Justices, protection (1850) (WA)
WESTERN AUSTRALIA
ANNO QUARTODECI110
VICTORLE REGINA
No . 1
An Ordinance to protect Justices of the Peace from vexa-
tious Actions for acts done by them in execution of
| their Office. | [Assented to 27th November, 1850. |
| Par an act by a A | HEREAS it is expedient to protect Justices of the Peace in the |
| Justice of Peace |
| within his Paris. | execution of their duty : Be it therefore enacted by His |
| action shall beExcellency the Governor of Western Australia, by and with the advice | diction, the | |
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| done maliciously, by him in the execution of his duty as such Justice with respect to any | ||
| and without | ||
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| For an act done by him without2. And be it enacted that for any act done by a Justice of the | ||
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| exceeding his jurisdiction, anhe shall have exceeded his jurisdiction, any person injured thereby or by | ||
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Justice in the same form and in the same case as he might have done before the passing of this Ordinance, without making any allegation in his declaration or plaint that the act complained of was done maliciously
bat not for an and without reasonable and probable cause : Provided nevertheless, that
act done under a no such action shall be brought for anything done under such convic-
| conviction of | n |
order, until after tion or order until after such conviction shall have been quashed, either
such 1Cr shillupon appeal or upon application to the Civil Court of the Colony ; nor
| ar | co | c tl |
have been
| washed" | shall any such action be brought for anything done under any such warrant which shall have been issued by such Justice to procure the |
14 VICTORL 3 . No. 1
Justices of the Peace, (C.c.
appearance of such party, and which shall have been followed by a conviction or order in the same matter until after such conviction or order shall have been quashed as aforesaid, or if such last-mentioned nor for:", act
| warrant shall not have been followed by any such conviction or order, =Mtn_ or if it be a warrant upon an information for an alleged indictable 40 aPPedrande, offence, nevertheless, if a summons were issued previously to such II; ear:IlnIonoTZse I | warrant, and such summons were served upon such person, either se | brovedi ndnot | a |
personally or by leaving the same for him with some person at his last 3 et
or most usual place of abode, and he did not appear according to the
exigency of such summons in such case no such action shall be main-
tained against such Justice for anything done under such warrant.
3. And be it enacted that where a conviction or order shall be It oneJustice
made by one or more Justice or Justices of the Peace, and a warrant of 170anke„,?:,7,",,'„'„,3 distress or of commitment shall be granted thereon by some other another graP t an Justice of the Peace, bond fide and without collusion, no action shall be leareN,;11mulist
brought against the Justice who so granted such warrant by reason of .b„e,atisTitte
any defect in such conviction or order or for any want of jurisdiction in f ormer, not the
the Justice or Justices who made the same,but the action (if any) shall Petteafttacg,tbe brought against the Justice or Justices who made such conviction or victim/ or order
order.
4. And be it enacted that in all cases where a discretionary power No retrio,”
| shall be given to a Justice of the Peace by any Act or Acts of Parlia- antr:utaitileeres | T |
| ment, Colonial Ordinance or Ordinances, no action shall be brought ,114:v nn | ahig |
against such Justice for or by reason of the manner in which he shall el-alone*, power
have exercised his discretion in the execution of any such power.
5. And whereas it would conduce to the advancement of justice If a Justice re- and render more effective and certain the performance of the duties of it;rdi°,:cal"tet Justices, and give them protection in the performance of the same, if mir.y.
some simple means not attended with much expense were devised by ?tr:nellutillitiO
| which the legality of any act to be done by such Justices might be ,s11 | e t Inst | be in | brought |
| considered and adjudged by a Court of competent , | urisdiction, and such a | ,,ng |
Justice enabled and directed to perform it without risk of any action or other proceeding being brought or had against him : Be it therefore enacted that in all cases where a Justice or Justices of the Peace shall refuse to do any act relating to the duties of his or their office as such Justice or Justices, it shall be lawful for the party requiring such act to be done to apply to the Civil Court of this Colony upon an affidavit of the facts for a rule calling upon such Justice or Justices and also the party to be affected by such act to show cause why such act should not be done, and if after due service of such rule good cause should not be shown against it, the said Court may make the same absolute, with or without or upon payment of costs as to them shall seem meet, and the said Justice or Justices upon being served with such rule absolute shall obey the same, and shall do the act required, and no action or proceeding whatsoever shall be commenced or prosecuted against such Justice or Justices for having obeyed such rule and done such act so thereby required as aforesaid.
6. And be it enacted that in all cases where a warrant of distress After
| or warrant of commitment shall be granted by a Justice of the Peace tirrnTe■teo | ' | ||
| upon any conviction or order which, either before or after the granting " o |
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| of such warrant, shall have been or shall be confirmed upon appeal, no under a warrant | noun it |
14 VICTORDE. No. 1
Justices of the Peace, (Cc.
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.
| Tf any action | 7. And be it enacted that in all cases where by this Ordinance it |
| be brought. | enacted that no action shall be brought under particular circum- |
| u | them |
| Act it is pro- | s> pr | stances, if any such action shall be brought, it shall be lawful for |
bilked, a Judge a Judge of the Court in which the same shall be brought, uponmay set aside the proceedings 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
seem meet.
| action 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. | Limitation of 8. And be it enacted that no action shall be brought against any | |||
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| action 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. | ||||
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shall be so given as aforesaid and before such action shall be
| into Court | coney |
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 info 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 plain- tiff shall elect to accept the same in satisfaction of his damages in the
14 VICTORLE. No. 1
Justices of the Peace, (Cc.
said action, lie 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.
12. And be it enacted that if at the trial of any such action the in what aces
| plaintiff shall not prove that such action was brought within the time Mats oirt,Are'd | 'ecr: |
| hereinbefore limited in that behalf, or that such notice was given as fecdant 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 Oasts
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 net 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 CONDIANDER-IN-CHIEF.
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