of was committed, or, if in the county court, in the district; and the defendant may plead the general issue, and put any special matter in evidence under such plea; but no action is to be brought in any such county court if the justice object thereto, and if within six days after being served with a summons such justice, or his attorney or agents, shall give written notice (n) to the plaintiff that he objects to being sued in such court, all proceedings afterwards had in such court shall be null and void (s. 10).

5. No action to be brought for the manner in which a justice shall exercise a discretionary power given him (s. 4). (See Bassett v. Godschall, 3 Wils. 121.)

6. If a justice refuse to do an act, the Court of Queen's Bench may, by rule grounded on an affidavit of the facts, order him to do it, and no action shall be brought against him for doing it (s. 5).

7. If an action be brought where by this act it is prohibited, a judge may set aside the proceedings (s. 7).

8. For an act done by a justice in the execution of his duty as such justice, with respect to any matter within his jurisdiction, the action shall be on the case; and it shall be expressly alleged in the declaration that such act was done maliciously, and without reasonable and probable cause (s. 1).

9. For an act done by a justice without jurisdiction, or exceeding his jurisdiction (0), any person injured thereby, or by any act

(n) Vide form of notice, Oke's " Magisterial Formulist," pp. 504, 505. (0) Vide ante, p. 20, for the general ingredients to give jurisdiction. In the recent case of Leary v. Patrick and another (19 Law J. M. C. 211; 15 Q. B. 266; Magis. 95; 14 J. P. 334), a plaintiff had been convicted, before this act came into operation, under 6 & 7 Vict. c. 68, s. 2, of keeping an unlicensed theatre,-the conviction was silent as to costs; but the distress warrant issued thereon recited a conviction, not only for the penalty, but for 12s. costs, and directed both to be levied. Immediately after the conviction the plaintiff was ordered into custody, and detained twenty-four hours: Held, that in issuing the warrant of distress for costs the magistrates exceeded their jurisdiction, and that therefore the plaintiff was entitled to maintain trespass for the seizing of the goods. Held, also, that he was entitled to maintain trespass for the imprisonment, as the 5 Geo. 4, c. 18, s. 1, (now repealed,) could not justify a detention until the return of a bad warrant; and that the justices acted altogether without jurisdiction in verbally ordering the plaintiff into custody for an indefinite time. In a more recent case (Barton v. Bricknell, 20 Law J. M. C. 1; 16 Law T. 212; 14 J. P. 734; 15 J. P. 82), it was held that the 1st and 2nd sections of the 11 & 12 Vict. c. 44, must be read together, and that s. 2 applies only to those cases where the act, in respect of which the action is brought against the justice, is in itself an excess of jurisdiction; therefore, where a justice convicted the plaintiff in a penalty and costs, and adjudged that they should be levied by distress and sale, but exceeded his jurisdiction in ordering the plaintiff in default of payment to be set in the stocks, which however was never done, but the penalty was levied,—it was held, that an action

Particular pro

visions applicable to the acts of justices.

done under any conviction or order made or warrant issued by such justice thereon, may maintain an action in the same form and in the same case as he might have done before the passing of this act, without making any allegation in his declaration that the act complained of was done maliciously, and without reasonable and probable cause (s. 2); but see proviso in Nos. 11 and 12, post.

10. If the act complained of is shown to have been done maliciously, and without reasonable and probable cause, and a verdict is given against the justice, or if judgment by default, full costs of suit follow; and where there is a verdict for the justice, he is to have his costs as between attorney and client (s. 14). (Vide No. 16, post, where the plaintiff is not entitled to any costs.)

The particular provisions of the statute (11 & 12 Vict. c. 44), which, in addition to the general provisions above noticed, are applicable more immediately to the acts of justices in matters. within their cognizance, are as follows:

11. No such action [for an act done without or exceeding jurisdiction, as in No. 9, supra] shall be brought for an act done under a conviction or order until after such conviction [the words "or order" must be inserted to give effect to the real meaning (Ratt v. Parkinson, 20 Law J. M. C. 210)] shall have been quashed, either upon appeal or by the Court of Queen's Bench;

12. Nor for any thing done under a warrant issued to procure the appearance of the party, and which shall have been followed by a conviction or order, until after such conviction or order shall be so quashed;

13. Nor for an act done under a warrant to compel appearance (if not followed by a conviction or order, or if it be a warrant for an indictable offence), if a summons were previously issued and not obeyed (s. 2).

14. If one justice make a conviction or order, and another grant a warrant upon it, bonâ fide and without collusion, the action must be brought against the former, not the latter, for a defect in such conviction or order (s. 3).

15. After a conviction or order confirmed upon appeal, no action is to be brought against a justice who granted a warrant of distress or commitment upon it, for anything which may

of trespass for seizing the goods was not within section 2, and was not maintainable by reason of section 1. Vide also Ratt v. Parkinson (20 Law J. M. C. 208; 15 J. P. 372; 16 Law T. 488, Exch.)

have been done under the same, by reason of any defect in
such conviction or order (s. 6).

16. If the plaintiff in an action is entitled to recover, and shall
prove the levying or payment of any penalty or sum of
money under any conviction or order as part of his damages,
or if he prove that he was imprisoned, and seeks to recover
damages for such imprisonment, he shall not be entitled to
recover the amount of such penalty or sum so levied or paid,
or any sum beyond twopence as damages for such imprison-
ment, or any costs of suit whatsoever, if it shall be proved
that he was actually guilty of the offence of which he was
so convicted, or that he was liable by law to pay the sum
he was so ordered to pay, and (with respect to such impri-
sonment) that he had undergone no greater punishment than
that assigned by law for the offence of which he was so con-
victed, or for nonpayment of the sum he was ordered to pay
(s. 13).

17. No action to be brought for issuing a distress warrant against a person rated for a poor rate, by reason of any irregularity or defect in the rate, or by reason of such person not being liable to be rated therein (s. 4). See Weaver v. Price et al., 3 B. & Ad. 409; S. P. Furnley v. Worthington, 10 Law J. Rep. (N. S.) M. C. 81; Reg. v. Justices of Yarmouth, 14 J. P. 769.

4. OF THE CONSTITUTION AND MANAGement of BENCHES

OF MAGISTRATES.

stitution and

What.

A Bench of Magistrates, which is also called a Court of (4.) Of the ConPetty Sessions, is formed by the periodical, generally weekly, Management of as well as occasional meeting of the justices of the peace of Benches of Maboroughs, or of counties, ridings, or divisions within certain gistrates. recognized divisions or districts, regulated and divided by the statutes 9 Geo. 4, c. 43, and 6 Will. 4, c. 12, and by which power is given to change and alter their limits, and the parishes. comprising them. (Vide 9 Geo. 4, c. 43, and 6 Will. 4, c. 12, s. 2, which now apply to the county of Middlesex (14 & 15 Vict. c. 55, s. 17) (p)).

By a statute passed in the Session of 1849 (12 & 13 Vict. c. 18), it is enacted (s. 1), " that every sitting and acting of "justices of the peace, or of a stipendiary magistrate, in and

(p) Vide a form of statement of two or more justices for alteration, &c. of petty sessions division, in Oke's " Magisterial Formulist," p. 505.

Borough sitting

a petty sessions and petty sessional division.

Where held.

"for any city, borough, or town corporate having a separate "commission of the peace, or any part thereof, within England "and Wales, at any police court or other place appointed in "that behalf, shall be deemed a petty sessions of the peace; "and the district for which the same shall be holden shall be "deemed a petty sessional division, within the meaning of any "acts of parliament, already made or hereafter to be made, "having relation to such petty sessions, or to any business to "be transacted thereat."

The petty sessions for counties is generally held at the most important or central town of the division, either at one of the principal inns, or at the Town Hall, or other public building, if there should happen to be one; but a petty sessions may be held by any two justices on their mere private agreement, for the purpose of acting either ministerially or judicially in any cases within their authority; and anywhere in the division, except in certain cases, where the particular statute giving cognizance of the offence or matter requires it to be "at the usual place" for the division (10 & 11 Vict. c. 82, ss. 1, 2, Juvenile Offenders' Act), or at "special sessions for the highways to be held within the division in which the highway may be situated," &c. (5 & 6 Will. 4, c. 50, ss. 94, 95),-the statute in this, like many other cases (q), fixing the time and place of holding the several special sessions, or authorizing the justices so to fix them, and therefore the business to be transacted must take place at the place determined upon; and it is likewise the practice to hold petty sessions at one place only, and on the regularly appointed days of meeting, for the purpose of hearing those summary cases which the statutes require to be heard and determined by two or more justices "in petty sessions for the division," as under the Alehouse Act, 9 Geo. 4, c. 61, the Beerhouse Act, 1 Will. 4, c. 64, it being a great advantage to the public to know when such business is to be transacted, as well as to the justices, who may consequently make their summonses and warrants returnable on some definite day, whether they themselves can attend or not on such day to join with the others in hearing the cases.

(9) Licensing alehouses (9 Geo. 4, c. 61); licensing billiards (8 & 9 Vict. c. 109); licensing theatres (6 & 7 Vict. c. 68); appointing constables (5 & 6 Vict. c. 109); hearing parochial rate appeals (6 & 7 Will. 4, c. 96); allowing jury lists (6 Geo. 4, c. 50); granting licences to deal in game (1 & 2 Will. 4. c. 32, and 2 & 3 Vict. c. 35, s. 4); and appointing overseers (54 Geo. 3, c. 91).

sessions.

By the 2nd section of 12 & 13 Vict. c. 18, " in all cases Borough or "where at present there are not, or where hereafter there shall county may provide places "not be, any fit or proper place for the holding of such petty for holding petty "sessions within any such petty sessional division as aforesaid, "in any county, riding, liberty or division within England and "Wales, or within any city, borough or town corporate within "the same, it shall be lawful for the justices of the peace for

66

any such county, riding, liberty or division in general or 66 quarter sessions sssembled, and for the council or other 66 governing body in any such city, borough or town corporate, having a separate commission of the peace, respectively, if "they shall respectively think fit, from time to time direct that "fit and proper places be hired or otherwise provided for the "holding of such petty sessions of the peace within any such "petty sessional division as aforesaid, and that the expense "thereof and attendant thereon be paid out of the county "rate (r) or borough fund respectively, as the case may be;

provided always, that no such direction for hiring or other"wise providing any place for the holding of such petty ses"sions shall be given by the justices of any such county, "riding, liberty or division, so assembled as aforesaid, unless "an application in writing (s) for that purpose, signed by the "justices of the peace acting in such petty sessional division, or the major part of such justices, shall have been transmitted "to the clerk of the peace six weeks at the least before the "holding of the general or quarter sessions at which such di"rection shall be given; and the clerk of the peace shall cause "notice of such application to be published in some newspaper "circulating in the same county, riding, liberty or division, "and in which the advertisements of county business are "usually inserted, fourteen days at the least before the holding "of such general or quarter sessions." A proviso permits the use of the County Court for this purpose, at such rent and on such conditions as may be agreed on. By the 3rd section, when divisions run into two or more adjoining counties, the justices of all may appoint a place in either and jointly contribute to the expenses in the manner provided by the 11 & 12

(r) In many cases the hire of the room is paid for by the magistrates themselves, but more generally by their clerks out of the fees received, and in amount varying from £5 to £20 per annum.

(s) Vide form of application " Oke's Magisterial Formulist,” p. 506.