mitted in the jurisdiction, and the Justice pronounces his judgment in the first instance, as all other Courts do, by parol: the law allows a Justice of the Peace, as well as any other Court, to take time to draw up his judgment in due form of law, but has fixed no time for it; and therefore it may be, that it was not till after the judgment was executed upon this party, that the conviction was drawn up, for it is quite in sufficient time, as was the case in Massey v. Johnson; there the party had sustained all the punishment inflicted upon him by the conviction before the conviction was drawn up. Then, according to this argument, was the Justice an offender-was there any cause of action subsisting during the time that the man was in prison?-none whatever, for there existed no cause of action until the Magistrate put his hand to the record of conviction. Now, then, this plaintiff might say, true it is you convicted me acaccording to law-true it is I have been justly punished; but your officer, in drawing up the record against me, has made a little slip, he has forgot to put in, whether you had jurisdiction; therefore, I have a cause of action against you, which I never had before, because your officer has omitted to state you had jurisdiction. It is an outrage upon common sense, as well as all the principles of justice, to say that a Magistrate, under such circumstances, shall not have an opportunity to supply the omission by evidence. Consider the consequences to which it would lead :-suppose one of your Lordships should convict a man of a capital offence upon any of the circuits, and for some cause or other, the record should be removed to a court of error, and the officer in drawing it up should not specify the jurisdiction, the Court of Error in that case must reverse the judgment; but is it to be inferred that the party, against whom such a judgment is pronounced, shall complain of the Judge as a trespasser, because the officer, in drawing up the instrument, has committed a clerical mistake? Or, suppose the party was himself prosecuted again, and he had occasion to plead autrefois acquit or convict; and, suppose he produced this, to shew he was convicted, and the objection was taken, that there was no jurisdiction to convict him upon the face of the instrument;

would he not have a right, in his own protection, to shew that there was jurisdiction, and he had undergone the punishment? Could this man be prosecuted again? Can anybody say that? Certainly not. The Magistrate had jurisdiction to convict him; he has convicted him, and he has undergone the punishment; and therefore he has sustained no harm. And the Courts of law possess all the authority necessary in these cases; they will take care that all is regular; and, although they have no right to inflict any penalty upon the Magistrate, or any mulct, they will reverse what he has done if it is illegal in point of law. But it is a most remarkable thing, that the whole of the argument on the other side has assumed that, in the case of a clerical slip of the kind supposed, an action of trespass will lie against a Justice of the Peace. I contend, that an action will not lie against a Justice of the Peace for a slip of this kind, if there was a fact to support it; and my learned Friend, on the other side, has never touched that great question-one of the most important questions to Justices of the Peace throughout the kingdom, that can possibly be submitted to the consideration of a superior Court,-whether a Justice of the Peace be or not answerable in a civil action of trespass for a slip or error such as this. If such an action would lie, our books would be full of them, and our courts would ring with them; but there is an universal silence upon the subject. As far as I can find, in all the books I have had opportunities of searching, I do not find a single instance, although innumerable cases occur every term, in which the Court of King's Bench reverse, convictions for defects upon the face of them-there is not one instance to be found, of an action being brought against a Justice of the Peace, where he had jurisdiction over the fact. It is not for me to produce authorities to shew that an action does not lie; it is upon the other side, which has not been able to produce a single authority, to shew that such an action has ever been endured. The Court are called upon, in case they should be of opinion that it is a material inaccuracy, to decide, for the first time, that a Justice of the Peace is liable to an action of trespass as a wrong-doer, provided his clerk does not state the jurisdic

tion upon the face of the conviction, or, as in this case, imperfectly states it. It is not disputed but that we did, on the trial, prove that the place was within the jurisdiction; and we went further, and proved that the party had committed the offence. We proved everything, therefore, necessary to make out the defence of the Justice; and we had a right, I submit, to do so, by giving evidence dehors the record. If we had, then we are right, and the Magistrate has made a complete defence to this action. The plaintiff complains, that he was a trespasser and wrong-doer in sending him to prison: the Magistrate has proved he was not a wrong-doer; he has proved he had jurisdiction to try the charge preferred; he did try, and did convict him; and, in fact, the plaintiff did commit this offence.

Mr. Patteson, on the same side. The ob jection first made on the other side, as to the want of proof of the information, or of the non-appearance on the part of this man before this Magistrate, must fall to the ground, on account of the general form of conviction given in the act; because, had that general form of conviction not been given in the act of 52 Geo. 3, the conviction must have stated that the party appeared, and so forth. It has not been denied, that, if it had appeared on the face of the conviction that there was an information, and a summons and an appearance, it would have been sufficient.

Mr. Justice Bayley.-I am not sure that he concedes that; because, upon referring to that case in Strange, he intimates, it would be necessary to prove the information.

Mr. Starkie. I say, it is not necessary for me to contend that.

There

Mr. Patteson.-That question is sufficiently decided by the case of Brittain v. Kinnaird, and other cases, which have held, that the conviction is conclusive evidence of the facts stated in the conviction. are a great many cases which go the length of saying, that the conviction is conclusive evidence of the facts stated in it, and not merely of the facts upon which the conviction proceeded.

Mr. Justice Bayley.-Are they conclusive evidence ?-Might not the plaintiff be at liberty to prove that the defendant was a Magistrate, and convicted him in one county,

whereas, the offence was committed in another? Might not he call witnesses to prove that the Magistrate convicted behind his back, and that, in point of fact, the Magistrate never issued any summons?

Mr. Patteson. It is not necessary for me to say that it is conclusive evidence; it is sufficient for me to say it is prima facie evidence of the facts contained in it. Now, if that be so, it is not necessary to prove the information, and summons and appearance, where the conviction sets them out. I apprehend it is clear, where a summary conviction is given by the act, that that summary conviction must be equally primá facie evidence; because those facts are necessary to make it a good one; otherwise the Magistrate would rely upon the act, and draw the convictions up in the form given, and then, at the trial, would find himself turned round by so doing.

Mr. Justice Bayley. That which was meant to be a protection to Magistrates, would turn out not to be so.

Mr. Patteson.-It would turn out to be a trap for them. In the case of Brittain v. Kinnaird, which was that of a conviction under the Bum-boat Act, the act gave the form of conviction-that so and so "was convicted before me;" and, in the report of the case, it appears that the defendant was called upon to give some evidence; he put in the conviction, and upon that the point was raised, whether it was sufficient alone. It is true that the argument afterwards turned upon whether the conviction was sufficient evidence of the offence being committed within the specific jurisdiction-that is, being a boat, and not another kind of vessel; but an argument arises in our favour in that case, for the objection of want of jurisdiction being silent on this point at the trial, no information was proved, because no such objection was then dreamt of. We submit, that the conviction always implies that the previous steps have been taken, and that the general form having been followed, it is prima facie evidence of such previous steps having been taken.

Now we come to the second objection, upon the face of the conviction itself. It does appear upon the face of the conviction itself, that the offence was committed in the township of Sutton; and though it does not

appear that the township of Sutton is in Prescot, yet it appears that it is in the county. Therefore, so far as the jurisdiction goes, the Magistrate saying he is a Justice of the county, and a commissioner for the district of Prescot, in the county, it appears upon the face of the proceedings that he had jurisdiction over the offence, unless there is something limiting the power of the commissioners of the county to a particular division. Now, in the 4th Geo. 3. c. 2, it is expressly said, that their dividing themselves into districts shall not prevent them acting as commissioners of taxes of other parts of the county. By 1 & 2 Geo. 4. c. 123, Mr. Clarke is appointed by name, "John Clarke, of Ashfield House". "for the county palatine of Lancaster." The act divides the whole kingdom into a large number of districts, not by the counties only, but in some instances by one, in other of two counties, and in some instances by towns. Lancashire is not divided, it stands as a district by itself; and, under the head of the County of Lancaster is "John Clarke, of Ashfield." Therefore, if the word "district" has any meaning at all, it has certainly a larger meaning; it means such district as he is qualified to act for generally. All the Land Tax acts run in the same way, dividing the whole kingdom into divisions and districts -some counties, and some not; and I should submit, that the 52 Geo. 3. c. 93, means the districts in which, respectively, the commissioners named in the Land Tax Act are to be found, and that, in this instance, is the county of Lancaster.

But the great point remains, whether an action of trespass can be maintained against a Magistrate, and whether the proper course is not to apply to quash the conviction.

Mr. Justice Bayley.-The power of removing it by certiorari is taken away. But that will not put the party in a better situation than he otherwise would have been in. Mr. Serjeant Cross.-An appeal to the Sessions is the proper course.

Mr. Patteson. The case of The King v. the Justices of Gloucester (23) was before this Court upon this very question. There, an objection was made, that the jurisdiction did not appear upon the face of the instru

(23) 6 Law Journ. M.C. 21.

ment, and the convicted party applied to remove it, that it might be quashed upon that ground: there, as here, it did not shew that the place where the offence was comImitted was within the district-but the Court refused his application.

The third point is, as to the date of the conviction compared to the commitment. No authority has been cited to shew that it is absolutely necessary for the Magistrate to follow up the conviction immediately by commitment. commitment. Some cases have been supposed in which Magistrates might act vexatiously, but nothing of that kind is to be presumed. If it was once held that a man could not commit at a time distant from that of conviction, then, if a Magistrate should indulge a party with time to endeavour to get the money, and he afterwards committed him, the consequence would be, that in all such cases he would be liable to have an action brought against him. However, the late act of 5 Geo. 4. c. 18. applies to this case; it states very many cases in which a Magistrate may commit a man to prison without having a distress-warrant at all. It says, "If it shall appear to the satisfaction of such Justice or Justices, Magistrate or Magistrates, either by the confession of the offender or offenders, or otherwise, that he, she, or they, hath not, or have not, goods or chattels within the jurisdiction of such Justice or Justices, Magistrate or Magistrates, sufficient whereon to levy all such penalties and forfeitures, costs and charges, such Justice or Justices, Magistrate or Magistrates, may, at his or their discretion, without issuing any warrant of distress, commit the offender or offenders for such period of time and in such and like manner, as if a warrant of distress had been issued and a nulla bona returned thereon." In a former part of the same section, it provides, that, if there be a warrant of distress, and it shall appear there are not sufficient goods, but some goods, it shall not be necessary that there shall be a sale of such goods as there are, but that, there not being enough, the defendant shall be committed by the Magistrate; he, being satisfied there is not enough, may commit him at once. And another section provides, that if the defendant can raise the money, and pay the gaoler, he

I

may do so, and he must release him. Therefore there is no hardship. My learned Friend, on the other side, says, that the Magistrate ought to have ascertained before he committed him, whether he had sufficient goods. say there is no case of that sort; and if the man had the means of paying it, he could at once get out of gaol. Here, it appears, that, at the date of the commitment, the Magistrate was satisfied that the man had no goods at all; that appears upon the face of the warrant, put in by the counsel for the plaintiff to fix the Magistrate.

Mr. Justice Bayley.-There is no evidence of there being any goods belonging to the plaintiff in the meantime.

Mr. Starkie here mentioned the case of Cloud v. Turfery (24), as one wherein the Court held, that an action would lie, unless the conviction was strictly regular.

The Court took time to consider of their judgment.

(24) 2 Bing. 318; s. c. 9 Mod. 595.

ΤΟ

Appointment-Power of-Will, not an execution of
the power, where, 44

did not--not proveable under surety's commis-
sion, where, 56

What contingency not capable of valuation,
to enable proof, 96

Attestation of signature to petition, 79
Canal shares are personal estate within 6 Geo.
4. c. 16. s. 73, 1

Bequest. See Construction.

Bond-Stamping after decease of obligor, 49

159

not an equitable charge on prize-money, where,

See Bankruptcy.
Bonus. See Bank Stock.

Canal Shures-are personal estate within 73rd section
of Bankrupt Act, 1

Charitable Legacies-Where given out of a mixed-
fund of real and personal estate, and residue given
to charity, in what ratio the charitable legacies
will fail, 132

Compensation. See Injunction.
Construction-of bequest containing a gift over, if
certain persons should die, 20

of bequest, and if legatee made no disposition,
then over, 151

of bequest of property in the English funds-
as to what will pass, 38

of devise, as conferring life-estate, with power
of sale, 104

as giving a life-estate only, 133
of gift of moiety of personalty, included moiety
of certain purchase-monies of realty, 156

of clauses in marriage settlement as to wife's
power of disposition over a fund, 25

Whether sum to be raised out of rents, or by
sale or mortgage, 171

of the words "survivors or survivor," 134
Whether an illegitimate child would take by
the name of children, in particular case, 145
Contingent Debt. See Bankruptcy.

A