For an act without ju exceeding tion, an ac 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 may be under any conviction or order made or warrant issued maintained by such justice in any such matter, may maintain an 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 con allegation; but not for an act done viction or after such order, until viction 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 eonviction have been quashed. 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 act done pel appear summons and not or order in the same matter, until after such conviction or Nor for an order shall have been so quashed as aforesaid; or if such under a warlast-mentioned warrant shall not have been followed by rant to comany such conviction or order, or if it be a warrant upon an ance, if a information for an alleged indictable offence, neverthe- were previless 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. If one justice viction or order, and another grant a war the action It is objected (S.), that in cases where the certiorari is taken away, and the statute gives no appeal, no action will lie against the magistrate, inasmuch as his conviction or order cannot in such a case be quashed. This is a mistake: this section relates only to cases in which the justice acts without jurisdiction, or exceeds it; and where he so acts, the court of Queen's Bench will grant a certiorari to bring his conviction or order, &c. before them, to have it quashed, notwithstanding the certiorari may be expressly taken away by statute. R. v. JJ. of Somersetshire, 5 B. & C. 816. This is a point familiar to crown lawyers. III. And be it enacted, that where a conviction or make a con- order shall be made by one or more justice or justices of the peace, and a warrant of distress or of commitment shall be granted thereon by some other justice of the rant upon it, peace bonâ fide and without collusion, no action shall be brought against the justice who so granted such warrant by reason of any defect in such conviction or order, or former, not for any want of jurisdiction in the justice or justices who made the same, but the action (if any) shall be brought in the con- against the justice or justices, who made such conviction or order. must be brought against the the latter, for a defect viction or order. No action for issuing a poor rate by NOTE. It often occurs in practice that the justice who issues the distress warrant or commitment on a conviction or order, is not one of the justices by whom such conviction or order was made. And still, if there was any defect in the conviction or order, which appeared also on the face of the warrant, the action must hitherto have been brought against the justice or justices by whom the warrant was signed. This was obviously unjust, and made it a perilous matter for a justice to issue a warrant on another's conviction. The law is therefore altered in this respect by this section, so as to make a justice answerable for his own errors only. IV. And be it enacted, that where any poor rate shall distress war- be made, allowed, and published, and a warrant of disrant for a tress shall issue against any person named and rated reason of any therein, no action shall be brought against the justice or rate, or that justices who shall have granted such warrant, by reason the party is of any irregularity or defect in the said rate, or by reason of such person not being liable to be rated therein; defect in the not rateable, 2 J. P. 43. which they and that in all cases where a discretionary power shall No action be given to a justice of the peace by any Act or Acts of tices for the against jusparliament, no action shall be brought against such jus- manner in tice for or by reason of the manner in which he shall exercise a have exercised his discretion in the execution of such power. NOTE. discretionary any power. The clause here as to distresses for poor rates was perfectly necessary. Many distressing cases have occurred where justices, granting a warrant of distress for a poor rate, have been holden liable to an action, not for any irregularity in the warrant itself, but for some defect in the rate. Where a magistrate granted a warrant of distress to levy the amount of poor rates against a particular person, which were levied accordingly; and it turned out that the party, although rated in respect of land in the parish, had no land in the parish, his land being in an adjoining parish: it was holden that the party might maintain an action of trespass against the justice. Weaver v. Price et al. 3 B. & Adolph. 409. S. P. Furnley v. Worthington, 10 Law J. 81. But this really is not a fair way of trying the validity of a rate, or the fact of a party's rateability; if he wish to contest that, let him appeal against the rate itself. As to the cases in which the legislature have thought proper to confide a discretionary power to justices of the peace, it would be very unfair if they should be holden liable for the manner in which they exercise their discretion in that respect. See Bassett v. Godschall, 3 Wils. 121. 2 J. P. 43. an act, the Queen's him to do it, tion shall be V. And whereas it would conduce to the advance- If a justice ment of justice and render more effective and certain the refuse to do performance of the duties of justices, and give them pro- court of tection in the performance of the same, if some simple Bench may means, not attended with much expense, were devised by rule order by which the legality of any act to be done by such jus- and no actices might be considered and adjudged by a court of brought competent jurisdiction, and such justice enabled and against him directed to perform it without risk of any action or other proceeding being brought or had against him; be it therefore enacted, that in all cases where a justice or justices of the peace shall refuse to do any act relating to the duties of his or their office as such justice or justices, it shall be lawful for the party requiring such act for doing it. to be done to apply to Her Majesty's court of Queen's Bench, upon an affidavit of the facts, for a rule calling upon such justice or justices, and also the party to be affected by such act to show cause why such act should not be done; and if after due service of such rule good cause shall not be shown against it, the said court may make the same absolute, with or without or upon payment of costs, as to them shall seem meet; and the said justice or justices upon being served with such rule absolute shall obey the same, and shall do the act required; and no action or proceeding whatsoever shall be commenced or prosecuted against such justice or justices for having obeyed such rule, and done such act so thereby required as aforesaid. NOTE. This will be found a most useful provision. In all cases where the law was doubtful upon any subject brought under the consideration of justices of the peace, they have often declined to interfere, fearing that they might render themselves liable to an action. It was with a view of remedying this, that some years since I introduced into a bill relating to writs of mandamus (6 & 7 Vict. c. 67), drawn by me for the then attorney-general, a clause prohibiting any action from being brought, or any other proceeding had, against justices or others, for anything done by them in obedience to a peremptory writ of mandamus. The legislature, however, by the above section, have provided as efficient a remedy, and one very much more desirable, because more simple, and less expensive. In matters of doubtful law the parties may now contest the matter at a small expense, and obtain the opinion of her Majesty's court of Queen's Bench upon it; and after the validity of the act required of the justice is thus determined, the justice may perform it without the hazard of an action being brought against him for doing so. And where a person rated to a highway rate neglected to appeal against it in time, but upon being summoned before a justice for not paying it, showed a seemingly good ground of exemption, and the justice therefore refused to issue a distress warrant against him: upon an application for a rule that the justice should issue his distress warrant, the court held that the party was liable to the rate, as he had not appealed against it, and they therefore made the rule absolute. R. v. JJ. of Oxfordshire, 18 Law J. 222, m. The court, however, will not in all cases interfere under this |