2 Ventris, 45. (a) Rex v. Pick- Grindley v. Entick v. Car- Hill v. Bate 66 "same, any action shall be brought against such constable, headborough, or other officer, or against such person or persons acting in his aid for any such cause as aforesaid, without "making the justice or justices who signed or sealed the said "warrant defendant or defendants, that on producing or proving "such warrant at the trial of such action, the jury shall give their "verdict for the defendant or defendants, notwithstanding any "defect of jurisdiction in such justice or justices (10); and if "such action be brought jointly against such justice or justices, “and also against such constable, headborough, or other officer, "or person or persons acting in his or their aid as aforesaid, then, "on proof of such warrant, the jury shall find for such constable, "headborough, or other officer, and for such person or persons so "acting as aforesaid, notwithstanding such defect of jurisdiction "as aforesaid; and if the verdict shall be given against the justice "or justices, that in such case the plaintiff or plaintiffs shall recover bis, her, or their costs against him or them, to be taxed in "such manner by the proper officer as to include such costs as "such plaintiff or plaintiffs are liable to pay such defendant or "defendants for whom such verdict shall be found as aforesaid." Sect. 81. But is provided by 24 Geo. 2. c. 44. s. 7. "That "where the plaintiff in any such action against any justice of "the peace shall obtain a verdict, in case the judge before whom "the cause shall be tried shall, in open court, certify on the "back of the record, that the injury for which such action was "brought, was wilfully and maliciously committed, the plaintiff "shall be intitled to have and receive double costs of suit. "And no action shall be brought unless commenced within six "calendar months after the act committed.” Sect. 82. It has been determined (a) on this branch of the statute, that where there is a special verdict, and it appears from the facts found that the act for which the action was brought was done by the defendant, by virtue or reason of his office as a justice of the peace, the master, on a verdict for the plaintiff, must tax double costs, though there has been no certificate or allowance by the judge before whom the cause was tried; but when it does not appear upon the record in what capacity the defendant was acting, an allowance of the judge at nisi prius is necessary. Sect. 83. It hath also been determined, that secretaries of state and privy counsellors are not magistrates, and that the king's messengers are not officers within the protection of the foregoing statutes. Sect. 84. It was agreed, than when an action is brought man, 1 Str. 710. against justices of the peace for any wrong done by the exercise of their authority, as by committing a person under a conviction on the game laws without first attempting to distrain for the penalty, it is incumbent on the defendants to shew the regularity (10) If a justice of peace make a warrant in a case which is plainly out of his jurisdiction, such warrant is no justification to a constable. 1 Stra. 711. Wood, b. 1. c. 7. 2 Stra. 1002. But if of the justice exceed his authority in granting a warrant, yet the officer must execute it, and is indemnified for so doing. Cro. Car. 394. 10 Co. 76. of their convictions; and that the informations, &c. laid before them upon which their convictions are grounded, must be produced and proved in court. 1 Burr. 580. Sect. 85. It is also agreed that an action of trespass will not Hutchins v. lie against justices of the peace for making a warrant to distrain Chambers, for the poor's rate under the 14 Eliz. c. 2. if the rate has not been appealed from, and the warrant is not void so as to make the parties executing it trespassers ab initio. But if a justice issue a warrant totally illegal, as if a pauper return without a certificate to the parish from whence he was removed, and the justice make a warrant to commit him to the house of correction, "there to remain until discharged by due course of law," instead (a) 13 & 14 of pursuing the statutes under which his authority on this sub- s. 3. ject is derived (a), he is liable to an action of false imprisonment, 17 Geo. 2. although he did not, in granting such warrant, act intentionally (6) Baldwin v. wrong. (b) XVIII. How far justices of the peace may award costs. Sect. 86. By 18 Geo. 3. c. 19. "Where any complaint shall "be made before any justice of the peace, and any warrant or "summons shall issue in consequence of such complaint, it "shall be lawful to and for any justice or justices of the peace "who shall have heard and determined the matter of the said complaint, to award such costs to be paid by either of the par"ties, and in manner and form as to him or them shall seem fit, "to the party injured; and if they shall not pay down or give, satisfactory security for the same, the said justice or justices. "shall, by warrant under hand and seal, levy the said sum or. sums by distress and sale, and where goods and chattels of "such person cannot be found, shall commit such person to the "house of correction for the county or place where such person "shall reside, there to be kept to hard labour not exceeding one month, nor less than ten days, or until such sum or sums of money, together with the expenses of the commitment, be first "paid." + Sect. 87. But it is provided by the said statute, "That upon "the conviction of any person or persons upon any penal statute "where the penalty shall amount to, or exceed, five pounds, the "said costs shall be deducted by the said justice or justices, ac"cording to his or their discretion, out of the said penalty or "penalties, so that the said deduction shall not exceed one-fifth "part of the penalty or penalties aforesaid; and the remainder "shall be paid to, or divided among, the person or persons who "would have been intitled to the whole in case this act had not "been made." Of the Court of Sessions. Car. 2. c. 12. c. 53. Blackmore, of Sheriff, 364. The court of justices of the peace in sessions is an assembly Dalton, c. 185. of two or more such justices, whereof one is of the quorum, at a Impey's Office certain day and place before appointed, in order to inquire, hear, and determine, in pursuance of their commission, of any causes or (a) Vide ante. Cro. Cir. 30. 2 Hale, 49. 2 Hale, 49. or matters therein contained; and this court, when legally convened, is a court of record. For the better understanding hereof I shall consider, 1. At what time such court is to be held. 2. By whom, and in what manner, it is to be summoned and appointed. 3. In what manner such court shall be adjourned. 4. What persons are bound to give their attendance at it. 5. Whether it hath any power over its own members. 6. The difference between general, special, and quarter sessions. 7. What persons may practise in it. 8. Of the extent and nature of its jurisdiction. 10. In what cases justices may award costs. 11. In what cases the sessions may make orders respecting the county. I. At what time such court is to be held. Sect. 1. By 12 Rich. 2. c. 10. « The justices shall keep their "sessions in every quarter of the year at least, and by three days, "if need be, on pain of being punished according to the discre"tion of the king's council, at the suit of every man that will complain." Sect. 2. By 2 Hen. 5. st. 1. c. 4. it is enacted, " That the jus"tices of the peace in every shire named of the quorum, &c. (a) "shall make their sessions four times in the year, viz. in the first "week after Michaelmas-Epiphany-Easter-and the transla"tion of St. Thomas the Martyr, and oftener if need be; and "that the same justices shall hold their sessions throughout England in the same weeks every year." 66 Sect. 3. But by 14 Hen. 6. c. 4. it is enacted, "That the jus"tices of the peace for the county of Middlesex shall keep, ob"6 serve, and execute the court of the session of the peace two "times in the year at least, and more often if need be." And because of the great business in this county, it is usual to hold four general and four general quarter-sessions in the year. Sect. 4. By 33 Hen. 8. c. 10. the Tuesday after Easter week is expounded to be in the week after clausum pascha for the sessions to be held; yet clausum pascha, or Low Sunday, is the first day in that week. Sect. 5. Sir Matthew Hale says, the strict regular exposition of the statute of Henry the Fifth for the week after Michaelmas, &c. is, that if Michaelmas fall upon a Sunday or Monday, the quarter-sessions, in strictness, should be held in the ensuing week, and not the same week. Yet it is very plain that the quarter-sessions are variously held in several counties, some at one day, day, some at another; and it hath been ruled, that these are each of them good quarter-sessions within the several acts that relate to quarter-sessions, for that these acts, especially that of the 2 Hen. 5. c. 4. is only directive and in the affirmative; and therefore, though the sessions are held at another day, according to the general direction of the statute 12 Rich. 2. c. 10. yet they are quarter-sessions. II. By whom, and in what manner, the session is to be summoned and appointed. Dalt. ch. 185. Sect. 6. It seems clear from the express words of the commis- c. C. C. 29. sion, that any two justices of the peace, whereof one is of the Lamb. b. 4. c. 2. quorum, may hold such court at such days and places as shall be and 20. appointed by them; and that the sheriff is bound to return proper juries; and that the custos rotulorum ought to bring the rolls of the peace before them, &c. Sect. 7. And from hence it seems to follow, that any two such Lamb. b. 4. justices may direct their precept under their teste to the sheriff c. 20. for the summons of the sessions of the peace, thereby commanding him to return a grand jury before them, or their fellow-justices, at a certain day and place, and to give notice to all stewards, constables, and bailiffs of liberties, to be present and do their duties at such day and place, and to proclaim in proper places throughout his bailiwick, that such sessions will be holden at such day and place, and to attend there himself to his duty, &c. + Sect. 8. And such precept should bear teste or be dated fif- Nelson, 35. teen days before the return, and ought forthwith to be delivered 4 Burn, 218. to the sheriff, to the end that he may have sufficient time to proclaim the sessions; to summon and return the several juries; and to warn all officers and others that have business there to attend. Lamb. b. 4. c. 2. Sect. 9. And it is said that such a precept by any two such 2 Hale, 41. justices cannot be superseded by any of their fellows, but only Crom. Jur. 12. by a writ out of chancery. Sect. 10. But it is not sufficient that the precept run under Lamb. 382. the name of the custos rotulorum alone; for he hath no more authority in this behalf than any one of his fellow-justices; and the words of the commission are," that the sheriffs shall cause a jury "to appear at such days and places as the said justices, or two " or more of them, shall appoint." Sect. 11. It is said that such justices may hold such a session Vide 4 Burn, without any such summons, which seems to be a well-grounded 181. opinion, as to their proceeding on indictments before taken be- Lamb. 380. fore themselves or others, or on other particular occasions, for which there is no need either for the attendance of the grand jurors, or officers, &c. Sect. 12. It seems to be generally understood, that if a suf- Lamb. 380. ficient number of justices do not appear on the day appointed for 4 Burn, 217. holding the sessions, that the session for that quarter of the year is irrecoverably lost; but this must be understood, that there cannot be time to summon a session de novo in the very identical week next after any of the respective holydays mentioned in the statute 2 Hen. 5. c. 4; for a session, may be opened with out out such summons, and adjourned to another day; and the justices who open the session may issue their precept to the sheriff against the day of adjournment; and how many adjournments soever shall be holden afterwards, in that quarter of the year, all shall refer to the first commencement of the sessions. For though a session shall not be holden within a week after such feast-day, it does not follow that therefore it cannot be holden in any of the twelve weeks afterwards, especially as it appears that any two justices, one whereof is of the quorum, may issue a precept to summon a session for the general execution of their authority, and that such session, holden at any time within that quarter of the year, is a general quarter-session. + Sect. 13. It was formerly thought, that if two or more justices appointed a session to be holden in one town, and so many more appointed a session in another town the same day, that both sessions were good, and that appearance at one would be a good (a) Dalt. c. 185. discharge of service at the other. (a) But this has been justly (b) 4 Burn, 219. questioned; (b) and it is now settled, that where two sets of magistrates have a concurrent jurisdiction, and one set appoints a (c) Rex v. Sains- session or a meeting for a special purpose, their jurisdiction atbury, Mich.Ter. taches so as to exclude the other appointing a subsequent session or meeting, and not only renders their acts illegal, but subjects such justices to an indictment.(c) 32 Geo. 3. (d) Bex v. 102. Rex v. Grind, 2 Bott.P.L. 841. (g) Doughty v. Mills, 2 Lev. III. In what manner such court shall be adjourned. Sect. 14. The court of sessions, when regularly opened, can only be continued by adjournment, (d) in the entry of which it ought to appear when the original sessions commenced; (e) and therefore if an indictment be taken at an adjourned session, and it do not appear on what day the original session began, to bring it within the time prescribed by the statute 2 Hen. 5. c. 4. it is erroneous.(f) So also in trespass and false imprisonment, where the defendant justified under a warrant made at a general quartersessions that was held on the ninth day of October, by virtue of which said warrant he took the plaintiff on the tenth of October to bring him to the sessions; the court held the plea ill, because it was not shewn that the session was continued till the tenth of October;(g) for all its proceedings, whether under the authority of particular statutes, or by the common law, must contain formal and regular continuances;(h) and therefore where the caption of an indictment stated that the session was held on Tuesday the fourth of October, in the twenty-fifth year of the reign, and then stated that the same sessions were adjourned till Tuesday the sixth day of July aforesaid, it was held, on demurrer, to be bad, for the adjournment was to an impossible day. But the continuance of the session from day to day need not be particularly set out, (i) for while the session continues, it is considered in law as (k) 2 Salk. 606. (1) Stra. 1263. one day.(k) But if a sessions be once dropped, and not adjourned, Burr. S. C. No. it cannot be resumed; (7) and therefore if the sessions refer a matter to the determination of the judges of assize, who decline intermeddling, and the sessions afterwards make an order in the matter, it is void, for such reference is not a proper adjournRex v. Heding ment.(m) So if the court are equally divided upon a question, it Burr. S. C. 112. must be adjourned, or no order can be made at a subsequent 229.tamen quere. (h) Rex v. Polsted, Stra. 1265. B. R. St. 79. (†) Rex v. Fearnley, 1 Term Rep. 319. Andr. 101. 105. (m) Rex v. Readley, B. R. H. 79. ham-Sible, session. |