for any thing done in the execution of his office, must be commenced within six calendar months after the fact committed (b). This time is to be calculated, including the day on which the ground of complaint arises (c). But in a case of continuous imprisonment, under a warrant issued beyond the six months, the magistrate is liable for such portion of the imprisonment as may be within the period (d). The suing out a writ is a sufficient commencement of a suit, though it be not served till after the time limited (e).

Notice of Action.]-As a further protection to justices, it is enacted (f), that no writ shall be sued out, nor any copy of any process, at the suit of a subject shall be served on any justice of the peace for any thing done by him in the execution of his office, until notice in writing of such intended writ or process shall have been delivered to him, or left at the usual place of his abode by the attorney or agent of the party who intends to sue, at least one calendar month (g) before the suing out or serving the same; in which notice shall be clearly and explicitly contained the cause of action; and on the back of it shall be indorsed the name of such attorney or agent, together with the place of his abode, who shall be entitled to the fee of 20s. for preparing and serving such notice and no more; and, unless it be proved on the trial that such notice was given, the justice shall have a verdict and costs. The object of this enactment was to enable justices to find out the attorney who sued out the process, in order to tender amends (h).

In the construction of this provision it has been holden that a magistrate is entitled to notice where he had reasonable grounds for believing that he acted as a magistrate, although what he did was not in the regular execution of his office (i). Thus the lord of a manor, who was also a justice of the peace, was held to be so entitled when sued for taking away a gun from the house of an unqualified person (j). Again, a single magistrate who had committed the mother of a bastard to prison for not filiating her child, was holden to be so entitled; though by 18 El. c. 3, s. 2, jurisdiction over the subject matter is given to two magistrates (k). Further, where a magistrate acts on a subject matter of complaint over which he has authority, but arising, in the

(b) 24 G. II. c. 44, s. 8.

(c) Clarke v. Davey, 4 Moore, 465.
(d) Massey v. Johnson, 12 East, 67.
(e) Taylor v. Hipkins, 5 B. & A. 489.
(f) 24 G. II. c. 44, s. 1.

(9) Excluding the day of giving the notice and that of suing out the writ, Young v. Higgon, 6 M. & Wel. 49.

(h) Per Bolland, B., in Smith v. Brown, 1 Tyrwh. R. 490; Cook v. Curry, cited 3 Burn's Just. 590, by Chitty, 28th ed.

(i) Bird v. Gunston, 2 Chit. R. 459. (j) Briggs v. Evelyn, 2 Hen. Bla. 114.

(k) Weller v. Toke, 9 East, 364.

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particular instance, beyond his jurisdiction, he is entitled to notice (7); but if the act complained of be one which there was no reasonable ground for supposing the justice authorized to do, he is not (m). magistrate sued in trespass for detaining goods on suspicion of their being stolen, is entitled to notice of action, if he acted under a boná fide belief that he was executing his duty, even though it is proved to the satisfaction of a jury, that he had no reasonable ground of suspicion; the bona fides as well as reasonableness of suspicion being questions which the jury are to decide, and which must be put to the jury on behalf of a plaintiff, if he seeks to maintain his action without having given such notice (n).

The notice must be in form a notice, and not a mere letter from an attorney, stating that he is authorized to proceed (o); it must express the nature of the writ and process to be sued out (p), and also the cause of action; but need not specify the form of action (q), nor express whether the action is intended to be against the magistrate alone, or against him jointly with others (r). In indorsing the attorney's name, it is sufficient if his surname be given at length, with an initial only of the christian name (s); and where the names of two attorneys composing a firm were indorsed, one of whom had three names, and one of his initials was omitted, the indorsement was held valid (t). The attorney may describe himself generally of the town in which he resides, as of "Birmingham" (u); though where he described himself in the notice as of a place in London, which in fact was

(1) Prestidge v. Woodman, 1 B. & C. 12; 2 Dowl. & R. 43.

(m) Cook v. Leonard, 6 B. & C. 355 ; 9 Dowl. & R. 339. In Beechy v. Sides, 4 Man. & Ry. 634; 9 B. & C. 806 (an action against a constable), Lord Tenterden said it had uniformly been held, that where a party bona fide believes or supposes he is acting in pursuance of an act of parliament, he is within the protection of such a clause (viz. entitling him to notice of action). This was cited by Alderson, B., in Ballinger v. Ferris, Tyrwh. & Gr. 920; 1 M. & W. 809, S. C. See S. P. in Reed v. Cowmeadow, 6 Ad. & E. 661; Cook v. Clark, 10 Bing. 19; Cann v. Clipperton, an attorney (on 7 & 8 G. IV. c. 30, 8. 41), 2 P. & D. 560; Norris v. Smith, id. 353. But this rule does not apply where a person mistakenly conceives himself to be legally filling a character which he does not fill (e. g. a game

(r) Jones v. Simpson, 1 Tyrwh. 32; 1 C. & J. 174, S. C.

(s) Mayhew v. Locke, 7 Taunt. 63. (t) James v. Swift, 4 B. & C. 681; 6 Dowl. & Ry. 625.

(u) Osborne v. Gough, 3 B. & P. 551, remarked on by the court in 5 Tyrwh. 584.

Quære, If this case be now law, since the great increase in the size of Birmingham? In Walter v. Hayne, Ry. & Moo. 149, "Bristol" was held too general.

in Westminster, the indorsement was held to be insufficient (v); and there can be no doubt that in the instance of a large town, it would be less hazardous to particularize the direction more closely. Such a notice must express either the actual abode and residence, or at least the place of business of the attorney (w); and the subscription by an attorney to such a notice of his name and place of writing, thus, "Given under my hand at Durham," instead of indorsing his name and place of abode on the back, was held insufficient. For it merely described the place at which the notice was signed, which might be done on a journey at some place far distant from the attorney's abode (x).

Tendering amends.]-The above notice was intended to afford a magistrate an opportunity of tendering amends to the plaintiff in the interval before the action can be brought (y); and such tender may be pleaded in bar to the action, so as to entitle him to a verdict and costs, if the jury should find the tender to have been made, and the amends sufficient (z).

Again, if he does not tender amends before action brought, he may at any time before joining issue, pay money into court on the same terms, and with a like result as in a case of liquidated damages, and the plaintiff will proceed for further damages at his peril (a). The indulgence of the court has kept pace with that of the legislature; for even after issue joined, and notice of trial given, a magistrate may withdraw his plea by leave of the court, pay money into court, and plead a new plea (b).

The venue is local in every action of tort against a justice, for any act done in his official character (c); and notwithstanding the new rules of pleading, he may give in evidence any special ground of defence on the plea of not guilty (d).

Power of Magistrates assembled in Sessions to commit and fine for Contempts: and to discharge Parties arrested on Civil Process.]— The justices assembled in general or quarter sessions, being a court of record, have undoubted authority instantly to commit to prison for the period of their session any person guilty of a contempt in

(v) Stears v. Smith, 6 Esp. 138. (w) Per Cur. in Roberts v. Williams and another, 5 Tyrwh. 586, where the attorney lived a little way out of Ruthin, and indorsed the notice thus, "Ed. Jones, Record Street, Ruthin, Denbighshire, attorney for the said R. R. (the plaintiff.")

(x) Taylor v. Fenwick, 3 B. & P. 553,

n. as remarked on, arguendo, 5 Tyr. 585.
(y) See ante, p. 81.

(z) 24 G. II. c. 44, s. 2.
(a) Id. ibid.

(b) Nestor v. Newcome and another, 3 B. & C. 159; Devaynes v. Boys, 7 Taunt. 33, S. P.

(c) 21 J. I. c. 12, s. 5.

(d) 7J.I.c.5; 3 & 4 W. IV.c. 42, s. 1.

the face of their court. This is a power inherent in every one of the queen's courts of justice of record (e), and rests on the necessity of preserving that decent respect to the persons presiding there, without which their proceedings must be worse than useless. To accumulate many instances of disrespectful conduct visited by this summary infliction is unnecessary; but some may be here mentioned. Mr. Justice Blackstone describes as a contempt, any thing that demonstrates a gross want of that regard and respect, of which, when once courts of justice are deprived, their authority, so necessary for the good order of the kingdom, is entirely lost among the people (f). Disobedience of orders to keep silence when commanded, rude and contumelious behaviour, opprobrious language to the justices (g), obstinate refusal by a juror or witness to be sworn, whether before the grand or petty jury, subject to exceptions introduced by 3 & 4 W. IV. c. 49, 82, and 1 & 2 V. c. 77, and c. 105, which acts are stated post (h), a juror's departure without giving his verdict (i), or refusal to give it (j), violent, continued, and obstinate expressions of applause (k) or disapprobation,

(e) See Hawk. B. 2, c. 1, s. 14, 15; c. 10, s. 17; R. v. Clement, 4 B. & Ald. 233, per Holroyd, J.; R. v. Faulkner, 5 Tyrwh. 922; 2 C. M. & R. 525, S. C. A steward in a leet is said only to have power to fine for contempt, or affray before him, 1 Hawk. B. 1, c. 21. s. 10, 11. See R. v. Mosley, 5 N. & M. 261, as cited 5 Tyrwh. R. 916; but quære: for though an inferior court, it is a court of record; all courts having power to fine and imprison are courts of record, 2 Hawk. c. 1, s. 14. See 4 B. & Ald. 223, per Holroyd, J. The steward of a court leet told a suitor that he was a

The

resiant, who replied " you lie." steward fined him 207. for the contempt; and it was held that an action of debt would lie for the fine, though no prescription was proved, Lincoln (Earl) v. Fysher, Cro. El. 581; 2 Roll. R. 3, 4; Moor. 470, S. C.; Owen, 113. See 2 Hawk. B. 2, c. 10, s. 17. The same was held where the steward of a leet desired a party present to take off his hat, to which he answered, that he did not regard what the steward could do, Bathurst v. Cox, Sir T. Raym. 68; 1 Keb. 451, 465. Again, in a county court, held for return of a knight of a shire to parliament (and not being a court of record, but a court baron, in which the suitors are judges, subject to writ of false judgment and not to writ

of error, Com. Dig. tit. County (C 2),) the sheriff was held right in taking a freeholder into custody for interrupting the proceedings by noise and disturbance, and sending him before a justice of peace, to be dealt with according to law; viz. to find security for his good behaviour, Spilsbury v. Micklethwaite,

1 Taunt. 146.

(f) 4 Com. 285.

(g) Also indictable, R. v. Ellers, 1 Wils. 222; 1 Hawk. c. 21, s. 11; 4 B. & Ald. 231, per Bayley, J.

(h) R. v. Lord Preston, Salk. 278; Com. D. tit. Leet (N 3); Griesley's case, 8 Co. 38, a; 4 B. & Ald. 233. R. v. Preston seems to be so far authority, though the reporter represents the indictment at the quarter sessions to have been for high treason; an offence which they could not hear and determine; though, according to Chief Justice Rolle, they could take an indictment of it. This, however, is denied by Lord Hale, 1 P. C. 305, 372. See R. v. Rigby, 8 C. & P. 770, post; R. v. Haynes, post.

(i) See 1 Leonard, 217; Com. D. tit. Leet, (N 3).

(j) 8 Co. 38 b; Com. D. Leet (N 3).

(k) See R. v. Stone, 6 T. R. 530. Party jumping up in middle of a court, waving his hat, and hallooing, taken into custody, and fined 207.

breach of the peace, affray, or wilful disturbance in open court during its sitting, &c. &c., are contempts punishable as above, or by fine as hereafter stated (1). Arresting on civil process in the face of the court, a party who is necessarily in attendance there: e. g. in his office, or on subpœna, or at request of a prosecutor, and without one (m), or under recognizance to prosecute and give evidence, or to give evidence only, or on some other lawful occasion, e. g. business to be done there, as preferring a bill, or giving information against any person, or tendering a fine on an indictment, &c. &c. is also a contempt (n); and the party so arrested may be discharged by the justices after examination on oath. But if he was arrested on his way to or from the place of holding the sessions, or at the sessions town, out of view of the court, after the sessions are over, the application for his discharge must be to the court from which the process issued (o), and as soon as possible after the arrest (p).

As to the power of a court of quarter sessions to impose a fine for such contempts committed in its view," No lawyer," says Lord Tenterden (q), “ can doubt the power of every court (of record) to fine for contempt." Mr. Justice Best added, in the same case, "No man who pretends to any knowledge of the law can doubt that a judge of a court of record has authority to fine and imprison for any contempt committed in face of the court." Thus, where in the course of a speech in answer to a prosecution for publishing a blasphemous libel, a defendant made observations of various offensive kinds, contemptuous to the judge who presided, derogatory to the characters of persons not present to defend themselves, and sneering at the Christian religion, he was held to have been properly fined, though more than once, for these different contempts (r).

It appears also, that the quarter sessions may fine a party guilty of contempt, though absent from their court at the time of committing it. Thus it was their constant practice to fine jurors who did not attend on summons (s). This power has been now rendered more definite by the cumulative powers conferred by 6 G. IV. c. 50, s. 38 (post, tit. Jurors,

(1) See on this subject, 2 Hawk. c. 22, s. 35; c. 1, s. 14, 15; 4 Bla. C. 285, &c. &c.

(m) Per Lord Kenyon, in Arding v. Flower, 8 T. R. 536; Meakins v. Smith, 1 H. Bla. 636.

(n) 2 Hawk. c. 1, s. 18.

(0) See Selby v. Hills, 8 Bing. 166; Com. D. Privilege (A 1); Clark v. Molineur, 1 Lev. 159; Sir T. Raym. 100,

S. C. No habeas corpus, or writ of privilege, can be issued by justices to take from the sheriff's custody a party arrested on civil process, on his road to sessions, whither he had been convened. (p) Reg. v. Burgess, 8 Ad. & E. 275; 3 Nev. & P. 366.

(q) R. v.Davison, 4 B. & Ald. 334, 340. (r) Ibid. R. v. Carlile.

(s) See Holroyd, J., 4 B. & Ald. 233.