1844. JENNEY v BROOK. sary to prevent the hedges or trees from damaging the road, by excluding the sun and wind. We are of opinion that the order in this respect is good, and that, reading the summons and the order together, it sufficiently appears that there is a complaint by the surveyor of the obstruction to the road by the hedges and trees, which required the cutting, plashing, pruning, and lopping, and a direction to remove that obstruction. So far, however, as it relates to the trees, the order is defective, as there is no statement that they were not planted for ornament, or shelter to a hop-ground, &c., which trees are excepted in the 65th section. It is good, however, with respect to the hedges. It was also objected to the order, that it was altogether void, for the want of a statement that the plaintiff was the owner of the land next adjoining to the road; but we think the statement, that the trees were growing on the plaintiff's farm, and on the side of the road, is equivalent to it; they could not be growing on the roadside unless they were close to it, according to the strictest construction of the law. We are, therefore, of opinion that the order, though informal, is good in part, and gave authority to the defendants to cut, prune, and plash the hedges, so as to remove the actual obstruction to the cart-way occasioned by the branches of the thorns, bushes, and shrubs forming part thereof, but no further. Therefore, there must be a venire de novo; and on the new trial the jury will have to inquire whether the defendants did more than this, and to assess the damages incurred by the plaintiff, if they did. This view of the case may put an end to the necessity for further proceedings. Venire de novo awarded. END OF TRINITY VACATION. 1844. Court of Queen's Bench. MICHAELMAS TERM, 1844. In the Matter of BESSET. JACQUES BESSET, a native of France, was, in September last, committed to Giltspur-street Prison by the Lord Mayor of London, under the stat. 6 & 7 Vict. c. 75 (a). The warrant of commitment was as follows: - The stat. 6 & 7 citing a convention be Vict. c. 75, re tween her Majesty and the King of the French, pro vides for the mutual delivering up to justice persons, who, being accused of certain offences therein specified, (inter alia, fraudulent bankruptcy), committed in one country, shall be found within the territories of the other; and empowers a justice in England, upon a requisition duly made in the name of the King of the French, and signified by the warrant of the Secretary of State, &c., to such justice, to issue his warrant for the apprehension of, and to commit, the person accused to gaol, there to remain until delivered pursuant to such requisition. A Frenchman was committed under the above statute upon a charge of fraudulent bankruptcy committed in France. The warrant of commitment directing the gaoler to keep him in custody "until he shall be discharged by due course of law," was held insufficient. The right to a habeas corpus is by the common law, and not created by statute. (a) Section 1. "Whereas by a convention between Her Majesty and the King of the French, signed at London, on the 13th of February, 1843, the ratifications whereof were exchanged at London on the 13th day of March, in the same year, it was agreed, that the high contracting parties should, on requisition made in their name through the medium of their respective diplomatic agents, deliver up to justice persons who, being accused with the crimes of murder, (comprehending the crimes designated in the French penal code by the terms assassination, parricide, in- 1844. In re BESSET. To all and every the constables and other officers of the peace for the city of London, and the liberties thereof, whom these may concern, and to the keeper of the Giltspur-street Prison, in London. "London, to wit.-These are in her Majesty's name to command you and every of you forthwith safely to 6 and it is by the said convention further stipulated, that, on the part of the British Government, the surrender should be made only on the report of a Judge or magistrate duly authorized to take cognizance of the acts charged against the fugitive in the warrant of arrest or other equivalent judicial document is sued by a Judge, or competent magistrate in France, and likewise clearly setting forth the said acts; and it is by the said convention further stipulated and agreed, that the expenses of any detention and surrender made in virtue of the stipulations hereinbefore recited should be borne and defrayed by the government in whose name the requisition should have been made;' and it is by the said convention further stipulated and agreed, that the provisions of the said convention should not apply in any manner to crimes of murder, forgery, or fraudulent bankruptcy committed antecedently to the date thereof,' &c. And whereas it is expedient that provision should be made for carrying the said convention into effect be it therefore enacted, that in case requisition be duly made, pursuant to the said convention, in the name of his Majesty the King of the French, by his ambassador or other accre dited diplomatic agent, to deliver up to justice any person who, being accused of having committed, after the ratification of the said convention, the crime of murder (comprehending the crimes designated in the French penal code by the terms assassination, parricide, infanticide, and poisoning), or of an attempt to commit murder, or of forgery, or of fraudulent bankruptcy, within the territories and jurisdiction of his said Majesty the King of the French, shall be found within the dominions of her Majesty, it shall be lawful for one of her Majesty's principal secretaries of state, or in Ireland for the chief secretary of the Lord Lieutenant of Ireland, and in any of her Majesty's colonies or possessions abroad for the officer administering the government of any such colony or possession, by warrant under his hand and seal, to signify that such requisition has been so made, and to require all justices of the peace and other magistrates and officers of justice within their several jurisdictions to govern themselves accordingly, and to aid in apprehending the person so accused and committing such person to gaol, for the purpose of being delivered up to justice, according to the provisions of the said convention, and deliver into the custody of the said keeper the body of Jacques Besset, being charged before me, one of her Majesty's justices of the peace in and for the said city and liberties, by the oaths of Philip Antoine Mathieu and others, taken and sworn in the presence and hearing of the said Jacques Besset; for that the said Jacques Besset is accused of having committed in France the crime of fraudulent bankruptcy, (as appears by the warrant of arrest issued by a competent Judge in France, and duly authenticated before me; and as also appears by the warrant of one of her Majesty's principal Secretaries of State, requiring me to take cognizance of such crime), the said crime and the acts done being clearly set forth and proved before me by the oaths of Philip Antoine Mathieu and others: whom you, the said keeper, are hereby required to receive, and him in your custody safely keep until he shall be discharged by due course of law; and, for so doing, this shall be to you, and each of you, a sufficient warrant. Given under my hand and seal the 23rd day of September, 1844. (Signed) "Wm. Magnay, Mayor."(L. s.) The prisoner being brought up by writ of habeas corpus, the return set forth the warrant of commitment. 1844. In re BESSET. 1844. In re BESSET. E. James shewed cause.-The writ of habeas corpus does not lie for a person in the situation of the prisoner. He is a native of France, and is in custody here, charged with a crime committed in France (a). [Lord Denman, C. J.-The first section of the statute concludes with these words: "and also to commit the person so accused to gaol, there to remain until delivered pursuant to such requisition as aforesaid;" such requisition being "one duly made, pursuant to the said convention, in the name of his Majesty the King of the French, by his ambassador, or other accredited diplómatic agent, to deliver up to justice," &c. This warrant orders the prisoner to be kept in custody "until he shall be discharged by due course of law."] The directions of the statute have been complied with. The requisition has been duly made, and the warrant of the Secretary of State has been issued, so that the magistrate has been properly put in motion. The warrant directing the prisoner to be kept in custody "until he shall be discharged by due course of law" is not defective. In Goff's case (b), a collector of rates was committed by a warrant of two justices, for refusing to account and pay over monies he had received, which concluded by directing the gaoler to keep him in custody until he should be discharged by due course of law; but the Court held the commitment good, and that it was the same as if the warrant had directed the gaoler to detain the party until he had accounted. Reliance will, no doubt, be placed by the other side on Mash's case (c), where the Court said, "The true distinction is, that, where a man is committed for any crime, either at common law or (a) M. Chambers objected to the use of affidavits for the purpose of shewing these facts, and contended the Court could only look at the return; but see Hob house's case, 3 B. & A. 420; (b) 3 M. & S. 203. |