Statement.

ordered the plaintiff to be imprisoned for thirty days unless the penalty, costs and charges of the distress, and the costs of conveying the plaintiff to jail, fixed at $1.75, were sooner paid, nothing being said as to the costs of the conviction. The plaintiff was, under this commitment, arrested and placed in jail.

The action was tried before ARMOUR, C. J., at Simcoe, on the 8th of April, 1889, and the action was dismissed with costs on the ground that the conviction had not been quashed, and that no notice of action had been given, and this judgment was affirmed by the Divisional Court on the ground that a committal for the penalty was valid notwithstanding payment of the costs. The learned Chief Justice also ruled that there was no evidence of mala fides to submit to the jury.

The plaintiff appealed, and the appeal came on to be heard before this Court, (HAGARTY, C. J. O., BURTON, OSLER, and MACLENNAN, JJ.A.,) on the 27th and 28th of November, 1889.

McCarthy, Q. C., and Du Vernet, for the appellant. It was not necessary to quash the conviction. The conviction was and is perfectly valid, but the plaintiff contends that the mode in which the conviction was enforced was illegal and rendered the defendant liable to an action. The payment of the costs put an end to the right to commit. Payment and imprisonment are alternative punishments, and both cannot be inflicted. If a levy is made the whole penalty must be recovered under the distress or no part of it at all. If a part is levied under the distress, then that part must be returned before any other proceedings are taken: Trigerson v. Board of Police of Cobourg, 6 O. S. 405; Oke's Magisterial Synopsis, 10th ed., p. 170; Paley on Convictions, 6th ed., p. 336; Rex v. Wyatt, 2 Ld. Raym., 1195; Burn's Justice of the Peace, 13th ed, vol. i., p. 867; Summary Convictions Act, R. S. C. ch. 178, secs. 58, 62, 66, and forms N1, N4, and N5; Moffat v. Barnard, 24 U. C. R. 498. At any rate in this

case the distress was made for the whole amount of the fine Argument. and costs, though the costs had been paid, so that the distress was illegal, and a warrant of commitment founded upon that illegal distress was also illegal, even if there could be in any case commitment after part payment. Notice of action was not necessary. If a magistrate acts without jurisdiction he is not entitled to notice of action unless the acts complained of were done in the honest belief that he was acting within his jurisdiction. Here there was no such belief, and indeed no reasonable ground on which such a belief could be founded. The magistrate knew the actual facts and must be presumed to know the law, so that at best he acted merely under a misapprehension of law, and that is no protection: Griffith v. Taylor, 2 C. P. D. 194; Agnew v. Jobson, 13 Cox C. C. 625; Leete v. Hart, L. R. 3 C. P. 322; Chamberlain v. King, L. R. 6 C. P. 474: Rochfort v. Rynd, 8 Ir. R. C. L. 204; O'Dea v. Hickman, 18 L. R. Ir. 233; Ibbottson v. Henry, 8 O. R. 625; Clark v. Woods, 2 Ex. 395; Cann v. Clipperton, 10 A. & E. 582; Heath v. Brewer, 15 C. B. N. S. 803. The question of bona fides should have been submitted to the jury: Allen v. McQuarrie, 44 U. C. R. 62.

Aylesworth, for the respondent. The commitment in question was perfectly valid. The purpose of the commitment is to enforce payment of the penalty, and upon payment the commitment at once comes to an end, so that it is quite legal to make as much as possible under the distress, and then to imprison until the balance of the penalty is paid. A commitment of this kind is analogous to a ca. sa. in civil proceedings, that is, it is a commitment which the prisoner controls, and which can be put an end to at any time by him, and is not like a commitment for a definite term as a punishment. At all events the defendant acted in good faith and is entitled to notice of action: Poulsum v. Thirst, L. R. 2 C. P. 449; Jolliffe v. Wallasey Local Board, L. R. 9 C. P. 62; Midland R. W. Co. v. Local Board, 11 Q. B. D. 788. There was no evidence whatever to submit to the jury on the question of want of good faith, and the nonsuit was perfectly right.

Argument.

McCarthy, Q. C.. in reply. There is no analogy between this and a civil proceeding. This is not a proceeding to recover a debt but a punishment imposed because of a certain offence, and the statute must be strictly followed: Morgan v Brown, 4 A. & E. 515; Regina v. Pratt, L. R. 5 Q. B. 176.

March 4th, 1890. BURTON, J. A. :

The point raised in this case is novel, and I should have been of the same opinion as the Judges in the Court below, previous to the argument and a full consideration of the authorities.

It is said that the commitment is nothing different in substance from an imprisonment under a ca. sa. in a civil proceeding, where the party can always relieve himself by payment of the debt.

I do not think that there is any analogy between the two proceedings. No greater or other punishment than that which formed the original adjudication can be inflicted; that punishment was a penalty of $50 and costs, or in the alternative, if there was no distress from which the penalty and costs could be made, imprisonment for thirty days. If one half of the penalty had been made by distress, it must be clear that the party convicted ought not to suffer imprisonment for thirty days in addition; and there is no provision in the law, as it stands at present, to graduate or reduce the term of imprisonment in proportion to the amount paid upon the penalty.

The cases seem to show that unless there be sufficient distress to cover the penalty and costs, the return upon the warrant of distress should state that fact, and upon that a warrant of commitment may issue, but that if a portion of the penalty has been paid the amount should be returned before the alternative punishment is resorted to: Oke's Magisterial Synopsis, 10th ed., p. 170.

It is said that it differs from those cases in which corporal punishment is substituted for the penalty in the

BURTON
J. A.

event of its non-payment, inasmuch as the party may Judgment. relieve himself at any time by payment of the amount; but it strikes me as a distinction without a difference, inasmuch as the party convicted could also avoid the corporal punishment in like manner.

Unless Trigerson v. Board of Police of Cobourg, 6 O. S. 405, can be distinguished, it appears to be a clear authority that the warrant of commitment in this case could afford no justification. It was decided at a time when questions of this nature were much more frequent than at the present day, and by a court of very great experience in such matters, and it seems to be supported by the quotations from the text books admittedly of authority.

But the law thus laid down receives support from the statute regulating summary convictions and the forms in the schedule.

The power to commit is derived from the statute alone, and the directions under which it is authorized must be strictly followed.

It is only after the constable who has the execution of the warrant of distress has returned that he can find no goods whereon he can levy the sum or sums mentioned together with the costs of or occasioned by the levy of the same, that the justice is authorized to issue a warrant of commitment, and when we refer to the form of the return given in the schedule, we find that it is in these words:

66

That by virtue of this warrant, I have made diligent search for the goods and chattels of the within mentioned A. B., and that I can find no sufficient goods or chattels of the said A. B. whereof to levy the sums within mentioned." Neither in the enacting part of the statute nor in the forms is there any thing said as to a partial levy, showing an evident intention that the duty of the officer on such a warrant, if he finds the goods insufficient to levy the whole amount, is to return it unexecuted.

Upon such a return the statute authorizes the justice before whom the return is made to issue his warrant of commitment, which must, among other things, recite the

return.

Judgment.
BURTON
J. A.

I asked, during the argument, whether any provision was made for issuing a further distress warrant in the event of part only having been made by distress, and I find there is no such provision, although it is provided by section 63 that upon proper proof of the existence of goods liable to distress in another territorial division, the warrant may be executed in that division, and that seems to contemplate that this may be done after part of the money has been levied; but with this exception, it would appear to be the officer's duty if the goods are insufficient to pay the whole, to return it unexecuted. See Paley, 13th ed. p. 336.

For these reasons I am opinion that there was no authority in the magistrate to issue the warrant of commitment, and that he became liable as a trespasser, and it appears to me that the first ground on which the learned Judge nonsuited-viz., that the conviction still remained unquashed, is not tenable.

The plaintiff does not complain of the conviction, but he says your mode of enforcing it was illegal, and for that I seek my remedy.

But then comes the further question of whether the defendant was entitled to notice of action; that again must, I take it, depend upon whether there was any evidence of want of bona fides. Very frequently no such question is submitted to the jury, because it is assumed all round that there was good faith, and neither party requires it to be submitted, but where the question is raised and insisted on at the trial, and there is any evidence warranting the submission of such a question to the jury, the Court cannot take upon itself to decide it.

The law, as I have always understood it, is very clearly and concisely stated in the judgment in Taaffe v. Downes, to be found in a note to Calder v. Halket, 3 Moo. P. C. at p. 36. That was an action against the Chief Justice of the King's Bench in Ireland for issuing a warrant under which the defendant was arrested.

The defendant pleaded that he was Chief Justice and issued the warrant in that character, and the plea was