Exchequer. LAWRENSON บ. HILL. proved as part of her case, independently of the defendant's pleading. T. T. 1860. The question depends on the construction of the 8th, 9th, 10th and 12th sections of the 12 Vic., c. 16 (the Protection of Justices Act), taken in connection with the enactments of the Common Law Procedure Act 1853. The 8th section of the 12 Vic., c. 16, enacts that no action shall be brought against any Justice for anything done in the execution of his office, unless the same be commenced within six calendar months after the act complained of shall have been committed. The 9th section provides that no such action shall be commenced against any such Justice until one calendar month at least after a notice in writing of such intended action shall have been delivered, stating the cause of action, and the Court, and the other matters mentioned in the section. The 10th section enabled the defendant to plead the general issue, and give any special matter of defence, excuse or justification in evidence under it. The 11th section provides for tender of amends by the defendant, and payment of money into Court; and then the 12th section enacts "That if, at "the trial of any such action, the plaintiff shall not prove that such "action was brought within the time herein before limited in that "behalf, or that such notice as aforesaid was given, one calendar "month before such action was commenced, then and in every such 66 case such plaintiff shall be nonsuited, or the jury shall give a ver"dict for the defendant." The 10th section has been repealed by the 69th section of the Common Law Procedure Act 1853; and we must now read the Act as if that section had never been in it. If the 9th section had stood alone, it might be said that the want of notice was matter of defence; but the 12th section expressly makes the proof of notice a part of the plaintiff's case. It will be said that the want of notice is a matter of "avoidance, excuse or justification," within the meaning of the 71st section of the Common Law Procedure Act 1853, which enacts that "In actions for wrongs, "defences by way of denial shall take issue on some one, or more "than one, material matter of fact alleged in the summons and "plaint; and all defences which admit the matter complained of, "but rely on matter of avoidance, excuse or justification, shall be "so expressly pleaded." The want of notice is not matter of excuse T. T. 1860. or justification; it is independent of the matter complained of. Exchequer. LAWRENSON V. HILL. The service of notice is a thing to be done to give the plaintiff a cause of action at all. Martins v. Upcher (a) shows how strictly the plaintiff will be bound by the notice of action served. There is a series of decisions upon an analogous Act in England, 55 G. 3, c. 194 (the Apothecaries Act), by which this case must be ruled. The 21st section of the Apothecaries Act enacts "That no apothe"cary shall be allowed to recover any charges claimed by him in "any Court of Law, unless such apothecary shall prove on the "trial that he was in practice as an apothecary prior to or on "the said 5th day of August 1815; or that he has obtained a "certificate to practise as an apothecary from the said Master, "Wardens and Society of Apothecaries, as aforesaid." It has been repeatedly held that this proof is part of the plaintiff's title, and that the defendant need not plead the non-compliance with the statute: Morgan v. Ruddock (b); Shearwood v. Hay (c); Wagstaffe v. Sharp (d). J. E. Walsh and W. J. O'Driscoll, contra. The 10th section of the 12 Vic., c. 16, having been repealed, the Act must be read as if it had been there, and had been struck out. The 9th section provided certain matters of defence for a Justice of the Peace. The object of the 10th section was to take away the necessity of pleading specially the matters of defence provided by the 9th section. Then the question was upon whom, when the general issue, by statute, under the 10th section, was pleaded, the onus probandi was to lie? A special defence may be a defence to be raised by the party for whose benefit it was created. That was the difficulty solved by the 12th section, by which, when the issue properly arises, the onus of proving the special matters of defence is thrown upon the plaintiff. According to the defendant's argument, the 12th section would be nothing more than a re-enunciation of the enactment contained in the 9th. The want of notice of action is not the only special defence; and, if the defendant (a) 3 Q. B. 662. (b) 4 Dowl. P. C. 311. Exchequer. LAWRENSON บ. HILL. be right, the Statute of Limitation provided by the 9th section T. T. 1860. need not be pleaded. The true construction of the whole statute, having regard to the repeal of the 10th section, is, that where there is any plea raising the special matter of defence, as the general issue by statute did, the onus probandi lies on the plaintiff. Secondly; we submit that, irrespective of the repeal of the 10th section, the defendant is bound, by the provisions of the Common Law Procedure Act 1853, to plead the want of notice. By the 62nd section, the venue in any personal action may be laid in any county where the plaintiff thinks proper; and the venue in actions. against Magistrates is constantly laid in a different county from that in which the cause of action arose. One provision, therefore, of the 12 Vic., c. 16, is plainly repealed. Then the 69th section abolishes the general issue by statute, and there are then only two defences which can be pleaded-one a denial of the matter complained of, and the other a defence which admits the matter complained of, and sets up something by which the effect of it is taken away. These are the only possible defences; and the 71st section deals with defences under that analysis. It cannot be said that the effect of the Justices Act is, that without a notice no cause of action ever arose. It is plainly, therefore, a defence admitting the matter complained of, and relying on matter of avoidance. How can it be said that a plea of the month's limitation, which stands on the same footing, is not a plea of confession and avoidance? Every argument applicable to the one equally applies to the other. With regard to authority, Smith v. Pritchard (a) shows that, unless it be by force of some special direction in the 12th section, the want of notice must be specially pleaded. Bull v. Chapman (b) and Alcock v. Taylor (c) are cases decided upon the same principle. In Davey v. Warne (d), the marginal note is, "Where an Act provided that a plaintiff should not recover in any "action for anything done in pursuance of the Act, unless twenty one days' notice of action should be given-Held, that the defendant "must plead the want of such notice, or he could not avail himself (a) 2 Car. & K. 699. (b) 8 Exch. 444. T. T. 1860. "of it." LAWRENSON v. HILL. There the 57 G. 3, c. 29, s. 132, required a notice of action to be given, and enacted that no person should recover in any such action unless such notice should have been given. It was held by the Court of Exchequer that the want of that should be specially pleaded. Any decision upon the Magistrates Act in England is inapplicable, because there the general issue by statute may still be pleaded. Then we come to the decisions on the Apothecaries Act. Shearwood v. Hay and Wagstaffe v. Sharpe were decided mainly on the effect of the General Rule in England, of Hilary Term, 4 W. 4, that, “ In all actions of assumpsit (except on "bills of exchange and promissory notes), the plea of non-assumpsit "shall operate only as a denial in fact of the express contract or "promise alleged, or of the matters in fact from which the contract "or promise alleged may be implied in law." The general issue is the same as if the defendant had said, "the facts of your case are not such that a promise can be inferred from them;" and the whole question was, whether the plea of non-assumpsit, thus interpreted, put the plaintiff on proof of his qualification? The want of notice is a matter peculiarly within the knowledge of the defendant, and, as such, should be put forward by him. The practice, since the passing of the Common Law Procedure Act, has been to plead the want or insufficiency of the notice: Collins v. Hungerford (a); Austin v. Tuite (b). The object of the Common Law Procedure Act was to narrow the issues between the parties; and that policy ought not to be disregarded in favour of Magistrates. J. T. Ball, in reply. Kirby v. Simpson (c) shows that the defendant here was entitled to notice of action. The object of a notice was not merely to enable the Magistrate to make amends, but to bind the plaintiff to a written statement of his complaint. The plaintiff is bound to prove the cause of action stated in the notice. If the proof at the trial be inconsistent with the complaint stated in the notice, the plaintiff (a) 7 Ir. Com. Law Rep. 581. (b) 8 Ir. Com. Law Rep. 30. must fail. How could the defendant plead by anticipation an incon- T. T. 1860. sistency between the notice and the proof? Exchequer. LAWRENSON Cur. ad. vult. V. HILL. FITZGERALD, B. This, so far as we are concerned with it, is an action for false imprisonment of the plaintiff. The defence pleaded is in substance that the defendant was a Justice of the Peace; that a charge was made against the plaintiff, which was duly heard and adjudicated on by the defendant and another Justice of the Peace at Petty Sessions; that, on evidence on oath before them, he believed the plaintiff guilty of stealing a key, the property of one Bond, and that he issued a warrant, under which the plaintiff was committed to stand her trial, which is the imprisonment complained of; and that the defendant acted bona fide, having jurisdiction. The case was tried before the Lord Chief Justice, at the last Spring Assizes for the county of Westmeath. An action in this form is sustainable against a Justice of the Peace only in the event of his acting without jurisdiction, or exceeding his jurisdiction. Into the facts proved at the trial it is unnecessary to enter, further than that it was shown by the plaintiff that the imprisonment complained of was made under colour of a warrant issued by the defendant, sitting as Justice at Petty Sessions with another Justice; but, from a former consideration of the case in this Court, it must be taken that the warrant was issued in a matter in which the defendant had not, or in which he exceeded his jurisdiction. At the close of the plaintiff's case the defendant's Counsel called for a nonsuit, on the ground that no notice in writing of the action was proved to have been given to the defendant previous to its commencement, pursuant to the provisions of the statute 12 Vic., c. 16. The Chief Justice, being of opinion that such notice was necessary to be proved on the part of the plaintiff, directed a nonsuit, and, on the plaintiff declining to be nonsuited, directed a verdict for the defendant. A conditional order having been obtained to set aside the verdict, cause was shown against such order, before my Brother HUGHES and myself, in this Term; and we are of June 12, |