Read Gilbert. Went in the Evening to Coll. Quincys. Heard a Tryal before him, as a Justice between Jos. Field and Luke Lambert.1 The Case was this. Lamberts Horse broke into Fields Inclosure, and lay there some time, damage feasant. When Lambert found that his Horse was there he enters the Inclosure and altho Feild called to him and forbid it, waved his Hat, and Screamed at the Horse, and drove him away, without tendering Feild his Damages. This was a Rescous of the Horse, out of Feilds Hands, for altho Lambert had a Right to enter and take out his Horse tendering the Damages, yet, as the Words of the Law are “that whoever shall rescous any Creature out of the Hands of any Person about to drive them to pound, whereby the Party injured shall be liable to lose his Damages, and the Law be eluded, shall forfeit &c.,” and as Feild was actually about to drive them to Pound, and Lambert offered him no Damages, this was compleatly a Rescous. Feild, after the Rescous, went to Coll. Quincy, made Complaint against Lambert and requested and obtained a Warrant. The Warrant was directed to the Constable, who brought the Offender before the Justice, attended with the Complainant, and the Witnesses ordered to be summoned. Quincy, for Defendant, took Exception on the Warrant, to the Jurisdiction of the Justice, because the sum originally sued for, consisting of the forfeiture of 40s. to the Poor, and the Parties Damages estimated at 9d. which was 40s. 9d., was a greater sum than the Justice can take Cognisance of, and because the Words of this Act of the Province are, that this 40s. to the Poor, and these Damages to the Party injured shall be recovered, by Action &c., in any of his Majesties Courts of Record. Now as the Court of a single Justice is not one of his Majesties Courts of record the forfeiture and Damages 49prayed for in this Complaint, cannot be recovered in this Court. The Justice adjourned his Court till 8 o’clock monday morning, in order to inform himself, 1st. Whether the Court of a single Justice of the Peace was one of his Majesties Courts of Record? 2. Whether a single Justice can take Cognisance of any Matter, in which the sum originally prosecuted for is more than 40s.? If upon Examination the Coll. shall find, that, a single Justice has no Authority to hear and determine such a Rescous, at the Adjournment the Proceedings will be quashed, and the Complainant must begin de Novo, but if he finds, that a single Justice has Authority, to determine the matter, he will proceed to Judgment.—The Questions that arise, in my mind, on this Case are these.

1. What is the true Idea, and Definition of a Court of Record? What Courts in England and what in this Province are Courts of Record and what are not? Wood, Jacobs, &c.

2. Whether a Justice has Authority, by Warrant, to hear and determine of any offence the Penalty of which, or the forfeiture to the King, the Poor, the Informer &c. is more than 40s.?

3. Whether a Court is denominated a Court of Record from its keeping Records of its Proceedings? Whether every Court is a Court of Record, whose President is a Judge of Record? For it seems plain in Dalton that a Justice of the Peace is a Judge of Record?

4. On supposition the Warrant should be quashed, who should pay the Cost of the original Warrant, of the Defendants attendance, and of Witnesses’ Oaths and attendance? The Complainant, who was mistaken thro Ignorance in going to the Justice for a Remedy, or the Justice who was mistaken, in the same manner, in Acting upon the Complaint beyond his Authority?

5. What are the Steps of prosecuting by Information? Is not a motion made in Court, that the Information may be amended or filed? Are Informations ever filed, but by Attorney General? When the Penalty sued for by the Information is half to the King or half to the Poor and the other half to the Informer, is the Defendant committed till he discharges the Penalty? Or is an Execution ever issued?

6. Tis said Courts of Record alone have Power to impose a fine, or Imprison. Query which?

7. A Rescous is a Breach of Law and a Breach of the Peace, and Remedy for it may be by Action of Trespass, which is always contra Pacem.

8. Are not Justices Warrants confined to criminal matters? May a Warrant be issued for a Trespass Quare Clausum fregit?2 It may 50for a Trespass of assault and Battery. Justices may punish by fine, Imprisonment, Stripes &c.

The Coll. inquired, what Punishment he could inflict on a Constable for Disobedience to his Warrant, for not making Return of his Doings? And he found a Case ruled in King’s Bench that a Constable is a subordinate officer to a Justice of the Peace and is indictable at common Law for neglect of Duty. The Malefeasance or Nonfeasance of officers are Crimes and offences that may be inquired of, indicted or presented by the grand Jury at Common Law.

Feild took Lamberts Horses Damage feasant in his Close once before and impounded them, and gave him verbal Notice, that his Horses were in Pound, but neglected to give either Lambert or the Pound keeper an account of the Damages the Horses had done him. Lambert went to the Pound keeper and demanded his Horses, tendering the Poundkeepers fees, and the Pound keeper delivered them up.

Now Q. Whether Feild is injoined by any Law of the Province, to get his Damages appraised and to lodge an account of them with the Pound keeper?

2. Whether as he neglected this, the Pound keeper cant justify his resigning of them to the owner?

3. If Feild had lodged an Estimation of his Damages with the Pound keeper, and the Pound keeper had nevertheless resigned the Creatures up, without taking the Damages, would not an Action lay against him as an Action lies against a Prison keeper for a voluntary Escape? And Quere what Action would be proper. I want a form of an Action of Escape, now.

4. It cant be called an indirect Way of delivering his Creatures out of Pound, to pay or tender the Poundkeeper his fees and demand and receive his Cattle of him, when he has unlocked and opened the Pound Gate and turned the Creatures out? So that it will not admit a Quere whether Lambert is liable to an Action for receiving his Horses of the Pound keeper. Tis plain I think he is not.

Read a few Pages in Gilbert. I proceed very slowly.