JUDGMENT

Sir Richard Couch, Kt., C.J. - In this case, which was an appeal from the judgment of Markby, J., as the senior Judge, sitting with Birch, J., the first ground of appeal is that the Magistrate in his proceeding under Sched. K. of Beng. Act VI of 1868 acted judicially, and in discharge of his judicial duty, in directing the removal of the obstruction which was removed by him, and for the removal of which the plaintiff brought the suit against him and another person, and that therefore Act XVIII of 1850 is a bar to a suit against the Magistrate. The second ground is more general, being that Markby, J., ought not to have held that the powers and duties mentioned in Sched. K., with the exception of the powers to punish an offence, are not judicial. Act XVIII of 1850 provided that no Judge or Magistrate, &c., or other person acting judicially, shall be liable to be sued in any Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided that he in good faith believed himself to have jurisdiction to do or order the act complained of. The object of that Act was not to introduce the rule that a Magistrate acting judicially was not liable to a suit, but the further rule that he was not liable, although the act was not within the limits of his jurisdiction, if he Bond fide believed it to be.

2. The question in this case is, whether the removal of the obstruction by the Magistrate in exercise of the power given to him by the first clause of Sched. K. is a Judicial act.

3. The clause is:--"Whoever builds any wall, or erects or sets up any fence, rail, post, or other obstruction or encroachment in any public highway, or in or over any open drain, sewer, or aqueduct, along the side of any such highway, shall be liable to a fine not exceeding Rs. 50; and the Magistrate shall have power to remove any such obstruction or encroachment, and the expense of such removal shall be paid by the person erecting the same, and shall be recoverable from him in the manner provided in s. 83 of this Act."

4. If the whole of this clause is to be read as one single provision, and the power of the Magistrate to remove an obstruction only exists where the person building or setting up the obstruction has been convicted and: punished by a fine, it might be said that the conviction of setting up the obstruction and imposition of the fine and the removal of the obstruction being one act, and the order by the Magistrate that it should be removed being part of the judicial proceedings for punishing the offender, the whole was a judicial act,--that the removing the obstruction could not be separated from the awarding the punishment of the fine. But it appears to me that this would not be a reasonable construction of the clause, for then it would not provide for the cases where it may be necessary for purposes of conservancy that the obstruction should be removed, and yet no person can be discovered who could be punished for setting it up and mode liable to pay a fine, or from whom even the expense of the removal could be recovered. This clause, although it contains two provisions, one for the punishment of the author of the obstruction, and the other for the removal of the obstruction, most be looked at as if it was in fact two clauses; one providing for the judicial act of determining who the offender is and punishing him, and the other for what may be done separately and without any offender being punished, namely, the act of removing the obstruction, which may properly be called an executive or ministerial act.

5. In other parts of the schedule also we find clauses, some of which relate to judicial acts, namely, powers of fining for offences. For instance, there is the 3rd clause, where, if a person being ordered to remove a projection, encroachment or obstruction does not do so, he shall be liable to a fine not exceeding Rs. 50, and the Magistrate in such a case may re