inserted to give effect to the meaning, Ratt v. Parkinson, 20 L. J. M. C., 210), shall have been quashed, either upon appeal or by the Court of Queen's Bench.

12. Nor for anything 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 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, bonâ fide, and without collusion, the action must be brought against the former, not the latter, for a defect in such conviction or order. (S. 3).

15. After a conviction or order confirmed upon appeal, no action is to be brought against a Justice who granted a warrant of distress or commitment upon it, for anything which may have been done under the same, by reason of any defect in such conviction or order. (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 two-pence as damages for such imprisonment, or any costs of suit whatsoever, 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 punishment than that assigned by law for the offence of which he was so convicted, or for nonpayment of the sum he was ordered to pay. (S. 13).

Decisions of the Court in the Protection of Justices].-Previously to the passing of the Statute 11 & 12 Vic., c. 44, most of the Statutes giving summary jurisdiction contained protective clauses, upon which the most liberal construction was always put by the Courts, particularly as regards the right of Justices and others to notice of action, under the belief that they were acting within the scope of their jurisdiction, or in the exercise of their office. The general rule upon the subject, which is equally applicable now, was thus stated by Lord Campbell in a very recent case, (Spooner v. Juddow and another, 6 Moore, Pr. C. Rep., 283):— "There can be no rule more firmly established than that, if Justices bonâ fide and not absurdly believe that they are acting in pursuance of Statutes and according to law, they are entitled to the special protection which the Legislature intended for them, although they have done an illegal act."

The following case is an illustration of the application of the doctrine:To an action for trespass for assault and false imprisonment, defendant pleaded not guilty (by statute), relying on the Game Act, 1 & 2 W. IV., c. 32, s. 31. The Judge left it to the jury to say whether or not the defendants believed they were acting in pursuance of the Statute, and, if so, whether they had reasonable grounds for so believing. The jury found, that the defendants thought they were acting in pursuance of the Statute, (Cox v. Reid and another, 13 Q. B., 558); in consequence of which the

Judge directed a nonsuit, for want of a month's notice of action, according to sec. 47. On a motion for a new trial, on the ground of misdirection, the Court of Queen's Bench held, that the question was properly left to the jury, and that the defendants were entitled to notice, whether the trespass was actually justifiable under the Statute or not.

The doctrine extends also to a person apprehending another under the Malicious Trespass Act, 7 & 8 G. IV., c. 30, (Horn v. Thornborough, 3 Exch. R., 846), although not the owner of the property injured, if he causes such apprehension under the bonâ fide belief that he is acting in pursuance of the Statute.

In an action against the Judge of a County Court, for making an order after having been served with a writ of prohibition, the Judge at the trial told the jury that, if the defendant acted in the bona fide belief that his duty made it incumbent on him to do so notwithstanding the prohibition, the act must be considered as "done in pursuance" of the County Courts Act, and that the defendant did "reasonably" believe it was his duty to proceed, if he believed according to his reason, as contra-distinguished from caprice. The direction was held by the Court of Common Pleas to be correct. (Booth v. Clive, 10 C. B., 827).

Other recent cases on the point are-Kine v. Evershed, 10 Q. B., 143, 151, and Hughes v. Buckland, 15 M. & W., 346, where most of the previous authorities are cited.

There are many subtle distinctions on this matter, upon which it is not necessary for me to touch; see, for instance, the late case of Moffatt v. Ross, which was tried in this Court before Mr. Justice Wise :-The plaintiff sued the defendant for slander; the words complained of had been uttered in the Police Court, where the defendant was sitting as a Magistrate. The defendant's Counsel moved for a nonsuit, on the ground that there had been no notice of action, according to the Statute. Plaintiff's Counsel demurred to the necessity of such notice.

Mr. Justice Wise held, that it was a question for the Judge whether defendant was, at the time of the act done, in the execution of his office; -that, in his opinion, he was in the execution of his office, on any view of the evidence;-that, if the question of bonâ fides arose, he was of opinion that it existed so as to bring the defendant within the protection of the Statute as to notice ;-that that did not affect the question whether he was justified, or not, in using the words, but only whether he should, if he pleased, have the opportunity of making amends.

It is evident that, in all cases where it is intended to bring an action against persons invested with statutory authority or duties, such as Judges, Justices, constables, &c., on account of any acting in pursuance of a Statute, or in execution of an office, it is most expedient that due notice of the intention to bring such action should be given.

The interpretation of the protective clauses of Jervis's Act, 11 & 12 Vic., c. 44, ss. 1 & 2, has been illustrated in two very recent cases,(Leary v. Patrick and another, 15 Q. B., 266; Barton v. Bricknell, 13 Q. B., 393). In the latter, an action of trespass was brought against a Justice for wrongfully seizing plaintiff's goods; the following is the judgment of Coleridge, J. :

Coleridge, J.:-"This, certainly, is an important case, and I fear I

must also agree that this Statute is exceedingly ill-worded. I think the present case falls within both the words and the intent of section 1. The facts are these: There is an information laid before the Justice; he convicts; he awards a penalty and costs, and orders them to be levied by distress. All this was right, and the Justice so far pursued his jurisdiction. But he added an alternative,—that the plaintiff should be put in the stocks in case the penalty and costs were not paid, or raised by distress. That was beyond his jurisdiction. But the plaintiff was not, in fact, put in the stocks; his goods were seized under a distress, and afterwards the conviction was quashed. Now, it cannot be doubted that the Justice had jurisdiction in everything except the alternative order, and the action is brought, not for putting the plaintiff in the stocks under it, but for doing that which the defendant might have justified if he had drawn up his conviction in proper form. Then we have Stat. 11 & 12 Vic., c. 44, s. 1, which relates to 'actions brought against any Justice of the Peace for any act done by him in the execution of his duty as such Justice, with respect to any matter within his jurisdiction as such Justice.' I think words can hardly be found more accurately to describe the act which the defendant has done, and for which this action is brought. But sect. 2 raises a question whether the words in sect. 1 are to have full effect given to the so as to protect the defendant. The case is within the spirit of the Act, which is one for protection of Justices, and, therefore, assumes that the Justice has been guilty of some irregularity, or he would not need protection. Now, sect. 2 enacts, that for any act done by a Justice of the Peace, in a matter of which, by law, he has not jurisdiction, or in which he shall have exceeded his jurisdiction, any person injured thereby, or by any act done under any conviction or order made, or warrant issued 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,' after the conviction has been quashed. I am not prepared to deny that the present case falls within the literal meaning of those words; for this is an act done under a conviction in a matter in which the defendant has exceeded his jurisdiction. But if we give these words their full literal meaning, they contradict the first section. We must then try to construe them so as to give effect to the whole of the Act, and I think we do this if we confine section 2 to cases in which the act by which the plaintiff is injured is an act in excess of jurisdiction : for instance, if the plaintiff in the present case had been put in the stocks under the illegal alternative, and the action had been brought for that, in which case, probably, trespass might have lain; as it is, I think it does

not."

The judgments of Mr. Justice Wightman and Mr. Justice Erle are well worthy of attention; a portion of the latter was as follows::

"The Justice had jurisdiction to convict, and to order payment of the penalty and costs, and to levy them by distress. All these things he had to do in the execution of his duty, and he had jurisdiction to do them. But there was a defect in the conviction, as the Justice ordered an alternative beyond his jurisdiction. If anything had been done in respect of the wrongful order, it would have been an act beyond his jurisdiction; but there was nothing of the sort. It was a mere error as to the manner

in which the conviction should be framed, which caused the Justice to draw it up in a wrong form, and, on account of the formal defect, the conviction was quashed. I think the case is precisely that which section 1 is intended to protect. Then I think the construction of section 2 must be so controlled by section 1 as to be consistent with it; and that is done by so construing section 2 as to confine its application to cases in which the cause of action arises from the excess of jurisdiction, as it would have done in this case if the plaintiff had been put in the stocks, and he had brought the action for that."

In Kendall v. Wilkinson, (24 L. J. M. C., 89), an affiliation order had been made on the plaintiff; he gave notice of appeal, and entered into the required recognizances for payment of costs. The Quarter Sessions confirmed the order subject to a case; afterwards, on non-payment of the sum ordered to be paid, a Justice issued a warrant against the plaintiff, (the putative father), to enforce the order. It was held by Coleridge: "That the granting the warrant being for the purpose of a judicial inquiry, whether or not the plaintiff ought to pay the money, was within the Justice's jurisdiction, notwithstanding the pendency of the appeal, and therefore the action was barred by sect. 1, there being no allegation that the act was done maliciously and without reasonable and probable cause." In a very recent case, (Bott v. Ackroyd, 28 L. J. M. C., 207), the defendants convicted the plaintiff in a penalty of £2 and costs, or two months' imprisonment. Against this decision, which was given orally, the plaintiff gave notice of appeal, and immediately left the Court. A conviction and warrant of commitment were afterwards drawn up, in which blanks were left for the amount of costs to be inserted, and so signed by the defendants. These blanks were afterwards filled up by the Justice's clerk, and the plaintiff was arrested on the warrant, when he, for the first time, became aware of the amount of costs. The signing in blank was held to be a mere irregularity and an erroneous exercise of jurisdiction, but not an excess; that it was necessary to prove malice, and that the plaintiff, having brought his action for false imprisonment, was rightly nonsuited under s. 1.

2nd Section].-See, as to the construction of this section, Leary v. Patrick, 15 Q. B., 266; Newbould v. Coltman, 6 Ex., 189. The summons mentioned in the Statute, the non-attendance upon which is to bar the maintenance of an action, is a summons before conviction; the section does not apply to a summons and warrant issued after conviction, with a view to the levying of the penalty imposed. (Bessell v. Wilson, 1 El. & Bl., 489).

With regard to this section, (in Ratt v. Parkinson, 20 L. J. M. C. 208), Jervis, C. J., says: "I confess I should be inclined to think that the words 66 exceeding his jurisdiction," in s. 2, means, assuming to do something which the Act under which he is proceeding could by no possibility justify, as in the case in the Queen's Bench, of Leary v. Patrick, where there could be no authority to issue a distress for costs not adjudged by a conviction; or as was in the case of Barton v. Bucknell, in which case, there was no power to order the plaintiff to be put in the stocks; but I abstain from pronouncing any opinion on the subject."

5th Section].-The mode of compelling a Magistrate to do any act

which he may have, by virtue of his office, to perform, has hitherto been by mandamus, but the 5th section of the Act now under consideration has enabled parties to substitute a much more simple mode of proceeding 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 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.

The Court acts upon this section where Justices refuse to determine a case over which they have jurisdiction. (R. v. Cotton, 15 Q. B., 569). But it refused to make an order, directing Justices to issue a warrant of distress where the liability of the person against whom it was sought appeared seriously doubtful. (R. v. Brown, 13 Q. B., 654). As to costs upon application under the section, see R. v. Ingham, 17 Q. B., 884. In R. v. Paynter, 26 L. J. M. C., 102, a Magistrate, upon a complaint regularly heard before him, gave his opinion in favour of the defendant, but, at complainant's request, refused to adjudicate, for the purpose of enabling the complainant to obtain the opinion of the Queen's Bench. The defendant objected, and wished the Magistrate to adjudicate and dismiss the complaint. It was held, that there was no such refusal to adjudicate as to entitle the complainant to a rule under section 5.

Crompton, J.:-"The construction contended for would make this Court a Court of advice to Magistrates in every little matter of doubt; I think such is not the intention or meaning of the Act."

8th and 9th Sections].-With regard to the notice required by sections 8 & 9 it may be remarked, that the notice may be given before the quashing of the order, the act complained of being the cause of action, although the action itself cannot be brought until after the quashing. (Haylock v. Sparke, 1 El. & Bl., 471).

Protection by Production of Conviction].-It has been already stated that a bad commitment may be cured by a good conviction, either on return to a writ of Habeas Corpus, or in action for false imprisonment against the committing Magistrate. Thus, where a party was committed to prison for non-payment of a sum ordered to be paid on conviction under the 7 & 8 G. IV., c. 30, and two convictions were subsequently sent to the Quarter Sessions, it was held, in an action for false imprisonment against the committing Magistrate, that he might defend himself by the second conviction, if it was valid in itself. (Charter v. Greame and another, 13 Q. B., 216).

The rule on this subject is thus given by Paley :-"It is established that, in an action against a Magistrate, a subsisting conviction,-good upon the face of it, in a case to which his jurisdiction extends,-being produced at the trial in an action for trespass against the Magistrate by a convicted party, is a bar to the action, provided that the conviction was not made maliciously and without reasonable and probable cause, and provided, also, that the execution has been regular, although the Magistrate