Odger's English Common Law

LIABILITY OF A JUSTICE OF THE PEACE. 483
of which by law he has not jurisdiction, or in which he shall
have exceeded his jurisdiction, .any person injured thereby
may maintain an action against any such justice "
;
x and he
need not allege or prove that the act complained of was
done maliciously or without reasonable or probable cause. 2
No action, however, can be brought for anything done under
a conviction or order, where the magistrate has no jurisdiction
or has exceeded it, until the conviction or order has been
quashed ; nor for anything done under a warrant to compel
an appearance, followed by a conviction or order, until it has
been quashed; nor for anything done under such warrant
not followed by a conviction or order, or under a warrant for
an alleged indictable offence, if a summons had been previously
served and not obeyed.
The main distinction to be noted in regard to the remedy
available against a magistrate who acts without jurisdiction,
and that available against a magistrate who acts erroneously
within his jurisdiction, is as follows:—" If the act of the
magistrate is done without jurisdiction, it is a trespass ; if
within the jurisdiction, the action rests upon the corruptness
of motive, and to establish this the act must be shown to be
malicious." 3
Ho action, however, can be brought against a justice of
the peace for " any act done in pursuance or execution or
intended execution " of his office, " unless commenced within
six months next after the act, neglect or default complained
of." 4
(e) Lastly, it is possible that an action of false imprison-
ment may be brought against the judge of a Court of record.
The judge of a superior Court can never be liable in an
action of false imprisonment for an act done by him in his
judicial capacity. 5 Nor can those who carry out orders given
by him in that capacity. The judge of an inferior Court is
i 11 & 12 Vict. c. 44, s. 2 ; and see Leary v. Patrick (1850), 15 Q. B. 266.
2 Pease v. Chaytor (1861), 1 B. & S. 658.
3 Per Erie, J., in Taylor v. Nesfield (1854), 3 E. & B. at p. 730. See also
Newbould v. Coltman (1851), 6 Exch. 189 ; Gelen v. Hall (1857), 2 H. & N. 379.
* The Public Authorities Protection Act, 1893 (56 & 57 Vict. c. 61), s. 1 ;
and see Haylock v. Sparke (1853), 1 E. & B. 471 ; Kirby v. Simpson (1854), 10
Exch. 358 ; Clayton v. Pontypridd U. D. C, [1918] 1 K. 13. il9.
« Anderson v. Gorrie, [1895] 1 Q. B. 668.
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