REV. STAT. (ONT.), CHAP. 73.

An Act to protect Justices of the Peace and other Officers from vexatious actions.

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Every action 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, or against any other officer or person fulfilling any public duty, for anything by him done in the performance of such public duty, whether any such duties arise out of the Common Law or are imposed by any Act, either of the Imperial or Dominion Parliament, or of the Legislature of this Province, shall be an action on the case as for a tort, and in the declaration it shall be expressly alleged that such act was done maliciously and without reasonable and probable cause, and if at the trial of any such action, upon the general issue pleaded, the plaintiff fails to prove such allegation, he shall be non-suited or a verdict shall be given for the defendant.

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When the Justice has jurisdiction over the subject matter of complaint and over the person of the party, an action of trespass will not lie against the Justice unless there is malice or want of reasonable and probable cause (Hallett v. Wilmot, 40 Q. B. (Ont.), 263; Birch v. Perkins, 2 Pugsley, 327); but if the matter was one in which the magistrate had no jurisdiction at all, then he is a trespasser. West v. Smallwood, 3 M. & W., 418. Whenever there is an arrest, and it can be said jurisdiction, trespass is the proper form of action. McArthur, 24 Q. B. (Ont.), 254. Whenever it can be said that there was jurisdiction, the remedy is an action on the case as for a tort, and it must be expressly alleged and proved that the act was done maliciously and without reasonable or probable cause. Caudle v. Seymour, 1 Q. B., 889; Appleton v. Lepper, 20 C. P. (Ont.), 138; Crawford v. Beattie, 39 Q. B. (Ont.), 13; Stoness v. Lake, 40 Q. B. (Ont.), 326.

When a magistrate has jurisdiction he never can be made liable

in an action of trespass for an irregularity in procedure, mistake of law or erroneous conclusion from facts. Mills v. Collett, 6 Bing., 85; Sprung v. Anderson, 23 C. P. (Ont.), 152; Col. Bk. of A. V. Willan, L. R., 5 P. C. App., 417. See also Dobbyn v. Decow, 25 C. P. (Ont.), 18; Gardner v. Burwell, Taylor, 189.

When a Justice acts within his jurisdiction and without malice, he is free from damages. Cartier v. Burland, 2 Revue Critique, 475.

After a conviction by a magistrate is quashed, an action on the case will not lie against him unless the acts complained of be proved to have been committed by him without any reasonable or probable cause and maliciously, and the question of malice must be left to the jury. Burney v. Gorham, 1 C. P. (Ont), 358. One A. went before the defendants, two Justices, and swore that from circumstances mentioned he was afraid that the plaintiff would destroy his property, and he, therefore, prayed that he might be bound over to keep the peace. Defendants thereupon, on plaintiff's refusal to find sureties, committed him to gaol. It was held that this Act clearly applied, and that, therefore, only a special action on the case could be maintained. Fullarton v. Switzer, 13 Q. B. (Ont.), 575.

The Justice is not deprived of the protection of this section by some irregularity in drawing up the conviction, such as signing the conviction leaving blanks for the amount of costs, Bott v. Ackroyd, 28 L. J., M. C., 207; and when supposing the facts alleged to be true, the magistrate has jurisdiction, his liability to be sued or his exemption from such liability on the ground of jurisdiction cannot be affected by the truth or falsehood of those facts or by the sufficiency or insufficiency of the evidence adduced for the purpose of establishing them. Cave v. Mountain, 1 M. & Gr.,

257.

The falsity of the charge in an information cannot give a cause of action against a magistrate who acts upon the assumption and belief of its truth. Where an information contained every material averment necessary to give a magistrate jurisdiction to make an order upon the plaintiff to find sureties to keep the peace, but contained also additional matter which it was contended

so qualified and explained these averments as to render them nugatory; it was held that this was a judicial question for the magistrate to decide, and therefore that in issuing his warrant for the appearance of the accused he was not acting without jurisdiction, even although a Superior Court might quash his order to find sureties. Sprung v. Anderson, 23 C. P. (Ont.), 152.

An action of trespass cannot be maintained against an officer who executes a writ issued upon a judgment rendered by an inferior Court in a matter over which they had jurisdiction. Goudie v. Langlois Stuart, 142; Ovens v. Taylor, 19 C. P. (Ont.), 49. The Court would not in such case be responsible, and where the officer executing the writ of an inferior Court is sought to be made liable the want of jurisdiction in the Court from which it issued must be apparent on the face of the writ itself, and unless it be so, the officer cannot be considered as a trespasser. (Goudie v. Langlois, supra.)

2. For any act done by a Justice of the Peace in a matter in which by law he has not jurisdiction, or in which he has exceeded his jurisdiction, or for any act done under any conviction, or order made or warrant issued by such Justice in any such matter, any person injured thereby, 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.

This section must be read in connection with the first section of the Act, and therefore where, in the course of a matter transacted before a Justice, there has been an excess of jurisdiction, the second section does not apply unless the action in which it is sought to be applied is brought for an act done in respect of that part of the matter, or some part of it which was beyond the jurisdiction. Barton v. Bricknell, 13 Q. B., 393.

Where a conviction contained no adjudication as to costs, but the Justices issued a warrant of distress reciting the conviction as adjudicating costs, and the party's goods were seized as well for the costs as the penalty, this was holden to be an excess of jurisdiction, within the meaning of the above section, and that - trespass lay for it. Leary v. Patrick, 19 L. J., M. C., 211. The

meaning of the words, "exceeded his jurisdiction" in the above section, means assuming to do something which the statute, under which the Justice is proceeding, could by no possibility justify. Ratt v. Parkinson, 20 L. J., M. C., 208. And they apply only to cases where the act, in respect of which the action is brought against the Justices, is itself an excess of jurisdiction. Barton v. Bricknell, 13 Q. B., 393; Somerville v. Mirehouse, 1 B. & S., 652. So if an order be good in part and bad in part, a Justice may issue a warrant of distress to enforce so much of it as is good, without subjecting himself to an action. R. v. Green, 20 L. J., M. C., 168.

When magistrates commit a person upon a general charge of felony given upon oath, they will not be liable to an action of trespass, although the facts sworn to, in order to substantiate that charge, may not, in point of law, support it. Gardner v. Burwell, Taylor, 189.

If a magistrate cause a party to be wrongfully imprisoned without any reasonable cause until he give his note to obtain a discharge, the magistrate is liable in trespass. Brennan v. Hatelie, 6 O. S., 308.

A magistrate sued in trespass for an alleged illegal proceeding under the 4 & 5 Vic., chap. 26, may give in evidence a tender of amends, under the plea of the general issue. Moore v. Holditch, 7 Q. B. (Ont.), 207.

A Justice of the Peace who issues a warrant without jurisdiction, as on an insufficient information, is liable to an action of trespass for assault and false imprisonment, and the question of reasonable and probable cause cannot arise in such a case as this, but only in a case where the Justice has jurisdiction. Whittier v. Diblee, 2 Pugsley, 243.

In an action for malicious prosecution, it appeared that the defendant was a Justice of the Peace, and as such acquired his knowledge of the circumstances on which he preferred the charge against the defendant. The Court, however, held that this was clearly no ground for requiring that express malice should be proved against him. Orr v. Spooner, 19 Q, B. (Ont.), 601.

Defendant as a Justice issued a warrant against the plaintiff

upon a complaint for detaining the clothes of one K. The plaintiff on being told by the constable that he had the warrant, went alone to defendant, heard the evidence, was allowed to go away without giving bail, and returned the next day when he was discharged. It was held that no imprisonment was proved, and that defendant having jurisdiction over the subject matter of the complaint was not liable in trespass, even if the information were insufficient in point of form. Thorpe v. Oliver, 20 Q. B. (Ont.), 264.

A magistrate has no jurisdiction to administer an oath and take examinations within the limits of a foreign country, and a commitment founded on such proceedings is void and affords no justification in an action of trespass against the magistrate. Nary v. Owen, Berton, N. B. Reps., 377.

It was laid down in a suit before a Justice for wages, in the Vice Admiralty Court of Quebec, that although Justices of the Peace exercising summary jurisdiction are the sole judges of the weight of the evidence given before them, and no other Court will examine whether they have formed the right conclusion from it, yet other Courts may and ought to examine whether the premises stated by the Justices are such as will warrant the conclusion in point of law. The Scotia, 1 Stuart, V. A. Reps., 160.

Justices cannot give themselves jurisdiction by finding that as a fact which is not a fact, and their warrant in such case will be no protection to the officer who acts under it. The Haidee, 2 Stuart, V. A. Reps., 25; 10 L. C. R., 101.

An action for false imprisonment was brought against the informant, the bailiff making the arrest, and the two committing Justices, and judgment was rendered against the four, jointly, but it was held that the two committing magistrates were alone liable in damages, and the judgment against the other two was set aside. Bissonette & Bornais, 2 L. C., L. J., 18.

Omitting to state the conviction of a defendant, in his warrant of commitment, will not subject a Justice of the Peace to an action for false imprisonment, provided the actual conviction is proved upon his defence. Whelan v. Stevens, Taylor, 245.