to the validity of the conviction that it should shew on its face that the limitation has not been exceeded. Neither the summary conviction nor the warrant of commitment for a third offence against the Canada Temperance Act need shew that the information leading to a prior conviction was laid within the statutory period of three months after the offence. R. v. Clark (No. 2) (1906), 12 Can. Cr. Cas. 485.

Actions against Persons Administering the Criminal Law.

action.

1143. Every action and prosecution against any person for Time and anything purporting to be done in pursuance of any Act of the place of Parliament of Canada relating to criminal law, shall, unless otherwise provided, be laid and tried in the district, county or other judicial division, where the act was committed, and not elsewhere, and shall not be commenced except within six months next after the act committed. 55-56 V., c. 29, s. 975.

1144. Notice in writing of such action and of the cause Notice in thereof, shall be given to the defendant one month at least before writing. the commencement of the action. 55-56 V., c. 29, s. 976.

Notice of action.]-The tendency of courts has been rather to extend than restrict the protection afforded to peace officers professing to act in the execution of their duty by notices of action. White v. Hamm (1903), 36 N.B.R. 237, 240, per Barker, J.

Although the defendant's conduct may have been illegal, it is just the illegality for which the legislature intended a person should have notice of action in order to enable him, if he choose, to render amends. When it is said that a man does a thing "in pursuance of" an Act of Parliament, it does not necessarily mean that he does it in exact execution of the Act, or in exact accordance with its provisions. The word is applicable where a man endeavours, though unsuccessful, to follow the Act. Read v. Coker, 17 Jur. 990.

There is a class of cases where actions have been brought against persons, who, acting in supposed pursuance of an Act of Parliament, e.g., the Larceny Act, have arrested others as having been "found committing" an offence against the Act, and the question has arisen whether they were "found committing" the offence, or were "immediately" apprehended within the meaning of the Act so as to justify the arrest. The right of the defendant in such cases to notice of action has been said to depend upon whether he bona fide believed in the existence of a state of facts which, had they existed, would have afforded a defence to the action, and it is laid down that this is the proper question in such cases to submit to the jury. Such are the cases of Heath v. Brewer, 15 C.B.N.S. 803; Hermann v. Seneschal, 13 C.B.N.S. 392; Roberts v. Orchard, 2 H. & C. 769; Chamberlain v. King, L.R. 6 C.P. 474; Griffith v. Taylor, 2 C.P.D. 194.

There is another class of cases, of which Agnew v. Jobson, 13 Cox C.C. 625, is an illustration, where a justice has done some act "wholly alien to his jurisdiction." for doing which he had "no other authority than any other person in the realm, no pretence for authority or for saying that he was within the precincts of the law." Norton v. Miller, 2 Chitty 140. In such cases the defendant is not entitled to notice of action. See also · Sinden v. Brown, 17 Ont. App. 173; McGuiness v. Dafoe, 3 Can. Cr. Cas.

General issue.

Tender or payment into court.

Judgment if action not brought in time, etc.

Costs.

No costs

139, 23 Ont. App. R. 704; Friel v. Ferguson, 15 U.C.C.P. 584; Neil v. MeMillan, 25 U.C.R. 485; Usill v. Hales, 3 C.P.D. 319; Cummins v. Moore, 37 U.C.R. 130; Venning v. Steadman, 9 Can, S.C.R. 206.

1145. In any such action the defendant may plead the general issue, and give the provisions of this title and the special matter in evidence at any trial had thereupon. 55-56 V., c. 29, s. 977.

1146. No plaintiff shall recover in any such action if tender of sufficient amends is made before such action brought, or if a sufficient sum of money is paid into court by or on behalf of the defendant after such action brought. 55-56 V., c. 29, s. 978.

1147. If such action is commenced after the time limited as aforesaid for bringing the same, or is brought or the venue laid in any other place than as aforesaid, a verdict shall be found or judgment shall be given for the defendant; and thereupon, or if the plaintiff becomes nonsuit, or discontinues any such action after issue joined, or if upon demurrer or otherwise judgment is given against the plaintiff, the defendant shall, in the discretion of the court, recover his full costs as between solicitor and client, and shall have the like remedy for the same as any defendant has by law in other cases.

2. Although a verdict or judgment is given for the plaintiff unless action in any such action, such plaintiff shall not have costs against approved. the defendant, unless the judge before whom the trial is had certifies his approval of the action. 55-56 V., c. 29, s. 979.

Other pro

remain.

1148. Nothing herein shall prevent the effect of any Act in tecting Acts force in any province of Canada, for the protection of justices or other officers from vexatious actions for things purporting to be done in the performance of their duty. 55-56 V., c. 29, s. 980.

Criminal proceedings as a justification.]—Where the justices have a general jurisdiction over the subject matter upon which they have issued a warrant of commitment to a gaoler, the gaoler is not liable to an action, though their proceedings are erroneous; but it is otherwise if the justices were acting wholly out of their jurisdiction. Ferguson v. Adams (1848), 5 U.C.Q.B. 194.

A conviction made by a magistrate protects him from an action of trespass in respect to the enforcement of the same, so long as it has not been set aside. Gates v. Devenish (1849), 6 U.C.Q.B. 260.

In an action against a magistrate for trespass and illegal seizure of goods, in order to shew a good justification it is necessary that the de

fendant should give in evidence a conviction not illegal on the face of it, and a warrant of distress supported by the conviction, and not on the face of it an illegal warrant. In a case where a magistrate's conviction was for "wilfully damaging, spoiling and taking away six bushels of apples of A.B., whereby C.D. committed an injury to the said goods and chattels of the said A.B." and the warrant recited that "judgment was given against C.D. in a suit of A.B. v. C.D. for a misdemeanour in taking apples by force and violence off and from the presence of A.B.," it was held that the conviction did not support the warrant; and also that neither the conviction nor the warrant contained a statement of an offence for which such a conviction could take place. Eastman v. Reid (1850), 6 U.C.Q.B.

611.

III., six

1149. Every action brought against any commissioner Actions under Part under Part III. of this Act or any justice, constable, peace officer or other person, for anything done in pursuance of the months. said Part, shall be commenced within six months next after the alleged cause of action arises; and the venue shall be laid or Venue. the action instituted in the district or county or place where the cause of action arose; and the defendant may plead the general issue and give this Act and the special matter in evidence.

action not

2. If such action is brought after the time limited, or the Judgment if venue is laid or the action brought in any other district, county brought in or place than in this section prescribed, the judgment or verdict time, etc. shall be given for the defendant; and in such case, or if the judgment or verdict is given for the defendant on the merits, or if the plaintiff becomes non-suited or discontinues after appearance is entered, or has judgment rendered against him

on demurrer, the defendant shall be entitled to recover double Double costs. costs. R.S., c. 151, s. 24.

Part III. of the Code relates to the preservation of the peace in the vicinity of public works, and includes secs. 142-154.

under

months.

1150. All actions for penalties arising under the provisions Actions for of section eleven hundred and thirty-four shall be commenced penalties within six months next after the cause of action accrues, and section 1134 the same shall be tried in the district, county or place wherein within six such penalties have been incurred; and if a verdict or judgment passes for the defendant, or the plaintiff becomes non-suit, or discontinues the action after issue joined, or if, upon demurrer or otherwise, judgment is given against the plaintiff, the defendant shall, in the discretion of the court, recover his costs Costs. of suit, as between solicitor and client, and shall have the like remedy for the same as any defendant has by law in other cases. 55-56 V., c. 29, s. 904.

Enforcing conviction

under section

765, no action.

1151. No action or proceeding shall be commenced or had against a justice for enforcing a conviction, order or determination affirmed, amended or made by the court under section seven hundred and sixty-five. 55-56 V., c. 29, s. 900.

Section 765, referred to in sec. 1151, deals with "cases stated" for the opinion of a superior court in matters of summary conviction.

PART XXV.

FORMS.

Part may be varied as to

1152. The several forms in this Part, varied to suit the As in this case, or forms to the like effect, shall be deemed good, valid and sufficient in the cases thereby respectively provided for; and officials. may, when made for one class of officials, be varied so as to apply to any other class having the same jurisdiction. 55-56 V., c. 29, ss. 541 and 982.

Statutory forms.]—A similar provision was contained in the statute 3233 Vict., ch. 30, and it was held by Taylor, J., of the Manitoba Court of Queen's Bench that the forms were not imperative. R. v. Connor (1885), 2 Man. R. 235, 1 Terr. L.R. 4.

The use of Code form 73 in endorsing a certificate of non-appearance upon a recognizance of bail is not imperative. R. v. May (1905), 9 Can. Cr. Cas. 529.

A notice of appeal from a summary conviction is not invalid because of the want of signature. And although signature was indicated by former Code form NNN., an unsigned notice of appeal otherwise valid in form was held to be a "form to the like effect" and valid. The King v. Bryson, 10 Can. Cr. Cas. 398.

Where statutory forms are declared to be sufficient by the statute itself, a warrant following the statutory form is good, although it does not mention all of the statutory conditions of discharge. Ex parte Hilchie, 11 Can. Cr. Cas. 85.

Where an estreat had been directed upon an informal certificate initialed but not more fully signed by the magistrate, a motion made after a long delay to vacate the estreat for irregularity was refused. R. v. May (1905) 9 Can. Cr. Cas. 529; and see R. v. Hamilton (1898), 2 Can. Cr. Cas. 390.

justice of the peace, in and for the district (or county, etc.,)

of

who says that (describe things to be