Cannot be appointed in any now inhabiting and residing within the same county, to be Clerk of the Peace of the said county, to have, hold, execute, and enjoy the office of Clerk of the Peace of the county aforesaid, by himself or his sufficient deputy; and by himself or such deputy to have, receive, and take to the use of him the said O. B. all fees, wages, perquisites, advantages, emoluments, and appurtenances whatsoever, to the said office belonging, or in any wise appertaining, for and during so long a time as the said O. B. shall well behave and demean himself in the said office ;in testimony whereof the said Thomas Earl of...... hath hereunto set his hand and seal, the .... day of...... in the ..... year of the reign of our Sovereign Lord George the Third, now King of the United Kingdom of Great Britain and Ireland, and in the year of our Lord..... And the custos cannot appoint him in any other manother manner. ner than as prescribed by the statute; for if he do, he is no Clerk of the Peace; as if he appoint him during pleasure, instead of so long as he shall well demean himself, he does not execute the authority given him by the act, and so his nominee is no Clerk of the Peace.* Has an estate for life in the •ffice. Misbehaviour in his office. The statute having directed that he shall enjoy his office "so long as he shall well demean himself," he has of course an estate for life, or freehold, in the office, on the mere condition of behaving well; therefore if he perform the condition he cannot be dispossessed, nor is his estate forfeited by the death or removal of the custos. † "But if he shall misbehave himself in his office, the justices of the peace in their general quarter session, or the major part of them, on complaint in writing exhibited against him, may upon examination and due proof thereof, openly in the said session, suspend or discharge him: and in such case the custos rotulorum shall appoint another person to the office; and in case of refusal or neglect so to appoint before the next general quarter session, the justices then and there assembled may appoint one." It is scarcely possible to adduce examples of all the means by which a Clerk of the Peace may be said to be guilty of misbehaviour in his office, so as to forfeit his situation; but extortion has been decided to be one of them, insomuch * 12 Mod. Rep. 42. + 1 Wm. & Mar. c. 21. + 4 Mod. 167. 173. 293. that upon proof in a summary way, either at the same, or any other sessions to which the matter may be adjourned, he may be superseded or discharged.* And the order of session removing him, need not set out the evidence on which it is founded. + And every Clerk of the Peace, before he enters upon his office, shall in open session take the following oath :‡ I, A. B. do swear, that I have not, nor will, pay any sum or Oath of office. sums of money, or other reward whatsoever, nor have given any bond or other assurance to pay any money, fee, or profit, directly or indirectly, to any person or persons whomsoever, for such nomination or appointment. So help me God.. He must also take the oaths of allegiance, supremacy, Other oaths. and abjuration, and comply with the usual forms of persons qualifying for offices. solicitor. "No Clerk of the Peace, or his deputy, shall act as Not to act as a solicitor, attorney, or agent, or sue out any process at any general or quarter sessions, where he shall execute the office of Clerk of the Peace or deputy, on pain of 50l. to him who shall sue in twelve months, with treble costs." the sheriff out Beside issuing the processes, and recording the proceed- To certify to ings, of the sessions, he is directed by statute "to certify lawry. into the King's Bench the names of such as shall be outlawed, attainted, or convicted of felony." || And by a recent statute, viz. 55 Geo. 3. c. 49. to make annual return to the secretary of state of the prisoners tried for criminal offences within his jurisdiction. "Also to deliver to the sheriff, within ten days after To deliver September 29, yearly, a perfect estreat or schedule of all estreats. fines, and other forfeitures, in sessions." ** He is also obliged to deliver duplicates of these upon oath yearly to the barons of the exchequer; but as this portion of his duties is foreign to the limits of the subject under discussion, we must pass on to others, which the practice of the court of session of the peace imposes on * Mod. Cas. 192. + Strange's Rep. 996. § 22 Geo. 2. c. 46. * 22 & 23 Car. 2. c. 22. E Fees. him. A general view of these is all that can be useful, without enumerating such as are only occasional, or directed by statutes of local interest, as filing the rules of friendly societies, and the lists of insolvent debtors seeking relief from the sessions, registering the recognizances of alehouse-keepers, and other matters of similar kinds. It is his duty, then, to read the commission, and the king's proclamation-to administer all oaths, whether to persons qualifying for offices, constables, jurors, or witnesses. Divers acts of parliament are directed to be read, and if not neglected, are read by the Clerk of the Peace. He calls upon the parties under recognizance, whether to prosecute, plead, or give evidence. He draws the indictments, arraigns the prisoners, and presents the bills to, and receives them from, the grand jury. He draws copies of traverses, makes out subpoenas and bench warrants, takes recognizances, receives the verdicts, and (where the undignified practice prevails of the chairman not pronouncing the judgment of the court), he is the organ through which its opinion is given on subjects of municipal and parochial law, and its sentence on criminal offenders is passed. Further to enumerate his general duties would be superfluous, as they are partly to be collected from the established table of fees, and the remainder are pointed out by the different statutes which impose them, and which prescribe his remuneration. The more ancient fees of the Clerk of the Peace are established by usage, which gives them a sanction equivalent to that of the legislature. It has therefore been decided that every Clerk of the Peace may legally demand such fees as have been immemorially taken within his county, on such subjects with which no statute has interfered ;* and that the justices in session have no controul over them, so as either to augment, abridge, or remit them: and as they have no power to alter, so they have none to compel payment, but he must recover them by action. If * See stat. 57 Geo. 3. c. 91. ↑ 1 Ld. Raym. 703.-12 Mod. Rep. 608. they be such fees as are certain and determined, an action of indebitatus assumpsit will lie, and if uncertain, quantum meruit. It is said, however, that he is not bound "to enter judgment, or the like" at the suit of any, without having his legal fee for the same; but the distinction is taken, that if the Court order any thing, without the suit of another, viz. ex officio, he is compellable to enter the same without fee.* But if, by colour of his office, he take more than his due, Extortion. it will be extortion, and punishable by fine and imprisonment, on indictment at common law. It should seem also that he is punishable under the statute 3 Edw. 1. c. 26, which inflicts for the penalty "the yielding twice as much as was received, beside being punished at the King's pleasure;" for though generally that statute has been construed to extend only to offices of anterior date, it has been decided to apply to Justices of the Peace taking fees contrary to their oath at their admission into office, though that office was not instituted till long after. † Modern statutes having imposed a prodigious addition of business upon justices in the courts of quarter sessions, their officers have, of course, additional duties to perform, especially the Clerk of the Peace. In most of these instances, however, the particular statute imposing the burthen, apportions also the remuneration. There would be much difficulty, and no utility, result, from a particular enumeration of all these acts. It is sufficient, therefore, in this place to observe, that where a statute has determined his fee, it is equally extortion in him to demand more, as in the case of fees sanctioned by prescriptive usage; and, secondly, that where no particular sum has been prescribed, an analogy, by no means difficult to ascertain and observe, might well be resorted to as the guide of his discretion. However, the statute of 57 Geo. 3. c. 91, recently referred to, has rendered further discussion of this subject unnecessary. The suitors of the court are not only protected against the corruption of the Clerk of the Peace, by the remedies already pointed out, but to a certain degree also against Negligence of his negligence, by a particular statute, which enacts that the Clerk of the Peace. Coroner. "only two shillings shall be paid to him for drawing an THE CORONER.-The office of Coroner is a very ancient one by the common law. Before the institution of justices, the Coroners were conservators of the peace, and persons of great authority and dignity; ‡ insomuch, that none were eligible to the office under the degree of knights. § Since the appointment of justices of the peace, much of the power with which Coroners were invested, is superseded thereby, and transferred to the former. They are nevertheless still considered by all writers on the subject, as part of the proper attendants upon the courts of quarter sessions; || though it may be difficult perhaps to assign a sufficient reason for it now, since the preservation of the peace has ceased to be a part of their office; for it does not appear that they have any prescribed duty to perform there, except occasionally, and in the capacity of suitors, or of defendants.** * 10 & 11 W 3. c. 23. ↑ 4 Inst. 471. + Lilly's Pract. Reg. 71. 4 Inst. 471. 3 Edw. 1. c. 10.-However by 14 Edw. 3. c. 8. no Coroner shall be chosen for a county unless he have land in fee sufficient in the same county, whereof he may answer to all manner of people. And where chosen by the county, if he be insufficient, the county shall answer for him. 2 Hale, 56. Dalt. c. 185.-Cro. Cir. Com. 34. This observation is perfectly consistent with what is advanced elsewhere, as the duty imposed on Coroners, although originating at, and emanating from the session, does not require their attendance in it. |