Justices Act 1849 (SA)

No. 9.

WHEREAS it is expedient to protcct .tJustices of the Peace in Preamble. L *

die execution of their duty: Be it therefore 14Cnacted by the Governor For an art 1)y a JUS- tice ofthv Pcace withiit

"hieh he shall have exceeded his jurisdiction, any person injured W;~;t~+~,;;~ tlE'l.ebJ' without aart~ ullcgas *. 3

of South Auntmlia. with the advice m d consent of the Legislative I lis jwisdiction, the

Council thereof,-That every action hereafter to be brought against action shall be on case, and it shall I)r,

ally dusticc of the Peaet. for any set donc 1'2; him in the execotion ,ilegea to ha,re heell

of his duty as such Justice, with respect to any matter within his done witllont malicious?v probal>l~x

jurisdiction ss such Justice, shall be an action on the case as for s ,.,. I v, L ., f, -

ton; and in the declaration it shall -essly alleged that sddh / y, y ~ 4 z - & L T - = - - Y A?

A./- /. p '(. --' <,,,/

was done nldciously and without reasonalk and probable

(mse ; and if at the trial of any such action, upon the general issue 0, 4,,,, i

' ,G'< - -.

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being pleaded, the plaintiff shall fail to prow such allegation, he

I shall be nonsuit, or a verdict shall be given for the defendant.

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11. And be it Enacted, That for any act done by a Justice of the f i r .l1 act done h him without jurisdlc- S

Peace in a matter of which by law he has not jurisdiction, or in ,ion, or e x c e o ~ ~ ~ g inglii*

tion; but not for	thereby, or by any act done ~ u d e r	any conviction or order made, or
act done under a con-

viction or order, until warrant issued by such Justice in any such matter, may maintain an

after such conviction action against such Justice in the same form, and in the same case

or order shall have

1 ~ e n qua8hcil ; nor for as he might havc done before the passing of this Ordinance, witliout

an act dunc under a

warrant to c ~ t n p e l ~ p nlaking any allegation in his declaration that the act complained of

pearance,ifssumnom was done maliciously, and without reasonable and probable cause:	were previously servrd
and not obeyed.	Provided nevei%liel&s, that no such action shall be brought for any thing done under such conviction or order until after such convictiori or order shall havc been quashed, either upon appeal or upon ap- plication to the Supreme Cowt, nor shall m y such action be brought for any thing done under any such warrant which shall have beell issued by such Justice to procure the appearance of such party, awl which shall have bee11 fidlowed by a conviction or order in the snmc. matter, until after such conviction or orcler shall have been so quashed as aforesaid; or if such last mentioned warrant shall not have been followed by any such conviction or order, or if it be a warrant upon an information for an allcg,ed i~dictable offence; ncver- theloss, if a summons were issued previously to such warraut, mid such summons were served upon such person, either personally or by leaving the same for him with some person at his last or most usual p1:rc:e of' abode, and he did not appear according to the exigencv of such summons, in such case, no such action shall be maintaid against such Justice for any thing done under such warrant.
~ f o n c	Justice make a
conviction or ordcr	111. And be it Enacted, That where a conviction or order shall

, h , , , , be made bv oue or more Justice or .Justices of the Peace, and H

warrant u w	it, tllc	warrant of distress or colun~itment	shall be granted thereon hy some
action must be

brought afiainst the other Justice of the Peace, bona $de and without cohsion, no action

former; not !he latter, shall be brought against the Justice who so granted such mrrant for a defect m the con-

viction or order.	by reason of any defect in such conviction or order, or for any want
the action (if any) shall be brought against thc Justice or Justicrs of jurisdiction in the Justice or Justices who made the same, but who made such conviction or order.

mioa for issuing IV. And be it Enacted, That where any public rate or assessment

a distress warrant for

anv ~ublic rate or as- shall be made, allowed, and published, and a warrant of distress

se&ent, by reason of

any defect, or that the shall issue akainst any named and rated therein, no action

party is not ratcable. shall be brought against the Justice or Justices shall have

granted such warrant by reason of any irregularity or defect in the

said rate or assessment, or by reason of such person not being liable

to be rated therein; and that in all cases where a discretionary power shall be given to a Justice of tile Peace by any Statute or Ordinance

s o wti0n against in foroe within the Province, no action shall be brought against such

Justices forthe manner	innhiohthey e x e c b Justice for 0l. by reason of the manner in which he s % d hfle
a d * ~ ~ t i o n s T J ~ ~ ~ e r. exercised his discretion in the execution of any ,gu& power.

V. And

V, And whereas it would conduce to the advallceirrent of J .~ls t ic~

9 If

)$Eh	;$	:$	;	;	,	:	:
do a an Justice act the refuse

Suprenre

to

and render. more effective and certain the performance of the duties coU&

m4v, by

nl~r,

Justices, a i d give them protection itr the pcrfonilaneo of tlie ;

p%111e, if some simple 111eai1~,

not attended with much expense, were brollght ;tgairkst liim

drrised by wllich the lrgality uf m y act to he done by such Justiccs fur doi'l@t

llligllt be considered slid adjudged by a Court of coinpetent joris-

Ltion, and sudi Justice c~;nhlod. n d dircetcd to perform it without

risk of any action or other proceeding being brought or had against

Ililli:

Be it Enacted, That in all cases wlaerc a Justice or Justices

of tlie Pence slrttll refuse to c10 any act relating to the duties of his

' or their officc as such Justice or Justices, it shall be lawfill for the'

party reyuiring.snch act to be done to a$v

to the Supremo Court,

i~poli

a n affidav~t

of the fixcts, for n rule m k n g upon nuch Justice

or Justices, and also the party to be affected by sucll act to shew

cause nhy such act sliodd not be done; and if &er

due snlvice of

such rule good cause s11alI not be sliewn agaitlst it, the said Court

mar innlie the s:~iiie absolute, with or without or upon payiner~t

of

CO&,

as to the said Court shall seem meet: and the said Justice or

Snsticcs upon hiug servcct with srwll rule absolute sllall obey the

s i u w, and shall do the act required; and no action or proceeding

whxtsoe~er

shall he cnri~~neiicccl

or prosevnted wgzziiist suc!li Justice

or dustices for haring obeyed such d e, D L I ~

done such act so thereby

required as aforesaid.

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VI. And he it Euxcted, Tlmt in all cnscs where a wm-ant of Afrr; cornlrtiorl or

urdw ctri~firrnetl vtr

distress or warrant of colill~iitment shall be granted by a Justice of .,,,d, .. .aio,

the f eaec upon any conviction or ordw whicll, eitlrcr hefire or after a ~ i ~ tiling ( i ~ ~ ! e u n ( i ~

it warrant upon it.

the grailting of such warraut, shall have been or shall be confirmed

YOU appeal, no action shall be brought against such Justice who so

i rrmted such warrant, AN- anythin6 which may have been done under the same by reason of any defect in such conviction or order. VII. Aiid be it Enacted, That in all cases where by this Ordi- brought, If action where bf' IIY t h i s

l l?lw it is enacted that no actiou sl~all be brought under particular ordinance lt 1s

~~eumstances, if any sucli action &all be bro~~ght, it shall be lawful ~~~~$e;;I"$~shK"

for a Judge of tile Court in lvhicll the same shall bc brought, upon eeedings.

a~plieation of the defendant, and upon an affidavit of facts, to set ' S ~ C the proceedings in such action, with or witliout costs, as to him

seem meet.

vm. And be it Enacted, That no action shall be brought ap ins t "mitation

of actiuu.

"Y Justice of the Peace fur a u y m - E e by him in the esecu$on

unless the same be-c~n&iin&d w i t z s i x calendar

140~ths

next after the act complained of shall have been committed.

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IX. And

Notice of action. IX. And be it Enacted, That no such action shall be cornmellced -

against any such Justice of the Peace until one calendar month at

least after a noticc in writing of such in%ndcd action shall E ~ Z ? ~ J ~ ~ ~

delivered to him, or left for hini at his usual place of abode, by tllk

party intending to commence such action, or by his attorney g

agent, in which said notice the cause of action, and the court ill

wllich the same is intended to be brought, shall be clearly and ex.

plicitly stated; and upon the back thereof shall be endorsecl t]le

k m e and place of abode of the party so intending to sue, and a

the name and placc of abode or of busincss of the said attorney

agent, if such notice have been served by such attormy or agent.

I k f i w i x n t m y pled	X.	And be it Enacted, That in every	such action	the defenda
the general issue, and

give an) special mat- shall be allowed to plcad the general issue therein, and to gi\re a

ter. &C., in e~icience. special matter of defence, excuse, or justification in evidence nnd

such plea, at the trial of sach action: Provided always, that no su action shall be brought in any other Court than the Supreme Cou against a Justice of the Peace, for anything clone by him in the e ecution of his office, if such Justice s1:all object thereto; and within six days after being served with a summons in m v sul action, in my such Court other than as aforesaid, such ~uitice, his attorney or agent, shall give a written notice to the plaintiff

such action, that he objects to being sued in such Court for sul cause of' action, all proceedings &erwards had in such Court in a1 such action, shall be null and void.

Tellder aud payment XI. And be it Enacted, That in every case after. notice of ncti

of iilonej into Court. shall be $vm as aforesaid, and h&re nction*shall be commence

such Justice to whom such notice shall be given, may tender to tl

he imy think fit as amends for the injury conlplained of in sl& notic

party complaining, or to his attorney or agent, such sum of money

and after sach action shall have been commenced, at m y tin before issue joined thereiu, such defendant, if he have not rrladc suc tender, or in addition to such tender, shall be at libertv to pay in Court such sum of money as he may think fit, and which said te

der and payment of money into Court, or either of them, may afte

wards be give11 in evidence by the defendant at the trial under 11

general issue aforesaid; and it thc jury at the trial ellall be

opinion that the plaintiff is not entitled to damages beyond the SU

so tendered or paid into Court, or beyond the sums ,SO tedcred

paid into Court, then they shall give a verdict fir the defendd.

the plaintiff shall not be at liberty to elect to be nonsuit, and 11

sum of money, if any, so paid into Court, or so much thereof

shall be sufficient to pay or satisfy the defendant's cofits in th

behalf, shall thereupon be paid out of Court to him, and the residul

9 my, shall be paid to the plaintiff; or if, where money is so paid illto Court in any such action, the plaintiff' shall elect to accept the snine in satisfaction of his damages. iu the said action, he may obtain from any Judge of the Court in which such action shall be brought,

an order that such money shall be paid out of Court to him, and

that the defendant sliall pay him his costs to be taxed, and tliere- spoil thc said actioa shall be determined, and such order shall be a

bar to any other action for the saine cause.

911. And be it Enacted, That if at the trial of m y sue11 action jji ~ ~ $ ~ c ~ ' ~ ~ ~ i t

the plaintif? shall not pmve that sucl~ action was brought within the fcn(1mt.

ti~lie twreinbefore lii~iitcd in that behalf, or&at such notice 5s - aforc-.

miQ!vss given one cdcndnr month before such action was coin:

waced, or ifTG s h l l not +VC the emse of action stated in such

~loticc, then arid in every such case surli plniotitl' s l d l be nonsoit,

or the jury shall give a verdict for the dekndant.

S 111. And be it Enacted, That in all cases where the plaintiff in I ' a l l ~ c ~.

iuly such action shall be entitlcd to recwvw, :tnd he shall prove the

lebvina or payment of any penalty or sum of money under mly con-

&ion or order as parcel uf the daimges he seeks to recover, or if

he prove that he was imprisoned under such coiiviction or order, and

sl~nll seek to rccover. (1:;ll)lwgc.s fbr any such imprisonment, he shall

ilot be entitled to recover the amount of such penalty or sum so

levied or paid, or my- sum heyold the sum of -- Two-pncs as darnages for bllch in~prisonrnelit or a n i costs of' suit whatsoever, if it shall be

proved that he was actually-silty of tlw-off'eace of which he MZLL

a, convicted, or that he was liable by law to pay the sum he was so ordered to pay, and (with respect to such iu~prisollluent) that he had uldergone no p a t e r punishment than that assigned by law for the	offence of which Ilr was SO convicted, or for non-payment of the
sun1 lie was so ordered to pay.

XIV. And bc it Enacted, That if the plaintiff in any such action c,,,t,.

shall recover a verdict, or the ddefendaut shall nllow judgment to

1)"s against him by default, such plaintiff' shall be entitled to costs in such nmanner as if tllis Ordinance had not lwen passed; or if in " ~ h case it be stated in the declaration, or in the plaint or summons and particulars, if ile sue in any local court, that the act coniplniiiod

~f was done maliciously, and without reasonable and probable cause,

I

tile plaintiff, if hc recover a verdict for any dninages, or if the defen-

1

dant allow judgment to pass against him by &fault, shall be emtitled

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to his full costs of suit, to be taxed as between attorney and client;

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aud in every action sgdilst a Justice of the Peace for anytlling done

him in tlle execution of his office, the defendant, if he obtain

judgment

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judgment upon verdict or otherwise, shall in all cases be entitled to

his full costs in that behalf, to be taxed as between attorney allrl

l client.

Repeal of provisions XV. And be it Enacted, That from and after the cornnleilcer~w,~t

inconsistent herewith

hereof, so much of the provisions of any Ordinances heretofore mad0 as relate to action8 against r J u ~ t i c e ~ of the Peace, and as are inctm- sistent with the provisions hereof, shall be, and are hereby repealed.

sive and except as to proceediugs pending, to which the sarntJ or

any of them may be applicable: Provided that snch Ordinances shall

be and remain in force in all respects in so far as the same do not

relate to actions against Justices of the Peace, or are not incon-

sistent herewith.

Comnencemcnt. XVI. And be it Enacted, That this Ordinance shall commence and

take effect from and after the passing thereof.

H. E. F. YOUNG,

Lieutenant-Goverrlor.

Passed the Legislative Council, this

Fourteenih day o f August, One Thousand Eight Hundred and

Forty -nine. 1

W. L. O'HALLORAN,

Clerk of Council.

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ADELAIDE : Printed by authority, by W. C. Cox, at the ~overnmc*'

Printing Office, Victoria-square.