without warrant commit persons to prison for contempt committed in the face of the court. (1) Under Article 585 of the Code, which has reference to the preliminary examination of persons charged with indictable offences, the investigating magistrate has the power by warrant to commit for contempt any person, who having appeared under subpoena or being otherwise present, refuses to be sworn or to answer such questions as are put to him, or refuses to produce any documents or to sign his deposition. And Article 908 of the Code expressly provides that every judge of sessions of the peace, chairman of the court of General Sessions of the peace, police magistrate, district magistrate or stipendiary magistrate shall have such and the like powers and authority to preserve order in the said courts during the holding thereof and by the like ways and means as now by law are or may be exercised and used in like cases and for the like purposes by any court in Canada, or by the judges thereof during the sittings thereof. According, however, to a recent Ontario decision, (confirmed in appeal) the powers given by Article 908 of the Code are not exercisable by a single justice of the peace. In this case a lawyer while acting as counsel for the defence in a summary trial before a justice of the peace was arrested by order of the justice and, without any formal adjudication or warrant, excluded from the court and imprisoned, for an alleged contempt and disorderly conduct before the court; and, in an action for assault and false arrest and imprisonment against the justice of the peace and against the constable who made the arrest upon the justice's order, it was held that the justice had no power to summarily punish for a contempt committed in the face of the court, at any rate not without a formal adjudication and a warrant setting out the contempt in question; but it was held that a justice has the right to remove persons who by their disorderly conduct obstruct or interfere with the business of the court; and it was also held that the proper exercise of the privilege of counsel in examining witnesses does not constitute an interruption of the proceedings so as to warrant his exclusion; but, that, if the justice in this case had (1) Armstrong v. M Caffrey, 1 Hannay, 517. And see R. v. Scott, 2 U. C. L. J. N. S. 323. issued his warrant for the commitment of the plaintiff for the alleged contempt, and had stated' therein sufficient grounds for such commitment, the court would not have reviewed the facts therein alleged; but that as there was no warrant of commitment, the justice was bound to establish such facts as would justify the course he had taken. (1) There seems to be no doubt that justices, while acting in the performance of their judicial duties, have the power to protect themselves from slander and abuse. And if a person charges a magistrate to his face or in his presence with acting corruptly or partially, the magistrate may, if this be said while he is acting judicially, forthwith commit the offender, provided such commitment be made out in writing and be duly signed. (2) It must, however, be a commitment for a time certain; and, therefore, a commitment until the defendant be discharged by due course of law is bad. (3) A magistrate thus abused and insulted while acting judicially may instead of exercising, himself, the power of committal for contempt, proceed, if he thinks fit, in a less summary manner by way of indictment against the offender. (4) It is said that the proper course is, first, to oblige the offender to find sureties for his good behaviour, and in default of his doing so then to commit him until the next quarter sessions, unless he sooner find such sureties and also enter into his own recognisance for his good behavior, (5) the result of such a course being to oblige him to answer any indictment which may be preferred against him for the contempt. It seems that the power of committal for such contempt does not exist when the abuse or insult is offered while the justice is merely acting ministerially. (6) (1) Young v. Saylor, 23 Ont. R. 513. Aff. in Appeal, 20 App. Rep. (Ont.), 645. (2) Aston v. Blagrave, 1 Str. 617. (3) R. v. James, 5 B. & A. 894. (4) R. v. Collyer, 1 Wils., 332; R. v. Revel, 1 Str. 420. (5) R. v. Langley, Ld. Ray., 1030, per Holt, C. J. But a magistrate is not without redress, if slander or abuse is intruded upon him at a time when he is not acting judicially. He may have an action for such words as the law deems actionable; or he may cause the speaker to be, by another justice or magistrate, bound over for his good behavior. (1) It seems that, with regard to slanderous words spoken of a justice behind his back, they are not indictable. Thus, where a defendant said of a Middlesex magistrate, that he was a scoundrel and a liar, and the words were made the subject of an indictment preferred against the defendant, as having been spoken of the prosecutor in his character of a justice and with intent to defame him in that capacity. Lord Ellenborough interposed and said that as the words were not spoken to the justice, they were not indictable. (2) The importance of maintaining proper respect for and decorum before justices in the execution of their duty should render them careful not to be guilty, themselves, of any outrage which may be the occasion of violence or abuse being used towards them. Where, upon an application for an information against a person for striking a mayor in the execution of his duty, it appeared that the mayor struck the first blow, the court refused to grant the information. (3) They should also be careful not to abuse their position and not to inflict a wrong upon or maliciously punish a party or witness, by the use of insulting or improper language. A justice who makes use of language of this character, without any legal justification, will be liable for exemplary damage. (4) Liability of Magistrates and Justices of the Peace for Illegal Acts,-Magistrates and justices of the peace who exercise their functions illegally may render themselves liable in damages and even to criminal proceedings. Criminal Liability, They are subject to a criminal information or to a prosecution by indictment when their acts, besides (1) R. v. Cotton, S. C., 2 Bernard, 313: W. Kel. 133. (2) R. v. Weltje, 2 Campb. 142. See R. v. Pocock, 2 Str. 1157. being illegal and productive of private injury, are done dishonestly or corruptly, or with partiality, or from vindictive or oppressive motives. (1) The grounds upon which the court will interfere by granting a criminal information are not definite enough to admit of any fixed rule; but it may be said that whenever the powers of justices in the summary execution of penal laws are exercised by them from corrupt or personal motives, this mode of punishment will be extended. (2) Criminal informations have been granted against magistrates in the following among other cases :-for a wilful refusal to perform their duty (3) for extortion under color of office: (4 for adjudicating upon a matter in which they have a direct pecuniary interest (5) for granting, in order to serve election purposes, a distress warrant for poor rates, against the occupiers of a house, after the landlord had tendered the amount to the overseer; (6) for refusing licenses to publicans who, at a borough electión, had voted against the candidates recommended by the magistrates, the magistrates having, before the election, threatened to withhold licenses from those who should so vote; (7) for refusing a beer license to an innkeeper merely from a motive of resentment against him for having joined in an affidavit made in support of some interest adverse to that espoused by the justices and their friends ; (8) for improperly granting an ale license to a person to whom the general meeting of magistrates had, on the ground of misbehavior, refused a license; (9) and in another case the magistrate was, for a similar offence, prosecuted by indictment. (10) (1) Ex parte Fentiman, 2 Ad. & El. 127; R. v. Jackson, 1 T. R. 653; R. v. Barron, 3 B. & Ald. 432; R. v. Staffordshire, J. J., 1 Chitt. R. 217. (2) Paley, 4 Ed. 425. (3) R. v. Fox, 1 Str. 21; R. v. Newton, 1 Str. 413. (4) R. v. Yea, ci'. 1 Gude's Cr. Pr. 111, note. See also R. v. Jones, 1 Wils. 7. (5) R. v. Davis, Lofft. 62. (6) R. v. Cozens, 2 Doug. 426. (7) R. v. Williams, 3 Burr. 1317. (8) R. v. Hann & Price, 3 Burr. 1716. (9) R. v. Holland & Foster, 1 T. R. 692. See also R. v. Filewood 2 T. R. 145. (10) R. v. Sainsbury, 4 T. R. 451. . It is not necessary to show a corrupt motive in the ordinary sense of the word "corrupt." If the illegal act of the magistrate is done from passion or opposition on his part, that, according to Ashurst, J., is as corrupt as if he acted from pecuniary considerations. (1) So, that, where certain persons were duly committed by a magistrate for fourteen days, under the Vagrant Act, (17 Geo. 2, c 5), and were, by other magistrates, discharged from custody on giving bail to appear at the next quarter sessions to prosecute an appeal, the court made absolute a rule for a criminal information against the latter magistrates, their action being considered gross misbehavior which could not be imputed to mere mistake or ignorance of the law. (2) In another case a rule nisi was issued against a magistrate for having, in his office or capacity as such, spoken abusively of other magistrates, and for having imputed to the latter corruption in their administration of justice. (3) A criminal information was granted against justices for making a false return to a mandamus: (4) but in a subsequent case the court expressed a doubt whether an information should be granted in such a case, unless the return was corruptly and wilfully false. (5) An information will not be granted against a magistrate for convicting, unless, besides setting forth the other essential grounds, the applicant swears in his affidavit that he is innocent of the charge against him. (6) An information was refused against a magistrate for an assault committed by him on an attorney who had several days previously conducted certain proceedings against him before other magistrates, the assault not being one committed by him in his public and magisterial but in his private capacity. (7) (1) R. v. Brooke and others, 2 T. R. 195. (2) Ib., 195. (3) Ex parte Ewen, 25 J. P. 339. (4) R. v. Spotland, Cas. Temp. Hard. 184. (5) R. v. Lancashire, J. J., 1 D. & Ry. 485. (6) R. v. Webster, 3 T. R. 388. (7) R. v. Arrowsmith, 2Dowl, N. S. 704. |