possible to doubt what the construction would be: nothing would be more irrational than supposing the donee to be creating an estate, and then postponing the interest of the appointee to a period depending on an event which might never happen. The question, however, is, whether the inference arising from the literal construction is sufficient for me to say that such was the intention of Mary Read. The case of Morse v. Lord Ormonde is a direct authority as to the validity of the appointment. Lord Eldon's observations in 1 Russ. 405, appear to me clearly to shew the true principle of construction to be, that in the case of a gift to children in tail, not taking in female issue, followed by a limitation over in terms, on failure of issue generally, the word issue must prima facie be taken to mean such issue before mentioned, unless it appears that other issue were intended to take. In that case, Sir John Leach appeared to rely upon the term of years. Lord Eldon does not notice that in his judgment, but relies on failure of issue, meaning the issue before mentioned. Ellicombe v. Gompertz is a strong authority for the same proposition; and, however guarded the language of the Lord Chancellor may be, I cannot read the passage in 3 My. & C. 151, without being persuaded, that, in a simple case like that which I am now supposing, he would decide, unless the context led to a different conclusion, that the word "issue" meant such issue as were described in the previous limitations. The authorities upon the question, as referring to personalty, are collected in Jarman on Wills, vol. 2, p. 362, and as to real estate, at p. 368, edit. 1844. I do not refer to other cases. I cannot but think the authority of the case Bristow v. Boothby is shaken, if not destroyed, by the decision in the case of Morse v. Lord Ormonde, unless, indeed, it is to be supported by the distinction, that, in that case, the question depended on the construction of a deed. But can any sound distinction, however, be taken between a deed and a will for purposes like the present? That is, would the conclusion be different on the same hypothesis, supposing the difference only to be, that the entire disposition was in a deed instead of a will? The observations of Lord Kenyon, in Wright v. Kemp, (3 T. R. 470), are deserving also of all possible attention. In that case, Lord Kenyon, after observing that a surrender was a common law conveyance, says: "Certain legal phrases are necessary to create estates; but, beyond that, there is no magic in particular words further than that they shew the intention of the parties." In order to give effect to the surrender, he used" or " for "and," and said there was no difference between a will and a deed. Smith v. Lord Jerningham (2 B. & B.) expresses the same doctrine. It was said, indeed, that Mary Read might in this case have intended to reserve a power to appoint to female descendants of sons; but as Mary Read is mentioned as a married woman in the will of James Mackerill, dated in 1778, it is impossible to sustain that conjecture sixty-three years after the time when she is spoken of as a married woman. If, therefore, the limitations were such as I first supposed, the appointment is valid, and the whole disposed of, whether the limitations were created by deed or will. But the case does not rest here. There are, in this case, circumstances to shew that I have put the right construction upon the will. A doubt might exist, whether the omission of the female descendants of the male issue was not by mistake; and whether, in the case of a party providing for her own issue, it would not be better to adhere to the letter of the will, and give to the female descendants of male issue, not provided for, the chance of an intestacy, rather than that the property should go over to a stranger. In this case there is no place for such a conjecture, but James Mackerill, where he creates the limitations not extending to daughters of male issue, gives the power, after failure of such issue, and Mary Read, the donee of the power, exercises that power so given to her without giving anything to issue not provided for by the will. I cannot think there was any mistake as to the omission of female descendants of male issue. The deed, after reciting that there was no issue of the body, directs, that subject to the life interest of James Read and Mary his wife, and there being a failure of issue of Mary Read, the premises shall go to the plaintiff in fee. I am of opinion, that, in a case so circumstanced, these words must be read with reference to the previous recital, and will apply to issue living at the death of herself and her husband; and that not only the title is good, but such as the Court ought to require a purchaser to take. It is unnecessary to go into the other question as to the revocation. COURT OF QUEEN'S BENCH. The following Memorandum, "In Consideration of W.T. Trespass against defendant Pettit, an auctioneer, and Robins, who was the assignee of one Smith, a bankrupt, for taking and carrying away goods, chattels, fixtures, and effects of the plaintiff. Pleas: first, not guilty; second, that the goods, chattels, fixtures, and effects were not the property of the plaintiff. On the trial before Lord Denman, C. J., at the sittings at Westminster, after Hilary Term, in 1846, it appeared that Smith, being tenant of a house and premises in the Strand, had signed the following memorandum of assignment to the plaintiff :-"In consideration of Mr. W. Thompson, of &c., discounting for me a bill of exchange for 807., bearing date the 29th September, instant, and drawn by me upon and accepted by Mr. James King, of &c., and payable to my order at six months after date, I have this day deposited with him, as a collateral security for the due and punctual payment of the aforesaid bill of exchange, the lease of my house and premises situate &c., and also have assigned to him the whole of the fixtures, as per inventory, in and about the said house and premises; and in the event of the said bill of exchange being dishonoured, and remaining unpaid for the space of seven days, I then for myself, my executors and administrators, undertake and agree forthwith to execute unto the said W. Thompson, his executors or administrators, a good and sufficient mortgage of all my estate and interest in and to the aforesaid lease, for repayment of principal and interest, such mortgage to contain the usual power of immediate sale, together with the several fixtures in and about the said premises, as per inventory annexed, such lease and fixtures to be sold by auction or otherwise, and after deducting the amount of the mortgage, and all expenses whatsoever, the balance to be paid over to me. But should the said W. Thompson wish to sell the said fixtures by auction or otherwise, I do hereby undertake to allow him or his agent to do so, in and upon the said premises, without being liable to any action or actions of trespass or otherwise. And I further undertake to pay all costs, charges and expenses of and incident to the payment of the said bill of exchange and of such mortgage, such mortgage to be prepared by the solicitor of the said W. Thompson, his executors or administrators. And I further undertake to pay all arrears of rent, rates, taxes and assessments whatsoever, within three calendar months, less fourteen days, after the same shall become due; and in default of my so doing, I hereby authorise the said W. Thompson to sell the said lease and fixtures on the premises by auction, or otherwise, without my first executing a mortgage of the same, and to apply the proceeds thereof to the payment of the said bill of exchange and all expenses, and after the same shall have been satisfied, to pay the As witness my hand this 30th day of September, 1843." An inventory of the fixtures was made out, at the foot of which Smith signed a receipt for 80%., as the appraised value of the fixtures paid to him by the plaintiff for the purchase of them; the receipt was dated the 3rd October, 1843. On the 4th March, 1844, Smith was adjudicated a bankrupt, up to which time he had continued in possession of the premises and fixtures, and on the 29th of the same month the defendant Robins was appointed assignee, under whose directions the defendant Pettit, on the 30th May, 1844, sold the fixtures with the bankrupt's stock and effects by auction on the premises for 367. 16s. It appeared that 801. was the value of the fixtures between an incoming and outgoing tenant, and that 361. 16s. was a fair price for them, if sold by auction, and on the 27th May, 1844, the plaintiff caused the following notice to be served on the defendants:-"I hereby give you and each of you notice not to sell or dispose of any of the fixtures in and about the house and premises No. 399, Strand, advertised for sale by you, the same having been mortgaged to me under an agreement bearing date on or about September last past. And further take notice, that, in the event of your selling or any way disposing of the said fixtures, I shall forthwith file a bill in Chancery for a specific performance of the before-mentioned agreement, or take any other such steps as may be advised," Upon these facts it was agreed that a verdict should be taken for the plaintiff for 801. damages, with leave for the defendants to move to set aside such verdict, and to have a nonsuit entered instead, or to reduce the damages to 361. 16s. In the following Easter Term, (April 18), balance over to me. Martin obtained a rule accordingly; against which, Watson and Corrie now shewed cause.-The first question is, did the property in the fixtures pass from the bankrupt to the plaintiff? If it did pass, this rule must be discharged. By the memorandum, the fixtures are absolutely assigned, and the lease is deposited as a security. Though the memorandum operated as an agreement to mortgage the house, it operated as an im mediate transfer of the property in the fixtures. It is said that the words, "together with the several fixtures in and about the premises, as per inventory, such lease and fixtures to be sold by auction or otherwise," shew that it was only intended to pass an equitable interest in the fixtures; but the preceding words, "I have also assigned to him the whole of the fixtures," are too distinct to admit of any doubt on this point. The receipt, too, at the foot of the schedule is important, as explaining any ambiguity which might arise upon the memorandum itself. As to the second point, whether the damages are to be estimated at the value of the fixtures, as affixed to the freehold, or at the price for which they sold, the case of Boydell v. M'Michael (1 Cr., M., & R. 177) shews that the proper measure of damages is the value of the fixtures as affixed to the freehold. Martin and Hoggins, contra.-The first question depends solely upon the memorandum, and not on the inventory. This was not intended to be a sale, but a mere equitable assignment or pledge of the fixtures, which were only to be sold in the event of the bill being unpaid. Suppose the bill had been honoured, there must have been a re-assignment of the fixtures, if an absolute legal interest in them passed, as distinguished from the lease: the intention clearly was that the fixtures should stand on the same footing with the lease, viz. that, if the bill should remain for seven days overdue, a mortgage of both lease and fixtures containing an ordinary power of sale should be executed. The memorandum does not give a power to the plaintiff to enter the house. Secondly, the true measure of the damages is, the value of what the plaintiff was deprived of. He had only a right to the fixtures, as chattels separate from the house, and of which he could not avail himself until they were removed. [Patteson, J.-I do not see that it was absolutely necessary for the plaintiff to sever the fixtures from the house. The assignees might have been compelled to sell the lease with the fixtures. Erle, J.-Suppose, just before the assignees were going to sell the fixtures for 807., a third party had come in and seized them. What damages ought to be recovered?]. The question is, what is the value of the plaintiff's legal interest in the fixtures. Lord DENMAN, C. J.-I am of opinion that the memorandum contains an absolute assignment of the fixtures, which is not varied by any subsequent words. Doubtless the inventory and the terms of the receipt might be controlled by the agreement, but no part of it is repugnant to this view. Then there is no presumption that the fixtures might not have been sold with the lease of the house. If so, the damages must be 80%., the value of the fixtures on the premises, for the defendant is not to derive benefit from his own wrong-doing. PATTESON, J.-The terms of the agreement are not very clear, but I think the meaning of the whole taken together is, to assign the fixtures absolutely to the plaintiff, with a right to sell them under certain circumstances. Then it is perfectly clear that if the fixtures had been sold with the lease, as they might have been, they would have been of greater value, and, therefore, the assignees, who have chosen to sever them at their own risk, must be held liable for their full value while affixed to the freehold. ERLE, J.*-This seems to me to be clearly an absolute assignment, and not a mortgage, of the fixtures, and it gives a present title to the possession of them. According to common experience the plaintiff had a right to demand that the fixtures should be sold with the lease, and that being the case, a party, who wrongfully takes the chattels of another, is bound to pay as damages the full value which they might have produced in the hands of the person to whom they of right belonged.-Rule discharged †. * Coleridge, J., was absent. Reported by U. Corbett, Esq., jun. TRINITY TERM. DAVIES v. WILLIAMS-June 3. The Declaration stated that Defendant assaulted and debauched S. D., then and still being the Daughter and Servant of Plaintiff: Averment of Loss of Service. Plea, that S. D. was not at the said times when &c., or any of them, the Servant of Plaintiff. The Trespass was committed while S. D. was in the Service of Defendant; but she returned to the House of Plaintiff before she was delivered of a Child:-Held, that the Plea was proved. The declaration stated that defendant, on the 18th November, 1844, and on divers other days between that day and the commencement of this suit, with force and arms assaulted, debauched, and carnally knew, one Susannah Davies, then and still being the daughter and servant of the plaintiff, whereby the said daughter and servant of the plaintiff then became pregnant &c., and so continued for a long time, to wit, &c., and at the expiration thereof, to wit, &c., and before the commencement of this suit, was delivered of a child, with | which she was so pregnant as aforesaid. By means of which several premises the plaintiff's said daughter and servant for a long time, to wit, from the day and year aforesaid, at the time of the commencement of this suit, became and remained unable to perform the necessary affairs and business of the plaintiff, so being her mother and mistress as aforesaid, and thereby the plaintiff during all that time was deprived of the service of her said daughter and servant &c. Pleas-first, not guilty; secondly, that the said Susannah Davies was not at the said times when &c., or any of them, the servant of the plaintiff, in manner and form &c. On the trial before Lord Denman, C. J., at the summer assizes for Caernarvonshire, it appeared that the trespass was committed while the plaintiff's daughter was in the service of the defendant, and that at the end of April, 1845, when the year's service expired, she returned to her mother's house pregnant, and remained there in a state of service till July, when she was delivered. The Lord Chief Justice nonsuited the plaintiff, reserving leave to the plaintiff to move to enter a verdict for 10%., the damages conditionally found by the jury. In the following Mich. Term (Nov. 16th), Townsend obtained a rule nisi accordingly, against which In Welsby now shewed cause. The service, the loss of which is necessary to maintain the action, is referable to the period when the trespass was committed. this case the loss of service was at a subsequent period. [He cited Postlethwaite v. Parkes, (3 Burr. 1878); Bennett v. Alcock, (2 T. R. 166); Blaymire v. Hagley, (6 Mee. & W. 55); Dean v. Peel, (6 East, 45); Jones v. Brown, (Peake, N. P. C.; 1 Esp. 217); Harris v. Butler, (2 Mee. & W. 539); Grinnel v. Wells, (7 Man. & Gr. 1033; 8 Scott, N. R., 741; 8 Jur. 1101).] The material allegation is traversed in the plea. Townsend and E. Beavan, contra.-It is now considered that the consequence of the trespass, viz. the loss of service, and not the trespass itself, is the sole foundation of this action; (Tindal, C. J., in Grinnell v. Wells, 7 Man. & Gr. 1033, 1041; 8 Scott, N. R., 741; 8 Jur. 1101); it is in effect an action on the case, (Woodward v. Walton, 2 N. R. 476). The averment in the plea that S. Davies was not the servant of the plaintiff "at any of the times when &c." means when the loss of service accrued. [They cited Lord Denman, C. J., in Torrence v. Gibbins, (1 D. & M. 224); Parke, B., in Levi v. Langridge, (2 Mee. & W. 519); affirmed, in error, (4 Mee. & W. 337).] [Coleridge, J.-How does it appear that the daughter would have returned to her mother's house, if she had not been violated? without the allegation in the declaration that S. Davies was the servant of the plaintiff, the action could not be maintained.] In Dean v. Peel, (6 East, 45), there was no animus revertendi. It is not necessary to prove that she was servant of the plaintiff at all the times; the allegation is satisfied by proof of her being servant at the material time. (Richardson v. Rawlinson, 1 Marsh, 58). [Coleridge, J.-Suppose she had gone to another master, and left his service because her state was discovered, and then went to her mother's house.] The Statute of Limitations runs from the time of the loss of the service. (Roberts v. Reid, 16 East, 215; Norton v. Jason, Sty. 399). [Welsby.-That was an action on the case.] Lord DENMAN, C. J.-I remain of the same opinion as on the trial. The reasoning is conclusive: the allega tion of service at the time when the trespass was committed is necessary, as the Court of Exchequer held, and therefore the proof of it at that time is necessary. PATTESON, J.-Loss of service is the gist of the action, but it is loss of service arising from the wrongful act of the defendant. Here, that act is not in point of law wrongful to the plaintiff, being done when the relation of servant did not exist; the circumstance of that relation being in existence afterwards does not give a cause of action. The argument for the plaintiff must go the length of contending that an action could be maintained by a second master. COLERIDGE, J.-The trespass of the defendant occasioning the loss of service, which is the cause of action, was not committed during the relation of master and servant: though consequential injury has arisen to the plaintiff from the act of the defendant, because she has taken into her service a person who has been rendered less valuable by some act done to her by the defendant before that time. ERLE, J.-The plaintiff had no vested right to the services of her daughter who had been seduced: that appears to me to make the distinction between this and many of the cases cited.—Rule discharged. EXCHEQUER CHAMBER. HILARY VACATION. [Error from the Queen's Bench.] Trespass against the Serjeant-at-Arms of the House of Commons. First Plea: that certain Matters came on to be discussed in the House of Commons; that it was considered by the House to be necessary that Plaintiff should be examined touching those Matters; that an Order of the House was made that he should attend forthwith, of which Order he had Notice; that he wilfully and contemptuously refused to obey; and thereupon, to compel the Attendance of Plaintiff at the Bar of the House to be questioned on those Matters, it was ordered by the House that Plaintiff should be brought before the House in the Custody of the Serjeant-atArms, and that the Speaker should issue his Warrant accordingly; that the Speaker did issue his Warrant accordingly, by which, after reciting that the House of Commons had ordered that Plaintiff should be sent for in the Custody of the Serjeant-at-Arms, he required and authorised the Serjeant-at-Arms to take Plaintiff into Custody; justifying the Trespasses, including the detaining of the Plaintiff until he could bring him before the House. Third Plea: that it was ordered by the House that Plaintiff should attend the House to answer a Charge against him of a Breach and Contempt of Privilege, of which Order he had Notice; that he did not attend, but wilfully and contemptuously, and without reasonable Cause, disregarded the Order, and thereupon an Order and Warrant (as in the first Plea) were made. Fourth Plea stated an Order to attend, without assigning the Cause of the Order, and a wilful Disobedience of the Order and the Warrant, as in the first Plea. Held, first, that the House had Power to order the At tendance of Witnesses, and in case of Disobedience to bring them in Custody to the Bar for the purpose of Examination; also that it had Power, in case of a Charge of Contempt and Breach of Privilege, and wilful Disobedience of an Order on the Person charged to attend and answer it, to cause the Person to be taken into Custody and brought to the Bar to answer the Charge; and, further, that the House alone was the proper Judge when these Powers were to be exercised. Secondly, that a Warrant of the House was to be construed as a Mandate or Writ of a superior Court, acting according to the Course of the Common Law. Thirdly, that, so construing it, the Warrant stated in the Pleas was valid. Fourthly, that connecting the mandatory Part ofthe Warrant with the Recital, it justified the detaining and bringing of Plaintiff to the Bar. Error was brought upon the judgment of the Court of Queen's Bench in this case, (see 9 Jur. 842), where the pleadings are set forth. The case was argued in Trinity Vacation, 1846,* by Sir F. Thesiger, Attorney-General, for the plaintiff in error (defendant below).-First, the order of the House of Commons, directing the acts complained of to be done, is a justification of the officer acting under it, and an answer to the action. [The judgment of the Court did not proceed on this point; and, therefore, the argument is not reported. Besides the authorities cited in Stockdale v. Hansard, (9 Adol. & E. 1; 2 Per. & D. 1; 3 Jur. 905), he referred to the statement of the record in Jay v. Topham, for trespass and false imprisonment, intituled of Hilary Term, 33 & 34 Car. 2, given in Burdett v. Abbot, (14 East, 102, n. (a)); record of declaration for money had and received, in Jay v. Topham, intituled in Easter Term, 35 Car. 2, (Rol. 101); Verdon v. Topham, (T. Jones, 208), cited in 2 Nels. Abr. 1248, pl. 10, mentioned by Sir Francis Pemberton in the proceedings in Parliament upon the case of Jay v. Topham, (12 How. St. Tr. 823); Verdon v. Deacle, (2 Show. 300), the record of which is in Brownl. Entr. 129.] Secondly, the warrant of the Speaker of the House of Commons is a protection to the officer, who was bound to execute it, no defect of jurisdiction appearing upon the face of it. It is alleged in the pleas that it was ordered by the House," in pursuance of, and according to, the ancient usages and privileges of the said House," that the plaintiff should be "sent for and brought before the House," in the custody of the serjeant-at-arms, and that the Speaker of the House should issue his warrant accordingly; it is also alleged, that "in pursuance of, and according to, the ancient usages and privileges of the House of Commons, and the law and custom of Parliament," the Speaker of the House, by his warrant, reciting the order of the House, required the serjeant-at-arms "to take into custody the body of the plaintiff;" it is, therefore, admitted by the demurrer, that the House had proceeded on a matter in which it had jurisdiction, and according to the ancient usages and privileges of the House. Thirdly, the existence and exercise of the power claimed in the pleas has been continually acted on, and has been recognised by the decisions of the Courts, and is essential for the due execution of the functions with which the House is invested. [He cited 4 Inst. 11, 24; Lord Ellenborough, in Burdett v. Abbot, (14 East, 138); Lord Denman, in Stockdale v. Hansard, (9 Ádol. & E. 115); Littledale, J., (Id. 168); Patteson, J., (Id. 209, 213); Lord Denman *June 13.-Before Tindal, C. J., Parke, Alderson, BB., Coltman, Maule, JJ., Rolfe, B., and Cresswell, J.; the argument was continued on Monday, June 15th, and in Michaelmas Vacation, November 30th and December 1st. Tindal, C. J., had died in Trinity Vacation. and Coleridge, J., in Howard v. Gosset, (9 Jur. 854, 849).] The question, therefore, is, whether the proceedings are regular and formal, and whether the warrant is valid. In the court below, Coleridge, J., decided that the warrant was invalid, because it did not shew the cause for which the House required the attendance of the party at the bar; and Lord Denman, C. J., seems to take the same view of the warrant. The decision of Wightman, J., proceeded upon the insufficiency of the warrant. Williams, J., held that the cases of warrants by inferior courts were inapplicable to the warrant of the Speaker of the House of Commons. Fourthly, the validity of the warrant is to be judged of upon the same principles as are applied to the process of the superior courts, and not upon those which are applied to warrants of courts of inferior jurisdiction. In 4 Inst. 23, it is said:-"Now, order doth require to treat of other matters of judicature in the House of Lords, and of matters of judicature in the House of Commons; and it is to be known, that the Lords in their House have power of judicature, and the Commons in their House have power of judicature, and both Houses together have power of judicature; but the handling hereof, according to the worth and might of the matter, would require a whole treatise of itself; and, to say the truth, it is best understood by reading the judgments and records of Parliament at large, and the journals of the House of Lords, and the book of the clerk of the House of Commons, which is a record, as it is affirmed by act of Parliament in anno 6 Henry 8, c. 16." In Hawk. P. C., b. 2, ch. 15, s. 73," of bail," it is said: "There can be no doubt but that the highest regard is to be paid to all the proceedings of either of those Houses, and that, wherever the contrary does not plainly and expressly appear, it shall be presumed that they act within their jurisdiction, and agreeably to the usages of Parliament and the rules of law and justice." This was the proposition asserted by Blackstone, J., in Brass Crosby's case, (2 W. Bl. 785). Again, in 4 Inst. 28 it is said:-"The House of Commons is a distinct court. Nota: the House of Commons is to many purposes a distinct court; and, therefore, is not prorogued or adjourned by the prorogation or adjournment of the Lords' House." [He also cited T. Jones, in The Earl of Shaftesbury's case, (6 How. St. Tr. 1269, 1296; 1 Mod. 144; 3 Keb. 792); Gould, Powys, and Powell, JJ., in Reg. v. (2 Ld. Raym. 1105, 1106, 1107, 1111; 2 Salk, 503; Reports, temp. Holt, 526); Proceedings in the Queen's Bench on the habeas corpus in Ashby v. White, (14 How. St. Tr. 849); De Grey, C. J., and Blackstone, J., in Brass Crosby's case, (2 W. Bl. 754, 785; 3 Wils. 188, 205); Lord Ellenborough and Bayley, J., in Burdett v. Abbot, (14 East, 152, 160); Question proposed to the judges by Lord Eldon, C., in Burdett v. Abbot, (5 Dow, 199); Abbott, C. J., in R. v. Hobhouse, (2 Chit. 207, 210, 211); Lord Denman, in Stockdale v. Hansard, (9 Adol. & Eli. 130; 2 P. & D.1; 3 Jur. 905); The Sheriff of Middlesex, (11 Adol. & Ell. 273).] In justifying under the process of superior courts, it is unnecessary to shew that the Court had jurisdiction, because it will be intended; though it is otherwise in the case of inferior courts. (Com. Dig., "Pleader," 3 M. 24; Peacock v. Bell, 1 Saund. 83; Judgment of Tindal, C. J., in Taylor v. Clemson, in error, 2 Q. B. 978, 1031; Parke, B., in Harrison v. Wright, 13 Mee. & W. 818). The judges of the superior courts at Westminster Hall have always claimed the right to arrest parties without a warrant in writing, (Sir G. Throgmorton v. Allen, 2 Bro. Abr. 558, cited in Mayhew v. Locke, 7 Taunt. 66), whereas magistrates cannot do so. (Mayhew v. Locke, 7 Taunt. 63). The warrants to the sheriff are verbal, even in the case of capital exe cutions. [Parke, B.-That is because there is an entry of the judgment on record. (2 Hale P. C. 31, 409). Alderson, B.-In that case the sheriff and prisoner are in the Paty, Fifthly, the form of the warrant is good, if judged of as a warrant issued by a Court of inferior jurisdiction, and is a justification of all the alleged trespasses committed under it. It is admitted by Lord Denman, C. J., and by Coleridge and Wightman, JJ., in their judgments, that the recital of the order of the House may be used for the purpose of interpreting the warrant; an order of the House of Commons is recited, that the party should be sent for, and brought in the custody of the serjeantat-arms; and, therefore, the words in the warrant, “take him into custody," necessarily bear the same sense as the words "sent for and brought in custody.” The plea alleges that the party was only kept a reasonable time before he was brought before the House. In Coster v. Wilson, (3 Mee. & W. 411), a warrant of commitment by justices, under stat. 11 Geo. 2, c. 19, s. 4, did not state that there had been a complaint in writing to the justices, or that the examination of the witnesses was upon oath; but it referred to the order of justices, in which those matters were stated, and it was held, that the warrant was made good by reference to the order. The party would be discharged upon an act to be done by himself. (Ex parte Gough, 3 M. & S. 203; Daniel v. Phillips, 1 Cr., M., & R. 662). presence of the judge when sentence is passed. But I ra- C. J.-That would not apply to an attachment in ther think, that, in the case of parties tried for misdemea- the Court of Common Pleas. Parke, B.-Nor would nour at Nisi Prius, and judgment passed upon them in it apply where the arrest is made without warrant; their absence, in pursuance of the recent statute, there is it was the practice of the House of Commons to no warrant; they are taken upon the order of the Court. arrest by the mace, and that still is the practice of Maule, J.-At Chester there is a warrant to the she- the House of Lords and in the courts of the city of riff, because the prisoner is in the custody of the keeper London. We must take notice of the practice of the of the castle, and not of the sheriff. Tindal, C. J.-House of Commons. (Lake v. King, 1 Saund. 133).] There was an eminent justice of the peace, a long time Every Court has power to settle the form of its own chairman of a quarter sessions, who used to make that proceedings. "The course of a Court is the law of point clear: whenever he passed sentence he used to the Court." (Com. Dig., "Courts.") And one of the say, "The sheriff of the county is charged with the superior Courts will not discharge a party arrested upon execution of this sentence."] In Watson v. Bodell, (14 process out of another, unless it is void upon the face of Mee. & W. 57), Parke, B., said, "It is clear that a it, in respect of a matter required by statute, (Lord ElCourt of record may commit by order to the custody lenborough, and Holroyd, arguing, in Burdett v. Abbot, of its officer in open court, as the Queen's Bench or 14 East, 63), nor will it interfere with the practice of quarter sessions, for there is or ought to be a record of the ecclesiastical courts. (Ex parte Smyth, 3 Adol. & such commitment." [He also cited 2 Hawk. P. C., Ell. 719; 2 C., M., & R. 719, 754). b. 2, ch. 15, s. 37; R. v. Jones, (1 Str. 185, citing Anon., Salk. 84); Holt, C. J., in Saunders v. Melhuish, (6 Mod. 73); 2 Hawk. P. C., b. 2, ch. 15, s. 76; Dicas v. Lord Brougham, (6 C. & P. 249); Bushell's case, (1 Mod. 119; Vaugh. 135); Hamond v. Howel, (1 Mod. 184).] There is no adjudication of contempt upon the face of the ordinary warrant of attachment. (Beaurain v. Sir W. Scott, 3 Camp. 388). The form of an attachment against an attorney in the Queen's Bench and Exchequer is, "We command you that you do not forbear &c., but that you attach one &c., before us, [or, before the barons of our Exchequer], at Westminster, so that you may have him before us, [or, before the barons of our Exchequer], at Westminster, on day of next, to answer to us for certain trespasses and contempts brought against him in our court, before us, [or, before the barons of our Exchequer], at Westminster." (Tidd's Prac., Forms, 121). But the form in the Common Pleas is much more general: "To answer to us of and concerning those things which shall then on our behalf be objected against him." (Id. 122). The writs of attachment should have an indorsement of the names of the parties and of the cause, e. g. the non-payment of costs; but the indorsement does not shew that it was matter over which the Court had ju- Petersdorff, contra. First, the order of the House risdiction. The form of the warrant of attachment of of Commons cannot of itself legalise whatever it enthe Court of Chancery, (1 Dan. Prac. of Chan. 428, joins, for the law is supreme over the House as well as 2nd ed.), is, "We command you to attach-so as to over the Crown. Secondly, there is an absence of juhave him before us in our Court of Chancery, or where- risdiction upon the face of the warrant, because no soever the said Court shall then be, there to answer to cause is alleged in it. Thirdly, there is nothing affirmus as well touching a contempt which he, as it is al-ative alleged in the pleas as to the usages or privileges leged, has committed against us, as also such other matters as shall be then and there laid to his charge; and further, to perform and abide such order as our said Court shall make in this behalf." But the warrants of inferior courts must shew upon the face of them the jurisdiction of the court. (R. v. Fowler, 1 Salk. 293; R. v. Eyre, 2 Str. 1667; R. v. Dugger, 5 B. & A. 791; Reg. v. Thorogood, 12 Ádol. & Ell. 198; R. v. James, 5 B. & A. 894; Morrell v. Martin, 3 Man. & G. 595; In re Clarke, 2 Q. B. Rep. 619; 6 Jur. 757). In Ex parte Van Sandau, (1 Phill. 605), an objection was taken to the form of the commitment of the party for contempt of the Court of Review, that it did not expressly adjudicate the act to be a contempt; but the Lord Chancellor upheld the form. [Alderson, B.-The Court has a right to make any objection to the form of its own warrant, because it is the judge of its own practice. Rolfe, B., referred to In re Cobbett, (7 Q. B. Rep. 187). Parke, B.-There is no occasion for an express adjudication when the party disobeys the process of the court.] Coleridge, J., says, in his judgment, (Howard v. Gosset, 9 Jur. 852), that every warrant ought to contain upon the face of it sufficient to enable the party to know the ground of the proceeding against him, in order that he may determine for himself whether he is bound to obey it. [Tindal, of the House upon which issue could have been taken, so as to be admitted by the demurrer. Fourthly, the objection, said to be merely to the form of the warrant, is not an objection to the form, but to a defect in substance. Fifthly, as the plaintiff in error, by his pleas, has elected to rely upon the warrant, he cannot aid a defect in the warrant by any averment or allegation in the pleas. Sixthly, even if he could derive aid from averments or allegations in the pleas, the averments are not properly made. And lastly, the warrant is intrinsically bad, and would not, if issued by any Court, afford protection to the officer acting under it. Admitting the power of the House of Commons to commit for contempt, (see Hargr. Jurid. Arg. 3, 4), and that the Court which commits can alone judge of what is a contempt, (Wilmot's Opinions, 254; Lord Ellenborough, in Burdett v. Abbot, 14 East, 150), the warrant of commitment must shew an adjudication that the party had been guilty of a contempt, and was apprehended to answer it. (Rainsford, C. J., in The Earl of Shaftes bury's case, 6 How. St. Tr. 1269, 1297; Murray's case, 1 Wils. 299; R. v. Flower, 8 T. R. 314; Burdett v. Abbot, 14 East, 148, 149; Reg. v. Paty, 2 Ld. Raym. 1105; 14 How. St. Tr. 849; Brass Crosby's case, 3 Wils. 188, 199; 2 W. Bl.754; R. v. Hobhouse, 2 Chit. 207; The case of the Sheriff of Middlesex, 11 Adol. & Ell. 273). |