considering whether he had the intention necessary to constitute the offence charged: R. v. Cruse, Warb. Lead. Cas. 24, and cases there cited: R. v. Doherty, 16 Cox, 306; R. v. Carroll, 7 C. & P. 145; 1 Russ. 12, and Greaves' note.

Ignorance of the law, an excuse in a specified case under section 21, post.

As to liability, in criminal law, of masters for the acts of their servants: see R. v. Stephens, Warb. Lead. Cas. 37; Bond v. Evans, 16 Cox, 461, 21 Q. B. D. 249; R. v. Bennett, Bell, 1; R. v. Allen, 7 C. & P. 153; Chisholm v. Doulton, 16 Cox, 675, 22 Q. B. D. 736, and cases there cited; Kearley v. Tylor, 17 Cox, 328; Elliott v. Osborn, 17 Cox, 346; Brown v. Foot, 17 Cox, 509.

EXECUTION OF SENTENCE.

15. Every ministerial officer of any court authorized to execute a lawful sentence, and every gaoler, and every person lawfully assisting such ministerial officer or gaoler, is justified in executing such sentence.

That is common law. What the law requires, it justifies. Quando aliquid mandatur, mandatur et omne per quod pervenitur ad illud (5 Rep. 115 b.) See post, sections 18 & 19, as to erroneous sentences, and note under section 16 as to the word justified.

EXECUTION OF PROCESS.

16. Every ministerial officer of any court duly authorized to execute any lawful process of such court, whether of a civil or a criminal nature, and every person lawfully assisting him, is justified in executing the same; and every gaoler who is required under such process to receive and detain any person is justified in receiving and detaining him.

See note under preceding section, and R. v. King, 18 O. R. 566.

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There is a difference in the language used in the sections in this part which probably requires explanation. Sometimes it is said that the person doing an act is "justified" in so doing under particular circumstances. The effect of an enactment using that word would be not only to relieve him from punishment, but also to afford him a statutable defence against a civil action for what he had done. Sometimes it is said that a

person doing an act is 'protected from criminal responsibility' under particular circumstances. The effect of an enactment using this language is to relieve him from punishment, but to leave his liability to an action for damages to be determined on other grounds, the enactment neither giving a defence to such an action where it does not exist, nor taking it away where it does. This difference is rendered necessary by the proposed abolition of the distinction between felony and misdemeanour.

"We think that in all cases where it is the duty of a peace officer to arrest, (as it is in cases of felony) it is proper that he should be protected as he now is, from civil as well as from criminal responsibility. And as it is proposed to abolish the distinction between felony and misdemeanour, on which most of the existing law as to arresting without a warrant depends, we think it is necessary to give a new protection from all liability (both civil. and criminal) for arrest, in those cases which by the schemes of the Draft Code are (so far as the power of arrest is concerned) substituted for felonies. In those cases therefore which are provided for in sections 32, 33, 34, 37, 38, (22, 23, 24, 27, 28, of this Code) the word justified' is used. A private person is, by the existing law, protected from civil responsibility for arresting without warrant a person who is on reasonable grounds believed to have committed a felony, provided a felony has actually been committed, but not otherwise. In section 35, (25 of this Code) providing an equivalent for this law, the word used is 'justified.'

"On the other hand, where we suggest an enactment which extends the existing law for the purpose of protecting the person from criminal proceedings, we have not thought it right that it should deprive the person injured of his right to damages.

“And in cases in which it is doubtful whether the enactment extends the existing law or not, we have thought it better not to prejudice the decision of the civil courts by the language used. In cases therefore such as those dealt with by sections 29, 30, 31, 36, 39, 46, 47, (19, 20, 21, 26, 29, 36, 37, of this Code) we have used the words 'protected from criminal responsibility.'”—Imp. Comm. Rep.

Parliament clearly assumed that they have the same right to deal with this subject that the Imperial Parliament has:-Quare?

EXECUTION OF WARRANTS.

17. Every one duly authorized to execute a lawful warrant issued by any court or justice of the peace or other person having jurisdiction to issue such warrant, and every person lawfully assisting him, is justified in executing such warrant; and every gaoler who is required under such warrant to receive and detain any person is justified in receiving and retaining him.

See note under section 15: R. v. Davies, 8 Cox, 486, and note under section 16 as to the word justified.

A warrant can only be executed by the person to whom it is directed, and if executed by any other this other commits a trespass: Symonds v. Kurtz, 16 Cox, 726.

EXECUTION OF ERRONEOUS SENTENCE OR PROCESS.

18. If a sentence is passed or process issued by a court having jurisdiction under any circumstances to pass such a sentence or issue such process, or if a warrant is issued by a court or person having jurisdiction under any circumstances to issue such a warrant, the sentence passed or process or warrant issued shall be sufficient to justify the officer or person authorized to execute the same, and every gaoler and person lawfully assisting in executing or carrying out such sentence, process or warrant, although the court passing the sentence or issuing the process had not in the particular case authority to pass the sentence or to issue the process, or although the court, justice or other person in the particular case had no jurisdiction to issue, or exceeded its or his jurisdiction in issuing the warrant, or was, at the time when such sentence was passed or process or warrant issued, out of the district in or for which such court, Justice or person was entitled to act.

See West v. Smallwood, 3 M. & W. 418.

"The latter part of this section (in italics) perhaps extends the law."-Imp. Comm. Rep.

See note under section 16 as to the word justified.

"The result of the authorities justifies us in saying that wherever a ministerial officer, who is bound to obey the orders of a court or magistrate (as, for instance, in executing a sentence or effecting an arrest under warrant), and is punishable by indictment for disobedience, merely obeys the order which he has received, he is justified, if that order was within the jurisdiction of the person giving it.

"And we think that the authorities show that a ministerial officer obeying an order of the court, or the warrant of a magistrate, is justified, if the warrant or order was one which the court or magistrate could, under any circumstances, lawfully

issue, though the order or warrant was in fact obtained improperly; or, though there was a defect of jurisdiction in the particular case, which might make the magistrate issuing the warrant civilly responsible: on the plain principle that a ministerial officer is not bound to enquire, what were the grounds on which the order or warrant was issued, and is not to blame for acting on the supposition, that the court or magistrate had jurisdiction."-Imp. Comm. Rep.

SENTENCE OR PROCESS WITHOUT JURISDICTION.

19. Every officer, gaoler or person executing any sentence, process or warrant, and every person lawfully assisting such officer, gaoler or person, shall be protected from criminal responsibility if he acts in good faith under the belief that the sentence or process was that of a court having jurisdiction or that the warrant was that of a court, justice of the peace or other person having authority to issue warrants, and if it be proved that the person passing the sentence or issuing the process acted as such a court under colour of having some appointment or commission lawfully authorizing him to act as such a court, or that the person issuing the warrant acted as a justice of the peace or other person having such authority, although in fact such appointment or commission did not exist or had expired, or although in fact the court or the person passing the sentence or issuing the process was not the court or the person authorized by the commission to act, or the person issuing the warrant was not duly authorized so to act.

See note under section 16 as to the words, "criminal responsibility."

Though cases of this sort have rarely arisen in practice, we think we are justified by the opinion of Lord Hale (1 Hale, 498) in saying that the order of a court, having a colour of jurisdiction, though acting erroneously, is enough to justify the ministerial officer."-Imp. Comm. Rep.

ARRESTING THE WRONG PERSON. (New).

20. Every one duly authorized to execute a warrant to arrest who thereupon arrests a person, believing in good faith and on reasonable and probable grounds that he is the person named in the warrant, shall be protected from criminal responsibility to the same extent and subject to the same provision as if the person arrested had been the person named in the warrant.

(2) Every one called on to assist the person making such arrest, and believing that the person in whose arrest he is called on to assist is the person for whose arrest the warrant is issued, and every gaoler who is required to receive and detain such person, shall be protected to the same extent and subject to the same provisions as if the arrested person had been the person named in the warrant.

See note under section 16 as to the words "criminal responsibility."

"This is new. As an officer arresting for felony without warrant is by the common law justified even if he by mistake arrests the wrong person, we think that the man who arrests any person with a warrant for any offence shall at least be protected from criminal responsibility. The right of action is not affected by it."-Imp. Comm. Rep.

IRREGULAR WARRANT OR PROCESS.

21. Every one acting under a warrant or process which is bad in law on account of some defect in substance or in form apparent on the face of it, if he in good faith and without culpable ignorance and negligence believes that the warrant or process is good in law, shall be protected from criminal responsibility to the same extent and subject to the same provisions as if the warrant or process were good in law, and ignorance of the law shall in such case be an excuse: Provided, that it shall be a question of law whether the facts of which there is evidence may or may not constitute culpable ignorance or negligence in his so believing the warrant or process to be good in law.

See note under section 16 as to the words "criminal responsibility."

"It is at least doubtful on the existing authorities whether a person honestly acting under a bad warrant, defective on the face of it, has any defence, though only doing what would have been his duty if the warrant was good. The section, as framed, protects him. The proviso is new, but seems to be reasonable. It does not touch the question of civil responsibility."-Imp. Comm. Rep.

See R. v. Monkman, under section 263 post.

ARREST BY PEACE OFFICER.

22. Every peace officer who, on reasonable and probable grounds, believes that an offence for which the offender may be arrested without warrant has been committed, whether it has been committed or not, and who, on reasonable and probable grounds, believes that any person has committed that offence, is justified in arresting such person without warrant, whether such person is guilty or not.

"Peace Officer" defined, section 3. See note under section 16, as to the word justified. Section 552 defines for what offence an arrest may be made without warrant. This section 22 is a re-enactment of the law as to felonies.