police magistrate can act as agent, solicitor or counsel in any case, matter, prosecution or proceeding of a criminal nature: nor can such police magistrate, partner or clerk act as aforesaid in any case which by law may be investigated or tried before a magistrate or justice of the peace. (1)

The proper course to be pursued, in order to prevent a magistrate from acting in and adjudicating upon a case in which he is interested, is to apply for a writ of prohibition. (2)

But, when this course by prohibition is not adopted. and the interested magistrate goes on with and adjudicates upon the case, the objection of interest may be used as a ground of error to attack and set aside his judgment. (3)

The objection that a magistrate or a justice is disqualified, by interest, from sitting in and adjudicating upon a case may be waived; and, therefore, the objection should be raised before the evidence is taken; for if a party, knowing of the interest, do not raise the objection, but go on with the case, and take the chance of a decision in his favor, there will be a waiver of the objection of interest, and the proceedings will not be void on the ground of such interest. (4)

But the objection is not waived by reason of its not being taken at the hearing, unless the party entitled to take the objection was then aware of the judge's interest. (5)

Ouster of the Summary Jurisdiction of Justices. Whenever property or title is in question or there is a bona fide claim of legal right to do the act complained of, justices are ousted of their jurisdiction to hear and determine in a summary manner, and their hands are tied from interfering, although the

(1) R. S. O., c. 72, sec. 27.

(2) Hutton v. Fowke, 1 Keb. 648; Anon., 1 Salk. 336.

(3) Per Baron Parke, in Dimes v. Grand Junction Canal Co., 3 H. of L. Cas. 759-785.

(4) R. v. Cheltenham Commrs. 10 L. J. M. C. 99; R. v. Rishton, 1 Q. B. 479; R. v. Allen, 33 L. J. M. C. 98; Wakefield v. West Riding & Grimsby Ry., 35 I. J. M. C. 69; R. v. Stone, 23 Ont. R. 46; Turner & anor. v. Postmaster-Gen., 34 L. J. M. C. 10; Ex parte Barbere, 12 C. L. T. 449.

(5) R. v. Recorder of Cambridge, 8 El. & Bl. 637; 27 L. J. M. C. 160; R. v. Warwickshire Sheriff, 24 L. T. 211.

facts be such as they otherwise have authority to take cognizance of. (1)

This principle is not founded upon any legislative provision, but is a qualification which the law itself raises in the execution of penal statutes, and it is always implied in their construction. (2)

It is sometimes, also, the subject of special statutory enactment. For instance, the Code provides that no justice shall hear and determine any case of assault or battery in which any question arises as to the title to any lands, hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy or insolvency, or any execution under the process of any court of justice. (3)

The jurisdiction of a justice is not to be ousted, however, by any mere pretence of title, (4) or even by a bona fide claim of a right which cannot, in law, exist. (5)

There must be some color for the claim of title. (6) And it is for the justices to determine, from all the facts and circumstances of the case, whether a claim of right, when put forward, is made bôna fide and with a show of reason. (7) If they determine that it is not so made,it is their duty to proceed with and decide the case. (8) Still, if the grounds upon which justices decide against the fairness and reasonableness of a claim of right be insufficient, the court will review their determination and overrule it. (9)

If the justices believe that there is a bona fide question of title they have no jurisdiction. (10) And, even when the matter is

(1) Paley, 4 Ed. 41; R. v. Cridland, 7 E. & B. 853; 27 L. J. M. C. 29; Bingstock v. Raynor, 40 J. P. 245; Watkins v. Major, 44 L. J. M. C. 164; Denny v. Thwaites. 46 L. J. M. C. 141,

(2) Paley, 4 Ed. 117.

(3) Code, Art. 842, sub sec. 8, post.

(4) R. v. Wrottesley, 1 B. & Ald. 648; R. v. Speed, 1 Ld. Raym. 583; R. v. Burnaby 2 Ld. Raym. 900; Kinnersley v. Orpe., Doug. 499.

(5) Simpson v. Wells, 41 L. J. M. C. 105; Hargreaves v. Diddams, 44 L. J. M. C. 178.

(6) Rees v. Davies, 8 C. B. N. §. 56.

(7) R. v. Dodson, 9 Ad. & El. 704.

(8) R. v. Mussett, 26 L. T. N. S. 427.

(9) R. v. Dodson, supra; Paley v. Birch, 16 L. T. N. S. 410.

(10) Legg v. Pardoe, 9 C. B. N. S. 289.

doubtful, it will be enough to stop their proceedings; and they cannot give themselves jurisdiction by a false decision. (1)

Upon an information for unlawfully and wilfully" fishing in a non-navigable river, the private property of another, a claim of right, by the defendant as one of the public, to fish in the river was held not to oust the justices of jurisdiction, as such a right could not possibly be acquired, and the bona fide belief of the defendant that he had the right to fish would not prevent his being convicted, a guilty mind not being an essential ingredient to constitute the offence. (2)

Where, in an action of trespass to land, tried before a justice of the peace, the defendant set up a title, and offered a deed in evidence, and the plaintiff also produced evidence of deeds and of a title arising by estoppel, on which the justices undertook to decide, it was held that the title was bona fide in question, and that the justice's jurisdiction was ousted. (3)

Where in a prosecution for an injury, amounting to twenty-five cents, done to growing trees, the defendant set up and proved a bôna fide claim of title, the Court held that the jurisdiction of the justice was ousted. (4) And where a defendant was convicted under a statute which provided that nothing therein contained should extend to any case in which the party acted under a fair and reasonable supposition that he had a right to do the act complained of, and it appeared by the evidence adduced before the magistrate, that there was a dispute between the parties as to the ownership. it was held that a title to land came in question, and that the defendant was improperly convicted, even though the magistrate did not believe that the defendant had a title. (5)

Upon a charge of trespass upon a fishery, the defendants, who claimed a right to fish therein, produced evidence of long user and offered security for costs in case the complainant would institute a

(1) R. v. Nunnely, E. B. & E. 852; 27 L. J. M. C. 260; R. v. Stimpson, 32 L. J. M. C. 208.

(2) Hudson v. Macrae, 33 L. J. M. C. 65; 9 L. T. N. S. 678.

(3) R. v. Harshman, 1 Pugs. 346.

(4) R. v. O'Brien, 5 Q. L. R. 161.

(5) R. v. Davidson, 45 U. C. Q. B. 91.

civil action; and it was held that this was such a bona fide claim of title that the jurisdiction of the magistrates was ousted. (1)

When, in order to constitute an offence a mens rea or criminal intention must be shown, an honest claim of right will avoid a summary conviction; but, where the absence of a criminal intent is not necessarily a defence, the party setting up the claim of right must show some ground for its assertion, and if he fails to do so he is liable to be convicted of the offence charged. (2)

S. owned a lot of land in N. In 1866 he sold the west half of it to the complainant, reserving, however, a strip of thirty feet along the north line thereof, as a road, for himself and successors in title, to and from the east half of the lot. S. put up a gate at the west limit of the land, where it met the highway, which gate remained there from 1866 until it was removed by the defendants, who were the successors in title to S. The defendants removed the gate in question as an obstruction; and they were convicted on a charge of having unlawfully and maliciously broken and destroyed the gate as the property of the complainant. Held, that in claiming at right to remove the gate the defendants were acting in good faith and under a fair and reasonable supposition of right to do the act complained of; and the conviction was therefore quashed. Held, also, that the question of fair and reasonable supposition of right to do the act complained of was a fact to be determined by the justice, and his decision upon a matter of fact would not, as a rule, be reviewed; but this rule did not apply where, as here, all the facts showed that the matter or charge itself was one in which such reasonable supposition existed; that is, where the case and the evidence were all one way, and in favor of the defendants. "(3)

One Ovide Lacoursiere, on being charged with receiving a bedstead, knowing it to be stolen, claimed to be the owner of it, but, being summarily tried and convicted, he signed, in consideration of not being sent to gaol, a written agreement providing for his discharge from conviction on restoring the bedstead, and on paying the costs and $50 damages to the prosecutor within fifteen days,

(1) R. v. Magistrate, Bally Castle, 9 L T. R., N. S. 88,

(2) Watkins v. Major, L. R. 10 C. P. 662; 33 L. T. R., N. S. 352. (3) R. v. McDonald, 12 O. R. 381.

he also agreeing that there should be no appeal or proceedings against the conviction. Upon an application for a certiorari, the court looked to the evidence to see if a criminal offence was comImitted, and it was held that there was a bona fide claim of title which should have ousted the justices' jurisdiction, that the writ ten agreement was without valid consideration and entirely illegal and void, and that the action of the justices was an abuse of the process provided by the criminal law. (1)

The acts of a person's servants under his guidance in asserting a right would not render them liable to conviction, if the master himself be not so liable. (2)

Although, as a rule, justices have no power to enquire into a case involving a question of title to real property, yet when the title is itself the question which they have to decide, or of the very essence of the enquiry before them, their jurisdiction remains. (3) And the jurisdiction of justices is not ousted in cases in which they have power by statute to determine the right to which the claim is made. (4)

Power to Maintain Order and to Commit for Contempt.-There are some few cases-forming, as it were, an exception to the general rule-in which, from necessity and from the special nature of the occasion, a party although interested is allowed to adjudicate, it being considered a less evil that he should do so than that there should be an entire failure of justice. There are cases in which circumstances of such a character arise that it becomes the unfortunate duty of the court to act as both party and judge. (5) For instance, justices of the peace, acting judicially in any case in which they have the right to fine and imprison, are judges of record, with power to maintain order, and to orally and

(1) R. v. Lacoursiere, 12 C. L. T., 334. Aff. in appeal, 8 Van. L. R. 302. (2) R. v. Thexton, 23 J. P. 323; Birnie v. Marshall, 35 L. T. 373; 41 J.P. 22 (3) R. v. Llanfillo (Brecknockshire), J. J., 15 L. T. N. S. 277; 31 J. P. 7; Williams v. Adams, 31 L. J. M. C. 109.

(4) R. v. Young, 52 L. J. M. C. 55.

(5) Per Lord Denman, C. J., Wilson's Case, 7 Q. B. 1015; Dime's Case, 12 Beav. 63; 14 Q. B. 554.