BURTON J.A. demurred to, and one of the Judges thus refers to it. It Judgmen in effect amounted to this, you the plaintiff being imprisoned under my warrant, have a right to try by your action in a Court of law, whether I am a Judge of the King's Bench, and whether I did more against you than issue a warrant according to the legal course upon an alleged criminal charge. If I have done more, you can, on my plea, prove it. If I made a warrant the fraudulent cover for oppression or corruption, or malice, you can aver that. If I have done anything against you not in the course of my office, you can say so; but however erroneous or illegal my act may have been, so long as it was done in the due course of my judicial duties, I am responsible to no one but the High Court of Parliament. The protection of a magistrate is not so absolute, but if he acts even without jurisdiction, or exceeds his jurisdiction, he is entitled to certain protection by statute, such as notice of action and a limitation of the time for bringing the action, if he bona fide acts, or believes that he is acting, in pursuance of the authority vested in him as a justice of the peace, and I apprehend in such a case it can make no difference that he is also influenced by the most express malice. But where a justice has in any case acted colourably and vexatiously from any malicious or corrupt feeling without believing that he had authority to do what he did, then he has no right to the protection of the statute. This, however, is a matter which, if supported by evidence, would necessarily be for the jury, and the question is--was there any evidence proper to be submitted to a jury in support of such an issue? This is in every case a preliminary question, which is one of law, and perhaps a more difficult-a more delicatequestion, and one the importance of which frequently cannot be over-rated, can scarcely be presented to a judge for decision. I think the rule is nowhere better stated than by Lord Blackburn, thus: "It was formerly considered necessary BURTON Judgment. in all cases to leave the question to the jury if there was any evidence-even a scintilla-in support of the case; but it is now settled that the question for the judge (subject of course to review) is as stated by Maule, J, in Jewell v. Parr, not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established." This is the rule which I thought ought to have been applied in the cases of Derinzy v. City of Ottawa, 15 A. R. 712, in this Court, and in Moxley v. The Canada Atlantic R. W. Co., in this Court, 14 A. R. 309, and in the Supreme Court, 15 S. C. R. 145, and those decisions are now binding upon me. I am not quite able to understand one remark of the Chief Justice of the Supreme Court in the latter case, wherein he assumes that I have treated, what, if there was any evidence, would raise an inference of fact as one of law. I never for a moment doubted that if there was any evidence it was for the jury to draw the inference. I dealt merely with the preliminary question of law, which is admittedly for the judge, and held rightly or wrongly that there were no facts in evidence from which a jury could properly draw an inference; that any conclusion they might come to must necessarily be pure conjecture or guess work, inasmuch as the second engine threw fire also, and the result would be no more satisfactory than if the jury had resorted to a practice, it is said not wholly without precedent, of tossing a copper, a mode of disposing of litigants' rights that would not meet with universal approval. The origin of the fire not being shown, if only the one engine had passed, it might be quite competent for a jury to say, we think in the absence of any evidence of any other fire, that it came from that engine; but when a second engine which threw fire sufficient to cause the injury, passed much later and just before the fire broke out, I thought "there was no evidence that ought reasonably to satisfy a jury that the fact sought to be proved was established;" there was, I thought, evidence of a Judgment. scintilla, but not a scintilla of evidence. But although these decisions have somewhat shaken my confidence in what I believed to be the rule in such cases, I must, at the risk of again erring, hold that the evidence here failed to show that the defendant was acting colourably or vexatiously without believing that he had the right to do the act complained of, and in the absence of such evidence, it was, I think, for the Judge to decide whether the defendant was entitled to notice of action, and that he rightly decided that he was so entitled. The nonsuit therefore was right. OSLER, J. A. : The cause of action is the alleged illegal execution of a valid conviction by issuing a warrant of commitment after part payment of the sums adjudged to be paid. If the plaintiff is right, the case is in principle much the same as if the magistrate had attempted to enforce it after payment of the whole penalty and costs adjudged. It cannot, therefore, be necessary to quash the conviction, for the unlawful act is really not done under it: Paley, 5th ed., 459. Two points were argued: (1) Whether after payment or levy by distress of part of the sums adjudged to be paid, the magistrate could legally enforce payment of the residue by commitment; and (2) Assuming that he could not, and that in causing the plaintiff to be imprisoned, he was acting without, or in excess of jurisdiction, whether he was entitled to notice of action. This depends, in my opinion, simply upon whether he was, as the learned trial Judge held, acting in good faith in the execution of his office; but the plaintiff contends that he was absolutely entitled under any circumstances to have the question of bona fides left to the jury. On the appeal a point was attempted to be made of the conviction not having been put in at the trial, but this is 24-VOL. XVII. A.R. BURTON OSLER Judgment. not open. Though not actually put in, its proof is to be assumed, for the plaintiff's counsel examined upon it without objection, nor was its absence made a ground of complaint in the Court below. The question to be decided does not seem to have arisen since the case of Trigerson v. Board of Police of Cobourg, 6 O. S. 405, decided so long ago as E. T. 5 Vic., in days when Judges were certainly not less familiar than they are now with the old law on the subject of summary convictions. That was an action of trespass for false imprisonment. The defendants justified under a warrant of commitment. Robinson, C. J., who delivered the judgment of the Court, said that the plea was bad, among other reasons because it appeared that the plaintiff "had been imprisoned after part of the fine had been paid, which is against law.” The case was one in which, like ours, the imprisonment was not alternative punishment, but merely for enforcing payment of the fine and costs. It is, therefore, directly in point, and there is a sort of presumption in its favour, despite the meagreness of the report; from its having remained so long unchallenged. Opportunities for doing so cannot have been wanting, expecially if it had been thought that the Summary Convictions Act, to the provisions of which I shall briefly refer, had made any change in the practice instead of substantially adopting it, as I think it did. The power to issue a distress warrant for the penalty and costs depends upon sections 60 and 62, R. S. C. ch. 178, which by force of section 107 of the Canada Temperance Act are incorporated in the latter Act. The forms of the distress warrant recite the conviction, and that the defendant has not paid the sums adjudged to be paid or any part thereof. Section 63 provides that if sufficient distress cannot be found within the jurisdiction of the justice who granted the warrant, any justice of another territorial division may back the warrant and authorize the execution of it within his jurisdiction for so much of the penalty and costs, as has not been before levied or paid. Once begun, that mode of recovering the penalty may be followed out on the same warrant. The power to commit in default of sufficient distress is Judgment. clearly defined, and depending as it does upon special statutory provisions must be strictly pursued. Passing over sections 64 and 65 for the present, section 66, which may be called the general section, enacts that if the constable who had the execution of the distress warrant returns (N 4) that he could find no goods whereon he could levy the sums mentioned, (the form is, could find no sufficient goods or chattels of the said A. B., whereon to levy the sums within mentioned) the justice may issue his warrant (N 5) reciting shortly the conviction and the distress warrant and return, requiring the constable to arrest the defendant and deliver him to the gaoler, and the gaoler to receive and imprison him in the manner and for the time directed by the Act on which the conviction is founded, unless the sum or sums adjudged to be paid and costs, &c., are sooner paid. By its very terms, therefore, the section contemplates the payment, by force of the imprisonment, of the sums adjudged by the conviction, and implies that no " sufficient distress" means no distress sufficient to pay those sums. This section, indeed, is not that under which the warrant in question was issued, but it is that which prescribes the scope and terms of it. The justice, in such a case as this, proceeds under section 67, which provides that wherever the Act or law on which the conviction is founded, provides no remedy (which is the case here) in case it shall be returned to the distress warrant that no sufficient goods of the defendant could be found, the justice may by his warrant as aforesaid (that is as provided by, or by such a warrant as is mentioned in, section 66) commit him for any term not exceeding three months. So far as these two sections are concerned, the imprisonment is to be for the time mentioned in the conviction and commitment unless the sums adjudged to be paid, that is the sums mentioned in the commitment, which must be those specified in the conviction, are sooner paid. The contingency of part having been paid, or levied by distress, is OSLER |