ing the prisoners, joining issue for the crown, entering their judgments, awarding their process, and making up, entering, and keeping their records (r). He is a distinct officer, not a servant, and, as we have seen, appointed by the custos rotulorum, as of right, by common law (s), but when so appointed is the clerk of the quarter sessions. In the Yearbooks he is styled Attornatus Domini Regis; and he is therefore also so far an officer of the crown, that the entries are made up, and the issues joined in his name, as those on the crown side of the King's Bench are in the name of the master of the crown-office (t). All writs of mandamus and certiorari are served upon him on behalf of the justices, as their recognized organ (u), though he cannot return a certiorari (x); and it is both usual and convenient for the court, when it directs any proceedings to be taken or defended on behalf of the county, and at its charge (y), to commit the conduct of the case to him, as their attorney, if duly certificated; in which case he is invested with the rights, and subject to the responsibility of an attorney acting on behalf of individual clients. He is responsible to the justices in session for the due performance of his duties, according to 37 Hen. VIII. c. 1 (z), which in its preamble recites the evils which had arisen from the ignorance and inattention of this officer. He should be learned and instructed in the laws of the realm; and by 1 W. & M. sess. 1, c. 21, s. 5, is to be " able and sufficient person, residing in the county, riding, division, or other place" for which he is appointed. He is to execute his office in person," or by his sufficient deputy, instructed in the laws of the realm, so that the same deputy be admitted, taken, and reputed, by the said custos rotulorum, to be sufficient and able to exercise, occupy, keep and enjoy the same office of clerkship of the peace” (a).

an

As the custos is prohibited from selling, so his appointee is forbidden to purchase this office; for it is enacted, "that if he shall give any reward, fee, or profit, directly or indirectly, or any bond or other assurance, for such appointment, he shall be disabled from holding the office, and

(r) Per Vaughan, B. in D. Proc., 6 Bing. 67, citing Year-book, 2 H. VII. p. 31, pl. 2. See The King & Queen v. Evans, 12 Mod. & M. 13. Thus he may be called on by a prisoner to make up a record of the proceedings at sessions respecting his indictment, though for felony, R. v. Middlesex (Justices), in re Bowman, 5 B. & Adol. 1112; 2 N. & M. 110, S. C.

(z) Repealed 3 & 4 E. VI. c. 1, and revived 1 W. & M. sess. 2, c. 21, s. 4. (a) 37 H. VIII. c. 1, s. 3; 1 W. & M. sess. 1, c. 21, s. 6.

shall forfeit double the value of the thing given for the appointment, to whomsoever shall sue for the same" (b).

In cities and towns corporate there was usually an analogous officer, who performed correspondent duties, under some other title, as that of "town-clerk," and was generally appointed, not by the custos rotulorum, but by the body corporate of which he was an officer. Since 5 & 6 W. IV. c. 76, the duties of town-clerk are distinguished from those of clerk of the peace in a borough. As to this, and quarter sessions in boroughs, see post.

Duration of Office.]-The office of the clerk of a peace of a county, riding, &c. is for " so long as he shall well demean himself in his said office" (c), and, therefore, he has an estate of freehold for life in the office, on condition of behaving well; so that he cannot be dispossessed, except for misbehaviour, and by a competent tribunal; nor does his estate determine by the death or removal of the custos (d). He can be appointed for no other term; and, therefore, an appointment during pleasure is void, and the party so appointed no clerk of the peace. But if he shall "misdemean himself in the execution of the said office, and a complaint and charge in writing of such misdemeanour shall be exhibited against him to the court of quarter session, such court, on due examination and proof openly heard before them, may suspend or discharge him" (e). On such vacancy, the custos rotulorum may appoint another able person residing in the county, &c., before the ensuing quarter sessions; but if he does not do so, the justices assembled may(ƒ), Extortion is one of the offences for which this power of the sessions may be exerted (g). The order of sessions removing a party so charged, need not set forth the evidence on which it is founded (h).

Oaths of Office.]-On entering upon his office, the clerk of the peace, besides taking the oaths of allegiance, supremacy, and abjuration, if a Protestant, and the oaths prescribed by 10 G. IV. c. 7, if a Catholic, must take the following oath :

I, A. B. do swear, that I have not paid nor will pay any sum or sums of money, or other reward whatsoever, nor have given nor will give any bond or other insu rance to pay any money, fee, or profit, directly or indirectly, to any person or persons whomsoever, for such nomination and appointment: so help me God.

(b) 1 W. & M. sess. 1, c. 21, s. 8. (c) 1 W. III. sess. 1, c. 21, s. 5. (d) 4 Mod. 167, 173, 293; Harcourt v. Fox, cited 6 Bing. 35.

(e) 1 W. & M. sess. 1, c. 21, s. 6.

(f) 1 W. & M. sess. 1, c. 21, s. 6. (g) 1 Mod. 192.

(h) R. v. Lloyd, 2 Stra. 996, which sets out a form.

General Duties.]—The clerk of the peace, by himself or his sufficient deputy, must be in constant attendance on the court of quarter sessions. He gives notice of its being holden or adjourned; issues its processes (e.g. subpoenas, post, sect. ix. of this Chapter); records its proceedings; and does all the ministerial acts necessary to give effect to its decisions. It is his duty, when prosecutors do not choose to seek professional assistance elsewhere, to draw the bills of indictment for felony at a fee of only 2s. each (i): and if an indictment so prepared by him or his deputy be found defective, he is bound to provide another gratis, on pain of forfeiting 51. to any who will sue (k). His duty as to giving copies of indictments or of records of acquittals is discussed, post, sect. iv. of this Chapter; also, sect. iv. of Chapter VII. He has also been said to be amerciable in the court of king's bench, for gross errors in indictments framed by him, and brought before that court on certiorari (l). There is no doubt that if an indictment drawn by him were of immoderate length, it might be referred to the master, upon whose report he might be ordered to pay the costs of such parts of it as should be found manifestly superfluous (m). It seems, however, that the obligation to draw indictments at the statutable fee of 2s. is confined to cases of felony; and in case of misdemeanour he may make reasonable charges to prosecutors requiring his assistance.

In the actual course of the sessions, it is the duty of the clerk of the peace, as officer of the court, to read such matters as are by statute (n) directed to be read in sessions, as well as documents proved in evidence; to call over and swear all jurors, and make known their defaults and excuses to the court; to call the parties under recognizance, whether to prosecute, plead, or give evidence; to present the bills to, and receive them from, the grand jury; to arraign prisoners; to receive and record verdicts; to administer all oaths for the justices, though this duty is often performed by the crier; to tax costs as the minister and in aid of the court (0), and make truc entries of all pro

(1) 10 & 11 W. III. c. 23, s. 7. (4) 10 & 11 W. III. c. 23, s. 8. (1) Lilly's Pract. Reg. 71.

(m) R. v. May, 1 Dougl. 193, 194, n. The indictment contained recitals of contumacies made needless by 23 G. II. c. 11, s. 1, and was for an assault. R. v. Bury, 1 Leach, C. C. 201, shows that a clerk of the peace has no lien on a record for his fees as against a certiorari to return it into Q. B.

(n) Instance 5 & 6 W. IV. c. 50, s. 85, infra.

(0) By 7 & 8 Vict. c. 101, s. 39, "on application of any overseer, or of any board of guardians, or of any attorney at law, it shall be the duty of the clerk of the peace of the county or place, or his deputy, if thereunto required, to tax any bill due to any solicitor or attorney in respect of business performed on behalf of any parish or union situate wholly or

ceedings. By an ancient statute (p), he was bound to certify to the court of king's bench the names of such as are outlawed, attainted, or convicted of felony; and by 55 G. III. c. 29, was required to make annual return of persons tried at sessions to his majesty's principal secretary of state for the home department, under penalty of 100%.; but he is now relieved from these duties (q), which are transferred to the gaoler (r). If he shall discharge or conceal any fine or forfeiture, unless by rule of court, he is liable to forfeit treble value, half to the king, and half to him that shall sue, to lose his office, and be incapacitated ever to hold any office connected with the revenue (s). And neither he nor his deputy may act as solicitor, attorney, or agent (1), or sue out any process at any general or quarter sessions where he shall execute the office of clerk of the peace or deputy, on pain of 50%., to him that shall sue within three months, to be recovered with treble costs (u).

Fees.]-By 57 G. III. c. 91, the fees of the clerk of the peace are to be ascertained, and a table expressing them arranged by the court of general quarter sessions, to be submitted to the approval of the next court of general quarter sessions, and finally, having received their sanction, to the judges of assize, at the following circuit, by whom it is to be ratified, with any alterations which they may deem just. The table of fees, when once confirmed in this manner, may be altered by the justices in session, subject in like manner to the approval of a subsequent court of quarter session, and afterwards to the correction of the judges (x); such table is to be deposited with the clerk of the peace, and an exact written or printed copy placed and kept in a conspicuous part of the room where the quarter session is held, on pain of forfeiture by the clerk of the peace of 51. to any person who shall sue for the same within three months (y); and if he receive any greater

in part within such county or place; and the allowance of any sum on such taxation shall be prima facie evidence of the reasonableness of the amount, but not of the legality of the charge, and the clerk of the peace shall be allowed for such taxation after the rate to be fixed from time to time by the master of the crownoffice, and declared by an order of the poor law commissioners; and if any such bill be not taxed before it is presented to the auditor's decision on the reasonableness as well as the legality of the charges, shall be final."

25.

(p) 34 & 35 H. VIII. c. 14.

(9) 7 & 8 G. IV. c. 37; 11 G. IV. c.

(r) See 4 G. IV. c. 64, s. 20, post. (s) 22 & 23 C. II. c. 22, s. 9. (1) Sic in the Parliament Roll; see 5 Ad. & E. 219.

(u) 22 G. II. c. 46, s. 14; see Faulkner v. Chevell, 10 Ad. & E. 76. Whether this enactment is repealed by 6 & 7 Vict. c. 73, is not clear; see first and second parts of schedule of that act.

(x) 22 G. II. c. 46, s. 1.
(y) Sect. 3.

fee or allowance than authorized by such table, he is subjected to a similar penalty (z). There is no doubt also that if he wilfully take more than is due, under colour of his office, he will be liable to be indicted for extortion at common law, or to be removed from his office on articles exhibited against him in the court of quarter sessions (a). It is said that he is not bound" to enter judgment or the like, at the suit of any," without receiving his legal fee for the same; but he is compellable to enter, without previous fee, whatever the court shall order without the suit of another (b); and it may now be taken that he is bound to enter whatever they, on reference to them, shall absolutely command (c). The sessions cannot compel payment of his fees by summary process, or detain parties till they are paid, but he must seek his remedy by action (d); and it is questionable whether the sessions have power to make him any compensation under 55 G. III. c. 51, s. 16, for any labour performed by him respecting the county rates. At all events they cannot make a prospective order for future payments to him on such an account (e). Where a prisoner is sentenced to transportation by a court of quarter sessions, the clerk of the peace of every such court is entitled to have from the county treasurer such fee as has been usually paid, and he is lawfully entitled to receive for the order of transportation: nor will a long disuse of receiving them, viz. during forty-five years, affect the right (ƒ).

Duty as to Fines, Estreats, &c.]-The duties of the clerk of the peace with respect to fines and forfeitures are now mainly regulated by 3 G. IV. c. 46. By sect. 2, all justices (i. e. not sitting in quarter sessions) are required to certify fines, issues, and amerciaments imposed by them, or recognizances forfeited before them, or sums paid in lieu of either of them (of which acts of parliament have not otherwise disposed), in writing, authenticated by their signatures, containing the names, residences, and occupations of the parties, the amount forfeited, and the cause of the forfeiture, to the clerk of the peace of the county, or town

(e) R. v. George Williams, 3 B. & Ald. 215; see R. v. Houldgrave, 1 B. & Ald. 312.

(f) Reg. v. Baker, Knt. 7 Ad. & Ell. 502; 2 N. & P. 375; S. C., turning on 5 G. IV. c. 84, s. 21, & 55 G. III. c. 156, s. 3. See 3 B. & Ald. 215; 1 id. 312; 4 T. R. 591. Quære, in boroughs?