The proviso in that section applies to the action mentioned in that section only, viz., where the justice has no jurisdiction or has exceeded his jurisdiction, and does not refer to the 1st section (x). Where a justice has no jurisdiction to do an act may be illustrated by this: the existence of a legal obligation to pay wages is a necessary preliminary condition to the magistrate having any authority to enforce payment; and if no such obligation exists, he acts without jurisdiction (y). Where a justice shall have exceeded his jurisdiction means such a case as in Leary v. Patrick (2), where a distress warrant recited an adjudication to pay costs, which was contrary to the fact. Lord Campbell, C. J., in giving judgment, says, "The imprisonment and the warrant and the seizure are all defended on the ground that there was an adjudication to pay costs; and, as there was no such adjudication, I think it is an illegal warrant, and that the imprisonment was wrongful, and the seizure of the goods an excess of jurisdiction" (a). It sometimes becomes necessary to observe the distinction which prevails between those cases in which a magistrate has a general jurisdiction to inquire into the subject matter, but is without jurisdiction over the particular matter or the particular individual before him. With reference to this question, it has been said that the protection of a magistrate depends not on general jurisdiction over the subject matter, but over the particular matter or individual (b).

Trespass is maintainable under the 2nd section if, in the particular act of issuing the warrant, the magistrate acted without or in excess of jurisdiction; the matter in which the magistrate acts is not to be considered as consisting of the whole transaction of the inquiry before him in which he has a general jurisdiction to commit, but as consisting in the act of issuing the warrant for the plaintiff's arrest (c).

(x) Lalor v. Bland, 8 Ir. C. L. R. 115; R. v. Wood, 5 Ell. & Bl. 49; Barton v. Bricknell, 13 Q. B. 393; Leary v. Patrick, 15 Q. B. 266; Kendall v. Wilkinson, 4 El. & Bl. 680. (y) See Newbould v. Coltman, 6 Exch. 189, and the numerous cases cited on acts done by justices without jurisdiction.

A warrant issued by a jus

(2) 15 Q. B. 266.

(a) See also Barton v. Bricknell, 13 Q. B. 393; Newbold v. Coltman, 6 Exch 20; Pratt v. Parkinson, 20 L. J. M. C. 208, 17 L. T. 94, and the cases cited therein.

(b) Caudle v. Seymour, 1Q. B. 889. (c) Lawrenceson v. Hill, 10 I. C. L. R. 186.

tice, founded upon an information which discloses no criminal offence, cannot be sustained by proof that there was in fact parol evidence on oath given, which conveyed a criminal charge (d). A J. P. has jurisdiction to require sureties for good behaviour of a person charged before him upon information with having published a libel calculated to produce a breach of the peace, and, in default of such sureties, to commit the party so charged to prison; therefore trespass vi et armis will not lie for such imprisonment (e).

If action wrongly brought, judge may stay proccedings.] Until the recent case of Lalor v. Bland (ƒ), there was no reported case to be found of any decision under the seventh section on an application to set aside proceedings under its provisions, or under the corresponding section of the English statute. Pigot, C. B., in giving judgment, says: "In my opinion, the jurisdiction conferred on us by the 7th section is one which, where the case is plain and clear, we ought to exercise in furtherance of the protection which it was the declared purpose of the legis lature to afford to magistrates, and, indeed, in mercy to both parties; for it will be stopping in the commencement an action which, if it proceeds, must ultimately fail. But I am also of opinion that we ought not to exercise this jurisdiction on conflicting affidavits, and in a case in which we are not clearly satisfied we shall be right in our decision; recollecting that from our order, setting aside the proceedings, there is no appeal; that in many cases it will be final, because (as in the case now before us) it will be too late to bring an action in another court; while our refusal to interfere will not preclude the defendant, who may rely, in defence to the action, on the same grounds on which he seeks to set aside the proceedings."

The legislature has provided another security for magistrates in the execution of their duty, by fixing a limit of time within which actions can be brought against them.

Limitation of time.] By section 8, it is provided no action shall be brought against any justice for anything done by him

(d) Lawrenceson v. Hill, 10 I. C. L. R. 186.

(e) Haylock v.Sparke, 1 El.&Bl.471. (f) 8 Ir. C. L. R. 115.

in the execution of his office, unless such action shall be commenced within six calendar months next after the act complained of shall have been committed (g). In computing the six months, in an action against a justice for false imprisonment, where the imprisonment expired on the 14th day of December, and the writ was sued out on the 14th of June following, it was held, that the former day was to be excluded, and that the action was therefore brought in time (h). The Court of Q. B. refused to hasten the argument of a case which was in the Crown paper, although it was urged that, if this were not done, the six months' limitation would expire before the case could be heard, and so the party would be deprived of his remedy (i). But the court founded their refusal chiefly upon the fact that there had been delay in setting it down, and it is probable that they would not adopt this as an invariable rule, especially if the facts really shewed that the injury was one for which the magistrate ought properly to compensate in damages. In Lalor v. Bland (5), the court set aside the plaint only, and allowed the writ to stand as a summons, more than six months having elapsed since the conviction, in order to save the statute. Upon a similar section to the one now under consideration it has been held, that the justice was answerable for such part of an imprisonment under his warrant as was within six calendar months of the commencement of the action, though the first commitment was beyond that time (k).

Time of action, how reckoned.] In the computation of the month's notice of action to a justice, required by the ninth section, the day of giving the notice and the day of suing out the writ are both excluded (). The notice may be given before the quashing of the order, the act done being the cause of action;

(g) See as to meaning of words, "act complained of," Haylock v. Spark, 1 El. & Bl. 471.

(h) Hardy v. Ryle, 9 B. & C. 603; 4 Man. & Ry. 295; Collins v. Rose, 5 M. & W. 194; Paley on Conv. 410.

(i) R. v. Bartlett, 13 L. T. 374.
(5) 8 Ir. C. L. R. 115; Richards,

B. dissenting.

(k) Massey v. Johnson, 12 East, 75, 76; Bull, N. P. 24; see Eggington v. the Mayor of Lichñeld, 5 El. & Bl. 100; 24 L. J. N. S. Q. B. 360, S. C., and cases there cited; see Paley Conv. 410.

(1) Young v. Higgon, 8 Dowl. 212; 6 M. & W. 49, S. C.

although the action itself cannot be brought until after the order is quashed (m). Lord Campbell, in giving judgment in Haylock v. Sparke, is reported to have said: "If, in the case of a conviction, the J. P. receives such a notice before the conviction is quashed, he may at his peril rely upon the validity of the conviction, and abstain from tendering amends; but if he does so, and the conviction is quashed, the action may be commenced against him one calendar month after the service of the notice. Were not this so, the party might be barred of his remedy altogether; for by sec. 8 of the same statute the action must be brought within six calendar months next after the act complained of shall have been committed. The conviction is the act complained of, not the quashing of the conviction on the application of the party imprisoned. The quashing of the conviction is only a condition to the prosecution of the action, like the delivery of an attorney's bill, or the giving a notice of action, and there is nothing to determine in what order the conditions shall be complied with."

What the notice should contain.] In the notice the cause of action should be "clearly and explicitly stated," shewing under which section the complaint is founded (n), so that the defendant may have the opportunity of tending amends (o). It is not sufficient for a party to state in his notice that the defendant has offended against the statute; it ought to shew on the face of the notice that an offence has been committed (p). If the cause of action be under the 1st section of the 12th Vic. c. 16, the notice should state that the act was committed maliciously, and without reasonable and probable cause, and that the act done was one within the defendant's jurisdiction (q). It should specify the place where the act complained of was committed (r). It has been held sufficient to state the imprisonment to have been in "a certain common gaol or prison in the borough of

(m) Haylock v. Sparke, 1 El. & Bl.

471.

(n) Taylor v. Nesfield, 3 El. & B. 724.

(0) Wood v. Folliot, 3 Bos. & P. 552, n.

(P) Towsey v. White, 5 B. & C. 133.

(q) Taylor v. Nesfield, 3 El. & Bl. 724; Tarrant v. Baker, 14 C. B. 199.

(r) Kane v. Lloyd, 1 Ir. J. 208; Martins v. Upcher, 3 Q. B. 662; Breese v. Jerdein, 4 id. 585; Jacklin v. Fytche, 14 M. & W. 381.

Monmouth" (8), or, "at the parish of, in the borough of

"(t). It need not, however, describe the form of action (u). If the plaintiff is described of a wrong place, it is fatal (v). Where the notice was given on behalf of two persons, one of whom was dead at the time, it was held to be bad (w). See as to description of attorney's residence and signature (x). It was held in a recent case in this country, that the name and place of abode of the plaintiff's attorney should appear on the back of the notice of action (when the notice of action has been served by the attorney); and it is not sufficient that they should appear in the body or at the foot of it (y). The notice should be in the form of a notice, and not like a mere letter (z). The omission to give a notice is not cured by the magistrate pleading a tender of amends (a).

Notice of action, when necessary.] It would appear from the wording of the 8th section of the Justices' Protection Act (b), that if the defendant filled the character of a magistrate, and intended to act in that character, he is entitled to notice of action. If a justice acted in any of the three classes of cases contemplated by the above statute, viz.: "within his jurisdiction," ""without jurisdiction," or, "exceeded his jurisdiction," he would appear to be entitled to one month's notice of action. will be perceived from the wording of the 9th section of the above act, that no such action shall be commenced against any justice of the peace, until one calendar month at least after notice in writing," etc.; the action here mentioned is that which

(8) Prickett v. Greatrex, 8 Q.B.1021. (t) Leary v. Patrick, 15 Q. B. 266; see Paley Conv. 418.

(u) Sabin v. De Burgh, 2 Camp. 196; Prickett v. Greatrex, 1 Car. & K. 651. (v) O'Reilly v. Lawton, 3 Ir. L. R.

290.

(w) Pilkington v. Riley, 3 Exch. 739.

(x) Wood v. Folliott, 3 B. & P. 552; Roberts v. Williams, 5 Tyr. 583; Taylor v. Fenwick, cited 7 T. R. 635; James v. Swift, 4 B. & C. 681; Hollingworth v. Palmer, 4 Ex. 267; Morgan v. Leach, 10 M. & W. 558.

It

(y) Collins v. Hungerford, 7 Ir. C. L. R. 581.

(z) Norris v. Smith, 2 P. & D. 350; 10 Ad. & Ell. 180.

(a) Martin v. Upcher, 3 Q. B. 662; in the recent case of Lawrenson v. Hill, 10 I. C. L. R. 498, it was held by the Court of Exchequer, that the proof of a notice of action was a necessary part of the plaintiff's case, and must be given by him, though the want of it be not relied upon in pleading by the defendant; but this case was afterwards over-ruled on appeal [not reported].

(b) 12 Vic. c. 16.