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BUYING

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comiend, or negotiate in any manner for any person or persons in any matter that shall in anywise touch, concern, or relate to any such nomina

&c. OFFICES, tion, &c., aforesaid, or for the obtaining, directly or indirectly, the con- 49 Goo. 3, c. 12. sent or consents, or voice or voices of any person or persons to any such nomination, &c., aforesaid, then, and in every such case, every such person, and also every person who shall wilfully and knowingly aid, abet, or assist such person therein, shall be deemed and adjudged guilty of a misdemea

Sect. 5. - Whereas, on the pretence of negotiating or soliciting the sale, Persons opening or transfer, or appointment of any office or offices, which, under the exception atverising hours of this act or otherwise, it may be lawful to sell, offices for negotiating the siness relating to same and advertisements may be published, by means and under the cc- the sale of ovlices:

a lour of which illegal transactions intended to be prohibited by this act may ineanor. be carried on;' it is further enacted, That “ if any person or persons

shail open or keep any house, room, office, or place for the soliciting, transacting, or negotiating in any manner whatever any business relating to vacancies in, or the sale or purchase of, or appointment, nomination, or deputation to, or resignation, transfer, or exchange of any offices, commissions, places, or employments whatever in or under any public department, then, and in every such case, every such person, and also every person who shall wilfully and knowingly aid, abet, or assist therein, shall be deemed and adjudged guilty of a misdemeanor.”

Sect. 6. “ If any person or persons shall advertise or publish, or cause or Penalty on persons procure to be advertised, or in any manner published, any house, room, of advertising or pubfice, or place to have been or to be opened, set up, or kept for any of the of brokers or purposes aforesaid, or advertise or publish, or cause or procure to be ad- agents, lax. vertised or published, the name or names of any person or persons as vitner or brokers, agent or agents, solicitor or solicitors for any of the purposes aforesaid, or print, or cause or procure or permit or suffer to be printed or advertised, any advertisement or advertisements, proposal or proposals, for any of the purposes aforesaid, then, and in such case, such person or persons shall forfeit, for every such offence, the sum of 501., to be sued for, levied, or recovered in any of his Majesty's Courts of record at Westminster, as to all offences committed in England, or at Dublin as to offences committed in Ireland, or in his Majesty's Courts in Scotland as to offences committed in Scotland respectively; and the whole of every such penalty shall go to the person who shall sue for the same, with full costs of suit.”

Sect. 7. “ That nothing in this act contained shall extend or be construed Exception as to to extend to any purchases, sales, or exchanges of any commissions or

appointments in the honourable band of gentlemen pensioners, or in his Ma- the palace, or comjesty's yeoman guard, or in the Marshalsea, and the Court of the King of missions in the the Palace of the King at Westminster, or to extend to any purchases, sales, lated prices, and or exchanges of any commissions in lois Majesty's forces for such prices as authorized regia shall be regulated and fixed by any regulation made or to be made by his ing without fie. Majesty in that behalf, or to any act or thing done in relation thereto by any agents, provided that such agents shall be agents of regiments authorized by the commander in chief of his Majesty's forces, or by the colonels or commandants of regiments or corps, and shall act therein under such regulations only as are or shall from time to time be established by his Majesty, and shall not cause or procure, or knowingly permit or suffer to be printed or advertised, any advertisement or advertisements, proposal or proposals for any purchase or sale or exchange of any commission, or any negotiation relating thereto, and shall not receive or take any money, fee, gratuity, or reward, or any promise, agreement, covenant, contract, bond, or assurance, or by any way, means, or device, contract or agree to receive or have any money, fee, gratuity, or reward, for acting in such behalf.”

Sect. 8. “ That every officer in his Majesty's forces, who shall take, ac- Officers in army cept, or receive, or pay, or agree to pay, any larger sum of money, directly giving more than or indirectly, than what is allowed by any regulations made by his Majesty paying agents for in relation to the purchase, sale, or exchange of commissions in his Majes- negotiating, shall ty's forces, or who shall pay, or cause to be paid, any sum of money, to any inissions, and be

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purchase or sale of
certain offices in

VOL. III.

BUYING

49 Geo. 3, c. 196. cashiered; their commissions be sold; half of the

the informer, &c.

agent or broker, or other person, for negotiating the purchase or sale or ex&c. OFFICES. change of any such commission, shall, on being convicted thereof by a ge

neral court martial, forfeit his commission, and be cashiered; and as an encouragement for the detection of such practices, such commission so for

feited shall be sold, and half the regulated value (not exceeding 500l.) shall produce (not ex- be paid to the informer, and the other half, or the remainder, if more than cceding 501W., to

5001., shall go and be applied as his Majesty shall order and direct, by any regulations from time to time made in that behalf: provided also, that every person who shall sell his commission in his Majesty's forces, and not continue to hold any commission in his Majesty's forces, and shall, upon or in relation to such sale, take, accept, or receive, directly or indirectly, any money, fee, gratuity, loan of money, reward, or profit, or any promise, agreement, covenant, contract, bond, or assurance, or shall by any device or means contract or agree to receive or have any money, fee, gratuity, loan of money, reward, or profit, beyond the regulated price or value of the commission sold, and also every person who shall wilfully or knowingly aid, abet, or assist such person therein, shall be deemed and adjudged guilty of

a misdemeanor within the provisions of this act.”. Exception as to Sect. 9. “ That nothing in this act contained shall extend or be construed offices excepted in former act, and to extend to any office excepted from the provisions of the said act passed o:lices legally sale in the sixth year of the reign of king Edward the Sixth, against buying and able, &c.

selling of offices, or to any office which was legally saleable before the passing of this act, and in the gift of any person by virtue of any office of which such person is or shall be possessed under any patent or appointment for his life; or to render invalid, or in any manner to affect any promise, agree ment, covenant, contract, bond, assurance, or trust, entered into or declared before the passing of this act, and which, before the passing thereof, was a valid promise, agreement, covenant, contract, bond, assurance, or trust, in law or equity, or to any money paid, or to any act, matter, or thing done in pursuance of

any

such promise, agreement, covenant, contract, bond, or assurance." Saving of lawful Sect. 10. “ That nothing in this act contained shall extend, or be condeputations and payments out of

strued to extend, to prevent or make void any deputation to any office, in any case in which it is lawful to appoint a deputy, or any agreement, contract, bond, or assurance, lawfully made in respect of any allowance, salary, or payment, made, or agreed to be made, by or to such principal or deputy

respectively, out of the fees or profits of such office." Exception as to Sect. 11. " That nothing in the said act, or in this act, contained, shall one of the test, to extend to any annual reservation, charge, or payment made or required to

be made out of the fees, perquisites, or profits of any office, to any person unerly holding the who shall have held such office, in any commission or appointment of any

person succ

ding to such office, or to any agreement, contract, bond, or other assurance made for securing such reservation, charge, or payment: provided always, that the amount of such reservation, charge, or payment, and the circumstances and reasons under which the same shall have been permitted, shall be stated in the commission, patent, warrant, or instrument of appointment of the person so succeeding to and holding such office, and paying or securing such money as aforesaid.

Sect. 12, relates to certain offices in Ireland.
And sect. 13, to the manner of punishing offenders in Scotland.

Sect. 14. “ That all offences committed against the provisions of the said re

cited act, and this act, by any governor, lieutenant governors, or person having shall he tried in King's Bench. the chief command, civil or military, in any of his Majesty's dominions, colo

nies, or plantations, or his or their secretary or secretaries, may and shall be prosecuted and enquired of, and heard and determined in his Majesty's Court of King's Bench at Westminster, in like manner as any crime, offence, or misdemeanor committed by any person holding a public employment abroad may be prosecuted and enquired of under the provisions of an act passed in the forty-second year of the reign of his present Majesty, intituled * An Act for the trying and punishing in Great Britain persons holding public employments for offences committed abroad; and for extending the

the focs.

any person for.

Offences com-
Initted abroad

BUYING

provisions of an act passed in the twenty-first year of the reign of king James,

&c. Offices. made for the ease of justices and others in pleading in suits brought against them, to all persons either in or out of this kingdom, authorized to commit to 49 Geo. 3, c. 126. safe custody.

1)

. Opinions, when Evidence, see Evidence, Vol. II. p. 35.

Orchards, Stealing from, see Larceny, ante, p. 565, 566;-Ma

licious Injuries in, see Malicious Injuries to Property,
ante, p. 736 to 407.

Order of Court, Proof of, see Evidence, Vol. II. p. 43.

convictions.

Orders of Justices. MR. PALEY, in his work on Convictions, p. 99, 2nd edit

. 128, makes the greater part of the following observations upon the subject of Orders of Justices.

In truth, it is not easy to fix any rule for distinguishing, in the abstract, Distinction bebetween what things are the subject of orders, and what of convictions. tween orders and Practice seems chiefly to have been consulted in the distinction. Before the statute of 4 Geo. II., convictions were always recorded in Latin, whereas orders were returned in English; and we find this circumstance referred to as a criterion used by the Court in determining that a particular instrument, viz. a judgment of removal of a clerk of the peace by the justices in Setting out evisessions, should be considered as an order, and not as a conviction, and con- dence in order. sequently, as not requiring the evidence to be set out. R. v. Lloyd, 2 Str. 900.

The cases which seem to come the nearest to the nature of convictions, and which, nevertheless, have been treated as orders, so as to let in the less rigorous rules applicable to the latter, are the following, viz. orders of bastardy under 18 Eliz. c. 3; penal proceedings under 5 & 6 Edw. VI. c. 25, against persons continuing to keep a public house after an order of justices to suppress it; and those against tenants fraudulently removing goods to avoid distress, under 11 Geo. II. c. 28.

Orders of bastardy, as the name imports, have always been considered to Stating summons, belong to the class of orders; and therefore they do not contain any allega- and examination tion of the defendant's presence during the examination. See tit. Bastard, ante, Vol. I. p. 364. Lord Holt

, indeed, declared, upon one occasion, that he could not see any reason for the distinction between orders of bastardy and convictions. R. v. Lomas, Amb. 289. However, the words of the statute 18 Eliz. c. 3, which direct the justices to take order for the keeping of the bastard child, &c., as well as the nature of the proceeding, which is more for the purpose of indemnity to the parish than of punishment for an offence, may appear to account for the uniform practice in treating these as of a different class from penal convictions.

The reasons which have prevailed in regard to the case secondly alluded to--that of a proceeding under 5 & 6 Edw. VI. c. 25, for keeping open an

ORDERS OF
JUSTICES.

alehouse after an order to suppress it, seem to be, that the defendant is guilty of a contempt in disobeying the first order, and that the power of imprisoninent in that case is something similar to process of attachment. R. v. Venables, 2 Ld. Raym. 1405. However, it should be observed, that the necessity of a previous summons, in fact, (though it need not be stated in the order), is somewhat inconsistent with that mode of considering it.

With regard to the third case—that of a penal proceeding against a person for assisting in the fraudulent removal of goods, to avoid a distress, under 11 Geo. II. c. 19, s. 4, the language of that act certainly seems to point out a proceeding altogether similar to that which is understood by a summary conviction, and there can be little doubt that it would be regular in this form, of which there exist many precedents. But it is nevertheless certain, that those proceedings have been not only deemed valid in the shape of orders, but upon that ground only have been allowed to admit of informalities which would have been fatal in a conviction. There are on the files of the Crown Office several instruments of this kind, which, as well as being upon the file of orders, and not of convictions, are returiled in consequence of writs of certiorari “ to return all orders," whereas the certiorari for a conviction is always “ to return all records of conviction;" of these is R. v. Bissex, T. 29 & 30 Geo. II., and, soon after, The King v. Middlehurst. The former of these cases is given at length (ante, title Bistress, Vol. I. p. 985; Sayer, 304, S. C.); and after some discussion upon the question, whether the matter was properly the subject of an order, it was agreed to be regular in that form. Mr. J. Denison, in delivering the resolution of the Court, expressed himself to this effect: I think the most material question is, whether this is an order or a conviction. If a conviction, the evidence ought to have been set out. It was so held by Lord Harduicke, in the case of The King and Lloyd, 2 Str. 996; and in that case it was objected, that, as it subjected the party to a penalty, though in the statute it was called an order, yet it should be construed as a conviction; but the Court said, every act of the justices which subjects the party to a penalty, shall not be construed as a conviction. I understood from my Lord Hardwicke, in the case of The King and Lloyd, that his ground of the difference was founded upon the expressions of the statute, and not upon the penalty; as, where the words of the statute are, “ of which he shall be convicted," it is to be construed a conviction. Here it is extremely strong; the statute calls it an order, and, in the nature of it, it is an examination upon a complaint (a).

The other case upon the same statute, R. v. Middlehurst, is reported by Sir J. Burrow. In that the objection to the offence being charged in the alternative, viz. for removing or concealing the goods, was over-ruled expressly upon the ground that this was an order. 1 Burr. 399.

The only criterion furnished by these cases for distinguishing when pe nal proceedings are to be considered as orders, and when as convictions, is that alluded to by Lord Hardwicke, viz. whether they be so denominated by the statute. N. v. Bissex, supra.

It sufficiently appears, however, that the decisions before mentioned cannot govern the case of convictions; for that these were treated as belonging to a different class; and that the judgments were founded entirely upon that consideration.

There is one early case, indeed, in which a similar doctrine is said to hare been applied to a conviction. That case is reported as follows:- Ford was convicted in a summary way on the statute of deer stealing. To which it was objected, that it did not appear on the record that the defendant had any notice to come and make his defence, and citatio est de jure naturali, that none be convicted without an opportunity of making defence: quod curia concessit, but this being by persons by law intrusted with the administration of justice, we will intend they have proceeded regularly and legally, if the contrary appear not. R. v. Ford, 12 Mod. 463. Of this case it is im

Stating rffence in alternative.

(a) There seems, however, no doubt that it would have been good as a conviction. R v. Morgan, Calil, 156,

ORDERS OF
JUSTICES.

order.

orders.

possible to judge correctly, as no extract is given from the conviction itself, and it is not impossible but the defendant might there have been stated to have appeared in fact, which, as will be seen ante, Vol. I. p. 827, 828, would dispense with the necessity of stating a summons. But, without resorting to that supposition, the practice seems to be since that time so well established the other way, that this single case cannot now be considered as of sufficient weight to turn the scale.

In practice, the orders of justices are usually in writing, and they ought When must be in to be so. In R. v. Maulden, 1 M. & R. M. C. 382, Bayley, J., observed: writing. Is there any instance of a verbal order of maintenance ?"

An order of commitment must be in writing, tit. Commitment, Vol. I. p. 560, 769; 2 Hawk. c. 16, s. 13; 2 Marsh. 377; but if the magistrate be empowered to detain a party in custody till the return of a warrant of distress, such order of detention may be verbal. Still v. Walls, 7 East, 534.

An order may be good in part, and bad for the residue. R. v. Maulden, Good in part. 1 M. & R. M. C. 385.

We have already considered the proof and effect of an order, and how Proof and effect of far it protects justices, &c., tit. Evidence, Vol. II. p. 52. As to Appealing against Orders, see tit. Appeal, Vol. I.

Appeal. Disobedience of Orders]—Disobedience of an order of justices, commis- Disobedience of sioners, &c., concerning a matter over which they have jurisdiction, is an offence indictable at common law, though a specific penalty is provided by statute for the neglect of that duty which the order is intended to enforce. R. v. Robinson, 2 Burr. 799; 4 1. R. 205; 8 East, 41; R. v. Fearnley, 1 T. R. 316; R. v. Hollis, 2 Stark. 536; and this rule applies to all persons mentioned in the order, and on whom it has been duly served; and though they may have ceased to hold the office, in respect of which it was addressed to them in particular, they are still bound to use their best endeavours to cause it to be obeyed; R. v. Gash, 1 Stark. C. N. P. 441. But before any indictment for disobedience of such an order can be sustained, it must be personally served on the parties who are bound to obey it; and therefore, an indictment, charging a contempt by six persons of an order which was only stated to be served on four of them, was holden bad on demurrer. R. v. Kingston, 8 East, 41; and see Cald. 554.

It must appear, on the face of the indictment, that the order disobeyed Indictment for. was a legal order, and such previous orders as are the foundation of the magistrates' authority must be recited, or at least referred to in an indictment for disobedience of such authority, Cald. 183; but if there be a positive averment of disobedience to the order of a court of competent jurisdiction, the indictment will be good without a direct allegation of that which is the foundation of such jurisdiction, nor can a defendant otherwise avail himself either at the trial or elsewhere, but by shewing a want of jurisdiction in the court. Cald. 536. The indictment need not set forth the conviction at length on which the order was founded. 2 Ld. Raym. 1196. The indictment should state that the order was positively made, and not set it forth by way of recital. Id. 1363. It seems safest to state that the defendant was requested to comply with the terms of the order. 1 T. R. 316, supra.

Where an indictment for disobeying an order of justices appears to be founded on an order made in a case in which the justices had no jurisdiction, the Court will direct an acquittal at the sittings, although the defect appear on the record. 2 Stark. 536.

On the trial of an indictment for this offence, the Court will not enter into Trial. the merits of the original case, nor into formal objections which do not appear on the order itself, for it would be absurd that a party should, by a contempt, procure a revision of the judgment of a competent tribunal. R. v. Mitton, 3 Ēsp. 200, n.

The punishment for this offence is fine and imprisonment, in the discre- Punishment. tion of the Court.

The 33 Geo. III. c. 55, s. 1, gives power to two justices, at petty sessions,

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