did embezzle in the county of Grey, while the magistrate was acting in and for the county of Oxford, and which did not show that the defendant had the embezzled property with him in the county of Oxford according to 32 & 33 Vic., c. 21, s. 121, or that he was, or resided, or was suspected of being or residing within the jurisdiction of such magistrate, according to 32 & 33 Vic., c. 30, s. 1. (b)

A commitment with hard labor, on a conviction warranting only imprisonment without hard labor, is bad. (c)

Defects in stating an offence in a warrant of commitment are not fatal, for there is not the same necessity for adherence to technical terms as in an indictment; and upon the return to a habeas corpus, it is the evidence, which is the foundation of the warrant, the court looks at, when the evidence is before them on a certiorari, rather than the warrant itself; and when a legal cause for imprisonment appears on the evidence, the ends of justice are not allowed to be defeated by a want of proper form in the warrant, but the court will rather see that the error is corrected and amend the warrant. (d)

Justices should not omit any part of a prescribed form of commitment, lest the part omitted be material, and render the warrant void. (dd)

When a justice follows the words used by the legislature, the court will hold that he intended them in the same sense; but if he uses other words, he ought to be more precise. (e) It is, however, the duty of the court to take care that, in all cases brought before them, justices shall have the full protection to which the law entitles them. (ƒ)

A warrant of commitment under 31 Vic., c. 16, signed by one qualified justice of the peace, and by an alderman who has not taken the necessary oath, is invalid to uphold the

(b) McGregor v. Scarlett, 7 U. C. P. R. 20.

(c) Reg. v. Yeomans. 6 U. C. P. R. 66.

(d) Re Anderson, 20 U. C. Q. B. 162; Rex v. Marks, 3 East, 57; Reg. v. Murray, 2 L. C. L. J. 87.

(dd) Re Beebe, 3 U. C. P. R. 373.

(e) Re Anderson, 11 U. C. C. P. 63.

f) Croukhite v. Sommerville, 3 U. C. Q. B. 131, per Robinson, C. J.

detention of a prisoner confined under it, though it might be a justification to a person acting in virtue of it, if an action were brought against him. (g)

The 32 & 33 Vic., c. 31, s. 86, provides that, after a case has been heard and determined, one justice may issue all warrants of distress or commitment thereon.

By s. 87, it shall not be necessary that the justice who acts before or after the hearing be the justice, or one of the justices, by whom the case is or was heard and determined. It is therefore not necessary that a warrant of distress or commitment should be signed by two justices, though two are required to convict; nor is it necessary that the justice who commits should also have heard and determined. (h)

The issuing of a warrant of commitment, under 32 & 33 Vic., c. 31, s. 75, is discretionary and not compulsory upon a justice of the peace. The court will, therefore, upon this ground, as well as upon the ground that the person sought to be committed has not been made a party to the application, refuse a mandamus to compel the issue of the warrant. (i)

The Con. Stats. U. C., c. 126, s. 6, now embodied in R. S. O., c. 73, s. 6, was passed expressly for the protection of justices of the peace; and when it is desired to compel a justice to issue a warrant of commitment against a person, proceedings should not be taken by mandamus, but a rule should be issued, under this clause, and the person to be affected should be made a party to the rule. (j)

Where the defendant, a justice of the peace, issued his warrant, under Con. Stats. Can., c. 103, s. 67, to commit the plaintiff for thirty days, for non-payment of the costs of an appeal to the Quarter Sessions, unless such sum and all costs of the distress and commitment, and conveying the party to gaol, should be sooner paid, but omitted to state in the warrant the amount of the costs of distress, commitment and

(g) Reg. v. Boyle, 4 U. C. P. R. 256.

(h) Re Crow, I U. C. L. J. N. S. 302.

(i) Re Delaney v. Macnab, 21 U. C. C. P. 563. (j) Re Delaney v. Macnab, 21 U. C. C. P. 563.

conveyance to gaol; it was held, that it was the duty of the justice to ascertain and state the amount of these costs; yet the omission to do so, though it might have occasioned the plaintiff's discharge, did not show either a want or excess of jurisdiction. The warrant, however, was irregular in omitting these particulars, and there was consequently an irregular exercise of jurisdiction. (k)

Where an Act, passed by the Provincial Legislature, was subsequently disallowed by Her Majesty, but, while it was in force, the plaintiff had been convicted under it by the defendants, as justices of the peace, and directed to pay a fine, to be levied according to the Act, and, the fine not having been paid, a warrant was properly issued by the defendants for his arrest and imprisonment, which, however, was not executed by the officer to whom it was directed until after the disallowance of the Act was published in the Gazette, and from its publication only the Act ceased: it was held, that the defendants were justified in making the conviction and issuing the warrant, and could not be held liable by reason of the warrant being executed after the operation of the Act had been determined. (7)

The warrant of commitment should show before whom the conviction was had. It lies on the party alleging the sufficiency of the conviction to sustain the commitment, to produce the conviction. (m)

Where a prisoner is in custody of a gaoler, under several warrants, the magistrate cannot withdraw them, or any of them, from the gaoler's hands, because they are for his protection; but the gaoler ought to know which is the operative warrant, otherwise he may not know whether he is to discharge the prisoner from custody at the end of the time specified in one or in the other. (n)

(k) Dickson v. Crabb, 24 U. C. Q. B. 494.

(1) Clapp v. Lawrason, 6 U. C. Q. B. O. S. 319; see 31 Vic., c. 1, s. 7, thirty-fifthly, sixthly and seventhly.

(m) Re Crow, 1 U. C. L. J. N. S. 302; 1 L. C. G. 189.

(n) Re McKinnon, 2 U. C. L. J. N. S. 329.

A warrant ought to set forth the day and year wherein it was made, and it is safe, but perhaps not necessary, in the body of the warrant, to show the place where it is made, yet it seems necessary to set forth the county in the margin, at least, if it be not set forth in the body.

In strictness, it is not indispensable that the authority of the magistrate should be shown on the face of the warrant, for the omission may be shown by averment and parol evidence, A commitment must be in writing, under the hand and seal of the person by whom it is made, expressing his office or authority, and the time and place at which it is made, and must be directed to the gaoler or keeper of the prison. (o)

A final commitment, for want of sureties to keep the peace, must be in writing. Where, however, a person having been brought up before a justice on a charge of threatened assault, was ordered by the justice to find sureties to keep the peace, and he offered bail, who were rejected as not being householders, and, being thus prevented from immediately obtaining bail, remained in custody of a police constable for three hours, during which time the justice frequently visited him to ascertain if he had found bail, and at night he was taken to the gaol, remaining there until the following morning, when he was discharged on bail being procured; it was held that this was not a final commitment for want of sureties, and that, consequently, it did not require a written warrant, for the detention was no longer than might be reasonably necessary for ascertaining whether the party could find some one who would become his surety. (p) The time allowed for this purpose must always depend on the circuinstances of each case. (9)

A commitment in default of sureties to keep the peace should show the date on which the words were alleged to

(0) Reg. v. Reno, 4 U. C. P. R. 292, per Draper, C. J.

(p) Lynden v. King, 6 U. C Q. B. Ö. S. 566.

(g) Ibid.

have been spoken, and contain a statement to the effect that complainant is apprehensive of bodily fear. (r)

When articles of the peace have been exhibited in open court against a person, the court will direct that he do stand committed until security to keep the peace be given. (s)

Where a prisoner is committed to be held until discharged by due course of law, the warrant continues in force until the prisoner is discharged or sent to the penitentiary. It is sufficient, therefore, if at the circuit the judge remands verbally a prisoner into the custody of the proper officer in court. (t) Where, in the course of a civil action, the judge is of opinion that forgery or perjury has been committed, he will, as a matter of duty, order that the defendant be prosecuted for these crimes. (u) The 41 Vic., c. 19, makes provision for the discharge in certain cases of persons who have been confined for the period of two weeks in default of sureties for the peace.

Sometimes, in cases of indictable offences, an inquisition is taken by a coroner, and the prisoner is committed for trial on the verdict of the coroner's jury. The finding of a coroner's inquest is equivalent to the finding of a grand jury, and a defendant may be prosecuted for murder or manslaughter upon an inquisition, which is the record of the finding of a jury sworn to inquire into the death of the deceased, super visum corporis. Such an inquisition amounts to an indictment. (v)

And where, on an indictment for manslaughter, the grand jury had found "no bill," it was held that the Crown had the right to have the prisoner arraigned and tried on the finding of the coroner's jury. (w)

A coroner's duty is judicial, and he can only take an

(r) Re Ross, 3 U. C. P. R. 301.

(s) Reg. v. Vendette, 8 L. C. J. 284.

(t) Reg. v. Mulholland, 4 Pugsley & B. 476.

(u) Content v. Lamontagne, 17 L. C. J. 319.

(v) Reg. v. Ingham, 5 B. & S. 257; 33 L. J. (Q. B.) 183; Arch. Cr. Pldg. 116.

(w) Reg. v. Tremblay, 18 L. C. J. 158.