That committee appear to have come to the conclusion that there had been a misdemeanor by Mr. Wildes in his office in respect of his contumacious treatment of the order of the Court, and to have recommended, if I may call it so, that a prosecution should be instituted against him, and that that prosecution should be taken up by the county treasurer, who should present to the Court the statement of the offence for which it was proposed that Mr. Wildes should be removed from his office. Accordingly the treasurer made out a statement of the grounds, and that statement was brought before the Court of Sessions by way of information for a misdemeanor by Mr. Wildes in his office. The Sessions adjudged that he was guilty of such misdemeanor, and that in respect thereof he should be removed. The custos rotulorum thereupon appointed Mr. Russell the Defendant, and Mr. Wildes, being dissatisfied with the decision of the Court of Quarter Sessions, brought this action for the purpose of reviewing it. At the trial these facts with certain others (which I can more conveniently refer to in the course of the judgment with reference to those parts of the case which they especially affect) having been opened by Mr. Chambers, the counsel for Mr. Wildes, Mr. Bovill, as counsel for the Defendant, stated that, assuming all the facts were proved, he should insist that they did not constitute a cause of action, that a judgment of the Court of General Quarter Sessions was conclusive, that it could not be inquired into by a jury, and that by that judgment Mr. Wildes must be taken conclusively to have been removed from the office, and therefore incapable of maintaining the present action in respect of fees after such removal. The Lord Chief Justice assented to that argument, and the present rule has been obtained to set aside the non-suit which my Lord in that view of the law and facts then directed. The Court have now heard an argument on both sides. which I may say for myself has given me the greatest 1866. WILDES บ. RUSSELL. 1866. WILDES บ. RUSSELL. assistance; and it is a very great satisfaction in determining a case of such importance to be sure that all the relevant topics, and all the main authorities that could have been adduced on the one side or the other, have been brought forward. If after having heard the case so thoroughly investigated as it has been we had entertained any serious doubt as to what our decision ought to be, we should have taken time to consider, but as, in common with my learned Brothers who were not at the trial, I have come clearly to the conclusion I am about to pronounce, I do not see why we should delay giving judgment. I am of opinion that the course taken by my Lord at the trial was a right course, and that the rule to set aside the nonsuit ought to be discharged. A variety of questions have been presented to us for decision, and probably it would be better that I should go through them in the order in which they have been presented. In the first place I will refer to the section of the statute upon the construction of which our judgment must proceed; namely, the 1st Will. & Mar. c. 21, s. 6, by which authority is conferred on the justices to dismiss any clerk of the peace, already appointed or to be nominated, who shall misdemean himself in the execution of the office. The statute points out the course of proceeding, that is, they shall make a charge in writing of such misdemeanor, which "shall be exhibited against him to the justices of the peace in their General Quarter Sessions," and then "it shall be lawful for the said justices, or the major part of them, from time to time, upon examination and due proof thereof, openly in their said General Quarter Sessions, to suspend or discharge him from the said office." Then the section goes on to point out the consequences. First, that the office is void by such dismissal; secondly, that in such case the custos rotulorum may appoint a new clerk of the peace; and thirdly, that in case before the next General Quarter Sessions the custos rotulorum shall neglect or refuse to appoint a new clerk of the peace, the justices in Sessions shall do so in his stead. Now upon that section the first question is whether there was a misdemeanor in the office of clerk of the peace, and upon that I own I am unable to bring myself to entertain any doubt. The meaning of misdemeanor in office is to be found in Comyn's Digest, title Officer, K 3: it does not mean misdemeanor within the criminal law, but it means any improper conduct, such as gross negligence or nonuser or bad user in the office. Unquestionably, therefore, an absolute and contumacious refusal to enter an order of the Court of Quarter Sessions is a misdemeanor in the office of clerk of the peace. I entirely agree that a mere inadvertent omission to obey the order, a mere delay in entering it in a case of doubt arising in the mind of a clerk of the peace as to whether it is a lawful order, or a strong remonstrance by him to the justices against entering an order which appeared to him to be contrary to law, would not be a misdemeanor in his office. Any honest refusal or mere inadvertence would clearly be insufficient to void a freehold office, an office held during good behaviour. But supposing the justices were to make an order which in their view of the law was a right and lawful order, and that the clerk of the peace, after remonstrating with them and failing to satisfy them that they had done wrong, was to refuse to enter it; or supposing he was to refuse to make a record of a sentence which he thought was illegal because it awarded hard labour, whereas the justices upon the construction of stat. 14 & 15 Vict. c. 100, s. 13, which has given rise to considerable question as to what offences are exempt from hard labour, should think that they had power to award it-if the clerk of the peace should take on himself, being the mere secretary of the Court, to refuse to enter a judgment which they upon consideration, and after hearing what was to be said, insisted that it was right to enter, I apprehend that 1866. WILDES บ. RUSSELL. 1866. WILDES v. RUSSELL. that would be clearly a misdemeanor in his office. There would be an end to all discipline if conduct like that were permitted. The proper course would be to leave it to the Court of Queen's Bench, which has control over inferior jurisdictions, to determine whether the order or judgment was right or wrong, but not for the clerk of the peace to set himself up as a Court of Appeal in error over those whom the law has in the administration of justice made his superiors. I therefore think, that if Mr. Wildes, however properly he may have conceived himself to be acting in refusing to proceed on the order of the justices, positively refused to act upon it, setting himself up as the master, so to speak, of his masters, he was committing a misdemeanor in the execution of his office. As to whether he was right. in refusing to enter the order in question, it must not be taken, if I pass over that part of the case without further remark, that I see any objection whatever to the order of the justices. Apart from what was suggested as to a portion of the bill being improperly incurred, which I lay aside because Mr. Wildes did not rely upon it at the time, I have yet to learn whether costs necessarily incurred about county business are to be borne by the magistrates, who nominally may be personally interested, but who really represent the county in the litigation. I should think that whatever economy it might be to the county to refuse to pay the costs, it might afterwards find itself very much at fault to discover persons who would take up its interest; and The King v. The Inhabitants of Essex (a) is abundant authority to show that there is no such general rule as Mr. Wildes appears to have relied upon; namely, that persons who come forward for the county are to incur the costs individually, and that the county fund cannot in any case be made liable. At all events it is enough to say that the justices having determined the question, and he having (a) 4 T. R. 591. refused to act upon their decision, laid himself open to the proceedings that were taken against him, if those proceedings should be properly instituted. The next remark to be made upon sect. 6 is with reference to the mode in which the complaint should be instituted, and it says any complaint or charge in writing of such misdemeanor shall be exhibited against the clerk of the peace to the justices in the General Quarter Sessions. Of course the 6th section is not dealing exclusively with a case in which a misdemeanor should consist of a contempt of the justices. There might be a case (far be it from me to say that this is such, because it is farthest from it) in which the clerk of the peace might claim from some person a fee to which by law he was not entitled, and the person feeling himself aggrieved, and finding that the clerk of the peace would not listen to the reasons that he advanced, might out of his own head as a private prosecutor institute a proceeding under this section by a charge in writing to be laid before the justices. That charge in writing has two objects. First, to give formality to the proceedings, and, secondly, to give the accused person a notice of what he has to meet. In the case that I have supposed, the charge would come just like the charge of a private prosecutor before magistrates or a Court which had power to try it, but also there may be cases where the misdemeanor complained of may affect the Court itself, which may be known to the Court first and to the Court only, as in the instance of some contumacy or contempt of Court. The authority to which I have referred is clear to the effect, that such a misdemeanor is equally within the section. as a misdemeanor which consists of some improper conduct of some persons altogether independent of the Court. How is that misdemeanor to be dealt with? "A complaint and charge in writing of such misdemeanor shall be exhibited against him to the justices of the peace." Who is to exhibit it? Of course any person who has an interest in 1866. WILDES v. RUSSELL. |