
    * Commonwealth versus Leach & Al.
    An indictment for poisoning cattle is within the jurisdiction of the Court ot Sessions.
    The defendants were indicted in the Court of General Sessions for poisoning a cow, the property of A. B. Being convicted in that court, they appealed to this, and at the last term thereof were found guilty by the verdict of the jury. The indictment was at common law.
    
      Bliss moved in arrest of judgment on the ground that the Court of Sessions had not jurisdiction in the case.
    He said that this was a common law offence, and so laid in the indictment; that justices of the peace were officers not known to the common law, but were created by statute, and of course all their powers were given by statute; and that none of our statutes nad given them jurisdiction over the offence charged in the indictment. And he cited 4 Com. Dig. Title, Just. of the Peace, B. 1, and 1 Salk. 406.
    
      Hooker, for the prosecution,
    conceded that justices of the peace were officers created by statute, and that their jurisdiction and powers were wholly dependent upon the statutes; 2 Hawk. P. C. c. 8, § 13, &c. But he contended that their jurisdiction here was not limited to those offences which are expressly, and by name in our own statutes, made cognizable by them; on the contrary, that it extended to all cases in which justices of the peace in England had jurisdiction by any of the statutes of that country which were passed previous to the emigration of our ancestors; which were to be considered as a part of our common law ; that this was strongly implied in the act for establishing Courts of General Sessions of the Peace, passed July 3, 1782, (stat. 1782, c. 14,) by the first section of which “ they are empowered to hear and determine all matters relative to the conservation of the peace, and the punishment of such offences as are cognizable *by them at common law, or by the acts and laws of the legislature, and to give judgment, &c. In this act, the term common law cannot mean the common law of England, because justices of the peace there are not common law officers; it must, therefore, mean our common law; and on this subject, our common law must be precisely what the statute law of England was at the time of the emigration of our ancestors from that country. The statutes which were previous to that time enacted in England, and which define or describe the authorities, powers, and jurisdiction of justices of the peace, give to them, expressly, cognizance of divers offences which were offences at common law; among which are trespasses. The present indict ment is for a trespass, and, therefore, within the jurisdiction of the Sessions. — 2 Hawk. c. 8, § 33, 38, 39. — 3 Burr. 1320, Rex vs. Rispall. — 1 Lev. 139, Rex vs. Sommers & Al.
    
    
      Bliss, in reply,
    conceded that if the stat. of Ed. 3, which gives jurisdiction to justices of the peace in England, is adopted, and makes part of our common law, the objection to the indictment was unfounded ; otherwise that it ought to prevail.
   Thacker, J.

I am of opinion that the statutes of 1 Ed. III. c. 16, and 34 Ed. III. c. 1, respecting the jurisdiction and powers of justices of the peace have been adopted, used, and approved here, and are to be considered as part of our common law; that the offence charged in the indictment is cognizable by the Court of Sessions, and, therefore, that judgment ought not to be arrested.

Sedgwick, J.

Justices of the peace, whether acting individual!} or in sessions, are creatures of statute; and their powers are given them by the statutes. — 9 Hawk. 61, 8. — It appears to me, generally speaking, that the English statutes which were in force at the time of the emigration of our ancestors from that country, are common law here. * The statutes of Ed. III. have been adopted and practised upon here, and are, therefore, to be considered as part of our common law. This is decisive of the question before the Court, as the offence charged in the indictment is, by those statutes, within the jurisdiction of the Sessions.

Strong, J.

I have no doubt upon the question. Justices of the peace have exercised this authority for a long time ; certainly as far back as the memory of any of us reaches, probably much farther;. which affords a strong presumption that the statutes of Ed. III. have been considered as common law here. Usage in like points has always been taken as evidence of what is our own law — common law.

Dana, C. J.

The term common law ought not to be construed so strictly as is contended for by the counsel for the defendant. Generally when an English statute has been made in amendment of the common law of England, it is here to be considered as part of our common law. For instance, the statute of 7 Ja. I. c. 5, and 21 Ja. I. c. 12, giving double costs to an officer who is sued out of his county, for any thing done by him in the execution of his office, being made in amendment of the common law, is adopted here, and is part of our common law. So also the statute of Anne, respecting negotiable notes. Usage of the country establishes and makes the common law of the country. No one, probably, can recollect the period when the Courts of Sessions have not exercised the authority which is now excepted against. Justices of the peace have this authority expressly given them in their commissions. It appears to me that they have uniformly exercised it, and that without being questioned; and, therefore, that the law is to be considered as settled. Per Cur. unanimously.

Motion overruled.

See 2 East, Rep. 5, Rex vs. Higgins. 
      
      
         [Commonwealth vs. Leach, 3 Mass. 59. — Blankard vs. Galdy, 2 Salk. 411 ; 2 Peere Williams, 75 — Campbell vs. Hall, Cowp. 204. — Case of Sir Thomas Picton, 30 How. State Trials, 903. — Attorney-General vs. Stewart, 2 Meriv. 143. — Commonwealth vs. Knowlton, 2 Mass. 534. — Van Ness vs. Paccard, 2 Peters, S. C. R. 144. — Wilford vs. Grant, Kirby, 114. — Terrett & Al. vs. Taylor & Al., 9 Cranch. 43. — The Town of Pawlet vs. Clark, 9 Cranch. 242. — Glass Factory vs. Reid, 5 Cow. 587. — State vs. Buchanan & Al, 5 Har & Johns. 356 —Ed.]
     