a malicious prosecution, and an action against a magistrate for a malicious conviction and imprisonment thereunder. In the former case, proof that there was in reality no ground for imputing the crime to the plaintiff, shows that the prosecution was instituted without probable cause, and malice may be inferred from thence; but in an action against a magistrate for a malicious conviction, the question is not whether there was any actual ground for imputing the crime to the plaintiff, but whether, upon the hearing, there appeared to be none. The plaintiff must prove a want of probable cause for the conviction, which he can only do by proving what passed upon the hearing before the magistrate when the conviction took place. The magistrate has nothing to do with the guilt or innocence of the offender, except as they appear from the evidence laid before him. The conviction must be founded on that evidence alone, and it is impossible to show that there was no probable cause for the conviction without showing what that evidence was. There may be a malicious prosecution without a malicious conviction, and there may be an unfounded conviction by the magistrate without malice(s). The question as to whether the magistrate has acted in the discharge of his duty with bona fides, and with reasonable and probable cause, is a question at the trial for the decision of the judge, and not for determination by a jury(t). A justice's warrant put in by the plaintiff is evidence for the defendant of an information on oath before the justice recited in the warrant. The recital must be considered part of the warrant, and admissible evidence for the defendant, when the warrant is produced against him by the plaintiff, for the purpose of showing on what grounds, and in relation to what subject-matter he was acting when he granted it; in the same manner as if a magistrate were to commit for a felony on his own view, the warrant reciting that he had seen the felony committed when put in evidence against him, would be admissible evidence for him that he had seen the felony committed(u). 1035 Evidence at the trial of actions against constables and officers-Proof of the injury having been done in execution of a warrant of justices.-By the common law, an officer who merely executed the warrant of a magistrate, was answerable for the consequences if the magistrate acted without authority. But the 6th section of 24 Geo. 2, c. 44, makes it (8) Burley v. Bethune, 5 Taunt. 583. necessary to demand a copy of the warrant from the officer before he can be sued. If he gives that copy, although the party may be entitled to an action against the magistrate, yet, if he joins the officer in it, the production of the warrnt will be a protection to the latter, and will entitle him to a verdict. The 6th section is, therefore, obviously intended to protect the officer in those cases only where the justice remains liable. It is necessary, in order to bring the officer within it, that he should act most strictly in obedience to his warrant: and in that case the statute gives him absolute protection, at whatever time the suit may be brought against him(x). See ante, p. 865. 1036 Proof of warrant of justices-Secondary evidence of the contents of a warrant. Where the high constable of a borough, who had been served with a subpoena duces tecum, to produce a warrant under which he had made a levy, stated that he had no doubt he had deposited the warrant in his office; that he had searched for it and could not find it, and did not know what had become of it, and that the townclerk had access to his office, and might have taken it away, it was held that secondary evidence might be given of the contents of the warrant(y). 1037 Proof by the plaintiff of his demand of the perusal and copy of the warrant. If a plaintiff's attorney, previous to bringing an action against a constable or officer for an imprisonment or seizure of goods by a constable, makes out two papers in writing precisely similar, purporting to be demands of the perusal and copy of the warrant, and signs both for his client, and then delivers one to the defendant, they are both duplicate originals; and the one retained by the attorney may be given in evidence at the trial, without proving any notice to produce the one left in the hands of the defendant. "Unless I am mistaken," observes Lord Eldon, C.J., "it is the usual course in actions of this sort to produce a duplicate original; and the same thing is done with respect to notices to quit. The practice of allowing duplicates of this kind to be given in evidence seems to be sanctioned by this principle, that the original delivered being in the hands of the defendant, it is in his power to contradict the duplicate original by producing the other if they vary "(2). 1038 Proof by the defendant of the production of the warrant-Production and perusal of a copy of the warrant.-Where the warrant under which the constable acted was lodged in the hands of the gaoler at the time the plaintiff was taken to prison, and the constable proved (x) Abbott, C.J., Parton v. Williams, 3 B. & Ald. 332. (z) Jory v. Orchard, 2 B. & P. 41. that when the demand for the perusal of the warrant was made he produced a correct copy of it, telling the person making the demand that the original was in the hands of the gaoler, and no objection was made to the non-production of the original, it was held that there had been a substantial compliance with the requirements of the statute by the officer, 30 as to entitle him to the benefit of the statutory protection. "The conduct of the agent of the plaintiff," observes Lord Denman, C.J., was such as to lead to the belief that the delivery of a copy of the warrant, under the circumstances, was all that was required. But for this, steps might have been taken to procure the original; and the plaintiff cannot therefore rely on its non-production to oust the constable of the protection of the statute”(a). 66 1039 Damages recoverable in actions against justices of the peace.-By 11 & 12 Vict. c. 44, s. 13, it is enacted, that where the plaintiff in any action against a justice of the peace, for anything done by him in the execution of his office, shall be entitled to recover, and shall prove the levying or payment of any penalty or 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 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 the sum of 2d. as damages for such imprisonment, or any costs of suit whatever, if it is proved that he was actually guilty of the offence of which he was convicted, or that he was liable by 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 convicted, or for non-payment of the sum he was ordered to pay. If a magistrate has committed the plaintiff to prison in a case in which he has no jurisdiction, and the conviction is quashed (ante, p. 869), the magistrate is liable for all the usual and ordinary injurious consequences of a conviction and commitment, such as handcuffing, cutting off the hair, immersion in a bath, payment of penalties, fees, and all such expenses as are reasonably necessary to enable the plaintiff to procure his liberty; but the magistrate is not responsible for any unnecessary or excessive violence on the part of the officers executing the warrant(b). (a) Atkins v. Kilby, 11 Ad. & E. 785. (b) Mason v. Barker, 1 C. & K. 100. And see ante, pp. 851-854, as to damages recoverable in actions for false imprisonment. CHAPTER XVI. OF INJURIES FROM THE EXERCISE OF STATUTORY POWERS— STATUTORY COMPENSATIONS FOR INJURIES AUTHORIZED BY STATUTE. SECTION I.—Of injuries from the exercise of statutory powers-Exemption of paities from personal liability in respect of things done under statutory authority -Negligent exercise of statutory powers-Nuisances from the negligent working of railways-Duties and responsibilities of public boards, trustees, and commissioners, surveyors, contractors, and workmen, acting in the exercise of statutory powers-Surveyors of highways-Effect of clauses in particular statutes exonerating persons from all personal liability in respect of things done in the bona fide.execution of the statute-Responsibility of persons for negligence notwithstanding the protecting clause-Right of commissioners, trustees, and public officers to indemnify themselves in respect of costs and expenses out of the public funds they are authorized to administer -When expenses incurred through blunders or negligence may be charged upon a public or trust fund-Injuries from non-repair of authorized public works-Creation of nuisances in the bonâ fide exercise of statutory powers— Pollution of streams and injuries to docks, wharfs, towing-paths etc.-Power to take lands and streams for public purposes-Licenses to enter upon land to commence the construction of public works-Seizure of goods in the exercise of statutory powers. SECTION II.—of statutory remedies for the recovery of compensation for injuries authorized by statute.-Injuries establishing a right to statutory compensation-Ascertaining the amount by arbitration-Damages recoverable before justices-Statutory remedy for the recovery of compensation under the Lands Clauses and Railway Clauses Consolidation Act-Statutory compensation to tenants and occupiers of lands taken for public works-Notices by claimants of the nature and extent of the injury, and the amount of compensation required-Inquisition of damage-Assessment of damage to which the claimant is not legally entitled-Removal of the inquisitiou by certiorari—Actions for the recovery of compensation-Pleadings, defences, and evidence-Remedy for subsequent unforeseen damage. SECTION III.-Remedies by action and by injunction in respect of injuries from the negligent doing of things authorized to be done by statute.-Limitation of actions in respect of things done under local and personal statutes-Accrual of the cause of action-Notice of action-Tender of amends-Parties to be made AD. VOL. II.-56 |