In England it has been held that an enactment similar to this precluded the issuing of a certiorari for the purpose of bringing up a case stated by Justices in Quarter Sessions for the opinion of the court. R. v. Chantrell, L. R., 10 Q. B., 587.

This section does not prevent the issue of a certiorari when the notice of appeal to the sessions is void, and the appeal is dismissed. For instance, if the notice is for the next sittings of the court, where the conviction is within twelve days of such sittings. In such case it cannot be said that there is an appeal, or that the conviction is "affirmed or affirmed and amended in appeal" under the statute. R. v. Caswell, 33 Q. B. (Ont.), 303.

This section, it would seem,does not prevent the issue of the writ at the suit of the prosecutor, R. v. Allen, 15 East, 333; nor where there is a plain excess of jurisdiction by the Justice. Hespeler and Shaw, 16 Q. B. (Ont.), 104. So a certiorari would lie where there is an absence of jurisdiction in the convicting Justice, or à conviction on its face defective in substance. Re Watts, 5 P. R. (Ont.), 267; see also Re Holland, 37 Q. B. (Ont.), 214 (and cases cited), where an opinion was expressed that the (Ont.) 36 Vic., chap. 43, s. 35, did not take away the right to a certiorari when the conviction was entirely without jurisdiction.

But subject to these limitations, the section not only applies to cases where an adjudication has taken place, but even where the appeal has gone off on a preliminary objection to the right of entering it, and consequently a certiorari will not be granted by the Superior Court, even when the appeal to the sessions has not been decided on the merits. R. v. Firmin, 6 P. R. (Ont.), 67.

72. Every Justice of the Peace before whom any person shall be summarily convicted of any offence by virtue of this Act, shall transmit the conviction to the Court of General or Quarter Sessions or to the Court discharging the functions of the Court of General or Quarter Sessions as aforesaid, or to any other Court or Judge to which the right of appeal is given by section sixtyfive of this Act, as the case may be, in and for the District, County or place wherein the offence has been committed, before the time when an appeal from such conviction could be heard, there to be kept by the proper officer among the records of the Court; and if such conviction has been appealed against, and a deposit of money made, shall return the deposit into the said Court and upon any indictment or information against any person for a subsequent

offence, a copy of such conviction, certified by the proper officer of the Court, or proved to be a true copy, shall be sufficient evidence to prove a conviction for the former offence, and the conviction shall be presumed to have been unappealed against, until the contrary be shown.

Although this section does not mention orders, but appears to relate to convictions only, it is conceived the Justice should deal with orders in the same manner as convictions. Kerr's Acts, 228.

Where a party is sought to be convicted as for a second offence, he must be charged in the information with the commission of a second offence, and it must also be proved that at the time of the information he had been previously convicted. R. v. Justices, &c., 2 Pugsley, 485.

73. In all cases where it appears by the conviction, that the defendant has appeared and pleaded, and the merits have been tried, and that the defendant has not appealed against the conviction where an appeal is allowed, or if appealed against, the conviction has been affirmed, such conviction shall not afterwards be set aside or vacated in consequence of any defect of form whatever, but the construction shall be such a fair and liberal construction as will be agreeable to the justice of the case.

Where the conviction shews that the defendant has appeared and pleaded, the construction must be such a fair and liberal construction as will be agreeable to the justice of the case. R. v. Caswell, 33 Q. B. (Ont.), 303, 310.

74. If upon any Appeal the Court trying the Appeal orders either party to pay costs, the order shall direct the costs to be paid to the Clerk of the Peace or other proper officer of the Court, to be by him paid over to the party entitled to the same, and shall state within what time the costs shall be paid.

Where the order of sessions, by mistake, ordered the costs to be paid to the party instead of to the clerk of the peace, it was holden that it did not affect the validity of the order, but was merely an erroneous procedure, and upon application for a certiorari to remove it, in order to its being quashed, on the ground that the Justices had no jurisdiction to make it (the certiorari being taken away), the court refused it. R. v. Binney, 22 L. J., M. C., 127.

75. If the same be not paid within the time so limited, and the party ordered to pay the same has not been bound by any recognizance conditioned to

pay such costs, the Clerk of the Peace or his Deputy, on application of the party entitled to the costs, or of any person on his behalf, and on payment of any fee to which he may be entitled, shall grant to the party so applying, a Certificate [R] that the costs have not been paid, and upon production of the Certificate to any Justice or Justices of the Peace for the same Territorial Division, he or they may enforce 'the payment of the costs by Warrant of Distress [S 1] in manner aforesaid, and in default of distress he or they may commit [S 2] the party against whom the Warrant has issued in manner herein before mentioned, for any time not exceeding two months, unless the amount of the costs and all costs and charges of the distress and also the costs of the commitment and conveying of the party to prison, if the Justice or Justices think fit so to order (the amount thereof being ascertained and stated in the commitment), be sooner paid.

The issuing of a warrant of commitment under this section is discretionary, not compulsory, upon a Justice of the Peace, and the court will therefore, on this ground, as well as upon the ground that the party sought to be committed has not been made a party to the application, refuse a mandamus against the Justice to compel the issue of the warrant. The proper course, where Justices refuse to act according to the duties of their office, is to proceed under the Rev. Stat. (Ont.), chap. 73, s. 6. Re Delaney v. Mac Nab, 21 C. P. (Ont.), 563.

A Justice of the Peace who convicts, and issues a warrant regularly by virtue of a statute then in force, cannot be held liable by reason of the execution of the Warrant after the Act is disallowed by Her Majesty and has ceased to be in force. Clapp v. Lawrason, 6, O. S. 319. The statute law would seem to protect a Justice in a case of this kind. See 31 Vic., chap. 1, s. 7, thirtyfifthly, sixthly and seventhly.

76. Every Justice of the Peace shall make a return in writing under his hand of all convictions made by him to the next ensuing General or Quarter Sessions of the Peace, or to the next term or sitting of any Court having jurisdiction in appeal as hereinbefore provided, at which, in either case, the appeal can be heard, for the District or County or place in which such conviction takes place, and of the receipt and application by him of the moneys received from the Defendants (and in case of any convictions before two or more Justices, such Justices being present and joining therein, shall make a joint Return thereof,) in the following form :

RETURN of Convictions made by me (or us, as the case may be) in the

month of

A. B. and C. D., Convicting Justices (as the case may be).

The returns required by this section of the Act shall be made by every Justice of the Peace, quarterly, on or before the second Tuesday in each of the months of March, June, September and December, in each year, to the Clerk of the Peace or other proper officer for receiving the same, under the said Act, notwithstanding the General or Quarter Sessions of the Peace of the county, in which such conviction was had, may not be held in the months or at the times aforesaid, and every such return shall include all convictions and other matters mentioned in the said section, seventysix, and not included in some previous return, and shall, by the Clerk of the Peace or other proper officer receiving it, be fixed and published, and a copy thereof shall be transmitted to the

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Minister of Finance in the manner required by the eightieth and eighty-first sections of the 'said Act, and the provisions of the seventy-eighth section of the said Act, and the penalties thereby imposed, and all the other provisions of the said Act shall hereafter apply to the returns hereby required, and to any offence or neglect committed with respect to the making thereof, as if the periods hereby appointed for making the said returns had been mentioned in the said Act instead of the periods thereby appointed for the same. 33 Vic., chap. 27, s. 3.

In Prince Edward Island, the returns are to be made to the clerk of the court of assize for the county, at and up to the twelfth day next before the sitting of the said court next after such convictions respectively, and shall be dealt with by the said clerk of assize in the manner provided by the eightieth and eighty-first sections of this Act. See 40 Vic., chap. 4, s. 7.

The Clerk of the Peace is the clerk of all magistrates, and it is no objection that a conviction is not in the magistrate's office, but in that of the Clerk of the Peace. R. v. Yeomans, 6 P. R. (Ont.), 66.

The fact of the conviction being appealed from, does not relieve the Justices from the penalty on non-return of the conviction, under the Rev. Stat. (Ont.), chap. 76. Murphy q. t. v. Harvey, 9 C. P. (Ont.), 528; see also Kelly q. t. v. Cowan, 18 Q. B. (Ont.),

104.

And it seems that notice of appeal against the conviction or subsequent notice of abandonment thereof, given by the defendant, does not affect the duty of the Justice in making the return ̧ McLennan q. t. v. McIntyre, 12 C. P. (Ont.), 546.

So the question as to the conviction being right or wrong is immaterial, and where a magistrate has actually convicted and imposed a fine, it is no defence that he had no jurisdiction to convict. Bagley q. t. v. Curtis, 15 C. P. (Ont.), 366; O'Reilly q. t. v. Allan, 11 Q. B. (Ont.), 411.

The illegality of a conviction is no excuse for not returning it, but if on that account the fine has not been levied, a return should be made explaining the circumstances (O'Reilly q. t. v. Allan, 11 Q. B. (Ont.), 411); see, however, Spillane v. Wilton, 4 C. P. (Ont.),