Be it therefore enacted, that in all cases where a Justice or On Justice Justices of the Peace shall refuse to do any act relating to the refusing to duties of his or their office, as such Justice or Justices;

do act,

it shall be lawful for the party requiring such act to be done, Application to apply to the Supreme Court, upon an affidavit of the facts, for for rule. (Jervis' Act, a rule calling upon such Justice or Justices, and also the party 8. 5.) 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 Rule absolute. shown against it, the said Court may make the same absolute,

with or without, or upon payment of costs, as to it 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 No action for or prosecuted against such Justice or Justices, for having obeyed obeying. such rule and done such act so thereby required as aforesaid.

9. In all cases where a warrant of distress or warrant of Conviction commitment shall be granted by a Justice of the Peace, upon any confirmed. conviction or order, which, either before or after the granting

of such warrant, shall have been or shall be confirmed upon appeal,

no action shall be brought against such Justice who so No action on granted such warrant for anything which may have been done warrant. under the same, by reason of any defect in such conviction or (Ibid. s. 6.) order.

10. In all cases where by this Act it is enacted that no action Setting aside shall be brought under particular circumstances; if any such proceedings. action shall be brought, it shall be lawful for a Judge of the (Sec. 7.) Court in which the same shall be brought, --upon application of the defendant, and upon an affidavit of facts,-to set aside the proceedings in such action, with or without costs, as to him shall seem meet.

11. No action shall be brought against any Justice of the Limitation. Peace for anything done by him in the execution of his office, (Sec. 8.) unless the same be commenced within six calendar months next after the act complained of shall have been committed.

action.

12. No such action shall be commenced against any Justice Month's of the Peace, until one calendar month at least after a notice in notice of writing of such intended action shall have been delivered to him, (Sec. 9.) or left for him at his usual place of abode, by the party intending to commence such action, or by his solicitor or agent;

APP. 14

Contents.

General denial.

Special defence.

No action before Justices.

Action in
District
Court.

Sie.

Tender of amends.

s. 11.)

in which notice the cause of action, and the Court in which the same is intended to be brought, shall be clearly and explicitly stated; and upon the back thereof shall be indorsed the name and place of abode of the party so intending to sue, and also the name and place of abode or of business of his solicitor or agent, if such notice have been served by such solicitor or agent.

13. In every such action the defendant shall be allowed to plead a general denial of the allegations contained in the declaration, and at the time of settling the issues to propose any special matter of defence, excuse, or justification for issue upon such plea; or if the action be in the District Court, to give any special matter of defence, excuse, or justification in evidence at the trial, although he shall not have given notice of his intention so to do. (1)

14. No action shall be brought in any Resident Magistrate's Court, Petty Sessions Court, or before Justices of the Peace, against any Justice of the Peace for anything done by him in the execution of his office.

15. No action shall be brought in any District Court against a Justice of the Peace for anything done by him in the execution of his office, if such Justice shall object thereto;

and if, within six days after being served with a summons in any such action, such Justice or his attorney (2) or agent, shall give a written notice to the plaintiff in such action, that he objects to being sued in such District Court for such cause of action; all proceedings afterwards had in such District Court in any such action shall be null and void; and if the plaintiff in any such action shall take any proceeding thereon after such notice given, it shall be lawful for the Judge of such Court, upon application of the defendant and upon proof of the service of such notice, to set aside such proceedings, with such costs to the defendant as the Judge shall think fit.

16. In every such case, after notice of action shall be given as aforesaid, and before such action shall be commenced, the (Jervis' Act, Justice to whom such notice shall be given may tender to the party complaining, or to his solicitor or agent, such sum of money as he may think fit, as amends for the injury complained of in such notice;

(1) This section is substituted, to meet the requirements of the Colony, for the 11 and 12 Vict. c. 44, s. 10.

(2) Should be "solicitor."

and after such action shall have been commenced, and at any Payment into Court. time before issues shall have been settled therein-or, if the action be in the District Court, within such time as may be fixed by the rules regulating the practice of the Court for paying money into Court,-such defendant if he have not made such tender, or in addition to such tender, shall be at liberty to pay into Court such sum of money as he may think fit;

trial.

and which said tender, and payment of money into Court, or Evidence at either of them, may afterwards,-under a plea of the general denial, at the settlement of issues, be proposed for issues by the defendant; or if such action be in the District Court, may be given in evidence upon the trial by way of defence by the defendant;

defendant.

and if the jury at the trial, or the Judge, where the trial is If enough, without a jury, shall be of opinion that the plaintiff is not judgment for entitled to damages beyond the sum so tendered or paid into Court, or beyond the sums so tendered and paid into Court, then they shall give a verdict or judgment for the defendant; and the plaintiff shall not be at liberty to elect to be nonsuit;

and the sum of money, if any, so paid into Court, or so Money paid much thereof as shall be sufficient to pay or satisfy the defend- out. ant's costs in that behalf, shall thereupon be paid out of Court to him; and the residue, if any, shall be paid to the plaintiff:

or if where money is so paid into Court in any such action, Money the plaintiff shall elect to accept the same in satisfaction of his accepted. damages in the said action, he may obtain from any Judge of the Court in which such action shall be brought, an order that such Order. money shall be paid out of Court to him, and that the defendant shall pay him his costs, to be taxed:

and thereupon the said action shall be determined; and such Bar to action. order shall be a bar to any other action for the same cause.

17. If at the trial of any such action the plaintiff shall not Notice and prove that such action was brought within the time hereinbefore time must be limited in that behalf, or that such notice as aforesaid was given plaintiff. proved by one calendar month before such action was commenced; or if he shall not prove the cause of action stated in such notice; then s. 12.) and in every such case such plaintiff shall be nonsuit, or there shall be a verdict or judgment for the defendant.

(Jervis' Act,

18. In all cases where the plaintiff in any such action shall Penalty paid, be entitled to recover, and he shall prove the levying or payment or imprisonof any penalty or sum of money under any conviction or order, (Sec. 13.) as parcel of the damages he seeks to recover; or if he prove that

ment.

If plaintiff actually guilty, nominal damages.

Costs.

(Jervis' Act, s. 14.)

Malicefull costs.

Justice to have full costs.

he was imprisoned under such conviction or order, and shall seek to recover damages for any such imprisonment:

he shall not be entitled to recover the amount of such penalty, or sum so levied or paid, or any sum beyond the sum of twopence as damages for such imprisonment, or any costs of suit whatsoever; if the defendant shall prove, under an issue stated,—or if the action be in the District Court, shall allege and prove in defence, that the plaintiff was actually guilty of the offence of which he was so convicted, or that he was liable by law to pay the sum he was so ordered to pay; and (with respect to such imprisonment), that he had undergone no greater punishment than that assigned by law for the offence of which he was so convicted, or for non-payment of the sum he was so ordered to pay.

19. If the plaintiff in any such action shall recover a verdict, or judgment be given in his favour, or the defendant shall allow judgment to pass against him by default, such plaintiff shall be entitled to costs in such manner as if this Act had not been passed;

or if in such case it be stated in the declaration,—or in the summons and particulars in the District Court, if he sue in that Court, that the act complained of was done maliciously, and without reasonable and probable cause, the plaintiff, if he recover a verdict, or obtain judgment for any damages, or if the defendant allow judgment to pass against him by default,―shall be entitled to his full costs of suit, to be taxed as between solicitor and client;

and in every action against a Justice of the Peace for any thing done by him in the execution of his office, the defendant, if he obtain judgment upon verdict or otherwise, shall in all cases be entitled to his full costs in that behalf, to be taxed as between solicitor and client.

20. This Act shall commence and take effect on the first day of January, in the year of our Lord one thousand eight hundred and sixty-seven.

THE RESIDENT MAGISTRATES ACT, 1867.

(31 VICT., No. 13.)

An Act to consolidate and amend the Laws relating to Resident Title.
Magistrates and to the jurisdiction of Justices of the Peace

in Civil matters. [10th October, 1867.]

1. The Short Title of this Act shall be "The Resident Magis- Short title. trates Act, 1867."

2. The Acts and Ordinances specified in Schedule A. (1) to Repeal. this Act are, to the extent in such schedule stated, hereby repealed; and the several Imperial Acts or parts of Imperial Acts specified in Schedule B.) to this Act shall no longer be in force in the Colony of New Zealand;

But all proceedings taken or commenced under the authority, or in execution of the said Acts and Ordinances, or any of them, before this Act comes into operation, shall be as valid to all intents and purposes, and may be continued, executed, and enforced after this Act shall come into operation, in the same manner as if this Act had not been passed:

and where, by the provisions of any Act or Ordinance now in Saving clause. force, proceedings are directed to be taken, or penalties enforced under any Act or Ordinance, or part of any Act or Ordinance hereby repealed, or in a Resident Magistrate's Court or before a Resident Magistrate, such proceedings may be taken and such penalties may be recovered under this Act, or in a Resident Magistrate's Court established, or before a Resident Magistrate appointed, hereunder.

() The following are the Acts and Ordinances mentioned in the Schedule A., and hereby repealed:

"The Courts of Requests Ordinance," Sess. III., No. 8;

“The Resident Magistrates' Courts Ordinance," Sess. VII., No. 16;

"The New Munster Summary Ejectment Ordinance, 1849,” No. 6;

66

The Resident Magistrates' Courts Ordinance Amendment Act, 1856;" "The Resident Magistrates' Courts Act, 1858;"

"The Resident Magistrates' Ordinance Amendment Act, 1861;"

"The Resident Magistrates' Jurisdiction Extension Act, 1862;"

"The Resident Magistrates' Criminal Jurisdiction Extension and Amend. ment Act, 1865;"

and the 31st section of "The Native Circuit Courts Act, 1858."

(2) The Imperial Acts specified in Schedule B. are the 16th and 17th sections of the 11 Geo. II. c. 19, "An Act for the more effectual securing the Payment of Rents and preventing Frauds by Tenants;" the 57 Geo. III. c. 52, amending the last-mentioned Act; and 1 and 2 Vict. c. 74, “An Act to facilitate the recovery of possession of Tenements after due determination of the tenancy."