In the Matter of COPESTICK. THE return of the keeper of the house of correction at Derby, in me, the oath "Whereas information and complaint hath been made before William Wootten Abney, Esq., one of her Majesty's justices of the peace in and for the said county, by Joseph Dooley, agent to Court Granville, of Swadlincote, in the said county of Derby, upon of the said J. Dooley, against Edwin Copestick, late of Swadlincote aforesaid, in the said county, servant to the said C. Granville, that he, the said Edwin Copestick, hath in his said service been guilty of a certain misconduct, misdemeanour, miscarriage, and ill-behaviour towards him the said Court Granville, in that he, the said Edwin Copestick, did, on the 21st instant, absent himself from the said C. Granville's service without consent; and whereas, in pursuance of the statute in that case made and provided, I have duly examined the proofs and allegations of both the said parties touching the matter of the said complaint, and, upon due consideration had thereof, have adjudged and determined that he, the said Edwin Copestick, hath in his said service been guilty of a certain misconduct, misdemeanour, miscarriage, and ill-behaviour towards the said C. Granville, in that he, the said Edwin Copestick, did, on the 21st instant, absent himself from his said master's service without his consent, and I do therefore convict him, the said Edwin Copestick, of the said offence, in pursuance of the statute in that case made and provided these are therefore to command you &c. Bodkin, Fry, and Huddleston, for the prisoner (a).—The averment in this case is insufficient. It does not state that the examination was taken upon oath (b), nor does it shew that the prisoner was employed in one of the capacities described in the statute 4 Geo. 4, c. 34, s. 3. In Regina v. Lewis (c), the prisoner was described in the warrant as a miner; but, as it did not aver that he contracted to serve as such, he was discharged. In Rex v. Hulcott (d), it was held that (a) The prisoner had been brought up on a former day, when it was ordered by consent that he should return with the gaoler, and the case be heard in his absence. (b) See In re Jones, ante, p. 3. (c) 13 Law J., N.S., M. C., 46. Lewis and Fairley were brought (d) 6 T. R. 583. 1844. A commitment in execution, under the 4 Geo. 4, c. 34, s. 3, stating that complaint had been made against E. C., servant to C. G., for misconduct, &c., in his said service, was held insufficient, for not stating the nature of the ser vice. 1844. In re COPESTICK. an order of a justice for discharging a servant from her master's service, under stat. 5 Eliz. c. 4, was void, for not stating that she was a servant in husbandry. Whitehurst admitted that he could not support the commitment. Lord DENMAN, C. J.-The objection is fatal. There is no instance of ordering the discharge of a prisoner not before the Court; but, as his attendance was dispensed with by consent, that should be entered as part of the rule. The prisoner was discharged. A return to a four prisoners, &c., and C. and D. under a similar warrant of the same date. (The return set out the warrants, which were in the present tense, "I do convict "). That afterwards, and whilst the pri soners were in custody under the said warrants, four other warrants were delivered In the Matter of WALKER and Others. THE return, in the case of James Walker, William Bird, Joseph 66 Leicestershire, to wit.—I, John Allen, the keeper of the house of correction at Leicester, in the county of Leicester, in the writ to this schedule hereunto annexed named, do certify and return to our Sovereign Lady the Queen, that, before the coming to me of the said writ, that is to say, on the 8th day of April, A. D. 1844, James Walker and William Bird, in the same writ also named, were severally committed to my custody by virtue of a certain warrant of committal, the tenor of which is as follows:-'Leicestershire, to wit.-To the constable of Worthington, in the said county, and to the keeper of the house of correction at Leicester, in the said county. Whereas information and complaint hath been made before me, William Wootten Abney, Esq., one of her Majesty's justices of the peace in and for the said county, by Benjamin Walker, of Worthington, in the said county, coalmaster, upon the oath of the said Benjamin Walker, against James Walker and William Bird, late of Worthington aforesaid, in the said county, colliers to the said Benjamin Walker, at his colliery, that they, the said James Walker and William Bird, have in their said service severally been guilty of a certain misconduct, misdemeanour, miscarriage, and ill-behaviour towards the said Benjamin Walker, in that they, the said James Walker and William Bird, having severally entered into their service, have severally therein not fulfilled their contract, by having, at the township of Worthington, in the said county, on the 4th day of April instant, severally to him for the commitment of A., B., C., and D., respectively. (These warrants were also set out, and recited the offence, &c., and conviction in the past tense). Held, that, though the two first instruments were insufficient, the four last, being merely commitments reciting convictions, were, as such, good upon the return made to the writ. neglected their work in such service, contrary to the statute; and whereas, in pursuance of the statute in that case made and provided, I have duly examined the proofs and allegations of both the said parties touching the matter of the said complaint, and, upon due consideration had thereof, have adjudged and determined that the said James Walker and William Bird have in their said service severally been guilty of a certain misconduct, misdemeanour, miscarriage, and ill-behaviour towards the said Benjamin Walker, in that they, the said James Walker and William Bird, having severally entered into said service, have severally therein not fulfilled their said contract, by having, at the township of Worthington, in the said county, on the 4th day of April instant, severally neglected their work in such service contrary to the statute, and I do therefore convict them, the said James Walker and William Bird, of the said offence, in pursuance of the said statute in that case made and provided: these are therefore to command you, the said constable, forthwith to convey the said James Walker and William Bird to the said house of correction at Leicester aforesaid, and to deliver them to the keeper thereof, together with this warrant; and I do hereby command you, the said keeper, to receive the said James Walker and William Bird in your custody in the said house of correction, there severally to remain, and severally to be kept to hard labour for the space of three months from the date hereof, and for your so doing this shall be your sufficient warrant. Given under my hand and seal the 8th day of April, a. d. 1844. WILLIAM WOOTTEN ABNEY.' "And I do hereby further certify and return to our Sovereign Lady the Queen, that, before the coming to me of the said writ, that is to say, on the 8th day of April, A. D. 1844, Joseph Richards and John Bird, in the same writ also named, were severally committed to my custody by virtue of a certain warrant of committal, the tenor of which is as follows :-[setting out a similar warrant for the commitment of Joseph Richards and John Bird.] "And that afterwards, and whilst the said James Walker, William Bird, Joseph Richards, and John Bird were respectively so in custody, that is to say, on the 15th day of April, A. D. 1814, the said William Wootten Abney caused to be delivered to me a certain other warrant of committal, the tenor of which is as follows:-'Leicestershire, to wit. To all and every the constables and other officers of the peace for the said county, whom these may concern, and to the keepers of the house of correction at Leicester, in the said county. These are, in her Majesty's name, to command you and every of you, the said officers, forthwith safely to convey and deliver into the custody of the said keeper the body of James Walker, late of Worthington, in the said county, collier, being convicted before me, William Wootten Abney, Esq., one of her Majesty's justices of the peace in and for the said county, upon the evidence on oath of Benjamin Walker, of Colerton, in the said county, for that he, the said James Walker, did contract with 1844. In re WALKER and Others. 1844. In re WALKER and Others. the said Benjamin Walker to serve him in the capacity of a collier for an indefinite period, determinable nevertheless on either of the said contracting parties giving to the other fourteen days' previous notice of his intention to determine the said contract; and that the said James Walker did enter into the service of the said Benjamin Walker, and did continue to serve him, the said Benjamin Walker, and to be employed by him as a collier, under and according to the said contract, at the township of Worthington, in the said county of Leicester, so being then and there in the service of him, the said Benjamin Walker, as a collier, until the 4th day of April instant, and the term of the said contract being then subsisting and incomplete, he, the said James Walker, did misconduct and misdemean himself in his said service, to wit, did neglect his work and refused to go to it, on being requested by the said Benjamin Walker so to do, whereby divers other persons employed in the said pit were prevented from proceed. ing with their ordinary employment, and the said B. Walker sustained great damage and loss, contrary to the form of the statute in such case made and provided; for which said offence, I, the said justice, have ordered and adjudged the said James Walker to be imprisoned in the said house of correction at Leicester, in and for the said county, and there kept to hard labour for the space of three months; and you, the said keeper, are hereby required to receive the said J. Walker into your said prison, and him safely there to keep for the aforesaid term of three months, and, during that time, to be kept to hard labour, and for your so doing this shall be to you and every of you a sufficient warrant. Given under my hand and seal at Swepstone, in the said county of Leicester, this 8th day of April, A. D. 1844. 'WILLIAM WOOTTEN ABNEY.' (L. S.) [The return then set out three similar warrants for the commitment of William Bird, Joseph Richards, and John Bird respectively.] And that the said James Walker in the said first warrant mentioned is the same James Walker as in the third warrant mentioned, &c. And these are the causes of detaining the said James Walker, &c., whose bodies I have here ready, as by the said writ I am commanded." But the return Bodkin, Fry, and Huddleston, for the prisoners. In this case the gaoler first returns, that he detains these four prisoners by virtue of two warrants; each warrant is set out on the face of the return, and each is for the detention of two persons. These warrants are also liable to many of the objections already taken. then sets out four other warrants, each for the detention of one prisoner. These last are so drawn as to be recitals of convictions, and not in the present tense, like the others, which are, in effect, convictions. But if the four last are to be treated as warrants referring to convictions, the two former warrants sent to the gaoler must of necessity be treated as the convictions, all the persons and the facts being the same. Rogers v. Jones(a). No doubt, as a general proposition a formal warrant may be substituted for an informal one, but in such a case the former must be withdrawn, and the substitution referred to by words in the subsequent one. In re Elmy and Sawyer (b). If therefore these are to be considered as convictions, they are insufficient upon the face of them, as they do not set out the evidence, nor state that the examinations were taken upon oath, nor the place where they were taken. There is also an objection to the four last instruments, which, if bad, will not be aided by a good conviction, Rogers v. Jones (c); even if they are to be considered as substituted for the other two. No time or place is stated where the alleged refusal to work took place, and as it does not appear that the justice was in the county when the complaint was made, it may have been altogether out of his jurisdiction, in which case he would be liable for an action for false imprison ment. Whitehurst, contrà.-1. The allegation of time and place is sufficient, as it was a continuing contract. 2. The universal practice in the case of orders of removal is to use the form, "a justice in and for the county," when he says that, he means that he acts in the county. 3. As to the main objection, it is conceded that a bad warrant may be amended by a good one, but contended that the latter must contain some reference to the substitution. In the case of In re Elmy and Sawyer (b), the second warrant was attempted to be supported on the ground that, by the excise laws (3 & 4 W. 4, c. 43), the magistrate had power to substitute one warrant for another. There was nothing to shew that there had been such substitution, and the judgment of the Court proceeded expressly on that ground, that where a justice amends a warrant, in pursuance of a power given him by a particular statute, he ought in some manner to shew that he is acting under that authority. But that is not the case here. If there is a good warrant authorizing the detention of a prisoner, it does not matter how many bad warrants there are. The Court will not assume that they are for the same offence, and a justice may, pending an action, even on the morning of the trial, draw up a good conviction. PER CURIAM-We think you are right upon that point. In all cases of summary jurisdiction, there must be something in the nature of a judgment. The four last documents are merely commitments reciting convictions, and, as commitments, are good on the return sent to us. (a) 3 B. & C. 409. The prisoners were remanded. (b) 1 A. & E. 843. (c) 3 B. & C. 409; 5 D. & R. 263. 1844. In re WALKER and Others. VOL. I. N. S. C. |