person lawfully assisting such ministerial officer or gaoler, is justified in executing such sentence.

16. Execution of process.-Every ministerial officer of any court duly authorized to execute any lawful process of such court, whether of a civil or criminal nature, and every person lawfully assisting him, is justified in executing the same; and every gaoler who is required under such process to receive and detain any person is justified in receiving and detaining him.

17. Execution of warrants.-Every one duly authorized to execute a lawful warrant issued by any court or justice of the peace or other person having jurisdiction to issue such warrant, and every person lawfully assisting him, is justified in executing such warrant; and every gaoler who is required under such warrant to receive and detain any person is justified in receiving and retaining him.

18. Execution of erroneous sentence or process.-If a sentence is passed or process issued by a court having jurisdiction under any circumstances to pass such a sentence or issue such process, or if a warrant is issued by a court or person having jurisdiction under any circumstances to issue such a warrant, the sentence passed or process or warant issued shall be sufficient to justify the officer or person authorized to execute the same, and every gaoler and person lawfully assisting in executing or carrying out such sentence process or warrant, although the court passing the sentence or issuing the process had not in the particular case authority to pass the sentence or to issue the process, or although the court, justice or other person in the particular case had no jurisdiction to issue, or exceeded its or his jurisdiction in issuing the warrant, or was, at the time when such sentence was passed or process or warrant issued, out of the district in or for which such court, justice or person was entitled to act.

In their comments upon sections of the English Draft Code of the same import as the foregoing articles 15 to 18, the Royal Commissioners said, "The result "of the authorities justifies us in saying that wherever a ministerial officer, who "is bound to obey the orders of a court or magistrate, (as, for instance, in

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executing a sentence or effecting an arrest under warrant), and is punishable by indictment for disobedience, merely obeys the order which he has received, "he is justified, if that order was within the jurisdiction of the person giving it. "And we think that the authorities shew that a ministerial officer obeying an "order of a court or the warrant of a magistrate, is justified if the order or "warrant was one which the court or magistrate could under any circumstances

lawfully issue, though the order or warrant was in fact obtained improperly, "or though there was a defect of jurisdiction in the particular case which might "make the magistrate issuing the warrant civilly responsible; on the plain

principle that the ministerial officer is not bound to enquire what were the grounds on which the order or warrant was issued and is not to blame for acting on the supposition that the court or magistrate had jurisdiction."

19. Sentence or process without jurisdiction.—Every officer, gaoler or person executing any sentence, process or warrant, and every person lawfully assisting such officer, gaoler or person shall be protected from criminal responsability if he acts in good faith under the belief that the sentence or process was that of a court having juris

diction or that the warrant was that of a court, justice of the peace or other person having authority to issue warrants, and if it be proved that the person passing the sentence or issuing the process acted as such a court under colour of having some appointment or commission lawfully authorizing him to act as such a court, or that the person issuing the warrant acted as a justice of the peace or other person having such authority, although in fact such appointement or commission did not exist or had expired, or although in fact the court or the person passing the sentence or issuing the process was not the court or the person authorized by the commission to act, or the person issuing the warrant was not duly authorized so to act.

It will be seen that article 18 protects an officer who executes the sentence or warrant of a court or person having jurisdiction, generally speaking, but acting, in the particular case in hand, either without or in excess of such jurisdiction or outside of his or its district; and that article 19 protects an officer in executing in good faith a sentence or warrant which he believes has been passed or issued by a duly authorised court or person, if it be proved that it was passed or issued by such court or person under some color of lawful authority.

In commenting upon the latter clause the English Commissioners said, Though cases of this sort have rarely arisen in practice, we think we are "justitied by the opinion of Lord Hale (1 Hale, 498), in saying that the order of "a court, having a color of jurisdiction, though acting erroneously is enough to justify the ministerial officer."

**

20. Arresting the wrong person.-Every one duly authorized to excute a warrant to arrest who thereupon arrests a person, believing in good faith and on reasonable and probable grounds that he is the person named in the warrant, shall be protected from criminal responsibility to the same extent and subject to the same provision as if the person arrested had been the person named in the warrant.

2. Every one called on to assist the person making such arrest, and believing that the person in whose arrest he is called on to assist is the person for whose arrest the warrant is issued, and every gaoler who is required to receive and detain such person, shall be protected to the same extent and subject to the same provisions as if the arrested person had been the person named in the warrant.

This article makes an important change. By the common law, if an officer having a warrant for one person, arrested another, the arrest was illegal and unjustifiable. For instance, in one case a magistrate issued a warrant upon a criminal charge against a man who was described in the warrant by the name of John H. Under this warrant the constable arrested Richard H.; and, although the man so arrested was in reality the person against whom the warrant was intended, and was pointed out, as such, to the constable, by the prosecutor who supposed the man's name to be John H., Mr. Justice Coltman directed the jury, and his ruling was afterwards upheld, that a person could not be lawfully taken under warrant describing him by a name that did not belong to him, unless he had assumed or called himself by the wrong name. (1) Of course, as a constable could always apprehend, without warrant, any one suspected on reasonable grounds of having committed a felony he was able to justify to be illegal. (2) an arrest, on that ground, although he had a warrant which happened

(1) Hoye v. Bush, 1 M. & Gr. 775, 780; 1 Russ. Cr. 5th Ed. 738; Rex v. Hood,

R. & M. C. C. R. 281.

(2) Hoye v. Bush, I M. & Gr. 775, 780; 1 Russ. Cr. 710.

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The remarks of the English Commissioners in support of a similar clause in their draft code are as follows: "This is new. As an officer arresting for felony without warrant is by the common law justified even if he, by mistake, arrests the wrong person, we think that the one who arrests any person with a "warrant for any offence shall at least be protected from criminal responsibility. "The right of action is not affected by it.'

21. Irregular warrant or process. Every one acting under a warrant or process which is bad in law on account of some defect in substance or in form apparent on the face of it, if he in good faith and without culpable ignorance and negligence believes that the warrant or process is good in law, shall be protected from criminal responsibility to the same extent and subject to the same provisions as if the warrant or process were good in law, and ignorance of the law shall in such case be an excuse (1) Provided, that it shall be a question of law whether the facts of which there is evidence may or may not constitute culpable ignorance or negligence in his so believing the warrant or process to be good in law.

(4

In reference to this clause in the English Draft Code, the Commissioners said, It is at least doubtful on the existing authorities whether a person honestly "acting under a bad warrant, defective on the face of it, has any defence, "though doing only what would have been his duty if the warrant was good. "The section as framed protects him. The proviso is new, but seems to be reasonable. It does not touch the question of civil responsibility."

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ARRESTS WITHOUT WARRANT.

22. Arrest, by peace officer, without warrant, of suspected offendcr.— Every peace officer who, on reasonable and probable grounds, believes that an offence for which the offender may be arrested without warrant has been committed, whether it has been committed or not, and who, on reasonable and probable grounds, believes that any person has committed that offence, is justified in arresting such person without warrant, whether such person is guilty or not.

23. Persons assisting peace officer to arrest suspect.—Every one called upon to assist a peace officer in the arrest of a person suspected of having committed such offence as last aforesaid is justified in assisting, if he knows that the person calling on him for assistance is a peace officer, and does not know that there is no reasonable grounds for the suspicion.

As the common law justified a constable in making an arrest without warrant, upon a reasonable ground of suspicion of a felony having been committed, although no felony had in fact been committed, (2) it was, in so far as felonies were concerned, identical with the law as now made applicable by article 22 to the particular offences (enumerated in article 552), for which offenders may be arrested without warrant.

Of course, the grounds of belief upon which a peace officer acts under this provision of the law must, as shewn by all the authorities in point, be such as

(1) See article 14, ante p 14.

(2) Beckwith v. Philby, 6 B. & C. 635; Davies v. Russell, 5 Bing. 354; Hogg v. Ward, 27 L. J. Ex. 443; 2 Hale 79-93; 1 Russ. Cr. 5 Ed. 721; Cowles v. Dunbar, M. & M. 37; 2 Oke's Magist. Syn. 913.

would lead any reasonable person, acting without bias or prejudice, to believe the arrested party guilty of the offence. (1)

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During the discussion of the clauses of the Code in Committee of the House of Commons, Sir John Thompson in referring to article 22 said, “This section is to provide for the exoneration of the officer where an offence has not been committed. It is intended to apply to a class of cases in which an offence has •been attempted but not completed. As, for example, the well-known case, which has been decided both ways in England, of a man arrested for picking "a pocket, when it turned out there was nothing in the pocket. (2) In that case, "without this principle of law, the officer would be a trespasser. Again, an "officer has reason to believe from what he hears and sees that a rape has been "committed. It may turn out that the offender has only been guilty of an "indecent assault, that the offence was not completed. Under this section the officer would be exonerated. Again, an officer going along a highway finds a homicide has been committed, and he makes an arrest. It may turn out that

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the homicide was excusable. In all these cases the officer has acted promptly "on information that would satisfy any reasonable man, and he does so at the

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peril of justification which he can only obtain when a judge decides that he

has had reasonable and probable grounds on which to make the arrest.”

24. Arrest by any person withont warrant.-Every one is justified in arresting without warrant any person whom he finds committing any offence for which the offender may be arrested without warrant, or may be arrested when found committing.

25. If any offence for which the offender may be arrested without warrant has been committed, any one who, on reasonable and probable grounds, believes that any person is guilty of that offence is justified in arresting him without warrant, whether such person is guilty or not.

26. Every one is protected from criminal responsibility for arresting without warrant any person whom he, on reasonable and probable grounds, believes he finds committing by night any offence for which the offender may be arrested without warrant.

The offences for which an offender found committing any of them may be arrested without warrant are enumerated in Article 552, sub-section 1; and, alphabetically arranged, they are as follows:

Assaults on the Queen, (Article 71).

Administering, taking or procuring unlawful oaths, (Articles 120, 121).

Abduction, (Article 281),

Arson, setting fires, etc. (Articles 482, 483, 484, 485).

Attempt to damage by explosives, (Article 488).

Being at large while under sentence of imprisonment, (Article 159).
Breaking prison, (Article 161).

Bringing stolen property into Canada, (Article 355).

Breaking place of worship, (Articles 408, 409).

Burglary, housebreaking, shopbreaking, etc. (Articles 410, 411, 412, 413, 414). Being found in a dwelling by night, (Article 415).

Being found armed with intent to break a dwellinghouse, (Article 416).

(1) Allen v. Wright, 8 C. & P. 522; Leete v. Hart, 37 L. J., C. P. 157 ; L. R.,

3 C. P. 322; Greenwood & M's Magist. Guide, 2nd Ed. 117.

(2) See Reg. v. Collins, L. & C. 471; and Reg. v. Brown, 24 Q. B. D. 357, cited under article 64 post p. 140.

Being disguised or in possession of housebreaking instruments, (Article 417). Counterfeiting seals; Counterfeiting stamps, (Articles 425, 435).

Counterfeiting gold and silver coin; Making coining instruments; Uttering counterfeit current coin, (Articles 462, 466, 477).

Clipping current coin; Possessing clippings, (Articles 468, 470).
Counterfeiting copper coin, (Article 472).

Counterfeiting foreign gold and silver coin, (Article 473).
Defiling children, (Article 269).

Demanding by threatening letters, (Article 403).
Demanding with intent to steal, (Article 404).

Endangering persons on railways, (Articles 250, 251).
Escapes, (Articles 163, 164).

Extortion by threats, (Article 405).

Forcibly compelling execution of documents, (Article 402).

Forgery; Uttering forged documents; Possessing forged bank notes; Using probate obtained by forgery or perjury; Making, having or using forgery instruments, (Articles 423, 424, 430, 432, 434).

Falsifying registers, (Article 436).

Inciting to mutiny, (Article 72).

Injuring or attempting to injure by explosives, (Articles 247, 248).

Injuring electric telegraph, etc. (Article 492).

Interfering with marine signals, (Article 495).

Murder; Attempt to murder; Accessory to murder, (Articles 231, 232, 235).

Manslaughter, (Article 236).

Mischief on railways, etc. (Articles 489, 498, 499).

Piracy; Piratical Acts; Piracy with violence, (Articles 127, 128, 129).

Personation, (Article 458).

Riot Act, Offences respecting reading of, (Article 83).
Riotous destruction; Riotous damage, (Articles 85, 86).
Rape; Attempt to commit rape, (Articles 267, 268).
Receiving stolen property, (Article 314).

Robbery; Aggravated robbery; Assault with intent to rob, (Articles 398, 399, 400).

Stopping the mail, (Article 401).

Suicide, Attempt at, (Article 238).

Stupefying in order to commit indictable offence, (Article 244).

Treason; Accessory; Treasonable offences, (Articles 65, 67, 68, 69, 70).

Theft by agent, etc. (Article 320).

Unnatural offence, (Article 174).

Wreck, preventing escape from, (Article 254).

Wrecking; Attempt to wreck, (Articles 493, 494).
Wounding, (Articles 241, 242).

"FOUND COMMITTING" has been held to mean either seeing the party actually committing the offence or pursuing him immediately or continuously after he has been seen committing it; so that to justify the arrest, without warrant, of an offender on the ground of his being found committing an offence, he must be taken in the very act of committing it, or there must be such fresh and continuous pursuit of him from his being seen and surprised in the act until his actual capture that the finding him in the act and his subsequent pursuit and capture may be considered to constitute one transaction. (1) Immediately means immediately after the commission of the offence, and not immediately after the discovery of its commission. Pursuit after an interval of three hours would not be a fresh pursuit. (2) It seems that if the offender be seen in the commission of the offence by one person he may be apprehended by another who did not see him committing it. (3)

(1) R. v. Curran, 3 C. & P. 397; 1 Russ. Cr., 5 Ed. 715; Hanway v. Boultbee, 1 M. & R. 15; Clarke's Magist. Man. 42:

(2) Downing v. Capel, L. R. 2 C. P. 461; Leete v. Hart, 37 L. J., C. P. 157. (3) Rex v. Howarth, R. & M., C. C. R. 207; 1 Russ. Cr. 716 note (g).