ger of escape, or to suppress an actual disturbance, and enforce the law while it is in the act of being resisted. Powell v. Williamson, 1 Q. B. (Ont.), 156.

Where a Justice acts in his office with a partial, malicious, or corrupt motive, he is guilty of a misdemeanor, and may be proceeded against by indictment or information.

The Court will in general grant a criminal information against Justices for any gross act of oppression committed by them in the exercise or pretended exercise of their duties as Justices, and whenever there can be shown any vindictive or corrupt motive. (See R. v. Cozens, 2, Doug. 426; R. v. Somersetshire, 1 D. & R. 442. The misconduct must have arisen in connection with his public duties. R. v. Arrowsmith, 2 Dowl., N. S. 704. And where a criminal information is applied for against a magistrate for improperly convicting a person of an offence the Court will not entertain the motion, however bad the conduct of the magistrate may appear, unless the party applying make oath that he is not really guilty of the offence of which he was convicted. R. v. Webster, 3 T. R., 388. And indeed in all cases of an application for a criminal information against a magistrate for anything done by him in the exercise of the duties of his office, the question has always been not whether the act done might, upon a full and mature investigation, be found strictly right, but from what motive it had proceeded, whether from a dishonest, oppressive or corrupt motive, or from mistake or error, in the former case alone they have become the objects of punishment. R. v. Brown, 3 B. & Ald., 432-4. It is to be observed that the 32 & 33 Vic., chap. 31, s. 82, does not prevent the prosecution by indictment of a Justice of the Peace for any offence, the commission of which would subject him to indictment at the time of the coming into force of this Act.

No application can be made against a Justice for anything done in the execution of his office without previous notice. R. v. Heming, 5 B. & A. 666. The Justice is entitled to six days' notice of motion for a criminal information. R. v. Heustis, 1 James 101; Re Bustard v. Schofield, 4 O. S. 11. The affidavit in support of

the motion should not be entitled in a suit pending (ib).

Where the notice is to answer the application within four days

after the service of the notice, it will not suffice, though the motion is not actually made until the six days have expired. The application must not (when the misconduct occurs before the term) be made so late in the term that the magistrate cannot answer it the same term, because the pendency of such a motion might affect his influence as magistrate in the meantime. R. v. Heustis, 1 James, 101.

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Justices of the Peace acting judicially, in a proceeding in which they have power to fine and imprison, are Judges of Record, and have power to commit to prison orally without warrant for contempt committed in the face of the Court. Armstrong v. McCaffrey, 1 Hannay, 517; Ovens v. Taylor, 19 C.P. (Ont.), 53. Thus if the Justice be called " a rascal and a dirty mean dog," damned lousy scoundrel," "a confounded dog," &c., the Justice has a right to imprison as often as the offence is committed. R. v. Scott, 2 U. C. L. J., N.S., 323. The Justice, while discharging his duty, has power to protect himself from insult and to repress disorder, by committing for contempt any person who shall violently or indirectly interrupt his proceedings, and the Justice may, upon view and without any formal proceedings, order at once into custody any person obstructing the course of justice, or he may commit him until he find sureties for the peace. But the Justice has no power at the time of the misconduct, much less on the next day, to make out a warrant to a constable, and to commit the party to gaol for any certain time by way of punishment without adjudging him formally after a summons to appear for hearing to such punishment on account of his contempt, and a hearing of his defence and making a minute of the sentence. Re Clarke, 7 Q.B. (Ont.), 223; See also, Jones v. Glasford, R. & J. Dig. 1974.

A prisoner was convicted three several times the same day for insolent conduct to a magistrate on the bench, and detained in prison under three several warrants, all dated the same day, the periods of imprisonment in the two last commencing from the expiration of the one preceding it, but the first to be computed "from the time of his arrival and delivery (by the bailiff) into your (the gaoler's) custody, thence forward." It was held that

the Magistrate had the right to convict for the contempt, and to sentence for continuing periods, but that the periods of imprisonment depending on the will of the officer who was to deliver him. to the gaoler were uncertain, and the prisoner was therefore entitled to his discharge. R. v. Scott, 2 U. C. L. J., N.S., 323.

It has been doubted whether a Justice of the Peace executing his duty in his own house, and not presiding in any court, can legally punish for a contempt committed there. McKenzie v. Mewburn, 6 O.S., 486.

The 32 & 33 Vic., chap. 31, s. 92, expressly gives to any Judge of Sessions of the Peace, Police District, or Stipendiary Magistrate, sitting at any police court or other place, such and the like powers and authority to preserve order in said courts; and by the ike ways and means as now by law are or may be exercised and used in like cases and for the like purposes by any court of law in Canada, or by the Judges thereof respectively during the sittings thereof; and by section 93 in all cases where any resistance is offered to the execution of any summons, warrant of execution, or other process, the due execution thereof may be enforced by the means provided by the law for enforcing the execution of the process of other courts in like cases.

Justices should be careful not to abuse their position; and by either knowing their powers or in ignorance of them inflict a wrong upon a party or witness, or maliciously punish him by the use of insulting and improper language. Where language of this character is used without any legal justification, exemplary damages will be given against the Justice. Clissold v. Machell, 25 Q. B. (Ont.), 80, affirmed in appeal, 26 Q. B. (Ont.), 422.

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A magistrate charged with the preservation of the peace city, who causes the military to fire upon a person, whereby the latter is wounded, is not liable in an action of damages at the suit of the injured party, if it be made to appear that though there was no necessity for the firing, yet the circumstances were such that a person might have been reasonably mistaken in his judgment as to the necessity for such firing. Stevenson v. Wilson, 2 L. C. J., 254. In this case the Riot Act was read before the firing. An action for damages will lie against any person who in the

presence of the magistrate, and while the Court is sitting, assaults any of the parties concerned, or accuses such party of crime in the face of the Court. See Belanger v. Gravel, 1 L. C. L. J., 98; Gravel v. Belanger, 3 L. C. L. J., 69.

An action will not lie against a Judge for anything done by him in his judicial capacity, and within his jurisdiction, although there may be an improper exercise of jurisdiction. (See Dickerson v. Fletcher, Stuart, 276; Gugy v. Kerr, Stuart, 292; Garner v. Coleman, 19 C.P. (Ont.), 106; Agnew v. Stewart, 21 Q.B. (Ont.), 306. And from the opinion of the Court in Garner v. Coleman, supra, and Scott v. Stansfield, L. R. 3 Ex., 320; 18 L. T. N. S., 572; it would seem that no action at law can be maintained against a Judge of a Court of Record for anything done in his judicial capacity though there is malice and a want of reasonable and probable cause. The Court do not say that the Judge is not amenable to punishment by impeachment in Parliament, but seem disposed to protect him from an action before a Jury. The general rule is that a Justice like other Judges is not liable for any mistake or error of judgment, or for anything he does judicially when acting within his jurisdiction, though he may be wrong. Garnett v. Farrand, 6 B. & C., 611; Mills v. Gollett, 6 Bing., 85.

Where a Justice of the Peace acts judicially in a matter in which by law he has jurisdiction, and his proceedings appear to be good upon the face of them, no action will lie against him or if an action be brought the proceedings themselves will be a sufficient justification. See Brittain v. Kinnaird, 1 Brod. & B., 432; Fawcett v. Fowles, 7 B. & C., 394. If, therefore, an action of trespass be brought against magistrates for convicting a person and causing him to be imprisoned in a case where the magistrate had jurisdiction, the plaintiff must be non-suited if a valid and subsisting conviction be adduced and proved. Stamp v. Sweetland, 14 L. J. M. C., 184; Mould v. Williams, 5 Q.B., 469; or, if the conviction has been quashed, then case, not trespass, is the form of action that ought to be adopted. Baylis v. Strickland, 1 Man & Gr., 59. All this is now fully declared in Ontario, by the Rev. Stat. chap. 73, s. 1, et seq., see notes to this Statute, post.

What we have hitherto been considering have been actions

against Justices for something done by them in their judicial character. For what they do in their ministerial character without reference to their judicial authority, their power of justifying will depend in a great measure upon the legality of the proceedings upon which these acts are founded, see Weaver v. Price, 3 B. & Ad., 409. Thus, if the Justice exceeds the authority the law gives him in his ministerial acts, he thereby subjects himself to an action as if he commit a prisoner for re-examination for an unreasonable time, although he do so from no improper motive, he is liable to an action for false imprisonment. Davis v. Capper, 10 B. & C., 28. So if he commit a man for a supposed crime where there has in fact been no accusation against him, he is liable to an action of trespass for false imprisonment (Morgan v. Hughes, 2 T. R., 225); but if he commit him for a reasonable time, although the statute under which he is acting gives him no authority to do so, he is not liable to an action, for authority so to commit is given to Justices. 32 & 33 Vic., chap. 30, s. 47; Gelan v. Hall, 27 L. J. M.C., 78; Haylock v. Sparke, 4 E. & B., 471; Linford v. Fitzroy, 13 Q.B., 240.

When property or title is in question, the jurisdiction of Justices of the Peace to hear and determine in a summary manner is ousted, and when a bona fide claim is made the Justices have no jurisdiction and ought not to convict. R. v. Cridland, 7 E. & B., 853. It is not sufficient to take away their jurisdiction that the defendant bona fide believed that he had a right, it is for the Justices to decide, if the claim of right is fair and reasonable, and if they hold that it is not, they are bound to go on and decide the case (R v. Mussett, 26 L. T., N. S., 429), but if the matter is doubtful, it will be enough to stop their proceedings, and they cannot give themselves jurisdiction by a false decision. · R. v. Nunnely, E. B. & E., 852. But although as a rule Justices have no power to enquire into a case involving a title to real property yet, when the title is itself the question which they have to decide, their jurisdiction remains. Williams

v. Adams, 2 B. & S., 312.

A bona fide claim of right which cannot exist in law will not oust the Justice's jurisdiction. Hargreaves v. Diddams, L. R.