CHAPTER XV. OF TRESPASSES AND INJURIES COMMITTED IN EXECUTION OF WARRANTS AND ORDERS OF JUSTICES-RESPONSIBILITY OF MAGISTRATES, CONSTABLES, THEIR ASSISTANTS, AND PERSONS SETTING THEM IN MOTION-REMEDIES FOR WRONGS DONE UNDER COLOR OF CONVICTIONS AND WARRANTS OF JUSTICES. SECTION I.-Of trespasses in the execution of warrants and orders of justices.— Jurisdiction of justices-Summary conviction-Liability of justices for misconduct-Search-warrants-Liability of justices acting without jurisdictionTheir exemption from actions where no objection was taken to their jurisdiction-Interested justices-Wrongful commitments-Summary convictions, orders, and adjudications-Unlawful proceedings without information-When complaint cannot be withdrawn-Ouster of jurisdiction by claim of title-Exercise of discretionary power-Wrongful ministerial acts-Convictions upon by-laws of the drawing-up of convictions and orders-Disclosure of jurisdiction-Warrants of distress and commitment-Power of appeal-Execution of convictions and orders after notice of appeal-Statement of a case— -Quashing of convictions and orders-Commitment for contempt-Removal by certiorari-Proof of circumstances calling for interference-Amendment of orders, etc.-Habeas corpus-Costs ordered by justices. SECTION II.--Duties and responsibilities of constables.-Exemption of constables and their assistants from liability for acts done in obedience to a warrantExcess of authority on the part of constables. SHOTION III.-Remedies for wrongs done under color of convictions and warrants of justices.-Replevin of chattels distrained-Actions against justices for things done without jurisdiction, for malicious convictions, commitments, and distresses-Effect of the existence of a power of appeal-Vexatious actionsSetting aside actions-Limitation of actions-Notice of action-Tender of amends-Parties, pleadings, defences, and evidence-Damages recoverable. SECTION I. OF TRESPASSES AND INJURIES COMMITTED IN THE EXECUTION OF WARRANTS AND ORDERS OF JUSTICES. 960 Of the jurisdiction of justices of the peace(a).-The ancient conservators of the peace, the nature and extent of whose power and authority are now unknown, were formerly elected by the freeholders of the county; but since the reign of Edward III. they have boen appointed by the crown. By the 34 Edw. 3, c. 1, it is enacted, that in every county in England there shall be assigned for the keeping of the peace one lord, and with him three or four of the most worthy of the county, with some learned in the law; and they shall have power to restrain offenders, rioters, and all other barrators, and cause them to be imprisoned and duly punished according to the law and customs of the realm; and inform themselves of pillors and robbers who go wandering about and will not labor, and put them in prison, and take of all them that be not of good fame sufficient surety and mainprize of their good behavior, and duly punish others; and hear and determine, at the king's suit, all manner of felonies and trespasses done in their several counties, according to the laws and customs of the realm. From this statute, therefore, it appears that justices of the peace were to be appointed by commission from the crown; that they were to have authority to hold a court, and were to be judges of a court of record. Courts accordingly were holden by them for hearing and determining offences within their cognizance; records were kept by them of their proceedings in these courts, and each justice named in the commission came to be called custos rotulorum, or keeper of the records and rolls of the the county(b). 66 The power to hear and determine" gave justices of the peace authority only to hear and determine through the medium of the common-law method of inquisition, by the verdict of a jury, "for that is implied by law, and the court will adjudge as the law appoints, although it be not so expressed "(c). Hence, justices were under the necessity of holding sessions and assemblying juries for the trial of all offences of which they had (a) See ante, p. 322. (b) Holt, C.J., Harcourt v. Fox, 1 Show. 507. (c) See Holland's case, 4 Co. 74a, 74b. cognizance; and these sessions were by 36 Edw. 3, stat. 1, c. 12, commanded to be held at least four times a year. Special sessions were afterwards directed to be held for executing certain statutes which the justices were charged to execute, and they were enjoined the diligent perusal and study of these statutes at the Easter sessions in every year(d). Where a trial or other proceeding is commenced at one sessions, and is continued and concluded at another, the continuity of the proceeding and the jurisdiction of the court must be preserved by a formal adjournment, otherwise the proceeding is coram non judice, and will be a nullity(e). The form of the commission of the peace as it exists at present, is said to have been settled by the judges in the 33rd year of Queen Elizabeth's reign(f). It assigns the several persons named in it, and every one of them jointly and severally, the queen's justices, to keep the peace in a particular county, and to cause to be kept all statutes made for the good of the peace and the quiet government of the people; and to punish all who offend against any of the said statutes; and to cause to come before them all who shall threaten any of the people as to their persons, or the burning of their houses, in order to compel them to find surety for the peace or good behavior; and if they shall refuse to find such surety, to cause them to be safely kept in prison till they shall find it: also to inquire, upon the oath of good and lawful men of the county, of all felonies, trespasses, and offences, of which justices of the peace may lawfully inquire, etc.(g). Besides the general authority confided to justices by the commission of the peace, they are clothed by various Acts of Parliament with a special and particular jurisdiction over particular offences, which jurisdiction must be exercised sometimes by one justice and sometimes by two; sometimes in their sessions, and sometimes out of their sessions. Whenever these statutory powers are exercised by justices, care must be taken that the special authority is strictly pursued. Every single justice has regularly a jurisdiction for the preservation of the peace through the whole county by virtue of his commission, but the power of hearing and determining offences is by the com (d) 33 Hen. 8, c. 10. (e) Rex v. West Torrington, Burr. S. C. 293. Reg. v. Payn, 34 Law J., Q. B. 59. (g) Dalt. J. P. Ch. 5. * mission given to two or more; and whenever a thing is required to be done by two justices, they must both be present at the execution of it. A justice has no power to do any judicial act out of his county, but he may do a merely ministerial act, such as the taking of an information(h). A justice of the peace has jurisdiction to require sureties for good behavior from persons charged with aggravated defamation, and with persisting in a continued course of libelling. Therefore, where a person persisted in writing libels upon a wall against a private individual, and was required to find sureties for his good behavior, and in default was committed to prison, it was held that the justice had acted in a matter over which he had jurisdiction(i). If the charge be of an offence over which, if the offence charged be true in fact, the magistrate has jurisdiction, the magistrate's jurisdiction cannot be made to depend upon the truth or falsehood of the facts, or upon the evidence being sufficient or insufficient to establish the corpus delicti, nor can the jurisdiction be ever held to depend upon the value or credibility of the evidence(). 961 Jurisdiction of justices residing or being out of the county of which they are justices. A justice of the peace for one county, riding, division, liberty, city, borough, or place, may act for the same whilst residing, or being in an adjoining county, riding, etc., of which he is also a justice; and a justice of the peace for any county at large, riding, division, or liberty, may act as such within any city, town, or precinct next adjoining thereto, or surrounded thereby, being a county of itself, or otherwise having exclusive jurisdiction(k). 962 Jurisdiction of borough justices under the Municipal Corporation Act.— By s. 111 of 5 & 6 Wm. 4, c. 76, county justices have concurrent jurisdiction with borough justices in boroughs which have not received the grant of a separate court of quarter sessions. All offences committed within any borough against the provisions of any local Act of Parliament, are cognizable by the justices of the borough, and such justices possess all the powers and jurisdiction with respect to such offences which were formerly possessed by county justices(). These, and all other offences punishable in boroughs upon summary conviction, must be prosecuted in conformity with the pro (h) 2 Hale, P. C. 51. 4) Haylock v. Sprake, 22 Law J., M. C. 72. (j) Cave v. Mountain, 1 M. & Gr. 262. (k) 11 & 12 Vict. c. 42; 26 & 27 Vict. c. 48, s. 6, 35; 26 & 27 Vict. c. 77. (7) 7 Wm. 4, & 1 Vict. c. 78, s. 81. |