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. (Code. Art. 18.)

In their comments upon sections of the English Draft Code of the same import as the foregoing Articles 16 to 18, the Royal Commissioners say: "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 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 slow 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."

When Execution of Sentence or Process Without Jurisdiction is Protected. —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 responsibility, if he acts in good faith, under the belief that the sentence or process was that of a court having jurisdiction, 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 color 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 appointment 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. (Code. Art. 19.)

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 such court or person under some color of lawful authority.

In commenting upon the latter clause the English commissioners sayThough cases of this sort have rarely arisen in practice, we think we are justified 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."

Arresting the Wrong Person-Every one duly authorized to execute 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.

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. (Code. Art. 20.)

This Article of the Code made 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 a 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 an arrest on that ground, although he had a warrant which happened to be illegal. (2)

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."

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: 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. (Code, Art. 21.)

(1) Hoye v. Bush, 1 M. & Gr. 775, 780. 1 Russ. Cr., 5th Ed., 738; R. v. Hood, R. & M. C. C. R. 281.

In reference to this clause the English commissioners say: "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."

Proceedings When the Offender is not Within the Justice's Jurisdiction.-If the person against whom any warrant has been issued cannot be found within the jurisdiction of the justice by whom the same was issued, but is or is suspected to be in any other part of Canada, any justice within whose jurisdiction he is or is suspected to be, upon proof being made on oath or affirmation of the handwriting of the justice who issued the same, shall make an endorsement on the warrant, signed with his name, authorizing the execution thereof within his jurisdiction ; and such endorsement shall be sufficient authority to the person bringing such warrant, and to all other persons to whom the same was originally directed, and also to all constables of the territorial. division where the warrant has been so endorsed, to execute the same therein and to carry the person against whom the warrant issued, when apprehended, before the justice who issued the warrant, or before some other justices for the same territorial division. Such endorsement may be in the FORM HI IN SCHEDULE ONE of the Code, (1) (Code, Art. 565).

Disposal of Person Arrested on Endorsed warrant. If the prosecutor or any of the witnesses for the prosecution are in the territorial division where such person has been apprehended upon a warrant endorsed as provided in the last preceding section, the constable or other person or persons who have apprehended him may, if so directed by the justice endorsing the warrant, take him before such justice, or before some other justice for the same territorial division; and the said justice may thereupon take the examination of such prosecutor or witnesses, and proceed in every respect as if he had himself issued the warrant. (Code, Art. 566).

(1) For Form H. see p. 139, post.

Proceedings in Canada on warrant Issued Elsewhere.—Whenever a warrant has been issued in a part of Her Majesty's dominions for the apprehension of a fugitive from that part who is, or is suspected to be in or on the way to Canada, the Governor-General or a judge of a court, if satisfied that the warrant was issued by some person having lawful authority to issue the same. may indorse such warrant in manner provided by the Fugitive Offenders' Act, and the warrant so indorsed shall be a sufficient authority to apprehend the fugitive in Canada and bring him before a magistrate. (1)

An endorsement of a warrant, in pursuance of the Fugitive Offenders' Act, must be signed by the authority endorsing the same, and it authorizes all or any of the persons named in the endorsement and all or any of the persons to whom the warrant was originally directed, and also every constable, to execute the warrant within Canada by apprehending the person named in it, and bringing him before a magistrate in Canada, whether he is the magistrate named in the indorsement or some other. (2)

Bringing Arrested Person Before a Justice.— When any person is arrested upon a warrant, he shall, except in the case provided for in Article 566, be brought, as soon as is practicable, before the justice who issued it or some other justice for the same territorial division, and such justice shall either proceed with the inquiry or postpone it to a future time, in which latter case he shall either commit the accused person to proper custody, or admit him to bail, or permit him to be at large on his own recognizance, according to the provisions hereinafter contained. (Code. Art. 567).

Coroner's Inquisition.-Every coroner, upon any inquisition taken before him, whereby any person is charged with manslaughter or murder, shall (if the person or persons, or either of them, affected by such verdict or finding be not already charged with the said offence before a magistrate or justice), by warrant under his hand, direct that such person be taken into custody and

(1) R. S. C. c. 143, sec. 5.

(2) Ib. sec. 14.