or such other judge before whom the said matter shall be tried 7 shall by force and virtue of this act allow unto the defendant or defendants his or their double costs, which he or they shall have. sustained by reason of their wrongful vexation in defence of the said action or suit; for which the said defendant or defendants shall have like remedy as in other cases where costs by the laws of this realm are given to the defendants.

c. 5.

JAMES I. Engl. stat.

1609.

13 VIC. c. 15.] To protect justices of the peace from vexatious 13 Vic.c.15. actions for acts done by them in the execution of their office.

ISLD. [December 20, 1849.]

Island Act.

1849.

by a justice

the action

the case,

13 Vic. c. 15, sec. 1.] Whereas it is desirable to protect justices Preamble. of the peace in the execution of their duty: Be it therefore For an act, enacted, That every action hereafter to be brought against any within his justice of the peace for any act done by him in the execution of jurisdiction, his duty as such justice, with respect to any matter within his shall be on jurisdiction as such justice, shall be an action on the case as for and it shall a tort; and in the declaration it shall be expressly alleged, that be alleged such act was done maliciously, and without reasonable and probable been done cause; and if, at the trial of any such action, upon the general and without issue being pleaded, the plaintiff shall fail to prove such allega- cause. tion, he shall be nonsuit, or a verdict shall be given for the defendant.

to

maliciously,

probable

done by him

exceeding

may be

without

an act done

2. For any act done by a justice of the peace, in a matter of For an act which, by law, he has not jurisdiction, or in which he shall have without or exceeded his jurisdiction, any person injured thereby, or by any jurisdiction, act done under any conviction or order made, or warrant issued an action by such justice, in any such matter, may maintain an action maintained, against such justice in the same form, and in the same case, as such allegahe might have done before the pasing of this act, without making tion, any allegation in his declaration that the act complained of was done maliciously, and without reasonable and probable cause: Provided nevertheless, That no such action shall be brought for but not for any thing done under such conviction or order until after such under a conconviction shall have been quashed, either upon appeal, or upon order, until application to the supreme court of judicature of this island; such convienor shall any such action be brought for any thing done under shall have any such warrant, which shall have been issued by such justice, quashed. to procure the appearance of such party, and which shall have been followed by a conviction or order in the same matter, until after such conviction or order shall have been so quashed Nor for an as aforesaid; or if such last-mentioned warrant shall not have act done been followed by any such conviction or order, or if it be warrant upon an information for an alleged indictable offence, nevertheless if a summons were issued previously to such warrant,

a

viction or

tion or order

been

under a

warrant to

compel appearance, if a summons were

Island Act.

1849.

13 Vic. c.15. and such summons were served upon such person, either personally or by leaving the same for him with some person at his last or most usual place of abode, and he did not appear according to previously the exigency of such summons, in such case no such action shall not obeyed. be maintained against such justice for any thing done under such

served, and

tice make a

or order,

grant a war

warrant.

If one jus 3. Where a conviction or order shall be made by one or more conviction, justice or justices of the peace, and a warrant of distress or comand another mitment shall be granted thereon by some other justice of the Fant upon peace, bona fide, and without collusion, no action shall be brought it, the against the justice, who so granted such warrant, by reason of defect in the any defect in such conviction or order, for any want of jurisdiction in the justice or justices who made the same, but the action (if any) shall be brought against the justice or justices who made against the such conviction or order.

action for a

conviction

or order must be brought

former.

If a justice

refuse to do

an act, the

supreme court may order him

4. And whereas it would conduce to the advancement of justice, and render more effective and certain the performance of the duties of justices, and give them protection in the performance of the same, if some simple means, not attended with much expense, were devised, by which the legality of any act to be done by such justices might be considered and adjudged by a court of competent jurisdiction, and such justice enabled and directed to perform it without risk of any action or other proceedings being brought or had against him: Be it therefore enacted, That in all cases where a justice or justices of the peace shall refuse to do any act relating to the duties of his or their office as such justice or justices, it shall be lawful for the party requiring such act to be done to apply to the supreme court of judicature, upon an affidavit of the facts, for a against him 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, or upon 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.

to do it, and no action shall be brought

thereon.

After conviction or order affirmed on

appeal, no action for

any thing

5. In all cases where a warrant of distress, or warrant of commitment shall be granted by a justice of the peace, upon any conviction or order, which either before or after the granting of such warrant shall have been, or shall be confirmed upon done under appeal, no action shall be brought against such justice, who so granted such warrant, for any thing which may have been done under the same, by reason of any defect in such conviction or order.

a warrant

upon it.

Island Act.

If action

where by

6. In all cases where, by this act, it is enacted that no action 13 Vic. c. 15. shall be brought under particular circumstances, if any such action shall be brought, it shall be lawful for a judge of the court 1849. in which the same shall be brought, upon application of the brought, defendant, and upon an affidavit of facts, to set aside the proceedings this act in such action, with or without costs, as to him shall seem meet: prohibited, Provided nevertheless, That if such action shall be brought in any set aside of the courts of common pleas in this island, it shall not be lawful for any but the chief judge of such court to set aside such Proviso. proceedings as aforesaid.

a judge may

proceedings.

of action.

7. No action shall be brought against any justice of the peace Limitation for any thing done by him in the execution of his office, unless the same be commenced within six calendar months next after the act complained of shall have been committed.

action.

8. No such action shall be commenced against any such justice Notice of of the peace, until one calendar month at least after a notice, in writing, of such intended action shall have been delivered to him, or left for him at his usual place of abode, by the party intending to commence such action, or by his attorney, or agent, in which said 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 endorsed 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 the said attorney or agent, if such notice have been served by such attorney or agent.

may plead

give any

matter, &c.,

In every such action, commenced in the supreme court, the venue. venue shall be laid in the county where the act complained of was committed; or in actions in the common pleas, the action must be brought in the court within the parish or precinct in which the act complained of was committed, and the defendant Defendant shall be allowed to plead the general issue, and to give any special the general matter of defence, excuse, or justification in evidence, under such issue, and plea, at the trial of such action: Provided always, That no action special shall be brought in any court of common pleas against a justice in evidence. of the peace for any thing 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, or agent, shall give a written notice to the plaintiff in such action that he objects to being sued in such court of common pleas for such cause of action, all proceedings afterwards had in such court of common pleas in any such action, shall be null and void.

payment of

10. In every case, after notice of action shall be so given as Tender and aforesaid, and before such action shall be commenced, such jus- money into tice, to whom such notice shall be given, may tender to the court.

Q Q

1sland Act.

1849.

13c. c. 15. party complaining, or to his attorney or agent, such sum of money as he may may think fit, as amends for the injury complained of in such notice; and after such action shall have been commenced, and at any time before issue joined therein, 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, and which said tender and payment of money into court, or either of them, may afterwards be given in evidence by the defendant at the trial, under the general issue aforesaid; and if the jury at the trial shall be of opinion that the plaintiff is not entitled to damages beyond the sums so tendered or paid into court, or beyond the sum so tendered and paid into court, then they shall give a verdict 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 much thereof as shall be sufficient to pay or satisfy the defendant'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, the plaintiff shall elect to accept the same in satisfaction of his damages in the said action, he may obtain from any judge of the court in which such action shall be brought, or from the chief judge, if the action is brought in the common pleas, an order that such 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 order shall be a bar to any other action for the same cause.

In what cases non

dict for de

fendant.

11. If, at the trial of any such action, the plaintiff shall not suit or ver- prove that such action was brought within the time hereinbefore limited in that behalf, or that such notice as aforesaid was given one calendar month before such action was commenced; or if he shall not prove the cause of action stated in such notice, or if he shall not prove that such cause of action arose in the county or place laid as venue in the margin of the declaration, or (when such plaintiff shall sue in a court of common pleas) within the parish or precinct for which such court is holden, then, and in every such case, such plaintiff shall be nonsuit, or the jury shall give a verdict for the defendant.

Damages.

12. In all cases where the plaintiff in any such action shall be entitled to recover, and he shall prove the levying or payment of any penalty, or sum of money under any conviction or order, as parcel of the damages he seeks to recover, or if he prove that 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 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

Island Act.

1849.

offence of which he was so convicted, or that he was liable by 13 Vic.c 15. law to pay the sum he was 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.

13. If the plaintiff in any such action shall recover a verdict Costs. 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 that the act complained of was done maliciously, and without reasonable and probable cause, the plantiff, if he recover a verdict 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 attorney and client; and in every action against a justice of the peace for anything 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 attorney and client.