Russell, to shew cause why a mandamus should not issue to the said Justices to proceed to hear and adjudicate upon an information which had been exhibited against the defendant for neglecting to comply with the 7th section of 8 & 9 Vict. c. 86, which provides that the master of every ship arriving from parts beyond the seas at any port in the United Kingdom or in the Isle of Man, whether laden or in ballast, shall, within twenty-four hours after such arrival, and before bulk be broken, make due report of such ship, and shall make and subscribe a declaration to the truth of the same before the collector or comptroller of such port; and such report shall contain an account of the particular marks, numbers, and contents of all the different packages or parcels of the goods on board such ship, and the particulars of such goods as are stowed loose, to the best of his knowledge, and the general denomination of the contents

of every package, containing certain specified articles, the place or places where such goods were taken on board, &c., and the burden of such ship, &c. (and other particulars specified in the statute), and further provides that the master of any ship who shall fail to make such report, or shall make a false report, shall forfeit the sum of 1001. By the statute 8 & 9 Viet. c. 87. s. 82, it is provided, that all penalties and forfeitures imposed by this act, or by any act relating to the Customs, or to trade or navigation, shall and may be sued for, prosecuted and recovered by action of debt, bill, plaint, or information in any of her Majesty's courts of record at Westminster, &c., or in the name or names of some officer or officers of her Majesty's Customs, or by information before any two or more of her Majesty's Justices of the Peace.

The information in this case had been laid against the defendant on the 13th of July 1848, before one Justice, and a summons had issued thereon, requiring him to appear before two Justices, who had declined to proceed to the examination of the matter contained in the information, on the ground that it had been exhibited before one Justice only.

Shee, Serj. shewed cause (1).—There is (1) Jan. 29, before Lord Denman, C.J., Patteson, J., Coleridge, J. and Wightman, J.

great doubt whether the Magistrates had jurisdiction to hear the application; and if so, this Court will not interfere by mandamus. It is true, that by section 83. any one Justice is required to issue a summons in cases where the party is not liable to be detained, but the words of the 82nd section are conclusive; and the form in the schedule referred to by section 107. is consistent only with the exhibiting the information before two Justices, the form being, that the informant "gives us," two of her Majesty's Justices, &c., to understand, &c. Besides, it may be said that the Justices have exercised the best of their judgment, and have heard and dismissed the information, on the ground of their want of jurisdiction.

Lush, for the party charged.-The information is as much the commencement of proceedings as a writ is in an action in any of the superior courts. The form of conviction also, which recites the information, expressly alludes to two Justices. The question is, whether the 83rd section of c. 87. repeals the 82nd section?

Sir J. Jervis (Attorney General) and Welsby, contrà.-The 8 & 9 Vict. c. 86. s. 7. does not say how the penalty is recoverable, and it therefore falls within the general provisions of the Customs code of enactments. Section 107. of the 8 & 9 Vict. c. 87. alludes to informations exhibited before any "Justice or Justices." Stat. 3 Geo. 4. c. 23. s. 2. gives one Justice power to receive the information whenever two or more are empowered to hear and determine. The 82nd section of the 8 & 9 Vict. c. 87. speaks of the recovering the penalty, not merely of the laying the information.

Action on the Case-Malice-Justice of the Peace-Refusing bail in Misdemeanour.

The power of a Magistrate to accept or refuse bail in cases of misdemeanour is a judicial duty, and an action will not lie against him for refusing to take bail in such cases without proof of express malice; even though the sureties tendered are found by the jury to have been sufficient.

Case. The declaration charged that the defendant before the committing of the grievances, &c. was a Justice of the Peace for the county of Norfolk, and that the plaintiff was, on &c., committed by the defendant, so being such Justice, upon a charge of having assaulted one J. W, then being one of the constables of Kettlestone in the said county, and then and there being in the execution of his office as such constable, against the form of the statute, &c., and that the plaintiff was conveyed by order of the defendant, so being such Justice, to the house of correction at W. in the said county, by virtue of a warrant under the hand and seal of the defendant so being such Justice, &c. (setting out the warrant). That the plaintiff, after his committal, to wit, on the 16th of February 1846, and on divers other days, &c., by means of one Martha Riches, applied to the defendant, so being such Justice, &c., and offered to the defendant, so being such Justice, security of good and sufficient persons, to wit, W. S, of &c., and S. A, of &c., then being two sufficient bondsmen in that behalf, and then being sufficient persons to be bound and to be bail and to enter into sufficient bonds and recognizances in that behalf, and then being ready and willing before the defendant, so being such Justice, &c., to offer (and who did offer themselves in the presence of the defendant so being such Justice) to be bound for and become bail for, and to enter into their sufficient bonds and recognizances for the appearance

of the plaintiff to take his trial on the charge aforesaid. That although it was the duty of the defendant, so being such Justice, &c., to have accepted and taken such security as aforesaid, and to have liberated the plaintiff, nevertheless the defendant so being such Justice, &c., not regarding his duty, &c., but contriving, &c. absolutely, unlawfully, and bable cause or ground whatsoever, refused maliciously, and without reasonable or proto take or accept the security so offered as aforesaid, or any other security whatsoever, for the appearance of the plaintiff to take his trial on the charge aforesaid, and refused to liberate the plaintiff. Whereby, &c. the plaintiff was, on &c., under and by virtue of the warrant aforesaid, and by the command and authority of the defendant, so being such Justice, &c. assaulted and taken to the said house of correction upon the charge aforesaid, and there unlawfully imprisoned for a long space of time, to wit, &c., upon the charge aforesaid, &c.

Pleas-First, not guilty "by statute." Second, that the defendant tendered 5l. as sufficient amends. The plaintiff joined issue on the first plea, and to the second replied that the amends tendered were not sufficient.

The action was tried, before Alderson, B., at the Summer Assizes for the county of Norfolk, 1846, when the jury found that the bail mentioned in the declaration were sufficient, and that they were tendered to and refused by the defendant acting as a Justice; but they also found that he did not act maliciously in refusing the bail. A verdict was thereupon entered by the learned Judge for the plaintiff on the first issue.

A rule having been obtained calling upon the defendant to shew cause why there should not be a new trial, or why the damages should not be increased,—

Bramwell and Fitzpatrick shewed cause (1). This action is not maintainable without proof of malice, as the defendant had a discretion whether he would receive bail or not, and was, therefore, acting judicially. At common law all felonies, except homicide, might be bailed after indictment found-Coke's Bail and Mainprize, ch. 6. By the 1 & 2 Ph. & M. c. 13. in some

(1) Nov. 19, 1847, before Lord Denman, C.J., Coleridge, J., Wightman, J. and Erle, J.

cases of misdemeanour Justices are forbidden to bail; which shews that the power is discretionary. The 7 Geo. 4. c. 64. does not create any obligation to accept bail in such

cases.

[ERLE, J.-The object of that act was to assimilate the practice in misdemeanours and felonies.]

In Hawkins, P.C. b. 2, ch. 15, s. 54, it is said, "it seems that wherever Justices of the Peace have jurisdiction of a crime they may bail the person indicted before them of such crime, upon such circumatances for which other courts may bail the person so indicted before them."

[COLERIDGE, J. In Hale, P.C. it is said, that in all cases below felony the offender is bailable, except after judgment; and Blackstone (4 Comm. p. 298) says, in such cases he ought to be bailed.]

There is no precedent to be found for an action of this kind, without an allegation of malice.

[WIGHTMAN, J.-Is there any reported case of an action against a Magistrate for refusing to accept bail?]

Osborn v. Gough (2). But if even there were no discretion, the action will not lie without proof of malice. 2 Hawk. P.C. p. 141. may be relied on by the other side; but he cannot there refer to cases of mere error, as he says, a Justice is liable to be indicted as well as to have an action brought against him if he refuses bail wrongfully.

[COLERIDGE, J. referred to The Queen v. Badger (3).]

The question whether he would accept bail was one properly within the jurisdiction of the defendant, and, having decided, his decision is binding.

[COLERIDGE, J. He only decides here that he will not bail this particular misdemeanour, not that it is an offence which is not bailable.]

O'Malley, contrà.-This case turns on the question, whether the defendant had a discretion in refusing to accept bail at all in the case before him. Now, The Queen v. Badger expressly decides, that a person charged with a misdemeanour has a common law right to be bailed, and the authority of

Lord Hale, Dalton, and Hawkins, goes to the same point, and the passage cited from the latter writer applies only to felonies.

[LORD DENMAN, C.J. referred to Marriot's case (4).]

There is no ground suggested for saying that the defendant refused to accept the bail offered on the ground of their insufficiency. His refusal was absolute and unqualified; and the declaration alleges that the bail tendered were sufficient, which is found to be the fact by the jury. Prickett v. Gratrex (5) decides that bona fides is no defence to the action.

[WIGHTMAN, J. referred to The Queen v. Tracey (6).]

That case does not affect the present. In 2 Chitty on Pleading, p. 590, there is a precedent of a declaration in case against a Justice for refusing to take bail in which there is no allegation of malice.

Cur, adv. vult.

The judgment of the Court was now delivered by

LORD DENMAN, C.J.-This was an action on the case against the defendant, a Magistrate of the county of Norfolk, for refusing to admit the plaintiff to bail. The declaration stated that the plaintiff was charged with an assault upon a constable in the execution of his duty; that sufficient bail was tendered, but the defendant absolutely, unlawfully and maliciously, and without reasonable or probable cause or ground whatsoever refused to accept the security offered, or any other security whatsoever. The jury, on the trial, negatived malice, but found a verdict for the plaintiff. The question, therefore, is, whether the declaration is good without the allegation of malice, for the effect of the finding is to strike out that allegation. This depends upon another question, whether the duty, the breach of which is charged in this declaration, was judicial or ministerial. The statute of Westminster the first, (3 Edw. 1. c. 15,) provides, "that if any withhold prisoners replevisable after that they have offered sufficient surety, he shall pay a grievous amercement to the king." By the same statute the offenders declared replevisable

are defined, and amongst others, persons accused" of other trespasses (than those specially mentioned) for which a man ought not to lose life or member." Some doubt may have existed in early times whether this definition included all misdemeanours, or only common misdemeanours, and if the latter only, what were common; but for many years the received opinion and practice has been that all persons accused of misdemeanour, whether common or otherwise, are entitled to be admitted to bail. It is, however, somewhat remarkable, that the legislature in a late act of parliament, 11 & 12 Vict. c. 42. s. 23, has drawn a distinction, and has given authority to Magistrates to admit to bail at their discretion persons accused of certain specified misdemeanours (among which is this very one of assaulting a peace officer in the execution of his duty), but has directed that in all other cases of misdemeanour Magistrates shall admit to bail. Assuming, however, that this plaintiff was entitled to be admitted to bail, what was the nature of the Magistrate's duty who was called upon so to admit him? Clearly that duty was to a great extent judicial namely, in respect of fixing the amount of bail, and of determining as to the ability of the persons tendered, which two requisites make up the sufficiency. It is, however, contended, that if those requisites exist, the act of admitting to bail becomes ministerial only; that this declaration shews those requisites to have existed, and that the jury have so found; consequently, that nothing remained for the Magistrate to do but to admit to bail, and that his duty had become ministerial; that he refused to perform that duty without reasonable and probable cause, and is therefore liable to an action even in the absence of malice; just as it will lie against a sheriff for refusing to take bail or grant replevin, or against a Magistrate for refusing to take examinations under the statute of Hue and Cry-Green and the Hundred of Buccle-Churches case (7) (where however the point was not actually determined). In The Queen v. Tracey, it was said by the Court, that "it is an offence in a Justice of the Peace to refuse bail in case of a common misdemeanour, and it suffices to say in the indictment that suffi

(7) 1 Leo. 323.

cient bail was tendered, without saying that the party knew them to be sufficient;" and upon that authority principally it is that the plaintiff contends that this declaration shews that the defendant's judicial duty was satisfied and at an end, and his ministerial duty only remained to be exercised.

We have had much doubt and difficulty in coming to a conclusion upon this point; but upon the fullest consideration, we are of opinion, that the duty of the Magistrate in respect to admitting to bail cannot be thus split and divided; that it is essentially a judicial duty, involving inquiries on which discretion must be exercised, and in some cases of misdemeanour discretion under circumstances of much nicety, and that we cannot lay down a rule which is to depend upon the peculiar facts of each case. broad line of distinction is this, that unless the duty of the Magistrate is simply and purely ministerial, he cannot be made liable to an action for a mistake in doing or omitting to do anything in execution of that duty, unless he can be fixed with malice, which in this case has been negatived by the jury. Rule discharged.

1849. Feb. 1.

The

THE QUEEN v. BLANSHARD,
CLERK, AND others.

Mandamus-Poor Law-JurisdictionRemovability-9 & 10 Vict. c. 66.—Relief.

Where an application was made to Justices for a warrant of removal on the complaint of the overseers of the applying parish, which stated, amongst other things, that the pauper sought to be removed had not resided there for five years exclusively of the time to be excluded according to the provisions of the 9 & 10 Vict. c. 66, and it appeared at the hearing before the Justices that the pauper had during part of the five years anterior to the passing of the statute been in receipt of relief from another parish, and the Justices decided that the pauper was under the circumstances irremovable, and refused to make the warrant,—Held, that no mandamus would lie, as the Justices had not declined to exercise their jurisdiction, but had entered upon the inquiry and had decided, though erroneously.

Mandamus. The writ recited that complaint was made to the defendants, Justices of the Peace for the East Riding of the county of York, at a petty sessions holden at Driffield in and for the said riding on the 4th of February 1847, by the overseers of the poor of the township of Hutton Cranswick, in the East Riding of the county of York, that Samuel Dickenson, with his seven children had come to settle, and were then inhabiting in the said township, not having resided there for five years exclusively of the time to be excluded according to the force of the statute in such case made and provided, nor having gained a legal settlement there, nor produced a certificate acknowledging any of them to be settled elsewhere; and that they were then actually chargeable to the said township; and that the parish of Watton, in the said riding, was the place of their last legal settlement; and that on the above day the said complaint came on to be heard by the defendants; and that the defendants were then and there required to receive the said complaint, and to hear and determine the merits thereof and to adjudicate thereon, but that the defendants, not regarding their duty in that behalf, then and there wholly neglected and refused to receive the said complaint, and to hear and determine the merits thereof and to adjudicate thereon, and then and there dismissed the same without hearing the merits thereof. [The writ then commanded the defendants to proceed to receive the said complaint, and to hear and determine the merits thereof and to adjudicate thereon.]

Return-That on the 4th of February within mentioned the said complaint of the said overseers was made to and came on to be heard at the said petty sessions; and that the said complaint was an application by the said overseers for a warrant for the removal of the said Samuel Dickenson and his said children from the said township of Hutton Cranswick to such other parish, township, or place as should be the place of their last legal settlement; and that the said complaint did not allege the said children or any one or more of them to be removable from the said township, otherwise than along with their said father; that the defendants did then and there receive the same complaint and application and hear the merits thereof; and that on the said hearing it was

made to appear to the defendants in due course of law, and by the admission of the said complainants, that the said Samuel Dickenson at the time of the said application was residing with his said children in the said township of Hutton Cranswick; and that he had been there residing without interruption for the space of ten years next before the said application, but that for the space of six years and upwards next before the said application the said Samuel Dickenson had been in the constant receipt of relief for the earlier and greater part of the said space of six years and upwards from the parish of Watton in the said riding, and for the residue of the said space of six years and upwards, that is to say, ever since December 1846, from the said township of Hutton Cranswick; and that the defendants did thereupon then and there decide that the said Samuel Dickenson and his said children were respectively irremovable from the said township of Hutton Cranswick, and did then and there dismiss the said complaint as aforesaid.

There was a plea to the return, which stated that the defendants dismissed the said complaint and application upon the ground that the said S. D, being then so resident and having resided in the said township as aforesaid, had so resided there for five years next before the said complaint and application; and that the time during which the said S. D. had before the passing of the 9 & 10 Vict. c. 66, to wit, before the 26th of August 1846, received relief from the said parish of Watton, or had before the passing of the said act been wholly or in part maintained by any rate or subscription raised in any parish in which the said S. D. did not reside, not being a bona fide charitable gift, was not to be excluded in the computation of the said five years, and upon no other ground whatever, and upon no other or further hearing of the said complaint and application; and that although before the defendants so decided, the overseers of the said township tendered evidence, and prayed to be admitted further to prove, and required the defendants to hear as well all and singular the merits of their said complaint. and application, as that the said S. D. so being resident in the said township of Hutton Cranswick as aforesaid, had for a long space of time next before the said complaint and