particular case the imprisonment expired on the 14th December, and the writ in the action was sued out on the 14th June following, it was held that the former day was to be excluded, and that, therefore, the action was in time. (1)

As, by Article 976 (above set forth) of the Code, the notice of action must be given one month, at least, before the suit is commenced, the day of giving the notice and the day of suing out the writ in the action are both to be excluded. (2)

In Ontario, it has been held that where a magistrate acts in direct contravention of the statute in issuing a warrant, without the proper information under the statute, or without even a verbal charge having been laid against the plaintiff, and there is no evidence of good faith on his part, he is not entitled to notice of action. (3)

In another Ontario case, it was held that where a magistrate acts clearly in excess of, or without jurisdiction, he is nevertheless entitled to notice, unless the bona fides of his conduct be disproved; but that the plaintiff may require the question to be left to the jury, and that if they find that he did not honestly believe he was acting as a magistrate, he has no claim to notice. (4)

Where a justice acts either without jurisdiction, or entirely in excess of his jurisdiction, the notice of action need not contain an allegation of malice. (5)

A justice of the peace is entitled to notice of action whenever the act complained of has been done by him in the honest belief that he was acting in the execution of his duty as a magistrate. (6)

In an action against a justice of the peace and a constable for having issued and executed a search warrant against the plaintiff' for having and concealing goods belonging to another, it was held that the notice of action and statement of claim being each of them

(1) Hardy v. Ryle, 9 B. & C., 603; Massey v. Johnson, 12 East. 67. (2) Young v. Higgins, 6 M. & W. 49, 52; R. v. Herefordshire J. J., 3 B. & Ald. 581; R. v. Shropshire J. J., 8 A. & E. 113.

(3) Friel v. Ferguson, 15 U. C. C. P., 584.
(4) Neill v. McMillan. 25 U. C., Q. B., 485.
(5) Hatch v. Taylor, 1 Pugs, 39.

(6) Sprung v. Anderson, 23 U. C. C. P. 159.

founded upon a cause of action arising in a case in which the magistrate had jurisdiction, were defective for want of the allegation that the justice had acted maliciously and without reasonable and probable cause, and that the statement of claim was also defective in not showing a right to restitution of the property, although the plaintiff was acquitted of any wrongful taking, detention or concealment of the same. (1)

The notice of action must state the time when and the place where the act forming the basis of the action took place; (2) and it must state the cause of action explicitly. Where, for instance, a justice had issued a void warrant directing the constable to take the plaintiff's goods, and, in default of goods. to take his body, and the constable, under this warrant, arrested the plaintiff, although there were goods which he might have levied, a notice of action alleging a joint trespass against the justice and the constable was held defective for not clearly setting forth the grounds of the justice's liability. (3)

The notice must state the name and place of abode of the plaintiff's attorney; and it will be sufficient if it appears on any part of the notice. (4)

A notice of action describing the plaintiff's attorney's residence as of Birmingham generally is sufficient. (5)

A notice describing the plaintiff's residence as of the township of B.. in the county of P., is sufficient. (6)

In the province of Quebec, it is expressly provided that every justice of the peace and other derson fulfilling a public duty shall, in all cases, be entitled to the benefit of the protective clauses of the statute with reference to the limitation and notice of action, tender of amends, and otherwise, although he may not have acted bona fide in the execution of his duty, and although in the doing of

(1) Howell v. Armour, 7 O. R. 363.

(2) Parkyn v. Staples, 19 U. C. C. P. 240; Betters worth v. Hough, 16 L. C. R. 419.

(3) McGilvery v. Gault, 1 Pugs, & Bur. 641.

(4) Bross v. Huber, 15 U. C., Q. B. 625.

(5) Osborn v. Gough, 3 B. & P. 551.

(6) McDonald v. Stuckey, 31 U. C., Q. B. 377.

the act done by him he has exceeded his powers or jurisdiction and has acted clearly contrary to law. (1)

Compelling Justices, by mandamus, to exercise their functions.-If a charge be laid before a justice, and there be no reasonable ground for doubting his jurisdiction or the propriety of exercising it. the justice ought to receive the information or complaint and issue the summons or warrant; and if he should refuse he may be compelled to do so, as otherwise the law would remain unadministered. But if the justice has reasonable ground for doubting his jurisdiction, the court will not compel him to do an act which might subject him to an action. (2)

If justices reject an application, on the erroneous ground that they have no power to grant it. the court will interfere, so far as to set the jurisdiction, of the justices in motion, by directing them to hear and determine upon the application. (3)

If persons exercising an inferior jurisdiction refuse, on a mistaken view of the law, to hear a case, they erroneously decline to exercise their jurisdiction; and the court will compel them, by mandamus, to hear and decide it. (4)

When an inferior court abstains from entering upon the merits of a case, in consequence of its arriving at a wrong decision upon a preliminary point of law, this will be regarded as a refusal to hear; and a mandamus to hear and determine will be granted. (5)

A statute which provides that a justice may issue a summons or warrant. if he thinks fit, gives him a discretion in the issuing of the summons or warrant; but he is bound to exercise this discretion, on the evidence of a criminal offence which the information discloses; and if, on a consideration of something extraneous or extra-judicial, he refuses the summons or warrant, the court will order him to issue it. (6)

(1) R. S. Q., Art. 2599.

(2) R. v. Broderip, 5 B. & C. 239; 7 D. & R. 861.

(3) Per Lord Ellenborough, in R. v. Kent, 14 East 397. See also R. v. Surrey, 2 Show. 74, n.

(4) Per Blackburn, J., in R. v. Monmouth, L. R. 5 Q. B. 256.

(5) Per Coleridge, J., in R. v. Richards, 20 L. J. Q. B. 352.

(6) R. v. Adamson, L. R., 1 Q. B. D. 201.

Where, upon a charge being laid against a defendant for violating, in the County of Cumberland, the "Canada Temperance Act." the justices declined to issue a warrant, on the ground that the notice to the Secretary of State required to be filed with the sheriff or registrar of deeds of or in the county was not regularly filed, inasmuch as there were two registrars of deeds in Cumberland County, and the notice had only been deposited with one, and that therefore the Act was not legally in force in the county, it was held by the court, in granting an application for a writ of mandamus, that the provisions of the Act with regard to the filing of the notice were merely directory, that the proclamation having issued and the election having taken place and resulted in the adoption of the Act, the Act was in force, and that at all events. it was not open for the justices to question the regularity of the preliminary proceedings for bringing the Act into force. (1)

A mandamus has been issued in the following cases :-to receive an information or complaint; (2) to issue a distress warrant for costs upon a conviction; (3) to hear a complaint when the justices have declined jurisdiction. (4)

A mandamus was granted against a justice who refused to proceed upon an information under the Pawnbrokers' Act, (39 and 40 Geo. 3, c. 99), on the erroneous ground that it was not a case for a summary conviction in a penalty within the statute; (5) and in another case it was granted against justices who refused to hear and determine an application for a bastardy order, on the erroneous supposition that they had no jurisdiction. (6)

In one case, the Court granted a mandamus to compel justices to hear and determine an application for a summons against certain persons for unlawfully conspiring to break the peace and do griev ous bodily harm; although there was no misapprehension of the law, and the justices heard all the evidence offered, before they de

(1) R. v. Hicks, 19 N. S. R. 89.

(2) R. v. Newton, i Str. 413.

(3) R. v. Hants, J.J., 1 B. & Ad., 654; See Ex parte Robert Thomas, 16 L. J. M. C. 57.

(4) R. v. Brown, 26 L. J. M. C. 183.

(5) R. v. Beard, 12 East, 672.

(6) Ex parte Wallingford, 9 Dowl. 987.

clined to issue the summons, and although the words of the statute, (11 & 12 Vict. (Imp.), c. 42. sec. 9), were that the justices may, if they shall think fit. issue a summons. The Court proceeded on the ground that the evidence given in support of the application was so strong as to induce a belief that the justices must have acted upon a consideration of something extraneous and extra-judicial, which ought not to have affected their decision, and that this amounted to a declining of jurisdiction. (1)

Where a magistrate refused to issue a summons for perjury upon an information setting forth facts on which no jury would convict. the court would not, under these circumstances, grant a mandamus to interfere with the magistrate's discretion. (2)

The Ontario statute provides that no action or other proceeding shall be commenced or prosecuted against any person or persons for or by reason of anything done in obedience to a peremptory writ of mandamus. (3)

In the province of Quebec, the code of civil procedure provides that a mandamus may issue, whenever any person holding any office in any corporation, public body, or court of inferior- jurisdiction omits, neglects or refuses to perform any duty belonging to such office or any act which by law he is bound to perform, and also in all cases where a mandamus would lie in England. (4)

Rule in the Nature of a Mandamus.-The statutes of some of the provinces, in imitation of Imperial legislation. provide us with a useful substitute for the writ of mandamus, in such simple questions as may be conveniently argued and disposed of upon a rule, the more important questions being still the proper subject of an application for the writ of mandamus.

This provision, which is to the same effect, variously worded. in the statutes of different provinces, provides that, in case of a justice of the peace or a stipendiary magistrate refusing to do any act relating to the duties of his office, the party requiring such act to

(1) R. v. Adamson, supra.

(2) Ex parte Reid, 49 J. P. 600.

(3) R. S. O., c. 73, sec. 24.

(4) C. C. P. (Que.) Art. 1022.