Certificate nccessary.

Attorney having been struck off the rolls not al

admitted, (7) unless he has taken the degree of bachelor
of arts or of law in the university of Oxford, Cambridge,
or Dublin, within four years, in which case a binding for
three years will suffice. (m)
will suffice. (m) During the term, the clerk
must serve the whole time with his master, except that
he may serve one year with his agent, or one year as
pupil to a practising Barrister, or certificated Special
Pleader. (n) Service for a part of the time with another
Attorney, even with the master's consent, will not suffice,
unless in case of death, or of special circumstances under
which an assignment may be sanctioned by the court in
which he seeks admission. (0) And he must be admitted,
sworn, and enrolled, before he can act as an Attorney,
under a penalty of 50l. and being disabled thereafter.
But Quakers may be admitted on their affirmation. (p)

Admission, and inrolment, presupposing a compliance with all the conditions enacted by statute, such as the payment of stamp duties, &c. it is unnecessary to notice those which are imposed on articles of clerkship, or any others which may be necessary in the process of qualifying to act as Attornies, merely as duties; but it must be observed that every Attorney, to entitle himself to prac tise in that capacity, must "annually take out a certificate from the commissioners of stamps, under a penalty of 50%. and being disabled to practise." (q) Any Attorney, therefore, who may have omitted to take out such certificate, has forfeited his right to act in that capacity in the Court of Quarter Session. (r)

It is almost unnecessary, in the last place, to observe, that any Attorney who has been struck off the rolls of the lowed to practise. Courts above, as sometimes occurs, for dishonourable practices, although not especially provided against by any positive law, is no longer an Attorney of such superior courts, and cannot, therefore, be permitted to practise in the inferior ones, and, of course, is not admissible in that of the Quarter Session of the Peace; and no person convicted of felony, or other infamous crime, will be allowed to practise. (s)

(1) 2 Geo. 2. c. 23. s. 5.

(m) 1 and 2 Geo. 4. c. 48. s. 1.

(n) 22 Geo. 2. c. 26; 1 and 2 Geo. 4. c. 48. s. 2.
(0) Ex parte Hill, 7 T. R. 456.

(p) 2 Geo. 2. c. 23.

(q) 22 Geo. 2. c. 46.

(r) 37 Geo. 3. c. 90; 39 and 40 id. c. 72; 48 id. c. 149. and 54. id.

c. 44.

(s) Ex parte Brownall, Cowp. 829.

Under the term fees, it is not to be presumed that any Fees, &c. thing relative to the remuneration to counsel for their assistance, or other voluntary payments, of which the law takes no cognizance, can have place here. Fees, as they appertain to the present subject, are such payments as the law allows, or prohibits, to persons, who, by their offices or their callings, are in some way or other appurtenant to the Court of Sessions of the Peace. They chiefly relate to the officers of the court, properly so called, to witnesses, and to Attornies. Enough has already been said respecting this subject, as it applies to the superior constituent parts of the Court of Session; any consideration of the fees to constables and others, in the various preliminary steps of prosecution, anterior to the sitting of the court, is foreign to the purpose here; those which the sheriffs used to demand on the acquittal or discharge of a prisoner have long been abolished; (t) those which are allowed to the clerk of the peace at the commencement of the proceedings before the court, are regulated by a statute before noticed; (u) and by another, (v) all prison fees, except in the King's Bench, the Fleet, the Palace Court, and the Marshalsea prison, are entirely abolished; and all fees paid to the clerks of assize, of the court, of the peace, or their deputies, as well on the acquittal as other discharge of a prisoner, are done away, and the officers forbidden to receive them : and any transgressions of these regulations are declared to be misdemeanors in the parties demanding them, and punishable accordingly. To indemnify the officers, however, it is provided by the same statute that they shall be paid out of the county rate sums proportioned to the amount of the fees they have been accustomed to receive.

Fees (for so the sums have been frequently, though erroneously, denominated, which are given with subpoenas to secure the attendance of witnesses) demand but very brief notice. It has been frequently decided, that, in civil cases, a witness is not bound to attend, in pursuance of a subpoena, unless a tender be made to cover all the reasonable expenses of his journey and necessary stay.(w) Attendance upon criminal prosecutions stands on a different ground. In cases of felony, and of certain aggravated

(t) 14 Geo. 3. c. 23. (u) 57 Geo. 3. c. 91. (v) 55 Geo. 3. c. 50. (w) Fuller v. Prentice, 1 H. B. 49. Holme v. Smith, Marsh. R.

410.

misdemeanors, the prosecutor and witnesses, on petitioning the court, will be allowed reasonable expenses, not only for their journey, &c. but if poor, for loss of time also; (x) it therefore appears that, in such cases, the necessity for making any advance of money with a subpœna is rather a mere matter of prudence, in order to prevent the witness from being impeded, for want of the means of travelling, than of necessity; nevertheless it should not pass unnoticed that the statute, which says that subpoenas may be served "in any part of the kingdom," provides, that no attachment shall issue for disobedience, unless reasonable charges of going to, and returning from, the place of trial, shall have been tendered. (y) This was doubtless inserted with a view to the very great distances to which witnesses might occasionally be called under the authority of this statute, without the means of bearing their expenses until they could make application for recompence.

The compensation, however, provided by statute for the attendance of witnesses in cases of misdemeanor is limited to the cases enumerated in the recent act, which will be considered hereafter; and therefore in criminal prosecutions for other misdemeanors it behoves the prosecutor, in order to secure the attendance of his witnesses. to tender them sufficient to cover all reasonable expenses,

Respecting the demands of Attornies upon their clients, it is sufficient here to observe, that they are compelled by statute (z) to deliver their bills, duly signed, a month before they can commence an action for payment; and that this provision extends to charges for business done at the sessions of the peace, as well as in the superior courts, (a) and such bill for such business is subject to taxation, in the same manner as in other cases. (b) This observation is elicited by the notorious practice of persons acting in the capacity of Attornies at sessions of the peace, who are not qualified by a compliance with the requisites of the statutes, who therefore do not presume to act in the other courts; and who, it appears by the decisions above referred to, cannot enforce the payment of any remuneration for their services in that of the sessions of the peace.

CHAPTER III.

OF THE JURISDICTION AND PRELIMINARY PROCEED-
INGS OF THE COURT OF QUARTER SESSIONS.

§ 1. Of the Matters over which the Court of Quarter Sessions
exercise Jurisdiction.

2. Of the Time and Form of opening the Court, taking

Oath, &c.

- 3. Of calling the Grand Jury; swearing and charging them,
and their Jurisdiction to prevent Offences.

- 4. Of dividing the Court of Sessions.

§ 1. OF THE MATTERS OVER WHICH THE COURT OF

QUARTER SESSIONS EXERCISE JURISDICTION.

THE jurisdiction of the Court of Quarter Sessions is criminal and civil, and arises from the commission of the peace itself, as settled under 18 Edw. 3. c. 2. and 34 Edw. 3. c. 1. and from the express provisions of nu

merous statutes.

sions have juris

By their commission, justices in session are directed to Offences over hear and determine "all felonies, poisonings, enchant- which the sesments, sorceries, arts magic, trespasses, forestallings, diction by the regratings, engrossings, and extortions, and all other terms of their crimes and offences, of which such justices may, or ought, commission. lawfully to inquire." Under the term Under the term "felonies," they have authority to try murder and manslaughter, although not specially named, (a) but they have been held to have no jurisdiction over forgery. (b) Under the term trespasses, they have authority to try all misdemeanors which either involve a breach of the peace, or have a tendency to produce it; among which latter class conspiracies have been included. (c) It has, indeed, been holden, that they have no power to try perjury, when the offence is prosecuted common law; (d) though if it be indicted under 5 Eliz. c. 9. (which rarely if ever happens) they have juris

at

Hawk. b. 2. c. 8. s. 33.

(b) Hawk. b. 2. c. 8. s. 38.

c) The King v. Rispal, 3 Burr. R. 1320. d) Hawk. b. 2. c. 8. s. 38.

diction over it by the express words of the statute. They have no jurisdiction to hear and determine treason, misprison of treason, or præmuniré, though they may cause parties accused of those offences to be arrested, and may examine and commit them.

It seems to be now clear that justices of the peace may try offences, though created by statute since the institution of their office, unless there is some special direction that the offence shall be heard and determined before another tribunal. (e) Where, indeed, a statute limits an offence to be tried before justices of oyer and terminer, the sessions cannot try it; for, though justices of the peace are authorized to hear and determine, they are not what the law intends by justices of oyer and terminer, as there is a distinct commission of that name. (f) Where, however, a statute creates a misdemeanor, and directs that the offender shall be committed unto the next Court of Oyer and Terminer, Great Session, or Gaol Delivery; and, in case of indictment found, shall plead, and be tried without traverse, he may be prosecuted at the Court of Quarter Sessions. (g) In the result it appears that the sessions have power to try all indictable offences, whether by common law or statute, with the exception of treason, misprison of treason, præmuniré, forgery, and perjury at common law; and the two last exceptions are not capable of being referred to any principle, as the reason assigned, that they do not directly tend to produce breaches of the peace, would equally apply to many other offences over which the sessions have undoubted jurisdiction. In a case where a question was raised, whether the sessions had power to try an indictment for a solicitation of a party to steal, (h) Lord Kenyon said, "I am clearly of opinion that it is indictable at the Quarter Sessions, as falling in with that class of offences which, being violation of the law of the land, have a tendency, as it has been said, to a breach of the peace, and are therefore cognizable by that

(e) See the King v. Cock, 4 M. and S. 71. The contrary is laid down in some of the books; but the principle of this decision seems conclusive on the subject.

(f) 1 Hale, 165.

The King v. Cock, 4 M. and S. 71. The King v. Higgins, 2 East, R. 18. To this exception the case of usury should be added, according to the Queen v. Smith, 2 Ld. Raym. 1144; but it is not now usual to proceed criminally for usury; and the principle of the modern cases is clearly at variance with the old decision.