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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 20l. to whoever shall sue for the same, within three months, in the Courts of Westminster.":
In some counties the Justices had neglected to inspect the table of fees demanded by the clerk of the peace; in others there was no proof of their having been ratified by the Judges of assize; and scarcely in any two contiguous counties were the fees demanded similar. These circumstances occasioned difficulties to the clerks of the peace in recovering fees which were withheld from them, as well as to suitors of the respective courts of session in resisting exorbitant demands; wherefore, by a recent statute, the Justices of the Peace for every county, division, riding, liberty, city, and town, at their annual general, or their general quarter, sessions, (as the case is,) are directed to settle a table of fees to be taken by their respective clerks of the peace, throughout England and Wales, and the county palatine of Chester; and from time to time to alter and amend the same; subject nevertheless to confirmation by the next succeeding annual general, or general quarter, session respectively, or some adjournment thereof; as also to rectification by the Judges or Justices of assize, at the next assizes to be holden for the said counties, &c. respectively.
And no clerk of the peace, or his deputy, shall take or receive any larger fee than shall be allowed by such table, so confirmed and ratified, under a penalty of 5l. to be recovered in any of the Courts of Westminster.
And printed or written copies of such tables of fees shall be hung up in some conspicuous place, where the general or quarter sessions as aforesaid shall be as publicly holden; and so constantly kept, under a like penalty for every default of 5l. to be recovered as aforesaid.
26 Geo. 2. c. 14. This, it will be readily collected, is a specific penalty inflicted on the private or personal clerk of each individual justice, for demanding more than his legal fee for business done by him out of session. A similar offence by the public clerk, or clerk of the peace, becomes the offence of extortion, being committed by a public officer, and indictable as a misdemeanour.
Every suit or action however to be commenced within three calendar months after the offence.*
In Middlesex the table of fees is to be confirmed by In Middlesex. the three chiefs of the courts of law at Westminster.
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 10l. to be recovered in like manner.+
As the fees due to the clerks of Justices for the manual labour supposed to be performed by them, in taking informations, drawing warrants, &c. under the direction of their respective principals, are confined to the office of a magistrate out of session, except the last noticed point; viz. the publication of them; sufficient has been said on the subject here, where the object is confined as much as possible to the business of sessions.
Those monies under the denomination of fines, forfei- Fines, forfei tures, and penalties, which Justices are authorized by penalties. various statutes to receive on account of the king, or any other persons, out of sessions, are directed, by a recent act of parliament, to be paid annually, before the Michaelmas session, to the sheriff of the county; and a duplicate of the account of such fines, forfeitures, and penalties, 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 said Michaelmas session; but as these provisions relate also, so far at least as respects the Justices, to their duties out of sessions, for the reasons before stated, it is sufficient to refer to the statute itself.
The last matter to be noticed relative to the Justices, is Indemnities of their indemnities in the execution of their office.
"A Justice of the Peace is under the peculiar protection As to private of the law: for he is not punishable at the suit of the remedy by party, but only at the suit of the King, for what he doth as Judge in matters which he hath power by law to hear and determine."
Two-fold by public prosecution.
Justices not punishable for errors in judg
This, as a general position, is not less correct, than it is reasonable; but it is, like all general rules, subject to some exceptions, as where the erroneous conduct of the Justice is obviously corrupt or malicious, and injurious.*
His indemnity, however, in the execution of his office, necessarily resolves itself into two divisions here; viz. 1st. in the capacity of an individual magistrate; and, 2dly, as a member of the court of Quarter Session. On what concerns him as an individual magistrate acting out of Sessions, little shall suffice.
It may fairly be laid down, then, as a general position, that unless it clearly appear that the Justice hath been partial, and maliciously, or corruptly, influenced in the exercise of his authority, and hath consequently abused the trust reposed in him, the court above will not grant an information against him.
For the rule is invariable, that the court will never interto punish a justice of the peace for a mere error in
And even where a justice acts illegally, yet if he has acted honestly and candidly, without oppression, malice, revenge, or any bad view or ill intention whatsoever, the court will never punish him by the extraordinary course of an information; but leave the party complaining to their By action or ordinary remedy or method of prosecution, by action or by indictment. ‡
And it seems that the justice is not liable to be punished Not by both. both criminally, and civilly; for before the court will grant an information, they will require the party to relinquish his civil action, if any such has been commenced : and even in the case of an indictment, and although the indictment be actually found, yet the attorney-general (on application made to him) will grant a noli prosequi upon such indictment, if it appear to him that the prosecutor is determined to carry on a civil action at the same time. §
* 1 Bur. R. 556.
+ Ib.-1 Term. R. 653. 692.
§ 2 Bur. R. 719.
And it is further provided by statute, "that no writ Must have shall be sued out against, nor any copy of any process at the suit of a subject shall be served on, any Justice of the Peace, for any thing by him done in the execution of his office, until notice in writing of such intended writ or process be delivered to him,* or left at the usual place of his abode, by the attorney for the party who intends to sue, at least one calendar month before the suing out, or serving the same; in which notice shall be clearly and explicitly contained the cause of action, on the back of which notice. shall be indorsed, the name of such attorney,† and the place of his abode, who shall be entitled to the fee of 20s. for preparing and serving such notice.
And unless it be proved upon the trial that such notice was given, the Justice shall have a verdict and costs." ‡
And further, by a still more recent statute, "that in all Action on actions whatever, which shall be brought against any Jus- account of any tice of the Peace, for or on account of any conviction under any act of parliament; or for any act, matter, or thing whatsoever, done or commanded to be done by such Justice, for the levying any penalty, apprehending any party, or for or about the carrying of any such conviction into effect; in case such conviction shall have been quashed, the plaintiff in such action, besides the value and amount of the penalty levied, in case any levy thereof shall have been made, shall not be entitled to recover any more damages than 2d. nor any costs; unless it shall be expressly alleged in the declaration, and which shall be in an action upon the case only, that such act were done maliciously, and without any reasonable and probable cause.
And such plaintiff shall not be entitled to recover against such Justice any penalty levied, nor any damages or costs whatsoever, in case such Justice shall prove at the trial that such plaintiff was guilty of the offence whereof he had been convicted, or on account of which he had been
See Lovelace v. Curry, 7 T. R. 631.
+ The surname at length, but the initial of the Christian name may be sufficient. Mayhew v. Locke, 2 Mar. R. 377.
↑ 24 Geo. 2. c. 44.
apprehended, or had otherwise suffered, and that he had undergone no greater punishment than was assigned by law to such offence. "*
These instances of protection, it will be observed, relate only to the private duties of Justices out of session, and are sufficient for the purpose of shewing generally how much they are the objects of favour by the law. For further instructions, then, on this first division of the subject, other authorities must be referred to,† while we pass on to the proper object of present consideration, "the indemnity under which Justices perform their duties in session."
And it appears that similar protection is afforded to the Justices in session, that we have seen is held out to them when acting in their individual capacity, whether in repelling insults committed against their dignity, or in ex, cusing errors committed by them.
During the exercise of a Magistrate's duty, whether in taking an examination of a person accused of an offence, or other legal exercise of his authority, if any person offer any indignity to, or utter any abuse of, such Magistrate or Justice, or commit or attempt to commit any of those offences which are understood in law by the term "breach of the peace, or of good behaviour;" he may be committed for the obstruction of justice "till he be discharged according to due course of law," that is after indictment; or he may be committed for a specified time, or to the sessions, for the breach of the peace, &c.; according as the particular description, or the enormity of the contempt may require.
So every contempt committed in the face of the Court is the face of the punishable instanter by imprisonment, for this is a power necessarily attached to every court of justice; ‡ such as rude and contumelious behaviour, obstinacy, prevarication; breach of the peace, disturbance; treating with disrespect the process of the court; § arresting any suitor of the court in the face
43 Geo. 3. c. 141.
+ See Pract. Expos. title PEACE, JUSTICES OF, and other authorities there mentioned.
2 Hawk. c. 1.- 6 T. R. 530.
§ 4 Black. Com. 285. To enumerate particular instances of offences