increasing the number hereafter, such appointments to be made upon the recommendation of the respective county courts.'

3. The judges of the supreme courts, as well as the justices of the peace, are expressly declared by statute, to be conservators of the peace. Rev. Code, p. 94.

4. So, every court of record hath power to keep the peace within its own precinct. Haw. B. 2. c. 8, sect. 3.

5. Also, every sheriff is a principal conservator of the peace. Ibid.

sect. 4.

→ 9. Also, every coroner is another principal conservator of the peace. Ibid. sect. 5.

7. Also, every high and petit constable are, by the common law, principal conservators of the peace. Ibid. sect. 6.

8. The general duty of the conservators of the peace, by the common law, is to employ their own and to command the help of others, to arrest and pacify all such, who in their presence, and within their jurisdiction and limits, shall go about to break the peace. Dalt, c. 1.

And if a conservator of the peace, being required to see the peace kept, shall be negligent therein, he may be indicted and fined. Ibid.

9. Whatsoever any one justice may do, the same also may lawfully be done by any two or more justices; but where the law giveth authority to two, there one alone cannot execute it. Dalt c. 6.

10. And yet where a statute appoints a thing to be done by two justices or more, if it be any misdemeanor or matter against the peace, it seems that one of them may issue his warrant to apprehend the offender, and to bring him before the justices so appointed. Dalt. c. 6.

11. But where a thing is appointed by statute to be done before one person certain, such thing cannot be done by or before any other; for by such express designation of one, all others are excluded, and their proceedings therein are coram non judice. Dalt. c. 6.

12. Justices of the peace have no coercive power out of the county; and therefore an order of bastardy, or an order for payment of labourers wages, made by them out of the county is not binding; yet recognizances and informations voluntarily taken before them in any place are good. Haw. B. 2. c. 8. sect. 44, 7th edit.

13. A justice of the peace may do a ministerial act out of his county, as examining a party robbed whether he knows the felons; but he cannot do a compulsory act, as committing a person for not giving a recognizance. 2 Hale 50, 51.

4

14. Regularly, justices of the peace ought not to execute their office in their own case; but cause the offenders to be convened or carried before some other justice, or desire the aid of some other justice, being present. Dalt. c. 173. 1 Salk. 396. 2 Salk. 607.

15. Yet in some cases, if the justice shall act in his own cause, it seemeth to be justifiable; as when a justice shall be assaulted, or (in the doing of his office especially) shall be abused to his face, and no other justice present with him; then it seems he may commit such offender until he shall find sureties for the peace or good behaviour, as the case shall require. But if any other justice be present, it were fitting to require his aid. Dat. c. 173. Str. 420, 421.

And lord Coke says, it is not safe for any man (be he never so learned) to be of counsel with himself in his own cause, but to take the

advice of other great and learned men; for that men are generally more foolish in their own concerns, than in those of other people.' Co. Lit. 377. b.

16. If a justice exceed his authority in granting a warrant, yet the officer must execute it, and is indemnified for so doing; but if it be a case wherein he hath no jurisdiction, or in a matter whereof he hath no cognizance, the officer ought not to execute such warrant; so that the officer is bound to take notice of the authority and jurisdiction of the justice. 10 Co. 76. Cro. Car, 394.

Thus if a justice send a warrant to a constable to take up one for slander, or the like, the justice hath no jurisdiction in such cases, and the constable ought to refuse the execution of it. Wood, B. 1. c. 7.

17. Justices of the peace may supersede their own order, when it hath issued under a surprise or mistake. Stra. 6.

18. Where a statute gives power to the justices of the peace, to hear and determine an offence in a summary way, it is necessarily implied and supposed, as a part of natural justice, that the party be first cited, and have an opportunity to be heard and answer for himself. And if a justice proceed against a party without summoning him, it would be a misdemeanor, for which an information would lie. 1 Haw. 154. 1 Salk. 181. L. Raym. 1407. Str. 678.

19. But before an information is granted, the court will first require that the conviction be removed before them. Stra. 915. See also, Stra, 1088, 530, 413.

20. Where a special authority is given to justices out of sessions, it ought to appear in their orders, that that authority was exactly pursued. 2 Salk. 475.

21. In all cases were justices may hear and determine out of sessions (viz. on their own view, or confession, or oath of witnesses) the justices ought to make a record in writing under their hands, of all matters and proof; which record, notwithstanding they may, in many cases, keep by them. Dalt. c. 115.

22. But since most of the business of justices of the peace (out of sessions) consisteth in the execution of divers statutes committed to their charge, which statutes cannot be sufficiently abridged, but that they will come short of the substance and body thereof; therefore it will be safest for the justice of the peace not to rely over much upon these short collections thereof, but to have an eye to the Statutes at Large, and thereby to take their further and better directions for their whole proceedings. For (as lord Coke observes)' abridg. ments are of good and necessary use to serve as tables, but not to ground any opinion, much less to proceed judicially upon them.' 'Ideo, tutius est petere fontes quam sectari rivulos.' Dalt. c. 173. 10 Co. 117 b. 23. A justice of the peace is strongly protected by the law, in the just execution of his office. Thus he is not to be slandered or abused; and the words, you are a rascal, a villain, and a liar,' spoken of a justice in the execution of his office, were held actionable. (Str. 617. L. Raym. 1396.) So, to say of a justice in the execution of his office, Mr. is a rogue.' Str. 1168.

24. So, a person may be indicted for saying to a ecution of his office, you are a rogue, and a liar.'

justice, in the exAnd by the court.

The justice may make himself judge, and punish immediately; but if

inay.

he thinks proper to proceed less summarily by way of indictment, he The true distinction is, that where the words are spoken in the presence of the justice, there he may commit; but where it is behind his back, the party can be only indicted for a breach of the peace. Str. 420.

24. But an information was held not to lie for speaking of a justice in relation to what he had done, if not spoken in the execution of his office. See 2 Str. 1157.

25. A justice of the peace is not punishable at the suit of the party, but only at the suit of the commonwealth, for what he doth as judge; in matters which he hath power by law to hear and determine without the concurrence of any other; for regularly no man is liable to an action for what he doth as judge. But in cases where he proceeds ministerially, rather than judicially, if he acts corruptly, he is liable to an action at the suit of the party, as well as to an information at the suit of the commonwealth. (2 Haw. 85.) And more explicitly, it was said by lord Mansfield, that the court has no power or claim to review the reasons of justices of the peace, upon which they found their judgments, in matters confided to their discretion. But if it clearly appears, that the justices have been partially, maliciously, or corruptly influenced in the exercise of this discretion, and have consequently abused the trust reposed in them, they are liable to prosecution by indictment, or information, or even, possibly, by action, if the malice be very gross and injurious. If their judgment is wrong, yet their heart and intention pure, God forbid that they should be punished.' He declared that he should always lean towards favouring them; unless partiality, corruption, or malice, clearly appear. All the other judges concurred in the same general principle, that a justice was not punishable for a mere error in judgment. Burr. 556. See also, Burr. 785. 1162. S. P.

26. But a justice of the peace, where punishable at all, shall not be liable to be punished both ways; that is, both criminally and civilly; for, before the court will grant an information, they will require the party to relinquish the civil action, if any such is commenced. And even in the case of an indictment, and though the indictment be actually found yet the attorney for the commonwealth (on application made to him) will grant a noli prosequi upon such indictment, if it appear to him that the prosecutor is determined to carry on a civil action at the same time. Burr. 719.

27. If a justice will not, on complaint made to him, execute his of fice, or shail misbehave in his office, an information may be moved for against him, and he may be put out of the commission. (Cromp. 7. 2 Ath. 2.) But the most usual way of compelling them to execute their office in any case, is by writ of mandamus.

28. Where a justice commences an assault, it may be repelled, and justified; for he forfeits his protection by beginning a breach of the peace himself. Ca. temp. Hard. 240.

28. A justice has a right to judge for himself, whether the offence charged be an offence within the law; and if upon hearing the charge opened, he thinks it not to be an offence within the law, he ought not to proceed upon it. 2 Burr 788.

JUSTIFIABLE HOMICIDE, see HOMICIDE.
LANDLORD and TENANTS, See RENTSI

LARCENY.

1. LARCENY, or theft, by contraction for latrociny, latrocenium, is distinguished by the law into two sorts; the one called simple larceny, or plain theft unaccompanied with any other atrocious circumstance; and mixed or compound larceny, which also includes in it the aggravation of a taking from one's house or person. 4 Bl. Com. 229.

2. Simple larceny is also generally divided into two kinds; grand larceny, when the thing stolen exceeds the value of twelve pence, and petit larceny, when it is of that value or under. 4. Bl. Com. 229.

3. Before the adoption of the penitentiary system, the benefit of clergy was allowed in all cases of simple larceny (except horse-stealing) which would otherwise be without clergy, whether the same be newly created by any act of Assembly, or exist under the common law, unless it be taken away by the express words of some act of Assembly. See title' CLERGY,' [benefit of.]

I. Grand Larceny. II. Petit Larceny. III. Larceny from the person. IV. Larceny from the house.

I. GRAND LARCENY.

Grand Larceny is, a felonious and fraudulent taking and carrying away, by any person, of the mere personal goods of another, above the value of twelve pence. 1 Haw. 89.

Felonious and fraudulent... .Felony is always accompanied with an evil intention, and therefore should not be imputed to a mere mistake or misanimadversion; as where persons break open a door, in order to execute a warrant, which will not justify such a proceeding; for in such case there is no felonious intention. Haw. 65.

For it is the mind that makes the taking of another's goods to be. felony, or a bare trespass only; but because the variety of circumstances is so great, and the complications thereof so mingled, that it is impossible to prescribe all the circumstances evidencing a felonious intent, or the contrary; the same must be left to the due and attentive consideration of the judge and jury, wherein the best rule is, in doubtful matters, rather to incline to acquittal than conviction. Only in ge neral it may be observed, that the ordinary discovery of a felonious intent is, if the party doth it secretly, or being charged with the goods, denies it. 1 H. H. 509.

But, nevertheless, doing it openly and avowedly doth not excuse

from felony. So where a man came to Smithfield market to sell a horse, and a jockey coming thither to buy a horse, the owner delivered his horse to the jockey to ride up and down the market, to try his paces, but instead of that, the jockey rode away with the horse, this was adjudged felony. Kel. 82.

So where a person came into a sempstress's shop, and cheapened goods, and ran away with the goods out of the shop, openly in her sight, this was adjudged to be felony. Raym. 276.

So where a man comes into a house, by colour of a writ of execution, and carries away the goods; or sues out a replevin to get another man's horse, and then runs away with him; that is felony under colour of law. 2 Ventr. 94. Kel. 83.

Taking......All felony includes trespass, and every indictment must have the words feloniously took, as well as carried away; from whence it follows, that if the party be guilty of no trespass in taking the goods, he cannot be guilty of felony in carrying them away. 1 Haw. 89.

And from this ground it hath been holden, that one who finds the goods which I have lost, and converts them to his own use, with intent to steal them, is no felon, and a fortiori therefore it must follow, that one who has the actual possession of my goods by my delivery, for a special purpose, as a carrier who receives them in order to carry them to a certain place; or a taylor who has them in order to make me a suit of clothes; or a friend who is intrusted to keep them for my use; cannot be said to steal them, by embezzling them afterwards. 1 Haw.

89.

But yet it hath been resolved, that if a carrier opens a pack, and takes out part of the goods; or a weaver who has received silk to work, or a miller who has corn to grind, take out part thereof, with intent to steal it, it is felony. I Haw. 90.

So, where a man's goods are in such a place, where ordinarily they are or may be lawfully placed, and a person take them, with intent to steal them, it is felony, and the pretence of finding must not excuse. 1 H. H. 506.

So, if a man's horse be going upon a common where he has a right to put him, and another take the horse, with intent to steal him, it is no finding, but a felony. 1 H. H 506.

So also, if the horse stray into a neighbour's ground or common, it is felony in him that so takes him. But if the owner of the ground takes him doing damage, or seize him as a stray, though perchance he hath no title so to do, yet there is not a felonious intention, and therefore cannot be felony. 1 H. H. 506.

If one man's sheep stray into another man's flock, and that other person drives it along with his flock, or by bare mistake shears it, this taking is not a felony; but if he knows it to be another's, and marks it with his mark, this is an evidence of felony. 1 H.H. 507.

Lord Hale says, If one man takes another man's hay or corn, and mingle it with his own heap or stack, or takes another man's cloth and embroider it with silk or gold; such other person may retake the whole heap of corn, or cock of hay, or garment, and embroidery also; and this retaking is no felony, nor so much as a trespass. 1 H. H. 513.

It seems generally agreed, that one who has the bare charge,