1844.

In re ASTON.

correction for not finding sureties to keep the peace, and the Court of King's Bench held that no action would lie against the justice who issued the warrant. [Parke, B.— But there the present objection was not taken.] It is supposed, however, that the 4 Geo. 4, c. 64, makes no difference in respect of the power of the justices to commit to the house of correction for offences of this kind. That act provides for the classification of offenders, and the 5th section enacts, that, where the house of correction and gaol are parts of the same building, or inclosed in the same boundary wall, and under the same keeper and visiting justices, the classification in the whole of such buildings, and not in each part separately, required by the act, shall be carried into effect. The 5 Geo. 4, c. 85, s. 10, provides for cases where, in consequence of the small number of prisoners, it is not necessary to provide the whole number of wards, &c. required by the former act. The 18 Eliz. c. 3, merely provides that houses of correction shall be assigned to every county. Connecting those statutes, then, with the affidavit, it appears that Aston has been committed to the very same class of offenders, viz. misdemeanants, as he would have been committed to if committed to the custody of the keeperof the gaol, for the gaol and house of correction are brought by the affidavit precisely within the 4 Geo. 4, c. 64, s. 5, and consequently the commitment is good.

M. D. Hill, contrà.-First, it is submitted that holding out threats is not a misdemeanor at all; it is no offence known to the law, but merely a fact which enables justices of the peace to put a party under sureties to keep the peace, or to imprison him for want of sureties. At common law, a person who is committed by the justices for default of sureties can only be sent to the prison which is under the orders of the sheriff; that was confirmed by stat. 14 Edw. 3. Therefore, long be

fore houses of correction were known, the common-law authority of justices of the peace was to be exercised by sending persons committed for want of sureties to gaol. But it is said that stat. 6 Geo. 1, c. 19, s. 2, makes a difference. It is clear, however, that a party who is not committed for any offence, but simply for not finding sureties, and who may be discharged the moment he finds them, is not within that statute, because he is there by the warrant of a magistrate who cannot hear him in his own defence, and who exercises a simple ministerial duty, without the exercise of any judgment of his own: a person cannot be an offender in the eye of the law who has never had an opportunity of defending himself against the charge imputed to him. Next, the affidavit does not state that the provisions of the act of Parliament, which are conditions precedent to making the gaol and house of correction the same, have been complied with; because it omits to state that they are under the jurisdiction of the same justices. It does not ap pear that they are under the same set of justices, nor that there was any order of sessions, nor any consent of the sheriff, who, by 4 Geo. 4, c. 64, s. 5, is to have a veto, and may choose to have his gaol perfectly distinct in point of jurisdiction and control from the house of

correction.

Lord ABINGER, C. B.-I think this rule for a habeas corpus must be discharged. The objection to the warrant is not because the prisoner is committed, but because he ought to have been committed to the county gaol, and not to the house of correction. That brings us to the question of whether a commitment to the house of correction for want of sureties is lawful. The 6 Geo. 1, c. 19, s. 2, gives justices of the peace power to commit persons charged with small offences either to the common gaol or house of correction, as they shall think proper. That statute does not mention felons; and accordingly,

1844.

In re

ASTON.

1844.

In re ASTON.

in Ex parte Evans (a), in which the question was, whether a party charged with treason could be committed to the house of correction, Lord Kenyon, C. J., admits that the statute cannot apply to felons; but says, that, "since the year 1715, commitments have been made to the house of correction, and that after the practice which has prevailed for so long a time past, there was no objection to the legality of the commitment in question." Here it is distinctly stated by the gaoler that this person was committed for want of sureties, and that all persons so committed are confined in the department in which he has been placed. I think, therefore, that the gaoler is justified by the general practice, as a house of correction is a public gaol, and that there is no foundation for the objections which have been raised.

PARKE, B.-I am of the same opinion. It is admitted that the only question is, whether a commitment by justices of the peace to a house of correction for not finding sureties to keep the peace is valid: if that is valid, there is no doubt that the prisoner is in proper custody. The question is then reduced to whether or not houses of correction can be considered to be public prisons. It seems to me that the authority of Ex parte Evans (a) goes the whole length of deciding the question. Prior to the 6 Geo. 1, c. 19, there might have been a doubt whether the house of correction was a proper place for such offenders; but the effect of that statute was to make it one of the King's prisons for the custody of offenders; and it appears that, in consequence of the well-known practice of committing felons to them, the Court, in Ex parte Evans (a), considered that, after 6 Geo. 1, c. 19, these houses of correction were public gaols. All that the law requires, as to the custody of felons, is equally true with respect to those persons who are committed for want of sureties: they must be committed to

(a) 8 T. R, 172.

a public gaol, where they may, in fact, be discharged by course of law. It follows, then, that a person who is committed for want of sureties must be committed to some public gaol for the purpose of safe custody, and for no other, and that the house of correction is a proper place for that purpose. The commitment is, therefore, correct, and the rule must be discharged.

ALDERSON, B.-The principle to be deduced from Er parte Evans (a) is, that a party must be committed to a place of safe custody, which must be a public and not a private prison; and, further, that the regulations of that gaol must be of the same nature as those of public gaols. In the present instance, it appears that the house of correction is, in fact, the same building as the gaol itself; the keeper of the house of correction is, in fact, the keeper of both; it appears that Aston is confined in the same room as he would have been if committed to gaol, and under the same regulations in all respects. If, then, a commitment to a gaol would have been good, as in its nature not varying from the offence committed, this is equally so; for this person is no more under any one of the classes of the house of correction than of the gaol. It seems to me that this is a public gaol, under the care of the Queen, and not under any private individual; and that there is nothing in its regulations which is inconsistent with safe custody; and that, therefore, the commitment is good.

GURNEY, B.—If the party complains of being committed to the house of correction, he has the same remedy for the injury as if he had been committed to gaol, since both are under the same keeper.

Rule discharged (V).

1844.

In re ASTON.

(a) 8 T. R. 172.

(b) See Rex v. Taylor, 3 Burr. 167%

1844.

Court of Queen's Bench.

HILARY VACATION, 1844.

February 8th.

THE QUEEN V. The Inhabitants of LEOMINSTER.
UPON

A notice of

appeal against

moval, dated

an appeal against an order of two justices of an order of re- the borough of Leominster, in the county of Hereford, for the removal of William Pierce, otherwise Loveridge, and Mary, his wife, from the said borough of Leominster to the parish of Addington, in the county of Buckingham, the sessions quashed the order, subject to the opinion of the Court upon the following case:

11th March,
1843, was
signed by
"J.C., church-

warden, and

J.C. and M.A.,

overseers,'
(J. C. signing
in both cha-
racters). It
appeared that
J.C. and M.A.
were the only

existing parish

officers, having

been appointed

overseers in 1842. J. C. was also the only surviving churchwarden, having originally been appointed with another, who

died before the

At the trial, the appellants being called upon to prove their notice of appeal and statement of the grounds of appeal, it appeared that a notice of appeal, of which the following is a copy, had been served upon the officers of

the respondent parish fourteen clear days at least before the sessions:

"To the churchwardens and overseers of the

poor

of

the borough of Leominster, in the county of Hereford. "We, the churchwardens and overseers of the parish

notice of appeal of Addington, in the county of Buckingham, do hereby

was given, and

no successor had been appointed in his place.

At the trial of the appeal, the respondents objected to the notice, on the ground that it was not signed by the churchwardens and overseers of the appellant parish; that, in fact, there was, in point of law, no such body in the parish, and that J. C. and M. A., who did sign the notice, were neither churchwardens nor overseers.

Held, that, as the appellant parish could not repudiate the acts of the officers by whom it was represented, the respondents would have all the benefit of a decision on the merits in their favour, and could not, therefore, on the trial of the appeal, enter into the consideration of the legality of the appointment of the officers in the adverse parish, and, therefore, that the notice was sufficient.