If a man be committed for nonpayment of two sums, one of which is not due, the warrant of commitment is bad for the whole. Ex parte Addis, M. 1822, 1 B. & C. 90. Also a warrant of commitment in execution after a conviction must show before whom the conviction was, as likewise the authority of the person committing. R. v. York, 5 Burr. 2684. Though the commitment need not state the conviction in a precise or technical form, yet it must show that the party has been convicted of some specific offence, and by a person having competent authority. For two sums, one not being due, bad. On conviction, must show before whom. must be stated. Thus, where there had been a previous regular conviction on Specific offence 5 G. 4. c. 14. for fishing in a private fishery, but the commitment omitted to state that the offence was committed "in an inclosed ground:" held to be bad, and that the justice was liable in an action for false imprisonment. Wickes v. Clutterbuck, 2 B. 483. Rex v. Evered, Cald. 26. Two justices committed Robert Not to be in the Collehole, an apprentice, for running away from his master. An disjunctive. objection was taken to the form of the commitment, for the uncertainty thereof, which ran thus: "As an apprentice or servant, for disobeying his indentures or articles." Ld. Mansfield said, that the objection to the warrant of commitment, as running in the disjunctive, must undoubtedly prevail. The counsel for the prosecution consented to the prisoner's discharge. It must have an apt conclusion; as, if it be for felony, to detain Apt conclusion. him till he be thence delivered by law, or by order of law, or by due course of law. 2 Hale, 123. 2 Haw. c. 16. § 18. But when a man is committed for contumacy in refusing to do Where as a something which he ought to do, the conclusion ought to be criminal, or for "until he comply, and perform the thing required;" for he is contumacy. entitled to be discharged immediately upon the performance of his duty. If, therefore, an overseer of the poor be committed for refusing to account, the warrant of commitment must conclude, "there to remain until he shall account." Carth. 152. ment, or under thority only. Goff's case. Commitment of parish officer account, and to be detained till till he shall The true distinction is, that, where a man is committed for any Where for an crime, either at common law or created by act of parliament, for offence, punishwhich he is punishable by indictment, there he is to be committed able by indicttill discharged by due course of law: but, when it is in pursuance special auof a special authority, the terms of the commitment must be special, and exactly pursue that authority. Nash's case, H. 12 G.3. 2 Black. Rep. 806. But in a recent case, where a parish collector of the rates was committed to the county gaol by warrant of two justices, upon complaint" for that he, having been duly appointed collector of the rates for the parish of Richmond, pursuant to stat. 25 G. 3. c. 41., refused to account and pay over the monies collected by him by virtue of the act to W. S., the person duly authorised to receive discharged by them;" and the justices adjudged that he should be committed to due course of the gaol, there to remain without bail or mainprize, until he should law; good. have made a true and fair account, and until such money, as upon the said account should appear to be remaining in his hands, should be paid by him or his sureties to W. S., and they required the keeper of the gaol to receive and safely keep him "until he should be discharged by due course of law," it was contended that the warrant was void; a habeas corpus having been obtained, and the prisoner brought up under it (after argument), Ld. Ellenborough Adjudication and commit ment varying from conviction, bad A commitment for a contempt, being a commit ment for punish ment, must be for a time cer tain, and consequently a a contempt till the defendant is discharged by due course of law, is bad. C. J. said, "If there was any uncertainty on the face of the commitment, I should have agreed with the argument. But coupling the premises with the conclusion, is it not in effect the same as if the warrant had directed the gaoler to detain the party until he had accounted? We must read the warrant as if the magistrates had in the conclusion recited over again the adjudication." Le Blanc J. said, "Some precise authority ought to be shown to justify the court in adopting the objection made to this warrant. When the party has accounted and paid over the money, he will be entitled to be discharged by due course of law." The prisoner remanded. Goff's case, M. 55 G.3. 3 M.& S. 203. Where a conviction of an overseer, under stat. 17 G. 2. c. 38. was for not delivering over to the succeeding overseers "a certain book, belonging to the parish, called The Bastardy Ledger," and the adjudication and warrant of commitment thereon was, "until he shall have yielded up all and every the books concerning, &c.;" the court of K. B. held that both the adjudication in respect to the imprisonment, and the commitment made in pursuance thereof, were in that particular a clear excess of jurisdiction, and the imprisonment thereunder a trespass in the committing magistrates, for which the action was maintainable, the warrant being void in toto. Groome v. Forrester, 5 M. & S. 314. See the case more fully stated, tit. Poor (Overseers), § iv.(1.) Rex v. James, T. 3 G. 4. 5 B. & A. 894. Campbell, on a former day, moved for a writ of habeas corpus to the keeper of the gaol for the county of Caermarthen, to bring up the body of the defendant, on the ground that he had been illegally committed by two justices of the peace, for contempt, under the following warrant of two justices: "Receive into your custody the body of Thomas James, sent by us and charged by us, upon view, for commitment for insulting behaviour towards us, by telling us that we were biassed and prejudiced in our conduct towards him as magistrates, in the due execution of our office as magistrates of the county of Caermarthen, and keep him in custody until he shall be discharged by due course of law." He contended, first, that justices of the peace, not sitting in a court of sessions, had no power to commit for a contempt; and, secondly, upon the facts disclosed in his affidavit, that the defendant had not been guilty of any contempt for which he could lawfully be committed. In addition to these objections, there was a third, which appeared upon the face of the warrant. For, at all events, as this was a commitment for punishment, it ought to have been for a time certain; and as there was no course of law by which the defendant could be discharged, such a commitment, if valid, amounted to perpetual imprisonment. Abbott C. J. (without giving any opinion upon the power of a justice of peace to commit for a contempt). This warrant appears to us to be bad, for not committing for a time certain. Take the writ. The defendant being now brought up under the habeas corpus, Campbell moved that he might be discharged. Taunton appeared for the magistrates, and stated that he had affidavits of the facts of the case, to show the nature of the contempt, and that he meant to contend, that the magistrates were justified in committing for a contempt.-Abbott C. J. Supposing a contempt had been committed, and the magistrates to have had power to commit for the contempt, can you contend that a commitment in this form is valid? Taunton admitted, that he could not support the validity of the warrant. Defendant discharged. (a) See tit. Justices. It is to be observed that there is a distinction between commit- Commitment ments for safe custody, and commitments in execution for punish- for safe custody ment, because, with respect to the former, although they are irregular, yet the prisoner will not be entitled to his discharge if sufficient appears to warrant his being detained or bailed. If the conclusion be irregular, it doth not seem to make the warrant void, but the law will reject that which is surplusage, and the rest shall stand; so that, if the matter appear to be such, for which he is to remain in custody, or be bailed, he shall be bailed or committed as the case requires, and not discharged, but the wrong conclusion shall be rejected. 1 Hale, 584. But though a warrant of commitment for felony be informal, yet, if the corpus delicti appear in the depositions returned to the court, they will not bail, but will remand the prisoner. The defective commitment was in this case altered, to prevent the prisoner thus remanded from renewing the same application to another court or judge. R. v. Marks and others, 3 East, 157. different from commitment in execution. If sufficient matter appear, an irregular conclusion may be rejected. Prisoner, on defective com mitment, for safe custody may be remanded, if the depositions show a corpus delicti. Commitment of a lunatic under Where an insane person was committed under 39 & 40 G. 3. c. 94. § 3., as being a dangerous person likely to be guilty of an assault, the commitment was held sufficient, although it omitted to 39 & 40 G. 3.; state the name of the individual likely to be assaulted, or that not in exeevidence was taken on oath, as it was not considered a commit- cution. ment in execution, and therefore not to be construed with the same strictness. R. v. Gourlay, 7 B. & C. 669. Where a statute appoints imprisonment, but limits no time how long, in such case the prisoner must remain at the discretion of the court. Dalt. c. 170. p. 410. It must be under seal; without this, the commitment is unlawful, the gaoler is liable to false imprisonment, and the wilful escape by the gaoler, or breach of prison by the felon, makes no felony. 1 Hale, 583. Where no time is limited. Seal necessary. ments under By 73. of 7 & 8 G. 4. c. 29. (the Larceny Act), it is enacted As to committhat no warrant of commitment on a conviction under that act, shall be held void by reason of any defect therein, provided it be therein alleged that the party has been convicted, and there be a good and valid conviction to sustain the same. A similar enactment is made by § 39. of 7 & 8 G. 4. c. 30. 7 & 8 G.4. c. 30. (the act against malicious injuries to property). And also by § 36. of 9 G. 4. c. 31. (the act relating to offences 9 G. 4. c. 31. against the person). And also by 1 & 2 W. 4. c. 32. § 45. (the Game Act.) [For the commitment of a rogue and vagabond, see tit. a- 1 & 2 W. 4. grant.] (a) See 2 Hawk. c. 1. § 16. Rex v. Darby, 3 Mod. 139. 2 Salk. 698. Rer v. Revel, 1 Str. 420. Petit v. Addington, Mayhew v. Locke, Taunt. 63. Bushel's 's case, Vaugh. 138. Reg. v. Wrightson, Rex v. Clement, c. 32. 4 B. & A. 218. 3 J. 1. c. 10. fender, if able. IV. Charges of the Commitment. By stat. 3 J. 1. c. 10. § 1. every person who shall be committed Charges to be to the common or usual gaol, within any county or liberty, by any paid by the of justice of the peace, for any offence or misdemeanor, the said person so to be committed, having means or ability thereunto, shall bear his own reasonable charges for so conveying or sending him to the said gaol, and the charges also of such as shall be appointed to guard him to such gaol, and shall so guard him thither and if any such person so to be committed shall refuse at the time of his commitment and sending to the said gaol to defray the said charges, or shall not then pay or bear the same, then such justice shall and may, by writing under his hand and seal, give warrant (post, p. 176.) to the constable of the hundred, or constable of the township, where such person shall be dwelling and inhabit, or from whence he shall be committed, or where he shall have any goods within the county or liberty, to sell such and so much of the goods and chattels of the said person so to be committed, as by the discretion of the said justice shall satisfy and pay the charges of such his conveying and sending to the said gaol, the appraisement to be made by four of the honest inhabitants of the parish where such goods shall be; the overplus to be delivered to the party to whom the said goods shall belong. 27 G. 2. c. 3. If not able, to be paid out of the county rate. Except in Middlesex. Deserter. And by stat. 27 G. 2. c. 3., after reciting stat. 3 J. l. c. 10., and that whereas "the taxing the parish where such offender was taken to pay such charges is a great discouragement to parishes to take offenders; and it is also found by experience to be very difficult to make a rate on the inhabitants to raise such tax, whereby constables and others are often kept out of their money by them advanced for the service of the public, and sometimes lose the same, to their very great injury and vexation;" for remedy whereof, it is enacted, § 1.," that from and after the 24th day of June 1754, when any person not having goods or money within the county where he is taken sufficient to bear the charges of himself, and of those who convey him, is committed to gaol or the house of correction, by warrant from any justice or justices of the peace, then, on application by any constable or other officer who conveyed him, to any justice of the peace for the same county or place," [such justice]" shall upon oath examine into and ascertain the reasonable expenses to be allowed such constable or other officer, and shall forthwith, without fee or reward, by warrant under his hand and seal, order the treasurer of the county or place to pay the same, which the said treasurer is hereby required to do, as soon as he receives such warrant: and any sum so paid shall be allowed in his accounts." §4. But in Middlesex the same shall be paid by the overseers of the poor of the parish where the person was apprehended. A justice before whom a deserter is brought and committed to the county gaol, may, under the authority of these statutes, if the deserter be unable to bear the charges himself, direct the expenses of conveying him thither to be paid by the treasurer of the county, to the constable of the parish who found and apprehended him in the parish, and conveyed him to the gaol. R. v. Pierce, 3 M. & S. 62. V. Gaoler shall receive the Prisoner. But if a man be committed for felony, and the gaoler will not Gaoler refusing receive him, the constable must bring him back to the town where to receive he was taken; and that town shall be charged with the keeping of prisoner. him until the next gaol delivery; or the person that arrested him may in such case keep the prisoner in his own house, as it seemeth. Dalt. c. 170. p. 410. tained, except in gaol. But in other cases it seems, that regularly no one can justify Prisoner cannot detaining a prisoner in custody out of the common gaol, unless usually be dethere be some particular reason for so doing; as, if the party be so dangerously sick that it would apparently hazard his life to send him to the gaol, or there be evident danger of a rescous from rebels, or the like. 2 Haw. c. 16. § 9. VI. The Gaoler shall certify the Commitment. By stat. 3 H.7. c. 3. the sheriff or gaoler shall certify the com- 3 H. 7. c. 3. mitment to the next gaol delivery. VII. Commitment discharged. what case he may be discharged before indictment. It seems that a person legally committed for a crime certainly Prisoner, in appearing to have been done by some one or other cannot be lawfully discharged by any one but the king, till he be acquitted on his trial, or have an ignoramus found by the grand jury, or none to prosecute him on a proclamation for that purpose by the justices of gaol delivery. But if a person be committed on a bare suspicion, without an indictment, for a supposed crime, where afterwards it appears that there was none, as for the murder of a person thought to be dead, who afterwards is found to be alive, it hath been holden, that he may be safely dismissed without any further proceeding, so that he who suffers him to escape is properly punishable only as an accessary to his supposed offence; and it is impossible that there should be an accessary where there can be no principal, and it would be hard to punish one for a contempt in disregarding a commitment founded on a suspicion, appearing in so uncontested a manner to be groundless. 2 Haw. c. 16. $§ 22, 23. County .}J. Mittimus for Felony. P. esquire, &c. one of the justices of our lord the king assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed; To the keeper of the gaol of our said lord the king at in the said county, or to his deputy there, and to each of them, greeting: Whereas A. O. late of in the said county, labourer, hath been arrested by the Constable of, in the said county, for suspicion of a felony by him, as it is said, committed, in stealing a black mare, of the value of 40s. the property of A. P. of in the said county, yeoman; Therefore on the behalf of our said lord the king, I command you and each of you, that you or one of you receive the said A. O. into |