Supreme Court of Canada
Sleeth v. Hurlbert (1896) 25 SCR 620
Date: 1896-02-18
Joseph Sleeth (Defendant)
Appellant
And
James Henry Hurlbert (Plaintiff)
Respondent
1895: Осt. 30; 1896: Feb. 18
Present:—Taschereau, Gwynne, Sedgewick, King and Girouard JJ.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA.
Canada Temperance Act—Search warrant—Magistrate’s jurisdiction—Justification of ministerial officers—Goods in custodiâ legis—Replevin—Estoppel—Res judicata.
A search warrant issued under “The Canada Temperance Act” is good if it follows the prescribed form, and if it has been issued by competent authority and is valid on its face it will afford justification to the officer executing it in either criminal or civil proceedings, notwithstanding that it may be bad in fact and may have been quashed or set aside. Taschereau J. dissenting.
The statutory form does not require the premises to be searched to be described by metes and bounds or otherwise.
A judgment on certiorari quashing the warrant would not estop the defendant from justifying under it in proceedings to replevy the goods seized where he was not a party to the proceedings to set the warrant aside, and such judgment was a judgment inter partes only. Taschereau J. dissenting.
Appeal from the judgment of the Supreme Court of Nova Scotia, affirming the order to restore goods to the plaintiff in an action of replevin in the court below. Upon an information laid in a case of The Queen v. Hurlbert, the plaintiff’s premises were entered under a search warrant issued by a stipendiary magistrate and certain intoxicating liquors with the vessels containing them found there were seized and removed from the premises and kept in legal custody. Upon the hearing, the magistrate made an
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order for the destruction of the goods seized under the provisions of the Act, whereupon they were destroyed, notwithstanding that they had been in the meantime replevied in this action. The proceedings were removed to the Supreme Court of Nova Scotia by certiorari and the declaration of forfeiture and search warrant were set aside and quashed. This order was proved on the trial in the present case, and the trial judge adopting the judgment which quashed the warrant and order, as being void for want of jurisdiction in the magistrate issuing them, held that the plaintiff was entitled to recover. The court in appeal also considered itself bound by the judgment which quashed the warrants and affirmed the judgment in the court below.
Orde for the appellant.
The judgment quashing the warrant was not a judgment in rem. Taylor on Evidence.
If it was it was only conclusive against all the world as to title to the goods, but did not prevent the officer justifying under the warrant. DeMora v. Concha; Bailey v. Harris.
The warrant showed jurisdiction on its face which is all that is necessary. Howard v. Gosset; Chaster on Executive Officers.
It was sufficient that the warrant followed the prescribed form. Reid v. Mc Whinnie; Truax v. Dixon; Re Allison.
The officer could justify under the warrant after it was quashed. Codrington v. Lloyd.
Roscoe for the respondent. The judgment quashing the warrant was a judgment in rem, binding on all the world. DeMora v. Concha(2); Geyer v. Aquilar.
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It is essential that the warrant should give the situation of the premises. The King v. Hazell.
TASCHEREAU J.—I would dismiss this appeal without hesitation. Whether the warrants were void and illegal cannot now be questioned by the present appellant. The judgment declaring them to be so is as to him res judicata, whether such a judgment is to be considered as in rem or in personam, and that with retrospective effect to their inception. He, as an officer of the court or standing in the position of an officer of the court, or one over which the court, as the Court of Queen’s Bench in England, has control, has no locus standi to controvert the decision of the court in the matter. If anyone is bound by a judgment of this nature surely it must be in this case the magistrate, and a fortiori the appellant. Upon this ground alone the appeal should, in my opinion, be dismissed.
Were it necessary, I might further say, to determine the point, that the appellant would find it difficult, in my mind, to justify the detention of the goods outside of the jail, under the verbal order of the magistrate to keep them in the jail. Moreover, the appellant has failed to establish the legality of such a verbal order in such a case. He does not justify under any warrant.
Whatever might be his position if this was an action for damages, I do not think that he has any right to these goods, nor ever had any. In fact, as I said, that is conclusively determined by the court in a case where Catrol, the plaintiff, represented him, the present appellant.
The judgment would also seem to me to be a judgment in rem. That would make the case still clearer against the appellant.
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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 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 custodiâ 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.
CANADA:
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 O. 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 “The 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.
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These are therefore, in the name of Oar Sovereign Lady the Queen, to 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 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.,
Stipendiary Magistrate.
This document, the appellant contends, follows the form prescribed by the Canada Temperance Act, cap. 106 R.S.C. sec. 108, and form 12 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
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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 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:
Such officer may grant a warrant to search in the day time such dwelling house, store, shop, warehouse, outhouse, garden, yard, croft, vessel, or other place or places for such intoxicating liquor.
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 seprate search warrant was to issue. If
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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 has jurisdiction 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. c. 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
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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:
As the law stood before, the distinction was that if the justice had no 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, a leading American case on the subject, Mr. Justice Marcy, after reviewing many English and United States authorities, says:
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The following propositions, I am disposed to believe, will be found to be well sustained by reason and authority. That when an inferior court has not jurisdiction of the subject-matter, or having it has not jurisdiction of the person of the defendant? all its proceedings are absolutely void; neither the members of the court nor the plaintiff (if he procured or assented to the proceedings) can derive any protection from them when prosecuted by a party aggrieved thereby.
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, or 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 base then under consideration:
I am of opinion that the execution issued by the justice to the defendant, it being on proceedings over the subject-matter of which he had jurisdiction, and the execution not showing on its face that he had not jurisdiction of the plaintiff’s person, was a protection to the defendant for the ministerial acts done by him by virtue of that process.
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: 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
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circumstances in that case did not demand a precise statement as to the extent of the inaccuracy.
On the whole question further reference may be had to the following cases: Phillips v. Biron; Parsons v. Lloyd; Kins: v. Harrison; Wolley v. Clark; 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 Supreme 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 party 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
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the sufficiency of the search warrant a judgment in rem, or a judgment in personam 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 subject-matter 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 or 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
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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 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; Reg. v. Clint; 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
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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 below.
GWYNNE, KING and GIROUARD JJ. concurred.
Appeal allowed with costs.
Solicitor for the appellant: S. H. Pelton.
Solicitor for the respondent: W. E. Roscoe.
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