actually quashed, (vide id.) then in any action brought against the justice on account of it, or on account of any act, matter, or thing done by him, for the levying of any penalty, apprehending of the party, or otherwise carrying the conviction into effect, the plaintiff shall not recover more than 2d. damages, besides the amount of the penalty (if any have been levied), nor any costs of suit, unless the action be an action on the case, and the declarations expressly state that the acts were done maliciously and without reasonable and probable cause. 43 G. 3, c. 141, s. 1. See Massey v. Johnson, 12 East, 67. Nor, even in that case, shali the plaintiff recover the amount of any penalty levied, if the defendant prove him to have been guilty of the offence of which he was convicted, &c. and that he underwent no greater punishment than is assigned by law to such offence. Id. s. 2.

If, however, it appear upon the face of the conviction or other proceeding, that the justice had no jurisdiction, in that case, as the proceeding is coram non judice, the justice cannot justify under it. See Lancaster v. Greaves, 9 B. & C. 628. Morgan v. Hughes, 2 T. R. 225. And the same, if it appear that the justice, in what he has done, has exceeded his jurisdiction. See Crepps v. Durden, Cowp. 640.

What we have hitherto been considering have been actions against justices, for something done by them in their judicial character. In what they do in their ministerial character, without reference to their judicial authority, their power of justifying will depend in a great measure upon the legality of the proceedings upon which these acts are founded. Thus, for instance, where a magistrate granted a warrant of distress to levy the amount of poor rates against a particular person, which were levied accordingly; and it turned out that the party, although rated in respect of land in the parish, had no land in the parish, his land being in an adjoining parish: it was holden, that the party might maintain an action of trespass against the justice. Weaver v. Price et al., 3 B. & Adolph. 409. So if he exceed the authority the law gives him, in his ministerial acts, he thereby subjects himself to an action. As if he commits a prisoner for re-examination for an unreasonable time, he is liable to an action for false imprisonment. See Davis v. Capper, 10 B. & C. 28. So, if he commit a man for a supposed crime, where there has in fact been no accusation against him, he is liable to an action for false imprisonment. See Morgan v. Hughes, 2 T. R. 225.

But where a discretion is vested in him by law, no action will lie against him for the manner in which he exercises that discretion, Basset v. Godschall, 3 Wils. 121, unless possibly where it appears that he was actuated by malice, and the malice is very gross and injurious. Dict. per Ld. Mansfield, C. J., in R. v. Young, 1 Burr. 561, 562.

As to the proceedings in actions against magistrates, these are E

very often regulated by the particular statutes under which the magistrate has acted upon the occasion; but there are some general regulations upon the subject, which, in the absence of any particular enactments, to which I have now alluded, must be attended to, and which I shall now detail.

By stat. 24 G. 2, c. 24, s. 8, no action shall be brought against a justice of peace, "for any thing done in the execution of his

office," unless commenced within six calendar months after the act committed. The day on which the act was done, is not to be included in these six months; and therefore, where a person committed by a justice, was discharged out of custody on the 14th December, and he commenced his action on the 14th June, it was holden that the action was commenced in time. Hardy v. Ryle, 9 B. & C. 603. Where the cause of action is a continuing one, by imprisonment, the action may be brought within six calendar months after the last day of the imprisonment. Id. Massey v. Johnson, 12 East, 67. and see Weston v. Fournier, 14 East, 491.

By stat. 24 G. 2, c. 24, s. 1, no writ shall be sued out against, nor any copy of process served on, any justice of the peace, for any thing by him done in the execution of his office, until notice in writing of such intended writ or process shall have been delivered to him, or left at the usual place of his abode, by the attorney or agent of the party who intends to sue or cause the same to be sued out or served, at least one calendar month before the suing out or serving of the same; in which notice shall be clearly and explicitly contained the cause of action which such party hath or claimeth to have against such justices of the peace; and on the back of which notice shall be indorsed the name of such attorney or agent, together with the place of his abode. And by sect. 3, the plaintiff shall not recover a verdict, unless he prove upon the trial that such notice was given as aforesaid; and in default thereof, such justice shall recover a verdict and costs. And by sect. 5, no evidence shall be given of any cause of action except such as is contained in the notice. In all cases where a magistrate acts bona fide in what he conceives to be the execution of his duty as such, however mistaken he may be in the notion he forms of his jurisdiction, he is entitled to this notice, before an action is brought against him. See Weller v. Toke, 9 East, 364. Prestige v. Woodman, 1 B. & C. 12. Jones v. Williams, 1 Car. & P. 459, 669. Briggs v. Evelyn, 2 H. Bl. 114. See the form of the notice, Arch. Forms, 516. Formerly it was holden, that the notice must state what kind of writ is intended to be sued out; Lovelace v. Curry, 7 T. R. 631; but it may be doubted whether it would now be so decided, as no other but the writ of summons is applicable to such actions. The notice, however, must describe correctly the cause of action; supra ; and any material variance may be fatal, as no evidence can be

received at the trial of any cause of action which is not stated in the notice. Supra, and see Robson v. Spearman, 3 B. & Ald. 493. It need not, however, describe the form of action; Sabin v. Deburg, 2 Camp. 196; but if it do, and state it incorrectly, the variance will be fatal. Strickland v. Ward, 7 T. R. 631, n. It is not necessary, however, to name all the intended parties to the action. Bax v. Jones, 5 Price, 168. If the name and place of abode of the attorney, instead of being indorsed on the back of the notice, be on the face of it, it will be sufficient; Crooke v. Curry, 5 Burn, D. & W. 70; if he describe his residence as of Birmingham generally, it will be sufficient; Osborn v. Gough, 3 B. & P. 551; but merely "given under my hand at Durham" was holden insufficient, for it is not descriptive at all of the attorney's place of abode. Taylor v. Fenwick, 7 T. R. 635.

By stat. 21 Jac. 1, c. 12, s. 5, if any action "upon the case, trespass, battery, or false imprisonment," be brought against a justice of the peace, for any thing done by him by virtue of his office, the same shall be " laid within the county where the trespass or fact shall be done and committed, and not elsewhere."

The defendant may plead the general issue," not guilty," and give the special matter in evidence. 7 Jac. 1, c. 5. 21 Jac. 1, č. 12, s. 5. And this is not affected by the recent rules of the Courts at Westminster, as to pleading. See 3 & 4 Will. 4, c. 42, s. 1.

By stat. 24 G. 2, c. 44, s. 2, the defendant, at any time within one calendar month after notice of action given, may tender amends to the party complaining, or to his attorney or agent: if not accepted, he may plead the tender in bar of the action, together with the plea of not guilty; and if the jury at the trial find the amends so tendered to have been sufficient, they shall find a verdict for the defendant. And by sect. 3, if the defendant have neglected to tender amends, he may, by leave of the Court, at any time before issue joined, pay into Court such sum of money as he shall see fit; and thereupon such proceedings, &c. shall be had, as in other actions where money is paid into Court. See Reg. Gen. H. 4 W. 4, I. s. 17, 18, 19. and see Casbourn v. Ball, 2 W. Bl. 859. Even after issue joined, the Court have allowed the defendant to withdraw his plea, pay money into Court, and plead de novo. Nestor v. Newcome, 3 B. & C. 159. Devaynes v. Boys, 7 Taunt. 33.

At the trial, the plaintiff must prove that notice of action was given, as directed by statute (see ante, p. 74,), or in default thereof the defendant shall be entitled to a verdict. 24 G. 2, c. 44, s. 3. And he shall not be allowed to give evidence of any cause of action, except such as is contained in the notice. Id. s. 5. Where, after a conviction quashed, an action on the case (in pursuance of stat. 43 G. 3, c. 141, see ante, p. 72,) was brought against the justice, for convicting the party falsely and

maliciously, and without reasonable or probable cause; and at the trial, the plaintiff, after proof of the notice and conviction, proved that he was innocent of the offence imputed to him, and there rested his case: the Court held it not to be sufficient, but that the plaintiff should have given evidence of what passed before the justice at the time of the conviction, to shew whether there was want of probable cause for the conviction or not. Burley v. Bethune, 5 Taunt. 580.

As to the verdict: if the plaintiff shall not prove that the trespass or other act complained of was committed within the county in which the venue is laid, the defendant shall have a verdict. 12 Jac. 1, c. 12, s. 5. So if the plaintiff fail in proving the notice of action, the defendant shall have a verdict. 24 G. 2, c. 44, s. 3. If there had been a tender of amends, and the jury find that the amends tendered were sufficient, the defendant shall have a verdict. Id. s. 2. If, after a conviction quashed, an action be brought against the justices for having convicted the party, the plaintiff shall not recover more than two-pence damages (beyond the amount of the penalty levied), nor any costs of suit, unless it be expressly alleged in the declaration that the acts complained of were done maliciously and without reasonable or probable cause; 43 G. 3, c. 141, s. 1; nor shall he recover the penalty levied, or any damages or costs whatever, if the defendant prove that he was actually guilty of the offence of which he was convicted, and had undergone no greater punishment than that assigned by law for the offence. Id. s. 2.

As to costs: the plaintiff is of course entitled to his costs, if he have a verdict, excepting in the case just now mentioned, under stat. 43 G. 3, c. 141; and if the judge before whom the cause is tried shall, in open Court, certify on the back of the record that the injury for which the action was brought, was "wilfully and maliciously" committed, the plaintiff shall be entitled to double costs. 24 G. 2, c. 44, s. 7. On the other hand, if the defendant obtain a verdict, or have judgment on demurrer, or if the plaintiff be nonsuit, or discontinue his action, the defendant shall be entitled to double costs. 7 Jac. 1, c. 5. 21 Jac. 1, c. 12. And see 24 G. 2, c. 44, s. 2. See Harper v. Carr, Thomas v. Saunders et al., 1 Ad. & E. 552.

7 T. R. 448.

CHAPTER II.

The Practice of the Court of Quarter Sessions, as a Criminal Court. THE practice at Sessions in Criminal Cases, has been incidentally mentioned in a cursory way, ante, p. 25. We shall now consider it much more at large. And I propose, therefore,-1. To treat of the persons capable of committing crimes, and of the degree in which they may be guilty;-2. I shall give a List of Offences, punishable upon Indictment, with References to Precedents of the Indictments, and to such text books as treat of the Evidence necessary to support them ;-3. I shall treat of the Indictment generally ;-4. I shall treat of Evidence generally ;-5. I shall give the forms of Indictments, and the Evidence necessary to support them, in all those cases which usually occur at Sessions;-6. I shall treat of the Proceeding and Practice of the Court, as a Criminal Court ;-7. Of Pardon ;-and 8. Of Fines, and forfeited Recognizances.

SECTION 1.-Persons capable of committing Crimes, and the Degree in which they may be guilty.

1. What Persons are punishable or excusable for Crimes. The general rule upon this subject is, that all persons who wilfully commit offences, are punishable for them. The exceptions are of those persons only, who, in contemplation of law, do not wilfully commit the offence, either from not having any will, or not being allowed to exert it. These exceptions shall be treated of, under the following heads:

Infants.] An infant, according to the legal acceptation of the term, is a person under 21 years of age. At and above the age of 14, an infant may be convicted of any offence, excepting those which consist of a non-feazance merely, such as the not apprehending persons committing felonies, or the like. 1 Hal. 20, 21, 22, 25. 3 Bac. Abr. 581, 591. Under seven years of age he cannot be convicted of a felony; 1 Hal. 27, 28; and under 14, he cannot be convicted of rape. 1 Hal. 630. Between the ages of 7 and 14, however, although presumed by law not to be doli capax, yet that presumption may be rebutted by circumstances, showing clearly that the infant was, at the time of committing the offence,