Sleeth v. Hurlbert

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ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.

SEDGEWICK J.-The first question to be determined in this appeal is as to the validity of the search warrant under which the goods replevied were seized or held in custody by the appellant. If that warrant was SERi bad then the appeal fails, for I do not propose in this case to discuss the point as to whether in Nova Scotia replevin will lie to regain possession of goods in custodid legis.

The second question is: Assuming the warrant to be good, does it afford protection to the officer executing it, and those assisting him, even though it may have been subsequently quashed as invalid by a court of competent jurisdiction?

And the final question is (in the event of the second being answered affirmatively), as to whether the present appellant is concluded by the judgment of the Supreme Court of Nova Scotia in reference to the legality of the warrant, although he was not a party to, and had no notice of, the proceedings which culminated in its being set aside. In other words, is it res adjudicata as to him?

As to the legality of the warrant.

The following is the warrant under which the goods were seized: SEARCH WARRANT-C. T. AcT.

Province of Nova Scotia, County and Town of Yarmouth.

To all or any of the constables or other peace officers in the county of Yarmouth:

Whereas Peter 0. Carroll, of Yarmouth, in the said county and town of Yarmouth, inspector, appointed by the town council of the town of Yarmouth, for the purpose of enforcing and carrying out the provisions of " Thq Canada Temperance Act," hath this day made oath before me, the undersigned, one of Her Majesty's justices of the peace in and for the said county of Yarmouth, and stipendiary magistrate for the town of Yarmouth, that he hath just and reasonable cause to suspect, and doth suspect, that intoxicating liquor is kept for sale in violation of the second part of "The Canada Temperance Act," in the dwelling house, hotel, outhouses and premises of J. Henry Hurlbert, hotel keeper of Yarmouth, in the said county of Yarmouth. These are therefore, in the name of Our Sovereign Lady the Queen, to SE authorize and require you, and each and every of you, with necessary and proper assistance to enter in the day time into the said dwelling house, hotel, outhouses and premises of the said J. Henry Hurlbert, and there diligently search for the said intoxicating liquor ; and if the Sedgewick

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same, or any part thereof, shall be found upon such search, that you bring the intoxicating liquor so found, and also all barrels, kegs, cases, boxes, packages and other receptacles of any kind whatever containing the same, before me to be disposed of and dealt with according to the law.

Given under my hand and seal, at Yarmouth, in the said county and police division of Yarmouth, this 17th day of Dec., in the year of our Lord 1891.

NATHAN HILTON, J.P., Stipenidiary Magistrate. This document, the appellant contends, follows the form prescribed by the Canada Temperance Act, cap. 106 R.S.C. sec. 108, and form 72 and sec. 10 of the amending Act 51 Vic. (1888) cap. 34. Section 14 of that Act provides that the forms given in the schedule shall be sufficient, section 108 in the original Act only going so far as to enact that the " search warrant under that section may be in the form N."

It is for us to say whether it does follow the form within the intention of Parliament, and if it does, then in my view we are bound to hold it sufficient.

Now the ground upon which the document was set aside was that it did not appear on the face of the warrant that " the dwelling house, hotel, outhouses and premises " referred to therein were within the town of Yarmouth, and consequently within the jurisdiction of the stipendiary magistrate who issued it; that therefore the warrant was bad on its face and did not justify the constable acting under it. But does the statute or the form require a description of the premises to be searched as thus contended?

I do not think so.

There is nothing in the form from which it can be gathered that the premises to be searched are to be described by metes and bounds, or otherwise. In the form the words are " dwelling house, &c.; " that "&c." undoubtedly refers, and refers only, to the other ' places set out in the Act, " any dwelling house, store, shop, warehouse, outhouse, garden, yard, croft, vessel S or other place or places."

It does not, even by implication, direct the magistrate to describe, as is ordinarily done in a conveyance, the boundaries of the suspected premises.

I am clearly of opinion that the warrant complies with the statutory form, and inasmuch as the statute declares a warrant in that form to be sufficient I must hold this warrant to be. valid on its face, and therefore (subject to qualifications stated below) a justification to peace officers acting under it.

The legality of the warrant was impugned upon another ground not decided by the Supreme Court. That part of sec. 10, cap. 34 of 51 Vic. which authorizes a warrant is as follows :

The warrant authorized the search of the " dwelling house, hotel, outhouse and premises." of Hurlbert. And it was contended that the warrant was bad, because while the authority of the statute was disjunctive, only authorizing a search of the hotel or premises, the warrant purported to authorize a search of the hotel and premises.

I cannot appreciate the force of this contention. The statute is not disjunctive. It authorizes the officer to search "places," more than one place.

The magistrate in his warrant may specify the different buildings or premises, or places where the liquor is suspected to be, and authorize a search in each and all. It would be absurd to suppose that the legislature intended that for each place where liquor was suspected to be, a separate search warrant was to issue. If one has to search for a thing, it is implied that he may have to go to many places to find it. The object is to get the thing and the statutory warrant is made so wide that the officer may go anywhere within his territory to find it.

I feel bound in this connection to observe that in my view, apart from the statute, it is not by common law necessary that the warrant should state affirmatively that the place to be searched is in a place within the jurisdiction of the magistrate who issues it, or the officer directed to execute it. A murder is committed in Ottawa by John Smith of Montreal.

A magistrate here by his warrant states that John Smith of Montreal has committed, or has been charged with the crime of murder at Ottawa, and authorizes an officer to arrest him. That officer hasjurisdiction only within the City of Ottawa or the County of Carleton. He can exercise his jurisdiction within these limits only, unless a justice in another county backs the warrant. But if within his jurisdiction he finds and arrests the accused, he is not amenable to civil consequences, nor may the accused be discharged on habeas corpus because the warrant did not allege that Smith resided or was within the magistrate's or officer's jurisdiction. The next question is whether the appellant can rely upon the warrant as a defence although it was afterwards quashed by the Supreme Court as being irregularly issued.

Before the passing of the Imperial Act 24 Geo. II. 44, an Act passed for the security and protection of inferior peace officers, they were placed in the hazardous predicament of being liable to indictment if they refused to execute the warrants of justices of the peace, and to vexatious actions if they did. It was the object of that Act to relieve them from this difficulty and to substitute the magistrate by whom the warrant was granted and who was supposed to be cognizant of the legality of it, in lieu of the officer who was merely the instrument to execute it, and who was probably ignorant of the grounds on which it was issued.

Paley, page 426, says:

Sgi As the law stood before, the distinction was that if the justice had nb authority in the matter so that the conviction was coram non judice, and void, his warrant afforded no protection to the officer, but if the justice had jurisdiction in the matter the officer was protected, provided the manner of the execution was legal, however erroneous the judgment might have been and though the magistrate himself might be liable.

In the report of the Royal Commissioners upon a draft criminal code submitted to the Imperial Parliament in the year 1880, which commission was composed of Blackburn, Barry and Lush JJ. and Sir James Fitzjames Stephen Q.C.,. they say :

The result of the authorities justifies us in saying that whenever a ministerial officer who is bound to obey the orders of a court or magistrate (as for instance in executing a sentence or effecting an arrest under warrant), and is punishable by indictment for disobedience, merely obeys the order which he has received he is justified, if that order was within the jurisdiction of the person giving it. And we think that the authorities shew that a ministerial officer obeying the order of a court or the warrant of a magistrate is justified, if the order or warrant was one which the court or magistrate could under any circumstances lawfully issue, though the order or warrant was in fact obtained improperly, or though there was a defect of jurisdiction in the particular case which might make the magistrate issuing the warrant civilly responsible, on the plain principle that the ministerial officer is not bound to inquire what were the grounds on which the order or warrant was issued, and is not to blame for acting on the supposition that the court or magistrate had jurisdiction.

And this view of the law was adopted by the Canadian Parliament; see article 18 of the Criminal Code, 1892. In Savacool v. Boughton (1), a leading American case on the subject, Mr. Justice Marcy, after reviewing many English and United States authorities, says :

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If a mere ministerial officer executes any process upon the face of which it appears that the court which issued it had not jurisdiction of the subject-matter, of the person against whom it is directed, such process will afford him no protection for acts done under it. If the subject-matter of a suit is within the jurisdiction of a court, but there is a want of ,jurisdiction as to the person or place, the officer who executes process in such suit is no trespasser unless the want of jurisdiction appears by such process.

Bull. N.P. 83; Willes 32, and the cases there cited by Chief Justice Willes; and he proceeds to say, having reference to the case then under consideration :

The point was incidentally discussed in the celebrated case of Howara v. Gosset where the validity of general warrants was under consideration.

In that case Mr. Justice Colridge refers to what was said by Willes C.J. in Morse v. James (2): It has always been holden that a constable may justify under a justice's warrant in a matter wherein the justice had jurisdiction, though the warrant be never so faulty, as being "too strong and general to be quite accurate."

In my view that contention is well founded, but the circumstances in that case did not demand a precise statement as to the extent of the inaccuracy.

8 an On the whole question further reference may be had to the following cases: Phillips v. Biron Parsons v. Lloyd ; King- v. Harrison ; Wolley v. Clark ; J. and Codrington v. Lloyd in which case both counsel conceded that the officer could justify. The general principle running through all these cases and authorities is that even though a warrant may in fact be bad, though it may be or has been set aside by reason of failure to comply with legal requirements if it has been issued by competent authority, by a functionary duly authorized by statute or otherwise, and is valid on its face, it will afford absolute justification to the officer executing it, not only where he is proceeded against criminally but by civil action as well.

The result is that upon this point, the appellant succeeds.

The warrant being valid on its face, and having been issued by a magistrate with admitted jurisdiction, he was justified in acting under it. The question still remains :-The $upreme Court of Nova Scotia having by independent proceedings taken at the instance of the respondent, but behind the back and without the knowledge of the appellant, and long after the action against him had been instituted, quashed the warrant under which the appellant acted, is he bound by that judgment-a judgment in a proceeding in which he was neither paxty nor privy? Is he estopped or precluded in the present action, from asserting that that judgment was erroneous ? I am willing, for the purposes of this appeal, to admit that the answer to this question depends upon the answer that can properly be given to the further question- Was the judgment given by the Supreme Court as to the sufficiency of the search warrant a judgment in rem, or a judgment in versonam or inter partes only ? It * is a harsh doctrine-a doctrine that may be used to the -unjust destruction of individual rights and interests, the jurisprudence as to the universally binding efficacy of judgments in rem; but it is a doctrine too firmly established to be successfully impugned.

But what is its extent ? A judgment in rem is an adjudication pronounced upon the status of some particular subjectmatter by a tribunal having competent authority for that purpose.

Such an adjudication being a solemn declaration from the proper and accredited quarter that the status of the thing adjudicated upon is as declared, concludes all persons from saying that the status of the thing adjudicated upon was not such as declared by the adjudication.

(See cases cited in the Duchess of Kingston's case

It is true that in the present case, the Supreme Court set aside quashed the search warrant, but it did not pass upon or adjudicate the question whether the liquors seized had or had not become forfeited to the Crown. By virtue of its general common law jurisdiction to revise and supervise the proceedings of all inferior tribunals within the province with the view of preventing any from acting in excess of its statutory or other power, it may by certiorari bring such proceedings before it, examine upon their legality, and determine accordingly.

It therefore, had a right to examine and adjudicate upon the sufficiency of the warrant in question

It had authority to say whether it was valid or invalid on its face, whether all preliminary steps had been taken justifying its issue; whether in short upon grounds apparent from reading it, or upon grounds determined by evidence, it was in law a valid instrument; but that is an altogether different thing from its right to adjudicate upon the "status"

of the property in reference to which the warrant was issued.

It has not either by common law or statute the right to adjudicate upon Seick that question.

For that purpose Parliament has provided the requisite tribunal and when that tribunal has passed upon it its judgment may be binding upon the world as a judgment in rem, subject to the review of the statutory appeal court, but so far as I can see the Supreme Court has not been vested with any right to adjudicate upon the property right, and therefore its judgment as to the legality of process cannot be viewed as a judgment determining status, but only as adjudicating on the legality of procedure.

One consideration, it seems to me, adds force to this argument. Suppose a summons issued against a person charged with offending against the Act, and a search warrant issued at the same time; suppose the warrant bad, and the Supreme Court had quashed it on the day it was issued. I know of no principle that would preclude the magistrate from issuing a new warrant and deciding upon the question of forfeiture when he decided upon the question of guilt. Upon the whole question I refer to Rex. v. Wick (1); Reg. v. Clint (2) Reg. v. Evenwood

In my view the judgment of the Supreme Court as to the sufficiency of the warrant does not create an estoppel.

In the respondent's factum the question is raised as to his right to recover because the appellant tasted or tested the seized goods. The question does not call for much consideration.

It was his duty to make a test so as to be able to give evidence as to the character of the goods he had seized. On this, as well as on the ground of de minimis, that contention fails.

On the whole, I am of opinion that the appeal should be allowed and the action dismissed, the appellant to have the costs of this appeal and all costs in the courts and JJ. concurred. Appeal allowed with