeding one month unless the amount of the costs and all costs
and charges of the distress and also the costs of the commitment
and conveying of the party to prison, if the justice thinks tit so to
order (the amount thereof being ascertained and stated in the com-
mitment) are sooner paid. The said certiticate shall be in the form
PPP and the warrants of distress and commitment in the forms
<iQQ and RRR respectively in schedule one to the Code. (1)
H99. Abaiidoniut'iit of appeal. — An appellant may
abandon his appeal by giving to the opposite party notice im
WRITING of his intention six clear days before the sitting of the
Court appealed to, and thereupon the costs of the appeal shall bo
added to the sum, if any adjudged, against the appellant by the
conviction or order, and the Justice shall proceed on the conviction
or order as if there had been no appeal.
OOO. fitateiiient of cane b;^ Justice for Review.
— In this section the expression " the Court " means and includes
any Superior Court of criminal jurisdiction for the province in
which the proceedings herein referred to are carried on.
2. Any person aggrieved — the prosecutor or complainant an
well as the defendant. — who desires to question a cmviction, order,
determination or other proceeding of a Justice under this part,
on the ground that it is erroneous in point of law, oris in excess
op jurisdiction, may apply to such Justice to state and sign a
case setting forth the facts of the case and the grounds on which
the proceeding is questioned, and if the Justice declines to state
the case, may apply to the Court for an order requiring the case
to be stated.
3. The application shall he made and the case stated within such
time and in such manner as is, from time to time, directed by rulbb
or orders under section 533 of the Code. (2)
(1) For forma PPP, QQQ, and RRR, see pp. 395-397, pott.
('2) Article 533 of the Code provides that every Superior Coart of Criminal
Jurisdiction may at any time with the concurrence of the Judges thereof
24
364 PRACTICAL GUIDE TO MAGISTRATES.
4. The appellant, at the time of making such application, and
before a case is stated and delivered to him by the justice, shall, in
every instance, enter into a recognizance before such justice or any
other justice exercising the same jurisdiction, with or without
surety or sureties, and in such sum as to the justice seems
meet, conditioned to prosecute his appeal without delay, and
to submit to the judgment of the court and pay such costs as are
awarded by the same ; and the a])])ollant shall, at the same time,
and before he shall be entitled to have the case delivered to him.
pay to the justice such fees as he is entitled to ; and the appellant,
if then in custody, shall be liberated uj)on the recognizance being
further conditioned for his appearance before the same justice, or
such other justice, as is then sitting, within ten days after the
judgment of the court has been given, to abide such judgment,
unless the judgment appealed against is reversed.
5. If the justice is of opinion that the application is merely
frivolous, BUT NOT OTHERWISE, he may refuse to state a case, and
bhall, on the request of the applicant, sign and deliver to him a
certificate of such refusal ; provided that the justice shall not re-
fuse to state a case where the application for that purpose is
made to him by or under the direction of Her Majesty's Attorney-
General of Canada or of any province.
6. Where the justice refuses to state a case, it shall be lawful for
the appellant to apply to the court, upon an affidavit of the facts,
for a rule calling upon the justice, and also upon the respondent,
to show cause why such case should not be stated ; and such court
may make such rule absolute, or discharge the application, with
or without payment of costs, as to the court seems meet ; and the
juBtice, upon being served with such rule absolute, shall state a
case accordingly, upon the appellant entering into such recogniz-
ance as hereinbefore provided.
1. The court to which a case is transmitted under the foregoing
provisions shall hear and determine the question or questions of
present at any meeting held for the purpose make rnles of Court, for, —
among other things, — regulating, in criminal matters, the practice and pro*
cedare in the Court, including the su ojects of mandamus, certiorari, habeas
ooBPUs, PBOHiBrrioN, QUO WARRANTO, BAIL, and COSTS, and the proceedings
ander Article 900 of the Code.
STATEMENT OF CASE. 365
law arising thereon, and shall thereupon affirm, reverse or modify
the conviction, order or determination in i-espect ol \, hich the case
has been stated, or remit the matter to the justice with the opinion
of the court thereon, and may malse such other order in relation
to the matter and such orders as to costs, as to the court seems lit ;
and all such orders shall bo Hnal and conclusive upon all parties ;
Provided always, that any justice who states and delivers a case, in
pursuance of this section, shall not be liable to any costs in respect
or by reason (>f such appeal against his determination.
8. The court for the opinion of which a case is stated shall have
power, if it thinks fit, to cause the case to be sent back for amend-
ment ; and thereupon the same shall be amended accordingly, and
judgment shall be delivered after it has been amended.
9. The authority and jurisdiction hereby vested in the court, for
the opinion of which a case is; stated, may, subject to any rules and
orders of court in i-elation thereto, be exorcised by a judge of such
court sitting in chambers, and as well in vacation as in term time.
10. After the decision of the court in relation to any such casQ
stated for their opinion, the justice, in relation to whose determina-
tion the case has been stated, or any other justice exercising the
same jurisdiction, shall have the same authority to enforce any
conviction, oi'der or determination which has been affirmed, amend-
ed or made by such court as the justice who originally decided the
case would have had to enforce his determination if the same had
not been appealed against ; and no action or proceeding shall be
commenced or had against a justice for enforcing such conviction,
order or determituition by reason of any defect in the same.
11. If the court deems it necessary or expedient, any order of the
court may be enforced by its own process.
12. No writ of certiorari or other writ shall be required for the
removal of any conviction, order or other determination in I'elation
to whicdi a case is stated under this section or otherwise, for obtain-
ing the judgment or determination of a Superior Court on such
Case under this section.
13. In all cases where the conditions, or any of thorn, in any
recognizance entered into in pursuance of this section have not
been complied with, such recognizance shall be dealt with in the
366 PRACTICAL GUIDE TO MAGISTRATES.
like manner as is provided by section 8t8 with resjiect to recog-
nizances entered into thereunder.
14. Any person who appeals under the provisions of this section
againi^t any determination of a justice from which he is entitled to
an appeal under section 879 of the Code, shall be taken to have
abandoned such last mentioned right of appeal finally and con-
clusively and to all intents and purposes.
15. Where, by any sjtecial Act, it is provided that there shall be
no appeal from any conviction or order, no jtroceedings shall be
taken under tliis section in any case to which such jjrovision in
such special Act applies.
The general etfect of the pi'0\i8ion8 of this Article is to enable
either part}', in a matter determinable by justices in a summarv
manner, — if dissatisfied with and aggrieved by their decision, as
being erroneous in point of law, — to obtain the opinion thereon of
a Superior Court of criminal jurisdiction, by means of a case stated
and signed by the justices for that ])urpose.
Among the rules and orders made by the Supreme Court of the
X. W. T., in reference to the ])rocedure governing the applicatioii
for and the stating of a case for the opinion of a Superior Court,
(under sec. 28 of 53 Vic, c. 37, now embodied in the above Article
900), are to be found the following :
1. An application to a justice of the peace to state and sign a
case shall be delivered to such justice or left with some person for
him at his place of abode within four t»,\ys after the making of
the conviction, order, determination orother proceeding questioned.
Such application shall state the grounds upon which the proceed-
ding is questioned.
2. Within pour days after such application has been so delivered
or left for him, the justice shall state and sign and deliver to the
appellant a case setting forth the facts of the case and the ground.^
on which the proceeding is questioned, 8t>>ting —
(a.) the substance of the information or complaint ;
(6.) the names of the prosecutor (or complainant) and the de-
fendant ;
(c.) the (iate of the proceeding questioned ;
STATEMENT OP CASE. 36*7
(d.) the evidence, (if any), in full, as taken before the J. P. ;
(e.) the substan ce of the conviction, order, df termination or
other proceeding questioned ;
(/.) the grounds on which the same is questioned ;
(g.) the grounds on which the justice sujjports the proceeding
questioned, if the justice sees fit to state any.
3. Within twenty days after the delivery to the appellant of a
case stated by a justice, the appellant shall deliver or cause the
same to be delivered,
(a.) To the Registrar of the Court in banc ; or
(b.) (If he desires the matter to be heard or determined by a
Judge in Chambers), to the Clerk of the Court of the judicial dis-
trict in which the justice i-oaides, provided that upon sufficient
cause for the delay being shown, the Court or Judge, as the case
may be, may hear and determine the matter, although the case
Avas not delivered within said twenty days. (1)
Although the evidence is set out in the case, the Superior Court
does not put itself in the position of the Justices in deciding on the
weight or sufficiency of such evide nee ; but it accepts the findings
of the J ustices, upon facts within their jui'isdiction, as conclusive,
whatever the Superior Court's own opinion may bo as to the na-
ture of the evidence. (2)
The Superior Court, in such a case, has only to see whether the
determination of the Justices is erroneous in point of law. (3) The
main question in the case, namely, whether an ofl'ence has or has
not been committed within the statute is a subject involving a
question of law ; but the subordinate facts leading up to it are left
entirely to the decision of the Justice. The circumstances which
lead to the conclusion of law are forthe Justices. And it is for the
Superior Court to see whether the facts are sufficient to warrant
the legal conclusion which the Justices have drawn from them.
(1) McGuire's Mania. Handbook, 75-76.
(2) Cornwell v. Sanders, 3 B «& S. 206 ; 32 L. J. M. C, 6.
(3) Taylor v. Oram, 31 L. J. M. C, 252.
(4) R. v. raffles, 45 L. J. M. C, 61.
368 PKAOTICAL GUIDE TO MAGISTRATES.
Habeas corpus. — When there is any fault or illegality in the
commitment under which a defendant is imprisoned, he may ob-
tain his discharge by means of a writ of habeas corpus ad subji-
ciendum, which may be obtained from a Superior Court of Criminal
Jurisdiction or from a Judge of such Court. Its object being to
effect deliverance from illegal confinement, it commands the party
detaining the prisoner to produce his body, together with a true
statement of the cause of his detention ; and it maj' be applied for,
issued, and made returnable in Chambers. (1)
Although the right to remove the conviction by certiorari be
taken away, yet, in moving for a writ of habeas corpus, a certified
copy of the conviction may be brought before the Court for the
purpose of defeating the commitment. (2) But the certified c('py
must be verified by affidavit, and the commissioner before whom
the affidavit is sworn ought to certify on the exhibit annexed that
it is the document referred to in the affidavit. (3)
The application may be for a rule calling on the keeper of the
prison to show cause why a writ of habeas corpus should not issue
to bring up the body of the prisoner, and why in the event of the
rule being made absolute he should not be discharged, without the
writ of habeas corpus actually issuing and without his being person-
ally brought before the Court. (4)
Although, when this course is pursued, and the rule is made ab-
solute, after being o])posed and cause shown, the defendant may
be released by virtue of the rule thus made absolute, it apjtears
that, — if no cause is shown, — a writ of habeas corpus must, in that
case, issue, before the prisoner can be discharged. (5)
Objections to the wi-it of habeas corpus for any irregularity are
to be taken by way of substantive motion to set it aside, and not
upon the motion to discharge. the prisoner on the return. (6)
(1) Re Leonard Wataon & others, 9 A & E., 731.
(2) R. v. Mellor, 2 Dowl., 173.
(3) Re Allison, 10 Exch. 5«1.
(4) Ex parte Eggington, 23 L. J. M. C, 44 ; Re Geswood, 2 El. & Bl., 952.
For Form of ]Iabea$ Corput. see p. 402, post.
(5) Ex parte, Jacklin, 5 C. B. 103, (a.)
(6) R. V. Baines, 12 A. & E. 210, 213.
HABEAS CORPUS. 369
Upon receipt of the writ, the gaoler, or other officer having tlie
party in custody, returns, along with the body of the prisoner, the
warrant of commitment, which, if it be illegal or insufficient on its
face, will be quashed and an order will be made for the defendant's
release. (1)
The Court, upon the return to a writ of habeas corpus have
nothing before them, but the warrant of commitment ; but they
may, nevertheless, refuse to discharge the prisoner until they have
the conviction before them. Thus, where a commitment was " un-
til the party should pay a fine " without specifying any sum, the
Court refused to discharge him upon the commitment alone ; but
when, upon the conviction itself being brought before them, it ap-
peared that no precise sum was thereby awarded, they ordered the
defendant's discharge. ( 2)
As, however, the conviction as recited in the commitment, is prima
facie taken to be as recited, it is for the party asserting it to be dif-
ferent lo bring it before the Court by certiorari, or, if that process
is not available, by affidavit ; and in such a case, if the conviction
be right, the defect in the commitmbnt will be cured, provided the
latter shows the like offence as is stated in the conviction. (3)
With regard to the question of whether the truth of the return
to a writ of habeas corpus au subjiciendum can be controverted by
means of affidavits, a distinction has been drawn in England be-
tween cases in which the writ is issued at common law or under
statutes containing or not containing, as the case may be, an ex-
press provision on the subject. If the case came within the 31
Car. 2, c. 2, Ttho object of which was to provide, more partigularly,
against delays in bringing accused pereons to trial) the English
Courts would not receive affidavits impeaching the return. (4) But
if the case came within the 56 Geo. 3, c. 100, affidavits were received,
because they were admissible by the ex/)ress terms of sees. 3 and 4 of
that Act. So, that where prisoners, in custody of a Customs Officer, on
a charge of smuggling, were brought up by habeas corpus at common
(1 1 See Bac. Ab., Tit. " Habeai> Corpus."
(2) B. v. Elwell, Str. 794 ; 2 Ld. Raym. 1514.
(3) R. V. Taylor, 7 D. & R. 623.
(4) Carus Wilson's Case, 7 Q. B., 984 ; R. v. RoRers, 3 D. <{; R., 607 ; R. ▼.
Sheriff of Middlesex. 11 A. k E., 273.
370 PRACTICAL GUIDE TO MAGISTRATES.
law, they wore held entitled, under the uljove sections of 5G Geo-
3, c. 100, to controvert the truth of the return by affidavit. Abbott,
CM., said, "The writs of habeas corpus in this instance are not to be
considered as writs issuing under the 31 Car. 2, but as issuing at
common law, under the general authority of the Court, and con-
sequently the discussion of the truth of the i-eturn is left open
by virtue of the 56 Geo. 3, c. 100, sec. 4. The object of 5(5 Geo. 3.
was to give the party a summary remedy by controverting the
truth of a return, instead of putting him to an action for a false
return." (1)
But, even in cases \vithin the 56 Geo. 3, c. 100, it does not a])pear
that all statements upon the i-eturn may bo contradicted by attida-
vit. .There are certain questions which are exclusively within the
province of the tribunal issuing the commitment, and which can-
not be opened again before another tribunal, except by appeal or
upon a case .stated. Such, for instance, is the weight of evidence)
the innocence or guilt of the defendant, and the adjudication of
contempt. No other Court except the Court to which an appeal is
granted is competent to re-investigate these matters, whether the
proceeding be brought before it on return to habeas corpus, t>r cer-
tiorari, or in an action against the magistrate. (2)
It apjtears that affidavits, to show a want or excess of jurisdic-
tion, are admissible whether the case is one at common law or
under the statute of Car. 2, or Geo. 3, although they may directly
contradict facts stated in the return which, if true, would show
jurisdiction and no excess of it. The rule appears to be the same
as that which is applied to proceedings by certiorari, where a want
or excess of jurisdiction may be shown by affidavit as ground for
quashing a conviction or order. The exercise of this privilege does
not try the guilt or innocence of the prisoner, upon affidavit ; nor
does it impugn the rule that matters on which Justices, acting with-
in their jurisdiction, decide shall be held to be conclusive, if found
by them ; but, on the contrary, it is a consequence of the salutary
maxim that no Judge, by misstating facts, can give himself juris-
diction. (3) And. accordingly, on a conviction under the Master
(1) Ex parte Beeching, 6 D. & R., 209.
(2) Dimes's Case, 14 Q. B., 554.
(3) R. V. Bolton, 1 Q. B.., 66 ; R. v. Nunnely, 27 L. J. M. C, 260. ' '
HABEAS CORPUS. ■ • g^l
and Servants Act, (4 Geo. 4, c. 34), affidavits Wore admitted to
show that there was no evidoncfe before the JiiHticiv'of siich facts as
were essential to the exercise of his juns(licti<)n,hflweiy. the contract
to serve. (1)
The I'csult, briefly stated, of the decisions upon this question
see?ns to be, that, if tlie fact found be one essential to jurisdiction,
or on which jurisdiction depends, it nuvy be shown that there was
NO EVIDENCE before the justices to warrant the finding, but, that, if
the fact be merely a fact in the case and a part of it, — ^jurisdiction
having attached, — their finding is not, as a general rule, review-
able on affidavit, or in any manner excej)t on appeal or t>n a case
reserved. (2)
After the return is put in and read, it is considei-ed as filed, but
the Court may still amend it. (3)
If tlie return shows a commitment bad upon its face, the Court
will not, on the suggestion that the conviction itself is goo<l, ad-
journ the case for the purjjose of having the conviction brought up
and of amending the commitment. Nor will the Court look at the
conviction unless it is before them, having been brought up by cer-
tiorari. (4)
If the defect be not on the face of the commitment, but in the
conviction, the defendant, besides a writ of habeas corpus to bring
up the prisoner and the warrant of commitment, mu st sue out
a certiorari directed to the convicting magistrate, — or to the ses-
sions or other Court where the conviction has been filed, — to retui-n
the conviction into the Court above. (5)
OOl* Tender and Payment. — Whenever a warrant of
distress has issued against any person, and such person pays or
tenders t'o the peace officer having the execution of the same, the
(1) Re Bailey and Collier, 23 L. J. M, C, 161.
<2) R. V. Huntsworth, 33 L. J. M. C, 131 ; Pal. Sum. Conv., 6 Ed., 421.
(3) Canadian Prisoners' Case, nom. Re Watson, 9 A. & E., 731.
(4) Ex parte Timson, L. R. 5 Ex. 257 ; 39 L. J. M. C, 129.
(5) Re Allison, 10 Excb. 661.
372 PRACTICAL GUIDE TO MAGISTRATES.
sum or sums in the warrant mentioned, together with the amount
of the expenses of the distress up to the time of payment or tender,
the peace officer shall cease to execute the same.
2. Whenever any person is imprisoned for non-payment of any
penalty or other sum, he may pay or cause to be paid to the keeper
of the prison in which he is imprisoned, the sum in the warrant of
commitment mentioned, together with the amount of the costs and
charges and expenses therein also mentioned, and the keeper shall
receive the same, and shall thereupon discharge the person, if he i»
in his custody for no other matter. He shall also forthwith pay
over any moneys so received by him to the Justice who issued the
warrant.
HOS. KetiirnH reHpccting convictions and
moneys received. — Every Justice shall, quarterly, on or
before the second Tuesday in each of the months of March, June,
September and December in each year, make to the Clerk of the
Peace or other proper officer of the Court having jurisdiction in
appeal, as herein provided, a return in writing, under his hand, of
all convictions made by him, and of the receipt and application by
him of the moneys received from the defendants, — which return
shall include all convictions and other matters not included in some
previous return, and shall be in the form SSS in schedule one of
the Code. (1)
2. If two or more Justices are present, and join in the convic-
tion, they shall make a joint return.
3. In the province of Prince Edward Island such return shall be-
made to the Clerk of the Court of Assize of the county in which
the convictions are made, and on or before the fourteenth day next
before the sitting of the said Court next after such convictions are
so made.
4. Every such return shall be made in the said district of Nipis-
sing, in the province of Ontario, to the Clerk of the Peace for the
county of Renfrew, in the said province.
5. Every justice, to whom any such moneys are afterwai'ds paid,
shall make a return of the receipts and application thereof, to tha
(1) For Form SSS, see p. 398, po»<.
RETURNS OF CONVICTIONS. 313
Court having juriHtliction in uppcal as hereinbeforo provided, —
which return Hhall be filed by the Clerk of the Peace or the proper
ofBcer of such Court with the records of his office.
6. Every justice, before whom any such conviction takes place
or who receives any such moneys, who neglects or refuses to make
such return thereof, or wilfully makes a false, partial or incorrect
return, or wilfully receives a larger amount of fees than by law he
is authorized to receive, shall incur a penalty of eighty dollars,
together with costs of suit, in the discretion of the Court, which
may be recovered by any person who sues for the same by action
of debt or information in any (yourt of record in the province in
which such return ought to have been or is made.
7. One moiety of such penalty shall belong to the person suing,
and the other moiety to Her Majesty, for the j)ublic uses of
Canada.
In Ontario, returns are required by the Eevised Statutes, c. V6,
and must include convictions under Provincial Acts.
003. Fublicatioii ^c„ of KrtiiriiN.— The clerk of
the peace ol' the district or county in which any such returns are
made, or the j>roper officer, other than the clerk of the peace, to
whom such returns are made, shall, within seven days after the
adjournment of the next ensuing General or Quarter Sessions, or
of the term or sitting of such other court as aforesaid, cause the
said returns to be posted up in the court-house of the district or
county, and also in a conspicuous place in the office of such clerk
of the peace, or other proper officer, for public inspection, and the
same shall continue to te so posted up and exhibited until the end
of the next ensuing General or Quarter Sessions of the peace, or of
the term or sitting of such other court as aforesaid ; and for every
schedule so made and exhibited by such clerk or officer, he shall
be allowed such fee as is fixed by competent authority.
2. Such clerk of the peace or other officer of such district or
county, within twenty days after the end of each Greneral or Quar-
ter Sessions of the peace, or the sitting of sv ih court as aforesaid,
shall transmit to the Minister of Finance and Eeceiver General a
true copy of all such returns made within his district or county.
374 PRACTICAL OUIDE TO MAGISTRATES.
1104. FroNveii t ioiiN for PonaltleN under
Article ttOSi* — All lu-tioiiH for )ienaltieHuri8ing under tlio pio-
visioiiH of Hoc'lioii !K(2 sliall ho cominencod within six months
next uf'tor the cause of action accrues, and the same siiall bo tried
in the dintrict, county or place wVierein such peiuilties have been
incurred; and if a verdict or judgment passes for the defendant,
or the ))laintitt' becomes non-suit, or discontinues tJie action after
issue joined, or if upon denuirrer or otherwise, judgment is given
against the plaintitf, the defendant shall, in the discretion of the
court, recover his costs of suit, as between solicitor and client, and
shall have the like remedy for the same as any defendant has
by law in other cases.
009. Rciiie<IIt»s Na%'rd. — Nothing in the three sections
next preceding shall have the elt'ect of preventing any ))er8on
aggrieved from prosecuting, by indictment, any justice, for any
ottence. *'>: commi8si(m of which would subject him to indictment
at the time of the coming into force of this Act.
006« Defective Returns.— No return purporting to be
made by any justice under this Act shall be vitiated by the fact of
its including, by mistake, any convictions or orders had or made
before him in any matter over which any Provincial Legislature
has exclusive jurisdiction, or with respect to which he acted under
the authority of any provincial law.
907. Certain Det'eetfi not to Titiate Proeeed-
ln{;;H. — No information, summons, conviction, order or other
PROCEEDING shall be held to charge two otfences, or shall be held
to be uncertain on account of its stating the ottence to have been
committed in ditferent modes, or in respect of one or other of sev-
eral articles, either conjunctively 'or disjunctively ; for example, in
charging an olfencQ under section 508 of the Code, it may be al-
leged that " the defendant unlawfully did cut, break, root up and
otherwise destroy or damage a tree, sa2)ling or shrub " ; and it
shall not be necessary to detine more particularly the nature of the
act done, or to state whether such act was done in respect of a
tree, or a sapling, or a shrub.
' I'KB-IERVINO OKDKH IN COUUT. 376
09H, PrcNorviiiK order in Court.— Hvory .lud^o of
SessioiiH of till! I'ouw. Clmiriiiiiii of the Court of (lonoral SoHHions
of Iho Peace, Police Maoist ruto. District MugiHtnite or Stipendiary
MagiHtrate, Hhall have hucIi and lil<e powers an<l aiitliority to pre-
serve order in tlie said (Courts during the iiolding tliereof, and by
the lilvi! ways and means as now hy law are or may lie exercised
and used in lilce cases and for the lilie jiurposos by any Court in
Canada, or by the judges thereof, during tlie sittings thereof.
See comments and authorities upon this sul»ject at pp. 36-39,
ante.
O01I. KeNiNtanre to execution of* proeens. —
(As amended by 5(1 Vic, c. 32.) Every Judge of the Sessions of the
PeacJ. Cliairman of thi- Court of General Sessions of tlie Peace,
Eecorder, Police Magistrate, District Magistrate or Stipendiary
Magistrate, whenever any resistance is offered to the execution of
any summons, warrant of execution or f)ther process issued by
him, may enforce the due execution of the same by the means pro-
vided by the law for enforcing the execution of the process of
other courts in like cases.
FORMS UNDKR PART LVIII. OF THK COD?]
YY.— (Section 859.)
CONVICTION FOR A PENALTY TO BE LEVIED BY DISTRESS AND IN
DEFAULT OF SUFFICIENT DISTRESS, BY IMPRISONMENT.
Canada,
Province of
County of
}
Be it remembered that on the day of , in the
year , at , in the said county, A. B. is
convicted before the undersigned, , a Justice of the Peace
for the said county, for that the said A. B. (cfec, stating the offence,
and the time and place when and where committed), and I adjudge the
said A. B. for his said offence to forfeit and pay the sura of $
3*76 PRACTICAL GUIDE TO .MAGISTRATES.
(stating the penalty, and also the compensation, if any), to be paid and
applied according to law and also to pay to the said C. 1). the sum
of , foi' his costs in this behalf ; and if the said
several sums are not paid forthwith, (or'on or before the
of next). * J order that the same be levied by
distress and sale of the goods and chattels of the said A. B., and in
default of sufticient distress, * I adjudge the said A. B. to be
imprisoned in the common gaol of the said county, at
in the said county of , there to be kept at haul labour,
(//■ such is the sentence) for the term of , unless the said
several sums and all costs and charges of the said distx-ess (and of
the commitment and conveying of the said A. \i. to the said gaol)
are sooner paid.
Given iinder my hand and seal, the day and year first above
mentioned, at . in the county aforesaid.
J. S., [seal.]
J. P., {Name of cotinty.)
* Or when the issuing of a distress warrant would be ruinous to the
defendant and his family, or it appears he has no goods uheieon to levy
a distress, then instead of the w< rds between the asterisks * * say, in-
asmuch as it is now made to a])pear to me that the issuing of a
warrant of distress in this behalf would be ruinous to the said A. B..
and his family," {or, " that the said A. B. has no goods or chattels
whereon to levy the .said sums by distress.').
yfW .—{Section 859.)
CONVICTION FOR A PENALTY, AND IN DEFAULT OF PWMENT
IMPRISONMENT.
Canada,
Province of
County of
:!
Be it remembered that on the day of
in the year , at , in ♦^he said county, A. B.
is convicted before the undersigned, . a Justice of 'the
FORMS. 3*77
Peace for the said county for that he the said A. B. (&c., stating the
offence, and the time and place when and where it was committed), and
I adjudge the said A. B. for his said ottence to forfeit and pay the
sum of (stating the penalty and the compensation, if any)
to be paid and applied according to hvw ; and also to pay to the
said C. I), the sum of for his costs in this behalf ; and if the
aaid several sums are not paid forthwith (or, on or before
next), I adjudge the said A. B. to be imprisoned in the common
gaol of the saiil county, at in the said county of (and
there to be kept at hard labour) for the term of , unless
the said sums and the costs and charges of conveying the said A. B.
to the said common gaol are sooner paid.
Given under my hand and seal, the day and year first above
mentioned at , in the county aforesaid.
J. S., [seal.]
J. P., (iVrt/ne of county)
XX.— (Section 859.)
CONVICTION WHEN THE PUNISHMENT IS BY IMPRISONMENT, ETC.
Canada,
Province of
County of
:!
Be it remembered that on the day of , in the
year , at , in the said county, A. B. is convicted
before the undersigned, , a justice of the peace in and
for the said county, for that ho the said A. B. (&c., stating the offence,
and the time and place when and where it was committed) ; and I
adjudge the said A. B. for his said ottence to be imprisoned in the
common gaol of the said county, at , in the county of
, (and there to be kept at hard labour) for the term
of ; and I also adjudge the said A. B. to pay to the said
C. D. the sum of , for his costs in this behalf, and if the
said sum for costs are not paid forthwith {or on or before
next), then * I order that the said sum be levied by distress and sale
of the goods and chattels of the said A. B. ; and in default of sufti-
378 PRACTICAL OUIDE TO MAGISTRATES.
cient distre«8 in that behalf, * I adjudge the said A. B. to be im-
prisoned in the said common gaol and kept there at hard labour
for the term of , to commence at and from the term of
his imprisonment aforesaid, unless the said sum for costs is sooner
paid.
Given under my hand and seal, the day and year tirst above
mentioned at , in the county aforesaid.
J. S. [seal.]
«
J. P. {Navie of county.)
*0r, when the isswng of a distress warrant would be ruinous to the
defendant and his family, or it appears that he has no goods whereon to
levy a distrets, then instead of the words between the asterisks * * say,
•'inasmuch as it is now nuide to appear to me that the issuing of a
warrant of distress in this behalf would be ruinous to the said A. B.
and his family," {or, '" that the said A. B. has no goods or chattels
whereon to levy the said sum for costs by distress.")
YY.— {Section 851).)
ORDER For PAYMENT OF MONEY TO BE LEVIED BY DISTRESS AND IN
DEFAULT OF DISTRESS IMPRISONMENT.
Canada,
Province of
County of
:}
Bo it i^emembered that on , complaint was made before
the undersigned, . a justice of the peace in and for the
said county of , for that (stating the facts entitling the
complainant to the order, with the time and place when and where they
occurred), and now at this day. to wit, on , at
the parties aforesaid appear before me the said juMtice (or the said
C. D. appears bel'ore me the said justice, but the said A. B., although
duly called, does not appear by himself, his counsel or attorney, and
it is now satisfactorily proved to me on oath that the said A.B. was
duly served with the summons in this behalf, which required him
to be and appear here on this day before me or such justice or jus-
FORMS. 379
tices of the peace for the county, as should now be here, to answer
the said coraphiint, and to be further dealt with according to law) ;
and now having heard the matter of the said complaint, 1 do ad-
judge the said A. B. to pay to the said C. I), the sum of
forthwith {or on or before next, or as the Act or low re-
quires), and also to pay to the said C. I), the sum of
for his costs in this behalf ; and if the said several sums are not
paid forthwith (or on or before next), then, * I hereby
order that the same be levied by distress and sale of the goods and
chattels of the said A. B, and in default of sufficient distress in that
behalf * I adjudge the said A. B. to be imprisoned in the common
gaol of the said county, at , in the said county of ,
(and there kept at hard labour) for the term of ,
unless the said several sums, and all costs ami charges of the said
distress (and the commitment and conveyance of the said A. B. to
the said common gaol) are sooner paid.
Given under my hand and seal, this day of
in the year , at in the county aforesaid.
J. y. [seal.]
J P. (Name of County.)
* Or, when the issuinq of a distress warrant would be ruinous to the
defendant and his family, or it appears he has no goods whereon to levy
a distrei-s, then, instead of the words between the asterisks * * say.
"inasmuch as it is now nuule to appear to me that the issuing of a
warrant of distress in this behalf would be ruinous to the said A.B.
and his familj'," (or " that the said A. B. has no goods or chattels
whereon to levy the said sums by distress.")
7j7j.— (Section 85t».)
ORDER FOR I'AY.MENT OP MONEY, AND IN DEFAULT OF PAVMF.NT
IMPRISONMENT.
Canada,
Province of
County of
:!
Be it remembered that on j complaint was made before
the undersigned, , a justice of the peace in and for
25
380 PRACTICAL GUIDE TO MAGISTRATES.
the said county of , for that (stating the facts en-
titling the complainant to the order, with the time and place when and
where they occurred^, and now on this day, to wit, on , at
, tho parties aforesaid appear before me the said
justice (or said C D. appears before me the said justice, but the
said A. B., although duly called, does not appear by himself, his
counsel or attorney, and it is now satisfactorily proved to me upon
oath that the said A. B. was dul}' served with the summons in this
behalf, which required him to be and appear here this da}' before
me, or such juntice or justices of the peace for the said county, as
should now be here, to answer to tho said complaint, and to be
further dealt with according to law, and now having heard the
matter of the said complaint, I do adjudge the said A. B. to pay to
the said C. D. the sum of forthwith (or on or before
next, (or as the Act or law requires), and also pay to
the said C. I), the sum of for his costs in this be-
half ; and if the said several sums are not ]iaid forthwith (or on or
before next), then I adjudge the said A. B. to be im-
prisoned in the common gaol of the said county at ,
in the said county of . (there to be kejit at hard
labour if the Act or law authorizes this) for the term of
unless tho said several suras (and costs and charges of commitment
and conveying the said A. B. to the said common gaol) are sooner
paid.
Given under my hand and seal, this day of ,
in the year , at . in the county aforesaid.
• J. S., [seal.]
J- P., (Name of county.)
AAA.— (Section 859.)
ORDER FOR ANY OTHER MATTER WHERE THE DISOBEYING OF IT IS
PUNISHABLE WITH IMPRISONMENT.
Canada,
Province of
County of
:!
Bo it remembered that on , complaint was made
before the undersigned, , a justice of the j^eace in and
FORMS. 381
for the said county of , for that (stating the facts en-
titling the complainant to the order with the time and place where and
when they occurred) ; and now on this day, to wit, on ,
at , the parties aforesaid appear before
me the said justice (or the said C D. appears before me the said
justice, but the said A. B., although duly called, does not appear by
himself, his counsel or attorney, and it is now satisfactorily proved
to me, upon oath, that the said A. B. was duly served with the
summons in this behalf, which required him to be. and appear here
this day before mo, or such justice or justices of the peaqe for the
said county, as should now be here to answer to the said complaint,
and to be further dealt with according to law) ; and now having
heard the matter of the said complaint, J do adjudge the said A. B.
to (here state the matter required to be done), and if, upon a copy of
the minute of this order being served upon the said A. B., either
l»orsonally oi' b}' leaving the same for him at his last or most usual
place of abode, he neglects or refuses to obey the same, in that
case I adjudge the said A. B., for such his disobedience, to be im-
prisoned in the common gaol of the said county, at ,
in the said county of , there to be kept at hard
labour (if the statute authorizes this), for the term of
unless tlie said order is sooner obeyed, and I do also adjudge the
said A. B. to pay to the said C. D. the sum of for his costs
in this behalf, and if the said sum for costs is not paid forthwith
(or on or before next), I order the same to be levied
by/listress and sale of the goods and chattels of the said A. B,,
and in default of suflflcient distress in that behalf I adjudge the
said A. li. to be imprisoned in the said common gaol (there to be
kept'^at hard labour) for the space of , to commence at
and from the termination of his imprisonment aforesaid, unless the
said sum for costs is sooner paid.
Given under my hand and seal, this day of
, in the year , at , in the county
aforesaid.
J. S., [sbal]
J. P., (d/ame of county.)
382 PRACTICAL GUIDE TO MAGISTRATES.
BBB.— (Section 8(J2.)
FORM OK ORDER OF DISMISSAL OF AN INFORMATION OR COM-
PLAINT.
Canada, ^
Province of , >
County of , }
lie it reniemberocl tliat on , information was laid
(^or complaint was made) before the iindorsigiu'd. , a
justice of the peace in and for the said county of
for that ((fcc, as in the sumvions of the defendant), and
now at this day, to wit, on , at , (if at
any adjournment insert here : " to which day the hearing of this case
was duly adjourned, of which the said C. D. had due notice,") both
the said parties api)ear before me in order that I should hear and
determine the said information (^or complaint) (or the said A. B.
appears before me. but the said C. I)., although duly called, does
not appear) ; [whereupon the matter of the said information (or
complaint) being by me duly considered, it manifestly appears to
me that the said intV>rmation (or complaint) is not proved, and] (vY
the informant or complainant does not appear, these words may be omit-
ted), I do therefore dismiss the same, and do adjudge that the said
C. D. do pay to the said A. B. the sum of , for his costs
incurred by him in defence in his behalf ; and if the said sum for
costs is not paid forthwith (or on or before ), I order
that the same be levied by distress and sale of the goods and chat-
tels of thesaid C, I)., and in ilefault of sutticient distress in that
behalf, I adjudge the said C. D. to be imprisoned in the common
gaol of the said county of , at , in the
said county of , (and there kept at hard labour) for
the term of , unless the said sum for costs, and all
costs and charges of the waid distress (and of the commitment and
conveying of the said C. 1). to the said common gaol) are sooner
paid.
Given under my hand and seal, this day of ,
in the year , at , in the county aforesaid.
J. S., [seal.]
J. P., (Name of county.)
FORMS. 383
CCC— (Section 862.)
FORM OF CERTIFICATE OF DISMISSAL.
I hereby certify that an iiifoi-mation (or complaint) preferred
by C. I). again.st A. B. for that (&c., as in the summons) was thin
(lay considered by me, a justice of the peace in and for the said
county of . and was by me dismissed (with costs).
Dated at , this day of , in the
year
J. S.,
J. P., (Name of county )
DDT).— (Section 872.)
WARRANT OF DISTRESS UPON A CONVICTION FOR A PENALTY.
Canada.
Province of
County of
;i
To all or anj- of the constables and other peace officers in the said
county of
Whereas A, B., late of , (labourer'), was on this day
(or on last past) duly convicted before , a justice of
the peace, in and for the said county of , for that (stating
the offence, as in the conviction), and it was thereby adjudged that the
said A. B. should for such offence, forfeit and pay (&c., as in the
conviction), and should also pay to the said C. D, the sura of ,
for his costs in that behalf ; and it was thereby ordered that if the
said several sums were not paid (forthwith) the same should be
levied by distress and sale of the goods and chattels of the said A.B.,
and it was thereby also adjudged that the said A. B., in default of
suiftcient distress, should be imprisoned in the common gaol of the
said county, at , in the said county of (and there
kept at hard labour) for the space of , unless the said
several sums and all costs and charges of the said distress, and of
the commitment and conveying of the said A. B. to the said common
gaol were sooner paid ; * And whereas the said A. B., being so
384 PRACTICAL GUIDE TO MAGISTRATES.
convicted as aforesaid, and being (now) required to pay the said
sums of and has not paid the same or any
part thereof, but therein has made default : These are, therefore, to
command you, in Her Majesty's name, forthwith to make distress
of the goods and chattels of the said A. B. ; and if within
days next after the making of such distress, the said sums, together
with the reasonable charges of taking and keeping the distress, arc
not paid, then to sell the said goods and chattels so by you distrained,
and to pay the money arising from such sale unto me, the convict-
ing justice (or one of the convicting justices), that 1 may pay and
apply the same as by law directed, and may render the overplus, if
an}', on demand, to the said A. B. ; and if no such distress is found
then to certify the same unto me, that such further proceedings
may be had thereon as to law appertain.
Given under ray hand and seal, this day of , in the
year , at , in the county aforesaid.
J. S., [seal]
J. P., {Name of county.)
EBB. -(Section 812.)
warrant of distress upon an order for the pay.ment of money.
Canada,
Province of
County of
:!
To all or any of the peace officers in the said county of ,
Whereas on , last past, a complaint was made before
, a justice of the peace in and for the said county, for
that (&c., as in the order), and afterwards, to wit, on , at
, the said parties appeared before (as in
the order), and thereupon the matter of the said complaint having
been considered, the said A. B. was adjudged to pay to the said C. D.
the sum of , on or before then next, and also
to pay to the said C. D. the sum of , for his costs in that
behalf ; and it was ordered that if the said several sums were not paid
on or before the said then next, the same should be
F0RU8. 385
levied by distress and sale of the goods a^d chattels of the said A,
B., and it was adjudged that in default of sufficient distress in that
behalf, the said A. B. should be imprisoned in the common gaol of
the said county, at in the said county of
(and there kept at hard labour) for the term of , unless
the said several sums and all costs and charges of the distress (and
of the commitment and conveying of the said A. B. to the said
common gaol) were sooner paid ; *And whereas the time in and by
the said order appointed for the payment of the said several sums
of , and has elapsed, but the said A. B.
has not paid the same, or any part thereof, but therein has made
default : These are, therefore, to command you, in Her Majesty's
name, forthwith to make distress of the goods and chattels of the
said A. B., and if within the sjmce of days after the
making of such distress, the said last mentioned sums, together
with the reasonable charges of taking and keeping the said dis-
ti'esH, are not paid, then to sell the saiil goods and chattels so by
you distrained, and to pay the money arising from such sale unto
me (or some other of the convicting justices, as the case may be), that I
(or he) may pay or apply the same as by law directed, and may
vender the overplus, if any, on demand to the said A. B. ; and if
no such distress can be found, then to certify the same unto me, to
the end that such proceedings may be had therein, as to law ap-
pertain.
Given under my hand and seal, this day of
, in the year , at , in the county
aforesaid.
J. S., [seal.]
J. P., {Name of county.)
FFF.— (Section 872.)
WARRANT OF COMMITMENT UPON A CONVICTION FOR A PENALTY
IN THE FIRST IN8TANCK.
Canada,
Province of
County of
To all or any of the constables and other peace officers in the
county of , and to the keeper of the common gaol
at , in the said county of
:l
386 I'RACTICAI, UUrDE TO MAGISTRATES.
Whereas A. "B., late of , (^labourer), wuh on this day
coiiviotod hetbre the uiulersigned , a justice of the
|)cace in and for the said cotmty, for that (stating the offence, as in
the conviction), and it was thereby adjudged that the said A. B., for
his ortenee, should forfeit and pay the sum of (jbc. as in
the conviction'), and should ))ay to the said C. D. the sum of
for his costs in that behalf ; and it was thereby further adjiulged
that il'the said several sums were not paid (forthwith) the said A.
U. should be im])risoned in the common gaol of the county at
, in the said county oi' (and there kept
at hard labour) for the tei-m of , unless the said
several sums (and the costs and charges of conveying the said A.
li. to the said common gaol) were sooner paid ; And whereas the
time in and by the said conviction a})pointed for the payment of
the said several sums has elapsed, but thesaid A. B. has not paid
the same, or any part thereof, but therein has made default :
These are, therefore, to command you, the said peace otiicers, or
any of you, to take the said A. B, and him safely to convey to the
common gaol at aforesaid, and there to deliver him
to the said keeper thereof, together with this precept : And I do
hereby command you, the said keeper of the said common gaol, to
receive the said A. B., into your custody in the said common gaol,
there to imj)rison him (and keep him at hard labour) for the term
of , unless the said several sums (and costs and
charges of carrying him to the said common gaol, amounting to
the further sum of ), are sooner paid unto you, the
said keeper ; and for your so doing, this shall be your sufficient
warrant.
Given under my hand and seal, this day of ,
't: the year , at , in the county aforesaid.
J. S., [seal.]
J. P., {Name of county.)
FORMS. SSiT
GGG.— (Section 872.)
WARRANT OV CO.MMITMENT ON AN ORDER IN THK FIRST INSTANCE.
Camidn, ")
Province of , >■
County of , )
To nil or any of the constables and otlier peace officers in the sai<l
county of , anil to the keeper of tiie common gaol
of the county of , at , in the said
county of
Whereas, on last past, complaint was ma<le before the
under.signed , a justice of the peace in and for
the said county of , for that (d-c, as in the order.)
and afterwards, to wit, on the day of , fit
A. B. and C. D. ajjjieared before me, the said justice (or as it is in
the order,) and thereujion ha\-ing considered the matter of the com-
plaint, I adjudged the said A. B. to pay the said C. D. tlie sum of
, on or before the day of then next,
and also to pay to the said C. 1). the sum of , for his costs
in that behalf; and I also thereby adjudged that if the said several
sums were not jiaid on or before the day of then
next, the said A. B. should be imprisoned in the common gaol of the
county of , at , in the said county of
(and there be kept at hard labour) for the term of , unless
the said several sums (and the costs and charges of conveying the
said A. B. to the said common gaol, as the case may be) wei'o sooner
paid ; And whereas the time in and by the said order appointed for
the payment of the said several sums of money has elapsed, but the
said A. B. has not paid the same, or any part thereof, but therein
has made default : These are, therefore, to command you, the said
peace officers, or any of you, to take the said A. B. and him safely
to convey to the said common gaol, at aforesaid, and there
to deliv'cr him to the keeper thereof, together with this precept :
And I do hereby command you, the said keeper of the said common
gaol, to receive the said A. B. into your custody in the said common
gaol, there to imprison him (and keep him at hard labour) for the
term of , unless the said several sums (and the cost and
charges of conveying him to the said common gaol, amounting to
388 PRACTICAL GUIDE TO MAQISTRATEB.
tho further sum of ), are sooner paid unto you the said
keeper : and for your so doing, this shall be your sufHcient warrant.
Given under my hand and seal, this day of ,
in tho year , at , in the county aforesaid.
J. S., [SKAL.]
J. p., (^Name of county.')
:!
JIUH.— (Section 874.)
ENDORSEMENT IN BACKING A WARRANT OF DISTRESS.
Canada,
Province of
County of
Whereas proof upon oath has this day been made before me
, a justice of the peace in and for the said county, that the
name of J. S. to the within warrant subscribed is of the handwriting
of the justice of the peace within mentioned, I do therefore autho-
rize W. T., who brings me this warrant, and all other persons to
whom this warrant was originally directed, or by whom the same
may be lawfully executed, and also all peace officers in the said
county of , to execute the same within the said county,
Given under my hand, this day of , one
thousand eight hundred and
O.K.
J. P., {Name of county.)
III.— {Section S12.)
constable's return to a WARRANT OF DISTRESS.
I, "W. T., constable, of , in the county of , hereby
certify to J. S., Esquire, a justice of the peace in and for the county
of , that by virtue of this warrant I have made diligent
search for the goods and chattels of the within mentioned A. B., and
that I can lind no sufficient goods or chattels of the said A. B.
whereon to levy the sums within mentioned.
Witness my hand, this day of , one thousand
eight hundred and
W. T.
FORMS. 389
J3J.—(^Section 872.)
WARRANT OF COMMITMINT FOR WANT OF DISTRESS.
Canada, ^
Province of , >
County of , J
To all or any of the constables and other peace officers in the
county of , and to the keeper of the common
gaol of the said county of ■ , at ,
in the said county.
Whereas («&(?., as in either of the foregoing distress warrants, DDD
or EKK, to the asterisk^* and then thm) : And whereas, afterwards
on the day oi" , ip tlie year aforesaid, I, the
said justice, issued a wai'rant to all or any of the peace officers of
the county of , cotnmanding them, or any of them,
to levy the said sums of and by distress and sale of the
goods and chattels of the said A. B. ; And whereas it appears to
rac, as well by the return of the said warrant of distress, by the
peace officer who had the execution of the same, as otherwise, that
the said jjcace officer has made diligent search for the goods and
chattels of the said A. B., but that no sufficient distress whereon
to levy the sums above mentioned could bo found : These are,
therefore, to command you, the said peace officers, or any of you,
to take the said A. B., and him safely to convey to the common
gaol at , aforesaid, and there deliver him to the said
keeper, together with this precept : And I do hereby command
you, the said keeper of the said common gaol, to receive the said
A. B. into your custody, in the said common gaol, there to im-
prison him (and keep him at hard labour) for the term of
, unless the said several sums, and all the costs and
charges of the said distress (and of the commitment and conveying
of the said A. B. to the said common gaol) amounting to the
further sum of , jire sooner paid unto you, the said
keeper ; and for so doing this shall be your sufficient warrant.
Given under my hand and seal, this day of ,"
in the year , at .in the county aforesaid.
J. S. [SBAL.]
J. P. (Name of county.)
390 PRACTICAL GUIDE TO MAGISTRATES.
KKK.— (Section 873.)
WARRANT OP DISTRESS FOR COSTS UPON AN ORDER FOR DI8.MISSAL
OP AN INFORMATION OR COMPLAINT.
C'anuda,
Province of
County of
:1
To all or any of the constables and othei' peace officers in the
said county of
Whereas on last past, information was laid (or com-
])laint was made) before , a justice of the peace in and
for the said eounty of . fur that (dr.. as in the order
of dismissal) and afterwards, to wit. on - . at ,
botii parties appearing before , in order that (I)
should hear and determine the same, and the several ])roofs ad-
duced to (mo) in that behalf, being by (me) duly heard and con-
sidered, and it manifestly a]>pearing to (nie) that the said informa-
tion (or complaint) was not proved, (I) therefore dismissed the
same and adjudged that the said C. B. should pay to the said A.
B. the sum of , for his costs incurred by him in his de-
fence in that behalf; and (I) ordered that if the said sum for costs
was not paid (forthwith) the same .should be levied on the goods
and chattels of the said ('. 1)., and (1) adjudged that in default of
sufficient distre.s.sjn that behalf the said ('. D. should be imprisoned
in the common gaol of the said county of , at
, in the said coun.ty of (and there
kept at liard labour) for the space of . unless the said sum
for costs, and all costs and charges of the said distress, and of the
commitment and conveying of the said A. B. to the said common
gaol, were sooner ])aid ; * And whereas the said 0. D. being now
required to ])ay to the said A. B. the said sum for costs, has not
paid the same, or any part thereof, but therein has made default :
These are, theret'ove, to command you, in llev Majesty's name,
forthwith to make distress (»f the goods and chattels of the said C.
D., and if within the term of days next after the making
of such distress, the said last mentioned sum, together with the
reasonable charges of taking and keeping the said distress, shall
not be paid, then to sell the said goods and chattels so by you
FORMS. 391
(lislniined. and lo pay tho money arising from such Bale to
(we) that (I), may pay and apply the same as by hiw directed, and
may render the overplus (if any) on demand to the said C. I)., and
if no distress can be found, then to certify the same unto me (or to
any other justice of the peace for the same county), that such pro-
ceedings may he had therein as to law appertain.
Given under my hand and seal, this day of ,
in the year . at , in the count}' aforesaid.
J. S.. [SKAL.]
J. P., {Name of county.)
Lhh.— (Section STH.)
WARKANT OF CO.MMITMENT FOR WANT OF DISTRESS.
Canada,
Province of
County of
:i
To all or an}' of the constables and other peace olticers in the said
county of , and to the keeper of the common gaol
of the said county of , at .in the said
county of
Whereas (&c.. as in form KKK to the asterisk, * and then thus) :
And whereas atterwar<ls. on the day of ,
in the year aforesaid. I, the said justice, issued a warrant to all or
any of the ])eace otficers of the said (.'ounty, commanding them, or
anyone of them, to levy the said sum of , for costs, by
distress and sale of the goods and chattels of the said ('. D. And
whereas it ajtpears to me, as well by the return to the said warrant
of distress of the peace otticer charged with the execution of the
same as otherwise, that the saiil jieacc officer has made diligent
search for the goods and chattels of the said C. 1>. hut that no suffi-
cient distress whereon to levy the sum above mentioned could Ihj
found : These are, therefore, to command you. the said peace officers,
or any one of you, to take the said C. I)., and him safely convey to
the common gaol of the said county, at aforesaid, and
there deliver him to the keeper thereof, together with tiiis precept :
392 PRACTICAL GUIDE fO MAGISTRATES.
And I hereby command yoii, the said keeper of the said common
gaol to receive tl.<. lid C. D. into your custody in the said common
gaol, there to imprison him (and keep him at hard labour) for the
term of , unless the said sum, and all the costs and
charges of the said distress (and of the commitment and conveying
of the said C. D. to the said common gaol, amounting to the further
sum of ), are sooner ]>aid unto you the said keejier ; and
for your so doing, this shall be your sufficient warrant.
Given under my hand and seal, this day of ,
in the year , at , in the county aforesaid.
J. S., [seal]
J. P., {Name of county.)
yiMM.— {Section 878.)
certificate of non-appearance to be endorsed un tile
defendant's recognizance.
I hereby certify that the said A. B. has not appeared at the time
and place in the said condition mentioned, but therein has made
default, by reason whereof the within written recognizance is
forfeited.
.1. S., [seal]
J. P., {Name of county.)
NNN.— (Section 880.)
notice of appeal against a conviction or order.
To C. D., of , and {the names and additions of the parties
to whom the notice of appeal is required to be given.)
Take notice, that I, the undersigned, A. B. of intend
to enter and prosecute an appeal at the next General Sessions of the
peace {or other Court, as the case may be) to be holden at ,
in and for the county of , against a certain conviction
{or order) bearing date on or about the day of
instant, and made by (you) J. S., Esquire, a justice of the peace in
and for the said county of , whereby I, the said A. B.
FORMS.
was convicted of having (or was ordered) to pay , {here
state the offence as in the conviction, information, or summons, or the
amount adjudged to be paid, as in the order, as correctly as possible.)
Dated at , this day of , one
thousand eight hundred and
A. B.
Memorandum. — If this notice is given by several defendants, or by an
attorney, it may be adapted to the case.
000.— (Section S80.)
FORM OF RECOONIZANCE TO TRY THE APPEAL.
Canada, "^
Province of , >
County of , 3
Be it remembered that on . , A. B., of
{labourer), and L. M., of (grocer), and N. O.
of , (yeoman), personally came before the under-
signed , a justice of the peace in and for the said
county of , and severally acknowledged themselves to
owe to our Sovereign Lady the Queen, the several suras following
that is to say, the said A. B. the sum of , and the said
L. M. and N. O. the sum of , each, of good and lawful
money of Canada, to be made and levied of their several goods and
chattels, lands and tenements respectively, to the use of our said
Lady the Queen, her heirs and successors, if he the said A. B. fails
in the conditio-' endorsed (or hereunder written).
Taken and acknowledged the day and year tirst above mentioned,
at , before me.
J. S.,
J. P., (Name of county.)
The condition of the within (or the above) written recognizance
is such that if the said A. B. personally appears at the (next)
(loneral Sessions of the peace (or other court discharging the functions
304 PRACTICAL GUIDE TO MAGISTRATES. '
of the court oj General Sessions, as the case may be), to be hoUlon ni
, on the day of , next, in and
for the said t-ounty of , and tries an appeal against a
certain conviction, bearing date the day of
{instant), and made by (me) the said justice, whereby be, the said,
A. H., was convicted, for that he. the said A. B., did, on the
day of , at . in the said county of ,
(here set out the offence as stated in the conviction) ; and also abides
by the judgment of the court upon such a])[»eal. and pays sudi costs
as are by the court awarded, then the said recognizance to be void,
otherwise to remain in full force and virtue.
FORM OK NOTICE OF SUCH KECOONIZANCE TO BE GIVEN TO THE
APPELLANT AND HIS SURETIES.
Take notice, that you. A. Ji.. are bound in the sum of
and you L. ^I. and X. O. in the sum of . each, that you.
the said A. B. will personally appear at the next (Jeneral Sessions
of the peace to be holden at , in and for the said county of
, and try an apjteal against a conviction {or order)
dated the day of . {mstant) whereby you
A. B. were convicted of (or ordered, &c.). {stating offence or the
subject of the order shortly), and abide by the judgment of the court
ui)on sucli a])i)eal and pay sudi costs as are by (he court awarded,
and unless you the said A. H. personally ai)pear and try such appeal
and abide by such judgment and pay such costs accordingly, the
recognizance entered into by you will forthwith be levied on you
and each of you. j
Dated at , this , day of , , one
thousand eight hundred and ' '
FORMS. 3!);")
'PPP.—iSectMi 8!tS.)
CERTIFICATE (»F CLERK OK THE PEACE THAT TIIK COSTS 01' AN
Al'l'EAr. ARE NOT I'AIO.
OHice ot'llu' cli'rk of the pojicc for Uio comity of
Title of the Appeal.
T lu'vcbv certify that at a court of (u'licral Sessions of tlic poju-o,
or other c(Airi (Itsrhnrijing the functions of the' court of General Semons,
as the ease maij be), liohlcn at , in and for the said county,
oiii ■ - hist past, an appeal by A. 15. ai^ainst a conviction (^or
order) of J. S., Ksijuirc. a justice of the peace in and for the Kjiid
county, came on to be tried, and was tliere heard and determined,
and the said court of (icnerul Hessions (or other court, as the case
may he) thereupon ordered that the said conviction (or order) should
bo coiilii'med (or (luashed), and that tlie said (a])peliant) should
pay to the said (respondent) the sum of . for his costs incurred
by him in tiie said ai)]ica]. and which sum was thereby ordered to
be jiaid to the clerk of the peace for the said county, on or before
the (lay of {instant), to be by him handetl over to the
said (respi;ndenl), and 1 further certify tliat the said sum for costs
lias not, nor has any jiart thereof, been paid, in obedience to the said
order, ,
Dati'd at .this day of , one thou-
sand eight hundred and
cj. jr.,
Clerk of the Peace.
(^(l^l— {Section 808.)
WARRANT OF DISTRESS FOR COSTS OF AN AI'PEAL AUAINST A CON-
VICTION OR ORDER.
Canada, "|
Province of , >•
County of , }
To all or any of the constables and other jieacc otiicers in the said
county of
^ 26
3!M) IMlACTirAI, (ll'fDE TO MAGISTRATES.
Whereas (t£-c., fl.s in the warrants of distress, BDD or EEE, and to
the end of the statement of the conviction or order, and then thus) ;
Aiul whoroas thosaid A. 15. a])|»oiili'(l to llu'conrl of (loncral Sessions
of ilu' poavc {or other court discharyimj' the functions of the court of
General Sessio)iS, as the case rnaii be) for tlic said i-ounty. against tlio
said conviction or ordir. in wliidi apjtoal the said A. !>. was the
a])pcllant, and tlio said (". I), {or J. S., I'Isqniro, llic jiistii^'of tlic
peace wlio made the said conviction or ordei') was the res])ondent,
and wiiieli said api)eal came on to Ik^ Irii'd and was hrard and deter-
mined at the hist General Sessions of the ]>eace {or other court, as the
case may be) for I he sai<l county, holden at , on ;
and the said conrt therenpon orderi'd that the said conviction ('//•
order) shonld lie contirnitMi ('jnjuashed) and that I he said (a|)pellani)
should pay to the said (n-spomlent) the snni of , for ins costs
incurred hy lum in the said appeal, whith said sum was to he ])aid
to the clerk of the peace tor the said c(mnty. on or before the
day of . one thousand eight hundred and
to l)e by him haui.ed over to the saiilC. J). ; and whereas tin' clerk
of tlie peace of the said county has. on tlu' day of
(ms^anif), 'Inly certilied that the said sum for costs had not been
paid : * These are. therefore, to command you. in Her Majesty's
name, forthwith to make distress of the ii'oods and (diattels of the
said A. H..and if. within theterin of days next after the
making of sued i distress, the said last nu'ntioncd sum. together with
the reasonable chargi's of taking and keeping the said (li>tress, are
not jiaid, then to sell the said goods and (diattcls so by you dis-
trained, and to ]iay the money arising from such sale to the clerk of
the peace for the .^^aid county of . that he nniy pay and
ajiply the sanu' as by law directed ; and if no s\udi distri'ss can ho
found, then to certify the same unto me or any other justiceof the
])eace for the same county, that sn(di proceedings nuvy be had
therein as to law apiiertain.
(liven undi'r uw hand and st'al. this da\' of
in lln' year . at , in the county aforesaid.
O. K., [seal.]
J. P., {Name of county.)
Fou.Ms. 397
]iER.—( Sec<(on .S!)8.)
WARKANT OK COMMITJIENT b'OR WANT 01" DISTRESS IN THE LAST CASE.
raiiiula,
Proviiioc of
County of
:!
To all or any ol' [\\v oonstal)k's and other [loace otKfors in tlio said
I'oiinty of . : / '
Whereas (d'-r.. as in form (iH,)Q, to the asterisk * and then thus) :
And wliereas. afterwards, on tlie di\y of , in the
year aforesaid. I. the unch'rsigned, issued a warrant toalloranyof
the peace ofiieers in the said eonnty of , eoinniandiiii.^
them, or any of them, to levy the said sum of , for eosts,
i)y distress and saU' <>{' the iroods and chattels of I lie said A.H. ; And
whereas it appears to me, as well l)y the return to the said warrant
of distress of the ])eaee otlioer who was eharged with the execution
of the same, as oiherwisi'. that the said ])eaee otHcer has made dili-
ii'ent s('ai'<di for the yoods and (diatteis ot' the said A. 15. , l)Ut that no
sntlicii'ut distress wlii'reon to ii'vy the said sum ahove mentioni'd
could l)e found : Tlie.so are. therefore, to comMUind yon, the said
jieace otlicers. or any one of you. to lake the said A, H., and him
sately lo con\ey to t he eonimon gaol of I he said county of ,
at aforesaid, and there deliver him to the said keejier
thereof, togi'ther with tiusprece]»t : And 1 do hereby command you.
the said kee])er of the said common gaol, to receive the said A. B.
into \«uii' euslody in the said common gaol, there to imprison him
(and keep him at hard laliour) for tiie term of . unless the
said sum tind all costs and charges oi' the saiil distress (and for the
conuuitment and conveying of the said A. H. to the said common
gaol, amounting to tlu' further sum of ), are sooner i)aid
unto you, the said kei'per ; and for so doing this shall be yoursutli-
oienl warrant.
(iiveii under my hand and seal, this day of
in the year , at , in the county aforesaid.
(). K.. [seal.]
J. P., (Name of county.)
3 IS PHAf'TICAI, (JiriiK TO MAGISTRATES.
SSH.— (Section 1)02.)
IJErriiN oi'foiivictioiis madi' liy iiu' (or us. ^.s the ciise may be), dur-
ing tlio (juarlci' oudiiig .IS
O
S3
O
«
c
a;
s
i5
^ <«
*; c.=
•■-rl 41
! i J c
J . s cr. .Z ,: If not paid, why not, and jipneral ob-
servations, if any.
z. -^ {<: .-H H
'51
^ .
J. S,. Convietiiig .lusticc
or
J. S. and O. Iv.. Convicting Justii-os (as the case may be.)
ADDITIOXAL FOUMS.
JIDUMENT OF AFKIIIJIANCE. ON AN APPKAL A(iAIN.ST A fONVICTION.
Canada ^]
Province of . >
County of , J
At (Describe the (^ourt appealed to) hold at on the
day of ill the year of our Lord, 1811 , before
J. W, of in tlie (cmmty) of aforesaid,
(farmer) entered an appeal to and against a conviction under the
ADDITIONAL FOHMS. 31>'J
hand iind seal of J. 8., Esquire, one of llor Maji-sty's justices of tho
peace, for the county (or district) afDrcsuid. dated and made the
(hiy of IS!) , for (Here state the o(f'ence as in the
convirtioh) , and hy which said conviction, lie tiie said ,1. S. did ad-
judge that the said .F. ^V. sliould, for tiie said olfence, forl'eit the
sum of together with for costs, and did order
the said sums to be paid l)y the said J. W. on or before the
and that ii\ default of payment on oi- lieforc tliat day, he tlie said
.1. S. did \)y the said conviction, adjudge the said .1. W. to be im-
prisoned in the common gaol at in the (county) afore-
said for the space of unless the saiil sums should be
sooner paid (and no on, giving the terms of the conviction.)
Now, therefore, at the said court so holden as aforesaid, upon
hearing the saiil apjieal, it is here okoeued and adjudueo,, i)y the
said court tliat the said conviction be and the same is iiehehv, in
all things, affirmed, and it is now, here, by the said court kubtiier
ordered and adjudged that the said .F. W. be dealt with and pun-
ished according to the said conviction, and also that he the said
.1. W. do and shall i)ay to the said . the respondent
in the said appeal, the sum of the amount of costs sus-
tained by the said and b}' him incurred by reason
of the said appeal, and now by the said court, here, adjudged
to be paid to him by the said J. \V., according to the statute in
such case niade and provided.
writ of certiorari to a justice of the peace, to retlrn.a
conviction.
Canada, ") Victoria, by the Ch-ace of God, of the
Province of , ;. United Kingdom of (Ireat Britain and Ire-
County of , J land, (^UEEN, Defender of the Faith.
To one of our justices, assigned to keep our
]ieace, in and for the county (or district) of and also
to hear aiul determine divers offences in the said (county) com-
mitted qreetino ;
We, being willing for certain reasons that all and singular records
of conviction of whatsoever trespasses and contempts against the
400 PRACTICAL GUIDE TO MAGISTRATES.
Criminal Code of Canada (^or against the Ibrm of a certain siatute,
etc.), whoroof C. D is lief'oro yon convicted (as it is said) be sent by
you before ns, do command yoi; that yon send nnder your hand
and seal before the Jlonorable in days
from (^or immediately on the receipt of this writ)
all and singnhir the said records of conviction with all things
touching the same,, as fully and perfectly as they have been made
by you and now remain in your custody or power, together with
this our writ, timt we may further cause to bo done therein what
of right and according to law we shall see tit.
In WITNESS witEKEop, WE liuvc causcd the seal of our court
of to be hereunto aflixed at our (city) of
this day of in the
year of our reign ,
Clerk of the Crown.
CERTIORARI — RECOGNIZANCE.
Be it remembered, that, on the day of in
the year of the reign of Our Sovereign Lady, Yictoeia.
(etc.), (J. ir. of {merchant), and M, \V, of
[gentleman) came before me. .1. S., Esquire, one of the keepers of
the peace and justices of Our Lady, the (^ueen, in and for the
(county) of and acknowledged to owe to Our Sov-
ereign Lady the Queen the sum of to be levied upon their
goods and chattels, lauds and tenements to Ilcr Majesty's use, upon
condition that if C. D. shall prosecute with eli'ect, without any
wilful or atfected delay, at his own i)roper costs and charges, a
writ of certiorari issued out of the court of our said
Lady the Queen, at to remove into the said court
all and singular the records of conviction of whatsoever trespasses
and contem])ts against the Criminal Code of Canada (or against the
form of a certain statute efc), whereof the said C. D. is convicted
before me the said J. S., and shall pay to the prosecutors vnthin
next after the said record of conviction (or order)
shall be confirmed in the said court, all their said full costs and
ADDITIONAL FORMS. 401
chiircjos lo 1)0 taxed iiccording to the couvho of the said court, tlien
this rocognizaiice to he void, or else to remain in full foree.
Takkn and aoknowledged the day and ') Cr. II.
year aforesaid, at hofore >■
mo, 3 M- ^•
J. S.
Note. — A hlank recognizanee is usually transmitted with tho
writ of cer^'oran from the otiieo of the court issuing it. and when
taken and acknowledged the recognizance is returneil with tha
writ.
If tho conviction he quashed, the recognizance is cancelled by
being struck through, and is marked, in the margin "discharged,
because the conviction is quashed."
HETURN TO A WRIT OP CEKTIORARI BV A JUSTICE OK THE PEACE.
(To be endorsed on the Certiorari.)
The answer of one of ller Majesty's Justices assigned
to keep tho peace in and for the county (or district) of
Tho execution of this writ appears in tho schedule hereunto
annexed.
Justice of the peace.
(The following to be written as a separate document.)
I, one of the keepers of the peace of Our Lady
the Queen, assigned to keep the peace within the said (county) of
and to hear and determine divers ottences com-
mitted in the said (county), by virtue of this writ of certiorari to
me delivered, do, under ray seal, certify unto Her Majesty, in Her
court of , the record of conviction of which mention
is made in the said writ.
40li I'HArrlrAI, OITDK to AfAUrSTIlATKH.
In -wirNRss wiierkhk. I llu-said luivo to (licsc
preson'.s sot my wal.
GiVBv iit in the siiid {county) this i\i\y
of ill llu" vi'iir ol' our Lortlj'lS'.t
{Name of convictimj ma<jisfrate.)
[L. S.]
NOTK. — 'Piu' cotivii'tioii is (() Ik- iiiiiioxrd to t lie writ and returned
along with it, imt not tlie inforimition or depositions.
WlUT OK llABKAS roUI'lS AH SUIt.l icr EN PIM.
Canada. ~\ Victohia, lp_v tiie (iraee of (iod. of the
Province of , >• Tnited Kin^chun of (ireat Mritain and
County (or District) of } liehiiui, (i>i kkn. Oefender of the Faith.
To the kooners of our common gaol for our county {or district)
of or his deputy or dejmties, and to eacli of
them (iRKKTtNU :
\Vb co.\imani> Yoi; that you have hofore tlie IConorahle
for at the Judges' Chanihers in the Court House
in our (city) of immediately after the receipt of this
writ, the hody of being committed and detained
in our prison, under your custody (as it is said), together with the
day and cause of the taking and detaining of the said
by whatsoever name the said be called in the same, to
undergo and receive all and singular such things as our said
shall tiicn and there consider of him in that behalf, and that you
have then and there this writ.
In witness whereof, we have caused the seal of our Court of
Queen's Heneh for Lower Canada (or, as the case may be) to be here
unto affixed, at our (city) of this day of
in the j*ear of our reign.
Clerk of The Crown.
TAHLB <)K NON-INl>I0TAni.E (>I-'KEN»"K8.
4i):i
TAHLK OK XOX-INDICTAlVIil-: OKFKXOKS rXDKR
TIFK CODK.
With tlie exception of tiiose Hiwciully noted as beinj; triable by indii;tment
fl8 well am suniinaril}', all the otl'ences in tliiH li.st are iioii-iiulictuble
512
501
513
307
332
333
265
Ai2
515
514
476
477
UFKKNOK.
ANIMALS.
Cruelly to
Irjiincs to iiiiimiiU (
tieliiK ciittli.') (I)
PrNISIIMKMT.
I'eniilty .>i5(), nr 3
niontoH, with
without ti. I. or
both
10 or 3
nil or
KecpiiiK cock pit
(,,„, rl'ei.alty *lll
"' 'h mm.ilw w
5 ; wulioMt li.
r
KilliiiK ilo(!s, birds, etc.,
with inluiit to .itcal the
i<kiii, pluiii»Ke, ct)
Killing or taking pigooiia .
ASSAUr/r.
Common assault (I)
BANK NOTKS, ETC.
Printing or ii-ing circulars or
business cards in the like-
ness of
UATTLB.
Refusing Pence Offlcoradmis
eion to cattle car, oto
Violating provisions as to con
veyaticeof cattle ,
CO NAGE OFFBNCES.
Manufacturing or import-
ing uncurrent coiiper coin
Uttering defaced coin.
]
Uttering uncurrent copper !
coin ■... .... 1
J
Peiialtv iS '0 or
inonihs, (l)csid<
lorleiturc , . .
Penally $-JII (.!) or
one luonili will,
h. I. , 2nil otVcnce,
three months Willi
li, 1
I'enalty iilii (3). ..
:i2() tine or 2 mos
impri>onm'iit willi
or nittiout li. 1
Fine, $100. or 3
months, or bulb.
I'enalty S2i', or 3ii
days
Two Justices .
One Justice . .
Two Justice,".
One Justice-
do
Penalty $100.
IRURLRRKFURR
Penalty $20 for
every pound ; be-
sides forteituro. .
Penalty $10
Peimlly double the
nomiiiil value ol
the coin or eight
days
One Justice. .
Two Justices
One Justice.
I.lMITATtON.
3 months ( Art. 551()
'S\x months (2)
|3 months (Art. 551. •)
Six months
do
do
Two Justices.
One Justice. .
do
do
do
3 months (Art. 551<)
3 months (Art. 551()
Six months. (2)
do
do
(1) This otfence is, under Art. 501, indictable, when committed after a previous conviction.
(2) Art. 841 limits (in all ofces not otherwise limited) the pro..ieculion of summary offences
to SIX uoNTHS, except in the N. W. T., where the limitation in such cascSi when not other-
wise provided for, is twklvb months.
(3) In addition to the value of the animab bird, or article in nuesti< n.
(4) Th B may be irosecutcd cither by indictment or sumumrily.
4U-1
PRACTICAL <a n>K TO MAGISTRATES.
TABLE. — Continued.
ART.
521
521
521
522
6'.'2
110
103
105
111
117
107
108
100
117
116
106
106
75
74
PU.NISHMKNT.
CRIMINAL BREACHES OH
CONTRACT.
By individuiiKs (1^
By Municiiial Corporat'n.'i (1)
l!v Kaihviiy Coiiipiiiiii'S. (1)
Municipal Corporaticin or
Company failinR to po<t up
the provisions of Art. 521
Injuring copy of provisions
when posted up
DANGEROUS WEAPONS.
Carrying any bowio knife or 1
other H'ensive weapon 1
I
J
Carrying any oft'ensive wea- |
|)on publicly - j
Carrying a pistol or air-gun r
Carrying sheath knives . . .
Concealing weapon in or
about public worlis
Having weapon when nr- (
rested I
Having weapon with in- !
tent to injure any one. f
I
Pointing an.\ lire uriu at I
any one. [
Possessing weapon ne.-ir pub-
lic workt^ ....
Selling anus-' in N. W. T
Selling pi,>^tol, etc., to a
minor under 16
Selling pi.-^tol, etc., without
keeping rieord
DE6EKTERS.
Enticing militia or mounted
Iiolico men to du.<crt
Resisting warrant fordcsert'rs
triahlkhkkurkI limitation.
Fine $100 or3mo8.
with or without h.l' Two Justices
Penalty $U)o I
Penally $10U .
do
do
Penalty $20porday|0no Justice.
Penalty $10 iOne Justice.
Penalty S.'iii (not
le>s than .•Jid). In!
default of pay-i
luent SO days wiih;
or without hard'
I labour .... Two Justices.
l.*10Uue. In default I
I of pa.Muent thirty
days do
l$i'") tine (not less
than j; ), or one[
luiinth One Justice . .
,^tu (not loss than'
$m. In def;uillj
'M days with or'
without h I Two Justices. .
Penally ,$100 (not
le.«s than $Hi. .. ,Oiio Justice. • ■
.■*i01incnr ,S months
with or without
li. I Two Justices .
Penalty $-Mt (not
le.'^s than $ 0), or
6 months with or
without, h. I d'i
.■SlO.l (not less than
.slO), or ,3i days
with or without
h.l do
Penalty $1 each
weapon >ne Justice- ■ •
.ii2'i0 fine or 6 mos.
or both I Two Justices..
$50 fine lOne Justice. ..
$25 fine.
i months with or
without h. I —
$80 penalty.
i
do
do
Two Justices.
■^i.t months-
do
do
do
do
1 month (Art. 551/)
1 month (Art. 551/)
1 month (Art. 551 /)
I month (Alt. 551/)
iis months
1 month ( Art. 5")1/)
do
do
Six months
do
1 month. (Art 551 f)
do
Six month*
do
(I) This may be prosecuted either by indictment or sumia:irily.
TABLE OF NON-INDICTABLE OFFENCES, 405
TABLE. — Continued.
ART'
200
199
200
203;'
203''
177
352
523
119
118
OPKRNCE.
DISGRDKRLY HOUSE.
Wilfully preventing, ob- i
structinK or delaying ofii- I
cer entering (
(See Vagrancv.)
FIRE ARMS.
(See Daxukrous wkapons.)
(lAMBLINO.
Playin
PUNISHMKNT
TRIAHLK BKKORR
Penalty SKX). and
months, with or
without b. 1 Two Justices.
Six months.
laying or looking on at p'ay Penalty $10" ; In
in a gaming house ' default2 inonths'J
ir;ir.,ii.. ^1. .i *.• -_ j_ / n u.. .r.inn „„ 1 ,'
n
IS Two Justices.
Wilfully obstructing or de
laying officer enteri
I gaming house, etc
(See Vagrancy.)
ig or de- 1
tering a <
8 (
Penalty $100 and (i
months wilh or
without h. 1 Two Justices.
Railway or Steauiboa t Com- 1
pany ntgleotingtopostup I Penalty $100; not
in their conyevanoes the i- less than $20 iCivil Court(See
Art. 929)
provisions of Art. 203 1
against gambling J
Railvvav or Steamboat olli- 1
cer neglecting to arrest '
persons Kiim')ling in their ',
conveyances J
INDECENT ACTS.
Penalty .■iUKi: noK
less than $20. ...One Justice.
which thel !s'iO,
In any place t
public have access or in [
(1111/ place with intent to '
insult or oH'end any one.. J
INDIAN GRAVES. 1
riPonalty .■^lOO,
Stealing or Injuring things ! 3 montii".
in '
fine, or sii
niontlH, wilh or
without h !.. 01
both I'wo Justices.
or
•?n<l
oftiiiri, sit)) and!
C months, h. 1 — One Jastice. ..
INTIMIDATION.
Fine, $10(1. or 3
By violence, picketing, lie. (1): month." with or
I without h. 1 Two Justices.
Of Wheat Dealers, Seamen,
etc. (1) Fine. $lllO, or 3
months with or
without h. I.
INTOXICATlNt} LIQUORS.
Conveying cm board H. M's.'SSO fine: 1 monlh;
ships ! n ilcfiinlt '
( \Ui ■■fl'inir: I'enaltV;
I I $10 iind costs. Ill
I lielault, 3months.
I {Krfrii Oirllii r njTfti-
■i VI : samepemiliy;
andimprisonm'nt
in defauit.togeth-
er with a lurtherl
imprisonment of
6 months,
do
do
Selling, near public works-
LIMITATION.
One Justice.
do
do
do
do
do
do
do
do
do
do
(1) This may be prosecuted either by iiidiotuient or summarily.
400
PRACTICAL GUIDE TO MACIISTRATKS.
TAHLE. — Continued.
ART.
382
382
485
510
607
491
507a
5)1
508
509
486
25S
457
93
94
95
OFKBNCK.
PUNISHMENT. . TRIABLE BKFORE!
LIMITATION.
MARINE STORKS. |
!
Buyinir murine stores from
|ier.«oii.s uinlcr si.itoen
Receivinu iniirine stores be-
tore sunrise tr after sunset.
MISCHIEF. j
FiislenirR any vessel, ete., toi
a buoy, etc,
IiijurioK cultivated roots,)!
etc ^(
lujurint? fences, etc
Ponnlty i5I. 2n(l;
".l>'' iici , $0 One Justice.
Penalty, .-?5. 2n(l
(tlt't ncr, j,~ Jo
InjurinK gooils, ctcin rail-
wiiy stnliiin. etc.
tent to steal.
0.. in rail- i
..with in- <
Injuring haibor bars
Injuries not ollierwise pro
vidcd for.
In.iurinir trees, etc.. where- )
.>ioevcr (.'rowing, (1) ^
IrjuriuK vcKetahlc produc-
tions in gardens, etc., (1).
Reckl'sslys'tting tire to forest
etc., on Crown doiuainj U)
NE(!Lt(JENCE.
Leaving holes in ice, or e\- |
cnvHtions.elc., unguarded i
OFFENSIVE E.APON.^^.
(See Damjkrous wkai'ons.)
PERSONATION.
At a"y qualifying or competi-
tive e.xamiiMitioii (.'>)
Peinilty silO, or one
iniintli
Penally;i;5.('2) ornne
inonih. 2nd ".il'i ii-\
•■r,:i moiillis h.l I
l'eii:ilty,-i;2(l. (.')2:Hli
iilt'i'Hfc, S U)oiith.-l
h. I !
Penalty ^?20. (aliovel
valueofinjuryjoi'
1 month (with or
I with'th.l.orboth
Penalt> .iioO
Penalty 1*20 (2) . .
Penally $25, (2) or|
■-' monttis. 2nd </-
h llrr. 3 MIOIltllg
I'einilty $20, (2) '2
luonihsin detault
I
Fine .S5<1. In de-
fault, <i months. .
Fine or imprison-
ment, .vitli or
without li. I., or
both
One year, or .iilOO
tine
PRIZE riiillTING.
Challenge to prize fight ■ .
Principal in a priie fight.
Attending prize tight.
$10f)Oliiie (not leas
I than Slfii); or 61
, months (with or
without h. I.) '-r
I both
itine year with or
witlioiit h. I
'$50(1 tine (not Icr
than is'iO) or on*
year (with or
witfiout b. I. or
both
do
do
do
do
do
do
do
do
do
do
ilo
do
do
; months
do
do
do
do
do
do
do
do
do
do
do
do
do
do
do
(1) ThisotTouce is indictable i( cuinmilted after two previous oonvlotioni'.
(2) Ihis is in atlditlon to the amount of injury done.
(4) See note (4) at foot of p. .;07, opposite.
Aft.
97
9tt
388
389
o87
173
316
391
390
TABLE OF NO.\-[NDICTAIU,E (IKKENCES. 407
TABLE. — Continued.
PUNISllMKNT.
TRIABLE nKfORKl
LISIITATIOX.
Finht on a quarrel . . IlischarRc, or S"'i
i line One Justice. ..
I \$i > ' ('Kll k'S'i til, I II
Leiiviiic Ciiniiilii to attend ' | .S">ti), or ^'' niontli.'-
II |>ri/,') iiKlit ]j witli or Wilhoul
I h. 1 : do
PUBLIC STOKES. i
Six
Not sntisfyiii!: Jnslioe of |
lawl'iil i)os.<ii"^ion of 'Fine !?'-5
Uiil»wrully (IreilKing fori
stores iFine siiS, or S in'.s..
I'lilinviully i)0>se.ssin(!: public |
store.-^ nut c.xceeiiing the I
value ot .ri.'n (1) •■■ Fine .'JlOli. ort)nio.<i.'
withorwilhouili.l
r UIJLIC WOHSUIP.
I Di-turb.incc of S.S Mine. One montli
I ill default
iRECEIVINd. I
months,
do
o
do
do
One Justice . Six mopllis
Cwo Justices.,
do
Anytliine unlawfiillv oh \
t.'iineiltliesieiiliiiuiif which I
i.'i imnishalile ."iiinniarily Siiine puiiisliiucnil
ii.< for .-iteuliiiK it.' do
Ncces.sari»8 from M»riiie or
I'eserterlS) Penalty .^I2n;()in()s.-
in defiiiill .. .! Iwo Justices
Ueitiinentiil necessaries (^).. Penalty SH-. or Ki;i|
mouths do
(•'ee .MaKink St.iRK.s.)
(SeeSKAMAN'.sl'KOfKR >.)
(••^ee I'l Hl.Ki SrotlKs.) I
( See Wiii-.rK.) I
do
du
do
342
330
311
340
SMA.MAN'.-^ PKOPKItTY. |
Not satisfy initJu.«t ice of law-:
fut posses 'ion of Fine Si.^
Heceivin.. by purc.n.se. } ''«X;::ef' "k:.,^;;'
exchlln^'e, or pawn (,•»... ^ j.,„ , ^^'^j^' ,„,,,^-
.STBALIN'). !
Cultivated ron,., etc.. in | ''"onfuumUi •"*-nd
l.nd not being a garden, numtli . „n(l
«fc I
Fences, gates, etc
8 monthr
11 Pen
]\ oil
^ h.
otfeiie
h 1
PenKlty $20 ((i> ; "Jo
olTencc, 3 month!'
h. 1
(iar len plants, fruits, etc (7. Penalty $-0 (fi) or 1
month
Not satisfying Justice of law
iiil possessi'in of liee, etc Penally ^1" Hi)
i Penalty $ •'i. ('!) 2i\
Trees, etc , worth 2'c at least I ott'eiice 8 months
(1) (Seep 4(lti, opposite.) ( h. 1 . ■•■
(See I.Mil . tiRAVKs.)
One Justice
do
do
do
do
do
do
uionihs.
du
do
do
do
du
do
(.->) This olfence is iiidielahle when the value 'S over 3>2i.
(4) This is an indictable offence, but inii.V be dealt with by the magistrate, suiuiuirily
when (lie eonseciuenccs have not been serious.
(5) This is also indictable
(6) This is in addition to the value of the article in i|Ucstion.
(7) Thia ulVunoe, when cominiitcd after a previous cuuviotiun, is indlotuble.
408
PRACTrOAT, (HIDE To MACUSTRATES.
TA « L K . — Continued.
ART.
Ill KKNTK.
pi'XisnMKNr.
TRIAULR BKPORK
TRADE MARKS.
451 Falsely represent iiiKBoodcn*
I iniii-utMctiirc'(I for ller.Mii-
j jesty or :iiiy (jovernineiit. I'ciiiilly SH'O,
( Koiir Mioiitlis, or
460 Offences iipiiinst I lie iirovi- I .-'■lOd line: 2iiii of-
.«ioiis ol I'lirl XXX 1 11 MS ] t'cMce. ti rims, or
to Trade iMarks. (1, I ,S-Sl) fine, liesides
1 1 lorlciliiro
4i2 Unlawfully imiiorting gooiU'
liiilije 10 I'drlViliire under IViialtv >;.'i'(i \ for-
i I'artXxXIll kidire (.1 Koods .
IVAOIIANCY.
Inclu<ling publicly exposing 1
indecent .-liow, In Kuini-',
loitoriiK, sweiiiinjr, beiiiK
I drniik iinddisiirderly.ele.
I ill strci'l. (Irl'aeirm siiri 8,
lireiiUinpr w'lidows, etr.,
2flT ) eoiuinon pruwitnti.in.
r(i8 S iiiplit walkiiiu'.eu'.. kei'p-
I.IJIITATIOX.
Olio .Justice. . . Si.\ inoiitlis.
do
do
.f")''(inc,or liiiioiillis'
(Willi or wiiliiiui
li- I.), or liolli .. Two .lu.-'ticc?.
iiiK or biiii); inmate of
or Creiiiientiiiir illMinli^r-
ly liouses, liviiic liy
KainiiiK ">■ criiiio or by
the avails ot i rostitution
i
496
381
WllIXK. !
Pni.illv $m, or (!
PreveiiliiiBSavinn of. (1)... iimmlis with or
will t li. 1
yecreling, or rcceivinj;, or
keeping wreck. (1) do
o
do
dr
do
do
(1) Tbi8 in also inuictable.
BECOGNIZANCES. ' ' ". 409
CllAI'TKIi XIV.
(Part LI A. of the Codr.)
<
HKfMKiNIZ.VNCKS.
!M(>. Uvinlor oi" A<'<'llM'd hy Nlirt't.y.— Any surdy
lor iiiiy person oliiiri^cd witli any indictalik- oH'cMot' may. ujion
jiHuhivil sliowinii- tlic ^-rounds llu'i'ffoi'. willi a ccrlitii'd copy ot'llu-
vccnirni/.ance. olitain Irom ajudifoof a Superior Court or from u
judge (d' a Counly Court Iiaving eriiuinal Jurisdietiou, or in tho
pvovinci* of (Juidx'e from a district nia.n'istrate. an order in writina;
under his liand. to render suidi jiersou to tlie common _ua(d of llie
connl\' w iiere ilie olleiice is to lie tried.
2. 'I'lie suri'ties. nndt'i' su(di order, may arrest su( li person, and
deliver lum. witli tlie ordei', to I lie gaoler named tlierein. w lio shall
receive and impi'ison him in the said ,i;'a(d. and shall he (harti'eil
with the keeping' of smdi ]iei'son until lie is dis(diarij,'ed i)y due
(■(Uirse ot' law. (1 )
fill. Ilsiil al'lt'l* Ifi4'il4l«>l*. — The |ierson rendered niay
apply to a Judi;H' of a Supi'i'ior ( 'ourt or in cases in which a Judgo
of a ( "onnty ( 'oui't nniy admit to hail, to a Judge of a ( 'ounfy ( 'ourt.
to he again admitted to liail. who may on examination allow or
r(d'use t he .^anie. and nnike such order as to the nundier of tlu^
sureties and tlie annnint of the recognizance as he deems nu'ct. —
wlnidi order shall ho dealt with in the same numner as the tirst
order for hail, and so on as often as the easi* ri'ipiires.
!>|t2. lliN4>iinr(>'«' of Ifi«>«*4»i;>-iiixaii4«4'. — On due proof of
such render, and certiticate of tlu^ sheritl'. proved hy tim atlidavit
of a suhserihing witness, that su(di pei'son has heen so rendered, a
Judge of the Superior oi- County Ctiurt, as the case may he, shall
ordi'r an entry of su(di render to he maile on the reeognizaiu-i' hy
(1) See Form of Information of Snroty aj.'ainst a person bailed under Part
XI, V of the Code, and Forms of Warrant and Commitment (hereon, at pp.
L'47-li-l!», <nilc.
410 PRACTICAL (UIDK Ti> MAUIlSTKATKS.
tlio oflic'ci' ill oliiirw tlieivof. wliicli sliall vacate tlu- rccosriiizanco.
and may Ik' |)lva(l('(l or alU-gcd in discliarm' tluTcol'.
l»i;$. KoikIoi* in t'oiirl.— Tlic suivtics nniy liriny- thu
|R'i'S(>n cliarift-MJ as atorcsaid into the court at \vhi<di lie is hound to
appear, during tlic sitting thereof', and tlu^n. hv leave of the court,
render iiini in discharge of sucli recognizance at any time hefore
trial, and ^such person shall he committed to gaol, tliere to remain
until discharged hy due course of law ; hut suc!i court mav admit,
su(di i)erson to hail for his ajipearance at any time it deems
meet.
Ill 1. NiirotioM not ]>iN<*liar;i;«'<l l»,v Arraign in cut
Ol* Conviction. — The arraignment or conviction of any pei-soii
charge(l and hound as aforesaid, shall not discharge the i-ecogniz-
ance. hut the same shall he ellectual for his a|ipearance for trial or
si'nteni'c. as t he casi' may he ; ncvi-rtheli-ss tlu' court may comniil
su(di person to gaol upon his arraignment or ti'iai. oi' may rccpiiro
ni'w Ol- additional sureties for his appearance for trial or sentence,
as the ease may he. notwithstanding siudi recogni/.ance ; and such
comniitment shall he a discharge of the sureties.
!>■•>. Ki^lit <»f*Niir<'t^ to K«>n«l«>r n4»t AtiVctod. —
Nothing ill the foregoing provisions shall limit or ri'strict any
right which a surety now has of taking and rendering to custody
any person (harged with any suidi ollence. and for whom hv issiu h
surety. ^_ _
tllO. fiiitr.y of FincN cVc. on K<M'oimI aiiid Kc-
«'OV«'P;i' Tii«'r«*of. — Unless otherwise provided, all tines, issues,
amercements and fortV'itedrecognrzances, the disposal of which is.
within the legislative authority of the I'arliament of Canada, set,
imposed, lost or forfeited hefoiv any court of criminal jurisdiction
shall, within twenty-one days afti'r the adjournment of such court
he fairly entered and extracted on a roll by the clerk of tin' court,
or in case of his death or ahseiice. by any other per.son. under the
direction of the judge who presided at such court, which roll shall
bo nunle in du])licate and signed by the clerk of the court, or in
ease 1)1' his death or absence, by such judge.
2. If such court is a Superior Court of criminal jurisdiction one
RECOr.NIZANCBS. , 411
ot'Huch rolls shall be filed with the clerk, prothonutiry, registrar
or other proper officer — V •
(a.) in the province ol' Ontario, of a division of the High Court
of Justice ; > ^
(6.) in the provinces of Nova Scotia, New Brunswick and British
Columbia, of the Supreme Court of the province ;
(c.) in the province of Prince luhvard Island, of the Sui)reme
Court of .ludicature of that province ;
(d.) in the province of Manitoba, of the Court of Queen's Bench
of that province ; and
(«.) in the North-west Territories, of the Supreme Court of the
said territories, —
on or before the Hrst dav of the term next succeedins; the court
by or before which .such tines (tr forfeitures were imposed or for-
feited.
'A. If such court is a court of tieneral Sessions of the Peace, or a
County Court, one of such rolls shall remain deposited in the office
of the clerk of such court .
4. The other of such rolls shall, as soon as the sanie is ]>reparcd,
l)c sent by the clerk of the court making the same, or in ca.se of his
death or ab.sence. by such Judge as aforesaid, witii a writ ul' fieri
facias and capias, according to the for.m TTT in schedule one to
this Act, (1) to the sheriff of the county in and for which such
court was holden ; and such writ shall be authority to the sheriff
for pi'oceeding to the immediate levying and recovering of such
tines, issues, amercements and forfeited recognizances, on the goods
and chattels, lands and teiuMuents of the several persons named
therein, or for taking into custody the bodies of such persons res-
pectively, in case sufficient goods and chattels, lands or tenements
cannot be fouiul, whereof the sums required can l»e made ; and
every person so taki'U shall be lodged in the common gaol of the
county, until satisfaction is made, or until the court into which
such writ is returnable, upon cause shown by the jiarty, as hereiti-
after mentioned, makes an onU-r in the case, and until such ordei-
has been fully complied with.
(I) For Form TTT, see p. 4 is, ponl.
27
412 PRACTICAL OriDE TO MAQISTllATES.
5. Tht' clerk of the court shall, at l\w foot of eacli roll made out
an heroin directed, make and take an atfidavit in the following
form, that is to say :
*J, A. li. (describing his office), n\ake oath that this roll is truly
and carefully made up and examined, and that all tines, issues,
amenHmients, recognizances and forfeitures wliich were set, lost,
imposed or forfeited, at or by the court therein mentioned, and
whicii. in righr and due course of law, ought to be levied and paid,
are, to the best t)f m}' knowledge and understanding, inserted in
the said roll ; and that in the said roll are also contained and
expressed all such tines as have been paid to or received by me,
either in court or otherwise, without any wilful discharge, omission,
misnomer or defect whatsoever. So help me God ; "
Which oath any justice of the peace for the county is hei-eby
authorized to administer,
917. Officer to Prepare liiiitN ot'PerNoiiN under
KeeojriiiKaiiee iiiukiii}}; Default. — If an}- person bound
by recognizance for his a{)pearance (or for whose ap}»earance any
other person has become so bound) to prosecute or give evidence
on the trial of any indictable ott'ence, or to answer for any common
assault, or to articles of the peace, makes default, the otticer of the
court by whom the estreats are made out. shall prepai'e a list in
writing, specifying the name of everj^ person so making default,
and the nature of the ott'ence in respect of which such person, or
his surety, was so bound, together with the residence, trade, ])ro-
fession or calling of every such person and surety, — and shall, in
such list, distinguish the principals from the sureties, and shall
state the cause, if known, wh}' each such person did not appear,
and whether, by reason of the non-appearance of such person, the
ends of justice have been defeated or delayed.
OlS. Proceed in)r on Forreited Kecog;nixance
not to be taken except hy Order of Jud|^e, 4kv, —
Every such officer shall, before any such recognizance is estreated,
lay such list before the judge or one of the judges who presided at
the court, or if such court was not presided over by a judge, before
two justices of the peace who attended at such court, and such
RKOiHiNIZANCES. 413
judge 111' Justices shall oxiiiniiio suc-h list, ainl iiuiko .such order
touching the estreating or putting in process any such recognizance
as appears just, subject, in tiie jtrovince of (Quebec, to tlie ijrovisions
hereinafter contained ; and no officer of any such court shall
e.streut or put in process any such recognizance without the written
order of the judge or justices of the peace l)ofore whom respectively
such list iuis been laid.
1>lfl. Ko<*o){iiixiiii(*o iircfl not be .Kstrcated in
(Vrtlliii 4'aNl'N. — Kxcei»t in the ca.ses of persons bound by
recognizance for their apiiearance, or for whose appearance any
other per.son has become bound to pi"o.secute or give evidence on
the trial of an}' indictable otfence. or to answer for any common
a.ssault. or to articles of the ])eace, in ever}' case of default whereby
u recognizance becomes forfeited, if the cause of absence is made
known to the court in which the person was bound to appear, the
court, on consideration of such cause, and considering also,
whether, by the non-a]ipearance of such person the ends of Justice
have l)een defeated or delayed, may forbear to order the recogniz-
ance to be esti-eated : and, with respect to all recognizances es-
treated, if it appears to the satisfaction of the judge who presided
at such court that the absence of any person for whose appearance
any recognizaiue was entered into, was owing to circumstances
which ren<lered such absence justitiable. such judge may make an
order directing that the sum forfeited upon such estreated recog-
nizance shall not be levied.
2. The clerk of the court shall, for such purpose, before sending
to the sheriff any roll, with a writ of fieri facias and capias, as
directed by section 91G, submit the same to the judge who presided
at the court, and such judge may make a minute on the said roll
and writ of any such ft)rfeited recognizances and tines as he thinks
fit to direct iu)t to be levied ; and the sherilf shall observe the
direction in such minute wi-itten upoi\ such roll and writ, or
endorsed thereon, and shall forbear accordingly to levy any such
forfeited recognizance or tine,
»30. Hnlv of* liiindN hy Nlierift Under Kstreated
Keeo^nizanc'e. — If upon any writ issued under section 916,
the sheritt' takes lai|ds or tenements in exeution, he shall advertise
414 PRACTICAL (JUIDE TO MAOtSTRATES.
the same in like maiuu'r us he is required to do before the sale of
lands in exeeution in other oases ; and no sale shall take plaee in
less than twelve months from the time the writ came to the hands
of the shi'ritf.
9S1. l>iM<*liar)i;«' Iroiii CiiNtod;)' on 4iiiviii|>; Hv^
vuriiym — If an\- i)erson on whose goods and ehattels a sheritf,
bailiff or other ottieer is authorized to levy any sueh forfeited lecog-
nizance, gives security to the said sheritf or other oltteer for his
ai»])eaninee at the return day mentioned in the writ, in the court
into which such writ is returnable, then and there to abide the
decisicm of such court, and also to ])ay such forfeited recognizance,
or sum of money to be jDaid in lieu or satisfaction thereof, together
with all such expenses as are adjudged and ordered by the court,
such sheriff or otHcer shall discharge such person out of custod}
and if such person does not appear in pursuance of his under-
taking, the court may forthwith issue a writ of fieri facias and
capias against such person and the surety or sureties of the person
so bound as aforesaid,
1I2S* UiNvliarj^e of ForlVitod K('c*o^;iiixuiice. —
The court into which any wi-it of fieri facias and capias, issued
under the provisions of this part, is returnable may inquire into
the circumstances of the case, and may in its iliscretion order the
discharge of the whole of the forfeited recognizance, or sum of
money ])aid or to be paid in lieu or satisfaction thereof, and make
such order thereon as to siu-h court aj)pears just ; and such order
shall accordingly be a discharge to tlie sheritf, or to the jnirty.
according to the circumstiinces of the case,
»a:i. Kotiirn of Writ by Nli4>rift The sheritt to
whom any writ is directed under this Act shall return the same on
the ilay on which the same is made n'turnable, and shall state, on
the back of the roll attached to such writ, what has been done in
the execution thereof; and such return shall be filetl in the court
into which such return is made, <
924. Koll uikI Kt'tiirii to be TraiiNiiiittcd to
Minister of Finance. — A copy of such roll and leturn,
certitied by the clerk of the court into which such return is made,
' RB0OONIZANCB8. — QUEBEC. 415
sliull be forthwith transniilted to tho Minister of Finance and
lloeeiver-deneral, with a minute thereon of any of the Hiuns tliere-
in mentioned which have been remitted ijy order of the court, in
wliole or in part, or directed to be forborne, under the authority of
section 1)19. • .
935. Appropriation of .Tloiicy.*! €'Oil<>ott>(i by
Niierilt. — Tiie sheritf or other officer siiall, witliout delay, i)ay
over all moneys collected under the pro'.isions of this part In him
to the Minister of Finance and UeceiviM'-General, or other person
entitled to receive the same.
tl2tt. €|lH'i»ef.— The provisions of sictions !>16, !H!t to 924,
both inclusive, shall not apply to tho province of Quebec, and the
following provisions shall apply to that province only : i ;
2. Whenever default is nuide in the condition of an}' recogniz-
ance lawfully entered into or taken in any criminal case, proceed-
ing, or matter, in the province ok Quebec, within the legislative
authority of the Parliament of Canada, so that the penal sum
tlierein mentioned becomes forfeited and due to the Crown, such
recognizance shall thereuj)on be estreated or withdrawn from any '
record or proceeding in which it then is, or, — where the recogniz-
ance has been entered into orally in open court — a certiticate or
minute of such recognizance, under the seal of the court, shall be
made from the records of such court ;
(a.) Such recognizance, certiticate or minute, as the case may
be, shall be transmitted by the court, recorder, justice of the peace,
magistrate or other functionary before whom the cognizor, or the
principal cognizor, where there is a surety or sureties, was bound
to appear, or to do that, by his default to do which the condition
of the recognizance is broken, to the Superior Court in the district
in which the place where such default was made is included for
civil purposes, with the certificate of the court, recorder, justice of
tho peace, magistrate or other functionary as aforesaid, of the
breach of the condition of such recognizance, of which and of the
forfeiture to tho Crown of the penal sum therein mentioned, such
certificate shall bo conclusive evidence ;
(6.) The date of the receipt of such recognizance or minute and
certificate by the prothonotary of the said court shall be endorsed
416 PRACTICAL GUIDE TO MAGISTRATES
thereon by him, and lie slmll enter judgment in favour of tho
Crown agaiuHt the (M)gnizor for the penal Hum mentioned in wuch
reeognizanee, and exeeution may issue therefor after the same
delay as in other eases, which shall he reckoned from tho time
when the judgment is entered by tho ])rothonotary of the said
court ;
(c.) Such execution shall issue upon fiat or prcecipe of the
Attornoy-General, or of any person thereunto authorized in writing
by him ; and the Crown shall be entitled to tho costs of execution
and to costs on all ])roeeedings in the case subsequent to exeeution,
and to such costs, in the discretion of the court, for the entry of
the judgment, as are fixed by any tariff.
(d.) The cogiiizor shall be liable to coercive imprisonment for
the payment of the judgment and costs.
(e.) When sutHcient goods and chattels, lands and tenements
cannot bej'ound to satisfy the judgment against a cogiiizorand the
same is certified in the return to the writ of execution or appears
by the report of distribution, a warrant of commitment addressed
to the sheriff of ibe district may issue upon the fiat or pran'ipe of
the Attoi'ney-General, or of any ])erson thereto authorized in writ-
ing by him, and such wai'rant shall be authority to the shoritf to
take into custody the body of the cognizor so in default and to
lodge him in the common gaol of the district until satisfaction is
made, or until the court which issued such warrant, upon cause
shown as hereinafter mentioned, makes an f)rder in the case and
such order has been fully complied with.
f/.) Such warrant shall be returned l)y the sheriff on the day on
which it is made returnable and the sheritt' shall state in his retuni
what has been done in execution thereof.
{g.) On petition of the cognizor, of which notice shall be given
to tho clerk of the Crown of the district, the court may inquire into
the circumstances of the case and may in its discretion order the
discharge of the amount for which ho is liable or make such order
with respect thereto and to his imprisonment as may appear just,
and such order shall be carried out by the sheriff. (1)
(1) As amended and added to by 57-58 Vic, c. 57, sect 1.
RECOONI/iANCES. — QUBBEC. 417
3. Nothing? in this Hoctioii contained shall prevent tlie recovery
of the Huin forfeited by tlie breach of any recogni74ince from being
recovered by suit in the manner provided by law, whenever the
Hame cannot, for any reason, bo recovered in the manner provided
in this Hection ;
(a.) Tn Huch cane the suni forfeilcd by tlie non-perfoi-mance of
the conditions of such recognizance shall be recoverable, with costs,
by action in any coui't having jurisdiction in civil cases to the
amount, at the suit of the Attorney-General of Canada or of
Quebec, or other person or otHcer authorized to sue for the Crown ;
and in any such action it shall be held that the jiersoii suing for
the Crown is duly empowered so to do, and that the conditions of
the recognizance were not ]terf()rmed, and that the sum therein
mentioned is, therefore, due to the Crown, uidess the defendant
j)roves the contrary.
(6.) The cognizor for the recovery of the Judgment in any such
action shall be liable to coercive imiirisonment in the same manner
as a surety is in the case of judicial suretyship in civil matters. (1)
4. In this section, unless the context otherwise requires, the
expression "cognizor" includes any number of cognizors in the
same recognizance, whether as principals or sureties.
5. When a person has been arrestetl in any district for an ott'enco
committed within the limits of the province of Quebec, and a jus-
tice of the j)eace has taken recognizances from the witnesses heard
before him or another justice of the peaces for their appearance at
the next session or term of the court of competent criminal juris-
diction, before which such person is to undergo his trial, there to
testify and give evidence on such trial, and such recognizances have
been transmitted to the oifice of the clerk of such court, the said
court may j)roceeil on the said recognizances in the same manner
as if they had been taken in the district in which such court is
held.
(1) As amended and added to by 57-68 Vic. c. 57, sec 1.
418 PRACTICAL GUIDE TO MAGISTRATES.
FORM UNDER PART LTX, OF THE CODE.
TTT.— {Section inc>.) V *
WRIT OF FIERI FACIAS.
Vii'torin. hy the Grace
To the sltevirtof , Cireeting :
You are hereby commanded to levy of the goods and chattels,
'unds and tenements, of each of the persons mentioned in the roll
oi- ext.'act to this writ annexed, all and singular the debts and
suras of money upon them severally imposed and charged, as there-
in is speeitiod ; and if any of the said several debts cannot be levied '
by reason that no goods or chattels, lands or tenements can be
found belonging to the said persons, respectively, then and in all
sucIj cases, that you take the bodies of such jiersons, and keep
them safely in the gaol of your county, there to abide the judg-
ment of our court {as the case may be) upon any matter to be
shown by them, respectively, or othei-wise to remain in your cus-
tody as aforesaid, until such debt is satisfied unless any of such
persons respectively gives sufficient security for his appearance at
the said court, on the return day hereof, for which you will be held
answerable ; and what you do in the premises make appear before
us in our court (as the case may be) on the day of
next, and have then and there this writ.
Witness, etc., G. H., clerk (as the cask may be).
ARTICLES OP THE PEACE. 419
CllAl'TlvK XV.
{Part Ly^V., of the Code.)
SuRETfES FOR KEEinNO THE PEACE.
1>5H. PorNOiiM C*oiivi<*t4Ml may l>«' Fined and
Bound Ov«'r to Keep tlie Peaee. — (^As amended by 5G
Vic. c. 32.) — Kvory court of criminal jurisdiction and every magis-
trate under Part LV of the Code, l)efore wliom any person shall
be convicted of an otfence and shall not be sentenced to death, shall
have power, in addition to any sentence imposed upon such per-
son, to require him forthwith to enter into his own recognizan-
ces, or to give security to keep the peace, and be of good beha-
viour, for any term not exceeding two years, and that such person
in default shall be imprisoned for not more than one year after
the expiry of his imprisonment under his sentence, or until such
recognizances are sooner entered into or such security sooner
given, and any person convicted of an indictable offence, punish-
able with imprisonment for five yeers or less, may be fined in ad-
dition to or in lieu of any punishment otherwise authorized, in
which case the sentence may direct that, in default of payment of
his fine, the pei-son so convicted shall be imprisoned until such
fine is paid, or for a jjcriod not exceeding five ykars, to commence
at the end of the term of imprisonment awarded by the sentence,
or forthwith, as the case may require.
05tt. Kecognizanee to Keep the Peace.— When-
ever any person is charged before a justice with an offence triable
under Part LVIII., which, in tne opinion of such justice, is directly
against the peace, and the justice, after hearing the case, is satis-
fied of the guilt of the accused, and that the offence was committed
under circumstances which render it probable that the person con-
victed will be again guilty of the same or some othei- offence
against the peace unless ho is bound over to good behaviour, such
justice may, in addition to, or in lieu of, any other sentence which
may be imposed upon the accused, require him forthwith to enter
into his own i-ecognizances, or to give security to keep the peace
420 PRACTICAL GUIDE TO MAGISTRATES.
and be of good behaviour for any term not exceeding twelve
months.
2. Upon complaint by or on behalf of any person thai, on account
of threats made by some other person or on any other account, he,
the complainant, is afraid that such other person will do him, his
wife or child sotne personal injury, or will burn or set tire to his
property, the justice, before whom such complaint is made may, if
he is satisfied that the comjilainant has reasonable grounds for his
fears, require such other person to enter into his own recogniz-
nizances, or to give security, to keep the peace, and to be of good
behaviour, for a term not exceeding twelve months.
3. The provisions of Part LVIII. shall apply so far as the same
are ai>plical)le to proceedings under this section, and the com-
plainant and defendant and witnesses may be called and examined,
and cross-examined, and the comjdainant and defendant shall be
subject to costs as in the case of any other complaini.
4. If any person so required to enter into his own recognizances
or give security as aforesaid, refuses or neglects so to do, the same
or any other justice may order him to be imprisoned for any term
not exceeding twelve months.
5. The forms WWW, XXX and YYY, with such variations and
additions as the circumstances may require, may be used in pro-
ceedings under this section. (1)
The application for sureties to keep the peace, — on account of
threats. — should be made soon after the cause of fear, upon which
it is based, has arisen (2) ,and the threat complained of should not
be merely a conditional or contingent one, to be executed in case
only of the complainant doing something which he has no right to
do, or which it is not necessary for him to do in the course of his
business. But if it is so necessary then a threat so made may be a
proper foundation for the application for sureties. (3)
The Magistrate will form his own opinion and satisfy himself as
to whether or not the facts stated amount in reality to a threat of
(1) For forms WWW, XXX and YYY, see pp. 422-424, po««.
(2) Dennis v. Lane, « Mod., 131.
(3) K. V, Mallinsen, 20 L. J. M. C, 33.
ARTICLES OF THE PEACE. 421
personal violence. It is not enough that the complainant sweai's
to an apprehension of personal violence. lie should disclose facts
which show that he has i-easonable grounds for his fears and that
the defendant's conduct is such as would make that impression
upon the mind of any impartial and dispassionate man.
If the Magistrate is satistied ujton this subject, he issues either a
summons or a warrant to bring the defendant l)efore him. And
the defendant, upon his a)ipearance, is asked if he has any cause to
shew why he should not enter into his recognizance and give the
required sureties to keep the peace.
It has been held that, as the binding over to keep the peace, on
account of threats, is in reality a means of preventing an appre-
hended breach of the peace rather than a punishment (1), the de-
fendant should not be allowed to adduce evidence to deny having
used the alleged threats (2), and that, in case of the allegations of
the complaint being untrue, his remedy should be by action or by
indictment for perjury, and that he should be merely allowed, —
either by cross-examination or by witnesses of his own. — to explain
any ambiguous portions of the complaint, or to show that his
words or acts do not fairly raise the inference sought to be raised
from them, and do not really contain any threat creating' fear of
bodily injury (3) ; or that the complaint is made from malice or
ill-will. (4)
The third paragraph of the above Article, 959, expressly pro-
vides, however, that the provisions of PartLVIIl, — (relating to
summary convictions), — shall apply, so far as applicable, to proceed-
ings there under, and that the complainant and defendant and
witnesses may be called and examined and cross-examined.
Where, on an a|>plication for sureties to keep the peace, proof is
made not only of the alleged threats, but also of the commission of
an assault, not alleged, the justice cannot convict the defendant of
the assault, but can only order the giving of sureties as applied
for. (5)
(1) Lort v. Hutton, 46 L. J. M. C, 95.
(2) Lord Vane's Case, 2 Str. 1202; R. v. Dolierty, 13 East, 171 ; R. v. Dunn,
12 A. &E.,699.
(3) R. v. Bringloe, 13 East, 174, n; R. v. Tregarthen, 5 B. & Ad., 078.
(4) R. v. Parnell, 2 Burr. 806.
(5) R. V. Deny, 20 L. J. M. C, 180.
422 PRACTICAL GLIDE TO MAOISTKATES.
!N(0. Procec<liiig;N for Wot Fiii«liii)>^ NiiretieN to
Ke«'p the Peaoo. — Whencvei- any pi'i-son, who haw been ro-
qiiirod to outer into a recoguizaiu-e with siiroties to keep the
peace and he of ajood hohaviour, has, on aceount of his default
therein, reniainetl inii)risoned for two weel<s, thes lieritf, gaoler, or
warden shall give notice, in writing, of the facts to a judge of a
Superior Court, or to a judge of the County Court of the county
or district in which such gaol or prison is situate, and, in the cities
of Montreal and Quebec, to a judge of the Sessions of the Peace for
the district, or. in the North-West Teri-itories, to a stipendiary
magistrate — and such judge or magistrate nuiy order the discharge
of such person, thereupon, or at a subsequent time, upon notice to
the complainant or otherwise, or may make such other order as he
sees fit. respecting the number of sureties, the sum in which they
are to be bound, and the length of time for which such person may
be bound. ~ > ' : ;
FORMS UNDKR PART LXV. OF THE CODE.
W\y\\.— {Section 951K)
COMPLAINT, BV THK PARTY THREATENED, FOR SURETIES FOR THE
PEACE.
Canada,
Province of
County of
']
The information (or complaint) of C. !»., of • . in
the said county of , (labourer), (if preferred by an
attorney or agent, say — by I). E., his duly authorized agent [or
attorney], in this behalf,) taken upon oath, before me, the
undersigned, a justice of the peace in and for the said county of
, at , in the said county of
, this day of , in the year
, who says that A. B., of ,
in the said county, did, on the day of ,
(instant or last past), threaten the said C. D. in the words or lo the
effect following, that is to say : (set them out, with the circumstances
FORMS. 42H
under which they were used) ; and tlial from the above and other
threats nsed by the said A. H. towards the said 0. D., he, the said
C. D., is afraid that the said A. B. will do him some bodily injury,
and therefore prays that the said A. B. may be required to find
suffieieiit sureties to keep tiie peace and be of good behaviour
toward him, the said ('. I). ; and the said (). D. alsp saj's that he
does not make this complaint against nor require such sureties
from the said A. B. from any malice or ill-will, but merely for the
preservation of his p<M'son from injury.
XXX.— (Section !»5t>.) >. :
POaM OF RF.OOQNIZANCE FOR THE SESSIONS.
:!
Canada,
Province of
(Jounty of
Be it remembered that on the day of
in the year , A. B., of , (labourer),
L. M. of , (grocer), and N. O. of (butchtr),
jiersonally came before (ms) the undersigned, (two) justices of the
])eace for the county of , and severally acknow-
ledged themselves to owe to our Lady the Queen the several sums
following, that is to say ; the said A. B. the sum of , and
the said L. M. and N. O. the sum of . each, of good and
lawful money of Canada, to be made and levied of their goods and
chattels, lands and tenements, respectively, to the use of our said
Lady the (^ueen, her heirs and successors, if he, the said A. B.,
fails in the condition endorsed (or hereunder written).
Taken and acknowledged the day and year tii-st above mentioned,
at before us.
J. S.
J.T.
J. P.'s, (Kame of county)
The condition of th. within (or above) written recognizance is
such that if the within bound A. B. (of, &c.), * apjiears at the
next Court of General Sessions of the Peace, (or other court discharg-
4-4 PRACTICAL GUIDE TO MAUISTKATKS.
ing the functions of the Court of (leneral Sessions), to bo lioldon in and
tor tho siiid county of . to do and receive what
is then and there enjoined liini by tlie court, and in the meantime '■'■'•
Icoejis the peace and is of good behaviour towards Ifer Majesty and
i\er liege people, and specially towards C. D. (of. iVcc). for the term
of now next cnsuiiiii;. then the said recognizance to lie
void, otherwise to stand in full force and virtue.
\YY.— (Section [)5H.)
KOIIM OP COM.MITMENT I.\ OEFAULT OP SURETIES.
Canada, ^
Province of , |-
County of , j
To all or any of the other |>eace ofHcers in the county of
, and to the keeper of the common gaol of the said
county, at , in the said county.
Whereas on the daj^ of (instant), complaint
on oath was made before the undersigned (or J. L., Esquire), a jus-
tice of the ])eace in and for the .said county of ,
by C. D., of , in the said county, (labourer), that
A. B., of, (&c.), on the day of , at
aforesaid, did threaten (i&c, follow to the
end of complaint, as inform above, in the past tense, then) : And where-
as the said A. B. was this day brougiit and appeared before me,
the said justice {or J. L., Ksquire. a justice of the peace in and for
the said county of ), to answer unto the said
complaint ; and having been required by me to enter into his own
iccognizance in the supi of , with two sufficient sureties
in the sum of each, * as well for his appearance
at the next (leneral Sessions of the peace (or other court discharging
the functions of the Court of General Sessions, or as the cane may be),
to be held in and for the said county of , to do what
The words between the asterisks ** lobe used only where the principal is
required to appear at the sessions or such other court.
FORMS. 425
\
shiill t>o then and there enjoined him b}' the court, as also in tlic
meantinio * to keep the peace and be of good behaviour towards
Her Majesty and her liege people, and especially towards the said
(!. D.. has refused and neglected, and still refuses and neglects, to
find such sureties : These are. therefore, to command you, and
each of you, to take the said A. B., and him safelj^ to convey to
the (common gaol) at aforesaid, and there to deliver
him to the ket^per thereof, together with this precept : And I do
hereby command you. the said keeper of the said (common gaol),
to receive the said A. B. into your custody in the said (ct)mmon
gaol), there to imprison him until the said next (ieneral Sessions
of the peace {or the next term or sitting of the said court dischargin<j
the functions of the Court of General Sessions, as the case may be),
unless he, in the meantime, finds sufficient sureties as well for his
appearance at the said Sessions (or court) as in the meantime to
keep the peace as aforesaid.
Given under my hand and seal, this day of ,
in the year , at , in the county aforesaid.
J. S., [seal.]
J. P. (Naine of county.)
The words between tlie asterisks ^^ to be used when the recognizanoe is
to be so conditioned-
/ FOURTH DIVISION
ALPHABETICAL SYNOPSLS OF THE CRIMINAL LAW
OF CANADA.
Abandonment.
■ ■ " ■ / .■
Abaiidoniii}; C'hilfl Under Two If earn 01«l.— Jt
is an indiotabk' ortence, piiiiishablc by throe years imprisonment,
to unlawlully abandon or expose any ehild nnder two years
old, whereby its life is ent':vngered, or its healtli permanently
injured.
The words ■• abandon " and •' expose "' ineludo a wilful omission
to take charge of the child, on the ])art of the person legally bound
to take charge of it, and any mode of dealing with it calcu-
lated to leave it ex])osed to risk without protection. (Code, Art.
lilO.)
Two defendants were chargeil with having abandoned and ex-
posed a weakly bastard child, live weeks old, and with having
thereby endangered its life. The defendants (one being the child's
mother) wrapped the child in a shawl and packed it in a hamper,
with sliavings and wool, and left it at the railway station at M.,
the hamper hiding addi-essed to the child's father at G., the father
having told the mother, before the child's birth, that, if she sent it
t(j him, he would keej) it. The mother j)aid the carriage of the
hamper and told the rai4way clerk to be careful of it and to send it
by the next train, due in ten minutes. Upon the address were
the words, " With cark — Tti be delivered im.meuiatelv. ' The
ham|)er arrived at its aildress in (i. in an Jiour from being de-
si)atched from M., and, on being opened, the child was alive, but
died three weeks afterwards, from causes not attributable to the
ABDIf'TKlN. 427
prisoners. Held. :iii aliiiiKlomncnt aiid oxpoHurc •ii(l;iii;;'t'riMir tlio
c^liild's life ; and thi' prisoners were found i^uiity. (1)
A woman, living apart from lier hushand. left tlu'ir eliild out-
side tiie father's door, teiiini!; him slie liad done so. Tiie fatiier
i<nowinifly allowed tlie ehild to remain outside from 7 p.m. till 1
a.m., when it was found, cold and stiff. \\\ a eonslalile. who re-
moved it. Held, that, although the fathei- had not tlu' aetual
possession of the (dnld. yet. as lie was legally hound to ])rovi(le for
it, his allowing it to remain wliere he did was an ahandonment
and exposure whertd)y the child's life was endangered. (2)
ABIJUCTION.
AlxliK'tion of any Woman. — Every one is guilty of
an indietalde offence and liahle to fourteen years' imprisonment
who, with intent to marry or carnally know any woman, whether
married or iu)l, or with intent to cause her to be married to or
carnally known by any other ])erson, takes away or detains any
woman of any age against her will. (Code, "Art. 281.)
Ah<lli<*tiou of an llt'ir«'s».— Every one is guilty of an
indictahle offence and liable to fourteen years' imprisonment who,
with intent to marry or carnally know any woman, or with intent
to cause her to be married or carnally known by any ])erson —
(a.) from motives of lucre takes away or detains against her will
any such woman of any age having an interest, legal or equitable^
|)resent or future, absolute, conditional or contingent, in any real
or personal estate, or who is a jiresumptive heiress or co-heiress or
presumptive next of kin to any one having such interest ; or
(b.) fraudulently allures, takes away or detains any such wonum,
being under twenty-one years, out of the possession and against the
will of her father or mother, or other jierson having the lawful
care or charge of her, with intent to nuirry or carnally know her.
2. Every one convicted of any ott'cnce detined in this section
can take no estate or interest, legal or equitable, in any real or
(1) R. V. Falkinghain, L. R., 1 C. C. R., 222; 39 L. J. (M. C.) 47.
(2) R. V. 'White, 1 C. C. R. 311 ; 40 L. J. (M. C.) 134.
28
428 PRACTICAL (lUIDK TO MAGISTRATES.
porsoiiiil i)r()|ii'rty of such woniiiii. or in wliich alio lias any inter-
est, or whicli conius to lior as such lu'hvss. co-hoiross or noxt of
kin ; and if any such inurriago takes ])hico such propcrtj' shall,
upon such conviction, lie settled in such numner as any court of
com])etcnt Jurisdiction, ujjou any information at tlic instanci' of
the Attorney-(iencra!, appoints. (Code, Art. 282.)
li' the wonuin lie taken away, in the first iustaiu'c. with her con-
sent, hut afterwards refu.scs to continue with the otl'ender. and, if,
then, he still Jetain her, against her will, he is punishahle.
If. after having heen. at first forcibly taken uwaj', the woman
he afterwards married, or defiled, hy or at the instance of her
ahductor. with her own consent, the offence will still he committed
within the terms of the ahove enactment. (1) Even if she ho
taken away and married with her own consent, yet, if this ho
effected hy means of fraud, it will still he within the law ; for,
she cannot, whilst under the influence of fraud, be considered a
free a^ent. (2)
There need not he an actual nuirriage or a defilement to consti-
tute the otlenco. The taking aicay or the detaining against the
wonuui's will, or, in the case of a minor heiress. X\w fraudulent allu-
rement or the taking or detaining against the will of the jiarent or
guardian, coupled, in either case, with the intent to marry or car-
nally know, or, liavo her married or carnally known, constitute
the offence ; and upon an indictment for fraudulent allurement,
etc., it is not necessary to sliow that the accused knew that the
woman was an heiress, or interested in any projierty ; (3) al-
though in the case of a charge under clause (a) of Article 282
it might be necessary, in order to establish that the abduction
was from motives of lucre, to prove the accused's knowledge or
belief that the woman had an interest in property.
Uula^vfliil Taking cf a Oirl Uiuler Silxteen.—
Every one is guilty of an indictable otfenco and liable to five
years' imprisonment who unlawfully takes or causes to be taken
(1) FuUwood's Case, Cro. Car. 488; Swen don's Case, 5 St. Tr. 450; 1 Hale
660.
(2) R. V. Perry, 1 Hawk, c. 41, s. 13 ; 1 Russ. Cr. 710.
(3) R. V. Kaylor, 1 Dor. Q,B. 364 ; Bur. Dig. 267.
AHDUOTION. 429
any unmnrried (jirt. U'iug under (lie aj^c of sixteen years, ^<nii of the
possession and ag'ainst rlic will of lirr fatlu-r oi- niotluT, or othor
poi'son iia\iny llic lawful i^arc oi- cliargt' of lie r.
2. It is inunatorial whotlu'r tlu! girl is taken witli lu-r own con-
sent or at iier own suggi'slion oi* not.
H. It is immaterial wlietlufr or not the ott'ender believed the gii'l
to Le of or above the ag*' of sixteen, (("ode, Art. 2m;1)
The gist of the otVenee is the taking of the girl out of the possession
of her parents or any one having legal eure and charge of her.
Where the girl — without jiersuasion or indueenu-nt on the jmrt
of the defendanl — leaves her father, has got i'airly away from
home, and then goes to the defendant, his not .sending her l)aek to
her father's possession is no infraction of this article; for it does
not say that he shall restore her. but that he shall not take her
away. (1)
Merely cohabiting with a girl after she has left her father is not
an ott'ence within this Article. (2) Jiut a girl's temporary ab.seneo
from home will not interrupt the father's possession. And, if while
living with her father, a girl leaves the house for a mere temporary
purpose, intending to return honn;, she is considered to be still in
her father's possession, and if while .so out of her father's house,
temporarilj-. the defendant induces her to run away with him, he
is guilty of the above ott'ence. (H)
A girl em[)lo3ed as a barmaid away from her father's home is
under the lawful charge of her employer and, therefore, an in-
dictment will not lie for taking her out of her fatlier's pcssesaion.
A., a girl under sixteen, who, with her father's consent, was
under the care of H., her uncle, was allowed, b}' B., to dine at tlie
house of (".. the husband of B's sister. C. took A. for a drive and
stayed over night with her. and debauched her, at a hotel. The
next day he left her at Hs. Held, that B. had the lawful care of
A., and that she was unla\^fully taken out of his possession by C. (6)
(1) K. v. Olifier, 10 Cox, 402.
(2) R. V. Miller, 13 Cox, 179.
(3) K. v. M) cock, 12 Cox, 28.
(4) R. V. Heukers, 16 Cox, 257.
(5) R. V. Mondelet, 21 li. G J. 154.
430 PRACTirAL OI'IPE Tt» MAGISTRATES.
It has boon held, and is so dochirod by tho second clause of the
above Article, that the girl's consent is immaterial ; and the
taking need not be by force actual or constructive ; nor is it any
legal excuse that there is an absence of any corrupt motive, or that
the defendant made use of no other means than the common bland-
ishments of a lover, to induce the girl to I'lopc with and marry him.
(1) And so, where the defendant went in the night to the girl's
father's house, placed a ladder against her window, and held it
while she descended and she elopi-d with him, this was held a
"taking out of the jjossession of her father.' although the girl her-
self had proposed the \Anu to the defendant. (2)
Where the girl was pcrsuadetl by defendant to go away with
him from her fathers house, without her father's consent, and she
accordingly left home by a pre-arrangement between them and
met the prisoner at an appointed place', without intending to go
back, this Avas held a taking of the girl out of her father's posses-
sion, since u])to tho time of her meeting tho defendant, as appointed,
she had not yet absolutely renounced lioi' father's protection, and
was still in his constructive possession, (3)
It has been held to be an abduction, under this law, to induce the
parents, by false and fraudulent rejiresentations, to allow the de-
fendant to take the girl away. (4)
The girl of course must bo ])rovod to bo under .sixteen and un-
married. But Article 283, clause 3, expressly declares, and it has
been so held, (5) that it is immaterial that the olfender believed
the girl to be sixteen. , ,
Kvidonce of cruel treatment of tho girl by her guardian is inad-
missible ; but, where persons, prompted by benevolent motives, had
taken tho girl from a barn where she had sought refuge, and placed
her with tlie defendant, as secretary of a society for protecting
(1) R. V. Kipf>8. 4 Cox, lti7; R. v. Boolh, 12 Cox, 231; R. v. Tursleton, 1
Lev. 237; R. v. Hawley, 1 F. & F. 648.
(2) R. V. Hobins, 1 C;. & K. 45().
(3) R. V. Manklelon, Dears, 159; 22 L. J. M. C. 115.
(4) R. V. Hopkins, C. & Mar. 254.
(5) R. V. Prince, L. R. 2 C. C. R. 154; 44 L. J. M. C 122; K. v. Robins^
supra.
ABOMINABLE CRIME. — ABOKTION, 431
women and children, it was held that the defendant was not guilty
of taking the girl out of the possession of the guardian. (^1)
ABOMINABLE CIII.MB.
fHotloiiiy. — To commit buggery, either witii a human being
or with any other living creature is indictable and punishable with
life imprisonment (Code, Art. 174.) And an attempt to commit
the ott'ence is indictable and punishable with ten years impriscm-
ment. (Code, Art. 175.)
Article 200 of the Code, makes it an indictable ott'ence, punishable
with ten years and whii'Pino, for any one to a.s.sault an}' penson
with intent to commit sodomy, or for any male to indecently assault
any other person.
ABORTION.
UmIiiK ^leanN to Procure Abortion. — Every one is
guilty of an indictable ott'ence and liable to imprisonment for life
who, with intent to procure a woman's miscarriage, whether she is
OR IS NOT with child, unlawfully administers to her or causes to be
taken by her any drug or other noxious thing, or unlawfully uses
any instrument or other means whatsoever with the like intent.
(Code. Art. 272.) And every woman is guilty of an indictable of-
fence and liable to seven years' imprisonment who, whether with
CHILD OR NOT, Unlawfully administers to herself or permits to be
administered to her any drug or other noxious thing, or unlaw-
fully uses on herself or permits to be used on her any instrument
or other means whatsoever with intent to procure miscarriage.
(Code, Art. 273.)
Nupplyliig mieans to Procure Abortion. — Every
one is guilty of an indictable offence and liable to two years' im-
prisonment who unlawfully supplies or procures any drug or other
noxious thing, or any instrument or thing whatsoever, knowing
that the same is intended to be uniawfuUy used or employed with
intent to procure the miscarriage of any woman, whether the is
OR IS NOT WITH CHILD. (Code, Art. 274.)
Where the prisoner gave a woman a drug to procure abortion,
(1) R. V. Hollis, 8 L. N. 229.
432 1'RACTICAL GUIDE TO MAGISTRATES.
and kIio took it for that purpose, in prisoner's absence, this was
held a causing of it to bo taken. (1)
The tiling administered must be, either in its nature or by
reason of the quantity, noxious ; and it would not be suflicient if,
not being actually noxious, in itself, it was merely imagined l)y the
defendant that it would have the elt'ect intended. (2) But, if the
drug administered actually produces miscarriage. — and there be
no other evidence of its nature, — this, in itself, is sufficient evidence
of its being noxious. (3)
Where the drug is not noxious in itself and quite jnnoxious
when administered in small quantities, yet if the quantity adminis-
tered is noxious, that makes the drug so administered a noxious
thing. (4)
It' the drug is such that when administered in large quantities
it is noxious, j'et, if the quantity administered by the defendant,
is innoxious, he is not guilty of administering a noxious thing, (5)
Whore the instrument used to procure an abortion was a quill,
which, by its nature, might have been used for an innocent purpose,
evidence was allowed to be adduced, — in order to pi'ove the intent, —
showing that the prisoner had. at other times, caused miscarriages
by similar means. ((5)
If, in the attempt to procure abortion or after or in consequence
of the abortion being etfected, the woman dies, the crime is murder,
iind comes within the detinition of murder contained in Article
227d of the Code.
Killing; Uiiborii Child.— Every one is guilty of an in-
dictable ott'cnce and liable to imprisonment for life who causes the
death of anj' child which has not become a human being, in such ,
a manner that he would have been guilty of murder if such child
had been born. • ^ "-• ■ ^ \ ' -: ^^ .• ■; *
(1) R. V. Wilson, 2(5 L. J. M. C. 18; R. v. Farrow, Dears, & B. 164.
(2) R. v. Isaacs, L. & C. 220.
(3) R. v. Hollis, 1 2 Cox, C. C. R. 463.
(4) R. v. Cramp, 6 Q. B. D. 307 ; 49 L. ,T. M. C. 44.
(5) R. V. Hennah, 13 Cox, 547.
(6) R. V. Dale, 16 Cox, 703.
ADMINISTERINO DRUGH. ETC. 433
2. No one in guilty of any offence who, by moann which he, in
good tuith, considers necessary for the preservation of the life of
the mother of the cliild, causes the deatli of any sudi child before
or during its birth. (Code, Art. 271.)
By Article 2l!t of the ("ode, a child only becomes a human being
when it has completely proceeded, in a living state, from the body
of its mother ; and it is not homicide to kill a child which becomes
extinct before it has so become a hunuin being. So, that, Article
271 will meet the case of any wilful and unlawful killing of a
child which, in consequence of injuries iiifli(!ted upon it, becomes
extinct either while still in tlie womb or while it is proceeding
but has not yet completely proceeded from its mother's body.
A«l%'ctrtiMiii|>; I>riiKN, KU:, to Pi*ociir<> Abortion.
— This is j)unishable under Article 170 of the Code by two years'
imprisonment (See p. 43c, post.)
ACCESSORIER.
(See Parties to Crimes, pp. 58-05, ante).
ACTIONS AGAINST PERSONS ADMINISTERING THE CRIMINAL LAW.
(See pp. 50-53, ante. And see also Liability of Magistrates
AND Justices for Illegal Acts, pp. 39-49, ante).
ADMINISTERING DRUGS, ETC.
A«liiiiiiisterlii); ]>rii)i[^N in oriler to I>clilt> Fe-
nialc'N. — It is an indictable olfence punishable with two years'
imprisonment with hard labor, to apply or administer to or cause
to be taken by any woman or girl, any drug, intoxicating
liquor, matter or thing, with intent to stupefy or overj)OWcr so as
thereb}' to emible any person to have unlawlul carmil connection
with her. (Code, Art. 185i.)
Adniinistcring Poison with Intent to Mnrder.
— By Article 232 of the Code, it is an indictable offence punishable
by imprisonment for life, to administer or cause to be administered
to any person, any poison or other destructive thing witli intent
to murder. (See Homicide, post.)
4.S4 PRACTICAI; oinnE to maoisthates.
l^riiKiciiiiK with Intent to <'oniinit iin ln«li<*t-
abl<> Ottt'MW. — Kvoiy Olio \H guilty of iin in(lictal)lo ort'oiico
uiul liahlo to im|>i'isonmc'iit for litV, and to bo whum'ED, who with
Intoiil to ciialilo hiniHolf or any otlior poVHon to commit, or witli
intent tlioroiiy to assist any othor person in committing any indict-
able ort'enco, unlawfully a))i)lieH or administers to or causes to be
taken bj', or attempts to apjily or administer to, or altem)it8 or ,
causes to be administered to or taken by, any person, any chlo-
roibrni. laudanum or other stupefying or overpowering drug,
matter or thing. (Code, Art.«244.)
AdininiNterinK; Poinon and tlier4>l»;^ Hndan^er-
in|i^ Ijit'c. — Every one is guilty of an indictable otfenco and
liable tf» fourteen years' imprisonment who unlawfully administers
or causes to bo administered to or taken by any person, any
poison or other destructive or noxious thing, so as thereby to en-
danger the life of such person or to intlict upon such person any
gnevous bodily harm. (Code, Art. 245.)
Adntinisterlni^ Poison with Intent to Injnre.
— Every one is guilty of an indictable offence and liable to three
years' imprisonment who unlawfully administers to, or causes to
be administered to or taken by, any other person, any poison or
other destructive or noxious thing, with intent to injure, aggrieve or
annoy such person. . (Code, Art. 246.)
If the poison or destructive or noxious thing is administered
merely with intent to injure, aggrieve or annoy, which in itself would
bo punishable under Article 246, yet if iL does in fact endanger the
life of or inflict grievous bodily hai ni upon the person to whom it
js administered, it would amount to the higher oftence covered by
and punishable under Article 245. (1)
To warrant a conviction under Article 246, it must bo proved
that the defendant intended the administration of the poison, etc.,
to injure, aggrieve or annoy the prosecutor ; and it was held that
■where the defendant had administered cantharides to a woman
with intent to excite her sexual passion and desire so as to obtain
(1) Tulley V. Corrie, 10 Cox, 640.
AHMINtSTKRlNd OATHS. 43R
curmvl lofiiu'ctioii with her. it was an a(lmli\i,stcnng with intoiit to
" iiijuro, aggi.ovo and annoy " he. (1)
Whi'thcr iho tiling is noxious or not may dcjH'nil upon tho quan
tity a(iniinintcred. Thus, where the evidence showed that tho
Itrisoner luiil administered eantharides to the prosecutrix, that u
large dose of eantharides is poisonous, hut that tho quantity ad-
ministered was insutticient to produce any ett'ect upon the human
.system, it was held that the ])risoner could not he convicted of
administering a "destructive and noxious thing," notwithstai'ding
that he administered it with intent to injure and annoy. (2)
Where the pri.soner was Indicted for having caused to he taken
a certain noxious thing, namely half an ounce of oil of Juniper,
with intent to procure miscarriage, and the evidence was th'at oil
of juniper in considerahly less quantities than half an ounce might
be taken without any ill eli'ect, but that half an ounce |)roduces ill
effects, and to a pregmint woman 's da;irt''ruus, it was held that
the half ounce of junijier oil was " :i lioxioMS thing." (3)
Administering Oaths.
AdiuliilNterliig Unlawful (tatlis. — Every one is
guilty of an indictable offence and liable to fourteen yeai's' im-
prisonment 'vho —
(a.) admiuistors, or is present at and consenting to the adminis-
tration of, any oath or any engagement purporting to bind the
person taking the same to commit an}' crime punishable by death
or imprisonment for more than five years ; or
(6.) attempts to induce or compel any person to take any such
oath or engagement ; or
(c.) takes any such oath or engagement. (Code, Art. 120.)
Every one is guilty of an indictable offence and liable to seven
years' imprisonment who —
(a.) administers or is present at and consenting to tho adminis-
tration of any oath or engagement purporting to bind the person
taking the same ;
(1) R. V. Wilkins, L. & C. 89 ; 31 L. J. M. C. 72.
(3) R. V. Hennah, 13 Cox, 547.
(3) R, V. Cramp, 5 Q. B. D. 307 ; 49 L. J. M. C. 44.
486 PRACTtOAIi OUIDI TO MAOIHTRATIS.
(i.) to on^ugo in any mutinouH or Hediti«)U8 purpKHo ;
(ii.) to (liHtiirb'the public poaco or commit or endeavour to com-
mit ai»y ott'once ;
(iii.) not to inl'orm and give evidence against any associate,
confederate or other j)er8on ;
(iv.; not to reveal or discover any unlawful combination or con-
federacy, or any illegul act done or to be done or any illoi^al oath
or obligation or engagement whicli may iiave been administered or
tendered to or taken by any person, or the import of any such
oath or obligation or engagement ; or
(&.') attemjits to induce or compel any person to take an}' such
oath or engagement ; or
((?.) takes any such oath or engagement. (Code, Art. 121.)
Any one who, under such compulsion as would otlierwise excuse
him, offends against either of the two preceding sections shall
not be excused thereby unless, within the period hereinafter men-
tioned, he declares the same and what he knows touching the
same, and the peisons hy whom and in whoso presence, and
when and where, such oath or obligation or engagement was ad-
ministered or taken, by information on oath before a justice of
the peace for the district, city or county in which such oath or en-
gagement was administered ov taken. Such declaration may be
made by him within fouhteen days after the taking ol' the oath
or, if he is hindered from making it by force or sickness, then
within EiunT days of the cessation of such hindrance, or on his
trial if it hap])ens before the expiration of those periods. (Code,
Art. 122.)
These three articles are taken from sections 1, 2, 3 and 4 of
chapter 10 of the Consolidated Statutes of Lower Canada. With
regard to the province of Quebec, there is no doubt that the re-
maining sections 5. 6, 7, 8 and 9 (unrepealed) of that Act are still
in force, and the law as comained in those remaining sections
may probably also apply to British Columbia, Manitoba and the
North-West Territorities seeing that the whole statute was simply
a re-enactment of the English law on the subject as it stood, in
1837, under 52 Geo. 3, c. 104, and 7 Will. 4, & 1 Vic, c. Ul.
ADULTIRY. 487
AdiiilnlNlrrliiK OathM Without. Authority.—
Kvory justii'o of tlio |khuh or oilier [u^rHon who mlmiiiistorH or
cauHUH or allovvH to lt« ailministerod, or rocoivos or cau8«H or ullowrt
to bo roooivctl iiny oath or aftlriimlion, toiicliiii/^ any matter or
tiling wherool' suoh juHtico or other porsoii has not JiiriH('ietion or
cognizanee l»y Hoino law in fori'o at the time l)eing, or authorized
or nuiuired Ity any such law, \h guilty of an indietahlo otfonce and
litthlo to a fine not oxeoeding fifty dollars, or to inn)riHonmont for
any term not exeeeding three months.
2. Notlung herein contained shall be construed to extend to any
oath or affirmation before any justice in any matter or thing
touching the i>reservatio\i of tlio peace, or the prosecution, trial or
puni<^hment of any oticnce, or to any oath or affirmation required
or auth(>rized by any law in (.'aiuida, or by any law of the province
wherein such oath or aftinnation is I'ccoivoii or administered, or is
to be used, or to any oath or atlirmation, whi(^h is roquired or
authorized by the laws of any foreign country to give validity to
an instrument in writing or to evidonco lesignod or intended to be
used in such foreign country. (Code, Art. 153.)
Adulteration.
(See Food, post.,
AnrLTERY.
Coni»i»ira<^9' to Induce a Woman to ('oniinit
Adultery. — Kvcry one is guilty of an indictable offence and
liable to two years' imprisonment who consi)ires with any other
person, by false pretences, or false representations or other fraudu-
lent means, to induce any woman to commit adultery or forni-
cation. (Code, vVrt. 18S.)
Adultery, fornication and incest are not common law offences ;
but in h^nglana they are criminally cognizable under the ecclesias-
tical law, although, the only one which is prosecuted in these
days is incest. (1)
There bting no competent Ecclesiastical Court in Canada, and
the ecclesiastical law of England not being in force here, (2) none
(1) ij Steph. His. Cr. L. 396.
(2) In re Lord BisbcH) of Natal, 3 Moo. C C. N. 8. 115 ; Bur. Dig. Cr. L.
162.
4^8 l'U\CriO\L (MMllK Til MAfllMKATKs. '
of thcHo orti'iut'M liav«' lii'ii'tolort' liwii |iiiiiislmlili' in any piirt ot
C)uni(lii. ex('t>|»t Nova Scotia, New Hniiis\viti< ami I'riiic*' Kdwanl
iHiaiiii. iiii(i»'i" Hpt'cial ads rl' tilt' local lci,nslaliircN of those provin
ci'H for the piiiiiHliiiuMit of iiic<'s(,(l) an<l also, as ri'^ai'ils New
ilniDnwicU. for the punishiuont of a<lill(ery. (2)
AnVBRTISINd.
AilvortiNiiiK Aliordoii iiixl lltlior 4^Iin«*<'ii<'
llrilKM. «>(<*.— Il is an in<lictalile otl'eiice |)iiiiishalile \>y two
yoHi's' iinprisonnu'nt to knowingly, without lawful justification of
excuse, otter to sell, advei'tise, puhlish an advertisement of, or
have for sale or disposal any medicine, drut^ or article intended
or represented as a nu'ans of preventing concepti(Ui or causinj^
ultortion. (Codo, Art. IT'.t.)
Adv«'rtlNiiiK f^oiiiitorloit .^4»iii>y. — Kvery one is
guilty of an indictable otteiue and liaLjIe to five years' imprison-
ment, who
(a.) printH, writes, utter , puhlishes, Hells, lends, gives away,
circulates or distributes any letter, writing, circular, jtapor, pamph-
let, handbill or any written or printed matter advertising, or otter
ing or purporting to advertise or offer for sale, loan, exchange,
gift or distribution, or to furnish, procure or distribute, any coun-
terfeit token of value, or what purj)ort8 to bo a counterfeit token
of value, or giving or purporting to give, either directly or in-
directly, inforniation where, how, of whom, or by what means
any counterfeit token of value, or what purports to bo a counter-
feit token of value, may be procured or had ; or
{f>.) ]>urchaHOH. exchanges, accepts, takes possession of or in any
way uses, or otters to purchase, exchange, accept, take possession of
or in any way, use, or negotiates or offers to negotiate with a view
of purchasing or obtaining or using any such counterfeit token of
value, or what purports so to be ; or
(c.) in executing, operating, promoting or currying on any
(1) R. 8. N. S. (3rd S.), c. 160, 8. 2; R. S. N. B., c. 145, 8. 2. 24 Vic. (P. E
I.),c. 27,8. 3.
(2) R. S. N. B. c. 145, 8. 3 ; Burb. Dig. 162.
AhVKKTIHiNd, 4:i!t
. Hclicmi' tir (Icvitc to ilctVuiKl. l>y tho uhc or \ty int'iiiis itf iiiiy |)a|KM's,
writintft, Ii'IIith, circiilui's or wriltni <ir in'intfd nmltt'rs cuiict'i'iiiiii;
t he DlVcriiiL; I'nr salt', Itmii. i^if'l , (li«l riltiilidii >>r fxchaii^c of coiintcr-
I'cil toUcris ul' valiio, iihcm any tiililii)iiN, I'alsi'nr assumed iiaiiu' iir
uddri'MH, or any iianic or address n| her tliaii Ids own rifjclil, propiT
and lawt'iil naiiu' ; or
((I.) Ill till- cxt'iMitioii, o|M'ratiiit^, proMiotiiii; or (■arryiiif; on, of
any scliciiic or dfvicc otlcriii^ tor saU-. loan, ;rit't or distribution, or
|)iir|iortin^ to oiler for salo, loan, ^it't or diniriluitiop, or i/ivin^ or
purporting to ^ivo information, directly or indiroitly, whore, how,
of whom or hy what means any counterfeit t(du'ii of value may 1k'
ohtaiiied or had, Unowi!i|r|y receives or takes from the mails, or
from tho post offlee, any letter or pa(d.ai^e addrcsNod to any su<h
flctitiouM, false or assumed naiiu' or address, or namo other than his
own i'iu;lit, proper or lawful name. (Code, Art. 4H(I.)
Priiiiii fill*!*' fivid<'ii<*4' 4»ii I'riirtMMliiiKN t'ur
ildvcrtlNillK <'4»llllt«'rt'<>it .^oiioy.— On the trial of any
porson charged witli the otfenees mentioned in section 4H(». any
letter, circular, writing or paper otferiiig or pur|MMiing tootVer for
Hale, loan, gift or distrihution, or giving (>r purporting to give
information, directly or indirectly, whore, how, <d" wh^m or iiy
what means any counterfeit token of value may he ohtained or
had, or coneerning any similar seheine or device to defraud tlu'
[luhlic, shall \n? prima facie evidence of the fraudulent character of
Hiich Hchome or device, (Code, Art. 093.)
An otler to purchase hank notes which are genuine luit fin-
signed is not an otler to jiurchaso counierfeit tokens of value, even if
tho person otforing to [lurchase them made such otter under the
belief that tliey were counterfeit. (1)
A«lv(>rtiNinK Reward for Itetiini of Ntoleii
Property. — (See Compounding, ;)os<.)
Advektiskment.
PriiitliiK AtlvertlNCineiitN, C'HrdN, (/irciilikrM,
«'tcv ill liikenONM ol'llaiik IVotew.— Every one is guilty of
( 1 ) R. V. Atwood, 20 Ont. R. 574. '■ i ■
440 I'KAOTirAI. Ill I UK to maiiihthatkh.
an otVt'iit'i' and lialilc. mi Kiiiniiiary cniiviction iK'tiirr two jiiHlirt'H oC
till* |u'aro. to a liiM- ot' oiu- liiiiHln<<| ilollars m- iIu'in' moiitliK' itii
|iriMnmn«'iil, or liotli, who tlonigiiM, fiij^iavt'M, priiitH or in any
tiiamu'r maUt-M, fxccutt'H, iittcix, Ihwiich, dislrilmtt's, circulates (»r
um'm any ImsincNw or proti-Hsioinj) can!, notice, |ilacani, circniur,
hand-hill or advcrtlHcincnt in the likeneMN or Hiniilitiide of any
hanU note, or any ohli^ation or s«'curity of any (iovernini'iit oi'
any hanU. (Code, Art. 44L'.)
Akkrav.
v\n utVray i« tht! act of lii;hlini; in a.iy puhlie Htroct or highway,
or ti^^htin^ to the alarm of I lie |iiililic in uny othur place to which
t lie puhlic have accoHH,
'1. KVery one who taken part in an affray in guilty of an indiot-
ahle olfence and liaiile to one year's imprisonment with hard labour.
(('od(!. Art. !KI.)
The i;ssence ol' this (dlence is its tendency to alarm people ut or
near the scono of th« ti^lit. it is not necessary that actual terror
should exist ; hut it will bo inferred hy the law from tho fuct of
\\w li/fhtini; taking place in a puhlic stri't't or highway, or in any
other place accessible to the puhlic.
AoBNoy.
C'riiiiiniil Iiitil»ilit>' of l*riii<'i|»alN uiiil A)i;t'iitN.
-T-A person is not, as a geiu'ral ruh', criminall}' ivsponsihli- for tho
acts of anotlier; but a man nuiy be brought, under some circuin-
Htances. within the crimiiuil law by the acts of his agents or
servants. We have scon that where a person omphij's, solicits or
advises another to commit a crime, in his absence, he and tho
agent aro equally principal olVendcrs. (I)
An agent or servant who, knowing the facts, does a criminal act
for his principal or master, is answerable to the crimiiuil law
precisely as though he had proceeded solf-moved, and for his own
personal benefit. The command of a 8U])erior to an inferior, — as
of a parent to a child, or of a master to his servant, or of a princi-
(1) See Parties to Offences, p. 58, ante.
AuiNor. 441
pul to hin iii^oiit, — will not jUHtit'y ii (^riniMiiil net dom* in purNiiarict*
of it. (1)
Ah iij^oiit, who in H\u'\\ lor civil |tur|M)MCH only, caimot l»y iiii
uiiuulliot'i/.«><l it(^t rondtM' IiIn itrinciiMii ahNworahlo tor u hrracli ot
th« criminal law. Itut tht* primipal in criininally n>s|)oiiHili|«.> for
what tht> a^cnt docH iimloi- hin prinripalH aiilhority. Ami, if tiio
biiMinoHN ilHoif involves a violation of lh(< law, the antliorization l>y
tho principal or ftnpli>yt'r of an a^cnl nr scrviml to iondiu-t it will
hrin^ K"''' np"" •'"' i'l'iiit'ij'iil or ina.slt'r whcnovt-r the thini^dono
ihcn'in is a (M'iMiiinil oUcnci' ; and this will not prevent the a^ent
(ir servant, will' has d<ine the act, from liein^ eipially guilty with
tho principal. Thns. where thu koeper of a place of pnhlic rewort
left his premises in the nnimif^ement (d' a servant, and prostitutes
were, in vi'datioii (d' the Kn^lish Lieense .\et. sntl'ered to visit and
renmin therein, it was held that the nu^'e relation of maHter and
servant neither nuid') nor prevented tho latter from hein/Lj an aider
and uliettor in the oll'enee, hut that if tlii' servant, in harhorinjf,
was carrying out tho nuister'h orders, the master was /^(nilty as
principal, and tho servant as aiding and ahelting. (2) i\nd u
shopkeeper has Itoen liold crimimdly liable for tlu* uidawful act
of u servant in tduirge of the store in selling li(juor without a
license, although done in the shopkeeper's absence. (3)
Under a ectit)n of the Kng''sli fjicense Act, which nuikos it an
otVence foi- a liconsod person to knowingly harbor on his premiHOH
any constable on duty, or to siipj)|y him with liquor, etc., it was
even held that a master might be convicte<l for the act of his
servant, though tho master was personally ignorant ui' it. (t) Hut
it has boon hold, in some later casos, that whoro thore is no ovidonco
to show any connivance or wilful blindness on tho pai't, of tho
licensed jterson — if he does not shut his eyes, and is himself really
and bona fide ignorant — he is not liable, and that tho knowledge of
the servant, under such circumstances, is not sufficient to justify u
conviction against the, master. (5)
(1) 1 Bish. New. Cr. L. Com., as 355, 892 ; Broom'B Leg. Max. 2 Ed. 11
(2) Wilson V. Stuart, 32 L. J. Q. B. 311.
(3) li. V. King, 20 U. C, C. P. 246.
(4) MuUins v. Collins, L. R., 9 Q. B. 292; 43 L. J. M. C. 67.
(5) Somerset v. Hart, 12 Q. B. D. 360; 53 L. J. M. C. 77; 48 J. P. 327
Newman v. Jones, 17 Q. B. D. 132 ; 55 L. J. M. C. 113.
' 44B
PRACTlrAI, (IIIDK Ti) MAdlHTRATKS.
Kill ploy <'r*N liitil»ilil,Y lor ll<>raiiialor.y iiiiiftcr
Hold by Ncrvaiii. — Tho walo by a Horviuil o\' any book, niat,'a-
zinc, itaiuplih't or other thing, whether periodieal or not, shall not
make hiw employer criniinally responnible in respect of defainatory
matter contained therein, wn/ess it he proved that such employer au-
thorized such sale, knowing that such book, etc., contained defamatory
matter, or, in ease of a number or part of a periodieal, that defam-
atory matter was habitually contained in such periodical. (Code,
Art. 2!>S. 8s. 2.)
PIcdKiiiK hy Fa<*tor or A){t'iit. — No factor or agent
shall be guilty of theft by pledging or giving u lien on any goods
or document of title to goi)d8 intrusted to him for the j)urpo8e of
sale or otherwise, for any sum of money not greater than the
amount duo to lum from his principal at the time of pledging or
giving a lien on the same, together with the amount of any bill of
exchange accepted by him for or on account of his principal.
(Code, Art. :{05, ss. 5.)
AoENTS.
TllC'lt by A}(eiit. — £'(/T/-i/ one commits theft who, having
received any mone3' or valuable security or other thing whatsoever,
on terms requiring him to account for or pay the same, or the pro-
ceeds thereof, or any part of such proceeds, to any other person,
though not requiring him to deliver over in specie the identical
money, valuable security oi- other thing receiveil. fraudulently con-
verts the same to his own use, or frouclulently omits t<j account for or
pay the same or any part thereof, or to account for or pay such
proceeds or any part thereof, which he was required to account
for or pay as atbresaid. : > • / . v " J . ' ;• i
2. I'roviiled. that if it be part of the said terras that the money
or other thing received, or the proceeds thereof, shall form an item
in'a debtor and creditor account l)etween the person receiving the
same and the ])erson to whom he is to account tor or pay the same,
and that such last mentioned person shall rely only on the persoiuil
liability of the other as his debtor in resj)ect thereof, the proper
entry of such money or proceeds, or any part thereof, in such
account, shall be a sutticient accounting for the mouthy or proceeds,
()r part thereof s<j entered, and in such case no fraudulent conver-
AGENTS. 443
8ion of the amount accounted for shall bo decm('<l to luivc lakcri
place. (Code, Art. 3(»8.)
TIk'IY by lloldt'r of Power of \ttnr^u^^y,—/<:very
one commits tlicft who. being ontru.itod, either solely or jointly
with any other pei-son. with any power of attorney for tlie sale,
mortjjfage, pledge or other disposition oi' nny property, rcid or ])er-
Honal. whether callable of lieing stolen or not. fraud u lent I}- sclh,
mortgages, pledges or otherwise disposes of the same or any part
thereof or IVaudulently converts the |>roceeds of any sale, mort-
gage, jtledge or other disposition of such pro|)erty. or any )tart of
such proceeds, to some pur|iosc other than that for which he was
intrusted with snch power of attorney. (Code. Art. ."50!).)
Offences against Articles 308, 30!> and 310, are punishable by
14 years imprisonment under Article 320; and Article 3.')7 pro-
vides that when, in cases of theft, the value of the article exceeds
$200, two years shall be added to the term ol' iiliprisonnu'nt.
Th4>tll l»y .^liMiippropriatiiiH; Fr4»«'<><'<lN II<>I<I
under lliri'ctioii, — Eoery one commits theft who. — having
received, cither solely or jointly with any other person, any money
or valuable security or any power of attorney to sell any property,
real or personal, with a direction that such money, oi- any ])art
thereof, or the ])roceed8, or any part of the proceeds of such secu-
rity, or such property, shall be applied U> any purpose or paid to
any pei-son specitied in such direction, — in violation of good faith
and contrary to such direction, fraudulently applies, to any other
pur|)ose, or paj^s to any other person, such money or proceeds, or
any part thereof.
2. Provided, that where the person receiving such money, secur-
ity or power of attorney, and the person from whom he receives it,
deal with each other on such terms that all money paid to the
I'ormcr would, in the absence of any such dii'ection, be properly
treated as an item in a debtor and creditor account between them,
this section shall not apply, unless such direction is in writing. •
, The law, as now contained in the above Articles 308, 309, and
310, is so framed as to appl}' not only to bankers, merchants, brok-
ers, attorneys and agents, but to all jiersons whomsoever, and
2!>
444 PRAOTIOAL GUIDE TO MAGISTRATES.
they are also ho f'nimod that it shall not be essential, (especially
in connoftion with Articles 308 and 310), that the direction, if
any, should bo in writiny, nor that the conversion or other wrong-
ful dealing, in order to be theit, be against some direction m writ-
ing, but. that if there is no written direction, it si ill be sufficient
to show that the conversion or other wiongful dealing was against
a verbal direction.
Aqgres8ion8 by Foreigners.
(See Levying War, ^osf)-
Aiders and Abbettors.
(Sec Parties to Offences, p. 58, ante. ^
Allegiance.
Matural and Liocal Allei^iaiive. — The duty of alle-
giance is based upon the relation which subsists between him who
owes it and the Crown, and upon the privileges derived by the
former from that relation. Allegiance is either natural or local.
Natui'al allegiance is that which a natural born subject owes at all
times and in all places to theiJrown as head of that society of which
he is a member. Local allegiance is founded upon the protection
which a foreigner enjoys for his pci'son, his family and effects
during his residence here ; and if such foreigner while so resident
here commit an oifence which in the case of a natural born subject
would be treason, he is dealt with as a traitor ; and this is so, whe-
ther his sovereign be at peace with us or not. (1) . ' •
(See Oaths OF Allegiance, ^osf.) . '
Animals.
AiilinaiN capable of being stolen. — (See Theft,
post.) ^; '.''■' ■■;'.-.■,..' /;:',V^-: ■;''■:■:.,•''..'• ^- -'
Killinig, 9Ialinln)g or Injuring Animals, not
being Cattle. — Every one is guilty of an offence and liable, on
summary conviction, to a penalty not exceeding $100, over and
(1) Broom'B Comm. on Com. L., 5 Ed. 877, 878.
ANIMALS. 445
• ■,...-.-■■.■■■
above the umouiit oC injury done, oi* to three months' impriHou-
ment, with or without hard labour, who wilfully kills, maims,
wouiuIh, poisons or injuroH any dog, bird, beast, or other animal,
not being cattle, but being either the subject of larceny at common
law, or being onliiuirily kepi in a state of confinement, or kept for
any lawful purpose.
2. Every one who, having been convicted of any such offence,
afterwards commits any offence under this section, is guilty of an
indictable offence, and liable to a fine or impinsonment, or both, in
the discretion of the court. (Code, Art. 501.)
The imprisonment under clause 2 of this Article will be five
years. (See Art. 1)51, of the Code.)
Tlicft ol" uiliiiialiii. — Kvery one commits theft, and steals
the creature killed who kills any living creature capable of being
stolen with intent to steal the carcase, skin, plumage or any part
of 8uci> creature. (Code, Art. 307.)
The stealing of cattle is punishable, under Article 331, of the
Code, by fourteen years imprisonment ; and, according to Article
30*7, the same punishment will apply to any one killing cattle with
intent to steal the carcase, etc., thereof.
^itealiiiK: <Io};n, birdN, l»ea«ti«, etc. — Kvery one is
guilty of an offence and liable, on summary conviction, to a penalty
, not exceeding twenty dollars over and above the value of the pro-
jjcrt}- stolen, or to one month's imprisonment with hard labour,
who steals any dog, i>r any bird, beast or other animal oi'dinarily
kept in a state of confinement or for any domestic purpose, or /or any
lawful purpose of profit or advantage.
-'^ 2. Every one who, having been convicted of any such offence,
afterwards commits any such offence, is liable to three mouths'
imprisonment with hard labour. (Code, Art. 332.)
Plgeond. — Hvery one who unlawfully and wilfully kills,
wounds or takes any house-dove or pigeon, under such circumstan-
ces as do not amount to theft, is guilty of an offence and liable,
upon complaint of the owner thereof, on summary conviction, to a
penaUy not exceeding ten dollars over and above the yalue of the
bird. (Code, Art. 333.)
440 PRACTirAI, (lur'iE to M.\»1IST1I.\TKS.
Undor tho HvHt clauso ol' Arti'ile H(»4 of tlic CoiW, taiiu' |)igt'()iiH,
whilo in a doviH'ote, or on llioii' ownor's land arc cajiaMi' of lieini;
Htolon. Tlu' pnnishnuMit would Ik' inidor Artick' 'Aii'2. aupra.
OyNltTN. — Kvi'ry one is ,i^iiilt3' ol' an indiclalik' ort'cnco and
Habit' to sovt'ii years' iniprisonnionl who sttuils oystors or oystor
brood. .
2. Kvory one is guilty ol' an indietublo ott'onco anci liable to throe
month's imprisonment, wlio uidawl'ully and wilfully uses any
dredge or not, i''strunient or engine wliatsocver, within the limits
of any oyster bed, laying or ti'^^hery, being the property of any
other person, and suftieiently marked out or known as such, for
the purpose of taking oysters or oyster brood, although none aro
actually taken, or unlawfully and wilfull}', with any not, instru-
ment or engine, drags uj)on tho ground of any sueh fishery.
Nothing herein applies to any person fishing for or catching
any swimming fish within the limits of any oyster fishery with
any not, instruments or engine adai)ted for taking swimming fish
only. (Code, Art. 334.)
(See Cattle, post.) • ' .
(See Cruelty to Animals, post.)
Arms. '■''' ''\ ■ ■'
(See Offensive Weapons, jy&s^) \
* Ahmy and Navy. ' ^
Iiicltini; to :?Iutiiiy.— Every one is guilty of an indictable
offence and liable to imprisonment for life who. foj- any traitorous or
mutinous purpose, endeavours to seduce any j)er.son serving in Her
Majesty's forces by sea oi- land from his dut}- and allegiance to
Her Majesty, or to incite or stir up any such })erson to commit any
traitorous or mutinous practice. (Code, Art. 72.)
GiiticiiiK' Noldicrw or H»ilor» to Desert.— Hvery
one is guilty of an indictable oft'ence who, not being an enlisted
soldier in Her Majesty's sei-vice, or a seaman in Her Majesty's
naval service —
/ AKMY AND NAVY. 44t
(a.) by words or with money, or by any other moans whatso-
ever, directly or indirectly, persuades or procures, or goes about or
endeavours to persinule, prevail on or procure, any such seaman or
soldier to desert from or leave ller Majesty's military or naval
service ; or
{b.) conceals, receives or assists any deserter from ller Majesty's
nnlitary or naval service, knowing him to be such deserter.
2. The ott'ender may be prosecuted by indictment, or summarily
before two justices of the peace. In the former case he is liable to
tine and imprisonment in the discretion of the court, and in the
latter to a penalty not exceeding two hundred dollars, and not less
than eighty dollars and costs, and in default of payment to im-
prisonment for any term not exceeding six months. (Code, Art.
7;{.)
This article provides that an ott'ender may be prosecuted either
by indictment or summarily, and it specifies the penalty to be
incurred on a summary conviction ; but in the case of a conviction
upon indictment, although it enacts that the ott'ender shall be liable
to tine and impnsonment in the discretion of the couit, it does not
specify the amount of the tine nor the length of the imprisonment.
Article 951, liowever, provides that a person convicted of an in-
dictable ott'ence for which no punishment is specially provided
shall be liable to five years imprisonment.
Section 9. E. S. C, chap. 169, ;>rovides that one moiety of the
amount of any penalty recovered under this Article shall go to the
prosecutor and the other moiety to the Crown.
Any one reasonably 8U8])ected of being a deserter from Her
Ma,je8ty's service may be arrested and brought before a justice of
the peace and held till claimed by the militarj'^ or naval authorities.
(See Art. 561, Code.)
Resisting; Execution of Warrant for Arrest of
Deserters. — Every one who resists the execution of any war-
rant authorizing the breaking open of any building to search for
any deserter from Her Majesty's military or naval service is guilty
of an ott'ence and liable, on summary conviction before two justices
of the peace, to a penalty of eighty dollars. (Code, Art. 74.)
448 I'RAOTIOAL aUIDK TO MAQtHTRATES.
No one is entitled to break open any building to search for a
deserter witl"»ut leaving obtained a warrant lor that purpose from
a justice of the peace. (See Art. 6({1, Code.)
Entit'iiiK Militittinc'ii or IVIoiiiited Police to
DeKiert* — l*jVory one is guilty of an ottenco and liable, on sum-
mary conviction, to six months' imprisonment, with or without hard
labour, who —
(a.) persuades any man who has been enlisted to serve in any
corps of militia, or who is a member of or has engaged to serve in
the North-West mounted police force, to desert, or attempts to
procui-e or ]>ersuade any such man to desert ; or
(6.) knowing that any such man is about to desert, aids or
assists him in deserting ; or
(ft.) knowing any such man is a deserter, conceals such man or
aids or assists in his rescue. (Code, Avt. 76.)
Kecelviiiis Kc||(lmenfal IVcceNNarlcN, etc., from
fSoldiern or Deserters. — Rvery one is guilty of an indict-
able offence and liable on conviction, on indictment, to five years'
imprisonment, and, on summary conviction before two justices of
the peace, to a penalty not exceeding forty dollai'S, and not less
than twenty dollars and costs, and, in dofauH of payment, to six
months' imprisonment with or without hard labour, who —
(a.) buys, exchanges or detains, or otherwise receives, from any
soldier, militiamen or deserter, any arms, clothiiig nr furniture be-
longing to Her Majesty, or any such articles belonging to any
soldier, militiamen or deserter as are generally deemed regiTnental
necessaries according to the custom of the army ; or
(6.) exchanges, buys or receives, from any soldier or riilitiaman,
any provisions, without leave in writing from the officer commanding
the regiment or detachment to which such soldier belongs. (Code,
Art. 390.)
See sec. 13 of 38 & 39 Vic, c. 26 (Imp.), and 44-46 Vic, c. 68,
8. 166 (Imp.), and note, at p. 908 of Archbold on Cr. PI, & Ev.>
21 Ed.
ARMY AND NAVY. 449
KeeeiviiiK, c^c, MeceNNariea from ]9IarliieN or
MeMertvrM* — Kvory ono iH guilty of uii indictublo ortbi»c(» uiul
liable, on conviction, on indictment, to tivo youi-s' iinpriHoninont,
and on sumrauiy conviction bof'oro two juntico^: of the peace, to a
penalty not exceeding ono hundred and twenty doUarH, and not
lesh than twenty dollacH and costs, and in default of payment to
six months' imprisonment, who buys, exchanges or detains, or
otherwise receives from any seaman or marine, upon any account-
whatsoever, or has in his possession, any arms or clothing, or any
Huch articles, belonging to any seaman, marine or deserter, as are
generally deemed necessaries according to the custom of the navy.
(Code, Art. 391.)
KvcelvInK, etc., a Seainaii'M Property. — Kvery
one is guilty of an indictable ottence who detains, buys, exchanges,
takes on pawn or receives, from any seaman or any person acting
for a seaman, any seaman's property, or solicits or entices any sea-
man, or is einjjloyed by any seaman to sell, exchange or pawn any
seaman's property, unless he acts in ignorance of the same being
seaman's property, or of the person with whom he deals being or
acting for a seamau, or unless the same was sold by the order of
the Admiralty or Commander-in-Chief.
2. The otfender is liable on conviction, on indictment, to tivo
years' imprisonment, and, on summary conviction, to a penalty not
exceeding one hundred dollars ; and for a second otfenco, to the
same penalty, or, in the discretion of the justice, to six months'
imprisonment, with or without hard labour.
3. The expression " seaman " means every person, not being a
commissioned, warrant or subordinate officer, who is in or belongs
to Her Majesty's navy, and is borne on the books of any one of
Her Majesty's ships in commission, and every person, not being an
offlcor as aforesaid, who, being borne on the booki of aliy hired
vessel in Her Majeoty's service, is, by virtue of any act of
Parliament of the United Kingdom for the time being in force for
the discipline of the navy, subject to the provisions of such act.
4. The expression " seaman's property " means any clothes, slops,
medals, necessaries or articles usually deemed to be necessaries for
sailors on board ship, which belong to any seaman.
450 I'HAOTICAL UUIDE TO MAUI8TBATB8.
5. Tlif oxprcHNioti "Adiuirulty" iiu-iuih tin* Jjo.'d Ili^^li A<linirul
of (lie I'liilod Kinj^iloni, or |1k comiinHHinnorH tor i-xtu-iitin/jf tlio
otHco of LonI llif,Mi Admiral. (<'ndf, Art. .-{Uli.)
Wot NiitlNtyiuK •liiNtir<> that PomnonmIoii ol'Hca-
iiiun*N Property In Ijawiiil. — Kvory one, in whimi pnH-
wssioii any HOiimnn'H proporty is found who doos not Niiti«fy the ,
JuKtico of tho p«aco before whom he is taken or Humnionod that he
came Ity Hueh property hiwfuUy, in liable, on nummary conviction,
to a tine of iwonty-tive dollars. (Code, Art. 31)3.)
Ahrest.
(Hoe Summary Abrest, p. 1)1, aute.)
Arson.
Kver}- one is guilty of the indietahlo ott'once of arson, and liable
to imprisonment for life, who wilfully seta fire to any building or
strueturo, whether such building, erection orstructure is completed
or not, or to any stack of vegetable produce or of mineral or vege-
table fuel, or to any mine, or any well of oil or other combustible
substance, or to any ship or vessel, whether completed (»a not,
or to any timber or matenals placed in any shipyard for building
or repairing or fitting out any ship, or to any of Jlor Majesty's
stores or munitions of war. ((Jode, Art. 482.)
Arson, at common law, was a felony, and was the malicious and
wilful burning of the house of another. (1) The burning of a party's
own house did not come within this definition ; although the burn-
ing of a man's own house in a town or so near to other houses as to
create danger to them was a great misdemeanor at common law ;
(2) and, to constitute arson at common law, there must have been
an actual turning of the whole or some part of tho house, (3)
although it was not necessary that any flame should be visible. (4)
But clause 3, of Article 481 of the Code, provides that where an
(1) 3 Inst. 66; 4 Bl. Com. 220.
(2) 1 Hale, 568 ; 2 East, P. C. 1027.
(3) 1 Uale. 569.
(4) R. V. RuBsell, 1 C. &. M. 641 ; R. v. Stallion, R, & M., C. C R., 398 ; B.
V. Parker, 9 C. & P. 45.
AHHON, 4S1
oH'ciuH! coiimHtH ill an injury to aiiytliiiig in which tho oHoimUm' huH
an iiitorost, tho oxistenc'o oI'mucIj intoruHl Mhiill not pTOVont his act
tit'in/; an ort'iMict' if (i(>in> with int«'n» to (U'fraud. Ami, thnn«tori).
a jHTstin will l)(i gnilly of arson cvon if liu hv thi< ownor of tho
hnilding, etc., if ho wilfully m«tH tiru to it, with intent to defraud:
and if ho ho not tho ownor of, hut havo oidy koiho partial intoroHt
in tho l)uildin<^, et<'., ho will ho guilty of arsou iiy notting tiro to it.
whothor ho dooM it with intont to dofraud or not. It will ho soon,
that, iuHtoad of tho words «'///«/ burning, u»od in tho oonunoii law
dotinition of arson, tho words usod in Artiolo 482 arc, m)j7/^m//^ 8«<s
fire to. nu'roly ; and tho Itnrning of any part of tho huilding, e/c,
howovor slight, will bo sutHoiont, although the tire ho aftorwui'da
oxtinguishod. (I)
Whoro tho quostioii is, whothor tho hurning was acoidrntal or
WILFUL, ovidonoo is admissiblo to show that, on anothor occasion, the
defendant was in such a situation as to render it ]»robahlo that he
was then engaged in tho coniniissiou of the like otfonce against tho
same ])roi)orty ; (2) or, that ho had jireviously occupied houses
which had hoen on tire and in respect of which he made insuranco
claijiis and got paid ; (3) hut on a charge of arson, where the
question was as to the prisoner's identity, evidence that, a few days
previous to tho tire in question, another building of the prosecu-
tor's was on tire, and that the prisoner was then standing by
with a demeanor showing inditferonco or gratification, was re-
jected. (4)
An unfinished house, of which all tho walls, external :».nd inter-
nal, are built and finished, the roof on, and completed, the ♦looriug
of a considerable part laid, and the intonial walls and ceilings pre-
pared for plastering, was held to be a " building.'' (5)
It will bo seen, that, Article 482 covers any building or structure
whatever, whether completed or not ; and, therefore, the distinct-
ions formerly existing, as shown by a number of cases cited in
(1) 1 Hawk, c. 39, s. 17; 1 Hale, 569; Dalt. 506.
(2) R. V. Dossett, 2 C. & K. 306.
(3) R. V. Gray, 4 F. & F. 1102; and R. v. Yoke, R. & R.531.
(4) R. V. Harris, 4 F. & F. 3t2.
(5) R. V. Manning, L. R. 1 C. C. R. 338; 41 L. J. M. C. 11.
462 PRAOTIOAL (inlDB TO MADIHTKATIH.
ArcliboM, (1) ill n^giird to tho (Icrtcriptioii of tlio liiiililiii^, or itH
Htiiti! of complotoneHH or iricomplctoiicHH, uro no longor iiiatitrial.
Whon n pcrHon Ih (tliiirgtMl with Htittinj^ Urc to IiIm own Iiouho, the
Intont to dofraiid, — which, uccorditig to Article 481, cIhiinc .*{, Ih an
oHHontial iiigrcdiont of the ofVciicc, — cannot [w inlVrrod IVoin tho
act itHcIt', hut muHt be proved l»y other evidence. Where, there-
lore, a defendant wiih ciiargud with arnon with intent to defraud
un inHuraiicc c(>ni|iany, and a HutKcient notice to produce the in-
Riirance policy had not been given, it waH held that Hccoiidary evi-
dence of it could not he given, and, that, there being no other
evidence of the iiiHurance. the defendant muHt be ac»iuitted. (2)
In one case, the counsol for tho proHeculion Hiiggested, an a
motive for tho act, the defendant'H deiHire to realiwe the amount of
an iiiHurance which hIio had upon her goodn ; and. upon evidence
being tendered to hIiow that she wiih in easy circunistances. so as
to negative the suggested motive, the evidence was admitted. (3)
A (juantity of straw, packed on a luriy, in ctuirse of IransmiH-
Hioii to market, and left for tho night in an inn-yard, was held not
to be a s<ac/t of straw. (4)
Whore a sailor on board a sliip entered a jmrtof the vessel, where
Hpirits were kept, for the jturposo of stealing some rum, and, while
ho was tapping a cask, a lighted match held by^ him, came in con-
tact with the spirits wliich were flowing from tho cask tapped by
him, and a tiro ensued, which destroyed the vessel, it was held that
a conviction for arson of tho ship could not, under these circum-
BtnncoB, be uphold. (5)
A pleasure boat, eighteen feet long, was set tire to, and Patteson,
J., inclined to think, that it was a vessel within tho meaning of the
Act, but the prisoner was acquitted on tho merits, and no decided
opinion was given. (6)
(1) Arch. Cr. PI. & Ev. 21 Ed. pp. 590, 591.
(2) R. v. KitBon, Dears. 187 ; 22 L. J. M. C. 118.
(3) R. V. Grant, 4 F. & F. 322.
(4) R V. Satchwell. L. R., 2 C. C. R., 21 ; 42 L. J. M. C. 63.
(6) R. V. Faulkner. 13 Cox, C. C. R. Ir. 550.
(tf) R. v. Bowyer, 4 C, «& P. 659.
ARHON. W.i
Aitriiipt io <'oiiiiiilt ArNOii.— Kvory ono Im guilty of
an iiKlictiihlf otl't'iu** uiul lialiU' to lourU^t'ii yt'iiPH' iiiipriHu iimiil,
who wilfully iitlt'ii»|tts to Hi't th'f to imythiiijf mcntioncil in ArlicU'
4H2, or who wilfully sotH lire to any HiilmtaiKo ho Mituatfd that lie
knowH that anything nioiitionod in thi< hint pmcotMliMg wt«!ti(»ii in
likely to catch tiro thcivfroni. ((!o(U«, ^Vrt. 4H;{.)
A, waH char^t'd with attcniptintij to wt Hm to a (Iwi'llinj^-houw,
and I), with inciting and hiring; him to coniinit tht< olhtntc
Under H'h direct ion.H A. had arranged and placed pieces of hlanki-t
Natiirated with coal-oil againnt the doors and HashoH of tlie iionno,
liad lighted a match which he held in his lingers till it was burn-
ing well, and had then put the light down close to the hlankel with
the intention of setting the house on fire, hut just l)efore the hia/.e
touched the hlanlcet the light went out, and lie threw away the
mat(di without making any further attempt. Held, that the
attempt was complete. (1)
The men' act of buying a box of mat(dics with the intention of
using them to set a corn stack on tire is too remote to constitute
an attcmjit to sot tho Hre. But where the evidence showed that
the [irisoner had knelt down before a corn stack and had actually
lighted a nuitch with the intention of setting the stack on tire, and
blew out the light, on observing that he was watched, it was held
that this was an attempt to burn the stack. (2)
NettiiiK Fire to ('ropN, Ktt*. — Kvery one is guilty of
an indictable otl'ence, and liable to fourteen years' imprisonment,
who wilfully sets tire t<t —
(a,) any crop, whether standing or cut down, or any wood,
forest, coppice or plantation, or any heath, gorse, furze or fern ; or
' (6.) any tree, lumber, timber, logs, or floats, boom, dam or slide,
and thereby injures or destroys the same. (Code, Art. 484.)
Every one is guilty of an indictable offence and liable to seven
years' imprisonment who wilfully attemi'TS to sot fire to anything
mentioned in the last precoeding section, or who wilfully sets tire
to any substance so situated that he knows that anything men-
(1) R v. Goodman, 22 U. C. C. P. 338.
(2) R. V. Taylor, 1 F. & F. 511, 512.
454 I'HAirricAi. uhiuk to maoihthatkh.
ti<»iu>(i ill thtt luMt |iri>i'tMliii|{ N«>i'tiiiii iH likt'ly li> cittrh Itiv thui't*-
In.m. (("(»< If, Art. IHrt.)
A ilcri'iKliiiit, who m'l tin' to ii kuiihikm' Iioiihi* in a wood, wliicli
lire WHS tlifiu'c rniiiiiMiiiifUtcd to tht< wood, wuh held to lie prii|i«ti'ly
convic'ti'd on an iiidictint'iil clmr^in^ liiiii with Hcttiiii; tiro to \h^^
wood. (1)
Whvn* u |»riMoiit'r wan iiidiclod tor Hfltiii;; Hit to ^rowiii^ furs'/',
Lo|)«'Z, .1.. dii'(<('tt<d thi> jury that it'Nht> mc| tire to the tur/A>, thiiik-
iiiK< iiltl'on^h orroiiootiNly, that h\h> had a ri^'lit to do ho. thcyoii^lil
not lf» convict hi>r. (2)
lt«'4*kl«*NMl;»' NeltliiK FIrt' lo iiiiy For<'Ml« Trfe,
Witv* — Kvcry on*) in ><uilty of an indictahii' otfcnco and iiahlc to
two yearn' inipriHonrncnt, whi>. hy .such nc;,'ii^cii(c an nhown liiin
lo ho rccitk'HM or wantoidy roifardlcMs of coiisi'(|nonccH, or in viola-
tion of a provincial or municipal law of tho locality, wts Hiti lo
any forost, tree, nninufacturt'd lumhcr, sfjuarc tiniiicr, lo^«or tloatn,
hooni, dam or wlidu on the Crown donuiin, or land Icaniid or law-
fully hold for tho purpoHo of cutting timhor, <tr on privatt* pro-
porty, on any crook t)r rivfr, or rollway, hoach (m- wharf, so that
the same »'s injured or destroyed.
2. The ma^iHtratu invoHligating any MUch charg«' may, in his dis-
crotion, if tho couwquoncos luvvo not boon HoriouH, diHpoMo of the
nuittor Huuinuirily, without wonding tho otiondor for trial, hy im-
poaing a tlno not oxeooding fifty dollars, and in default of payment,
hy Lho committal of tho otfondor to prison for any torm not ox(!Ood-
ing 8ix months, with or without hard labour. (Codo, Art. 480.)
ThreatN to Burn. — Kvory one h guilty of un indictable
otibnco and liable to ton yoars' impriNonmont who wondH, delivorH or
utters, or directly or indirectly cauHOH to l)o received, knowing the
oontentH thereof, any letter or writing threatening to burn or doH-
troy any building, or any rick or staolc of grain, hay or straw or
other agricultural produce, in or under any building, or any ship
or veHsel. (Codo, Art. 487.)
Clause 2, of Article 969 of the Code, (pp. 419, 420, ante), pro-
(1) R. V. Prioe,9C. &P. 729.
(2) R. V. Twoee, 14 Cox, 327.
AHtAl'LTN. 4&5
vlditH Unit, ii|Miii ('•irii|ilaiiit Ity any porMori, thiit, oii uccoiiiit of
ttii'calH or oil any Dtlirr ai roiiiit, the (■oinplainaiil Ih, mi r(>aHOiial)l(t
j^nMiiiilft, alVaid that IiIh |iro|i(>rty will lie set tin- (<», tin- jiiHtict'
ht<arini{ tlio riiiii|ilaiiit may ivqitiro tho purNon, wlio lian madi' tho
tliroalM. to ^iv<' Mcciirily to l<c>i'|» tlio poacu.
ANHAriiTH.
.iMNiillIt ll<'fiil(>(l.- -All asHiiiilt \H tl.i' act o|' intentionally
upplyiii^ lone 1(1 ilic iKTMoii of anotlicr, diivctly or in<liiv<!tly, or
aft»'Mi|iliii^ or llircalt'iiiii)^. Iiy any act or j^cHturo. to ajiply f'onu to
the |ici-Koii o|' aiioilicr. if the pcrnoii making tlio threat, liitH, or
CHUHCM the other to lielieve, Upon reiiMonahle ^roiliulN. that he luiH,
pruHeiit ahility to «itl'eet hin purpose, and in oither caHe. without the
consent id' the other or with sindi coiiMeiil, if it is ohtained hy
fraud. (Code, Art. 258.)
The following are given as examples ,if what amt>unts to an
Rssault, namely : strikinjj at aiiothtu* with a caiu\ stick or the
flRt, although the person striking misHos Ids aim; (1) <lrawing a
Hword or liayonet, or throwing a Itotfle or glass with itiient to
strike; presenting a loaded gun at a man who is within the ilis-
tance to which tiie gun will carry ; (2) dis(diarging a pistol (loaded
with powder and wadding) at a person so near that it might have
hit him ; (3) and using tho tist in a threatening manner to the
face of a person. (4)
A person who presents and discliargeB a tirearm, wliitdi he knows
to bo unloaded, at another, who does not know that it is unloaded,
commits an assault. (5) And Article I0i» of tho Code makes the
pointing of an unloaded tiivarm at another a substantive otVeiiee
l»unishable l»y 81(K) fine.
If a medical man unnecessarily strips a female |iatient naked,
under pretence of not being able otherwise to judge of her illnesH,
he commits an assault, (fi)
(1) 2 Roll. Abr. 554.
(2) R. V. Baker. 1 C. & K. 254 ; Osborn v. Veitch, 1 F. & F. 317.
(8) R. V. ( ronan, '.'4 U. C. C. P. 102.
(4) R. V. Harmer, 17 U. C. Q. B. 565.
(5) R. V. 8t. George, 9 C. & P. 483.
(fl) R. V. Rosineki, 1 Moo. C. C. 12.
4fi$ PKACTIOAI- GUIDE TO MAC1ISTKATK8.
Any attoin|)t unlawfully to upply, directly or iiidiroctly, tho
least foree to the jjei-son of uiiother will uniouiit to an UHHault.
witliout any actual touching of the person assaulted. (1) Hut
mere words of themselves will not amount to an assault. (2) And
when the party affected consents to the act done, there is. us a rule,
no assault. (3) But this rule has its exceptions. For instance, the
altove Article, 258, shows that an assault may be committed upon
a person, notwithstanding his consent, if such consent be obtaineJ
by fraud ; and Article 2()1 of the Code provides that it shall be no
defence to a charge of indecent assault on a young person under
fourteen, to prove that he or she consented to tho act of in-,
decency.
The following are examples of what, under the above Article,
would be an assault, and what, under the common law, would
amount to a battery, namely : any touching or laying hold (how-
ever trifling) of another's body or clothes, in an angry, revengeful,
rude, insolent or hostile manner ; (4) as for instance, thrusting or
pushing him, in anger ; holding him by the arm ; spitting in his
face ; jostling him out of the way ; jiushing another man against
him ; (5) throwing a squib at liim ; striking a horse upon which
he is riding, whereby he is thrown. (6)
It is a good defence to prove that the alleged assault happened
by misadventure. Thus, if a horse run away with his rider and
run against a man, it would be no assault, and the rider would
not be puiushable, unless he were guilty of some culpable negli-
gence. (7)"
It is also a good defence to prove that the alleged assault hap-
pened whilst the defendant was engaged in an amicable contest, as.
some sport or game, not unlawful nor dangerous. (8)
It is likewise a good defence to prove that the alleged assault
was merely the lawful and moderate correction of a child by its
(1) R. V. Shaw, 24 U. C. Q. B. 619; Stephens v. Myers, 4 C. & P. 660.
(21 R. V. Langford, 15 Oni. R. 52. . '
(3) I{. V. Connolly, 26 U. C. Q. B. 320.
(4) Rawllngs v. Till, 3 M. & \V. 28.
(5) Bull, N. P. 16.
(6) 1 Mod. 24 ; W. Jones, 444.
(7) Gibbons v. Pepper, 2 Salk. 637.
(8) Post. 260.
ASSAULTS SEIiP DEFENCE. 46t
parent, or of u sorviint by his master, or of a scholar by his
teacher. (1)
It is not an assault or battery to merely lay one's hand upon
another in order to attract his attention, provided it bo not done in
a hostile manner. (2)
Nelt'-dofonoo iiKaiiiNt (a) Unprovoked, and (6)
Provoked ANNault. — Kvery one assaulted, not having pro-
voked such assault, is justified in repelling force by force, if the
force he uses is not meant to cause death or grievous bodily harm,
and is no more than is necessary for the purpose of self-defence ;
and every one so assaulted is justified, though ho causes death or
grievous bodily harm, if he causes it under reasonable apprehen-
sion of death or grievous bodily harm from the violence with
which the assault was originally made or with which the assailant
pursues his ])urpo8e, and if he believes, on reasonable grounds,
that he cannot otherwise preserve himself from death or grievous
bodily harm. (Code, Art. 45.) • ,. ' ,•
Every one, who has without justification assaulted an-
other, or HAS provoked an assault from that other, may never-
theless justify force subsequent to such assault, if he uses such force
under reasonable apprehension of death or grievous bodily harm
from the violence of the person first assaulted or provoked, and in
the belief, on reasonable grounds, that it is necessary for his own
preservation from death or grievous bodily harm : Provided, that
he did not commence the assault with intent to kill or do grievous
bodily harm, and did not endeavour at any time before the neces-
sity for ])reserving himself arose, to kill or do grievous bodily
harm : Provided also, that before such necessity arose he declined
further conflict, and quitted or retreated from it as far as was
practicable. (Code, Art. 46.) '
2. Provocation, within the meaning of these two articles, may
be given by blows, words or gestures. (Code, Art. 46, ss. 2.) (3)
(1) 1 Hawk., c. 60, s. 23. c. 62, s. 2. See also Art. 65 of the Code, under
the bead, Discipline, poal.
(2) Coward v. Baddeley, 28 L. J. Exch. 290.
(3) For full illustrations and 'authorities, see Crankshaw's C. C, pp. 30-32.
. V
458 PRAOTICAI, aUIDE TO MAGISTRATES.
Prevention ol* ANNaiilt with InNiilt. — Every one is
justified in using force in tlef'enee of his own person, or that of imy
one under liis proiee'.ion, from an assault accompanied with insult :
Provided, that h'- uses no more force tlum is necessary to prevent
such assault, or the repetition of it : Provided also, that this
section shall not Justify the wilful infliction of an} hurt or mischief
disproportionate to the insult which the force used was intended to
prevent. (Code, Art. 47.)
I><>len(*i' of ^4»%'«>al»lt' Property. — Kvery one. who is
in peaceable possession of anj' moveable property or thing, and
every one lawfully assisting him is jttsU'fied in resisting the taking
of such thing by any trespasser, or in retaking it from such tres-
])a88er, if in cither case he does not strike or do bodily harm to
such tresjiasscr ; and if. after any one, being in peaceable possession
as aforesaid, has laid hands upon any such thing, such trespasser
persists in atteTn])ting to keep it or to take it from the ])ossessor,
or from any one lawfully assisting him, the trespas.ser shall be
deemed to commit an assault without justification or provocation.
(Code, Art. 48.) ". •/' ! . '^^ ■ . - :■■ -^ ,'' ;:■■■:-:: '■ ■ - •
" Under this article, the fact of a trespasser persisting in attempt-
ing to take or keep the thing after the possessor has laid hands
upon it, places the latter in the position of a ])crson acting in self-
defence, as contemplated by Article 45, supra.
Every one who is in j»eaceable possession of any moveable prop-
erty or thing under a claim of right, and every one acting under
his authority; is protected from criminal responsihility for defending
such possession, even against a person entitled bj' law to the jios-
session of such property or thing, if he uses no more force than is
necessary. (Code. Art. 4!l.)
Every one who is in peaceable ))ossession of any moveable pro-
perty or thing. b"« neither claims right thereto nor acts under the
authority of a persoi claiming right thereto, is neither Jus^^e^/ nor
itrotected from criminal rcupotisihilitij for defending his possession
against a person entitled by law to the possession of such projierty
or thing. (Code, Art. 50.)
Uetenee of*l>wellinK Honso. — Kvery one wno is in
peaceable po8.session of a dwelling-house, and every one lawfully
ASSAULTS. — DEFENCE OP PROPERTY. . >- 469
assisting him or acting by his uutliority, is justified in using such
force as is nocesssary to prevent the forcible Itreaking and (Mitering
of such (Iwelling-liouse, either hv muht or day, l»y any person
with the intent to commit any indictable otJ'ence therein. (Code,
Art. 51.) '^ ■ - : ;:;■'- •
J Every one, who is in peaceable possession of a dwelling-house,
and every one lawfully assisting iiim or acting by his authority, is
justified in using such force as is necessary to prevent the forcible
breaking and entering of such dwelling-house ijy niout by any
person, if he believes, on reasonable and i)robable grounds, that
such Itreaking and entering is attempted with the intent to commit
any indictable otfence therein. (Code, ilrt. 52.)
The distinctions made by these two Articles a|)pear to be that,
where there is an actual intent to commit an indictable ott'ence,
necessary force to prevent the breaking and entering may be used
whether it is attempted by night or by day ; but if there be
merelj' a reasonable belief ihixt the l)rcaking and entering is attempt-
ed with intent to commit an indictable ott'ence, the attempted
breaking and entering must occur in the night time, to justify the
use of force to i)revent it.
While these Articles, — 51 and 52, — have reference to a breaking
and entering with intent to commit an indictable ott'ence, Article
5.^, infra, deals with the case of a mere trespasser.
IJc'fViK't' of Itcal ■■ro|»erty.— Ever}- one who is in
peaceable possession of any house or land, or other real ])roperty,
and every one lawfully assisting him or acting by his authority, is
justified in using force to prevent any jterson from tresp.\ss[.\(i on
such y)roperty, or to remove him therefrom, if he uses uo more
force than is necessary ; and if such trespasser resists such attempt
to i>revent his entry or to renu)ve him such trespasser shall be
deemed to commit an assault without Justitication or provocation.
(Code, Art. 53.)
A a trespasser enters B's house and refuses to leave it. ^ is
entitled to use f'l necessary force to remove A, but not to strike
him. If, on B api)lying such necessary force, A resists, which is
equivalent to an unprovoked assault, or if he otherwise actually
30
460 PRACTICAL GUIDE TO MAGISTRATES.
assault B, B may defend himself, overcome A's resistance, and per-
sist in using the nocossury force to remove A from the house. (1)
A, on entering his own house, found B there, and desired him to
withdraw, but B refused to go. Upon this, words ensued between
them, and A becoming excited proceeded to use force, and, by a
kick which he gave B, caused hip death. A was not justified in
turning B out of the house by m jans of a kick, and was held guilty
of manslaughter. (2)
A train conductor, who, by the use of no more force than is
necessary, attempts to put off the cars a person who refuses, after
being several times requested, to pay his proper fare, is not liablo,
under the Eailway Act, for an assault. (3)
A and his servant B insisted on placing corn in C's barn, which
she refused to allow. A and B insisted and used force ; a s(;uiHo
ensued, in which C received a blow on the breast, upon which she
threw at A, a stone which killed him. It was held that as A re-
ceived the blow in an attempt to invade C's barn against her will,
and as C had a right, in defending her barn, to employ such force
as was reasonably necessary, for that purpose, she was not respon-
sibl* for the unforeseen occurrence Avhich hapj^ened in so doing. (4)
ANM'rting^ Kl^lit to HoiiHe or litiiKl. — Every one is
justified in peaceably entering in the day-time to take possession of
any house or land to the possession of which he, or some person
under whose authority he acts, is lawfully entitled.
2. If any person, not having or acting under the authority of
one having peaceable possession of any such house or land with a
claim of right, assaults any one peaceably entering as aforesaid,
for the i)urpose of making him desist from such entry, such assault
shall be deemed to be without justification or provocation.
3. If any person having peaceable possession of such house or
land with a claim of right, or any person acting by his authority,
assaults any one entering as aforesaid, for the pui-pose of making
(1) 1 Hale P. C. 486; Burbridge Dig. Cr. L. 195 ; 3 Stepb. Hist. Cr. L. 15-
(2) Wild's case, 2 Lew. 214.
(3) R. V. Faneuf, 5 L. C. J. 167.
(4) Hinohcliffe's case, 1 Lew. 161.
ASSAULTS. 461
him desist i'rom such ontiy, such assault shall bo deomod to be
provoked by the person entering. (Code. Art. 64.)
ConiiiiOH aNMaillt. — Every one who commits a common
assault is guilty of an indictable oltence and liable, if convicted
UPON AN INDICTMENT, to one year's imprisonment, or to a line not
exceeding one hundred dollars, and, on buhmaky conviction, to a
fine not exceeding twenty dollars and co.-is, or to two months im-
prisonment with or without hard labour. (Code, Art. 265.)
Clause 8, of Article 842, (p. 812, ante,) enactsthat no justice shall
hear and determine any case of assault and battery in which any
question arises as to the title to or interest in lands or real property.
And Article 864, (p. 340, ante,) provides that a charge of assault
shall not bo heard and determined summarily, if, at the time of the
investigation being entered upon, the person aggrieved or the
person accused objects thereto.
If a justice, ujion summarily hearing any cai' • of assault and
battery, upon the merits, deems the ott'once not proved, or ju.stified,
or too trifling to merit punishment, he shall give the accused a
certificate to that effect, and if the accused obtains such certifi-
cate, or, having been convicted, pays the whole amount adjudged
to be paid, or suffers the imprisonment, ete., awarded, he will be
released from all further or other proceedings for the same
cause. (1)
Afpi^ravated asMaults. — Every one is guilty of an indict-
able offence and liable to two years' imprisonment who —
(a.) assaults any person with intent te commit any indictable
offence, or
(b.) assaults any public or peace officer engaged in the execution
of his duty, or any person acting in aid of such officer ; or
(c.) assaults any person with intent to resist or prevent the law-
ful apprehension or detainer of himself, or of any other person,
for any offence ; or
(I) See Articles 865 and 866, of the Code, and comments thereon at p. 340
ante.
462 PRACTICAL OUIDB TO MAQIflTKATCS.
(d.) assaults any porson in the lawful oxoeution of any ]iroc!OHH
againHt any lan(ln or gootlN, or in making any lawful (listrosM or
seizure, or with intent to rescue any goods taken under such j»ro-
cess, distress or seizure.
(e.) on any day wheron any poll for any election, parliamentary
or municipal, is being proceeded with, within the distance of two
miles from the place where such jkiII is taken or held, assaults or
beats any person. (Coile, Art. 2({S.)
In the case of an assault upon a public or jieaco otiicor, the fact
that the accused did not know that the person assaulted was a
peace otHcer, or that he was acting in the execution of his duty
will bo no defence, if, as a nuitter of fact, the officer was actually
engaged in the execution of his duty. (1)
A constable who sees an assault committed has the right, there-
upon, and, before all danger «)f further violence has ceased to ap-
prehend the oti'ender, and if the lattei*, when he is being so arrested,
assaults the constable, he may bo convicted of assaulting a consta-
ble engaged in the execution of his duty. (2)
If a constable is assaulted while making an ai*rost which he is
not entitled to make, the person whi> assaults him is not guilty of
assaulting a constable engaged in the execution of his duty. (3)
As to RESISTINU or WILFULLY OBSTRUCTING a public officer or a
peace officer, see Art. 144 of the Code.
AsMaiiltii occaHioiiiiiK; bodily harm. — Kvery one
who commits any assault which occasions actual bodily hai'm is
guilty of an indictable ollience and liable to three years' imprison-
ment. (Code, Art. 262.)
Indecent anAaultH o.j t'einalen. — Every one is guilty
of an indictable otfence and lii ble to two yeors' imprisonment, and
to be whipped, who —
{a.) indecently assaults any female ; or
(1) R. V. Forbes, 10 Cox, 362.
(2) R. V. Light, 7 Cox, 389.
(3) R. V. Saunders, L. R., 1 C. C. R., 75,
INDIGENT ASSAULTS. 4(i.';
(fc.) does anything to any fomalo by her (•()n^sont whicli but for
such cionstmt would l)o iin indecent uHHault, Huch consent being ob-
tained by I'alse and tVaudulent representations as to the nature and
quality of the act. (Code, Art. 259.)
If, on an indictment for an indecent assault, it appears that the
woman consented to the assault, under circumstances shewing that
the consent was obtained by fraud, such consent will constitute no
defence ; such u case being ex|)ressly provided for by subsection
(6) of the above article.
Where a medical man had (tonnection with a girl fourteen years
of age under the pretence that he was thercliy treating her medi-
cally for the complaint for which he was attending her, she making
no resistance solely from the bona fide belief that such was the case,
it Avas held that this was certaiidy an indecent assault, and pro-
bably a rape. (1)
Where, on the trial of an indictment for indecent assault, the pro-
secutrix denies, on cross-examination, having had intercourse with
a tliird person named to her, such person cannot be called to con-
tradict her upon this answer. (2) But, if on cross-examination,
the prosecutrix denies having had previous intercourse with the ac-
cused, evidence may, in that case, be given to conti'adict her. (3)
As to the reception of the evidence of a child of tender years
without being sworn, see section 25 of the Canada Evidence Act,
1893, at p. 211, ante.
In<1ecent assaults on inaleH. — Every one is guilty of
an indictable otfence and liable to ton years imprisonment and to
be whipped, who assaults any person with intent to commit sodomy
or who, being a male, indecently assaults any other person. (Code,
Art. 260.)
Consent of child under fourteen no defence.
— It is no defence to a charge or indictment for any indecent as-
sault on a young person under the age of fourteen years to prove
that he or she consented to the act of indecency. (Code, Art. 261.)
(1) R. V. Case, 1 Den. 580 ; 19 L. J. (M. C.) 174.
(2) R. V. Holmes, L. R., 1 C. C. R. 334; 41 L. J. (M. C.) 12.
(3) R. V. Riley, 18 Q. B. D. 481 ; 66 L. J. (M. C.) 52.
464 PRAOTIOAL QUIDS TO MA0I8TRATIS.
TluH Article will apply to all otlbncea, which include un indecent
AHsault, committed either upon male or t'emiile children.
Summary trial of aooravatid and other hkrious indict-
able A8HAULT8, ETC. — Under the provisions of Article 783, (p. 288,
ante), niiigiHtnitOH are emjiowored, under certain conditions, to sum-
marily try, — with the accused's consent, — cases of aggravated as-
sault, indecent assault, etc.
ASSAULTS included IN OTIIEB OFFENCES.
Ol* oll'eiic'ON only partly pruvcfl. — Eveiy count is to
be deemed divisible ; and if the commission of the ottence charged,
as described in the enactment creating the offence or as charged in
the count, includes the commission of any other offence, the ])er8on
accused may be convicted of any offence so included and which is
proved, although the whole offence charged is not proved ; or he
may be convicted of an attempt to commit any otl'once so included :
2. Provided, that on a count charging murder, if the evidence
proves manslaughter but does not prove murder, the jury may
find the accused not guilty of murder but guilty of manslaughter)
but shall not, on that count, find the accused guilty of any other
ottence. (Code, Art. 713.)
Upon an indictment for assaulting and unlawfully wounding
and ill-treating the prosecutor and thereby occasioning him actual
bodily harm, the defendant may, by virtue of the above Article, be
convicted of a common assault. (1)
Upon an indictment charging that the defendant did unlawfully
make an assault in and upon a girl between the ages of ten and
twelve and did then unlawfully and carnally know and abuse her,
etc., being the ordinary form of an indictment for an otfence
against sec. 51 (now repealed) of 24 and 25 Vict., c. 100, the defen-
dant might have been convicted of a common assault. (2)
The defendant may also be convicted of a common assault upon
an indictment charging him with unlawfully wounding and with
unlawfully inflicting grievous bodily harm, although the word
" assault " is not used in the indictment. (3)
(1) R v. Oliver, 30 L. J. M. C. 12 ; R. v. Yeadon. 31 L. J. M. C. 70.
(2) R. V. Guthrie, 39 L. J. M. C. 95.
(3) R. v. Taylor, 38 L. J. M. C. 106.
A8HAt:i,T8. — ATTEMI'T8. 4'{R
AHHAIII.TH ON THE QUKEN.
Every ono \h guilty of an iiidirtiiblo ortoiu'o and liablw to sevon
yearH' iinpriHonmunt, and to bo wiiu'PEO onoo, twice or thrice as
the court directs, who —
(a.) wilfully produces, or ban near Tier Majcity, any arm or
deHtructive or daugerouw thing, with intent to use tlie sanie to injure
the person of, or to alarm Her Majesty ; or
(6.) wilfully and with intent to ahirm or to injure Her Majesty,
or to break the public peace ;
(i.) points, aims or presents, at or near Her Majesty, any firearm,
loaded or not, or any other kind of arm ;
(ii.) discharges, at or near Her Majesty, any loaded arm ;
(iii.) discharges any explosive material near ITer Majesty ;
(iv.) strikes, or strikes at Her Majesty, in any manner whatever ;
(v.) throws anything at or upon Her Majesty ; or
(c.) attempts to do any of the tilings sj^ocitiod in paragraph (6)
of this section. (Code, Art. 71.)
ATTEMPTS.
AtteiiiptN «lcfiiie4l. — Every one who, having an intent to
commit an ottence, dobs or omits an act, for the purpose of accom-
plishing his object, is guilty of an attempt to commit the offence
intended, whether under the circumstances, it was possible to commit such
offence or not.
2. The question whether an act done or omitted with intent to
commit an olfence is or is not mere preparation for the commission
of the olfence, and too remote to constitute an attempt to commit
it, is a question of law. (Code, Art. 64.)
An attempt is ^' an abortive or frustrated effort." (1) A bare in-
tention to commit a criminal oflence is not of itself punishable ;
but, in order to be so, there must be some act or acts amounting
either to an actual or an attempted carrying out of the criminal
intention. Thus, if A resolves in his own mind to shoot B, and
openly avows it, he thereby commits no criminal oifence ; but
(1) HoUoway v. R. 17 Q. B. 317, Broom's Ck)m. L. 5 Ed. 856.
Ktti PIlArTICAr, (JirtltK T(t MAdlSTHATEft,
wlifii lie (loi'H Moiiu'tliiiij;; III uxt'<'ution of IiIh ili'Mi^ii, and, tiirtxi^h
Ihuii^ iiitci'i'iiptt'd or tliroiigti suiuc iiiit'oroHooii i'uiino iiitorvoiiiii^, ho
fiillM nliiirt (if tin- iicliiul poi'iK'ti'iition of iIh' intiMulml (tHoiico, ho Ih /
guilty of till iittoiiii»l. (1)
An Httt'rnpt to commit iicriiiio may Ik' made hy solicitiiij^ aiiotlior
to commit it. For, iim, on the one huml. a porHon in guilty, uh ii
priiuipal otloiidcr, of an otVciice wliich Iio HolicitH. adviws op incitim
aiiotiicr to commit, and wliicli the otlu>r actually does commit, (2)
HO, on the other hand, when a person Holicits, advines or incitim
another to commit an otteiice whitdi tlie other does not commit, tho
uct of Holicitinjj;, advir«iiig or inciting amouiitn to an attempt to
commit tln> otVeiu-e in view. (}\) In other woi'dM, one who iiiihuccchh-
fully Holieits t)r advises tho commissiim of an otlence is guilty of tin
uttompt to commit it ; while ono whos.' > licitution is HUcceHHful in
procuring the ticttuil commisHion of an otVence is a party to its com-
mission. Thus, where one wrote to a school hoy to meet him for
tho purpose of sodomy, hut the boy, without even reading tho
loltor, passed it to tho scliool authorities, it was held that the
offonco of attompt, by solicitation, was completo. (-1)
It is said tlmt an act to constitute an tvttompt must bo such uh
directly approximates to or is closely connected with tho actual
commission of the intondod otlence. (5)
In tho application of this principle, some nice questions have
arisen as to what acts, on thoonohan 1. ai'o preparations too remote
to bo an tittompt, and what, on tho other hand, ai'e close enougii to
the otfence to be an attempt ; it being in man}' cases, ver^'ditlicult,
— some sjiy, impossible, — to distinctly detiiie tho dividing line
between mere preparation for an o Hence and an actual attempt to
commit it. ((i) As an illustration, the case is given of a man who,
with intent to commit murder, walks to thi place where he pur-
(1) R. V, Sfofield, Cald. 397, 403 ; 1 Ru88. Cr. 5 Ed. 188; R. v. Connoly, 26
U. C. Q, B. 322.
(2) See Art. 61 of the Code, p. 58, ante.
(3) R. V. Higgins, 2 East. 5 ; R. v. Gregory, L. R. 1 C. C. 77.
(4) R. V. Ransford, 13 Cox, C. C. 9.
(5) Harris Cr. L. 4 Ed. 16; R. v. Eagleton, Dears. C. 0. 515 ; 1 Rues. Cr. 5
Ed. 190.
(6) 2 Stepli. Hist. Cr. L. 224, 226.
' * ATTKMI'TM. 4(i7
poHUH to coniinil i(, ThiH art of wulkin^ to llir |ilti('i> in not foiiNid
ui'OfI un act Nutllci««nt to cotiHtitiito an attt>in|>t to niui'dor. (1) Hut
if, lu'siduM walUiii;^ to llic plati', tlu" man were, on arrivinj^ thcri'to
miHtt ami tire a jiistol nliot at liin inttindcil victim, and fail to kill
him, citlici' liy missing liin aim altoiroilicr. or tlirongh llicNiiot,
tliou;(h taiiint; utlbct, not [mug fatal. In- would undouhtc<lly be
guilty of an attoinpt to murder.
Tlu! nicro net of buying a box of matcboH witb the intention of
urting them to M«'t a corn Hta( k on lire is loo remote to conHtituto
an attempt to Mi*t tire. (2) liut win re the ]ii'isoner bad knelt
down before a (M)rn ntack, and had ligbted a matcdi witb the inten-
tion of w'tting the Htack on fire, and then be blew out the light
on observing that be was watcbeil, ii was held that thin was an
attempt to burn the ntack. (.'()
There are deciHioiiH wbi(di have gone a long way towanlH
treating I'hei'akation to cmim-mit a crime m an attempt to commit
it. For iiiMtancc, the procuring of (Th'h for coining bail money
has been treati'd as an attempt to coin bad money. (4)
It wan fonnerly couHidered that an act done! with intent to com-
mit an otVeiut* was not an attempt uidesH done under circuinHtances
rendering it i)os8iblo to aocomplisb the object in view; (5) and ho
whoro in an Hiiglish case, A ])ut bis hand into B's pocket with
intent to steal what was in it, and the pocket bai>pened to bo
empty, it was held that A could not be convicted of an attempt to
steal. ((>) liut tluH decision has, recently, been overruled by the
English f'ouvt of Crown Cases Kescrvod, i)resided over by Lord
Chief Justice Coleridge, who, in deliverii\g ju<lgment, said, in refer-
ence to the ])ick pocket case, — " This is a decision with which we
are not satisfied, lleg. v, Dodd proceeded upon the same view,
that a person could not bo convicted of an attempt to commit an
(1 ) Per Jerv's, C. J., in R. v. Roberta, 33 Eng. L. & Eq. 553.
(2) Per Pollock, 0. B., in R. v. Taylor, 1 F. & F. 512.
(3) R. V. Taylor, 1 F. & F. 511.
(4) R. V. Roberts, Dears. 539: 2 Steph. Hist. Cr. L. 224. [Art. 466 of the
Code makes it a substantive offence,— indictable and punisbable with life
imprisonment, — to purchase or have possession of coining iaBtruments.J
(5) Stepb. Dig, (Jr. L. 3 Ed. 37, 38 ; R. v. McCann, 28 U. C. Q. B. 514.
(6) R. V. Collins, 33 L. J. M. C. 177.
KIH PItAOTK'AI. urillK TH MA<IINTKATKM.
(itl'uix'o which h«' could not actually commit. \V« iiro «»t' it|)ihi(Hi that
Hc^, V. Dtxhl Ih no loii^or hiw. It wart lUu'iiloil on th>< authority
of i{t>^. V. CoilinH " (the piclfpookot cuHt*,) " utid tlial caHu in our
fipiiiioii in no lonj^i'i* h»\v." (I)
It will ht< Ki'on that th»> abovo Articio (14 ot' our ( 'ode, coincidos
with lliiH hn|<ling iukI rxprt'NNly dotlarcH that an intont to coniinit
an ort't«iict« coruliiiu'd witli an art doiu« or ontitttul for the purpoHoof
HcconipliHhin^ lht> ohjoct in viow will coiiNtitiito nn attompt,
whothor, undtT thi» cinuniHtanct'M, it was poMKihlo to i-onuuit tibo
intended otlonco or not.
l*lliilMliiii«'iit «>r lit! <'iii|»In (notothorwlMO oxproHsIy pro-
vidoil l'(»r). — Kvcry ont" in j^uilty of an iiulictaldo olViuu'i' and liable
to HHvon yoarn' impi'iHoninont who attuinptH, in any ctiHO not other-
wiw providod for, to oonunit any inditrtal)lt> otlbnco for which tho
puniHhiin'nt is iniprisonnu'iit for lifo, or for fourteen yours, or for
any tt>rni longer than fourteon years. (Code. Art. 528.)
Kvory one who attumptH to commit any indictable otlonco for
committing which the longest term to which the otfonder can be
Bontencod is less than fourteen years, and no express provision is
made by law for the punishment of such attempt, is guilty of an
indictable otl'ence and liable to imprisonment for a term equal to
one-half of the longest term to which a j)ers(m committing the
indictable offence attempted to bo committed may be sentenced.
(Code, Art. 629.)
Kvery one is guilty of an indictable otl'ence and liable to one
year's imprisonment who attempts to commit any offence under
any statute for the time being in force and not inconsistent with
tho Code, or incites, or attempts to incite any person to commit any
such otfence, and for tho punishment of which no express provi-
sion is made by such statute. (Code, Art. 630)
Proof* of attempt, on trial for ftill ott'cnce. —
When the complete commission of tho oft'ence charged is not proved
but the ovidonco establishes an attempt to commit tho offence, the
accused may be convicted of such attempt and punished accord-
ingly. (Code, Art. 711.)
a) R. V. Brown, 24 Q. B. D. 367, 359 ; 16 Cox, C. C. 715.
IIANKM AND HANK orrtriAMI. 4I\\)
IUnk^, IUnkkhs, and IUnk OrrioiAhM.
TheflN hy IBwnk Oltl<*l«lN.— Kvury ono In K^i'^y <>>' *"
iiiiiicliililo oirt'iiio iiiitl liulilo to t'oiirtt'oii y«*arH' impriHoiiintnit, who
\}v'\Uff 11 cuHliior, iiMHiNtunt t'liHliiiM*. inuiiii^or, otllfor, clerk, or mtrvitnt
of liny haiiU, m- miviii^N Imiik, mttMiU any hoiid, oliligalion. hill ohll-
jjiitory or ofcn'tlil.of other hill or note, or iiiiy Mueiinty lor nioiioy,
or liny money or oIl'i'ttH of mucIi hunk or lodged or ile^waiteU with any
Huoh hunk. (Coiht, Articio Ullt b.)
It will hit Meun hy thJH Article thut the tiling tillered to ho Htolon
hy II eiiNhier or other employee of u Rank may h«« eitlier unythinj^
iiEl.oNuiNu TO or unythint; nKi'oNiTBit with the Dank.
ItaiikorM kIvIiik l*rnii<liil«>nl |ir<>f*er«>ii4>«»M.— It Ih
emieteii, hy weetion ;»7 >>(' the Hank Act, (M Vie. c. ;{1) thai " Kvery
ono in d^uilty ot' u miHilemeanor and liiihle to impriNonment for a
term not exceeding two yearn who, heing the preNident. viee-presi-
dont, direetor. prineipiil partner en commandite, manager, eaHhlor
or other otllcer of the hank, wilfully given, or eoncm-H in giving
any crwlitor of the hank, any fraudulent, undue or unfair profor-
enco over other creditors, hy giving Neeurity to Huch erixlitor or
hy changing the nature of his cliiim or otherwiHe howHoever, and
shall further he rcriponsihle for all duinagcH HiiMtainud hy uny por-
»o!) in conHe(juonco of sucli prefcrcnco.
FalM«' Hank K«>por(N. — By Huction i)9 of the Bank Act, it
is enacted that " The making of any wilfully false or deceptive
statement in any account, statement, return, report or other docu-
ment respecting the atlairs of the hank is, unless it amounts to a
higher ort'ence, a misdemeanor, punishahio hy imprisonment for a
term not exceeding five years ; iintl eveiy president, vice-president,
dire('tor, principal partner en commandite, auditor, manager, cashier,
or otiier otticer of the hank, who prepares, signs, approves or con-
ciirs in such statement, return, report, or document, or uses the
same with intent to deceive or mislead any person, shall be held to
have wilfully made such false statement, and shall further be res-
ponsible for all damages sustained by any peraon in consequence
thereof."
AMHuming the Tlt3r of «*Bank," etc.— It is also
enacted by sections 100 and 101 as follows : " Every person
470 PRACTICAL GUIDE TO MAGI8TRATKH.
uHsumiiig or using the title of ' banii,' ' banking cumimny,' ' bank-
ing house,' ' banking assoeialion ' or ' banking institution,' witli-
out being autiiorized so to do by this Act, or by some otlier Act in
force iu that behalf, is guilty of an otlence against this Act." (Sec-
tion 100.) ■■ : ;'
" Every person coinmilting an offence declared to be an offence
against this Act, shall be liable to a tine not exceeding one thou-
sand dollars, or to inii)riMonnient for a term not exceeding tive
years, or to both, in tlie discretion of tlie court before which the
conviction is had." (Section 101.) ^ '
FniNC KiitriCM um to Public* FiiiidM.— Every one is
guilty of an indictable otlence and liable to fourteen y(»ars' impri-
sonment who, with intent to defraud —
(a.) makes any untrue entry or any alteration in any book of
account kept by the Government of Canada, or of any province of
Canada, or by any bank for any such (iovernment, in which books
are kept the accounts of the owners of any stock, annuity or other
public fund transferable for the time being in any su(;h books, or
who, in any manner, vnlfuUy falsities any of the said books ; or
(6.) makes any transfer of any share or interest of or in any
stock, annuity or public fund, transferable for the time being at
any of the said banks, in the name of any person other than the
owner of such share or interest. (Code, Art. 440.)
Bank Clerk lNNuiii;r FalMC <livldciid War-
rants. — Every one is guilty of an indictable ott'enco and liable to
seven years' ira])risonment who, being in the emploj'ment of the
Government of Canada, or of any province of Canada, or of any
bank in which any books of account mentioned in the last preced-
ing section are kept, with intent to defraud, makes out, or delivers
any dividend warrant, or any warrant, for the payment of any
annuity, interest or money ])ayable at any of the said banks, for
an amount greater or less than that to which the person on whose
account such warrant is made out is entitled. (Code, Art. 441.)
V > Bawdy House.
Common IIaw<ly HouNe <lefined. — A common
bawdy house is a house, room, set of rooms, or place of any kind
kept for purposes of prostitution. (Code. Art. 195.)
nAWKY II01SE8. — HETTINO IKiI'SES.
471
KvopiiiK <> C'oiiiiiion Baudy IIoiino. — This is an
indictable oH'oiico piinislialiio with oiio yoars' iniiirisonnu-iit. And
any ono who aMi)ears, acts, or bohavos as master or mistress, or as
tho person having the care, government or management of any
such liouse is deemed the iceepor of it, and liable to bo ])rosecuted
and punished as s>U'h, although, in fact, not the real owtier or
keeper thereof. (Code, Art. IKS.)
If a lodgi-r let hvv apartment for the purpose of indiscriminate
jirostitution, it is as much a bawdy house as if she held the whole
house. (1) - . - ■ y '
It is not nocessarj' that there should be evidence of any indecency
or disorderly conduct perceptible from the outsi<le of the houae. (2)
The keeper of a bawdy-house maj' be a man or a woman ; and a
married woman may be indicted for the otlence either alone or
with her husband. (3) ;
The uist of the otlence appears to consist in the allurement which
tho place holds out to a miscellaneous and common bawdry corrupt-
ing to public morals. Hy way of comparison and illustration, it
has been said that, as an inn is for all travellers, so a bawdy-house
is for all persons lewdly inclined. Generally — though not neces-
sarily — it sup[>lies the girls, who nuiy either dwell in the house, or
visit it witii or without the men accomiJanj'ing. for the
practice. (4)
evil
SearcU Warraiitw. — As to warrants to search for any
woman or girl inveigled or enticed to a house of ill-fame or assig-
nation, see p. 123, ante.
Bettino-IIousk.
Cuniiiioii B<'ttiii^;-lioiiNt' dc'liiicd. — A common bet-
ting-liouso is a liouse. ottice. room, or other place —
(a.) opened, kept or used for the purpose of betting between
persons resorting thereto and —
(1) K. v. Pieraon, 2 Ld. Raym. 1197. . '
(2) R. V. Rice, L. R., 1 C. C. R. 21 ; Sylvester v. S. 42 Tex. 496.
(3) R. v. Williams, 10 Mod. Go ; C. v. Cheney, 114 Mass. 281.'' i
(4) Kin a V. P. 83 N. Y. 587.
\ - ■ ■ ...
472
PRACTICAL OUIDE TO MAGISTRATES.
(i.) tho owner, oecupior, or keeper thereof ;
(ii.) any person using tho same ;
(iii.) any person i)roc'ure(i or employed by, or acting for or on
behalf of any Huch person ;
(iv.) any person having the care or management, or in any
manner conducting the business thereof ;
(b.) opened, kept or used for the purpose of any money or valu-
able thing being received by or on behalf of any such person aw
aforesaid, as or for the consideration.
(i.) for any assui'ance or undertaking, express or implied, to pay
or give thereafter anj' nlon^^y or valuable thing on any event or
contingency of or relating to any horse-race or other race, fight,
game or sport ; or
(\i.) for securing tbe paying or giving l>y some other ])er8on of
any money or valuable thing on any »uch event or contingency.
(Code, Art. 1<»4.)
Keeping a CJoiiiiuoii Kettiii)>;-lioiiNe. — This, also, is
an indictable otlence punishable with onv year's imprisonment.
And any one who appears, acts "or bebaves as master or mistrciss,
or as the person having tlie care, government or management of
any such house is <leemod the kee]>er of it. and liable to bo prose
cuted and jjunished as such, altbougb in fact not th*! real owner or
keeper thereof. (Code, Art. 198.)
Under the Imperial Betting- Honne Act, which has the woids,
''house, room, or other place," it was bold that the place must,
be one of which the accused is or may be the owner or occu]iier,
or of which he has the care or management, and that, theretoi-e, a
tree in a public park, to which the accused resorted for betting
purposes, was not a place within the Act. (1) But a temporary
wooden structure erected during a race meeting, (2) and even an
umbrella on a race-coui;ge, (3) have each been held to be a J'Lack
within the Act. .. > : : ■
(1) Datrgettv. Catterns, 12 Jnr. N. S. 243. '" '
(2) Shaw V. Morley, b. R., 3 Exoli. 137.
(3) Haigh v. Sheffield Town Council, L. R 10, Q. B. 102; 44 L. ,1. M. ('.,
17.
BETTING AND POOL-SELLING. 473
To open or koop a houao or other place for the pcbpose of bet-
ting with persons resorting thereto is made an offence by sec. 1 of
the Suppression of Betting Houses Act, 1853. (Imp.) ; and it has been
held not necessary, — in a prosecution under that Act, — to px'ovo
that money had been received as a deposit on bets. (1)
^carcliIiiK SUHpectvd BcttinK-lioiiNt'M. — (See Art.
5*75 of the Code, at p. 124 ante.)
Betting and Pool-Selling.
Betting and PooI-moHIiik* — Every one is guilty of an
indictable ottenoo, and liable to one year's imprisonment, and to
a tine not exceeding one thousand doUarw, who —
(a.) uses or knowingly allows any part of any premises under
his control to bo used for the puri)ose of recording or registering
any bet or wagor, or selling any pool ; or
(6.) keeps, exhibits, or employs, or knowingly allows to be kept,
exhibited or employed, in any part of any promi.sos under his con-
trol, any device or api)aratuH for the jiurposo of recording any bet
or wagor or selling any pool ; or
(c.) becomes the custodian or depositary of any money, prop-
erty or valuable thing staked, wagered or ]iledged ; or
((Z.) rocoi'ds or registers any bet or wager, or sells any pool,
upon the result —
(i.) of any political or municipal election ;
(ii.) of any race ;
(iii.) of any contest or trial of skill or endurance of man or
beast.
2. The provisions of this section shall not extend to any person
by reason of his becoming the custodian or deiK)8itary of any
money, property or valuable thing staked, to be jmid to the win-
ner of any lawful race, sport, game, or exercise, or to the owner of
any horse engaged in any lawful race, or to bets between indi-
viduals or made on the race course of an incorporated association
during the actual progress of a race meeting. (Code, Art. 204.)
See Gaming Houses, post.
See Lotteries, post.
(1) Bond V. Plumb, 10 R. (Feb.) 244.
474 PRACTICAL GUIDK TO MAdtSTHATES.
t
MlOAMV. ■ ,'
l><'fiiiif i4»ii. — iJi^nimy is — ' ,
(a.) tlie act of u poi'son who, heiiif/ married, got's through u form
of niarriago witli any other ])oi*Mon in any part of the world ; or
V
(6.) tho act of a person who goes through a form of marriage /n
any part of the world witli any person wliom ho or she knows to bo
married ; or
((?.) the act of a person who goes tlirougii a foriu of marriage
witii more than one person simultaneously or on the same day.
2. A "form of marriage" is any form either recoguizod as a
valid form by the law ot" the i)lace where it is gone through, or,
though not so reeogni/.eil. is such that a marriage celeln-ated there,
in that form, is recognized as binding by the law of the ]>laco
wliere the otfender is tried. Kvery form shall, for the pur|)08e of
this section, be valid, notwithstanding any act or default of tho
person charged with bigamy, if it is otherwise a valid form. Tho
fact that the ])arties would, if unmarried, luive been incompetent
to contract marriage shall be no defence u})on a prosecution for
bigamy. ' '
3. No one commits bigamy by going through a form of mar-
riage —
(a.) if he or she in good faitli, and on reasonable grounds be-
lieves HIS WIFE OR HER HfSBAND TO HE DEAD ; or
(b.) if his wife or her husband has been c(mtinually absent for
SEVEN VKAU8 then last past, and he or she is not proved to have
known that his wife or her husband was alive at any time during
those seven years ; or
(c.) if he or she has been divorced from the bond of tho first
marriage; or ,. ' .'■. ^ ' ?^ '. '
(d.) if the former marriage has been declared void by a court of
competent jurisdiction.
4. Xo person shall be liable to be convicted of bigamy in respect
of having gone through a form of marriage in a place not in
Canada, unless such person, being a British subject resident in Canada,
leaves Canada with intent to go through such form of marriage.
(Code, Art. 275.)
' BIGAMY. 476
PlliilNlinK'nt. — Kveiy ono who commits bigamy is guilty rf
an indictable otteiiee and liable to seven years' imi)ris()nmeiit.
2. Kvery one who commits this offence al'tev a previous convic-
tion for a lilce otl'ence shall be liable to fourteen years' imprison-
ment. ((!ode, Art. 276.)
Proof must bo made of the two marriages, and that, at the time
of the second marriage, the first husband or first wife, as the case
may be, was still alive.
Proof of the first marriage, if it was celebrated out of Canada,
may be made by any person present at it ; and circuiustancos
should bo proved from which the jury may presume that it was a
VALID marriage according to the laws of the country where it was
celebrated.
The first nuirriage must be a valid one. There can be no
bigamy, if the first marriage was actually void. For instance, if a
woman marry A, and, in A's lifetime, she marry Ji, and, then, after
A's death and whilst B is alive, she also marry (.', she cannot bo
indicted for bigamy in marrying C, because the marriage with B
was a mere nullity, seeing that, when she married him, her first
husband, A, was still alive. (1)
Although a first valid marriage must be proved, it is not essen-
tial, in order to establish it, that i)roof should be made of the
license, or of the publication of the banns, etc. ; but the fact
of the mai'riage having been validly solemnized may ije ])roved by
some person who was actually present and saw the ceremony per-
formed. (2) And in England, it has been held that the prisoner's
own admission of a prior marriage may be relied on as good
evidence to show that it was lawfully solemnized. (3) ]iut it has
been held, in (Ontario, that evidence of a confession made by the
prisoner of his first marriage (when unsupported by any other
testimony) was not sufficient evidence upon which he could be
convicted. (4)
(1) 1 Hale, 693; R. v. Willehire, L. R., 6 Q. B. D. 366.
(2) R. V. Alison, R. & R. 109 ; R. v. Mainwaring, 26 L. J. M. C. 10.
(3) R. V. Newton, 2 M. & Rob. 503.
(4) R. V. Ray, 20 Ont. R. 212.
31
476 PRAOTIOAL OmDI TO MAGISTRATES.
Whore tho first marriage is not actually void, but merely void-
able, there prevails a different rule to that above noticed in regard
to a first marriage which is actually void ; and, where, in a prose-
cution for bigamy, proof is made of a first marriage which, though
voidable, has not been judicially voided, it will be sufficient. (1)
Thus, a marriage contracted, in Ij-eland, by a minor without con-
sent, — such a marriage being, bj' the Irish Marriage Act, voidable
only within a year, — will support a conviction for bigamy, if such
first marriage has not been set aside bj' the courts. (2)
It is nat necessary to show that the second or bigamous mar-
riage was a valid one. The above Article li75 makes it bigamy for
any person, being married, to go through a form of marriage with
any other person ; and sub-section 2 declares that every form of
marriage shall, for the purpose of this section, be valid, notwith-
standing any act or default of the person charged with bigamy, if
it be otherwise a valid form. So that, after proving the defend-
ant's first mafi'iago, it will be sutficieut to make proof of his having
gone through a second naarriago ceremony with another woman ;
and it will be no defence to an indictment for bigamy to show
that the second marriage was not legal but was void, by reason, for
instance, of tho parties to it being relations within the prohibited
degrees of consanguinity or affinity. (3)
The proof that the first wife was living when the second marri-
age was solemnized may be made by some person acquainted with
the first wife, and who saw her at the time of the second marriage
or afterwards.
Assuming that evidence is made of the two marriages, the de-
fendant may not only, as already intimated, show, as a ground of
defence, that the first marriage was invalid, that is, actually void,
by reason, for instance, of his first wife being, when he married
her, already a married woman with a husband then living, or he
may avail himself of tho other defences following, namely ; — 1,
Belief, on reasonable grounds, that the first wife is dead ; 2, con-
tinual absence of the first wife for seven years ; 3, divorce from
the bond of the first marriage ; and 4, that the first marriage
(1) 3 InBt 88.
(2) B. V. Jacobs, 2 Moa C. C. 140.
(3) R. V. Allison, R. & R. 109 ; R. v. Allen, 41 L. J. M. C 97.
BIOABIT. 477
(which was a voidable one), has been declared void by a court of
competent jurisdiction.
As to the defence of seven years absence of the first husband or
wife, proof of this fact will entitle the defendant to be acquitted,
unless the Crown make evidence showing that the accused knew
of the first wife or husband being alive during the seven years. (1)
With regard to the defence of a divorce obtained from the bond
of the first marriage, or of a judgment voiding the first marriage,
it hiis boon thought that no sentence or act of a foreign country or
state could dissolve a vinculo matrimonii, an English marriage for
grounds on which it would not be liable to be dissolved in England.
Although the existence of such a rule seems to have been re-
ferred to in the case of R. v. Lolloy, in which a Scotch divorce, —
granted upon a ground which would bo insufficient under English
law,— was held to be invalid, it Mpjiears that, in that case, the
marriage was not only solemnized in England, but that the parties
wei'o at the time of the granting of the divorce domiciled in
England, and this alone, would ha''o been a good ground for hold-
ing the Scotch divorce invalid in l^jugland. (2) In a later case, in
which the marriage had" boon solemnized in England, a divorce
a vinculo matrimonii was granted by a Scotch court upon a ground
for which such divorce is not obtainable in England, but as in that
case the husband's domicile was in Scotland, the English Court of
Appeal held that the divorce so granted in Scotland was valid in
England, on the ground that, although the marriage had been
solemnnizod in England, the question of divorce was not an incident
of the marriage contract to be governed by the lex loci contractus,
but an incident of status to bo disposed of by the law of the domi-
cile of the parties, that is to say, the domicile of the husband. (3)
A divorce obtained in a foreign court may be impeached by
extrinsic evidence showing that such court had no jurisdiction, or
that such decree was obtained by fraud. (4)
(1) Article 275 (6) ; R. v. Cargerwen, 35 L. J. M. C. 58 ; R. v, Fontaine, 15
L. C. J. 141 ; B. V. Dwyer 27 L. C. J. 20J ; R. v. Smith, 11 U. C. Q. B. 565.
(2) B. V. Lolley, R. & B. 238.
(3) Harvey v. Farnie, L. R. 5 P. & D. 153 ; L. R. 6 P. & D. 3a.
(4) R. V. Wright, 1 P. & B. 363.
478 PRACTtCAI, (MIIt)E TO MAOIHTUATK8.
Although, in tlio first part of Arlicit' 27'>, liigiimy in doHiuHJ ti>
bo tiic lU't of II jHM'Hon \vl\o, lK<iii|^ miirriiMl. marrios another |)«»rHon,
IN ANY I'ABT OF THE WORM), Hul»HiK't,ion 4 modifier thu luttor part
of this c'hiuso hy doelaring, that ; —
" No porson shall he liable to be convieted of bigamy in respect
of huvin/i; ^oiie throuj^h a form of niarria/ije in a \Att(.'\) not in Canada,
unless such person, being a British subjeet resident in (-anada.
leaves Canada with intent to go through such form of rnarriage."
Thin clause is intended to restrict, to our own juii,*dicti(m,the
early words of the Article speaking of the act of marrying in any
jiart of th" world, ami to thus nuike it an otience to leave Canada
WITH INTENT to conuuit bigamy elsewhere ; that being the full
extent of the power of the Canadian Parliament, — a colonial legis-
lature having, as appears by a decision, in that respect, rendered, by
the Privy t'ouncil, in regard to an Australian rarliament, no
authority to legislate as to acts ilono beyond its territorial jurisdic-
tion. (1)
BLASPHEMY.
BlaNpllcnioilN l<il»elN. — Hvery one is guilty of an indict-
able oHen>'e and liable to one year's imprisonment who publishes
a blasphemous libel.
2. Whether any i)articular published matter is a bla8])hemou.s
libel or not is a question of law. Jiut no one is guilty of a blasphe-
mous libel for expressing in good faith and in decent language, or
attempting to establish by arguments used in good faith and con-
veyed in decent language any opinion whatever upon any religious^
subject. (Code, Art. 170.)
It is blasphemy, scofflngly or irreverently to ridicule or imp.gn
the docti'ines of the Christian faith, yet any man may without
incurring any penal consequences, soberly and reverentlj' examine
and question the truth of those doctrines which have been assumed
as essential to it. (2)
(1) McLeod V. Atty-Gen., N. (•. Wales, 14 L. N. 4(t2. For full comment*
and authorities on Bigamy, see Crankahaw's Cr. Code, pp. 196-214
(2) Per Erskine, J., in Shore v. Wilson, 9 CI. & F. 524-5.
Br.AHI'IIKMY. — H(>l)n.Y^IN.U:aY. 479
A MiisplHMnniifl libol in Hiiiil to cniiniMt in tlio piil^lication of any
|)roluiHi wohIh vilil'yiiif^ or ridiculing (iod, Jesus ("hnst, the Holy
(iliost, the Old and Ni'W TcHtaniynt or ChriNtianity in gom-ral with
intont to hIuk-U and insult boliovors, or to porvort or iniHUmd tho
ignorant and unwary; and if a publication be full of Hcurrilous
and opprobrious language. — if sacretl subjects are treated with
levity, if indiscriniinate abuse is employed instttad of argument, —
then a design to wound tho religious feelings of others may bo
readily inferred. Hut where the work is tree from all otl'ensivo
levity, abuse and sophistry, and is. in fact, the honest and temperato
expression of religious opinions conscientiously held and avowed, it
is not a blasphemous libel. (1)
The law, as laid down by Coleridge, J., in U. v. I'ooley. (2), and
as since stated by Lord Chief Justice ('oleridge in l{. v. Jtamsay
and Foote, is in ort'ect tiuit the publication of any matter which has
reference to (rod, Jesus Christ, the Bible, or the, Hook of ('ommon
Prayer, intended and calculated to wound tho feelings of mankind
or, to excite contempt and hatred against the church or religion
or to jH'omote immorality is blasphemous ; but that matters couched
in decent and proper language and published anil intended in good
faith to advance religious opinions, which the publisher regards as
true, are not blasphemous merely because their publication is likely
to wound tho feelings of those who have contrary opinions or
because their general adoption might tend by lawful means to
alterations in religion or in tho constitution of the church. (3)
Bodily In.jury.
Wllfliilly or IVe|ieliK«iitly Causing Bodily In-
Jury. — Every one is guilty of an indictable offence and liable to
two years' imprisonment who, by any unlawful act, or by doing
negligently, or omitting to do any act which it is his duty to do,
causes grievous bodily injury to any other person. (Code, Art.
252.)
Where it was j^rovod that the prisoner, who was nearly the first
to leave tho gallery of a theatre at the close of the performance,
(1) Odg. Lib. &SI.440, 441.
(2) Steph. Dig. Cr. L. 97
(3) R. v. Ramsay & Foote, 48 L. T. 739 ; 15 Cox C. C. 231.
480 PRACTIOAIi (iriDE T(» MAdlHTHATKH.
ran down thu rttairu and wilfully put out thu gaH and placud an
iron bar acroHs tlio doorway, IhuH caitHJiig, atn<)ii|^ tho pooplu K«av-
ing tho gallery, a panic in whicii Hovoral pormtuH woro Horiounly
injured through thu prcHsuro of tlu» crowd, it was liold that tho
])risont'r was pn)porly convicted of wilfully cauuing k)odily iu-
jurios. (1)
HKKAriiiH or THK Pbacii:.
It is waid, in regard to tho eriniinal law of Kngland, that " tho
foundation of the whole Hywtem of criminal i)rocedure wan tho
prerogutivo of keui»ing the peace, which iH aa old as the monarchy
itMolf, and which waw, as it still is, embodied in the expression,
' Tho King's Peaco,' tho legal name of the nornuil state of society. (2)
It may, therefore, bo safely assorted that, as all crimes, being
public wrongs, tend, more or less, to atlect or disturb, directly or
indirectly, the good order and tranquility so essential to the
general welfare of a community, tho commisHion of an otl'enco will
nearly always include or involve a breach of the |)oaco. ]Jut there
are some otfencos which are directed more particularly against tho
public peaco ; or in which tho breach of tho peaco is tho prominent
feature, such, for example, as an attVay, an unlawful assembly, a
rioi, and tho like. (3) An atl'ray (from affraier, to terrify), was
by the common law tho act of two or more persons lighting in
some public place to tho alarm of the public. If the tight were
in private, it was no affray, but an assault ; (4) and mere quarrel-
some or threatening words would not amount to an affray ;
although a person, even when ho uses no actual force himself, may
nevertheless be guilty of an affray by, for example, assisting at a
prize fight. (5) An unlawful assembly was tho meeting together,
— in a manner likely to endanger the peace, — of three or more
perions for the carrying out of some common purpose of a private
nature, th-^re being no aggressive act actually done. (6) When
(1) R. v. Martin, 8 Q. B. D. 54 ; 14 Cox, 633.
(2) 1 Steph. Hist Cr. Law, 184.
(3) 4 Steph. Com. 7 Ed. 238 ; Harris Cr. Law, 3 Ed. 108.
(4) 4 Steph. Com. 251-2.
(5) Harris, Cr. Law, 4 Ed. 111.
(6) R. v. Vincent, 9 C. & P. 91.
nREAOHIH or THE PEAri. 481
tho porMonn thuH uuluwrully aHMt'iuliliKl procontlod or inovod forward
to thu exuciitioii of thoir piirpoNv, hut did not go to tho point of
actually i-xooutinj^ it, it was ralliMJ a rout ; (1) aiul if tin^y wtMit on
to tho a«^lual cxocution of thoif purinmo, in u violent and alarming
manner, it was u riot. (2)
l*rev<>iitliiK lli*('n<*li ol' tho l*«'ao«>.— Kvcry on«
who witm^HNoH a hrcach of tlic pcaris ih justified in intiTfcrin^ to
prevent itn (;ontinuun(Ht or nMunval, and may dotain any porMon
committiiif^ or ahoiit to join in or renow such lircach of thi" peaco,
in order to givt^ liim into tlie cuHtody of a pcaeo otlicer ; Provided
that the person interfering uses no mon^ force than is reasonably
nocesHury for preventing^tho continiuineo or renewal of sueh
breach of tim j)eace, or than is reasonahly proportioned to tho
danger to he apprehemled troni the continuance or renewal of
Huch breach of tlie [)eaco. ((/'ode, Art. .'{K.)
Every peace oHlcer who witnesst-s a bi-each of tlie peace, and
every permm lawfully assisting liim. is justijie<' in arresting any
one whom he finds coinniiltiug such breach of thu peace, or whom
ho, on reasonable and probable grounds, believes to be aboiit to
join in or renew such broach of the peace.
2. Kvery peace ofllcor is Justified in receiving into custody any
person given into his charge as having been a party to a breach of
the peace by one who has, or whom such peace otttcer, upon
reasonable and probable grounds, believes to have, witnessed such
breach of the peace. (Code, Art. 39.)
HlippreNNiiiK Riot. — Kvery sherift", deputy sheriff, mayor,
or other head otttcer, or acting head otticer, of any county, city,
town or district, and every magistrate and justice of the peace is
justified in using, and ordering to be used, and every peace officer
is justified in using such force as he, in good faith, and on reason-
able and ])robablo grounds, believes to be necessary to suppress a
riot, and as is not disproportioned to the danger which he, on
reasonable and probable grounds, believes to be apprehended from
the continuance of tho riot. (Code, Art. 40.)
(1) 1 Hawk. P. C, e. 65, 8. 8. !
(2) 1 Hawk. P. C, c. 66, 8. 1. ' : •.
\H2 I'KACTlrAI, UdlDK T<> MAillHTIlATKM.
Kvt>rv ohi', wlinthor Huhjuot li» inililuiy liiw nr imt, acting in
good t'uilli ill iilicilioiu'o t«> orilui-n j^ivon liy iiiiy Mlu>rirt', fU'piity sher-
iff, nuiyiir or oihor lu'iul oHIcit oi'iictiiit^ lit-ud nlHcci'ot' any i-oiinty,
rity, town or liiHtricI or l»y iiny iiiai^islrMtt' or JiiHtico of (ho poucu,
for th<- Hii|i|>ri-.ssioii ot'ii riot, is Jiistiticii in olioying lh<> ordorK no
given unleM mch onlfirs, are. manife*tly unlawful, and i« proteetiul from
criminal ri'spDmilnUtji in iiHing nikIi foirc iih ho, on roaHonahIo and
prohiilili' grounds, hoiiuvos to ht> lu'ccKHiiry lor rarrying into idFoct
Hllcii orders.
2. it sliail !)(• a (jiu'stion of law whclhcr any [larticuhir ordor iH
nuiiiil'ustly unlawful or not. (Codo, Art. H.)
Every one. whothor Huhjoct to military law or not, "vho in good
faith and on ivasonahiu and prohahlu grounds IioHuvoh that nuHouh
mistdiiff will ariso from a riot Ih'Iovo tlioro is timo to proniro tho
intoivchlion of any ot'lhc autlioritio-t afon'saifl. \» justified '\\\ using
HU(di forco as ho, in good faith and on roasonahlo and prohahlu
groutidH holiovoH to ho nocoHsary for tho supprossion of sutdi riot,
and as is not disproportionod to tho dangor which ho, on roasoiuihlo
grounds, holiovos to ho approhondod from tho continuanuo of thu
riot, ((!odo, Art. 42.)
Evory oiio wlio is bound by military law to obey tho lawful eom-
niaiid of his superior otHcor is justified in obeying any t'omniand
givon liiin by his superior otHeer for tho suppression of a riot, unless
such order is manifestly unlawful ;
2. It shall he a question of law whether any particular order is
manifestly unlawful or not. (('ode, Art, 43.)
Unlaw fill ANNOiiikly. — An unlawful asHombly is an
ftHHombly of three or more persons who, with intent to earry out
any eommon purpose, assemble in such a manner or so conduct
themselves when assembled as to cause ])or8ons in tho neighbour-
hood of sucii assembly to fear, on reasonable grounds, that the
persons so assembled will disturb tho ])eace tumultuously, or will
by Buch assembly needlessly and without any reasonable occasion
provoke other persons to disturb the peace tumultuously.
2. Persons lawfully assembled may become an unlawful assembly
if they conduct themselves with a common purpose in such a
IIRRACItlN or TIIR l>KAr|. — HfoT. 483
muiinor hn would hiivn mado thoir tixMoinlilin^ unliiwriil il' they had
aHHomhU'il in tliiit inatiiu>r tor tliat piir|Mmu.
3. All Uf^Mi'inlily of iliri'c or inoro |H>rm>iiH for tlio |iiir|ioH(> of pro-
ti'i'tiny \ho lioiiHo of any oii«' in llirir niiMil)«<r a>,'ainMl pfrHonH
tlirratt'iiin^ to Imukk and t-ntfr Hiirli Iioiih*> in order to coinniil any
indictaltio otU'iico tlu>ri<iii \h not tiidawt'ul. (Codo, Art. 7i(.)
Hiul. — A riot '\H an tinlawt'ul aNHcnibly wliioh liaH begun to
diNturl) tlio puaiHi tuniultuouHly. (('od(>, Art. 80.)
Kvtiry ntonilKM' of an uidawful aMMiMnldy \h k""'}' "*' »" indit-t-
alil(> ottoneo and lial)K> toono yt<ar'MinipriMonnu'nt. (Codt*, Art, Hi.)
Kvory rioter is j^uiity of an indictalile otl'enct' and lialile to two
yi>ar'« inipriMonniont witli iutrd labour. (Code, Art, H'J.)
lt<>ll4llllK tlK* riot nvi, — It in tlic d\ity of every Nli(M*itr,
deputy Hlieritl", Muiyor (»r (tthtu" head otllcer, and justice of tlie peace,
of any county, city or town, who Iuin notice, that there are within
\m juriHcliction perNouH, to the numbur of twelve or more, unlawfully,
riotously and tiumiltuoiiHly asHcniblcil ti»/,?etlier to the diHturbanco
of the public peace, to resort to the place where nuch unlawful,
riotouK and tumult uoiiH a»4Henibly In, and ainon^r the rioterH, or iM
nuar to them aH ho can safely come, witli a loud voice to command
or cauHc to bo commandod silonco, and after that openly and with
loud voice to make or causo to bo made a jiroclan" 'on in theso
words or to the like etfect ; —
" Our Sovoroign Liuly the (iueen charges and commands nil
persons being asHombled immediately to disperse and peaceably to
<iopart to their habitations or to their lawful business, upon the
pain of being guilty of an otlbnco on conviction of which they may
be sentenced to imprisonment for life.
God Save tub Qkebn."
2. All persons are guilty of un indictable ott'ence and liable to
imprisonment for life who —
(a.) with force and arms wilfully oppose, hinder or i.nrt any
person who begins or is about to make the said proclam.-tion,
whereby such proclamation is not made ; or
(b.) continue together to the number of twelve for thirty minutes
after such proclamation has been made, or if they know t^iit its
484 PRACTICAL GUIDE TO MAGISTRATES.
making was liinclored us iiforosaid, within thirty minutes after
Bucli hindrance. (Code, Art. 83.)
If the persons so unhiwfnlly, riotously and tumultuously assem-
bled together as mentioned in the nt^xt preceding section, or twelve
or more of them, continue together, and do not disperse themselves,
for the space of thirty minutes after the proclamation is made or
after such hindrance as aforesaid, it is the duty of every such
sheriff, justice and other otRcer, and of all peivsons required by
them to assist, to cause such persons to be apprehended and carried
belore a justice of the peace ; and if any of the persons so assem-
bled is killed or hurt in the apprehension of such pei'sons or in the
endeavour to api>rehend or disj>erse them, by reason of their resis-
tance, every person ordering them to be apprehended or dispersed,
and every person executing such orders, shall be indemnified against
all proceedings of every kind in respect thereof: Provided that
nothing herein contained shall, in any way, limit or affect any
duties or powers imposed or given by this act as to the suppression
of riots before or after the making of the said proclamation. (Code
Art. 84.)
^e|i;lect of MitKisttratcfii or Other Peace Offic-
ers to NupprcNN Kiot. — Every one is guilty of an indict-
able offence and liable to two years' imprisonment who, being a
sheriff', deputy sheriff", mayor, or other head officer, justice of the
peace, or other mtigistrate, or other peace officer, of any county,
city, town, or district, having notice that there is a riot within his
jurisdiction, without reasonable excuse, omits to do his duty in
suppressing such riot. (Code, Art. 140.)
IK^eglect to Aid in SiipprcNftiiig Riot. — Every one
is guilty of an indictable offence and liable to one year's imprison-
ment who, having reasonable notice that he is required to assist
any sheriff', deputy-sheriff", mayor, or other head officer, justice of
the peace, magistrate, or peace officer in suppressing any riot,
without reasonable excuse, omits so to do. (Code, Art. 141.)
Riotous Destruction of, or Dainai^e to Ruild-
ings. — All persons are guilty of an indictable offence and liable
to imprisonment for life who, being riotously and tumultuously
assembled together to the disturbance of the public peace, unlaw-
BREACHES OF THE PEACE. — RIOTOUS DESTRUCTION. 485
fully and with force demolish or pull down, or begin to demolish or
pull down, any building, or any machinory, whether fixed or move-
able, or any erection used in farming land, or in carrying on any
trade or manufacture, or any erection or structure used in con-
ducting the business of any mine, or any bridge, waggon-way or
track for conveying minerals from any mine. (Code, Art. 85.)
All persons are guilty of an indictable offence and liable to seven
years' imprisonment who, being riotously and tumultuously as-
sembled together to the disturbance of the public jieace, unlaw-
fully and with force injure or damage any of the things mentioned
in the last preceding section.
2. It shall not be a defence to a charge of an offence against this
or the last preceding section that the offender believed he had a
right to act as he did, unless he actually had such a right. (Code,
Art. 86.)
It has been held to be a sufficient demolishing of a house if it
were so far demolished as to be no longer a house, there being
only a chimnej^ left standing, and that, if any one of Her Majesty's
subjects were terrified, it was a sufficient terror and alarm to sub-
stantiate that part of the charge of riot, and it was also held that
if pei^sons riotously assembled and demolished a house believing it
to be the property of one of them, and acted bona fide in the asser-
tion of a supposed right, it would not be a felonious demolition,
although there would be a riot. (1)
Where prisoners wore charged with having unlawfully and riot-
ously assembled and with force demolished and pulled down a house
and scattered a hay rick contra pacem, it was held that, upon the hy-
pothesis that the prisoners had demolished the house, not felon-
iously, but in the assertion of a supposed right, the indictment
could be sustained as for a misdemeanor at common law, that is,
for the riot with the statement of the demolition of the house as an
aggravation. (2)
By paragraph 2 of the above Article 86, it will be seen that per-
sons who riotously destroy or damage a building cannot now
reduce their offence to a mere riot, on the plea that they acted in
(1) R. v. Langfofl and others, C. & M. 602.
(2) R. v. Casey, 8 In Rep., C. L. 408.
486 IMIACTICAL GUIDE TO MAOISTKATES.
tho assortion of a right Avhich they boliovod they had, unloss tht-y
really had aiieh a right. The ett'ect of the law as it now stands
seems, therefore, to he that, if the ott'eiiders or any of them actually
have a right to the building, they will only he guilty oi" the riot ;
but, if they have not such right, although they believe they have,
they will lie guilty of the higher ortenee of riotous destruction
or riotous danuige, as tlie case may be.
Iiicitiii)!^ IiidiaiiN to KiotouN .detM. — Kvcry one is
guilly of an indictable otl'ence and liable to two years' imprison-
ment who induces, incites or stirs up any three or more Indians,
non-treaty Indians, or half-breeds, apparently acting in concert —
(a.) to make any request or donumd of any agent or servant of
the Government in a riotous, rontons, disorderly or threatening
manner, or in a manner calculated to cause a breach of the
peace ; or
(6.) to do any act calculated to cause a broach of the peace.
(Code, Art. <J8.)
(See Affray, ante, p. 440.)
Breach op Trust.
Ilreavli of TriiMt by Public Ofticer. — Every public
officer is guilty of an indictable ofl'once and liable to five years' im-
prisonment who, in the discharge of the duties of his office, com-
mits any fraud or breach of trust atfecting the public, whether
such fraud or breach of trust would have been criminal or not if
committed against a private person. (Code, Art. 135.)
CriinJiiul Breach of* Trust by TriiMtceH, etc. —
Every one is guilty of an indictable otl'ence and liable to seven
years' imprisonment who, — being a trustee of any property for the
use or benetit, either in whole or in part, of some other person, or
for any public or charitable purpose, with intent to defraud, and
in violation of his trust, converts anything of which he is trustee
to any use not authorized by the trust. (Code, Art. 363.)
Bribery and Corruption.
Bribery at Elections. — Under sec. 84 of the Dominion
Elections Act (E. S. C, c. 8), it is a criminal offence to give money
BIUUBRY ANlt CORRUl'TKtN. 487
or proinisi' omployinont to procure votes at a Dominion election
Oi . u;ivi' nioiu'V to ohtain tiie return of any person to serve in
the House of t'oninions, or to procure sucli return in conset^uence,
or to advance money to be used in bribery ; and, under sec. 85,
certain acts of voters are punishable as brii>ei*y.
Under the new Act to dispuanciiisb votehs who have taken
BRIBES, (passed at the last session), every voter is to be held to
have taivi'u a bribe who, liefore wr during any election, directly or
indirect ly. himself or by any other person on his behalf, receives,
agrees itr contracts for any money, gift, loan or vnluai)le consi.
deration, for voting or agreeing to vote, or for refraining or agree-
ing to r.'frain from voting at any election, or who, after any elec-
tion, directlj' or indirectly, himself or by any other person on his
behalf, receives any money or valual)le consideration for having
voted or refrained from voting. And voters who have taken bribes
are to be disfranchised for seven years after the judge, assigned
in any i)rovince to make an enquiry under the Act, has reported
them to the Secretary of State. (1)
JTildiciul C'orrili»tion. — i']very one is guilty of an indict-
able ottence and liable to fourteen years imprisonment wlio —
(a.) holding any Judicial ottice, or being a member of Parliament
or <jf a Legislatui'e, corrii[)tly accepts or obtains, or agrees to
accept, or attempts to obtain for himself or any other person, any
money or valuable consideration, office, place, or emjjloyment on
account of any thing already done or omitted, or to be afterwards
done or omitted, by him in his judicial capacity or in his capacity
as such member ; or
(6.) corruptly gives or offers to any such person or to any other
person, any su? bribe as aforesaid on account of any such act or
omission. (Code, Art. 131.)
Corruption of* Officers Kiuploycd in ProsecH-
tinji; Oftenderis. — Every one is guilty of an indictable offence
and liable to fourteen years' imprisonment who —
(a.) being a justice of the peace, peace officer, or public officer,
employed in anj-^ capacity for the pi-osecution or detection or pun-
ID 57-58 Vic, c 14, sees. 15, 16.
488 PRACTICAL OUIDE TO MAGISTRATES.
ifihmont of offenders, corruptly accepts or obtains, or agrees to
accept or attempts to obtain for himself, or for any other pei-son,
any money or valuable consideration, otflce, place or employment,
with the intent to interfere corruptly. with the due administration
of justice, or to procure or facilitate the commission of any crime,
or to protect from detection or punishment any person having com-
mitted or intending to commit any crime ; or
(6.) corruptly gives or otters to any such otlicer as aforesaid any
such bribe as aforesaiii with any such intent, (('ode, Art. 1:^2.)
CORRUI'TION OF GoVKRNllENT OFFICIALS ANIJ FRAUDS UPON THE
Government. (See Articles 133 and 134 of the Code.)
Corruption in Municipal Affairs. (See Article 136 of the
Code.) • . -
Selling or Purchasing any Public Office, Appointment, etc.
(St!» Article IS? of the Code.)
burglary.
9Ieuiiin),[^ ol' Tt'riiiN in Kolution to ltur)>;lKr9 .
(a.) " Dwelling-house" means a permanent building the whole
or any part of which is kept by the owner or occupier foi- the
residence therein of himself, his family or servants, or any of
them, although it nuiy at intervals be unoccupied ;
(i.) A building occupied with, and within the same curtilage
with any dwelling-house shall be deemed to be part of the .said
dwelling-house if there is between such building and dwelling-
house a communication, either immediate or by means of a covered
and inclosed j)as.sage, leading from the one to the other, but ncn
otherwise ;
(6.) To "break" means to break any part, internal or external,
of a building, or to open by any means whatever (including lifting,
in the case of things kept in their places by their own weight), any
door, window, shutter, cellar-flap or other thing intended to cover
openings to the building, or to give passage from one part of it to
another ;
(i.) An entrance into a building is made as soon as any part
BURGLABY. 489
of the body of the ])erson making the entrance, or any part of any
instrument used by him, is within the building ;
(ii,) Hvery one who obtains entrance into any building by any
threat or artifice used for that purpose, or by collusion with any
person in the building, or who enters any chimney or other aper-
ture of the building PBEMANENTFiY left open for any necessary pur-
pose, shall be deemed to have broken and entered that building.
(Code, Art. 407.)
Where a servant boy of the prosecutor always slept over his
brew house which was separated from his dAvelling house by a
public pas.sage, but occupied therewith, it was held, upon an indict-
ment for burglary, that as the brew house was used by the prose-
cutor's servant boy for sleeping in, it was the dwelling-house of the
prosecutor ; although, being sei)arated by the passage, it could not
be deemed to be part of the house in which he himself dwelt. (1)
A burglary cannot be committed in a tent or booth in a market
or fair, even although the owner lodge in it : becau.se it is a tem-
porary, not a permanent edifice ; (2) but if it be a permanent
building, although used for the purpo.se of a fair, it may be a
dwelling-house if a part of it be used as such during the fair. (3)
PiiiilNlinicnt of Biirf^lary. — Every one is guilty of the
indictable offence called burglary, and liable to imprisonment for
life, who —
(a.) breaks and enters a dwelling-house by night with intent to
commit any indictable oflfence therein ; or •
(b.) breaks out of any dwelling-house by night, either after com-
mitting an indictable offence therein, or after having entered such
dwelling-house, either by day or by night, with intent to commit
an indictable offence therein. (Code. Art. 410.)
" Ni'/ht " is the interval between nine P.M., and six A.M., of the
following day. (Article 3 (q.) of the Code.)
The intent to commit an indictable offence ought to be charged ;
or it will be necessary to prove the commission of some indictable
(1) R. V. Westwood, R. & R. 495.
(2) 1 Hale, 567.
(3) R. V. Smith, 1 M. «& R. 256.
490 PRACTICAL OUIUR TO MAGISTRATES.
offonce in tho Iiouho iiftor the ])ivakinf^ and entorini^. Tims, where
an intlietnu'nt was tor bur^lari()U!sly Itroakin^ iuu\ entering a
dwelliug-houHO and then and there stealing goods therein and it
omitted to state tho intent, it was heUl that the defendant might
be eonvieted of tlie iiurglary, if the stealing were proved hnt not
otiierwise. (1) ,
Both a breaking and an entering are neiessary to eonstitute bnr-
glary ; and the breaking and ontertng must both be in the night.
If the breaking be in the day and the entering in tho night, or the
breaking in the night and the entering in the (hiy, it will not bo
burglary ; but the breaking may be on one night and the entering
on another ; (2) jirovided the breaking be with intent to enter,
and the entering with intent to commit an indictable otfence. (3)
Every entrance into a house, in the mvture of a more trespass is
not suttioient. Thus, if a n\l^.\^ steals in a house which ho enters by
a door or window which lie finds open, or through a hole or o^jen-
ing which was nuule there before, (unless it be such a permanent
opening as a chimney etc., as mentioned in Article 40'7 (b) ante,) he
will not be guilty of burglary. (4) Hut see Art. 415, p. 4!K^, post,
as to being found in a dwelling-house, at night.
There must bo either an actual breaking, oi' a Ineaking by
CONSTRUCTION OF LAW, as wliore the entrance is obtained by some
threat or artifice, or by collusion with some one in the building,
as provided by tke second sub-clause of article 407 (t) ante.
Ai'tliul break 111 jf. — Where a cellar window, which was
boarded up, had in it a round aperture of considerable size, to
admit light into the cellar, and through this aperture one of tho
prisoners thrust his head, and, by the assistance of the other pris-
oner, he thus entered the house, but the prisoners did not enlarge
the aperture at all, it was hekl that this was not a sufficient
breaking. (5)
The following are some examples of burglarious breakings.
(1) R. V. Furnival, R. & R. •14.=>.
(2) 1 Hale, 551.
(3) R. V. Smith, R. & R. 417 ; R. v. Jordan, 7 C. & P. 432.
(4) 4 Bl. Com. 22.-),
(5) R. V. Lewis, 2 C. & P. 628.
BUROLARY. 491
Mukini^ a liolo in the wall ; forcing oju'ri thodoor ; |»iitting back,
picking or opening the lock with u f'alwo key ; breaking the
window ; taking a pane of glass out of the window ; putting back
the leaf of a \vin(lf)W with an inntrument, drawing or lifting a
latch ; turning the key where the door is locked on the inside ; or
unloosening any other fastening which the owner has provided. (1)
It has been held, and it is expressly declared by Article 407 {!>)
ante, that the breaking requisite to constitute a burglary is not
contined to the external part of the house, but may be of an inner
door after the otfender has entered by means of a part of the house
which was open. Thus, if A enter the house of B in the night
time through the outer door whicli is open, or by an open
window, and, when within the house, turn the key of a chamber
door, or unlatch it, with intent to steal, this will bo burglary. (2)
C/OllNtrilctiv(> nroakiil{r, — Where, in con.sequence of
violence commenced or threatened in order to obtain entrance to u
house, the owner, either from a|)preliension of the violence, cr in
order to repel it, opens the door, and the thief enters, such entry
will amount, in law, to breaking. (3)
Where an act is done, in frn^Klem leyi's. the law gives no benefit
thereof to the party. Upon this |)nnciple, the getting possession
of a (lwelliiig-hou.-*e by a Judgment of ejectment obtained by false
alfldavits, without any color cf title, and then rifling the house,
was ruled to be within the stiitute against breaking into the house
and stealing the goods therein. (4) So, if a man go to a house
tinder pretence of having a search warrant, or of being authorized
to make a distress, and, by these means, obtain admittance, it is. if
done in the night-time, a sufficient breaking and entering to con-
stitute burglary, or, if done in the day-lime, house-breaking. (5)
If admission to a house be gained by frand, though not carried
on under the cloak of legal process, but morelj- by a pretence of
business, it will also amount to a breaking by the construction of
(1) 1 Ha]e,.Vi2.
(2) 1 Hale 5.W
(3) 2 East P. C. 48fl.
(4) Farre'aCase, Kel. 43.
(5) Gascoigne's case, 1 l.eacli,284.
32
492 I'HACTICAI. UIJIDB TD .MAOINTIIATBH.
liiw. y\('C()P(liii<;ly, wlicm nnww |h'1'hoiis took lodijjiiifjs in a Ikhihc,
iuhI iil'liTwanlH, at iiiy;lil, wliilo I lie pcojilc were at prayfiH, roldtcd
tlu'in, it WUH ti>iiwi(lfn'(l thai, the ciitraiHf iiiln tho iioust^ JH-iiig
gainod hy fraud, witii an inli'iit to ri)ii, I In- oUciuc was Imrg-
lary. (1)
I<llltrilil4*«'. — Any, ovon tho least entry witli any jiart ol' the
olVendiM's hody or with any jiart of any instinnienl or weapon
Uhod hy him is snUicienl. (2)
So thai, wliei'e A. in tlie niijht-tiine, ont ii hole in tho window
sluiltei's of \Vh sliop, whieh waw part of his dwellin^^-honse. an<l,
j)ntting his hand thnuigh tho holo, took ont some watciioH whieh
linng in tho Hho]>. within his roacdi, it was held to he hniglary. Qi)
The Intent. — There must ho un intent to commit some in-
dictahlo otfenee : and if tho iiitontion of tho entry he alleged or ho
proved hy tlie I'vidoneo to liavo been only for the pnrposo of eoni-
mitting a more trespass, tho olfeneo will not hi' hnrglary. (4)
The ItoRt ovidonc'o of tho intent is, tliat the defen<lant aetually
committed the otfenee alleged to have lieen intended l»y liim ; (f))
hui any other fuets may bo given in ovidoneo from which tho
intent may bo presumed.
lloiiNt'-hmikiiifJi;. — Hvery one is guilty of tlie indictable
ottbnco called house-breaking, and liable to fourteen years' im-
prisonment, who —
(o.) breaks and enters any dwelling-house by day and commits
any indictable otfenee therein ; or
(6.) breaks out of any dwelling-house by day after having com-
mitted any indictable otlenco therein. (Code, Art. 411.)
Every one is guilty of an indictable otfenee and liable to seven
years' imprisonment who, by day, breaks and enters any dwelling-
(1) 1 Hawk. P. C, c. 38, s. 9; 4 Bl. Com. 227.
(2) See Article 407 (b) ante. See also R. v. Davis, R. & R. 499.
(3) Gibbon's case, Fost. 107, 108.
(4) R v. Knight & Roffey, 2 East P. C. 610.
(5) See R. v. Locost, Kel. 30.
liUKAKINO HIIDP. 498
li(niH(> with intent to commit any iii(li(!tiil»li' oIVoiipo thoroin. (Codo,
Art. U:i.)
ltr«>illiliiK Nliop. — Kvory ono is guilty of an iiniictalilt*
otVciicc iiiid lialild to lourtccii years' im|)risonmeiit wiio, eithei' iiy
(lay or iii;^lil, hrcaivs and ciilv-rs and commits any indictable otleneo
in a Hcliool-liouse. slioji. wareliouso or eonntinf^-lionne, or any
l)nildini; witliin tiie ciirtilai>'e of a dwejlinif liouse, l)iit not ho eon-
neeled t liei'ewit li as to I'oi'in part <d' it under the provisions lierein-
itet'ore {'ontained. (('(tde. Art. Hi^.)
Kvery one is ^nilty ol' an indictaiile otlfnee and lialilo to seven
years' iniprisonmcnt who, i^ither l»y day or iiigiit, breaks and entorH
any of I lie iniildinf^s mentioned in the hist jirect'ding soetioti with
intent to commit any indictaiile otlence therein. (Code, Art. 414.)
Kntekimi oil Heino Foi'ni) in a Dwem.ino-house at Xiout. —
Mvery one is gnilty of an indictable otlence and liable to seven
years' imprisonment who unlawfully e.ntkus or is in a dwelliiig-
houHe, by night, with intent to commit an indictable offence. (Code,
Art. 415.)
Hkino Found Ah.mrh With Intent to Hiieai^ a Dwelling,
etc.— This ia indictable and )>uinshable by seven years' imprison-
ment. (Code, Art 41(i.)
Havino Possession ok Hurolars' Tools, or Beino Disguised.
— This is indictable and puidshable by five years' imprisonment.
(Code, Art. 417,)
llr«>akiii)[; Plaot* of WorNliip. — Every one is guilty
of an indictable otlence and liable to fourteen years' imprisonment
who breaks and enters any place of public worship and commits any
indictable offence therein, or who, having committed any indict-
able oltbnce therein, breaks out of such place. (Code, Art. 408.)
Kvery one is guilty of an indictable otfence and liable to seven
years' imprisonment who breaks and enters any place of public
worship with intent to commit any indictable olt'ence therein. (Code,
Art. 40!t.)
Upon an indictment for breaking into a parish church, and
stealing two surplices and a scarf, it appeared that the surplices
494 I'RAfTICAI, OtriDE TO MAniKTIlATIS.
and fiOiirf wore stnU'ii t'n>m a liox kept in tin- cliiinli liiwi-r, Imilt
lii^lior lliaii the ('l)un-li, ami having a soparali' roof, hut no oiitur
door, the only way ot'/j;nin^ into it licin^ tliron^^li the Imdy dl' the
tliurtli, iVoin wliicli tlu' towiT waM not M-parati'd Ity ii ddor or
partition. It waH olijootod that tlio stealing of tlitw* urticloH
dopoHitt'(| in tho tower wum not Hacrilc^ti, lint it was held that a
tower, circuinHtanc't'd an this tower wan, niUHl lie taUeii to he jtart
of the ehureli, and that tlie Htualing therein wuh a slealin/^ in the
church, (1)
Canada Tkmi'kiianc^k Act,
(See Intoxicatino LiQL'oR, /)0«^)
t
Canned (i<ion8.
NIllllipiilK or lialM'llillK.— Kvcry packa^-e of canned
goods sold or ottered for sale in ('aiiada, for consumption therein,
must he Icgihiy lahelled with the naint' and address of the person,
Hnn or compaiiv hy whom the same was packed, or of the dealer
who sells or otl'er.'i it for sale; and every such package containing
goods prepared from ju'oduets previously dried must, in addition,
ho lahelled or stamped with the woni 'soaked."
A violation ol' any of Uicse provisions is punishahle summarily
hcfore a justice o\' the jieace. hy a penalty for a first otVeiicc of $2
foj'cj.'li such package, and for a suhsequent otleiice hy a penalt}'
not exceeding Sli(» and not less than $-1 for each sucii package.
FalN<> fill boiling. — For placing on any package any
lahel. hrand. or mark falsely repi'escnting the date of the packing
of tlie goods llierein, or falsely re[trc.si'nting the (nwuitily or weight
of its contents, to the extent of throe por cent, or more, the penalty
is $2 for each sudi package.
The expri'.ssion '-iiackage" means every can, tin, or package in
which articles or goods are ])ul up for sale and whi(di are closi'd hy
heing heriuetically sealed. (2)
(1) R V. Wheeler, 3 C. & P. 58.-).
(2) R. S. C, c. 105.
OAI'AOITV Knll CHI.MK, — CATTLK. 405
Cai'acmty kok Ciumk.
A tliild widiiii I lie a;^t' nl' sovi'ii is cniiNidcrtKl wil limit any
caparily lo disccni riifht I'nuii wrmij;, ami is mo cniicliisivtdy
pi'OHUiiicd In lie iii('a|)al)l« i)|' ci-iiiic tlial lliis |irt<Muin|iti<in cannot
l»o rulMittcd
Hclwt'cM tilt' aj^cs (if seven and lomiccn there is still a |>i"<'siiin|>-
lioii, lint only /^r/mr/ /<irv>, lliat tlie (diild is incajialile, lliat is, the
presiiniption is one wliicli may Ih" relmtted liy clear and eomhisive
ovidunce ol'actnal capacity ; (I ) and. tlicrclnre. when a child he-
tween scM'ii and loiii'tccii is chari^ed with an olleiice, it mnst he
proved not only tliat the (hild coinndtted the act. hnt that iii> did
if with a i;nilty knowledge of wroii;j;(loing. {2)
(Sue l.NSA.MTV. //U6t.)
Catti.k.
MH'illillU; 4'af f l<>.— 'I'his is indictalile ami piinishahh* hy 14
years' inipi'isoiniicnt. (Code, Ai't. .'{;{l.)
This article iTicrs to live cattle. ^I'he htcalin^' of a dead cow or
any |iarl of it would he pnnishahio hy seven years' iniprisonmoiit,
under .Vrlicic M.'»(i of the ( 'odo.
" CatI le ' includes any horse, mule. iiss. swinc, sheeji or f^oat . ami
any neat cattle nr animal of the Imvine spiM-it's, and a|)plies»to oiu;
animal as well as to many. (Cdde. Art. ',UI.)
Wilfully desti'oyiniy; or damaging cattlo is also ininishahle by li
yeai's' ini])ris()nMiont. (Code, Art. 4!>t)i«.)
A person who kills any animal included lu the ahove detinition
ol' cat tie, with intent to steal its carcaso, skin, otc, is guilty (under
Art. .'{I)") of stealinu; it.iind punishahle (under the above Art. 'S.'A )
by 14 years' imprisonment.
Attempts and written threats to hill or injure cattlo are punish-
able by two years' imprisonment. (Code. Arts, 500 and 51)2.)
(Soo Cruem'Y to Animals, ]>. 512-515, ;)os^) '
(1) H. V. Owen, 4 C. & P. 'J3(i; li, v. Groonibridge, 7 C. &. P. 5S2; 4 Bl.
Com. 2:$.
(2) Coile, Articles 9, 10,
4'l(i CK.VOrK.'At, iintDK Ti» MAdlHTIlATBH.
( 'EKTI'iII \|((,
(8i'i' |i|i. ;jriti-;t.'ii», ante.)
Cm vi.i.KffdK m PiiiiiT
<iiiill<>ii}l'iii|i; |4» l<'lKlif H 4lii<>l. — l-lvory unc \h guilty
<>{' an indiclnlilf iiircmc timl liiilili' l<> iIutc yrarn' iiMprij^miiifiit
wlio cluillcii^'i's i>v »'ii(|('iiviiiirH liy any iih'iuih to provoUo any pcrHini
to Wfihi a <ltu'l, or ciKlcavoiirH |o jirovoUo any {tormtii to chalU'iigo
uny otliiir pci-Mon NO to do. (('odo, Art. !i|.)
A diu'l is wIm'I'c two iiiM'MoiiH ll^lit widi deadly woupoiiM and by
pn>vioiiM niiitiial aificrnicnl . It' in suidi a li.i^lit one ol'llic com-
butants kill, (be otiicr. \u' will \>v guilty of nnirdcr ; and tlio HccondH
of botli coinbalantrt and all pn'Hcnf giving coiinlonaiifo to tho
tranMaction (including uvon Jbc surgi-on), will also lit> ('(jually
guilty of Ibal oH'cnci'. (1)
(St'c Piti/.K FidiiTs, post.)
ClIKATINtl AT I'l.AY.
Kv«!ry oii(> is guilty of an indictaMo otlonco and liable to lliroo
yoars' inipriNonnicnt wlio, witb intent to defraud any person,
clieats in playing at any game, or in bolding tbt« stakes, or in bet-
ting oil any event.
Tbe Inipi'rial statute 8 iV !> Viet. c. !()!», s. 17. treats ami punishos
cboating at play as an obtaining by false pr»'teneeH
» ■ > '"
Child.
('iiriiiil I4ii4»u l«'4lu^<' 4»r 4iiil4lr4>ii I^ii4l4'i* F4»iir-
t('4'll. — Tills is indietable and punisliable b}' iinprisonnuMit for
MFB and wiiifPiNO. (('ode, Art. 2(!!>,) And an attonipt to com-
Tllit (be otlelice is indietable ami pllllisluible by two ykahs" ini-
prisoiinient and wihi'IMNo. (Code, Art. L!7tl.)
IJiidor section 5 of the lini)erial Act, 48-4i» Vic, c, (J'.l, it is a mis-
doinoanor to carnally know u girl between the ages of i;{ and 16.
And it has been i-ecently held that it is not a eriininal otl'enco for n
(I) U, V. Young, 8 C, & P. 044; U. v. Barronel, Dears. 53; K, v. Cuddy, 1
C &K. 210. . ^ V _ ■ . , , .-,...,. . ;..,.
ciiiMi. 407
^ii-l, Itftwfi'ii l.'t tiinl !<!, to ui)l ikiid uhot ii inulo poi'Mnu in tin* cori)
iniHHioii i){' llii> iiiiHilt'infiiiiDi' of liuvin^ cunukl ruiiii< ctioii witli lu<r,
or to Holicit uikI iiicitt* a iiitili> porNiin to coiiimit ilic nit'i'tni' u|>i)h
hor. (1)
<'iiiimIiih; » 4*IiII<I*m 4l4'iilli b.^ IVlKlifniliiH; II.— A
person wliu wiH'iilly IVij^lilcii-t a thilil or hIcU person |u dciiHi in
guilty of ciilpiiMc iioniiciilc. (Code, Arliclfs 2l'0. '2\i'A.)
('llAHTIHBMKNT oK ('llll.H. (Sl-i- DIHrll'MNK, /JO^r)
KlIJ.INO UnHoHN CiIII.K. (HoO AHOIITION, fln/<?,)
Nkoi.bct To Maintain (Jiiii,!). (St'c maintknanck /wa<.)
. NIoiilliiK 4'lill4l iiii4l4'r r4»iirl4'4>ii. — KvciT one is guilty
of an indictal)!)' olVoiice and lialiic to sevt'ii years' imprisonment
wUn.u'iih intent to (Iffnirn Ht\y parent or ^'nanlian, or other person
Imvinji^ tiie iawlnl eiiaru;e, td" any <dnld, undir I lie af,'e ol' fourtfen
years, of the possession of su(h thild, or with intrnt to utial any
article alioiit nv on the person oCsueh ehiid, unhuvfnlly—
(a.) takes or entices away or detains any sn( ii < hild ; or
(A.) receives or harhours any such c hild knownuj it to have heen
dealt with as aforesaid.
Ii. Xotliinii; in this section shall extend to anyone who f^ets
pos.session of any (diild, claimin^^ in ^ood faith a right to tho
posseNsion of the ehild. (('odu, Art. liS-t.)
A woman was held riy;htly eonvieti .1, upon evidence that the
ehild, having Incn placed hy its mother in the prisoner's service,
was afli'rwarils missing, and conid not he discovered, and that tho
woman had i^ivcn dillei'ent aceonnls of what iiad heeome of tho
<diil(l. hnl ini|(lying that she had given her to some thii'd party,
allhon^li lliei'c was no evidence that she still possessed Ihechilil.
In an .American case it was held that, where a wife leaves her
hushand. taking her two-year old tdiild. and is aasislc<l. in leaving
him, liy another person, ami tho ehild, aftor such sepafation, eon-
linnesin the custody and under the v ..irol of the \\\\\\ — the irmnoii
(1) R. V. Tyrell {Ihrmit^r, IW).'}], 10 R, March, (1894,) 212.
(!.') H. v. .lolinson, 15 Cox, ('. ('. R., 481.
4!)S PRACTICAI. (UTDE Tl) MAUISTRATES.
SO assisting Iut in leave Iut liushaiid is not ,ij;iiilty, of milawf'iilly
taking ami rarryiiifj; away tlio cliild, which the molhcr (iniitiiuu's
to retain in hec vnvi.' and possession, (1)
ciin,i)iiiKTir.
(*Oll4*<>llllll<>lll ol'hirlll. — I'lvery one is guilty of an in-
dietalik' oll'ence. and liahie to two yeai's' iinpfisDnnient. who (/(V/Jwes
of the dea<l hody of any ehild in any manner, with intent to conceal
the fact (hat its ntotlier was delivered of it. whether tlio child died
liefore, orilnring. or after hirth. ((^ode. Art. 240.)
The more denial of'tlic hirth is not suilicient to convict. Thoi'o
nuist he )ivoof of some act of disposal of the hody afti'r tin* child's
death. {■!)
In order to convict a woman of attempting ti) conceal llu' liirth
of her child it has heen held that a dead hody must lie found and
idenlilied as that of the child of which she was delivered. (.'!)
^'4'Ki«'oliii;>; !<» olilaiii aMMiNliiiKM' in <*liil«ll»ir||i. —
l']vi'ry woman is guilty of an imlictaMe olfence who. with eiilu'i"
(d" the intents liert'inafter mentioned, hcing witii child and heing
aliont to lie delivered. negh;cts to provide reasonahle assistance in
her delivery, if the (dnld is ]ier]nanently injured thendiy. or dies,
cither Jnst hefore, or during, or shortly after hirtli. unless she
))roves that such death or permanent injury was not caused liy
siudi neglect, oi' hy any wrongful act to which she was a p.'irly,
and is liahlc to the tollowing puni.ihmont :
(rif.) If till' intent of such neglect be that tin- child shall not live,
to imi)risonment i'or life ;
(6.) If the intent of such neglect he to conceal the fact of her
having had a child, to imprisonment foi- seven years. (('(kIc, Art.
23!>.) "
CHINESE I,y.MI(iKAT10N,
No vessel carrying (.'hinese immigrants to any port in Caiuida
shall carry more than one such immigrant for every tifty tons of
(1) State v. Anjrel, (Kan. 8npr. Ct.), 11 Cr. L. Mag. 7S8. See also C. v.
Myers, S. C. 2:5 Atl. Rep. KU; 14 Cr. L. Mag. 252.
(2) H. V. Turner, 8(\ (S; P. 7o5.
(3) R. v. Williams, 11 Cox, 684.
CIIINKSK tMMI(H{ATl()N.
4!1!)
its toniiag-o. i'onalty, for ovciy Chiiu'sc iinmigTiiiit cjirriod in
t'xcoss of I his luiiiilK'r. $50. (1)
I'lvcry |)('rsi)ii of ('lnMi'S(M)ri^in sliiill pay into tlu' CoiisolidattMi
Itovoniu' Kmid of Canada, on t-nteriii^ Canada, a duly of S')0'
But nicinluM's of tlu' Di|)loniati(; Corps or oliirr ^'ovcrnnu'nt ropro-
scntativi's. (licir siiilc and their servants and consuls and eonsuhii'
ajj,H'nts are t-.xenipt from tliis payment ; and so are tourists, mei'-
ehants. men of seienee and stu(h'nts. iiearint;,- eerlitieates of identity'
speeifyiiii; t iieir occupation and t lieii- oiiject in eomiu<^- into Canada
and endorsed \>y a British Consul at the place of the irranting- of
sucli certiticate. {'!)
l-'iVery mastei of any vessel, who lands or allows to 1)0 landed
any Chinese immii^rant l)efore payment of thi' ahove duty, is liable
to a penalty not exceeding- .1?1,0(M), and not less than I?')!)!), and to
imprisonment not exceeding twelve months in default of payment ;
and the x'essel will lie forfeili'd to Her .Majesty. ('^)
No duty is payaide in respect of any woniau of ( 'hinesc oi'igin
who is the wife of a )km'soii not of Chinese origin: hut. for the
]iurj)o.so of the Chinese. Imminrdtion Act. such wouuin is deeim^l to
ho of the same nationality as her hushand. (4)
I'ersoiis of < 'hinest' origin may pass through Canada iiy I'ailway,
in transitu from one port or place out of ('anada to another port or
place (Hit of Canada, without payment of entry dues, provided that
HUidi ])assage is imide under regulations of the Minister of Customs.
(•''0
A Chinese person, who wilfully evades or sittempts to evade tiio
provisions of the Chinese Imnwjration Aet. as ivspeets the payment
of duty, by porsomiting an)' other individual, or who wilfully' makes
use of any forged or fraudulent certiticate to evade ihi- ])rovisions
of the Act. and everyone who wilfully aids and ahets any sucii
Chinese ))crson in any suidi evasion im' attempt, is guilty of a mis-
(1) K. S. C, c. (17, sec. 5.
i2) lb., sec. S.
(3) lb., sei\ l(i.
(4) 50-51 Vic. c. 35, sec. 1.
(5) 50-51 Vic. c. ;!5, sec. l'.
500 I'liAcrrcAf, niiDK ti» maciistkates.
(lomeaiii)r iiiid liiilik' to im|M'is(mMU'iit not oxcooding twelvo montlis
or to ii HiH' not fxcei'din^ S'»00 or to both. (1)
Ah to cortiliciitcs to ("liiiicso k-iiviiiif Canada and intending to
ivturn, wo soc. i;5 of tlic \t. S. ('. o. (!7.
All actions to iTcovor diitit's or ])i'nalties uiidor tlio Chinese fmvn-
(jration Act and nil prosiJcutioiiH thoreundor for otfenecs not therein
declared to be misdemeanors are triable before one or more justices
of the peace luiviiig jiii'isdiction where the cause of action arose or
the otfence was committed. (2)
COMBINATIONS.
C'oiiihiiintioiiN ill ItoMlraiiit of Trade. — Kvery one
is guilty of an indictaiiie otleiuH' and iiaiib' to a iienaity not exceed-
ing four thousand dollars and not less than two hundretl dollars, or
to two years' imprisonment, and, if rt corporation, is liable to a pen-
alty not exceeding ten thousand dollars and not less than one
" thousand iloilars. who consjjircs. combini's. agrees or arranges with
any other per.s(ju, or with any I'aiiway, steamship, steamboat or
transportation company, iinlaicfulli/--
(ci.) to iniduly limit the facilities i'or trans])orting, pi'oduciug,
manufacturing, sup])lying, storing or dealing in any article or
commodity wbieh n>ay bo a subject of trade or commerce ; or
(6.) to restrain or injure trade or commerce in relation to an}'
such article or c<^mmodity ; or
(''.) to unduly prevent, limit, oi- lessen the manufacture or pro-
duction of any smdi article or conunodity. or to unreasonablj'
enhance the |)rice thereof; or
(f/.) to unduly prevent or lessen competition in the i)roduction.
numufacture, purchase, barter, sale, transportation or supply ot
any such article or commodity, or in the price of insurance upon
person or jtroperty. (Code, Art. 520.)
It is the policy of the law to encourag*^ trade and commerce;
and it is against public ])olicy and illegal to enter into a combina-
tion or agreement for the purpose of restraining trade, or tending
(1) R. S. 0. c. ()7, sec. 17.
(L') K. S. C. c. 07, sec. 21.
COMBINATIONS. — COMPOUNDING OFFENCES. 601
to take it out of the voiilins of fonipetitioii ; ovoii ulthough it may
not appear that tho coml'iiiatioii or agreomoiit hiia actually \n'o-
(lucod any result detrimental to public interests. (1)
An as.sociation of mannfaeturers of wire eloth, formed for tho
avowed j)urpose of rejujulating the j)riee of the commodity, eacl\
member stipulating, under a lieuvy penalty, not to sell at less than
a specified rate, was held to be contrary to public policy and
illegal. (2)
The defendants, (who were shipowners), agreed that, if persons
in a certain trade would deal witli them, exclusively, such j)ersons.
should have certain advantages at their hands, and that if they
(le;dt with any other shipowner, to however small an extent, they
should lose all the advantages which they would derive iVom deal-
ing with defeiulants. The plaintiffs, (who wore also shipowners.)
alleged that this was done for the purpose of injuring them by
driving them out of the trade. But the defendants said it was
done for the ])rotection of their own trade. Held, that the ques-
tion would bo wh'ch oflhe.se two views was in fact, true. (3)
Compounding Offences. . ' ;'
C'oiii|>onii4liii}>^ |>«'iial uctioiiN. — Kver^' one is guilty
of an indictable otl'ence and liable to a tine not exceeding tho
penalty comjxjunded for who. having brought, or uuiier colour of
bringing, an action against any person under any ))enal statute in
order to obtain from him any penalty, compounds the said action
without order or consent of the court, whether any offence has in jact
been committed or not. (("ode. Art. 155.)
C'Oi*rii|»tl,y Taking; lltMvard lor Ilt'l|>iii}>; to
Bto«*ovc'r Nt4»li'ii Property. — Kvery one is guilty of an
indictable otlence and liable to seven j-cars' imprisonment who
corruptly takes any money or reward, directly or indirectly, under
pretense or upon af count of helping any person to recover any
(1) Santa Clara, V. M ci L. Co, v. Hayes, 70 Cai. 387; Atcheson v. Mallow,
43 N. Y. 147.
(2) Ue Witt Wire Cloth Co., v. New Jersey Wire Cloth Co., 14 N. Y. Supp.
Rep. 277.
(3) ]Mognl Steamship Co., v. McGregor, L. R if), Q. B. D. 476. ./ ,
5()2 PiiArricAi, (H ide m ma(iistiiates.
clialtol, money, valuable security or other propei-ty which, hy any
indictalile oll'encc. has liei'u stolen, laUen. ohiaiued. extorted, con-
verted or disposed of, unless he has used all due diligence to cause
the otl'ender to he hrouglit to trial tor the same, (('ode, .\rt, 15(5,)
1 iilawl'iilly iHlv«'rtiMiii{i^ It4'wiii*«l tor Koliirii
of Klolcil l*l'op«'ri,v. — i'lveiy one is lialilc to a |icnally of
two iiundi'i'd and fifty dollars for eacii oHeiice, I'ecoverahle with
cosfs liy any person who sues for the same in any coui't ot' corn-
jiotent Jurisdiction, who—
(a.) puhlicly advertises a reward for l,he return of any properly
whi(di has hcen stolen or lost, jind in such advertisciuuit uses any
words i)ur|)ortinii" lliat ni> (Hiestions will he asUed ; or
(6.) makes usct of any words in any puliiic advertisement pur-
porting that a reward will he givi'U or paid for any i)ro|)erty
Avliich has heen stolen or lost, without .seizing or maUing any
in(|uiry alter the per.son ))rodueing such property ; or
(r,) pi'omiscs (>)• (lifers in any sucdi puMIc advi-rliscment to re-
in I'u, to any ]iawnlii'oker oi' other person who has advaiictd money
ly way of loan on. or has bought, any pi'operty stolen or lost,
the nuiney ,so advanced or jiaid. or any other sum of money for
the return of su(h ]n'operty ; or
((/,) prints or puhlishes any such advertisement, (Code. Arl,
157.)
On the suhject of comjionnding otl'ences, Ai'chhold cites a num-
ber of eases, (1) Amongst them is one in whicii the plaintill's, a
local lioard. had indicted tlie defendants for ohstructing a high-
way. At the trial a con>i»romise was luade hy the partit's and
sanclionod hy the Judge, and afterwards ccmtirmed hy deed, Hy
this deed the di'tendants co\enanle(l to restoi'c the road wilhin
seven years, and the plaintiffs covenanted that, when that had heen
done, they would consent to a verdict of ■' init guilty" on the
indictment. The defendants failed to restore the road, and the
lilaintiffs tl)eu hronght an action (mi their covenant. Ilelil, hy the
(1 ) R. V. Burgess, 55 L. J. M. C. 97 ; R. v, Gatley, K. & R. 84 ; R. v. Crisp. 1
B. ct Aid. 28-.'; R. v. Best, 9 C. & P. S68; Keir v. Leeman, 13 L. .1, (Q. B,)
359; 15 L.J. Q. B. 300, ele.
COMPULSION. ' 503
Court of A|)|iciil. that, as tlic iiidictim-iit wan for u public inju7y,
llio a^iToiuent to couseut to a vordict of ''not guilty" was illegal,
and that thu i)luiiitirt'H I'ould not maintain ;v;i accion on the dofutid-
aiits' covenant. (I) ■
So that, wlu'ii an otfcncc, — oven if it ho not very serious, — is ono
of a public nature, tiie compromise of a prosecution l»ased upon it
will lie illegal ; Imt if the ()tl'ence is of a light duiracter and
ono whi(di miglit bo nnide tho subject of a civil action, such as a
common assault or a libel, an agroeinont to witlidraw the prosecu-
tion will lie legal ; but where the ])ublic charact'.'ristic of the of-
fence predominates, as, in the casi of an assault and riot com-
bined, an agreement to compromise the prosecution would be
illegal.
Compulsion.
4'oiiipiilMion hy TlirctifM. — Kxcept as hereinafter
pi'o\ide(l. compulsion, by threats of immediate death or gi'ievous
bodily harm from a person actually j»resent jU the commission of
the otl'ence, sludl be an excu.se for the commission, — by a person sub-
ject to such throats, and who believes such threats will be executed,
and who is not a party to any association or conspiracy the being
a party to which I'enderetl him subject to comitulsion, — of any
ottence other than treason (as detined ni paragraphs a, b, c. d and e
of subsection one of section (iT) of the Code), murder, ])iracy, offences
ile< nu'd to be piracy, attempting to murder, assisting in rape, forc-
ible abduction, robbery, causing grievous bodily harm, and arson.
(Code. Art. \2.)
C^^4»Jll|»lllMi<»il l».V Foi*c«'. — Although the law will not
I'xcus'- the commission of any of the above excepted olTences, —
such as murder, piracy, rajie. ar.son, — done under compulsion by
thivats even of immediate death, it will be ditVerent with a person
who is not a free agent physically, but who is s\ibjocted, — not to
threats ojterating on liis mental faculties, — Itut to actual ))hysical
force exercised without or against his consent by a third party ai
the time of the act being done.
If A, by force, take the arm of B, va which is a weapon, and
il) Windmill Loc. E. of Health v. Vint, 45 Ch. I). 351.
r-,'V $>,'■
•'•"* r'tACTICAI. 01 IDK Til At All ISTIIATKS.
Ilifivliy kill (;, A is yiiiil^- ot .minlcr, not M,; (1) lor H, in tliin
iiislanco, is as iinwitlin^'ly (In- inst niiiicnt of A iih if he woro
iiiiiiiiniito oi- unconscious ; ami liis own will lias nolliini,' al all to
do witli the act, wliicji is as exclusively tlio act of A as if the
weapon wi-rc in the hitter's hands instead of in \Vh.
<'oill|»ulNi4MI l».y XoveWNlly.— Till' law of necessity is
paranionnl over all other laws ; and it has hreri well said that
every law of man has in it the ini)ilieil i'xecptioii, whii h is of the
Hame force as if exprossod, that obedience shall not he requirwl
when it is inipossihle, and that an act which is iinavoidahle \h no
crini '. (2) And, as everything wldch is necessary for a man to do
to Hjive his liff is treated as coin|)elied, it follows that if I am
attacked hya ruffian who seeks my life, 1 may kill him if I cannot
otherwise })reserve my own life. (3)
A i*c i? swimming in the 8ea after a 8hi]»\vrock, get liold of a plunk
not large enough to s\ipport hoth, A puslu's otf B, who is tlieroby
drowned. A coniniits no crime. (4)
A doctor kills a diild in the act of hirth as the .)]\]y way to save
the life of tlic mother. The doctor is justified. (5)
CoilipillNioil of WilV.— Xo presumption shidl be made
that A married woman comnvitting an offence does 8o under coin-
])ulsi<m because she commits it in the prosoncc of her huwband.
(Code, Art. 13.)
CONSI'IRACY.
Ooiii^iTMi Definition. — A conspiracy is an agreeing or
combining or confederating together by two jiersons (not being
man and wife) or more than two persons to accomplish some
unlawful purpose, or to accomplish a lawful purpose by some
unlawful means. (G)
(1) 1 Ru88, Cr. 5 Ed. 139.
(2) R, V. Diuinett, 1 C. & K. 425.
(3) 4 Bl. Com. 183.
' (4) Bacon's Max. No. 5; Burb. Dig. 38.
(6) Steph. Gen, V. C. L. 77.
(0) R. V. Rnnn, 12 Cox, 316-339; R. v. Roy, 11 L. C. J. 93.
CONSI'IHAOY. 505
TIitM'()iiiI)imiti()ii Jn'iiif^ tliti ifint n\' {\w otVonoo, ii conmpiiiicy is
(•()in|)li'U) as Hooii us (ho coiisiiiriilnrs ('01111)1110 and a^i'cc tD^ctlu'r,
although tho conHpiniey hu» not Imcii actually carried into ctl'cct.
(1)
A conspiracy consists not in llic moro iViYen^/on of two or more,
hut ill the (ii/recment of two oi- more, to do an unlawful act, or to
do a lawful act hy unlawful means. So lony; as sutdi design n^sts
in inf nit ion only, it is not indicdiide. (2)
As a conspiracy must, from its nature, lie l»y two persons, or
more, one iiiai' alone cannol be ti'ied and convit'ted of it. unloss ho
ho indicted for conspiriiii; with other persons to the Jurors un-
known ; or unloss ho ho charged witii having conspired with others
who huvo not ap])earod, or who are since dead. (3)
The a(;ts and declarations (d'aiiy of the conspirators in further-
ance of tho common d(;sigii may he given in evidence against all of
thoni. But hoforo ovidonco of tho acts of one conspirator can bo
given against tho others, tho existence of tho cniis|(irHcy must bo
ju'ovod, and that tho act in question was an act <lone in furthorunoo
of tho common design. (4)
C.'oiiN|»ira<>y iii KcNtraiiil of' Trade. — A conspinicy
in restraint of trade is an agroement lietwoon two or moro persons
to (h> or procure to bo done any unlawful act in restraint of trade.
(Code, Art. 516.)
What ActN ill KoMlraiiit of Trade arc not Uii-
lawf'lil. — Tho purposes of a trade union are not, by reason
merely that they aro in restraint of trade, unlawful, within the
meaning of tho next preceding section. ((!odo. Art. 517.)
The expression " Trade Union "' moans such combination.whothor
temporary or permanent, for regulating the relation between
workmen and masters, or for imposing restrictive conditions on
(1 ) R. V. Thayer, 5 L. N. 1()2 ; Horaeinan v. R., 16 Q. B. (Ont.), 542 ; Hey-
manii v. li.,li Cox, 383.
(2) Mulcahy v. R , L. R. 3 H. of L., 300-328.
(3) Hawk 0.72,8. 8; R. v. Kinnersley.l Str. 193; R. v.Niclioll8,2Str.l227
(4) H. v. Sheliard, 9 C. & P. 277 ; R. v. Blake, 13 L. J. M. C- 131.
5U(J I'RACTU'AI. (M'IDK Tit MAUISTIIATK8.
the fohduct of iiiiy tnuli- <>r IniHincsH. as would, Iml for tliiH Act,
huvo hern dooiiit'cl to lie an utilawt'iil (•oiiiltinalion Ity roasoii of
•omo OIK) or inoiv of iIh purpoMi's Itcin^' in rontraiiif of (nuUi, (Sue.
2 of" The Trade. Unions Art:' \l S. C, c. 131.)
ProN«>('iiiioii lor Tru<lt> t'oiiNpirtivy.— \o |>i-os«(ii
tion simll bo iiiaintaiiialilo against any prrson for conspiracy in
rcfusini^ to work witli or for any employer or worUnian, or for
doini; any ficMir cansin^' any rir/ to lie done for the purpose of a
trade coniltination. uidess such act is an qlfence puiushahle by
htatnto. (Code. Art. r)18.)
Where the defendants, who wore nierniiers of a traih' union, con-
spired together to injure a non-unionist workman, hy depriving
him of ids employment, it was hi'ld to he a misdenieanoi", and not
for the ]iurpo.ses of their ti'ade combination, wiiliin the meaning of
the law. (Ij
Mt'tiiiiiiK of ••TrtMl<' <'4Miil»iiiatloii ** and •• A«*l.'*
— The cxpi'i'ssion " trd'le. lonihiiuitiun" means any combination be-
tween mastt'i's or workmen or other persons for regulating or
altering the relations between any pcr.sons being masters or work-
nu'U. or the conduct of any nnister or worknmn in or in respect ot'
his bnsii\i'ss oi" cmplo_\rni'nt. or contract of employment or si^rvicc ;
and the expression ■■itct" includes a default, breacdi oi- omission.
^Codo, Art. r)l!t.)
See CII.MHINATIONS IN RKSTIt.MNT OK Tll.VDE. p. 500, ante.
C'oiiNpii'iiiK <o l»riii}( a l<''alN«' A<'4'iiNa(ioii.—
Every one is guilty of an indictable otfencc who conspires to pro-
secute anj' person for any alleged oiVence, knowing such person to
be innocent thereof, and shall be liable to the following puidsh-
inent :
{it.) To imprisonn\t'nt for fourteen years, if such person might.
upon conviction for the alleged ollence, be sontenced to death or
imprisonment ibr life ;
(6.) To imprisonment for ten years, if such person migh* upon
(1) K. V. Bunn, 12 Cox, 31C-3'10.
OONHl'IKAOV. 507
0()iivictii>n t'lM'lli^ uHi^^ihI otloiKto, bo Hoiitoiicod to impriHoiuiunil lor
any term lens limn lilV. (Code, Art. 152.)
4'oiiN|»iriiiK lo 4'oiiiiiiil an liidl4*l»l»l«'4lflVii«M>.—
I'lvery oim is guilty of tin imlicitiiblo otVeiiei* ami iiahltt to noven
years' iini>i'iHonmi'nt, who, in any caMo rud Imreinhef'oni [jroviiled
for, c'oiiHjiire.s with any itcrson to eununtt any uuliutahlo oll'enco,
(Code, Art. 527.)
<'4»iiN|»irln)C to ll«>l*ruild. — Hvery one is guilty of an
indictable ott'enee and liablu to Hovon years' imprisonment who con-
spires with any other ptsrson, by doeoit or falsehood or other frau-
dulent means, to defraud the public or any person, ascertained or
unascertained, or to atl'ect the public market, pricre t)f slocks, shares,
mcrchandiso or anything else publicly sold, whether such deceit or
falsehood or other fraudulent means would or would not amount
to a false prett'iise as heivinbeforc delined. (Oodc, Arl. ;{'J-t.)
Tho following are examples oi conspiraciea to defraud :
A conspiracy to impose [tivtcnded wine upon a man as and for
true and good I'ortugal wine in oxchango for goods (1) ;
A conspiracy to defraud tho public by moans of a mock auction,
— that is, an auction witli sham jjiddors, who pretend to be real
bidders. — for the purpo.se of .selling goods at prices grossly above
their worth (2) ;
A conspiracy to injure a man in his trade or profession (3) ;
A c()nsj)iracy to raise, by false rumors, the price of public funds
A conspiracy, by tlie promoters of a joint stock company, to
ciicat and defraud, by means of fal.so pretences, those who might
buy shares in the company (5) ;
A conspiracy by persons to cause them.selves to be rei)utod men
of property, in order to defraud tradesmen (6) ;
(1) U. V. Macarty, 2 Ld. Kaym. 1179.
(2) R. V. Lewis, 11 Cox, 404.
(;i) R. V. Eccles, 1 Leadi, 274.
(4) R. V. Aapinall, 46 L. .1. (M. C.) 150 ; R. v. DeBer»snger, 3 M. & Sel. 07.
(5) R. V. Aspiiiall, 45 L. J. (M. C.) Iu9 ; 40 L. J. (M. C.) 145.
(0) R. V. Roberts, 1 Camp. 399.
33
BM I'ltAi THAI, uniliK I'K M AtllsTH ATKS.
A (niispiriity ti> <l('rnuitl hy int'iinMot' hiUo n^iuvMoiitatiniiM nf llii«
Holvoncy nl'a ImnU <)folln>r mcrraiiliK' t'slulilislinu'iil (I) ;
4'4»iiM|»lrii«',> l4» liilliiihltilo a l<«'tclMliiliir4'.^
(Si'ti Arlicli' TO uT ilic ('(»(!«.)
CONTItACT,
<'l*illlilltll l»r«Ml«'ll«'W 4»r 4*4»lliril4«i.- Il ift ilH nllclUO,
|»miisliiililc, — oil iiiilictiMi'iit, or un siiiiimiiry imii\ ictinn In lure
two JiiHtirt's, — liy, (as to pi'i'Moiis), a |)fiially of i;?l()(M>, or ;j ihhmiIih
iiii|ii'isoniiu'iil. witli or \villu)ii( liard lalioiir, iiikI by. (as lo iniinici
|iiil coi'iMiralioiis. I'Ir.;, a ju'iially of ?<l(MMl. and liy. (as lo railway
i-oiii|iaMirs) a jiciially of ii^illO, — |o wiifiiily lircak a contract Uiiow-
in^ or liaviii^' ri'as()iial)U' caiiMo to ln'licvc that siidi lii'i'acii will (n.)
cii(laii;i;i'r life or |>ro|HM'ty, or {h.) (|i'|irivc tlic inlialiitaiits of a city
or placo of tiicir supply of powor, lii,'lit, ^as or water. oi' (^c.) delay,
or prevent the rimiiiiig of any loconioti\e, eni;i ih' oi' lender, or any
IVoi^ht or passeiii^er train, or cur, on a railway curr^ini;- tlii' mails,
etc. (Code, Art. 521.)
Kvery such municipal corporation, authority, or company shall
cause to he posted up at their works or railway stations, as the
case maybe, a ])rinted copy of tiie above section. I'eiially, for
default, $21) per day. I'enalty, for unlawfully injuring, defacing or
covering such posted copy, $10.
Contagious Diseasks.
See The Animal Contagious Diseases Act, R. S. C, e. ()!). And see
p. 133, ante.
Co-Owners and Co-Paiitners.
Tlicl't hy Owiiern, 4^o-Oi«n«'rN and l*arlii«>rN. —
Theft may bo eommitted by the owner of anything capable of be-
ing stolen against a person having a special property or interest
therein, or by a jiorson having a special property or interest tliere-
in against the owner thereof, or by a lessee against his reversioner,
or by one of several joint owners, tenants in common, or partners
of or in any such thing against the other persons interested thei-e-
(1) R. V. Esdaile, 1 F. & F. 213.
(Mtlti'nilATtOMJ. — COl'NTKKFMTtNd. ft(l!»
ill, or liy lilt" (lii'crinrH. piiMic owners nr hh'ihIu'in of a |iiil)li(' com-
piiiiy. or liody forporiilt', or of an iiiiiiiforporuliMl lioily or nocioty
associiitt'd loi^.'llicr I'or any lawful purpose, a^'aiiisl siieji pnlilie
eoiiipany or liody corporate or iiniiiL'urjioraleil hoily or Moeioty.
(Code, An. .'{ll.)
Tlie olleiice is iiidiital>le and piinislnihle (iin(U>r Art. ;{.')<; ol ||io
Code) l»y Novon yourn' imprimmnuMit.
t'oiM'caliiiu; 4Jol(l or Mil«4>r with liil«>iit !<» lie-
IViiiiil I'lirliicr ill .Hilling 4 III i III. -Kvery one eom
inilH theft wlio, with intenl |o defraud liis co partncu', eo-iidveii-
turer. joint tenant or tenant in eoininon, in any niininif elaini, or
in any share or iiiler(»st in any sindi I'hiiin, seeivtiy Ueeps liacU or
conwals any fj;old or silver found in or upon or (aUeii frotn sindi
I'liuin. (Code, Art. ;J12.)
This is iiidietalile and punishahle (under .Vrt. ;151 of the (Vtd(>)
liy two years' iin|>risoiinient.
('OKIMIH.VTIONS.
('or|M>rtilioiiN iipix'iir by .iltorii<>,Y.— A corporution
against wiioin an indielinent is found shivll ajipt-ar liy attorney ;
and no writ of certiorari is necessary to i-eiiiovt^ siudi indictineiit
into any Superior Court so as to compel the corporation defendant
to plead thereto. ((!ode, Articles »!.{r), ti'.M.)
On the tinding of an indictineiit against a c()r|)onition, a notice
to |ilead shall he served upon such corporation, for whom, — in case
of default to appear and plead, — a plea of '• not guilty" may he
ordered to he entered ; and whether the corporation has ajipeared
and pleaded, or a plea has been so entered for it, the trial may
proceed in its ahsence. (Code, Articles OHTlliiS.)
CoUNTEIlKBITrNd.
l>4'liiiitioii. — Counterfeiting is the making of false or spuri-
ous coin to imitate the genuine.
A genuine coin prepared or altered (for instance, by gilding or
silvering it"), so as to resemble a coin of a liigher denomination, is
a counterfeit coin ; and a coin fraudulently filed or cut at the
Bl(» I'HArTirAl. liViur. to mauIhthatrh.
Otl^eN NO UN to n>tnov(* tlic lllillill;^^ ami on wliidi ii new inilliii^ Iium
Ikm'ii iiilili'tl to rcKtort< tli*> ii|i|it'ui'iuii'<t ol tlii> coin, in uIho u coiiritci''
t'tMl coin. (Cotlc, Art. ItlD.)
Wli<>ii 4lfr4>ii4M> Im <'»iii|il«>to.~Kvci-y olVciico oi'nntliin^
an>' cniintfiMcii coin, or ol' Iniyin^', Hcllin^'. receiving. |ia)in^,
Icndcrin;^'. nllcrin^. or piitlin^ ol)', or ol' oHorin/i; lo Imy, ncII.
roc'civc, pay, nllcr, or |Hit oil', any connlorluit coin Ih (locnn'ii to Im
(■oni|>ict(<, althoHijIi the. ''oin ho nnnlc or ci'nntcrr<Ml(<i|, or lion^'lit,
Nolil. received, paid, Icndcrcd, uttcrc(| or put oil', or olVcrcd lo lio
lion;;'lil, Hold. I'cccivcd, paid, tendered, ultereil or pnl <dr, iins not in
a fit state to he uttered, or thr countertrit lliei'i-of iraa not finiaheil or
perfeete'l. (Code, .\rl Mil.)
4'oiliil4'i*lVif iiiK 4'4»liiM. «V<'. — KvtM-y on(> In ^niilly (d' an
indictalil(< oU'ence and liaMe to imprisonment tor lite \v'lio-~
(ri.) nniUes or hegiiis to niaUo any counturreit coin re.sembrmK.
or apparently intt'nded to icsemlde oi- pass I'or, any cnrreni gold
or silver coin ; oi*
(/'.) gilds or silvers any coin rosemltling, or apparently intended
to reseniMc or pass for. any enrrent gold or silver coin ; or
(('■) gilds or silvers any piece of silver or copper, or of coarse
gold or coarse wilvt-r, or of any metal or mixture of metals r»'spec
lively. InMng of a lit si/,e and tignre to lie coined, and with intent
that the same shall he coined into coiinterf(*it coin resemhling. or
apparently intondeil to reseinhle or pass for. any current gold or
Bilvor coin ; or
(<l) gilds any enrrent silver coin, or tiles or in any manner alters
8n( h coin, with intent to make the same resemhic or pass for any
current gold coin ; or
(«.) gilds or silvers any cnrri'iit copper coin, oi- tiles or in any
manner altci's such coin, with intent to maUe the same i-csemhle or
j)ass for any current gold or silver (oin. (Code, Art. K!2.)
As to the ottences of Dkai.inu in and imimirtinu coiinterkeit
COIN, MaMUFAOTI:RINO OOPI'ER coin ANO IMI'ORTINO unciihrent
.OOPPBR COIN, KXI'ORTINO COUNTERKKIT COIN, t^l.IIM'INd (M.RHENT
noM) OR 811- VER roiN. Defacing current coin. I'ohsehsino cur-
rent COIN Clill'l'INO.*, Po88ES8IN(l GUI NTERKEIT COIN, CoKNTKRFEIT-
coi NTHiKKirrNO. oil
INti noi'MKK ('i)ivM, ami Mvkinu ii\mk rtiiKiuN (hhnh, m<o ArtiolM
'i<;;i. ii;i, iiir>, oim, ii;!i, i7i». 171. iti' uml 17:1 •>!' iIm> ChIk. AihI hh
to llic MaIsINU ok INMTIlliMBNrs FnU r'UNlNU llinl till' hlll.NKINli UV
UOININll INHrillMKNTH INTO ('.\IVAI>A, HUO Al'liclxM tdll Ulnl I'i? ot'tllO
<'.h|.-.
Al»VKIlTIHIN(( CoiJNTKIlK'Ktr Mi»NKV. — (Mw |), l.'IH, ante.)
NllM|i4'4*l«'4l 4'4»lil illll,! Ill' I'lll. -Ciiiii li'iidi'i-i'il iiH nir-
rctil )Xi>\i\ 1)1' hIKi'I' ciiiii iiiiiy, it' miimimtIciI tn Im^ iliniiiiis|ii>i| nr id Im*
cniMili'rri'it, III" (III. Ik'iiI III* limki'd liy tin- |k>iniiii to wlium it is
li'iiili ri'ij ; ami il' il in i|iiuiiiiH||(-i| or coiiiilrrt'i-it, tlio pio'soii liMiilxr
iii^ il nIiiiII Iii'ui' I III' loss; liiit, il' it lu* ^ooil (•oiii. tlio |m>inoii
ciitliii^. Iii'iiiliiii^ III' lii'i'aUiii;^ il nIiuII riM'i'ivii ii at I In' rah- I'ni-
wliiili il will ruiiii'il. Any ili^^imlr as lo wlirtliri- nucIi cnin is
iliiiiiiiislii'il or riiiiiilcrri'il shall Ih> siiinitiai'ily Iricil liy u JiiHtici.) of
tim |inii'c. (I{. S. C. c. 1(17, hit. 2(1.)
Noiy.iir** 4»f' lliilimriilly .Yluiiiirii4>iiir4>4l 4»r liii.
|M»rl4'4l 4'4»|l|M>r 4'4»ill. — (Sr>< !{. S. ('. I'. t<i7,ss. 2<)~;M.)
I ll4'l*lllU; €'4»lllll4'rf'4'il 4d4»l4l 4»l* NI|V4'I* 4'4»illM, —
This is iiiiliclalili' ami |miiis|ialili' l>y 1 I yi-ai's' iiin»i'isoiiiin.i|it.
(('.hI.'. ,\ri. 174.)
WhiToa ^oimI sliilliiif; was IiihhIoiI to a .li-w hoy lor IViiil. ami
he pill il iiilo his iiioiil II. iniih'i' |tri"t«Mmo III' tryiii<; it. aiul. lln'ii,
(iiisli'ail oj' llu'i;;oo(i shilliiii; hainli'il to hiin). ho look, oiil uf his
moiilh.a had sliiijinjf. wliirli In- luimh'il lo iho pi'iisiTiitor. sayiim
il was mil <^oo(|, this (which is oiu' of lliciiioilos of riiiijiiii^ iho
(dian^os) was hclil lo he an iiIIitIii^ of I In' bail shilling. ( I )
il is an • iillnrin/uj ami putting of." as well as a ' tonili'ring," if
(In- coiiiili'rfi'il I'oin lu' ollrrcil in payniriil, tlioiiifh it ho rol'imoil hy
thi' pursoii to whom it is olU-roil. (2)
l'li4'l*lll}( KK'^^ 4'4»illN« ^l4>4llllN r4>M4'lllbllll|{^ ciir-
r<>ll( 4'4»iiiM, «'l<*.. — This is imiiclahio ami |iiiniHhaliiu hy
throe years' impriNoiinieiit. (C'odo, Art. 475.)
(1) It. V. Franks, 2 houdi, 7;?fJ. ,'
(2) U. V. WelBli, 20 L. J. M. C. 101.
r)l!i I'llACTK \l. Ul IliK 'I'd MAOISTIIATKS.
IJIt«'riiiu: llf'ltMM'll <'oiii.— This in |)(iiiiHlial>l(' siniiniiirily
lii'lorc I \v«> JiiMliccs, I III' |)riiiilly ln'iii^f ItMi dulliirs. (Ootlc Afl . 17t<,)
l'tl4'riii({ iiiinirroiil 4'4>|»|»4'r 4'4»iii. -'IMiis is piin
isliiil)l(' s\iMiiiiiii'ily, I lie |ii'nally licirii^ ijoiihlc I lie iioiniiiul viilur >>{'
tli(( iilt(^r('(l cdiii, or t!ij;;lil days im|ii'is.iiiiiH(iit, in (li-taiilt of puy.
iiiciil. ((^)(l(f, Art. 477.)
l*lllliMlllll(>lll ilfilT l*IM'%'ioilM f .>IIVi«*ti4»ll. -A jit'r-
HoM, ('(iiivictcd nl' 11 riiiiiaii'c (illciicr al'lcr a pn^viinis ciMivictidii, is
iialilc, ((I.) Id iiii|ii'isdiiiii('iit tdi' lil'c, if, ddii-rwisn, fdiirt(U'ii years
would liuvo \)wn tlio loii^rfst leriii, (/a) lo loiirUuiii yoars' iiiiprisou-
inerit, if, otiicrwiHc, sovcii years would have Ix^cn the loni^csl ((^riu,
iiriii, (n.) to s(!V(Mi yca.'s' iiMprisdiiiueiil, il', otlierwist!, ]\^'. would not
liavc! Iiecii liaiili^ to scvt-ii years.
H(!t'or(i the prisoner has pleaded guilty or hisen found /fuilty of
the suhst!(juent (>Hene(!, t he previous convielion cannot lie /^iven in
evidence. (1)
CRUELTY TO ANIMALS. . ,
I'lvery one is j^uilly of an oU'encc! and lial)l<!, on summary convlc!-
tion hefore two justices of tiio p(^uce, to ii penalty not e.xeeediiig
fifty dollars, or to three months imprisonment, with or withouc
hard labour, or to hoth. who —
(o.) wantoidy, eruelly or umiec.ccssarilij heals, IiIikIh, illtreats,
abuses, overdrives or tortures any ealthi, poultry, dog, domcHtio
iniinal or bird ; or
(<».) wliilo driving any cattle or oilier animal is by nfv/%enre or
iU-US(i(ie in the driving thereof, the means \vherel»y a'ly iniHchief,
dariiag(! or injury is done by any Hueh cattle or other animal ; or
('•.) ill any manner encourages, aids or assists at the fighting or
bailing of any hull, bear, badger, dog, cock or other kind of
animal, whether of donu'slie or wild nature. ((Jode, Art. 512.)
lOvery pecuniary penalty recovered, with respect to any Huch
ottence shall be ai»j)lied in the following manner, that is to say ;
one moiety thereof to the corporation of the city, town, village.
(!) Art. (170 of the Code ; R. v. Martin, 39 L. J. M. C. 33.
CRUKI.TV TO ANIMALS. " i'tl.'S
iovviisliip, piii'isli (If pliUHi ill wliicli (lu! ofVciKM- wiis comiiiilltil. ami
tho oilier iiioifty, vvilli Cull (m)mIs, to lli<! pornoii wlio iiironnnl and
pfos.Tiited lor tlic Kami', or to hucIi otlu'f poi'Hoii as to t liti jiistici^H
of the praii- sci'iiis proper. (K. S. (!., c. 172. h. 7.)
'I'lii' cruelty piinislialile iimler tin; aliove Ai'ticle is (riieityto
callle. poultry, <lo^s, (lomestie animals or hirds ; aii<l il lias lieeii
lield til, it lizards or American ciiameleons are not domestic animals.
This was till! holdini,^ of rulice .Mai^istrate Dii^'as of Montreal, in
vofiisiiiL!: a warrant upon an int'ormation (diar/fiii^ cruelty to six
lizards, (ollercd lor salt; as pet ornamontH iiiiil toys with rini^s last-
<'iied round their necUs to wlii<di chains and pins were attached),
hy depriviiii; t hem id' t heir nat iiral^ and propter food, hy exposing
them to cold, liy coiiliniiii^ them in pajier hoxes. and hy depii\in^
lliein ol' t heir natural and accustomed warmth and sunshine. (I)
A doiiieslic animal is one whi(di has liceii lamed fur I he servico
of man ; and it. has iiceii hcliriliat lions k(!p(- in a ea/^e are wild
animals l<e|it, in eonliiieiiienl, and iiotdomeslic animals wiliiiii llm
Vruelti/ to Aniinali Acta, lS-t!». (ss. 1'. 2!)), ami iSf)-!, (h. 3), (lm|».)
(2) ■-
Willi ret^anl to the meaninu; of Uus wordw, ^^ wanton " ami " cruel"
any act. whi<'li is iiii|iistilial)le__liy Iho (■.ii'ciiiiiNtances. is wanton ;
and cniolty exists wlieiiever the animal is Hiihjected to unnecessary
pain or sutVeriiig. IJiit I ho luoro inlliotioii olHotne hodily pain will
not, oCitsoir, (M)iistilule the ottonco. Thcro muHt \w not only some
ill-iisaii;e, Iroiii which , the animal HiilVers, hut tlit! ill-usagd must lio
witiioiit nuy wcessili/, aclualiy cxislinjL^ or hoiioHtiy hulit'vod to exist.
(^3) Tin; most common case to which tho law would iipply in tluit
in which an iinimal is cruelly hoiiton or torUirod for tho more pur-
pose of caiisiiiif pain, or I'drMho gratlHcalion of u malignant or
vindiclivo temper.
The mere incoiivenioiico and discomfort attciidiiiit upon tiietrans-
portiition of animals hy rail or_ hy water, docs not constitute
cruelty. Andji'siirgcon who pori'orins, upon an aiiinud, sonic oper-
ation wiiich^he honestly lioliovos to he of beiiellt to it, will he giiilly
(1) iSoc. for Prev. Cruelty v. Grnetz. 17 L. N. 74.
(2) lliir|jer v. Mareks, 10 K. Aug. {18!»l) ;«)().
(3) Budge V. I'arsons, 7,.!... T. 18-1 ; Swan v, SuunderB, 60 L. J. M. C;.;07.
514 IMlACTIOAr, OUIDK T(» MA(USTIl.\TKS.
of no ofl'onco, iiiidci' tho iibovo Article, iiltlioiiu'li Iho pevformaiico
of ilic o|)criili()ii miiyciius(* tlicaniinul sfveri' piiiii uiid sulfL-riiiif. (1)
Xor (loi'H tlio law intorft'iH* with llu' infliction of any ciuislisc-
mcnt which may ho noccssury foi- tlic traiiiini;- or discipMnc of
animals.
A man may also pi-otccf himself ami his pniiierty a^'ainst tin;
inti'iisions of miscliievoiis and vicious animals. And so where a
facniei-'s |)ivmises wcm-c niyhtly invatk'd hy somo animal and his
hen's nests hi-ohen up, and lie set in his i^ank'n a steel tra]i in
whi(di a do^- was caui^ht hy his tonifue and a jiart of it torn out, it
was held that tlie man liad tiie fight to protect his premisi's. and
that the ohject of fho statute was to protect auimal.s from wilful or
wanton cruelty and not from tho incidental pain casually inllicled
hy tiic use of lawful means of protection against tlu'in. (2)
Wlienever the ])urpo.so for wiiicli tho act is done is to maUe tlio
animal more servicoahlo for tho 1180 of man, tho law ought not to
ho hold to apply. And, so, tho castration of hor.sos or otiior
anin'als or tlio spaying of sows has boon held not to ho cruelty, if
done with roasonabio care and skill, ovon though it bo a mi8taUeu
idea that it improves them, (ji)
And, the di.shorning of cuttle has been held not to be forbidden
by the .statute against cruelty. (4) • , ,
Tho cutting of the combs of cocks to lit thorn for cock fighting
or winning j)rizo8 at exhibitions was held to be cruelty. (5)
If an injury be intticted by. overdriving, the overdriving must be
wanton. If the driver, while honestly exorcising his judgment,
happen to err, he is not guilty. An error of judgment is to be dis-
tinguished from more recklessness of consequence or wilful cruelty.
(1) Com. V. Lufkin, 7 Allen, Mass. 579. ;" ' V '
(2) Hodge V. S., 12 Lea. (Tenn.) 528. '
■ (3) Lewis V. Fermer, IS Q. B. D. 532.
(4) Callaghan v. Soc. etc., 11 Cox, C. C. 101. And see Brady v. McArgle,
14 L. R. (If.) 174.
(5) Murphy v. Manning, L. R. 2 Exch. Div. 312.
(()) Com. V. Wood ,111 Mass. 408.
CRUELTY TO ANIMAI.rf. 616
Wlu-ro tlu' pivvcntion of cruelty ami sutlcring iscoiu'enied, thei'o
\h ])lainly ii dirtbreiu'e bctwooii instantaneous death and Ungerbuj (loath;
tlio foniKM- IxMiig goiierally if not always painless. And, in favor
of those sports which are considered healthful recri'ations tending
to iiroiii()t(^ strength. Iiodily agility and courage, even the pain at-
tendant upon a lingering death in the lower animals is often disre-
garded in the cuHtonis and laws of humane and highly civilized
people; so, that tlio angler, who catches tish for pastime, or tho
marksman who »8 an exercise of skill or as a diversion, shoots
jiigeons as tluy tly wild in tiie woods, is not consideri'd guilty of
any violation of the law in ([uestion.
lleoiliiiu; <'0<*k|»if .— Kvery one is guilty of an otfence and
liable, on summaiy conviction before two justices of the peace, to
a penalty not exceeding tilty dollars, or to three months' imprison-
ment, with or without hard labour, or to both, who builds, nuikes,
maintains or kee[>s a cockpit on jiremises belonging to oroccui)icd
by him, or allows a cock-pit to be built, made, maintainc'l or kept
on premises belonging to or occupied by him. •
2. All cocks found in any such cock-]>it, or on the premises
wherein such cock-])it is. shall l)e contiscated and sold for the ben-
etit of the municipality in which such cock-pit is situated. (Code
Art. 513.)
Coiivc^'Uiii'e of Cattle- -Treatinc'iit, in truiiNit l»y
rail or water. — Article 5U of the Oode d ovides that cattle,
while being carried by rail or by water, shall not be confined in
any car or vessel for a longei- j)eriod tlum twenty-eight hours with-
out tlio same being unloaded for rest, water, and feeding for at
least five consecutive hours. Penalty for contravention $100, on
summary con»Mction. AVhen cattle arc carried in any car or ves.sel
giving proper space and opportunity for rest anil ])roper food and
water, these provisions as to cattle being unladen do not apply.
DEAD BODIES.
Digging lip burled body. — It is an oflFence at common
law to dig up a dead body from a grave ; and it is no defence to such
616 PKACTIGAI (HJUIK To .MAOEST.IATKS.
a churgi' that the motivcH of {]w (Ict'ciitlant were liuiilal)lo. (I) And
a pi'isoii who, without lawful authority, tlisposoH of a drad iiody for
di.ssocting [)ui'[)oso.s and i'or ^aiu and j»rotit,iH iudictahlo at fonimoii
hiw. (2)
^liNCOIIllllcf ill K<'M|»(>«*t to lllIIIIUll IfOlllllillM. —
Kvory one is guilty of aii iudictahk' otlouco and liablo to tivo
yoai's" iiiiprisonuirnt who —
((/.) without lawful excuse, ucgloets to |torfuvm any duty oithor
imiiiKsctl upon him hy law or undertaken l)y liini with vefereneo to
tiie burial of any dead human hotly or human remains ; or
(6.) improperly or indecently intei'feres with or oti'ers any indig-
nity to any deatl human bt)dy or hunxan renuiins, whether buried
or not. (Code, Art. 20(5.)
I>EFII,KMENT OK WOMEN OR UIllLH.
l*iMM*liriii}>; l>4'fil('iiiviit. — Kvery one is guilty of an
indielable otlenee, and liable to two years" imprisonment with hard
labour, who — ' ~
[a.) ])rocures, or attempts to procure, any girl or woman urnier
twenty-one years of age, iu)t being a common prostitute or of known
immoral character, to have unlawful carnal connection, either
within or without Canada, with any other person or persons ; or
(/>.) inveigles or entices any such woman or girl to a house of ill-
fame or assignation for the purpose of illicit intercourse or pi'osti-
tution, or knowingly conceals in such house any such woman or
girl so inveigled or enticed ; or
(c.) procures, or attempts to procure, any woman or j^irl to
become, either within or without Canada, a common prostitute ;
or
(d.) procures, or attempts to procure, any woman or girl to leave
Canada with intent that she may become an inmate of a brothel
elsewhere ; or
(e.) procures any woman or girl to come to Canada from abroad
(1) R. V. Sharp, Dears & B. 100 ; R. v. Giles, R. & R. 366, v.
(2) R. V. Feist, Dears & B. 590.
DEFILEMENT (iK WOMEN OR OIKLS. 517
with intent that sho may become an in mate of a l)rotlK'l inCana-
du ; or
(/.) procures, or attomptH to procure, any woman or girl to leave
lior nsmil placi' oriilnxic in f'aiiaiia, sucli place not bciiiif a bi'olhel,
with inlcm that she may become an inmate of a brothel, within or
without Canada ; or
(g.) by threats or intimidation procures, or attempts to procure
any woman or girl to have any unlawful carnal connection, cither
within or without Canada ; or
(h.) by faNe [iretcnces or false representations, procures any
woman or girl, not being a common prostitute or of known immor-
al diaracter, to have any unlawful carnal connection, cither witiiin
or without Canada ; or
(j.) applies, administers to, or causes to be taken by any woman
or girl any drug, intoxicating liquor, matter, or thing, with intent
to stu))ify or overpower so as thereby to enable any person to have
unlawful carnal connection with such woman or girl. (Code, Art.
185.) '.: - , ,..■ ., ■ „. - ^ ,
As to SEARCH WARRANTS to scarch houses of ill-fame, for females
believed to have been enticed there, see p. 123, ante.
Parent or Oiiardian Prociiriiii; DeKloint'iit.—
A parent or guardian of any girl or woman is indictable and |>un-
ishable, by 14 years' imprisoi>ment if the girl is under 14 years of
age, or by 5 years' imprisonment, if the girl is above 14. if such
parent or guardian procures such girl or woman to have carnal
connection with any man other than the procurer, or orders, is
party to, or jiermits or knowingly receives the avails of the detile-
mcnt, seduction or prostitution of such girl or woman. (Code,
Art. 18(i.)
Householders Permitting Detilement of Oirls
on tlicir Premises — Every owner or occupier of prem-
ises Avho induces or knowingly suffers any girl to resort or be
in or upon such premises for the purpose of being unlawfully and
carnally known by any man is guilty of an indictable oifcr.ce, and
punishable by 10 years' imprisonment, if such girl is under 14 years
618 PRACTfCAl, uriDK To MAUISTHATES.
of ii^t'. and. liy two years' iinpvisoimiciit if tlic ii;irl isof(.i .ilmvi^ 1-1
and under U!. (Code. Art. 1S7,)
It lias lieen held, in Kii^land, lliat, under seetion fi of the Criiiiinnl.
Jjdir Ammdinent Art, ISS'). 4S— 1!» \'ie. e. (lit, il is udI an oU'enec^
I'or the oeeujiier of a house to permit a man who has sedueed her
ilaujfhter. to come on the pivniises to repeat the immoral inlei'-
ct)Ui'se, in ortler to secure his con\ietion for carnallv Unowini; the
girl. (1)
4'ariinll.v kiiowiiiK; Ion al<> idiiklw or diiiiiiiiioM.
— This is indictahle and punish, ilile liy Hve years' imprisonment,
(Code, .\rt. 18!l.)
Pr4»Mtiliili4»ii 4»r Indian %%'oiii(>ii. — (See Art. 100
ol" the Code.)
DISCIPLINE.
I>iKi'i|»lill4' of .IliilorN. — Jt is lawful for every parent,
or perHon in the place of a parent, schoolmaster or muster, to use
force ii}'^ way of correction towards any child, pupil or apprentice
uiulcr his cure, jirovided that sucii force is rcasouuble under the
clicumstances. (Code, Art. 53.)
The doctrine embodied in this article is that a parent, guardian,
schoolmaster or master may inflict upon a minor child, ward,
pupil or apprentice under his care, such force by way of correc-
tion as amounts to moderate, chasti.sement. liut ho must not go
beyond this ; if he does, ho will Ito liable to be indicted for as,sault,
or — if his excessive chastisement causes the child's deatii — for
culpable homicide, (2) The right of a teacher to cli.astiso his pui)il
cannot be greater tlian that of the ]>arent over the child. And so
where a schoolmaster beat a scholar for two hours with a thick
stick the beating was held unlawful, (3) Nor can the teacher of a
(1) R. V. Merthyr Tydvil, JJ.. 10 R., June, (1894), 245.
(2) 3 Greenl. Ev. b. 63 ; R. v. Cheeaeman, 7 C. & P. 455 ; R. v. Hazel,
1 Leach, 368,
(3) R, V, Kopley, 2 F. & P. 202. See alio Brisson v. Lafontaine, 8 L. C.
J. 173, and Mitchell v. Defries, 2 U. C. Q. B. 430.
niscii'MNE. f)!!)
mum (lay sc^liolur, living with tlic piiri'iits. iisiir|t [\w purontal fuiif-
tion of cliaslisiiig tbr faults (•(iminitti'd at lioiun. (I)
Wlu'iv an a|)l»^onti<•^^ on iioing chi(U'(l hy his mastor tor nogluct-
ing some work, inadf a sharp answer, and tlio niasU'r struck and
killed tlif appronticn with an iron l>ar whi(di hi» had in his hand,
it was iiold to ho munkn", on account, no doubt, of tlio (hmgcrous
nature of tho weapon used. (2) But where, in another case, a
mastei" struck his servant with one of his clogs because he hud not
cleaned tlieni, and deutii unfortunately ensued, it was lield to be
manslaughter oidy, because the clog, although an iin[)roper instru-
ment to use for the jturpose of correction, was very unlikely to
cause death, and therefore the master could have had no intention
of taking life when he used it. (H)
Where a mother, being angry with one of her children, took up a
poker, and, as the child ran to the door which was open, threw it
after him, and struck and killed another child wiio hajjpened to
bo coming in at the open doorway, it was held that, ulthougii she
did not intend to hit, but merely to frighten, the child at wliom
she tiirew tiie poker, it was manslaughter. (4)
Where the father of a child, two years old, chastised it, for some
childish fault, by beating it with a strap on its back and thighs,
and the death of tho chihl wa.s thereby accelerated, he was held
guilty of manslaughter ; Martin, B., after consulting witii WiUes,
J., ruling that tho law of correction had no reference to an infant
of two years old, but only to those capable of appreciating correc-
tion, and that, although a slight slap might be lawfully given to
an infant by its mother, more violent treatment of one so young,
by herfatlicr, would not be justifiable. (5)
DlNeiplilie on Ships..— The master or officer in com-
mand of a ship on a voyage may use force for the ])urpose of
maintaining good order and discipline on board of his ship, pro-
(1) 1 Bish. New Cr. Law Com. p. 535.
(2) R. V. Gray, Kel. (M.
(3) H. V. Turner, Comb. 407, 4()8. See also E. v. Wigg, I Leach. 378rt ; R.
V. Leggett, 8 C. & P. 191.
(4) K. v. Conner, 7 C. & l\ 438.
(5) R. V. .GrifBn, 11 Cox, 402.
520 rilACTICAI. Ui:il)E rn mauisthates.
viilt'(i tliiit lie liclicvi's, (tii rt'iisoimhlo i^Toiiiids, tlmt sucli forct> in
iK'ii'>sai'y, iiiid it' tlio CoiTf used is rciisonuliic in di'ifrcc. (Cddi*,
Art. 6)1.)
IHSullKhlK.NCE.
l>lH4»l»«>lli4'il<'«> !<» a Nltiliil(>. — i-!v('i-y OIK' is ^Miiily (11:111
iiidirdiliic oll'fiici' and liiil)li' to oni" year's iniprisonnient who. with-
out hiwt'iil cxiMisc, disohoys uii}' Act of the I'lirliaiiifiit ol ('aiia(hi
Of of any ii'Lfislal iin- in Tanaihi. Iiy wilfully doiiiif any act wiii(di it
forliids, or omittin;; to do any act wiiicdi it ivijuircs to lie done,
unless some penally or oilier mo<lc of |»unisliineMt is expiussly pro-
vided by law. (Code. Art. i.'is.)
lliM«»l»(>4li4'ii4*(' 4»f' 4^rdorM of Court. — livery one i.H
ifuilly of an iiidieluble otl'enee and iitihle to ono yoar's iniprisoii-
ment who. without lawfuloxeuse, ilisobeys uiiy lawful onh'r, other
than for the payment of money, made liy any court of Justice,
or i)y any person or body of |»ersons authorized by any statute
to make or give such onler, unless .somo penalty Ih impoHed, or
other mode of proceeding is expressly ]n-()vl(le<i by law. (Code,
Art. 13!t.)
DISORDERLY HOUSES.
Keeping m DiNorilt'rly llmiiHC. — Kvery ono is guilty
of an indictable oti'onco and liable to one year's imprisonment who
keeps any disorderly house, that is to say, any common bawdy-
house, common gaming-house, or common betting-ht)uso, as do-
finoil by the Code. (Code, Art. 198.)
(See BAWDY-HOUSE, ante, p. 470 ; qaming-house, post, p. 557, and
BETTiNG-uousB, ante, p. 471.)
DRILLINO.
Unlawful drilling;. — The Governor-Gonoral may, from
lime to time, by proclamation in the Canada Gazette, prohibit as-
semblies, without lawful authority, of persons for training or drill-
ing or being trained or drilled in the use of arms or for practising
military exercises, etc. ; and training or drilling or being present at
assemblies for training or drilling, in contravention of any such
KMIIIIACBIIV — KSCAI'KS AMI IIKSCI KS. 621
pr>)('luiniiti()n, will \w iiiilictuldc iiinl puiiislmldc liy two vciun' im-
prirtuninciit. (('ode. Articles S", HH.)
EI.RCTilK! Miliri'.
llr«MI4*ll 4»r4'l»lltl*a(*l lO Mlipply IOI«M'tl*i4* lil^lll.—
(Si'O CoNTllAcT. |i. fiKM, (intf.) (Si'ii l.Nsi'KrTiON. post.)
MMHE/,/,r,EMENT. — (Sf(* TllKI'T, p'lgt.)
KMHllACEKY.
iMiiliriici^i'V is an attcnipt (o iiilliu'iui' a jury cnn'iiptly to oiiu
side, liy promises, porsnasioiis, oiitroatios, moiioy, oiitorhiiiimcMits,
and lln' lil<(«. (1)
€'orrii|»liiiK«liirorM »r WIIik'nncn. — It i.< an indiclalilit
oIliMico, punishablo l»y two ywirs' iinprisoninont. i'or any o\n'. hy
throats, bribes, or oIIhm" corrupt means, to dissuade or attempt to
dissuado tioy person from ^ivin^ evidence in any civil or criminal
CJiso, or to iiiHueiu'c any juryman, or for any wit news or juryman
to accept a bribe or otiior corrupt consideration, or for any one to
wilfully attempt in any other waj' to obstruct, pervert or defeat
the course of justice. (Code, Art. 154.)
ESCAPES AND RESCUES.
KncapeM. — It is an in<lictable ott'enco punishable by two years'
imprisonment for any one, having been convicted of any otteneo,
to escape from any lawful custody in which he may bo under such
conviction, or, for any one, whether convicted or not, to escape
from any prison whore he is lawfully confined on a criminal charge,
or for any one, in lawful custody, other than as aforesaid, on a
criminal charge, to escape from such custody. (Code, Articles 163,
164.)
KeMmlng or aNsiNtiiiK to llKeapc. — It is an in-
dictable ott'once, punishable by seven years' imprisonment, for
any one to rescue or assist any person in escaping or attempting to
escape from lawful custody, under sentence of death or life im-
(1) 4B1. Com. 140.
522 I'HACTU^AI. <U IliK TO M XIIISTUATBS.
|iriH()iuii«'ii(. or nt'lci' ((iMvicliun of and lict'di'c Mciitciirc tor, or u'liilu
in rnstody \i|ion ii cliai'i,'!- of iiny crinu" pimiMliulili' willi dcalli or
lilt' iiii|irisonnii'nt : or tor any pfacc olllci'i' liavin;,niiiy ^w\\ person
in his lawful cnslody or for an otHccr of any prison, in whicli snch
|)crson is lawfnlly citnlintMl, to volnnlarily and intentionally per-
mit liini to escape therefrom. (('o(h«. Art, Itlfj,)
.\iid if the person so resened or a.ssisted or porniifl«Ml to oKeapc
is nndei' sentence tor or convicted (d'. or (dnii';jed wit h an otfenen
pnnishaliie with iinprisonmeni for a term less than life, the pnii-
islnnent of Ihn person reNcuing ttr assisting or permitting him to
eseape in rivn yours' iniprisoniuenl. (Code, .\rt. !(!(!.)
It is an indietal)le otVenee pnnisimlih' hy two years' imprisonment
for any one, with intiMil to facilitate u prisoner's esi'ape, to convey
oi" cause anything to \n' conveyed iido any prison ; or for any one,
knowingly and uiduwfully, under color <d' any pretended authority,
to direct or procure the dis(duirge of any prisoner not iMititled to
ho so discharged; and the person .so dLsclnirged will he luild to
have escaped, (('o(U>. Art. ItlH.)
ltr(Mlkill)C l*l*iNOil.— It is an indictahlo otl'ence, punishuhlu
by Hovon yourw' inipriHonment. for any one, by force or violonco, to
break any pri.son with intent to set at liberty himHelf or any other
person contined therein on any criminal charge. (Code. Art. Itil.)
And an attempt to hri'ak prison is indictable and puinshahle by
two years' imprisonment, (Code, Art. 1«!2.)
Il«>iii|( h( 1i»rK«> M liilc iiii«l«»r Nviitt'iK'c of Iiii-
prlMOiiiiieiit. — This is indu-table and punishable by two years'
imprisonment. (Code, Art. 15!*.)
AjUMiMtiiiK KNCupo of PriNonrrN of War.— This is
indictable and jjunishable hy five years' imprisonment. (Code, Art.
16((.)
KncapeN from Mefornsator^' NcIiooIn, etc. — Soe
53 Vic, c. 37, sec. 1.
EVinENCE.
<i}eneral Klilcft. — In general, there is no diflerence in the
rules of evidence applicable to civil and criminal cases. (1) But
(1) R. V. Wataon, 2 Stark N. P. 155 ; R v. Atkinson 17 U. C. C. P. 304.
KvibBNcR. ri2:i
(lie iimuiiiit 1)1' dc^riH' nt' |lit> proof (<t lut oxaclfil will vary
Willi liio iiiiliiri' of tlic |iro(('i<(iiii/fs. For, wliilo, in lualtcrs of
civil jiirisdiclioM, a incrc |in'|ioml('raii('ii of proof will siillicc to
CMlalilixli a case, (lie proof o| I lie ilcft'iiilanl's ^iiill in list, in crinuii-
al prncci-ilin^rs. he full ami tonvincin^ ; tmd tho lit'fnndiint In
cnlillcil to tho lK>nollt of any iloiiht llial may oxint in llic niimls of
llu' Jury or in llu' minds of jnHlifOH occupyin;^ llif |»oHilion and cx-
I'riisinir thi" fnnctions of a jury. (1)
Tlio law prcMunuiH innoconcc until tlu» contpury is provt'd.
lIcarHay cvidcnci* is inadniissilik'.
( 'onvi'i'satiiMis wliicli huw taUi-n place out of the hearing ol tlic
l)arty to be ailoctcd cannot he admitted in ovidtinee.
'I'iio oviileiice of an accomplice is a(lmissii)lc, hut ou^lit not to he
fully relied on, unless corrohorated hy homio collateral proof,
The evidence otlbrod should he only sucdi as is relevant to the
issue ; and witnesses should he asked only «iu(*stioiis of fact.
Ah a general rule the opinions of a witnoss are not adniissihle as
evidciue. Hut there is an exception in the case of a slville(i or
Hoii'ntitic witness, whose opinions are adniissihle to elucidate
mutters of a Htrictly professional orscientilic character,
Coiii|»iirlNoii or<liN|iut«'d writiii); with K(>iiiiiii4>.
— ("om|)aris()n o< a disputed writing with any writing proved to the
satisfaction of the court to he genuine shall bo permitted to ho made
hy witncs.ses; and such writings, and tho evidence of witnosses
respecting the same may be subniittod to tho court and jury as
evidence of the genuineness or otherwise of the writing in disjuito.
(Code, Art. (il>8.)
Coiiti<l('iitial C*oiii III iinlcutioiiM.— Counsel, solicitors,
and attorneys cannot be com])elled to disclose communications made
to them iu professional contidenco by their clients. Nor can priests
and ministers of religion be coriipelled to disclose secrets confided
or confessed to them under the regulations of their respective
churches or religious persuasions. A witness cannot bo compelled
(1) Kerr'B Mag. Acts, 15.
34
524 PRACTICAL GUIDE TO MAGISTRATES.
and will not be allowed to state facts, the disclosure of which may
be prejudicial to any public intoi-est.
The advice which a solicitor gives to a client in connection with
the latter's defence on a criminal charge is privileged ; but the
communications made to a solicitor and the advice given by him
are not privileged, when the communications are made anil the
ailvice is obtained by the client, previous to and with the view of
committing the ottence. (1)
Kxtent of* Kigali to crosiJ^i-vxaiuiiK'. — If a witness in
called to produce a document, — which either requires no proof, or
can be identified by some other person, — he need not be sworn, and,
if not sworn, he is not subject to cross-examination. (2) But
where a person is intentionally called and sworn, and is moreover
a competjut witness, the opposite party has a right to cross exam
ine him although the party calling him has declined to ask a sin
gle question. (3)
It is usual for the prosecution to call every witness whose name
is endoi'sed on the indictment, and even if he declines to call any
such witness he should have him in Court so that he may be called
for the defence, if required. (4) And the Judge will sometimes
call any witness omitted, so as to give the prisoner's counsel an
oi>portunity to cross-examine him. (5)
The cross-examination is not limited to the matters upon which
the witness has been examined in chief, but extends to the whole
case. (6) And therefore if the plaintiff calls a witness to j)rove
the simplest fact connected with the case, the defendant is at liber-
ty to cross-examine him on every issue, and, by putting leading
questions, to establish, if he can, his entire defence. (7)
(1) R. V. Cox, 15 Cox, 611.
(2) R. v. Murlm, M. &M., 515.
(3) K. V. Brooks, 2 Stark, R. 47.'.
(4) R. V. Woodhead, 2 C. & K., 520; R. v, Cassidy. 1 F & F. 79.
(5) R. V. Bull, 9 C. ,fc P. 22; R. v. Vincent, 9 C. & P. 91.
(6) Berwick on Tweed v. Murray, L. J.. ( h., 281, 286.
(7) Morgan v. Brydges, 2 Stark, R. 314; R. v. Murphy, 1 A. M. & 0- 20(..
EVIDENCE. 525
Coiii|><'lliHK lii<*riniiiiutiii|; AiiNwrrM. — No person
shall be excugeJ from answering any question upon the ground
that the answer to such question may tend to criminate him, or
may tend to establish his liability to a civil proceeding at the in-
stance of the Crown or of any other person. Provided, however^
that no evidence so given shall be used or receivable in evidence
against such person in any criminal proceeding thereafter instituted
against him other than a prosecution for perjury in giving such
evidence. (Ca/i. Eo. Act, 189H, sec. 5.)
The etfect of this section appears to be that on the trial of a cri.
jiiinal charge no ])roof can be nuide of anything which the accused
may have said while under examination as a witness in any other
case, v/hether, at the time of testifying, he did or did not object to
the questions put to him, as tending to elicit self incriminating an-
swers. For instance, onu Eose Morrison was charged with bigamy,
in having during the lifetime of hertirst husband, Jeremiah Xirby,
nuirried one William May. For the defence it was contended that
her marriage with Kirby was void, as he (Kirby) was then already
a married man with a wife still living ; and Kirby, on being exam-
ined as a witness at the ])reliminary investigation, made admissions
to that ctlect. At the time of so testifying, Kirby himself was un-
der arrest on a charge of bigamy in having married Eose Morrison
during the lifetime of his tir.st wife ; and on his being subsequent-
ly brought to trial on this charge in the Court of Queen's Bench,
at Montreal, in June 1894, the Crown Counsel offered to prove the
admissions made by Kirby in his evidence given in the police Court
in the case against Eose Morrison. But it was held, by Chief Jus-
tice Lact)ste, that this could not be done, that under section 5 of
the Canada Eoidenre Act, Kirby was bound to answer the questions
put to him, that there would have been no use for him to object
on the ground that his answers might incriminate him, and that
the latter part of the section was an absolute bar to his evidence
being used in any prosecution against him. (1)
AdmlsNioHB at Trial. — Any accused person on his trial
for any indictable offence, or his counsel or solicitor, may admit
(I) R. V Kirby, Q. B.. Montreal, June 1894. {Not Rep.)
526 PRACTICAL GUIDE TO MAGISTRATES.
any fact alleged against the accused so as to dispense with proof
thereof. (Code, Art. 690.)
Kvidencc or other Criminal Actn Coininlttcd
by the Aceiised. — It is not competent for the prosecution
to prove other criminal acts of the accused outside of those forming
the suhject mutter of the charge in hand for the purpose of show-
ing that the defendant is a person likely from his criminal conduct
or character, to have committed the offence for which he is being
tried. Still, the mere fact that the evidence adduced may tend to
show the commission of other crimes does not render it inadmissible,
if it be relevant to an issue, and it may be relevant if it bears upon
the question of whether the acts alleged to constitute the crime
charged were designed or accidental. Thus, where, in a case of
arson, the question was whether the burning was accidental or
WILFUL, evidence was allowed to show that on another occasion
the defendant was in such a situation as to render it probable that
he was then engaged in the like ott'once against the same property.
And where a woman was on trial for having murdered her hus-
band by administering arsenic, evidence was admitted to show that
two of her sons who had formed part of the same family and for
whom, as well as for her husband, the prisoner had cooked their
food, had died of poison, the symptoms in all these cases being the
same. (2)
On an indictment for attempting to obtain money by falsely
pretending that a ring was composed of diamonds, when in fact it
was composed of crystals, it was held that, to show the defendant's
guilty knowledge and his intent to defraud, evidence was admiss-
ible of a false pretence by him, on a prior occasion, to another
person, that a chain was gold, whereas it was plated, and, on
another distinct occasion, that a ring was of diamonds, which it
was not. (3) _
(1) R. V. Dossett, 2 C. & K. 3(6.
(2) It. v. Geering, 18 L. J. M. C. 215. See also, Makens and wife, v. Atty.
Gen. N. S. Wales, 6 R. /aw. (1894) 22.
(3) It. V. Francis, 43 L. J. M. C. 97.
KVIDENCE. — EXCISE. 627
Documentary Kvidenoc. — Imperial Acts and all ordin-
ances of the (xovornoi* General in Council or of any Lieutenant-
Governor in Council and all provincial statutes arc to bo judicially
noticed. {Can. Ev. Act, 1S93, sec. 7.)
See, as to proof of iiroclamations, etc., sees. 8, 9 & 11, Can. Ev.
Act.
Evidence of any jiroceeding in any court or before any justice of
the peace or any coroner, or of any official or public document or
of any entry in a public book, or, (in the province of (Juebec) of
any notarial document, may bo made by producing a certified copy
of or extract therefrom. (Can. Ev. Act, sees. 10, 12 & 18.) But
no copy of such book or document can be received in evidence
upon any trial, unless the party intending to produce it has, before
the trial, given to the party against whom it is intended to be i)ro-
duced reasonable notice, such notice to be not less, in any case,
than TEN days. (Can. Ev. Act, sec. 19.)
Fabricatliii; Evidence. — It is an indictable offence, pun-
ishable by seven years imprisonment, to fabricate evidence by
any means other than perjury or subornation. (Code, Art. 151.)
See, further, as to bvidence, the Competknoy op Accosed as a
WITNESS, the Modes of swearing, appirmino, confessions, etc.,
pp. 203-219, ante. And as to Competency of dependant as a wit-
ness on his own behalf, when charged with an oppence pun-
ishable UNDER provincial LAWS, SCO pp. 320-321, ante.
Excise.
Matters subject to excise are regulated by the Inland Revenue
Act (R.S.C., c. 34), and its amendments, 51 Vic. c. 16, 52 Vic. o. 15,
53 Vic. c. 23, 54-55 Vic. c. 46, 55-5G Vic. c. 22, and 57-58 Vic.
c. 35.
The expression " subject to excise" moans subject to the pro-
visions of the Inland Revenue Act, or of any other act respecting
duties of excise or the inland revenue, or of any proclamation,
order-in-councii or departmental regulation published or made
under such provisions ; and every place wherein licit or illicit,
licensed or unlicenced mashing, fermentation, distillation, rectify-
ing, brewing or malting, or manufacturing of tobacco, or of cigars,
528 PRACTICAL GUIDE TO MAQISTBATES.
or mauufaoturing in bond or maim factu ring of any article on
wliifh Ihei'e is a duty of exciao or customs, and on which such
duty has not been paid, is carried on or |)orfonnud — and every
worm, still, mash-tub, fermenting tunor other tool, utensil, appa-
ratus or thing which is or might be used for such purposes hiw-
fully or unlawfully, are deemed to bo " subject to excise." (1)
No person not licensed as provided by the Inland Revenue Act,
shall carry on the business or trade of a distiller, rectitier, com-
pounder, brewer or malster, or of a numufacturer of tobacco or
cigars, or bonded manufacturer, nor use any utensil, machinery
or apparatus suitable for carrying on any such trade or business,
or any business subject to excise, nor import, make or begin to
make any still, rectitier, or other apparatus suitable for the manu-
facture of wash, beer or spirits, or for the rectification or com-
pounding of spirits. And no person shall import, make, or have
in his po.ssession, or keep any still, worm, mash-tub, fermenting-
tun, distillery, rectifying or brewing apparatus, or any malt-kiln,
or malt-floor or any apparatus for the manufacture or production
of malt, or any tobacco press or mill for cutting or grinding
tobacco without having given, when such articles came into his
possession, and on or before the tenth of July of each 8ub.sequent
year, a full and ])articular list, description and return thereof to
the Collector of Inland Kevenue of the division in which such
article or apparatus is located, of the same nature and in the same
form as is required by the Inland Revenue Act in an application
for a license to use similar apparatus or machinery. (1{. S. C. c.
34, sec, 9.)
If any officer of inland revenue, after having demanded admit-
tance into any distillery, malt-house, brewery, tobacco manufac-
tory, cigar manufactory, bonded manufactory or other premises
subject to excise, is not immediately admitted, he may enter there-
in by force. (E. S. C. c. 34, sec. 70.)
Tlie collector or other officer of Inland Revenue, or any person
or persons acting under him or by his directions respectively,
having first obtained a search warrant for that purpose from some
justice of the peace, who may grant the same on affidavit (made
(1) R. 8. C. c. 34, sec. 8 (6).
EXCISE. — EXPLOSIVE SUBSTANCES. 529
before him and to his satisfaction, and stating roasoniil)lo grounds
for the issuing thereof), may, at any hour •• tween sunrise and
sunset, enter into and search any house, building or phvco men-
tioned in such search warrant, as being one in whicii it has been
made to appear by affidavit that there is reasonable cause to
suppose that an unlicensed still, worm, mash-tub, cooler, fermont-
ing-tun, malt-floor or kiln, press, cutting-knife, mill or other vessel
or implement is unlawfully in use or possession, or that the pro-
visions of the Inland Revenue Act are otherwise violated. R. S. 0.
c. 34, sec. 71.;
Every manufacturer who neglects or refuses to keej) his license
posted up in a consjjicuous i)lace in his manufactory shall incur a
penalty of $50 for the first offence, and of $100 for each subsequent
offence. (K. S. C. c. 34, sec. 82.)
All stock, machinery, tools, worms, stills, utensils, manufactured
articles, horses, vehielei:^ and other appliances found in any distil-
lery, malt-house, brewery, tobacco manufactory, cigar manufac-
tory, boixKd manufactory or other p/emises for which a license is
required under the Act, but in respect of which no such license
has been taken out, are liable to be seized and forfeited. (R. S. C.
c. 34, sec. 83.)
A variety of punishments by fine and imprisonment are imposed
by the Act and its amendments, for violations of their provisions.
And, — (under sections 102 antl 103), — every person who violates
any ja-ovision of the Act, or who neglects any dutj' imposed upon
him thereby — for which violation or neglect no other penalty is
therein specially provided — incurs a penalty of $200 ; and whenever
any person is convicted of any offence for which a money penalty
only ie thereby pi-ovided, the court may, in addition to or in lieu
of an}"^ ])unishment authorized by the Act, sentence the offender
to be imprisoned for any term not exceeding two years.
Explosive Substances.
Causing dangerous explosions. — It is an indictable
offence, punishable by imprisonment for life, to wilfully cause, by
any explosive substance, an explosion of a nature likely to
endanger life or cause serious injury to property, whether any
injury is actually caused or not. (Code, Art. 99.)
530 I'KACTICAI, OUIDE TO MAdlSlRATES.
noiiiy; any act or poMMCNNiii); Hi>y cxploNivii' wifh
intent to cauNC an (-ixplikNion. — This is indicluhlo and
punishablo by fourU;;'!! yours' iinprisoiiiiKMit. (Code, Art. TOO.)
Unlau'l'nlly n■akin^' or |ftONNt>NNin)>; tvxploNivoN.
— This is iiidii'tiiblo and pnnisiuiblo by seven years' iniiirisonnient.
(Code, Art. 101.)
OanNing bodily injnry hy vx|>lo.sivvN.— It is an
indietable otfoneo, pnnishablo by life inipri.sonment, to nnlawi'uliy,
and by an explosion, burn, maim, disliguro, disable, or do grievous
bodily liarm to any person. (Code, Art. 247.)
AtteinptN to canNe bodily injnrioN l»y cv
ploNivc'N.— (See Art. 248 of the Code.)
NeixHr4>! of cxpioNiveiii. — (See Skarch Warrants, pp.
118, 119, ante.) .
nestroyin}^ liuiidinirr*, etc., I>y i>xploNi%4>N. —
Wilfully placing or throwing any explosiv^o into or n :\Ra build-
ing or ship, with intent to destroy the same or anything therein,
is indictable and punishable by fourteen jears' imprisonment
whether any exiilosion occurs or not. (Code, Art. 488.)
Extortion.
In a broad sense, extortion signifies any oppression under color
of riglit ; but, in a more strict sen.se, it signifies the unlawful
taking, by any officer of justice, by color of his office, of any
money or thing of value that is not due. (1) According to Black -
stone, it is " any officer's unlawful taking, by color of his office,
from any man, any money or thing of value that is not due to
him, or more than is due, or before it is due." (2)
It has been held to be extortion in any under-sheriff to obtain
his fees by refusing to execute process till they were paid, (H) and
in a Jailer to obtain money from his prisoner by color of his
( !
/
■' ''f
(1) 1 Hawk. P. C. c. 68,8. 1.
(2) 4 Bl. Com. 141.
(3) Hescott's case, 1 Salk. 330.
BXTORTION.— EXTRADITION. — FALSE NEWS. T);'.!
office. (1) And whoro magistnites sat togothor, and one of thorn
oxat'ted inonoy IVoni a prisoner I'hargod before them with felony,
the other not dissenting, it was lield that they might be jointly
convicted of extortion. (2)
tiXtortioii hy Ucluniiitory lilbel.— (See J jinzL, post.)
liXtortion hy TliroutM to AviriiNC ot Crime. —
(See Threats, /jos^) ,, .
See RoBBEHY, pos^) !,;■,■
KXTHADITION.
See The Extradition Act, and a list of offences extraditable between
Canada and the United States, in the Aiu'enuix, ^os^
False News.
N|»r«>adiii{>; FalNe Mew**. — Kvery one is guilty of an
indictable otience and liable to one year's imprisonment who wil-
fully and knowingly publishes any false news or tale whereby
injury or mischief is or is likely to be occasioned to any public
interest.
In 1778 there was a case of this kind in which the defendant
was indi'jted for having imlawfuUy, wickedly and maliciously
published false news — whereby discord might grow between the
king and his subjects or the great men of the realm — by publish-
ing and placarding a printed notice falsely announcing that an
order in council had been made by the king proclaiming war with
France. (3)
False Pretences.
Definition. — A false pretence is a representation, either by
words or otherwise, of a matter of fact either present or past,
which representation is known to the person making it to be false,
and which is made with a fraudulent intent to induce the person to
whom it is made to act upon such representation.
(1) R. V. Broughton, Trem. P. C. 11] ; R. v. Tracey, 6 Mod. 178.
(2) R. V. Tisdale, 20 U. C. Q. B. 272.
(3) Scott's case, 5 New Newgai Calendar, 284.
532
PRACTICAL OUIDE T(» MAOIHTKATKa.
2. l<]xa;?ijfc'rivto(l commondatioii or d»)i)ivt'iiiti<)n of tho quality of
nnythiiig in not a f'alMo pn'teiuo, uiiIosm it '\h carried to huoIi an
extent aH to amount to a fraudulent misrej)reHeiitatioii of fact,
I^. It is a quoHtion of fact whether sUch commendation or depre-
ciation does or does not amount to a frauilulent misrepresentation
of fact. (Code, Art. 358.-)
PlliiiNliiHOut.— Every one is guiltj* of an indictal)lo offence
and liable to throe years' imprisonment who, with intent to de-
fraud, either directly or throwjh the medium of any contract obtained
bij such false pretense, obtains anything capable of being stolen, or
procures anything cai)ai»le of being stolen to be delivered to any
other person than himself. (Code, Art. ;^51t.)
DiNtiiietioii bctwevii obtaining l*y FalNf Pr«-
teiices aiKl Tln't't.— In a case oi theft, tho owner of
the thing in question has no intention of parting with his property
therein to the party obtaining it, wliile in the case of an obtaining
by false pretenses he luis an intention of parting with it, but his
conse, t to part with it is brought about by tho ialse pretense made
to him, (1)
If a servant, acting under a general authority co-equal with
his master's, intentionally part with his master's property,
under a misconception fraudulently induced by false representa-
tions as to the real facts, such property is not stolen, but obtained
by false pretences ; but, if the servant, having only a limited
authority, and being precluded from j)arting with the property,
is, nevertheless, tricked out of it, the offender thus obtaining it is
guilt}- of theft ; because the master has never consented to nor
authorized the parting with it. (2)
To constitute the crime of obtaining by false pretenses there
must be ; 1, a false statement, which represents, as existing, some-
thing which docs not exist, or which represents, as having hap-
pened or existed, something which has not happened or existed ;
2, the offender must also have known, when making the false
(li White v. Gardner, 10 C. B. 927; R. v. Barnes 2 Den. C. C 59; R. v.
Raddiffe, 12 Cox, 474.
(2) R. V. Prince, L. R. 1 C. C. R. 150.
,KAI.HK IMlETKNCEa. 598
Htatomont or ropresontatioii, that it was falHn ; and 3, tho goods in
question must have l)Oun ))arl(.Hl with in conscquenco of and
through tho t'alHC roprcsontation. (1)
A moro roprcHontation a 4 to mma future fact, ova false promise, by
tho party charged, that ho will do or means to do a particular act,
will not suttioo to constitute a falso pretence ; (2) unless it be
conjoinod with a false pretence as to an existing fact. (3)
There is a false pretence whoro a person goes to a shop and says
that ho is sent by some |)articular customer for such and such
goods, which, upon the faith of what he says, are handed to him ;
or where money is obtained i»y moans of a begging letter sotting
forth false statements as to tho name and circumstances of the
accused ; (4) or whoro A falsely represents that he is connected
with B, a person of known oi)ulence, and, on the faith of such
representation, obtains properly for himself; (5) or, whoro K, with
intent to defraud, buys goods, and on taking possession of them
pays for them by a cheque, stating that ho wishes to pay ready
money for them, but knowing at tho time that ho Las only^ a
nominal balance at the bank on which tho cheque is drawn, and
that ho has no power to overdraw his account, and not intending
to pay money in to meet the cheque. ((J)
A. sold to B., a railway pai"s, representing it to bo valid in B's
hands, but as a matter of fact it was not transferi-able, but only
good to carry a particular person, and could not be used by
B., except at the risk of being, at any moment, expelled from the
train. A. was hold guilty of obtaining ,by false pretences, the
money paid to him, by B., for such pass. (7^
A prisoner who had obtained money and goods by protending
that a paper which he produced was tho bank note of an existing
(1) R. V. Welman, Dears. 188; R. v. (iiles, L. & C. 502.
(2) R. V. Johnson. 2 Moo; C. C. 254. R. v. Lee, 9 Cox, 304; R. v. Bertles
13 C. K (Ont.) 607.
(3) R. V. Jennlson, L. & C. 157; R. v. West. 8 Cox, 12; R. v. Crossley, 2
M. & Rob. 17; R. v. Giles. 34 L. J. M. C. 50.
(4) R. V. Jones, 1 Den. C. C. 551.
(5) R. V. Archer, 1 Dears. 449.
(6) R. V. Hazleton, L. R. 2 C. C. 134.
(7) R. V. Abrahams, 24 L. C. J. 325.
684 I'UACnCAL (ICIDE to MAtllMTlUTBS.
Bolvont hunk, wliii'li Im kiu'W liiul stopped piiymont forty yours
bofoiv, wus lu^ld guilty of i)l)tiiiiiiiig hy t'ulso pn'toiicus. (1)
If the pmrliuscr intcmls to huy u particular siihstancf. and tho
BoMer passi's otVto him u coimterfiMt, — and money is iluis ol)lained,
— that is a false pretence within lhi< statii'i' (2) And it may also
be conslitnted l»y a frandnlent repres(>iitation as to the (/tiantlfy of
goods sold. Kor instance, where ,V. Iniviiiu; ciontractcd to sell and
doliver to B. a load of coals at 7d. per cwl. (hdivered to hor a load
wliicli lio know weighed only l-t cwt., hut which he stated to her
containiMl I.S cut and produced a ticket, to that elfect, whi(di he
said he himself had made out, wIivMi tho coals wore weighed, and
slio llioronpon ])aid him tho price for 18 cwt, it was hold that A
was guilty of obtaining hy false protoncos. (H) ^
A false roprosentatiou that u stamp on a watch is tho hall-mark
of tho goldsmiths' Company, and that tho number 18, part thereof,
indicates that it is made of 18 carat gold, is a false i)rotonco. (4)
A person who sold spurious blacking, which ho roprosentod as
" i'jvorotts lilacking,' was held to bo indictable for false protoncos.
(6)
The pretence need not bo in words ; tho conduct jind acts of the
party may bo sutticient to constitute a false pretence, without any
verbal represontation. Thus, giving, in payment, for goods, u
cheque upon a banker, with whom the defendant has no account,
is a false pretonct^ (6) JJut if, at tho time of giving the cheque,
the defendant, — although he has no account at the bankers upon
whom ho draws the cheque, — believes that it will be paid at that
bank on presentation, he is not guilty of a false pretence. (7)
Where a person, at Oxford, not being a member of tho Univer-
sity, went, for the purpose of fraud, wearing a University com-
moner's gown, and, in this garb, obtained goods, it was hold a suf-
(1) R V. Dowey, 37 L. J. M. C. 52 ; R. v. Brady 26 U. C. Q. B. 14.
• (2) K. v. Rngg, Bell, C. C. 218 ; 29 L. .1. M. C. 86.
(3) R. v. Sherwood, Dears & B. 251 ; R. v. I.ee,33 L. J. M. C. 129.
(4) R. V. Suter, 10 Cox, 577.
(5) R. V. Dundas, 6 Cox, 380.
{«) R. V. Lara, 6 T. R. 565 ; R. v. Flint. R. cfc R. 460 : R. v. Oackson. 3 Camp.
370 ; R. V. Hunter, and R. v. Carter, 10 Cox, 642, 648.
(7) R. v. Walne, 11 Cox, C. C. R. 647.
VAI.KE PRETENCBH. 635
firi(Mit f'lilso pvotoni'O to siitisly i\w stntuto, ulllioiigh no roproHcn-
liitiiiii piiMsi'd in wotiIh. (1)
Tlio fact that tho tlut'oiulunt, iit Iho time of obtuiniiij^ goods hy
fttlHO protoncort, intoiidod to pay for thorn wlionublo to do 8o, utlofils
no dofonco. (2)
Tho ptirting with tho property muHt 1)0 indncod hy tho false
protoiico ; and, tlioroforo, whoro A. in.i<l" false roprosontutions to
nnd thorolty induced H., to soli him, A,, sonio horses, but B., ivfter-
wiirds, on loarning tho falsity of tho roprosontations, entered into
u now agrooniont in writing with tho prisoner, it was lield that
tho suhseqiiont dealings ropollod tho idea that tlio pntsooutor liad
parted with Iho iiorsos in oonsoquonco of tho false pretence. (8)
Wliore the dofondant ottered to pledge with a pawnbroker, a
oliain wiiioh h»^ falsely roitresontod to bo silver, but tlio pawnbroker
stated that ho advaneed money on it, not in oonsequonee of defen-
dant's Btatement but in rolianoo on its withstanding u tost whioh
he himself applied to it, it was hold tiiut the defendant oouhl not
bo oonvioted of obtaining tho money by moans of tho false protenoo
but that he was properly oonvioted of atteiiipUmj to obtain money
by false pretences. (4)
When the prosecutor himself knows the falsehood of the pro-
toneo but parts with his money or goods, notwithstanding, tho
defendant cannot bo convicted of obtaining by false pretences ; (5)
but in such a case ho may (under Article 711 of the Code), bo con-
victed of attemptiug to obtain by false ]»retences, althougli. tho
indictment charges him with obtaining.
The mere fact of the prosecutor having the moans at hand of
acquiring knowledge of tho falsity of the pretence will not of it-
self excuse the defendant so as to prevent him from being con-
victed of obtaining by false i)rotenco9. (6)
Parol evidence has been held admissible to prove the false ))re-
toncos hud in the indictment, although u deed made between the
(1) K. V. Barnard, 7 C. & P., 784.
(2) R. V. Naylor, 35 L. J. M. C. 61.
(3) R. V. Connor, 14 U. C. C. P. 529.
(4) R. V. Roebuck, Dears. & B. 24; 25 L. J. M. C. 101.
(5) R. V. Mi lid, Dears. & B. 205 ; 26 L. J. M. C. 79.
(«) R. V. Jeesop, Dears. & B. 442 ; 27 L. J. M. C. 70.
636 PRACTICAL GUIDE TO MAGISTRATES.
parties and stating a differont consideration for parting with the
money was put in evidence for the prosecution ; such deed having
boon made for the purposes of the fraud. (I)
And it has been decided, upon a case reserved, that the execu-
tion of a contract between the parties does not secure froui pun-
ishment the obtaining of monej- under false pretences. (2)
It will be noticed that Article 359 expressly declares that the
obtaining by false pretence, shall be punishable whether it is done
DIRECTLY or THROUGH THE MEDIUM OF A CONTRACT.
Obtaining Execiitl»ii ot* Yaluable iieciirity
by False Pretences. — Kvery one is guilty of an indictable
offence and liable to three ^'^ears' imprisonment who, with intent
to defraud or injure any person by any false pretence, causes or
induces any person to execute, make, accept, endoree or destroy
the whole or any part of any valuable security, or to write, impress
or affix any name or seal on any parchment in order that it may
afterwards be made or converted into or used or dealt with as a
valuable security. (Code, Art. 361). )
Falsely Pretending to enclose ]fIoney in a
I^etter. — Every one is guilty of an indictable otfence and liable to
three years' imprisonment who, wrongfully and with wilful false-
hood, pretends or alleges that he enclosed and sent, or caused to be
enclosed and sent, in any post letter, any money, valuable security, or
chattel, which in fact he did not so enclose and send or cause to be
enclosed or sent therein. (Code, Art. 361,)
Obtaining Passage by False Ticket.— Every one
is guilty of an indictable ort'ence and liable to six months' impris-
onment who, by means of any false ticket or order, or of any other
ticket or order, fraudulently and unlawfully obtains or attempts
to obtain any passage on any carriage, tramway or railway, or in
any steam or other vessel. (Code, Art. 362.)
(1) R. v. Adamson, 2 Mood, C. C. 286.
(2i R. v. Abbott, 1 Den. 173 ; K. v. Burton, 25 I.. J. M. C. 105 ; R. v. Meakin,
11 Cox, C. C. R. 270.
FALSE TKLEQRAMS, ETC. — FERHIEa. 537
FALSE TELEURAMS OR LETTERS.
NeiKliiig nil author ix«d Telegrams. — Every one is
guilty of an indictable ott'ence who, with intent to defraud, causes
or procures any telegram to be sent or delivered as being sent by
the authority o( any person, knowing that it is not sent by such
authority, with intent that such telegram should bo acted on as
being sent by that person's authority, and is liable, upon conviction
thereof, to the same punishment as if he had forged a document to
the same effect as that of the telegram. (Code, Art. 428.)
Ni>n«1iiig FalHV Telcgranis or I.>etterw. — Every one
is guilty of an indictable offence and liable to two years' imprison-
ment who, with intent to injure or alarm any person, sends, causes,
or procures to be sent any telegram or letter or other message con-
taining matter which he knows to h<> false. (Code, Art. 429.)
FALSE WAREHOUSE RECEIPTS.
(See FRAVD, post p. 550.)
FELONY AND MISDEMEANOR.
]>lstlnction Abolished. — The distinction between felony
and misdemeanor is abolished. And offences which are indictable
are called " indictable offences ; " while those which are not
indictable are called " offences." (Code, Arts. 535 536.)
FERRIES.
The issuing of licences for ferries is regulated by the E. S. C.
c. 97. Sections 3 and 4 (as amended % 51 Vic. c. 23) provide that
in the case of a ferry between Canada and any other countiy, a
license may be granted for a period not exceeding ten years, and
that for ferries between any two provinces, such licenses shall
be offered to public competition, and thqt after such public
competition they may be granted for any period not exceeding
FIVE years. And section 8 provides that every person who in-
terferes with the rights of any licensed ferryman shall, upon
■ conviction thereof, before a justice of the peace, for the county,
city or district in which either terminus of the ferry is situated,
incur a penalty not exceeding $20.
638 PRACTICAL GUIDE TO MAGISTRATES.
FIRE ARMS.
(Soo OFFENSIVE WEAPONS, pOSt.)
(See ARMY AND NAVY, ante, pp. 44G-4-49.)
FISHERIES.
This subject is regulated by The Fisheries Act, (R. S. C, c. 95)
and its amendments, 52 Vic., c. 24, 54-55 Vic, c. 43, and 57-58 Vic.
c. 51.
Section 6 of the Act, as amended, provides that every one who
hunts or kills seals, porpoises, whales, or fish of any kind, by
means of rockets, explosive materials, or explosive projectiles or
shells shall be liable to a penalty not exceeding $300 and costs
and, in default of payment, to imprisonment not exceeding 6 months.
Sections 5, 8 and 9 have reference to cod, salmon and trout and
whitetish fisheries respectivelv. And section 10, (as amended by57-
58 Vic, sec 3), contains a number of new provisions as to lobster
tishing, the canning, preserving or curing of lobsters, the marking,
labelling or stamping of cases containing lobsters canned, preserved
or cured in Canatla, and of cases of lobsters imported into Canada
from other countries, and also some provisions prohibiting the
cunning, preserving or curing of lobsters except under license from
the Minister of Marine and Fisheries.
As to the power to search for Hsh taken in violation of the Act,
and as to the power to bring into port and search any foreign
YESStL HOVERING IN CANADIAN WATERS, See p. 130 ante.
FOOD.
Adulteration — The penalty for a wilful adultsration of
an}- article of food or of any drug is, — when the adulteration is
injurious to health, — $50, (and not less than $10), and costs, for a
first offence, and $200, (and not less than $50), and costs, for each
subsequent offence ; and, when the adulteration is not injurious to
health, the penalty is $30 and costs, for a first offence, and $100
(and not less than $50), and costs, for each subsequent oftence. (1)
(1) R. S. C. e. 1(>7, seo. 22.
paoD. 639
The penalty for selling or offering or exposing for sale any
adulterated article deemed injurious to heahh is $50 and costs, for a
first offence, and S200 (and not less than $50) for a subsequent
offence ; and for selling or offei'ing or exposing for sale any adul-
terated article not deemed injurious to health, the penalty is $50
(and not less than 85), and costs. (1) Provided, that, if the person
accused proves that he had purchased the article as the same, in
nature, substance and quality, as that demand jd of him by a pur-
chaser or the inspector, and with a written warranty to that effect,
to be produced at the trial, and that he sold the article in the same
state as when he purchased it, and that he could not with reason-
able diligence have obtained knowledge of its adulteration, he
shall bo discharged from the prosecution, and shall be liable to
pay the costs incurred by the prosecutor, unless he has given notice
to him that ho will rely on the above defence, in which case he shall
be liable only to forfeiture of the adulterated article. (2)
The expres.sion " food " includes every article used for food or
drink by man or cattle, and every ingredient intended for mix-
ing with the food or drink of man or cattle for any purpose what-
soever. (53 Vic, c. 26, sec. 2.) And the expression " drug " includes
all medicines for internal and external use for man or cattle, (lb.
sec. 2 b.)
It has been held in England that baking powder composed of in.
gredients some of which are injurious to health is not an article of
food, within the meaning of the Sales of Food and Drugs Act, 1875,
which defines food as being, for the purposes of that vAct, " every
article used for food and drink, by man, other than drugs or wa-
ter," and that therefore the selling of a package of such baking
powder is not a selling of food in contravention of the Act. (3) But
such a sale would be an offence in Canada ; because the definition
of food, as contained in the above clause b, sec. 2 of 53 Vic, c 26,
covers every ingredient intended for mixing with food or drink.
A person bought, from Grimble & Co., a cask of malt vinegar,
labelled, " Vinegar, — warranted unadulterated, (irimble & Co.,
Limited, Cumberland Market, London." Some of. the vinegar in
(1 ) lb. sec. 2.3.
(2) 53 Vic, c. 26, sec. 9.
(3) James v. Jones, 10 R. Oct. (1894) 265.
35
^40 PRACTICAL GUIDE TO MAGISTRATES.
the same condition as purchased, was sold to a customer by the
person io buying from (.rrimble & Co. The vinegar contained 30
per cent, of added wator. Held, that this was a written warranty-
and that the i)er8on so buying from Grimble was protected. (1)
If milk is sold or offered or exposed for sale after any valuable
constituent thereof hae been abstricted therefrom, or if rater has
been added thereto, or if it is the product of a diseased animal or
of an animal fed upop unwholesome food, it is deemed to have been
adulterated in a munner injurious to health. But skimmed milk.
may be sold, as such, if contained in cans bearing on their exterior
the word " skimmed," and if served in measures similarly mai'ked.
Still, any person supplying such skimmed milk, — unless such qua-
lity of milk has been asked for by the purchaser, — shall not be en-
titled to set upthe above provision as a defence to or in extenua-
tion of any violation of the Act. (2)
The manufacture or sale of oleomargarine, butterine and any
other substitute for butter manufactured from any animal sub-
stance other than milk is prohibited under a penalty of $400 (and
not less than $200), and twelve months (not less than three months)
imprisonment, in default of payment. (3)
The penalty for selling, supplying or sending, — to any cheese,
butter, or condensed milk maker or manufacturer, — any milk dilut-
ed with water, or in any way adulterated, or any skimmed milk or
any milk tainted or partly sour, or any milk drawn from a diseas-
ed cow, is $50 (and not less than $6) and costs, and imprisonment
not exceeding six months, in default of payment. (4)
The making of any cheese from or by the use of skimmed milk
to which there has been added any fat foreign to such milk, and
the knowingly buying, selling or exposing or having for sale any
cheese so manufactured, is punishable by a fine not exceeding $500
(and not less than $25) and costs, and imprisonment, not exceeding
six months with or without hard labour, in default of payment.
(6)
(1) Lindsay v. Rook, 10 R. Dec. (1894) 429.
(2) R. S. C, c. 107. sec. 15.
(3) R. 8. C, c. 100, sec. 1.
(4) 52 Vic. c. 43, sees. 1, 3, 5.
(5) 56 Vic. c. 37, sec. 2.
POOD. ' 641
Choeso made from or by the use of skimmed milk must not bo
sold, offorod or exposed or had in possession for sale, unless the words
"8KIM-MILK cheese" are legibly branded, marked or stamped on
the side of every cheese, and also upon the outside of every box or
package containing the same. Penalty, S5 (not less than $2) and
costs, for every such cheese or box or package sold, offered, expos-
ed or had in possession for sale ; and three months' imprisonment,
with or without hard labour, in default of payment. (1)
IScllliiii; Things Unlit for Food.— Every one is guilty of
an indictable offence and liable to one year's imprisonment who
knowingly and wilfully exposes for sale or has in his possession, with
intent to sell, for human food, articles which he knows to be unfit
for human food. Punishment, on conviction for a subsequent
offence, — 2 years' imprisonment. (Code, Art. 194.)
Fertilizers. — " Fertilizer" means and includes eveiy natural
or artificial manure which is sold at more than $10 per ton, and
which contains phosphoric acid, nitrogen, ammonia or nitric acid.
(53 Vic, c. 24, sec. 2 b.)
Under the Fertilisers Act, 1890, every person who sells or offers
or exposes for sale any fertilizer, in respect of which the provisions
of the Act have not been complied with, is liable to a penalty not
exceeding $50 for the first offence and to a penalty not exceeding
$100 for each subsequent offence, besides forfeiture of the fei-tilizer
in respect of which the conviction is had. (lb., sec. 14.) And
the penalty for forging or uttering or using, knowing it to be
forged, any manufacturer's certificate, bill of inspection, certificate
of analysis or inspector's tag required under the Act, is liable to
two years' imprisonment with or without hard labour. (lb., sec
15.)
Forcible Entry and Detainer.
Forcible entry is where a person, whether entitled or not, enters
in a manner likely to cause a breach of the peace, or reasonable
apprehension thereof, on land then in actual and peaceable pos-
session of another.
(1) 56 Vic., c 37, sec. 3.
542 PRACTICAL GUIDK TO MAQISTKATES.
2. Forcible detainer is where a person in actual possession of
land, without color of right detains it in a manner likely to cause
a breach of the peace, or reasonable apprehension thereof, against
a person entitled by law to the possession thereof.
3. What amounts to actual possession or color of right is a ques-
tion of law.
4. Every one who forcibly enters or forcibly detains land is
guilty of an- indictable otl'ence and liable to one year's imprison-
ment. (Code, Art. 89.)
Foreign Sovereigns.
Ijlbels on Foreign Stovcrcigns. —Hlvery one is guilty
of an indictable offence and liable to one year's imprisonment
who, without lawful justification, publishes any libel tending to
degrade, revile or expose to hatred and contempt in the esti-
mation of the people of any foreign state any prince or jjerson
exercising sovereign atithority over any such state. (Code, Art.
125.)
A French refugee in England was held amenable to the law of
England for having written a poem suggesting that it Avould be a
heroic deed to assassinate Napoleon Bonaparte, and was found
guilty by an English jury, although the libel was purely political
and attacked England's greatest enemy. (1)
Forgery.
Definition. — Forgery is the making of a false document
knowing it to be false, with the intention that it shall in any way
be used or acted upon as genuine, to the prejudice of any one
whether within Canada or not, or that some person should be in-
duced, by the belief that it is genuine, to do or refrain from doing
anything, whether within Canada or not.
2. Making a false document includes altering a genuine docu-
ment in any material part, and making any material ar'dition to it
or adding to it any false date, attestation, seal or other thing which
(1) R. v. Peltier, 28 How- St. Tr. 617. See also R. v. Moat, 7 Q. B. D. 244.
FORGEBV. 643
is materittl, ov hj making any material alteration in it, either by
erasure, obliteration, removal or otherwise.
3. Forgery is complete as soon as the document is made with
such knowledge and intent as aforesaid, though the otfender may
not have intended that any particular person should use or act
upon it as genuine, or be induced, by the belief that it is"genuine,
to do or refrain from doing anything.
4. Forgery is complete although the false document may be in-
complete, or may not purport to be such a'document as would be
binding in law, if it be so made as, and is such as to indicate that
it was intended, to be acted on as genuine. (Code, Art. 422.)
]fleaiiiuff of* «' Dociiiueii V ««Baiik IVotc '' «* Ex-
chequer Bill" "False ]>oeiiBiieiit." — A document
means, in this part, any paper, parchment, or other material used
for writing or printing, mai*ked with matter capable'of being
read, but does not include trade marks on articles ^of commerce,
or insci'iptions on stone or metal or other like material. (Code,
Art. 419.)
" Bank note " includes all negotiable instruments issued by or on
behalf of any person, body corporate, or company carrying on the
business of banking in any part of the world, or issued by the
authority of the Parliament of Canada or of any foreign prince, or
government, or any governor or other authority lawfully author-
ized thereto in any of Her Majesty's dominions, and intended to be
used as equivalent to money, either immediately uj^on their issue
at or some time subsequent thereto, and all bank bills and bank
post bills ;
(c) " Exchequer bill " includes exchequer bonds, notes, deben-
tures and other securities issued under the authority of the Parlia-
ment of Canada, or under the authority of any legislature of any
province forming part of Canada, whether before or after such
province so became a part of Canada. (Code, Art. 420.)
The expression '■^ fahe document" means —
(a) a document the whole or some material part of which pur-
ports to be made by or on behalf of any person who did not make
or authorize the making thereof, or which, though made by, or by
644 PRACTICAL QUIDS TO MAQISTRATKa.
the authority of, the person who purports to make it, is falsely
dated as to time or place of making, where either is matenal ; or
(6)''a document the whole or some material part of which pur-
ports to be made by or on behalf of some person who did not in
fact exist ; or , • ;, r - ,
(c.) a document which is made in the name of an existing per-
son either by that person or by his authority, with the fraudulent
intention that the document should pass as being made by some
person, real or fictitious, other than the person who makes or
authorizes it. ' .,
2. It is not necessary that the fraudulent intention should appear
on the face of the document, but it maj'^ be proved by external
evidence. (Code, Art. 421.)
The gist of the offence of forgery, as defined by the Code is the
knowinyly making of any false document, (defined by article 421),
either, 1, with intent, that such false document shall be used or act-
ed upon as genuine," to the prejudice of any one, or 2, vcith in-
tent that any one shall, by, belief in its genuineness, be induced to
do or refrain from doing anything ; and it is expressly declared by
article 422, that making shall include any material alteration in or
addition to a genuine document ; and that the forgery shall be
complete as soon as the false document is made, " with such know-
ledge and intent as aforesaid."
It is unnecessary that the forgery should reach the i)oint of
being actually used or acted upon as genuine, or that it should
have actually prejudiced any one. As soon as the false document
is made with intent that it shall be acted upon or used as genuine,
it is sufficient ; and the forgery is comiilete without any further
step being taken, and therefore without any uttering of it. For,
although the publication or uttering of the instrument is the usual
medium by w^hich the intent is made manifest, the intent may be
proved as plainly' by other evidence.
The intent necessary is an intent that the false document shall
be used or acted upon as genuine to some one's prejudice, or that
some one shall be led by belief in its genuineness to do or refrain
from doing something ; and therefore, a man, who makes a false
note, and issues and gets_money or anything on it will have led
' POROKRY. 545
8omo one to act on it as genuine, and will ho guilty of forgery, al-
though ho may mean to take it up, and even if he actually does
take it up, at maturity. (1)
It is forgery to execute a deed in the name of, and as roprescnt-
ing another person, with intent to defraud, even though the pri-
soner has a power of attorney from such person, but fraudulently
conceals the fact of his being only such attorney, and assumes to
be the i^rincipal. (2)
If a bill of exchange, payable to A. B. or order, get into the
hands of another person of the same name with the payee, and
such person knowing that he is not the real payee, in whose favour
it was drawn, indorse it, for the purpose of fraudulently possess-
ing himself of 'he money, he is guilty of forgery. (3)
The general principle upon which making a false document in-
cludes altering or adding to a genuine one, (as provided by the se-
cond paragraph of article 422), is that an alteration of any mater-
ial part of a true instrument changes and falsifies the whole. >
Upon an indictment for " making, forging and conterfeiting " a
bill of exchange, and for uttering it knowing it to be forged, the
prisoners were convicted upon evidence of an alteration of the bill,
from £10 to £50. (4)
Where a party committing forgery jises a name different from
his own, it is immaterial whether the name used be that of f. per-
son actually existing or that of a merely fictitious person who
never existed. (See Article 421 b.) It is as much a forgery in the
one case as in the other. (5)
Where the forgery is committed by using the name of an exist-
ing person, it makes no difference whether the offender passes him-
self off for such person or not. (6)
(1) R. v. Hill, 2 Moo. C. C. R., 30; R, v. Cooke,8 C. & P., 582 ; R. v. Geach
9 C. & P., 499.
(2) R. V. Gould, 20 U. C C. P., 169.
(3 1 Mead v. Young, 4 T. R., 28.
(4) R. V. Teague, 2 East, P. C, 979 ; R. «& R. 33. See R. v. Dawson, 1 Str. 19.
(5) R. V. Parkes, 2 Leach, 773.
(6) R. V. Dunn, 1 Leach, 57.
54() I'RACTIOAI, UIJIDE TO MAUIHTHATES.
A person (MKlorwiiif^ u fictititMis naiiu* mi a liill of ('xcluiiigc to
givo it currency, will lio miilty of for^oiy, and in ii cawo wliicli was
Htatod to till' judges, tliey were all of opinion that a bill ol"
exchange drawn in Hctitious names, when thovo are no sucdi
persons oxisiting as the bill imports, was u forged bill. (1)
If three jiersons. A, H and 0, have authority jointly to draw out
money from a bank, and A, one of them, draw out the money by
a cheque signed by himself and D and E, two strungors wlio por-
sonnto B and C, it is forgery. (2)
Tf a person write an accoptancc in his own name to represent a
fictitious yirm, with intent to defraud, it is a forged acceptance ; for
if an acceptance represent a tlctitious yir/n, it is the same as if it
represented a fictitious person. (3)
It is immaterial whether any additional credit bo gained by
using the false name. (4) ^
But it has been held that where a man, who had long been
known by a fictitious name, drew a bill in that name, it was not a
forgery. (5)
It is forgery for a pei'son, having authority to fill up a blank
acceptance or a cheque for a certain sum, to fill it up for a larger
amount. (G)
Filling in, without authority, the body of a blank cheque,, to
which a signature is attached, is a forgery. (Y)
If a person put the name of another on a bill of exchange as
acceptor without the other's authority, expecting to be able to
meet it when due, or expecting that such other person will over-
look it, it is forgery. But if the person either had authority from
such other person, or, from the course of their dealings, bona fide
considered that he had such authority, it is not forgery. (8)
(1) R. V. Wilks, 2 East, P. C. 957; Ex parte Cadby, 26 S. C. N, B. 452.
(2) R. V. Dixon. 2 Lew. 178.
(3) R. V. Roclgers, 8 C. & P. 629.
(4) R. V. Taft. 1 Leach, 172. ^ee R. v. Marshall, R. & R. 75.
(6) R. V. Aickles, 2 East, P. C. 968. , •
(6) R. V. Minter Hart, 1 Mood, C. C. 486.
(7) R. V. Wright, 1 Lew. 135. " '
(8) R. V. Forbes, 7 C. & P. 224 ; R. v. Hill, 8 C. & P. 274.
FoRilKUY. ] 547
I'lliiiNllillcili. — Tho |)uiiiHliin('iitH tor forgery raii^'t) from
iinprisoiunont for lifu to Hovt'ii yoiirH' iiii|iriHoiiiiiont, ncconliiig to
the iHirpovt of the docuiiu'iit forged. (Si'o Artk'k' 423 of the
Codo.)
Tlio |)uiiiHhinoiit for forgciy of any dociinu'iit not enuniorutcd
in Artiolc 423 is, under tho lil^st oluuso of that Artitdo, sovon yours
imprisonmunt.
I'roof*. — TImt tho Migntitiiro or otlier part of tho inHtnnuent
nUoged to bo forged is not of the handwriting of the party may be
])roved by an}' person uequaintod with his handwriting, either
from having seen him write, or from Ijeing in the habit of corres-
ponding with him. (1) It is sulHciont.pn'nw facie, to disprove his
handwriting, and ho need not i)o called to disprove an autiiority to
others to use his' name. (2)
As to ])roof jjy comi)arison of writings, see Evidence, p. 523, ante.
Evidence must bo given of the identity of the party whose hand-
writing is forged ; that is, it must bo proved, expressly, or from
circumstances, that tho alleged forgery was intended to roj)rosont
tho handwriting of tho person whoso handwriting it is proved not
to be, or that it was intended as tho handwriting of a person who
never existed. (3) >
Utter in|^ f'orKOil dociiiiiciitN. — Kvery one is guilty of
an indictable ott'once who, Jcnowing a document to be forged, uses,
deals with, or acts upon it, or attempts to use, deal with, or act upon
it, or causes or attempts to cause any person to use, deal with, or act
upon it, as if it were genuine, and is liable to the same punishment
as if he had forged the document.
2. It is immaterial where the document was foi-ged.
The mere showing of a forged receipt, to a person with whom tho
defendant was claiming credit for it, has been held to be an utter-
ing, although the defendant refused to part with tho possession of
it. (4) .: , . ..■ ■ . .; *
(1) Garrells v. Alexander, 4 Esp. 37 ; Gould v. Jones, 1 W. Bl. 384 ; Hai-
rington v. Fry, R. & M. 99 ; R. v. Horn Tooke, 25 How. St.Tr. 71, 72.
(2) R. V. Harley, 2 M. & Rob. 473.
(3) R. V. Sponsonby, 2 East P. C. 996, 997.
(4) R. y. Radford, 1 C. & K. 707.
64S PRAOTICAI. OinOK TO MAdlSTKATKH.
A. |)liu't'(l 11 for>?t.iil roooipt for jxxn'-mtt'H in tho haiirls of H., for
the |)ur;)Ose of iiiH|UH'tion only, in onlor, by roprtwntin^ liiniBoIf uh
n poi'Hon whoso poor-rutos wen* paid, t(t fniudulently induce B. to
advance moiioy to C, for whom lie, A., |)ropoHod to l)e('oine surety
for itH repayment. Held to ho an uttering : the rule there hiid
down by the ('oiirt l)eing that a using of the forgod instrument in
Bomo way, in order to get money or credit on it, or by means of it,
IB BuiHuiont to constitute the u uico of uttoring. (I)
On an indictment for uttering forged bonds in Knghind, it was
held that such uttering was sutHciently proved by evidence of the
bonds having boon posted in England to a tirm at Hrussols for ne-
gotiation. (2)
The giving of a forgod note to an innocent agent, or to an ac-
complice is a disposing of and putting away of tho note. (3)
Upon an indictment for uttering a forgod bank-note, knowing
it to be forged, proof that the defendant had passed other forged
notes, when proved by legitimate evidence, was held to raise a pro-
bable presumption that he know the particular note in question to
be fo.ged. (4)
FORTITNE TEM.INO.
witchcraft. Tor tune-telling;, Ac. — Every one is guilty
of an indictable offence and liable to one year's imprisonment who
pretends to exercise or use any kind of witchcraft, sorcery, en-
chantment or conjuration, or undertakes to toll fortunes, or protends
from his skill and knowledge in an}' occult or crafty science, to
discover where or in what manner any goods or chattels supposed
to have been stolen or lost may bo found. (Code, Art. 396.)
. Fraud.
!Det*rau«1in)|; C'rcdltorn. — Every one is guilty of an indict-
able offence and liable to a fine of eight hundred dollars and to one
year's imprisonment who —
(1) R. v. Ion, 21 L.J. M. C. 166.
(2) R. V. Finklestein, 15 Cox. 107.
(3) R. V. Palmer, 1 N. R. 93; R. & R. 72.
(4) R. V. Millard, R. & R. 245 ; R. v. Colclough, 15 Cox, (Ir. C. C. R.) 92.
FRAl-D. fi49
(a.) with intent to (lofnuui his cruditopH, or any of thorn,
(i.) niiiltoH, or cruhos to bo niRdo, ftny gifY, convoyanco, VHsign-
ment, Hale, trauHf'or or dolivory of hiw property ;
(ii.) removes, conceals or disposes of any of his property ; or
(b.) with the intont iiiat anN one whall so defraud his creditorn,
or any of thorn, receives any siu'l property. (Code, Art. 368.)
Every one is guilty of jm indictable otlonce and liable to ten
yeai-s' imprisonment who, with intent to defraud his creditors, or
any of them, destroys, alters, mutilates or falsifies any of his
books, papers, writings or securities, or makes, or is privy to the
making of any false or fraudulent entry in any book of account
or other document. (Code, Art. 3(J1>.)
ConvealiiiK DeedNor Kiicunibranc€>Mor Falwlty-
iug P4Mli){r<'«>N. — Kvery ono is guilty of an indictable ott'once and
liable to a tine, or to two years' imprisonment, or to both, who, be-
ing a seller or mortgagor of land, or of any chattels, real or per-
sonal, or chose in action, or the solicitor or agent of any such
seller or mortgagor (and having been served with a written de-
mand of an abstract of title by or on belialf of the purchaser or
mortgagee before the coinj)letion of the purchase or mortgage)
conceals any settlement, deed, will or other instrument material to
the title, or any encumbrance, from such purchaser or mortgagee,
or falsities any j)edigree upon which the title depends, with intent
to defraud and in order to induce such purchaser or mortgagee to
accept the title ottered or produced to him. (Code, Art. 370.)
FraiidN in roNpoct to the Kt'KlNtration of'Titlefi
to K<aiillN. — Kvery ono is guilty of an indictable ott'ence and
liable to three years' imprisonment who, acting either as principal
or agent, in any proceeding to obtain the registration of any title to
land or other wise, or in any transaction relating to land which is,
or is proposed to bo, put on the register, knowingly and with intent
to deceive, makes or assists or joins in, or is privy to the making
of any material false statement or representation, or suppresses,
conceals, assists or joins in, or is privy to the suppression, with-
holding or concealing from any judge or registrar, or any person
employed by or assisting the registrar, any material document,
fact or matter of information. (Code, Art. 371.)
550 PRACTICAL aUIDE TO MAQISTRATKS,
Fraii«lulciit MaloM of Kcal Property. ^Evory one
is guilty of an indictable oflfence and liable to one year's im-
prisonment and to a fine not exceeding $2,000 who, knowing the
existence of any unregistered .prior sale, grant, mortgage, hypo-
thec, privilege or encumbrance of or upon any real property,
fraudulently makes any subsequent sale of the same or of any part
thereof (Code, Art. 372.)
Frau«lnlently Hypothevatlni; or Jn[ort|;agIng
Real Property. — Every one who pretends to hypothecate
mortgage, or otherwise charge any real property to which he
knows ho has no legal or equitable title, is guilty of an indictable
otfence and liable to one year's imprisonment, and to a fine not
exceeding $100.
2. The proof of the ownership of the real estate rests with the
person so pretending to deal with the same. (Code, Art. 373.)
Fraudulent (Seizures of* I^and. — Every one is guilty
of an indictable otfence and liable to one year's imprisonment, who,
in the province of Quelec, wilfully causes or procures to be seized
and taken in execution, any lands or tenements or other real pro-
perty, not being at the time of such seizure, to the knowledge of
the person causing the same to be taken in execution, the bona fide
property of the person or persons against whom or whose estate
the execution is issued. (Code, Art. 374.)
Fraudulent deallngpi In Oold or l§illver by
Ijessees of Mines.— (See Art. 375 of the Code.)
Olving or using false Warehouse Receipts. —
Every one is guilty of an indictable otfence and liable to three
years' imprisonment who —
(a.) being the keeper of any warehouse, or a forwarder, miller,
master of a vessel, wharfinger, keeper of a cove, yard, harbour or
other place for storing timber, deals, staves, boards, or lumber,
curer or packer of pork, or dealer in wool, carrier, factor, agent or
other person, or a clerk or other person in his employ, knowingly
and wilfully gives to any person a writing purporting to be a
receipt for, or an acknowledgment of, any goods or other property
FRAUD. 551
as having been received into his warehouse, vessel, cove, wharf, or
other place, or in any such place about which he is employed, or
in any other manner received by him, or by the person in or about
whose business he is employed before the goods or other property
named in such receipt, acknowledgment or writing have been
actually delivered to or received by him as aforesaid, with intent to
mislead, deceive, injure or defraud any person, although such
person is then unknown to him ; or
(6.) knowingly and wilfully accepts, transmits or uses any such
false receipt or acknowledgment or writing. (Code, Art. 376.)
OwiicrN of merchandise disponing thereof con-
trary to agreeincntH with Consignees who have
made advances therein. — Every one is guilty of an indict-
able offence and liable to three years' imprisonment, who —
(a.) having in his name, shipped or delivered to the keeper of
any warehouse, or to any other factor, agent or carrier, to be
shipped or carried, any merchandise upon which the consignee has
advanced any money or given any valuable security, afterwards,
with intent to deceive, defraud or injure such consignee, in violation
of good faith, and without the consent of such consignee, makes
any disposition of such merchandise different from and inconsistent
with the agreement made in that behalf between him and such
consignee at the time of or before such money was so advanced or
such negotiable security so given ; or
(6.) knowingly and wilfully aids and assists in making such dis-
position for the purpose of deceiving, defrauding or injuring such
consignee. ' -
2. No person commits an offence under this section who, before
making such disposition of such merchandise, pays or tenders to
the consignee the full amount of any advance made thereon.
(Code, Art. 377.)
Making false statements in Receipts for Pro-
perty that can be used under the Bank Act; or
iVaudulently dealing with such Property. — £very
person is guilty of an indictable offence and liable to tnree years'
imprisonment who —
552 PRACTICAL GUIDE TO MAUISTRATES.
(a.) wilfully makes any f'ulso statement in any receipt, certificate
or jkcknowledgment for grain, timber or other property which
can be used for any of the purposes mentioned in the Bank Act ;
or (6.) having given any receipt, etc., iov grain, etc., or having
obtained any such receipt and passed over to any bank or peraon
fraudulently deals with such property. (Code, Art. 378.)
Iliiioceiit Partners,— If any offence mentioned in Articles
3*76, 37V and 378 is committed in the name of a firm, company or
co-partnei-ship, the pei-son by whom the thing is actually done or
who connives at the doing thereof is guilty of the offence and not
any other person. (Code, Art. 379.)
FRAUDULENT MARK[NO OF MBRCHVNDIZE.
(See Trade Marks, post.)
FUGITIVE OFFENDERS.
(See Appendix, poit.)
FURIOUS DRIVING.
Every one is guilty of an indictable offence and liable to two
years' imprisonment who, having the charge of any carriage or
vehicle, by wanton or furious driving, or racing, or other wilful
misconduct, or by wilful neglect, does or causes to be done any
bodily harm to any pei-son. (Code, Art. 253.)
gambling.
Oanibling in Pul>llc Conveyances. — Everyone is
guilty of an indictable offence and liable to one year's imprison-
ment who —
(a.) in any railway car or steamboat, used as a public convey-
ance for passengers, by means of any game of cards, dice or other
instrument of gambling, or by any device of like character, obtains
from any other pereon any money, chattel, valuable security or
property ; or
(6.) attempts to commit such offence by actually engaging any
person in any such game with intent to obtain money or other
valuable thing from him.
GAMBMNG. — GAME. 553
2. Every conductor, master or superior officer in charge of, and
every clerk or employee when authorised by the conductor or su-
perior otflcer in charge of, any railway train or steamboat, station
or landing place where any such oti'ence is comditted or attempted,
must, with or Avithout warrant, arrest any person whom ho has
good reason to believe to have committed or attempted to commit
the same, and take him before a justice of the peace, and make
complaint of such ottence on oath, in wi-iting.
3. Every such conductor, master or superior officer who makes
default in the discharge of any such duty is liable, on summary
conviction, to a penalty not exceeding one hundred dollars and not
less than twenty dollars.
4. Every company or person who owns or works any such rail-
way car or steamboat must keep a copy of this section posted up
in some conspicuous part of such railway car or steamboat.
5. Every company or person who makes default in the discharge
of such duty is liable to a penalty not exceeding one hundred dol-
lars and not less than twenty dollars. (Code, Art. 203.)
GAME.
Quebec. — It is forbidden, in the province of Quebec, to hunt,
kill, or take, — 1. Deer, between the first of January and the first
of October in each yeai-, or, moose and caribou between the first of
February and the first of September in each year. It is also for-
bidden to make use of dogs for hunting, killing or taking moose,
caribou, or deer. (E. S, Q. Art. 1396 ; 62 Vic. (Que.), c. 19, sec. 1.)
No person shall have a right, unless he is domiciled in the pro-
vince, and has previously obtained a permit from the Commissioner
of Crown Lands for that purpose, to kill or take alive, during one
season, more than two moose, three deer and two caribou. Such
permit shall be granted only when deemed advisable and upon
payment of a fee of 05, and can in no case authorize the taking of
more than five additional caribou and five additional deex". The
Commissioner may exempt from the payment of snob ftsi) any In-
dian, whose povei'ty has been established to his satisfaction. (R.
S. Q., Art. 1398.)
For restrictions as to hunting, killing, or taking beaver, mink.
554 PBAOriOAL GUIDE TO MAGISTRATES.
otter, rairten, pekan, have, and musk-rat, or woodcock, snipe, par-
tridge, wild duck, blaclv duck, teal, etc, see R. S. Q., Arts. 1401-
1407.
Every game-keeper, if he has reason to suspect and if he suspect
that game killed or taken during the close season, or peltries or
skins out of season, are contained or kept in any private house,
store, shed or ^other buildings, can, upon making a deposition to
that effect, obtain from a justice of the peace a search warrant to
search such house, store or building. (R. S. Q., Art. 1408.)
Every infringement of the Quebec Game Laws is punishable
summarily ; and prosecutions may be brought either by the game-
keeper or by any other before a justice of the peace of the district
in which the offence was committed, or the seizure or confiscation
effected. (R. S. Q., Art. 1410.) But no prosecution shall be
brought after three calendar months from the day of the commit-
ting of the offence charged. (R. S. Q., Art. 1412.)
The fines for infringements of the Quebec Game Laws are set
forth in Article 1410 of the R. S. Q.
Ontario. — The law on the subject is contained in the 56 Vic.
(Ont.), c. 49.
IJiiorgaiiized Portlonii of the IVorth West Ter-
ritories. — It is enacted by section 4 of the Unorganized Territories
Game Freseroation Act, 1894, (57-58 Vic. (Can.), c. 31), that, except
as thereinafter provided, buffalo and bison shall not be hunted,
taken, killed, shot at, w^ounded, injured, or molested, at any time
of the year until the first day of January 1900.
By sections 5 and 7 of the Act, it is enacted that except as there-
inafter provided, the following beasts and birds shall not be hunted,
taken, killed, etc., during the following times of the year resjject-
ively :
(a.) Musk oxen, between the 20th of March and the 15th of
October ;
(6.) Elk or wapiti, moose, cariboo, deer, mountain sheep and
mountain goats, between the first day of April and the 15th day of
July, and between the first day of October and the first day of
December ;
GAME. — OAMINO. 556
(c.) Minks, fishers and martens, — between the 15th March and
the first day of November ;
(d.) Ottere and beavers, — between the 15th of May and the first
day of October ;
(e.) Muskrats,— between the 15th of May and the first day of
October ;
(/.) Grouse, partridges, pheasant and prairie chickens, — between
the first day of January and the first day of September ;
(g.) Wild swans, wild ducks and wild geese, — between the fif-
teenth day of January and the first day of September ; and
No eggs in the nest of any bird above mentioned, — at any time of
the year.
. Section 8 contains exceptions, allowing the hunting, taking and
killing of the above beasts and birds (except buttalo, bison or musk
oxen in their close seasons) —
(a.) by Indian inhabitants and other inhabitants of the country
to which the act applies ;
(6.) by explorers, surveyors or travellers in actual need of the
beasts, birds, or eggs for food ; and
(c.) by any person having a permit to do so granted under the
Act.
The Act applies only to the portions of the North-West Terri-
tories not included within the provisional districts of Assiniboia,
Alberta and Saskatchewan ; and it applies to the district of Kee-
watin. (Section 2.)
The Act provides for the appointment and remuneration of game
guardians and constables, and the infliction of penalties for viola-
tions of the Act, which, as to the general provisions thereof, is to
come into force on the first of January, 1896.
The " Game Ordinance " No 8, of 1893, of the Provincial Legis-
lature of the N. W. T. is not to apply to the country in which the
Act is in force.
Gaminq.
Gaming^ In Sltockfi, etc. — Every one is guilty of an indict-
able offence and liable to five years' imprisonment, and to a fine of
36
556 PRACTICAL GUIDE TO MA0ISTRATB8.
tivo hundred dollars, who, with the intent to mako gain or profit
by the rise or fall in price of any stock of any incorporated or un-
incorporated company or undertaking, either in Canada or else-
where, or of anj' goods, wares or merchandise —
(a.) without the bona fide intention of acquiring any such
shares, goods, wares or mei-chandise, or of selling the same, as the
case may be, makes or signs, or authorizes to bo made or signed,
any contract or agreement, oral or written, purporting to be for
the sale or purchase of any such shares of stock, goods, wares or
merchandise : or
(b.) makes or signs, or authorizes to be made or signed, any
contract or agreement, oral or written, purporting to be for the
sale or purchase of any such shares of stock, goods, wares or mer-
chandise in respect of which no delivery of the thing sold or
puchased is made or received, and without the bona fide intention
to make or receive such delivery.
2. But it is not an offence if the broker of the purchaser receives
delivery, on his behalf, of the article sold, notwithstanding that
such broker retains or pledges the same as security for the advance
of the purchase money or any part thereof.
3. Every office or place of business wherein is carried on
the business of making or signing, or procuring to be made or
signed, or negotiating or bargaining for the making or signing of
such contracts of sale or puchase as are prohibited in this section
is a common gaming-house, and every one who as principal or
agent occupies, uses, manages or maintains the same is the keeper
of a common gaming-house. (Cnde, Art. 201.)
By Article 704 of the Code, the omis of proving a bona fide inten-
tion to sell or purchase shares or goods is thrown upon the person
accused of gaming in stocks.
Frequenting Bucket Shops. — Every one is guilty of an
indictable offence and liable to one year's imprisonment who habi-
tually frequents any office or place wherein the making or signing,
or procuring to be made or signed, or the negotiating or bargain-
ing for the making or signing of such contracts of sale or purchase
as are mentioned in section 201 is carried on. (Code, Art. 202.)
COMMON GAMING HOUSES. 557
GAMING HOUSES.
Coiiiiiioii <i}aiiiiiiK-lIoiiise. — A common gaming-houso
is —
(a.) a house, room or place kept by any ])er8on for gain, to
which persons resort for the purpose of playing at any game of
chance ; or
(6.) a house, room or place kept or used for playing therein at
any game of chance, or any mixed game of chance and skill, in
which —
(i.) a bank is kept by one or more of the players exclusively of
the others ; or
(ii.) in which any game is played the chances of which are not
alike favourable to all the players, including among the players,
the banker or other person by whom the game is managed, or
against whom the game is managed, cr against whom the other
playei-s stake, play or bet. (Code, Art. 196.)
Keeping^ a Common Oaming-IIouse. — Every one
is guilty of an indictable offence and liable to one year's imprison-
ment who keeps any disorderly house, that is to say, any common
bawdy-house, common gaming-house or common betting-house,, as
hereinbefore detined.
2. Any one who appears, acts, or behaves as master or mistress,
or as the person having the care, government or management, of
any disorderly house shall be deemed to be the keeper thereof, and
shall bo liable to be prosecuted and punished as such, although in
fact he or she is not the real owner or keeper thereof. (Code, Art.
198.)
Evidence of a Place being a Common Oaming-
House. — When any cards, dice, balls, counters, tables or other in-
struments of gaming used in playing any unlawful game are found in
any house, room, or place, suspected to be used as a common gaming-
house, and entered under a warrant or order issued under the Code,
or about the person of any of those who are found therein, it shall
be prima facie evidence on the trial of a prosecution, under
Article 198 of the Code, that such house, room or place is used as
658 PRACTICAL OUIDB TO MAQISTRATBS.
a common gaming-liouse, and that the persons found in the room
or place whore such tables or instruments of gaining are found
wore PLAYING TiiKREiN, although no play was actually going on in
the presence of the chief constable or other otflcer entering the
same under the Code, or in the presence of the persons by whom
he is accompanied. (Code, Art. 702.)
It will also bo prima facie evidence, — in any prosecution for
keeping a common gaming-house, under Article 198 of the Code, —
that a house, room or place is used as a common gaming-house, and
that the persons found therein were unlawfully playing therein.
(a.) if any constable or oflScer authorized to enter any house,
room or place, is wilfully prevented from or obstructed or delayed
in entering the same or any part thereof ; or
(6.) if any such house, room or place is found litted or provided
with any means or contrivance for unlawful gaming or with any
means or contrivance for concealing removing or destroying any
instruments of gaming. (Code, Art. 703.)
In a recent Ontario case (decided 23 June, 1894), a defendant
was indicted under Article 198 of the Code, for keeping a common
gaming house at Fort Erie, (Ont.), and was convicted upon evidence
showing, 1, that he was the person appearing to have the care,
government or management of the house ; 2, that the game carried
on therein was the game of " policy," the implements used being
a wheel, a quantity of numbers, — 1 to 78, — on printed slips, and a
board with the same numbers painted thereon ; and, 3, that the
manner of playing the game, as carried on by the defendant was
as follows : — In Buffalo, (U. S.), there were scattered a number of
agencies, where persons desirous of playing went, and there select-
ed three of the numbers 1 to 78. The player marked down his
numbers on two slips, one of which he gave to the agent, the other
he retained, and, at the same time, he paid whatever sum (five
or ten cents being the ordinary amount) he desired to stake. The
agent delivered these slips and the money so staked to the defen-
dant's head office, which was also in Buffalo. In Fort Brie, the
other part of the game, namely, determining the winning or losing
numbers, was carried on, as follows : The operator went each day,
at 12 and at 5 o'clock, to the room where the wheel was kept. He
had the individual numbers from 1 to 78, in small individual
COMMON GAMINa HOUSES. , 559
boxes, — ono in oach box. Tboso boxes ho deposited in the wheel,
— a hollow wheel, resembling a choose box, with glass sides ; and
aftoi' revolving the wheel, so as to shufHe the boxes, ho opened tho
wheel, withdrew twelve of tho boxes, and called out the numbers
contained on the slips therein. He then returned the numbers to
the boxes, closed the boxes, deposited them in the wheel, and again
wont through the same operation of revolving the wheel to shuttle
tho boxes, and of withdrawing twelve, the numborsj^in which ho
also road out. Having done this, he telegraphed those numbere,
which were the winning ones, — to the head office in Buffalo
where printed slips were issued and delivered to the ditt'eront
agencies. A player who had chosen three of tho numbers ap-
pearing on these slips was a winner and got $2 for oach cent
staked by him ; but all tho three numbers chosen by him
must bo winning ones in order for him to win ; and tho odds
were in favor of the banker or person by whom the game was
managed.
The only thing done in Canada was the revolving of the wheel
and the determining of the winning numbers. The money was
staked, and, if won, paid in Buff'alo.
Tho implements used in the game were instruments of gaming
under Article 702 of the Code ; and it was proved that tho house
where tho implements wore used was entered by tho constable
(who made the arrest of the defendant) under a search warrant
properly issued, that the defendant was there in tho same room
where the implements were, and that these implements were seized
and retained by the constable until the trial ; and there was no
evidence, on behalf of the defendant, that there was ,no gaming
going on in the house, to meet the prima facie case established un-
der Article 702.
The question of whether the defendant was properly convicted
of the offence charged was reserved for the opinion of the High
Court ; and that Court held that the object of the statute was to ■
save tho unwary from hurtful temptation, to protect the residents
of Canada from the injury resulting to them and to society at large
from the waste of their substance in gaming ; that it was not to be
supposed that the legislation was for the protection of the resi-
dents in a foreign state ; that the use of a gaming instrument in
PRACTICAL aUIDE TO MAOI8TKATE8.
this country for deciding who wore the winnorH of money Htaked,
and, if won, paid in a foreign country is not gaming here ; that,
in order to constitute gaming, there must bo a stake of some
kind, and, there being no stake in'this country, there coukl be no
violation of the hiw against gaming'iiERE ; that the statute does
not reach such a case as this ; and that the conviction must be
quashed. (1)
Playing or looking on In Oanilng-HouNe. — Every
one who jjlays or looks on while any other person is playing in a
common gaming-house is guilty of an offence and liable, on sum-
mary conviction before two justices of the peace, to a penalty not
exceeding one hur "i-od dollars, and not less than twenty dollars
and, in default of payment to two months' imprisonment. (Codci
Art. 199.) •,
Obmtructlng; Peace Ofltleer entering Oanilng-
HoUNe. — Every one is guilty of an offence and liable, on summary
conviction before tw(^ jueticesof the peace, to a penalty not exceeding
one hundred dollara, and to six months' imprisonment with or with-
out hard labour who — (a.y wilfully prevents any constable or other
officer, — duly authorized to enter any disorderly house, as mentioned
in section 198, — from entering the same or any part thereof ; or
(6.) obstructs or delaj's any such constable or officer in so enter-
ing ; or, (c.) by any bolt, chain, or other contrivance, secures any
external or internal door of, or means of access to, any common
gaming-house so authorized to bo entered ; or (d.) uses any means
or contrivance whatever for the purjiose of preventing, obstructing
or delaying the entry of any constable or officer authorized as
aforesaid, into such a'sorderly house or any part thereof. (Code,
Art. 200.)
Searching Oanilng-HonseH. — (,See pp. 124-120, ante.)
See Bbttino Houses, and comments and authorities, at pp. 471-
473, ante.
(1) R. v. Wittman. 25 Ont. R. 469. 14 C.L.T. 447.
HOMICIDE. 661
OA8.
Criinlnul Breach of Contract to Mupply Wait. —
(See CONTRACT, p. 508, anfc.)
(SOO INSPECTION, pOS*.) "* ^ ' ! ,
,.,"», ' URAIN. ■ , .'.';' ■ ■.'■•■,
Iiitimidatlon of Dealer* in <i}rain.— (Hoc intimida-
tion, poa^
HABEAS CORPUS.
See p. 36S, ante.
HARBOR MASTERS.
The Harbor Matters Act, (R. S. C. c. 86, as amended by 57-68
Vic. c. 50) authorizes the Governor in Council to appoint harbor
masters and deputy harbor masters, and to make regulations in
reference to their rights, powers and duties.
HAWKERS.
. (See Peddlers, post.)
HOLES AND EXCAVATIONS.
(See Negligence, post.)
HOMICIDE.
Definition. — Homicide is the killing of a human being
by another, directly or indirectly, by any means whatsoever.
(Code, Art. 218.)
By Article 219 of the Code, a child becomes a human being when
it has compkUly proceeded, in a living state, from the body of
its mother, whether it has breathed or not, whether it has an
indejiondout circulation or not, and whether the navel string is
severed or not. And the killing of such child is homicide when it
dies in consequence of injuries received before, during or after
birth.
Culpable homicide. — Homicide is culpable when it con-
sists in the killing of any person, either by an unlawful act or
by an omission, without lawful excuse, to perform or observe
8fi2 PRAOTIOAt. OUIDR TO MACHHTRATKH.
ANY i.RUAL Di'TY, or hy both ('oml)ino(l, or by oaiihino a ikm'moii, iiv
TIIREATH or KBAR OK VIOLKNOK, or HY DEOEI'TION to do Hl> lU'l
wliicli ciiUNOH thiit ihm'hoh'h (lt»ath, or by \vitiKi'i,i,Y FiiKiiiTKNlNd a
«'bil(| or nick person.
2. ('iilpablo homicide is uithor murdor or maiislau^htor.
3. Iloinicido which is not uulpublo in not an ottiMure. ((yode, Art.
220.)
A man wiio hutl frightonod u oliild into convulwions, from tho
oH'octs of wliich it ovontually diod, was convietod, before Denman,
J., of manwlaughtor. (1)
A man, wlio liad tai<un udvantagu of or had croiited a ]mnic in a
theatre and had olwtructed a j)aHsage and rendered it ho ditfiuult to
get out of the theatre that some peo|>le were crushed, wuh held
unHwerubU) for the conHoquences of what he had done, (2) And
where a woman, in order to oHcape from her huHband who hau
used throats against her life, got out of a window, and in so doing
fell and broke her leg, the husband was convicted of having wil-
fully intlicted, upon her, grievous bodily harm. Qi)
Pro«iiriii|( ]>eath by falNe evidence. — Procur-
ing by false evidence the conviction and death of any pei'son by
the sentence of the law shall not be deemed homicide. (Code, Art,
221.) (See PEBJuaY, jjoat.)
Death iniiMt be within a Year and a Day. — No
one is criminally responsible for the killing of another unless the
death take place within a year and a day of the cause of death,
(Code, Art. 222.)
Killing by Influence on the INIInfl. — No one
is criminally responsible for the killing of another by any influence
on the mind, alone, nor for the killing of another by any disorder
or disease arising from such influence, save, in either case, by
WILFULLY FRtGHTFNiNa a child Or sick person. (Code, Art. 223,)
(1) n. v. Towers, 12 Cox, C. C. 530.
(2) R. V. Martin, 8 Q. B. D. 54.
(3) R. v. Halliday, 51 L. J. Rep. (N. 8.) 701.
IIOMICIUI. ft6li
A reel prat Ion of ll<>atli.— Mvory oiu* who, by uny
iirt III- oiniHHioii, (^huhch tlit) iloatli of iniotlior Uilh that perHon,
although till* otViHtt of tlio hodily injury cuuMcd to MUch |>ors(»n ho
moroly to accolorato hiw death \vhiU> hihouring uudor hoiuo tliMordor
or disoaHo ariHiiig from Homo other cuumu. (("ode, A rt, 224.)
Klllliiff when Hcntli iiilKlif ■■»¥« l»t'«ii Pre-
v«>llt«>4l. — Kvery one, who, by uny act or omiHHion, causeH the
death of another, killH that porHon, although deuth from that cuuho
niight have been prevented by resorting to proper meunH. (Code,
Art. 225.)
For inHtan<'e, A injurew H'h tinger. B is advised by a surgeon to
aUow it to be amputated, refuses to do ao, and dies of lockjaw. A
huB killed B. (1)
!Dp»tli following troatiU4>nt ol* Injury Inflieted.
— Kvery one, who causes a bodily injury, which is of itself of a dan-
gerous nature, to any pei-son, from which death results, kills that
person, although the immediate cause of death be treatment proper
or improper applied in good faith. (Code, Art. 22G.)
A wounds B in a duel. Competent surgeons perform on B an
operation which they, in good faith, consider necessary. B dio'n of
the operation, the surgeons being mistaken as to the necessity of
the operation. A has killed B. (2)
]yon-€ulpablc Homicide — JiMtillable and Kx-
cudable. — Homicide which is not culpable may be either justifi-
able or excusable. (8)
JuHtiliablc Homicide. — is subdivided into, 1, Homicide
done under the necessity arising in the exorcise of an otflce, which
makes it compulsory — in executing public justice, under judicial
command — to put to death a malefactor who has forfeited his life
by the laws and verdict of his country ; and, 2, homicide which
happens in the advancement of public justice, and in which the
act, though not commanded, is permitted : as whei'e the killing
(1) R. V. Holland, 2 Moo. & P. 351.
(2) R. v. Pym, 1 Cox C. C. 339.
(3) Broom's Com. L. 910,
564 VAAOTICAL QUIDS TO MAQISTRATES.
happens in preventing crime, (1) or in the arrest of persons guilty
or accused of crime,- or in preventing escapes or rescues from
arrest or from custody, or in suppressing riots, etc. (2)
Kxcufiable Homicide — is subdivided into, 1, Homicide
per infortunium, or misadventure, and 2, homicide in self-defence,
or ae defendendo.
Accidental Homicide, — or homicide pet infortunium, is
such as occurs where a man, in the doing of a lawful act, happens
— without any negligence, and with no intention to injure — unfor-
tunately, to kill another. For instance, if the head of a hatchet,
with which a workman is working, flies oif and strikes 'and kills a
bystander, it is excusable homicide by misadventure. (3)
A whips a horse on which B is riding, in consequence of which
the horse takes fright, and, before B can check him, runs over and
kills C. This is accidental as to B, but it is manslaughter in A,
for his act, being a trespass, was unlawful. (4)
Homicide, In fiielf-Hel^nce, — is such as occurs where a
man, being violently attacked, is obliged to kill his assailant in
order to save his own life. The right of self-defence begins where
necessity begins, and ends where necessity ends ; and, therefore,
the defending party, in order to be excused, must exercise only
such power and apply only such instruments as Avill simply prove
effectual ;• nothing more. For instance, homicide to prevent a
mere trespass is not justifiable. (5) And one, upon whom another
(1) R. V. Huntley, 3 C. & K. 142. See, also, Art. 44 of the Code, which
JUSTIFIES any one in using such force as may be reasonably necessary, in
order to prevent the commission of any offence for which, if committed, the
offender might be arrested without warrant, and the commission of which
would be likely to cause immediate and serious injury to the person or
property of any one, or, in order to prevent the doing of any act which he,
on reasonable grounds, believes would, if committed, amount to any of such
offences.
(2) See Articles 31, 33 to 37, at pp. 98-100, anU, and also Articles 40-43 and
83 and 84, at pp. 481-484, ante.
(3) 1 Hawk. P. C. c. 29, s. 2.
(4) 4 Bl. Com. 182, 183.
(5) R. v. Moir, Ann. Reg. (1830) vol. 72, p. 344.
HOMICIDE. — MURDBR. 665
is making a mere assault with the fist, must not instantly stab
him.
(See Self Defence against Assaults, etc., at pp. 457-460, ante,
and see Provocation, p. 669, post.
Murder. — Culpable homicide is murder —
(a.) If the offender means to cause the death of the person killed ;
(6.) If the offender means to came to the person killed any bodily
injury which is known to the ott'ender to be likely to cause death, and
is reckless whether death ensues or not ;
(c.) If the offender means to cause death or, being so recklesa us
aforesaid, means to cause such bodily injury as aforesaid to one
person, and by accident or mistake kills another person, though he
does not mean to hurt the person killed ;
(d.) If the offender, for any unlawful object, does an act which he
knows or ought to have known to be likely to cause death, and
thereby kills any person, though ho may have desired that his ob-
ject should be effected without hurting any one. (Code, Art. 227.)
Culpable homicide is also murder in each of the following cases,
whether the offender means or not death to ensue, or knows or not that
death is likely to ensue :
(a.) If he meaiiK to inflict grievous bodily injury for the purpose
of facilitating the commission of any of the offences in this section
mentioned, or the flight of the offender upon the commission or
attempted commission thereof, and death ensues from such injury ;
or . .
(6.) If he administci-s any stupefying or overpowering thing for
either of the purposes aforesaid, and death ensues from the effects
thereof ; or
(c.) If he by any means wilfully stops the breath of any pei'son
for either of the purposes aforesaid, and death ensues from such
stopping of the breath.
2. The following are the offences in this section referred to , —
Treason and the other offences mentioned in Part IV., of the Code,
piracy and oft'ences deemed to be piracy, escape or rescue fi'om pri-
566 PBACTICAL GITIDE TO MAGISTRATES.
son or lawful custody, resisting lawful apprehension, murder, rape, for-
cible abduction, robbery, burglary, arson. (Code, Art. 228;)
Puiiilliliiuent. — Every one who commits murder is guilty of
an indictable ott'ence and nhall, on conviction thereof, be sentenced
to death.
]>iielli]i|^. — (See Challenge to fight, p. 496, ante.)
Attempts to murder. — Every one is guilty of an indict-
able oft'ence and liable to imprisonment for life, who does any of
the following things witli intent to commit murder ; that is to
say—
(a.) administers any poison or other destructive thing to any
person, or causes any such poison or destructive thing to be so ad-
ministered or taken, or attempts to administer it, or attempts to
cause it to be so administex'ed or taken ; or
(h.) by any means whatever wounds or causes any grievous
bodily harm to any person ; or
(c.) shoots at any person, or, by drawing a trigger or in any
other manner, attempts to discharge at any 2:)erson any kind of
loaded arms ; or
(d.) attempts to drown, suffocate, or strangle any person ; or
(e.) dest^'oys or damages any building by the explosioh of any
explosive substance ; or
(/.) sets tire to any ship or vessel or any part thereof or any
part of the tackle, apparel or fui'niture thereof, or to any goods or
chattels being therein ; or
(g.) casts away or destroys any vessel ; or
(h.) by any other means attempts to commit murder. (Code,
Art. 232.)
Where a female servant put arsenic into coffee which she pre-
pared for breakfast, and afterwards told her mistress that the
coffee was prepared, upon which the mistress drank the coffee, it
was held that this was an administering. (1)
(1) R. V. Harley, 4 C. & P. 369.
HOMICIDE. — ATTEMPTS TO MURDER. 667
Where A knowingly gave poison to B. to administer as a medi-
cine to C, but, B. neglecting to do so, it was accidentally given to
C. by a child, this was held to be an administering by A. (1)
A person, who fired a loaded pistol into a group of people, not
aiming at any particular one, and who hit one of such group, was
held guilty of shooting at the person he hit, with intent to do
grievous bodily harm to that person. (2)
Subsection (h) of the above Article 232, embracing as it does all
attempts, by any other v>eans, to commit murder, will include all
those cases where machinery used in lowering miners into mines is
injured with intent that it shall break and precipitate the miners,
who may be passing up or down, to the botton of the pit ; and also
all cases where steam engines are injured for the purpose of killing
any one, as well as the cases of sending or placing infernal machines
with intent to murder. (3)
Threats to Murder.— Every one is guilty of an indictable
offence and liable to ten years' imprisonment who sends, delivers or
utters, or directly or indirectly causes to be received, knowing the
contents thereof, any letter or writing threatening to kill or murder
any person. (Code, Art. 233.)
Conspiracy to ]9Iur4ler. — Every one is guilty of an in-
dictable offence and liable to fourteen years' imprisonment, who —
(a,) conspires or agrees with any person to murder or to cause
to be murdered any other person, whether the ])erson intended to
be murdered is a subject of Uer Majesty or not, or is within Her
Majesty's dominions or not ; or
(6.) counsels or attempts to procure any person to murder such
other person anywhere, although such person is not murdered in
consequence of such counselling or attempted procurement.
Accessory after the Fact to IWurder, — Every one
is guilty of an indictable offence and liable to imprisonment for
(1) R. V. Michael, 9 C. & P. 356.
(2) R. V. Fretwell, L. & C. 443; 33 L. J. M. C. 128.
(3) R. V. Mountford, R. & M., C. C. 441 ; 7 C. «& P. 242.
568 PRACTICAL GUIDE TO MAGISTRATES.
life who is an accessory after the fact to murder. (Code, Art.
235.)
(See CHILDBIRTH, p. 498, ante.)
(See SUICIDE, post.)
9IaniilailK;l>ter. — Culpable homicide not amounting to
murder is manslaughter. (Code, Art. 230.)
Every one who commits manslaughter is guilty of an indictable
offence and liable to imprisonment for life. (Code, Art. 236.)
Persons in charge of dangerous things, animate or inanimate,
and persons engaged in erecting or making anything which, in
the absence of due precaution or care, may endanger human life,
are under a legal duty to guard against danger, (See Article 213
of the Code), and are criminally responsible for the consequences
of omitting their duty, without lawful excuse.
If a man, breaking an unruly or vicious horse, ride him into
a crowd of people, and the horse kick and kill one of the pei-sons
in the crowd, it would be murder, if the rider in bringing the
horse into the crowd, meant to do mischief, or even if he meant to
divert himself by frightening the crowd ; for, by reason of his
intention to do mischief or to frighten people, he would be doing
an unlawful act, which he knew or ought to know to be likely to
cause some one's death. If his riding into the crowd were done
not intentionally, but carelessly and incautiously only, he would
be guilty of manslaughter.
So, if a workman throw materials from a house in course of
being erected or repaired, and thereby kill a pei-son passing under-
neath on the street, it is murder, or manslaughter or homicide
BV misadventure, according to whether there is an entire absence
of care, or according to the degree of the precautions taken and of
the necessity of such precautions. (1)
A, having the right to the possession of a gun which was in the
hands of B, and which he. A, knew to be loaded, attempted to take
by force. In the struggle which ensued the gun accidentally went
off and caused the death of B ; and A was held guilty of man-
(1) 1 Hawk c. 31, 8. 68; 1 East. P. C. 231.
HOMICIDE. — MANSLAUOHTKR. 569
slaughter, inasmuch as the discharge of the gun was the result of
his unlawful act in attempting to retake the gan by force. (1)
Contributory ITeH^llgcnce of Deceased no De-
fence. — It is no defence to show that the death of the deceased
was due in part to his own contributory negligence. (2)
If the drivers of two carriages race with each other and urge
their horses to so rapid a pace that they cannot control them, it is
manslaughter in both drivers if, in consequence, one of the carri-
ages ujisets and a passenger is killed. (3)
Immoderate Correefion. — Where a parent is mode-
rately correcting his child, a teacher his pupil, or a master his
servant, and death happens to ensue, it is only misadventure ; but
if the bounds of moderation be exceeded, either in the manner, the
instrument, or the quantity of punishment, and death ensue, it is
either manslaughter or murder, according to. the circumstances. (4)
Thus, where a master corrected his servant by striking him with
an iron bar, so that the suifei'er died, it was held to be murder. (5)
And in all cases where the correction is inflicted with a deadly
weapon and death ensues, it will be murder ; if with a weapon not
likely to kill, though not proper for the purpose of correction, it
will then be manslaughter. (6)
Provocation. — Culpable homicide, which would otherwise
be murder, may be reduced to manslaughter if the person who
causes death does so in the heat of passion caused by sudden pro-
vocation.
2. Any wrongful act or insult, of such a nature as to be sufficient
to deprive an ordinary person of the power of self-control, may be
provocation if the ottender acts upon it on the sudden, and before
there has been time for his passion to cool.
(1) R. V. Archer, 1 F. & F. 351.
(2) R. V. Swindall, 2 C. & K. 230 ; R. v. Dant, L. & C. 567.
(3) R. V. Timmins, 7 C. & P. 499.
(4) 1 Hale, 473, 474.
(5) R. V. Grey, Kel, 64.
(6) Fost 262 ; R. v. Hopley, 2 F. & F. 201. See, also, R. v. Turner, Comb.
407 ; R. V. Conner, 7 C. & P. 438 ; R. v. Griffin, 11 Cox, 402.
670 PKAOTICAL QUIDS TO MAGISTRATES.
3. Whether or not any particular wrongful act or insult amounts
to provocation, and whether or not the person pi-ovoked was actu-
ally deprived of the power of self-control by the provocation which
he received, shall be questions of fact. • No one shall be held to
give provocation to another by doing that which he had a legal
right to do, or by doing anything which the offender incited him
to do in order to provide the offender with an excuse for killing or
doing bodily harm to any person.
4. An arrest shall not necessarily reduce the offence from murder
to manslaughter because the arrest was illegal, but if the illegality
was known to the otfender it may be evidence of provocation.
(Code, Art. 229.)
Husband and Wipk.
Compulsion of Wife.— (See p. 504, ante.)
Duty of Husband to Provide STecesiiarleB. — (See
Maintenance, post.)
Kot AcceHSorles after the fact to each other's
Offences. — (See Parties to Offences, p. 63, ante.)
Ntealing by Husband or Wife.— (See Theft, post.)
Ignorance.
Ignorance of the I^aw.— The fact that an otfender is
ignorant of the law is not an excuse for any offence committed by
him. (Code, Art. 14.)
The general principle that every person ia presumed to know the
law (1) is 80 strong that it has been held to be no defence for a
foreigner, charged with a crime committed in England, to show
that the act was no offence in his own country, and that he did
not know he was doing wrong in doing it in England. (2)
An exception to the general rule is made in Article 12, which
enacts that a person acting under a bad warrant shall, if he, in
good faith and without culpable ignorance and negligence, believe
(1) Broom'8 Leg. Max. 6 Ed. 247 ; R. v. Crawshaw, Bell, 303.
(2) R. V. Esop, 7 C. & P. 456; Barronet's case, 1 E. & B. 1.
IGNORANCE. 6tl
it to be ^ood in law, be protected from criminal roHponnibility,
and tliat ignorance of the law shall in such case be an excuse. (Code,
Art. 21.)
l|i|;iioraiic*<' of fact. — Tgnoranco or mistake in point of
fact will, as a rule, bo a good and sufficient excuse. (I) For it
raaf negative the existence of an evil intent; so that whenever
any one, without fault or carelessness, is, while pursuing a lawful
object, misled concerning facts, and acts upon them as he would
be justified in doing were they what he believes them to be, he is
legally as well as morally innocent. Thus, A in his own house
strikes a blow under the mistaken though bono fid- belief that he
is striking at a concealed burglar, but by this blow ho kills B, a
member of his own family. A is guilty of no otlence. (2) But if
the mistake bo made in the course of doing an unlawful act, and
some unintended or unforeseen consequence ensue from an act
wrongful and unlawful in itself, or if the mistake be due to negli-
gence, the actor will be criminal!}^ responsible. For instance, A
kills B, a friendly visitor, through negligently mistaking him for a
burglar. Although A cannot bo convicted of murder he may be
convicted of manslaughter by reason of his \va\''\\\^^ negligently failed
to acquaint himself with the true state of affairs. (3)
When a statute makes an act indictable, irrespective of guilty
knowledge of some fact connected with it, ignorance of the fact
will be no defence. (4) So that, where A. abducted B., a girl of
15 yeai's of age. from her father's house believing in good faith
and on i-easonable grounds that H. was 18 years of age, he was held
to have committed an offence, although if B had been 18 years of
age, she would not have been within the statute. (5)
It has been held that a person licensed to sell intoxicating liquors
cannot be convicted of 'permitting drunkenness," unless he has
knowledge of the drunkenness complained of. (0)
(1) 4 Bl. Com. 27.
(2) R. V. Levitt, Cro. Car. 558 ; 1 Hale. 474.
(3) Hudson v. MacRae, 4 B. & S. 585.
(4) Sedg. Stat. Law, 2iid Ed. 80 ; R. v. Jukes. 8 T. R. 536.
(5) R. v. Prince, L. R. 2 C. C. R. 154.
(6) Somerset v. Wade. 10 R. (Mcli. 1894) 2G3.
3T
572 PRACTICAL GUIDE TO MAGISTRATES. :
IMMIGRATION.
The Govornor-Gonoral may, by proclamation, whonover lie
dooms it nccoHHary. ]troliibit tho landing of paupor or destitute
immigrants in all ports or any port in Canada, until such sums of
money as are found necessary are provided and paid into the hands
of one of tho Canadian immigration agents by the master of tho
vessel carrying such im migrants for their temporary support and
transport to the place of destination. (1) And the Governor-Gen-
eral may by proclamation, when he deems it necessary i)r» 'tibit the
landing in Canada of any criminal or other vicious class of inimi-
gi-ants, except upon such conditions, for insuring their re-trans-
portation to the port in Europe whence they came, as the Governor-
in-Council prescribes. (2)
Every passenger on board any vessel, arriving in the port or
harbor to which the master, owner, or charterer of such vessel
engaged to convey him shall be entitled to remain and keep his
luggage on board such vessel during 48 houi's after her arrival in
such port or harbor ; and every such master who compels any
passenger to leave his vessel before the expiration of the said term
of 48 horn's shall incur a penalty not exceeding $20 for every pass-
enger he so compels to leave his vessel ; and the master of the
vessel shall not before the expiration of the said 48 hours remove
any berths or accommodation used by his passengers under a like
penalty, except with the written permission of the medical super-
intendent at the proper quarantine station. (3)
As to seduction of female passengers by any master, officer or
seaman on board a vessel while in Canadian waters, see Art. 184 of
the Code, under the head of seduction, post.
INCEST.
Eveiy parent and child, every bi'other and sister, and every
grand-parent and grand-child, who co-habit or have sexual inter-
coui-se with each other, shall each of them, if aware of their
CONSANGUINITY, be deemed to have committed incest, and be guilty
(1) R. S. C, c. 65, see. 23.
(2) lb. sec. 24.
(3) lb. sec. 25.
INDECENCY. 5*73
of an indictublo ott'oncb and liable to 14 yoars' impri.sonmonl,, and
the male i>or8on shall also bo liable to bo whipped : Provided that,
if the court or judge is of opinion that the female accused is a
party to such intercourse only by reason of the restraint, fear or
duress of the other i)arty the court or judge shall not be bound to
impose any punishment on such person. (Code, Art. 176.)
Indecenct.
IiKleceiit Acts. — Every one is guilty of an offence and
liable, on summary conviction before two justices of the peace, to
a tine of fifty dollars or to six months' imprisonment with or
without hard labour, or to both fine and imprisonment, who wil-
fully—
(a.) in the presence of one or more persons does any indecent
act in any place to which the public have or are permitted to have
access ; or «
(ft.) does any indecent act in any place intending thereby to in-
sult or offend any person.
Sec. 6, of 53 Vic, c. 37 (which remains unrepealed), expressly
mentions indecent exposure of the person as a punishable offence. It
reads as follows :
" Every one who wilfully commits any indecent exposure of the
person or act of gross indecency in any public place, in the pres-
ence of one or more persons, is guilty of a misdemeanor, and liable,
on summary conviction before two justices of the peace, to a fine
of fifty dollars or to six months' imprisonment with or without
hard labour, or to both fine and imprisonment."
It has been held in England that the offence of indecent expos-
ure of the pereon may be indictable if committed before several
persons, even if the place be not public, (1) and that men who
bathe — without any screen or covering — so near to a public foot-
path that exposure of their persons must necessarily occur, are
guilty of an indictable nuisance. (2)
(1) R V. Wellard, 14 Q. B. D. 63 ; 54 L. J, (M. C.) 14,
(2) R. V. Reid, 12 Cox, 1 ; per Cockburn, C. J.
574 PHAOTICAL GUIDE TO MAOI8TRAT18.
'' ,.. '■'''■
IJroNN Iild«»<*eil«'iy, — Every malo povHon is gu'''ty of an iii-
(ii(?tal)lo ortbnce and liable to tivo yoarH' IniprisonnieMt and to be
whipped who, in publie or private, eoinniitH, or is a party to the
comniission of', or proeures or attoinptsto procure tlio eonuniHMion
by any mnlo i)erson, of any act of grosK indecency with another
malo porHon. (Code, Art. 178.)
I»«l4'<*4'nt AmmiiiiIIn. — (See pp. 4(i2, 463, ante.)
PoMtiiiK Iiiiinoral HooUn, Ktt*.— (See Art. 180 ,)f the
Code.)
PiibliNliiiiK oi* KxpoNiiiy; ObNoeii«' ^u<l«'r. —
Every one is guilty of an indictablo otVenee and liable to ten years'
imprisonment who knowingly, without lawful justification or
excuse — \-'^'- •■' ?,.,■■■,■' ■■.'■.
(rt.) publicly sells or exposes for public sale or to public view,
any obscene book, or other printed or written matter, or any
picture, photograph, model or other object lending to corru]>t
morals ; or
(6.) publicly exhibits any disgusting object or any indecent
show ; or
(c.) oilers to sell, advertises, publishes an advertisement of or
has for sale or disposal any medicine, drug or article intended
or represented as a means of jireventing conception or causing
abortion.
2. No one shall be convicted of any offence in this section men-
tioned, if he j)roves that the ])ublic good was served by the acts
alleged to have been done. /
3. It shall be a question of hiw whether the occasion of the sale,
])ublishing, or exhibition is such as might be for the public good ;
but it shall be a question for the jury whether there is or is not
excess beyond what the i)ublic good requires.
4. The motives of the seller, publisher or exhibitor shall in all
cases be irrelevant. (Code, Art. 179.)
(See Vaohancy, poBt.)
< ■ I
indians. — /nsanity. 676
Indians.
Till' provisions of tlio Indian Act, K H. C. c, 4.'}, liiivo boon modi-
fied un(i umoiKh-d l>y tlu' T)! Vic, c. 22, tlio 53 Vic, c. 2l», tlio 5-1-55
Vic, c ;{(), and tlio 57-58 Vic, c-. ;{2.
Iiicif«Miic>iit ut' liidiiiiiM to KiotoiiM Ai'tN.— (Soo
p. 48(1, ante.) ■, - •'
liKliaii 44ravt'N. — To sloiil ov uniiiwfully injuro or roinovo
any image, bono, articlo or thing doposiled in or near any Indian
gravo, is an otK'ni'o punishiii)l('. on summary conviction, by a
penalty of SlOit oit tbroc months' im]>risonmcnt for a first otfcncc,
and by the >;ime penalty ANn six months' im])ri8onment, with luird
labour, for a subsequent otl'ence. (Code, Art. 352.)
Insanity.
IllNunlty. — No person shall be convicted of an otl'ence by
reason of an act done or omitted by him when labouring under
natural imbecility, or disease of the mind, to such an extent as to
render him incapable of appreciating the nature and quality of the
act or omission, and of knowing that sucli act or omission was
wrong.
2. A person labouring under specific delusions, but in other res-
pects sane, shall not be acquitted on the ground of insanity, under
the provisions hereinafter contained, unless the delusions caused
him to believe in the existence of some state of things which, if it
existed, Avould justify or excuse ins act or omission.
3. Every one shall be presumed to be sane at the time of doing
or omitting to do any act until the contrary is proved. (Code,
Art. 11.)
This Article corresponds with the decisions of English .ludges on
the sul)ject. (1) Under the law as here expressed, a man may be
insane, and still be convicted of an ottence ; in other words, not-
Avithstanding his insanity he will be held responsible and pun-
i.shable, unless his insanity was such that it rendered him inca-
(1) R. V. Oxford, 9 C. & P. 525 ; R. v. Ofl'ord, 5 C. & P. 168; McNaghten'a
Case, 10 CI. A F. 200 ; R. v. Townley, 3 F. & F. 839.
576 I'KACTICAL OlIIUK T<» MAHIHTIIATKH.
2)nbio of knowing thiit what ho diil whh wi'oti^ ; and, although
a man may bo hiliourin^ uiidor simio doluHioii whoii ho oommilH an
oH'onco, ho may still bo oonviotod of and puniNhod for that oH'onco,
unloHH tho doluHJon wore Huoh that it mitdo him Ixdiovo that Home-
thin/^ thon oxinti'd which if it had boon u roalily would havo juMti-
tiod or oxcuhod what ho did, an, forinstanoo, a doiuHion that ho was
being violontly atlaokod and in dangor of boinj^ murdorod. and
that ho wnH obliged in sulf dofunco to kill hiH HiippoHod antagoniHt.
]lruilk4>ilii«'NM. — With rogard to dorangomont of tho mind by
the UHO of intoxicating liquOPH, tho rulo iw that if drunkonnoHs bo
contracted voluntarily it will not roliovo a porson from rosponHibi-
lity for a crinunal otlonco committod by him while in a drunken
condition, whothor at the tinjo he knowH what he \h doing or not.
(1) Still, if the act bo one which muHt, In order to render it a cri-
minal otfonco, bo done with Homo particular intent, the fact of itH
being done when tho oft'ender is in a Htate of intoxication Hhould
be taken into account in deciding whether ho ban Buch intent or
not. (2)
If tho drunkenness bo involuntar}', as if a person be made drunk
by stratagem or fraud, or by some mistake, as by a physician un-
skilfully administering some drug or intoxicant to a patient, or if
a man become intoxicated in any other way than by his own vol-
untary act, ho will not be responsible for an offence committed
while so aflTocted to an extent which prevents him from knowing
what ho is doing or from knowing that he is doing wrong. (3) Or,
if, by habitual drinking, a person become afllected by a fixed frenzy,
delirium tremens, or other form of in,sanity, whether ]iormanont or
intermittent, ho cannot be held responsible for an act done by him
while thus affected, if he be thereby rendered incapable of knowing
that the act is wrong, or if he bo thereby subjected to some specific
delusion causing him to boliove in the existence of some state of
things which, if real, would justify or excuse his act. (4)
IiiNiinity ot* iie<*iiN<Ml lit time ot* oflVii<*«>.— When-
ever it is given in evidence upon the trial of any person charged
(1)1 Hale, 32 ; 1 Hawk, P. C. c. 1, sec. 6.
(2) R. V. Meakin, 7 C, & P. 297 ; R. v. Cruse, 8 C. & P. 541-546.
(:5) 1 Rubs. Cr. 5 Ed. 114.
(4) 1 Hale, 30 ; Burrow's Case, 1 Lewin, 26.
INSANITY. R77
with Jiny in(li('tiil)l»H>ffon(io, tlmt Hueh porHon was inmiiR' ut thvtiino
itf ilie coininiMHioii of huoIi ottbiico, and miicIi jtorson is a('([iiittcd,
the jury HJiall lio rcqiiii-ud to tind, HiuH-iaiiy, whether Hueli jkm'hoii
wan itiHane at the time of the coiniiiisHioii of istich otleiue, aixl to
<h»chire whether lie is aequitted on aceount of such innanity ;
and if it tinds that such person was insane at the time of commit-
ting Hueh offence, the Court before which such trial is had, shall
order such person to ho kept in strict custody in such place and in
Huch manner as to the Court sooms flt, until the pleasure of the
Lieutenanttiovernor is known. (Code, Art. 73(5.)
On the trial of a deaf mute for felony, ho was found guilty, but
the Jury also fouinl that he was incapable of underwtandin;^ and
did not understand the proceedings at the trial ; upoji which Hnd-
ing it was held that the prisoner could not be convicted, but must
bo detained as a non sane person during the (Queen's pleasure. (I)
IiiNaiiily of* a«*«*iiM<'d on arralKnH>«'i>t or trial.
— If, at any time after the indictment is found, and before the ver-
dict is given, it ajipears to the C'ourt that there is sufficient reason
to doubt whether the accused is then, on ac 'ount of insanity, ca-
pable of conducting his defence, the Court may direct that an issue
shall be tried whether the accused is or is not then, on account of
insanity, untit to take his trial.
If the verdict on this issue is that the accused is not then unfit
to take his trial, the arraignment or the trial shall proceed as if no
such issue had been directed. If the verdict is that ho is untit, on
a(!count of insanity, the Court shall order the accused to be kept in
custody till the pleasure of the Lieutonant-Govornor of the pro-
vince shall be known, and any plea pleaded shall be set aside and
the Jury shall be discharged.
But no such proceeding shall prevent the accused being after-
wards tried on such indictment. (Code, Art. 737.)
liiNanc perNoii <lifi<*harKcd for want of prose-
<*lltion. — If any accused person, brought before any court to be
discharged for want of prosecution, appears to bo insane, a jury
shall be empanelled to try his sanity, and if they tind him insane
(1) R. v. Berry, 45 L. J. M. C, 123.
578 PRACTICAL, GUIDE TO MAGISTRATES.
the court shall order him to be detained until the pleasure of the
Lieutenant-Governor is known. (Code, Art. 731t.)
Custody of* Iiisane PrrNOii. — In all cases of insan-
ity so found", the Lieutenant-Governor may make an order for the
safe custody of the person so found to be insane. (Code, Art. 740.)
INSPECTION.
Tliv Ijcneral Iiinipcctiou Act, (ii. S. C, c. 99),
and its amendments, 50-51 Vie., c. 36, 52 Vic, c. l(i, 54-55 Vic, c,
48, and 57-58 Vic, c 36. provide for the inspection of the following
staple articles of Canadian produce, namely : (a.) Flour and meal ;
(fc.) Wheat and other grain, and hay ; (c.) Beef and pork ; (d.)
Pot ashes and pearl ashes ; (e.) Pickled fish and tisli oil ; (/.)
Butter ; and (g.) Leather and raw-hides. And a variety of pen-
alties are imposed for violations of the Act.
Section 6, provides that no inspector shall deal or trade in, or
have any interest directly or indii-ectl}', in the production of any
article subject to ins]jection by him, or sell, or — except for consump-
tion by himself and his family — buy any such article. flPenalty, for
violation of this provision, $200 and forfeiture of office.
Section G (as amended by 57-58 Vic, c. 86, sec. 1), also provides
that any deputy inspecjtor, except a deputy inspector of grain, may
engage in the purchase and sale of articles insj)ecte(l by him ; but
that, whenever he inspects any article in which he has a direct or
an indirect interest, he shall brand it untler his name as branded
thereon, with the woi'ds " deputy inspector and owner." And
every dei'Uty inspector who violates any provision of the Act
incurs a penalty not exceeding $100 and forfeiture of office,
<^a« Iiispcctlon.— The Gas Tnspertion Act, (li. S. C.
c. 101), provides for the appointment, by the Governor-General in
Council, of inspectors of gas and gas meters in every i;\\y, town,
village or place in Canada where gas is made for u.se, and for regu-
lating the verification and stamping of gas meters, for testing the
quality and purity of gas, and for punishing otfences against the
Act.
Amendments to the Act have been made by 53 Vic, c. 25.
ELECTRIC LIGHT. 5T9
£lcotric liight. — The appointment of electric light in-
spectors, the inspection, vcriticution and stumping of electric
light meters, and the testing of electric wires, lines, tittings and
apparatus are provided for by the Electric Liqht Inspection Act,
(57-58 Vic, c 39.)
Section 10 of the Act provides that any person, who maliciously
or fraudulently abstracts, causes to be wasted or diverted, con-
sumes or uses any electricity, shall be deemed guilty of theft and
punishable accordingly.
Prosecutions under the Act must be commenced within 3 months
after the otl'ence is committed. (Section ;}4.)
So soon as the standards and apparatus have been obtained and
approved, the (Jovernor in Council nuij' issue a proclamation, fix-
ing a day, not less than G months from the date of such proclama-
tion, upon which the provisions of the Act respecting inspection
shall go into operation, and nuiy, from time to time, determine at
and for what places inspectors shall be appointed, and until such
inspectors are ajipointcd the Act shall not be deemed to have come
into operation with respect to such places. (Section IJ6.)
liiM|»e«tioii of Petroleiiiii. — See the Petroleum In-
spection Act, {II. S. C, c. 102), and its amendments, 54-55 Vic, c
49, 50 Vic, c. 3(;, and 5*7-58 Vic, c 40.
Iiiiwpoctioii of Kliips. — See the Inspection of Ships Act,
(54-55 Vic. c 37), amended by 57-58 Vic. c 45.
Nteaiiibout liiNpt'otloii. — See the Steamboat Inspection
Act, (R. S. ('., c 78), and its amendments. 52 Vic, c 23, 53 Vic,
c. 17, 54-55 Vic. c 39, 55-56 Vic, c 19, 56 Vic, c 25, and 57-58
Vic, c 46.
INTENT.
It is well established, as a general principle, that the essence of a
criminal oifence is the evil or wrongful intent with which the act
is done. This is the doctrine embodied in the legal maxim, Actvs
non farit reum nisi mens sit rea, " The act itself does not make a
man guilty, unless his intention were so.' (1)
(1) Broom's Leg. Max., 6 Ed. 300.
580 PRACTICAL GUIDE TO MAGISTRATES.
This principle, however, is not to be'taken as absolute and
without limitation. F'or instance, the law may positively forbid a
thing to be done, and declare, in absolute terms, that the doing of it
shall be a criminal oft'ence, and in such a case it becomes there-
upon, ipso facto, illegal to do it wilfully, or, in some cases even
ignorantly. (1)
In general, however, the intention of the party, at the time of
committing an act charged as an offence, is as necessary to be
proved as any other fact laid in the indictment, though it may
happen that the proof of the intention consists in showing overt
acts only, the reason in such cases being that every man is prima
facie supposed to intend the necessary or even probable or natural
consequences of his own acts. (2)
See Capacity for Crime, p. 495, ante.
See Ignorance, p. 570, ante.
See Insanity, p. 5'75, anfe.
intimidation.
Intliiildatloii of* any pernoii. — Everyone is guilty
of an indictable oti'ence, and liable, on indictment or on sum-
mary conviction before two justices of the peace, to a line not
exceeding $100 or to three months' imprisonment, with or without
hard labor, who wrongfuUj' and without lawful authority, with a
view to compel any other person to abstain from doing anything
which he has a lawful right to do, or to do anything from which
he has a lawful right to abstain, — (a) uses violence to such other
person, or his wife or children, or injures his property ; or (6.) in-
timidates such other person, or his wife or children, i)y threats of
violence to him, her or any of them, or of injuring his projierty ;
or (e.) persistently follows such other person about from place to
place ; or (d.) hides any tools, clothes or other property owned or
used by such other person, or deprives him of or hinders him in
the use thereof ; or (e.) with one or more other persons follows
such other person in a disorderlj'- manner, in or through any street
(1) lb., 301 ; See R. v. Prince, L. R. 2 C. C R. 154, 175 ; cit. at p. 571, ante.
(2) Broom's Leg. Max. 304 ; R. v. Moore, 3 B. & Ad. 188; R. v. Hicklin
L. R. 3 Q. B. 375.
INTIMIDATION. 681
or road ; or (/.) besets or watches the house or other place where
such person resides or works, or carries on business, or happens to
be. (Code, Art. 523.)
A threat made to a woi-kman that his fellow-workmen will
strike, unless he joins a union, or a threat made to a master that
the union men in his'employ will strike if he continues to employ
non-union men, was held not to be intimidation, because, as strikes
are now lawful, the mere threat to strike, — which is a lawful act,
cannot amount to intimidation. (1)
Clause (/) of the above article expressly forbids picketing, as
being an act of unlawful intimidation ; and a threat to picket has
also been held to be intimidation. (2)
The law allows simple watching or attending near a place to
obtain or communicate information. (3)
Intiinidation of norkmeii, etc— Every one is guilty
of an indictable ott'ence and liable to two years' imprisonment who,
in pursuance of any unlawful combination or conspiracy' to raise
the rate of wages, or of any unlawful combination or conspiracy
respecting any trade, business or manufacture, or respecting any .
person concerned or employed therein, unlawfully assaults any
person, or, in pursuance of any such combination or conspiracy,
uses any violence or threat of violence to any person with a view
to hinder him from working or being employed at such trade,
business or manufacture. (Code, Art. 524.)
Iiitliuiflation of produce dealerin, stevedores,
ship carpenters, ship lahorers, etc., I»,y violence
or tiireats. — This is an otfence punishable, on indictment or
on summary conviction before two justices, b}' $100 tine, ortiiree
months' imprisonment, with or without hard labor.
Intiniidatiii)^ hiflders at sales of pnhlie lands.
— This is indictable and punishable liy $400 tine or three months'
imprisonment, or both. (Code, Art. 52C.)
(1) Connor v. Kent, Gibson v. Lawson, Curran v. Treleaven, (1891), 2 Q-
B., 5-16; 61 L. J. (M. C.) 9.
(2) Judge V. Bennett, 52 J. P. 247.
( i) R. V. Bauld, 13 Cox 282.
582 PRACTICAL GUIDE TO MAGISTRATES.
See Conspiracy in Eestraint of Trade p. 505, ante, and Trade
Combinations, p. 50(!, ante.
Conspiracy to Intimidate a Legislature. Seo Art. 70 of the
Code.
intoxicating liquors..
liiqiior f^cllinv;. — Under the common law, and aside
from statutory inhibitions and restrictions, .it is no otVonce to sell
or to keep a place for selling intoxicatini; li(iiior without a license,
l)rovide(l the i)lace be kept and conducted in an orderly and proper
manner. (1) But the place may, by the manner of keeping and
(conducting it, become a common law nuisance and a disorderly
house, and the keeiDcr thereof may render himself liable to indict-
ment (2) by, for instance, permitting dissolute persons to be
tippling, carousing, swearnig, hallooing, and the like in and around
his premises. (3) Jn such a case, moreover, ho will not be pro-
tected from the chai'ge, even if he have a license for selling. (4)
For, as has been said, by the court, in an American case, " The
license to retail liquor is not, in the eye of the law, a license to keep
a nuisance." (6)
lfcM|»octi%'e Powers of* Doiiiiiiioii Purliaiiinit
aiifl of ProviiK'ial Ije^riNlutiirc^iii. — The "regulation of
trade and commerce " is one of the classes of subjects exjiressly placed
under the control of the Dominion Parliament, by sect-ion 91 of
the B. X. A. Act, which moreover, gives to the Dominion Parlia-
ment a general authority to legishite for the peace, order and good
government of Canada, and to make laws in relation to all matters
not expressly assigned to the i)rovincial legislatures. Section !)2 of
the B. N. A. Act gives to the provincial legislatures the right
(among other local powers) to legislate as to shop, saloon and tavern
licenses in oi'der to the raising of a revenue for ])rovincial purposes.
And as an incident to this rjght, and in the exercise of the power
(also conferred on them) to legislate as to property and civil rights
(1) R. V. Joyce, 2 Show, 468.
(2) Stephens v. Watsoi), 1 Salk. 45 ; Walker v. Brewster, L. R. 5 Eq. 22.
(3) S V. Berthed, (J Blackf. 474.
(4) U. S. v. Elder, 4 Cranch. C. C. 507.
(5) S. V. M,ullikin, 8 Blaekf. 2(50.
INT )XICATI?JO LIQUORS. 583
and mattci*H of a merely local or private nature, the provincial
legirtlatures maj' make reasonable police or municipal regulations
in connection with such licenses and may jiass legislation imposing
fines and penalties including imprisonment with hard labour, for
selling liquor without license. (1)
But the closing paragraph of section 91 provides that, — notwith-
standing anything in the Act contained, — any matters which come
within the subjects placed, by section 91, within the jurisdiction of
the Dominion Parliament, shall not be deemed to come within
the classes of subjects assigned by section 92 to the provincial legis-
latures. And it has been held that the Canada Temperance Act, —
the object of which is to promote tcmjierance throughout the
Dominion, by prohibiting the sale of anj' intoxicating liquor as a
beverage, in any county or city wherein it is adopted, — is an Act
which relates to the regulation of trade and commerce and to
matters within the Dominion Parliament's general authority to
legislate for the peace, order and good government of Canada, and
that, although that Act is legislation which, in the counties and
cities in which it is adopted, att'ects property and civil rights and
interfei'es with shop, saloon and tavern licences and local and
private matters, it is constitutional and within the legislative
power of the Dominion Parliament ; (2) the principal ground of
this and other decisions en the subject being that the Dominion
Parliament is the dominant power, and that all bonafide legislation,
which it pusses, upon matters comprised in the classes of subjects
enumerated in section 91, is within its competency, no matter how
much such legislation may art'ect, override or even exclude or sup-
ersede the powers of the local legislatures with refeivncc to any of
the subordinate classes of subjects enumerated in section 92; and
that, in short, whenever the subject matter of any Dominion Act
falls within any of the classes of subjects ])laced by section 91
under the control of the Dominion Parliament, it is immaterial to
the constitutional legality of such Act 'that it also trenches upon
or covers one or more of the classes assigned, by section 92, to the
provincial legislatures, and that in such a case the subordinate
power i»f the provincial legislatui-e must give way to the dominant
(1) R. V. Hodge, 7 Ont. A. R. 246 ; Hodge v. R., L. R. 9 A pp. Cas. 117,
(2) Russell v. R., L. R. 7 App. Cas. 829.
,684 PRACTICAL GUIDE TO MAGISTRATES.
power of the Federal parliament, as far as may be necessary to
render the Dominion statute effective.
In places, therefore, which have adopted the Canada Temperance
Act, (the provisions of which are noticed further on, at p. 595,
post,) that Act overrides provincial legislation on the subject of
licences for the sale of intoxicating liquors. But, in places where
the Act has not been adopted, the sale of intoxicating liquors
as a beverage, and the granting of licenses for the sale thereof may
be regulated by provincial statutes.
It has been held that sec. 18 of 53 Vic. c. 56 (Ont), and sec. 1 of
54 Vic. c. 40 (Ont), allowing, under certain conditions, municipali-
ties to pass by-laws for prohibiting the sale of spirituous liquors
is intra oires the Ontario Legislature. (1) And in the province of
Quebec it has been held that Article 5(jl of the Municipal Code as
amended by 51-52 Vic, c. 29 ((^ue.) sec. 6., (E. S. Q., Art. 6118),
by which a municipality is authorized to prohibit, — within a muni-
cipality, — the sale of intoxicating liquors in quantities less than two
gallons is within the powers of the provincial legislature. ("2)
The sale of intoxicating liquors and the granting of licences for
the sale thereof are governed, in the province of Quebec, by the
II. S. Q., Articles 828 to 942, 52 Vic. c. 52, (Que.), 54 Vic. c. 13,
(Que.), 55-56 Vic, c 11, and 56 Vic, c. 16 (Que.) ; in the province
of Ontario by the E. S. O., c 194, as amended by 51 Vic. c. 30
(Ont.), 52 Vic, c 41, (Ont.), 53 Vic c. 56, (Ont.) 54 Vic c 46,
(Ont.), 55 Vic. c 61, (Ont.), and 56 Vic. c 40 (Ont.) ; in the pro-
vince of Nova Scotia, by 50 Vic. chaps. 38-43, (N. S.), 52 Vic. c 17
(N. S.), 53 Vic. c 18, (N. S.), 54 Vic chaps. 26-28 (N. S.), and 55
Vic. chaps. 23, 24 (N.. S.); in the province of New Brunswick by
C. S. N. B., c 105 ; in the province of British Columbia by the Li-
cense Acts, 51 Vic chaps. 73 & 76 (B. C), 52 Vic. c 10 (B. C), the
Liquor Licnse Regulation Act, 1891, 54 Vic. c 21 (B. C), and the
License Amendment Acts, 1894, 57 Vic c 28, & c. 29 ; in the pro-
vince of Manitoba by the E. 8. (Man.), c 90, 55 Vic. c 24, and 56
Vic. c 18, (Man.)
Intoxicating liquors are not allowed to be manufactured, com-
(1) In re Local Option Act, Ont. A. R. 572 ; 11 C. L. T. 294.
(2) CoriJorAtion of Huntingdon & Moir, 7 M. L. R. (Q. B.) 281.
INTOXICATING LIQUOBS. ' 585
pounded or made in the North West Territories, nor in the district
of Keewatin, except by special permission of the Governor in
Council ; and no intoxicating litiuors are allowed to be imported or
brought into the Territories or into Keewatin from any province
of Canada nor to be sold, exchanged, traded or bartered, or had in
possession, except by special permission of the Lieutenant-dover-
nor, (E. S. C. ci 50, sec. 92 ; R. S. C. c. 53, sec. 35.)
It has been held that under the Liquor Licensing laws of the
province of Quebec, a municipal council has a discretion to refuse
the renewal of a license, on the ground of there being no necessity
for its existence, although the application for such renewal was
supported by the signatures of the requisite number of the resi-
dent electors of the parish and complied in other respects with all
the technical requirements of the law. (1)
It is enacted by the Imperial statute 33-34 Vic, c. 29, sec. 14,
that every person convicted of felony shall forever be disqualified
from selling spirits by retail ; and this section has been held in <
England to apply to persons convicted before the Act was passed.
(2)
On an application for a shop license under .sub-section 14 of
section 11 of the Ontario Liquor License Act, R, S. O., c. 194, as
amended by 53 Vic. c. 56, (Ont.) sec. 1, it is imperative that the
petition which is to be filed with the inspector before April Ist, be
accompanied by a properly signed certificate of the majority of
the electors, and the Act does not authorize the granting of such a
license contrary to the provisions of that section, and it has been
held that where the applicant for such a license omitted to file
the certificate until some time after the first of April the granting
of the license would on that account be contrary to the provisions
of the section ; but that it would be otherwise as to a tavern li-
cense, in which case a discretion rests with the commissioners. (3)
A regulation by license commissioners requiring the lower half
of bar-room windows to be left uncovered during prohibited houi-s
(1) St Amour v. Corporation de St. EranQois de Sales, 7 M. L. R. (S. C.)
4:9.
i2) Vine v. Leeds, 44 L. J. Ml C. 60.
(3) In re Robert H. Hunter's License, 24 Ont. R. 721. 14 C. L. T. 126.
*vw. , ^:
I
586 PRAOTICAIi aUIDE TO MAGISTRATES.
\s valid and reasonable, and a dot'ondant was lu'ld by iho Ontario
Court of Appeal rightly eonvieted of iv breach of the regulation. (1)
The principal ottences wliich, in places where the Canada 2'em-
perance Ac* is not in force, can bo committed in connection with the
liquor tratlic are: the sem-ING of intoxicating liquor without a
LICENSE ; and the .selling of intoxicating liiiuor by a licensee
DURiN(j I'HOiiiHiTED HOURS or iu ANY PLACE in \Vhich he is N(»T
authorized by his license to sell it.
NelliiiK wItliOHt lit'oiiHC. — Upon a charge of selling in-
toxicating li([uor without a license, there must be evidence to
show that the liquor sold was intoxicating liquor. (2)
It is a question of fact whether the liquor sold is intoxicating ;
and a mild beverage which would not cause ])erceptible intoxica-
tion to some persons, may be held to be intoxicating if it exhili-
rates the parties who drink it, though it might not be sufficiently
strong to atlect habitual users. (H)
A conviction, ujxrn a charge of selling without license, should
contain an allegation that the sale M'as without license. (4)
A conviction for that one II did sell wine, beer and other spritu-
ous or fermented liquors, to wit. one glass of whiskey, contrary
TO LAW, was held bad. for uncertainty, in not showing Avhether
the of^'cnce was selling without a license, or selling by a licensee
during illegal hours. (."))
A defendant purchased for $2;') from a duly liceased hotelkeeiier
the day's receijtts of the bar ; and at the close of the day such
recei])ts were ])aid over to him. Held, that a conviction against
the defendant for selling li(|Uor without a license, contrary to the
Ontario Liquor License Act, could not be supported, and it was
accordingly- quashed, ((i)
The Licen.se Act in New Brunswick provides that in cities all
applications for licenses shall be considered by the nuiyor at a
(1) R. v. Martin. 21 Out. A. R. 145.
(2) E. V. Grannis, 5 Man. L, R. 153 ; R. v. Bennett, 1 Ont. R. 445.
(3) R. V. McDonald, 24 N. S. R. 35.
(4) £^ar/)ortt' Woodlionse. 3 L. C. R. 94.
(5) R. V. HogKard, 30 U. C. Q. B. 152.
(G) R. V. Westlake, 12 C. L. T. 97.
. INTOXICATING LIQUORS. ' / \'^y'''' f^'
meeting to be held not later than tlie first of April in each year. It
was held that the fact of the meeting to consider the applications
for licenses not being hold till after the first of April was no
defence to a charge of selling liquor without a license. (I)
It has been held in Ontario that the quashing of a by-law under
which a certificate has been granted and a license issued to sell
spirituous liquors does not nullify the license, and that u convic-
tion, under these circumstances, for selling liquor without license
could not be supported. (2)
A conviction for selling liquor without a license is had, if it do
not specify the day on which the offence was committed. (3)
Under section IVI of the Ontario Liquor License Act, \X. 8. 0., o.
104 (amended by 53 Vic. c. 5(5, (Ont,), sec. 113) the occupant of
the house in which an offence is committed is personally liable to
the penalty. Thus, where a married woman was the lessee of the
premises and the husband in her absence sold liquor without a li-
cense, she was held liable to conviction. (4)
A defendant, — who had been a licensed hotel keeper, having a
bar furnished with a counter and the usual appliances for the sale
of liquor, but whose license had exi)ired, — was asked by a couple
of persons for whiskey. Ho told them ho could not sell it, and
gave them temperance drinks, and, on being paid therefor, he
treated them to whiskey, which he obtained from a bottle behind
the counter. Ho was convicted under sec. 50 of the Liquor Licetise
Act, II, S. O. c. l!)4 for permitting spirituous liquors to be drunk
in his house, being a house of public entertainment ; and the con-
viction was maintained. (5)
It has been held in Ontario that a wife who sells liquor at the
husband's place of business, in bis absence, is his agent, so that the
husband may be convicted for the act of the wife. (6)
It has however been held that if the act of sale by a person other
(1) Ex parte Drisc-oU, 27 S. C. N. 13. 216.
(2) R. V. Stafford, 22 U- U C. P. 177.
(3) R. V. French, 2 Kerr, 121.
(4) R. V. Campbell, 8 U. C. P. R. 55.
(5) R. v. Richardson, 11 C. L. T., 154.
(«) R. V. McCauley, 14 Ont. R. 643.
38
688 PRACTICAL ODIDK TO MAOIRTRATRS.
than tlio occupant wore an isolatod act, wholly nnauthorizud by
tho occupant and not in any way in tho coutho of his busincsH, but
a thing done l»y tho unwarranted or wilful act of tho Hubordinato,
tho occupant might oscapo personal rosponHil)ility. (1)
It has been held, in England, that a sale in a club to a member
thereof was not a sale, within the meaning of the Liquor License Acts
even when tho liquor was fov cumsumption otl' tho club proniisos.
(2) And tho members of a club committee wore held not liable
for tho wrongful sale by tho club's steward, contrary to their order
and without their knowledge. (3)
But where li(iuor was 8Ui)plied — by a limited company carrying
on a proprietory club, — to and ]>aid for by a person who had been
named an '' honorary' member," ponding cncjuiries and pending his
election as an active member and had paid his subsci-ijition, but
not being elected as an active member, his subscription was subse-
quently returned to him, it was held that there was a sale to him
by tho company of tho liquor by retail for which the company
were liable in penalties. (4)
It has been held that whore, in a club incorporated under the
Benevolent Societies Act (R. S. O. c. 172) liquor was sold or supplied
to members, but such sale or supjilj' was not the main or special
object of the club, there was no violation of tho License Act ; but
that it was otherwise whore th« sale or sujjply of liquor was the
main object of the incorporation, and that tho question was one for
tho decision of the magistrate upon the evidence, and that there
being some evidence to support the magistrate's finding that liquor
selling wus tlie main (diject of the club with intent to evade the
Liquor License Act, tho Court would not interfere with the magis-
trate's tinding. (5)
Uj^on a motion to quasli a conviction for selling liquor without
a license, it ap])eared that at a dinner given at the Ottawa Club, a
purely social club, one of the guests, who was not a member of the
clul), ordered some wine, in payment of which he gave to the
U) R. V. King, 20 U. C. C P. 246.
(2) GrafF V. Evans, 8 Q. B. D, 373 ; 51 L. .T. M. C. 25. See cases cited at pp.
441 & 571, anil'.
(3) Newman V. Jones, 56 L. J. M. C. 113. -
(4) Bowyer v. Percy Supper Club, 5 R. (1893) 472.
< (5) R. V. Austin, 17 Ont. R. 743.
INTOXICATINO t,lQU<iU8. 58!»
waiter liis c'ho(|ui', which wntt dolivorod Ity tho wnitor to the
MtDWurd, who, on tlu' following morning, handed it to the defen-
dant, the secretary of tho cluh, wiiich wan the Hrst ho icnew of the
Nalo, and, ho far an appeared, he wan not aware that the guest was
not a memlior. Held, tiiat the wale was complete when tho cheque
was accepted by the waiter, hut, an there was no evidence lo show
that the defendant was, in any way, aware that the wine was to bo
sold to anyone not a member of the club, and as the club was tho
proprietor antl owner of the wines and tho steward its agent, and
in no sense tho agent of tho defendant, tho latter could not be
convicted for the act of any other servant of tho club to which he
was neither party nor privy ; und the conviction was accordingly
quashed. (1)
Where a particular act constitutes tho oft'onco, it is enough to
describe tho act in the words of tho statute ; and so a conviction
under the 32 Vic. (Out.) c. ;{2, alleging that the defoiuiant sold
spirituous liquors by retail without license at such a time and at
such a ph'co was hold sufficient without specifying the kind and
quantity of liquor sold. (2)
Though tho general rule of law is that the burden of proof lies
on, tho party substantially asserting the affirmative, there is an
e.Kception in the case of a prosecution for selling liquor without a
license; and tho burden of proving tho existence of a license,
where such is required to legalize tho act, is upon tho defendant.
It is for him to show liis license, and not for tho prosecutor to
make proof negativing its existence. (3)
Melliii|( <liirinK prohibited lioiirN.— It \» only the
holder of a license who can bo prosecuted for soiling on prohibited
days or in prohibited hours. (4)
When a defendant is charged with soiling liquor during pro-
hibited hours, there must be proof of tho license in order to justify
a conviction. (5) ; ^ v \;
(1) R. V. Hodgins, 24 Ont. R. 433(a). • : . , ■.
(2) R. V. Kiag, 20 U. C. C. P. 240 ; Re Donnelly, 20 U. C. C. P. 165.
(3) Re Barrett, 28 U. C. Q. B. 559 ; Ex parte Parke, 3 Allen, 237 : R. v
McNiool, ] 1 Ont R. 659.
(4) R, v. Duquette, 9 U. C P. R. 28 ; R. v. French, 34 U. C Q. B. 403.
(5) R. v. Williams, 8 Man. L. R. 342. 12 C. L. T. 282,
Bl)0 PRACTICAL (li;iI)E TO MACUSTKATEH.
Sections 54 and ftH of tlui Ontiirio Liquor f.irtme Act do not
Htithorizu tho huIo of intoxicating li(|iior to a lodger during ]iro-
hihitud houpN. The nioNt that can bu Haid in that a Hale to a lodger
does not mal^c liim an oti'endor. (1)
The Imperial Htatuto, HT-iW Vifc., c. 4!>, Hec. 30, providen that \w
liccnHcd person is liable to any |ienalty for supplying during pro-
hibited hours his private friends, bona fide entertained by biin, at
his own expense. Hut, when, on the break-up of a customer's
HUp})er party the landlord invited nine of his customer's guests to
wine, after hours, it was lield that he was riglitly convicted of
KEliMNU oi'EN, as he could not convert those people into jtrivate
friends. (2)
It has been held .that a constable who, by ortler, visits saloons on
Sundays to see whether or not the law with respect to the sale of
liquor is being obeyed is a bona fide traveller within the meaning of
the Act. (3)
The Licensing Acts generally contain some provisicui to enable
a licensee to serve drink to a bona fide traveller, on i)rohibitcd days-
or in prohibited hours.
The test whether a man is a bona fide traveller, who may bo
served with drink during prohibited hours, is the object of his
journey.
A bona fide traveller under tlio Knglish License Acta, is one who
travels three miles for business or for pleasure, and does not include
one who travels that distance solely with the object of obtaining
drink ; and the licensee who serves such a man, if, as in the case in
point, he knows the man's object, may be convicted of the ott'ence
of selling during prohibited hours. (4)
A man left his home on a Sunday morning and walked three
(|uarters of a mile to a railway station and thence took the train
to another station about 2A miles off, where ho was employed us a
porter. He afterwards left the station and walked to certain li-
(1) R. v. Southwick, 12 C. L. T. 173.
(2) Corbet v. Haijrh. 5 C. P. D. 50.
(8) R. V. Harris, 2 Brit. Col. L. R. 177.
(4) Pena v. Alexander, 5 R. (1893), 251. I Mon. Law Dig. 578.
'* [NTOXIUATINQ MQliOUH. 691
<!enHe(l pruiniNOH vvlioro \w wuh Horvod with hoor. Tho lituiiHi'd piv-
iniNOK worn K'mh timn a tnilo from tho Htutioii whoro h« wuh cm-
ployod, but more thiin throo miloH from \m rimidi'iu'o. Held that
he was a bona fide travollor within tho Kii/^liHh Licensing Act. (1)
NellliiK oft tht-^ |jl4'<<«iiN<'(l l*reiuiNeN. — A licoiinu to hoI!
intoxicating li([Uor oidy oxtendH to |)ormit ti 8jilo on tho promiHos
licoMHod. and not to otht^r promiHos forming no part of tho lioonsod
promiMOri, liiough Hiioh othor promiwos holong to tho sanio porson.
Tho flofondant, in an Ontario oaso, wan liconHod to ho!1 in and
upon promirtOH known aH tlio '■ Palmor Houho," which HtocMJ upon
tho front of a doop lot owned by tho dofon(hint, the rear part of
sudi lot huviiif^ boon ft)r man}' years oncioMod and UHod as a fair
j^round. Facing this ground and opening therein was a l)Ootii,
tho iuuU of whicii formed part of u fence which separated tiio fair
ground from tlio yard in tho roar of the defendant's hotel. The
distance between tho nearest out-building of tlm hotel *ind the
l»ooth was 50 yards, and it did not ajjpoar that tho booth was used
at all in connection with the hotel. A conviction for soiling liquor
without a license in tho booth was held proj)er, inasmuch as it was
no part of tho liconsod promises. (2)
A company was incorporated under tho Joint Stock Letters Patent
Act, H.S.O., c. 157, for establishing a driving park t« imi>rovo the
brood of horses, etc., and, for such purposes, to acquire the Duttbrin
Park property, on Duttbrin Street, Toronto, with power to erect a
<jlub house, and, subject to tho Jjiquor License Act, to maintain and
rent or It aso tho same, for social purposes, etc. ; and generally to
do all things incidental or conducive to tho objects aforesaid.
Held, that the charter did not authorize the company to have a
club house at any othor place than that spocitied in tho charter ;
and whoro, therefore, tho defendant was found in possession of and
soiling liquor at a place called the Occident JIall, on (iueon Street,
though claimed to be a club constituted under the charter, and
■of which the uefendant claimed to be the secretary, he was pro-
perly convicted under section 50 of the Liquor License Act
(1) Cowftp V. Atherton, 5 R. (1893), 86.
(2) R. V. Palmer, 4 U. C. Q. B. 262.
5\)2 I'llACTlOAL «H11I)E T<i MAUIHTIIATKH.
J{. S. ()., ('.. 1M4, (Out.), ol" uiilawi'ully ku('|»iiifi; li(|u»)r l()i*Halo,',l»artor
or (raHic, without a licouHt!. (1)
Tlio liii|Ktrial Act, .'{5 ;{(J Vic, c. !>4, irml<i!H it an oll'oiico for any
poimn to Holl or oxpONo for Halo by rotuil any intoxicating liquor
witliout l)cin/j; <iuly liccnwMl to hoII t lie Hanic, or to soil or cxpoHO
for Hale any intoxicating li(|U()r at any I'i.ack wiikiik he is not
AUTiioiu/Ei> iiv illH i.i(<ENHE To HEM, THE SAME ; and it has bcon
held that, a porson holding, under that Act, a rotail liccnso in one
town is not cntith»d (without another license) to have in another
town an oflice wiiere his agent takes orders only, aiul wiiich orders
are exoiuited at tlio head estalilishnH^tit. The facts were tlmse : S.
had in Worcester an estal)lishin<Mit duly Iic,«(nsed, and in Cheltenhani
he ha<l an ollice when' no licpiors wen! kt(|)t. An order was given
in (!heltenharn hy A., to whom the goods wi^re afterwards sent
direct from tlie estahlishinent in Worcester; and it was held that
the agent, in ( 'heltenhani, who received the order tlu^n^, from A.,
was rightly convi<'ted of stalling without a license. (2) And send-
ing liijuor to a |)lac«) where it was rallied for, the licensee taking
the money, was held to support a conviction for selling at an un-
licensed place. (3)
It is an oti'ence under tlie TAquor License Act, It. S. .(), c. 1!t4,
(Ont.), and anu'ndmonts, thereto, for a chemist or druggist to
allow intoxicating liquor, sold l»y him or in his possession, to ho
consumed in his shoj) hy the purchaser thereof; and it is not essen-
tial that 1h! should he registered ; and a conviction therefor wfts
sustained. (4)
A conviction for an otfcnce against the TAquor License Acts must
show jurisdiction in the nuigistrate, hy stating the place where the
oti'ence was committed ; and a clause providing that a »!onviction
shall not Wi void for defects in form or substance does not cure an
objection of this kind, but only applies when it can be understood
from tl>e conviction that it was made lor an oU'encc within the
jurisdiction of tin; convicting magistrate, (5)
(1) K. V. Charles, 14 C. L. T., 40.
(2) Hhellard v. Marks, W Q. B. I). 412 : 47 L. J. M. C. 91.
(I!) S«aKer v. Wliite, U\ L. T. (N.H.) 2(il.
(•») U. V. MoCay, 13 (.'. L. T. 2();i ; 23 Ont. R. 442.
(5) K. V. Yonnj:, n Ont. B. 1H4.
INTOXICATING MyilORS. 593
Where llie jiinH(li('ti()ii of tlio JtiHtieo appuai-od on {\\v conviiaioii,
the oHdiH-e Ix'iiig iillc^od (o huv(* Ikhui coimnittiMl at tlio town of
Moncton, wlicro it waH tricMl, and tin* conviction hcin^ in tlic loriii
]>n!Hchb«Ml hy tlio II. S. (N. M.) c. 13H, and the phicc olnahi Hpokon
of at the trial u|»|)earin^ to i)o known to ail parlicH, and there hav-
ing Imen no (»hJ(M'tion then nuido that it wawnot within 1 lie justice's
juriHdictioii, it was hehl that tlie Jurimlit^tion sutliciontiy appc^ared,
though tliere did not appear to i)e poHitiv(ievi(h»nce thai thts oll'enco
waH eoniniitted within the liniitH oC the town of Moncton. (I)
A (Ud'onchmt was Huinniarily eonvic^tod in N«'w iirunswick of
a viohiti(»n oft lie Canada Temperance Act. TliesutnnioiiH was served
on tiie defendant's wife at the (Uifendiinl'K hist phice of aho(U«, as
directed l)y Article 5(12 of the (!ode (p. 108, ante^. I'pon a rule for
a certiorari, — granted on an alHdavit of tJie defendant that from a
(hite previouH to the information until aftt^rthc hearing \w had been
(!ontiniiously o\it of the iirovim-c, in the State of .Maine, — it was held
that the convicting juslict* could not ac([uire any jurisdiction over
the person of the dtd'endant while he was out of the j»rovince and
that therefore the service was void and tlie conviction must he re-
moved. (2)
In .Nova Scotia, it has lieeii held that, — vvheni a summons for
selling li(|uor contrary tt> law was issued by two justices of the
peace, and t lu! case t ried before onti of tluiui aixl another justice
who had not signed the summons, — the conviction must be set
aside!. (.'{)
VVMiere a convicti(»n, — for unlawfully selling licjuor in violation
of the provisions of the* .Nova Scotia Liquor License Act, 1S8(!, and
amending ,\cts, — omitted to show that the otVenci! was ct)mmilcd
within !H» days from the date of the laying of thi* information, it
was held that tlu( conviction was bad. (4)
Where a defcMidanI was <onvicted for that \w did sc^ll liquor
" within !I0 days l»efore the 2Hth August, the date of the informa-
tion herein, to wit, between the 2i)th day of May, 18!K), and the
(1) Kjpnrk Diinlop, 3 Allen, 281.
(2) Exjuirle l-leminj;, 14 C. L. T. 1()0.
(3) WeekH v. Honliani, 2 Uuss. i»t Ches. .177.
(4) R. V. Adams, 13 C. L. T. 40(5.
594 PRACTICAL QUIDK TO MAQISTRATBS.
28th day of August, 1890, a motion was made to sot aside the con-
viction, on the ground that the time of the commission of the
offence was not stated in the conviction. Held, that this ground
did not cover the objection that ujion the face of the conviction
the offence might have been committed on a date burred by the
limit of the statute (1)
The defendant was detained in gaol under a warrant issued on a
conviction of a third offence against the Ontaiio Liquor License
Act, the warrant reciting the conviction in question and the first
conviction, and also the fact that subsequent to the first convic-
tion, on a day mentioned, the defendant was " again " convicted.
Held, that the warrant, which directed the levying of a fine and
the imprisunment of the defendant, and ordered among the costs
to be paid by him, costs of conveying to gaol, was good, and that
the word " again " was a sufficient statement that the conviction
recited was a second conviction. (2)
In oi'der to maintain a conviction for a third offence under sec.
94 of the (Quebec License Law, as amended by 50 Vic, c. 3, sec. 11
(now Article 926 It. S. (J,), the previous convictions need not have
been under the same license m)r during the same license year, but
may have been under a license of a previous license jear. (3)
A defendant was indicted and convicted, under Article 154 of
the Criminal Code, of an attempt by corrupt moans to dissuade
a witness from testifying upon certain prosecutions against the
defendant and another, for offences against the Ontario Liquor Li-
cense Act, R. S. O. c. 194. On a case reserved the defendant's counsel
contended that the defendant should not have been prosecuted
under Article 154 of the Code (which makes a corrupt interference
or attempt to interfere with a witness indictable and punishable
by TWO years' imprisonment), but that the prosecution should
have been under the provincial Act containing a i)rovi8ion against
tampering with witnesses, inasmuch as the provision in question in
the provincial Act was recognized in the Code, by Article 138, which
makes it an indictable offence (punishable by one years' imprison-
ment) to disobey any act of the Parliament of Canada or of any
(1) R V. Murphy, 13 C. L. T. 242 ; 24 N. S. R. 21.
(2) R. V. McLean, 14 C, L, T. 312.
(3) Desnoyers v. Bazin, 43 L. C. .1. 225 ; See R. v. Black, 4 U. C. Q. B. 180.
'\ / INTOXICATING LIQUORS. — SCOTT ACT. 595
LEGISLATURE of Canada. Held (following R. v. Lawrence, 43 U.
C. Q. B. 164), that the provision in question in the Ontario License
Act is still Ultra vires the provincial legislature, and that Article
138 of the Code was passed merely to cover any case not other-
wise provided for in the Code ; and the conviction of the defendant
under Article 154 of the Code was accordingly maintained. (1)
The Ontario Liquor License Act, as amended by 52 Vic. c IT,
(Ont.) sec. 2, empowers any policeman, etc., to enter at any time
any place where liquors are reputed to bb sold, or where he
believes that liquors are kept for sale or disposal contrary to the
|)rovi8ions of the Act, and to make searches in every part thereof,
as he may think necessary. But it has been held that these words
attbrd no jjrotcction to a policeman who invades a private house at
an unreasonable hour, and without a well founded and honest
belief that the law has been violated. (2)
Where, in Ontario, the defendants were committed for trial on a
chai'ge of obstructing a peace officer acting under a search warrant
issued on an information charging reasonable ground for the belief
that 8i3irituous liquors were unlawfully kept for sale in an un-
licensed house, it was held that the search warrant must be deemed
to have been issued under section 131 of the Ontario Liquor License
Act, R. S. O. 194 (amended by 55 Vic. [Ont.] c. 12), giving power
to force an entrance into the premises, but containing no power
to punish an obstruction, and that consequentlj' the proceedings
against the defendants for obstructing the officer must be under
Article 263 of the Code. (3)
The Canada Temperance Act. — Under the Canada
Temperance Act (R. S. C, c. 106) and its amendments (51 Vic, c.
34 and c. 35) one-fourth of the qualified Dominion electors of a
county, or of a city, may petition the Governor-treneral for an
order-in-council to prohibit the sale cf any intoxicating liquor in
such county or city. The petition is embodied in a notice addressed
and sent to the Secretary of State, after ten days' deposit thereof,
for public examination, in the office of the sheriff or registrar of
(1) R. V. Holland, 14 C. L. T. 294.
(2) White V. Beckham, 14 C. L. T. 475.
(3) R. V. Hodge, 13 C. L. T. 204.
596 PRACTICAL GUIDE TO MAGISTRATES.
deeds, pursuant to a two weeks' notice in two local newspapers.
The Governor-in-Council may then, by proclamation published
three times in the Canada Gazette, and tiikeb times in the
Official Gazette of the province whore the county or city is situated,
direct a poll to be held for taking the votes of the electors for and
against the adojition of the petition.
In the case of a city which is within the territorial limits of a
county, the Act may be brought into force, as to such city, upon
petition and vote of the electors of such city alone. (1)
If, by the electors of the county or city to which it relates, the
petition be adopted, the Governor-in-Council may, at any time
after the expiration of sixty days from the day of its adoption,
declare, by order-in-council published in the Canada Gazette, that
the second part of the Act shall be in force and take effect in such
county or city fi:om and after the expiration of certain specified
delays, which vary according to whether there are or are not any
liquor licenses then in force in such county or city, and according
to the time of the expiration of such licenses, if any. (li. S. C, c.
10(5, sec. 95.)
A poll had been held in the county of Kings, N.S., and the
Governor-in-Council declared by JprocUimation that the second
l^art of the Act should be in force and take effect " upon, from and
after the day on which the .;nnual or semi-annual licenses now in
force in said county will expire."' There were then no licenses in
the county, and there had been none for years previously. Meld,
that no day had been fixed, either by the statute or by proclama-
tion, for bringing the second jiart of the Act into force.( 2)
No order in council issued under the Act can be revoked until
after the expiration of three years from the date of the coming
into force, under it, of the second part of the Act ; and no petition
for any such revocation can be submitted to the vote of the elec-
tors more than thirty days before the expiration of the three
years. (3) '
When a petition for revocation is adopted by the electors of the
(1 ) Ex parte Dalton, 27 S. C. N. B. 426.
(2) R. V. Lyons, 5 Russ. & Geld. 201.
(3) R. g. C c. 106, sec. 96, as amended by 51 Vic, c. 35, sec. 3.
INTOXICATING lilQIJORS. — SCOTT ACT. 597
county or city to which it relates, the Governor in Council may,
at the expiration of thirty days from its adoption, declare, by
order-in-council, published in the Canada Gazette, that the second
part of the Act shall be no longer in force. (1)
While the Act continues in force in any county or city, no
PERSON, by himself, his clerk, servant or agent, shall, therein,
KXPOSE OR KEEP FOR SALE, or directly or indirectly, on any pre-
tence or upon any device, sell or barter, or, in consideration of
the purchase of any other property, give, to any other person,
any intoxicating liquor. (2) And every one so exposing or keep-
ing FOR SALE, or so SELLING Or BARTERING or GIVING any intoxi-
cating liquor, is liable, on summary conviction, to a penalty of not
LESS than S50 for the first offence, (3) of not less than $100 for
the second offence, and to imprisonment not exceeding two
MONTHS for the third and every subsequent offence. (4) And all
intoxicating liquoi-s in respect to which any such offence has been
committed, and all kegs, barrels, bottles, etc., are subject to for-
feiture. (5)
Provision, however, is made for the sale — by druggists and
VENDORS THERETO SPECIALLY LICENSED — of WINE for exclusively
sacramental purposes; (6) and for the purchase and sale by
LEGALLY QUALIFIED PHYSICIANS, CHEMISTS OR DRUGGISTS (under
certain special restrictions) of the following articles : (a.) the
OFFICIAL PREPARATIONS of the authori/.ed pharmacopanas, when
made of full medicinal strength, and sold only for medicinal
T'jRPOSES ; (6) any patent medicine, unless known to the vendor to
be capable of use as a beverage, the sale of which is a violation of
the Act ; (c.) eau de cologne, bay rum or other perfumery,
(1) 51 Vic. c. 35, sec. 9.
(2) R. 8. C, c. 100. sec. 99.
(3) The words "not less than $oO" mean just $50; and a conviction im-
posing $75 was quashed as being beyond the magistrate's jurisdiction. — R.
V. Smith, 16 Ont. R. 454.
(4) It has been held that as the Act does not make it an offence to buy
liquor, a purchaser cannot be found guilty of an offence in respect of a sale
of liquor made to ium. — R. v. Heath, 13 Ont. R. 471. See also Ex parte, Bar-
ker, 11 C. L. T., 136.
(o) R. S, C, 0. 106, sec. 100.
(6) lb., a. 99, sub-sec. 3.
.( -, ''• V
698 ; ! PRACTICAL guide to magistrates. '
LOTIONS, extracts, VARNISHES, TINCTURES, or Other pharmaceu-
tical preparations containing alcohol, and not intended for use as
beverages; (f/.) methylated spirits for pharmaceutical, chemical
or mechanical uses; and (e.) spirituous liquors or alcohoi.
for PURELY medicinal PURPOSES, Or for bona fide use in some art,
trade or manufacture. (1) And there are special provisions en-
abling producei"8 of cider, distillers, brewers, vine-growing com-
panies, manufacturers of pure native wines, and licensed wholo-
sale dealers to make certain sales of their liquors. (2)
Prosecutions under the Act are summary and must be com-
menced within three months after the alleged ott'enco. (3) '
Prosecutions may be brought before any Judge of the Sessions
of the Peace, recorder, police magistrate, stipendiary magistrate,
sitting magistrate, commi.ssionor of a parish court, two justices of
the peace or any magisti'ate having the power or authority of two
or more justices of the peace having jurisdiction where the otfence
was committed. (4)
As to warrants to search for and power to seize and forfeit and
destroy intoxicating liquors and the keg.s, etc., containing them,
see sections 108 and 109 of the Act, as amended by 51 Vic, c. 34,
sees. 10 and 11.
Section 115 of the Act shows the procedure upon an infoi-mation
for committing any offence against the Act, in case of a previous
conviction or convictions being charged
There is no power to punish as for a third offence unless there
have been two prior convictions for offences of the same nature,
and where neither the record of conviction nor the evidence shows
this, the conviction must be quashed. (5)
Section 110 of the Act makes it sufficient to state the unlawful
sale of intoxicating liquor without stating the name or kind of
such liquor. So, that, where a conviction under the Act stated
that the defendant had sold "spirituous or other intoxicating li-
(1) 51 Vic, r. 34, sec. 5; 61 Vic, c 35, sec. 11 ; 55-56 Vic, c 26.
(2) R. S. C, c 106, sec. 99, eub-secs. 5-8.
(3) Ik, sees. 106, 107 (as amended by 51 Vic, c 34, sec- 9),
(4) lb; sec. 103 (cm amended by 51 Vic. c. 34, sec. 6.'
(5) R. V. Clark, 15 Ont. R. 49.
INTOXICATING LIQUORS. — SCOTT ACT. 59»
quors " apd the proof was a sale of brandy, the conviction was.
amended, under section 118 of the Act, by striking out the word»
" spirituous or other." (1)
Pro4»t*. — When a bar, counter, beer pumps, kegs or other ap-
pliances, similar to those used in liquor taverns and shops are
found in any premises in any municipality where the Act is in
force, any intoxicating liquor that may be also found there shall
be deemed to be kept for sale in contravention of the Act unless
the defenruint proves the contrary ; and the occupant of such ])re-
mises shall be taken conclusively to be the pei-son who keeps therein
such liquor for sale. (E. 8. (-., c. 106, sec. 111.)
Before a person can bo legally convicted, under the Act, of selling
liquor, it must be proved, before the magistrate, that the second
part of the Act is in force, by the production of the Canada Gazette
containing the proclamation. (2)
The fact of the Act having come into force must be jiroved as
any other fact necessary to give jurisdiction. ('•?) See sees. 8 & 9
of the Can. Ev. Act, 1893, as to proof of proclamations.
It is provided by section 120 of the Canada Temperance Act that
every one who, having violated any of the provisions of the Act or
of any act in force in any province respecting the issue of licenses for
the sale of fermented or spirituous liquors, compromises, compounds
or settles, or offers or attemj)s to compromise, compound or settle
the oifence with any person or persons, with the view of prevent-
ing any complaint being made in respect thereof, or, if a complaint
has been made, with the view of getting rid of such complaint, or
of stopping or having the same dismissed for want of prosecution
or otherwise, is gnilty of an offence against the Act, "ud liable, on
conviction thereof, to imprisonment at hard labor for m\y term
not exceeding three months ; and that every one who is concerned
in or is a party to the compromise, composition or settlement men-
tioned in this section, is guilty of an offence, and liable, on convic-
tion thereof to imprisonment for any term not exceeding three-
months. , r
(1) R. V. Blair, 24 P. C. N. B. 71.
(2) R. V. Histeen, 22 S. C. (N.B.) 51.
(3) R. V. Bennott, I Ont. R. 445 ; R. v. Welsh, 2 Ont. R. 200.
fiOO PRACTICAL OUIDE TO MAGISTRATES.
Section 121 ])rovi(lcH that ovorj' ono who, on any pvoHccution
under any of the said Acts, tampers with a witness, eitlicr before
i)r after he is suinmoned or a])pear8 as such witness on any trial or
proceeding under any such Act, or by the otter of money, or by
threats, or in any other way, either directly or indirectly, induces
or attempts to induce any such witness to absent himself, or to
swear falsely, shall incur a penalty of tifty dollars for each offence.
In a proceeding under this .section for tampering with a witness
it is sufficient to i)rove that an information has been laid and
a summons issued for a violation of the Act, and that the party
tampered with was summoned to be a witness on the hearing of the
(charge ; and whore a conviction under this .section, for tampering
with a witness, charged the defendant with offering the witness
money to induce him to lea.o the country and also with attempt-
ing by threats to induce him to absent himself, it was held that
though this was a charge of two offences, it was cured by Article
9U7 of the Code. (1)
Certiorari aii<l a|»|»eal restricted. — No conviction,
judgment or oi'dcr in respect of any offence against the Act shall
be removeil by certiorari or otherwise into any court of record, and
no appeal is allowed from any such conviction, judgment or order
to any court of general sessions or other court whatsoever, if the
conviction h^f Vteen made by a stipendiary nuigistrate, recorder,
judge of sessions, police magistrate, sitting magistrate, commis-
sioner of a parish court, or any magistrate or officer having the
powers of two or more justices of the peace. (11. S. C, c 106, sec.
119.) .
This section takes away the right to a certiorari, except where
the magistrate proceeds without jurisdiction (2), or where there is
no offence shown. (3)
It has been held that the refusal by a justice to allow the de-
fendant to give evidence on a trial of an infoi'mation under the
(1 ) Ex parte White, 30 S. C. N. B. 12,
(2) R. V. Saunderson, 12 Ont. R. 178.
(3) R., V. Elliott, 12 Unt. R. 524.
INTOXICATING LIQUORS. — SCOTT ACT. COl
Act, is a matter going to tiio justice's jurisdiction, and that, there-
fore, a certiorari will Ho to remove the conviction, (1)
Where a conviction for selling intoxicating liquor contrary to the
jirovisions of the Act, contained no reference to the Act, did not
show wht re the offence was committed, and merely adjudged that
the defendant pay 8100 for selling intoxicating liquors, the Court
held the conviction bad, and that the information and warrant
could not be looked at to see that an offence had been committed. (2;
A druggist, licensed to sell intoxicating liquors, on prescription,
for medicinal purposes, as authorized by the Canada Temperance
Act, was convicted of violating the jjrovisions of the second ]>art of
the Act, on evidence that his clerk had sold intoxicating liquor for
other than medicinal purposes. At the trial the clerk testified
that he had been directed by his employer not to sell liquors except
on prcscrijttion. On this point the defendant applied for a certiorari,
and moved to quash the conviction ; and it was held by the Court,
in quashing the conviction, that t here was no offence proved against
the applicant, that the act of selling was, under the circumstances,
the indeptMident crime of the clerk, and that, therefore, the magis-
trate had no jurisdiction. (3)
An application was made for a rule for a certiorari to remove a
conviction for a third offence against the Canada Temperance Act,
on the ground that there was no evidence that the defendant was
the same person who had been convicted of the previous offences
stated in the information. At the trial, certificates of these pi-e-
viouH convictions against the defendant were put in evidence, as
pi'ovided for by the Act. For the defence, it was contended that
proof should have been given to show that the defendant was the
person named in the previous convictions. Held, that the same
name in the pi-ovious convictions was some evidence of the iden-
tity of the defendant, and in the absence of proof to the contrary,
the niagisti'ate was justified in convicting him. (4)
Three summary convictions having been made b}^ a stipendiary
(1) Ex parte Legere, 27 S. C. N. B. 292.
(2) Woodlock V. Dickie, 6 Rusi. & Geld. 86.
(:^) Ex parte McKeen, 13 C. L. T. 24 J.
(4) Ex parte Dugan, 13 C. L. T. 249.
(102 PRACTICAL UUIUI TO MAOIHTKATEH.
mHgiBtrato in ami for the county of Pictoii, tigainHt a defoiidani
I'or violation of tlie Canada Temperance Act, u motion was madv for a
certiorari to remove them into the Superior Court to be quanhed on
the ground, in particular, that the magistrate was not legally
appointed, the municipality of IMctou county for which lie was act-
ing not having hecii ('onstituted a |)oli(H< division either prior to or
at the time of his appointment under the Acts of the Jjegislature
of Nova Scotia for 18»1, c. 48, Sec. 2.
On reference to the history of the appointment of stipendiary
magistrates in Nova Scotia, and the erection of the police divisions
over which tliey were to preside, and having regard to the statutory
provision that the territorial jurisdiction of the county magistrate
should he constituted either prior to or concurrently with his ap-
pointment, and it appearing by affidavit that this had not been done,
it was held that the nmgistrate's a]>pointment was invalid, and that
having acted without jurisdiction the certiorari must issue and that
the conviction on its return into court should be<iua8hed. (1)
W. was summaril}' convicted under the Canada Temperance Act.
The only objections to the con\ietion were, 1, That a justice of the
peace can tr}' a summary conviction case oidy in the parish where
he resides, and, 2, that a certiticate of dismissal for a similar
offence covering the period charged was a bar to the second informa-
tion. In this case, the information was for selling liquor on the
8th July, and at the hearing the defendant put in evidence a cer-
tificate of dismissal of an information for a like otfeiice " within
three months last jtast, to wit, on the TthJuly." Helil that a justice
of the peace can hear a summary conviction case in any part of
the county for which he is a justice and that a certificate of dis-
missal covering three months is no bar to a subsequent infornia-
tion for a like ott'ence under the Canada Temperance Act committed
during that period unless it is shown that the information i^ for
the same olience. (2)
By a summary conviction for an oflf'ence against the Canada
Temperance Act the defendant was ordered to pay a fine of $50 and
costs, and in default of })ayment his goods were to be distrainetl.
(1) R. V. Roberts, 14 C. L. T. 481.
(2) Ex parte Whalen, 14 C. L. T. 107
INTOXICATING MQtIORW. 603
nnd in dofaiilt of diHtroKH he was to bo imprisoned. Tim Hno not
itoing paid a diwtreHH warrant was isHiicd to a t'onHtal)le to whom
tho defendant pointed out on his premises a cask of wiiisitey, worth
$160, as a siifHcient distress. The constal»le refused lo levy on tho
whiskey and returned the distress warrant with tho endorsement
tluit he luid searched for and could not tind sutWciont goods of the
defendant upon which to levy tho tine and costs. The magistrate
thereupon issued a warrant of commitment, under which the de-
fendant was imprisoned.
Upon application, on tho return of a habeas corpus, for an order
to discharge the defendant, it was contended that the constable was
not bound to levy on the whiskey, as the sale of it by him under
the distress warrant would of itself bo an offence against the
Canada Temperance Act. \in\ the court hold that tho whiskey was
l)roporty that could be properly taken under tho distress warrant
and that there was nothing in the Canada Temperance Act lo pre-
vent the sale thereof for judicial purposes; and tho defendant was
discharged, as being wrongly in custody. (1)
Indians. — As to the punishment of perscms for selling or suj)-
plyi!ig intoxicating li(iuors to Indians, and the punishment of
Indian'^ for making or having intoxicants or selling them to other
Indians, see the Indian Act. II. S. C. c. 43, sees. !)'!-!•(!, and 51 Vic.
c. 22. sec. '1.
Where an information, laid against the defendant under the Indian
Act, charged that hesoltl liquor to two persons on the 5th July and
to two persons on the Htli July, and the Justices, notwithstanding
that the defendants counsel objected to tho information on this
ground, heard evidence in resjiect of all the offences so charged,
then amended the information by substituting tho 8th August for
the Sth July, proceeded and heard evidence in respect of tho sub-
stituteil charge, and dismissed it, but convicted the ilefemlaut for
selling to two persons on tho Sth July, tho conviction was quashed,
the Court holding that it was the duty of the Justices, when tho
objection was taken, lo have amendetl the information by striking
out one or other of the charges and to have then heard tho evidjuee
a])plical)lo to the remaining charge only. (2)
[1) Ex parte Fitzp&trick, 14 C. \ J. T.o I.
(2) R. V. Alward, 14 C L. T., 338.
- ■ 89
*'<I4 I'KAOTtOAr, orrOR m MAmMTRATES.
Till' Canada Temperance Art can have no o|K'ratii»n wlioro (liu
Indian Act is in t'ono. (I)
I'lrm.ii^ WoitKM, — Ah to proliihilinu; (liy in'oclaniation of tho
(JoviTiior (it'ncral in Council), tlu> Kale t>t' inloxicatinjtf liquor in
till* vicinity of any puhlic work, si>o U. S. C c. 161, socs. liMK.
KIDNAI'l'INri.
14i4liiii|»|»lii}(. — Kv(<ry ono Ih /^^niilty of an in(lictal)l(> otloiifo
and lialilo tosi'von yi-ars' iiuprisonnuMit \\\w,withwit lawful authority,
forciliiy Hi'izi's and contini'H oi- iniprison.s any other ]>orHou within
Caiuida, or kidnu)m any other ])erH()n with intent : —
(a) to lause Huch other porHon to bo seeretly eontined or iinpri-
Honed in Canada aguinHt his will ; or
(6) to cause sueh other person to be unlawfully sent or trans-
ported out of Caiuida against his will ; or
(c) to onnse such other person to bo sold or captured as a slave,
or in any way held to service against his will.
2. Upon tho trial of any oftbnco under this section the non-resis-
tance of the person, so kidnap[>e<l or unlawfully contined, thereto,
shall not be a defence, unless it appears. that it was not causi'd by
threats, duress or force or exhibition of force. (Code, Art. 2(»4.)
The intent applies as well to the seizing and ct)ntining or inipri-
woning as to the kidnapping (2)
LANDI-Oai) AND TENANT.
Tln't't by TciiaiitN or li04l|{;«>rN. — Kvery one who steals
any chattel or fixture let to be u.sed by bim or her in or with any
house or lodging is guilty of an indictable ort'once and liable to two
years' imprisonment, and, if the value of such chattel or fixture
exceeds the sum of twenty-five dollars, to four years" imprisonment.
(Code, Art.;r22.)
liiJiirioN to biiildiii^N by t<>iiaiitM, i>tc.— Kvery one
is i^uilty of an indictable ott'cnce and liable to five years' imprison-
(1) Re Metcalfe, 17 Ont. R. 357.
(2) Cornwall v. R., 33 U. C. Q. B. 106 ; Buib. Dig. 246.
r,ANI»S MAIIKH. — LEVYINO WAR, 6()6
im^iil, \vli(», lu'iiig poMMOHsi'd of any (IwclliiijLC-lioiiw or^'othor build-
ing, or |iar( ol any (Iwciiing-houso oroihor imilding wiiicli is Imilt
on lands Hultjcct lo u mortgage oi- whicdi is lu'ld \'i>v any term of
yearn or otlier K-hh tei-in, or at will, or held ovi'r after the terminu-
tion of any tenancy, wilfully and to the projudiee of the niortgagou
i'\- ownei- : —
(a) pulls down or demoliHlieH, or liegins to^pull d(»wn or (lumolish
the same or any pin't thereof, or removes oi" liei,'inM to remove the
Hunu) or any part thereof from the premise.s on whicii it is erected ;
or
(6) pulls down orsevers from the fretdiold any fixture Hxod in
or to Hueh dwi'lling-hoUMe or huilding, or part of hucIi dwelling-
house or huilding. (Coile. Art, 5(14.)
r.A.NO MAUK8.
lii|uri<'Nlo liiiidiiiarkNNliowiiiK;tliol»oiiiiduri<'N
of a |»r4»viii<*«s county, <'itj, fo%«ii, «'l<«,— (Soo Code,
Articles r)(»5 and 5(Ki.)
IiiJiirif'N to fViKM'N. wuIIn or |>om1n oii tli(> l»oiiii«l-
ary of any land. «»<<•• — (See Code, Article 5(>7.)
r,AUcE.\v
See Theft, ;;y5^
LEVYINU WAR.
Kvery suhjeet or citizen of aiij' foreign state or country at peace
with Her Majesty, who —
(a.) is or continues in arms against Her Majesty within Canada;
or
(6.) commits any act of hostility therein ; or
(c.) outers Canada with intent to levy war against Her Majesty,
or to commit anj' indictable offence therein for which any person
would, in Canada, be liable to sufi'or death , and
Every subject of Her Majesty within Canada who —
\d.) levies war against Iler Majestj' in company with any of the
--\.-
606 PRACTICAL GUIDE TO MAGISTRATES.
subjects or citizens of any foreign state or country at peace with
Her Majesty : or
(e.) enters (]!anada in company with any such subjects or citizens
with intent to levy war against Her Majesty, or to commit any
such offence therein ; or
(/.) with intent to aid and assist, joins himself to any person
who has entered Canada with intent to levy war against Her
Majesty, or to commit any such offence therein, is guilty of an in-
dictable offence and liable to suffer death. (Code, Art. (S.)
Pei*80ns offending against the provisions of this article may be
tried and punished either by any Superior Court of C minal Juris-
diction, or by a Militia court martial. (Code, Articles 539, 540 ;
E. 8. C, c. 14b*, sees. 6 and 7.)
LIBEL.
Blasphemous I^ibel. — (See Blasphemy, ante, p. 478.)
Defamatory lilbel. — A defamatory libel is matter pub-
lished, without legal justification or excuse, likely to injure the
reputation of any person by exposing him to hatred, contempt or
ridicule, or designed to insult the person to whom it is published.
2. Such matter may be expressed either in words legibly marked
upon any substance whatever, or by any object signifying such
matter otherwise than by words, and may be expressed either
directly or by insinuation or irony. (Code, Art. 285.)
Publishing a libel is exhibiting it in public, or causing it to be
read or seen, showing or delivering it or causing it to be shown or
delivered, Avith a view to its being read or seen by the person
defamed or by any other person. (Code, Art. 286.)
Privileged eommnnlcatlons — Invited or chal.
Ien8;ed publleatlons. — No one commits an offence by pub- .
liishing defamatory matter on the invitation or challenge of the
person defamed thereby, nor if it is necessary to publish such
defamatory matter in order to refute some other defamatory state-
ment published by that person concerning the alleged offender, if
such defamatory matter is believed to be true, and is relevant to
LIBEL. 607
the invitation, challenge or the required refutation and the pub-
lishing docs not in manner or extent exceed what is reasonably
sufficient for the occasion. (Code, Art. 287.)
PubliNhliiK Im Courts of Justice.— No one commits
all ott'ence by publishing any defamatory matter, in any proceed-
ing held before or under the authority of any court exercising
judicialaut hority, or in any inquiry made under the authority of
any statute or by order of Her Majesty, or of any of the <lepart-
mci ,s of Government, Dominion or Provincial. (Code, Art. 288.)
l-nblishinj^ Parliauientary Papers.— Xo one com-
mits ; n offence by publishing to either the Senate, or House of
Commons, or to any Legislative Council, Legislative Assembly or
House of Assembly, defamatory matter contained in a petition io
any such body, or by publishing by order or under the authority
of any such body any paper containing defamatory matter or by
publishing, in good faith and without ill-will to the person defamed,
any extract from or abstract of any such paper. (Code, Art. 289.)
Fair Reports of 1' oceediuj^s of Parliauient
and Courts. — No one ( ommiis an offence by publishing in
good faith, for public information, a fair report of the proceedings
of the Senate or House of Commons, or any committee thereof, or
of any such Council or Assembly, or any committee thereof, or of
the public proceedings pbelihinarv or final heard before any
court exercising judicial authority, nor by publishing, in good
faith, any fair comment upon any such proceedings. (Code, Art.
290.)
This rule applies to all courts of justice, superior or inferior. (1)
It is immaterial whether the proceeding be ex parte, or not ; and
recent decisions in England, — where the law, as to reports of pro-
ceedings in courts of justice, is not so wide as ours, as now
expressed in the above Article, — show that if is also immaterial
whether the matter be one over which the court has jurisdiction or
not.
Formerly, the law was not construed so as to privilege reports
of ex parte proceedings before police magistrates or justices of the
(1) Lewis V. Levy, E. B. & E. 537; 27 L. J. Q. B., 287.
608 PRACTICAL OUIDE TO MAGISTRATES.
pjace ; and many Judges, by thciv dicta, denied any privilege to fair
and accurate reports of ex" joar^e proceedings, even in the superior
courts ; (1) but other judges have since taken a dift'eront view. (2)
The hiw became settled, by the decision in Usiil's case, in which
it was held that the privilege extended to all bona fide and correct
reports of all proceedings in a magistrate's court, whether ex parte
or otherwise. (3)
Fair Kcportft of JPubllc jVIeetIii}i;s. — No one com-
mits an olt'once by publishing in good faith, in a newspaper, a fair
report of the proceedings of any public meeting lawfully convened
for a lawful purpose and open to the public, and if such report is
fair and accui*ate, and if the publication of the matter complained
of is for the public benefit ; provided the defendant does not refuse
to insert, in a conspicuous place, in the newspaper in which the
report appeared, a reasonable letter or document of explanation or
contradiction by or on behalf of the prosecutor. (Code, Art. 291.)
Fair DlHCllStsioil. — No one commits an offence by publish-
ing any defamatory matter which he, on reasonable grounds, be-
lieves to be true, and which is relevant to any subject of public
interest, the public discussion of which is for the public benefit.
(Code, Art. 292.)
Fair Coninient. — No one commits an offence by pubHsh-
ing fair comments upon the public conduct of a person who takes
part in public affaii'S ; nor by publishing fair comments on any
published book or other literary production, or any com position or
work of art or performance publicly exhibited, or any other com-
munication made to the public on any subject, if such comments
are confined to criticism on such book or literary production, com-
position, work of art, performance or communication. (Code, Art.
293.)
CoMMEm and criticism on matters of public interest stand on a
different footing from reports of judicial or parliamentary pro-
(1) Maale, J., in Hoare v. Bilverlock, 9 C. B. 23, Abbott, C. J., in Duncan
v. Thwaites, 3 B. & C, 5o6.
(2) Cockburn, C. J., in Waion v. Walter, L. R. 4 Q. B. 87 ; and Lawrence
J., in R. v. Wright, 8 T. R. 298.
(3) Usill v. Hales, Usill v. Breasley, & Usill v. Clarke. 3 C. P. D., 206-324,
47 L. J., C. P. 323, 380.
LIBEL. 609
ceedings. A report is tho mcchjiiiical reproduction, more or less
condensed or abridged, of what has actually taken phice. comment
is the judgment passed on tho circumstances reported by one who
has applied his mind to them, fair reports are privileged com-
munications ; while fair comments, if on matters of public interest,
are as such no libels at all. (1)
Necking Ueiiiedy for Orievance. — No one commits
an offence by publishing defamatory matter for the purpose, in
good faith, of seeking remedy or redress for any private or public
wrong or grievance from a person who has, or is reasonably believed
by the i)erson })ublishing to haoe, the right or be under obligation
to remedy or redress such vvrong or grievance, if the defamatory
matter is believed by him to be true, and is relevant to the remedy
or redress sought, and such publishing docs not in manner or isx-
tent exceed what is reasonably sufficient for the occasion. (Code,
Art. 294).
AnHwers to Inquiries. — No one commits an offence by
publishing, in answer to inquiries made of him, defamatory matter
relating to some subject as to which the pei'sou by whom, or on
whose behalf, the inquiry is made has, or on reasonable grounds is
believed by the pei'sou publishing to have, an interest in knowing
the truth, if such matter is published for the purpose, in good faith,
of giving information in respect thereof to that pei'son, and if such
defamatory matter is believed to bo true, and is relevant to the
inquiries made, and also if such publishing does not in manner or
extent exceed what is reason"'" ly sufficient for the occasion. (Code,
Art. 295.)
If A., is about to have dealings with B., but first comes to C, and
confidentially asks him his opinion of B., C.'s answer is privileged.
(2)
Giving; Information. — No one commits an offence by
publishing to another person defamatory matter for the purpose
of giving information to that person with respect to some subject
as to which he has, or is, on reasonable grounds, believed to have,
such an interest in knowing the truth as to make the conduct of
(1) Odg. Lib. &S1. 36.
(2) Story v. Challands, 8 C. & P. 234.
610 PRACTICAL GUIDE TO MAGISTRATES.
the person giving the information reasonable under the circum-
stances : Provided, that such defamatory matter isx-elevanttosuch
subject, and that it is either true, or is made without ill-will to the
person defamed, and in the belief, on reasonable grounds, that it is
triu'. (Code, Art. 29(!).
$4elliiiK perio«liealN containing defamatory
I^ihel. — Every proprietor of any newspaper is presumed to be
criminally responsible for defamatory matter inserted and pub-
lished thei-ein, but such presumption may be I'obutted by proof
that the particular defamatory matter was inserted without such
proprietor's cognizance, and without negligence on his part.
2. General authority given to the person actually inserting such
defamatory matter to manage or conduct, as editor or otherwise,
such newspajier, and to insert therein what he in his discretion
thinks tit, shall not be negligence unless it be proved that the pro-
prietor, when originally giving such general authority, meant that
it should extend to inserting and publishing defamatory matter, or
continued such general authority knowing that it had been exer-
cised by inserting defamatory matter in any number or part of
such newspaper.
3. No one is guilty of an oit'ence by selling any number or part
of such newspaper, unless he knew either that such number or
part contained defamatory matter, or that defamatory matter was
habitually contained in such newspaper. (Code, Art. 297.)
ISellini; books containing defamatory matter.
— No one commits an offence by selling any book, magazine,
l>amphletJor other thing, whether foi-ming part of any periodical
or not, although the same contains defamatory matter, if, at the
time of such sale, he did not know that such defamatory matter
was contained in such book, magazine, pamphlet or other thing.
2. The sale by a servant of any book, magazine, pamphlet or
other thing, whether periodical or not, shall not make his employer
criminally responsible in respect of defamatory matter contained
therein, unless it be proved that such employer authorized such
sale knowing that such book, magazine, pamphlet or other thing
contained defamatory matter, or, in case of a number or part of a
periodical, that defamatory matter waa habitually contained in
.such periodical. (Code, Art. 298.)
LIBKL. — LOTTERIES. 611
When truth in a defence. — It Bhall be a defence to an
indictment or information for a defamatory libel that the publishing
of the defamatory matter in the manner in which it was published
was for the public bei^eht at the time when it was published, and ;
that the matter itself was true. (Code, "Art. 2))1>.)
Extortion by defainiatory libel. — Kvery one is guilty
of an indictable offence and liable to two years' imprisonment, or to
a fine not exceeding six hundred dollars, or to both, who publishes
or threatens to publish, or offers to abstain from ])ubli8hing, or
offers to i>revcnt the publishing of a defamatory libel with intent
to extort any money, or to induce any person to confer upon or
procure for any person any appointment or office of profit or trust,
or in consecjuence of any person having been refused any such
money, appointment or office. (Code, Art. 300.)
PnniNliinent of* defamatory lil»el.— Every one is
guilty of an indictable offence and liable to two years' imprison-
ment or to a fine not exceeding four hundred dollars, or to both,
who publishes any defamatory libel knowing the same to be false.
(Code, Art. 301.)
Every one is guilty of an indictable offence and liable to one
year's imprisonment, or to a fine not exceeding two hundred
dollars, or to both, who ])ublishes any defamatory libel. (Code,
Art. 302.)
LOTTERIES.
Every one is guilty of an indictable offence and liable to two
years' imprisonment and to a fine not exceeding two thousand
dollars, who —
(a) makes, prints, advertises or publishes, or causes or procures
to be made, printed, advertised or published, any proposal, scheme
or plan for advancing, lending, giving, selling or in any way dis-
jiosing of any property, l)y lots, cards, tickets, or any mode of
chance whatsoever ; or (b) sells, barters, exchanges or otherwise
disposes of, or causes or procures, or aids or assists in the sale, bar-
ter, exchange, or other disposal of, or offers for sale, barter or ex-
change any lot, card, ticket or other means or device for advanc-
ing, lending, giving, selling or otherwise disposing of any property,
by lots, tickets, or any mode of chance whatsoever.
612 PRACTICAL GUIDE TO MAGISTRATES.
2. Every one is guilty of an ott'once and liable on summavy con-
viction to a penalty of twenty dollars, who buys, takes or receives
any such lot, ticket or other device as aforesaid.
S. Every sale, loan, gift, barter or exchange of any property, by
any lottery, ticket, card or other mode of chance depending upon
or to be determined by chance or lot, is void, and all such propei-ty
so sold, lent, given, bartered or exchanged, is liable to be forfeited
to any person who sues for the same by action or information in
any court of competent jurisdiction. ^
■i. No such forfeiture shall affect any right or title to such prop-
erty acquired by any bona fide purchaser for valuable con,sideration
without notice. ,
5. This section includes the printing or publishing, or causing to
be printed or published, of any advertisement, scheme, proposal or
plan of any foreign lottery, and the sale or olfer for sale of any
ticket, chance or share, in any such lottery, or the advertisement
for sale of such ticket, chance or share.
fi. This section does not apply to (a) the division by lot or
chance of any property by joint tenants or tenants in common, or
persons having joint interssts {droits indivis) in any such property ;
or (bj RAFFLES for pr.'ZEP OF SMALL VALUE at any BAZAAR held for
any chai-itable object, n' permission to hold the samje has been ob-
tained from the city or other municipal council, or from the mayor,
reeve, or other chief officer of the city, town or other municipality
wherein such bazaar is held, and the articles raflled for thereat have
first been offered for ssJe and none of them are of a value exceed-
ing FIFTY DOLLARS ; ov (c) any distribution by lot among the mem-
bers or ticket-holders of any incorporated society established for
the encouragdient of art, of any paintings, drawings or other
work of art produced by the labour of the member« of, or publish-
ed by or under the direction of such incorporated society ; or (<i)
the CreditFoncier Bas-Canada, or to the Credit Foncier Franco-
Oanadien. (Code, Art. 206.)
Article 2920 of the Eevised Statutes of Quebec (as amended by
53 Vic. c. 36, Que.) provides that whenever it is intended to hold
a bazaar or lottery, the object whereof is to assist in the construc-
tion or support or to aid in the payment of the debt of any church,
LOTTERIES. 613
chiipel or other religious building, of an hospital, of an uHyinm or
any charitable establishment whatever or of any establishment of
public interest or for instruction, or of any educational establish-
ment or of a colonization society, within the limits of the province,
such bazaar or lottery may take place without any BESTiiiCTtoN
AS TO AMOUNT provided always that if they are of a permanent
character, it shall be necessary to obtain the previous permission
of Lieutenant-Governor in Council ; and provided the things offer-
ed or to be disposed of by lottery do not consist of sums of money,
notes, bank notes, bonds, debentures or other negociable securities
of like nature. But it has been held that this legislation is ultra
vires the Quebec legislature and an unconstitutional encroachment
upon the powers of the Dominion jmrliament, which alone has
the power to legislate on the subject of lotteries. (1)
A lottery is defined to be " a distribution of prizes by lot or
chance." (2)
The proprietor of a paper conducted competitions as follows : In
the paper there was inserted a sentence with a word missing. In-
tending competitors were required to cut out a coupon attached to
the paper, to guess at and write, on the coupon, what they guessed
as the missing word, and to then send the coupon with a fee of one
shilling for each coupon to the proprietor, who fixed before hand
the missing word, and placed it in a sealed envel.i|jo in the hands
of a chartered accountant, who verified the result of the competi-
tion. Held, that the competition constituted a lottery within the
meaning of the Imperial Statute, 42 Geo. 3, c. 119. (3)
Where a defendant, being the proprietor of a newspaper, adver-
tized in it that, whoever should guess the number nearest to the
number of beans, placed in a sealed jar in a window in a publie
street, should receive a 020 gold piece, that the person making the
second nearest guess should receive a set of harness, and that the
person making the third nearest guess should receive a $5 gold
piece, — any person desiring to compete being required to buy a
(1) Pigeon V. Mainville. and Mainville v. Poitras, 17 L. N. 68. See also
R. v. Harper, 1 Que. Off. Rep. (S. «i C. C.) 327.
(2) Per Hawkins, J., iu Taylor /k Smetton, 52 L. J. M. C, 101.
(3) Barclay v. Pearson, 3 F„ (1893), 388.
<J14 PRACTICAL GUIDE T<> MAGISTRATES.
copy of the nowspupor atul to write, oti ii coupon to bo cut from
the paper, his name and his guess of the number of l>oans, — it was
hehl that as the approximation of the number depemleil as much
upon the exercise of skill and judgment as upon chance, this was
not a Mi»nE of oiiance for the disposal of property within the mean-
ing of the Act against lotteries. (1)
Where a defendant placetl in his shop window a sealed glass jar
full of buttons of (litlerent si/A's. and oH'ered to give, to anyone who
should guess the nearest to the number of buttons contained in
thejar, apony and cart, the successful guesser being re(|uired to
purchase goods of the defendant to a certain amount, it was held
that as the approximation of the number of buttons depended on
the exercise of judgment, obseiwation and mental eftbrt, this was
not a MODE OK CHANCE for disposing of property. (2)
A defendant was summarily convicted of an oti'ence against sec.
2 of the l». S. C, c. 15JI, The defendant's mode of operation was
as follows. lie held a kind of concert in a certain hotel in Winni-
peg, and he then proceeded to sell boxes of what he called " Parker's
PaciHc Pens." Before selling, he placed in an empty box 100 en-
velopes with a S5 l)ill in each, 15 envelo))es with a $10 bill in each,
and one enveloi)e with a $50 in it, making in all $250 in 116 enve-
lopes. He also placed in the same box IIC other envelopes con-
taining blank pieces of paper. Kvery person paying $1 for one
box of pens was entitled to draw one envelope, and a person pay-
ing $5 for a box of pens could draw 8 envelopes ; but he would not
take more than $5 from any one person in order as he said to pro-
tect himself because in case he allowed any one man to take the
232 envelopes he would be $18 out of pocket besides the 232 boxes
of pens. He said that if the $50 was drawn out before two thirds
of the pens were sold he would put in another $50 bill and 50 more
envelopes containing blanks. He also said he was not selling the
envelopes ; ho would not take $20 for one of them ; but that he
sold the pens and distributed the money to advertize the pens. A
box of the pens was worth not more than ten cents. Held, that
the defendant was offering for sale and selling the pens as a means
(1) R. v. Dodds, 3 Ont R 390.
(2) R. v. Jamieson, 7 Ont R. 149
LOTTERIES.— MAINTENANOB. 615
or dovico for dinjioHing of tho proporty cncloBccl in tho onvolopes
by a mode of ehiuu-c, that it wan not neceHsaiy to enquire whether
the uliogod object of tho accused, — the advertizing of this particu-
lar l^ind of pens, — was his I'eal objector a subterfuge, but that an act
constituting an otfence under the statute was equally an offence if
done to attract attention to particular wares or if tho article dis-
posed of had an intrinsic value which might be an inducement to
purchase it, and that where tho selling of the article was in itself
ii means oi' device for disposing by chance of the money, there was
;i broach of tho statute ; and the conviction was accordingly main-
tained. (1)
In an Ontario case, a defendant, — who told customers to whom
ho sold tea that amongst tho cars of tea which he had on his shel-
ves for sale at $1 each, there woro some cans containing articles of
value, including a gold watch, a diamond ring, and $20 in money,
— was convicted of selling cans of tea as a moans of disjmsing of a
gold watch, etc., by a mode of chance. (2)
A., a shopkeeper, was convicted of kkepino an unauthorized lot-
tery, contrary to the Imperial Statute 42, Geo. III., c. 119, and
B., a wholesale confectioner, was convicted of aidinq, abittino,
COUNSELLING AND PBocuRlNO A. to commit the offence, it being
proved that sweetmeats, some of which contained small money
prizes, had been sold by B. to A., with a view to the latter retail-
ing these sweetmeats, and the chances which persons buying
them would have of winning a money prize, and that A. had a
quantity of these sweetmeats in his shop on sale to the public.
Held, that the convictions were right. (3)
As to WARRANTS TO SEARCH LOTTERIES, ETC., SCO p. 124, ante.
Maintenance.
]>iity to provide ncccssarlest ol* life. — Every one
who has charge of any other person unable, by reasons either of
detention, age, sickness, insanity or any other cause, to withdraw
himself from such charge, and unable to provide himself with the
(1) R. V. Parker, 13 C.-L. T., 316.
(2) R. V. Freeman, 18 Ont. R., 524.
(3) Barratt v. Burden, 10 R. Dec. (1894) 505.
filfi I'KACTtCAI, (liriDE To MAdlSTKATEH.
necessarioH of liCo, is, wlictluT muoIi cliarj^c is uiHlortiiki'ii liy him
umk-r any conlract, or iw imposi'd upon liiin liy law, or hy ivasoii
of liis iiiilawfiii act, uiidor a Ic/^al iluty t<> supply that porsoii with
tho iiiH'ossarios of life, ainl is ('riiniiially rcsponsihii' for omitting^
witliont lawful oxcuso, to porforin sucli tluty if tho di'utli of such
porsou is i'aus(^(l, or if his lifo is oiidangi'ivd, or his health lias Itoon
or is liki'ly to hv pennaiuiiitly injurod, hy sucii omission. (Codo,
Art. 200.)
FiVory one who us parent, guardian or head of a family is under
u legal duty to j)rovido necessaries for any diild under the age of six.
teen years, is criminally i-esponsiblo for omitting, without lawful
excuse, to dw so wliile such child remains a momher of his or her
iiousehold, whether such child is helpless or not, if the death of
Buch child is caused, or if his life is endangered or his health is or
is likely io be permanently injured, by such omission.
2. Kvery one who is under u legal duty to provide necessaries for
his wife, is criminally responsible for omitting, without lawful
excuse, so to do, if the death of his wife is caused, or if her life is
endangered, or her health is or is likely to be permanently injured
by such omission. (Code, Art. 210.)
lOvery one who, as master or mistress, has contracted to provide
necessary food, clothing or lodging for any servant or apprentice
under the age of sixteen years is under a legal duty to provide the
same, and is criminally responsible for omitting, without lawful
excuse, to perform such duty, if the death of such servant or
apprentice is caused, or if his life is endangered, or his health has
been or is likely to be permanently injui-ed, by such omission.
(Code, Art. 211.)
]VeKlectiii}( fluty to provide nceeNNarioN. — Every
one is guilty of an indictable ott'ence and liable to three years' im-
prisonment who, being bound to perform any duty specified in
sections two hundred and nine, two hundred and ten and two hun-
dred, and eleven without lawful excuse neglects or refuses to do so ;
unless the offence amounts to culpable homicide. (Code, Art. 215. as
amended by 56 V., c. 82.)
See Abandonment op child, p. 426, ante.
mahiuade. — master and skrvant. (517
Mandamus.
See |i|). 54-57, ante. , ' . . ,
Manslauuiitkh.
See p. 608, ante.
.MARItlAdE.
FciKlK'd iiiarriil)(<>K. — Hvery one is guilty of an indictable
otlence and liable to seven years' imprisonment wlio procures a
feigned or j)rotcnded marriage between himself and any woman,
or who knowingly aids and assists in procuring such feigned or
pretended marriage. (Code, Art. 277.)
Nolciniiixiiiie luurriiiKC without lawful author-
ity. — This is an indictable oft'ence punishable by fine, or two
years' imprisonment or botli. (Code, Art. 279.)
Nol«nini#iatiou of* niarriaK«> coutrary to law. —
Every one is guilty of an indictable ott'ence and liable to a fine, or
to one year's imprisonment, who, being lawfully authorized, know-
ingly and wilfully solemnizes any marriage in violation of the laws
of the province in which the marriage is solemnized. (Code, Art.
280.)
Master and Servant.
Causlui^; bodily harm to a Nervant or appren-
tices. — It is an indictable offence i^unishablo by three years' im-
prisonment for any master or mistress, legally liable to provide for
any servant or apprentice, to unlawfully do or cause bodily harm
to such servant or apprentice so that the latter's life is endangered
or so that the latter's health has been or is likely to be permanently
injured. (Code, Art. 217.)
Bfeglcct to provide nc.eosNarloN. — (See Mainten-
ance, pp. 615, 616, ante.')
See Criminal Breaches of Contract, at p. 508, ante, and Inti-
midation, at ]). 580, ante.
618 ' , PRACTICAL GUIDE TO MAQISTBATES.
MBDICINK AND SURGERY.
Art. 3998 of the R. S. Q. impoeos a penalty of $50 on any person
who, in contravention of the law respecting physicians and sur-
geons and their registration, practices medicine, surgery or raid-
wifeiy, in the province of (Quebec, for hire or for or in the hope of
money, goods, effects or any reward whatsoever, or who illegally
assumes the title of doctor, physician, surgeon, etc., or who in
any advertizement in any newspaper or in circulars or on busi-
ness cards or signs, assumes any title, name or designation of such
a nature as to lead the public to believe that he is duly registered
or qualified as a practitioner of medicine, surgery or midwifery, or
who offers or gives his services as a physician, surgeon or accoucheur
for hire, gain or hope of reward, and if he be not duly authorised
and registered in the province.
The Ontario Acts, on the subject are the R. S. O. c, 148, and 54
Vic. c. 26 and 56 Vic. c. 27.
Sec. 45 of the R. S. O. c. 148, enacts that it shall not bo lawful
for any person, not registered, to jiractice medicine, surgery or
midwifery for hire, gain or hope of reward ; and if any person not
registered pursuant to the Act, for hire, gain or hope of reward,
practices or profeswes to practice medicine, surgery or midwifeiy,
or advertizes to give advice in medicine, surgery or midwifery, he
shall upon summary conviction thereof, for any and every ott'ence,
pay a penalty not exceeding $100 nor less than $25.
There must be more than one act to constitute jiractising. (1)
A conviction under the R. S. O. c. 148, sec. 45, for practising
medicine for hire, was held bad for uncertainty in not specifying
the particular act or acts which constituted the practising ; and
the Court refused to amend, and quashed the conviction where the
evidence shewed that the practising consisted in telling a man
which of several patent medicines sold by the defendant was suit -
able to the complaint which the man indicated, and in selling the
man some of the medicine. (2)
(1) Apothecaries Co. v. Jones, 5 R. (189.. ), 101.
(2) R. V. Coulson, 24 Ont. R. 246.
MEDU3INB AND 8URQBRY. — MISCIHEF. 619
But whore a ])or8on went into a druggist's shop, stating that he
was sick, and describing his symptoms to the druggist, whereupon
the latter said he believed it was the diarrhoea, and, after telling
the pereon to live on a milk diet, gave him a bottle of medicine,
for which he charged him fifty cents, it was. — upon these facts and
upon the druggist's own admission that he had everal kinds of
diarrh(Pa mixture and had to sometimes enquire as to symptoms in
order to decide what mixture would be suitable, — held, that there
was a practising of medicine within sec. 46 of the R. S. O. c. 1*8,
and that the fact of the druggist being registered under the Phar-
macy Act, R. S. O. c. 151, which entitled him to act as an apo-
thecary as well as a druggist, did not authorize the practice of
medicine. (1)
See Poison, post.
MISCHIEF.
The subject of mfschief or malicious injuries to persons and to
property is cove 3d by Articles 481-511 of the Code.
Article 481 enacts that every one who causes any event by an
act which he knew would probably cause it, being reckless whether
such event happens or not, is deemed to have caused it wilfully :
but that nothing shall be an ott'ence under any provision contained
in the part relating to mischief, unless it is done without legal
justification or excuse and without color of right. The Article
also enacts that where the offence consists in an injury to anything
in which the offender has an interest, the existence of such interest
if partial, shall not prevent his act beiiig an offence, and, if total,,
shall not prevent his act being an offence, if done with intent to
defraud.
As to ARSON, (which is included in the provisions of the Code
relating to mischief), see pp. 450-454, ante.
^lischlef* on Kailwa,vs. — Kvery one is guilty of an in-
dictable offence and liable to rive years' imprisonment, who, in
manner likely to cause danger to valuable property, ivithmit endati-
qering life or person, —
(a.) places any obstruction upon any i-ailway, or takes up,,
il) R. V. Howarth, 24 Ont. K, .501 ; 14 C L. T., 132.
40
620 PRACTICAL GUfDE TO MAGISTRATES.
roinovea, disphices, breaks or iiijiires any rail, Hlee2)er or other
matter or thing belonging tt» any railway ; or
(6.) shoots or throwH anything at an engine or other railway
vehicle ; or
(c.) interferois without authority with the points, signals or other
appliances upon any railway ; or
(rf.) makes any false signal on or near any railway ; or
(e.) wilfully omits to do any act which it is his duty to do ; or
(f.) does any other unlawful act.
2. Every one who does any of the acts above mentioned, with
intent to cause such danger, is liable to imprisonment for life.
(Code, Art. 489.) ,
Wilfully obstruvtiiiK tlK* voiiMtriivtioii or uMe
of any railway. — This is indictable and punishable by two
years' imprisonment. (Code, Art. 490.)
A line of railway constructed and completed under the powers
of an Act of parliament and intended for the conveyance of i)a8,sen-
gors by locomotive power, but not yet used for that purpose, but
only for the carriage of materials and workmen, is within the
above Article. (1)
Where a defendant by unlawfully altering some railway signals,
at a railway station, caused a train to slacken speed and to come
nearly to a stand, he was held guilty of ofcs/rMC^m^ a train within
the meaning ol' sec. 30 of 24-25 Tie. c. 97, which is to the same
effect as our Article 490. (2)
Where a defendant, by holding up his arms in the mode used by
inspectors of the line, when desirous of stopping a train, intention-
ally induced the driver of a train to reduce his speed, although the
train was not wholly stopped, but immediately afterwards resumed
its ordinary speed, he was held to be guilty of an unlawful
obstruction. (3)
(1) R. V. Fradford, Bell, 268 ; 29 L. J. M. C, 171.
(2) R. V. Hadfield, L. R., 1 C. C. R. 253; 39 L. J. M. C, 131.
(3) R. V. Hardy, L. R., 1 C. C. R., 278 ; 40 L. J. M. C, 62.
MISCHIKi-'. 621
A., without the consent of the railway compuny, took u trolley
l)liice(l it on tlio tviick. ivnd ran with it, upon the railway for several
uiilos ; and althou<j;h it was at a time when, ordinarily, no train
was running thereon, A was held to have obstructed the free use
of the railway. (1)
InJiirloA to PackageN in OiiNtoily of Kailwayn.
Kvery one is guilty of an otfeneo and liable, on summary conviction,
to a i)enalty not exceeding twenty dollars, over and above the
value of the goods or liquors so destroyed or damaged or to one
month's imprisonment, with or without hard labour, or to both,
who —
(a.) wilfully destro3-.sor damages anything containing any goods
or liquors in or about any railway station or building or any vehicle
of any kind on any railway, or in any wai-ehouse, ship or vessel,
with intent to steal or otherwise unlawfully to obtain or to injure
the contents, or any part thereof ; or (6.) unlawfully drinks or
wilfully spills or allows to run to waste any such liquor, or any
part thereof. (Code, Art. 491.)
Wilful IiiJiiricN to Klectric Tcl<>|(;rai>lis, Elec-
tric IjiglitM, Telephones, or Fire Alariiiii. — This is
indictable and punishable by two years' imprisonment. And a wil-
ful attempt to commit any s^uch injury is punishable summarily by
fine not exceeding $50, or 3 months' imprisonment with or without
hard labour. (Code, Art. 492.)
M'^reckiilK. — It is an indictable offence punishable by life
imprisonment to wilfullj' cast away or destroy any ship, whether
com])lete or untinished, or to do any act tending to the immediate
loss or destruction of any ship in distress or to interfere with any
marine signal or exhibit any false signal with intent to bring a
■ship or boat into danger. (Code, Art. 493.) And an attempt to
cast away or destroy any ship, whether complete or unfinished, is
indictable and punishable by 14 years' imprisonment. (Code, Art.
494.)
(1) R. V. Brownell, 26 N. B. R. 579; Bur. Di(j. 164.
622 PRACTICAL GUIDE TO MAGISTRATES.
Interfering with ^Warine Ni^nalN, Buoyn or Nea
9IarkH. — This is indictable and punirthablc by Hcven years' im-
prisonment. And every one who nuil<es fast anj' vessel or boat to
any signal buoy or sea mark is liable on summary conviction to a
penalty not exceeding $10, and. in default of payment, to one
month's imprisonment. (Code, Art. 495.)
Preventing the Having ol wreeiced veNweiN or
wreclc* — It is an indictable offence punishable by seven years'
imprisonment, to wilfully prevent or impede or to endeavor to
prevent or impede, (a) the saving of any vessel that is wrecked
stranded or abandoned or in distress, or (6) any person in his en-
deavor to save such vessel. And a person who wilfully prevents
or impedes or endeavors to prevent or impede the saving of any
wreck may be punished on conviction or indictment by two years'
imprisonment or on summary conviction before two justices by
0400 tine or six months' imprisonment with or without hard labor.
(Code, Art. 496.)
Injnries to dams, piers, Hlides, ItooniM, raftn,
ete. — This is indictable and punishable by two yeai-s' imprison-
ment. (Code, Art. 497)
jmiseliief* to mines. — This is indictable and punishable by
seven years' imprisonment. (Code, Art. 498.)
If any act covered by this article be done under a bond fide claim
of right, it will not be punishable. (1)
A scaffold erected at some distance above the bottom of a mine,
for the purpose of working a vein of coal on a level with the
scaffold, was held to be an erection used in conducting the business
of the mine. (2)
H iseliief' eansing danger to life an«1 other se.
rious flangers. — Article 499a makes it an indictable offence
punishable by imprisonment for life for anyone to wilfully destroy
or damage a dwelling-house, ship or boat, if the damage be caused
(1) R v. Matthews, 14 fox, 5.
(2) R. v. VVhittingham, 9 C, & P. 234, Arch. Cr. PI. & Ev. 21 Ed. 616.
, MI8CHIEV. 62:^
by an explosion and any person be in such dwolling-houso, ship or
boat, and tlio damage causes actiiai, danqeii to livk ; or to wil-
fully destroy or damage a bank, dyke or wall of the sea or of any
inland water and to thereby cause A(!Ti:ai, danoer of inundation ;
or to wilfully destroy or damage any bridge, viaduct or aqueduct
and to thereby render the same or any highway, railway or canal
passing over or under the same danobkois ok i.mi'Assahi.e^; or to
wilfully destroy or damage a railway with intent and so as to
render it DANGEiiors < t imi'ASsahi.e.
Other iiiiN«*liieffti. — If the object damagad be a ship in
distress or if it be any cattle damaged by killing, maiming or
wounding, the punishment is fourteen years' imprisonment. (Code,
Art. 41M)b.) If the damage bo done to a ship with intent to destroy
or render it useless or to any goods in process of manufactureoranj'
agricultural or manufacturing nuichinesor implements with intent
to r>^nder them useless or to any private tishery, etc., etc., the
ytunishment is seven years' imprisonment. (Code, Ai't. 499c.) If
it be a damage amounting to $5 to a tree shrub or underwood
growing in a park or garden, or in anj' land adjoining or belong-
ing to a dwelling house, or if the damaged object be a post letter
bag or post letter, letter box or any post parcel, or any property
real or personal (to the extent of |20), damaged by night, the punish-
ment is live years' im])risonment. (('ode. Art. -199D.) And if the
damaged object be any property real or personal (to the extent of
$iO), for damage to which no special punishment is by law pre-
scribed the punishment is two years' imprisonment. (Code, Art.
499E.)
AVhere a prisoner, charged with maliciously killing a mare, had
caused the death of the mare by inserting the handle of a fork into
her vagma, and the jury found that the prisoner was not actuated
by any motive except the gratification of his own depraved taste,
fcnd that he did not intend to kill the mare, but knew that what
he was doing would or might kill her, and nevertheless did what
he did recklessly, and not caring whether the mare Avas injui'cd or
not, it was held that his conviction was right. (1)
(1) R. V. Welch, 1 Q. B. D. 23; 45 L. J. (M.C.) 17.
624 PRACTICAL GUIDB TO MAGISTRATES.
To constitute u maiming, tho injury inflictod on tiio uninuil must
ho a permanent 01W. (1)
Whoro it is a wounding that is alloged, .the injury or damugo in-
flicted upon or doiio to the aninuil need not be one producing a
permanent injury, inasmuch as the legislature used the word
" wounding " as contradistinguished from maiviing, which is a per-
manent injury. (2)
Where, upon an indictment for killing, wounding and maiming
a mare, it appeared that the defendant poured nitrous acid into
her ears, some of which acid ran into her eye or was poured into
it, and blinded her : upon which the owner killed her ; and it ap-
peared from the evidence of the surgeons that the injuries done to
the mare's ears were wounds ; the defendant was convicted of
maiming : and the judges hold the conviction right. (3)
See Cattle, p. 495, ante, and ('rublty to Animals, p. 512,
ante.
The destruction of any part of a threshing machine which has
been taken to pieces and separated by the owner is punishable
under the above Article ; (4) and so is the destruction of a water-
wheel by which a threshing machine is worked. (5) F- ^n if the
sides of the machine be wanting, without which it will ily work
imperfectly, it will be within the meaning of the above Article. (6)
But it has been held, that where the machine had been taken to
pieces and in part destroyed by the owner, from fear, the remain-
ing parts did not constitute a machine. (7)
Where a prisoner, in company with some other persons, unfast-
ened and took away a certain part — called the half-jack — of a ma-
chine, called a stocking-frame, without which the frame was use-
less, but did no fui-thor injury either to the half-jack or to the
frame, than the removal of the half-jack, the judges held that this
(1) R. V. Jeans, 1 C. & K. 539.
(2) R. v. Haywood, 2 East, P. C. 1076 ; R. & R. 16.
(3) R. v. Owens, 1 Mood. C. C. 205.
(4) R. v. Mackerel, 4 C. & P. 448.
(5) R. V. Tidier, 4 C. & P. 449.
(6) R. V. Bartlett. 2 Deacon. C. L. 1517.
(7) R. V. West, 2 Deacon, C. L. 1518.
MI8CHI1P. ' 826
WUH 11 (lumugiiig of tlio I'mmo, as it mudo tho friimo iinport'cct and
inoperative. (1)
Tho amount of injury dono moanH tho actual injury done to tho
troo, etc., itself, and does not extend to consequential injury roHuiting
from the act of the defendant. (2)
It hiiH heon held that ono who cutH otf a portion of his neigh-
bour's trees to protect his own property from the nuisance caused
by boys throwing stones at the blossoms on such trees, and to
secure the entrance of air and light to his own dwelling, cannot be
said to bo acting under a fair and reasonable supposition that he
has a right to do the acts complained of. (3)
Ab tho act of tho offender must be dono wilfully, it was hold, in
a case whore tho defendant threw, at some people with whom ho
had been lighting, a stone which struck and broke tho windows
of a house, that ho was wrongly convicted of unlawfully and
maliciously committing damage, although it was intimated that, if
the jury had found that the defendant knew that the window was
where it was, when ho throw tho stone, and that he was likely to
break it, and was reckless whether ho did so or not, tho decision
might have been different. (4)
Injuries to animals not being cattle.— (See Animals, p.
44-4, ante.)
Injuries to buildings by tenants. — (Seep. 60i, ante)
*
Injuries to election documents. — (See Code, Art. 603.)
Injuries to landmarks, fences, etc. — (See Landmarks, p.
606, ante.)
Injuries to harbor bars. — (See Code, Art. 607a.)
Injuries to trees, etc., wheresoever growing. — (See Code,
Art. 508.)
Injuries to vegetable productions growing in gardens,
orchards, etc. — (See Code, Art. 509.)
Injuries not otherwise provided for — Every ono who wil-
fully commits any damage, injury or spoil to or upon any real or
(1) R. V. Tacey, R. & R. 462.
(2) R. y, Whiteman, Dears, 353 ; 23 L. J. (M.C.) 120.
(3) Hamilton v. Bone, IG Cox, C. C. 437.
(4) R. V Pembleton, L. R. ? C. C. R. 119. R. v. Welch, mpra.
626 PHAOTIOAI. OUIDK TO MAUISTUATES.
porsonal proport)', oithov corporonl or incorpoival, ftinl oitlior
of u public or |)riviitu natiiro, tor vvhicli no puiiiHlimuiit '\h otiior-
wiHO providod, is ufuilly of an ort'ouco uiul liublo, on Hummary con-
viction, to a pohalty not oxciuMling 020, and wucli further miuu not
ox(!iHMling 820 as appears to l)e a nMiHonaltio compensation for the
ilaniaife or injury done to tlie private property of the person
ajjfj^rieveil. lo^i'tluir with costs ; and iniprisonnuMit, not exceeding
two niontlis, with or without hard ialioi-, may Ite onhMvd in default
of pa^'nu'ut. Hut notliin^ in this article is to extend to — (a.) any
case where the pt*rson acted under a fair and reasomihle s\ipposition
that ho had a right to do Iho act complained of; or (6.) any tres-
pass, not being wilful and malicioiis. committed in hunting or Hsh-
ing or in tiie pursuit of game, (Code. Art. 511.)
MIHDEU.
Soc \). 5t)5, ante.
NAVIGATION.
Mv'viKiitioii of C^tiiindiiiii untorN. — Chapter 7'.) of tho
R. S. C. contains tlie rules with lospwct to lights, fog signals, steer-
ing and sailing and rafts, and provides by sec. 2, that such rules
shall apidy to all the rivers, lakes and other navigable waters
within Canada or within tho jurisdiction of tho parliament there-
of ; and by section 4, a wilful default to obey entails a penalty not
exceeding $200 and not less than $20.
Protection of navigable watcrN. — Section 7 of tho
K. S. C. c. Jtl, prohibits tho throwing of any saw du.st, edgings,
slabs, bark or rubbish, into any navigable river, stream or other
water, under a pemdty of not less than $20 for a tirst ottonce and
of not less than $50 for each subsequent ott'enco.
NEULIOENCE.
Dut.v of permoiiH doliiig daiiKeroiiN actN.— Every
one who undertakes (except in case of ncjessitj') to administer
surgical or medical treatment, or to do any other lawful act tho
doing of which is or may bo dangerous to life, is under a legal
duty to have and to use reasonable knowledge, skill and care in
doing any such act, and is criminally responsible for omitting,
without lawful excuse, to discharge that duty if death is caused by
such omission. (Code, Art. 212.)
NIDI.ICIKNOE.
Iliity of* pcmoiiN In rhnriKO of dnii|i;«roHK(
tlllllKN* — I'lvopy onu who Iiuh in liis chiirgd or iindttr IiIh control
any tiling wlnitover, wlicthor tiniiiiult' or iiiaiiiiniitc, or who i-roctH,
iniikoH or MuiintuinH aiiytliing wluitt'vcr whicli. in tlio uhHunco of
proeimtion or c-are, may ondiingur human lit'o, iH tuxlor a loiral
duty to tako roaHomil)U' juvcautions against, and use ri'aHoiuihlo
caro to avoid hucIi dangor, and \h crimimdly rosponsihio lor llio
coiiMoqucnccH of omitting, witliout hiwful oxcuwc, to jiorform Hueh
duty. (Codo, Art. '213.)
Iliity to avoid oiiiImnIoiin dniiKcroiiN to llfV. —
Kvory one who undortakoH to do any act, tlio omiMnion to do whirh
is or may hv dangoro\iH to lit'*', is un(Ur a logal <luty to do t'mt act,
and is oriminall}' n'sponsihlt' for thi^ cons«'(|uonc'os of omitting,
without lawful oxcuho, to itorform that duty. (Codo, Art. 213.)
]¥cKl«M*tlii|{; Child. -(Soo AnANnoNMKNT, p. 42G, ante.)
IV4'Klc«'tln)( to |»i*ovld4> iit><*(>NNurii'M.--(Suo Main-
tenance, p. (il5, GIG, ante.)
M«>KliK«>iitl2»' «'iidaii|C4>riiiK tli«> NutVty oi' pcr-
NOllN Oil rullwa,>'N. — Every one is guilty of an indictable
oH'ence and liable to two years" imprisonmen! who, by any unlaw-
ful act, or Ity nwy wilful omission or neglect of duty, endangers or
causes to be endangei-ed the safety of any i)er,>!on conveyed or be-
ing in oi" upon a railway, or aids orassists theroii;. (Codo, Art. 251.)
IVeKliKoiitly caiiNiiiK; bo<lily injury to any por-
Mon. — Kvory one is guilty of an indictable oHence and liable to
two yeara' imprisonment who, by any unlawful act, or by doing
negligently or omitting to do any act which it is his duty to do,
causes grievous bodilj' injury to any other poi*son. (Code Art.
252.)
Furious driving. — It is an indictable offence punishable
by two years' imprisonment to do or cause any bodily harm to any
person by racing, or other wilful misconduct or wilful neglect.
(Code, Art. 253.)
«;28 I'RACTIOAI, OriDE TO MAtllHTllATEH.
li«>nviiiK «'x«*n%nlloiiM, iiiiiim«'4I iiiIik'm or qiiiir-
rl«'N, or liolcM or o|i«'iiiiiKN In U'v, iiUKiiurdcd.—
(H««(V«li«, Art. 256.)
NollTll-WINT Mol NTBI) I'OLIOE,
Tho ActH rolatiiig to tlio North-WoHt Mouiitt-d Police lorct> aro
uinomk'd iind coiiMolidutt'd by tho Mounted Police Act, 18!t4 (57-fi8
Vic. c. 27)> MK*. IH of whiili t'liumoruloH a iiiinilior of otfoiicoM (iii-
cludiiij^ intoxication, o|i|»n'ssioii, tyrannical condiict towardw an
inferior, wearing any |iarty emblem, mutinous or iiiHuhordinate
conduct, and dewurtion) for tho commiwHion of which a memhor of
the force (not heing a comniis8ione<l otHcer) tnay he Hummarily
convicted, Ix^fore the comnusMiinier, the asMistant cf)run\iMHi()ner or
tho siiporintendent or other comminHioned ofHcor commanding at
any poHt or in any dint rid, and jtuniHhed hy tino not oxceoding
one month's pay, or by imi)riM(tnmeiU n(»t exceeding one year, with
hard labor, or by Itoth fine and impriHoiiment, and, alno, if a
non-conimisHionod otllccr, by reduction in rank, in addition in
any case to any puniHhment to which the otfendor is liable with
rospoct to Hucli otfenco, under any law in force in the North-West
TorritorioH, or in the province in which the ollenco Ih committed.
SectioTiH 21 and 22 provide for investigations in tho case of a
commissioned otHcer being charged with any of tho otlbnces enu-
merated in section 18,
Section .^2 declares that the Act shall be in force in and apply to
the district of Keewatin.
Section 33 provides that tho Govornor-Cronoi'al-in-Council mi y,
from time to time, enter into arrangements witli the Government
of any Province for the use or employment of the force, or any
portion thereof, in aiding tho administration of justice in such
Province, and in carrying into etl'ect the laws of tlie Legislature
thereof.
Section 34 repeals the R. S. C, c. 45, and tho 52 Vic, c. 25.
North-West Tekbitories.
See the North-West Territories Act (R. S. C, c. 50) and its amend-
ments, 50-51 Vic, c 28 ; 51 Vie , c. 19 ; 54-55 Vic, c. 22, and 57-
58 Vic, c. 17.
NUIRANOIH. 610
NlH8AN(^K8.
A voiiiiiioii iiiiIniiii(*4' Ih ail iinliiwt'iil iicl or timiNHioii to
diKcliar^t' u logiil duty, whicli act or omiHHioii oiniaii^crH llio livoH,
Hatoty, licaltli, property, (t comrort of'tlio puhlir, or liy wliicli Iho
pulilic art! olmtrucUHl in llio (^\l)l•(•iHo or oiijoymont ol' any ri^ht
common to all llcr Majohty'H HiiliJcctH. (Oodt-, Art. l!H.)
A common or piihlic nuiHanc(>, iitidcr tlu* common law, is an in-
jury or damago to ail porHonn who come within the Hphcro of itH
operation, though it may ho ho iji a gnuittM' dcgrou to Homo than
to othorH. (]) Kor oxample, if. in the operation of a manufactory
— sucli aH a dyc-vv«»rUH, a tallow funuicu, a Hinclting hounc, a tan-
ning factory, or a limo pit for cleaning HkinH — volumeH of rioxiouH
Bmoku or poiHonous cfHuvia are emitted ; to pei-MOUH who are within
the reach of thcHe operatioim, and whose health may he thereby
'endangered, a nuisance, in the popular sense of the term, is com-
mitted. St), also, an obstruction in a highway is, to all who have
occasion to travel upon it, a nuisance. It may bo a greater nuis-
hnce to those who have to travel over it daily than it is to a person
UH'iig it only once a year ; but it is more or lesH a nuisance toovory
one who has occasion to use it, and it is, therefore, a common or pub-
lic nuisance, (2) although not of so serious a character as a nuisance
endangering life or health.
Whore, however, the thing complained of is such as to be limited
to one or oidy a few individuals, it is a private nuisance.
It has boon said that in judging of a public nuisance, the public
good it does might, in some ca.ses, whore the public healtli was not
concerned, bo taken into consideration, in order to see if the public
annoyance was outweighed by tho public benefit doinved ; (i{) but
this doctrine was overruled in Ward's case, whore it was held to be
no answer, to an indictment for a nuisance in a harbor by erecting
(1) Soltau V. De Held, 2 Sim. N. S. 142 ; R. v. Meyers, 3 U. C. V. P. 333.
(2) See Alt. (ien. v. Sheffield Gas Consumers' Co., 3 De G. M. and G 304 ;
Imperial Gas Light & Coke Co. v. Broadbent, 7 H. L. Ca. ttOO; Crowder v.
Tinkler, 19 Ves. «17: Reg. v. Train, 2 B. and S. 640; Bliss v. Hall, 4 Bing.
N. C. 183.
(3) R. v. Russell, 6 B. & C. 56ti.
630 PRACTICAL aUIDB TO MAGISTRATES.
an embankment, that although the work was in Horae degree a
hindrance to navigation, it was advantageous in a greater degree
to the other uses of the port. (1)
No length of time will legalize a nuisance. (2)
Common iinlHaiiced which are criminal. —Every
one is guilty of an indictable offentie and liable to one year's im-
prisonment or a tine, who commits any common nuisance which
endangers the lives, safety or health of the public, or which occasions
injury to the pei*8on (5f any individual. (Code, Art. 192.)
Common nuisanccM which are not criminal. —
Any one convicted upon any indictment or information for any
common nuisance other than those mentioned in Article 192, shall
not be deemed to have committed an indictable oftence, but all
such proceedings or Judgments may be taken and had, as hereto-
fore, to abate or remedy the mischief done by such nuisance to the
public right. (Code, Art. 193.)
Article 19,2 deals disjunctively, but distinctly, with two different
classes of common nuisance, namely, 1, a common nuisance which
endangers the lives, safety or health of the public ; and, 2, a com-
mon nuisance which, though not dangerous to life, etc., occasions
injury to the person of any individual.
Oaths.
The Canada Eoidence Act, 1893 (56 Yic, c. 31), provides by sec-
tion 26 that any judge, notary public, justice of the peace, police
or stipendiary magistrate, recorder, mayor, or commissioner author-
ized to take affidavits to be used in Provincial or Dominion Courts,
or any other functionary authorized by law to administer an oath
in any matter, may receive the solemn declaration of any person
voluntarily making the same before him in attestation of any
wi-iting, deed or instrument, or of the truth of any fact or of any
(1) R. V. Morris, 1 B. & Ad. 441 ; R. v. Ward, 4 A. & E. .384; R. v. Ran-
dall, C. & Mar. 496.
(2) R. v. Cross, 3 Camp. 227 ; 8. v. Ranljin, 16 Am. R 737 ; 1 Bish. New
Cr. L. Com. s. 1078a.
OATHS. — OBSCINB MATTER. 631
account rendered in writing ; and that such declaration may bo in
the following form : —
I, A. B., do solemnly declare that [state the fact or facts declared
to], and I make this solemn declaration, conwcientiously believing
it tf be true, and knowing that it is of the same force and oft'oct as
if made under oath and by virtue of The Canada Evidence Arf.,
1893.
Declared before me
at this day I
of A.D. 18
Administibing Unlawful Oaths. — See p. 435, ante.
AoMINISTEBtNG OatHS WITHOUT AUTHORITY. — Seo p. 437, OH'e.
As to the MoDKs of Administering the Oath to a witness, and
as to Affirming instead of taking the oath, see pp. 203-219, ante.
Oaths of Allegiance.
See E. S. C, c. 112.
For general form of Oath of Allegiance see p. 11, ante.
See Allegiance, p. 444, ante.
Obscene Matter.
Selling obscene books or advertlsliiK obscene
drugs, etc. — See Article 179 of the Code, at p. 547, ante.
Posting Obscene or Immoral Books, Etc. — See Art. 180 of the
Code.
Obstruction of Public or Peace Officer.
See Article 144 of the Code.
Assaulting a public or peace officer. — See Aogua
vated Assaults, p. 4(51, ante.
Offensive Weapons.
The expression '-offensive weapon" includes any gun or other
firearm or air-gun, or any part thereof, or any sword, sword-blado.
632 PHAOTICAI, OUIDE TO MAQISTRATES.
bayonet, piko, pike-houd, spour, upoav-hoad, dirk, dagger, knife or
other inHtrument intended for cutting or HtuM)ing, or any nletal
knuckles, or other deadly or dangerous Weapon and any instru-
ment or thing intended to be used as a weapon, and all ammunition
which may be used with or for any weapon. (Code, Art. 3r.)
POSSKSISINU OR CARRVtNO ANY OFFENSIVE WEAPON FOR ANY
PURPOSE DANGEROUS TO THE PuBLic Peaok, — is an indictable
offence punishable by five years' imprisonment. (Code, Art. 102.)
Openly carryino Offensive Weapons so as to Create
Alarm. — This is an offence punishable summarily by fine not
exceeding $40 (not less than $10), and 30 days imprisonment in
default of payment.
Shuoolbrs carrying Offensive Weapons. — Eveiy oneis guilty
of an indictable offence and liable to imprisonment for ten years'
who is found with any goods liable to seizure or forfeiture under
any law, relating to inland revenue, the customs, trade or naviga-
tion, and KNOWING them to be so liable, and carrying offensive
weapons. (Code, Art. 104.)
Carrying a Pistol or Air-Gun without Justification and
without having a Certificate from a Justice of the Peace. —
(See Code, Art. 105.)
Selling Pistol or Air-Gun to a Minor under Sixteen ; or
Sklling a Pistol or Air-(Iun without keeping a Rboord of
si;oH Sale. — (See Code, Art. 106.)
Having a Pistol or Air-Gun when Arrested for any Offence.
— (See Code, Art. 107.)
Having a Pistol ob Air-Gun with Intent to Injure Anyone.
—(See Code, Art. 108.)
Pointing a Firearm (loaded or unloaded) at Anyone — is an
offence punishable summarilj- by a fine not exceeding $120. (Code,
Art. 109.)
Carrying Offensive Weapons. — It is an offence punishable
summarily bj' a fine not exceeding $50 (not loss than $10), for any
one to cany any bowie knife, dagger, dirk, metal knuckles, skull
cracker, slung shot or other offensive weapon of a like character or
to secretly carry any instrument loaded at the end, or for any
OFFENSIVE WEAPONS. — PEDDLERS. 633
poi-son to soil or oxjioso for sale publicly or privately any Buch
weajion, or to bo masked or disguised and carry or have in his
possession any firearm or air-gun. (Code, Art. 110.)
Cabrtino SiiBATit Knives. — (See Code, Art. 111.)
Refuseno to DEMVEa AN Offensive Weapon when Demanded
nr A Justice of the Peace. — (See Code, Art. 113.)
As to the offences of cominq akmed near a public meeting, and
lying in wait for persons returning from a public meeting, sec
Articles 114 and 115 of the Code.
As TO Sale of Arms in N. W. Territories, and Possessing
Weapons near Public Works, see Articles 116 and 117 of the Code.
Ontario Factories Act.
See E. S. O., c. 208, and 52 Vic, c. 43, (Out.)
(JuEBEc Factories Act.
See E. S. Q., Articles 3019 to 3053, 52 Vic. c. 32, and 56 Vic, c
28.
Patents.
See the Patent Act E. S. C, c 64, and its amendments, 51 Vic, c
18, 63 Vic, c. 13, 54-55 Vic. c 33, 55-56 Vic, c 24 and 56 V'c, c
34.
Pawnbrokers.
See E. S. C, c 128 ; E. S. 0., c 155, and E. S. Q., Articles 954 to
992.
A person who engages in a single act of receiving or taking a
pawn or pledge, cannot be thereby considered a pawnbi'oker. (1)
Peddlers.
Every peddler travelling from house to house and from town to
town in the province of Quebec, to sell or expose for sale any goods
and merchandise, (except those mentioned below), without being
the holder of a jieddler's license is liable to a fine of $40 for each
(I) R. v. Andrews, 25 U. C. Q. B. 196.
684 PRACVICAL GUIDE TO MAQISTRATES.
article which ho sells, barters or delivers under any title whatever.
(1) It is however expressly provided that the law as to peddler's
licenses shall not apply to persons employed by a temperance
society, or by a benevolent or religious society, to peddle and sell
temperance tracts and other moral and religious publications under
the direction of svich society ; that no person is 'obliged to take out
a license to peddle and sell any of the following articles, namely : —
Acts of the Legislature ; prayer books an catecnisms ! proclama-
tions, gaz ^ttes, almanacs or other documents printed by authority;
fish, fruit and vituals or any goods, wares and manufactures when
they are peddled and sold by the actual maker or worker, ho being
a British subject and a resident of the province, or by his children,
apprentices, agents or servants, excepting always, drugs, medicines
and patent remedies) ; and that a peddler's license shall not be
required from any of the following pereons, namely : — Tinkers,
coopers, glaziers, harness repairoi-s or other persons in order to go
on the highway to carry on their trade of repairing kettles, casks,
household furniture and utensils ; nor from hucksters or persons
having stalls or stands on markets in cities or towns for the sale of
fish, fruit or vituals, or goods, wares and racrchandiso in such stalls
or stands, on their complying with the police regulations of the
locality. (2)
It has been held that a person, who has a store and travels
through the adjoining country soliciting orders which he after-
wards tills, is not a peddler within the meaning of a Pcunsylvania
law prohibiting " sales, without a license, by a hawker or peddler
or travelling merchant. (3)
It has also been held in Illinois, that under a statute which au-
thorizes city councils to license, regulate and prohibit hawkers and
peddlers, a city has no authority to require book canvassers, who
solicit subscriptions for books for future delivery, to obtain licenses,
since such canvassers are neither hawkers nor peddlei"s. (4)
Where manufacturers of household goods of West Virginia sent
their agent into North Carolina to sell goods by sample on the^
(1) R. S. Q., Art 993.
(2) R. S. Q., Art. 870.
(3) Com. v. Eichenberg, 21 Atl. Rep. 258; 13 Cr. L. .Mag. 647.
(4) Emmons v City of I^wiston, 24 N. E. Rep. 58; 12 Cr. L. Mag. 865.
TEDDIiERS. — I'EK.II HV. 635
iiistalmont i)liin, tho goods to hv dolivevcd to purcluiriiTH by tlio
agont uftorwiirds, tho I'uot that tho goods woro to bo dolivorod by
the agoiit, was licld not to make liim liable to pay a tax as a peddler
under the laws of North Carolina. (1)
A person wiio delivered goods i)reviously sold by another person
was held not to be a peddler under a State ordinance which pro-
vided that any person who should sell, or oltbr for sale, barter or
exchange any goods or other articles of value in any street or alley
or other ])ublie place or in wagons or other vehicles or at private
or public houses should be deemed a peddler. (2)
The council of any county, city or town in Ontario is empowered
to pass by-laws for licensing hawkers, etc. ; and the word " hawker "
under the law of that province includes all persons who being
agents for persons not resident within the county, sell or offer for
sale tea, drj'' goods, watches, plated-ware, silverware or jewellery,
or carry and expose samjiles or patterns of any s\ich goods, to be
afterwards delivered within tho countj', to an}'^ person not being a
wholesale or retail dealer in such goods, wares or merchaiulise. (3)
It has been held thai tho Ontario law does I'ot meet the case of
a principal, although it applies to agents. So that where the defen-
dant, a wholesale and retail dealer in teas, went out of the county
where he resided into another county where he sold teas by sample
to private persons, to whom after taking their orders he subse-
quently ilelivered the teas which were sent in one parcel to tho
county where the buyers resided iind there distributed, it was held
that a conviction of the defendant for carrying on a petty trade
could not be sustained ; for the defendant was not carrying goods
for sale, and, as the defendant could not be classed as a hawker
within the meaning of the Act, ho was not liable for ottering goods
for sale by sample. (4)
Perjury.
Definition ol* perjury and Miliornatioii of* per-
jury. — Perjury is an assertion as to a matter of fact, oi^inion,
(1) In re Spain, U. S. C. C. (N. Car.), 47 Fed. Rep. 208 ; 1 Men. L. Dig. 36.
(2) City of Stewart v. Cunningham, Iowa, 55 N. \V. Rep. 311 ; Men. L. Dig.
502.
(3) 55 Vic, c. 42 (Ont.) sec 495.
(4) R. v. Henderson, 18 Ont. R. 144.
41
636 PRACTICAL (UHl)E To MA0IHTRATE8.
luiliofor Uiiowlodji^o, minlo l)y ii witnoHH in a judiiMul procooding
as part ot hin cvidoiuio, u])()n oath or aftiriuation, wliothor Huch
ovidoiK'Ci In givcui in open court, or by affidavit or otiiorwiso, and
whether such evidence is material or no<, isuch aHHortion iuMn^ known
to such witnosH to l)o talso, and ln'ing intended by iiini to niisload
the court, Jury or porson holding the procciMJing. Evidence intliiK
section includes ovidenco given on the voir dire and evidence given
before u grand jury.
2. Kvery person Ih a witness within the meaning of this section
who actually gives his evidence, whether he wus competent to be a
witness or not, and whether his evidence was adnmsible or not.
3. Every proceeding is judicial within the meaning of this section
which is held in or under the authority of any court of justice, or
before a grand jury, or before either the Senate or House of Com-
mons of Canada, or an}' committee of either the Senate or House
of Commons, or before any Legislative Council, Legislative Assem-
bly or House of Assembly, or any committee thereof, empowered
by law to administer an oath, or bcfori' any justice of the ])eace. or
any arbitrali>r or umpire, or any person or body of persons autho-
rised by law or by any statute in force for the time being, to make
an inquiry and take evidence therein ujion oath, or before any
legal tribunal by which any legal right or liability can be estab-
lished, or before anj- person acting as a court, justice or tribunal,
having power to hold such judicial proceeding, whether duly con-
stituted or not, and whether the proceeding was duly instituted or not
before such court or ])erson, so as to authorise it or him to hold
the proceeding, and although such proceedimj was held in a wrong
place or was otherwise invalid.
4. Subornation of perjury is counselling or procuring a person
to commit any perjury which is actually committed, (Code, Art,
145.)
1*1111 iNllilK'tllt. — Every one is guilt}' of an indictable otfence
and liable to fourteen years' imprisonment who commits verjury
or snnoRNATioN of perjury.
2. If the crime is committed in order to j)ro('ure the conviction
of a person for any crime punishable by death, or im|)risonment
for seven years' or more, the punishment may be imprisonment
for life.
',\,-> V
I,. ..J
I'ER.IUllV. — I'KUSONATION. (537
■7.
Any jiuliifd of any Cmirl of [{I'conl, or aiij' conunisHioMur lioforo
wliom any ciKjuiry or (rial is held, and which hoisliy hiw rofjuirod
or authorized lo lioid, may diri'id tho prosocution ol'any jKn'son
i who appears to him to have hoon guilty of pcM'jiiry in any ovidonco
;<* givon, or in any at1i(hivi(, alllrmation, dci laration, deposition, ox-
araination or othor proceeding made or taken l)efore iiim. (I{. S.
C, c. 154, HOC. 4.)
FiiInc OatllN. — Kvery one is guilty of an indielahle ollenco
and lial)lti to seven years' imprisoiinient, who, being required or
authorized by law to make any statement on oath, alllrmation or
solemn declaration, thereupon makes a statement which would
amount to ]>crjury if made in a JiidiiMal proceeding, (('ode, Art.
147.)
" As to other false oaths, see Articles 148 and 14it.
k^<'
VnlHV MlatciiK'iitN. — I'lvery one is guilty of an indictable
otVence and liable to two years' imprisonment who, up )n any occa-
sion on which lie is |)ermittod by law to make any statement or
declaration before any otflcer authorised by law to permit it to bo
made before him, or before any notary j)ub]ic to be certified by
him as such notary, makes a statement which would amount to
]>orjury if made on oath in a judicial proceeding. (Code, Art. 150.)
*' ' I'EllSONATION.
PorNoiiniioii with iiitont to ohtiiiii any pro-
perty. — Kvery one is guilty- of an indictable ott'ence, and liable
to fourteen years' imprisonment, who, with intent fraudulently to
obtain any property, personates any person, living or dead, or ad-
ministrator, wife, widow, next of kin or relation of any person.
(Code, Art. 45(i.)
Personation at exaininationiii. — Ever}' one is guilty
of an indictable oU'encc, and liable on indictment or summary con-
viction to one year's imprisonment, or to a tine of one hundred dol-
lai's, who falsely, with intent to gain some advantage for himself
or some other person, personates a candidate at any eompt^titive or
qualifying examination, held under the authority of any law or
statute or in connection with any university or college, or who
(i'iiS PRACTICAL UUIDE TO MAUISTIIATES.
pvocuri'H ItimMcU'or any otiu r ikh'mou Io be porHdimlo*! at any Huch
oxaminiition, or who knowiii^^ly availn liiinscit' ol' tlio rcKultH of
such pcrHoiitttioii, (C'odo, Art. 457.)
P<>rNoiinllon of oi»'ii«>rw of* Nliiir<>N or «1IvI4I«>ii<1n,
vto., ill 44ov«>riiiii<'iit or other MtockN. — TImh is un in-
dictablo ort'ont'o puniHhahlo by I'ourtooii ycurn' iinpriHoniuoiit. (Codo,
Art. 458.)
Arkiiowl«MlKiiiK <*■■>' iiiMtriiiiieiit In a FulNe
liailli'. — Kvory oiio is guilty of un indietablo otlVnco and liablo
to seven years' imiiriHonmcnt who, without hiwful authority or
excuse (the proof of whidi shall lie on liini) acknowledges, in tiio
name of any other ])erson. before any court. Judge or other person,
lawfully autliori/ed in that l>eluilf, any recogni'/ance of bail, or any
cognovit actionem, or consent for judgnu'iil, or judgment, or any
deed or instrument. (Code, Art. 459.)
As to false personation of voters at parliamentary elections, see
the Dominion Ekctiom Act, 11. S. C, c. 8, ss. 81), DO, and It)^.
It luis been held that in an indictment for the offence of ]»erson-
ating a voter, there should be an averment negativing the inden-
tiiy of the defendant with the voter alleged to have been person-
ated. (1)
I'ETROLEUM.
See Inspection of Petroleum, p. 579, ante,
PlLOTAQE.
See the Pilotage Act, 11. S. C. c. 80, (amended by 56-56 Vic. c. 20
Sec. 19 of the Montreal Harbor Commissioners Act, 1894, (57-68-
Vic. c. 48), provides that the Harbor Commissioners of Montreal*
shall have for the purposes of that Act, jurisdiction within the
limits of the port of Montreal, and that under the Pilotage Act that
corporation is the pilotage authority of the pilotage district of
Monti-eal.
(1) R, v, Hojg, 25 U. C. Q. B,, 68.
I'lUAOY. — POISON. (53!)
I'lKACY.
llcfiiililoil. — Tlio usual dotinilioi) of piracy, in KiigliNh lau',
is ^' rohlnri/ at sea." Hut robbi'iy at sea, in order to couMtituto
piracy must bo without authority tVom any princo or wtuto. II' a
jiarty inaiving a capture at Hca do so liy tlio autliority of any princo
or stato it cannot he coiisidoivd piracy ; for a luition can never ho
doomed pirates, Kixod domain, pul)li(j rovonuo and a certain form
of govornmont oxompt a |)ooplt) from tluit charaotei'. (1)
l*ira«*y hy fliv law ol'iiatioiiN. — Kvovy Oiio is guilty
of an iii(iictai)le otionco who does any act wliich amounts to piracy
by tho law of nations, and is liable to tho following punishment : —
(a.) To death, if in committing or attempting to commit such
crime, the otlendtn- murders, attempts to murder or wounds any
person, or does any act by which tlie life of any pci'son is likely to
bo ondangered ;
(b.) To imprisonment for life in all other cases. (Codo, Art.
127.) .;-.-.. , : ■ , , ,-- ^ ,. —^ , . ;■
As to other piratical acts, seo Articles 128 and 12!) of tho Codo. ;
Xnt liglitiiiy; pIratvN.— (See Code, Art. 130.)
POISON.
It is enacted by Article 4035 of the E. S. Q., that no person, —
unless ho be a physician inscribed as a member of the College of
Physicians and Surgeons of tho province of Quebec, or be register-
ed in accordance with the provisions of the law as to " licentiate
OF PHARMACY," — shall keep open a shop for the retailing dispensing
or compounding of drugs or of certain poisons in schedule A nor
sell or attempt to sell any drug or poison or medicinal preparation
containing any of such poisons, nor engage in the dispensing of
proscriptions, nor use or assume the title of chemist and druggist,
or chemist or druggist or apothecary or pharmacist or pharmaceu-
tist or dispensing or pharmaceutical chemist or any other title
bearing a similar interpretation within the pi'ovince. By Article
(1) Grot 2,0.18,8.2.
(MO I'RAOTIOAI, OIIIKE Tt> MA(JIHTHATKH.
404ti, till' |)uiiulty for any inrrin^ciiu-iit ol' llit- law '\» $20 for tin*
Hi'Mt oH'oneo mid 8f>0 for citcli HtiliHt>(|Ufnt otrcncc ami cdstN, Arti-
(.'!(' 4084 itrt'scrilicH corlain imiU'm to Im» oltwm-vt'd in connt'ciion with
tin' Mcliin^ c>f poiHonn liy iifrsmis liavin^ tin- rii^lit to sell (licni.
And iindiT ArlicUi 40;{1>, tin- sfllin/jj >>{' ccrtaiii urliilc^ including
putont miMlii'inoH Im oxonipti'd from tin' o|u'rutioii n\' ilii> aliovc pro-
viHJonM.
it lias lu'cn held niidcr tin' Kn^llHli Pharmacy Art. jKfiH, that a
poTHon, not lioinf; a lu'i^islcrt'il clu'inist, who hcIIs an ai'ticlc contain-
ing u conMidorahUf amount though not consisting solely of \\w poi-
Hons nu'iitioncil in the sclu'(lido to the Act, is su'ijccl |o the piii\alty
ijn))osed liy section 1') of the Act, that the exemption of pattMil
medicines in section KJ from the penalty "idy applies to medicines
protected by letters patent, that ehlorodyne was a poison, on account
of itH containing scheduled poisons, notably iddorofoi'm and prepn-
vations of opium ; that it was not a |>atenl meilicine allhongh ho
called, and that therefore it did not come within the exception in
section 1(1, in favor of patent medicineH, and that sales thereof must
ho conducted in accordance with the regulations to he ohsorved
undor section 17 of the Act, in relation to sah's of poisons. (!)
Where a defendant was sued for a penalty for keeping open a
shop for the retailing, <lisj)ensing or compounding of poisons, — to
wit, a jireparation of morphine called liicoitAciNK. contrary to the
provisions of the Knglish Pharmacol Act, and where the analyst
called on liehalf of the |)laintiH, stated that the actual (|uantity i)f
morphine in a bottle of the preparation might have been from one-
fiftieth to three tiftieths of a graiii ]ier ounce, and he was not
prepared to say whether the taking of the whole contents of the
bottle would do an adult an}- harm, it was held that the evidence
as to the quantit}' of mor|)hine in the mixture was not sutHcient
to entitle the plaintitl'to recover the penalty, and that the prohibi-
tion in the Act does not apply to u mixture containing an in-
finitesimal quantity of poison. (2)
The prohibition against the sale of poisons by un(jualiticd per-
sons has been hold in England to extend to tho sale of jiroprietory
(1) Pharmaceutical Society v. Piper, 5 R. (1893), 296 ; 62 L. J. Q. B., 305.
(2) Pliarmaceutical Society v. I^lve, 10 R. {Rh. 1894), 225.
POIHON.— POl.VdAMV. (!4I
m(Mli('int<H coiiiainiii^ niii' of Hu< ncIhhIuIoiI imiNoiiH um uti in^rt'tlicnl
in Niicli a i|iiiiiilily iiM Id lie hiu-lt'iil to man or rliild, ami lliat llio
uxi'inption in lavor of |iutfnt mt'tlicini's In rcslricttMl to nuMlirincN
which an< protocU'il hy ii'tliTH patent nmUtr tlm gnuit mouI, and
(loi'H not apply to proprietory moilirlnim. (I)
Attempt to MURUKa i«y admim8Tk.iiiN(i I'oihon. Sod p. 5(!(!, ante.
AliMINISTI'ltINO l>OIH()N AND TIIIIKKMV OAI HINU OANltKH TO LIKE,
KTC. S«M« p. 4.'14, ante.
I'OIiYUAMV.
■•olyjjHiiiy . — I'lvcry one is guilty of an indictal)!!' oMonco
and liaiilc to impi-isonmunt for live yeurn, and to u lino of livo
hundred dollars, who —
(a.) prueticoH, or, hy the riles, eereimndes, forms, ridos or ens-
tonis of any donoiniiuition, sect or society, religious or Heenlur, or
by any form <d' eontract, oi- \)y mere mutual consent, or liy any
other meliiod wluitsot^ver, and wlietliei' in a nuinner recognizt'il hy
law as a hiuding form of nuirriago or not, ugrecH or consents to
pvuctiso or enter into (i.) any form of polyiramy; (ii.) uny kiiul
of conjugal union with more than one person at the same time ;
(iii.) what among the [lersons commonly called .Mormons is known
a8 spiritual or plural nuvrriago ; (iv.) lives, colnihits, or agrees or
consents to live or cohabit, in any kind of conjugal uiuon with u
person wht) is nuirried to another, oi' with u person who lives or
cohabits with another or others in any kind of conjugal uruon ; ni-
(6,) celebrates, is ii party to, or assists in any sucit rito or core-
mony which purports to make binding or to sanction any of tho
sexual rolationships mentioned in paragraph (a) of this Hoction ; or
(c.) procures, enforces, enables, is a pai-ty 1o, or assists in tlio
comi)liance witli, or carrying out of, any such form, rule or ctis-
tom which so purports; or
(d.) ]M'ocures, enforces, enables, is a pai-ty to, or assists in the
execution of, any such form of contract which so purports, or tho
giving of any such consent which so purports. (Code, Art. 278.)
(1) PhHrmaceutieal Society v. Armson, 9 R. (Sept. 1894), 241.
641 I'HAoricAL iiiiiDi r<i maoimthatih.
Moi't< coliiiliitatioii hi>t\vi'i>n u iiiiirricil man ami anotluT inaii'H
wil'o Ih iioI HiilMrii'iil In ><iiMliiiM a riiiivirlioii iitnlcr iImm article, luit,
titu law hoitiK iiiiucil at llm rrprcNMion nf MnnitoiiiHiii, tlu*ro inttNt
bo, hotwt't'ii tli(< |iurti<'H. Hnriu' cuiitract or ronjii^al iiiiinii, ku|)|i<)h(>i|
to III' liiiKliii^r ii|iiiii Ihi'in. ami whirli the law wan ihtfiii|<'i| to
pi-oliiliil. (1)
I'UHT OKKM'K.
St'«' llic I'ost Office Act l{ S. (\ v, ;J5, and itn ainiMnlnifntH, BU
Vio. ('. L'O and r>7-fiH Vic. c. B4.
Swtion !t3 of llic I'ust Ojfii'i' Art (as aniomlcd l>y fiT-SH Vice.
51, sec. 2) «'naclM llial every one w lio encloMcs a letter or leltevH, or
writing intended to nerve tlie |iur|MiHe of a letter or post card, in a
]>ar('el poHttxl lor tlie paicel poNt.— (M' in a patliet (d' samples or
jtatttTMH posterl to pass at tlio rate of posta^o applicalilu to samploH
and pattei'ns, or incloses a letter or post card, or any writini; to
servo the pnrpose of a letter or po-*t card, oi* incloses any other
thin^, in a newspaper posted to pass as a nttwspaper at the rale of
]»osta^e applicahle to newspapi-rs Texet'pt in (ho case of the
accouids and receipts of newspaper pidilishers an<l of the pi'intecl
circulars invitint; snliscriplions and the printed envelopes ad-
droNHod to sm h pulilishers, whicli will he porniitted to pass tbidod
or inchtsed within the newspapers sent hy them to their suhscrih-
ors), — ()!• inclosi^s a letter oi' any writing intended to serve tlio
])iirposo of a letter or post card, in any mail matter sent hy post
not boiiig a lottor, shall incur a penalty not exceeding forty dollars
and not loss than ton dollars In i«aidi oaso.
StKAMNU post OFKIOK LKTTKKS, post l.ETTKIl HAOS AND OTHKR
MAIL MATTEll. — See Articles :52(!-;{2H of the Code.
Undor Hoction 8{( of tho U. S. C. v. 35, it is a misdomoanor pun-
ishablo under Art. 051 of tho ('ode. for any one to uidawfully open
or wilfully koop or sooroto any post hitter bag 6r post lottor or to
nogloet or refuse to deliver up any post letter to the jjorson en-
titled to it.
I'KI/E FIUHTINO.
Dt^fiiiltiom. — The exproHsion 'prize tight*' moans an en-
counter or tight with tiHts or handH, between two i^ersons who have
(1) R. V. Labrie, M. L, R., 7 Q. B. 211.
I>HI/B noilTINO— KAtl.WAYN. 61.1
liit'l for Hiicli |>iif|i(mit Ity proviitiiH ai'ruii>(fiu>*iil iimili' liy <>i- {\,r
tlioiu. {.CiuU', An '.»2.)
Pliiilnliiiinil. -l<iVi>rv <n\o in guilty <>t' nii (ttli<ii"(' iiml liulilo,
Oh Niimiuiii'v I'oiiviclioii, to a pt'iially not o^:(•l'o^iill^ !8l,(MM>, ami not
It'MHtlian 6I0II, or to ini|ii'iHoiitii<'iit lor ti term not oxci't'ilin^ nix
liioiitliH, witli or without liani lalior, or to liolli, who noikIn or
arct'ptH u chaMcii^i" to a pri/o tlj^lil, or who traiiiH lor a pri/,t> ti^ht
or ai'lN as traiiii»r or h k-oihI to miicIi a porwon. (Code, Art. It.'l.)
Till* principalK in a pri/.u tl^lit an* piiniMhahlo Nuniniarily hy
twolvo months' inipriNoninont ; (Codo, Art. !>4.) and cvory porHon
ItroHont at a prizo ti^ht as an aid, Norond, Hur^i'on, nnipiro, i)a('Ut>r,
asniMtant or rt'porli'r is sninniarily pnnishahh' in a penalty of 8.*)IM(
or inipriHi>nnii'nl lor twelve montliK, or Imth. (Codn, Art. !•.').)
Canadians Icavini^ Canada to cn^ngo in a pri/.o tight i)oyon(l thu
limits tlnMvol' arc liahlc to a pcintlty ol'SlDU or six n.onths' impri-
sonmt'iit, or lioth, (('ode. Art. !»tJ.)
As to dnty of shcritl's, polices olllccrs, conHtalilcs and other poaco
otiicei's to ari'csl pi-rsons lielicvcd to lu> about ttt en/^age in any
prizo light within (^mada, and to tbrcihly provont prizo Hglits, boo
Jl. S. C. c. 16:J, soch. 11, 7 ami lit.
Sm« Akkhav. p. 44tl. ante.
I'ROCURINO PIlOHTITtiTION.
So« Pkkii.ement ok Females, \k 51(1, mte.
KAII.WAV8.
Soo tho liailuay Aci^ (.51 Vie. o. 2!)) ami its aniondments, 63
Vio. 0. 28, 55-50 Vie. e. 27, 5(5 Vie. c. 27, and 57-58 Vie. c. 5;{.
As to CKrMINAI- HBEACII ok contract by a railway OOMl'ANY,
see Contract, p. 5l>8, dnte.
€on¥eyuii<>«> of Cattle by Kail.— (Soo p. 518, ante.)
Falne Railway TIckvtN.— It is an indictablo ottonco
punishabio by G months imprisonment to fraudulently obtain a
passage on any carriage, tramway, railway, steamer or other vessel
by moans of a false ticket or order. (Code, Art. 362.)
Forgery of Railway Tickets.— The forgery of any
ticket for a free or j)aid passage on any carriage, tramway, railway
644 PRAOTICAI, GUIDE TO MAGISTRATES.
or steamer or other veHsol is puiiiahublo by seven years' imprison-
ment. (Code, Art. 423 o. m.)
OaniblliiK in Itailwaji' C/Urm. — (Sco p. 552, ante.)
MisciUEP ON llAiiiWAVs. — Soo pp. C19-(»2l, ante.
Stealing on RAii.WArs. — See Code, Art. 313.
JitcaliiiK; Uailttay or i>it;eaiiil>oat TioketM.— The
stealing of any railway, tramway or steamboat ticket or order, is
indictable and punishable by two years' imprisonment. (Code,
Art. 330.)
Eape.
Defiiiltioii. — Kapo is the act of a man having carnal know-
ledge of a woman, who is not his wife, without her con.sent, or
with consent which has been extorted by threats or fear of bodily
harm, or obtained by personating the woman's husband, or by false
and fraudulent representations as to the nature and quality of the
act.
2. No one under the age of fourteen years can commit this
offence. (Code, Art. 2(J6.)
Carnal knowledge is complete upon peiietration to any, even the
slightest degree, and oven without the emission of seed. (Code,
Art. 3cl.)
PlinlNhineiit. — Every one who commits rape is guilty of an
indictable offence and liable to suffer death, or to imprisonment for
life. (Code, Art. 267.)
A boy under the age of fourteen years is by law presumed to be
incapable of committing a rape. (1)
A husband, too, is legally incapable of committing a rape upon
his wife ; but a husband may be punished for aiding in the com-
mission of a rape upon his wife, (2) and so may a boy under four-
teen be punished for aiding in the commission of the offence. (3)
(1) 1 Hale 631 ; R. v. Groombridge, 7 C & P. 582 ; R. v. Philips, 8 C. & P-
736.
(2) R. V. Audley, 1 St, Tr. 393.
(3) 1 Hale 620, 639; R. v. Eldershaw, 3 C. & P. 396 ; R. v. Allen, 1 Den. 864-
RAPE. 645
A man who got into bod to a woman while she was asleep and
know she was asleep, and had connection with her while in that
state, was held guilty of rape. (1)
Whore a medical man, by pretending to be treating, medically,
a young girl under fourteen, had connection with her, she being
led to believe that it was part of the treatment, the prisoner was
held to be guilty of an indecent assault. (2)
It would now be a rape, and it was so held to be, in a later case,
where the prosecutrix, a girl of nineteen, had consulted the prisoner
as to her illness, and he, under pretence of i)erforniing a surgical
operation, had connection with her, she submitting under the belief
I hat he was merely performing the surgical operation. (3)
The defendant may adduce evidence to show that the woman is
of notoriously bad character, unchaste, and of indecent habits, or
that she is a common prostitute ; or to show that she has pre-
viously had carnal connection with himself of her own free will ; (4)
but he cannot adduce evidence of other particular acts with other
jiersons, so as to impeach her chastity. (5)
If asked on cross examination whether, outside of the prisoner,
she has had carnal connection with other men, named to her in
the questions, and if she deny having had any such intercourse
with them, her answer will be conclusive and those men cannot be
called to contradict her. (())
A man who gave a girl of thirteen, a quantity of intoxicating
liquor ^o excite her, and, on her becoming drunk, violated her,
while insensible to what he did, was held to have committed a
rape. (7)
Attempt to coiiiinit rape. — Every one is guilty of an
indictable offence and liable to seven years' imprisonment who
attempts to commit rape. (Code, Art. 268.)
(1) R. V Mayers, 12 Cox, 311.
(2) R. v. Case, 1 Den. 580 ; 19 L. J. (M.C.) 174.
(3) R. v. Flattery, 2 Q. B. D. 410; 46 L. J. (M.C.) 130.
(4) R. V. Riley, 18 Q. B. D. 481 ; 56 L. J. (M.C.) 52.
(5) R. v. Hod>!8on, R. & R. 211 ; R. v. Martin, 6 C. & P. 582.
(6) R. v. Holmes, L. R., 1 C. C. 334; 41 L. J. (M.C.) 12; R. v. Hodgson,
R. & K., ill.
(7) R. V. Camplin, 1 Den. C. C. 89.
G46 I'llACTICAFi OlIIDE TO MAOIHTHATES.
]>oflliii|( KirlN iiiid«'r f*oiirt<'oii. — Evcvy ono is guilty
of ail indictiiiilK otl'ouco iiiul liiiblo to imprisomuoiit for lifif, iiml to
bo whipped, who curniilly knows iiny girl under the age )f four-
toon years, not being his wife, whether ho believes her to bo of or
above that ago or not. (Code, Art. 2G!).)
An attempt to have carnal knowledge of any girl under fourteen
is punishable Uy two years imprisonment and whipping. (Code,
An. 270.)
A4liiiini.«(t('riii|{^(lrii|rM in or4l«'r to defile t'eiiialem.
— (See p. 4iV6, ante.)
C'ariiall;;^' liiiowiii}^; loiiiule idiotN or iliiiiiiiiieM.
— (See p. 518, ante.)
KECEIVtNG. '
ll4H*eivlii}r Property Olitaiuetl by any liitllct-
able Olteiiee — Everyone is guilty of an indictable ort'cnce,
and liable to fourteen years' imprisonment, who receives or retains in
his possession anything obtained by any offence punishable on indictment,
or by any acts wheresoever committed, which, if committed in
Canada after the commencement of this Act, would have con-
stituted an offence punishable upon indictment, knowing such
thing to have been so obtained. (Code, Art. 314.)
Keeeiviiig Ntoleu Post I^etter or PoNt-Ijettcr
bag. — Every one is guilty of an indictable ort'ence and liable to
tivo years' imprisonment who receives or retains in his possession,
any post-letter, post-letter bag, or any chattel, money or valuable
security, parcel or other thing, the stealing whereof is hereby
declared to be an indictable ott'ence, knowing the same to have
boon stolen. (Code, Art. 315.)
Kccel%'iiig Property Obtained by Offence Pun-
ishable fSnniiuarily. — Every one who receives or retains
in his possession anj'thing, knowing the same to be unlawfully
obtained, the stealing of which is punishable, on summary convic-
tion, either for every oft'ence, or for the first and second offence
only, is guilty of an offence and liable, on summary conviction, for
every first, second or subsequent offence of receiving, to the same
RECEIVING. 647
punislimont, us if ho wore guilty of a first, second or subsoquont
otlbnco of stealing the same. (Code, Art. 310.)
When KeceiviiiK Im Coin|»1<'te. — The act of receiving
anything unlawfully obtained is com|)kto as soon as the offender
has either exclusivkly or jointly with the tuiep or any other
person, possession of or control over such thing, or aids in conceal-
ing or disposing of it. (Code, Art. 317.)
As long as the exclusive possession of the goods still remains
with the thief or other principal offender, the alleged receiver can-
not be legally convicted of receiving. (1,)
"Where a defendant, who receives the goods has merely rendered
some aid in carrying them off, just after being stolen, ho may still
be convicted of receiving ; as where A. and B. broke into a ware-
house and stole thereout a quantity of butter, which they carried
along the street thirty yards, and then fetched C. who, being
apprised of the robbery, assisted in carrying the property away. (2)
A receiver of stolen property may be prosecuted whether the
principal ottendcr or thief has or has not been prosecuted or con-
vit.!toil ; and any number of receivers of different parts of property
stolen, may be tried together. (Code, Art. 627)
If a husband, knowing that his wife has stolen goods, receives
them from her, ho may be convicted of receiving. (3)
Eecent po.ssession of stolen property is evidence cither that the
person in possession stole it, or that he received it knowing it to bo
stolen, according to the circumstances of the particular case. (4)
The confession of the thief (unless made in the presence of and
assented to by the alleged receiver) is not evidence against the
person charged with the receiving. (5)
To show guilty knowledge, other instances of receiving goods
belonging to the prosecutor, from the same j)erson, may be proved ;
(1) H. V. Wiley, 20 L. .T. M. C, 4.
(2) R, V. Kins?. R. & K. 332 ; R. v. Atwell, '2 Fast P. C. 768.
(3) R. V. McAthey, 32 L. J. M. C. 35.
(4) R. V. LanKmead, L. & C. 427. R. v. McMahon, 13 Cox, (C. C R. Irish,)
275.
(5) B. V. Cox, 1 F. & F. 99.
648 PaAOTIOAL GUIDE TO MAGISTUATES.
(I) oven though thoy bo tho subjoct of other indictments and ante-
cedent to the receiving in question. (2)
In proceedings against a person for receiving or for liaving
possession of goods icnowing tiiem to bo stolon ovidonco may, in
order to sliow guilty knowledge, be given of his having been
fotmd in possossion of other property stolen within the preceiling
twelvemonths. (Code. Art. 7 Ki.)
It will not be sufficient however merely to prove that other pro-
perty stolen within the preceding twelve .months ha^, at S'>wie /'me during
the twelve months, been dealt with by the j)ris()ner, but it must
be proved that such other proj)er»y was found in tho pri-sonor's
j»os8ession at tho time when ho was found in possession of the pro-
perty forming the subjoct matter of the indictment, on which he
is being tried. Qi) Therefore, where, to show guilty knowledge,
evidence was tendered to prove that, a short time proviously, the
prisoner had sold tor half its value, and had otherwise dis|)osed of,
other ])roperty stolen within tho proceding twelve months, it was
held that such evidence was inadmissible. (4)
In proceedings taken against a person charged with receiving or
possessing stolen goods, evidence of his having been previously eon-
victed, W(//K/i_^«e (/mrs/^rts/, of any ortonco involving frauil or dis-
honesty may bo given, so as to show that he knew the goods in
question to be stolen. (Code, Art. 717.) *
KecviviiiK after rcMtoratioii to owner.— When
the thing unlawfully obtained has been restored to the owner, or
when a legal title to the thing so obtained has been acquired by
any person, a subsequent receiving thereof shall not be an ouonce
although the receiver may know that the thing bad previously
been dishonestly obtained. (Code, Art. 318.)
A., after stealing some goods, .sent them (by rail) in a parcel
addressed to B. ; C., an officer of the railway company, from infor-
mation received, examined the parcel at the place of destination,
(1) K. V. Dunn, 1 Moo, C. C. 146-
(2) K. v. Davis.GC. & P. 177.
(3) R. V. Carter, 53 L. J. M. C. 96.
(4) R. V. Drage, 14 Cox, 85.
RECOGNIZANCES. — RESTITUTION. — ROBBERY. 64!»
and stopped its delivery. It was called for by A., the thief, on the
day of its arrival, and refused to him. Next day, a porter, by O.'s
direction, took the p;ircoI to a house whieli A. had designated ; and
it was there received by B. Held, that B. could not be convicted
of receiving, as the goods had ceased to be stolen goods when re-
ceived by him from the porter sent by C. to deliver them. (1)
Hboounizances.
See pp. 409-418, ante.
llESTITUTION AND COMPENSATION.
Compensation for loss ok property — Article 836 of the Code,
provides that a court, on the trial of any person on an indict-
ment, may upon the api)lication of any person aggrieved and
immediately after the conviction of the offender award any sura of
money, not exceeding SlOOO, as compensation for any loss of pro-
perty suffered by the applicant by means of the offence of which
such offender in convicted ; and that the amount awarded for such
compensation shall be deemed a judgment debt duo to the ])erson
entitled to receive the same from the person so convicted, and that
the order for ])a3'ment of such amount may be enforced in the
same manner as in the case of any costs ordei-ed by the court to be
paid under Article 8iJ2 of the Code, (p. 2G!>, ante).
Compensation to bo.va-fide purchaser op stolen proi>euty —
(See p. 271, anie).
Restitution op stolen property — (See pp. 271-27 J, 270 and 305,
ante.)
EioTs.
See p. 483, ante.
ROBHEKY.
Definition. — Robbery is theft accompanied with violence or
threats of violence, to any person or property, used to extort the
property stolen, or to prevent oi- ovei-come resistance to its being
done. (Code, Art. 3!)7).
(1) R. v. Schmidt, 35 L. J. M. C. 59; R. v. Villensky (1S92), 2 Q. B.
597.
Q(K^ PRAOTICAI- (HIIDE Ttt MAGISTHATKS.
PliiiiNliiiK'iit ol* Kol>l»«'ry with l'lol«'ii(>4S— Kvoiy
ono irt guilty of an iiidicrlabli' oH'onoo and lialilo to iinpriHoiimont for
lifo and to bo vvliipju'd, who —
(a) rol)8 any ])or«oii, and at tho time of, or iniinodiatoly bofori!,
or immediately after such robbory, wounds, beatu, Mtriken, or uses
personal violence to such person ; or
(6) being together with any other person or poi'sons, robs, or
assaults with intent to rob, any person ; or
(c) being armed with an otlensive weapon or instrument, robs,
or assaults with intent to rob, any person. (Code, Art. 398.)
PiiiiImIiiii«'1i( ol'RoblM'ry. — Every one who commits rob-
bery is guilty of an indictable otlonce and liable to fourteen years'
imprisonment. (Code, Art. 399.)
AMNllllIt with intent to Kob. — Kvery one who assaults
any person with inteni to rob him, is guilty of an indictable offence
and liable to three years' imprisonment. (Code, Art. 400.)
The ditferenco between robbery and stealing from the person is
that tho former is open and violent, while the latter is generally
done clandestinely. In robbery, force is a necessary ingredient ;
in simple stealing from tho person it is not. For instance, merely
snatching ])ro))orty from a person umiwares, and running otf with
it, is not robbery. No such sudden taking or snatching is sutticient
to constitute robbery, unless at tho same time some in^ i y be done
to tho person, or there be a previous struggle for the possofiskm of
tho property, or some violence, or threats of violence, used to
obtain it. f 1)
If, however, any injury be done to tho person, or if there bo, by
the person stolon from, any struggle to keep possession of the pro-
perty before it is taken from him, there will be a sufficient actual
violence. Thus, Avhoro the prisoner had torn some hair from a
lady's head in snatching a heavy diamond pin from it, tho pin
having a corkscrew stalk and being twisted in her hair, which was
dosel}' frizzed and strongly craped, it was held to bo robbery. (2)
(1) Reg. v. Baker, 1 Leach 290; R. v. Walls, 2 C. & K. 214; Reg. v. Wal-
ton, L. & C. 288 ; R. v. Steward, 2 East. P. C. 702 ; R. v. Macauley, 1 Leach
287 ; R. v. Robins, 1 Leach 290.
(2) R. V. Mcore, 1 Leach 335.
I
RitllllKUV. Qfi\
\\ is nol iK'cysHuiy lliat tin- tliini; wlu-ii taUt'ii shoiild lie acliiiilly
(HI tlif owiH-r's luTsoii. It will lie siillii'it'iit it' l>y iiU'iiiisor violciiiM'
or tlii't'iils of violence it lie laUi-ii in IiIh prcsciici'. (1)
Tlierot'oi'c, if A., upon Imin^ aHSiuilted liy a thiol', throws his
purso or cloak into « huwh, and th«' lliicf takos it up and carries it
uwuy ; or if, while A. is flying from the thi(d', he lets fall his hut.
and the tliief lakes it up and carries it away, such taking heing
done in tlie presence of .\. will he snilieient. (2)
if the |)ro[ierty he once taken, tiie otlence will not he purged hy
the rohher delivering it liack to the owner.
l''or instance, A. re(iuires 15. to deliver his pursii, and he delivors
it accordingly when A. finding oidy two shillings in it, gives it to
him again. This is u talcimj hy robhery. (;J)
The faking, in rohhery. as in all other eases of theft inusi he
aniino Jurniidi ; and therefore if a person, under a 6o/((///V/f? impres-
sion tiuit tho property is his own. ohtain it hy threats, it is a trews-
puss and it may ho an assault l)ut not a rohhery. Thoroforo, whoro
A owed 15 money and H violently assaulted A and force(| him l>y
that nu'ans to then and there pay him tlu' deld. it was iu^lil thut
there was no felonious intent and no rohhery. (t) ,: '
Whore violence is used and the prosecutor forced to deliver his
property under circumstances calculated to I'xcite fear, the offence
will not the less amount to rohhery on account of the thief Imving
had recourse to some et)loi'al>K' or s])ecious pi'otonee, in oi'dt'r the
hotter to effoot liis pui-pose. Kor instance, one Hall at tho head of
a riotous moh stopped on tho highway a cart ladt^n witli ohoeHos
and insisted upon seizing them, for want of a permit. This was a
mere protenee, no permit heing nocessury. After some altiu'cation,
JIull induced the owner to go with him lieforo a magistrate ; and,
while they were absent, tho mob, by preconcerted arrangement
with Hall, pillaged the cart. On an action again^.t the hundred,
upon the statutes of hue and cry, tlie jury found that the ort'ence
was robbery. This finding was confirmed on a motion for new
(1) R. V. Francis, 2 Str.lOl.-). . .
(2) 3 Inst 08. . . ■ ■ ' , :'■
(3) K. V. I'eat, 1 Leach, 228.
(4) See R. v. Hemming^ 4 F. it F. ."iO.
42
652 PRACTICAI, OlIinE TO MAOI8TRATB8.
trial ; iind it wuh hold (Iml lh« tirst miizuro of tlm curt iiml ^oodH
l»nin^ hy violonoo in invHcncoot' tho ownor it constitutod tluMttl'iMicn
olio of rohbory. (1)
NtoppliiK il>«' i^ailwltli liitt'iit fo Kob or N«'ar«>li
It — iH iiidictui)l(> and piiiiishiiMo hy iinpi-iHoiuiioiit fur iifo (iind not
loHH timn f) yoiiVH.) (Code, Art. 401.)
Sramkn.
Soo ARMY and navy, pp. 44fi-450, ante.
Soo uJHo tlio Onvernment Vessels Discipline Act, R. S. C, o. 71, tho
Seamen's Act, 11. S. C, c. 74, (witli itH umondnionts, 53 Vio., c. 16,
and 57-r)8 Vic, c. 43), and tho Inland Waters Seamen's Act, li. S. C,
c. 75, as aniondod hy 56 Vic, c 24.
Sbarch Warrants.
See pp. 117-134, ante.
Seditious Offences.
(!)e«litloilN WordN. — Seditious words aro words expressive
of a seditious intention.
NcditloUN I^ibc'l. — A seditious lihol is a libel expressive of
a seditious intention.
NcditJouN CoiiN|>iriM*y. — A seditious eonspirucy is an
agreement between two or more ])ersons to carry into execution a
se<litious intention. (Code, Art. 123.)
PuiaiNliiiicnt of NeditioiiN Ofl«'ii<*(>H. — Everyone is
guilty of an indictable otl'encc and liable to two years' imprison-
ment who speaks any seditious woi'ds or j)ublishes any seditious
libel or is a i)arty to any seditious conspiracy. (Code, Art. 124.)
Seduction.
Me<lii«iioii 4»t' CiiirlN l»«>tw<>eii Fourteen und Mix-
teen. — Hvcry one isguilty of an indictable oti'ence and liable to two
(1) Merriiiiun v. Oiippeiiliam Hundred, 2 East P. C. 701).
8RIHICTION.
yi'iiTH' iiiipriHoniiuMit who soduoos or lias illicit connoction witli any
i^irl »)f'))iTvi()usly cluisto cliiimctiT, of or iihovo thii a;,'o of I'ourtonn
yciirH and undtd' tho ngo oCHixloun yoarn. (Codo, Art. IRl.)
Tliin Articlo haw tlio wnrdH " Hcd ucoh or has illicit connection;
HO that while Mcdiiclion, if |)rovod will lii^ i>uniHhal)lc it would Hooni
alHo that the more act of carnal connoction with a previously chaste
girl lie1wo(Mi the nffi' oC fourteen and sixteen years would ho sulfl-
ciont, of itself, to constitute un otVence under this Article.
N<Mlii4'tioii under l*roiiilN<> oi* ^iirrliiK«>. — Kvory
one, ahove the ajjje of IwtMity-one years, is guilty of an indictahlo
oll'ence und liahle to two years' imprisonment who, under promise of
marriat/e, seduces am/ has illicit connoction with any unnuirried female
of previously (duisto character and under twenty-one years of age.
(Code, Art. 182.)
Ncdiivtioiiot'WiirdfNerwaiit^Kto. — Hvery one is guilty
of an indictahle ortonceaiul liable to two years' imprisonment who,
being a guardian, seduces or lias illicit connection with his ward, and
every one who seduces or has illicit cotmection with any woman or
girl of j)roviously chaste character and under the ago of twenty-
one years, who is in his employment in a factory, mill or work-
shop, or who being in a common employment with him in such
factory, mill or workshop, is, in respect of her employment or work
in such factory, mill or workshop, under or in any way subject to
his control or direction, (('ode. Art. 183.)
deduction of Fc^iiiiile FtiNM<>ii)c«>rM on Y«>nm«1n.—
Kvory one is guilty of an indictablo ott'ence and liable to a tine of four
hundreddollars, or to oneyear'simprisonment, who, being the master
or other officer or a seaman or other person employed on board of
any vessel, while such vessel is in any water within tho jurisdiction
of tho Pai'liamcnt of Canada, under promise of marriaije, or by threats.,
or by the exercise of his authority, or by solicitation, or the making of
gifts or present<i. wdyu'OH ami has illicit connection with any female
passenger.
2. Tho 8\ibsoquent intermarriage of the seducer and the seduced
is, if pleaded, a good defence to any indictment for any ottbnco
against this or either of the two next preceding sections except in
the case of a guardian seducing his ward. (Code, Art. 184.)
(]7)4 IMlArTirAt, (llinE to MAHIsTltATKS.
Sllll'H,
Cahtinci awav till l>KHriioviNti A Smi'. — Sec whecmno, p. (121,
ante, uixl hw attkmi'Tm to miihdkk, p. r>fl(i. nntr.
I'UKVKNTINU TIIK SaVINU OK A WllKCKKK N'KSSKI,, nil WitErK. —
Si'i' p. (ili'J, tintf.
Pll»VKNTlN<l TIIK SaVINO OK A Sll II'WIIKCK K|) I'kKSOn's I,1I'K,—
(SocCodf, An. 2r)4.)
SkNDIN(J oil 'rAMNO \Ny rNSKAWuKTIiy Shii'toSea. — It is nil
iinlicliihlo olU'iicc pmiiHiialili' l»y VIVK ^'outh' iiiiprisoiiniont lor iiiiy
olu> to sEMi oi- ATTKMI'T TO SBM), or Inl' ally IIUIMhT (o Ullowillgly
TAKE liny Cmiadian nliip (in an iiiiscawoi'iiiy slate) to sea or on ti
voyage on any of tin* inland walcis ni' Canada, or on a voyago
botw<''.'.i thf n'Mpcclivi' ports o|' ihr inland walt-rs of Canada and
tlu' inilcd Slates. (Code. Arlieles I'.'dl and LTtT )
.Sou AiisoN, pp. 150 455. ante.
SaKKTY ok SiIII'S ami I'UKVKNTION OK .\ (TIUKNTS TIIKIIKoV.
See l{. S. ('., e. 77, it'd \if., e. 22, .'JKii') Vie., e. 3S, and .'t7 5S Vie., e-
44.
Inspection of Smi'.s and Steamiioats.— .Scc p. .^)7!i, tmte.
Siiii'i'iNQ OK liiVE SrofK. — Soo 54-').') \'ic.. e. ;{(;.
Markino ok I»E(K a.mi Load Links. — See 54-55 Vie., e. Id. See
also 5() Vic., e. 22.
SlIooTINd.
V
SiiooTiNM WITH Intent TO Murdek. — See atte.mi'ts to MriinEH.
|). 5()(.!. ante.
Siiootinu with Intk.ntto Woind, Ktc. — See woi ndi.no. /)oa^
PoiNTiNu A KiuEAK.M. — See ]). (jii2, ante.
See AS. .1.ULT8 ON THE QiJKEN. ]>, l(J5, ante.
Spring (Suns.
Settino Si'RiNfi »iiiNS AND Man Trai's. — This is indielalile anil
punislialiie by FIVE years' iinpri.soiuuent if done with intent to des-
troy or iuHiot grievous bodily harm on any trespasser or otiier per-
son coming in contact with the instrument .set. (Code, Art. 24!>.)
HtTKMDK, — HINttAY. II6A
Sii('ii)«,
.%i«llll|C IIIkI .iliclllliu; Mlll4'i4l«*.— Kvcryitiic \h u;iiilty ot'
ill I iii(lirtitl)l(M)ll'(>iic«aiiil liiililc to iinprisiiiiiMiMil I'm- lil'c wlm <-i>uiinoIh
nr pnicuri'M any |K«rHiiii In coiiimit Hiiiiidt-, urlimlly cnniinilliMl in
roiisi'qiiciicc III' Hiicli nimiHi'iliiij^ nr |iriiniri'irii'iit. or wlm aiils or
alii'ls any |»rsoii in I lu' roinniis^tion of siiiriilo. (Codo, Arl. mUl.)
.ill 4>iii|»f l«i 4'4>iiiiiiil Niil4*i«l('.— I'lviM-yonn wlioatti'inplM
lo comiiiii siiiciijr is o'liiii V (iT ill! iiKJiiiiilili' oMciii'i' ami lialili'io two
ynirn' iniiirisimnicnl. (('oilr. Art. 23H.)
SrMiAY.
In till' provinri' III' t^iu'licr. it is |irovi(|c(l thai, (with tlu> cxrop-
lioii of till' sale at cliiircli ilonrs of count ry pai'isln's o|' the (^H'crts
arisini; I'l'oin piiMic gallmrin^M I'or ilif licnciii o|' ciiiirchi's or ilio-.c
ili'siiiicii lot' pious pnrposi's). no siiiii>i<kki'kii, I'KDi.AK, iiAWKKiior
oTiiEK I'KHsoN siiiiil sill or ri'tiiil any gooils. wai'i's or ini'i'dianilisi'
iluriiig Siinilay. uinli'i' a prnalty not I'xi'ociling ^20 for tlii' tirsi
oH'oiui' ami no( li- s tlianf^JU or mori' tiiaii ^10 for rvi'ry suiisiMjuont
olViMici". ( li*. S. (^.. Art.;iH»S.) Mill no prosi'ciition shall In' insti-
tiilcil for any surh liiK' iinli-s.s it he eonuiu'iici'il within two months
afti-r till- ollciifo I'oimiiitlfil. (R. S. (l, Art, ;;,'i(ll )
Wlu'i'i- ifcncral wonU j'dllow parliriihir ones thi' rule is to i-on-
striir thrill as applicahlc lo pi'rsons ejiis'lein generis ; (1 ) ami, llicrc-
forci, tlio wonls 'on oiiir.it pkubon " in the aliovc Articlo, 3498!
of the l>. S. <^. niiist hr taken to iiiclmli' only all persons of tin*
saino ileseriplioii as ijiose partieiilari/.cil in tliu jircceding words,
" HHoi'KEErKK. I'KiiKAR, iiAWKKii," that is to say, all piTsoiiH follow-
ing .sonio puvlicMilar calling covorod by thu doscription conlainod
in the words siioi'IvEKI'KR. I'Eni-Ait and hawker.
Article T2!t of the Code, provides that the taking of the verdict
of the Jury shall not he invalid hy reason of its hapiiening on a
Sunday.
Si RETiEs For the Peace.
Soo pp. 419-422, ante.
(1) Per Lord Tenterden, in Saiidiniau v. Breath, 7 B. & C. 100.
tiftU IMiACTIOAI. onitK TO MAillHTItATKH.
TllBKT,
TliliiKM 4*a|iiil>l«> ol* Ik'Iiik NIoI«»ii.— Kvi>iy iMiiiiiinulo
tliiii;^ \vhal(>v«'r which \h the properly ol uuy porMoii, uml which cilhor
ir* or iiiuy lit' iiiiiih' inovcuhU', Nhiill ht'iicct'ortli h«> cnpahh' ol' li«<iii^
mIoU-ii iih mioii iiH it lii'coiiit'N nioV(>ahlt',ullhoii^h il In iiiii<lt' iMovi<uhli>
in onlur to Htt'iil it : Provided, timt nolliin^ ^rowiti^ out of tht«
eftrth of II viiliie hot exeeedilij^ I went y live ceiils Hhiill (except in
tho eawcH olhorwiMo provided) Lo doomed eapuhlu of buiii^ stolwn.
(Code, Art. :U)3.)
AiiIiiihIn <'n|»nhl«' of I><>Iiik Nlol<>n.— All tmne living
Croat 11 rcM, whet Iter tamo hy nature or wild liy iiutiiro and tamed, Nhiill
hu eupalilo of boin^ htoleii ; hut tamo pigooiiH Hhall lie capahlo of
hoiii^ hIoKmi so loii^ only aH I hoy are in a dovooolo or on iheir
owner'H land.
2. All liviii)^ oroaturoH wild ]>y naturo, Nuch as aro not commonly
found in a condition of natural lihorty in (*anada, hIuiII, if Uopt in
a Htato of oontinomoiit, bo cupablo of hoing Mtolon, not only wlillo
thoy aro HO eon ti nod but Jiftor thoy havooneapod from oontinemont.
3. All other living eroaturoH wild hy naturo mIuiII, if kept in a
Mtato of conlinement, lie ca|)ahle of heiiij^ Mtolon ho long an thoy
remain in conlinomont or aro being uctually pursuod aftor oHcai»ing
thorofrom but no longor.
4. A wild living oroaturo Hhall ho doomod to bo in a Htato ol'con-
Hnomont ho long aw it Ih in a don, oago or small oi\oloHuro, styo or
tank, or is othorwiHo so situated that it cannot oscapo and that its
owner can take possession of it at pleasure.
5. Oyfltorsand 03'stor brood ishall ho capable of being stolen when
in oyster beds, layings, and tisheries which aro the projjorty of any
person, and suffloiontly marked out or known as such property.
6. Wild creatures in the enjoyment of their natural libertv shall
not bo capable of being stolen, nor shall tho taking of their dead
bodies by, or by tho orders of, tht! person who killed them before
thoy aro reducoil into actual possession by tho owner of tlio land
on which thoy died, bo doomed to bo theft.
7. Every thing produced by or forming part of any living
cmitiironipul)!.. ..f lK.|n« Htolon «|iul| |„, ,.,ip,il,l,. of iK-inir NtoUm
(('<hI«', Art. ;j()l.)
TiM'f'l I»«>IIimmI.— Tlu^ft or ntottling Ih tin. not o\' fraudulently
and »vy/wu^ colour of right taking, ov rmii.lul.'nUy himI wiMu.iU c.ih.ur
of riglii, miw^rfiflj/ to the use of imy |hw-.oii, ui.yihin^ cuimhlo of
boiiig Nfolon, ivith intent —
(rt) to deprive tint ownor, or ;uiy |M«rM.n Imvin;^ imy NjKutial pro-
ptu-Jy or iiiti-rcHt thuroin, tKinporurily or alwolutoly of mucIi thing
or of Miicli property or itiltiroHt ; or
(/>) to pledye Hut wirne or dopoHit it iin Hocurity ; or
(c) U, part with it under a condition hh to Kn rotiirii, whiiJi tli"
pernoii piirtiiig witli it may bo unable to perform; or
(</) to deal with it in mucIi u manner tliat it cannot he restored in
tho condition in which it waH at the time of wnch tal<in^' and con
vorwion.
2. The taking or convcrMion may lio frandident.allliongh cH'tictod
without secrecy or attempt at concc-alment.
8. It in immaterial whether the thing converted waN taken for
tho purpoHe of converHion, or whether it wan, at the time of the
converMion, in the hiwful itoHMCHNion of the person converting.
4. Theft is committed when the ottendur moveM tlie thing or
eauHCH it to move or to be moved, or hi'gins to cause it to beconu)
moveable, with intent to steal il.
6. Provided that no factor or agent shall bo guilty of theft by
pledging ov giving a lien on any goods or document of title to goods
intrusted to lum for the purpose of sale or otherwise, for any sum
of money not greater than tho amount duo to liim from his prin-
cipal at the time of pledging or giving a lien on tho same, together
with the amount of any bill of exchange uccoptod by him foror on
account of his principal.
6. Provided, tlnit if any servant, contrary to the ordei-s of his
master, takes from his possession any food for tho pi^rpose of
giving tho same, or having tho same given to any horse or other
animal belonging to or in the possession of his ma8tor, the servant
658 PRACTICAL (lUIDE TO MAdlSTHATKS.
su olluiidiiig hIuiII not, by rouHon thevoof, bo guilty ot'thol't. (Code.
Art. ;J05.
Tho \)h\'mo, ^- without color of right," ioruunir |iai't of the nbovo
dotinilioii oi' llu'Ct, soi'ius (u be iulendod to lalo' tlie place of tbo
word feloniously, wliieli in coiiueetioii with the deliiiitioii of larceny
is usually said to mean •' without color of rinht." (I)
Theft niaj" be t-ithei- simple or aygravatetl. Simple theft is wo
closely eoniioeted with ci-rtain kinds of fraiids that the two sub-
ji'cts run into each other. T\n'i'\ , iii/i/nivatid by tvolenc'.. \s either
rohliery or extortion; and thefl, accoin|ianied by wilful ti'espass on
a dwelling-house, is either burglary or housebreaking.
Theft is no longer restricted to what, under the common law,
constituted the otleiice of stealing or larceny — the principal ingre-
dient of which was the physical as[(i)rtation or laUing or carrying
away of i)ei'sonal pro)»erty out of the ])OSKession and against the
will of the owner — but it is extende(l to and madi' to cover all
other means of fraudulent misappropriation ; so that theft, as a gen-
eral term, now includes ev(uy thing ami I'vi'ry act amounting to
larceny under the common law, as one of the dilVerent ways in
which the olVence of theft maybe eommilled. Ibit whether the
act be a TAKINO of the thing out of the owner's possession, or a
ooNVElisioN of it while in the otVender's lawful possession, the
essence of the otT'ence will still be tlu^ intent with which the act is
done. For instance, if A. were to place his horse and cart opposite
to H.'s door, and H., not wishing to have them there, were to lay
hold of the horse and lead it away, an<l leave it and the cart at a
short distance from where it originally stood, there would be a
taking by li. of the iiorse and curt into his temporary i)ossession,
but no conversion and no intent to dei)rive \. of his property. H.'s
intent being merely to remove the horse and cart tVom oppo.site
to B.'s door (where tliey were in A.'s ])ossession), to another place
away from B.'s door, whore they still remain in .\.'s ])ossossion.
If, iinder color ol' having a claim for arrears of rent, A. distrains
the cattle of B., his tenant, this may amount to a civil wrong — a
tresjiass, for instance, under the common law of England as to
civil matters — but no theft. (2)
( 1 ) R. V. Thurborn, 1 Den. 388 ; 2 C & K. 831
(2) 1 Hale, 509.
TIIEKT. 65!)
It' A., luiving (1(1110 work upon an urticlo, roturiis it to B., tho
owner, and then, on ii dispute tirisiiiy hetwoon thorn as to tho prieo
to be jiaid for tlic \vorl<, A. takes and carries oil' tin; article against
B.'s will, honestly intending; to hold it as security lor the amount
which is alle<rod to ho duo to him, this is no theft, although in ftict
it turn out that there was nothing due to him. (1)
Under subsootion 4, of article 1^1(5, theft by taking is committed as
soon as the otfcndcr moves the thing, or causes it to move or to he
moved, or hegins to cause it to licconie nioveahle, with intent to
steal it.
Where a thief, intending to steal some plate, took il (Uit of a
chest in wliicli it mus. and laid it down u|)on tiic floor. Imt was
surprised lieforo he eoulil make otf with it, it was held a sutficient
taking ; (^2) and where, with the intention of stealing a cask of
wine, the thief removed it from the head to tlu' tail of the wagon
upon whi( li it lay. il was also held sutlicienl. (3)
'I'lu' transfer, l>y a letter-carrier, of a lettei' from his |)oucli to
his pocket was held a sutlicient asportation. (4)
AVliere the thief was unable to carry otf the goods on account of
their being attached by a string on the counter, (5) or to carry
off a pur.se on account of sonu- keys attached to the strings of it
getting entangled in the owner's jjocket. ((!) il was heUl m these
eases that there was not a sutlicient carrying away to constitute
larceny, but that to render tho asporation comjilete in siudi cases
there must be a severance. It would seem likel}-, however, that
under sub.section 4, of article ;>()5. these cases may now be held to
be covered, so as to make them thfft bytnkiiuj; for that sul)section
makes it a sutticient taking as soon as th«; olfender moves the thing,
or causes it to move, or begins to cause it to be moveable.
It is clear that, under the common law not only was it no larceny
if the owner himself of his own free-will [)arted with the jiroperty
(1) R. V. 'W'ade, UCox, 549.
(2) R. v. Simpson, Kel.31 ; 1 Hawk. c. So, s. 2.'>.
(:;) R. V. Walsh, 1 Moo. C. C. 14.
(4) R. V. Poynton, L. & ( '. 247 ; 32 L. J. (M. C.) 29.
(5) i4»oji, 2 East. P. C. 55().
(G) K. V. Wilkinson, 1 Hale, 5C8.
660 PRACTICAL OUIDE TO MAGISTRATES.
in the goods taken ; (I) but the same principle applied whenever
the servant from vvhon goods were obtained had a general author-
ity to act ibr his employer, and while acting under such general
authority willingly parted with the goods ; the person to whom
they were thus delivered not being guilty of larceny.
For instance, where a person obtained money from the cashier
of a bank by presenting, knowing it to be forged, a forged order
purporting to be drawn by one of the bank's customers, it was
held not to bo larceny ; because the cashier voluntarily parted
with the money, and was acting within the scope of his general
authority. (2)
Where a person, having tlie animus furandi, obtained possession
of goods by means of some trick or artitice, it was considered lar-
ceny, under the common law, even though there was an actual
delivery, if the owner did not intend to part with his entire right
of property, but only with the temporary possession of the goods.
Where A., by means of what is known as the ^urse trick, induced
B. to give him a shilling for a pui'se by showing B. three shillings
and then making it appear as if he. A., had dropped them into the
purse whereas in fact he had only dropped in three half-pence, it
was held not to be larceny, but false pretences. (3)
Where an automatic box, the property of a company, was placed
in a public passage, and was so constructed that, upon a penny
being placed in it, through a slot, a cigarette was ejected from it,
and the prisoner, instead of putting a penny in the box put into it
a metal disc of the size of a penny, and so obtained a cigarette, he
was held guilty of larceny. (4)
With regard to larceny of lost things, the general rule, under the
common law, seems to have been that if a person found goods
which had been actually lost or reasonably supposed by him to
have been lost, and appropriated them, with intent to take the
entire dominion over them, really believing, when he took them,
(1) R. V. Macgrath, L. R. 1 C. C. R. 205 ; R. v. Harvey, 1 Leach, 467; R. v
Adame, R. & R. 225 ; R. v. Colemqn, 2 East, P. C. 672 ; R. v. Tliomas, 9 C. &
P. 741 ; R. V. Atkinson, 2 East, P. C. 673.
(2) R. V. Prince, 1 C. C. R. 205.
(3) R. V. Solomons, 17 Cox, C. C. R. 93.
(4) R. V. Hands, 16 Cox, C. C. R. 188.
TBBFT. 661
that the owner coi'.Ul not bo found, it was not hirceny ; but if he
tooli them with the like intent, though lost, or reasonubly supposed
to be lost, but reasonably believing that the owner could bo found,
it was larceny. (1) it was necessary that the pnsoner at the time
of finding, should believe that the owner could be ascertained, and
without this, un intention to appropriate, at the time of the finding,
did not make the prisoner guilty of larceny, although he ascer-
tained the name of the owner before converting to his own use. (2)
It will be seen that now, under Article 305, a finder of lost goods
will render himself liable to prosecution for theft by conversion, if
after finding the goods he discover the name of the owner and do
not restore them, but converts them to his own use, although at
the time of finding them he neither knew the owner nor believed
nor had reasonable grounds for believing that the owner could be
found.
The following are some of the cases decided under the old rule.
A. put 900 guineas in a secret drawer in a bureau, and died. B.,
her son and executor, lent the bureau to his brother, C, who, after
keeping it several years, sold it to 1)., who gave it out to be
repaired by E., who found the money. Held, to be such a taking,
by E., out of the possession of A., as to constitute larceny. (3)
If a cabman converted to his own use a parcel left by a passenger
in his cab, by mistake, it was larceny, by the common law, if he
knew the owner, or if he took him or sot him down at a particular
place where he could have enquired for him. (4)
In every case where the property was not, properly speaking,
lost, but only mislaid, under circumstances which would enable the
owner to know where to look for and find it, the person finding
and aj^propriiiting property so mislaid was held guilty of larceny
* under the common law.
The subject of larceny, or, theft by taking, as we may now call it,
is intimately connected with the doctrine of property, and more
(1) 3 Inst. 108 ; 1 Hawk, c. 33, a. 2.
(2) R. V. Thurborn, 1 Den. 388 ; 2 C. <Sr K. 831 ; R. v. Christopher. Bell, 27 ;
B. V. Kerr, 8 C. & F. 176; R. v. Reed, C. & Mar. 306; R. v. Matthews, 12
Cox, C. C. R. 489.
(3) Cartwright v. Green, 8 Ves. 406 ; 2 Leach, 952.
(4) B. V. Wynne, 2 East, P. C €64 ; 1 Leach, 413 ; R. v. Lear, 1 Leach, 415 n
(tfi2 PRACTtcAr, (hhhk to maoistuatks.
imrtit'ularly with tliiit purl of it wiiich I'l'lati-s to imissession ; iiiid
tlu> point upon which. miiU'r llio conuiion law, tlic most sulitlc
(|uostioiis iiavc arisen as to possession was .the distinction between
theft and ('>nl)<'::l,vu'nt in connection with whitdi it has heen hehi
that. Ihoiiifh tile master's possei^nion continued wiien he liiniselt'
gave tlie curtail;/ of a tinny; to his servant, it (the inastiTs posses-
sion) did not be//in wlien liie servant received from sonu' one else, a
thing for or an account of I lie master. So, that, a servant, liaving
received something on ids mastei-s account tVom n liurd person,
committed emhezzlenient, if lu' appropi-iated it before doing an act to
ve.st the pos.session of it in ins master, iiul if he approjiriated it,
after doing some such act, he comndtted theft. This useless dis-
tinctii>n between 'riiKi'"r and eiulie/./.ienient is now I'Utirely
removed bj- Articles 3(l5 and ;5t)S-;Ut» of the Code.
Kor sjiecitic acts of tiikft and the diilerenl punishmenis imposed
according to the description of the article stolen or the position or
occupation of the oll'endcr. set^ .\rticles .■!l!i-;!5T of the ("ode : and
see also tlu' t.vule of iNnicTAnLE ofkkncks at ji. "JSS ante, and
tlie TAiu.E of No.v-iN'DlCT.viu.K otfcnces at |>. K»'( ante.
TiK'ft O^TIlill^-N llll«l4>l* ^»«*i*liro. — lOvery one commits
tlieft and steals the thing taken or cari'ied away who. wlielher
preteiuling to be the owni'i- or not. secretly or openly. taUes or
carries away, or causes to l)0 taken or carried away, without lawful
authorit}'. any property under lawful seizure and detention.
(Code, Art. 30(1. )
Ntcaliii^r I'lMiiii tlli' I"«'rN«ii. — Kvery one is guilty of
an indictable (dfence ami liable to fourteen j'cars' imprisonment
who steals any ••battel, money or valuable security from the ]ierson
of another, ((.'ode, Art. 344.)
To constitute this ortence. the thing must be taken either from
the person of the prosecutor, or in bis jireseuce. (1)
Wliere A. drew a book from the inside of Us coat pocket about
an inci> above the top of the pocket, but, whilst the book was still
about B's jierson, B. suddeidy put \ip bis band, when A. let go his
hold and the book dro])ped back into the pocket. Held not to
constitute stealing from the person, but a sim|)le hirceuy. (2)
(1) R. v. Francis. 2 Str. 101.5 ; R. v. Grey, 2 East, P. C. 708.
(2) R. v. T1jouii)sou, 1 Mood, 7S.
TIIEt'T. fi(i3
MloiiliiiK; ill ll«v«>lliiiu;-ll4»llM«'M. — Kvt-ry one is ^'iiilly
oraii iiidictahlc olVi'iicc and ialilc to lourhu'ii yi-ars' ihi|>ris()iniu'iil
wliit —
(n.) steals in any (Iwciliiif^-lioiisc any cliaftt'I. money or vnluahle
security U^ tlie value in tiie wliole ol' Uveiily-tive dollars or more ;
or,
(/;.) steals any chattel, money or valnaMi' seeurit_y in any dwell-
ing-honse. and hy any menace or threat puts anyone therein in
liodily tear. (Code. Art. ;J4').)
Wlu-re a person in ids own d\vellint;-house stole i'rom anotiier
person goods of the valne of (JT), it was held to constitnte, nnder
the I'Jiylish statute, the ollenee of stealinuf in a dwelliny-honse. (1)
A. a lody(,'r, invited B. an aei|uainlance. to sleep at Ins !odgina;s.
(without the knowlcMJife of ('., the landlord of the iiouse. ) and
durinj.^' the infill. A. stole B's wateh iVom the hed's head. Jlcld.
that A. was properly convicted of stcaliny- in the dwelling' house.
if one, (jn jfoinui; to heil. put his clothes and money hy his hedside,
they are under tlu^ i)rotection of the dwelling house, and utit of the
jiurson. (ii)
|{i*ill^;ill^' Hlolvii l*i'0|»4'i*ly iiilo C'aiuKla. — livery
out! is guilty of an indictal)leo Hence and liaMi^ to seven yi'ars' impri-
sonment who, having obtained elsewlu^i'e than in Canada any i)ro-
perty l»y any act which if done in (Canada would have amounted
to theft, brings such property into oi' has tiie same in Canada.
(Code, Art. ;j55.) ' ; . \: v
Nl«'aliii{> Tllill^^N ii4»( of IicimvImo I'rovidtMl lor. —
Kverj' one is guilty of an indictable ott'ence and liable to seven
j-oars' imiirisonment who steals anything, for the stealing of which
no punishment is otherwise provided, or c(Mnmits in respect thereof
any oH'ence for which he is liable to the .same punishment as if he
had stolen the same.
il) K V. Bowden, 2 Mood. ('. C. 285; 1 C c^ K. 147.
(2) R. V. Tayior, K. ct. H. 418.
(3) li. V. Thomas, Cur. .Sup. 21».).
664 I'RACTICAl. UlUDB TO MAUI8TRATE.S.
2. Tlio offondev is Hahlo to iou years' im|>riHoniiH'nt it' ho has
iiocii previously coiivietod ot'tiiot't. (Code, Art. ;{5().)
TllRKATS. ■ \
€'oin|»<'lliiiK Kx<'ciitioii oi'llo«*iiiiit>iitN h;;^' Forvp
or TlimitN oI'VloIoiiCi'. — Kvery ouo is guilty of an indict-
al)lo otI'oiH'i' and lialile to ini|irisoninent for life who, with intent to
defraud, or injure, hy uidawful violence to, or restraint of the person
of another, or hy the threat that either the oltbndor or any other per-
son willeinj)loy such violence or restraint, unlawfully compels any
person to execute, make, aece|>t, endorse, alter or destroy the whole
or any part of an^' valuahle security, or to write, imjiressor attix any
name or seal |n])on any paper or parchment, in order that it may
be afterwards made or converted into or used or dealt with as a
valuable secnrit}'.
The ])rovision contained in tliis article, 402, meets such cases as
R. V. I'hipoe, in which it was held that where one })ers(m compelled
another, by threats, to sign a promissory note it was no robbery,
the note being of no value to the party signing it. (1)
I>viiiaii«linff with iiitciitto NttMll. — Kvery one is guilty
of an indictable offence and liable to two years' imprisonment who,
with menaces, demands from any person, either for himself or for
any other ]H'rs()n, anything capable of being stolen with intent to steal
it. (Code, Art. 404.)
The gist of the ott'ence is the demand itself accompanied with
menaces and an intent to steal ; and, therefore, if such a demand is
successful it amounts to an actual theft.
As menaces are of two kinds, — by words or by gestures, — it
seems that it is not necessary to prove an express demand in words.
but that if the words or gestures of the defendant at the time were
plainly indicative of what he required and tantamount in fact to a
demand, though not in actual words, it would seem to be sufficient
proof of the allegation, in the indictment, of a demand. (2)
(1) K. V. Phipoe, 2 Leach, (>73.
(2) K. v. Jackson, 1 Leach, 2(39.
THREATS. 6(;5
Tlir«'nt4'iiiiiff liCttcrw. — Kvory ono in ^'iiilfy o\' un indict-
able ortonco and lialtlo to fburtoon years' impriHonnuMit who wonds,
dolivovH or ntloi-s, or diroctly or indiivctly cauites to be reffeived.
kiiowiiiiuj the ('oi\teiits thereof, any letter or writing demandimj of
any person with menaces, and without aiij' reaH()nai)le or ])rohahle
cause, any property, ehattol, money, vahuihle security or other va-
luable thin<^.
It will be sutlieient evidence of the sending or causing to be re-
ceived to prove that the defendant placed the letter in a ])Iace
where he knew the ])roHecutor would come, and that it tluis reach-
ed him, or, that it was there picked up by another piu-son and by
him delivered to the jtrosecutor ; (1) or that the letter is in the
defendant's handwriting and came to the prosecutor tlirough the
post. (2)
Sending a letter to A., in order that he maj' deliver it to B., is a
sending to B., if the letter is delivered by A. to ii. (3) And the
leaving of a letter, directed to A., near A's htmse, with the inten-
tion tluit it should not only reacli A. but B. also, was held to bo a
sending of it to B., by whom it was afterwards seen. (4)
The words " without any reasonable or probable cause " apply
to the demand for money, and not to the threatened accusation to
be made against the pro.secutor ; and therefore it is immaterial in
point of law whether the threatened accusation be true or not. (5)
Tlir<'»tN to avciiNC oi' a rupital or liiraiiioiiN
vriiiil'. — Kvery one is guilty of an indictable offence and liable
to fourteen years' imprisonment who, with intent to extort or gain
anything from any person — :'
(a.) accuses or threatens to accuse either that person or any other
person, whether the person accused or threatened with accusation is
(/uiitt/ or not. — of — (i) any ottei\ce i)unisbable by law with death or
imprisonment for seven years or more ; (ii) any as.sault with intent
(1) R. V. Lloyd, 2 East, P. C. 1122 ; K. v. VVaj,'8tafl', R. & R. S08.
(2) R. v. Hemming, 2 East P. C 1116 ; R. v. Jep3on, 2 East, P. C. 1115.
(S; K. V. Paddle, R. & R. 484.
(4) R. v. Grimwade, 1 Den. 30 ; I C. & K. o92.
(5) R. V. Hamilton, 1 C. <k K, 212 ; R. v. Gardner, 1 C. & P. 479.
(KUi I'llACTICAL (irrt)E TO MAdlSTUATBN.
to ('oiiiiiiii II i'a|K'. or any Htti>in|it or ciKloaxoui' to iniiuiiit a i'a|)(>. or
any imlcctMil aHsault ; (iii) carnally Unowin;^ or attfiMplinji; (o
know any fliild so an (o l)o iPunisliaMf nnder lliisAtI ; (iv) any
infamous oIliMU-i-, thai is to nay lin^ncry, an alti'mpl or assault
with int'.^nt to t'oniniit lin!xu;»'ry, or any unnatural |ira('lico, or in-
cest ; (v) counselling^ or procurlnif any person to coniniit an}' such
infamous otVcncc ; or
{h.) ihivali'Ms tiiat any person shall Ixt so accused hyanyot]\er
person ; or
(c.) causi's any pi-rsoii to ri'ceive a document containing sucli
accusation i>r threat, knowing the contents thereof ; or
Qi.) I>3' any of llie means aforesaid compels or atleni|its to com-
pel an}' ])erson to execute, make, accept, endorse, alter or destroy
thi' whole or any part of any valiiaMe security, or to write, impress
or allix any name or seal upon oi- to any paper or parchment, in
order that it may he afterwards made or converted into or used ov
dealt witii as a valuahle si'curity. (Code, Art. 40').)
Under tiiis Article, the accusation or the threat to accu.se nuiy
he either verhal or in the shaiu' id' a document.
It .seems that the thi'cat uee(l not he a threat to accuse liet^oro a
judicial trilniual; l)Ut that a threat to make the accusation heforo
a third parly is sutlicient. ( 1)
I'roof that the prisoner went to the prosecutor, and threatened
to accuse his son of an unnatural otlence with a imire uidess the
prosecutor would huy the mare foi- ,t!3. was held to sustain an
imiictment for threatening to accuse of an ahominahle crime, witli
intent therehy to extort monoy. (2)
fiXtortioii l».y Tliroatw io A4*<*iiMt' ol' iiii^ oilier
OftVllCC. — Kvery one is yuilty of an indictahle olfence, and liable
o imprisonment for seven years who —
(((.) witli intent to extort or gain anything from any person
accuses or threatens to accust^ either that ])ei'son or any other
person of any otlence other than tiiose specitied in the last section,
(1) R. V. Robiusoii, 2 M. & Rob. 14.
(2) K. V. Eledman, L R. 1 C. C. I^. 12.
THADl-MAHKH.— THKASON. ^^^,J
Whether the person accused or threatened with lucuNuf i„n L, ouilfu ornof
ot thiit oH'i'iict' ; or "^ •^
(i.) wi.l. su.-h i„,.nl UH ufbrosui.l, fhroatons tl,a, any ihtkom
wluvll bo HO accUHwl by any \m'mm ; or
(c.) ,.au...s ai.y|.(M-son to romvo a (I.H.unu.nt contuinino. snch
aocusat.o.i or throat knowing thu cont.uits thoroof ; or
('/.) hy any of (ho moans aioroHai.l, ..o,n|u-ls or atton.nts to coin-
pH any porson (o oxocuto, n.ako, ac-eopt, on.b.rso, alter or .U-Htrov
""■ ;;;''<'l" ->•• any part of any vahuiblo Hoourity.or to write, inn.ross
••"•artix any nan.o or soal upon or to any paper or parchmen , in
<;nlo.- that >t nmy be afterw-anls n.a.U. or eonverte.l iluo or use.l or
Uealt with (\H a vainal)le Neeuriiy. (Codo, Art. 40«.)
A .ioman.l,-with n.enaee.s,-of money a.-tually due is not a .lo-
iiiand with intent to steal. (1)
See EXToHTfoN, p. 5:^0, ante.
See hohukry, ante, p. t;49. ante.
TRADE MARKS.
N.. o ■ „„„>.„«M,„E, .00 Arlul,., J4;i l„ 45.1 „r ,!,„ C,,,!,. I' ■ '
U, U. « .„„1 22 „f tho *„./,„„*., Man. Off.,.„s J ,s « 5
.^ Tv-il ;. 35. ■• '■■ ^' "'"' "■- "'"«"<l"'<"■l^ M Vu- «. 14 a,„l
TREASON.
Tr"* >""-'"' "'*""' I'«»iNl.UM«t tor Tr.„MM..-
(a.) the act of kijling Her Majesty, or doing her any bodily
harm tending to death or destruction, nnvin. or .t.nding'a tl^.
act ot impnsoning or restraining her ; or
to^tmlwT"^^'"^"^""''^''"^ ^^"" '^^--^ act an intention
toj^ll Her Majesty, or to do her any bodily harm tending to
(1) R. V. Johnson, U. C. Q. B. 569.
43
068 I'HACTICAL Ut;il»E Til MAm«TI(.VTKS.
(Ii'iitli III- ilcstnictioii. iiisiiin or wounding', or In iin|inMoii or to
ivstraiii lit'i" ; or
{(J.) till' act ot' Uilliiiif tlu' I'lili'st son ami licir a|i|iari'iit of Hit
Muifsiv. or till' l^iu'i'ii coiiHoi't ol' any King of llu' I'liitod King
(Itiin of (iiral Bi'itaiii anil Irclaml ; or
(d.) till' foi'niin^' ami inanifoHtitig, by an oviTt art. an inlcntion
to kill tilt' I'liU'st Hon ami hi>ir n|i|ian'nt of lici' Maji'sty, or tin'
t^uccn consort of any King of tlu' rnitcd Kingdom of (ircal
lii-itain and litdaml : or
(e.) conspiring witli any person to kill Her Majesty, or to do
her any Imdily harm tending to death or destruction, maim oi'
wounding oi' conspii-ing with any pei'son to imprison or restrain
her ; or
{f.) levying war against Ifer Majesty either —
(i.) with intent to depose Her Majesty from the style, hoiionv
and royal name of the imperial Crown of the I'nited Kingdom
of I i real Mritain and Ireland or of any other of \lvy .Majesty's
dominions or coimti'ios ;
(ii.) in order, li}' force or I'onstraint. to conipel Wiv Majesty to
( liange her measures or coiinaulM, or in order to intimiilate or over-
awe hoth Houses or either House of Parliament of tlu^ United
Kingdom or of ( Canada ; or
{(J.) conspiring to levy war against Her Majt'siy with any such
intent or for any such purpose as aforesaid ; or
(h.) instigating anj- foreigner with force to invade the said
United Kingdom or Canaila or any other of the dominions of IFer
.Majesty ; or
(«.) assisting any public enemy at war with Her .Nfajesty in such
war by any means whatsoever; or
(j.) violating, whether with lier consent or not, a Queen con-
sort, or the wife of the elilest son and heir apparent, for the time
being, of the King or (^ueen regnant.
2. Every one who commits treason is guilty of an indictabU'
otfence and liable to sutler death. (Code, Art. (!'».)
THKAsr.N. jg^
. ''■•**"'* »»»>«* <'»n«|»lnM..v. -In ..v.rv nis.. i„ wl,i..l. i,
IS trnis,,,, In ,.uMH|.iro with any p.-rso,, for unv |M.r|Mw„. flu, ,».t of
HO cons,„rin;r, un.l ovory ov..rt <i.t <.f any suol, c.,ns,,i,.a..v i. an
overt uct of iivasoii. (Oodc. An. (Ki.)
i<-<<'MMirl<M«iin«.rtlM> f-iMl i«Trv„N«i,.--i:v„,von.
«s guilty of an in-ILMahlo otlonoc a.wl lial.lo lo two ymrn' iniiMisun-
inoiit who — '
(a.) hccomoM an acriMso.-y aft< .• the fa<-t to troason ; ,„■
(A.) knowinsr that any (H-rson is ahoul to ,.oM,n,i( hvasot, dooH
"ol wilhal ivasonahh. .h'spatd. gin. infnr.nalion tl.o.vof to u
JUHtieo ol tho peace, or „se other reasonal.l.. ..M.leavuurs to prevent
llie coniinissioh of tlic same. (Code, Art. (17.)
l-«'v.yiiiK; uar 11^,11,1^1 ||,<. <|,M.,.„.-(See p 005, ante.
TlMMIMMlubl,. OHV,liM'N.-Kveryone is i..mitvof an i.nliet-
aNeort'oneean.i linl.le to i risonn.eut for life who'fonns anv of
llH* intentions lureinafler menlione,!, an.j manifests any sueh
inli-ntion l.y conspirinn- witii any person to carry it into otteet or
l.y any other overt act, or l.y puMishini;' anv printino- <.r wrilin-. ■
that is to say — "^ '
(a.) an intention to depose Her Majestv from the style honour
and royal name of the Imperial Crown of the I'nited kin..dom <.f
(.mit Hritain and Ireland, or of any other of Her .Majesty's .lomin-
lons or countries ;
(0.) an intention to levy war a-ainst llor Majesty within anv
part ot the I'nited Kingdom, or of Canada, in order l.y force oV
constraint to compel her to .■hange her measures or counsels or in
order to jmt uny force or constraint upon or in order lo intimidate
or overawe l.oth Houses or eitl.er House of I'arliament of th,.
United Ivingdom or of Canada ;
(c.) an intention t<. move (.r stir any foreigner or stranger with
force to invade the «aid United Kingdom, or Canada, or anv oilier
o Jler Majesty s d<.minions or countries under the authority of
Jler Majesty. (Code, Art. OO.)
CoiiNpiriuy t« iutiii.i<l»to a I.OKi«lttt.,re.-(Sce
Art. 70 of the Code.) ^
Assaults on the queen.— (See p. 405, a^i^e;.)
(170 PRAf'Tlf'AI, til tltr, T<» M.VdIHTRATM.
VAtlllA.NCV.
Kvorv irni" in ii loom', iillo or diKonlcrly ihthoii or vtii;i'aiit who —
(d.) imi liuviii^ iiiiy viMili|«> iiu'iins nf iiiiiiiitaiiiiii^ liiii)m>lt' livvM
willioiil riii|i|(>yiiiciit ;
(/>.) In'iii^ iiM»' to work iiikI tlicn'liy or hy oiIut iiu'iiiih to iniiiii-
lain liiihsflt' ;uiil I'liiiiily will'iilly rt'l'iiM'N or in'^lcrtH to do so :
(c.) o|K'iily i'X|ioMt's or I'xhiliiiH ill any Ht root, road, lii^'liwnyor
piililic |ilii('t'. any indt't'cnt cxliiliilioii ;
(>/. ) willioiil a I'crtillialc ><i>;nt'd. within nix inotiilis. \<y a pricHt
''lci%^yiiiaii or ininiHtcr <d' lh<< tioNpcl, or two jiistiroH of the iicacO)
rchidin^ in I lie niiiniiipality whoro tUv ainiH aru l)uiii^ iixUcd. that
In- or Hhc in a ili'si'r\ iiii;; olijcft of diarity, waiKh'iis alioiit and Iu'i^k
or i^oi's ahoiit from door lo door, or phutw himself or hors If in any
^*tr^'ut, hij,'liway. juissa^*' or pnltlic platf to lu«j^ or rcirivt' almn ;
(fi.) loiters on any siret't, road, highway or piihlic place, ami
olpslri)<'lH pasx'nii'crs liy standing' across the footpath, or liy using
iiisultiii.tc lan^^ua^e, or in any oliu'r way ,
(f.) caiisi'H a dislurhanc*' in or near any street, road, hi^'hway or
piihlic pliicf, hy soreainiiiit?, swearing or singing or hy heingdrunU,
or l>y iin|iedil)g or ineommoding peacoalde passeiigern :
(ij.) hy diseharging tire arms, or hy riotous or disorderly eon-
iluc't ill anystriH't or highway, wantonly disturhs the peaco and
quiet of tho inmates of any dwelling-honse near such street or high-
way;
(A.) tears down or defaces signs, hreaks windows, or doors or
door plates, or the walls of houses, roadrt or gardons, or dcstroyw
foncoH ;
(j.) heing a common |irostitute or night walkor, wandci's in tho
fields, puhlic streets or highways, lanes or places of pnhlie meeting
or gathering of people, and doe.s not give u satisfactory account of
herself ; or
(j.) 18 a keeper or Inmate of a disorderly house, bawdy-house or
house of ill-fame, or house for the resort of prostitutes ;
(/i.) is in the liahit of frequenting such houses and does not give
a satisfactory account of hiiunelf or herself; or
(I.) having no peaceable profession or. calling to maintain him-
self by, for tho most part supports himself hy gaming or crime, or
hy tho avails of prostitution.
v.\(iKAvrr. gv|
Rv.'rv l.ms,., „||,. „!• .liK..i'.lorly |m.|-m ,• vagrant is li,il,l.. oi,
HiiMiiniiry coiiviHi-.u l..f..,v tw,. j.isii....sor tli.- |.,.a...., ton tiii.> iH.t
;'-7'' '"'^' Hrty,l.,lhi,.H ,„• to in.priMuMm.nl, with oiMvitl.,,,,! I.ani
l.tl.uur, |,,f any Ion., iiof ..x.'o .,|i,„^ nix m .nth., ...• to hath.
VVh.-.-.. ,1 vvoM.i,, was ,.o„vi..|,.l of h.i,,^ u n.mn.oi, |..'.)stit..l..
un.lol wa...h<i-ii,« in Iho |.i.l.li,. Mfocts a.„l n„f jrjvm^r a saiisthc
torya.v.,„nt ..f h.i-.olt; th,- convirtin,, was hH.l ilh-^al, horaus,. ii
.li.l not aiioK'' that tho wun,;i,. was ank..!. i,..!',,,,, h,i„^, „iU..„ „,
who., Mh.. was hoinif tukon, to ,.i\v an ac-onnt of h..i-s..|C. ai.M it
w.is h..i,| („,.|h..,- that a.. „li..iration -sh.. ;^;ivin^. „„ sutiHfacto.T
';''•■'""". '^"'' •"" '^'"'^^ ""^l any ,.,-iu,- .h.„. ,n1 was mi.!., upon
1. 01- to ^ivo an ufcoiiiii i.rhi'r.si.jf. (i )
VVh.'n a |.n>,son i. ,.ha.xo,| with v.ig.-an.y i„ Ihm..;. ul.lo to work
un.l inaii.t.m. hinn.ir a.„l raniily an,l wiifnilv .vlusi,,^. .„. ....irioet-
• nir t., ,1., HO, an ol.ii^Mtion t.. in:ii.,tain mnsl ho ostahlinho,! u-.iinsl
'"" I""'- i>..stanuo, a man is not ho,.n,| to M,.|,,,..,.t his wife, who
has loft htm ,m.l in livi..^. i., a.luito.-y; (2) no,- .an a ium-so,,,
.•l.ur!,'o.l .iH ahovo, h. ..onvlHo.l if ho oTo.vs to taUo hack hi.n
Whoiv a woman who, bMng .hH.i-fo.l hy ho.- h,.sh:in,l, and havin^.
no moa..s of miiiuUiuuu^ ho.- ,-hil.|.-on. loft thuiu so that thoy hJ-
canK.char^oabUUothoi,a,-iHh, it was hol.l that shu could not h.
convictod, undortho Kngliwh Vag.-ant Act. 5 Uoo. IV, o. 83 s 4 (4
Ho.nK «ln...k in not an otlbnco undoi- cUmso (O ol' tlio ubovo
Artich". Tho .)troneo consists in causing a distui-banco by boinir
drunk. (5) "^ °
A licensed carter who, contrary to a city o,-dinance. loite.-s on
he street near tho enti-ance of a hotel a.ul solicits passc.gers to
hire his cab, but who does not ohslinict passengers, is not within
clause (e) of tho above article, (tj)
(1) R. V. Levecqiie. 30 U. C). Q. B. 509.
(2) R. V. Flinton, 1 B. & Ad. 227.
(3) Flaniiasfttii v. Bishop Wtfar.noiuli. 8 E. it- B. 451.
(4) Peters V. Cowie, L. R. 2 Q. B. I). 131.
(5) Ex parte Despatie, 9 L. N. 387; R. v. Daly, 24 V. L. J. l.-,7.
Smith V. R. 4 M. L. R. 325 ; Bur. Dig, 188.
i
672 PRACTICAL auiDE TO MAGISTRATES.
VEXATIOUS ACTIONS.
Sow |)|). 50-53, ante.
WARElKtrSE RECEII'TS.
Si>(' p. 550, ante.
WEinnTS AND M^'.ASURES.
Soo \\. S. ('., c. 104, 51 Vic, e. 25, unci 52 Vic. c. 17.
WIFE OR HUSBAND.
Theft by wife or husband from each other, wlioii living «epanito.
(See Code, Art. 313).
woRsniT'.
HiSTURBiNo Public Worship. (See Code, Art. 173).
Obstructinu Officiating Clekuy.man. (See Code, Art. 171).
WoiNDlNO.
Wounding; witli Intent to ifliirder. — Soe attempts
TO MURDER by \v(»uiidirig, (Code, Art. 232 (hi), iit p. 5t)(i, ante.)
%Voiiiidi]i{r ivitli Intent to ]?luiin. Kte. — Everyone
is guilty of an indictable offence and liable to imprisonment for life
who, with intent to maim, disfigure (n* disable any person, or to do
some other grievous bodily harm to any ])er8on, or with intent to
resist or prevent the lawful apprehension or detainer of any person,
unlawfully by t'ny means wounds or causes any grievous bodily harm
to any person, or shoots at any person, or. by drawing a trigger, or
in any other manner, attempts to discharge any kind of loaded arms
at any person. (Code, Art. 241.)
H'oundJU|^. — Kvery one is guilty of an indictable otlence
and liable to three years' imi)risonment who unlawfully wounds or
inflicts any grievous bodily harm »ij)on anj' other ]terson, either with
or without aijy weapon or instrument. (Code, Art. 242.)
Nhootiu|r at Her ]?luJeNty*M Te»sel8, and Wonnd-
ing Publie OitieerM on lluty. — Every one is guilty of an
indictable ottence and liable to fourteen years' imprisonment who
wilfully —
(a.) shoots at any vessel belonging to Her Majesty or in the ser-
vice of Canada ; or (6.) maims or wounds any public officer
engaged in the execution of his duty or any person acting in aid
of such officer. (Code, Art. 243.)
APPENDIX.
THK EXTRADITJON ACT
The law of Canjulaus to procedure in oxtnulition nmttors is con-
tained in the Extradition Ant, II. S. C, c. 142, as amended and
extended hy the 52 Vic, c. 3(J.
The Act applies in the case of imy foreiirn >(tate with which there
is, at or after the time of its coming into force, an extradition
treat}', convention, or arrangement. (1{. S. V... c. U2. sec. .^.)
All judges of the Superior Courts and of the County Courts of
any province, and all commissioners. apj)ointed for ihe puri)ose
in any province by the (lovernor in Council under the great seal
^f (^anada, by virtue of the act, are authorized to act judicially in
extradition matters within the province, and they have, for^the
purposes of the Act, all the ])ower8and juristliction of any judge or
magistrate of the province, {lb., sec. 5.)
KxtriulUioii from Caiiadii — AVhenever the Act applies,
a judge may issue his warrant of ari-cst. to arrest a fugitive on a
foreign wan-ant of arrest, or on an infortnation or complaint laid
before him, ami on such evidence and after such ])rocce(lings as
m his opinion would justify the issue of the warrant if fhe crime in
question had been committed in Canada. And he shall forthwith
send a report of the fact of the issue of the warrant, with certitied
copies of the evidence and foreign warrant, information or com-
plaint, to the JMinister of Justice. {lb., sec. 6.)
A warrant issued under the Act may be executed in any part of
Canada, as if originally i.ssued, or subsequently endorsed by a justice
of the peace having jurisdiction in the place where executed.' (lb
sec. 7.)
The fugitive shall be brought before a judge, and the judge shall
hear the case in the same manner, as nearly as may be, as if the
<>74 PRACTICAL GUIDE T(» .MAOISTRATES.
I'ugitivi' was lirou^lit bi'toro u justico of the pi'iuv flmi'i^cd with im
in(lietal)lo ott'onoe coinmittod in ("uriiidu, rocoivo the ovidcnci! .»."
any witness tendered to siiow the truth of the charge, or tlu^ fact
of the conviction ; and also receive an}' evi<lence tendered to show
tliat the crime in question is one of a political character, or that it
iw, for any other reason, not an extradition crime, or tlnit tiie pro-
ceedings arebeing tai<en with a view to prosecute or pnnisli him
for an otVence of a iiolitical character, (/i., sec. !l.)
Depositions taiven in a foreign state and copies thereof, and cer-
tificates of or judicial documents stating the fact of conviction may
be received in evidence provick'd su(di papers are dul}' authenti-
cated as required by .section 1(( (jf the Act.
If, in the case of a fugitive offender alleged to have been CONVIC-
TEIJ of an extradition crime, such evidence is produced as would,
according to the law of Canada, prove that he was so convicted,
uud if. in the case of a fugitive accuskJj of an extradition crime,
such evidence is jn'oduced as woiUd, according to the law of Canada,
justify his committal for trial, if the crime had been committed in
Canada, the judge shall issue his warrant for the committal of the
fugitive to prison until sui-rendered to the foreign state, oi- dis-
charged according to law ; but, otherwise, the judge shall ordei-
him to be discharged. (lb., sec. 11.)
If the judge commits a fugitive to prison he shall, on such com-
mittal : (a.) inform him that he will not be surrendered until after
the expiration of fifteen days, and that he has a right to apply
for a writ of habeas corpus ; and, (6.) transmit to the Minister of
Justice a certificate of the committal with a cop}' of all the evi-
dence taken before him, not already so transmitted, and such report
on the case as he thinks fit. (lb., sec 12.)
The requisition for the fugitive's surrender is made to the Minis-
ter of Justice by a consular offlcer of the foreign state resident at
Ottawa, — or by any minister of that state communicating with the
Minister of Justice through the diplomatic representative of Her
Majesty in that state, — or, if neither of these modes is convenient,
then in such other mode as is settled by arrangement. (lb., sec.
13.) v
If the offence in question is of a political character or if the pro-
ceedings are being taken with a view to jii-osecute or punish the
AIM'ENniX. — THE EXTRADITION ACT. 675
I'ugilivo for nil ottbuccof a political cliuvaetov lu' siiall not 1)C liahlo
lo 1)0 Hiirroiulorod. {lb., hoc. 14.)
If the Minister of .Iiistici', at any timo. dotorminos — (a), that this
ottVncL', in respect of which extradition ])roceediiigsarc boin^- taken,
i.s of a political character, or (6) that the proceediiigH are lieing taken
with a view to try or jmnish the fugitive for an offence of a polit-
ical character, or (c) that the foreign state iloos not intend to niakn
a re(iuisi1ion for surrender, he may refuse to make an order for
surrender, or cancel any order made h)' him or aii}' warrant issued
l»y a judge, and order the fugitive's di.seharge. {lb., sec. 15.)
A fugitive shall not be surrendered until after the oxpii'ation of
FiFTKEN DAy.s froTii liis committal, or, if a writ of habeas corpus is
issued, until after the decision of the <;ourt remanding him. (lb.,
sec. l(i.)
If a fugitive is not suri'endered and conveyed out of Canada
within TWO months after his committal for surrender, or, — if a writ
of habeas corpus is issued. — within two months after the decision of
the lourt on such writ, any of the judges of the Superior (Jourts
of the Province where such person is contined, having power to
grant a habeas corpus, may, upon a])plication being made to him
after reasonable notice to the Minister of .lustice. order the fugi-
tive to be discharged, unless sufficient cause be shown against such
discharge, (lb., sec. ID.)
Section 1 of 52 Vie., c. 36, provides for the surrender, to a foi'eign
state, of fugitive offenders, charged with or convicied of any of the
crimes mentioned in the schedule to the Act, in case of there being
no extradition treaty or arrangement with such foreign state or in
case of there being, with such foreign state, an extradition ar-
rangement which does not include the crimes mentioned in the
schedule to the Act.
Kxtrudition from Foreign Ntate. — A requisition for
the surrender of a criminal who is a fugitive from Canada, and
who is or is suspected to be in any foreign state, with which there
is an extradition treaty, convention or arrangement, may be made
by the Minister of Justice to a consular officer of that state resident
at Ottawa, or to a Minister of Justice or any other minister of that
state through the diplomatic representative of Her Majesty in that
t)76 I'KACTICAI- (lUIDK Td M.\(11STUATE».
Htuto, or if neitlior oftlumo modes is convonioiit. thon it\ such oHn-r
mode as is settled liy arniiigement. (H. tS. C, e. 142, sec. 21.)
Whenever any person aeeused or oonyieted of an extradition
erime is surrendered by a foreii^n state in pursuanee of any extra-
dition arrangement, sueii person shall not, until after he has been
restored or has hud an o])i)ortunity of returning to the foreign
state, be subject, in contravention ot any of tlie terms of the ai'-
rangement, to any prosecution or punishment in Canada for any
otheroti'ence committed prior to his surrender for which he shoulil
not under the arrangement be prosecuted, {lb., sec. 23.)
Political OftViloO. — An explosion caused by an Anarchist
is not a jiolitical otlence ; but, to constitute a political otlen<e, there
must, in connection therewith be two parties in the State, each
trying to imjiose its own government on the other. (1)
Kxtruditioii between <'niia«lu und tlie Uiiiteil
!>»tateM — i.s regulated by the Ashbitrton Treaty.— uuuW between
tireat Britain and the United States in 18-42. — l>y statutes passed t<)
give that treaty etl'ect, and by a convention made between Great
Britain and the United States in 1889-1890.
The Aiihburton Treaty hixv, been extended by the convention of
1888-1890 HO as to make jjrovision for the extradition, between
(rrcat Britain and the United States, of fugitive criminals, accused
or convicted of any of the following crimes : —
Murder.
Piracy.
Arson.
Rohbery.
Forgery ; Utterino ok P'oroekies.
Mansi AUditTER when voluntary.
COUNTERFEITIMI ; UtTERINU < 'orXTERFElT MoNEY.
Kmhez/le.ment ; Larceny ; Receivino any money, valuable
secuT'ity or other i)ro])erty knowing the same to have been em-
bezzled, stolen or fraudulently obtained. (2)
KRAin, by a bailee, banker, agent, factor, trustee, director, mem-
ID In re Meunier, 10 R., Oct., (1804), 225.
(2) Emuezzi-e-ment and L.\uct)NY are now included in "Theft."
AI'I'ENDIX.— THE EXTIUDITION ACT. 677
bor ..,• „mcor ..f any company, made criminal by the laws „f both
foun trios.
PeR.IIRV ; SiHORNATtON OK PeRJLRV.
i?Ai'E; Abduction; ("1111.1) Stealing; Kidnappincj.
Bi;R(iLAHy; lIoi;sKBKKAKIN() ; SlIOPBREAKINd. , *
Piracy by the law of nations. ' v*
IJEVOI.T or Conspiracy to Revolt by two or num. persons on
b.mrd a ship on the high was a-ainst the authority of the master-
WR0N0FI;LLY .SINKINO or nESTIlOYINO A VESSEL AT SEA ; or ATTEMPT-
INO to do so; ASSAULTS ON »,.AHi. A Sill,' on the higii seas with
INTENT to do grievous bodily harm.
Cri-mes am. ()kkence.s against the laws of both countries for the
supjire-ssiou of slavery and slave tradino.
Forms IN TMK Second Schedule OK THE Extradition Act.
fVarrdiit of Apprehension.
To wit : ' " . ., . :. .>■
To all and each of the constables of
WHER^^As it has been shown to the un.lersigned. a Judo-e under
Ihe Lxiradition Act " that late of
is accused [or. coHHCte,^ of the crime of . >, ;. ^vithin
the Jurisdiction of
This is therefore to command you in Mer Mi.jesty's name forth-
with to apprehend the said and to bring him before
me or some other Judge uuiler the said Act to be further dealt witli
accoi-ding to law for which this shall be your warrant.
<JlVEN under my iumd and seal at ■ , . ;
^•"y o^' A. 1). 181» . " "
this
WARRANT 01' CO.MMITTAL.
To wit
'^^ one of the constables of a,i,l to
the keeper of the at
078 I'RAPTirAI, OUtDK Til MAntSTRATES. V
He it iiKMK.MHKUEi) lliiil oil tliis ' day oC , in
tlu' your . lit , is lirou^'iit
bofoiv 1110. n ,lii(lL,'f tiiidcr " Tlie, Extradition Act," ,
wlio has liwii apprclii'iKk-d uiidcr (lio said Act, to be dealt with
according to hiw ; and I'orasinuch us f liavo detornunod tlmt ho
should lie sunrndort'd in puvsiianco of tho sai<l Act, on the ifroiind
of his lu'ing uccusimI [or ronvictedl^ of the crime of
within the jurisdiction of
This is therefore to command you, tlie wiid c(instui)le, in Her
Mujesty's name, forthwith to convey and deliver tho suid
into the custody of the keeper, of the at , and you
the said keeper, to receive the said
Given under my hand and seal at thi*. day of
. A. D. 18!l .
Order of Minister of Justice fur Surrendi r.
To the keeper of the at ami to
Whereas , late of , accused [or convicted']
of the crime of within the jurisdiction of ,
Avas delivered into tho custody of you, the keeper of the
at , by warrant dated , pursuant to '' 1 he
Eitr adit ion Act."
Now, I do hereb}', in pursuance of the said Act, order you, the
keeper, to deliver tho said into the custody of the
said , and I command you, the said ' , to
receive the said into your custody and to convey him
within the jurisdiction of tho said , and there place
him in the custody of any person or persons (or of )
appointed by the said to receive him : for which this
shall be your warrant.
Given under the hand and seal of the undersigned Minister of
Justice of Canada, this day of A. D. 189 .
FUGITIVE OFFENDEES ACT.
The Fugitive Offenders Act applies to tho following ott'encos,
namely : Treason, Piracy, and every otfenco which is, for tho
time being punishable, in the part of Her Majesty's dominions in
AI'I'ENniX. — FUOITtVK OKFKNDKHH A<"T. <I7!>
whii'li it was I'oimiiitlctl, I'illu'i- on iiidiftmi'iit or iiitonnai'nii, liy
iinitrisdiiiiK'Ht witli hard labour tor u tenii of twki.ve months or
mori'. or by any yiratcr |miiislimoiit ; and tlio Act applies also, so
far as is consistent witli the tenor tlierc'of to any person convicted
liy a court in any pai't of Her Majesty's dominions of an otVence
coniinitteil in Her Majesty's dominions or elsewliere. who is unlaw-
fully at lar,ii,'e hefore the exi>iration of Ids sentence, in iikt- manner
as it apjilies to a jierson accused of tlie like otfence committed in
the part of Her .Majesty's domiiuons in whi(di su(di person was
convicted. ( l{. S. ('., c. ]V,l sec. ;{.)
Whenever a person accused of haviiiij; committed an otl'ence (to
whicii the Act apiilies), in any |iart of llei- .^^aJesty's dominions
outside (d' Canada, has left that part, such per.son, as a fugitive
from that jiart. if found in Canada, shall he liable to lie appro-
bonded and roturnotl to tho jxirt from whidj ho is u fugitive ; and
be may be so a]>prehende(i under an indorsed warrant or a provi-
sional warrant. {lb., sec. 4.)
Whenever a warrant has been issued in a |>art of ller AfaJesty's
dominions for tho ai)prehensiou of a fugitive from tiuit part who
is. or is suspected to bi', in or on the way to Canada, the Governor-
(leiieral or a Judge of a court, if satisfied that t lie warrant was
issued by some person having lawful authority to issue the same,
may indorse such warrant, and the warrant so indorsed shall bo a
sutticient authority to apprehend the fugitive in Canada and bring
him before a magistrate, (ft., sec. 5.)
A magistrate in Canada may issue u provisional warrant for
the apprehension of ii fugitive who is or is suspected of being in or
on his way to Canada, on such infornuition and under sucli cir-
cumstances as would, in his opinion, Justify the issue of a warrant
if the otfence of which the fugitive is accused had been committed
within his Jurisdiction ; and such warrant nuiy bo backed and
executed accordingly. (76., sec. (J.)
A magistrate issuing a provisional warrant must forthwith send
a report of the issue, together with the informalion or a certified
copy thoi'eof, to the Governor-General ; and the Govornor-Genei'al
may, if he thinks tit, discharge tho person apprehended under such
warrant, {lb.)
<iS(l IMIACTICAI, UI'IDK Tn MAdlSTItATKS.
A fii^^itivi' wlii'ii iipprclu'iidnl mIiuII bo l)n)nglit iKtf'oiv a miigiM
(rate, wild, Miilpjt'cl tn tlu' pfovisioiiM of tlic Act, ^'liall lii'ar tlic casu
ill iIh' saiiio inaiiiii'i' ami liavc \\\v. saiiui Jurisdictinii ami powers, as
nearly as may Ik', iiieludiiig the power to iviiiaiKi and udmit to
Itail, aH ii' llie fugitive was idiarged with an otlence comniilted
within his iiifisdiction. (//>., see. 7, Huhsec. 1.)
Wheiievei' the iiiiigist rate eohiniits Ihi' fiigitis'e to prison, he
must infonii hini that he will not be siiri'eiidei'ed until after the
expiration of vii-tke.n hays, ami that ho has a right to apply tor a
writ of habeas corjius or otiier like process. (/6., sec. 7. siibsee. 3.)
\ fiigitivo appndmmied on a provisional warrant, may from time
to time be remanded for siudi rea.soiialde time, not exceeding seven
days at any one time, as seems re(|uisite for the jiroduction of an
endorsed warrant, (/t., sec. 7, subsoc. 4.)
I'p"'" the expiration of KtKTKKN DAVs after tlu; fugitive's com-
mittal to prison lo await his return, or. (if a writ of /tuAci/s co/'/jf/^
or other liUe proci'.ss has been issued with roforoiice to him), after
the tinal decision of the court in the case, tiie (rovernor (ieneral by
wai-rant under his hand, if ho thinks it Just, may order the fugitive
to be returnetl to tlu^ ]iai't of Ilei- .Maji'stys dominions from which
he is a fugitive, {lb., sec .S.)
If a fugitive committi'd to prison to await his return is not
returned out of Canada within two months after Jiis committal the
court, ujion ap]»lication, by or on behalf of tho fugitive after reas-
onable notice to the ( Jovornor-Oeneral, may, unless cause is sliown,
to the contrary, order the fugitive to be discharged, {lb., sec. 9.)
^iimior of Ketiirii of Fii}^iii%<'. — Whetievor a fugi-
tive or prisoner is authorized to be returned to any part of Jlor
Majesty's dominions in jnirsuancc of this Act, such fugitive or
prisoner may be sent thither in any ship registoretl in Canada or
belonging to the Government of (!ana(bi :
2. The (rovornor-denoral, for the purpose aforesaid, may. hy the
warrant for the return of the fugitive, order the master of any ship
registered in Canada, bound to the said part of IFer Majesty's dom-
inions, to receive such fugitive or prisoner, and atford a pas.sage
and subsistence during the voyage to him, and to the jierson hav-
ing him in custody, and to tlie witnesses ; but such master shall
API'ENDIX.— KIMltTIVE OKPEMiKKS ACT, 681
iidl lie ri'iiiiiri'il In receive iiinri' tlian oim lii|(ilivf or prisoner I'm'
I'vcry luiinlrcil tons of liis nliip's ri'^iMtert'd loiiiiiiijo. oi- ninrc timii
one witiH'SH lor ovory ril'ly Ions of such tonnan*' :
;j. Tlic (lovcrnor (icniTiil slinll ciiusc fo In- indorsed upon tlm
iigrt'cmcMt of (he sliip sucii pai'ticMliii's wilh respect to any fuirilive
prisoner or witness sent in iiei-. as tlie MiniHter of Marine and Fish-
erios, from lime to time, rcipiires ;
4. I'lvei'v smdi mast<'r shall, on his ship's arrival in tiie said jiarl
of Her Majesty s dominions, cause sncdi fuij;ilive or prisoner, if he
is not ill tile custody of luiy person, to ho t^iveii into the custody of
.s(»iiio courttahlo tliorc to ho dealt with according to law.
5. Kvery master who tails, on payment or lender of a reasonahlo
ainnunt for o.Vjieiises, to comply with an order made in pursuance
of this section, or to cause a fuifitive or prLsouer committed to his
charn'c to he y;iven into custody as re(|uired hy this section, shall
he liahle, on summary conviction, to a penalty not exceediiiir two
hundred dollars, (fb,. .sec. 15.)
I'iVidoiK'O. — A iua;.C'^>'"it^' "H'.V 'iil<i' ile|>osi(ioiis for the pur-
poses of this Act. in the ah.seiiee of a person accu.sed of an otfenco,
in liUe manner as Ik- inin'ht take the same if such person was
present and accused of an otfenco hefore him. (76., roc. 16.)
Beiiositions whether taken in the al)seiice of the futjitive or
otherwise and copies thereof, and otiicial certiticates of, or judicial
documents stating facts, may. if duly authontieatcd, he received in
evidence in proceeding.s under this Act. (//a, sec. 17.)
Warrants and depositions and copies thereid'and ollieial certificates
of or judicial documeiit.s stating facts shall ho deemed duly aul lien-
ticrtted for the jiurpo.sos of the Act, if they are authenticated in
nuuiner provided, for the time heing hy law. or if they j)ur|t()rt to
he signed, hy or authenticated hy the signature of a judge, inagis-
trute, or oflicer of the part of Her .Majesty's dominions in which
the same are issued, taken, or made and are authenticated either
V)y the oath of some witness or the public seal of a British jtossossion
or of a Colonial secretary or of some secretary or minister adminis-
tering a dejiartnient of the government of a British possession ; and
all courts and magistrates are required to take judicial notice of
every such seal and admit without furthei- proof the documents
authenticated by it. (76., 18.)
6fl2
I'RAPTICAIi (liriDK TO MAdlSTIlATEH.
AN ACT I'rirriiKi,' to a.\ii:m> tiik cin.MiNAii
CODK, 1,S!I2.
(57-r)S \'ic. c. b^^
*
I. 'I'lic Criminal Oode, iSiCJ, Im lioivby uiuondi-d in tlic iiiiimicr
set turili in tin- tollnwitiix sclu-diilc* : —
SCilKDriJv .
Si'itiitii (I."), imriiKrii|il> </> Hy insctliiiK ariiT tin- word " count ricH " in the
llllli line till' worii " or."
Sfclioii 111? My .siil)HtitiitiiiK in tin- l'"rcncii vci'Mion for llu^
word "Jen" in llii' tontli linu tin; word "parlM,"
Socllon 2(l7 liy iuldin)^ iit tlii' end lliurt'of I lie roDowinK '^nl)-
section :
" 'd. 'I'lic cxprcMsion ■ |inl)lic place ' In this sec-
tion includes iiiiy open place to winch t he puhlic
have or are permitted to luive aecuHs iind any
place of puhlic resort."
Section 2(W By sirikinK "»t llii' follow injx words in the Hcconil
and lliird lines: " he fore two Justices of the
peace."
Section 2(i;{. paragrapli ('/». Hy inserting after the word " seizure " In the
fourtli liiu' the word "or."
Sect ion Ulii, paragraph (b).. By adding at I lie end I hereof t lu' wonl " or."
Section ."vld By MtrikiuKont tlie words " I 'art XI. I'Iscapes and
Rescues ; any of the sections in this part. '
Section .TO Uy inserting after the word "gandng" in the
I twenty-third line of suhHcctioii one the words
* I "or lietting."
dO" By inserting after the woi'd "gandng"' in the
ninth line of sul)Hection two the words "or
' l)etling."
, ob By inserting aft<'r the word " gandng-houMe " in
the sixth line of sulisection three the words " or
any tahlcs and instruments of hetting so seized
■ ■ • in any iiiace used as a connnon betting-house."
Section 651 By adding at the end thereof, an subsection •'>, the
I following:—
I ".5. Whenever, in the province of Quebec, it has
been decided by competent authority tluit no
term of tlie Court of Queen's Bench, holding
crindnal jileas, is to be held, at the appointed
time, in any district in the naid province witlun
which a term of the said court should be then
held, 8,ny person charged with an indictable
AI'I'K.NDIX.
mi
Scrliiin (MI2.
Si'ctidli M(KI,
""••"U'.; wlios,. (rial mIh.uI.I I.v huv l.r h.'l.l h, tl,,.
N..M . iHirlrt. may in i|„. ,„„„„.■>■ I, 'n'i M . I ■ .
'•'•'•<l''l Willi III SOI,,., oil,,.,. ,|,sl,i,.| w|,|„„' ,,
N. I. |,iovli„... Mu, ..Vll,..,.o,i,.t,„.J,„|K! , »
"" "I"' l"'':^'" ^ ••"iil„ii„..| h, (his se,.t|o„ si I
ol'luinliiK ,1 ,.|i,ti,K.. of v..,i,i,. u.s alo,...s„l,l,"
"follllwl','^':' ""' '■'"' ""''■""'• "' ^"'•^'■'••io" -'. <l'"
"L'. N,>lwill,Mhl,HliiiKUI,.vlHW, l,s„K,.o|.,.,lslo„i
«> t I.. ,.o„t|.,in, .s,.v,.„ unuui .i„,o,N. i„,st,.u
y..|v..„s l,..,.,.,„fon. ,v il,.,|H ,i„.; hill , u
■<>v„i.... u|,..r,. th.. ,,„.i,.l of >,n„Hl ji.n.rH is,,',^,,
i. I, si, .11 „o| ,,,„„. Miio for,.,. „,„i| a ,hivto l„.
"" '•'•>■• IK' <i-v..|i,„rhy his ,.,.,„.h,i„atio,"
My (uldiiiK Hi II,,' <.ii(l ihi.n.of tl,..
f.,1
l>" illK |,|.||
Section H7I
Section 872, sulwc
imi'iiKrai)!, Ui} .
ctlon one,
Section H72, subsc
ction one.
Section 884.
Section 92H.
l.)vi.l,..|, ,,,s ,;'n,y-i\s the |„..,v|„e,.s „f ()„
"•„., Nova Scotiau,,.! \..«. Hnii,swi,.|<, thai i| •
...von.,;,, ii, Coniu.ii may f,„,., linuV,.' | .
' em .u T ""''■'■ '•'''* "'■'■''"" '"' VnynhU' to tl..'
•0,1 ity (r.-asiii;..,. |,„. ..ounty ,,„r,,os,.H, or anv
I';; ■ ""I ll.ereol h.. pai.l toan ■ imu i-i,,,, „ ■ | ",|
authority^ whi,.h wholly or in part h.., rs t ,.. •"
"■!i>...N .,f llie adiiiinistrati ,( j„sti,... n,,.!,.,.
<•- imit. ..rthal the Ma.iie he a ppli... i,, •
' "•••m'.."n..|- .l..e,„..,| h,.st a.lapl..'fl to s..e,.,v i s
line it.limnistratioii of sii,.|, pr,, visions."
H.y slrikiiiK out •• I (K)" an.l suhstitntiiiK " 1.50" in
111.' (irst item ol ll,e lariU'of eonstahles' fe.ls, and
H.yHt..iki.,Koul tl,.. item niunhe,,.,! 7 in the sai.l
Ian ami s„hst itntiiiK the followjnji :
•i. AII(.|,.li,i|Lc.i„sric,.M on trial, for .-aeh ,lav
iKM.eHsari y ...nploy „ ,„„. „, ,„„,,. ^ >
•■iiKaKed l,.ss tlian fonr hours, ><\ (N,
" /. .M tending Just ices on trial, for eaeh <hiv
nec-ssariiy em|.|oy..d in one or mor.- ..a.s..s, w i\
enKiiK..,! more than four hours, .lKl.r,0." ' '
By strikinK out the followinK wor.ls in the tilth
s .xth and sev..n|h lines : " in tl,e..ommoi, ja i, ,:
other pri.son of the lerritorhil .livision fo^ hi •,
the justice i.s then iieiinK." »"iia
Hy strikh'K out the followinK words in the thh-.I
1 fourlJ, Itm.s: •' i„ ,he common jail or o le,'
prison of the said territorial division."
By fnsertii.K after th.; word "saine" in the thirrf
ne^the words " whether sucli notice has I •'. I
properly Ki\ en or not."
BymldiiiKat the end of subsection 2 thereof tlie
following paragraphs :— ^"^
. "(f/.) Ihe cognizor shall be liable to eoereiv«
am'l ciX'""' '"'■ '"" P**-^"""* "^ tl"- JudgiSn?
44
-684
IMiACTICAI. (»IMI»K TO MAOIHTKATKH.
Section 0:211
Sclit'diilc 2.
Schecluti; 2.
"{!■,) Wlll'll Mllllll'll'llt ({llllllx mill cIlltltl'lM,
liiniU III' triii'iiii'iilK niiiiiiii III' I'liiiiiil III HitllMfy
I III' ,|iiiIkiiii>iiI iikiiIiihI II ^ll^l|l/.l>^ ami I lir siiiiii- In
(■(■rlllli'il III llii' I'l'hit'ii III till- writ iif cM'i iilliiii
or ii|i|ii-Mi'M liy llii> i'i'|iiii'i iif iIIhI I lliiiliiiii, u win
mill III' riiiiiiiiil iiii'Ml Miiilir<<xi'il III till' hIiitIII' iiF
t III- 'llstrll'l IIIM> ImsIH' II|MI|I |I|I> lllll III |ini'<'l|M'
• if till' Altiii'iii'v (ii'iH'iiil, or of liny prisun iln'ri--
to iiiitliiii'lxi'd III ui'itliiK In liliii, mill >iii'li wiir-
I'linl nIiiiII III' uiitliiii'it \ lo llii' sliiTiir III luUi' Into
I'llMtitiiy till' liiiily iiC I III' riiKiii/or hii In ili't'milt
anil to liiil^i- lilin in tlic Miniiiinn jull nl' llii' ilU-
trict iiiilil sill iHl'arl inn Ih iniulr, or iiiilil lliu
court wlilrli Inmiii'iI micIi wiirrmit, il|iiin rmiti)
hIiowii 114 lu'ii'lnutlrr nii'iiliiini'il, inaki'H mi iirili'r
In lilt' I'lisi' mill siii'li iirdi'i' Iiiih i.i'i'n fully ('oin-
(tlil'li w illl.
"(''.) Siicli NMiiraiit mIiiiII Itf ri'lnrni'il liy llic
.slii'i'lir on till' liny on \vlii<'li it In niiuli' rt'tiirn-
iilili- anil Illl' Hlifrlll' hIiuII stair in IiIn ri*lurn
what has lici'ii iloni' in cxctnl ion tlii'ri-of,
"(f/.lOii iM'lillon of Illl' I'OKiii/or, of wliii'li
not li'i' Nliall III' ^;i\ rii to lln- rli'rU of t lii' ("rown of
til)' iliHlrirt. lilt' t'oiirt may lnt|iiirf into tin- i ir-
('Uinslaiiffs of till' rasi' ami may in its ilism'tion
ortli'i' ilif ilisi'liarut' of tlif amoiinl for whlrli lit>
Im lialili' or niiiUt' hihIi onlt'r with rt'.spt'cl tlit'ri'lo
mitl III his imiirisoiimi'iii as may apiirai .jiist , anil
Hiii'h ortlfr shall !»• t'arrlfti out liy tlif Mlit'riH'."
liy atlilin^ al tlii' emi of NuhNi'i'lion :i thi'i-t'of the
followln)^ pariivrrajih :
"(/<.) 'I'hf foKiiizor for tlif rt'fovt'ry of ihi'
JuilKnit'iil in any siirh ai'llon hIimII lit' llalilr to
coert'ivt' iniprisonmt'iit in tlif saiiif maniifr iis a
Nurfty is In liic t'lisf of .jinllfial siiri'tyship in
t'lvil mattii'.s."
iHy striking f>nl ":«!" anil siilistiliiliiiK "IITi," in \\w
I llfth lint', as tilt' tliaplfi' of tin' Kcvist'tl Sliilutfs
rt'.spt'ftiiiK till' I'oMtal St'r\ iff.
|ny striking out tin- llgui'c "0" in the fourth line
from till' f ml.
AIM'KNI»I.\,
686
AX ACT I{i:sr>K<TI.V<l Till.; AIMJKST, T|{IAL AND
I.MI'IflSoNMKNT (.F V( .ITII IM' I, OFFKX DMWs.
(57- '>H \ic., ,.|,i,|.. rts.)
I. SoHion (Iv.. In.h,|.v,| ,uhI (iCy nC Th. rnminal Ojde, IM'O i.,
l.-.vlo iv|H''«l'"l aiMl IIh. ln||ovvi.,i;H,..tin„ .Ml.sf i( „h.,| (|n.,vf„r T' "
■' .1«0. Tl... irials uC vm,,..,^ |M.,..,ns uppaivntly un.|..r il... auo
of MM...... y..ar.. shall .al<.. ,,la.... .i,!...,., ,.„l.|i..i,v ,„„l .s..,,a,.aU.7v
;'.'"' "';"■;' "■;•":""• "•; •■'•"--• ™ ..,..,„;, an,i a. s„i,aMo
HUM'S t., Ik. .I..s,;r„,„,.,| a.Hl a|.iHm,t,.,| |„r llu.l |.,.r|M.s...''
a. V.M.r.K pom.ns a|.im,vi,(|y „n.l..i- ilu, a^'.. ..f sixi,...,, v...,rs
will) ar.. : — .' "
(".) un'.\st..(l ii|i.iii any warrant ; .ir
;''•) ';'->.-nit...,l ,„,.Ms,.„|y „ „.y ,,„,.„„,, i.,o|i,ni„H..y on.iuiry
iiiloaclmrgo lorai, iii.lictal.loom'nco ; .,r
(;•.) .■oMum.t..,! t.> .•usi.Kly at any s.a.,.. ..r a trial. ..id.cr for an
"."'.""'''" """'"'^^ '»'• ♦■'"• "" <>'»'""••" Pm.ishal.l. sum.nary ..on-
on .■onnnitt.Ml t.. nis y afU-r sud, (rial. ImU L.-foro impriHon-
Hl.all !..._ kc.,,| i„ ,,.s,.„|y s,.,.arat., Iron. ..I.!..,- p,.,.so.,.s ..|,a,w.l
^^" ' "'■"-'">;"• <'in;>H*- an.l s..pa,-ato innn all porH.,„s un,lo,-goTn«
s.'..l.-n..c.s,,( Mnp...s.,nm..nl,an.l shall not h. ......fine.l i,. the look
ups .>,- p.,lK.o stati.„..s with ..l.l.u. |K.,.sons chur,..,l with criminal
otfonces or with oi-ilinary (•.•iinii.als.
». Itany ..hiki. upp(^«rii..i. t.) tho conrt or justico hofo.... whom
tlio clnld iHtnod to bo nndor tho a.tjoof fourtcn years, is oonvioted
in the pr.n'ineo of Ontu.-io of any otfbnce against the huv of
' amuiu, whetlxM. indictable or p.miHhal.le on s.unma.y convietion
such court or juHtico, instead of senteucing tho child to any imin-j-
Honment provided bylaw i., such ca.se, may onlor that the chil.l
«l.all becomtnittcd to tho charge of any homo for .lestitule and
686 PRACTICAL aUIDE To MAOISTRATES,
noglofled childivii, or to tlio t'Imrgr <»!' any cliildiviiH aid society
duly ()i'ii;aiii/A'd and a|)|>rovi'd by the Lioiiti'iianl-(J()Vori>or of
Ontario in ("onncil, or to any cttrtitiod industrial srliool.
4* Whenever in llus province of Ontario, an information or
coni|»laint is laid or made against any lioy tinder the age of twelve
years, or girl under the age of ihii'teen years, for iIk' eonimissiou
of any olfenee against the law of Caniuiii, whetlier indictable or
punishable oii summary conviction, the coui-t or Justice! seized
thereof shall give notice iheri'of in writing to tJie executive oHicer
of the children's aid society, it there be one in the county, and shall
allow him opportunity to investigate the charges made, and may
also notify the parents of tlie child, or either of tlu-ni, or other
person apparently interested in tlu^ welfare of the (duld.
2. The court or justice may advise and counsel with the said
officer and with the j)arcutsor such other person, and may consider
any report made b)' the said officer upon the charges.
3. If. after such consultation and advice, and upon consideration
of any report so made, and aflei- hearing the matter of information
or complaint, the court or justice is of ()))inion that the public
interest and the welfare of the child will bi- la'st served thereby,
then, instead of committing liie child for trial, or sentencing the
child, as the casi' uuiy be, the court or justice nniy, by order: —
(a.) authorize the said officer to take the child and, under the
provisions of the law of Ontario, bind thechild out to some suitable
person until the child has attained the age of 21 years, or any le-ss
age ; or
(6.) [)lace the child out in some approved foster-home ; or
(c.) impose a tine not exceeding ten dollars; or
(<1) suspend sentence for a detinite period or for an indelinite
period ; or
(e.) if the child has been found guilty of the ottence charged or
is shown to be wilfully waywartl and unmanageable, commit the
child to a certified industrial school, or to the provincial reformatory
for boys, or to the refuge for girls, as the case may be, and in such
cases, the report of the said officer shall be attached to the warrant
of commitment.
APPENDIX.
(587
«. Whenovop iin order has boon nuulo utidor oitlior of 1 he two
.^oc-lions next i)roee<lin,ir. the child may thoreaftor be dealt witli
under tbo law of the i)rovii,oe of Ontario, in the same manner, in
all respects, as if huoI. order had been lawfully made in respect of
a proceeding inntituted under authority of a statute of the province
of Ontario.
«. No Protestant child dealt with under this Act, shall bo com-
mitted to the care of any ifoman Catholic children's aid society,
or be placed in any Roman Catholic family as its foster-liome ; nor
shall any Koman Catholic child dealt with under this Act, be com-
mitted to the care of any F'rotestant children's aid society, or be
placed in any Protestant family as its foster-home. But this section
shall not apply to the care of children in a temporary home or
shelter, established under the Act of Ontario, fifty-six Victoria,
chapter forty-five, intituled An Act for the Prevention of Cruelty to,
and better Protection of, Children, in a municipality in which there
is but one children's aid society.
088 PRACTICAL UUIDE To M AOISTKATKS.
AN ACT IJKSPKCTINiJ TIIK ('(-STODY OF .lUVKNILK
OFFHXDKIJS, XKW MI{l'NSWI("K.
(57-5S Vu-., c. 5!».)
1. ('lia|>tt,'r tliii'ly-tliroo ol'tlic SltiHiti's of iSiK}, intituled An Art
relating to the rustoc/i/ of juvenile offent/ers in the province of New Brun-
swick, is lii'irhy iiiiu'iKlod by adding to it llic following softion : —
" lO. Tlio Governor (itMicral liy wiirrant under his hand may at
ail}' time in his disorotlon, on the application of the Attorney
(icnei-al of the ])roviiice of Xew Brunswick, cause any hoy who is
imprisoned in the Dorchester I'enilenliary. or in any jail in that
]irovince. for an offence within the law of Canada, and who is
certified hy any judge of tlie Supi'emc Court or of any County
Court to have been, in the opinion of such Judge, at tlietime of his
trial uniler the age of tifteen years, to lie transferred to the Hoys'
Industi'ial Home in the jirovince. foi- the I'l'nniinder of his tt'rin of
imprisonment and for .such further term in addition thereto as tlie
(iovernor (ieneral. on the report and recommendation of such
judge, deems exi)edient ; provided that the whole term of impri-
sonment shall not exceed five years from the comnu'nci'ment of
tlie imprisonment in such j)enitentiary or jail."
GENERAL INDEX.
ABANDOXMEXT l'.\(ii;
Of Appcnl :MW
Of t;liil(l 42(1
AHATKAIKNT of Niiisiuicc. .. , (ilHI
AHDlirnON (Sec Kli/nfi/i-
jiiiHj.) 127, I'M
AHKTTORS (i2
ABOMTION (if (list iixl ion Ih-
Iwccii fcldiiy iiiul iiiisdr-
niciiiior ,s(l
Of tlii> terms lai'C'env, I'lii-
hi'zzU'iiicnl, etc (Ki'i
ABOMIN'AHLK CRIME 4.(1
AliOirnON i:)l. i:t2
Killing unborn child V.VJ.
ABHOAD. Brinjiing coining in-
slrnnifnts from 511
BrinKin.n CMiunloifcif nioncv
from '. 510
BrinjiinK stolen property from (HW
ACCKLEKATION of (Icntli.... 503
ACCESSORIES 5S-(i5
ACCIDENTAL HOMICIDE 5()4
ACCIDENTS OX SHIPS. Pri--
vention of (i54
ACCOMPLICE, Evidence of.. . 523
ACCUSED, ArraiKnment of
2(«t. 2iM), 32!)
Discharge of 220, 3!)4
Insimity of 570, 577
May cull witnesses at prelimi-
nary en<|niry 210
May make udmiissionK at trial 525
May testify 204
Speedy trial of 274
Statciiient of 212, 213, 237
ACCUSIXO of Crime (See
Thriuls.) 0()5
ACQUITTAL, Vxv.v:
A har to new proceedings. 204, ;«I4
330, 310
On ground of iii.sanity ,577
Af'TIOXS against persons ad
ministei'ing criminal law .
30-40,
">0-53
Compounding penal 501
AD.IOURXMKXT of prelimi-
nary en(|uiry 103, 1!M>
Of speeily trial 27!>
Of summary trial 320
AlUUDICATIOX by .lustice on
summary trial ;j.31
Minute of ;);j;j
ADMINISTERING drugs, poi-
son, etc 4n;5.
Oaths \N ithont authority !
I'ldawful oaths .". .43,5,
ADMIXISTERING THE OATH
Modes of 205,
ADMIRALTY .HRISDIC-
TION 72-70, 77, KHi,
ADMISSIOXS (See Covf,>i-
HKIHS)
May he made by accused at
trial
ADULTERATION
434
4.37
430
201)
107
213
525
.538
437
ADULTERY, Conspiracy to in-
duce a woman to conuiiit, . .
A D V E R T I S I X G counterfeit
money 4;j8
ADVERTISING obscene drugs. 4:18
ADVERTISIXG reward for re-
turn of stolen |M-operty 502
ADVERTISEMEXTS, etc., re-
sembling bank notes 430
AFFIRMATIOX instead of
oath 20.5, ':0«
1690
I'RACTICAI, (lUIDK To .MAOISTKATKS.
AFFUAY
Paiik
.. 440
ACJKNCY 140
AGKNT, TiK'ft by 442 444
ACCKAVATKD ASSAULTS 4(11
AGGI{KSSIONS H Y FOHKKiX-
EUS (Sff Ijcryhiff War). . 0()5
AGRKUI/n'RAL MA-
CIIINFS, UamaKing • 023, (124
AIDKRS AXl) ABKTTOUS .5H, «2
ALI.KUIANCK 444
AMKNDMENT, Powers of ... . 279
ANIMALS, capable of being
stolen ((.lO
KillinK. maiming or injuring. 444
Theft of 445
{See Cctttlr.)
(See Cruelty to Animn's.)
APPEAL from summary con-
viction or order 350
Conditions of ;i51, 1153
On matters of form ;i54
Proceedings on 353
Judgment to be on merits. . . . 354
AI)andonment of . . 363
APPEARANCE before Justice.
--Compelling 101
Waives summons 190
APPENDIX-Extradition Act.. 674
Fugitive Ofl'ender's Act 678
An Act amending the Crimi-
nal Code 682
Acts as to Juvenile Otienders. (Wo
-688
APPOINTMENT of Justices of
the Peace 4
Of Police Magistrates 14-18
APPREHENSION (See Arrest).
AQUEDUCT, Damage to 62:1
ARMS (See Offensive Weapons).
ARMY AND NAVY 446
ARRAIGNMENT for speedy
trial 269
For summary trial of indict-
able ofl'ence 290
In summary trial of non-in-
dictable otfence 329
AliREST P.\(JK
(.sVe .Siniiwdrt/ A rrt;it).
ARSON 45(1
ARTICLES OF THE PEACE. 411)
ASPORTATION (See T/ieJt).
ASS A I ■ LT defined 455
Srlf-(U'fenc(^ against 457
Prevention of 45H
Common 461
A.'gravated 461
Occasioning bodily harm 462
Indecent 462, 4(W
On ( he Queen 465
ASSEMHLIES, Ur.lawful. . 480, 482
ASSERTING RIGHT to house
or land 460
ATTEMPTS 465, 468
ATTORN E Y-G EN ERA L, Con -
sent of, ri'(iuired for certain
pro.seeutions. 77, 78
BAC"KING warrants . 115, 139,
194, 314
HAIL, Rule as to 224
After committal 226
After election of jury trial 279
By Superior Court 227
Arrest of i)erson under 228
BANK, Assuming the title of. .
469, 470
False Bank Reports 469
BANK CLERK. Issuing false
dividend warrants 470
BANKERS, Giving fraudulent
preferences 469
BANK NOTES, Printing adver-
tisements, business cards,
etc., in the likeness of. ... . 4S\)
BANK OFFICIALS, Thefts by. 469
BATHING, In public 573
BATTERY, (See As.mult)... . .. 455
BAWDY HOUSE 470
BESETTING, (See Intimida-
tion) 581
BESTIALITY, (See Af>omin-
able Crime) 431
OENERAL
HCTTlN(i AND I'OOI.- 1>A(ii.;
SKLMNC 47H
HKTTINC; IIOUSK 471
BIAS, (See Interest) 25
BIGAMY 471-478
BIUTII, Conceahnent of 4i)K
BLACKMAIL, (See Thrvats)...
6fl4-(«10
BLASPHEMY 47H
BODILY INJURY 47B
BODY SNATCHING 515, 51(i
BOUNDAKIES, Injuries to. .. . «()5
BOXING, (See PrizeFighting).
BRAHMIN
Mode of Swearing 207
BREACH OF CONTRACT 508
BREACH OF TRUST 486
BREAKING PRISON 522
BRIBERY AND CORRUl'-
TION, At elections 480
Judicial 487
(See Corrujdion).
BRIDGES, Damage to «2;i
BROTHEL, (See Bawdy House)
BURGLARY 488 404
BURIED BODY, Digging up. . .
515, 510
BUTTERINE. Manufacture or
. sale, prohibited 540
CANNED GOODS, Stamping
and Labelling, 404
False Labelling 404
CAPACITY FOR CRIME 405
CARELESSNESS, (See Negli-
gence) (i20, 627
CARNAL KNOWLEDGE 044
CASE, (See Reserving questions
of law) 277, ;«W, 307
INDEX. (;i)l
CATTLE l'A,i|.;
405
CLAUSING dangerous expIoHidns 5211
CAUTION to dcfendani after
examination of wit nesses for
prosecution 211, 212
CERTII-'ICATE of Clerk of the
Peace, when conviction
(|uaslie(l on appeal 352
CERTIORARI \m\ 350
CHALLENGE to flght 400
CHAMELEONS, are not domes-
tic animals 513
CHASTISEMENT, (See IHscij).
line) ,. 518
CHEATING at play 40fl
CHILD, Abandonment of 420
Carnal Knowledge of 400
Causing death of, by frighten-
iiiK 407
Stealing 407
CHILDBIRTH, Concealment of 498
Neglecting to obtain assist-
ance in 498
CHINESE
Inunigration 408, 409
Oath 207
CIVIL REMEDY' not suspended 104
CLERGYMAN, Obstructing.. 672
CLIPPING COIN 510
COCKPIT, Keeping 515
COERCION, (See Compulsion). Sm
COIN, Offences respecting. . 509-512
COMBINATION in restraint of
trade 500
(See Trade Union)
COMMISSION to examine sick
witness 10(5
To examine witness out of
Canada 198
COMMITTAL for trial 221
J^'or extradition 074, 077, 078
COMMITMENT
For contempt.. .30, 30, 108, 100, 375
0!1i
P11ACTI(!.VI, (iriDE TO MAinSTK \TKS.
lOMMIT.MKNT l'.v(i|.;
I'Vir not lliiiliiiK Nun-licN for
llic|H'ac(' IliO, 121
Of wiliit'HH rcruHJiiv; to lie
sworn or Kivt' t'vidcncc.liis, llMt
Of witni'Ns ri'fushiK !<• '>•'
liound over tofjivc i'\ idciicf "JJM
On siiinniai'V coMN'icI ion . .^tli),
:u'7, a'C), :;h7, :(S!», ;iiii. ;tiMi
COMMON ASSAll/r
4<U
COMMON MAWDY llOl'SK
17(1, 171
COMMON HK'JTrNC, HOISK
171, 172
COMMON CAMINli IIOUSK . .-)57
Kci'pinu; ."wT
Kviilcnco. ... .").")7, -V)!!
I'lii.vinn or looking on in M)
Oli.Htrui'tiii.LC I't'uci' OtHfi'r en-
tering .'ititl
. SoarfliinK I21-12!l
COMMON Nl'ISANCK (t'li, (i:«l
COMMON' I'HOSTITrTK
(Sec \'ii!/riiii(\i/.)
CO.MI'AIMSON of (lisi)ntc(l
writin^c with K<'ii'iine '>'Si
COMPKN.S\TI()N, for loss of
property (ilil
To lioiKi Jiilc piircliHser of
stolen prop -rty 27i>
(See licstitiitiuii.)
COMPLAINT
(See /n/ori)U>tii)ii diid ('oi)i-
pldint.)
COMPKI-LING IiicrimiiiatinK
.\iiswers .525
COMFOT:NUIX(i I'eMui aetlons .5(11
Corrnptly oirerin^ rewjird for
return of stolen property.. 502
t'orruptly takinj; rewanl. ..... .501
COMITLSION, by force 508
My necessity .50-1
HV Threats. .503
Of Wife 504
CONCEALING Encumhrances 540
COMPUTATION of limitations
of time 08
CONCE.\LMKNTOF BIKTH. lOS
CONCKI'TION I'.\(ii:
Advert isinn drills for jn-event ■
iuK |;IK
CONDITIONAL IfKLKASK of
rlrst ollenihrs. 201, 202. :t.'W
CONKI'XSIONS 2i:i
CONFIDKNTI.M. COM.Ml'NI
CATION.S .52:»
CONSENT
Of Attorney (ieneral re(|nired
for certain proseciit ions. .77. 7.'^
(».'■ (iovernor (iiMieral recpiiicd 77
Of .Minister of .Mar. and I'Msh-
eries re(piired 7H
Of youn^' child to dellleineni
immaterial and no defeiiee
42.S, 420
Of ^irl under Hi to her ahdue
tioii Inimaterial Mi. Kit
CONSEHVATOItS OF THE
PE.KCE Ill
(.See /ntruihirliiiii.)
CONSPIJLACY .504
111 restraint of trade .505
To hriiiK fJilse accusation. . . .500
To commit an indictahle of-
fence .50"
To defraud .507
To intimidate a IcKlslatiire.. . . .50S
CONTAGIOrs DISEASES, Of
animals .508
CONTE.MPT
Commit iiicnl for. . :«i, :«», lOS,
liKt. 228, 875
CONTHACT, Criminal breach
of ")(ts
CONTWIHCTOHY NEGLIGENCE.
(.See nuniirit/r.)
CONVERSION (See T/ie/f.)
CONVEYANCE OF CATTLE
by rail or water 515
CONVICTION
On siimmarv trial of indict-
able otVeiice 204
On summarv trial of non-
indictable otl'eiice 881, 88H
Certain irregularities not to
invalidate. 8.5»
Not t'> lie (plashed for defects
of form •55.5-
GENEUAI- INI)KX.
693
(JOOWNKRS AND I'AIM' I'Adi-:
NI'MJS, Tlii'fts liy fiOH
Concciiliiiji (iold or Hllver wirli
iiilont ti> (icl'i'iiud ixii'tner in
iiiiiiiii^ claiiii 501)
('()IU)NKI{
Musi send pci'Hoii iilli'ctcil hy
liiidiii^ of lii.s Jiirv lu'l'orc a
iiiii^^islratr Ilti
COHONKirS INQl'ISrTION
Xo line can l(c li'icd upon 117
roHI'SIO
DiKfiiui;' up aflt'i' liui'ial ol;')
.Nf^rlccl to huvy 51(1
Indecent I rcatnicnt of 51(1
COSTS -Mi, ;KK(. :«I7, :M2, :<t:t,
ai5, :t47, ;m
Security for may lie ordered
to l)e furuislied liy pi'ose-
cutoi' '. 221
rOHi'OifA'i'lONSnppear, loin
diiluu'iit. I)y attorney 50!)
CORHl<;CTI()N' (See /Hsrl/i/hir)
5IM. 510
Immoderate 5()0
COKHOhOUA'i'ION (See h'l!-
(Ifiiii)
I'OIimi'TION, Of judjjes 4S7
At elections 480
Of ollieers empioyed in jiroHC-
culinji oll'eniiers 4Hli
Of (iovernnient otliciais 488
Selling (M- ]>nrcliasin^ ai.v
public ollice .. - ■ 488
In municipal all'airs, 488
Of juror,-, or witnesses 521
t"orNsi';i,
At iireliminarv encpiirv. . . liHt,
202, -Wi
In summary trials ;tlO
COUNTKUFKITIN(; 500-512
COl'KTS, Decline of County or
Hundred ('ourts (See Iiitru-
ililr/loti) II
Early Knglisli Courts I
CRIMINAL INFORMATION.
41,4:i, 100
CROSS-EXAMINATION 210
Extent of rlKlit of ,..,.. 524
CREDITORS, Defrauding 548
CRIMINAL IM;SI'0NSI I'.uiK
HILITY, I'rolection from.. 07, IW
(.See ('ii.imiilj/ for Ciiiiif)
(See liihnh
(See /i/iitiriiiHr)
(See Inniinitu)
CRCKLTYTO ANIMALS, ...
512-515
The lawonly Hi)plles todonies-
(ic animals 5i;j
Caged lions aie not domestic. 51H
Cliamcleons arc not domestic. 5111
CrD'AMLK IIO.MKUDK. 5(il ."Mia
Alanslaugliter 5(W, ."iiiO
Murder ."i((5, 5(i«
DAMACE (.See Afisr/iii;,). . . (ilOll2»
DAN(iEROrS ACTS, Duty of
pensous doing '. . . . 02(V
DANdEROlS TIIIN(!S, Duty
of persons in cliarg<^ of (i27
DANC EROI 'S WEAPONS
(See OlIriiKi'ir W'ltipoHs.)
DEAD HODIKS 515
Diguing up, after hurial 515
Neglect of duty to l)ury 51((-
Miscoinluet inrespect lo 51(1
DKAK AND DC.MM WITNESS,
Hvulence of 201)
DEATH, Acceleration of 50:}
l''ollo\viirg treatment of injury
inllicted '. 5(i:i
I'rocui'cd l>y fal<e evidence. . . 502
DEFENCE, Of dwelling-house . 458
Of movable property 458
Of real |)ro])erty 451)'
DECEASED WITNESS, Read-
ing deposition of, at trial . . . 107
DECLARATIONS
In lieu of oaths .
(WI
DEFACING COINS 510
DEFAMATORY LIRFL COO
DEFILEMENT OF FEMALES
516-5 1»
DEFINITION OF
Abandon 420
Abortion 481
Accessory after the fact (Ki
Actual breaking 40O
<i!M
I'HACTICAI- OUIDK TD M AlllSTKATES.
DKKINTIION OK I'AdH
Adiillt-nilioii XW
AdViiv MO
All«'niiiiii'e U-l
AiNKii ". 45<)
AsMuiill 4iV<
Allcmiil jflTi
Itiink iiott" o-IH
IJiiudv liDiise no
Hi'lt injj; lioiiMc 471
HiKiiiiiv 474
Jllusiilifiiiy 47H
Uri'iu'h of till' pt'iice 48(1
Uuckt'l >li()|) 55"), rWiO
Hiii'^jcliiry 4HH
(Jiii'iiiil kiiowh'dKe (U4
C'littl 4il5
Ci'i'tioniri '.m
Cliicli-nllHtiihle lii
CU'vk of lilt' pciu'C 2i\!. UKI
C'oiiiliiiiiitiuiiH ill iTNti'iiiiit (if
trade rM)
CiiiiiiiKiii liivwiiy hnuRi' 170
Coinnioii lu'tl iiiK house 471
Coiiiiiioii K'i'XiiiiK lioii'^L' 557
Coiiinioii iiiiIniiiil'c 02})
(.'onspiraey 504
Coiispiriicy to defrmul 5(HI
Con.si)ii'iit'y in ro.stniiiit of
t I'udi' 505
Const rui'tivf hrciikinK 491
Counterfeiting 501)
County :no
County iittorncy 2«7
Court 772
Culpal)ie lioniieide 5<tl
Defainiitorylilu'l (R)6
I)i onierlv house 520
Distriet." 310
"Document" (in relation to
forgery) 543
Duel ...' 41M(
Dweliinn house 488
Embracery 521
En ranee 488 4)K)
Exehe(|uer hill 543
Ex<'usal)le homicide 504
False document 543
False pretence 531
Food ^W
Forcil)le entry and detaine.. 540
Forgery 542
Gaming hotise 557
Habeas corpus 3<t8
Homicide 501
Incest 572
Judge (in extradition matters) 073
Judge (in speedy trials) 207
Justice 310
JustiHable homicide 563
Kidnapping 004
Libel 006
Lottery 611
DKKINITIOX OK l>.\(iio
.Magistrate 2H7
.Manslaugliter (MIS
Mischief HIO
Murder B05
Night 489
Non-culpable honiicidu 'i63
OlVenslve \yeapons OU
Perjury 535, 5:tfi
I'eddle'rs 031, (US
Political oll'eiice 070
Priiie llgliting 6-12, 643
Pul)liNhinK <IOtt
Piracy fl!«t
Police magistrate 287
Proyocation 457,509
Uape B44
Keceiylng. (H7
lliot 480, 4m
Hobbery.. (U»
He<lit ions conspiracy 053
Seditious libel «6H
Seditions \yoids 652
Seduction 053, 654
Self-defence 457, 504
Territorial division 310 .
Theft 657, 058
Treason 667
Unlawful assembly 480, 482
Vagrancy 070
Witchcraft 548
DEKHAl'DLNG CUEDITOHS.. 548
DELIHIUM TREMENS 576
(See Jiruii/cnnii'nn) 576
DEMANDING vyith intent to
steal 604 ■
DEPOSITIONS, At preliminary
en(pnry 203
Copies of 221
DESEHTEHS. {Hi'ii Arm y anil
Xini/) 446-448
(See North- [Vest Mounted Po-
lice) 628
DISABLING. (See Adminis-
ter iim Drvgn, etc.) 433
DISCHAHGE
Of accu.sed when no .sufHcient
case 220
DISCRETIONARY POWERS
of justice at preliminary
en(piiry 109
DISCIPLINE of minors 518 ,
On ships 519
(lENEIlAI, I
DISMISSAL I'MiH
("crlillciitf of, 11 l)iir 1(1 fiirllicr
linni'Ciliiii^H , L'ill, 2»'}. :«lt.
Of (')iiirK('. <») HUiiiiniii'y ti-liil
"f iii.liclalilc Dllfmc :!!ll, 2tH»
Of cliiir')!!', MM .siiniiniiiii'v li'i;il
of lion iiiilicliihU' oll'i'iu't'. . .'CttI
Of coinpliiiiil for iissaiilt :<lll, llll
DISOIIKIMKNCKlo ii stiitiilf .".2(1
'I'o oiilci's of II I'oui't 520
I)IS()1!I)KI{I-Y H0USK8 5'A)
DISTHKSS
iMKloi'sciiiciit of wiirrniit of. . ;II7
Not to JHsiii' ill (■(■I'liiiii ciiM's.. ;t4S
Tciiilci' itiiil pfi.viiicnt ill (Un-
ciiai'Ku of ■ :>"2
DKSTlJUmXO imlilir wcsliip.. (172
DRILLING 520
DHIVINC, Furious,.. ., .■).-.2
DHrrUilNC ,,.. 431
DIMNKKNNKSS ,570
DHUdS, AdiniiiisloiInK i:«{-4:{5
Advert isiii); oliscciic 4HH
(St'i- Moliciiif ituil l>ur(ii'ni). . OIH
(Sw Poixoii) ' (WO
DUTY, ii^i'i' Mithitinauvi) 015
(See X(i/lii/)iici') (120, (127
DYLNd DKCLAIIATION.. 215. 210
l''()rin of 142
KAHLY EN(!LLSH COrUTS. i-ii
KLECTION OF TRIAJ- BY
J UR Y 273, 274, 21)0, 203, 302
KLKCTKIC FiKillT. (See Con-
triict) 508
(See Jiispi'cfitm.) 579
(See MiHc/iicJ) 021
KMllFZZLFxMENT Merged in
Thi;!' r 0(12
EMBHACERY .521
EMPLOYERS and Workmen.
{SPi\ Infivutlation.)
iSi'ii Tra(/c Union.)
ENDANCERING LIFE. (See
E.vplonirrn) 52!)
(See Mischief) 022, 023
NDE.K. 695
E\TI('l\(i Paiik
To deserMoii ,,,,,,. ,140, 44H
'I'd iiiiilliiv 447
(See . I /■///(/ "/k/ .Vdc//) 11(1, III)
(See ,V. IC! .I/()l(/l^■(/'/'o//(•(■ 02H
ESCA PES .WD I1ES("UES ... 52*
EN'IDENCE, Accused eoiiijie
tent to «ive 20-1
.Must, us It rule, he on oivth.. . 205
.Miis lie on iilliriiiiition. ...205, 324
Of mule.. m)
Of fiiici>4ii \vitiie«»eM 201)
()f y iKelilid 211 '
l''or pioseeiil ion ill preliiiiln-
ar.V eiMiiiiry 202
'I'likeii III preliniiniiry eiuiniry
to lie leiKJ to iieeiised 211
Of eonfe.ssion or ndniissioii , 213
For defence iit preliniiiiiiry en-
MUiry ' .. . . 21(1
Expeliency of eiillinn defend-
mil's wiliieNseM jil preliniiii-
iiry eiKinlry 217
Of licensed when prosecuted
under provjnciiil laws, . 320-324
Of e.xeiiipi ions and exceptions 325
Of iiecoinplice 623
General rules of ,522, fil"!
Of ot her criininal acts coinniit-
led liy licensed ... ."20
l)oeiinieiiiiir\' 527
Of skilled or sclent illc wit-
nesses 527
Exainination ill chief 201)
C'rossexaniination 510
Extent of ri^ht to cross-ex-
amine 624
Ke-exainlniition 211
Of one witncKs siillicient lis a
rule 201
In ca.ses of I''()ii(Ji-;i<v, Pi:ii
.luiiv, I'koci-uini; a i-iui.n-
IM) M.Mtl! I Ad l:, SKLIITC-
I'loN and 1)i;i'ii,i;.mi;n"i, and
Thkason, one witness not
sndicient unless corrobor-
ated 204
EXAMINATION IN CHIEF :. 209
EXCAVATIONS
LeaviiiK uiifj;uarded 628
EXCIIEliU KR BILL 543
EXCISE 527-520
EXCUSABLE HOMICIDE 664
EX PARTE PROCEEniNGS.,
Suniinary trials may be pro-
ceeded with in defendant'.s
absence 325
(!!li
I'll \('TI(".\I. (iriDK TO M AdISTRATRN.
KXn.OSIVK SniSTAN- PA(iK
CKS, I'liiliuiucrliiK •)!' Injur-
iiiffi fi' iir |ini|n'il> liy. Wit, WKt
KXI'OSINti 111.' iHi.M.ii ."2
KXI'OIM'ION riJKl
ll\ ililiMIIJlldIV lilu'l Wl
Uv lliiviils. (f^oi- Tliirdt.-). .(WH(«I7
KXTItADITAHI,!'; Ol'KKN'CKS
lli't w ('I'll Ciuiiidii mill I '. S.
i7i 1177
KXTKADITKIN
l''ii)iii C'liiailii .
I''l'iilil I'lil'i'igli StHt«
lii'i\M>)'ii ('iiiiiulii and I'ltitcit
MaU'N
FAllHU'ATINC KVIDKNCK
KACTOIilKS ACT (Oiihiilm.
•' ((iuclifc) ,
(i7;i
(175
il7ii
':i
i;i
FAC'i'OliS
Niil niiilly of llicfl, !)>■ pit'dj;-
iliK pliiirmars y,0(<ilH iii ex-
tent (if pi'iiii'lpiirN Inilehted-
ni'N- to liu'iii 412
(See W'li rtlioHHi- lliirl iifn\,.'M, .Vil
KAIH t'O.MMKNT. .
KAIW ("lUTICiS.M ..
FAII{ DISCUSSION
. (KIS
. . (KHI
. liOH
FAII{ UKI'OUTS mi-m)
FALSK DOCUMFXT 54:!
FAI.SK NEWS, SpioadiiiK 5:u
FALSE 1'HFTKN'CH;S 5;{l-5:Mi
FALSE RECEIPTS 550
FALSE SIOXALS (120, ((22
FALSI-; TELECHAMS 5:17
FALSF TICKETS, OlXiiiiilng
Jiiissajje l)y riVi
FALSIFYIXC HOOKS
(Si-e l)il'r(tii(Uiifi CrciHlofH). . 54!)
(See Unities, liiinkfrs niiil
H((iiK()lficifit.s 470
FEAR, (See F r it/It f fining) 502
f*EkS " ^^ ~"
To he taken by justices and
find their clerks 343
I FELO I)i; SK. I'AUK
I I See Siiiriilr) . (a"i
FELONY AND .M ISDKM |;AN
OK. I)i>>i iiict ion lietween
lllinlislied SO
FF.MALES, Delilenieiil uf 51(1
FLUE NATIII.E, Aninmls,
(See T/ii/h (I5H
FKRRIF.S.. m
Fi;i{TILI/i;i{S. 541
I'INDINii LOST TIIINtiS,
4'liel't liy (WKi, (Kll
FINKS
Lev\ liiK ;tl5. ;147
FIRF ARMS, (.See Ojr,' n. -<;,■<•
irni/iDHs) 531, 5;t2
FISHERIES 5;w
FOOD. .Vdiilleratlcin of r):t,s..-,||i
Sellinu- tliiiiK^^ unlit lor 541
FORCIO, (-'onipnlsiini hy 'M
FORCIULE FNTRV iiiui de-
tainer 541
FOREKiN SOVERElllN, Lil.el
on 542
FORtiKR V .letlned 542, 543
Proof uf 517
Hy usjii)iii ll<'titious naine.545, 54(1
I'ORMS OF
Oalli'4 of (|U(iliticHtion of ii
.1. P », »
Gal lis of allegiance tinil of
olllee 11, 13, 15
I'ORM OI'
Oath to be administered to a
witness 205
Oath of an interpreter 2(HI
Soleinii declaration in Ueu of
oat h K^i
Atlirination instead of oath. . . 205
Inforniation and coinplaint
for an indictable otl'ence.... 130
DyinK Declaration 142
Summons to accused 137
Dejiosit ion of service 141
Warrants of apprehension of
accused 137, 1!W, 13!)
aKNKIlAI. INDRX.
HOT
roit.M OF Pa. IK
I'Jiiliii'Hi-iiii'iil ill Imcklri^ II
wiuTHiii i;iil
W'lii'i'iini Id (■(iiivcy iiccUHi'd lit
liiiollii'l' ciMiiil y ! IM,")
Inriiriiiiii lull til olitiiiii II NiMircli
WMriiiiil. I III
W'lirniiii Id sciiitIi I In
I'dlt.MS OK
.Sialrliicill-. Ill illilii'liihlt' of
IVlK'f^ imilM)
F(JH\IS III ((iiiiiciiioii with lire
liiiilniirv ciiijiiirv, iiiidcr
I'lirl \\.V. (il ilic'Cddf.. iJi'iiJI.-,
FOU.M Ol'
|)t'|iiiMltidii llial a iMTMiii i« IV
iiiiitciiiil wil iicsH , , . 2'W
Oidc," Id liiintt iiji ac('UHi>(l hv-
Idrc ('X|iii'atioii dl' rciiiiiiiil . . 240
McllKi, iiii (Idcilincills pru.
iliii-ci| ill cvidcin-c 2(7
liirnriiiall<iii df Mirciii-H to
lia\(' acciiHcd (1111111111 tt'il .... 217
W arrant Idapiiri'lii'iiilacfiiHcil
ill iiislaiKT of iii.s liail 2IH
('diiiiiiiliiiciit of iicc'H.si'(l, . .. 2tl»
I'Oli.M Ol'
lii'Cdid in (diiiicciicin witli
-'licf'l.v Irial.s 2M1, 2H2
Acca.satiiin in (■oiiiifctloii witli
>-|ii'tMly trials 285
Slicriir's iidtici' 2H(I
Warnint to ii|)|irt'licnd wit-
IICSH ^Kt
(-Iciiiviction for contciTiiit 2H4
t'liiivict inns oil siiiiiniuiy t rial
df iildictalilcod'cncc ,. 21»H, 2l»il
('I'ltiliciilo of disinis.sal 2I»1»
( 'ci'ti Ileal fdf dismissal on trial
<if .Invi'iiilc ollcndi-r ;t08
€i'rtiticate (if disinissal 'M)
Smiiiimry coiivii'tions and or-
ders for noii-indictiiblo of-
ffiiii't's :»7r)-;).s(i
Order of disinissal 1182
Certilleate of disiiiisHal IKJ
Warrants of distress and war-
raiilH of cdiniiiitment ;Wf-;{l»l
Certili('at(' df ndii-appearance
to lie endorHC'd on defeiid-
(lant's recoKiii/anee 302
N'otiee of a|ipeiii from sniu-
niiiry convietion or order. . . 'M2
HecoKiiizanee to try appeal. . . Mi
Notice thereof 31)4
Certifieate of Clerk of the
Peace as to non-ixiyiiiciit of
eosfs of appeal 395
AV'arrantof distress and war-
rant of coinniitnient for
costs 31)5, 307
I'OII.M Ol' |.,^„,..
.liKlmnciil (if allli'iiiaiici' on
Writ df e . It . ^
('(•rlidrail rccoKiilxniice ', if.,,
Ileiiiriidf «ril "
Will df halieas (nr ' L,
Writ of Klcri facias , .ji^
('iiinplalnl Id dhialii hun'tii'H
for I he peace.
llccdKllizance to keciit he pea( e |-j:|
Cdliiinllnietil |„ d,.f,iii|| of
siirci II s
Warrant of apprelieiision iii
e\tiailitldii iiiatlers (177
Warrant of coininilial for ex-
ll'Hilltinll ((7<|
Order for suneiiiler of extra-
dited fll^tillv,, ,...^... , ffjg
T'lncin'KNI.Vt;
Child or sick persnn Id death.
FrcrrrvK ofkkndkh.s (.see
/■'■•■' i<ii/;/;,„n (173 1175
I'roiii Mnii.sl, territory out-
side ol Caiiadu (W-tlHl
<iAAIMI.l\(;
III railway cars, steainlidatH
and other public coiivey-
aiices
oo2
O.A.MK L.VW.S
liiQnehec... 55.,
Ill Ontario 554
(iA.MK l'l{K,si;i{V.\TK)X
In nnornanized portions of
'^- ^V. T 664
(iAMFXC IN .STQfKS ^55
«;amin(; iiousks 557
(il'ILTY ACKXT 511. 441, 442
(ail/rv KXOWKKDCE.
5^", "71, o7l>, 647, (148
HAnKAS roHiTs m.:m
r drill of writ of 402
In extradition matters. . il74 075
I'lider the KiiKitive Odciider.s"
•^^■f 680
HAXDWRITIXG, Comparison
of
i3, 517
HARBOR MASTERS 501
HAWKERS (See Peddlern).
aw
.IMlAcTtc \I, ill'lltK T<» MAUtHTKATKi^.
IIKAIIINt; I'Aiu:
() I iiicIImiImiii.v <'iii|ulr.V . iWJ»'^
III siiiiitiiiirv II'Ihin. . , ' . iliAt'iVU
liiriiiiiiiiiiiiii UlA, Hl7
IIKIHKSS (Skc Miilurlii>n\
iinni coi'iiT nr .iuhii,.- in
Oiitiirio II
II Kill 8KAS, OIUiiccH on
llir HMl. 107
llhill IIIKASON (Mff Trnisn,,).
IIINIXX)
Moili' (if Sw nirlnn a.
Lt»7
IIOI.KS IN Id-; l.t'iiviiiKMiiiiH'
iiiiK'iiai'dcil OliN
HO.MICIDK
(•iii|iaipi.- m\
Null rul|iiil)li" iVIil
K\cil>ulili' «♦«
.lllslilliililr BOH
All iilciiliil M\
III Ni'll' ili'i'cncH ."((U
MaiiHliiiiKlittT tVW
MiiriliT iVIS
I'niviMiilioM fMHt
IIOl SKIIUKAKING (Sic Jliir
IIOISK Ol' 11,1, I'AMH iSi'i-
/l(iirili/-//iiiisi , Skiic/i W'lir-
mill mill \'<i{/riiiir!/).
III'MAX HKMAINS (Si'i- /).„,/
Ilnih/) ;il(l
iirsiiwi)
Dili V III', to II ml lit a ill \\i If. II. 'i, I Hi
SlcalliiK liy liiisliaiid or wilV,
oil!' from till' otluT \x lii'ii
liviii),; apart , (172
(Sfc Afci.sdriis.)
l("K
lA'aviiiK iiiiKUiirik'il holes in. . (I2S
IDIOTS (See JhJII.'tntnt) .-)l(l-nlH
IDhK I'KHSONS (S.'f I'd-
tjrnmy) (170
ICNOHANCRof law 570
Of fact 57
ILLICIT t'ONxNKCTION (Set-
Si(liirfit»t) (152
IMMICHATION .i72
(See CliincHc IininiyrnHtiu).. . IDH
INCKST l»A.i|.!
m
INCI'I'IMI to iniilliiy 44«|
To ili'Mi'i'iion 4|ij
liiillitiiM to rlotiiiiN artH A7A
IN(IJI.MI\ATIN(i ANSWKIJS ,'^:^^
INDIH'KNT ACTS . m
I'ost iiiu liiinionil liool<H 574
I'lililUliliiK or i'\|iiihIii(( 1)1)-
Hf»'iii' iimlti'r Ti"!
INDKCKNT ASSAULTS MH', |ii:i
im)K("|";nt HXi'osruK 57:1
iM)i:ci:\T OH OMSCKM':
SHOW (Si'i- Viniiiimji)
INKI AN AliKNTSaiv .IiiMIion
i:i- iijUriii 2
INDIAN (MJAVKS, Sli'iillnw
art icl»»H frojii 57ft
INDI ANStSiM- III.' /ti,H,t„ All) 07.-1
51W
INDIAN WO.MKN
I'i'iist it lit ion of. , .
INDIcrADLK (>FI''KNCi:S,
Tiil.li' of 2.M 2(«1
i'lrliiiiinarv i'iii|iiiry into IINI
S| crdv trial of 2(17
Siiniiiiarv trial of 2m7
Trial of Jiivi'iiilc oII'i'IiiIits for IWNI
INDICT.MKNT, MinilliiK piim..
iiitor to jirrfiT 221, 222
INKAMOrs (If I. MM (See
Aliiiiiiiniilili Criinr) IHI
I.NIWNTS (.Sfi- Ciipucihi fin-
Criiiir) IIC)
INI-'OILMATION Ol! CO.M
I'LAINT
Layiiin: or iiiakiiiK Idl
|{t'i|iiisii('.s of llU
Hearing' 105
(o'licral form of HMl
To olitaiii Hcarcli warr int. 117
l-'orni of Inforniiition for
Mciircli warrant 1 III
I'"or otIViict'.s piiiiishalili! hhih-
inarily :ill, :U2
Hi'UniHitt's of ;n I, :tl5, 'XVy
Didcrcnce lit'twccn an infor-
mation ami a romplaint ... 'M't
To lit' for out' oHViu'e only H15
Ci'i'iain olijfctionH not to
vitiau- :ilfl
UKNIHAI. INIilX.
b'JU
INKOItMATION', V.\nr.
Illll or iiiudi'iiliirH ,117
Vai'iiuici'N mill uiiiiMiiliiii'iitN
:iltl. Ml
TniiiHtiilNHiiiiiiif, on ritiiiiiilititl
fi.r friiil t£\
iS.i [m KH (Si-i- Mixrh Iff} (m
(Si'i' h'.iiilo.iiiiM) iVU)
INNOCKNT A(iK\T
511
INSANITY, I,.khI I1-.I uf . 575
or ai'ciiMi'ii lit I jiiif of iiirciii'i',, 571)
1)1' arniHt'il on liliil 577
('liHliiily (if iiiHuiiiM'i'iliiiimlH . 57H
INSI'KCTION (Ji'ii.'ml InHpcc
tioii f,7H
< »f RUN 57H
Of ••liflilr IlKllt 57»
Of |ii'lrili'iiiii 57l»
Of slilpK 57lt
Of HtuiiiiiliiMitM 57l(
INTKNT 57lt, m)
(Si'c (')if>iififi//itr (.'rinii'),
(Ht'i- l(/n(>''(iticf).
INTKHI';STOH HIAS of ft wit-
iii'Sh no Imr 204
Of 11 .Inst Ice of llin I't-ace mny
ilis.iimlify lilin 25-;W
INI'IMIDATION 3H0
Of woi'kini'ii 681
Of IH'OllllCC (ll'llll'IN, HICVC-
(lorcH, Nlii|)i'ar|ii-nlci-s, etc. 581
Of liiililerM at miiu of j)ul)lic
liiiids 581
I.NTOXICATINd LigrOHS
Lli|iior NcJIiiiK R ncrajiy 5H2
Ht's|)('ctlv(> powcfN of tiio l)(l-
initilon and I'i'ovlni-ial l.c-
Klslatiiri's r,H2, iM, 584
Proviiioliil iictH I'cKiilnti k the
Hah' of 584, 585
SflliiiK without lIceiiHe .580,
587, 588, 5«t»
In rhil)M 58H
,S('lllng (luring proiiiliitcd
iioiirs 'm, 5)»()
Hoiui ll<h' travelliT 51)(l
SeilinK oil" tlu! Ilct'iisi'd prc-
niisi's 51)1, 502, 5!«
Sut).si'i|ueiit odiMiccM 51)4
The Canada TiMnpi-rance Act.
51)5 ((Oil
Near public works tK)4
JKVV
Mode of SvvearinK a 207
JOINT TKNANTS, ]..^„k
I'hi'ft liy. M)H
•iriMiK Mt-aiilnn of In npitilv
ti'laU ', '^yj
l'ow«»rHof, 111 Hiwmly tilaU '. 27ft
.MMISDICTION of .Siiprilor
<'rliiiln il ( 'oiirtM n|
Of (ii'iiiTiil or l^nailcr Sc,..
»i"lix . H2
Of MiaulMtiali-N nn
III tin- N. \V. T(Trlli>rl«H.. . M
Of ILshi'iy oillifiH . H/i
Locally, in regard to olli- iiei-N
('oininilti'd on a, journey and
under (•erliiiii oilier m|mmI(i|
c'irfum.staiu'i'N 85, Htl, K7,
88, Mt», IK)
.M'STICKS OF Till-; I'KACK,
In.Mtltiitlon of Ill
Creation of the .siiniinary ,jnr
iMiietioii of , ' IV
Kx Olllelo 1 ;j
A|iiio|iitnient of, liy eoininlH-
Hioii . , " 4 (I
Property ipialilieatloii of (I
Oatti of i|iialllU'atioii ot 7 |)
Oatli.s of allegiance and of
olllce of 10 12
I'ernoiiH prohibited from act-
liiK an la
Nature and extent of the
powei-H of 18 24
|)iM|iiallfvinn InlereHt, bliiH or
partiality 25 .•12
Ouster of their .sum niarv juri.s-
dictioii. :{2" ■;«, ;i4, ;i5
Power of, to maintain order
and commit for contempt . .;«! :18
Liabilitvof, for iilcK-tl acts. ..:«) 4U
Formiilltles of actions aKainst,
under the Code and under
provincial Acts SOffil
Mandamus to 54 5fi
Rule in the nature of a man-
damns 5«1 57
Preliminary etii|ulry by 11)0 224
Discretionary powers of, at
preliminary eiKiuiry 191)
Summary trials lietore HIO ;i37
DiiticH of, in ea.ses of riot. .48:1, 4H4
CarryiiiK oll'ensive weapon.s
without certllleate of Ki2
.niSTIFIAULK HOMICIDE.. . 5<W
.lUSTIFICATION, Of suuiinary
arrests by a i)eace olHcer. . .1)5 97
Of persons assisting peace ofll-
cer 96
45
700
PRACTICAL «U;i)E TO MAQISTRATES.
JUSTIFICATION Paok
Of sHiiiiniirv arrest by private
individuivlH ' Wl
Of force used In ai rests W
•irVENILE OFFENDERS,
Trial of when uiuler six-
teen :«M)-;«u
Punislunent of, for theft MOl
Accused person under sixteen
must be kept separate and
be tried separately from
other accused per8ons.S01-;^()2 (Wii
May elect to be tried bvajury. 302
In Ontario '. 080
In New Brunswick 08«
KEEPING
A bawdy house 288, 471
A betting house 288, 472
A gaming house ,5.57
Pool rooms 288, 47:1
KIDNAPPING 004
KILLING
A child or sick person by
frightening o<12
Animals 444
Cattle 495
Game 553-55,5
By accident 504
By influence on the mind 502
In a duel 490
In self-defence 564
Unborn child 432
When death might have been
prevented 503
LAND, Fraudulent seizures of. . 5.50
LAND MARKS, Injuries to ... 605
LANDLORD AND TEN ANT.. 604
LARCENY. (See Theft.)
LAW, Ignorance of 570
LEADING QUESTIONS . . .209, 210
LEAVING HOLES in Ice un-
guarded 028
LEWDNESS. (See Indecent
Acta.) 573, 574
LEX LOCI CONTRACTUS.
(See Bigamy.) 477
LEVYING FINES, etc 345, .347
LEVYING WAR 605
LIBEL 600-611
Blasphemous 478
LIBEL Paoe
Defamatory Vm
Extortion liv defamatory Oil
Selling periodicals or l)ooks
containing defamatory 010
LICENSES. (See 'ntoxirntiny
Lititiov.)
(See FediUerH)
LIMITAllONS
Of actions against justices. ... 50
Of prosecutions under the
Criminal Code 05, 06
Of prosecutions in summary
n utters, 70-72, 311
Other limitations 07
Computation of limited tlme.08, 69
1^ U'OR. (See Iuto.rUating
Liquor.) 582
LIST, Of Indictable olFences. .251-266
Of non-indictable oirences. .403-408
LODGER, Theft by 604
LOOSE, IDLE AND DISOR-
DERLY PERSONS. (See
Vagrancy.)
LORDS DAY, (See Sunday.)
LOST THINGS, Theft bv find-
ing '...000, 061
LOTTERIES 611
MAGISTRATE. Appointment
of 14-18
Powers and duties of (See Jus-
tices) 18
MAGISTERIAL JURISDIC-
TION .I 83
MAHOMMEDAN
Mode of swearing a 207
MAILABLE MATTER, Steal-
ing (See Post Office) 642
MAINTENANCE .... 615, 616
MALICIOUS INJURIES (See
Mischief)
MANDAMUS 54-56
MANSLAUGHTER 568
MARRIAGE, Fti^ned 617
Solemnizing, without lawful
authority 617
GENERAL
MARRIAGE, Paok
Illegal solemnization of 017
MARRIED WOMEN, Compul-
sion of 504
MASTER AND SERVANT ... 017
MEDICINE AND SURGERY. . 018
MENACES. (See Threats.)
MENS REA. (See Intent) 57!)
MILITARY AND NAVAL NE-
CESSARIES. (See Army
and Nary) 448, 441)
MIXES, MLscliief to 022
MINUTE OF ADJUDICA-
TION -m
MISCHIEF, On railways Oil)
020, 021
To mines 022
To electric telegraphs, elec-
tric lights, etc 021
Wrecking 021
Other mischiefs 023, 020
MISDEMEANOR AND FEL-
ON Y, Dist ' lion between,
abolished 80
MISTAKE, Of fact 570
Of law 571
MORTGAGE, Fraudulent 550
MORTGAGEE, Frauds upon. . . 549
MUNICIPAL AFFAIRS, Cor-
ruption in 488
MURDER 505
Attempts to 500
Conspiracy to 507
Threats to 507
Accessory after fact to 507
(See Suicide.)
MUTE, Evidence of 209
MUTINY, Inciting to 440
NAVIGATION, Of Canadian
waters ; 026
NAVIGABLE WATERS, Pro-
tection of 620
NECESSARIES, (See Mainte-
nance 615
INDEX. "701
NECESSITY, Paoe
Compulsion by. . . 504
NEGLIGENCE
Duty of persons doing danger-
ous acts 620
Dtity of persons in charge of
dangerous things 027
Duty to avoid omissions dan
gerous to life 327
NEGLECTING child 426
To provide necessaries 615, 610
\E(;LI(iENTLY endangering
railway passengers. (i27
(Causing l)odily injury 64
NEWSPAPER advertisement
oll'ering reward for return
of stolen property. 502
NON-INDICTABLE OFFEN-
CES, Table of 40:^-408
NORTH WP:ST MOUNTED
POLICE 628
NORTH WEST TERRITORIES 628
NOTICE of action against Jus-
tices ,50
Of Appeal ; 351
NUISANCES 629, 630
OATH, Power to administer ... 630
Of Allegiance n
Modes of administering to a
witness 203-219
OBSCENE MATTER, Selling. . 547
OBSTRUCTING OFFICERS... 631
OBSTRUCTING OFFICIAT-
ING CLERGYMEN 672
OBTAINING BY FALSE PRE-
TENCES 531
OFFENSIVE WEAPONS... 631633
OFFICERS engaged in prose-
cuting ofTenders, Corruption
of 487
OFFICES, APPOINTMENTS,
ETC., Selling 488
OFFICIATING CLERGYMAN,
Obstructing 672
702
PRACTICAL OUtOE TO MA0I8TIIATES.
OMISSION'S I'AiiK
(langcrous to life,
Duty to avoid 027
ONTAUIO FACTORIES ACT. . (WH
OFKNIXGS, LfiiviiiK unguard-
ed (L'H
ORDER IN' COURT, Maintiiin-
ing :«!
ORDERS OF COl'RT, Disobe-
dience of 5;iO
PARENT, Duty to provide ne-
ceHsaries 015
POLYGAMY
Paoe
..641
P.UISEE
Mode of swearing a
207
TARTTeS TO OFFENCES 5,^-154
PATENTS (i;t:i
PAWN HROKERS (!:«
PEACK, Breaelu's of tlie 4S0
ArticleHof tlie UU 422
PEDDLERS KMUm
PERJURY fl:{ora7
PERSON, Stealing from the.. tMi2
PERSONATION «37
PETROLEUM, Inspection of . . . 579
PILOTAGE 0:<s
PIRACY mj
PLAY, Cheating at 4iM)
PLAYINtJ, or looking on at
play in a G^iniing House . . . 6(i0
POISON, Sale of, by unautlior
Ized persons, prolubited.(K^!», (540
Administering 4:{1, 5(Ki
POLICE MAGISTRATES, Ap
pointment of 14 l.S
Their powers, duties and ros-
ponsibilities lH-24
Disqualifying Interest 25
Liability 'for Illegal Acts :«>
Power of, to maintain order . IIO, 375
POLITICAL OFFENDER, Not
extraditable 670
POOL SELLING.. .^ 473
I'OSTING obscene matter 631
POST OFFICE 642
PRELIMINARY ENQUIRY , . UK)
PREVIOUS CONVICTION .. 5i)8
(See T/ii/l) («14
PRINCIPALS 58 62
PRIZE FIGHTING 042, 0!3
PROCEDENDO, not necessary
in order to return conviction
on r(>fiisal to (|uash it 1)02
PR0(;LAMAT10NS, I'roofof.. 527
PROtU RING DeOlement of fe-
males .570
PROFANITY. (See lilnaphemy) 478
PROMISE OF MARRIAGE,
Seduciion under 053
PROOF, (See h'riihnce).im, 197,
1!)>-I, 202-217, 320-325, 522-5-29
PROSECU TOR may appear by
counsel "200, 202, 203, 319
May bind himself to prosecute
after dismis.sal of charge at
l)reliminary enquiry 221
May be ordered to give secur-
ity for costs 221
PROVOCATION 5(59
PI RLIC WORSHIP '»
Disturbing 072
QUALIFICATION of Justices'. 0, 7
QUASHING Conviction ...:M), 301
QUEEN, Assaults on the 465
RAILWAYS 043, 044
Conveyance of Cattle by rail. . 043
Criminal Breach of Contract
by 508
Gambling in Railway Cars... . 552
False Railway Tickets 643
Forgery of Railway Tickets. . 0^13
Mischief on 019-021
Negligently endangering pas-
sengers on 627
Stealing on — 644
OKNEHAL INDKX.
703
KAILWAYS Pacik
Stealing Rjiilwiiy Tickets tH4
HAI'K, Dclliiitionof (}44
I'linisliiiii'iit of 044
Atti'innt ti> ('(iniiiiit 045
Ciirimlly knowing female
idiotH ' (UO
De(lliiiKKii'l« under fourteen. 040
DniKKinK fenuile.s to detile
tlieni 010
RECElVIXt?
Property obtniiied l)y indict-
able oin-nce 040
Property obtained by non-in-
dictable oll'eiice 040
Stolen Postal matter 040
After restoivition to owner 04.S
When complete (547
HKCOONTZAXCK
Of bail, Kenerally 224, 243
Of Hail, on remand. . .atl, 2^5, :K(2
Breach of 201
Of Bail after committal ..22(i, 227
To i)rosecute or give evidence
222,240, 241, 270, :«i
Of Prosecutor binding him.self
to prosecute after dismissal
of charge 221, 238
Certificate of non-ai)pearance
ofja defendantdischarged on 349
On appeal from summary con-
viction or order 331, 393
Need not be estreated in cer-
tain cases 413
Sale of lands under estreated. 413
Discharge of forfeited 414
Render of accused by surety
in dischai'ge of 409
Discharge of 40})
Entry of forfeited 410
PMceedings upci forfeited... 412
S|M!ial provisirMs as to Que-
btjc with regard to 413 417
Tqjkeep the peace 42!!
RECORD in Speedy Trials. .209,
..281, 282
RECORDER in Montreal or
Quebec may preside over
General or Quarter Sessions 82
REMAND, Powers of.. IIMJ, 2!X?,
„ • • • 302, 329
tor three days may be verbal, 200
Cannot be for more than
eight clear days 199
Accused niaj- be brought up
before expiration of 201
Bail on 201, 233
Breach of Recognizance on'
201, 202
REPELLING Page
trespasser 459
RESCUES 521, 522
RESERVED CASE, Statement
of case for review on ques-
tions of law ... . 277, 30:^-367
RESPONSIBILITY FOR
CRIME.
(See Agency) 440
(See (\>ji(tcify for Crhtic) 495
(See I(/noinii(r of fact) 371
(See Inan niti/) . .'. 575
(See Infi-nt)'. 580, 581
(See Parties to Crlmex) 58-04
RESTrTUTION of stolen pro-
perty 271,273, 279, 305
RESTRAINT OF TRADE, Com-
binations in ,300, 601
RETURNS
Of summary convictions 372
Pul)lication"of ;i73
Defect ive 374
RIGHT AXD WRONG TEST,
in insanity 575, 376
RIOT 480, 483
Suppression of 481
Xeclect to suppress 484
RIOT ACT, Reading of 483
RIOTOUS ACTS, Inciting In-
dians to , 486
RIOTOUS DESTRUCTION...
484, 485
ROBBERY, Definition of 649
With violence 050
Assault with intent to commit 650
Stopping Mail with intent to
rob or search it 652
SAILORS, Entiiement of, to
desert 440
Receiving necessaries of 449
(See Army and Navy)
SALE
Of Adulterated food 539
Of fertilizers ... 541
Of intoxicating liquor witliout
license 582, 586
Of ob.scene matter 438
Of offices 488
Of poisons by unqualified per-
sons 640
Of things unfit for food 541
704
PRACTICAL GUIDE T(t MA0I8TRATEH.
SANITY, I'AdK
I'resuniplioii of 575
SCOTT ACT, (See Canada Tem-
perance Act\ 595
SEAMEN, (See Army anil
Navy) 44tt, 450
SEARCH-WARRANT
Iiifornmtioii for 117, 140
Genenil form of 140
Caution to be used in execut-
inK 1^1
Disposal of tliingH .seized un-
der IIH, 110
To search houses of ill-faine. 12:3
To search for mined gold, cic. 122
To search ganung liouses, l)et-
ting houses and lotteries... 124
To searcli for vagrants 130
SEARCH
Eor detained lumber 122
For fish talten in violation of
the Fisheries Act I'M
For game by game guardians. 132
For Intoxiciiting liquor in N.
W. T., and Keewatin 131
For intoxicating li(^uor and
weapons near public works. 131
For, and seizure of intoxicat-
ing liquor on H. M.'s sliips.. 123
For intoxicating liquors by
members of N. W. Mounted
Police Force 131
For public stores 121, 122
Of foreign vessels hovering in
British waters 130
Of vessels by harbor police . . . 133
Of any car truck or vehicle for
transporting cattle 133
Under the Animal Conta-
gious Diseases Act 133
Under the Fugitive Offenders'
Act 130
Under the Seatnen's Act. ... . 132
Under the Wreck and Salvage
Act 130
SECURITY FOR COSTS may
be ordered to be given by the
prosecutor 221
SEDITIOUS OFFENCES (J52
SEDUCTION
Of or illicit connection with
girls between 14 and Ifl 652
of female passengers. 653
Of ward, servant, etc 653
Under promise of marriage. . . 653
SEIZURE, Fraudulent 550
SEIZFHE. I'AGK
Stealing things under 662
SELF- DEFENCE 456, 6t4
SERVICE OF SUMMONS
107, 108, 193
SET riNG SPRING GUNS 054
SHERIFF, Duty of, under pro-
visions as to speedy trial . . . 268
SHIPS
Casting away or destroying. . . 621
Preventing saving of w-lien
wrecked 654
Sending or taking unsea-
worthy ship to sea (J54
In.spect ion of 571)
SHIPWRECKED PERSON,
Preventing the saving of. . 654
SHOOTING
With intent to murder 566
With intent to wound iSee
W'ounding) 672
Pointing a tire-arm 632
At H. M's vessels 672
(See Assaidts on the Queen). .
SMUGGLERS, (See Offensive
weapons) 632
SODOMY, (See Abominable
Crime) 431
SOLDIERS, (See Army and
Navy) 446
SPEEDY TRIALS of indictable
offences 267-285
SPIRITUOUS LIQUORS, (See
Intoxicating Liquor).
STATEMENT
Of accused 212, 213, 237
Of case for review on points
of law 277,363, 367
STEALING, (See Theft).
STEALING from the person ... 662
STEAMBOAT INSPECTION. 579
STENOGRAPHY, Depositions
may be taken by 202
STRANGLING (See Attempt to
Murder) 566
GENERAL INDEX.
•705
STUFKFYIXr. PA(ii;
(Si-c Adininlsteriny Dru(in,
and Hi'e Murder 43a, 505
SUBOHNATIOX of perjury. . , 030
SUMMARY ARREST, Powers
of iMM)5
SUMMARY TRIAL
Of indictable odeiices 2H7-:iOH
Of juvenile od'enders 3(K)-;{0H
Of nonindietable ofleiice.s.. 310-343
SUMMARY JURISDICTION
Is absolute over certain in-
dictable oH'enees in certain
cases 281», 2i)0
SUMMONS
In indictable cases 107, 294
Form of I37
Service of 108
Proof of service of 108
Form of deposition of service 141
To a witness 103, IMi, 319
i orm of. 22t)
In non-Indictable cases 325
SUNDAY
Prohibition of certain sales on a55
Sale of intoxicating liquors
on 589, 590
Warrants may be issued and
executed on 110
SURETIES FOR THE PEACE. ft55
SURRENDER OF FUGITIVE
for extradition 074, 675
TABLE OF
Indictable offences 251-200
Noprindlctable offences 403-408
TELEGRAMS, Sending false. . . 537
TELEGRAPHS, TELEPHONES,
etc.. Damaging or destroy-
ing 621
TENANTS IN COMMON 508
TENANT, Theft by 604
TENDER OF PAYMENT, on
(listress warrant 372
TERRITORIAL DIVISION de-
fined 310
TERRITORIAL LIMIT of colo-
nial power (See Bigamy).. . . 478
TEST OF LEGAL INSAN-
ITY
Pahi.;
. 575
Til EFT
Animals capable of being
stolen 050
Hringing stolen propertv into
Canada ' (jfl;^
Hy conversion ((.57^ 658
My husband or wife when
living apart 072
Hy taking (557, [m
I'ellned 057
l!i a dwellii'g-house o<>;{
Is simple or aggravated 058
Not otherwise provided for. m\
Of lost things (HK), (ioi
Of things under s izure (!(t2
Or stealing from the person . fl()2
Si)ecillc acts of 002
Things capable of being stolen. 056
THREATENING LETTERS... 065
THREATS
Compelling execution of docu-
ments by (504
Compulsion by 505
Demanding with intent to
steal 004
To accuse of crime. . 06.5, 66(3, 007
(See Extortion} 5,S()
(See Rot»hery) 049
TIME, Limitations of 05-72
TITLE TO LANDS, Justices
not to try questions of ..32, 33, 312
TRADE COMBINATIONS
Between masters or work-
men 500
The purposes of a trade union
not unlawful by bein j mere-
ly in restraint of trade 505
TRADE MARKS 667
TRADE UNION 505
TRAINING. (See Drilling.)
TRANSMISSION
Of conviction to Appeal Court 359
Of conviction of juvenile of-
fender 305
Of documents on committal
for trial 223, 224
Of recognizances.. 201, 30.5, ;W9, 415
TRANSPORTATION of cattle
l>y rail or water 515
TREASON (iOT (108
Accessories afrer the fact to . CiiO
70(J
I'RACTICAL OUIPE To MAOISTKATKS.
TREAS()NAUI,K CON Vm>k
SPIHACY tl(Ht
THKASONAHLK OKKKNCKS. (HHt
(Sei' .{still lilts oil till- Qiiiiii) . 1(15
(Seo ('oiis/iiriirj/ to J iithiiiiliitr
(I Li'i/isliitiiir) itiW
(Sen l.ri-yiiig War) tlirt
THKSI'ASS. Defeiiceof projaMty
(iKiiiiist irrtt
TRIAL
t'oiiimittiil for 1121
Of juvenile oHeiiderM :«Mt HOS
Of ii«)nimlietiil)le <iireiie .s.itlO, ;ti:t
III a siiiiiiniin iimniier, uf eer-
til in iiulietnlije oU'eiiees 287
Of perHOiis under sixteen must
lie separate 2'll, :t01, :t02
(See Spreily 'J'rials).
TWO OFFKNCrCS ncn to he
cliarKed in iiifonnatiun nr
coinplaiiit for non-indietabie
offence HU, :n5, HIO
UNHORN CHILD, KilliiiK 4H2
UNITED STATES AND CANADA
Extradition between 07ft
List of ottences extraditalile
between «7fl, «77
UNLAWFUL ASSEMBLIES .
480, 482
UNLAWFUL DRILLING 520
UNLAWFUL OATHS 435
UNNATURAL OFFENCE 431
UNSEA WORTHY SHIP, Send-
ing or taking to sea 654
UNWHOLESOME FOOD, Sell-
ing 541
UTTERING
Counterfeit coins 511, 512
Forgeries 547, 548
VAGRANCY 670, 671
VARIANCE
Adjournment in case of 103
Between charge made and
evide ce taken at prelimi-
nary enquiry, immaterial. . .
■. 105, 192
Between charge and evidence
ill summary trials not ma-
terial and may be amended. 318
VESSEL FAdio
(See>7i/y*.s» (to4
VEXATlOlh ACTIONS
5(1-53
VIEW ; iiiit pennisHilile liy a
Jildne ill case of a trial
without a Jury 277
WACERS (See IMtiiifi iiiiil
I'ool-svUiin)) 173
(See also .liirisilirtion to sum-
iiiari/j/ til/ rcrfitiii hiiliit-
(ih/i lill'iii'rcs 2K0
WAREIIOI'SK RECEIPTS,
(iiving or using false 560
WARRANT, Arrest witlumt 1KM)5
Hacking of ll.=i, 110, 314
Disixt.sal of person arrested on
endorsed 115
Duty of nei'son arresting with
or without warrant 01)
Execution of 1(X(
For witness 193, 195, 310
In cases of offences coniniitted
within the Adniiraltv juris-
diction 100, 107
Justification of arrest with-
out 95, 97
Justificatiou of arre-st under
lawful HI
May be issued and executed
on a Sunday .)r holiday 110
Not to be signed in blauK 101>
Of committal for trial 221
For apprehension of fugi-
tive witli a view to extra-
dition 073, ()77
Of committal for extradi-
tion 674, 077
To apprehend a person under
the Fugitive Offender's Act. 079
Of commitment' for not find-
ing sureties for the peace. .
420. 424
Of commitment of witness re-
fusing to be sworii or to
give evidence -. . . . 198, 199
Of commitment of witness re-
fusing to be bound over to
give evidence , . . . 223
Of commitment on summary
conviction. 340, 347, 385,387,
380, 391, 396
Of Coroner 110, 117
Of remand of defendant when
distress is ordered 348
Of deliverance of a person
bailed 228
Of distress. 346, 347, 3(53, 383,
384, 300, 395
#
riENEMAI,
WAHHANT |»A,)i.;
I'rotcctidii ill ('iiH«' of uiTi'.st of
wrniiK pernoii \\\\
Protect idii of person t-xccut-
iiiKim'nuliir Ill
I'rotection of pcrHoii excut-
iiiK uiiiilliorizcd 112
l{«Miiaii(liiiK H iirisoiier. .ll)l»,
2;m, am
To iipprcluMid (tut of the pro-
vine,' H witiiuss diKobeyiiiK
snlipn'iwi 11)5
To apprclii'ii;! iii d coniniit
witnesH for iioii-iittcii(Iiincf
^ _ lit MjM iMJy trial 2H(), liK'J, 2K4
To arirst a person clmrKt'il
Willi an iiKlicialilc odcnce. . 10t<
To arrest a juvenile olleiider. . :)()!
To arrest a witness rop noii-
attendance ;{(C1
To convey before a Justice of
^ allot lier district \(fA
To search for deserters i((7
(See Siarc/i W'arnnifn).
WATKR. Hreach of contract to
supply ais
tonveyaiice of cattle by 515
WKAI'ONS (See Otfriisire
IVeapoiiH) H;<1, fl;«
WKKIHTS AND MEASURES. (172
WIFE, t;onipetent to testify for
liusband '..... 2M
Compulsioii of 5()4
Theft by, from husband 072
(See Mninfrnanct) 615, ((1(J
WILD ANIMALS, Kept in a
cage, are not domestic 513
WITCHCRAFT 54H
WITNESS
Cases in which tlie evidence
of one witness must be cor-
rolKJrated 204, 211
Commitment of witness re-
fusing to be examined. . .198, 109
DepositTlon that a person is a
materia] 245
Evidence of, may be on oath
. or afBrmation 205, 324, 325
Evidence of, at preliminary
enquiry 202
interest or crime no bar to
competency of 204
Manner of taking depositions
o' 202, 203
INDKX. 707
WIT.NKSS |.^„K
.May he comniitted for refus-
iiiK to be bound over 223
.May be compelled to give in-
criiiiinatinK answers 525
May, if a foreigner, testify
through an interpreter '. 200
.Modes of adniiiiisleringoath
, f"' ; tm, 200
I'rocuring attendance of a
prisoner as a 11)5
Siiiiiiiions for '. . 103
Taking evidence, under coni-
nii-sion, of a sick witness
,,. v. ••.■, IIHI, 107
taking evidence,- under com
niission, of u witness outof
Canada kjh
Warrant for, after silm
»^w\s. l),;^^ 11,4
Warrant for, in llrst in-
•^''I'K'c 105
W ITXKSSEH
Attendance of, at prelinii-
narveminiry 193
For the defence 2IO
Expediency of defendant call- "
iiig witnes.ses, at prelimin-
ary eiKjuiry 217
Procuring attendance or wit- "
nesses beyond the province. 105
In speedy trials 2K)
In summary trials of indict-
able oHenders 203^
In trials of juvenile offenders. 303;
Summons or warrant to,— in
summary cases 319
WOMEN, Defilement of 516
WORKMEN. (See Trade Com -
binationa) 505, gflfl
WORKS OF ART, Distribution
of, by lot, by art society, is
not a lottery 012
WORSHIP, Disturbing 672
WOUNDING 672
Public officers 672
With intent to maim ff72
With intent to murder 566
WRECKING 621
YOUNG CHILD
Evidence of 2II
Consent of, in cases of defile-
ment, immaterial 428, 429-
46
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