OSLER Judgment. not contemplated, nor the imposition of a period of imprisonment, graduated in proportion to the balance remaining unpaid. The commitment is to be issued upon the constable's return that he could find no sufficient goods whereon to levy the sum mentioned in his warrant, and the imprisonment to be imposed evidently has relation to the whole penalty, not to a part of it. It is true that as the justice is not bound at once to draw up the conviction, his discretion under section 67 as to the term of imprisonment need not necessarily be exercised until the return of the distress warrant, but it does not follow that payment or levy of part of the penalty forms an element in the exercise of such discretion, as the maximum term of the imprisonment which may be imposed in such an event is not reduced. In prosecutions under the Indian Act, R. S. C. ch. 43, sec. 26 (2), (3), express power is given to commit after part of the penalty has been levied, and for a reduced term depending upon the amount which remains due. And under the Fisheries Act, there is express power to distrain for the fine and costs of the prosecution, and for the costs alone if the goods of the offender are only sufficient for that purpose, and he may be imprisoned for the fine: Arnott v. Bradly, 23 C. P. 1, with which compare the Acts under which Regina v. Barton, 13 Q. B. 389, was decided. Section 64 of the Summary Convictions Act is also opposed to the existence of power to commit for part of the sums adjudged to be paid. It gives the magistrate power to commit in the first instance wherever it appears to him that the issuing of a warrant would be serious to the defendant and his family, or by the confession of the offender or otherwise, that he has no goods, that is to say, no sufficient goods whereon to levy the distress. See form O. 1. This section is taken from section 19 of the Imperial Act, 11 & 12 Vic. ch. 43, and proceeds upon the principle that the law never intended that a man should suffer both punishments for one conviction: Paley, 5th ed., 318. OSLER In Hill v. Bateman, 2 Str. 710, it was held that an Judgment. action of trespass lay against a magistrate for committing the plaintiff to prison without having first endeavoured to levy the penalty upon his goods, it being proved that they were sufficient to answer the penalty. Inasmuch, therefore, as the sole power of the justice to commit for non-payment or in default of sufficient distress depends upon and is derived from the statute alone, and the statute does not expressly empower him to commnit for non-payment of anything short of the whole of what was adjudged to be paid, I think it reasonably clear from the Act itself that a committal for part of the sum adjudged by the conviction to be paid, is not authorized by sections 66 or 67, and that such a committal is, as Sir John Robinson said in Trigerson's Case, against law. Imprisonment, even when it is resorted to merely as a means of enforcing payment, has the effect, when submitted to for the prescribed period, of discharging the offender altogether, unless otherwise expressly declared: Bowdler's Case, 12 Q. B. 612; and is thus a satisfaction, and in some sense a punishment, for the offence: Robson v. Spearman, 3 B. & Ald. 493. He has the option of paying in purse or in person, and if he suffers imprisonment for non-payment of part of the fine, the residue having been paid or levied by distress, he really pays or is punished twice for the same offence The general dictum of the text books, as to the practice, accords with the construction I place upon the statute. In such a standard practical work as Oke's Magisterial Synopsis, 6th ed., p. 170; 7th ed., p. 172, we find it laid down that no part less than the whole amount adjudged to be paid, should be received, nor by instalments except where such power is given by statute, for if it becomes necessary to issue the commitment, what has been received must be refunded. So also in the 4th, and subsequent editions to the 20th, of Stone's Justices' Manual, it is said that time cannot be granted on payment of part, “as it is conceived that after part payment, the right of commit OSLER Judgment. ment would be gone, the justice having no power to apportion the period of imprisonment. The law does not intend a man to suffer two modes of punishment, i. e., in purse and person for the same offence; and on this principle where the goods of an offender are not sufficient to satisfy a distress, they ought not to be taken, but the ulterior punishment should be resorted to." In the later editions this is omitted in consequence of the Summary Jurisdiction Act of 1879 having now made express provision on the subject and enabled the magistrate to commit for terms of imprisonment graduated in certain proportions to the amount remaining unpaid. See Wigram's Justices' Note Book, pp. 17, 20. See also Greenwood and Martin's Magisterial and Police Guide, p. 314, where the former practice is stated in the same way. Paley merely says that if imprisonment be imposed by statute in default of sufficient distress, and the defendant. has not sufficient to satisfy the amount, the goods ought not to be taken, but the corporal punishment should be at once resorted to 5th ed., pp. 306, 318, citing Rex v. Wyatt, 2 Ld. Raym., 1189, which is no doubt a case in which imprisonment was imposed as an alternative punishment in default of sufficient distress; but the principle equally applies where it is merely a means of enforcing payment, for, if it may be resorted to where half the fine has been paid or levied, the offender may, if he cannot pay the residue, suffer an imprisonment which was imposed for non-payment of the whole, and is, at all events, deprived of the right of satisfying the whole penalty and costs by submitting to imprisonment instead of paying the fine, &c. So far as any inference can be drawn from the absence of any appropriate form in the statutes or text books, it is against the existence of the right to commit for non-payment of part of the money adjudged to be paid, and I find no case which supports it except that of Rex v. Speed, 12 Mod. 328, 331; Ld. Raym. 583; Carthew 502; (M. OSLER T. 11 Wm. III.,) which is not, however, cited in the text Judgment books on this point. There is a statement in the report in 12 Modern (only), which seems quite opposed to what is said to have been held in the later case of Rex v. Wyatt, 2 Ld. Raym. 1189, 11 Mod. 54, (M. T. 4 Ann.) In both cases the conviction was upon the same Act, the Deerstealing Act, 3 W. & M. ch. 10. In m opinion the defendant had no authority to issue warrant of commitment against the plaintiff, and therefore, though he erred through ignorance of the law, he is not protected from liability. "The facts of the case which were before him and could not be unknown to him, shewed that he had not jurisdiction," (that is, jurisdiction over the person of the plaintiff,)" and his mistaking the law as applied to those facts, cannot give him even a primâ facie jurisdiction or even the semblance of any:" Houlden v. Smith, 14 Q. B. 841; Pease v. Chaytor, 3 B. & S. 620, 644; Calder v. Halket, 3 Moo. P. C. 28; Connors v. Darling, 23 U. C. R. 541; Regina v. Bolton, 1 Q. B. 66; Usill v. Hales, 3 C. P. D. at pp. 323, 324. he But though the defendant was thus mistaken in his law, and has rendered himself liable to an action of trespass, may, nevertheless, be entitled to notice of action under the statute, and the nonsuit may be upheld on one of the grounds taken by the learned Chief Justice at the trial, that no notice of action had been given. 66 The question in actions of this kind against a magistrate is, whether the defendant honestly believed that he was acting in the execution of his duty or office as such. It is quite clear," says Sir John Robinson in Bross v. Huber, 18 U. C. R. at p. 287, "that when a justice has made in any case a mere pretence of his official authority, and has acted colourably and vexatiously from any malicious or corrupt feeling without believing he had authority to do what he did, then he has no right to the protection of the statute." And as illustrating the same principle, I refer to Hermann v. Seneschal, 13 C. B. N. S. 392; Roberts v. Orchard, 2 H. & C.769; Chamberlain v. King, L. R. 6 C. P. OSLER Judgment. 474, 478; Selmes v. Judge, L. R. 6 Q. B. 724, 728; Venning v. Steadman, 9 S. C. R. at p. 238, though these were not actions against magistrates, but against persons acting in supposed pursuance of a statute. I quite agree that if there was evidence of want of bona fides, it was for the jury, if the plaintiff desired it to be left to them: Neill v. McMillan, 25 U. C. R. 485; Allen v. McQuarrie, 44 U. C. R. 62. As Mr. Justice Gwynne observes in Venning v. Steadman, 9 S. C. R. at p. 238, in reference to this very question: "If there had been any doubt upon that point, the question of fact, (i. e., of bona fides) should have been left to the jury." On the plaintiff's own shewing, the act he complains of was done by the defendant in his character of justice, and he therefore assumed the onus of proving the absence of bona fides, for mala fides is not to be presumed, and if on the plaintiff's own shewing the defendant was acting in the capacity of justice of the peace in good faith, believing that he had the right as such, with nothing to raise a contrary presumption, there is nothing for the jury. Upon a careful examination of the evidence, I feel quite clear that there was nothing upon which the jury could properly have found that the defendant was not honestly acting in the execution of his office. He was admittedly a magistrate; there was a valid conviction of the plaintiff, the fine imposed thereby remained unpaid, and the commitment was issued for the purpose of enforcing payment. These are the facts proved in the plaintiff's own case, and he proves moreover by the defendant's examination, which he put in as part of his case, that the defendant did it because he was compelled to do it, and in the discharge of his duty. These facts are not controverted, and there is no evidence that the defendant knew or had any reason to believe that it was or might be illegal to issue the commitment after payment of the costs. It would, indeed, be surprising if he had, for the learned Chief Justice at the trial seems to have thought he was right in doing so, and |