must ascertain and determine the amount for which such person is liable, and insert the same in the conviction.

In making up judgment against the defendant for costs, the justice should only include the costs which have been made by the prosecutor, such as the fees for the process, service thereof, fees of witnesses summoned on the part of the prosecution, &c.

If the defendant makes any costs, he will be personally liable to the officers whose services he may require, in the same manner as for other services.

It has been held that, where a statute gives power to a justice of the peace, on a summary conviction, to award the reasonable charges of taking a distress, he must ascertain the amount in the conviction, and an adjudication that the defendant shall pay the reasonable charges of the levy is bad. 1 East, 189. 5 East, 339.

It is provided by statute that, "In all criminal prosecutions before a justice of the peace, where the party accused shall be found not guilty, and it shall appear to the justice before whom such case shall be tried, that there was no reasonable ground for said prosecution, and that it was maliciously entered, that in such case, the justice of the peace is hereby authorized to give judgment against the complainant for the costs of said suit, and issue execution thereon." Gale's Stat.,

422.

The date is essential to show the time when the conviction was made, and yet it has been held that if the date were impossible or incongruous, it may be rejected as surplusage, and will not vitiate if the correct time can be ascertained. 2 East, 197. But the time of the actual subscription and sealing is not material, nor need it correspond with that on the face of the conviction. 1 East, 185.

The convicting justice or justices must sign and seal the conviction, and this imports that he or they have fully considered and determined upon the same as the result of their judgment. The signing and sealing were always, at common law, considered essential to the validity of a conviction. Str., 794. 3 Barn & Cres., 619.

If a conviction be legal on the face of it, then as long as it stands unquashed, it will protect the justice or justices for any thing done under it. 16 East, 21. 7 Term Rep., 623. So that, when a warrant of commitment, or distress, or other execution thereon, is not in itself defective, then, unless the conviction has been quashed, it constitutes a complete defence and protection to the justice for anything done upon it, however irregular or unjust the conviction may have been as regards the merits. 3 Barn. & Ald., 684. 8 Johns. Rep., 50. Ante, 9.

But if a court of limited jurisdiction issues process which is illegal and not merely erroneous, as where the subject matter

upon which the process is issued is not within its jurisdiction; or if a court, whether of limited jurisdiction or not, undertakes to hold cognizance of a cause, without having gained jurisdiction of the person, by having him before them in the manner required by law, the proceedings are void; and, in the case of a limited or special jurisdiction, the magistrate attempting to enforce a proceeding founded on any judgment, sentence, or conviction, in such a case, becomes a trespasser. 19 Johns, Rep., 39. 2 Stark. Ev., 428-433.

These convictions being lengthy and tedious, are seldom drawn up in form, till some occasion calls them forth; as when a writ of certiorari issues from the superior court requiring the justice to certify the record and proceedings into that court; or when it becomes necessary that it should be read in evidence for the protection of the justice or officer executing process founded upon it.

It is no objection to the conviction that it has been drawn up in a regular form since the time of conviction, or even since the commencement of an action. 16 East., 21. And it is by no means unusual to draw up the convictions in point of form after the penalty has been levied under the judgment. Nor is there any legal objection to this method, provided the facts will warrant them in stating what they do; 1 East, 186. 12 East, 32; unless the process, subsequent to the time of conviction, should betray or disclose that it was not truly founded on a sufficient conviction. 1 Dowl. & Ry., 214.

It is, however, important that the justice should take minutes of the proceedings and judgment, so that, if called upon at any subsequent time, he may be enabled to draw up a conviction reciting all the material facts and circumstances attending the case.

These minutes, however, it is not presumed, could be used in evidence in any case. 5 Wend. Rep., 281.

9. Of enforcing the conviction and judgment.

1. By warrant of distress and sale.

2. By warrant of commitment.

1. Of the warrant of distress and sale.

When a fine has been imposed upon an offender in any of the superior courts of record, it appears that a levari facias might issue out of the court which imposed the fine, as well as out of the exchequer; for that the imposition of the fine constituted a debt of record due to the king, like any other judgment. Skin. Rep., 12. 2 Show, 173. 1.Ch. Rep., 401–443. And where a defendant, in an indictment for a misdemeanor, has received judgment of fine and imprisonment, it has been held that a levari facias may issue immediately to take goods

in execution of the fine. 1 Chit. Crim. Law, 811, 8 Wend. Rep.;

215.

But the county courts and court-baron not being courts of record, but the courts of private persons, it is said, cannot impose a fine or imprison. Jac. Law Dict., title Court. Yet in some cases they seem to have exercised the power of assessing amercements, for which, however, no distress could be taken and sold unless by prescription. 11 Coke Rep., 45. 12 Mod., 330. It has been held that as a distress for an amercement in a court-baron cannot be sold, that a distress infinite may go, 1 Bulst., 52, in which case the distress would be retained until satisfaction was made. 2 Bac. Ab., 206.

The great court-leet being an inferior court of record, may distrain for all fines and amercements. Jac. Law Dic., title Amercement. 2 Bac. Ab., 201–2.

Of common right a distress is incident to every fine and amercement in the sheriff's tourn or court-leet, whether the same belong to the king or to the subject, if the offence for which they were imposed be of common right incident to the jurisdiction of such courts. 2 Bac. Ab., 354.

The usual method of punishment in the court-leet is by fine and amercement, the former assessed by the steward and the latter by the jury; for both of which the lord may have an action of debt, or take a distress. Jac. Law Dic., title Court-leet.

of

A distress taken for an offence presented in the leet, may common right be sold, because it is a court of record. 12 Mod.,

330.

It seems to be agreed, that where any such court is in the king's hands, the goods distrained for such fines and amercements may lawfully be sold, after they have been kept a reasonable time, as the space of sixteen days. 2 Bac. Ab., 355.

For an amercement imposed at a court-leet, the lord may sell the distress, partly because, being the king's court of record, its process partakes of the royal prerogative; but principally because it is in the nature of an execution to levy a legal debt. 3 Bl. Com., 14.

These courts having for a long time been declining, the business which was formerly done in them has, for the most part, gradually devolved upon the quarter sessions, an inferior court of record held by two or more justices of the peace, possessing all the power and authority exercised by those

courts.

And in England, by the statutes, jurisdiction has been conferred upon a single justice to receive information and to hear and determine in many cases, for small offences. In these summary proceedings, he acts as a judge of record; and, when any offender is convicted, the justice pronounces judgment and makes up his conviction in writing, upon which he usually issues his warrant, either to apprehend the offender, in case corporeal punishment is to be inflicted on him, or else to levy

the penalty incurred, by distress and sale of his goods. 4 Bl. Com., 283.

All the courts in this state, as well the inferior as the superior courts, are the people's courts, and the tenure of the office of the judges and justices holding them is defined and prescribed by the constitution and laws; and a court of a private person is unknown to our laws.

It is apprehended that justices of the peace in this state, who are elected by the people and hold their office by virtue of the sovereign power, are invested with authority equal to the inferior courts of record in England.

And even in a civil suit before a justice, which terminates in a final judgment on the merits, the parties are precluded from again investigating the same matters, unless on appeal. 1 Scam. R., 152.

In proceedings, then, before justices of the peace under any special statute, which results in the conviction of the defendant and judgment for a fine or penalty, the fine or penalty becomes a debt of record, like any other judgment; and a distress, taken upon warrant or execution for the collection thereof, cannot be replevied for the purpose of again testing. the validity of the judgment, when the matter was properly within the jurisdiction of the justice, but may be sold to make the amount of the fine or penalty imposed by the justice.

Some of the statutes authorizing summary proceedings before justices of the peace expressly authorize the issuing of a distress warrant, or execution to collect the amount of any judgment which may be rendered, or costs awarded, by a sale of property.

Where power is given to levy a penalty by distress by any statute, without specifying that the distress may be sold, a power to sell is, notwithstanding, necessarily implied. 6 Mod., 83.

2. Of the warrant of commitment.

To every fine imprisonment is incident; 8 Coke R., 59; and, when an offender is fined, the usual judgment is that he be imprisoned until the fine is paid. 1 Vent., 116.

But, at the present day, all that is usual to insert in the judgment in relation to the execution is, the award of the proper process to carry into effect the sentence of the court. 8 Wend. R., 215.

In the superior courts, it seems that a levari facias, or a capias pro fine, may issue to collect the fine, and that the public prosecutor may cause either of these writs to be first. issued. 1 Salk. R., 56. 2 Show., 173.

Justices of the peace in England, by virtue of their commission and the statutes, were very early authorized to enquire of all trespasses or transgressions, to hear and try all such

offences after the offenders are come in, and to determine thereof, by giving judgment and inflicting punishment upon the offenders, according to the laws and statutes, viz., by fine, imprisonment, or otherwise, according to the law; but not to award any recompense to the party wronged otherwise than by persuasion. Dalt. Justice, 21. 3 Burn's Justice, 19.

And it is said that punishment of all offenders is implied in the word determine. 3 Burn's Justice, 19.

It seems that justices of the peace, upon their own view of some offences, may imprison the offender against divers penal laws, and that such offender ought immediately to be committed to jail, till he pays the fine. Dall. Justice, 584. 4 Burn's Justice, 104.

But imprisonment to be inflicted by the justice of the peace, almost in all cases, is but to retain the party until he hath made fine for the contempt or offence; and, therefore, if he shall offer to pay his fine, or shall find sureties by recognizance to pay it, he ought to be delivered presently. Dalt. Justice, 586. If the fine is tendered, there ought to be no imprisonment. Jac. Law Dic., title Fine for Offences.

It seems, however, that the adjudication need not be that the party shall be committed if he do not pay the penalty; the justice may commit him afterwards, if he refuse to pay. 3 Maul. & Sel., 331.

By our statutes, there are a number of offences committed to justices of the peace to hear and determine, and of which the offenders may be convicted, either upon their own confession or upon trial, in all which cases the justices may convene the offenders before them by summons or warrant, and, after trial and conviction, may imprison or otherwise punish the offenders, according as they are limited by the said statutes. These statutes will be found at large under their appropriate heads.

CHAPTER II.

MASTER AND APPRENTICE.

1. Binding of apprentices.

2. Differences between master and apprentice.

3. Attempts of master to remove apprentice out of the

state.