the said William Leigh, did on the said 9th day of August absent himself from the said service against the will of the said J. W, F. S. G. and J. D, or either of them, contrary to the form of the statute in such case made; and that he had thence hitherto continued so absent, wherefore, the said William Leigh not denying the said evidence so given, it manifestly appearing to me that the said William Leigh is guilty of the said offence charged on him so as aforesaid, I do hereby convict him of the said offence, and do adjudge him for the said offence to be imprisoned in the house of correction at Kirkdale, in the said county, for the space of two months from the date hereof, and during that time to be held to hard labour. Given under my hand and seal, at Wigan, in the said county of Lancaster, this 23rd day of August, in the year of our Lord 1844.

"Colin Lindsay." (Seal).

Adam Gregory was then called, and he stated that he was underlooker, manager, and agent of James Whaley, Frederick Sewalis Gerard, and J. Deakin; that they carried on the colliery at Ince; that he had hired Leigh to work at the colliery on the 4th of April 1844 on certain terms, and among others, that he was to remain until the expiration of a fortnight's notice to be given by him or the masters; that he was informed of and agreed to the scale of wages; and that he entered on his service on the same day, and continued in it till the 9th of August following, when he went away. On the following day, the 10th of August, Leigh gave the witness notice for fourteen days. He then went away, and did not serve any of the fourteen days. Gregory proceeded to state that he went before the defendant, who was a Magistrate of the county, and laid the following information before him, which was produced and read :-"Lancashire (to wit). The information and complaint of Adam Gregory, the underlooker of J. W, F. S. G, and J. D, at their colliery at Ince, in Mackerfield, in the said county, taken upon oath before me, one of Her Majesty's Justices of the Peace in and for the said county, the 21st day of August 1844, who saith," &c. (The body of the information was the same as the recital of it in the commitment.)

The witness Gregory got a warrant and apprehended the plaintiff, and brought him before the Magistrates, who, having heard the case, ordered their clerk to make

out the commitment, and the defendant signed and sealed it.

On this evidence the learned Judge directed the jury, that if they believed it to be true they ought to find a verdict for the plaintiff, which they did accordingly. Thereupon the counsel for the defendant excepted to the direction of the Judge, insisting that he ought to have told the jury that the defendant, being a Magistrate for the county, acting in a matter within his jurisdiction, was according to Gregory's evidence justified in committing the plaintiff, and that the conviction given in evidence was a good defence to the action. A bill of exceptions having been drawn up accordingly, the defendant below brought his writ of error thereon.

The case was argued on the 12th and 15th of May 1847, by

Cowling (Burnie was with him), for the plaintiff in error (2). · The defendant below having acted as a Justice of the Peace under the 4 Geo. 4. c. 34, had a good defence to the action. It is contended, on the other side, that the warrant of commitment was defective in form, and that the defendant had no right to rely upon the conviction, which was drawn up subsequently to the plaintiff's discharge by habeas corpus. But whether the commitment itself is sufficient or not, the plaintiff in error is entitled to rely upon the conviction, which is good. The cases clearly shew that a conviction may be drawn up subsequently to the warrant of commitment, and dated as of the date of the commitment, and that the Court will not inquire at what time it was drawn upThe King v. Barker (3), Massey v. Johnson (4), Gray v. Cookson (5). The lastmentioned case is especially in point. It was an action of trespass against a Magistrate, brought by a person who had been discharged out of custody by the Court of Queen's Bench on habeas corpus. The defendant there relied upon a conviction dated the 17th of January 1810, but which was shewn to have been drawn up on the 10th of August 1810, after the commencement of the action, and the Court held the conviction to be a bar to the

(2) The Judges present were Wilde, C.J., Parke, B., Maule, J., Rolfe, B., Cresswell, J., Platt, B., and Williams, J.

(3) 1 East, 186. (4) 12 lbid. 67. (5) 16 Ibid. 13.

action. The case of Chaney v. Payne (6) may be cited on the other side, as it was held there that a second conviction cannot be drawn up after a former one has been quashed on appeal, or the prisoner has been discharged under a habeas corpus. It is submitted that that case requires reconsideration. At all events Lord Denman in his judgment says: "Possibly it may be competent to the Magistrates, even after such a return of an informal conviction, to return another formal one before any motion is made to quash the conviction or appeal heard." Supposing that the conviction is not good, the plaintiff in error had a good defence on the commitment, which is good in form, and which in itself contains a conviction-Johnson v. Reid (7).

[MAULE, J.-I suppose you mean that the commitment is evidence that the plaintiff below was properly committed.]

Yes; that seems the meaning of the adjudication in the commitment.

[PARKE, B.-It has been held by my Brother Patteson, in the case of In re Gray (8), that a commitment, in order to operate as a conviction, must contain the same formalities as a regular conviction-must set out the evidence, and so forth.]

In Baylis v. Strickland (9) a commitment, on the face of which there was nothing to shew it to be void, was held a good defence for the Magistrate who made it.

Addison (Fry was with him), for the defendant in error.-The warrant of commitment is bad, and cannot be taken in connexion with the conviction. The case of Johnson v. Reid shews that the warrant is itself a conviction-In re Gray and In re Hammond (10). There is nothing said in the act of parliament under which the Magistrate made this commitment, concerning a conviction. The Justices are empowered by it to examine into certain cases, and, on examination, to "commit" the party charged.

[MAULE, J.-Would a commitment be sufficient for the purpose of abatement of wages?]

(6) 1 Q.B. Rep. 712; s. c. 10 Law J. Rep. (N.S.) M.C. 114.

(7) 6 Mee. & Wels. 124; s. c. 9 Law J. Rep. (N.S.) M.C. 25.

(8) 2 Dowl. & L. 539; s. c. 14 Law J. Rep. (N.S.) M.C. 26.

(9) 1 Man, & Gr. 591, s. c. 10 Law J. Rep. (N.S.) M.C. 61.

(10) 15 Law J. Rep. (N.s.) M.C. 136.

It would. The Magistrate might commit the party and make an order as to the wages. If this document is to be taken as the record of the conviction, it is clearly bad on many grounds.

[PARKE, B.-It certainly is bad if it ought to have all the formalities of a conviction, for it does not set out the evidence, which a conviction must do. But it will be argued on the other side, that some of these formalities are not required, as it is only a commitment.]

The question which arises next is, whether the second conviction could be relied on

as a defence to the action. It surely could not, as the act of parliament does not speak of a conviction, but only authorizes the Magistrate to commit the party charged.

[PARKE, B.-The commitment then is the only instrument authorized or required by the act.]

The cases cited on the other side are inapplicable, inasmuch as in none of them were there two convictions. In The King v. Barker there was no previous commitment drawn up and brought into question. In Massey v. Johnson the instrument was treated as a conviction, though, in fact, it should have been treated as a commitment. The proceeding there was under the 17 Geo. 2. c. 5. s. 7, which authorizes Magistrates to order vagrants to be sent to the house of correction, there to remain until the next general or quarter sessions; the 9th section empowering the Justices, at the Quarter Sessions, to adjudicate on their cases. The instrument, therefore, was only a commitment to safe custody till the sessions.

[MAULE, J.-Suppose the Magistrate had convicted the vagrant and sentenced him, as he might have done under that act, to an imprisonment which would have expired before the next sessions, would a good conviction not have been necessary in that case, as the Quarter Sessions then would have had no jurisdiction?]

That difficulty did not arise in this case. Perhaps a formal conviction would have been necessary under such circumstances. The instrument in Massey v. Johnson could not have been good; but the case does not seem to have been maturely considered, and cannot be treated as a good authority. In Gray v. Cookson there was only one instrument, and that case goes no further than to prove that a conviction may be

drawn up after an action has been commenced for a false imprisonment. The commitment in this case is bad, because, in the information which it sets out, the time at which the offence was committed is not mentioned, nor is it stated that the contract of hiring was in writing, or that the plaintiff below had entered into the service; one of which facts should have appeared, because the statute is applicable only where the servant under a written contract has failed to enter the service, or where, having entered the service under a contract written or not written, he has absented himself.

[MAULE, J.-For what appears in the information and the commitment the contract might have been made before the passing of the act; and the informant is described in the information as "underlooker;" a description of person not named in the act.]

The information therefore is bad for not shewing a complaint by a competent person, and recourse cannot be had to the conviction which calls the complainant "underlooker and manager" to make it goodPaley on Convictions, 3rd edit. 91. On these grounds the warrant of commitment is invalid, as not alleging any offence within the jurisdiction of the Magistrates.

Cowling, in reply.-Even if the warrant of commitment was the only document upon which the plaintiff in error had a right to base his defence, it was quite sufficient for that purpose. No mention whatever is made of a "conviction" in the 3rd section of the act, and it does not appear that any conviction is requisite. It cannot be said that an instrument, containing all the formalities of a technical conviction could have been contemplated by the statute, because the Magistrate has power to punish the servant by abating all his wages, if he pleases; in which case he could not draw up a formal conviction. There is, certainly, no doubt from the cases cited, that the commitment is insufficient if taken as a conviction. It is said that in some cases a conviction is not necessary. In The King v. Rhodes (11) it was held that under the 17 Geo. 2. c. 5. a conviction was necessary. [PARKE, B.-From the observations of Ashurst, J. that seems uncertain.]

[MAULE, J.-At all events, if a defendant is acquitted, is he not entitled to have that (11) 4 Term Rep. 220.

PARKE, B. (2nd Feb. 1848,) delivered the judgment of the Court.-This case came before us on a bill of exceptions to the direction of my Brother Coltman, on the

(12) During the argument the following questions were discussed, which it is unnecessary to report at length, as the Court gave no opinion upon them; and the following cases were cited :

1. Whether Justices are protected by the 43 Geo.3. c. 141. in all cases where they do not act maliciously. 2. Whether the conviction was drawn up too late to protect the Magistrate after a discharge on habeas corpus; and whether such discharge amounted to a question of the conviction-Chaney v. Payne, 1 Q.B. Rep. 712, s. c. 10 Law J. Rep. (N.s.) M.C. 114; Wigley v. Jones, 5 East, 440.

3. Whether the conviction in this case was not bad for not alleging that the servant absented himself without lawful excuse--The King v. Marsh, 2 B. & C. 717; The King v. Chandler, 1 Ld. Raym. 581; The King v. Speed, Ibid. 583; The King v. Theed, 2 Ld. Raym. 1375; Mann v. Davers, 3 B. & Ald. 103; The King v. Chipp, 1 Stra. 711; The King v. Corden, 4 Burr. 2279; In re Turner, 2 New Sess. Cas. 403, s. c. 15 Law J. Rep. (N.s.) M.C. 140; In re Van Boven, 2 New Sess. Cas. 492, s. c. 16 Law J. Rep. (N.s.) M.C. 4; The King v. Jukes, 8 Term Rep. 542; The Queen v. Henderson, 2 Moo. C.C. 192; Fletcher v. Calthrop, 6 Q.B. Rep. 880, s. c. 14 Law J. Rep. (N.s.) M.Č. 49.

4. Whether it was not competent to the defendant below to shew that the complainant was a manager," though the information described him as an "underlooker," and in that respect differed on the face of it from the conviction-Welch v. Nash, 8 East, 394; Branwell v. Penneck, 7 B. & C. 536, s. c. 6 Law J. Rep. M.C. 47; Weaver v. Price, 3 B. & Ad. 409, s. c. 1 Law J. Rep. (N.s.) M.C. 90; Fearnley v. Worthington, 1 Man. & Gr. 491, s. c. 10 Law J. Rep. (N.s.) M.C. 81; The King v. Gilkes, 8 B. & C. 439, s. c. 6 Law J Rep. M.C. 118; In re Ormrod, 1 Dowl. & L. 825, s. c. 13 Law J. Rep. (N.S.) M.C. 73; Brittain v. Kinnaird, 1 Brod. & Bing. 432; Painter v. the Liverpool Gas Company, 3 Ad. & El. 433, s. c. 5 Law J. Rep. (N.s.) M.C. 108.

5. Whether a Magistrate may not be protected by a conviction, though it is so drawn that it would be quashed on appeal-Massey v. Johnson, 12 East, 67; Strickland v. Ward, 7 Term Rep. 631, n.; Gray v. Cookson, 16 East, 13; Hamond v. Howell, 2 Mod. 218; Dr. Groenvelt's case, 1 Ld. Raym. 472; The King v. Barker, 1 East, 186; Chaney v. Payne, 1 Q.B. 712, s. c. 10 Law J. Rep. (N.s.) M.C. 114.

trial of an action of trespass and false imprisonment brought by the plaintiff below against the defendant below. It appeared that the plaintiff was committed to the house of correction at Kirkdale, in Lancashire, by a warrant under the hand and seal of the defendant Lindsay, a Justice of the Peace for the county of Lancaster, of which warrant this is a copy-[His Lordship here read the warrant of commitment]. The plaintiff remained in prison under this warrant, and was kept to hard labour until he was discharged on habeas corpus by my Brother Wightman. The defendant put in evidence a conviction on parchment, under the hand and seal of the defendant, drawn up after the discharge of the plaintiff upon habeas corpus. This conviction purports

to be on the information on oath of one Adam Gregory, underlooker and manager of Whaley and others carrying on a colliery, and stated that the plaintiff contracted to serve Whaley and others, entered into such service, and absented himself from the said service before the term of his contract was completed, and proceeds to set out the evidence, and to adjudicate upon it in due form. Adam Gregory was examined as a witness on the trial, and deposed that he was underlooker, manager, and agent of Whaley and others; that he hired the plaintiff, who entered on the service, and absented himself without lawful excuse. He also proved that he went before the Magistrate and deposed, on oath, to all the circumstances before mentioned relative to the plaintiff and to the colliery, and exhibited his information in writing, which, however, states him to be "underlooker" only. The information was produced and read. In summing up, the learned Judge directed the jury that if they believed the evidence they ought to find a verdict for the plaintiff. This direction was excepted to. The plaintiff had a verdict: and the sole question is, whether the direction was right? We are of opinion that it was. The case was elaborately argued before us, and some important questions discussed, upon which it is unnecessary to give an opinion; for we think the commitment is bad upon grounds irrespective of some of those questions. Mr. Addison, for the plaintiff, argued, and we think rightly, that under the statute under which the commitment took place, the 3 &

4 Geo. 4. c. 34. (for the sentence to hard labour cannot be supported under 6 Geo. 3. c. 85.), the legislature did not intend that there should be any other instrument to authorize the detention than a warrant of commitment founded upon a proper information by the Master or his agent; that no conviction, properly so called, was required or authorized to be filed at the sessions; and that if the warrant of commitment was defective, the imprisonment was unlawful, and could not be rendered legal by connecting it with a formal conviction. This is a question of the construction of the particular act of parliament under which the commitment took place, for it is just as competent to the legislature to authorize a Magistrate to exercise a summary authority out of the course of the common law by a simple order, which shall be delivered to the person who is to execute it, and be his warrant for so doing, and remain in his custody, as it is to authorize him to proceed by summons, and conviction which is to be filed at the sessions, and commitment thereon, though the latter is by far the more usual course. A reference to the statute 6 Geo. 3. c. 25, in pari materiá, and the case of The King v. the Justices of Staffordshire (13), which treats such an instrument as an order of commitment only, not a conviction, strongly confirms this view of the case; and the context in 4 Geo. 4. c. 34. shews that in dealing with cases brought before the Justices by complaint of the master or manager, as in abating wages, an order is all that would be required.

But by whatever name this instrument is called, we think it clear that it is the only instrument which the legislature intended to exist in this case. This must necessarily be in the custody of the keeper of the gaol, and no mention is made expressly or by implication of any other instrument, still less of a formal record, which is to be filed at the sessions, and, to form one of its records, as a conviction does.

In the case of Johnson v. Reid, I expressed an opinion, that no conviction was necessary under the statute, to which opinion I adhere; but whether this be an order, as, indeed, I think it is, or be in the nature of a conviction, it being, as it seems to me,

(13) 12 East, 572.

the only document the existence of which the legislature contemplated, the legality of the imprisonment must depend upon the legality and sufficiency of that instrument alone. Now, whether this instrument is to be construed with a less degree of strictness, as being an order The King v. Lloyd (14), or with a greater degree, as being a conviction, as the Court of Queen's Bench in some recent cases (In re Hammond) have intimated, we think the warrant is bad. Every instrument which is to affect a man's liberty or property out of the course of the common law, ought, on the face of it, to shew the authority sufficiently; and we think this does not. We do not consider it necessary to say whether the objection is well founded, which seems to have prevailed in the case of Inre Turner(15), to a similar warrant, viz. that it does not state that the plaintiff "absented himself without lawful excuse," because I think that the commitment is invalid, as it does not bring the case within the statute 4 Geo. 4. c. 34, by the averment, either that his contract to serve was in writing, or that the service was entered upon; one of those two circumstances being essential to give the Magistrate jurisdiction to commit to hard labour. For this reason we are of opinion, that the commitment did not afford a justification to the defendant below.

This view of the case makes it unnecessary to decide whether this conviction could be connected with this commitment, looking at the peculiar frame of it, and supposing that it was competent to the Magistrate under this statute to support his warrant by a proper conviction filed at the sessions. Nor is it necessary to decide whether this conviction is bad on the face of it; nor whether, supposing it to have been otherwise unobjectionable, it was filed too late, and was in the same condition by reason of the plaintiff's prior discharge, as if it had been filed after a former conviction quashed. These questions were fully argued, but in the view we take of the case, they are immaterial; and being satisfied that the right to imprison the plaintiff and keep him to drah labour, depends wholly upon the validity of the warrant, being the only instrument contemplated by the act, we think (14) 2 Stra. 996.

(15) 15 Law J. Rep. (N.s.) M.C. 140.

In April 1839, prior to the grant of a separate Court of Quarter Sessions to the borough of Birmingham, situate within the county of Warwick, a resolution was come to, and duly entered in the minutes of the town council, for paying the sum of 11d. per head per day for one year, for the maintenance of the borough prisoners in the county gaol and house of correction, there being no gaol or house of correction in the borough, and this resolution was agreed to by the county Justices. In September 1839, after the grant of the Court of Quarter Sessions, an account was made out and allowed on the above principle. In January 1841 the county Justices resolved that the borough Justices had no power to commit to the county house of correction, and such prisoners were detained at expense and inconvenience to the borough, till county Justices could attend to commit them.

In consequence of doubts as to the validity of the charter of the borough of B, and other circumstances, no other accounts were sent in, in reference to the above charges, till September 1842, when an account was sent in to the council charging for prisoners confined in the gaol and house of correction, at the rate of 11d. per head up to the 30th of June 1842. The statute 5 & 6 Vict. c. 98. passed on the 10th of August 1842 :-Held, that in pursuance of that statute such accounts were rightly altered, so as to charge the actual expense of the borough prisoners instead of the 11d. per head per day-the statute rendering the borough liable to such charge of the actual expenses, both prospectively and retrospectively, and that no deduction could be made in respect of the prisoners committed by the borough Justices to the county house of correction, subsequently to January 1841.