MAGISTRATES' MANUAL.

INTRODUCTORY CHAPTER.

JUSTICES of the Peace may be divided into two classes, namely, those appointed by Commission, and those who are such for the time being merely by virtue of holding some other office. Thus, in Ontario, the head of every council, the police magistrate of every city and town, and the reeve of every town, township, and incorporated village, shall, ex officio, be Justices of the Peace for the whole county or union of counties in which their respective municipalities lie; and aldermen in cities shall be Justices of the Peace for such cities. Rev. Stat. (Ont.), chaps. 72, s. 4, and 174, s. 395; see also R. v. Mosier, 4 P.R. (Ont.) 64.

Every police magistrate shall also be ex officio a Justice of the Peace for the city or town for which he holds office. Ib. chap. 72, s. 4.

The power, office, and duty of a Justice of the Peace depend on his Commission, and on the several statutes which have created objects of his jurisdiction. His Commission first empowers him simply to conserve the peace, and thereby gives him all the power of ancient conservators at the common law in suppressing riots and affrays, in taking securities for the peace, to commit felons and other inferior criminals. It also empowers any two or more of them to hear and determine felonies and misdemeanors, which is the ground of their jurisdiction at sessions. When a statute enables two Justices to do an act, the Justices sitting in quarter sessions may do the same act; for they are not the less Justices of the Peace because they are sitting in court in that capacity. Fraser v. Dickson, 5 Q B. (Ont.), 233.

The mere appointment as Justice will not authorize the person

appointed to act, until he has duly qualified. But if any person act as a Justice of the Peace without being qualified, his acts are not invalid; his name being in the Commission, and he being therefore a Justice of the Peace (Margate, P. v. Hannan, 3 B. & A., 266); but he is liable to a penalty of one hundred dollars. Rev. Stat. (Ont.), chap. 71, s. 12.

Under the Con. Stat. Can., chap. 100, s. 3; Rev. Stat. (Ont.), chap. 71, s. 7, a Justice must have an interest in land in his actual possession to the value of $1,200. But this statute does not require him to have a legal estate in the property; it is sufficient if the land, though mortgaged in fee, exceeds by $1,200 the amount of the mortgage money. Fraser q.t., v. McKenzie, 28 Q. B. (Ont.),

255.

The object of the statute, as to the qualification of Justices of the Peace, was twofold: first, that the Justices should be of the most sufficient persons; secondly, that they should be worth in unencumbered real estate to the value of $1,200, at least, to satisfy any one who should be wronged by their proceedings. In an action against defendant for acting as a Justice of the Peace without sufficient property qualification, where the evidence offered by the plaintiff as to the value of the land and premises on which defendant qualified, was vague, speculative, and inconclusive, one of the witnesses, in fact, having afterwards recalled his testimony as to the value of a portion of the premises, and placed a higher estimate upon it; while the evidence tendered by the defendant was positive, and based upon tangible data, it was held that the jury were rightly directed, "that they ought to be fully satisfied as to the value of the defendant's property before finding for the plaintiff, that they should not weigh the matter in scales too nicely balanced, and that any reasonable doubt should be in favour of the defendant." Squier, q.t. v. Wilson, 15 C. P. (Ont.), 284; 1 U. C. L. J., N.S., 152.

Prior to the passing of the 29 Vic. chap. 12, the oath of qualification by a Justice of the Peace had to be taken before some Justice of the Peace of the county for which he intended to act. It could not be administered by the Clerk of the Peace for such county under the Writ of Dedimus Potestatem, issued with the

Commission of the Peace. Herbert, q.t. v. Dowswell, 24 Q.B. (Ont.), 427.

The 29 Vic. chap.12, recites that certain Justices had theretofore, in error, taken and subscribed the oath of qualification before a Clerk of the Peace of the district or county, or before a Commissioner authorized, by Dedimus Potestatem, to administer oaths and declarations, and it confirms such oaths so taken, and indemnifies the Justice from all penalties and forfeitures in respect thereof. The Act also prescribes before whom oaths shall hereafter be taken.

The oath of qualification is as follows:

“I, A.B., do swear that I, truly and bona fide, have to and for my own proper use and benefit, such an estate as qualifies me to act as a Justice of the Peace for the county (or as the case may be) of according to the true intent and meaning of the Act respecting the qualification and appointment of Justices of the Peace to wit (nature of such estate, whether land, and if land designating), and that the same is lying and being (or issuing out of lands, tenements, and hereditaments situate), within the Township (or in the several Townships, or as the case may be) of

A certificate of such oath is then to be deposited in the office of the Clerk of the Peace for the County. Rev. Stat. (Ont.), chap. 71, s. 9.

A certificate purporting to be under the hand and seal of the Clerk of the Peace, that he did not find in his office any qualification filed by the Magistrate, is not sufficient evidence that the Magistrate is not properly qualified to take a recognizance. R. v. White, 21 C. P. (Ont.) 354.

A person assuming to act as a Justice of the Peace, not under any commission as a Justice, but as an Alderman of a city, is not as such Alderman legally qualified to act as a Justice until he has taken the oath of qualification required by the Municipal Acts Rev. Stat. (Ont.) chap. 174 (R. v. Boyle, 4 C. L. J., N. S. 256; 4 P. R. (Ont.) 256).

But having taken such oath he is not required to have any ad

ditional property qualification or to take any further oath to enable him to act as a Justice of the Peace. Rev. Stat. (Ont.) chap. 174, s. 397. As to the qualification of Mayors, Reeves, Aldermen, &c., see Rev. Stat. (Ont.) chap. 174, s. 70.

No Attorney or Solicitor in any Court whatever shall be a Justice of the Peace during the time he continues to practise as an Attorney and Solicitor. Rev. Stat. (Ont.) chap. 71, s. 5. No person having, using or exercising the office of Sheriff or Coroner, shall be competent or qualified to be a Justice of the Peace. Ib. s. 6.

The Statute 1st Mary, sess. 2, chap. 8, s. 2, which provides that no person exercising the office of Sheriff of any county shall use or exercise the office of Justice of the Peace by force of any commission or otherwise in any county where he shall be Sheriff, during the time of his exercising the office of Sheriff, has not been affected by any subsequent addition to the duties of Justices of the Peace, and continues to disqualify a Justice from acting as such while he holds the office of Sheriff. Ex parte Colville, L. R. 1 Q. B. D. 133.

The acts of a Justice of the Peace are either ministerial or judicial. He acts ministerially in preserving the peace, receiving complaints against persons charged with indictable offences, issuing summonses or warrants thereon, examining the informant and his witnesses, binding over the parties to prosecute and give evidence, bailing the supposed offender, or committing him for trial. He acts judicially in all cases of summary jurisdiction. His conviction, drawn up in due form and unappealed against, is conclusive, and cannot be disputed by action, though if he act illegally, maliciously or corruptly, he is punishable by information or indictment as we shall hereafter see.

All offences cognizable by a Justice of the Peace, are divided into two general classes, namely, firstly, those which the law requires to be sent to a higher tribunal for trial, wherein he acts ministerially, and secondly, those over which the Justice has summary jurisdiction, wherein he acts judicially. (MacNabb, 4, 5.)

It is necessary that the number of Justices required by the Act or law on which the information or complaint is framed, should

hear and decide the case, but in the absence of any provision in the Act or law on which the proceedings are founded, requiring two or more Justices, then one Justice may hear, try, and determine the case. 32 & 33 Vic., chap. 31, ss. 27 & 28.

In the case of a person charged with felony one Justice cannot admit to bail. 32 & 33 Vic., chap. 30, s. 52.

Under the Commission of the Peace, Justices have a general power for conservation of the peace and the apprehension and commitment of felons. The commission gives them jurisdiction in all indictable offences to discharge, admit to bail, or commit for trial. Connors v. Darling, 23 Q. B. (Ont.) 543.

The maxim omnia præsumuntur rite esse actu does not apply to give jurisdiction to Justices or other inferior tribunals. R. v. Atkinson, 17 C. P. (Ont.) 302. On this principle in a prosecution for a penalty under a by-law of a corporation, the by-law must be proved, for it must appear on the face of the proceeding. that there is jurisdiction. R. v. Wartman, 4 Allen, 73; R. v. All Saints, 7 B. & C. 785.

Before proceeding in any matter the Justice should consider 1st, whether he has jurisdiction-this is given by his commission, or by the particular statute under which the proceedings are taken; 2nd, If more than one, or any particular description of Justice is required. In indictable cases one Justice may do everything required to be done out of sessions, except admit to bail. (See section 52 of 32 & 33 Vic., chap. 30.) In summary proceedings one Justice may receive the information and issue the summons, or warrant and process for enforcing judgment, even when the statute requires the case to be heard by more than one Justice. (32 & 33, Vic., chap. 31, s. 85.) 3rd, Whether a time is limited for any of the proceedings. In indictable cases, with very few exceptions, there is none. In summary cases the information must be laid within three months. (See 32 & 33 Vic., chap. 31, s. 26.)

In general the authority of Justices is limited to the district for which they are appointed, and they can only exercise their powers while they are themselves within that district, for their authority is local rather than personal, but it seems that acts purely