made duke, archbishop, marquis, earl, viscount, baron, bishop, knight, justice of either bench, or serjeant-at-law, yet he shall remain justice, and have authority to execute the same” (v).

Justices not to be amerced by Sessions for non-attendance: Exception.]-The court of quarter sessions has no authority to amerce any justice of the peace for non-attendance, as the justices of assize may for the absence of any such justices at the gaol delivery; for it is a general rule that inter pares non est potestas; it being reasonable rather to refer the punishment of persons in a judicial office, in relation to their behaviour in such office, to other judges of a superior station, than to those of the same rank with themselves (w). But where a past mayor, without whose presence the session could not be holden under a charter, voluntarily absented himself without sufficient cause, the court of king's bench granted an information against him (x).

Wages for Attendance.]—By an ancient statute (y), it is provided that "justices shall have for their wages 4s. the day, for their time of attendance in session, and their clerk (i. e. the clerk of the peace) 2s., of the fines and amerciaments rising and coming of the said sessions, by the hands of the sheriffs; and the lords of franchises shall be contributory to the said wages, after the rate of their part of the fines and amerciaments."

And by another statute of the same king (z), it is enacted that eight justices shall be assigned in each county besides the lords assigned in this parliament (a), that duplicates of the estreats of the said justices shall be made, and the one part delivered by them to the sheriff, to levy the money therefrom arising, and thereof to pay the said [iu practice the eight senior] justices and their clerks their wages by the hand of the sheriff, by indenture betwixt them thereof to be made. The sheriff is allowed the amount in his bill of cravings in the exchequer. But no duke, earl, baron, or banneret (b) though assigned

It was a military distinction of high honour, anciently conferred by the sovereign in person, when in the field with his army under the royal banner, on none but distinguished knights, most frequently on the eve of or after an engagement. The mode of granting it was by squaring the pointed pennon of the knight so as to resemble the square baner (or vexillum) of the baron. 4 Inst. 6. Smith (Sir Thomas) de republ. Angl. c. 18. This rank is not to be confused

justices, and holding their sessions with the other eight, shall take any wages.

Although justices are prohibited from taking anything for the execution of their office, except "of the king, and fees accustomed, and costs limited by statute," their respective clerks are entitled to certain fees for the manual labour supposed to be performed by them, in taking informations, drawing warrants out of session, &c., under the direction of their respective principals; such fees to be settled in sessions from time to time, and approved and confirmed by the judges of assize at the next assizes for the county (c). "But such table of fees shall be of no authority till it have received the confirmation of the said judges of assize; and if any such clerk, at any time after three months from such table of fees being ratified, shall take more on account of business done by the justice to whom he is such clerk, he shall forfeit 207. to whoever shall sue for the same, within three months, in the courts of Westminster" (d).

In Middlesex.]-In Middlesex the table of fees is to be confirmed by the three chief judges of the courts of law at Westminster. And in all places this table of fees, when ratified, is to be placed in the hands of the clerk of the peace, and by him hung up in a conspicuous part of the room where the quarter sessions are holden, under a penalty of 101. to be recovered in like manner (e).

Fines, Forfeitures, and Penalties paid to Justices.]-Those monies, which as fines, forfeitures, and penalties, justices acting out of sessions are authorized by various statutes to receive on account of the king, or any other persons, are directed to be paid annually by them before the Michaelmas session, to the sheriff of the county; and a duplicate of the account of such fines, forfeitures, and penalties is to be sent to the clerk of the peace for the said county, or town clerk (as the case may be), previous also to the Michaelmas session, in order to be entered in his estreats, so as to charge the sheriff with them in his apposals before the foreign apposer, in order to the same being answered to the crown in like manner, as fines, &c., imposed at any session of the peace (ƒ); but as these provisions relate also, as far at least as respects the justices, to their duties out of session, for the reasons before stated, it is sufficient to refer to the statute itself.

with that of the modern baronet. Dalton, c. 185; and see Stat. 5 R. II. st. 2, e. 4. Camd. Brit. 109.

(e) 26 G. II. c. 14.

(d) Ibid.
(e) Ibid.

(ƒ) 41 G. III. c. 85.

We may here briefly consider the protection afforded to justices in the execution of their office, and the liabilities they may incur in it : first, out of session; second, in session.

Protection of Justices for Slander, or Contempt out of Session.]— I. A justice of the peace may indict for words spoken of him in his presence, in the execution of his office, which would not be indictable if spoken of another person: as if it be said of him, in reference to his conduct as a magistrate, He is a rogue and a liar (g). If such words as the above be used in his presence, when sitting in his judicial character, or such as amount to the obstruction of justice, he may commit the offender for his contempt (g) by warrant in writing (h), for a time certain, but not otherwise (i). And unless the words be spoken under circumstances which render it probable they may prevent the due administration of justice, it will be safer for the magistrate to abstain from summary punishment, and proceed by indictment, which will certainly lie for words addressed to him while in the discharge of his duty (g); or by action, which will lie whether the words be spoken in his presence or absence. A person who had been dismissed from his office of clerk to magistrates, complained to one of them in violent terms, called him a liar repeatedly, and in the presence of several persons, said he was unfit to be a magistrate, adding that he should hear the same every time he came into the town. The court refused a rule for an information, it not being sworn that there was any intent to provoke a breach of the peace (j).

Liabilities of Justices out of Session.]—The liabilities of justices out of session are either criminal or civil.

In respect of all judicial acts in matters over which he has jurisdiction, the rule is, that a magistrate is never liable for an error in judgment; but only where a partial, malicious, or corrupt motive can be distinctly proved, or plainly inferred from the circumstances in which he acted (k). Where such motive can be either so proved or so inferred, he is guilty of a misdemeanour, and may be proceeded against by indictment or by criminal information in the court of queen's bench,

(g) R. v. Read, 1 Stra. 420.

(h) Mayhew v. Locke, 7 Taunt. 63; 2 Marsh. 377, S. C.

(i) R. v. James, 5 B. & A. 894; 1 Dowl. & R. 559, S. C.; cited 9 B. & C. 237, ex parte Leake.

(j) Chapman, ex parte, 4 Ad. & E. 773. Nor will such a rule issue if the

slanderous words were used, not with reference to a man's conduct as a magistrate, but to his voting as an elector to some office. S. C.

(k) R. v. Young, 1 Burr. R. 556; R. v. Cox, 2 Burr. R. 785; R. v. Jackson, 1 T. R. 653; and see Basset v. Godscall, 3 Wils. 121.

which exercises a general supervision over all justices of the peace. The latter is the course more usually adopted; but, in order to make the application successfully, the party complaining must come before the court" with clean hands;" that is, he must show himself free from all blame in the subject matter of his charge (7), and he must prefer it at a proper season and within a proper time. The court will grant no information against a magistrate after the expiration of the second term from the matter complained of, nor so late in that term as to prevent him from showing cause before its conclusion (m), unless the fact happened in the term (n); nor as it would seem after the first term, if an assizes intervene before the second (o); nor unless a notice, containing the grounds of charge, has been served on him personally, or left at his usual place of abode in sufficient time to enable him, if he thinks proper, to oppose the motion in the first instance (p). And the court, even where they see grounds for the information, will not allow the prosecutor to proceed both civilly and criminally, but will compel him to relinquish an action already commenced, or undertake not to bring it; and where an indictment has been found, the attorney-general will enter a nolle prosequi if the prosecutor perseveres in carrying on an action for the same cause (q). Where the magistrate, against whom a rule nisi has been obtained, gives a satisfactory answer to the whole charge, it is of course to discharge the rule with costs, to be paid him by the other side (r); but where his conduct, though illegal, has not been corrupt, they sometimes discharge the rule without costs on either side; and where his conduct has been so irregular and indiscreet as to lead the complainant reasonably to suspect a corrupt motive, though it be afterwards negatived, the court will, in their discretion, discharge the rule on payment of costs by the magistrate (s).

Justices when liable in Trespass.]-If a magistrate grants a warrant in a case where he has no jurisdiction, he is liable to the party imprisoned in an action of trespass; and even in a case over the subject matter of which he has jurisdiction, if he proceed without any information on oath, he is liable in the same form (t). So if a magistrate commit for re-examination, for a time obviously unreasonable, or

(1) R. v. Webster, 3 T. R. 388. (m) R. v. Marshall, 13 East, R. 322. (n) 7 T. R. 80, R. v. Carpenter Smith. (0) R. v. Harris, 13 East, 270. (p) 2 Barnard. 284; cited 1 Ch. C. L. 876; Hand. Pract. 2.

(q) R. v. Fielding, 2 Burr. R. 719. (r) R. v. Palmer, 2 Burr. R. 1162. (8) R. v. Fielding, 2 Burr. R. 722.

Hill v. Bateman, Stra. 710; Morgan v. Hughes, 2 T. R. 225; 2 Burr. R. 719.

with a view of extorting a confession, he may be sued in trespass (u). But trespass does not lie against a magistrate acting on a complaint made to him on oath, by the terms of which he had jurisdiction, although the complaint might not be sustained by the real facts, if the party accused did not attend on summons, or lay these facts before him (v). Where a magistrate has convicted, and the conviction is good in form, it will be an answer to an action of trespass at the suit of the party convicted on the general issue, although formally drawn up afterwards; provided the warrant shows an offence over which the magistrate had jurisdiction (w); but not where a party has been imprisoned on a warrant substantially varying from the conviction (x), and insufficient on the face of it, although there has been a previous regular conviction (y). And, for the protection of justices in cases where the conviction is quashed, it is provided (z), that where any action is brought in respect of such conviction, or of any thing done or commanded by the magistrate, for levying the penalty, apprehending the party, or carrying the conviction into effect, the plaintiff shall only recover 2d. damages beyond the penalty levied, and no costs of suit; unless it be alleged in the declaration (which shall be in case), that such acts were done maliciously, and without any reasonable or probable cause; and, further, that in case the justice, on the trial of such action, shall prove that the plaintiff was guilty of such offence, whereof he was convicted, or on account of which he had been apprehended, or otherwise suffered, and that he had undergone no greater punishment than was assigned by law to such offence, such plaintiff shall recover no penalty levied, nor any damages or costs.

Action on the Case.] ---If a magistrate maliciously and without reasonable or probable cause, does an act within his jurisdiction by which any person is unjustly aggrieved, he is liable in an action on the case to make compensation in damages; but in such action the want of probable cause must distinctly appear in what passed before the magistrate, and it will not suffice for the plaintiff to show that he was, in fact, innocent of the offence for which he was convicted (a).

Limitation of Action.]-Every action against a justice of the peace,