For an act by a justice of the peace, within his jurisdiction, the action shall be case, and it shall be alleged to have been For an act done by him, without jurisdiction, or exceeding his jurisdiction, an action may be maintained without such allegation;-but not for an act done under a conviction or order, until after such conviction or order shall have been quashed; nor for an act done under a warrant to compel an appearance, if a summons were previously served and If one justice make a conviction or order, and another grant a warrant upon it, the action must be brought against the former, and not the latter, for a defect in the conviction or No action for issuing a distress warrant for a poor rate, by If a justice refuse to do an act, the court of Queen's Bench may, by rule, order him to do it, and no action shall be brought against him for doing it; 5. After conviction or order confirmed on appeal, no action for If an action be brought, where by this Act it is prohibited, a 193 11 & 12 VICTORIA, CAP. XLIV. An Act to protect Justices of the Peace from vexatious of peace, SECTION I. WHEREAS it is expedient to protect justices Preamble. of the peace in the execution of their duty: be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that every For an act action hereafter to be brought against any justice of the by a justice peace for any act done by him in the execution of his within his jurisdiction, duty as such justice, with respect to any matter within the action his jurisdiction as such justice, shall be an action on the shall be case, case as for a tort; and in the declaration it shall be ex- be alleged to pressly alleged that such act was done maliciously, and done maliciwithout reasonable and probable cause; and if at the ously, and trial of any such action, upon the general issue being bable cause. pleaded, the plaintiff shall fail to prove such allegation, he shall be nonsuit, or a verdict shall be given for the defendant. and it shall have been without pro 2 J. P. 42, 46. NOTE. Before this statute, if a conviction had been actually quashed, then, by stat. 43 G. 3, c. 141, s. 1, in any action brought against the justice on account of it, or on account of any act, matter, or thing done by him, for the levying any penalty, apprehending of the party, or otherwise carrying the conviction into effect, the plaintiff could not recover more than 2d. damages, besides the amount of the penalty (if any had been levied), nor any costs of suit, unless the action were an action on the case, and the declaration expressly stated that the acts were done maliciously, and without reasonable or probable cause. And that Act was holden not to extend to cases where the justice had acted in a matter out of his jurisdiction, but was confined entirely to actions for something k For an act without ju exceeding tion may be without such irregularly done by him of which he had jurisdiction. But why it should be confined to cases where the conviction had been actually quashed, I never could understand. One would imagine that the magistrate would be entitled to more favour and indulgence, where it had not been decided that his proceedings were wrong, than where that had been decided, and his proceedings actually quashed. In adopting the provisions of this statute 43 G. 3, c. 141, therefore, the present section very properly makes no distinction between cases where the conviction or proceeding has been quashed, and where it has not; in both cases, if the act complained of were done by the magistrate in a matter of which he had jurisdiction, the action must be an action on the case, and the declaration must allege the act to have been done maliciously and without reasonable and probable cause, and the allegation must be proved as laid. As to the provision relating to the damages, in the statute 43 G. 3, c. 141, s. 1, it will be found to be adopted in a subsequent part of this Act. The term "declaration" in the above section, will no doubt be holden to apply to the summons in actions in the county courts, the summons there being in the nature of a declaration, as stating the substance of the action." See 9 & 10 Vict. c. 95, s. 50. This appears clearly from the 14th section of this statute, post, p. 205. II. And be it enacted, that for any act done by a jusdone by him, tice of the peace in a matter of which by law he has not risdiction or jurisdiction, or in which he shall have exceeded his jurishis jurisdic- diction, any person injured thereby, or by any act done tion, an ac under any conviction or order made or warrant issued maintained by such justice in any such matter, may maintain an allegation; action against such justice in the same form and in the same case as he might have done before the passing of this Act, without making any allegation in his declaration that the act complained of was done maliciously and without reasonable and probable cause: provided nevertheless, that no such action shall be brought for any thing under a con- done under such conviction or order until after such conviction shall have been quashed, either upon appeal or upon application to her Majesty's court of Queen's or order shall Bench; nor shall any such action be brought for any thing done under any such warrant which shall have been issued by such justice to procure the appearance of such party, and which shall have been followed by a conviction but not for an act done viction or order, until after such eonviction have been quashed. Nor for an act done were previ and not or order in the same matter, until after such conviction or order shall have been so quashed as aforesaid; or if such under a warlast-mentioned warrant shall not have been followed by rant to compel appearany such conviction or order, or if it be a warrant upon an ance, if a information for an alleged indictable offence, neverthe-summons less if a summons were issued previously to such war- ously served rant, and such summons were served upon such person, obeyed. either personally or by leaving the same for him with some person at his last or most usual place of abode, and he did not appear according to the exigency of such summons, in such case no such action shall be maintained against such justice for any thing done under such warrant. NOTE. This section makes a marked distinction between an act done by a magistrate in a matter of which he had no jurisdiction, or in which he exceeded his jurisdiction, and an act irregularly done in a matter of which he has jurisdiction. Where a magistrate has no jurisdiction, his act is no more than that of any ordinary individual, done without any authority or pretence of right; and the party injured by such act, has the same remedy by action against the one, as against the other. But the legislature have thought it right, that it should first be ascertained whether the act of the justice was really done in a matter of which he had no jurisdiction, or in respect of which he exceeded his jurisdiction, before such an action should be brought against him, and not to leave that matter to be decided at nisi prius, when possibly it might be decided in favour of the justice, after he had been put to all the expense of his defence. It is provided therefore by the present section that the action shall not be brought for anything done under a conviction or order, until such conviction shall have been quashed; nor for any thing done under a warrant to compel an appearance, followed by a conviction or order, until the conviction or order be quashed; nor for any thing done under such warrant, not followed by a conviction or order, or under a warrant for an alleged indictable offence, if a summons had been previously served, and not obeyed. It has been decided that where a conviction was drawn up for a penalty only, without mention of costs, and the distress warrant was afterwards drawn up and executed for both penalty and costs, the latter was an excess of jurisdiction in the justice who signed it, and that trespass, not case, was the proper remedy. Leary v. Patrick et al., 14 Shaw's J. P. 334, 15 Law Times, 203. |