perpetrated, or which shall happen to be there done or attempted; and also of all those who in the aforesaid counties in companies against our peace, in disturbance of our people, with armed force have gone or rode, or hereafter shall presume to go or ride; and also of all those who have there lain in wait, or hereafter shall presume to lie in wait, to maim, or cut, or kill our people; and also of all victuallers, and all and singular other persons, who, in the abuse of weights or measures, or in selling victuals, against the form of the ordinances and statutes, or any of them therefore made for the common benefit of England, and our people thereof, have offended or attempted, or hereafter shall presume in the said county to offend or attempt; and also of all sheriffs, bailiffs, stewards, constables, keepers of gaols, and other officers, who in the execution of their offices about the premises, or any of them, have unduly behaved themselves, or hereafter shall presume to behave themselves unduly, or have been, or shall happen hereafter to be careless, remiss, or negligent in our aforesaid county; and of all and singular articles and circumstances, and all other things whatsoever, that concern the premises or any of them, by whomsoever and after what manner soever, in our aforesaid county done or perpetrated, or which hereafter shall there happen to be done or attempted in what manner soever; and to inspect all indictments whatsoever so before you or any of you taken, or to be taken, or before others late our justices of the peace in the aforesaid county, made or taken, and not yet determined; and to make and continue processes thereupon (m), against all and singular the persons so indicted, or who before you hereafter shall happen to be indicted, until they can be taken, surrender themselves, or be outlawed; and to hear and determine all and singular the felonies, poisonings, enchantments, sorceries, arts magic, trespasses, forestallings, regratings, ingrossings, extortions, unlawful assemblies, indictments aforesaid, and all and singular other the premises, according to the laws and statutes of England, as in the like case it has been accustomed, or ought to be done; and the same offenders and every of them for their offences, by fines, ransoms, amerciaments, forfeitures, and other means, as according to the law and custom of England, or form of the ordinances and statutes aforesaid, it has been accustomed or ought to be done, to chastise and punish.

Provided always, that if a case of difficulty upon the determination of any of the premises before you or any two or more of you shall happen to arise, then let judgment in no wise be given thereupon, before you or any two or more of you, unless in the presence of one of our justices of the one or other bench, or of one of our justices appointed to hold the assizes in the aforesaid county. And therefore we command you and every of you, that to keeping the peace, ordinances, statutes, and all and singular other the premises, you diligently apply yourselves; and that at certain days and places which you or any such two or more of you as is aforesaid shall appoint for these purposes, into the premises ye make inquiries; and all and singular the premises hear and determine, and perform and fulfil them in the aforesaid form, doing therein what to justice appertains according to the law and custom of England; saving to us the amerciaments, and other things to us therefrom belonging. And we command by the tenor of these presents, our sheriff of W. that at certain days and places, which you or any such two or more of you as is aforesaid shall make

(m) Viz. after indictment; e. g. venire, distringas, capias, or exigent, as the case

may be, Dalton, ch. 193; 5 Burn's J., 29th edit. 971.

known to him, he cause to come before you or such two or more of you as aforesaid, so many and such good and lawful men of his bailiwick (as well within liberties as without), by whom the truth of the matter in the premises shall be the better known and inquired into.

Lastly, we have assigned to you the aforesaid A. B., keeper of the rolls of our peace in our said county; and therefore you shall cause to be brought before you and your said fellows, at the days and places aforesaid, the writs, precepts, processes, and indictments aforesaid, that they may be inspected, and by a due course determined as aforesaid.

In witness whereof we have caused these our letters to be made patent. Witness ourselves at Westminster, &c.

Number of Justices requisite to form a Session.]-It will be ob served that this commission comprises two assignments; the first relating to the power of justices out of session, the second to the power of justices in session. To compose a general or quarter session of the peace, there must be at least two justices, one of whom must be of the quorum, or of the number whose names are repeated in the clause "of whom some one of any of you the aforesaid A. B., &c., we will shall be one. In former times this clause imparted a substantial distinction, as only a select number, supposed to possess higher qualifications for the office than their companions, were enumerated in this clause, without the presence of one of whom others could not act in session (n). But progressive changes in the state of society gradually made this distinction unnecessary and invidious; and it was narrowed both by statute, and by the mode of framing the commission (o).

Thus by 26 G. II. c. 27, no act, order, adjudication, warrant, indenture of apprenticeship, or other instrument, done or executed by two or more justices, which doth not express that one or more of them is of the quorum (although the statutes respectively require that one of the justices shall be of the quorum), shall be impeached, set aside, or vacated for that defect only. By 7 G. III. c. 21, in cities, boroughs, towns corporate, franchises, and liberties, which have only one justice of the quorum, all acts, orders, adjudications, warrants, indentures of apprenticeships, or other instruments done or executed by two or more justices, qualified to act therein, shall be valid, although neither

(n) 1 Bla. Com. 351.

(0) In 3 H. VII. it was held that "if one which is not of the quorum will be so bold as to rebuke one that is of the quorum, he and his companions may not commit him to prison for it," Fitzherbert's Justice del Peace, 3; for inter

pares non est potestas, and the authority of all the justices at the sessions is equal, except in special cases set forth in the commission and statutes, 19 Vin. Ab. 343, cites Lambard's Eirenarcha, lib. iv cap. 3. See post, p. 90.

G

of the said justices shall be of the quorum. And now, it is the practice to include all the magistrates in the quorum clause, enumerating the whole of the names of those who by the previous clauses have been constituted justices. It may therefore now be assumed, that any two, or more, of the persons named in the commission of the peace for any county, division, riding, or liberty, possessing the qualification, and having complied with the form required by law, are competent to hold a general quarter session of the peace, for the district over which their commission extends. These qualifications and forms we have now to

enumerate.

Qualifications.]-The old statutes generally direct respecting justices of the peace, that “ they shall be of the most sufficient knights, esquires, and gentlemen of the law" (p). (p). They must be resident within the counties for which they act (q). And they must be entitled, in law or equity, for their own use in possession, to a freehold, copyhold, or customary estate, for life, or for some greater estate, or an estate for some long term of years, determinable upon one or more lives, or for a certain term originally created for twenty-one years or more, in lands, tenements, or hereditaments, in England or Wales, of the clear yearly value of 1007., above what will discharge all incumbrances affecting the same, and all rents and charges payable out of the same; or be entitled to the immediate reversion or remainder of and in lands, &c. leased for one, two, or three lives, or for any term of years determinable on the death of one, two, or three lives, upon reserved rents of the clear yearly value of 3007.; and if any justice shall act without such qualification, he shall forfeit 1007. (r).

(p) 13 R. II. st. 1, c. 7; and 2 Hen. V. st. 2, c. 1, but practising attornies or solicitors cannot be justices (6 & 7 Vict. c. 73, s. 33), except in cities or towns being counties of themselves, or in cities, towns, cinque ports or liberties having justices within their limits.

(q) 2 Hen. V. st. 2, c. 4; but by 28 G. III. c. 49, any justice acting as such for any two or more counties, being adjoining counties, may act in all matters and things whatsoever concerning or relating to any or either of the said counties, provided he be resident in one of them.

And by 1 & 2 G. IV. c. 63, justices for counties at large who may reside within any place, not being a county of itself, but having exclusive jurisdiction,

are enabled to act within such place for the county at large in which such place is situate, or which it may adjoin.

And by 2 & 3 Vict. c. 82, justices of peace acting for any county, may act in all things whatsoever concerning or in anywise relating to any detached part of any other county which is surrounded in whole or in part by the county for which such justices act. Constables are to obey their warrants, and expenses occasioned by any act of such justice in or with respect to such detached part shall be repaid by the county to which it belongs.

(r) 18 G. II. c. 20, s. 1. It is not sufficient that the party acting as magistrate be possessed of the qualification required at the time of his taking upon

To secure the object of these provisions, it is enacted, that no person shall be capable of acting as a justice of the peace, who shall not, before he acts, at some general or quarter session for the county, or division, &c., for which he intends to act, take and subscribe the following:

Oath (s). I, A. B., do swear that I truly and bond fide have such an estate in law or equity, to and for my own use and benefit, consisting of [specifying the nature of such estate, whether messuage, land, rent, tithe, office, benefice, or what else] as doth qualify me to act as a justice of the peace for the county, riding, or division of

—, according to the true intent and meaning of an act of parliament made in the eighteenth year of the reign of his Majesty King George the Second, entitled 'an act to amend and render more effectual an act passed in the fifth year of his said Majesty's reign, entitled an act for the further qualifications of justices of the peace," and that the same [except where it consists of an office, benefice, or ecclesiastical preferment, which it shall be sufficient to ascertain by their known and usual names] is lying, or being, or issuing out of land, tenements, or hereditaments, being within the parish, township, or precinct of (or in the several parishes, townships, or precincts of and -) in the county of (or in the several counties of -) (as the case may be) (t).

and

This oath so taken and subscribed, is to be kept among the records of the sessions, by the clerk of the

himself the office, but he must continue to possess it so long as he continues to act, or he will incur the penalty. See Pack, q. t. v. Tarpley, Clk. 1 P. & D. 478; 9 Ad. & E. 468.

An action was brought to recover penalties for acting as a justice of the peace on several occasions in and for the county of York, not being at the said several times in possession of the property required by law. The defendant, had been appointed a justice of the peace for Yorkshire when he was possessed of great wealth, had sued out his writ of dedimus potestatem, delivered in a schedule of the property on which he claimed bis qualification, taken the oaths required, and acted several years as a magistrate. Subsequently, however, he was confined in York Castle at the suit of certain creditors, from which place he was released by delivering a schedule, and making an assignment of all his property, under the then insolvent act of 53 Geo. III.: so that he could not have any property previously but what such assignment must have taken from him; and if he came into possession of any after, to avail himself of it, as a defence to this action, he must have

peace, who is to deliver an attested

given notice of it, which he had not done. Subsequent, however, to his liberation, he had continued to act as a justice of the peace; and for an act so done, this action was commenced. It was shown that the wife of the defendant was in the receipt of more than sufficient to operate as a qualification; but it was replied that the defendant could have no controul over this property, or he ought to have assigned it over with the rest of his effects at the time of his liberation under the insolvent act; and if it were indeed, as must be presumed by his not having so done, the separate provision of his wife, over which he had himself no controul, it would not serve him as a qualification, and an answer to this action. Wood, B., ruled that the defendant had not established any qualification, and directed a verdict against him.

It was also decided in this case that a party, sued for acting as a justice without a qualification, is not entitled to notice of action, Wright v. Horton (1817). Holt's C. N. P. 458.

(s) 18 G. II. c. 20, s. 1.

(t) Need not be taken by borough justices, 5 & 6 W. IV. c. 76, s. 104, and see post, p. 85.

copy of it to any person requiring the same, on paying 2s. for it, and such attested copy will be evidence in any suit brought under the statute which requires the qualification (u). Any person who may act as a justice without having taken and subscribed the above oath respecting his qualification, or without being actually qualified according to the declaration contained in it, is liable to a penalty of 1007., one moiety of which is forfeited to the poor of the parish in which he resides, and the other moiety to whoever will sue for the same, in any of the courts of Westminster, within six months after the commission of the offence. No notice of action is necessary (x). The acts of a justice as such are not avoided by his not having taken the qualification oath (y).

Proof of Qualification lies on Defendant.]-On the trial of such an action, the proof of this qualification lies on the defendant, and he cannot avail himself of any lands, &c. not specified in his oath, unless he deliver a notice of his intention to insist on such property, &c., to the plaintiff or his attorney, in writing, at or before the time of pleading, specifying such lands, and the parish and county where situated, except the qualification be derived from offices, benefices, or ecclesiastical preferments, as excepted in the above form (z).

Where the lands contained in the said oath or notice are, together with other lands, liable to any charges, rents, or incumbrances, for the purposes of this act, such lands are deemed chargeable only so far as the other lands are insufficient to pay (a). And where the qualification, or any part thereof, consists of rent, it is sufficient to specify in such oath or notice, so much of the lands out of which such rent is issuing as are of sufficient value to answer such rent (b).

Discontinuance of Actions.]—After such notice given, the plaintiff in the action may, if he think fit, discontinue the action on payment of costs, with leave of the court; but if he discontinues otherwise, or is nonsuit, or has a verdict against him, the defendant will be entitled to treble costs (c). Only one penalty can be recovered in reference to any act done before the commencement of an action (d); no proceedings can be had, after notice, in any other action subsequently commenced, for an offence prior to the first action, if it has been commenced boná