(d) the evidence, (if any), in full, as taken before the J. P.; (e.) the substance of the conviction, order, determination or other proceeding questioned;

(f.) the grounds on which the same is questioned;

(g.) the grounds on which the justice supports the proceeding questioned, if the justice sees fit to state any.

3. Within TWENTY DAYS after the delivery to the appellant of a case stated by a justice, the appellant shall deliver or cause the same to be delivered,

(a.) To the Registrar of the Court in bane; or

(b.) (If he desires the matter to be heard or determined by a Judge in Chambers), to the Clerk of the Court of the judicial district in which the justice resides, provided that upon sufficient cause for the delay being shown, the Court or Judge, as the case may be, may hear and determine the matter, although the case was not delivered within said twenty days. (1)

Although the evidence is set out in the case, the Superior Court does not put itself in the position of the Justices in deciding on the weight or sufficiency of such evide nce; but it accepts the findings of the Justices, upon facts within their jurisdiction, as conclusive, whatever the Superior Court's own opinion may be as to the nature of the evidence. (2)

The Superior Court, in such a case, has only to see whether the determination of the Justices is erroneous in point of law. (3) The main question in the case, namely, whether an offence has or has not been committed within the statute is a subject involving a question of law; but the subordinate facts leading up to it are left entirely to the decision of the Justice. The circumstances which lead to the conclusion of law are for the Justices. And it is for the Superior Court to see whether the facts are sufficient to warrant the legal conclusion which the Justices have drawn from them. (4)

(1) McGuire's Magis. Handbook, 75-76.

(2) Cornwell v. Sanders, 3 B & S. 206; 32 L. J. M. C., 6.

(3) Taylor v. Oram, 31 L. J. M. C., 252.

(4) R. v. Raffles, 45 L. J. M. C., 61.

HABEAS CORPUS.-When there is any fault or illegality in the commitment under which a defendant is imprisoned, he may obtain his discharge by means of a writ of HABEAS CORPUS ad subji. ciendum, which may be obtained from a Superior Court of Criminal Jurisdiction or from a Judge of such Court. Its object being to effect deliverance from illegal confinement, it commands the party detaining the prisoner to produce his body, together with a true statement of the cause of his detention; and it may be applied for, issued, and made returnable in Chambers. (1)

Although the right to remove the conviction by certiorari be taken away, yet, in moving for a writ of habeas corpus, a certified copy of the conviction may be brought before the Court for the purpose of defeating the commitment. (2) But the certified copy must be verified by affidavit, and the commissioner before whom the affidavit is sworn ought to certify on the exhibit annexed that it is the document referred to in the affidavit. (3)

The application may be for a rule calling on the keeper of the prison to show cause why a writ of habeas corpus should not issue to bring up the body of the prisoner, and why in the event of the rule being made absolute he should not be discharged, without the writ of habeas corpus actually issuing and without his being personally brought before the Court. (4)

Although, when this course is pursued, and the rule is made absolute, after being opposed and cause shown, the defendant may be released by virtue of the rule thus made absolute, it appears that, if no cause is shown, a writ of habeas corpus must, in that case, issue, before the prisoner can be discharged. (5)

Objections to the writ of habeas corpus for any irregularity are to be taken by way of substantive motion to set it aside, and not upon the motion to discharge the prisoner on the return. (6)

(1) Re Leonard Watson & others, 9 A & E., 731.

(2) R. v. Mellor, 2 Dowl., 173.

(3) Re Allison, 10 Exch. 561.

(4) Ex parte Eggington, 23 L. J. M. C., 44; Re Geswood, 2 El. & Bl., 952. For Form of Habeas Corpus. see p. 402, post.

(5) Ex parte, Jacklin, 5 C. B. 103, (a.)

(6) R. v. Baines, 12 A. & E. 210, 213.

Upon receipt of the writ, the gaoler, or other officer having the party in custody, returns, along with the body of the prisoner, the warrant of commitment, which, if it be illegal or insufficient on its face, will be quashed and an order will be made for the defendant's release. (1)

The Court, upon the return to a writ of habeas corpus have nothing before them, but the warrant of commitment; but they may, nevertheless, refuse to discharge the prisoner until they have the conviction before them. Thus, where a commitment was until the party should pay a fine" without specifying any sum, the Court refused to discharge him upon the commitment alone; but when, upon the conviction itself being brought before them, it appeared that no precise sum was thereby awarded, they ordered the defendant's discharge. (2)

As, however, the conviction as recited in the commitment, is prima facie taken to be as recited, it is for the party asserting it to be dif ferent to bring it before the Court by certiorari, or, if that process is not available, by affidavit; and in such a case, if the CONVICTION be right, the defect in the coMMITMENT will be cured, provided the latter shows the like offence as is stated in the conviction. (3)

1

With regard to the question of whether the truth of the return to a writ of habeas corpus au subjiciendum can be controverted by means of affidavits, a distinction has been drawn in England between cases in which the writ is issued at common law or under statutes containing or not containing, as the case may be, an express provision on the subject. If the case came within the 31 Car. 2, c. 2, (the object of which was to provide, more particularly, against delays in bringing accused persons to trial) the English Courts would not receive affidavits impeaching the return. (4) But if the case came within the 56 Geo. 3, c. 100, affidavits were received, because they were admissible by the express terms of secs. 3 and 4 of that Act. So, that where prisoners, in custody of a Customs Officer, on a charge of smuggling, were brought up by habeas corpus at common

(1) See Bac. Ab., Tit. "Habeas Corpus."

(2) R. v. Elwell, Str. 794; 2 Ld. Raym. 1514.

(3) R. v. Taylor, 7 D. & R. 623.

(4) Carus Wilson's Case, 7 Q. B., 984; R. v. Rogers, 3 D. & R., 607; R. v. Sheriff of Middlesex, 11 A. & E., 273.

law, they were held entitled, under the above sections of 56 Geo. 3, c. 100, to controvert the truth of the return by affidavit. Abbott, C. J., said, "The writs of habeas corpus in this instance are not to be considered as writs issuing under the 31 Car. 2, but as issuing at common law, under the general authority of the Court, and consequently the discussion of the truth of the return is left open by virtue of the 56 Geo. 3, c. 100, sec. 4. The object of 56 Geo. 3, was to give the party a summary remedy by controverting the truth of a return, instead of putting him to an action for a false return." (1)

But, even in cases within the 56 Geo. 3, c. 100, it does not appear .that all statements upon the return may be contradicted by affidavit. There are certain questions which are exclusively within the province of the tribunal issuing the commitment, and which cannot be opened again before another tribunal, except by appeal or upon a case stated. Such, for instance, is the weight of evidence, the innocence or guilt of the defendant, and the adjudication of contempt. No other Court except the Court to which an appeal is granted is competent to re-investigate these matters, whether the proceeding be brought before it on return to habeas corpus, or certiorari, or in an action against the magistrate. (2)

It appears that affidavits, to show a WANT or EXCESS of JURISDICTION, are admissible whether the case is one at common law or under the statute of Car. 2, or Geo. 3, although they may directly contradict facts stated in the return which, if true, would show jurisdiction and no excess of it. The rule appears to be the same as that which is applied to proceedings by certiorari, where a want or excess of jurisdiction may be shown by affidavit as ground for quashing a conviction or order. The exercise of this privilege does not try the guilt or innocence of the prisoner, upon affidavit ; nor does it impugn the rule that matters on which Justices, acting within their jurisdiction, decide shall be held to be conclusive, if found by them; but, on the contrary, it is a consequence of the salutary maxim that no Judge, by misstating facts, can give himself jurisdiction. (3) And, accordingly, on a conviction under the Master

(1) Ex parte Beeching, 6 D. & R., 209.

(2) Dimes's Case, 14 Q. B., 554.

(3) R. v. Bolton, 1 Q. B.., 66; R. v. Nunnely, 27 L. J. M. C., 260.

and Servants Act, (4 Geo. 4, c. 34), affidavits were admitted to show that there was no evidence before the Justice of such facts as were essential to the exercise of his jurisdiction, namely. the contract to serve. (1)

The result, briefly stated, of the decisions upon this question seems to be, that, if the fact found be one essential to jurisdiction, or on which jurisdiction depends, it may be shown that there was NO EVIDENCE before the justices to warrant the finding, but, that, if the fact be merely a fact in the case and a part of it,-jurisdiction having attached,-their finding is not, as a general rule, reviewable on affidavit, or in any manner except on appeal or on a case reserved. (2)

After the return is put in and read, it is considered as filed, but the Court may still amend it. (3)

If the return shows a commitment bad upon its face, the Court will not, on the suggestion that the conviction itself is good, adjourn the case for the purpose of having the conviction brought up and of amending the commitment. Nor will the Court look at the conviction unless it is before them, having been brought up by certiorari. (4)

If the defect be not on the face of the commitment, but in the conviction, the defendant, besides a writ of habeas corpus to bring up the prisoner and the warrant of commitment, mu st sue out a certiorari directed to the convicting magistrate,-or to the sessions or other Court where the conviction has been filed,-to return the conviction into the Court above. (5)

901. Tender and Payment.-Whenever a warrant of distress has issued against any person, and such person pays or tenders to the peace officer having the execution of the same, the

(1) Re Bailey and Collier, 23 L. J. M. C., 161.

(2) R. v. Huntsworth, 33 L. J. M. C., 131; Pal. Sum. Conv., 6 Ed., 421.

(3) Canadian Prisoners' Case, nom. Re Watson, 9 A. & E., 731.

(4) Ex parte Timson, L. R. 5 Ex. 257; 39 L. J. M. C., 129.

(5) Re Allison, 10 Exch. 661.