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This item is filmed at the redu' tion ratio checked below/ Ce document est fWmt au taux de reduction indiquA ci-dessous. 10X 14X 18X 22X 26X 3ax 1 12X 16X 20X 24X 28X 32X Tha copy film«d hara haa baan raproducad thanks to tha ganarosity of: Seminary of Quebec Library Tha Imagaa appaaring hara ara tha baat quality posaibla conaidaring tha condition jnd lagibility cf tha originai copy and in Itaaping with tha filming contract spacificationa. Originai copiaa in printad papar eovara ara filmad baginning with tha front eovar and anding on tha last paga with a printad or iiluatratad impraa- sion, or tha bacic covar whan appropriata. All othar original copiaa ara filmad baginning on tha first paga with a printad or iiluatratad impraa- sion, and anding on tha !aat paga with a printad or iiluatratad impraaaion. L'axampiaira filmi fut rcproduit grAca i la yinisdiction iu matters pertaining to the prevm- tionoUi breach of thop.nico, and the muintenanceof the peace in the several com- munitiesin which th.^y reside and over which their jurisdiction extends; for the eifectually acconipUshiug of which, they yet have ample powers at the com- nicu law. Tins may be done; where tlioy see a breach of the law is taking place, or about to take [)!ac. , or is thr.uUoned under circumstances which show that, unless prevented, it will immediately take place, by the justice himself arresting, or ordering a peace officer to arrest, if need be without warrant, tlie oiiender, and by taking or causing him to be bruught before him, aud on (xammalion before him, by binding him iuhis own, and, if thought necessary, in the recoguizance of others, to keep the peace ; or by committing him to cus- tody, or otherwise dealing with liim according to law. Other instances might be mentioned wherein, indopendentfy of any statutory powers, they exercise an important jurisdiction at the co-nmon law ; but, as wo have already re- marked, the duties of justices are to a great extent, as respects both their II. as tc me mode of procedure, tha limitation of the punishmnif in in-^imav^ statutes chTeflVrs^^^^^^^^^^^^ ^^^"^^ "^'^ ^''''^'^^ '^'^ «"«^^"a Justice of tkepeae. shouUl Kace ty hi. ^/l L"!!'''';/-,,^;,!.',, f 3 have the whole cnniM .tatatcs of Caaala, coUectel and puhlihT I the, have lauhj been hy the Ottawa government, in one volume. And^L a seems no reason why every j ustioe of the peace in Manitoba should not ha^a fhr lat?er vol tlTasLT te'oVcTt '^ *^^ f "«""^^^^ ^'^'^'^^^ who.':viohout tubt. ft wnn K°' V .u '*' ''''^'* '"^'''» "'^"^^^y- ^v^'il^l be supplied with a suffici- ent number for that purpose, by the government at Ottawa. With the aid and assistance of these statutes, the minute directions therein contained, and the various forms thereto appended?^he in Jrhr. and indusbnous justice of the peace will be seldom led astray witSthrs a^d and assistance, he i« liable to fall, and will almost inevitably all ntoer?or afceverystep intheproceedings-both in the matter of Tu^Sni^y conWc- tums and in the prehminary investigation of indictable offences ^ »pace will permit only a few general directions. Tlie first thine- a ius Z« .7^ 1,^^°' 'I t?^«°«rtain whether or not the matter compHed of be an of fence a all and u so whether at common law or by statute • and brwhat particular clause of the statute. The nev.t question for the justfc7to drte?- nTJ%'"', r^r^"^^.^ "^^"^^ *^" ^^^« b^^-^ committed, whetheJor nott i an ndictable offence, L e., a misdemeanor or a felony, o • a less offence and such as may b. disposed of by a singl. justice, or otherwise, on summa!; tr" al. In the former case, he will follow the directions given in 32-33 V C v.ri«Tf "!t ' ^'''"'v ^PP««?«^^ *° ^^bat statute, carefully selecting those pro- vided for the proceeding he is taking ;-in the latter case, he will foSow the directions given in 82-83, V. C. 31 ; and for the seve^l scales of the proceedings he will strictly follow the statute,-in no case, deplrthig from tne forms thereto appended, particularly in the matter of drc winy nS formal eonviction t« cases of summary proceedings. ^ ^ *v, * I? *he case of summary trials and convictions it is of» great importance that either before the trial has been entered upon, or at all events bSe the defendant enters upon his defence, the matter of the complaint should be d stmctly and clearly stated in an information, on oath, either before or uno;\iS"'"°'V^'.i!""''.°''''^y^^^"'^"^^'^^ ^'^^'^ ''^' defendant nters Z ?r?n nf ! 'V ^""^ *^' information stands in the place of a declaration in the trial of a civil action, and of an indictment in the trial of a misdemeaior or a felony. It is not meant that the complaint .hould be set out m the in- formation in any particular form, or set words ; but it is meant that it should be described, not in technical language, but in the mode of speech and words n common use among the people, stating what is complained of, not what the ' actTittT ' 1 '"''"''r^ '^''•f °'^' ^'^^^^ °«°«^^"y' ^« ^^'' ^ narration 0? iui two fL T"". \'^^"^. ^'•'^- ^-^'^'- ^f *'^« defendant pleads not guilty^to the complaint charged in the information, issue is sail to be ioin- e«, auu tne cnai proceeus m all respects like trials at the sessions or assizes III. id/cl-onies — I summary J offences, 13 criminal lat may be 31. Every —he should ? thei/ have no reason latter vol- (loubt, for lia suffici- directiona liring and i this aid into error ■y convio- iig a jiis- if be an of- by what to deter- r not it is snce, and mary tri- J, V. 0. lose pro- II follow IS of the ig from is formal )ortance, afore the ould be if ore or t enters 'ation in smeaior the in- t should d words rhat the ation of ids not be join- asaizos, and 18 governed by the same rules as to the admissibility of evidence, and otherwise, as are applicable to oases of misdemeanors, tried at the sessions or assizes. If the complaint b« dismissed, a dismissal should be drawn up in the form given in the statute; if the defendant be convicted, the conviction should be prepare! with oara, ana should contain all that is« required in the form in the general statute, given to boused in given cases of summary convic- tion?, when speoirtl forms are not given in the particular Act under which the con- victioniamado. Ifcosts are ordered to bo paid, these should be liquidated, i e the precise sum speoified.and stated in the body of the conviction,and to whom and for whom to be paid ; an 1 the conviction must state how ond for what purpose the hue (if hue be imposed) is to bo applied ; and the term of imprisonment, if the stiitute allow it, on tion- payment of tho fine, or fine and costs; and care should be tiikeu to make the term of imprisonmont comraonoe from the date of the conviction. And if a cgmmitment in default of immediate payment of the fane, or fine and costs, or in default of sufficient distress, follow the convic- tion, it must recite the conviction, theuon-p.ivm^nt of the fine, or fine and c )sts, or the want of sufficient distress; and then commit for the penod nam- ed in th'3 conviction, unless the fine, or fine and costs, be sooner paid • in wmch costs must be included the costs of carrying the defendant to the \ prison, if the sima are inton led to be charged arainst the defendant • o" f those latter costs must U ascertained and stated in the commitment, so that the. defendant may know what and all he has to pay, in order to regain his libertv. If the defendant pleads //u% to, or c'o«/«Me« the charge in the in- formation, then judgment should be pronounced, and the conviction drawn up alter the torm already referred to, reciting thfi information, and that " upon the samo be ng read to the defendant ho pleaded thereto "guilty," or he con- fesiedthe charge contained in the information," and then proceed to record the .ludgraont m the oo)ivictiou, and proceed thereon, as already directed and in all respects as though the conviotion was made after a trial. ' Hitherto there appears to have been no regular return made by justices ot summary proceedings before them to the Clerk of the Crown and Peace as required by 32-33 V, C. 81, Sees. 76, 77, 78, as amended by 83 V, C. 27] bee, 8. A heavy penalty is most properly imposed for default in not com- plying with the law in this resneot ; and we hope it will hereafter be deemed the duty of the court to call the attntion of the Clerk of the Crown and Peace to any omissions of duty of this kind on tha part of Justices of the Peace, and to direct their prosecution for thd paualty imposed by the Sta- tute. Another matter has attracted our obs-n-vation. It would soem the only fees that may be legally taken by Justices of the Peace, and bv their clerks are those fixed by an ordinance of the Council of Assiniboia, passed the 3rd November, 1864. The scale is as follows :— Every warrant 2s 6d sterling equal 63 cents, of which the Justice is to retain Is 6d, (87 cents), and to pav over the remaining Is, (25 cents), to the constable, as compeMSMtion for exe- cutmg the warrant ; and for every mUehe may travel beyond the five miles the constable is t^ be paid two p.nice mileage. The ordinance then adds :-J . If! .,eneral ^our>t shall be aaiharUedto adopt moh hcuU of fees as to the court Itself may appear proper. ' ' IV. gully rslabli.lu d in tliis rrcfvi:"" o h] nl ft hk aforc.a.d, b"« .vcr been lo- tieciae from llie other; ,ii,d each IV v V ^'''■'"^' '" «ome ret^pects right, to deal ^vith its 0^1,.,^? Tf ^\^ '' ^'"^^'^'^'^in-^^l. «"- mi Itj 0^26 All otber mileage necessarily travelled in executing or serving papers or process, counting one way, per mile 0.20 Note. — Any service not specially named to be allowed for by the Justice on a scale in proi)ortioii to the items specitled. WITNESSES. 0.60 0.10 0.10 0.25 0.25 For attendance before a Justice, if residing within 3 miles of tho Justice, for half a day or less 1.00 Over a hiifa day and not exceeding a day 1.50 Over one day at the rate above mejitioned, and to those residing or being upwards of 3 miles from the Justice, at the rate per mile, counting one way 0.20 In the case of indictable offences, where the niitiatory proceedings are ta- ken by a Justice of the Pence, no fees are allowed to Ju-tices. Of course, constrtbles, for their own services, in respect of such offences, will be paid by the Treasurer of the Province, Yet, even in these cases, there are certain misdemeanors which partake so largely of civil trespass between party and party, that the expenses thereof may well be thrown upon, and borne by the party in the wrong, as shall be evid'-^iced bj the final determination of the litigation. But our limits will not permit us to enter into a discrimination of such cases. For the conduct and procedure in indictable offences we must refer Jus- tices of the Peace to 32-33 V.. C. 30, and to tli,> jud^'iuant of the Chief Jus- tice in the Queen vs. Sehultz, wierein thoir duties are set forth with great particularity and minuteness. QUE] In C] 1!egi! Til Ihe 1 infer: iiuiii sot o at N( ]5ra(l conv ClUll] 10 ( tl 1117 I taiii oil! 1( siali JUDGMENT -IN THE— QUEBN VS. DEImSB^ HABEAS CORPUS- QUKEN'b BENCH. (Crown side.) In Chambers, August IItii, 1875. Curd)!.. : Wood, C J. 1;egina vs. William I^ease, the YOUNGER. The defentlant in this case was on Iho IBtli clay of July, 1875, on the information of Ka-qua-koni-ash, an Indian, upon th<^ ovidenco hereinafter Hot out, iivA upon liis own confession, at North I\;nibina. in the; County of Pruvencher, by and hefori.' F. T. I'radlcy, •.' Justice of the Pciico. in and for thi' Province of Manitoba, convicted of having, at an IncUaiien- caiii]-ment on the liossefiu River, in the county afoi-esaiil, t>-iven int xicnt- iu7 liquor, namely whiskey, to a c'.r- tani Indian by tin! nanie of Ka-qua- koui ash, to driidc, contrary to the stal.ute, 87 V, C 21 ; and he wa^; on the fifteenth day of July, 1875, hi pursuance of u commitment based on the conviction, delivered to the gaoler of the ccmmon gaol of Mani- toba, in Winnipeg, where he now is. On the 22nd of July, 1875. Mr. O'Kielly, on filing an affidavit setting forth in brief the above facts, and pointing out certain alleged defects in the warrant of commitment, a copy of which was annexed to the affidavit, moved for, and obtamed a summons, calling on the convicting justice, forthwith, after service of the said summons upon him, to file with the Clerk of the Crown and Peace, at Winnipeg, the formal conviction on which the said commitment purports to be based ; and on noticfi ordered the said gaoler to produce before mo all warrants or other documents in ills possessions relating to the recep- tion and detention in prison of the said William Dease, the younger ; and I further ordered the said Jus- lico, liii-cc dixys vA'Um: sni'vico ol^ my Haid Biunmoiis upon liin), to shoAv Ciiuiio -why t.ho said conviotion trnd coMiiiiitiueiit sliouli not bo hct usiilc iv.id the y:iid Do;ise be iiltogetlic;!' dis- cl)ary:od iroin custody, on the ground t'lao they or one of them, jire or i«, biid ia Kub'^tiirjco, as not disclosing any Bnliicicnt cause in ];uv for the dtitontiun of the said Deass — the said commitment not showing that uny conviction had hoeu mado—being wrongly directed — ssigning a place of imprisonment not warranted by the statuio, and not statinc: witli le- gal certainty any otfenco, and other defects in tha said con^iction and commitment. The summons was returned serv- ed, and the conviction, information, dei)ositions, and otber paper,-', were returned and tiled with the Clerk of the Crown and Peace by the Justic •, and the same were produced on the liOHring of the summons ; and at the same time the gaoler appeared and produced two warrants of commit- ment, msirked as having been receiv- ed at different times— number one, on the fifteenth day of July, 1875, and number two, on the twenty-sixth day of the same July — he having re- ceiveil both from the said Justice, the one through tiie constable who brought the said Dease to the gaol, and the other through Mr. Carey, acting for the Crown in this case ; under which latter warrant, number two, the gaoler held and detained the said Dease. The information, con- viction, and warrants of commitment are as follows : — INFORMATION. " Cfiuada, Province of Manitoba, County of Provenchcr. laformation and complaint of Ka- qua-koni-ash, in the Parish of St. I Agathe, taken upon oath this first : day of July, 1875, at West Lynne in I the Parish of -St. Agathe, befere the > undersij';no(l, P. T. JJradlo};^ one of I ll-r Majesty's Justices of tlfe Peace, ! ia and for the Province of Manitoba, ; who saith : That on the evening of : the 29th day of June, one William i Dea;e, Ja?iior, and brotJioi-, Avhose j Christian name I know not, came to I my camp situated on the Eiver Ptos- scau, and brought with him a keg of whiskey which he gave freely to my- s.'jif and all the Indians present, and after having placed me under the in- lluence of liquor took forcible posses- sion ot two of my horses with which h(! left. Sworn before nie at West Lynue, this first dav of July, 1875. (Signed) F. T. Bradley." CONVICTION. " Canada, Province of Manitoba, County of Proveucher, North Pem- bina. Ka-qua-koni-ash, Prosecutor, and William Dease, Defendant. Be it remembered that on the thirteenth day of July, in the year of Our Lord ono thousand eight hun- dred and seventy-five, at North Pem- bina, in the County of Provencher, in the Province of Manitoba, William Dease, the younger, of the Parish of St. Agathe, in the County and Pro- vince aforesaid is charged upon oath before me, the undersigned, one of Her Majesty's Justices of the Peace, duly commissioned of the Peace, in and for the Province of Manitoba, for that he, the said William Dease, the younger, did unlawfully^ on or about the twenty-nintli day of June, last, now past, in the year aforesaid at an Indian encampment on the Rosseau Eiver, in 'In,' County and Province aforesaid, give to an Indian :li this first st Lynne in !, befere the llc};^ o]ie of niffc Peace, )f Manitnbii, J evening of ne William ;]iGi-, Avhose lot, came to Eiver ilos- im a keg of eoly to my- iresciit, and ider the in- ible posses- with which est Lynne, '5. bUDLEY." ' Manitoba, ^orth Pem- ecutor, and it. at on the the year of eight hnn- North Pem- .'rovGiicher, 3a, William 3 Parish of r and Pro- iipon oatli led, one of the Peace, I Peace, in Manitoba, iara Dease, illy« on or i.y of June, : aforesaid mt on the 'oimty and ) an Indian 8 man named Ka-qua-koni-ash, but not ill case of sickness, nor under thesanclion of any medical man, nor under the direction of a minis- ter of religion, a certain kind of in- toxicating liquor to drink, to wit, wJiiskey, against the form of the Sta- tute in such case made and provided, to which said charge, so made, upon oath before me, he the said WiUiam Dease, the younger, pleads guilty and 18 convicted thereof before me ; and it is thereupon by me adjudged that the said William Dease, the younger, for his said offence shall be imprisoned in the common jail of the Province of Manitoba, for and during the ai)ace of six calendar months, to be computed from the date hereof f and it is further adjudged by me that for his said offence of which he stands so convicted, the said William Dease the younger, shall further be fined in the sum of two hundred dollars, one half of the said fine of two hun- dred dolhirs to bo paid to the afore- said Ka-qua-koni-ash, and the other half to Her Majesty the Queen, to be applied according to law, together with the sum of sixtj^-six dollars and eleven cents, to be paid to the oaid Ka-qua-koni-ash for his costs incur- red in this behalf; and it is further adjudged by mo that if the said sev- eral sums be not immediately paid, the said William Dease, the young- er, shall be further imprisoned in the said common gaol, for and dur- ing the space of twelve calendar months, to be computed and reckon- ed from the day of the expiration of the aforesaid imprisonment of six mouths, unless the said several sums sliall be sooner paid. Given under my hand and seal on the day, and year first above mention- ed, at North Pembina, in the County and Province aforesaid. (Signed) F. T. Bradley. COMMITMENT NUMBER ONE. "Canada, Province cf Manitoba, County of Provencher. To the Keeper of the Provincial Penitentiary of the Province of Man- itoba, greeting : — Whereas William Dease, Jui " ir, of the Parish of St. Norbert, in the said County of Pro- vencher, stands charged upon oath with having given spirituous liquor to Indians, and having pleaded guilty to such charge was fined in the sum of two hundred dollars and costs, together with six (G) months imprisonment at hard labor — these are therefore to authorize and com- mand you to receive into your cus- tody in the said Provincial Peniten- tiary the body of the said William Dease, Junior, and safely him keep for the period above mentioned, to be retained in custody until the said fine shall have been paid according to law. Given under my hand and seal at North Pembina this thirteenth day of July, 1875, in the 39th year of Her Majesty's reign. * (Signed) F. T. Bradley, J.P." COMMITMENT NUMBER TWO. " Canada, Province of Manitoba, County of Provencher. To all or any of the Constables and other Police officers, and to the keeper of the common gaol of the Province of Manitoba. Whereas William Dease, the younger, lute of the Parish of St. Agathe, in the County of Provencher in the Province of Manitoba, was on this day convicted before me, the un- dersigned one of Her Majesty's Jus- tices of the Peace, in and for the Province of Manitoba, for that he the said William Dease the younger, 4 on ov about the twenty-ninth clay of June now last past, A. D. 1875, at an Indian Encampment, on the Kosseau Biver, in tlie County and Province aforesaid, did uulawf>illy f^ive an Indian man named Ka-qua- koni-asli, but not in case of sickness, nor under the sanction of any medi- cal man, or under ihe direction of a minister of religion, a certain kind of intoxicating liquor to drink, to wit, whiskey, against the form of the statute in such case made and pro vided, and it was thereby adjudged that the said WilUara Dease, the younger, for his said ofi'ence, should be imqjrisoneil in the common jail of the Province of Manitoba, for and during the space of six calendar months, to be computed from the date of the said conviction ; ai)d it wa'^ thereby further adjudged that for his said offence the said William Dease, the younger, should further forfeit and pay a hno of two hundred dollars, one half of the soid line of two hundred dollars to bo paid to the said Ka-qua-koui-ash, and the other half to Her Miijo.sty the Queen, to bo ainilied according to law, togetli;'r with the sum of sixty-six dollai'S and eleven cents, to be paid to the Siiid Ka-qua-koni-ash for his costs incur- red in that behalf ; and it was ihert-- by further adjudged that if the said several sums be not innnediatoiv ]iaid, the s;iid William Dease, the ycungei', rhould be fiu'tiier impri'.fou- cd in the af()r<>said common j-iil for and during the space of twidve calen- dar mouths, to be computed and reckoned from the day of the expira- tion Oi the aforesaid im})risonment of six months, unless the said sever- al sums sliould liavo hepi) somer paid; and whereas; tlie said wlUiam Dease, the younger, stands so con- victed of the aforesaid offence; and whereas the said William Dease, the younger, hath not paid the same or any part thereof, but therein hath nmde default : These are therefore to command you the said constables or peace officers, or any of you, to take the said William Dease, thn younger, and him safely convey to the common gaol of the aforesaid Province, 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 William Dease, the younger, in- to your custody in the said common gaol, there to imprison him for tho space of six calendar mouths, to be computed from the thirteenth day of July instant, A. D. 1875 ; and I do hereby further command you the said keeper of the said common gaol to further keep and imprison the said William Dease, the younger, in the said common gaol for and dur- ing the space of twelve calendar months, to be computed and reckon- ;edfrom the date of the expiiation of ' the aforesaid imprisonment of six ; months, for his aforesaid default of ■ payment of the said several turns of which he stands adjudgei', unless the said several sums sliall be sooner . paid unto you, tho said kcqier ; and for your so doing this shall be your suiHcienfc warrant. Given under my hand and seal at North Pembina, in thn (.,'ounty ^.nd Provhico aforesaid, ana on tiie thir- teenth dav of July, in t^ie yeax of our i Lord 1875. (Si^'ucd) F. T. J:'.nAOi >cy, J. P." THE AIIGUAIENT. - Tur. O'Piielly in luoviu;* the sum- ! mons absolute to set aside the con- j viction and commitments, stali'd tiio I following grounds : — i 1. The conviction is bad for ding ease, the same or jin hath therefore )n&tables yoii, to iase, thn invey to aforesaid ver him together 3 hereby ir of the jeive the '.iger, in- common I for tho IS, to be ;nth day and I do yrou the non gaol son tho Luger, in tud Our- caleiidaf 1 leckou- latiou of at of six of-.iult of fcums of iiless the j« sooner per ; aud !1 be youi- d seal at uuty :iud tiie tliir- ea,v of our ', J.P.' the sum- the coil- Ktaif:' givmg no auth.)rity to impose costsiu addi'ioa to the fine, and in any event not imprisonment for their non-paymer.t. 3. The conviction is bad for [awarding tho imprisonment, in do- i fnult of the fine and casts bemg not immediately paid, for a period to couimoice at tho expiration of the nabstantive penalty of six montJis' im- priHonmentfor the same identical of ence awarded in the same conviction: if tlicio be any authority for the impo- sitidu of imprisonment for non-pay- ment of the fine aud costs awarded in aud by the conviction, (which is denied) the term or period of im- prisonment should have been made to begin at ihe date of the conviction and Jo to run, for the time of the , substantive and absolute award of imprisonment, concurrent therewith. 4. In any view, commitment number one was the warrant by virtue of vdiich Dease was carried to, and received into, and detained in prison, at all events until warrant number two was delivered to the gaoler; antf therefore must beheld to be the warrant under which he was aud is held. It is not competent for the Justice to displace it by sub- stituting another warrant in its stead; nor is it competent to the judge to amend the warrant in matter of sub- stance, altliough he may have before hiui a good conviction by which to amend. 5. The warrant of commitment number one is obviotisly and admit- tedly defective in substance. There- fore, on all, or sDuie one of the grounds stated, the prisoner should bo discharged troni imprisonment. The Clerk of the Crown and Peace, contra. - i • i.- To the first ground of objection Mr. Carey replied by reading 87 V. C. 21, sec 1 subsecs 1 and 2, and pointing out that although the pro- vision, " an^H/t default of immediate u p^ujment of such fine any person so '' fined may be committed to any com- lk>! «' imni fi'iiil, house ofcovedion, Un-kup, ^^ ur ot'liir place of coniinement hij the Mr. Cirv3y coiiltnidod that tlie third obiBctiou wiw nuteuable, for the nlumnem ,y • ' , "^ .|,.,,..1„ intend,;.! a cumulatWo od by >»e t -:'^;^:;^,/^ ;'t,:°' ■ o'd l .wor,d, that the a.uhont>e, were con- sup pusol to bo iimiceu lu b.i_ o». . , ,, i,,ati(;^^ ini''ht siibsti- -•s/m// />r y.oNrm/ J« 'V, 'w./ mhms. '^^V^J'^^^^^^ the justice .. »«. of under the sanction of nmj med- \ vni'^ht couoct i. un^ __^^ ^^ l ^^^ ^f ( (,#1 H'l V-' " f ,/ ' following, and oorrectin.^' tiae puiictu ation by substitutiug a sem!-colon lor the /•««'»((/, enouGously placed be- tween the words "(/'ni/'^""'/" '^"*1 '« ami," (as shown by the Frencb ver- sion,) the conclusion was u-ro^iHtible, tliat all of sub-sectiun 1, commoucmK' with, " cina in default of rnm uliate i payment,- &c., to the end of the sub- section, applied as well to the hrst a^^ to tiie second cl i.ss of offeacos. ile called attention particularly to the exemption, " hut no poualfcy sha I be "lacurrediucaseof sickness where " any inioxic.itiug liiuor is made use " of und n- the sanction of any medi- " cal m;iu or under the .lirections ot "a miuist«r of reh-ion." .Vny one " held void by reason of any defect " therein, provided it be tlierein al- " lolled th:itthe pavtv has been con- ««victed, a)id there be a -T-^od and " valid convi(;tio!i to sustam the same." r^eo also, Paley 292, 293, 374, 375 ; and the note k. on the latter Mr. C:tr.v/ contended he had dis- po-^ed t)f the tilth ground in his an- swer to the fourth objection ; and ha thereur.;)n submitted that no leajal .vvound^iad baen stated or suggested entitlin ,' the defendant to be dis- ci larged ; on the contrary, that the racord ot his conviotion and bis com- mitment were in due torm of law and within the express provisions ot "" . fi,,f ih\-' WIS intended to the statute hi pursuance o whicn the S:;^::,dtofr;ply:as wU to the de..idant stands convicted and com- first:a8to the sooond class of offences, j mitted. lleferenee was a'' so made to statutes mpuri>}iat,'rui,U th« rules of con- gtruclion laiddown in Dicirrn^, and to the comme)-itaries of Valey and other textwraers. ^ ,,.' .,.,,. To the second grouua, .a.r. lyuvA answered, by citing 32-83 V. C. 31, sees 53, 54, 55, and 5G. THE ADJUDICATION. Th" def'^ndant is convicted andcom- mitt"ed under 31 V., C. 42, and 32 33 V C 6 as it stands ainend- Min^ocl of 37 v., C. 21. The words of the Statute are— (sec 3, sub- sec 1) : — lit tUo for the luliitive bo in- in3istui.l vas au- ere coa- fc sub^ti- ; for the [ return ri ; and citod in Even !ctivo in ) justice tter part • And no shall be ly do feet lereiii al- oen con- Dod and tai-n the 293, 374, ,he latter had dis- 1 his an- : ; and ha no leajal suggested be dis- that the I his com- fl of law visions of which the , and com- )N. jdandcom- aud o2 83 S iUUftud- 21. The (sec B, sub- " \Vlh>soov(>r «i.llH, cxaiau:,'0H .vUh, bar- 1 awaiting trial,_ where it is doaked to mike injmaii or cliil.l in Oatiula, any kial of iuU>xicnH or koop), or cuvics to bo opeuod or k fit, on any laud sat apart «r re- ^ _ ._ sorved for , idiaiKi, a iavovri, Uuus.j, or jn„'^iie custody, or restraining the lib hnlLViwA wiitri! iuloxiaatia.'r !i,piov 13 .sold ; = „ ^ applicant. Up -U the re- hoin ^ lout, vagwiim, or p".aofi of abode of causQ weie shown tor dateutiou, ami auyjadiiui, sliaUwa cuuviotioa thereof ba- ^q (jxoeption COuld bo taken against foro any Juskiuuof th.) I'Haci, upon tl^*- ."^'- L^e ftce of the proceedings' hs ap- donce of oucj ere.liblo wituJ.-fS o.lier than j .^ tl,« r.nnvn or it" inv oulv the informoi ov pro.B^uxtor, be liiblo to ini- 1 pearing ou the letuin, 01 It any, ouiy mi'onmoat for a period not '^xceedin- Uvo , .^ao'.l as might be amoaded, the ap- ymirs, and boflao Inot moro than hve hun- | ^lic^ut might ask for a cettioran, and^ 'ar.!,ld)La't, onoraoiooy tj goto ^'i® Z'-^- ' ti^g.-eby brill' bjfore the judge or fovuior or pr*Heculor, and tao othor r.ioieiy , - • youvictiou, aud all other t,. Mnr \faieHtv' to form oart ot tUo fund for OUii i-u'- »^uuvivu > tl.Xneatofth'aVtribeorbody^ anterior proceedmgs leading to with ve.ip'Jt't to ouo or more nicmheis of ; j.^^^ ^.^^^victlon, or anterior to, but leatl- which th« offence was committed ; and the . -^ ^ ^^ ,^^^ connected with, the re- comman.lor or poison in cliarriO of any j ' .jf ■ ' f liberty ; and it would SOem st,;a,aer o.' othiir vo-;soi or boa^., from o on , atiaim ol ^^uui y , „„fliovities hoard of whi«h any mtoxl.catin, liquor shall 1 irom a rovlOW ot all tho autUoutloS havo boon hoIcI, bartorod, exchange 1, «up- I t^,,,t ,it comiUOil lasV, in OVOry case Ot plied, or given, to any Indian man, woman or cliild, shal4 be liable on conviction thore- of before any Ju.-,tiea of the Peace, upon the (!videu;!H of ona crelible witnofw other than bne iniormnr or p-Driocutor, to bo fined uot Hxceodinj? llv ; hundred dollars for each i-;;iL'h olfom e, the moitics thereof lo lid ap- plicable as herein before mentioned ;* and in "-"- - -. ;'",", anhlf-ote'd to oxamiu d.fauU, ,.f imiu«.liato payment of such tine | the wrics may be buDjcctul to oxamui any p.-riisn, so linei, may be c tod to any correction, loo humnont by 'H^.-bi^tice of tha rea.^ oeiore | ^^^V'^^ ^.^^^,\^^ olfenca"was commit- w'lom the conviclK'U shall take pls'.ce, lor lu^ u., lu j. •> _ . ^. . restraint of liberty, amounting to im- prisDiunent, including the cases pro- vidBd for in 31 Oai., 2 C 2, aud 5(5 Geo. 3, G. 100, the writ of haheas cor pas and of cert'iorari iuay issue, and Ula^ th ) allegations in the returns to ich tine i tue wrics imiy ue bui^jcu.;^:.^!''" v---"— Ko iuiB., .ix,..r - com nit- j ;uion and imiulsition,aud may be con- uy common gaol, haiac of j |.j.jy(,j^.t^^,,i ];,y ^.tfidavits to the extent of )ck.up, ov other placo of con- ; , ^^^^ ^[^^^^ admitting what is al- tlie Justice of th3 Peace betor>3 I ^'i'-' ' ." ^._ ',_ , ,y,.,„ °,,,,, ^^,r„r.it- a period of notmor« than twelv>3 mouths, or until such tia« shall bo paid ; and in all cason Arising under tins section, Indians rihali bo competent witnesses, buliuopenaity shall bo in uirred incarfo of sickness wiiere anyintOKicaiint; Uiinor is made use of un- tlor tlic saucLion of any medical man, or un- dtr th« div(!ctioiv; of a minister of redgion.' it m ty not be improper to premise ii, few remarks ou the practice ia re- I.itlon to V\.) i'lipj-isonmcat of per- son-, uuh/r color oihv^al proc^iss on Gommitments based upoa summary convicLioud, itiid ou coiuiulLm-.:uts on cliavgo« ot misdemeanors and folonies uod, or that there was no jurisdiction, or that there was no evidence giving juri.>dictioii, or tiiab the oiiender ad- ■u'ttod or confessed one offence and w IS convicted of anothor and different oli'enije ; and the whoKs ground of the iinorisonmen't may be reviewed, but so 'as not to overrula aay conclu- sion of fact, based on admitted evi- dence, or any judgment, absolutely ii:i the discretion of the imprisoning authority, pronounced according to laH'. I do not think it of any advantage to Rrp. 'In the Engiisli version this p.)int '.a a comma in the Prouch version a semi-colon. Ui^ i:» Hay aiiyLhiii},'ruftii;i' rorfpecLuig tius ; cases vvliich arise undei' 31 Car. 2,j G. 2, r(il>itiiii,'only to "persons in cus- tody for fjriuiiaul or biipposiul criini- nal raaUors," except troasou and felony, and under 50 Geo. B. C. 100, reiatin;,' to those only " wlio are coni- "mittedor detained otherwise than " for some cviniinal or supp ilis- seau tribe. I recognize the prisoners at tho b:i,)' as Alffud and VVillian Dease, who came to our catnp the night buFore Iva-qua-koni-ashlaid the coiuplaitii, in a w.-iggou. I was not pro sent at the moment of their arrival, ])eing absent from camp a sliorttime, but found tliem the .-e ou my rotu n. When I first Baw Dease he was ly- ing on his side iu fhe waggon. I shook handn with Dease; and he asked me would I take a glass of whiskey, if there was any to be had? I did not reply, but smiled. Then Dease again asked me if I would not take a glaaw. I again smiled — and said yeH. Dease then poured out somo whiskey into a pot from a keg ami gave it to rae lo drink. A good while after, Dease asked me to take another drink, and 1 took another. It wan whiskey he gave rae. Willi- am Deaso d'-ank also, but I did not seethe youngerbrbtherdrink. A good while after Dease gave me another drink. Ka-qua-koni-ash arrived just as I was taking the third glass. 1 did not see Ka-quakoni-ash getting any liquor. I did not hear Ka-qua- koni-ash make any bargain about the ho'ses. I followed tlie rest the fol- lowing morning when Dease was tak- ing the horses awav I went down, as I thought there was something wrong going on, and I wanted tosee. When I was about leaving, I sawKa- qua-koui-as' and Na-shaw-so trying to get their horses. I saw Dease push Na-shaw-so down. He hit him ;i. little, but not hard ; and I said to tlie Indians that were there, " Let us leivve them and go home. his (Signed) Wa-na-we x na-non. mark. Taken before me at West Lynne, this 12th July, 1875. (.Signed) F. T. Bradley, J. P. Na-»iiaw-so being sworn saith : — I was in camp the night Willam I )eaHe arrived. I recognize William Deaso and his brother, now present, ;i;i tiu; partirs vvho arrived in camp. Ho gave me, among other Indians, a drink ot whiskey from a bottle which ho puiirod into a small pot and hand- 10 0(1 to me. I don't rotnombflv howl Fuancis Uanville being .sworn yaith: many drink ri 1 toc^ b(3toro I borame I Iniow tho prisoner, William drunk, but in th? inei«ntimt> I Haw Dcasc, but 1 do not know tb« young- Dcase giving whiskey to othnr Indians er prisoner. On the evvning ol" tiie prcaont. I don't recollect when Ka- BiHh I met tho pri-tuner, William qua-koni-asli arviwd, fur I was then J)<'a8e, tm the road liehiud Dutt'erin drunk i'rom the effects nfliciuorl had i with two horaes tied behind the wag- then received from Dease. I got kg- gon, one which I recognized to be her early in the morning. Tliin wart tho property of Ka qua keni-aali. J the morning before Kw-qua-koni-ash did notHpt-ak t»» him, but concluded left to lay the complaint. I wan not I he waa on his way to Winnipeg ; the quite 8ober wlien Ka-quii-koni-ash ; horse which 1 recognized as tho pro left in the cart. I think Ka-qiui- pt'vty of Ka-qun kori ash vyas a gr*y koni-ash wan pretty drunk wh«'n lluiV horae. 1 saw one of the prisoners at btarted in the cart". I followed after the bar with William Dewse but did lis brother, lua KuANcis X Ranville. mark. Tak»n before me at West Lynne, thia 12th.Tuly, 1875. (tSigned) F. T. Buadley, J. P. The foregoing depositions abur - 'hem, and huw WiUiam DcaMw driv- ing the band ot horses. Thoy w«re driving thes« horses in the direction of Jno. K. Wright's house. The hors(^s referred to, were a brtiid hc- h)nging to Ka-qua-koni-iish. Thuy tlien drove them into J, K. Wriglit'B enclosure, near his house, 1 »aw not know him to be (Sigred) l)*'-';.) taking two horses from tiie en- ; dantly prOve that the offence firstly ~ - . ..-!■« I»«.l l.'.iT -<1 closure. One was already outside, and he had hold of the otlier, a bay stallion. While Dease hitd tlie gray horse by the halter, 1 went up to re- sist him taking them away ; l)ea«e pushed me down, and then struck me I was not hurt badly ; I got up, but made no further resistance; I was described in the substituted sec. 8, Btib-Mec. 1, whicli I Iiavc quoted was committed by William Dea^e, the yoiiager, the defendant, who, if this was doubtful, lias put the matter at rest by confessing it. That the con- victing justice had jurisdiction sum- marily to try and determine tlie then getting sober, but remember j charge, is equally well established; perfectly Dease taking tlu horses. T and no question can be raised as to saw Ka-qua-koniash push'-d away by : the defendant having been properly John K. Wright Avhile endeavorini; j and cleaily charged with the offence to recover his liorseg. I tluuglil U)efore the convicting justice, so that Wright was interested with Dease | he perfectly understood the nature from bis action. When we found we | and extent of the offence to wnich he could not recover our horses we went] pleaded guilty, and which as I have back to camp. J know of no money 1 said was abundantly proved against being ])aid. his (Signed) Na x shaw-ho. merk. 'i'aken before meat We?)t I^ynne, this 12th Julv, 187fi. (Signed) V. T. Bradley, .J.V. him by more than one credible wit- ness other thiinthe inform.er or pro- secutor. As respects the jurisdic- tion of the corivictinpr justice, and as respects tlie fact of an offence in law, having been committed, and as re- spects the proof of the commission of 11 ANVILLE. tl;iit offence by the evidence ot" such uitntiisses as the law requires, I tliink. as I have ahcady said, I may make full inquiry into all th-j cii cum- stances, from all the evidence, depo- sitions or other proofs, properly plac- ed hefore me; and to that extent 1 miiy review tlie judgment of the convicting justice ; within ihcso li- sec. 12, and 82-88 V, C. G, sec. 8, for which section 8 in the latter Act, section 1 of 87 V., C. 21, is sub- stituted. 31 V, C. 42, sec 12 reads:— " No person shall sell, barter, ex- change, or give an Indian man, wo- man or child, in Camida. any kind of spirituous liquors, in any manner or S^C ^;. iZo.:Suo;-\.;^:or cans- or procure the same to itf crfinea but as respects the be done for any purpose whatsoever ; feightt be attached to'evidence and if any person - soils, ba,i^^^^^^^^^^ kKding to the cunclusiou of fact one changes or gives away any such spir vay oAhe other, as to the actual com- ituous liquors o any Indian man uitssion of the offence, and the iden- woman, or child, as /o^^ '^"^; °^ t^v of the per«.u who committed the cans, s the sanae tob3 f o««;i^« ^^^f ^ ottVnce and the penalty to be im- on conviction thereof, bfoie anv jus- no d, (a way li courL, assuming tice of the peace, upon the evidenco ha i i within the limits prescribed of one cvedible witness other than bvlaw) 1 have no power or authority! the informer or prosecu or, be fine oy law;, X uuv". ii" f , . ,_„:„l „„i. „„„«a;i;,irr fwpntv dollars for each of inquiry or review —the law having delegated these matters without re-_ vi«w, at all events in this form ot procedure, absolutely to the convict- ing justice, with this reservation, hcnvever, t)i,it the defendant may liiivi^ a re-hearing on the question of fact, by nirtking his appeal lotliencxt sessions, or iji this Province, to the next assizes. (Wilson's case, 7 Q. B. 1010, ReEggington 2 E. & B. 717, Kxparte Dakins IG, C. B. 77, llegina vs B. W., St. Olives 8, E. & B. 529, In re Baiiv 2, E. & B. (507, Kxparte Cross 2H. & N. 854, lu Washbury Union 4 E. & B. 314. Begina vs. (irant 14, Q. B. ()3. Bogina vs. Wilson 6, Q B. 020. He Thompson 6 11. & N. ir- hx re Bailey 3, El. & B. G05.) ovf to dispose of the ques not exceeding twenty dollars for each such oflTence, one moiety to go to the informer or pmsecutor, and the the other moiety to Her Ma- jesty to form part of the fund for t!io benefit of that tribe, band or body of Indians with respect to one or more members of which the of- fence was committed ; but no such penalty shall be incurred by furnish- ing to any Indian in case of sickness any spirituous liquor, either by a medical man or under the direction of a medical man or clergyman-" And 32-33 V, C. 6, sec. 3 says :— " Any person who shall sell, bar- ter, exchange, or give to any Indian man, woman, or child, any kind of spirituous or other intoxicating li- quors, or cause or pr-^cure the same tio. ' vv Stated by counsel on the to be dona, or open and keep oi I Wah-eadv quoted the section I any land set apart or reserved ior of the Act uuder\vhich t'.o conviction , the Indians, a tavern, house or bui - WIS made Proporlv to --onsider aiid | ding, where spirituous or intoxicat- intfsriet the language ox .hat secuon itig uquur^ are ..0... --J --.t — -^ , eerence shoS.l bo had to the shall, upon conviction, m he man- Ian guagL:4^^^^^^^ V. C. 42, ner provided by section twelve ot the 12 fiiiid Acl, thirty- first Victoria, Clm»i- t«>r forty-two, bo mibjcct to tiir lino thcrt'iu nunitioiiLil ; iiinl in dot'aiilt of payment of sucL; line, or of any ii^>e iiupostid by tlic iibovt; nnutioucd twuli'tli Hi'ctiou of the said Act, any person so oftendiii;^' may be connuit- ted to prison by the Justioo of tlio Ptnice bcfovo whom the conviction shall taico place, for a period iiot:uore tiian three mouths, «r until such tine bo paid; and the coLamanJcv of any stOiiiMor or other vessel or iioid from on hoard or on board of whioh any hpirituous or other intoxicating li (|Uor shall have bccu, or may be, sold or disposed of to any Indian man womau, or child, shall be liable to a similar penalty." It is a geneml rul '.' that a convic- tion, being an eniire judgment, musi bo good throughout. If any materi- al part of a coi viction be f«nlty, tlie whole i vltiateH, (U. v. Cathcrall, 2 Str. 900.) The offence, at; well as the jurisdiction, must be shown by the conviction to be clearly wiihiu the statute creating theoffeucu, and conferring the jurisdiction j and be- ing clearly manifested in the oouvic- lim, the court will not be astute in the discovery of defects ; yet every instrume?it which is to affect a man's liberty or j.t'o[>t','i,y, out of tiie com- mon law, ou:;I f on the f ' j uf it, to show :;Utiicient aatliority for what it aims to accomplish (11 Q.B. 455.) The court can intend nothing in favor of convictions, and will intend noth- ing against them. (K. v. Hazell 13 East 141.) The rule for jurisdiction is that nothing shall be intruded to to be out of the jurisdiction of a su- perior court, but that which specially appears to be so; notliing shall be intend| Uh8 within the intention. In till) couHtructiim of ii, sttitutc, every purl oi it must ho viovvi'd in conut'ction with the whole, so as to miilvo purtrt liiirnioni'/.e if i»iaeliciil)lo, aiul jjfivo a Hcnailjle and i/^icllif^cnt ef- fect, to each. It is not to be presum- pfl that the letfisliiture intended -iny part of a st.'tute to bo without mean- in^'. Tliat which in implied iu a sta- tutt; is as much part of it as what ia expressed. It is not permituod to intcrpi-t't what hrtB no need of interpret it ion. When nil Act is expressed in clear and precise terms, wlien tiie sense is manifest and leads to uotluu-,' absurd, diere can bono rea- son not to adopt the sense which it naturally presents. To go elsewliero in search of conjocfcuros in order to restrain or extmguish it, is to elude it. Applying the foregoing rules and principles to the construction of 87 V, (J. 21, sec. 1, sub-sec. l,and read- ing that sub-sec. in connec- tion with 31 V, 0. 42, sec. 12 and 82-8B V., 0. 0, sec. 8, and look- iiig iit the redNon or motive, first, for the passing of 8i-33 V., 0. 3, in amendment and enlargement of the prior Act. and secondly, for the pass- sing of 37 v., C. 21, sec 1, sub-sec 1, still further enabling, enlarging, and extending the remedy agninst the mischief aimed at in the first Act, if otherwise I hr.(l any doubt as to the proper construction of tiie clause in question, that doubt would be entirely removed. The oLtuse mentions two clasg9s of cognate ofi'enCBS. To the first, it affixes the peuiJty of im- pri.snnjTient AND fine — to the latter, a money i^enalty only ; and it then declares that -'in default of immedi- ate payment oi such tine" — as much the lino in the one class of cases as in th<' other — ^foUowing the words of the clause it r places: "any person so fined may bo committed, i*fcc." To give any otlier meaning to the clause would, I think, render an itiiportant part of the clause nugatory, and would make the imposition of a fine upon the otfonder ohli atory upon the jus- tice, while it provided no means by which that penalty could be enforced. [ think the grainmatical construction of the ch.use is, that the money pen- alty mentioned in the clause for any oft'onco therein desci'ibed, if not im- mediately paid nniy bo enforced by imprisonment ; that all the residue of the clause, beginning with: — "and in dt^fauit of ianueiMate payment ot such fine, itc," applies equally to all the ofifcuces previ(»usly mentioned in the clause; and for myself 1 should never have hesitated ajnorneut about it, hid not a contrary meaning been strongly insisted upon by the learned counsel for the defendant. The second objection is fully an- swereil by the learned Clerk of the C"own iind Peace, by citing 32-33 V, C. 31, sees, 53, 54, 55 and 56. The third objection is that the im- prisonment in default of the pay- of the fine and costs is fixed to com- mence at the expiration of the sub- stantive period of six months' im- prisonment imposed for the same offenca ; whereas, it is contended it should have been* made to begin at the date of the conviction, and run pro tanto, concurrent with the definite and substantive period of imprison- ment. No reason for such an inter- pretation of the Statute is suggested. To give it such a construction would defeat the plain meaning of the words oT tiie Act. The reason of the thing seetas equally against such a construction. For example — sup- 14 pose the ju.-,tice were to adjudge im- I prisonmout for separiito aiid distinct pnsonment for twelve monilis, or for offences, thou-^h they may be of the IT pr a longer [»eriod, from the date of con- viction, and iniposeu fine of five hun- dred dollars, and in default of imme- same natiir,3 aai kind. There is a caHO in which tlio matter was consid- ered by Mr. Adam Wilson— the Queen diate payment of the tinp, to be im- vs. Scott, 2 U. C. L J. 823. It was prisoned for twelve months trom th< ! also considered and decided ,is re same date : it is clear the line would | soects conviotiou:j^ of Justices, that be no punishment whatever. When | cumulative sentences might be ini- aterm ofimpriscmraent, as a subsian- posed, in Kegina vs. Catbush 2 L. K., Q H. 379. In re AfcKinnon, 2U. C. L. J. 324 thnths, and to pay a lino of $100, and after the space of SIX months, and in default of the pMyment of the fine, for the fur- ther period of six niondis, unless; the nnpri tive punishment, is awarded, and tlie olfender underLfoes tha t impris- onment, the offence is then satisfied, and froui it. the offenler is released and discharged. When a penalty is imposed by a tine for an offeucn, and in default of payirent, a certain pe- riod of imprisonment, unless soonet paid is imposed, and the offend- i fine should bo sooner paid. This was "a conviction for an aggravated as- sault, where the statute, as in tlie present case, m^ide the offender, on conviction, liable to imprisonmHut, and the payment of a fine, and in de- fault of payment, imprisonment. Al- though t!ie ipieshions raised in that cas J were not decided, yat it is to be observed that neitiier counsel nor judge suggests on the argument, orin the disposition that was made of the case, that the justice had not the power to impose a cumulative sen- tence for the same identical offence. In th.e catie of Andrew Smith, reported in 1 U. C. L. J. L. C. 135, I find oho ({uestion of cumulative puhish- vneur, distinctly brought before the Judge. The application was for the discharge of tlie defandant brought U[) under a hiibcus corpus who was convictel and imprisoned under the foreign enlistment Act. One of the objections raised, was that the, pris- oner was convicted and sentenced to a subritantiv-e punishment of impris- onment and also for the same offence to pay a fine and costs, and in de- fault of payment of fine and costs, to er uiv'.ergoes the stated period of impri jonuient, that is compensa- tion, or an e(iuivalent, for the pay- ment of tli^ money, and is a full ar. 1 complete satisfaction and discliarg ' of the_ money penalty. It logically follows, where both the pen- alty of imprisonment, as a substau tive and separate punishment is sup- plemented by a money penalty for the same offence, and in default of payment, a definite j)eriod of im- prisonment in lieu thereof ^s awarded, the undergoing of the one period of imprisonment can be no aatisfiictioa, compensation or discliarge of the other per- iod ; and ' where impri oument, as a substantive punishment, is imposed, and also a fine, far the same offence, the only proper way in awarding imprisonment, in default of the payment of the fine, is to make it commence at the end of the sub- stantive imprisonment. Il is not only permissible so to do, but in truth, it can be done in no other way. I am aware of the cases in respect of separate and distinct periods of im- 16 i distinct )e of the leve is a s coiisid- .lie Queen [t was ill as re ces, thiit t be iui- li2L.R., L. J. 324 d to im- , and to after the defaiilt of • the fur- iiiles^; the This was iVated as- as in tiie lender. Oil is())ira'Mit, and iu de- iieut. Al- d in tliat it is to be uusel nor neiit, or in ,de of the . not the itive sen- al offence. . reported , I find e punish- before the Vii6 for the it brought who was under the )ne of the , the, pri«- uiteuced to of impris- .me offence iiid iu de- id cost.s!, to fi furl her period of imprisonment /;«- ijond the lirsfc montionod imprison- ment. Tke language employed in that, Act is very si i;ilar to that used in the Indian ' Act. It is slighth different, but is in all it.s essential parts relating to the matter iu ques- tion, substautially the same, llagar- ty, C. J., hold that the warrant of coiumituienb was not bad as to the nature or duration of the punishment, and that there was power t.) commit for non-payment of costs. I shall conclude what I have to say in regard to tins objectian by quoting a pas- sage, bearing direct.^' upon the point, from a very high authority, which would appear to be couciusive oj the whole <|uestiou. " It must be distinctly expressed " in th« warrant, wh>3ther the cora- " mitment bi^ for a certaui time or " only till the payment of a fiii;. The | " defendant ought to know for what '• jie i.^ in custody, and hov he nig.y " regain his Tberty. Therefore, if he " be committed for the fine, it ought ••to be till he pay the fine ; if the in- " tent he to punish him not only hij dne ." hut bi/ imprisonment, it owfht to order ''imprisonment for such a time, and ''from, thence also till he have paid the "fine." (Paley's summary convic- tit'us 330.) In the case before me, " the intent was to punish tlie de- fendant, not only by fine, but also by imprisonment:" and, therefore, he was ordered to imprisonment for six months, and from thence also till he should have paid the fine, for a period of not more than twelve motiths. The fourth objection recpiires but a few observations. It is too well settled to be ariju^d that any number of new. or corrected, or amended con- victions and warrants of commitment may not be drawn up, executed and returned by the Justice, iu respect of aiudgmenton summary conviction, provided they be truthful and honest. In this case thero appears to have been but one record of conviction. Warrant No. 1, is, no doubt defec- tive. I suppose I might, under 83 V, C. 27, sec. 2, having before me a good conviction, amend the warrant. However, warrant No. 2 was given to the gaoler before even the return day of the summons,. and be was no- tified by the justice, through tne Clerk ot the Crown and Peace, to de- tain the defendant on that warrant instead of number one. To that warrant I see no valid objection. I have already disposed of the ex- ceptions taken to the warrant ofcom- mitment. number one, which is the fiftli and last objection. I refer to II. vs. Barber, lEasc 186, Lindsay vs. Leigh 11 Q. B. 455, Massy vs. Johnson 12 East 82, (Jray vs. Cook- son IGEast 13, R. vs. Richards 5 Q. B. 926, Ghaney vs. Payne 1 Q. B. 723, Basten vs. Carew 3 B. & C. 649, R. vs. Allan 15 East 333-347, Exparte Cross 2 H. it N. 324, R. Chanev 6 Dowl 281. Re Rey- nolds i D. c^ L. 846, R. vs. Tordoft 5 Q. B. 933. R. vs. Cavauagh 1 Dowl N. S. 547 ; R. vs. King 1 D. &L. 723. R. Ts Fletcher 1 D. & L. 726. R. vs. Turk 10 Q. B. 540. Upon the whole I think, the de- fendant committed the offence charg- ed in the information, and, that l)oth the conviction and the warrant number two are good, and that my summons must be discharg- ed. Order accordingly. r JUDGMENT — IN THE- QUBBN VS. SCHULTZ^ MANDAMUS. MANDAMUS. The following judgment was on the 5th January, 1875, delivered by His Lordship Chief Justice Wood, on an application made by Mr. D. M.Wal- ker, of counsel for defendaat (Schultz) for a writ of mandamus, to issue in the perjury case of Regina vs. Schultz — Mr. Cornish appealing on the be- half of Pitou, the private prosecutor. IN THE QUEEN'S BENCH. IN CHAMBERS. Judgment of the Chief Justice in the Queen vs. Schultz. In this case the information of Mr. William John Piton, of the Parish of St. Andrew's, gentleman, dated the 4th day of De- ember, 1874, charges John Christian Schultz, of Winnipeg, Esquire, Member of the Commons of Canada for the Elec- toral District of Lisgar, with "having " on or about tne 13th day of No- " vember, 1874, at the Parish of St. " Clement's, in the County of Lis- " gar, before Mr. Justice McKeagney, " one of the Justices of the Court of " Queen's Bench for the Province of " Manitoba, sitting in and holding a " court at St. Clement's, under^^the " Manitoba A^t, 37 and 38 Vie., " Cap. 9, committed wilful and cor- " rupt perjury, by falsely, corruptly, 2 •• knowingly, wilfully and malicious- "ly sweai-ingr that John Sinclair, " William Thomas, Josoph Thomas, •' Eoderick Stephenson, John George " Kennedy, Joseph Paririien, Charles " Stephenson, Alexander Fielding. ** James 8mith, James Allvian, and "George Irving, Indians of St. Peter's " reserve and residents of the Elec- " toral Division of St. Clement's, " had refunded to the Government of " the Dominion of Canada, the annu- *' ities which had been paid to ihcm " by the said Government as such "Indians; whereas in truth, and in " fact, such Indians had not refund- " ed to the said Dominion Govern- " ment their said annuities." The prosecutor, Mr. Pi ton, and Mr. Cornish, his counsel, and the de- fendant appeared before Mr. Justice Betournay, at Winnipeg, silting and acting as stipendiary magistrate for the Province, on the 9th day of De- cember, 1874, the defendaiit having no counsel. The witnesses eubpcena- cd or in attendance at the instance of the prosecutor, were the prosecutor, Thos. Sinclair, John Sinclair, J. A. N. Provencher, and Mr. Justice McKeag- ney. Of these only three vere pre- sent at the Court of Eevisicn in St. Clements, and they only of the pro- secutor's witnesses could speak of what then transpired— the real con- troversy bdng what actually did take place on that occasion and before that court and judge, in reference to the right of the Indians mentioned to be en'ranchised. The other wit- nesses attending at the instance of the prosecutor were called to prove, what was not denied, that these In- dians had not returned their annui- ty money. They were not present at St. Clement's, and therefore knew nothmg of the occurrence before the judge at that place. There were al- so pieseut before the judge sitting, as stipendiary magistrate, attending at the instance of the deiendant, Wil- liam Peel, John Gunn, John Ktplin, and Walter E. Bown, who were, with the exception of Bown and Gunn, present atthe time the alleged offence was committed, and knew all the facts and circumstances of the case ; and Bown and Gunn were present a part of the time and could swear to certain of the facts and circumstan- ces of the case, and could give ma- terial evidence affecting the respec- tive statements under oath of Piton and Thomas Sinclair by way of ex- planation and contradiction. The judge, as stipendiary magistrate, took the evidence of Piton, John Sinclair, J. A. N. Provencher and l)artly that of Thomas Sinclair, and adjourned the furihtr hearing of ihe case till the 11th of the same Decem- ber, and at the adjourned hearing, the examination and cross-examina- tion of Thomas Sinclair were com- pleted. At the conclusion of his testimony, Mr. Cornish, counsel for the prosecution, stated that the case for the prosecution w^as closed ; and thereupon the defendant remarked : " There is the witness, Mr. Justice " McKeagney, the justice before " whom the alleged ofi'ence was com- "mitted, subpoenaed by the prosecut- " or and in attendance here ready to " be examined, but who has not been " called by the prosecution. He is " an important and material witness " in respect of the facts and circum- " stances of this charge, and I espe- " cially desire to have him called and " examined. And I have in atiend- " ance other important and macerial " witnesses who krsow the factp. and "circumstances of the case, and whom "I desire to have called and examin- " ed," or words to the foregoing ef- Ige sitting, as attenclinj,' at Diiclant, Wil- roLn Ktplin, lo were, with aud Gunu, leged offence new all the of the case ; re present a Id swear to circnmstan- Id give ma- tlie re spec - th of Piton way of ex- ition. The magistrate, !*iton, John encher and inclair, and ring of ihe iHie Dfcccm- jd hearing, s3-examina- were com- sion of his counsel for int the case !losed ; and remnrked : Mr. Justice ice before ie was com- le prosecut- re ready to as not been n. He is rial witness nd circum- und I espe- 1 celled and ! in ati end- id material k fopfe oyi/1 , and whom tid examin- regoing ef- fect ; to which the stipendiary ma- gistrate rephed, " I am sorry, but I " have no power to call and examine " the witness (referring to Mr. Jus- ♦' tice McKeagney) inasmuch as the "prosecutor has not seen fit to call "him, and I have no power to exam- " ine witnesses for the defence," or words to that effect. The Justice then asked the defendant if he wish- ed to make any statement, caution- ing him &s required by the statute in that behalf, and thereupon the defendant made the following state- ment : " I state fi!>'t that I took no " oath at St. Clement's Electoral " Court. That I am in a position " here to-day to prove i>n the evi- " dence of the judge of that court, " that I took no oath at the last "Electoral Court of St. Clement's. " That I am in a })ositlon to-day to " support his testimony to that effect " by four other competent witness- " es. I am able to pi-'ive also by the "judge of that court that no oath " was administered to me by the "judge of that court, because no ob- •' jection bad been made to those vot- •' ers being put on the list." Notwithstanding the statement, the justice still refused to hear any further evidence as to the facts and circumstances of the case, thinking he had no power to do so, as the pro- secutor declined to call or did not call any further witnesses; and he also refused to exercise, or, as appears from the affidavit of the defendant and papers did fiot exercise any discre- tion as to whether or not it would conduce to, or frustrate or embarrass the ends of justice to permit to be calU'd and examined on behalf of the defendant those pvesons then ready in court to give evidence of the facts and circumstances of the case, aud in explanation and in contradiction of the statements respectively made by Piton and Thomas Sinclair, the two only material witnesses for the prosecution, on the ground that he had no authority or power to exercise such discretion; and thereupon the justice made an order, holding the defend- ant to hail to take his trial on the charge at the next sitting of the Court of Queen's Bench, sitting as a court of Oyer and Terminer and general gaol delivery and of Assize and Nisi Prius, at Winnipeg. The defendant seeks in this appli- cation to set asi.ie the order of the stipendiary magistrate, and asks for a writ of mandamus, commanding the magistrate to hear the witnesses produced before him, who know the facts and circumstances of the case, wJi ether the testimony of such wit- nesses tend to establish the guilt or innocence of the defendant, and also commanding the magistrate to exer- ercise his discretion as to whether or not it would tend to the discovery of truth and the advancement of public justice to hear witnesses produced expressly as ivitnesses for the defendant to explain, or contradict, or displace the evidence given in support of the charge. Thj determinntion of the question raised by this application involves to so large an extent the rights and liberty of the subject, and the welfare of so- ciety in general, deeply interested as it is in the proper and thorough ad- ministration of public justice, that I must be pardoned for a somewhat exhaustive examination of the whole subject. The office of the Justice of the Peace dates back to an early period in the liisf.nrvnf nnr invinnvnrlpnpo Sir Henry Spelman says it was creat- ed by Edward the Third, A.D., 1327. It appears, however, on good author- .j' ity, that, prior to the time of Edward tlie Third, the presorvfttion of the peace, was, hy the common law, en- trusted to certain officers under the technical appellation of ciistodes or coHHPrvutorcH pads ; of whom some had this power by virtue of their of- fice, a-,' the Lord Chancellor, and other judges nnd great officers of State; and the judges of the superi- or courts are still justices, conserva- tors of the peace within the jurisdic- tion of their courts. Others were such by prescription-but the more nu merous were those who were chosen by the freeholders in full County Court before the Sheriff fvom. pruhior- ibus potentionbus comitatus sid in cus- todes pads, in the same manner as thos*^ ancient common law officers, the coroners, are elected in England at the present day. The class of persons who were formerly m 'itled to act !is conservators of the ^ace virtute officii, for tlie i:aost part still remain so ; but the others have been superseded by the more modern offi- cers denominated ^^ justices <>f the jwace.'" Whatever may have been the pe- riod of the ori:,anal institution, the lirst statutory provision to be found relating to this office was made in the first year of the reign of Ed- ward the Third ; when it was or dained that justices of the peace should be assigned by the King's commission; and their powers which at first were very limited were gradu- ally extomled in succeeding reigns of succeeding Sovereigns as the neces- sities of the times and the great util- ity of the office proinpted ; and so numerous and important were the duties imposed upon th 3m, as early as the time of Blackstone, we hear that learned comineni;ator lamenting that few care to undertake, and few- er understood the duties of the office; and he adds— "They were of such " vast importance to the public as to " make the country greatly obliged " to any worthy magistrate who " without sinister views of his own " would engage in the troublesome " service." Since the time of Blackstone the powers and duties of this office have been extensively en- larged and greatly increased, the proper execution and discharge of which require talent, training and matured habits of business, with at least ^ general knowledge of the com- mon and statutory law of the land. It may not be amiss here to pre- mise that in,all the varied and almost infinite duties of justices of the peace their autiiority is either ministerial or judicial. They ure said to act minis- terially in caseS of felony or misde- moftnor, in which they merely initi- ate the proceedings upon prosecu- tions, by receiving or takmg an infor- mation of the offence, and by war- rant or pummons, bringing the offen- der before them, and in his presence taking the depositions of Uie witness- es who know the facts and circum- stances of the case, and committing or hohiing to bail for trial, or alto- gether discharging the accused ; and m some other c ises of minor impor- tance, when specific acts are posi- tively directed to be done by statute — altiiough it must be admitted that in the class oi cases first mentioned ! the duty imposed is both ministerial and judicial : ministerial in the re- ceiving of the informations and the taking of the depositions aii I tliu ex - amination of tiie accnsed, hnt judicial in determining whether or n -t the evidence given, as well that for as against the accused, viewed altogeth- er, raise such a probable and reason- able presumption of guilt as should f the office; re of such lublic as to t!y obliged irate who )f his own oublesome time of i duties of isiveiy en- ased, the scharge of lining and 3, with at if the corn- he land, ■e to pre- nd almost the peace mteriid or act tnitUs- 3V misde- rely iuiti- prosecu- g an infor- by war- the offen- 5 presence 10 wituess- d circum- ommitting , or alto- ased ; and lor impor- are posi- by statute uitted that mentioned minister ltd in the re- 3 and the 1 1 thb ex - ^\xt judicial )v n )t the liat for as d altogeth- ud i-easoii- as should put the party upon liis trial, or so completely establish his innocence as to justify his discharge. Justices act judicially in all matters in which they have summary jurisdiction ; and at the present day justices have been given summary jurisdiction over an almost endless variety of cases, par- taking some of a criminal and some of a civil nature, and others partly criminal and partly civil. In all these, the justice not only takes the evidence, but he is made the judge both of the law and the fact, and passes judgment — that is, he makes « conviction or order, and in so far as he is concerned, finally disposes of the case. In the exercise of the authority conferred upon these Justices of the Peace, tliey in many cases act gra- tuitously and devote much time in the administration of many branches of the law, and among others, in most of the initiatory, and in some of the maturer stages of our criminal jurisprudence, confer incalculable benefits upon society and deserve the cordial support of the whole com- munity. Peace and good order among the people and security and protection of life and property large- ly depend upon the magistracy of the' country. They are often called upon to act in matters of considerable difficulty and great delicacy, where prominent and influential persons are concerned ; and if they do not so conduct the proceedings, or s© adjudi- cate as on a full, deliberate, and ma- ture consideration of all the facts and circumstances may turn out to be strictly correct, yet, if they act hon- estly, although in error or mistake, the 1.. „. aU^ 1 aj' s una. aHw T V.,x iiUpC will, protect them. In such a case, either to censure or punish those to whom the country owes so much, and who, gratuitously, are honestly en- deavoring faithfully to discharge a public trust, may be congenial to the despotic rule of an enslaved people, but is wholly abhorrent from the jurisprudence of England. My pre- sent purpose is not to review the re- sponsible position occupied by the magistracy of the present day in the administration of the laws and the multiplied duties devolved upon that office by Parliament, through nuraer- ouj legislative enactments, extend- ing over a period of upwards of three hundred years, however interesting such a discussion might be. In determining the question in- volved in this application, I shall confine myself to the consideration of the duty of Justices of the Peace re- lative to the preliminary investiga- tions before them of persons charged with or suspected of misdemeanors or felonies. It may be remarked as one of the axioms of our law, that no one can be deprived of his liberty without due process of law. As a rule, ad mitting of but few exceptions, before any one can be arrested, or even sum- moaed on a criminal or ^itost crimin- al charge, there must be a formal in- formation taken under oath by a justice of the peace, or an indictment found by the Grand Jury on sworn testimony in the first instance and without the intervention of the usual preliminary proceedings before a Justice of the Peace. As the personal liberty of every individual of the community is subject to the rame rule of law, and as nearly all crimin- al charges have their initiation with Justices of the Peace, who, on exam- Iviqfirt,-! nf i\\a 'aT\\,r\oaaaa -nrhn nn.n speak of the facts and circumstances of the oifence, are empowered to com- mit to gaol or to admit to bail for A^r* 6 ^'r trial, it is of the very greatest im- portance clearly to uiulerstand and Jaiow wlmt, i.u this respect, is the coui'de and duty of the Justice, and what are the rights aud privilogej of the accused. At oue time, aud for many years, persons charged with feloiiics were not |)ermitted, tven on their final trial, CO produce and have examined; witnesses undor oath on their be- half. This was* an ancient and com- monly received practice, derived f>'om tlie civil law, and which to this day obtains in France and many of the continental nations of Europe, The first inroad on this practice was made by Qut^en Mary the First. When she appointed Sn- William Morgan Chief Justice of the Common Pleas, she enjoined him, " That notwiths^and- *' ing the old< error which did not ad- " mit any witness to speak, or any " other raattei' to be heard in favor " of the adversary. Her Majesty be- ting party; Her Highness's plea- "sure was tUat whatsoever could be " brought m f>ivor of the subject " should be admitted to be heard ; '•and, moreover, that the Justices " should not persuade themselves to " sit in judgment otherwise for Her "Highness than for her subjects. " Afterwards, iii one particular in- stance (when embezzling the Queen's military stores ^vas made felony by Statute, 81 Eliz. c. 4) it was provid- ed that any person impeached for such felony, " Should be received and admitted " to make any lawful proof that he " couid, by lawful witness or other- " wise, for his dischanje or defence. :" and at length the courts grew so heartily ashamed of a doctrino so.un- reasonable and oppressive that a practice was gradually introduced of generally, in all cases of felony, examming witnesses for the prison- er, but not under oath ; the conse- quence of which still wac that the jury gave less credit to the prisoner's evidence than to that pro luced by the Crown. Sir Edward Coke pro- tested very strongly against the ty- rannical practice, and declared that — " he had never read in any act of " Parliument, book-ease, or record, " that in criminal cases the party ac- " cused should not have witnesses " sworn for him ; and there was not " so much as scintLlIu juris against " it." And yu' William Blackstone ob- serves — " The House of Commons " were so sensible of this absardit} " that, in the bill for abolishing hos- " tilities between England aud Scot- •' land (Statute 4, Jac. 1, c. 1) when " felonies committed by English- " men in Scotland were ordered to •' be tried in one of the three north- •' ern counties, they insisted on a " clause, and carried it against the •' efforts both of the Crown and the " House of Lords, against the prac- "tice of the courts in England and •'the express law of Scotland, 'that "in all such trials for the discovery "of truth and the better information "of the consciences of the jury and "the ju'^ticQs, there shall be allowed "to the party arraigned the benefit "of such credible witnesses to be ex- "amiued upon oath as can be pro- "duced for his clearing and jnstifica- "tion." Subsequently (Statute 7 Wm. 3, c. 8) the same n^ asure of Justice was established throughout the realm, in cases of treason, and it was after- wards declared and enacted (1 Ann. ot. 2, c. 9, see. 3) — " that from and after the 12th day of February " 1702, all and every persou and "persons who shall he produced o- ■■})• ■ fi r the prison- i ; the conse- wac that the the prisoner's pnrhiced by rd Coke pro- jiiiuHt tUe ty- deolared that I in any act of e, or record, ^ the party ac- ive witnesses * there was not ^.> juris against ii ackstone ob- of Commons liis absurdity bolishing hos- .nd and Scot- 1, c. 1) when by Enghsh- re ordered to three north - insisted on a ; agamst the owu and the list the prac- Englaud and jotland, 'that ;he discovery • information ;he jury and 11 be allowed the benefit ses to be ex- can be pro- and jnstifica- 3 7 Wm. 3, c. ■ Justice was the realm, in t was after- !ted (1 Ann. tiat irojn and of February persoa and 3 produced O" H ''appear as a witness or witnosftes on ♦' behalf of tha prisoner upon any trial "for treason or felony, before ho or • she be admitted to dispoBO or give " any manner of evidence, nhall " take an oath to dopo«e the truth and "nothing but the truth, in such man- " neras the witnesses of the Queen are "bylaw obliged to do ; and if convicted " of any wilful perjury in such evi- " deuce, shall suffer all the punish- " luents, penalties, forfeitures and " disabilities which by any of the " laws and statutes of this realm are " and may be infiivted upon perbons " guilty of wilful perjury." From the passing of this Act to the present time, it ha-i been the practice in England, on trials of all 'elonies, to give the same facilities to the admission of the evidence on oith for the prisoner as those against him; and fronl an examination of the re- )»orted cases and the uniform author- ity of all text wiiters on the subject, the same course has been pursued by the most learned and the most ex- perienced justices of the peace in the initiatioiy and pudiminary inquiry into all felonies. On trials foi- misdemeanors it has always been the practice to permit the defendant to produce and examine any and all witnesses under oath ; and in these cases the practice of per- mitting the defendant to examine his witnesses under oath on the preU- minary investigation, seems to bo sanctioned both by reason and au- thority. It may not be inappropriate to re- mark that the prison<'r in all cases has, and at all times had, a right to address the jury in his defence. In iiiirfdemeauors the d'^feridant always was, and still is, allowed to do this by counsel. In high treason the prisoner was first allowed lo defend himsolf by counsel, by statute (7 and 8, W. 3, c. 8. sec. 1) and afterwards (0 and 7, VV. 4. c. 114, sec. 1) it was provided and enacted that--" all per- " sons tried for felonies shall be ad- '* raitied after the close of the case " for the proisecution to make full an- " Bwor and defence thereto by counsel " learned in the law. or by attorney •' in courts where attoruies practice -< as counsel. If, however, the prisoner or the de- fendant wishes to address the jury. himself, and to examine and cross- examine witnesses, ho will, of course, be allowed to do so, and liis counsel will in such a case, if ie^ired, be al- io wd to argue points of law that may aribe in the course of the trial, and to suggest questions to him for the exannnation and cro^s-examination of witnesses. But lie cannot of right have counsel to examine and cross- examine witnesses and reserve to himself the address to the jury: al- though in most cases at the present day, if speeially asked for, the judge would permit it. It has therefore only been since 1836 that pe>sou ; charged with felonies, at every stage of tho proceedings against them, have had the right to appear and make full defence by counsel learned in the law — a fact which is strangely incongruous with that humanity, equity and fair play, which are the distinguishing characteristics of Eng- lish jurisprudence from an early period in the history of our country. Without adverting to any of tha older statutes, I will refer to 7, George 4. c. 64, passed in 1826, and which contains substantially the pro- visions of the Imperial Act, 11 and 12 V. c. 42. passed in 1848, and the Canadian Act 82 and 83 V.,o. 30, passed in 1369— intituled— "^w Act "reipectiny the duties oj jmtices of the 8 **pface out of aesaiom in relation to '^persons charged with indictable of- *i/'e7ices," which in substantially a copy of til latter statutes. Tho on- ly portion necessary to refer in thiM connection are sec. 1, 2 and 8, c. 04, 7 George 4, sec. 17 and 26. o. 42; Imperial Act, 11 and 12 V. and th« corresponding sections in the Cana- dian Act, 29 and 56, c. 30, 82 and 83 V. which tlie latter sections in so far as they relate to the pre- liminary investigation in charges of iudictrtble ofleuces, are exact copies of the Imperial Act, sec. 17 and 26, c. 42, 11 and 12 V.iu so far as iliese Litter sections relate to the same subject. Sec. 1, c. 64, 7 George 4, provides, "That where any person shaL be "taken on a charge of felony or su . "picion of felony before one or more "Justices of the Peace, and the char- " ges shall be supported by positive " and credible evidence of the facts, " or by such evidence as, if not ex- ^^ plained o' contradicted, »\i».)\, in " the opinion of the Justice or Jus- " tices, raise a strong presumption " of guilt of the person charged, " such person shall be committed to " prison by sucli Justice or Justices in " the manner hereinafter mentioned; " but if there shall be only one Jus- " tice present, and ihe whole evidence " given before him shall be such as " neither to raise a strong presum- " tion of guilt, nor t j warrant the dis- " missal of the charge, such Justice " shall order the person charged to he " detained in custody until he or she " shall be taken before two Justices " at the least: and where any person " so taken or any person in tho first " instance taken before, two Justices " of the Peace shall be charged with " felony or suspicion of felony, and " the evidence given in support of " the charge shall, in their opinion, " not be nnch as to raise a strong " presumption of the guilt of " the person charged, and to " require his or her committal, or " »uch evidtmce shall ht* adduced 9n be- " half of the person charged as shall, " in their opinion, weaken the pre- " sumption of his or her guilt, but " notwithstanding, appear to them, " in either of such cases, to be suffl- " cient ground for judicial inquiry " into his or her guilt, the person " charged shall be admitted to bail " by two such Justices in the man- " ner hereinafter mentioned ; pro- " vided always that nothing herein " contained shall be construed to re- " quire such Justice or Justices to " hear evidence on behalf of any •* person so charged as aforesaid, un- " less it shall appear to him or to " them to be meet and conducive to " the ends of justice to hear the " same." Section 2 provides that before any person charged with felony shall be bailed or committed, the Justices shall take down in writing the depo- sitions of the witnesses who shall know the facts and circumstances of the case, and bind them to appear at the trial, anl deliver the same to the proper of- ficer of the court. Section 3 makes the same provi- sions with regard to misdemeanors as are made in respect of felonies. Sections 2» and 56 of the Cana- dian Act of 1869, and those parts of the Imperial statute of 1848 re- lating to the matter in question are as follows: — "In all cases when any person ap- " pears or is brought before any " Justice or Justices of the Peace " charged with any indictable of- " fence, whether committed in Can- " ada or upon the high seas, or on «i Sll ()!• ch liiu) • ' ! lie '• trial ii i* «( 9 iir opinion, )e a strong guilt of and to amittal, or laced »n hi- d aH shall, n the pre- guilt, but • to them, to be suffl- al inquiry ihe person ted to bail the man- ned ; pro- ing herein rued to re- Justiees to If of any resaid, un- him or to nducive to hear the before any y shall be 3 Justices f the depo- shdll know ]f the case, t the trial, proper of- fline provi- aeanors as aies. the Cana- lose parts f 1848 re. estion are person ap- efore any the Peace ictable of- d in Can- leas, or on u •• jutul bo.youd the soa, or whether icli porhon iippoars voluntarily «* (.11 suuiiuoua or has been appre- " li"iuloil with or without warrant, «' or is ill custody for the same or •• luiy other oflcnoc, such Justice or •' .hrsticos, bufore lie or they '^..m- • the evidence given is such as to " raise a strong presumption of guilt, " then the Justice or Juslicos shall " by his or their warrant commit " him." i: -M * * * Under 7 (ilcorge 4,c. 64, there can •• init such accused pt-rson to pr. .on ' be no question that Justices of the •• for triiil, or before ho or they ad- ' Pe-ce wer*^" by law reijiiircd to take tlio depOK ii..ms oi those who kiwir the 'ts an I ^irciimstanccn of the cane, V, ..ether their evidence tended to tlie guilt or .i roconce of the party ac cubed, by whomsoever product^d, and also the depositions of witnosses ex- init him to bail, shall in the pre •' souco of the licensed person (wnj •' : hull bo at liberty to put questions •• to any witness produced against •« liiin) take the statement (M) :;// " ()(///( or ajfumation of fhmr who hunv •• ilic. Jdctn and ouritiiistanci's of the \ pressly called by and on behalf of tlio accused party to ?.i7'/vowjht forward atjainsl him. And '* though formerly his witnesses " could not bo examined on oath, •' they are now placed on a footing " with those whom the prosecutor •• adduces." And at page 69 it is stated that — " iii modern practice, thoutjh exculjui- " tory ecidence is received at the in- " stance of the jnisoner and certified " wifh the other dcp sitions, unless it " appear in the clearest manner, " that the cliarge is malicious as well " as groundlesK, it is not usual for the " magistrate to discharge him even " when he believes him to be alto- " gether innocent." But ti) justify such a course under such circumstances there must be an express chart/e of the offence atjainst the accused, directly sworn to Iiy at least one credible witness. I will refer to one other authority, recognized as of the very greatest weight on all mat- ters relating to the practice of Jus- tices of the Peace. Burn's Jastice, 25th Loudon edition, published in 1830, vol. 1, page 998, in comment- ing on 7 George 4, cap. 64, declares that it WHC the duty of the Justice to take down in writing and certify, as well the evidence wliich might tend to /establish the innocence as the yuilt of the party accused : and Dalt. o. 1G5 and Lambe's case, 2 Leech 562 are cited as correctly laying down the law and practice governing Jus- tict'B in these preliminary ijiquiries, I do not say there may not be some authorities the other wpy ; but if ao, I have been unable to find them. All the great writers on the criminal law of England are unanimous in hold- ing that at the passing, and during the continuance, of 7 George 4, cap. 64, that is from 1826 to 1848, the law and pi'actice of Justices was to take down in writing and certify the depositions, not only of all those wit- nesses '-•(10 knew the facts and cir- cunistaixv-es of the case bv whomso- ever produced, but also of all those witnesses who wera called and pro- duced expressly as witnesses for the accused party, if any such were of- fered, to contradict the testimony of the first mentioned vatnesses, or to pruvo other and independent facts and circumstances, which, if true, would displace the case made for the Crown. I will now proceed to examine the authorities as to the law and prac- tice of Justices under 11 and 12 Vic, chap. 42, sees. 17 and 25, which came into operation on the second day of October, 1848, and having ascertain- ed what they have been held to be under this Act, it will follow that such is the law and such should be the practice under the Canadian sta- tute, .82 and 83 Vic, cap. 30, sees. 29 and 56. In tiic iOurteentii Lonuon and sev- enth American edition of Archbold's criminal procedure, jdeading and evi- dence, in indictable cases, published in I860, under tho head of " Tho Ex- amination and Coiumihraent,'' . index* the Imperial Act 11 and 12 Vic, cap. 42, I find amongst others the folluwing notes on the text : — " If the party accused decline to " make any dufeuce the raagiHtrT,te •* proceed to commit him." " After the examination of the " prisoner is completed his witnesses, " if he have any, must he sworn and " and examifunl ; and he may have " the assistance of counsel in such " examination." " The magistrate is not to take " meiely the testimony adduced in " support of the charge, but he ought " also to return the evidence which " tends in favor of the prisoner." "When the magistrate is satistied " upon the exiimination and on a •' consideration of all tho evidence " uii both sidcfi that the accused is " guilty of the otfenco charged, or " that there is probable cause of sus- " picion against him, it is his duty to '' commit him th;»t he may answer " the charge at the pro|)er court ; " unless in a bailable case, suflicient '• l)ail b(! given." " To authorize a commitment, the •' same i)roof is not required which " would be necessary t ) convict a •' person on the trial in chief, but tho " committing magistrate will require " that probable cause be shown. " Probable cause is a case made out " by proof, furnishing good reason " to believe that the crime alleged •' has been committed by the person " charged. When such cause is " shown it can be removed only by " its appearing that no such crime " has been committed, or that the " suspicion entertained is wholly " groundless." " Upon this examination or pri- " mary healing the niMgistrate is re- I" quired to act judicially in the exer- I " cise of his understanding and judg- I " mcnt, with a proper consideration " of all the evidence adduced in such " examination and of tho law relative " to the case. To the extent of form " ing a judgment on the inquiry the " magistrate is the judge of the law " anJ the facts." The same doctrine is laid down in the treatise of jliis learned author, published in 185B. In the tenth English and fourtli American edition of Phillips on evi- dence, published in 1859, under the title of "Admissibility of depositions in Criminal Cases," it is laid down that : " It is the duty of the Justices to " return the d'^positions of any wit- " nesses who may have been exani- " iiied though not bound over to pro- " secute. There appears to be some " doubt whether it is the duty of the " Justices to return tiie depositions " of witnesses who may have been " called on the part of the accused ; " or whether in fact they have power " to do so. The langunge of 7 George " IV, cap. G4, wliich gave power of " bailing prisoners obviously contem- " plated that the evidence on the part •' of tho prosecution might be ex- " plained or contradicted by evidence " on behalf of tiio accused ; although " the Justict!S are not required to " hear evidence on behalf of tho ac- " cnsed unless they shall consider it " 'meet and conducive to the ends of " justice to hoar the same.' The cor- " respouding section of the 11 and 12 " Vic, cap. 42, is entirely silent in " respect to evidence before the Jus- " tice on behalf of the accused." '• It will be observed that nothing " is said in 7 George 4 about return- •• ing the depositions of the witnesses " who may have been examined for 13 " the accused , but it seems to have " botju considered that it would be " highly expedient if not tho duty of " the magistrate to do so. (lie Ful- •' ler 7 C. & P. 269, 2 Russ., Cr. & " M.. by G reaver: ^no)." " This opiaion has been enforced " since the passing of 11 and 12 " Vic, cap. 42, by Lord Denman, " C. J., who in his charge to the " grand jury at the Taunton Spring " Assizes, 1849, observed that he " would recommend in all cases in " which a party charged with felony "(the reason would apply with great- " er force to a misdemeanor) had " his witnesses, and those witnesses '• were in attendance at the time of the " examination before the inagistrate, " that he should hear the evidence " of such witnesses as the accused on " b^ing askod wished to bi- exauiined " in his defeace ; suggesting that, " if the witnossds for the accused " should explain the facts that were " proved against him, so as to re- '• movj all suspicions of guilt, and " were believed, they would actually " have made out a defence on behalf " of the accused, and there would be " no necessity for any further pro- " ceedings ; but if the witnesses so- ' ' called only contradicted those for the " pvosecjution in material points, " then the case would be properly " sent to a jury to ascertain t.'ie *' truth of the statements of each " tUe witnessea for the prosecution, " although such a course is not re- " quired by the t-tatute. It has the " appearance of harshness to reject " witnesses who are present and " ready to be examined for the ac- " cused : it is in some respects also " for the interests of justice that " their depositions should be re- " turned ; for it is of some conso- " quence that the judge at the trial " should see whether the witnesses " are consistent in their statements, " with the view to prevent a defence " being set up at the trial, entirely " different, porhaps, from what may "have been relied upon before thomag- " istrate ; and also to give those who " have the chrirge of the prosecutioli •' an opportunity of inquiring into " the credit of the witnesses fpr Uie " defance, and into the truth of tlieir " evidence." The h^irned author then discusses tlie admissibility on the trial of the prisoner of the depositions of the witnesses for the prisoner, taken and returned in due form of law, in the event of the death or permanent dis- abilitv of such witnesses, and con- */ 7 eludes that it is doubtful if they would be admitted in evidence. This doubt is, iiowever, now removed in England by 30 and 31 Vic, cap. 35, which places tlio witnesses for the accused in all respects on the same footing as the witnesses for the pro- " party ; and that the depositions of i secution " the witness being taken and signed " by them, should be transmitted to •' the judge together with the depo- " sitions in support of the charge." " It seems, therefore, to be the better " ojiiniou, that witnos.sos for the ac- " accused, present before the magis- '" tr.ilf, should be heard if he wishes " it ; and that their depositions " should be returned with those of Stone's Petty Sessions, seventh edition, published in 1803, four years after the edition of "Pliihps on Evi- dence," from which I have made the foregoing citations, puts the matter in a much clearer light, '-he learned editors having had the advantage of consulting the decisions and ob.serv- ing the practice under the Act for four years after the publication of 11 the latter work. At page 258 it is stated : — " If the prisoner bo desirous of " calling witij esses for his defence at " this stage of the proceedings, (that " is after having been cautioned and " aftt-r ho has made his statement, " the magistrate that it is not suffi- " cient to put such accused party on " his trial, in which case he ought to " be disclinrged; or the evidence ad- " duced on bishaif of thu party charg- " ed may, in tlie opinion of the mn- " gistrafe, weaken the presumption " and the same has been taken down i " of the party's guilt, but the evi- " and siunied as required bv the Act) ■ " denco may, noiwitlistandnig, bo ■■-'••■ ^ . . -1 • ; 1 : <. si^itHcient to puL the accused party on his trial, in which case the ma " which it is imprudent for liim to do " uidess he has strong grounds for | " "believing that he can satisfy the | " " Justices of his innocence, and tlius '• procure his discharge, or at all '• events an admission to bail, he is " at liberty to call as many witnesses " as he pleases, atid they must be " sworn and examined, and their de- " positions tak^ u down in writing in " tlie same manner as those for the " prosecution ; iuinl the prosocutor " may cross-examine such witnesses " respectively, as soon as their evi- " donee in chief is linisliod. But whatever doubts existed on this subject would seem to be en- tirely rpnioved by the following ob- servations in the last English edi- tion of "Russell on Crimes," pub- hshed in 1865 :— " It is highly expedient in the fur- " therance of the ends of justice, *• that whenever i)risoners offer to " produce witnesses before the ma- " gistrate in answer to the charge " made against them, such wit- " nes'^es should be regularly examin- " (m1 on oath and their statements " taken down in writing, and rcturu- " od with the depositions. Whether " the evidence so adduced be true or " false, it is very important that it " should be received and taken down. " If it be true, it may be so clear, " positive, and distinct, as to explain '• or coniradlet tlie evidence adduced " in support of the charge, in such a " manner as to complotdy satisfy gistrate may admit the prisoner to ' bail. And even if the evidence so ■ addu«ied should not produce either ■ of these results, still it is impor- ' tant, for the sake of the prisoner, ' that the witnesses should be exam- ' inQ(\ and their depositions return- ' ed, as he is thereby freed from the ' suggestion often made at the trial, ' that the case endeavored to bo ' proven before the jury has been ' concocted since the examination ' before the magistrate ; and if, as ' has been suggested, the deposition ■'of a witness, examined on behalf " of a prisoner before the magistrate, " would be admissible in evidence " for the prisoner on his trial, in case " of tlio death of such witness, it is " but reasonable tliat the prisoner " should have the depositions of his " witnesses taken in order to be used " in case of such an event. On the " other hand, if the evidence adduced " be false, it is essential for the ends " of justice that it should be " heard and taken down, in order " that the prosecutor may have the " means before the trial of investi- " gating the facts deposed to, and " the opportunity of testing the state- " ments of the witnesses by compar- " ing those made on the trial with " those made be-fore tlie magistrate ; " and, moreover, the taking the de- (( as a chock po .itioiis would serve " upo.i th.! prisoner against setting 15 not suffi- l party on e ought to idenoe ad- i-ty chiirg- of the niH- Gsumption .t the evi- nding, be ised party se the ma- prisoner to ividence so luce either is impor- 5 prifionor, 1 be exam- Dns return- d from the it the trial, )red to bo J hiis been xamination and if, as deposition [ on behalf uiagistrnto, in evidence I'ial, in case tiiess, it is he prisoner tions of his r to be used it. On the uce adduced for the ends should be rn, in order ay have the 1 of investi- )S0(l to, and nii; the state- by compar- trial with magistrate ; ing the de- Rs a chock ainst setting " up a differ jut doFence on the trial, " and upon the witne^ises against ira- •' proving their tale between the time " of their examination before the '• magistrate and tbe trial." (3 Rus- sell on Crimos — last English edition, page 490 — se ' cases there cited and notes of the editor.) From what iias already been said, it would appear both from reason and authority, that, as the law and practic' stood under the Imperial Act 11 and 12 Viet., c. 42, and as it now stands under the Canadian Act, 32 and 33 V., c. 30, it is not only the duty of the Justice to hear those wit- iiesses who know the facts and circum- stances of the case, whether brought befor; him by the prosecutor, or at his own instance, or that of some one else, which he is iniperativcly re- quired to do by the positive direction of the statute, but it is also equally his dixty to examine those witnesses pro.iucod before him expres-), 1j:ifora such Justice " shall com ait or hold to bail for " trial such accused person, he shall " immediately after obeying the di- " rections of 11 and 12 V., c. 42, " sec. 18, demand and require of the " accused person whether he desires " to call any witness; and if the ac- '• cused person shall, in answer to " such demand, call or desir ) to call "»any witness or witnesses, such Jus- '• tice, in the presence of the accused *' person, shall take the statement on " oath, both examination and cross- '' examination, of those who shall be " so called as witnesses by such ac- " cused person, and who shall know " anything relating to the facts and " circumstances of the case, or any- " thing tending to prove tne inuo- %\ 10 " ceuoe of such accused person, and " shall put tlio same into writing, '« ;uid each dopoHiiiou of such wit- " nesscs shall bo read over to i.nd ' signed respectively by the witnesses " who shall have bodu so examined, " and shall be signed also by the J us- " tico taking' the sanin, and transmit- " ted in diio course of law with the " deposition.^ ; and such witnesses, " not being witnesses merely to the " character of the accused, as shall in " the opinion of the Justice ive cvi- " deuce in any way material to the " case, or tending to prove the inno- " ceuceof the accused person, shall " be bor.nd by recognizance to ap- «« pear and give evidence at the said " trif'l ; and afterwards, upon the " trial of such uccu-sed person, all " the laws now in force relating to " the depositions of witnesses fortbt " prosecution shall extend and be ap- " plicable to the depositions of wit- " nes.-es thereby directed to be " taken." Section four provides that— "All " the provisions of 11 and 12 V., c. " 42, relidng to the summoning and " enforcing the attendance and com- " mittal of witnesses and binding " them by recognizance and com- " mittal in' (.lefault, and for giving the " accused person copies of tlie exam- " inatious, and giving jurisdiction to " certain persons to act alone, shall «' be read and shall have operation " as part of this Act." r,y observing the to-rras of the pre amble and the words of the (Uiacting clauses, it vnay fairly bo gathered tliat these sections are declaratory of what the law and practice then was, and make provision for fullv giving effect to that law and practice, by compel positions the same effect, and to the justice tb" same power and authority "over hh witnesses, as had been given to him bv thi; prior Act in respect of the depositions and witnesses for the Crown. I may state a few general rules by which a justice siiould b« guided in the preliminary investigation of an indictable offence, whnr« the aecused do«s not consent to be tried sum- marily : 1. At the opening of the examina- tion he need never ask the person charged whether " he is nuUtij or not (jiiiltif ;" but he should read over to ihiin'the information and exnlainto ! him the nature of the charge, and in- i form him that at the' conclusion of ■ the ovidence-in-chief of each witness, he will be at liberty to ask the wit- ness any questions he like^ ; and he should than proceed to the examina- tion of all those who know the facts and circum-^tances of the case, and take down the sworn statement of each witness in the first person in the very w^ords, as nearly as possi- ble, of the witness ; but continingthe witness to the rules of evidence, as I on a trial, while permitting him to I make his own statement in his own way ; for the proceeding is not a tnai but an inqnirii : and after the witness has made his full and free sti^.tement, and after the justice has asked and taken the answer down of every ques- tion which he thinks can have any possible bearing upon the case, he should read over the deposition to the witness, directing the accused to pay particular attention to it, and telling the witness to observe it care- ' lully, and as he is reading it to st-jp him and raalve any corrections he de- lin" the attondiuico of witnesses for i sues. th e accuse d both before the justice , tecion'; it the trial, and by giving to the do- j tut! accu After this is done, and all cor- mado, the justice should t.>ll w(\ that he is at liberty to 17 1(1 to the lutliority eu giveu eapect of IS for the rules by uidecl iu )n of an 3 aecused ied sum- examina- le person iltij or not 1 over to Kplain to 3, and in- clusion of li witness, k the wit- ; ; and he examina- tho facts case, and omeut of person in as possi- 1 lining the idence, as ig him to 1 his own not a trlitl ,he witaoss sti'.temnnt, asked and 3very ques- L have any le case, he position to accused lo to it, and irve it care- tr it to stop tions he de- and all cor- i should tt'll It, libortv to pat to the witness any questiftus he likos, and that the answers of the wit- ness will be t;ikon dowa — and the jus- tice should !iid and assist the accused in |)uttin<^his (luestions, Wheii the cross-examination is closed, it should bo read over and corrected, if neces- sary, and when all is finished the de- position should be signed by the w't- ness and the justice. , Too f^'reat care cannot be taken ui respect of these depositions, since now they may, in ^i^iven cases, be admitted as evidence on the trial. In tiiis manner every witness who knows, or who on the investigation the jnstice shall find out knows, anytlii)ig about the case, should be eAannned, until the inquiry is thoroughly exhausted. 2. After the justice has examined all those wdio have appeared or have been brought before him, and those for whom he may liave sent, being suggest d, or occurring to him dur- ing the progress of the proceedings, as being material witnesses as to the fhcts and circumstances of the charge, or to the identity of the i)erson ac- cused, or to his complicity with the offence, and after he has obeyed and complied with the directions contain- ed in the thirty-firht and thiity-»ec- ond sections of the Canadian Act of thirty-two and thirty-three Victoria, chapter thirty, he should demand and require of the person accused whe- ther 111- desires to call any witnesses, and if so, and they are absent, he should send for them by 3ubj)oena, and .should then proceed and examine under oath and take down the deposi- tions of all witnesses for the accused in the same niaumr as has been di- rected in the case of witnesses for the Crown, Iiiuiself assisting iu the ex- amination in chief, and permitting the prosecutor or counsel appearing for the Crown to cross-examine, and himself putting such questions on the cross-examination as may occur to him as proper for the discovery of the truth or the elucidation of tlie matter under investigation, and may direct tliat witnesses be called in re])ly or in explanation ; all of whicli de- positions should be signed by the wit- nesses respectively and by the justice, and returned along with the deposi- tions in chief to the Clerk of the Crown and Peace. 3. 8o far the justice has been act- ing ministrri/illy ; and he must always bear in mind that, in every stage of the investigation, the proceedings be- fore him are not a trial, but merely an inqulnj ; in wdiich he is not to pro- nounce the guilt or innocence of the accused, but simply whether or not reasonable and ])robablt! causes exist for putting the accused upon his trial ; ana it is highly desirable, both for the prisoner and in the interest of public justice, that the examination of the witnesses, both against and for the prisoner should be of the most searching character ; and as the language of the statute is broad enough, the justice should continue his inquiries as long as anything can be elicited from the witnesses respec- ting the guilt or innocence of the prisoner ; or which may tend to im- plicate accomplices, or others, not yet arrested, in the offence ; for the proceeding is both for inquir'j and discover I/. 4. The evidence having been closed on both sides, the justice may in his discretion hear argument from coun- sel against and for the prisoner. He then proceeds to act on the case before him ; and he should bring to bear upon all the evidence, and the facts and circmiistances of the case in evidence, and the law relative thereto, his best understanding and judg- IS ment. In this stago of the proceed- ings, and to the extent of determin- ing whether the prisone." shall be adjudged to t, ke his trial or be alto- gether discharged, (he justice is judge both of the law and the facts. Fi-om the eviden'.T, lie must find that cer- tain facts do or do not exist, or at least that the evidence raises a rea- sonable suspicion that they do exist ; and then, assuming that they do ex- ist, orthat there is reasonable ground for a reasonable suspicion of their existence, he must determine the law applicable to the facts, and decide whether or not an offence in law has baen committed. In doing this he may have to construe one or more statutes ; or he in ay have to decide whether a statutory or a common law offence has bi^en committed ; for all offences must be either statutory or at common law; and the justice in his own mind should clearly dis- tinguish which it is, and if, in his judicial consideration of the whole quostioii, he should come to the con- clusion that no offence has been com- mitted, or if committed, that the evi- dence taken altogether, l)oth for and against the prisoner, does not raise such a probabln and reasonable sus- picion of the guilt of the prisoner as to require further judicial inquiry by a formal trial in Court, he should at once flischarge him from custody. On the other hand, if assuming the existence of the facts, an indictable offence has been committed, and a like consideration of the whole evi- dence leads his mind to the conclu- sion that the accused is guilty of the offence charged, or that there is rea- sonable or i»robable suspicion of his guilt, he should either commit him or hold him to bail for trial in thet)ro- per court. In the discharge of this part of bis duty, the jus ice may en- counter cases of considerable nicety iind ilifficulty, as when there is con- flicting or suspicious testimony, or whero the complainant from a pre- conceived idea or pre-committed opin ion, from feelings of personal differ- ences or private pique, malice, ha- tred or revenge, obstinately and per- tinaciously adheres to an accusation once made ; and it seems impossible to lay down precise and invariable rules for his guidance under such cir- cumstances. He must act on his own responsibihty. If he acts honestly and with purity of intention, and ac- cording to tht> best of his judgment, in the important trust reposed in him by Hor Majesty — always keeping iu view that this inquirij is only pre- liminarij and for the purpose of dis- covcrij aud with the object I have al- ready pointed out — he has nothing to apprehend. All indictable offences are classed under felonies aud nnsdemeanors. In felonies the accused is generally de- signated the prisoner ; in misdemean- ors, the defendant. In the case of fe- lonies the accused invariably takes his ])lace in the dock; in misdemean- ors he is not obliged to do this. In many cases of misdemeanor the of- fences partake very much of the na- ture of private wrongs, and are much more frequently promoted by private individuals lather from personal con- siderations than on public grounds. Ill this category may be classed per- jury, subornation of perjury, con- spi acy, false pretences, keeping a gam-bling house, keeping a disorder- ly house, and any indecent assault ; although it must be confess 3d all of these offences are grave crimes against society at large. By the Imperial Act 22 k 23 v., c. 17, sec. 1, and the Canadian Act 32 & 33 V., c. 29, sec. 23, no bill of indictment it* to bo 10 ble nicety re is con- mony, or m a pre- tted 0|)in lal tliffer- alice, !ia- and per- ccusation aipossible iivariablo such cir- n his own honestly 1, and ac- udgment, posed in i keeping only pre- se of dis- have al- othiiig to e classed )iors. In mxlly de- sdemeau- lase of fe- )ly takes sdemean- this. In f the of- • the na- are much y private 3nal con- grounds, ssed per- ry, eon- eeping a disorder- assault ; 13d all of •s against Imperial , and the . 29, sec. icj to bo found by any grand jury for any of tho foregoing otfences, unless the charge has been previously investi- gated before a magistrate, or unless the indictment be preferred by con- sent of a jiulge or the attorney or Solicitor General; and the reason as- signed by the legislature for except- ing these cases from the general rule is •' to prevent vexatious indictments." On the argument, I called the atten- tion of tlie counsel for the prosecu- tion to the exception which the leg- islature had made both in England and Canada in respect of these of- fences, and I asked him if it had ever occurred to him why it had been done. He replied, in order to enable the accused to cross-examine the wit- nesses against him. But it is quite manifest this was not the reason ; for if so it would apply with much greater force to felonies and more aggravated ofiences. The real rea- son is gi^riui by the legislature, ''to prevent vexations iadietments." I have no doubt it was the intention of the legislature, and is the meaning of the law, that the accused in these charges should have the advantage of a thorough investippition and the op- portunity of a full explanation and defence in the primary inquiry be- fore the justice, so that if possible he might altogether exonerate himself, or render the suspicion of guilt so doubtful or improbable as to justify his being altogether discharged. Of these otfences, false pretences and perjury are so easily charged, and so often originate in a desire to redress a fancied [jrivate wrong, that in the primary investigation and in- quiry, the greatest care and circum- spection should be exercised by the justice whose duty it mavbeto take the preliminary investigation. Es- pecially should 'he be cautious in the 'case of a charge of wilful and corrupt perjury; the bare imputation of which is so damaging to the reputa- tion and so mortifyiucr to the feelings and huraihating to the spirit of an honorable and high-minded man. All expeilence teaches us that we are so liable to be mistaken in respect of in- cidents and events passing directly before our eyes or within our hearing, caused b\ momentary inattention, or by mental assumption or pre-conceiv- ed ideas, of what should take place, that two or more persons, seeing or witnessing the same occurrence or event, or hearing the same state- ment made, will often give each an licoount of what transpired quite dif- ferent from, and sometimes contra- dictory of that of the others, and yet each honestly intending to narrate the facts as they are impressed on his memory. This is seen every day in courts of justice, in cases of riots, assaults and batteries, and public commotions, and in cases of verbal contracts and the statements of the parties to others in respect of them ; and hence a superficial observer of men an^: things might infer that per- jnry is much more general than a careful analysis of the understand- ing, and a thoughtful consideration of what is daily passing before us, justify. Where the proof is docu- mentary or chiefly so, one difficulty IS in a great measure overcome. The embarrassment arises when evidence is limited to verbal declarations, not iram ediately reduced to writing, but resting on the apprehension of what was intended to be said and the uncer- tain record of slippery memory of what was aetuully said. The evidence of the [)rosecutor, under such circumstances, however positive, and however credi- ble he may be, is not enough to war- rant a hasty judgment, although cor- 20 ruboniti d by separate and iiide(ioii- dtuit tt'.stiinony ; provided it appoaj's tliat tlio |)ro->i;cuti>r has soino yorson- al feeliug in tlie matter and that both he and tlie corroborating witnos.A'S are tiatly cuna-adioted by several vvilues ses of t'(j[uai credibility who have the same means of knowing the facts, and who are free from all bias one way or th" other; anl when to all this is added the previous good char- act(;r for truth and veracity of x\vi defendant in the community in which he has lived and is known, and no sufficient motive is discovered for the commission of so odious an offence, with the certain kuowli^Tge that, if committed, it easily and almost in- stantly could, and in ail i)robabiUry woulil, be detected aud brought to Uuht, and himself subjected to a criminal prosecution, the ju-tice shotdd act with still greater liesita- tion, caution and deliborati'iu. I venture the suggestion under such circumstances that the examining justice should require sometiiing more bhaii the positive oatli of the com- plainant corro!)orated by lUiotber witness. If, after consideration of the whole case, the nature of tlie charge, all tlio evidence that has been or I an be adduced on both sides, the position of the parties in society, the motives inducing the prosecution, tho meansof detection, the probability of exposure and conviction, iuid all the surrounding circumstances — if, I say, after weighing all thes'.', he thinks the offence has been committed — that the evidence raises such a re;;- sonable and pr)bable presumption of guilt tliat a .lary would bo justified on the trial in fiU'ling the defendant f2;uilty, he ought to commit or hold him to baii for tri tl ; otherwise, he shouhl dismiss the ch:u--;e. Ciia ras- ter and i-('!Hitation are o'i too much value to permit tiiein to be trifled with, to gratify private resentment or personal feeUugs of revenge. At tho sauie time, however m.Ui- cious or vindictive the prosecutor may be, and whatever may be the consequences to character and repu- tation, if the odious crime of wilful Mud corrupt perjury has been com- mitted, and the whole evidence tiikeii together and viewed in the light of tlie surrounding circumstances sus- tains the charge, and the justice is so impressed, he ought fearlessly to discharge his duty, and commit the defendant or hold him to bail to take liis trial before a jury of his country. At tiie same time it should be borne in mind that, notwithstanding the proverb to the contrary, a good name once associated with an odious charge, is in th« |)ublic mind too often insep- arably connected w.tli that offence, however grouudk^ss may have been the accusation ; and even when the truth is demonstrated, and the wrong done is'known and acknowledged by all, re-action seldom or ever takes away the scandal or makes reparation and res- titution for the evil done. While, therefore, the magistrate should be the impartial minister of public justice, he should at the same time be the shield and the protector of the rejiii- iation of individual character. In the case under consideration, I think the examining justice was in error in deciding he had no power to hear any witiiesses exce|)t such as were called by the prosecution. On the contrary, I think he was bound to iiear at least those witnesses who, he was informed, or vj-ho in the course 01 the inquiry he leii,ruod knew the tacts and circumstances of the case, whether they were called by the prose- cutor oi' not ; and T think he was also i;i orror Ti docidiuj tii-.it he iiad no 21 power to liuav witnesses expiosHly chilled 118 witnesses for the defenco ~ it being u matter, as I think tha law is, entirely in his discretion — gener- ally to be exercised in favor of the liberty and innocence of the subject — indeed, I may say, always to bo so exercised, unless he sees that tliBends of justice might thereby be frustru- 1 1.(1 or embarrassed. In the former case it is c'ear a inniuhimiis should go, in the latter it is ( qually clear that the writ should go to the extent of commandiiis' the stipendiary magis- trate to exercise his discretion, hotli n.'p. 7.) If by the Act or Law upon which the complaint or information ii fram- ed it be provided that it shall be heard and determined by two or more Justices, then it must be heard by 22 the uumbor, at least, of Justicos therein spocified ( Vido 82 & 8B Vic. cap, 81. 8c«c. 27. and post), hut if iliere be no such provision in Huch tor. (Sunders case 1, Saund. 203: Ke, ToorlosH 12. Q. B. G48.) Generally speaking, the place where the Justices can exercise their Act or Ijaw then it can bo heard and niilhority must be within the territor- deterniini'd by one Justice. (Vide ial DiviHion for which th'jy are ap- :i2& 83 Vic, cap. 81. HOC. 28). pointed to act. (Dalt. c. 0.) It is Where power is >^ivoii to one jus- tice to do r»n act, two or more can join in doing it very doubtful whether a justice can out of his Division receive an infor- mation to found a subsequent pro- One Justice can receive an infor- coeding before himself of a penal mation and complaint and entorcis naturw, and it is clear that any coer- any summary conviction or order I cive or judicial act would be altoge- maile bv another or other Justices (32 & 83 Vic. cap. 31 sees. Hi5 & 60), and can do every act out of sosdons relative to any indictable otTeii'X', save admitting, after hearing the witness- es, a person acoused of felony, to I 'ail for his ap|tf'aranco for trial. (82 & 88 Vic. cap. 30), The prim iry juii.idiction of Jus- tices extended solely over offonces, committed hi the Division for which they were appoints .„. In indictable olfencos, now a days a Justice has jurisdiction to take the prelimimiry examination wlrm the offence has been committed in the Division for which he has been ap pointed, or when the parti/ ncrimed in therein or is sasij''cted to l/e therein (82 &33 Vic. cap. 30. scc.l.) In summary convictions and oiders it would appear as if the oflence or act complained of need not have been comiiiltted or done within tbe Divi sion lor which tlie Justice has been appointed, so long as the peroon ac- cused is within such Division, (but vide 82 & 83 Vic. e. 81 h. 1). Where a stntute refers the matter to the next Justice or any two Jus- tices, no other but those answering that description or those having ex- press jurisdiction by Act of Parlia- ment can take cognizance of the niut- thflr invalid unless done within tlio Division. (Dalt. c. 25, 2 Hawk c. 8. s. 44. Paley p. 18). .Jt;STI(!ES INTKRESTED IN THE CASE. No Justice of the Peace can act judicially in a case wherein he is himself a party, or wherein he has any direct, or pecuniary interest how- ever small. That no one can be a judge in his own case is a principle pervading every branch of law. (Co. Lit. J41. a ; Dalt. •. 173 ; Dimes vs. Giand Junction Canal Co. 3. H, of L. Cases 759, 785). Every proceed- ing which bears this objection upon its face is absolutely void, if it do not so appear it is merely voidable. (Dimes vs. Giaud Junction Canal Co. supra). A Justice acting when interested, is liable to punishment by attachment. (The Mayor of Here- fords case 2 Ld. Raym. 766 : 1 Salk. 201, 396; R. v. Huseason 14 East 600). Justices should refrain from tak- ing part in any matters in which they individually have a personal inter- est ; such as where they are members of a company, or stockholders in a bank, complaining or complained against. Where a Justice upon the trial of a parish appeal, be being a rated inhabitant of the appellant parish was on the bench during tht 23 hearing, thou^li he did not vot« or give any opinion upon tlio question or influence thedecisiou, the order of session.s was held to bo invalid by reason of his presence and interfer- ence. R V. Justices of Suffolk 21. L. J (N. 8) M. 169; Reg. v. O'Grac! ' 7 Uox G. (.'. 247.) Hoinetim ;3 however a Justice of tlio Peace is expressly empowered by statute to adjudicate, although to a certain extent interested in the re- sult of the decision. But great care naust be exercisnd by a Justice inter- ested in a case, ure acting therein as a inayistrato, to assuro liiniself that ho is so expressly emjiowered. OUSTKR OF JUSTICKa JURISDICION. Where property or title is in ques- tion, the jurisdiction of .Tusjticea to hear and determine summarily in in the cases regulated by 32 &, 33 Vic. c. 81 and other cases of the Bame class of summary m-^.tters is ousted, and their hands tied from in- terfering, though the facts be such as they have otherwise authority to take cognizance of. (R v. Buriiaby 2 Ld. Ray, 900 ; 1 Saliv. 181 ; R. v. Speed 1 Ld. Rayra. 588 : Kimmers- ley v. Orpe Doug. 499). inis prin- ciple is not founled upon anylegisla tive provision, but is a qualificaticn ■which the law itselt raises in the execution ot penal statutes and is always implied in their construction. The jurisdiction however is not to be ouste « by a mere fictitious pre- tence of title, or (!veii by the bona fide claim of a right which cannot exist at law. (R v. DohIsou 9 Ad & El. 704 ; Hudson v. Macrae 88 L. J. (V. S) M. C. 95; Okes Syn. 81; Paley 117-122). [It does not follow from this, how- ever, that a wrong complained of as, for instance, an assault when assert- ing or defending a title to lands, etc., is without remedy ; it ia only meant that the case must be sent for exam- ination and adjudieation to a superior court of record, — in this Province, to the Court of Queen's Bench. — Repor- TBR.] OKNEttAL INGREDIENTS TO GrfE JUH- TICKS JUIUSDIUTION. The principal requisites or ingre- dients in general necessary lo give justices jurisdiction to exerci>,o their authority are therefore the follow- in" ■ Jurisdiction as to pUwc. where of- fence was committed, matter arose or where accused then w or is suspected to he. Jurisdiction as to place of exercis- ing tlieir authority. Jurisdiction not to be exercised where Justice is a purttj, or interested ; — When Justices are prohibited by Statute from exercising. When Justices are disqualified from acting withir 1 heir jurisdiction by other causes than interest ; When their jurisdiction (in all other respects complete) is ousted by a question of property or title. In addition to these there must be : — JurisdictiDD over the subject matter within the sJ^^rict meauing of the commission, or the particular Statute, taking into account all exceptions and exemptions allowable ; Jnrif dictior. in respect of the Jus- tices description where the authority is delegated to particular justices ; Jurisdiction as to the time of of- fence or matter being prosecuted within the period limited by statute or otherwise ; Jurisdiction as to the number re- quired to hear and determine ; Jurisdiction as to the amount of forfeiture or penalty compensation. 21 fttiJ its nivtnro, luid costs ailjudfj^od to | lish liiw it may be nuiil, thiit tliero is bt) imihI, and thu iiunle of their re- i no diftVronce in tlio rules of evidence covt'rr l)y di.;tr»'s8 cr oth(>rwisn, but j a|>plicablo to civil iiiul crinunjil cases, n|»|)i'o))!i;ito to the offt-uco and iho ; and that what may be rt'ceived in one Stiitu'e ; I case may be received in the oth»r, Jurisdiction as to the term of ini- inndwliat is rejected -n the one ought prisonuii'nt iidjudgod, neither for too ! to bo rejected in tln> oth«;r (Abbott .1. bhort nor too long a period, and the ' in ft v. Wntson 2 Star N. P. C. infi), proper con(l'*"jn of its termination, and that a fact must be established Jurisdiction xhnnhl hi' nitjuircut an ' l)y th(* same evidence, whether it is writteii jirocft'tliii'is of .histin'n : — j to bo followed by criminal or civil con- It is not snrticient that Justices sequences (Lord Melville't case 29 have the jurisdiction in every res- I How, St. T. 7()3\ yet the amount of pect ; upon all their written })roceed- j proof to be exacted by justices varies ings, es|-eciiilly in those records of ' with the nature of the proceedings their judgments which are tiiial, i. e. ] l)efore ihem. convictions and orders, as the bad ! If it bo a prtdiminary inquiry into piirc cannot b'S'Vcred from the goo I i an indictable olfeuce, the evidence (Wilkins V. Wriglit 2 C. & M. 101 ; I must raise a stroiig presumption of J?raceys cane 1 Salk 849 ; K. v. Cor- ' the gtiilt of the i»arty charged to jus- ben 4 IJurr. 221H ; It V. (jatherall 2|tify the justice in committing him Str 900 ; 1 T. It. 249) in the case of j for trial (see 82 & 88 Vic. cap. 80. s. convictions, tliougli orders may be ' J52). (juashed in part if suificiently divisi- : lu summary penal proceedinga ble (11. V. Maulden 1 M. & It. M. C. i the proof of guilt must be full and 885 ; H. V. Uobinson 17 Q. 13. 40G, convincing, while in matters of civil 471; U.V.Green it al. 20 L. J. (N. ! jurisdiction, a mere preponderance S.) M, C. 1(58 A cases therein cited), I of proof will suffice to establish the every essential ingr"dient and every | case. In summary proceedings, the material fact neces... y to give juris- (justices are placed in the position of diction should appear. (Okes Syn. i a jury, and the degree of credit to be p. 33 ; Paley 140, l4l, 1^8; Gossett attached to the evidence, provided it vs, Howard 10. Q. B. 411, 452 ; Pea- i be legally admi'sible, is exclusively cock V. Bell 1 Sauud. 74). | in their consideration and judgment, EVIDENCE BEFOUE JUSTICES. | file defendant being entitled to the I benefit ot any doubt whioij exists in It is not intended here to enter into | their minds ; and therefore, whatever a considi"ratiou of the whole law ol | the Court of Queen's Bensh upon an evidence, a very succinct view of the I inspection of the proceedings, would law as to the competency and exam- j di>em suHicient to be left to a jury on ination of witnesses, and the general rules as to oral and other evidence will only be presented, taken in great port from Mr. Oke-' exceedingly use- ful work, The Magisterial Synopsis. This chapter is divided into three parts. According to the principles of Eug- a trial, wken the evidence was set out on the face of the conviction, was considered by them adequate to sus- tain the conclusion drawn by the convicting matfistratos. Beyond that, the Court would not exercise a judg- ment upon the credit or weight due to the facts, from which the conchi- 25 Hjon wns (Irann (R. v. Davin 6. T. , the a-sruHod and lus wifa, on a ch irgo Ik. 177, it soo CostPr v. Nilsou 8 M. ' " * W. 411 ; II. V. livMon 1 T. It. H75 ; U. V. Hulton 1 Q. B. 06 ; Saun- ders. Prac. M. C. 8. Ed. p. 00). THE COMI'KTKNCY AND KXAMIXA'MOK OF WITNKSHES. ■fr. commit- iuil the case of - foumled to her), are It may bo cousideied to be the! gciinral iind cstablishod [.rinciplo of <'vidonco that objeofioii may bo taken to tho credibility, but not to the com- ! potoncy, of witneystis ; but this rule \ is subjpct to fsomo excf'ptions. For- 1 merly a witness niight bo objected to | on many f,'r(;ui)ds, as beinj,' a party > interested in llje result of a case ; \ but without mentioniug prior acts ofi tht! Provinciiil rarliaments, the Do- j minion act 82 & 88 \^ic. cap. 29, s. ' 02 iiro'.'ideK : '• No peison (jffered as a witness sliall, Ity rcinon of any alL'i,'(Ml iuca- l>acity JVom crime or inlert^st, be ex- cluded from giviuLC evidence on the trial of tiny criminal case, or in anv proceeding relating ov incidental to isucli caHo." 03 " Every person so offered sliall be admitted and oe conipi liable to give evidence on oath, or solemn ailir- niation, wlien; an ailirnmtion is recei- vable, notwithstandiuf^tliat such per- son has, in- may have, an interest in the matter in qu^jstion, or in thn event of the trial in whicli be is offer- ed as a witness, or of any proceed- in^' relating or incidental to such case, and notwitlistanding that such person so oliVred as a witness lias been p^eviou^lv convicted <.f a crime or ol'tcnoo " It may bo taken for jTV;inted that undor tliesp two cLiuse:^ ;ill persons gifted with roa ;on who heli^'ve in a Supreme Being, who will punish tln-m either in the present, or in tho future life, for perjury, (PowelUO, 21) (save of Uii ;adictable off'* tod by him m h> p« defendant and -'.ir a Rummary prosec upon a porsomil L.jt competent witnesses. In cases of high treas( ji nud per- sonal injury committed by one upon the other, husi>aud and wife are not excluded from giving evidence for or against each other. (Okes Svn. 06 & note 82). The wife of one of several perHons accused of a joint olYenco can, under certain circumstances, be examined an a witness for tho other persons ac- cused. (R. v. Bartlett & al 8. J. P. 329 ; R. v. Moore 1 Cox C. C. 59 ; R. v. Sills 1 C. & K. (-194). Where two prisoners were tried for a joint offence, and one pleaded guil- ty, tho wife of the one so pleading was admitted as evidence against tho other prisoner. (Reg. v. Tiiompson 8F. & h\ 824). A person can not bn coni^elled to answer any question, tending to sub- ject him to ^:ome penalty or punish- ment {lliig v. Boyes 1 B. Si 8. 811), but if he chooses he ia con.petent to do so. In the recent case of Rei^. v. Butterfield 11 Law T. N. S. 448, it vvao h*ld /'.at a .vitness was not 'ob- liged to ai- "ir a question tenJi • . to tii» forfeiture of a lease. (See ''''y- lor on Ev. 4th Ed. pp. 1230—1248), The I'rccceding to obtain a sum- mary cjnvlction by which tlie def"en- dant may be punished by fine or im- priserment is a proceeding in a crim- inal case (Ciittell vs. Ircson 27 L. J. (N. S.) M.C. 107; Parkf-r v. Green 2. 15, ife 8. 299.) The proceedings to obttiin merely orders for the payment of money are civil prct^oedings. (Call ell vii. Irusou supra). In.'.ependon ly of th^ n2 & 83 Vic. 26 c. 29 which removes fi peraou's inca- pacity from crime, the law in, that where several offenders are charged and tlie cases are heard at one time, after all thf, evidence on both n les has been heard, if there be vo evidence against one of them he is tbcn enti- tled to doraaud an acquittal. (Wright rs. Palin R. k M. C. C. 128,) but he is not entitled to a verdict in the midst of the inquiry, (Emme't vs. Butler 7 Taunt 599) although the Court may in its discretion allow of his acquittal at any stage of the trial before the reply, in order that he may be examined as a witness (Bedders case 1 Sid. 287 ; 2 Hawk. P. C c. 46. s. 98). When acquitted he is competent (Eraser's case 1 Mac-Nal Ev. 55 ; R. v. George, Car k Mar. Ill); also where one of several de- fendants pleads guilty, lie may be called as a witness for the other de- fendantH before sentence, unless he has an interest, as in conspinicy in obtaining their discharge. (K. v. George, Car & M. Ill; See Taylor on Ev. 4th Ed. pp. 1155, 1150.) Poiver and duty ofJmticea to admin- ister oath to witnesses ; — It may be laid down as .. genf^ral rule, that wherever Justices are au- thorized by Act of Parliameut to hear nnd determine, or examine wit- nesses, they have incidentally a pow- er to take the examinations on oath or solemn affirmation as the case may be, and in fact examinations not on oath or solemn aflQrmation, with one exception hereafter to be noticed, are not evidence. The oath is generally in the fol- lowing form, Form (if oath. " The -evidence you shall give " touching this information (or com- " plaint or the present charge or the " application or as the case may be) " wherein is informant (or " complainant or as the case may he) " and is Defendant [or as " the case maybe.) shall be the truth, " the whole truth, and nothing but " the truth. So help you God." the New Testament should be, during the administration of the oath, held in the witness' right hand and at its conclusion he should kiss it. Quaker. If th« witness be a Quaker or other person allowed by law to affirm in- stead of swearing in civil cases, or solemnly declaring that the taking of any oath is according to his religious belief unhxwful, he is permitted to make his solemn affirmation or de- clartiou of the facts he affirms to, commencing it with the wnrds " I, " A. B., do solemnly, sincerely and " truly declare and affrm that &c," (32 & 33 Vic. c. 29. s. 61.) The forms of oath under which God is invoked as a witness, or as an avenger of perjury, is to b» accom- modated to the religious persuasion which the swearer entertains of God, and to be administered in such form as is binding on the witnesn' consci- ence ; it being vain to compel a man to swear by a God in whom he does not believe, and whom he does nut therefore revorcnce. But if a person says he has no be- lief in a God, or in a future state, he cannot be sworn, and his evidence cannot be received (Madeuv. Catan- agh 26. J. P. 248 ; Powell ; 22 Tay- lor on Ev. p. 1251). The Scotch oath is thus adminis- tered ; holding up his right hand un- covered, the vvitness re})e?its after the Clerk (who cuglit to administer the oath with solemnity and reverence, standing) ; "I swear by ^xlraighty God, and as I shall answer to God ut the great day of judgment, that I 27 will tell the truth, the whole truth, and nothing but the truth, in so far as I know and shall be asked in this Cttuae." (Vide with slight alterations forms inMildrauescase 1 Leach 412 ; & Mee V. Reid, Peake N. P. C. 23). ' J3eaf and dumb witnesses, as well as othwrs who do not speak the lan- guage spoken by the justice, should be sworn through the medium of an- other person duly quahfied to inter- pret them, the interpreter being first sworn faithfully to interpret what the witness may say. The interpre- ter's oath may be in the following form : " You shall truly and faithfully in- terpret the evidence about to be giv- en, and all other matters and things touching the pi eseut charge {or infor- mation as the case may be) and the (French or as the casn inui/ be) language i''to the English language, and the EugliHh language into the CFronch or as the case may be) language, accord- ing to the best of your skill and abil- ity — So help you God. MODE OF EXAMINATION OF WITNESSES On an examination in chief a wit- ness must not be asked leading ques- tions, I.e. questions in wuch a furm as to suggest the answers desired. There are several exceptions to tiiis rule tment to the issue ; and he cannot be asked irrelevant questions, or questions as to his own inferences from a personal opinion of fact By the 32 & 33 Vic. cap. 29 it is provided that : s. 68 "A party producing a wit- •• ness shall not be allowed to impeach " his credit by general evidence of " bad character, but in case the wit- " ness in the opinion of the Court, " proves adverse, such party may con- " tradict him by other evidence, or " by leave of the Court, may prove " tliat the witness made at other " times a statement inconsistent with " his present testimony, but before " such last mentioned proof can be " given, the circumstances of the " supposed statement, sufficient to " designate the particular occasion, " must be mentioned to the witness, " and he must be ask«d whether or " not he did make such statement." On cross examination, a witness may be asked leading questions ; but where the witness appears to be fa- vorable to the party cross-examining, tlie Court will sometimes not suiier him to lead his opponent's witness. (Powell 381). The office of a re-examination is to be confined to showing the true color and bearing of the matter elici- lo. \Vith the pernnssion oflt-d by cross-exa.nination ; and new the Court, when die witness is hostile to the party by whom he is examin- ed. 2o. W.iere a witness has appar- ently forgotten a circumstance, by inspections of a incuioraudum to re- fres'i his memory (Powell 376, 379) ; 3o. Where the object is to contradict another witness as to a certain fact 4o. Where the object is to identify persons. 5o. Where the question is merely introductory to another, a! vviiriy.ss must ha asked only questions facts or new statements not tending to Hxplain the witness' previous ans- wers, are not to be admitted (Prince vs. iSamo 7 Ad. A E. 627; Queen's Case 2. B. & 13. 297 ; Powell 390). GENERAL RULES AS TO ORAL AND OTHER EVIDENCE. From the various decisions and authorities tho following rules have beuu extracted ; 1. — One witness is sufficient, if he ot tact whi h are relevant and per- 1 can prove the necessary fa;ts, ex- 28 cvpt ^vhere ai.y .statute ckcliires thore! 13.— Thnt the evidence of nn ac- muht be two \vitiief:-':s, us in High | complice is admissible, but ought not Treasoii, and in cases of iicijuiy. to be fully n>lied upon, unless it be 'I, The evidence offered must cor- , corrobarated by some collateral proof. respond with the idlegations and be (Powell 24). contimd k. the points' in issne (Tny- 14.- That where positive evidence lor sec. 172). f>f the facts cannot be supplied, cir- ii. — Tt.e be,st (vidtnco of which ! curnstantial or i)resumptive evidence the naturt? of the case is capable is admissible ; and that circumstan- mufst be given, and thi« rule relates tial evidence should be such as to pro- not to themenhureandquMn itvofevi- duce nearly tiio same degree of cer- dcnce,buttothequahty. (Powell 8G). tainty as that which arises from di- 4. — The law piesiimes innocence rect testimony, and to exclude a ra- uutil the contrarv be proved. (Pow- tional probabitity of innocence. (1 ell 45). ^ Starkie on Ev. 3. Ed. pp. 571. 575). 5._I[,.arsav evidence is inadmis i 15.— The law presumes in crimin- bible. (PowlITtO). ^ al matters, that every person intends 6.— The issue must be proved by ' the probable con.^equcnces of an act tha party who states an afiirmative ; ^ which may be highly injurious. (Pow- not bv tlu^ party who states a nega- ' ell 4G). tive. " (Powell 107. Vide 32 k 88 , 16.— It is a general presumptio'i Vic. c. 31 s. 43). jOf law that a person acting in a pub- 7.— The iosue must be proved by j lie capacity is duly authorized to do thepartvwho states the afiirinative i so. (Powell 48). Ill sui;; tanve. and not merely the ; 17 — If a man by his own wrong- affirmative in form. (Powell k'JH). iful act withhold the evidence by 8. In every case the onus proban- I which the nature of his case would di lies on the pen-on who wishes to 1 be manifested, every preicmption to support his case by a pnrticnlar fact, which lies more pecnlirtrly within bis knowledge, or of which he is suppos- ed to be cognizant. (Powell 17t)). 9. — It ia enough if only the sub- stance of the issue be proved. (Pow- ell 172). 10. — Where two persons are charg- his disadvantage will be adopted. (Powell 49). 18.— The law presumes in favor of the continuance of life. (Powell 50). 19. — A tenant cannot dispuie his landlord's tith-. (Powell 52). 20. — A witness must only state facts ; and his mere personal opinion ed jointly, the confession, or state- lis not evidence. (Powell 54, see ex mei'its of one will not be evidence I ception No. 21). against the other. (Powell 1G4). i 21.— The ophiions of skilled or "ll.— On trials for conspiracy, where | scientiiic witnesses are admissible the conspiracy has been pro\ed, the : evidence to elncidiite matters wluch acts of one conspirator are evidence ' are of a strictly professional or slien- against the other cunspii ators. (Pow- ell 104). .12. — Conversations wliicli have tific character. ( Powell 65). 22. — Counsel, solicitors and attor- neys cannot be compelled to disclose taken place out of the hearing of the i communications which have been party to be alTected cannot be given | made to them in professional conti- in evidence. | deuce bv their clients. (Powell 00),- 29 Nor can Priests and Ministers be com- 1 pelled to disclose secrets confided to ' them m confession made under the regulations of their respective church- es or persuasions. 28.— A witness cannot be compell- ed and will not be allowed to state lacts, the aisclosure of which may be prejudicial to any pubhc interest. (Powell 6G). 24.— In matters of public or gen- 1 eral interest, popular reputation or opinion, of the declaration of deceas- ed witnesses, if made before the Uti- 1 gated point has become the subject of I controversy, and without reasonable I suspicion of undue partiality or col- lusion, will be received as competent and^credible evidence. (Powell 78). 25.— The declarations of deceased persons are not admissible as reputa- tion, unless they have been made be- fore the issue has become, or appear- ed likely to become, a subject ot judi- cial controversy. (Powell 87). 26 — Ancient docnments purport-; ing to be part of the transaction to! which they relate, and not a mere narrative of them, are receivable in i evidence that those transactions ac- 1 tualiy occurred, prori ed they be I l'j^^^"«^d^i-om proper custody. Pow- j 27.— In murder or homicide, the declarations of the deceased, concer- ning the cause and circumstances of the mortal wound, if made with a lull consciousness of approachincr death and religious responsibility, are admissible in evidence for or against a prisoner who is charged with the crime. (Powell 107). • ^^:~'^^^ admission of a partner IS evidence against his co-partner in civil proceedings (Powell 142, 156^ • under which rule ia ;n«1p-l-J „j— • sions by persons acting in the char- acter of agents or attorneys. 29.— Voluntary statements or ob- servations made bv a prisoner before the exammmg magistrate are strictly admissible against him, whether re- duced into writing or not. (1 Phill 422; Reg. v. Stripp. 1 Dears. C. C* ! 648 ; 1 Lea. 309). I 30.— i\ccoiding to the rule, that I tne best evidence must be given (ante i rule 3,) and that secondary evi- i dence is inadmissible until the ab- I sence of primary evidence is explain- ed satisfactorily, a party who relies upon a written document, must either produce It, or show that he has made every reasonable effort to produce it. I m the latter case, if he has been un- successful, he may prove the original document, either by a copy, or any other authentic kind of secondary parol evidence, (Powell 295). 81.— The rule is, that all originals must be accounted for, before secon- I dary evidence can be given of any I one. (Parke, B. Alison y. Furnival, 1 j C. M. & R. 392). ! 82.--It must first be proved that j that the original is in the hands of the adverse party, and that a notice , to produce has been served on such a party a reasonable time before the j hearing ; but where the document is in the hands of a third parfy, a sub- poena duces tecum must be obtained from the crown office, justices having no power in any case to summon a witness and require him to produce documents before them. (Powell 299, 801). 38.— If a party or his attorney be shown to have an original with 'him in court, ard refuses to pruduce it, sec- ondary evidence will be received,' not- withstanding the want of a notice to produce ; 34.— Notice will not be required when the adverse party has admitted the loss of the origiaal or where it is 80 in the nature of an irremovable tix- | an adverse party, who refuses to pro- ^^^.Q . I duce it after notice (Okes Syn. p. 84), 35— The proof of sit^uaturfS or I or when the aiverse party, in produ- handwrUing is the essential part of ; eing it after ^o^ice claims an in er- the proof of private writings ; there | est under it ; or when the ^^^^J^^ are various admissablc kinds of such ; party has recognized the authenticity "^[.^'f I of the instrument by acts m the na- l.-Handwriting uu^y be proved 1 ture of an estoppj^ in a judicna^^^^^^^^ by a witness who actually saw the , ceedmg (Okes byu. p, 81), o ^hen nLtv wnto or sign, which is the the attesting witness is proved to be fnost saUsfactoi-y evidence ; dead insane beyom the jurisdicti^^^^^ 2-P,v a witness who lia^ seen J of the Court, or otherwise not pro the 'party ^vrite on other occasions, ; duceable after due endeavors to bring even it it be but once only; ' him betore tne Court. It wi he 3_Bv a witness who' has seen I sufticient generally to prove m these documents purporting to be written I casos the handwriting ot the a.test- by the same pavtv, and which, bv i lag witness. (Powell 30 0- snbsequent communications with; 86.-Documents will often be d- s ch 1 arty, he lias reason to believe ' missihle to refresh the memory of a the LitheaUc writings of such party; i witness .nd the witness may give 4 -Bv 32 & 33 Vic. c. 29 s. 07 oral evidence accordmgls attei a pei (applicable to all Court.-, and proceed- ; usal of their contents :— S of a criminal nature) " compari- \ l-When t'- -ntmg a. md^^e- son of a disputed handwriting with ! vives m his mind a recollection ot anv writing proved to the satisfaction ; the facts to which it refers ; oMhe Jadje' to be genuine shall be ^ 2.-When although it fail to xe permitted to be made by witnesses ; and such writings and tlio evidence of witnesses respecting the same, may bo submitted to the Court and Jury as evidence of the genuineness or otherwise of the writing m dispute." Should there be an attesting wit- ness to th.e writing he must in certain cases be called ; but by 32 & 33 Vic. c. 29, s. GO, in all cases, it is not now " necessary to prove by the attesting witness any instrument, to the valid- vive such a recollection, it creates a knowledge or belief in the witness that, at the time when the writing was made, lie knew or believed it to contain on accurate statement of such facts ; 3.__\Vhen although the writmg revives neither a recollection of the facts, nor of a former conviction of its accuracy, the witness is satisfied that the writing would not have been made, unless the facts, which it pur- witness any msirument, lo me v-m^i- ^^^^', -"- ^ »r.r.,irrpfl nc- ity of which attestation is not requi- ! ports to describe had occuried ac site, and such instrmnent ^^^^ l^'^I^^^^^^^^^^Z Peace take provedasit therehadbeennoattes-l 3/.-^^^^^^ o ^^ ^^^^^^ tiufi witness thereto. judioiai nonce "' , ,. e^.tutes To this reservation there are seve- 1 without pro.d, 1^^/^^^ P; '^^^^.^'!^7i^^ ral common law exceptions. Thus it of the ^^Pf ^^^^^ ^^?^^ ''^'7 k,J,^'' is a rule that-aii attesting witness ; Statutes of the Dominion o^ need not be called to prove an lustru- , dii , tbuu own <^:;''-; T'. ^ j ^ ment wliich is more than thirty years and practice ; the ^f^^^ ^^J ^ old • or when the original is held by nations ; the great and piivy s,. als ot to pro- . p. 84), pro (111 - n inter- ailverse eiiticity the n;i- 3ial pro- or when ed to bo Lsdictiou Qot pro- to brin<,' will he in these e attast- 11 be nd- lory of a aay give er a per- nially re- lection of 81 the realm ; royal proclamations ; the divisions of the year ; Territorial Di- visions of the Dominion of Canada ; the Canada Gazette ; but they will not notice the laws or customs of foreign States, and such laws must be proved by skilled witnesses. So also must local laws of the Provinces other than the one for a Division of which the Justice has been appoint- ed. (Vide Powell 242. Taylor, sec. 7 ; Okes Syn. p. 85). Other documents are proved as fol- lows : Jude:ments of Courts of Re- cord by certified copy under Seal of Court. i,il to re- creates a witness 3 writing jved it to ment of 3 writing on of the viction of J satisfied lave been .cli it pur- lurred ac- 7 eaco take ous facts c Statutes lent ; the of Cana- prncedure ne law of vy sosls of