members (p). Furthermore, there must not be the slightest interference on the part of the magistrate, and in a recent case (q) a certiorari was granted where an interested justice sat on the bench with his brother magistrates, though in taking his seat he declared that in consequence of his being interested he would take no part in the proceedings; however, from the bench he declared the statement of one of the witnesses to be untrue, and at the conclusion of the case, the court being cleared by the magistrates, he remained with them though he did not interfere in the decision they came to. It is most important that it should appear that nothing like private interest should interfere with their decisions, and that the administration of justice should be guarded from even the suspicion of partiality; the magistrates should not only act fairly and impartially, but should also let the public see that they are so doing. Crampton, J. states, "Generally I should say that when a magistrate takes his seat on the bench, although he may state that he will take no part in the proceedings, yet he is virtually a party to them; and I would add, that when a magistrate has an interest in a case, his discreet and proper course would be to abstain from sitting with the other justices upon the bench; but emphatically so, if his right so to sit be questioned by one of the parties," (r) and Fitzgerald J. is reported to have said (s), “It is a most objectionable proceeding for a party in a case to take his seat on the bench along with the magistrates." So, where an appeal is determined at quarter sessions by magistrates, some of whom are interested in the matter, the proceeding is null, and the proper course is to quash it on certiorari: thus, where it appeared upon affidavit that the conviction was for travelling in a second class railway carriage with a third class railway ticket,

(p) R. v. Cheltenham Commissioners, 1 Q. B. 467.

(2) R. v. Clare Jus., 7 Ir. C. L. R. 211.

(r) See R. v. Js. of Cork, 2 I. J. N. S. 304; see R. v. Js. of Clare, 7 I. C. L. R. 211; see R. v. Aberdare Canal Compy., 14 Q. B. 854; R. v. Cheltenham Coms., 1 Q. B. 467; Fuller v. Brown, 3 N. S. Cas. 603; R.

v. Js. of Monmouth, 8 B. & C. 137 ; R. v. Tarpole, 4 T. R. 71; R. v. Gudridge, 5 B. & C. 459; R. v. Inhabitants of Riston, 1 Q. B. 467 ; R. v. Js. of Hertfordshire, 6 Q. B. 753; R. v. Js. of Suffolk, 21 L. J. N. S. M. C. 169.

(8) See R. v. Tyrone Js. 5 Ir. J. N. S. 281.

and some of the magistrates who took a part in deciding on the appeal were shareholders in the company, it was held that there was no proceeding before a proper tribunal, and the act of the sessions was null (t). But the mere presence of an interested magistrate during part of the hearing of an appeal is not sufficient ground for setting aside an order of sessions made on such hearing, if it be expressly shewn that he took no part in the hearing, came into court for a different purpose, and did not in any way influence the decision (u). However, where one of the magistrates sitting upon the bench was the land-agent of a party interested in the case, the proceedings were not thereby invalidated (v). Magistrates may be punished by attachment for acting as judges in matters in which they themselves are parties (w), and such conduct in a magistrate would expose him to proceedings by information, although no malicious or corrupt motive may be expressly ascribed to him (x).

Exceptions to the rule.] If, however, a party in the case, knowing of the interest, consent to the interested party acting, he cannot afterwards raise any objection upon this ground (y); and a party who objects to a conviction on the ground that the convicting justices were personally interested, must satisfy the court that both he and his attorney were ignorant of the fact at the time of the conviction (2). In some few cases, from necessity, an interested party is allowed to adjudicate, it being considered a less evil that he should do so than that there should be a

failure of justice altogether (a). Sometimes a magistrate is expressly empowered by statute to adjudicate, although to a certain extent interested in the result of the decision, as e. g.

(t) Re Hopkins, 1 Ellis, Bl. & Ellis, 100.

(u) R. v. London Js., 18 Q. B. 421 n.

(v) R. v. Cork Js., 2 Ir. J. N. S. 324; see R. v. Tyrone Js. 5 Ir. J. N. S. 281.

(w) Mayor of Hereford's case, per Holt, C. J. 2 Ld. Raym. 766.

(x) See R. v. Hoseason, 14 East, 606; Paley Conv. 37.

(y) R. v. Cheltenham Commrs., 1

Q. B. 467; see R. v. Riston, id. 479. (2) R. v. Lord Huntingtower, 8 Weekly Reporter 562.

(a) Carus Wilson's case, 7 Q. B. 1015. Thus it is provided by 14 & 15 Vic. c. 93, s. 9, that if any per son shall wilfully insult any justice sitting in any court or place, or commit any other contempt, such J. P. may order him to be removed or inflict a fine, or order him to be taken into custody and committed to goal.

justices of the peace are empowered to act in cases relating to grand jury cess and poor rates and other rates, although liable to such rates (b). On the other hand, the legislature has in some cases expressly guarded against the danger of entrusting a summary power to persons interested, e. g. under the Companies Clauses, Lands Clauses, and Railway Clauses Consolidation. Acts (c).

When acts void or voidable.] The question whether proceedings tainted by the interest of the magistrate are absolutely void or voidable only, was lately decided in the House of Lords (d); Baron Parke, delivering the unanimous opinions of the judges, said, "In many cases in which the Court of Q. B. has interfered (and many have gone to great length) when interested parties have acted as magistrates, and quashed the order made by the court of which they formed part, afford an analogy. None of these orders are absolutely void; it would create great confusion and inconvenience if they were. These orders may be quashed after being removed by certiorari, and the court shall do complete justice in that respect" (e).

Jurisdiction as to number.] The number of justices requisite to the valid exercise of any act of authority out of sessions, depends entirely upon the particular act of parliament conferring the authority, and the nature of the act. An authority given by statute to two cannot be executed by one (ƒ). Although a statute may make it necessary that any offence against its provisions should be prosecuted before two or more J.P's (9), yet if the offence be any misdemeanor or matter against the peace, then, upon complaint made to any one J.P., he may grant his warrant to attach the offender and bring him before himself or any other J.P., to find surety for his appearance, but he cannot, of course, adjudicate on the offence (h). This rule, however,

(b) 6 Vic. c. 8.

(c) 8 Vic. c. 16, s. 3; 8 Vic. c. 18, 88. 3, 39; 8 Vic. c. 20.

(d) Dimes v. Grand Junc. Canal Co., 3 H. of L. Ca. 759-785.

(e) See also R. v. Recorder of Cambridge, 27 L. J. M. C. 160.

(f) See Jones v. Gordon, 2 Q. B.

600, 613; Tarry v. Newman, 15 M. & W. 645, 654; Re Ramsden, 3 D. & L. 748; R. v. Wilcock, 7 Q. B. 317, 339.

(g) Ex gr. 24 & 25 Vic., c. 100, s. 76.

(h) See Dalton, c. 6.

will not apply where the statute under which the proceedings are taken expressly requires more than one justice to take the information, or to do every other of the specified acts (i). If the complaint be directed to be made to any justice, though the statute should require the final determination to be made by two, the complaint is well lodged before one (j). By 14 & 15 Vic. c. 93, s. 10, one justice may receive an information or complaint for any offence alleged to have been committed in his jurisdiction; or where a complaint arises in his jurisdiction as to any matter over which he has summary jurisdiction, he may receive the information or complaint and proceed according to the directions of that act. The only matters of a summary nature which he may hear and determine out of petty session are cases of drunkenness, or fraud in the sale of goods, or disputes as to sales in fairs and markets, unless the offender is unable to give bail for his appearance at petty sessions, and then two may adjudicate on the matter (k). It is however expressly provided that any J.P. acting out of petty session, may make any order which a justice or justices may be authorized or required by law to make (1). By the Criminal Justice Act (m), any magistrate appointed to act at the police courts of the Dublin metropolitan district, and sitting at a police court within the said district, or any stipendiary magistrate appointed for any city, town, liberty, borough, or district, and sitting at a police court or other place appointed in that behalf, may, in the case of persons charged before such magistrate, do alone all acts authorized by that act to be done by justices in petty sessions. A large number of offences punishable by summary conviction are collected in 14 & 15 Vic. c. 92, and power is given to one J.P. sitting in petty sessions to proceed to adjudicate upon them; but it will be found in reference to the 24 & 25 Vic. c. 100 (n), that any offence made punishable on summary conviction by that act must be prosecuted before two or more justices, or one sti

(i) R. v. Griffin, 9 Q. B. 155.

(j) Ware v. Stanstead, 2 Salk. 488. (k) Sec. 7.

(7) See 14 & 15 Vic., c. 93, s. 8. (m) 18 & 19 Vic., c. 126.

(n) An act to consolidate and amend the statute law of England and Ireland relating to offences against the person.

pendiary magistrate (o). It will require two or more justices sitting in petty sessions to adjudicate on offences committed against the provisions of the 23 & 24 Vic. c. 84, an act for preventing the adulteration of articles of food or drink.

By Stat. 5 & 6 Vic. c. 24, s. 47, one divisional justice in Dublin may act singly in all cases, unless where there is an express enactment to the contrary, though the act be directed to be done by more than one justice, except at special, petty, or quarter sessions.

Concurrence of Justices.] Whenever the concurrence of two is requisite for any judicial act, they must be present and acting together during the whole of the hearing and determination of the case (p). For it is now clearly established that every judicial act to be done by two or more must be completed in the presence of all who do it; for those who are to be affected by it have a right to the united judgment of all up to the very last moment (2). And where authority is given to one justice, it may be executed by any number (r).

No casting vote.] The magistrate who shall preside as chairman at petty sessions has no casting vote in case of an equal division of opinion.

Priority of jurisdiction.] In all cases of indictable offences the justice who issues the warrant to compel the appearance of the offender, need not be the person before whom he is brought to answer to the complaint; and in all cases of summary jurisdiction the justice who issues his summons or warrant need not be the same before whom the case is heard (s). All the justices of each district are equal in authority; but as it would be contrary to the public interest, as well as indecent, that there should be a contest between different justices, it is agreed that the

(0) The jurisdiction of the metropolitan magistrates does not seem to have been interfered with by this statute; see s. 76.

(p) See Billings v. Prim, 2 Bl. R. 1017; Penny v. Slade, 5 Bing. N. C. 319, 323; Watson on Awards, 101; Russell on Arbitration, 208; so where a view is required to be had by two

justices, it should be a joint view, R. v. Js. of Cambridgeshire, 4 A, & E. 111; Paley on Conv., 31.

(2) Coleridge J. 26 L. J. N. S. 35

Q. B.

(r) Hatton's Case, 2 Salk. 477; Dalt. c. 6, s. 8; R. v. Weale, 5 C. & P. 135.

(8) 14 & 15 Vic., c. 93, s. 11.