If the act done by a magistrate be. (though illegal), the result of honest error or of a mere mistake of judgment, he will incur no. criminal responsibility. In R. v. Cozens, (1) Lord Mansfield said: No justice of the peace ought to suffer for ignorance where the heart is right; on the other hand where magistrates act from undue, corrupt or indirect motives, they are always punished by this court." another case, which was an application for a criminal information against justices for arbitrarily, obstinately and unreasonably refusing to grant an alehouse license the same learned judge said :— "The court has no power or claim to review the reasons of justices of the peace upon which they form their judgments in granting licenses, by way of appeal from their judgments or overruling the discretion entrusted to them. But if it clearly appear that the justices have been partially, maliciously or corruptly influenced in the exercise of this discretion, and have consequently abused the trust reposed in them, they are liable to prosecution by indictment or information or even possibly by action if the malice be very gross and injurious. If their judgment be wrong, yet their heart and intention pure, God forbid that they should be punished." (2) A criminal information will not be granted, therefore, unless, coupled with the illegal act, there be some dishonest, corrupt or oppressive motive; under which description, Abbott, C. J.. says that fear and favor may generally be included. And if, on an application for a criminal information, an order nisi has been granted, the court will discharge it on seeing that the magistrate did not act from the corrupt motives charged. (3) The words of Abbott, C. J., are as follows:- They are indeed, (the justices). like any other subject, answerable to the law for the faithful and upright discharge of their trust and duties. But whenever they have been challenged upon this head, either by way of indictment or application for a criminal information, the question has always been, not whether the act done might upon full investigation be found strictly right, but from what motive (1) R. v. Cozens, 2 Doug. 416. (2) R. v. Young & Pitts, 1 Burr. 556. (3) R. v. Baylis, 3 Burr. 1318; R. v. Athay, 2 Burr. 652. it had proceeded, whether from a dishonest, oppressive or corrupt motive—(under which fear and favor may generally be included), -or from mistake or error. In the former case, alone. they have become the objects of punishment." (1) If, though the magistrate was not actuated by any corrupt motive, his act was an illegal one, the court, in discharging the rule against him, may make him pay the costs. (2) Thus, where a magistrate refused, as bail, certain persons of unquestionable sufficiency, because they were Chartist leaders-the charge against the prisoner sought to be bailed being seditionand it appeared, upon cause shown against a rule for a criminal information, that the magistrates acted only in pursuance of a resolution previously come to at a general meeting of the magistrates of the county, with the sanction of the Lord Lieutenant, the court discharged the rule, but the magistrates were ordered to pay the costs, as their refusal of bail, merely on the ground of personal character or political opinions, was illegal. (3) The motion for a rule nisi to file a criminal information should always be made promptly, and before it is made, a notice of six days must be given to the justice of the intended application against him, in order that he may show cause against the application, in the first instance, if he thinks fit. (4) A rule nisi was granted against a justice for neglecting his duty as a county magistrate by refusing to call in the military or to establish a sufficient force to repress a riot at an election; but the rule was discharged because the requisite notice had not been given. (5) It is expressly enacted by the Criminal Code that any justice of the peace who corruptly accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person any money or valuable consideration, office, place or employment, is guilty of an indictable offence and liable to fourteen years' imprisonment. (6) (1) R. v. Barron, 3 B. & Ald. 434. (2) R. v. Whately, 4 M. & Ry. 431. (3) R. v. Badger, 4 Q. B. 468; 6 Jur. 994; 7 Jur. 261. (4) Ex parte Fentiman, 4 N. & M. 126; 2 Ad. & El. 127. (5) R v. Heming, 5 B. & Ad. 666. (6) Code, Art. 132. + Civil Liability, The general rule of magisterial liability is that it is only in cases where a magistrate or justice of the peace has no jurisdiction or where he exceeds his jurisdiction, that he is liable in damages to the party aggrieved by his acts, and that, where he has jurisdiction over the subject matter before him and acts judicially, he is not liable for any act done by him within his jurisdiction, however erroneous the conclusion at which he arrives may be. (1) The proposition that a magistrate is not liable to an action for any act done by him judicially in any matter within his jurisdiction is so well established that in the event of an action being brought against him for false imprisonment or for causing a seizure, under the conviction, to be made of the plaintiff's goods, a conviction valid on its face will, if produced at the trial, be conclusive evidence of the facts therein stated, and no proof in denial thereof will be allowed to be adduced; (2) provided, of course, that the conviction was not made maliciously and without reasonable and probable cause, and provided also that the execution levied thereunder has been regular; although the magistrate in making the conviction may have formed an erroneous judgment upon the facts. (3) The liability of justices in cases where they either have no jurisdiction. or exceed it, must not be taken in its limited sense, but must be understood to include not only those cases where there has been an absence of jurisdiction in fact over the case, but also where some statutable or formal requisite has been omitted. if such requisite be an essential ingredient. (4) The defendant is entitled, upon application, to a copy of the (1) Oke's Syn. 13 Ed. 40; West v. Smallwood, 3 M. & W. 418; Cartier v. Burland, 2 Rev. Leg. 475; Birch v. Perkins, 2 Pugs. 327: Hallett v. Wilmott, 40 U. C. Q. B. 263. (2) Basten v. Carew, 3 B. & C. 649; Brittain v. Kinnaird, 1 Brod. & Bing, 432; Mann v. Denvers, 3 B. & Ald. 103; Tarry v. Newman, 15 M. & W. 653 Cave v. Mountain, 1 Man. & Gr. 257. (3) Fullers v. Fotch, Holt, 287. (4) Lindsay v. Leigh, 17 L. J. M. C. 50; Attwood v. Joliffe, 3 New Sess. Cas. 116. conviction from the convicting magistrates. (1) They are not bound, however, by the copy they deliver; and if it should be found to be defective or informal, from misstating the name of the informer or any other fact, without there being any fraud or intention to mislead, a more correct one may be returned to the sessions; and the court can only take notice of the latter. (2) It seems, indeed, that the formal conviction may be drawn up at any time before the return of the certiorari, although such return be after a commitment, (3) or after the penalty has been levied by distress. (4) or after action brought against the magistrates. (5) A magistrate has even been allowed to return an amended conviction to the sessions after having returned an erroneous one; (6) but it was held that he could not do this after the conviction as first returned had been quashed either on appeal or by the Court of Queen's Bench, nor after the discharge of the defendant by the Queen's Bench by reason of the conviction recited in the warrant of commitment being bad. (7) In many of the provinces the question of the liability of magistrates and justices of the peace is the subject of express statutory enactment. In Ontario, the act relating to justices of the peace provides that, in case of an action being brought against a police magistrate or other justice of the peace, for any act done by him in the execution of his duties as such justice, with respect to any matter within his jurisdiction as such justice, whether 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 the province, it shall be expressly alleged in the statement of claim that the act was done maliciously and without reasonable and probable cause, and that, if at the trial of the action the plaintiff fails to prove (1) R. v. Midlam, 3 Burr. 1720. (2) R. v. Allen, 15 East, 333, 346. (3) Massey v, Johnson, 12 East, 82; R. v. McCarthy, 11 O. R. 657. (4) R. v. Barker, 1 East, 186. (5) Lindsay v. Leigh, 11 Q. B. 455; Gray v. Cookson, 16 East, 13. (6) Sellwood v. Mount, 9 C. & P. 75 ; 1 Q. B. 729. (7) Chaney v. Payne, 1 Ad. & Ell. (N. S.) 712; 10 L. J. M. C. 114. such allegation, he shall be non-suited, or a verdict or judgment shall be given for the defendant. (1) The same statute also provides that, 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 a conviction or order made or warrant issued by the justice in such matter, any person injured thereby may maintain any action against the justice that in the same case he might have done before the passing of the act, without making any allegation in his statement of claim that the act complained of was done maliciously and without reasonable and probable cause; (2) and further that, if one justice makes a conviction or order, and another justice, in good faith, grants a warrant of distress or commitment thereunder, the action, if any, must be against the justice who made the conviction or order. (3) It is also provided that no action, as mentioned in the Act. shall be brought for anything done under a conviction or order until the conviction or order has been quashed, either upon appeal or upon application to the high court. and that no such action shall be brought for anything done under any warrant issued by such justice to procure the appearance of the party, and which has been followed by a conviction or order in the same matter. until the conviction or order has been quashed as aforesaid. (4) In case of a justice of the peace having granted a warrant of distress or a warrant of commitment upon a conviction or order which, either before or after the granting of the warrant, has been confirmed upon appeal, it is provided that no action is to be brought against the justice by reason of any defect in the conviction or order. for anything done under the warrant. (5) It has been held that section 4 (above set forth) of the R. S. O. c. 73, prevents any action being brought for anything done under a conviction so long as the conviction remains unquashed and in (1) R. S. O., c. 73, sec. 1. |