4. Qualification and oath of.

Oath as to estate.

ed.

"I, A. B., do swear, that I truly and bonâ fide have such an estate, in law r equity, to and for my own use and benefit, consisting of, [specifying the ture of such estate, whether messuage, land, rent, tithe, office, benefice, or what else], as doth qualify me to act as a justice of the peace for the county, riding, division of, according to the true intent and meaning of an act of Parliamen made in the eighteenth year of the reign of his Majesty King George the Second intituled, An Act to amend and render more effectual an act passed in the fifth of his present Majesty's reign, intituled An Act for the further qualification justices of the peace; and that the same [except where it consists of an benefice, or ecclesiastical preferment, which it shall be sufficient to ascerta their known and usual names] is lying or being, or issuing out of lands, teneme or hereditaments, being within the parish, township, or precinct of several parishes, townships, or precincts of · in the county of veral counties of [as the case may be.]

or in the a

Oath to be record- Which oath, so taken and subscribed as aforesaid, shall be kept by the clerk of the peace of the said county, riding, or division, for the tim being, among the records of the sessions for the said county, riding, division."

Copy of oath.

Evidence of.

Acting without taking such oath,

Penalty £100.

Proof of qualification on defendant.

Acts of justice not qualified not absolutely void.

1 P.&A

A sequestration of a living is an incumbrance within the meaning this enactment. (See Pack v. Tarpley, 9 Ad. & Ell. 468; 478, S. C.) The clear yearly value contemplated by the act is pla that which comes into the pocket of the owner of the estate as such a all demands on it are satisfied.

property, a

In an action for a penalty against a party for acting as a sioner under a local act without being qualified, where, by the act, de was required to have a qualification of 507. a year in real 15007. in personalty, or 257. in real, and 10007. personal propery all charges and incumbrances whatsoever," it was held that the words did not mean beyond payment of all his debts, but only a to specific charges on the property in respect of which he claimed qualified. (Dummelow v. Lees, 1 C. & K. 408).

Sect. 2. "Every such clerk of the peace shall, upon demand for the purpose made, forthwith deliver a true and attested copy of the said in writing, to any person paying for the same the sum of 2, more; which being proved to be a true copy of such oath, to be amongst the records as aforesaid, shall be admitted to be given in dence upon any issue in any action, suit, or information, to be b upon this act."

Sect. 3. "Any person who shall act as a justice of the peace fr county, riding, or division, within that part of Great Britain cal gland, or the principality of Wales, without having taken and sus the said oath as aforesaid, or without being qualified, according true intent and meaning of this act, shall, for every such offenc the sum of 100%.; one moiety to the use of the poor of the p which he most usually resides, and the other moiety to the use person or persons who shall sue for the same, to be recovered, with full costs of suit, by action of debt, bill, plaint, or informat any of his Majesty Courts of record at Westminster, in which protection, wager of law, or more than one imparlance shall be a and in every such action, suit, or information, the proof of his cation shall lie on such person against whom the same is brough

It is, it seems, sufficient, if the defendant shews that he has pr to the required amount, and it is not incumbent on him to gi*: evidence with a view of shewing that it is not incumbered. (D v. Lees, 1 C. & K. 408).

The acts of a justice of the peace, who has not duly qualified br are not absolutely void: and, therefore, persons seizing goods warrant of distress, signed by a justice who had not taken the the general sessions, nor delivered in the certificate required, trespassers. (Margate Pier Company v. George Hannam, Janci

esquires, and two others, 3 B. & Ald. 266). That was an action of tres-
pass for taking goods: the defendant pleaded, not guilty. Two ques-
tions were raised in the case; the first was, whether the plaintiffs were
liable to be rated to the poor. The Court decided that they were; and
their judgment was grounded on the special provisions of the acts of
Parliament creating the company, and the peculiar nature of the pro-
Derty. The second question was, whether the warrant of distress, signed
by the defendants, Ĥannam and Dyson, was legal; and that depended
pon the question, whether the acts done by Dyson, as a justice for the
inque Ports, were valid, he having omitted to deliver in a certificate, or
o take the oath at the general sessions in the Cinque Ports, as required
y the acts of Parliament. Abbott, C. J., delivered the judgment of the
Court as follows:-"This was an action of trespass, brought for levying
ertain poor-rates for the parish of St. John the Baptist, in the Isle of
hanet. There had been three rates, all regularly made and published.
wo of the three had been duly allowed by two of the justices of the
nque Ports. The third was allowed by the defendants, Hannam and
son, acting as such justices: the warrants of distress had been issued
these defendants, and executed by the other two defendants, one of
tom was an overseer of the poor, and the other a constable of the parish.
pies of the warrants had been demanded, and notice of the action
en. A case was reserved at the trial of the cause, upon two ques-
ns: first, whether the plaintiffs were liable to be rated for the relief
the poor; secondly, whether the acts of the defendant Dyson, as a
ice of the peace for the liberties of the Cinque Ports, in the matter in
stion, were valid or not. The case was argued before us upon the
question at Serjeants'-Inn Hall, and we then gave our opinion in
affirmative, viz. that the plaintiffs were liable to be rated for the re-
of the poor. The second question was spoken to at the same time,
afterwards more fully argued here during the present term. It
s in this manner: by stat. 51 Geo. III. c. 36, his Majesty is
orized to issue a commission, to be directed to certain persons to be
in named, constituting them to be justices of the peace within and
ghout the liberties of the Cinque Ports, and investing them with
me power and authority as belongs to any mayor, bailiff, or jurat,
ercise within the liberties of the town whereof he is mayor, bailiff,
at. And from and after (these are the words of the statute) such
ission or commissions shall have so issued, all persons and every
1 named in any such commission or commissions, shall be, and
and each of them is and are hereby declared to be, justices and a
* of the peace within and throughout the liberties of the Cinque
and invested with the same power and authority within and
ghout the same' as belongs to any mayor, bailiff, or jurat within
rt or town. By the third section of this act it is provided and
d, That no person or persons to be named in such commission
be thereby or by this act authorized to act as a justice of the
unless he shall have such qualification as will authorize him to
a county, and unless he shall have taken and subscribed the
and delivered in at some general sessions, to be holden in some
the Cinque Ports, the certificate respectively required to be taken
bscribed and delivered in by persons qualifying themselves to act
anties.' The defendant Dyson had taken the oaths under a writ
mus potestatem, but he had omitted to deliver a certificate, or take
th at any general sessions in any one of the Cinque Ports; and
his omission the objection to the validity of his acts as a justice
ounded. We are of opinion, that, notwithstanding this omission,
as a justice in the matters in question were valid. An objec-
the same nature may happen to arise in some cases of persons
as justices for counties at large; and this gives a general import-
the question. By stat. 18 Geo. II. c. 20, it is enacted, "That
on shall be capable of being a justice, or acting as such for any
III.
SSS

4. Qualification and oath of.

In boroughs.

Defendant to spe

tained in the oath

in action against him for being disqualified.

county, without the qualification by estate therein mentioned, and who
shall not take, at some general or quarter sessions, the oath therein pre-
scribed.' And by the second section, Any person who shall act as s
justice, without having taken the oath or without being qualified, shai
forfeit 100%.' It is obvious, that, if the act of the justice, issuing a war-
rant, be invalid on the ground of such an objection as the present, i
persons who act in the execution of the warrant will act without y
authority: a constable who arrests, and a gaoler who receives a fés,
will each be a trespasser; resistance to them will be lawful; every th
done by either of them will be unlawful; and a constable, or pers
aiding him, may, in some possible instance, become amenable even a
charge of murder, for acting under an authority which they reasonaby
considered themselves bound to obey, and of the invalidity where
they are wholly ignorant. An exposition of these statutes pregnan
with so much inconvenience ought not to be made, if they will adot
of any other reasonable construction. Acts of Parliament,' says Ler.
Coke, are to be so construed, as no man that is innocent, or free from
injury or wrong, be by a literal construction punished or endamered
We think these acts do most reasonably admit of another constructe
We think the restraining clauses are only prohibitory upon the
tice. By the particular act upon which this question has arisen, M
Dyson, having been named in the commission, is declared to be a yt-
tice, and invested with power and authority as such. The
proper
therefore, as it seems to us, of the third section, is only to make it z-
lawful in him to act as such, but not to make his acts invalid May
persons, acting as justices of the peace by virtue of offices in
tions, have been ousted of their offices from some defect in their electin
or appointment; and although all acts, properly corporate and
done by such persons, are void, yet acts done by them as justies, er
a judicial character, have in no instance been thought invalid. T:
distinction is well known. The interest of the public at large requ
that the acts done should be sustained: sufficient effect is given to th
statutes by considering them as penal upon the party acting. Nom.
niary penalty, indeed, is imposed by the stat. 51 Geo. III., but s
tice acting contrary to its prohibitory clause will subject himself, if
to the penalty of the 18 Geo. II., yet certainly to a prosecution by
dictment. For these reasons we think there must be a judgmes
nonsuit." (And see R. v. Justices of Herefordshire, 1 Chit. Rep.
The acts of county justices in boroughs, where they have no
rent jurisdiction, are, it seems, absolutely void. (Talbot v. Kebli
1154).

Sect. 4. "If the defendant, in any such action, suit, or inform cify lands not con- shall intend to insist upon any lands, tenements, or hereditas contained in such oath as aforesaid, as his qualification to act tice of peace in part, or in the whole, at the time of the suppose wherewith he is charged, he shall, at or before the time of his p deliver to the plaintiff or informer, or his attorney, a notice in specifying such lands, tenements, and hereditaments, (other tha contained in the said oath), and the parish, township, precinct, «r or parishes, townships, precincts, or places, and the county or e wherein the same are respectively situate, lying, or being; (eff benefices excepted, which it shall be sufficient to ascertain br Plaintiff may dis- known and usual names); and if the plaintiff or informer, in st

continue such

action.

Lands not men

tioned in oath or

action, suit, or information, shall think fit thereupon not to proce further, he may, with the leave of the Court, discontinue such suit, or information, on payment of such costs to the defendant Court shall award."

Sect. 5. "Upon the trial of the issue in any action, suit, or notice not allowed. tion, to be brought as aforesaid, no lands, tenements, or heredi which are not contained in such oath and notice as aforesaid, or them, shall be allowed to be insisted upon by the defendant as a of his qualification."

Sect. 6. "Where the lands, tenements, or hereditaments contained in the said oath or notice are, together with other lands, tenements, and hereditaments belonging to the person taking such oath, or delivering such notice, liable to any charges, rents, or incumbrances, within the true intent and meaning, and for the purposes of this act, the lands, tenements, and hereditaments contained in the said oath or notice shall be deemed and taken to be liable and chargeable only so far as the other lands, tenements, and hereditaments so jointly charged are not sufficient to pay, satisfy, or discharge the same.'

rent only.

Sect. 7. "Where the qualification required by this act, or any part Qualification by thereof, consists of rent, it shall be sufficient to specify in such oath or notice as aforesaid so much of the lands, tenements, or hereditaments, out of which such rent is issuing, as shall be of sufficient value to answer such rent."

Sect. 8. "In case the plaintiff or informer in any such action, suit, or Action disconinformation shall discontinue the same, otherwise than aforesaid, or be tinued. nonsuit, or judgment be otherwise given against him, then, and in any of the said cases, the person against whom such action shall have been brought shall recover treble costs."

Sect. 9. "Only one penalty of 1007. shall be recovered from the same Only one penalty. person by virtue of this act, or of an act made in the fifth year of the reign of his present Majesty, intituled, An Act for the further Qualification of Justices of the Peace, for the same or any other offence committed by the same person, before the bringing of the action, suit, or information, upon which one penalty of 1007. shall have been recovered, and lue notice given to the defendant of the commencement of such action, suit, or information; any thing in this or the same act to the contrary notwithstanding."

Sect. 10. "Where an action, suit, or information shall be brought, Subsequent action and due notice given thereof as aforesaid, no proceedings shall be had for prior offence. upon any subsequent action, suit, or information against the same person, for any offence committed before the time of giving such notice as aforesaid; but the Court where such subsequent action, suit, or information shall be brought may, upon the defendant's motion, stay proceedings upon every such subsequent action, suit, or information, so as such first action, suit, or information be prosecuted without fraud, and with effect, it being hereby declared, that no action, suit, or information which shall not be so prosecuted shall be deemed or construed to be an action, suit, or information within the intent and meaning of this act."

Sect. 11. "Every action, bill, plaint, or information, given by this or Limitation of acthe said former act, shall be commenced within the space of six calendar tions. months after the fact upon which the same is grounded shall have been

committed."

Sect. 12. "This act, or any thing herein contained, shall not extend, Places excepted. or be construed to extend, to any city or town, being a county of itself, or to any other city, town, Cinque Port, or liberty, having justices of the peace within their respective limits and precincts, by charter, commission, or otherwise; but that in every such city, town, liberty, and place, such persons may be capable to be justices of the peace, and in such manner only as they might have been if this act had never been made; any thing hereinbefore contained to the contrary thereof in any wise notwithstanding."

Sect. 13. "Nothing in this act, or in an act passed in the fifth year of Persons excepted; his present Majesty's reign, intituled, An Act for the further Qualification of Justices of the Peace, contained, shall extend to any peer or lord of Parliament, or to the lords or others of his Majesty's most honourable Privy Council, or to the justices of either bench, or to the barons of the Court of Exchequer, or to his Majesty's Attorney or Solicitor-General, or to the justices of great sessions for the county palatine of Chester, and

4. Qualification and oath of.

the several counties of the principality of Wales (a), within their respective jurisdictions, or to the eldest son or heir apparent of any peer or lor of Parliament, or of any person qualified to serve as a knight of a shire by the 9 Anne, c. 5, any thing herein contained to the contrary Eldest son, or heir- thereof in anywise notwithstanding."

Peers, &c.;

apparent of any
peer, or person
qualified to serve
as M. P.

Or officers of
Board of Green
Cloth, &c.

Heads of houses, &c.

Borough justices.

Justices becoming disqualified.

Sect. 14. "Nothing in this act, or in the said act of the fifth year of the reign of his present Majesty, contained shall extend, or be construe! to extend, to incapacitate or exclude the officers of the Board of Gre Cloth from being justices of the peace within the verge of his Majesty palaces, or to incapacitate or exclude the commissioners and princ officers of the navy, or the two under secretaries in each of the offices principal secretary of state, or the secretary of Chelsea College, from being justices of the peace in or for such counties or places where they usually have been justices of the peace; any thing herein contained the contrary in anywise notwithstanding."

Sect. 15. "This act, or anything herein contained, shall not exten or be construed to extend, to any of the heads of colleges or halls in either of the two universities of Oxford or Cambridge, or to the vi chancellor of either of the said universities, or to the mayor of the of Oxford, or of the town of Cambridge, but that they may be and at as justices of the peace of and in the several counties of Oxford, Berks, and Cambridge, and the cities and towns within the same, and exerte the office thereof as fully and freely in all respects as heretofore they have lawfully used to execute the same, as if this act had never bees made; any thing hereinbefore contained to the contrary notwithstand. ing."

Justices appointed for boroughs within the Municipal Corporations Act are not required to have any qualification by estate, nor need they be burgesses; (5 & 6 Will. 4, c. 76, s. 101); but they must reside within the borough, or within seven miles of it. (Id. s. 98. See tit. “Orporations," Vol. II. p. 106).

Becoming disqualified.]-It has been held, that a person who has qualified for the office of a justice of peace, and acts as such, must have a clear estate of 1007. per annum, in law or in equity, for his own us is possession, and he must continue to possess it so long as he continues act, or he will incur the penalty; and, 2ndly, that, in an action a person for the penalty given by the stat. 18 Geo. II. c. 20, for acting as a magistrate without a proper qualification, no notice of action is cessary under stat. 24 Geo. II. c. 44. (Wright v. Horton, Holt, N.P.C. 458). This was an action of debt upon the stat. 18 Geo. II. c. 2, brought against the defendant to recover a penalty of 100%, for acting a justice of peace in the county of York, not being duly qualified b law. It appeared that the defendant had taken the benefit of an insal vent act in January, 1814, subsequent to which time he had repeatedly acted as a magistrate, without acquiring any new qualification. Head qualified originally in 1802. No notice of this action had been given by the plaintiff to the defendant. For the defendant it was contends, that the plaintiff was bound to prove a notice of action according to the provisions of the stat. 24 Geo. II. c. 44. The defendant had acted as 4 magistrate, and was therefore entitled to the privileges and protection that office. But Wood, B., ruled, that he was not within the act. The question to be tried is, was he a magistrate? It was then contended, that, if they were enabled to shew when Mr. Horton was discharged from prison, and that there was a fair probability that his estate would pay his debts, and leave a sufficient surplus to uphold the qualificati of a magistrate, the present action would not lie. A legal estate in la was not necessary; an estate in equity was sufficient. They theref

(a) The 1 Will. IV. c. 70, abolishes the Welch judicature, &c. (SeeTM "Wales." Vol. VI.)