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fore the actual close of the sessions, on whatever day (c), alter their orders or sentences; but they cannot do so after the session is closed, e. g., at the next sessions (d). Again, if an indictment cannot be disposed of after verdict of guilty, owing to the justices present being equally divided in opinion as to the sentence, or from any other cause operating on the court (e), so that no judgment is given, an adjournment of the session should be entered by the clerk of the peace to some day previous to or not later than that appointed for the next ensuing original general or quarter sessions (ƒ), so as to enable the justices to reconsider the question. At the day, hour and place of adjournment, any two or more justices may proceed as they might have done at the original sessions; the adjournment being a continuation of the same session, and ex vi termini implying that every thing during the time of it remains in statu quo ante (g). But if no such adjournment of the session be made (for it cannot be made of the matter itself only) (h) no subsequent session has any power to make an order in the case (i). It may be useful to add, that the adjournment to be valid must be declared by two or more justices, or at least in their presence, by the clerk of the peace (j), as large a number of them being required to adjourn as to hold a session (k). Doubts having existed as to the legality of summoning juries for trial of prisoners at adjourned quarter sessions, an act passed to remove them, on 23rd December, 1837 (1). By this act the justices for any county,

479. See R. v. Dorset (Justices), 15 East, 200; R. v. Sussex (Justices), id. 206; 2 Salk. 87; Stra. 383.

(c) Per Holt, C. J., 2 Salk. 494, St. Andrew's, Holborn, v. St. Clement Danes.

(d) R. v. Cuckfield, 2 Salk. 477; Pridgeon's case, Cro. Car. 241.

(e) See this more particularly considered, post, Ch.VII. s. 15, Of Judgment and Discharge; and as to adjournment of judgment in appeals, Ch. XII. s. 4; R. v. Bucks (Justices), 6 D. & R. 142; R. v. Wilts (Justices), 13 East, 252; and as to style or caption of adjourned sessions, see ante, p. 58, and post, Ch. XII. s. 4; 8 T. R. 424.

(ƒ) 2 Hawk. 68; R. v. Grince, Trin. 4 G. I. 19 Viner, 358; ante, p. 49; and also Linfield v. Battle, 2 Salk. 605; Thurston v. Slatford, Lutw. 911. If the adjournment be to a day after the next original sessions begin, a judgment at the adjourned sessions will be reversed, R. v. Grince.

(g) See this more fully considered,

Ch. XII. s. 4; and per Lord Kenyon, 7 T. R. 108, 109; but if the act on which the adjourned proceeding is founded be repealed before the adjournment day, the above rule does not hold, and the jurisdiction of sessions is at an end. R. v. London (Justices), 3 Burr. 1456.

(h) R. v. Reading, Ca. t. Hardw. 81; and if proceeded on at next sessions, pursuant to such an adjournment, it would be quashed. R. v. West Torrington, Burr. S. C. 293; R. v. Westmorland (Justices), 2 Bott, 733.

(i) Bodmin v. Warligen, 2 Bro. Parl. C. 733; S. C. Burr. Sett. Cas. 295, nom. R. v. Bodmyn (Inhabitants), Bott, 6th ed. vol. ii. 756, cited 1 M. & S. 442; R. v. Leicestershire (Justices); and R. v. Monmouthshire (Justices), 4 B. & Cr. 844; 7 Dowl. & R. 334.

(j) R. v. Middlesex (Justices), in re Bowman, 5 B. & Adol. 1113; 3 N. & M. 110; 6 C. & P. 90, S. C.

(k) R. v. Westrington, 2 Bott, 733. (2) 1 V. c. 4.

riding, division, or place within England and Wales, in quarter sessions assembled, and the recorder of any city or borough, at any court of quarter sessions holden in and for the same, when to such justices and recorder respectively it shall seem meet, may direct the clerk of the peace to take the necessary steps for causing juries to be summoned to attend any adjourned court of quarter sessions for the dispatch of its business, in the same manner as they may now be summoned to attend any general quarter sessions; the juries so summoned to attend adjourned quarter sessions, having the same duties and powers as if summoned to attend any general quarter sessions. Nothing in the act is to affect any part of the jury act, 6 G. IV. c. 50.

The caption of adjourned sessions has been already stated (m).

Place of holding County Sessions.]-The place of holding quarter sessions in counties, divisions, ridings, or liberties, not being boroughs affected by the municipal corporation act, 5 & 6 W. IV. c. 76, is not determined by any statute law; but the justices who issue the precept to summon a quarter sessions may, in their discretion, name any place within the ambit of the jurisdiction for which it is summoned as that where it is to be holden, and the parties bound to appear at such sessions, by recognizance or by their official situations, will be bound to attend at such place (n).

Dalton states the wilfully holding of a sessions on the confines of a county to be punishable; but as in many counties, for instance, Berkshire, the principal towns are so situated, it is usual to hold nearly every session at a different town in the county; and in others, as Sussex, Suffolk, &c., where large collections of population lie at a distance from the county-town, each sessions is held, by adjournment, at two or more of the principal towns within it successively, thus avoiding as far as possible the carrying prisoners from place to place.

(m) Ante, p. 58.

(n) See Dalton, c. 185; also as to

a county created within another county, ib.

CHAPTER II.

OF THE PARTIES ATTENDANT ON THE SESSIONS, THEIR RIGHTS, POWERS, AND DUTIES.

I.-Of the Custos Rotulorum.

II. Of the Justices.

III.-Of the Sheriff of the County.

IV. Of the Clerk of the Peace.

V.-Of the Coroner.

VI.-Of Gaolers.

SECTIONS.

VII.-Of Constables.
VIII.-Of Jurors.

IX.-Of Prosecutors, Defendants
and Witnesses.

X.-Of Advocates and Attornies.

SECTION I.

OF THE CUSTOS ROTULORUM.

THE principal person of the justices and others constituting a court of session of the peace, is the Custos Rotulorum, or keeper of the records of the county. He is always a justice of the peace of the quorum within the county for which he is appointed, and is its first civil officer, as the lord lieutenant is the chief in such military command as can now be exercised independently of the mutiny act (a). These offices are frequently holden by the same person, but their appointments are as distinct as their duties. This office is in itself rather ministerial than judicial. He is accordingly referred to in the last clause of the commissions of the peace in these terms:- Lastly we have assigned you the aforesaid A. B. Keeper of the Rolls of our peace, in our said county, and therefore you shall cause to be brought before you and your fellows, at the days and places aforesaid, the writs, precepts, pro

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(a) 4 Bla. C. 272.

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cesses, and indictments aforesaid, that they may be inspected, and by a due course determined, as is aforesaid."

Origin of the Office.]-The office of custos rotulorum is not immemorial, as the commission of the peace itself had its origin within time of legal memory; but it begun in very early times. There is no distinct trace of its first constitution; but it probably arose very soon after the holding of sessions of the peace began, from the necessity or convenience of having some high and responsible officer to keep the records, which before were promiscuously dispersed among the justices (b). When such necessity arose it belonged of right to the crown to appoint some particular person to have the custody and charge of the records, who might be a person responsible for the safe keeping of them, and to whom the subject might have resort when he had occasion to use them (c). So that though in contemplation of law the records are in the possession of all the justices of the court, all certioraries, and all writs of error being addressed to them, yet in fact they are in the custody of the custos rotulorum; and if by neglect or misconduct they are lost or miscarry, he is responsible to the crown and the subject for such loss or miscarriage (d). In practice the sessions records are kept by the clerk of the peace, who is acting deputy of the custos.

How appointed.]—The custos rotulorum can only be appointed by "bill signed by the king," on which the lord chancellor issues his commission (e); and the saving for the archbishop of York, the bishops of Durham and Ely, and all to whom the king or his progenitors, by letters patent, had granted any liberty to appoint a custos rotulorum to exercise the power so granted, is repealed as to the above ecclesiastics by statutes of the last reign (ƒ).

Duties as regards Sessions.]-The custos rotulorum ought to attend the session by himself or his deputy the clerk of the peace, whom, "being a sufficient person residing within the county," he appoints under 37 H. VIII. c. 1, s. 3, as often as that office is vacant. He has this appointment at common law as an appendage to his own office, and not by virtue of the statute, which merely points out how

(b) Per Holt, C. J., in Harcourt v. Fox, 1 Shower, 528.

(c) Id. ibid.

(d) Id. ibid. Com. Dig. tit. Justices of Peace, (D. 4.)

(e) 37 H. VIII. c. 1, repealed by 3 & 4 Ed. VI. c. 1, and revived by 1 W. & M. sess. 2, c. 21, s. 4.

(f) 6 W. IV. c. 19, s. 3; 6 & 7 W.IV. c. 8; 6 Bing. 32.

he is to exercise his power (g). But he may not sell the place, directly or indirectly, under penalty of forfeiting his own office and double the sum he received (h).

SECTION II.

OF THE JUSTICES.

The justices, who are the judges of the court of quarter sessions, are next to be considered.

The commission of the peace, by virtue of which the justices exercise the judicial character, is now in the following form:

Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to A., B., C., D., &c., greeting.

Know ye that we have assigned you jointly and severally, and every one of you, our justices to keep our peace in our county of W., and to keep, and cause to be kept, all ordinances and statutes for the good of the peace and for the preservation of the same, and for the quiet rule and government of our people made, in all and singular their articles in our said county (as well within liberties as without), according to the force, form, and effect of the same; and to chastise and punish all persons that offend against the form of those ordinances or statutes, or any of them, in the aforesaid county, as it ought to be done according to the form of those ordinances and statutes; and to cause to come before you, or any of you, all those who to any one or more of our people, concerning their bodies or the firing of their houses have used threats, to find sufficient security for the peace, or their good behaviour, towards us and our people; and if they shall refuse to find such security, then them in our prisons until they shall find such security, to cause to be safely kept.

We have also assigned you, and every two or more of you (of whom any one of you, the aforesaid A., B., C., D., &c., we will shall be one) our justices to inquire the truth more fully, by the oath of good and lawful men of the aforesaid county, by whom the truth of the matter shall be the better known, of all and all manner of felonies, poisonings, enchantments, sorceries, arts magic (i), trespasses (j), forestallings, regratings, ingrossings, and extortions whatsoever; and of all and singular other crimes and offences, of which the justices of our peace may or ought lawfully to inquire, by whomsoever and after what manner soever, in the said county done or perpetrated, or which shall happen to be there done or attempted; and also of all those who in the aforesaid counties in companies against our peace, in disturbance

(g) Harding v. Pollock, 6 Bing. 25. (h) 1 W. & M. sess. 1, c. 21, s. 8. (i) No indictment lies for these imaginary offences since 9 G. II. c. 5, s. 3. But pretending to use witchcraft, undertaking to tell fortunes, discover stolen goods, &c. is, by s. 4, made subject to a year's imprisonment with pillory, which

last punishment is abolished by 7 W. IV. and 1 Vic. c. 23. The enactments of 9 G. II. c. 5, are not repealed by 7 & 8 G. IV. c. 27.

(j) Transgressio, taken in a large sense, is any outrageous misdemeanour. 2 Inst. 419.

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