44.

Justice of the Peace-11 & 12 Vict. c. ss. 1,2.-Excess of Jurisdiction-Trespass, when maintainable.

By the 11 & 12 Vict. c. 44. s. 1. it is enacted that every action against a Justice for any act done by him in the execution of his duty as such Justice, with respect to any matter within his jurisdiction as such Justice, shall be an action on the case, and in the declaration it shall be expressly alleged that such act was done maliciously and without reasonable and probable cause. Section 2. provides, that for any act done by a Justice in a matter of which by law he has not jurisdiction, or in which he shall have exceeded his jurisdiction, any person injured thereby or by any act done under any conviction, &c., issued by such Justice in any such matter, may maintain an action against such Justice in the same form and in the same case, as he might have done before the passing of the

act.

Held, that the two sections must be read together, and that section 2. applies only to those cases where the act, in respect of which the action is brought against the Justice, is itself an excess of jurisdiction.

Therefore, where a Justice convicted the plaintiff in a penalty, and adjudged that it should be levied by distress and sale, but exceeded his jurisdiction in ordering the NEW SERIES, XX.-MAG. CAS.

plaintiff in default of payment to be set in the stocks, which however was never done, but the penalty was levied by distress,—it was held, that an action of trespass for seizing the goods under the distress was not within section 2, and was not maintainable by reason of section 1.

Trespass for breaking and entering the plaintiff's dwelling-house, and seizing his goods, and retaining possession of them until the plaintiff was compelled to pay 1. 14s. to regain possession, alleging as special damage that the plaintiff was obliged to lay out and expend a large sum of money, to wit, &c., in quashing a conviction, the quashing whereof was necessary to enable the plaintiff to maintain this suit. Plea-not guilty "by statute.'

At the trial, before Platt, B., at the Oxfordshire Spring Assizes, 1850, it appeared that the defendant, a Magistrate of that county, had convicted the plaintiff under the 29 Car. 2. c. 7. for unlawful trading upon a Sunday. The conviction adjudged that the plaintiff should pay a penalty of 5s. together with 17. 1s. the costs of the prosecutor, and that if the said several sums were not paid forthwith the same should be levied by distress and sale of the goods of the plaintiff, and in default of sufficient distress, it adjudged the plaintiff to be set in the stocks for two hours, unless the said several sums and all costs

B