has no jurisdiction to convict in a case of assault or trespass, where title to corporeal hereditaments comes in question :—

"In this case, upon a rule for setting aside an order for a prohibition, the question was, whether a prohibition should be granted to a county court for an excess of jurisdiction not appearing on the proceedings, although the writ was moved for after judgment in that court. And we answer in the affirmative. There is reason for refusing the writ after judgment in the courts where the proceedings set forth the detail of the matter, and the party has the opportunity of moving after judgment. Then, if he chooses to wait and take the chance of judgment in his favour, he may be held incompetent to complain of excess of jurisdiction if judgment is against him. There is, however, good reason for departing from this principle where the defect is apparent on the face of the proceedings below; because the complaint in that case does not rest on the evidence of the complainant; and if such a defective record were allowed to remain, and to support a judgment, it might become a precedent; that which was in truth an excess of jurisdiction might be considered to have been held to be legal. But this principle has no application to the county courts: the proceedings there do not shew the matter in any formal way; the excess of jurisdiction may depend only on the defence set up orally by the defendant, and may only appear in the course of the trial, and judgment may follow almost as soon as the defence is understood. Under such circumstances, there would be no opportunity of moving for a prohibition before judgment; and, unless the motion was allowed after judgment, the excess of jurisdiction would be without redress. In Jones v. Owen (z), Pattison, J., issued a prohibition to the county court after judgment, for defect not appearing in the written proceedings. So also did this court in Thompson v. Ingham" (a).

Practice.] If the court has no jurisdiction as to part of the proceedings, a partial prohibition may be granted (b). Motions for prohibitions may be made on any day during the sitting of

(2) 5 D. & L. 669. (a) 14 Q. B. 710.

(b) Joseph v. Henry, 19 L. J. Q. B. 369. 2 Arch. P. 9th ed. 1628.

the court in term time, or as it would seem to a judge in chamber during vacation (c). If one court refuse the application, it may be made to another (d); and, it has been said, that no fresh matter may be introduced into the affidavits, which could have been presented to the court by which the rule was discharged (e).

Affidavits.] The affidavits on which an application for which a writ of prohibition is grounded, ought to be entitled simply in the court to which application is made, and not in any cause (ƒ). The affidavit should state such facts as that it may appear to the court that the writ ought to issue (g).

On cause being shewn, the court will either discharge or make the rule absolute for the writ; or else will direct the party applying for the writ to declare in prohibition.

The matter will be disposed of on the rule when the court feels no difficulty; and the proceeding by declaration is adopted in cases of a nice and doubtful character, for the more solemn determination of the question. It seems, however, that the party opposing the prohibition may in all cases, if he choose, insist on a declaration (h).

If the proceeding by way of motion is adopted, and the rule is made absolute, the writ issues at once (i).

On the writ of prohibition being served [if before execution] on the magistrate or other person to whom it is directed, all the the proceedings already taken are in general suspended, and the plaintiff and defendant remain in statu quo. But if execution have issued, it operates also as a writ of restitution; for which purpose a clause may be expressly added (j).

If the justice proceeds after the service of the writ, or on fresh

(c) Vide Genl. Orders, 1854, No. 3 and glossary. In England, by express enactment, the courts of law have power to entertain motions for prohibitions in vacation, and it would seem, upon the construction of the rules above referred, judges in chamber in this country have the same jurisdictiction; but as yet there has been no decision on this point of practice; see ante, p. 226, and n. (e). (d) See Le Caux v. Eden, 2 Doug.

(e) Rodenham v. Rickets, 6 Nev. & Man, 537.

(f) Rich v. Anderson, 3 Ir. C. R. 463; ex parte Evans, 2 Dowl, N. S.

410.

(g) See 2 Arch. Prac. 9th ed. 1629. (h) Remington r. Dolby, 9 Q. B. 176; Lush. Prac, 2 ed. 824.

(i) Lush. Prac. 824.

(j) Owen v. Jones, 18 L. J. Q. B. 8; Lush. Prac. 2nd ed. 825. See as to writ of consultation, ib.

proceedings for the same cause, an alias pluries writ of prohibition may issue (k), and he becomes liable to an attachment (1). He is also liable to an action at the suit of the party injured thereby (m). And it is no excuse for disobeying a prohibition. that it ought not to have issued; for the remedy for that is to move for a writ of "consultation," or to move to supersede the writ of prohibition (n).

Costs.] The party, on a suit in prohibition (where the applicant has been ordered to declare in whose favour judgment shall be given), is entitled, under 1 Will. IV. c. 21, to the costs of the application and subsequent proceedings; and a jury giving a verdict for the plaintiff may assess his damages, though such assessment is not essential to entitle him to his costs (0).

But if the rule be refused, or made absolute, or discharged, the costs of the application are entirely in the discretion of the court (p), though it is not usual to give costs (q); and none will, as a general rule, be given by the superior court in respect of the proceedings which have been taken in the court below (r).

CHAPTER XXIV.

MISCELLANEOUS DUTIES OF MAGISTRATES.

BESIDES the duties imposed upon magistrates by particular acts of parliament which do not relate to any of the matters in the preceding portion of this volume, it will be well to explain the powers and duties of justices when they are called upon to compel a person to find sureties to keep the peace or to be of good behaviour, and afterwards to treat of those miscellaneous duties above referred to, such as their jurisdiction to restrain tenants from committing waste, their duties in holding inquests, in

(k) Bac. Abr. Tit. Prob.

(1) F. N. B. 40.

(m) 2 Inst. 601-618.

(n) Iveson v. Harris, 7 Ves. 251;

Lush. Prac. 2nd ed. 826.

(0) Lush. Prac. 2nd ed. 826.

(p) See R. v. Kealing, 1 D. P. C. 440; Gegge v. Jones, 2 Sh. 1149. (q) Barnes v. Marshall, 21 L. J. Q. B. 388.

(r) Tessimond v. Yardley, 5 B. & Ad. 458; Lush. Prac. 826.

attending the presentment sessions, in granting or withholding publicans' licenses, and other matters of importance. First, as to sureties to keep the peace or to be of good behaviour.

By reference to the words of the commission (a), it will be seen that it is the duty of all justices to take sureties for the peace and to bind persons for their good behaviour; they may also be commanded to do so by a writ out of the Court of Chancery or Queen's Bench (aa).

For what cause granted.] Every justice of the peace is bound to grant the surety of the peace, wherever a person has just cause to fear that another person will burn his house or do him some corporal injury, or if a man threaten to hurt his wife or child, or where a man is threatened to be imprisoned by another, for every unlawful imprisonment is an assault (b); also any justice of the peace may, at his discretion, bind all those to the peace who in his presence make any affray, or threaten to kill or beat any person, or contend together with hot words, or go about with unusual weapons or attendants, to the terror of the people; such as are known to be common barrators, quarrellers, and breakers of the peace; all who are brought before him by a constable for a breach of the peace in presence of the constable, and all such as, having before been bound to keep the peace, shall have forfeited their recognizances (c). But if the justice perceives that the surety is demanded merely from malice or vexation, and without any just cause or fear, he should not grant it; also, where it is demanded by a man who is simply at variance with his neighbour (d). Nor can a justice award a precept of the peace on behalf of a man who requires it to protect his servants or cattle; because as to his goods no power is given by the commission, the recognizance being only that the party should be bound to keep the peace towards the Queen and her liege people, and as to his servants, because it should be the servants' fear and not the master's (e).

Surety of the peace shall only be granted where there is at fear or reasonable ground of alarm (ƒ) of some present or future danger, and not merely for a battery, or any breach of the peace that is past, for it is only for the security of such as are in fear (g). Therefore it would seem that justices cannot first convict a man for an assault, and then bind him over to keep the peace, unless he informs the court that he apprehends present or future danger from the defendant. The fear must arise from a threat, which must appear on the articles exhibited. But it is not necessary that the threat should be in words; it may be inferred by a course of conduct (h). If there be any ambiguity in the threats, it is for the justice to give them such a construction as he thinks right; and his decision, in this respect, will be final (i), but the oath on which the complaint is founded must be sufficient (j).

Magistrates

J.P. cannot convict against will of informer.] have no jurisdiction, upon an application to bind parties over to keep the peace, to convict summarily the offending parties against the will of the informant (k).

Who may demand it.] Every person under the Queen's protection, being of sane memory, whether they are natural born subjects, or aliens, or attainted of treason, &c. have a right to demand surety of the peace. A wife may demand it against her husband threatening to beat her outrageously, and a husband may have it against his wife (). An infant under the age of fourteen years may demand this surety, and it may be granted to him (n). Infants and feme coverts, however, ought to be bound by their friends only, and not by themselves (o). In the case of a person of non-sane memory, Mr. Dalton says this

21.

(f) Ex parte Hulse, 21 L. J. M. C.

(g) Burns, J. tit. Surety of the Peace.

(h) R. v. Dunn, 12 Ad. & El. 599; 4 P. & D. 415, S. C.

(2) R. v. Tregarthen, 5 B. & Ad. 678; 2 N. & M. 379, S. C.

(j) R. v. Dunn, 12 Ad. & El. 599; 4 P. & D. 415, S. C.

(k) R. v. Denny, 20 L. J. M. C.

189; R. v. Totness Js. 2 Prac. R. 230.

() 1 Haw. c. 60, s. 2; Cowp. 118; upon which Mr. Crompton observeth, that if the wife, in such case, cannot find sureties, she shall be committed; "and so (says he) a man may be rid of a shrew," 5 Burns, 1204.

(n) Dalt. c. 117.

(0) 1 Hawk. c. 60, s. 5.