together judicially, the act of the majority decides; (1) and where the statute refers the matter to any two justices, they must be justices acting within the limits of their jurisdiction. (2)

The authority given by statute to two justices cannot in general be exercised by one justice. (3) So that where a statute requires the conviction of an offender to be before two justices, a conviction by one, alone, is bad. (4) And where an act provides that the prosecution is to be brought before any police magistrate or before any two justices of the peace, it seems that, as the laying of the information is the bringing of the prosecution, it (the laying of the information) must be done either before a police magistrate or before two justices; and where in a case subject to such a statute, the information was laid before only one justice, the conviction was quashed for want of jurisdiction, although heard and determined by two. (5) But where the direction in the statute is that the final determination of a thing is to be by two justices, one of these justices may receive the complaint and grant his warrant to arrest the offender and bring him before the same or any other justice to find surety for his appearance at the sessions; (6) and if the authority is given to one justice, it may, of course, be exercised by any greater number. (7)

A power expressly given to a justice of the peace to do a particular act cannot be enlarged, by inference. Thus, where the 6 Geo. 2. c. 31, gave a single justice authority in bastardy cases, to take the examination of any unmarried woman if she should charge any person with having gotten her with child, it was held that the statute did not incidentally give the justice power to compel the woman to be examined. (8) So, although justices of the peace

(1) R. v. Jeffreys, 34 J. P. 727: 2 L. T. (N. S.) 786.

(2) Re Peerless, 1 Ad. & El 143; 1 Q. B. 143, 153.

(3) Dalt. c. 6; 4 Co., 46.

(4) McGilvery v. Galt, Pugs. & B. 641.

(5) R. v. Starkey, 7 M. L. R., 43; Aff. on appeal, Ib., 489.

(6) Ware v. Stanstead, 2 Salk., 488; R. v. Simmons, 1 Pugs., 158; See also Art., 842 of the Code, post.

(7) Hatton's Case, 2 Salk., 477. R. v. Weale, 5 C. & P., 135.

(S) Ex parte Martin, 6 B: & C. 80; 9 Dowl & Ryl., 60.

were given jurisdiction, by the 6 Geo. 3, c. 25, to determine disputes between masters and servants employed in manufactures or trade, it was held that this did not give them jurisdiction to settle disputes between masters and household servants. (1)

All the justices of a district are equal in authority but the jurisdiction attaches in any particular case to the first set of duly authorized magistrates, who have possession and cognizance of the matter, to the exclusion of the separate jurisdiction of all others; and the acts of any others except in conjunction with the first are wholly void. (2)

In Ontario. it is expressly enacted that no justice of the peace shall admit to bail or discharge a prisoner, or adjudicate upon or otherwise act in any case for a town or city where there is a police magistrate, except at the Court of General Sessions of the Peace, or in the case of the illness or absence or at the request of the police magistrate. (3) But in the case of justices for a county, in which a town having no police magistrate is situate, their jurisdietion over offences committed in such town is in no way interfered with. (4)

The appointment of a police magistrate for a county or district in Ontario may exclude any city or town which has a police magistrate; and, otherwise, a police magistrate appointed for a county or district has jurisdiction in the whole of the county or district, inclusively of every city or town therein, whether such city or town has also a police magistrate of its own or not ; (5) and a police magistrate for a county or part of a county may sit or hold his courts within a town separated from the county or a city situated within the limits of the county for judicial purposes, whether such city or town has a police magistrate or not. and may, in such town or city, hear complaints and dispose thereof as police magistrate in respect of all matters arising within the county or

(1) Kitchen v. Shaw, 6 A. & E., 729.

(2) R. v. Sainsbury, 4 T. R. 456.

(3) R. S. O., c. 72, sec. 6.

(4) [b., sec. 7.

(5) R. S. O., c. 72, sec. 11; 50 Vict. (Ont.), c. 11, sec. 3.

the part of the county for which he is appointed, and do all acts, matters and things in the discharge of the duties and powers of his office as fully as when sitting or holding court in any other part of the county for which he is appointed. (1)

Justices of the peace are expressly prohibited, in Ontario, from interfering with proceedings had before police magistrates. (2) But nothing is to be construed to interfere with the jurisdiction of justices of the peace in cases in which the initiatory proceedings are not taken by the police magistrate, nor to prevent other justices from acting with the police magistrate at the police magistrate's request. (3) And, in case of the absence or illness, or at the request of a police magistrate, any two or more justices of the peace may act in his place in any matter within the jurisdiction of the police magistrate; and the justices or a majority of them shall, in such case, have all the powers which by any statute are given to the police magistrate; and any one justice of the peace may so act for the police magistrate in cases in which by law one justice of the peace has generally jurisdiction in that behalf. (4) Whenever any justice of the peace acts for a police magistrate in case of the latter's illness or absence, or at his request, the maxim omnia praesumuntur rite esse actu applies, and the justice who so acts for a police magistrate is presumed to be properly authorized, unless the contrary appear. (5)

No police magistrate in Ontario need act in any case arising outside of the limits of the city, town or place for which he is police magistrate, unless he sees fit so to do. (6) And, except in cases of urgent necessity, no attendance by him at the police office is required on Sundays or other holidays or on any day set apart by the municipal council as a civic holiday. (7)

(1) R. S. O., c. 72, sec. 16; 50 Vict. (Ont.), c. 11, sec. 7.

(2) R. S. O., c. 72. sec. 13.

(3) R. S. O., c. 72, sec. 14.

(4) Ib., sec. 20.

(5) R. v. Hodge, 23 Ont. R., 450.

(6) R. S. O.. c. 72, sec. 26.

(7) Ib., sec. 30.

Disqualifying Interest, Bias or Partiality,No magistrate and no justice of the peace has a right to act judicially in any case in which he himself is a party, or in which he has any direct or indirect pecuniary interest, however small.

The plain principle of justice that no one can be a judge in his own cause pervades every branch of the law, and is as old as the law itself and every proceeding in respect of which this objection exists. is.-if the objection appears upon the face of the proceeding-absolutely void: and every proceeding, in respect of which this objection exists, though not appearing on its face, is voidable. (1)

There are instances upon record of magistrates being punished by attachment for acting as judges in matters in which they themselves were parties. (2)

Where a criminal information was moved for against a justice of the peace who, upon a complaint made before him, in his magisterial capacity, by his own bailiff, had convicted and sentenced to punishment a laborer employed on his (the justice's) own farm. for refusing to perform his work according to contract, the English Court of Queen's Bench granted a rule to show cause, and only declined making the rule absolute, from a consideration that, under all the circumstances, the steps taken appeared to proceed from an error in judgment, rather than a bad motive; but at the same time they severely reprehended the conduct of the magistrate in sitting in judgment upon a charge in which he himself was to be considered as the real complainant, though in form the complaint was preferred by his bailiff; and they declared that it was a most abusive interpretation of the law that a man should presume to erect himself into a criminal judge over the servants on his own farm for an offence against himself. (3)

(1) Co. Litt. 141a; Dimes v. Grand Junc. Can. Co., 3 H. of L. Cas. 759-785; Chester Mercers & Ironmongers Co. v. Bowker, 1 Str. 639.

(2) Mayor of Hereford's case, per Holt, C. J. 2 Ld. Raym. 766; 1 Salk. 201; 396.

(3) R. v. Hoseason, 14 East, 606.

Magistrates and justices of the peace are not only disqualified from acting judicially in any case in which they themselves are parties, but also in any case in which they have any direct interest. however small; and they should, moreover, refrain from taking any part in proceedings in which they are indirectly interested; for, although their conduct may be the most honorable, the fact of their being in any way, (although only indirectly), interested in the matter at issue, leaves them open to suspicion. (1)

It is most essential for the satisfactory administration of justice that parties interested in a decision should not only take no part in the decision, but that they should avoid giving any ground for the belief that they influence others in arriving at a decision. (2)

So jealously have the Superior Courts regarded proceedings in which the appearance of partiality could exist that when one of a set of magistrates who heard a case at the sessions was interested in the result, the English Court of Queen's Bench quashed the order made in the case, inasmuch as the interested, magistrate, appeared to have joined in discussing the matter with the other magistrates, although there was a majority in favor of the judg-. ment, without reckoning his vote, and although he withdrew before the other magistrates rendered their decision; and the court would not enter into a discussion as to the extent of the influence exercised by the interested party. (3)

Even where an interested magistrate had decided against his own interest it was held, nevertheless, that in cases where they are directly or indirectly interested, magistrates should not interfere.(4)

In another case three magistrates, who were interested in the. matter at issue, joined eight other magistrates in the proceedings in a case taken under an Act which took away, in express terms,

(1) Anon., 1 Salk. 396; R. v. Yarlpole, 4 T. R. 71; l. v. Gt. Yarmouth, 6 B. & C., 646; R. v. Rishton, 1 Q. B. 479 (n).

(2) R. v. Suffolk, J. J., 21 L. J. M. C. 169; 18 Q. B. 416. And see R. v. Hereford, J. J., 2 D. & L. 500; and R. v. O'Grady, 7 Cox C. C. 247.

(3) R. v. Hertfordshire, J. J., 6 Q. B. 753; 14 L. J. M. C. 73. (4) R. v. Gudridge, 5 B. & C. 459.