1804.

WIGLEY againft

the debt remained unfatisfied, to the damage of the plaintiff, &c. Plea not guilty.

The only question at the trial was, Whether the averment of the writ of habeas corpus and the commitment thereon ap [441]pearing of record were proved? the only proof being the pro

JONES.

[ 442 ]

duction of the original writ itself (a) with the committitur annexed, which were produced by the clerk of the papers of the King's Bench prison, with whom, as the servant of the marshal, fuch documents are and have been for a confiderable period past depofited. It was objected on the part of the defendant that thefe documents were not records, and that nothing else would fatisfy the averment than fhewing that they had been duly recorded in court, which could only appear by the production of fuch a record filed in the court, or an examined copy of it. And the cafe of Turner v. Eyles (b) was relied on as in points where the Court held that evidence like the present was not fufficient to fuftain fuch an allegation; but that there ought to have been an examined copy of the record of commitment as recorded in court. Lord Ellenborough C. J., before whom the cause was tried at the Sittings at Weftminster after Michaelmas term laft, fuffered a verdict to be taken for the plaintiff, but referved the point, and gave the defendant's counsel leave to move to set aside the verdict and enter a nonfuit if the Court fhould be of opinion that the objection was well founded.

(a) The habeas corpus in this cafe was directed to the fheriff of Middlefex, commanding him to have the body of Mary Bergiret de Frouville detained in prifon under his cuftody under safe and secure conduct, together with the day and caufe of her being taken and detained before Lord Kenyon C. J. at his chambers in Serjeants' Inn, Chancery-lane, London, immediately after the receipt of this writ, to do and receive all fuch things which the Ch. J. fhould then and there confider of her in this behalf. Dated 25th of June, 41 G. 3.

The return of the sheriff flated that the prisoner was taken and detained by him by virtue of feveral bills of Middlefex, amongst others, at the fuit of Wigley. On which was indorfed as follows; "Mary B.

de F. is this 24th of September 1801 committed to the custody of "the marshal, &c. for want of bail, with the causes within mentioned, "by S. Le Blanc."

(b) 3 Bof. & Pull. 456. and also from a MS. note of the same cafe which was read on moving for the rule.

Such

Such a motion was accordingly made and a rule nifi granted laft term, which was fupported by Erskine, Garrow, and Wood; who, in addition to Turner v. Eyles, referred to Wightman v. Mullens (a) and it was oppofed by Gibbs and Marryat, who diftinguished this from the other cafes, because they were com. mitments in execution, and this was a commitment on mefne procefs, which either was no record at all, at least while continuing in the hands of the officer; in which cafe the allegation was impertinent and to be rejected as furplusage; or if it were a record, the allegation was well proved by producing the original itself out of the hands of the officer of the court who had the proper cuftody of it. The Court faid that the queftion being of general confequence they would look further into it before they gave their opinion. And now

Lord ELLENBOROUGH, C. J. delivered judgment.

This was a motion for a new trial in an action brought against the marshal of the King's Bench prison for an escape on mefne procefs. The declaration alleged that one Mary Bergeret de Frouville, being brought before Sir S. Le Blanc, Knt. by virtue of an habeas corpus, was by him thereupon committed to the custody of the marshal at the fuit of the plaintiff, "as "by the record thereof now remaining in the court of our faid "lord the now king before the king himself manifeftly appears.' In proof of this commitment of the defendant in that action, verified as alleged to be by record thereof, the plaintiff produced in evidence the actual writ of habeas corpus with the committitur of Mr. Juftice Le Blanc indorfed thereon, from the office of the clerk of the papers in the King's Bench prifon. It was objected on the part of the defendant that the writ of habeas corpus, with the committitur entered thereon, having all along remained in the hands of the officer, and in the place above mentioned, as it appeared to have done, and not having been filed of record in the court of King's Bench at Westminster, was not a record of this court within any proper fenfe of that word; and that therefore the plaintiff, who had in his declaration alleged it fo to be, had failed in proving it, and ought on that account to be non

(a) 2 Stra. 1226. and vide alfo Unwin v. Kirchoffe, ib. 1215. and Pearfon v. Rawlins, 1 Eaft, 405. as to commitments in execution which are entered of record.

VOL. V.

[*Y]

fuited.

1804.

WIGLEY

against

JONES.

[ 443 ]

1804.

WIGLEY

against JONES.

[444]

fuited. It appeared to me, from all the account I could obtain
at the trial of the depofit and cuftody of thefe writs, that they
were never kept in any other manner than this was, and that
they were never in fact filed or depofited amongst the records
of the court in the Treafury-chamber at Westminster, or else-
where; and that therefore the allegation in queftion was either
furplufage, the writ and committitur thereon never being en-
tered of record at all; or that the depofiting and keeping thereof
in the ufual place of cuftody for that purpose was fufficient to
maintain the allegation of its remaining of record. As, how.
ever, it was ftated to me that there had been a late cafe of
Turner v. Eyles decided in the Common Pleas, on the fame
funjec, in which that Court had holden that as the party had
alleged the existence of such a record he was bound to prove it,
the jury under my direction found a verdict for the plaintiff,
(which was for 1s. only,) and I gave leave to the defendant to
move to enter a nonfuit, if the Court should be of opinion that
other proof was necessary upon this head. Since the argument
upon the motion for a new trial we have caufed the most dili-
gent inquiry to be made as to the existence of any records of
this kind, and we do not find that any fuch writs of habeas.
corpus, with committiturs thereon, have ever been returned to,
or filed, or kept by the court or any of its officers, at Westmin.
fer or elsewhere, except in the place, and by the officer, above-
mentioned; but that the fame have always remained, as any
other warrant naturally would, in the hands of the officer to
whom it is immediately directed, and whose voucher or au-
thority for the act of detaining the party it properly is. Nor,
by analogy to the cafe of any fimilar writs, do we think that
they are properly capable of being entered on record, either by
themselves or as part of any other record or proceeding. In
the cafe of a commitment on a writ of habeas corpus where
the party had been taken upon a writ of execution, and which
was the cafe in Turner v. Eyles, 3 Bof. & Pull. 456., it might
poffibly be otherwife; and fuch habeas corpus and commitment
thereon might be noticed in the fheriff's return to the writ of
execution filed of record. But that is not the present case.
As, therefore, the writ and committitur neither are of record,
nor are properly capable of being fo, the allegation respecting
them, as remaining of record, is either an impertinent allegation,

and

and may be rejected as furplufage, and requiring no proof, or as at any rate requiring no other proof than it has received, by the production of the writ and return, which are quafi of record; as the Jamaica judgment in the cafe of Walker v. Witter, in Doug. 1. was holden to be within the meaning of the words "of record" in that cafe, as applied to the subject-matter.

Rule discharged.

1804

WIGLEY

againt JONES.

END OF TRINITY TERM.

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