provisions of an act passed in the twenty-first year of the reign of king James, made for the ease of justices and others in pleading in suits brought against BUYING &c. OFFICES. them, to all persons either in or out of this kingdom, authorized to commit to 49 Geo. 3, c. 126. safe custody." Opinions, when Evidence, see Evidence, Vol. II. p. 35. Orchards, Stealing from, see Larceny, ante, p. 565, 566;-Malicious Injuries in, see Malicious Enjuries to Property, ante, p. 736 to 407. Order of Court, Proof of, see Evidence, Vol. II. p. 43. 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. Before Distinction between orders and convictions. In truth, it is not easy to fix any rule for distinguishing, in the abstract, between what things are the subject of orders, and what of convictions. Practice seems chiefly to have been consulted in the distinction. 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. in. 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 o o o 2 ORDERS OF JUSTICES. Stating offence in alternative. 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 imprisonment 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 returned 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 Hardwicke, 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 penal 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. R. 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 have 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 (a) There seems, however, no doubt that it would have been good as a convicR v. Morgan, Cald. 156, tion. 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. ORDERS OF JUSTICES. 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, 1 M. & R. M. C. 385. We have already considered the proof and effect of an order, and how far it protects justices, &c., tit. Evidence, Vol. II. p. 52. As to Appealing against Orders, see tit. Appeal, Vol. I. an Good in part. Proof and effect of order. Appeal. orders. Disobedience of Orders]-Disobedience of an order of justices, commis- Disobedience of sioners, &c., concerning a matter over which they have jurisdiction, is 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 T. 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 Esp. 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, ORDERS OF JUSTICES. Forms. to punish constables, and peace and parish officers, in a summary manner, for disobedience of orders, and other misconduct. See precedents of indictments for disobeying an order of bastardy, ante, Bastards, Vol. I. p. 395; for disobeying an order on a friendly society, ante, Friendly Society, Vol. II.; and see forms, 2 Chit. C. L. 279 to 291; Talf. Dick. Sess. 304. See form of indictment against treasurer of county for refusing to obey magistrate's order to pay a constable the expenses of apprehending, &c., a deserter, 3 M. & S. 62. Ordnance Stores. See Cordage for Shipping, Vol. I; Stores, Overseers of the Poor. See Poor, Vol. IV. Outlawry. See Process, Vol. V. Ownership of Goods, Statement of, in an Indictment, see Indictment, ante, p. 340 to 343;-in a Conviction, see Conbiction, Vol. I. p. 819. |