If any action be brought where by this Act it is pro Justices of the Peace, &c. action shall be brought against such Justice who so granted such warrant for anything which may have been done under the same by reason of any defect in such conviction or order. 7. And be it enacted that in all cases where by this Ordinance it is enacted that no action shall be brought under particular circumstances, if any such action shall be brought, it shall be lawful for may set aside the a Judge of the Court in which the same shall be brought, upon application of the defendant and upon affidavit of facts, to set aside the proceedings in such action, with or without costs as to him shall hibited, a Judge proceedings Limitation of action Notice of action Defendant may issue seem meet. 8. And be it enacted that no action shall be 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. 9. And be it enacted that no such action shall be commenced against any such Justice 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. 10. And be it enacted that in every such action the defendant plead the general shall be allowed to plead the general issue therein and to give any special matter of defence, excuse or justification in evidence under such plea at the trial of such action. Tender and payment of money into Court 11. And be it enacted that in every such case, after notice of action shall be so given as aforesaid and before such action shall be commenced, such Justice to whom such notice shall be given may tender to the party complaining or to his attorney or agent, such sum of money as he 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 as aforesaid, and if the jury at the trial or the Judge of the Court, if the trial be without a jury, shall be of opinion that the plaintiff is not entitled to damages beyond the sum so tendered or paid into Court, or beyond the sums so tendered and paid into Court, then they or he 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 Justices of the Peace, &c. said action, he may obtain from any Judge of the Court in which such action may be brought, 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 such action shall be determined, and such order shall be a bar to any other action for the same cause. In what cases nonsuit, or verfendant dict for the de 12. And be it enacted that if at the trial of any such action the plaintiff shall not prove that such action was brought within the time herein before limited in that behalf, or that such notice was given as aforesaid one calendar month before such action was commenced, or if he shall not prove the cause of action stated in such notice, then and in every such case such plaintiff shall be nonsuit, or the jury or Judge of the Court, as the case may be, shall give a verdict for the defendant. 13. And be it enacted that in all cases where the plaintiff in any Damages 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 so levied and paid, or any sum beyond the sum of twopence as damages for such imprisonment, or any costs of suit whatsoever, if it shall be proved that he was actually guilty of the offence of which he was so convicted, or that he was liable by law to pay the sum he was so 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. 14. And be it enacted that if the plaintiff in any such action shall recover a verdict, 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 or plaint that the act complained of was done maliciously and without reasonable and probable cause, the plaintiff, 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. CHARLES FITZGERALD, GOVERNOR AND COMMANDER-IN-CHIEF. Costs Justices of the Peace, &c. For what of the Peace may grant a warrant or summons to cause a person charged therewith to be WESTERN AUSTRALIA •ANNO QUARTODECIMO VICTORIÆ REGINE No. 4 An Ordinance to facilitate the performance of Duties of WHE [Assented to 28th November, 1850. HEREAS it would conduce much to the improvement of the administration of criminal justice in Western Australia if the duties of Her Majesty's Justices of the Peace therein with respect to persons charged with indictable offences were clearly defined by positive enactment: Be it therefore declared and enacted by His Excellency offences a Justice the Governor of Western Australia, by and with the advice and consent of the Legislative Council thereof, that in all cases where a charge or complaint (A) shall be made before any one or more of Her Majesty's Justices of the Peace for the said Colony, that any person has committed or is suspected to have committed any treason, felony, or indictable misdemeanour, or other indictable offence whatsoever within the limits of the jurisdiction of such Justice or Justices of the Peace, or that any person guilty or suspected to be guilty of having committed any such crime or offence elsewhere out of the jurisdiction of such Justice or Justices, is residing or being or is suspected to reside or be within the limits of the jurisdiction of such Justice or Justices, then and in every such case if the person so charged or complained against shall not then be in custody it shall be lawful for such Justice or Justices of the Peace to issue his or their warrant (B) to apprehend the party may be such person and cause him to be brought before such Justice or brought before him In what cases stead of issuing a warrant in the first instance If the summons be not obeyed, then a warrant may be issued Justices or any other Justice or Justices for the said Colony to answer to such charge or complaint, and to be further dealt with according to law: Provided always that in all cases it shall be lawful for such Justice or Justices to whom such charge or complaint shall be preferred if he or they shall so think fit, instead of issuing in the first instance his or their warrant to apprehend the person so charged or complained against, to issue his or their summons (C) directed to such person, requiring him to appear before the said Justice or Justices at a time and place to be therein mentioned or before such other Justice or Justices of the said Colony as may then be there; and if after being served with such summons in manner hereinafter mentioned he shall fail to appear at such time and place in obedience to such summons, then and in every such case the said Justice or Justices or any other Justice or Justices of the Peace for the said Colony may issue his or their warrant (D) to apprehend such person so charged or complained against and cause such person to be brought before him or them or before some other Justice or Justices of the Peace for the said Colony Justices of the Peace, &c. to answer to the said charge or complaint and to be further dealt with according to law: Provided nevertheless that nothing herein contained shall prevent any Justice or Justices of the Peace from issuing the warrant herein before first mentioned at any time before or after the time mentioned in such summons for the appearance of the said accused party. 2. And be it enacted that in all cases of indictable crimes or offences of any kind or nature whatsoever committed on the high seas, or in any creek, harbour, haven, or other place in which the Admiralty of England have or claim to have jurisdiction, and in all cases of crimes or offences committed on land beyond the seas, for which an indictment may legally be preferred in any place within the said Colony, it shall be lawful for any one or more of Her Majesty's Justices of the Peace for the said Colony within which any person charged with having committed, or with being suspected to have committed, any such crime or offence shall reside or be, or shall be supposed or suspected to reside and be, to issue his or their warrant (E) to apprehend the person so charged, and to cause him to be brought before him or them or some other Justice or Justices of the Peace for the said Colony to answer to the said charges, and to be further dealt with according to law. 3. And be it enacted that where any indictment shall be found by the grand jury in any Court of Oyer and Terminer or general gaol delivery, or in any Court of General or Quarter Sessions of the Peace, against any person who shall then be at large, and whether such person shall have been bound by any recognisance to appear to answer the same or not, the person who shall act as Clerk of the Crown at such Court of Oyer and Terminer or gaol delivery, or as Clerk of the Peace at such Sessions, at which the said indictment shall be found, shall at any time afterwards after the Sessions of Oyer and Terminer or gaol delivery or Sessions of the Peace at which such indictment shall have been found, upon application of the prosecutor or of a person on his behalf, and on payment of the fee of sixpence, if such person shall not have already appeared and pleaded to such indictment, grant unto such prosecutor or person a certificate (F) of such indictment having been found; and upon production of such certificate to any Justice or Justices of the Peace for the said Colony it shall be lawful for such Justice or Justices, and he and they are hereby required, to issue his or their warrant (G) to apprehend such person so indicted, and to cause him to be brought before such Justice or Justices, or any other Justice or Justices for the said Colony, to be dealt with according to law, and afterwards if such person be thereupon apprehended and brought before any such Justice or Justices, such Justice or Justices, upon its being proved upon oath or affirmation before him or them that the person so apprehended is the same person who is charged and named in such indictment shall, without further inquiry or examination, commit him (H) for trial, or admit him to bail, in manner hereinafter mentioned; or if such person so indicted shall be confined in any gaol or prison for any other offence than that charged in the said indictment at the time of such application, and production of the said certificate to such Justice or Justices as aforesaid, it shall be lawful for such Justice or Justices, and he and they are hereby required, upon it being proved Power to Justice to issue warrants on Sundays When charge, tion, &c., on oath Justices If summons to be issued in Justices of the Peace, &c. before him or them upon oath or affirmation that the person so indicted and the person so confined in prison are one and the same person, to issue his or their warrant (I) directed to the gaol or keeper of the gaol or prison in which the person so indicted shall then be confined as aforesaid, commanding him to detain such person in his custody until by Her Majesty's writ of habeas corpus he shall be removed therefrom, for the purpose of being tried upon the said indictment, or until he shall otherwise be removed or discharged out of his custody by due course of law. 4. And be it enacted that it shall be lawful for any Justice or Justices of the Peace to grant or issue and cause to be executed any warrant as aforesaid or any search warrant on a Sunday, as well as on any other day. 5. And be it enacted that in all cases where a charge or complaint for indictable offence shall be made before such Justice or Justices any as aforesaid, if it be intended to issue a warrant in the first instance to be laid before against the parties so charged, an information and complaint thereof (A) in writing, on the oath or affirmation of the informant or of some witness in that behalf, shall be laid before such Justice or Justices: Provided always that in all cases where it is intended to issue a summons instead of a warrant, in the first instance, it shall not be necessary that such information and complaint shall be in writing, or be sworn to or affirmed in manner aforesaid, but in every such case such information and complaint may be by parol merely, and without any oath or affirmation whatsoever to support and substantiate the same: Provided also that no objection shall be taken or allowed to any such information or complaint for any alleged defect therein in substance or in form, or for any variance between it and the evidence adduced on the part of the prosecution before the Justice or Justices who shall take the examination of the witnesses in that behalf, as hereinafter mentioned. stead, information, &c., not necessary to be on oath No objection. allowed for alleged defect in form being laid, Justices receiving the same may issue summons or warrant for appearance of person charged 6. And be it enacted that upon such information and complaint being so laid as aforesaid, the Justice or Justices receiving the same may if he or they shall think fit issue his or their summons or warrant respectively as hereinbefore is directed to cause the person charged as aforesaid to be and appear before him or them or any other Justice or Upon complaint Justices of the Peace for the said Colony, to be dealt with according to law; and every such summons (C) shall be directed to the party so charged in and by such information, and shall state shortly the matter of such information and shall require the party to whom it is so directed to be and appear at a certain time and place therein mentioned before the Justice who shall issue the summons, or before such other Justice or Justices of the Peace of the said Colony as may then be there to answer to the said charge and to be further dealt with accordHow summons to ing to law; and every such summons shall be served by a Constable or other Peace Officer on the person to whom it is so directed by delivering the same to the party personally, or if he cannot conveniently be met with then by leaving the same with some person for him at his last or most usual place of abode; and the person who shall have served the same in manner aforesaid shall attend at the time and place and before the Justices in the said summons mentioned to depose if necessary to the service of such summons; and if the person so be served |