No action for anything done under a warrant to compel ap: pearance, if 5. If the last mentioned warrant has not been followed by a conviction or order, or in case it is a warrant upon an information for an alleged indictable offence, if a summons was issued previously to the warrant, and the summons was served upon such person, either personally or by leaving the same for was previously him with some person at his last or most usual place of abode, and he did not appear according to the exigency of the summons, in such case no such action shall be maintained against the Justice for anything done under the warrant. R. S. O. 1877, c. 73, s. 5. a summons served and not obeyed. If a justice re Judge may order him to do it, and no action shall then lie against him for doing it. 6. In all cases where a Justice of the Peace refuses fuses to do any to do any act relating to the duties of his office as such act, the High Court Justice, the party requiring the act to be done may, or the County upon an affidavit of the facts, apply to the High Court or to the Judge of the County Court of the county or united counties in which the. Justice resides, for an order nisi calling upon the Justice, and also the party to be affected by the act, to shew cause why the act should not be done; and if, after due service of the order, good cause is not shewn against it, the Court may make the same absolute, with or without or upon payment of costs, as may seem meet, and the Justice, upon being served with the order absolute, shall obey the same, and shall do the act required; and no action or proceeding shall be commenced or prosecuted against the Justice for having obeyed the order and done the act required as aforesaid. R. S. O. 1877, c. 73, s. 6. After convic 7. In case a Justice of the Peace has granted a warrant of tion, etc., con distress or a warrant of commitment upon any conviction or firmed on appeal, no action order which, either before or after the granting of the warrant has been confirmed upon appeal, no action shall be brought against the Justice by reason of any defect in the conviction or order for anything done under the warrant. R. S. O. 1877, c. 73, s. 7. to lie for an Protection to those acting ultra vires. 8 (1) No action shall be brought against any Judge, under statutes Stipendiary or Police Magistrate, Justice of the Peace, or officer, for any act or thing by him done 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. Cases wherein (2) Where, notwithstanding the above sub-section, an action is sustainable against a Judge, Stipendiary or Police Magistrate, Justice of the Peace, or officer, for any act or thing by him done under the authority of a statute, or statutory provision, as in the said sub-section, the action shall only be sustainable subject to the like provisions as the action would be subject to if the statute or statutory provision were valid; and the like damages, and no more, shall be recoverable in such action as under the like circumstances could have been recovered if the statute or statutory provision had been valid. 41 V. c. 4, s. 2,(1, 2) formations or Justices from 9. No defect in form, in an information or warrant taken Defects in before or signed by a Justice of the Peace, shall prevent the form of inJustice from claiming the benefit and protection of this Act if warrants not the Court before which, or the Judge before whom, the action is to prevent tried shall be of opinion that the Justice acted in good faith, claiming and that the informant or complainant intended, by the facts protection hereunder. stated to the Justice, to charge the commission of an offence which, if the same had been set forth in proper form in the information or warrant, would be one within the jurisdiction of the Justice, and in such case the informant or complainant shall be liable to prosecution, as if the information had charged in proper form the commission of the offence so intended to be charged. 41 V. c. 4, s. 3. 10. Where an order is made by the High Court quashing a Conditions on quashing summary conviction the Court may, if it thinks fit so to do, convictions. provide that no action for a trespass shall be brought against the Justice of the Peace who made the conviction. 41 V. c. 4, s. 4. information 11. No person who has in good faith as aforesaid intended to Actions when charge another person, who shall hereafter be arrested by the does not condirection of the person so charging the said offence, under tain a proper description of a warrant signed by a Justice of the Peace, with the com- the offence. mission of any offence, shall be liable to be sued for a trespass, in consequence only of the information sworn before a Justice of the Peace, or the warrant signed by him not containing a proper description of the offence. 41 V. c. 4, s. 5. 12. In case an action is brought, where by this Act it is If any action enacted that no action shall be brought under the particular is brought contrary to this circumstances, a Judge of the Court in which the action is Act, Judge pending shall, upon application of the defendant, and upon an may set aside affidavit of facts, set aside the proceedings in the action, ings. with or without costs, as to him seems meet. R. S. O. 1877, c. 73, s. 8. the proceed 13. No action shall be brought against a Justice of the Limitation of Peace for anything done by him in the execution of his office actions. unless the same is commenced within six months next after the act complained of was committed. R. S. O. 1877, c. 73, s. 9. Notice of action to be given. Place of trial. Defendant may plead not guilty by statute. Action not to be brought in County or Division Court, if the Justice objects. Tender and payment of money into Court by Justice. If Judge or jury think plaintiff entitled to no greater dama ges, verdict to be for defendant. 14. No such action shall be commenced against a Justice of the Peace until one month at least after a notice in writing of the intended action has been delivered to him, or left for him at his usual place of abode, by the party intending to commence the action, or by his solicitor or agent, in which 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 intending to sue, and also the name and place of abode or of business of his solicitor or agent, if the notice is served by the solicitor or agent. R. S. Ö. 1877, c. 73, s. 10. 15. Every such action shall be tried in the County where the act complained of was committed, and in actions in County or Division Courts, the action shall be brought in the County or Division within which the act complained of was committed, or in which the defendant resides, and the defendant may plead not guilty by statute, and may, at the trial of the action, give any special matter of defence, excuse or justification in evidence. R. S. O. 1877, c. 73, s. 11. 16. No action shall be brought in any County or Division Court against a Justice of the Peace for anything done by him in the execution of his office if the Justice objects thereto; and if, within six days after being served with a notice of the action, the Justice, or his solicitor or agent, gives a written notice to the plaintiff in the intended action that he objects to being sued in such County or Division Court for such cause of action, no proceedings shall afterwards be had in such County or Division Court in the action, but it shall not be necessary to give another notice of action in order to sue the Justice in any other Court. R. S. O. 1877, c. 73, s. 12. 17. In every such case, after notice of action has been given as aforesaid, and before an action has been commenced, the Justice to whom the notice has been given may tender to the party complaining, or to his solicitor or agent, such sum of money as he thinks fit as amends for the injury complained of in the notice; and after the action has been commenced, and at any time before issue joined therein, the defendant, if he has not made a tender, or in addition to the tender, may pay into Court such sum of money as he thinks fit, and the tender and payment of money into Court, or either of them, may afterwards be given in evidence by the defendant at the trial under such defence of not guilty. R. S. O. 1877 c. 73, s. 13. 18. If the jury (or the Judge, if the case be tried without a jury) at the trial be of opinion that the plaintiff is not entitled to damages beyond the sum so tendered or paid into Court, a verdict or judgment shall be given for the defendant, and the plaintiff shall not be at liberty to elect to be nonsuited, and the sum of money, if any, so paid into Court, or so much thereof as is 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. R. S. O. 1877, c. 73, s. 14. money. 19. In case money is paid into Court in such action, and If the plaintiff the plaintiff elects to accept the same in satisfaction of his accepts the damages in the action, he may obtain from a Judge of the Court in which the action has been brought, an order that the money shall be paid out of Court to him, and that the defendant shall pay him his costs to be taxed, and thereupon the said action shall be determined, and the order shall be a bar to any other action for the same cause. R. S. O. 1877, c. 73, s. 15. 20. If at the trial of the action the plaintiff does not prove, If plaintiff fails to prove 1. That the action was brought within the time herein before certain parlimited in that behalf; and ticulars, he shall be non-suited or 2. That notice as aforesaid was given one month before the verdict given action was commenced; and 3. The cause of action stated in the notice; and 4. That the cause of action arose in the county or district, the County Town of which is named in the statement of claim as the place of trial; and 5. Where the plaintiff sues in a County, District or Division. Court, that the cause of action arose within the county, district or united counties for which such Court is holden then, and in any such case, the plaintiff shall be nonsuited, or a verdict shall be given for the defendant. R. S. O. 1877, c. 73, s. 16. for the defendant. tain cases. 21. In case the plaintiff in such action is entitled to Damages lirecover, and he proves the levying or payment of any penalty mited in ceror sum of money under any conviction or order as parcel of the damages he seeks to recover, or if he proves that he was imprisoned under the conviction or order, and seeks to recover damages for the imprisonment, and it is 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 the imprisonment that he has 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, he shall not be entitled to recover the amount of the penalty or sum so levied or paid, or any sum beyond the sum of three cents as damages for the imprisonment, or any costs of suit whatsoever. R. S. O. 1877, c. 73, s. 17. If plaintiff re etc., to be en 22. If the plaintiff in such action recovers a verdict or covers verdict, the defendant allows judgment to pass against him by default, titled to costs. the plaintiff shall be entitled to costs in the same manner as if this Act had not been passed. R. S. O. 1877, c. 73, s. 18. If malice and want of pro bable cause be alleged and plaintiff reco vers, he shall be entitled to full costs. 23. If in any case it is alleged in the statement of claim or in the summons and particulars if the plaintiff'sues in the Division Court, that the act complained of was done maliciously and without reasonable or probable cause, the plaintiff, if he recovers a verdict for any damages, or if the defendant allows judgment to pass against him by default, shall be entitled to his costs When defen- to be taxed as between solicitor and client; and in every dant is entitled action against a Justice of the Peace for anything done by him in the execution of his office, the defendant, if he obtains judgment, shall be entitled to his full costs in that behalf, to be taxed as between solicitor and client. R. S. O. 1877, c. 73, s. 19. to costs, etc. Persons obeying writs of mandamus, indemnified. 24. No action, or other proceeding shall be commenced or prosecuted against any person or persons whomsoever, for or by reason of anything done in obedience to a peremptory writ of mandamus issued by any Court having authority to issue writs of mandamus. R. S. O. 1877, c. 52, s. 29. CHAPTER 74. An Act respecting Summary Convictions before Justices of the Peace and Appeals to General Sessions. PROCEDURE BEFORE JUSTICES, ss. 1-3. COSTS, s. 2. APPEALS FROM JUSTICES TO GENERAL IN CASE OF AMENDMENT OF ACTS OF Procedure be fore Justices, HE ER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: PROCEDURE BEFORE JUSTICES. 1.-(1) Where a penalty or punishment is imposed under the etc., to be the authority of any statute of the Province of Ontario, or same as under of any other statute or law in force in Ontario, and Acts respect relating to matters within the legislative authority of the ing procedure Legislature of the Province, and is recoverable before, or Dominion in summary convictions. |