Note to Sect. 5. 26 L. J. R. (N.s.) M. C. 102; 21 J. P. 626. Neither will the court call upon a magistrate by rule under this section to hear and adjudicate upon a matter of fact affecting his jurisdiction. Per Lord Campbell, C. J., "the present mode of Rule to proceeding under the statute is merely a substitute for the justices. old prerogative writ of mandamus, being a more speedy and economical remedy; but this remedy will only apply in cases where a mandamus would lie." Reg. v. Dayman, 29 L. T. 125; 21 J. P. 340; 26 L. J. R. (N.s) M. C. 128; 3 Jur. (N.S.) 744; 7 El. & Bl. 672. And the same principle was upheld in Reg. v. Brown and others, JJ. of Monmouth, 3 Jur. (N.S.) 745; 21 J. P. 357; 26 L. J. R. (N.S.) M. C. 183; 29 L. T. 160, where upon an information against one of several owners of a mine under 18 & 19 Vict. c. 108, s. 4, after evidence had been taken in support of the complaint, it was objected that the information ought to have been laid against all the owners of the mine, and the justices, holding the objection good, thereupon dismissed the complaint; but the court held that the objection being untenable, and being a preliminary one in the nature of a plea in abatement, the justices had declined jurisdiction, and therefore the court made a rule absolute calling upon them under this section to hear and adjudicate upon the case. But by Erle, J., dissenting, as the magistrate's decision was upon a matter of fact, on which his jurisdiction depended, the court might properly review his decision, and if it should appear that he had erroneously decided on the point of jurisdiction, require him to hear and adjudicate upon the merits of the case. In a case where justices decided as follows:-"Upon a careful consideration of the evidence and the wording of the notice (which was dated the 10th February, 1858, and by an error referred to "the 23rd day of February next," instead of the 23rd day of February instant), the magistrates are of opinion that they are not in a position to order an assessment," in respect of damages under an inclosure Act, the court granted a rule commanding them to hear and decide the case :-Lord Campbell, C. J., saying, "they have decided that they are not in a position to decide. That seems to be quite consistent with their having heard and not decided. Their duty is to hear and decide." Thorning v. Bennett, 22 J. P. 399. In Reg. v. Blanshard, 18 L. J. (N.S.) M. C. 110; 13 J. P. 104, the court refused a mandamus to the justices to do an act, as it appeared that they had not declined to exercise their jurisdiction, but had entered upon the inquiry and decided, though erroneously. In Reg. v. Bristol JJ., 18 Jur. 426, it was also held that this section does not give the court power to grant a rule calling upon the justices to show cause, where before the statute they could not issue a mandamus. Note to Rule to justices. Where a person rated to a highway rate neglected to appeal against it in time, and upon being summoned to appear before a justice for not paying it, showed a seemingly good ground of exemption, and the justices thereupon refused to issue a distress warrant against him; upon an application for a rule that the justice should issue his warrant, the court held that the party was liable to the rate, as he had not appealed against it, and they therefore made the rule absolute commanding the justice to issue a distress warrant for its recovery. Reg. v. Oxfordshire JJ., 18 L. J. R. (N.S.) M. C. 222; 6 Dowl. & L. 288; 14 Jur. 575; 13 J. P. 445. In Reg. v. Shropshire JJ., 13 Q. B. 654, cited in Reg.v. Oxfordshire, J. P. 1849, p. 315, 3 N. S. C. 641, it was also held that a rule under 11 & 12 Vict. c. 44, is not the proper remedy to try the validity of an exemption from the highway rate, but in this case the time for appeal had not gone by. But the court will not in all cases interfere under the section. In cases of much complexity or difficulty, or where the question is of such importance that the parties ought to have their right of appealing to a higher tribunal, in case they should be dissatisfied with the decision of the Court of Queen's Bench, that court will not in general interfere, but will leave the party to his remedy by mandamus. The Court of Queen's Bench is bound to interfere in cases where justices refuse to issue a warrant which they ought to issue; and that court will enforce a rule against the justices in such a case though there may be no information before the court as to whether any, ar what evidence was given before the justices at the hearing, or what the defence was. In such a case all that the court requires is that the facts of the case authorizing the issuing of the warrant, and that the justices refused to issue it. Reg. v. Deverell, 3 El. & Bl. 372; 23 L. J. R. (N.s.) M. C. 121. On motion against a justice under this enactment, as well as on motion for mandamus, the general rule is that the court will order the unsuccessful party to pay costs, and will not on the motion for costs enter into the merits of the original application. Reg. v. Ingham, 17 A. & E. 884. Further, with regard to proceedings under this section, see Sparrow v. Impington, 29 L. J. M. C. 176, n. A party claiming an exemption from highway rates should appeal against the rate, and if he has allowed the time limited for appeal to expire, he cannot set up the claim to exemption as an answer to a rule under 11 & 12 Vict. c. 44, s. 5, calling upon the justices to issue a distress warrant. Bletchington v. Peyton, 6 Dowl. & L. 288. A rate is void if made on a person in respect of land not in his occupation (Milward v. Caffin, 2 W. Bl. 1330), which is an exception to the rule that a rate, good on the face of it Note to and unappealed against, cannot be resisted. So where a Sect. 5. statute says that a rate shall be void without certain previous ceremonies, it is the general rule that when it has been proved Rule to that these ceremonies have been gone through that is alone justices. sufficient to show that the rate is not void. On the hearing of a complaint for non-payment of a rate the justices are bound to issue their distress warrant, and have no power to state a case under 20 & 21 Vict. c. 43. The proper course is to appeal against the rate if it be objected to. Reg.v. Newman and others, JJ. of Gloucestershire, 29 L. J. M. C. 117. See also Wheeler v. Brimington Overseers, post; and Sparrow v. Impington Overseers, post. Where no cause is shown against a rule under 11 & 12 Vict. c. 44, s. 5, the court will not make the rule absolute with costs unless asked for by the rule. Leamington Priors v. Moultrie, 7 Dowl. & L. 311. The court will not give the respondent costs on dismissing an appeal against a decision of justices where the question is a fairly arguable one; neither will they listen to an application for that purpose in the term after the decision. Coswell, app., Cook, resp., 11 C. B. (N.s.) 242. The following report is extracted from the Times newspaper of the 26th January, 1875. IN THE MATTER OF THE GUARDIANS OF NEATH. This was an application to this court, under Jervis' Act, for the assistance and protection of magistrates to exercise a "little gentle compulsion" upon them in a case in which they doubted their authority to act. The Act (11 & 12 Vict.) provides that, whereas it would conduce to the due administration of justice and facilitate the execution by justices of the duties of their office if protection was afforded to them, by providing some simple means of ascertaining the legality of any act they may be called upon to do, without exposing them to the risk of an action; that in all cases where justices refuse to do any act relating to the duties of their office they, or the party interested, may apply to this court for a rule calling upon them and on the opposite party to show cause why they should not do the act, and thereupon the court may direct them to do the act, for which they would then not be liable. In the present case the guardians had made an application for an order on a man for the maintenance of his wife. He denied the legality of his marriage to her, and the clerk of the magistrates advised them that if they made and en Note to forced the order they might be liable to an action, and Sect. 5. thereupon they declined to make the order; and After conviction or order confirmed on Mr. Giffard, Q.C., on behalf of the guardians, made an application under Jervis' Act for a rule calling on the magistrates to show cause why they should not make the order; but, after some discussion, The Lord Chief Justice said,-We should be setting a very bad precedent if we acceded to this application. No one in the position of a judge ought to shrink from the discharge of his duty-according to what he believes it to be his dutyfrom any fear of ulterior consequences to himself. And here the magistrates really do not want the protection of the court; for they will not be liable to any action merely for making the order of maintenance. It is only when the application is made to them to issue a warrant to enforce the order by distress that they can be under any liability to action of trespass supposing them to have had no jurisdiction; and then, that being a merely ministerial act, they may, having already exercised their judicial function, apply to us under Jervis Act for protection. You are "leaping before you come to the stile." The magistrates will be quite right in applying for the protection of the court under Jervis' Act in a case in which they are fairly entitled to it; but they must first exercise their judicial mind and duty in hearing and determining the application before them. And they may come to us for protection when they really want it; but here at present they do not want it, and are not entitled to it. Mr. Justice Mellor.-I think they will not incur any risk in discharging that part of their duty which is involved in deciding on making the order for maintenance. Mr. Justice Lush. They will not be liable to any action for making that order. There is Mr. Giffard said probably this intimation of the opinion of the court would be sufficient to satisfy the magistrates. The Lord Chief Justice.—I should think so. really no necessity at present for such an application. Accordingly, on the ground that the application was premature, it was dismissed. 6. And be it enacted, that 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 done under granting of such warrant, shall have been or shall be confirmed upon appeal, no action shall be brought appeal, no action for anything a warrant upon it. against such justice who so granted such warrant Sect. 6. for anything which may have been done under the same by reason of any defect in such conviction or order. be brought this Act hibited, a 7. And be it enacted, that in all cases where by If an action this Act it is enacted that no action shall be brought where by under particular circumstances, if any such action it is proshall be brought it shall be lawful for a judge of the judge may court in which the same shall be brought, upon the proceedapplication of the defendant, and upon an affidavit of ings. facts, to set aside the proceedings in such action, with or without costs, as to him shall seem meet. set aside of action. 8. And be it enacted, that no action shall be Limitation brought against any justice of the peace for anything 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. With reference to an action in respect of a matter done in pursuance of an Act of parliament, it may be useful to quote the language of Bayley, J., in Smith v. Shaw, 10 B. & C. 284. According to the decision upon similar words, he said, a thing is to be considered as done in pursuance of the Act, when the person who does it is acting honestly and bona fide, either under the powers which the Act gives, or in discharge of the duties which it imposes. Though he may erroneously exceed the powers the Act gives, or inadequately discharge the duties, yet, if he acts bona fide in order to execute such powers or to discharge such duties, he is to be considered as acting in pursuance of the Act and is to be entitled to the protection conferred upon persons whilst so acting. This is established by Gaby v. Wilts and Berks Canal Company, 3 M. & S. 580. Theobald v. Crickmore, 1 B. & Ald. 227; Parton v. Williams, 3 B. & Ald. 330; and Smith v. Wiltshire, 2 Bro. & B. 619, and Cook v. Leonard, 6 B. & C. 351, establish the same point as to constables and other persons acting in obedience to a justice's warrant. How if jus tices act bonâ fide. |