Jurisdiction of
Justices.

Protection from actions.

General provisions as to form of action, &c.

Paley on Conv. 3rd ed. 57; 5 J. P. 404; 11 J. P. 785; 2
Arch. J. P. 179).

7. They should in no case interfere where interested in the subject-
matter in the slightest way.

Thirdly. THE PROTECTION OF JUSTICES FROM Vexatious ACTIONS.

The statute upon this subject, the 11 & 12 Vict. c. 44 (i), which came into operation on the 2nd of October, 1848 (s. 16), states in its preamble, that "it is expedient to protect justices of the peace in the execution of their duty."

The general provisions of this act, applicable to all acts of a justice, as to the form and notice of action, &c. may be classed as follows:

:

1. No action is to be brought unless commenced within six calendar months next after the act complained of is committed (s. 8); and one calendar month's notice in writing of such action is to be given to the justice either personally or left at his abode (s. 9).

2. After notice of action given, and before it is brought, defendant may tender amends; or, after action brought, and before issue joined, pay money into court. If no more damage proved, a verdict to pass for defendant, and the sum paid in to be paid out of court to defendant (the justice); and if amount exceeds defendant's costs, the residue is to be paid to the plaintiff. If plaintiff elect to accept sum paid in in satisfaction of damages, a judge to grant an order to that effect, and that the defendant shall pay his taxed costs, and the action be determined (s. 11). 3. The onus of proof of due notice, of action brought within the time limited, of the cause of action stated in notice, and that it arose in the county laid as venue, to lie on the plaintiff; in either case, if no proof, the plaintiff to be nonsuit, or a verdict for defendant (s. 12).

4. The venue is to be laid in the county where the act complained of was committed, or, if in the county court, in the district, and the defendant may plead the general issue, and put any special matter in evidence under such plea; but no action is to

(i) Intituled An Act to protect Justices of the Peace from Vexatious Actions for Acts done by them in execution of their Office" [14th August, 1848]. By section 17, all other statutes on the subject are repealed, viz. 7 Jac. 1, c. 5; 21 Jac. 1, c. 12, s. 5; 24 Geo. 2, c. 44, ss. 1, 2, and part of s. 8; and the whole of 43 Geo. 3, c. 141, save and except so much of the said several acts as repeal any other acts or parts of acts, and also except as to proceedings pending, to which the same or any of them may be applicable, but this act to apply to persons protected by those repealed statutes (s. 18).

visions as to form of action

be brought in any such county court if the justice object thereto, General pro-
and if within six days after being served with a summons, such
justice, or his attorney or agent, shall give written notice to &c.
the plaintiff that he objects to being sued in such court, all pro-
ceedings afterwards had in such court shall be null and void
(s. 10).

5. No action to be brought for the manner in which a justice shall
exercise a discretionary power given him (s. 4).

6. If a justice refuse to do an act, the Court of Queen's Bench may,
by rule grounded on an affidavit of the facts, order him to do
it, and no action shall be brought against him for doing it
(s. 5).

7. If an action be brought where by this act it is prohibited, a judge
may set aside the proceedings (s. 7).

8. For an act done by a justice in the execution of his duty as such
justice, with respect to any matter within his jurisdiction, the
action shall be on the case; and it shall be expressly alleged in
the declaration that such act was done maliciously, and without
reasonable and probable cause (s. 1).

9. For an act done by him without jurisdiction, or exceeding his jurisdiction, any person injured thereby, or by any act done under any conviction or order made or warrant issued by such justice thereon, may maintain such action without such allegation as in 8 (s. 2).

10. If the act complained of is shown to have been done maliciously and without reasonable and probable cause, and a verdict is given, or if judgment by default, full costs of suit follows; and where there is a verdict for the defendant he is to have his costs as between attorney and client (s. 14). (Vide post, p. 10, (s. 13), where defendant is not entitled to any costs).

The particular provisions of the statute, which, in addition to the general provisions, are applicable more immediately to the acts of justices in matters within their cognizance, are as follows:

:

11. No such action [for an act done without or exceeding jurisdiction, as 9] shall be brought for an act done under a conviction or order until after such conviction shall have been quashed either upon appeal or by Queen's Bench;

12. Nor for any thing done under a warrant issued to procure the appearance of the party, and which shall have been followed by a conviction or order, until after such conviction or order shall be so quashed;

13. Nor for an act done under a warrant to compel appearance (if not followed by a conviction or order, or if it be a warrant for an

Particular provisions as to the acts of justices.

Particular provisions as to the acts of justices.

indictable offence), if a summons were previously issued and
not obeyed (s. 2).

14. If one justice make a conviction or order, and another grant a
warrant upon it, the action must be brought against the former,
not the latter, for a defect in such conviction or order (s. 3).
15. After conviction or order confirmed on appeal, no action is to be
brought for anything done under a warrant of distress or com-
mitment upon it (s. 6).

16. If the plaintiff in an action is entitled to recover, and shall prove
the levying or payment of any penalty or sum of money under
any conviction or order as part of his damages, or if he prove
that he was imprisoned, and seeks to recover damages for such
imprisonment, he shall not be entitled to recover the amount of
such penalty or sum so levied or paid, or any sum beyond 2d.
as damages for such imprisonment, or any costs of suit what-
soever, if it shall be proved that he 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 punish-
ment than that assigned by law for the offence of which he was
so convicted, or for nonpayment of the sum he was so ordered
to pay (s. 13).

17. No action to be brought for issuing a distress warrant for a poor rate, by reason of any defect in the rate, or that the party is not rateable (s. 4).

CHAPTER I.

SUMMARY OF THE PRACTICE ON SUMMARY CONVICTIONS AND

ORDERS (a).

THIS may be conveniently arranged under the following heads, New practice. the forms in the schedule to the 11 & 12 Vict. c. 43, being incorporated under the respective sections and divisions of the subject to which they are to be applied, and notes in the body and at the foot comprising explanations of the changes and practical observations on the various branches of the practice :Sect. 1. Of the Information and Complaint, their Requisites and Time.

2. The Process to issue to Defendants, p. 20.

3. Of remanding Defendant, and taking Bail before
Hearing and Adjudication, p. 24.

4. Of compelling Witnesses' Attendance, &c. p. 27.
5. The Hearing and Adjudication, &c. p. 31.

6. Of enforcing Convictions and Orders, &c. p. 54.
7. Of the Application of Penalties, &c. p. 72.

8. Of Appeal and Time, &c. p. 76.

SECT. 1. OF THE INFORMATION AND COMPLAINT (b), THEIR

REQUISITES AND TIME.

It will be observed (b), that an information here referred to (1) As to Inis for an offence for which the offender is liable by law, upon a formations. summary conviction for the same, to be imprisoned, or fined, or otherwise punished (s. 1).

(a) The practical distinction between a conviction and an order is this:-the former is the record of an affirmative adjudication upon an information for an offence or act punishable either by a penalty or imprisonment; the latter is now also a record of a like determination upon a complaint for nonpayment of a sum of money, or for the doing of some other thing (vide note (b)). This summary of practice will therefore have reference to orders as well as convictions; as many of the statutes requiring an order to be drawn up are interspersed throughout the tabular view of offences in Chap. 2, it will also apply to various matters in Part III. to which reference will there be made.

(b) The distinction between an information and a complaint is this:—an information is the groundwork of a charge for an offence punishable summarily

Time.

Whom to lay.

When to be in writing.

The time limited for commencing proceedings by the act of parliament relating to each particular case must be strictly adhered to; but if no time is already or shall hereafter be specially limited in such act, the complaint shall be made and the information laid within six calendar months from the time when the matter of such complaint or information respectively arose (s. 11) (c). In almost every case in which an act is to be done within a certain time after the happening of an event, the courts have adopted as a rule, that the day on which the event happened (e. g. the commission of the offence, or the time when the matter of complaint arose,) is to be excluded, and that on which the act is done (e. g. the preferring the information or complaint) is to be included (Peller v. Inhabitants of Wonford, 9 B. & C. 134; Lester v. Garland, 15 Ves. 248; Williams v. Burgess, 12 A. & E. 635).

Every complaint or information (whether by a party aggrieved or an informer) may be made or laid by the complainant or informant in person, or by his counsel or attorney, or other person authorized (d) in that behalf (s. 10). It is conceived, however, that this provision will not apply to those cases where a particular person is required by the statute to lay the information or make the complaint.

Although this statute does not expressly require the information to be in writing, it evidently contemplates that it should always be so taken (and it is the safest rule to adopt (e)) by the proviso in the first section as to variances between it and the evidence adduced, and by expressly providing in s. 8

either by fine or imprisonment; a complaint being an application on the nonpayment of money, or for the doing of some other thing, subjecting the party in either case to imprisonment in default; an information is technically said to be laid, a complaint to be made: a conviction is the affirmative result of an information; an order, that of a complaint. Where the particular statute expressly requires an order and where a conviction will be readily known by reference to the fifth column of Chap. 2. It also appears clear that, in those cases (under the Servants Acts, 4 Geo. 4, c. 34, and 20 Geo. 2, c. 19, for instances) where neither a conviction or order is required to be made upon a determination of an information or complain, the provisions of the 11 & 12 Vict. c. 43, cannot be adopted, but they must be dealt with in the same manner in all respects as before the passing of that statute (J. P. of 23rd September, 1848).

(c) The old practice as to the time in penal statutes was regulated by the repealed statute, 31 Eliz. c. 5, s. 5.

(d) It is questionable whether a written authority is here necessary from a party aggrieved. By Tarry v. Newman, 15 Law J. Rep. (N. S.) M. C. 160; 10 J. P. 678, any one might lay it for an injury to the property of another.

(e) In cases where the particular statute requires it to be " in writing," it should of course be so taken, and that requirement has been shown in the tabular portion of Chap. 2.