of a Judge, and if his opinion be in favour of the surcharge, the assessment shall be in the double duty, or mitigated as determined on the appeal, if other

wise.

If, however, the charge be confirmed, the person so charged or surcharged shall pay 40s. to the King, as costs attending the same. (a)

The Commissioners of the land tax, are also in the habit of applying, in cases of difficulty, for the opinion of the Judges. Thus, where the Masters in Chancery were rated for their apartments in Symond's Inn, and afterwards for their offices in Southampton Buildings, application was made to the Judges, who certified their opinions briefly, that in one case the determination of the Commissioners had been right, in the other wrong. (b)

(a) See Burn's Justice, 23d ed. vol. v p. 360.
(b) See 3 Bos. & Pul. 134. n. (a.)

CHAP. IV.

OF CERTIFICATES BY JUSTICES OF THE PEACE.

ALTHOUGH various certificates are occasionally employed by magistrates in the execution of their office, and many amongst these are so far matters of course as not to require a separate notice in this place, yet there are a few upon which litigation has arisen, and it will be our province to lay such before the reader.

sacrament.

It is required by 25 Car. 2. c. 2. s. 1., that every person Certificate of having that shall be admitted into any office, civil or military, taken the shall receive the sacrament of the Lord's Supper, according to the usage of the church of England, within three months after his admittance, in some public church, upon some Sunday immediately after divine service and sermon. And by s. 3., that such person shall first deliver, in the court where he takes the oaths, a certificate of such his receiving the sacrament as aforesaid, under the hands of the minister and churchwarden, and shall then make proof of the truth thereof by two credible witnesses, at the least, upon oath; all which shall be enquired of, and put upon record in the respective

courts.

A discussion lately arose upon the validity of a magistrate's warrant of distress, who had neglected to deliver in this certificate, or to take the oaths prescribed by the

Certificates

statutes upon that subject. The proprietors of the Margate Pier Company denied their liability to be rated to the relief of the poor; but being defeated on that ground, they relied upon the invalidity of the distress, for want of qualification on the part of the magistrates who had enforced it. The defendants, who were sued in trespass for taking goods, &c. were justices of the Cinque Ports, and by 51 G.3. c. 36. s. 3., the same qualification necessary for the justices of a county, is required for the magistrates of those ports, the delivery of the certificate in some general sessions, the oaths, &c.

It was the decided opinion of the Court, that the 18 G. 2., which speaks of a justice's incapacity without the due qualification; and the 51 G. 3. were in pari materiâ; that the restraining clauses of the former act were only prohibitory upon the party, and did not make his acts invalid; that if such were the case, a constable who arrested, or a gaoler who imprisoned under such a warrant, would each be a trespasser, and that the distinction known and established between the invalidity which sometimes accompanied the election of a corporate justice, and the annulling of his acts while in that situation, was solid and conducive to the public interest. It was added, that although no pecuniary penalty was inflicted by the 51 G. 3., the offending justice was still liable to a prosecution by indictment. (a)

Certificates signed by magistrates respecting highways of Justices have been recognized as very general, and of ancient highways. date. (b) Many of them are known to the common law,

relating to

(a) 3 B. & A. 266. Dyson, and others.

Margate Pier Company v. Hannam, (b) 6 T. R. 635. per Ashurst J.

although some have latterly been introduced by the highway acts. Thus, where it was moved to quash an indictment for a nuisance in building a barn upon the King's highway, the Court said, that they could hear nothing unless a certificate was produced of the removal of such nuisance. (a) And in a like case, C. J. Foster said, that the justices must certify that there had not been an encroachment, before they could relieve the defendant. He might take this course, or join issue, and then exceptions to the indictment would be entertained. (b) Again, upon an indictment for stopping a way, it was said to be the course of the Court, that the offender, upon his submission, should be prepared with a certificate that the way had been repaired. And this must have been before verdict, for it was held, that a certificate afterwards would not serve, but that a constat (e) should issue to the sheriff, who would return the way as repaired, since the verdict, being matter of record, could only be answered by matter of record. (d)

So, where an objection was made to an indictment for digging in the highway, the Court would put the parties to plead, and denied to hear it without a certificate of

(a) Cro. Car. 584. Leyton's case.

(b) 1 Keb. 256. Rex v. Randall.

(c) A constat is the name of a certificate which the clerk of the pipe, and auditors of the Exchequer, make at the request of any person who intends to plead or move in that Court for the discharge of any thing; and the effect of it is the certifying what (constat) appears upon record touching the matter in question. See Toml. Law Dict. tit. Constat. (d) Sir Thos. Raym. 215. Rex v. Houghton. 3 Salk. 183. S. C.

amendment. (a) And where a certificate was read, stating that the way in question had been repaired, the Court quashed the indictment. (b) However, in arrest of judgment no certification is required, because, issue having been joined, the matter for quashing the proceedings will appear on the record. (c)

When a party has been found guilty and fined, the matter, nevertheless, is not at an end, but writs of distringas are to issue in infinitum, until the Court is certified that the wrong has been repaired. Yet, it is to be observed, that the quashing of indictments respecting ways (d) with a certificate, is confined to cases directly for non-repair, for a charge against a defendant who had omitted to work in the highway with his team, was quashed for defect of form without certificate, the omission of working being by no means so considerable as the way itself. (e)

Moreover, a certificate as to the state of repair is always called for when the Court is about to impose a fine. And so, in a case for not amending a common footway, some justices of the peace were required to vouch for the sufficient repair before the Court would proceed

(a) 2 Keb. 221. Rex v. Shelderton Inhabitants. S. P. 2 Ro. Rep. 412. Nottingham's case. Sty. 108. 1 Keb. 291. Anonymous. 6 Mod. 163. The Queen v. Cluworth Inhabitants. 1 Salk. 359. S. C. Holt's Cases, 339. 2 Keb. 454. Rex v. Atwell, in the case of a bridge; and see Com. Dig. tit. Chimin. 6 T. R. 631., where all the authorities are collected.

(b) Sty. 163. Rex v. Mile End Inhabitants.

(c) 2 Keb. 728.

(d) 1 Salk. 359.

Rex v. Glaston Inhabitants.

(e) 2 Keb. 354. Rex v. Waterer.