force, whether there was jurisdiction to make the conviction or not. (1)

The justice is not deprived of the protection of the Act by a mere irregularity in drawing up the conviction, such as leaving a blank for the amount of costs to be afterwards filled up by the clerk. (2)

The first and second sections of the Imperial Act, 11 & 12 Vict. c. 44, are to the same effect as the first and second sections (above set forth) of the R. S. O. c. 73; and it has been held. in England, that these two sections must be read together, and that section 2 applies only to those cases where the particular proceeding in respect of which an action is brought against the justice is in itself an excess of jurisdiction; so that where a justice convicted the plaintiff in a penalty and costs and adjudged that this penalty and costs should be levied by distress and sale, but exceeded his jurisdiction in ordering the plaintiff, in default of payment, to be set in the stocks, which however was never donè—but the penalty was levied by distress, it was held that an action of trespass for seizing the goods under the distress warrant was not within section 2, and was not maintainable under section 1, which requires the action to be one on the case and to allege malice and want of reasonable and probable cause. (3)

The falsity of the charge in an information laid before a magistrate cannot give a cause of action against the magistrate who acts upon the assumption and belief of the truth of the charge; and where an information contained every material averment necessary to give the magistrate jurisdiction to make an order to find sureties to keep the peace, but also contained additional matter which, as was contended, so qualified these averments as to render them nugatory, it was held that this was a judicial question for the magistrate to decide, and that, therefore, in issuing his warrant for

(1) Arscott v. Lilley & al., 11 Ont. R. 285; Aff. in Appeal, 23 C.L.J. 235. Graham v. McArthur, 25 U.C.Q.B. 478.

(2) Bott. v. Ackroyd & anor. 28 L.J.M.C. 207; 33 L.T. 89.

(3) Barton v. Bricknell, 20 L. J. M. C. 1; 16 L. T. 212; Somerville v. Mirehouse, 3 L, T., N. S. 294; See also Newbould v. Coltman, 20 L. J. M. C. 149; Haylock v. Sparke, 22 L. J. M. C. 72; Kendall v. Wilkinson, 24 L. J. M. C. 94 Basébé v. Matthews, 36 L. J. M. C. 93.

the appearance of the accused, he was not acting without jurisdiction, even although a superior court might quash his order to find sureties. (1)

It is only in cases where the production of a conviction would justify the act upon which an action of damages is based that the quashing of the conviction is necessary before bringing the action. It is therefore unnecessary to quash the conviction before bringing an action against a magistrate who has backed a warrant of commitment in a county other than that in which the conviction took place, for this cannot be an act done under the conviction or an act which the conviction justifies the magistrate in doing. (2)

It has been held in New Brunswick that where a justice of the peace issues a warrant without jurisdiction, as on an insufficient information, he is liable to an action of trespass for assault and false imprisonment at the instance of the person arrested under such warrant, and that the question of reasonable and probable cause cannot arise in such a case as this, but only in a case in which the justice has jurisdiction. (3)

Enactments, similar in effect to those above cited from the Ontario statute, are contained in the statutes of the provinces of Nova Scotia. New Brunswick and Prince Edward Island, it being there provided that every action against a justice of the peace or a stipendiary magistrate for any act done in the execution of his office, with respect to any matter within his jurisdiction shall expressly allege that the act complained of was done maliciously and without reasonable and probable cause; and that in case of the plaintiff failing at the trial to prove this allegation, judgment shall be given for the defendant; (4) and, further, that no justice bona fide issuing a warrant of distress or commitment founded on the conviction of another justice shall be liable for any defect in the conviction or order or other want of jurisdiction in the justice who made it. (5)

(1) Sprung v. Anderson, 23 U. C., C. P. 152.

(2) Jones v. Grace, 17 Ont. R. 681.

(3) Whittier v. Diblee, 2 Pugs. 243.

(4) R. S. N. S. (1884), c. 101, sec. 12; C. S. N. B. (1877), c. 90, sec. 1; Acts of P. E. 1. 1853 to 1862), c. 13, sec. 1.

(5) R. S. N. S. (1884), c. 101, sec. 15, C. S. N. B. (1877), c. 90, sec. 3; Acts of P. E. I. (1853 to 1862), c. 13, sec. 3.

It is also provided that an action brought against a justice of the peace for an act done in a matter where he has no jurisdiction or exceeding his jurisdiction need not allege malice and want of reasonable and probable cause, but that no action in such a case shall be brought until such conviction shall have been quashed. (1)

In Nova Scotia and New Brunswick, it is further provided that. where a warrant of distress or commitment shall be granted by a justice of the peace upon a conviction or order which, either before or after the granting of the warrant, shall have been confirmed upon appeal, no action shall be brought against the justice granting the warrant, for anything done thereunder, by reason of any defect in such conviction or order. (2)

Under the Ontario Act, no action can be brought against any stipendiary or police magistrate or justice of the peace for any act done by him under the supposed authority of a statute or statutory provision of the Province or of the Dominion of Canada, which statute or statutory provision was beyond the legislative jurisdiction of the Legislature of the Province or of the Parliament of Canada, as the case may be, provided the action would not lie against him if the statute or statutory provision had been within the legislative jurisdiction of the Parliament or Legislature which assumed to enact the same; (3) and that where an order is made quashing a summary conviction, the court may, if it thinks fit so to do, provide that no action for a trespass shall be brought against the justice of the peace who made the conviction. (4)

In the Province of Quebec, it has been held that in order to render a justice of the peace liable in damages there must be malice and a want of reasonable and probable cause whether the act complained of is within his jurisdiction or not. (5)

Where justices of the peace acted illegally and maliciously, in committing a person to gaol for refusing as a witness to answer

(1) R. S. N. S. (1884), c. 101, sec. 13; C. S. N. B. (1877), c. 90, ss. 1, 2; Acts of P. E. I. (1853-1862), c. 13, sec. 2.

(2) R. S. N. S. (1884), c. 101, sec. 17; C. S. N. B. (1877), c. 90, sec. 6.

(3) R. S. O., c. 73, sec. 8.

(4) R. S.. O., c. 73, sec. 10.

(5) Marois v. Bolduc, 7 Rev. Lég. 148; Leclerc v. Copeland, Ramsay's

App. Cas. 235; Huston v. Corbeil, 7 L. N. 325.

an irrelevant question at a trial which took place before them,-the order of imprisonmeut being signed out of court some days after the termination of the trial, and under circumstances indicating malice. they were held responsible in damages. (1)

Special Provisions of the Code as to Formalities of Action.-The Criminal Code contains the following provisions with regard to the formalities necessary to be observed in connection with actions against persons administering the criminal law:

Limitation of Time and Place of Action.-Every action and prosecution against any person for anything purporting to be done in pursuance of any Act of the Parliament of Canada relating to criminal law, shall, unless otherwise provided, be laid and tried in the district, county or other judicial division, where the act was committed, and not elsewhere, and shall not be commenced except within six months next after the act committed. (Art. 975.)

Notice of Action,-Notice in writing of such action and of the cause thereof shall be given to the defendant one month at least before the commencement of the action. (Art. 976.)

Defence,-In any such action the defendant may plead the general issue, and give the provisions of this title and the special matter in evidence at any trial had thereupon. (Art. 977.)

Tender or Payment in Court.-No plaintiff shall recover in any such action if tender of sufficient amends is made before such action brought, or if a sufficient sum of money is paid into court by or on behalf of the defendant after such action brought. (Art. 978.)

Costs.—If such action is commenced after the time hereby limited for bringing the same, or is brought or the venue laid in any other place than as aforesaid, a verdict shall be found or judgment shall be given for the defendant; and thereupon, or if

(1) Gauvin v. Moore et al., 7 Mont. L. R. 376.

the plaintiff becomes nonsuit, or discontinues any such action after issue joined. or if upon demurrer or otherwise judgment is given against the plaintiff, the defendant shall, in the discretion of the court, recover his full costs as between solicitor and client, and shall have the like remedy for the same as any defendant has by law in other cases; and although a verdict or judgment is given for the plaintiff in any such action, such plaintiff shall not have costs against the defendant, unless the judge before whom the trial is had certifies his approval of the action. (Art. 979.)

Other Remedies Saved.-Nothing herein shall prevent the effect of any Act in force in any Province of Canada, for the protection of justices of the peace or other officers from vexatious actions for things purporting to be done in the performance of their duty. (Art. 980.)

Special Provisions of Provincial Acts.-The statutes of the Provinces of Ontario, Quebec, Nova Scotia and New Brunswick provide that no action shall be brought against a justice of the peace for anything done by him in the execution of his office, unless the same is commenced within six months after the act complained of was committed; (1) nor unless notice in writing of such action and of the cause thereof shall be given to the defendant one month at least before the commencement of the action. (2)

In Prince Edward Island the time limited for commencing an action against a justice of the peace for any act done by him in the execution of his office, is three months; and there must be a month's notice in writing given before the action is commenced. (3)

As to the computation of the limited time where the cause of action is a continuing one.-imprisonment for instance, the action, when the limited time is six months, may be brought within six months from the last day of the imprisonment; and where in a

(1) R. S. O., c. 73, sec. 13; R. S. Q., Art. 2598; R. S. N. S. (1884), c. 101, sec. 19; C. S. N. B. (1877), c. 29, sec. 19.

(2) R. S. O., c. 73, sec. 14; C. C. P. (Que.), Art. 22; R. S. N. S. (1884), c. 110, sec. 20; C. S. N. B. (1877), c. 90, sec. 8.

(3) Acts of P. E. I. (1853 to 1862), c. 13, ss. 7, 8.