dence at the time of the conviction was given upon oath, in the presence of the defendants

The King v. Crowther (2), Dalton, c. 6. s. 6, The Queen v. Lewis (3), Paley on Convictions, p. 42.

PATTESON, J. then called uponCowling, to support the commitment.— The Queen v. Lewis is not law, and is the only authority which can be cited in support of the objection. In re Tordoff has no bearing upon it, the only question raised in that case being as to the necessity for shewing that the defendant was present at the time the case was heard, which, beyond all doubt, appears on this warrant. Then, the commitment of Gray is an order, and not a conviction under 6 Geo. 3. c. 25. s. 4, and not a proceeding under 4 Geo. 4. c. 34. s. 3, inasmuch as it is not stated that he had entered into the service. There is this distinction between a conviction and an order and adjudication like the present, that the former requires the evidence to be set out, and it will be most strictly construed; whereas, the same strict formalities are not required in the latter, and intendment will be made in favour of it.

[PATTESON, J.-I do not regard mere terms in the least, for, whether this be an order or commitment, or conviction, I wish to know whether a Magistrate can order a man to be imprisoned for an offence, without shewing that he has heard the evidence on oath? I do not know whether the omission to set out the evidence has ever been objected to, but it would take a great deal to convince me, that where a statute gives a power to imprison, an instrument like this must not possess the requisites of a conviction.]

This statute is not of a public but private nature: its object was to make regulations between the workmen and their masters, and it was passed for purposes of private discipline; an order therefore is the more appropriate document. The best mode of ascertaining its real nature is to look to the statute itself, which, in sect. 5, speaks of it as an order. That an instrument like this may be treated as such, is clear from The King v. Bissex (4), which was an adjudication under the statute 11 Geo. 2. c. 19. s. 4, inflicting penal

(2) 1 Term Rep. 125.

(3) 13 Law J. Rep. (N.s.) M.C. 46. (4) Sayer, 304.

ties for fraudulently removing goods; yet that was held to be an order only, and the ruling was confirmed in The King v. the Justices of Cheshire (5). Lord Denman's judgment there is precisely in point. In The King v. the Justices of Staffordshire (6), it was held, under this very statute, that an instrument like the present was an order, and not a conviction ; and that, consequently, the defendant was not entitled to appeal against it. appeal against it. In p. 576, Le Blanc, J. compares it to a proceeding under the Vagrant Act, 17 Geo. 2. c. 5, which is always by an order. The judgment, also, of Parke, B., in Johnson v. Reid (7), confirms that, and shews that there need be no conviction. Then, if it be an order, it is not necessary it should either set out the evidence, or state that the evidence was taken upon oath; for every intendment will be made in favour of it, and the statement that the evidence was taken, will be assumed to mean in the regular manner. Thus, in Munger Hunger v. Warden (8), an objection was taken to an order of removal (which must be made upon evidence taken on oath) that it was alleged to be made upon due examination, and not upon oath; yet the Court held it to be sufficient, and observed that due examination imported an examination on oath.

[PATTESON, J.-That is a very different proceeding, being entirely ex parte; but here a party is to be deprived of his liberty, without the power of cross-examining the witnesses produced against him, under a statute of a highly penal character.]

If it were necessary to state this, it would also be necessary to set out the evidence; yet no case has ever decided that, and In re Tordoff gives no support to such a proposi

tion.

Neither, in truth, was it necessary to decide the point contended for in The Queen v. Lewis, for there the same objection existed as in In re Tordoff, and there were various other fatal objections apparent upon the face of the instrument. That case,

therefore, was never fully argued, and cannot be treated as an authority. The King v. Bissex shews that every intendment will

(5) 5 B. & Ad. 439; s. c. 2 Law J. Rep. (N.s.) M.C. 95.

(6) 12 East, 572.

(7) 6 Mee. & Wels. 124; s. c. 9 Law J. Rep. (N.S.) M.C. 25.

(8) 2 Sess. Ca. 40; s. c. 2 Bott, P.L. 817.

be made in favour of an order, and none against it; and this is confirmed by The King v. Davis (9).

[PATTESON, J.-I do not at all go along with you in your argument. The distinction you make is very ingenious, but it is quite contrary to common sense, and my mind is not capable of understanding it. The statute enables Magistrates to hear and determine the complaint, and to inflict a very severe punishment upon persons; and I say, that this is clearly a judgment and commitment in one and the same document. Then, that is to all intents and purposes the same as a conviction. In In re Tordoff the defect was, that it did not appear that the evidence had been taken in the presence of the defendant-but here that appears to have been done: whether it must be stated to have been taken on oath, requires more consideration.]

Bodkin and Huddlestone then urged, among other objections, that there was no statement that the defendant had entered under the agreement, or in pursuance of it: that the terms of the contract were not set out, so that the Court might see whether it was a case within the statute; and cited Ex parte Johnson (10), Lancaster v. Greaves (11), Ex parte Fuller (12), Lowther v. Lord Radnor (13), Deybel's case (14), and Nash's case (15). That the evidence was not set out— In re Tordoff, and that the commitment did not shew where the defendant contracted. With respect to the objection which had been argued, they observed that it was quite consistent with the statement in the commitment, that the Magistrate might have read over to himself the information, and then called on the party to answer it; that it did not appear that a single witness had been sworn, and the whole proceeding might have been without the sanction of an oath ; that where such penal consequences were to be the result, the Court would make no intendment against liberty; and even if this were not strictly a conviction, but a

(9) 5 B. & Ad. 551; s. c. 3 Law J. Rep. (N.S.) M.C. 29.

(10) 7 Dowl. P.C. 702; s. c. 9 Law J. Rep. (N.s.) M.C. 27.

(11) 9 B. & C. 628; s. c. 7 Law J. Rep. M.C.116. (12) 13 Law J. Rep. (N.s.) M.C. 141.

(13) 8 East, 113.

(14) 4 B. & Ald. 243.

(15) Ibid. 295.

species of order, still it was an order of commitment in the nature of a conviction, which required greater particularity.

Cowling, in answer to the other objections, quoted Ex parte Ormerod (16), Com. Dig. tit. Pleader,' c. 18, and Bancks v. Camp (17).

PATTESON, J.-I was desirous of hearing the argument out, upon all the objec tions, because one or two of them struck me; but Mr. Cowling has satisfied me upon them, to this extent, that I do not think that any of them, independently of the principal objection first argued, are such as I should deem proper to act upon. I therefore express no decided opinion upon any of them, for the real question seems to depend upon the principal objection. Now, looking at these two convictions or commitments, the one relating to Blaney, the other to Gray, I confess I cannot bring my mind to believe that the Magistrate was proceeding upon the 6 Geo. 3. c. 25, in the latter case. It may be so; but I am not satisfied that it was so, because I find in the first of these convictions, he distinctly states that there was a complaint made that Blaney had contracted, and had entered upon the service, and that he absented himself from the service; and he goes on and adjudicates that he had so contracted, and had so entered the service, and that he had absented himself. In the second of these convictions, precisely the same complaint, that Gray had contracted, and had entered the service, and had absented himself, is stated; but the adjudication is only that he had contracted and had absented himself. I have no doubt the entering into the service was accidentally omitted by the clerk to the Magistrate; and now it suits the purpose to say the commitment was upon the earlier act. I do not, however, think it signifies at all, and I only mention it, because it is not quite right, or honest, or proper, to attempt to fall back on the 6 Geo. 3. c. 25, and make me believe it was purposely omitted. Let us have fair dealing in these matters, if we can, though it is not very often the case that we have it. But the real question seems to me to turn upon this, whether or not it was necessary

(16) 13 Law J. Rep. (N.s.) M.C. 73. (17) 9 Bing. 604.

that it should appear upon the conviction, that the examination of the witnesses before the Magistrate was upon oath. Now, looking at the two cases, The Queen v. Lewis, and In re Tordoff, they go the whole length of shewing that this is bad upon the face of it. I myself cannot understand, that, because an act of parliament is drawn, as, I am sorry to say, most of them are, imperfectly and loosely, and it is not stated, as it ought to have been, that the party might be brought before a Magistrate, and convicted by him, and that he should sentence him upon that conviction; that, because the act of parliament puts it altogether, and says, in general words, he may do this, therefore I am to be told it is not a conviction, but an order. That is not the right way of construing an act of parliament. If an act of parliament says an offence shall be committed by certain acts, and a Magistrate shall have power to commit and punish for that offence, then I say; that any instrument by which the Magistrate says the party was brought before him and convicted, is a conviction. I must confess I am at a loss to understand why the Magistrate, in this document, after saying, I find the man guilty, and do convict him of the offence, stops there, and does not go on, and say, I do adjudge that for such offence he shall suffer such and such punishment. That is the usual way; but instead of that, he says, I hereby direct the gaoler to keep him for a certain time; so that the adjudication of the punishment does not run in the form of an adjudication, but is merely a direction to the gaoler to keep him for a particular time. Whether that is done with a view of trying to make it an order, and not a conviction, I do not know, but it cannot have such an effect. I am not yet driven to determine the point whether it is necessary to set out the evidence; and I am unwilling to go further than the case renders it absolutely necessary: that is a point which will be raised some of these days, and perhaps it is fitting it should be; but, sitting here alone, I ought not to express an opinion upon it where the case does not require it. I think it does not arise here; for let us see what it is the Magistrate states. The commitment recites that complaint was made upon oath, that the party was brought before him to answer that complaint; and then he says, "and I,

the said Justice, duly thereupon, in the presence as well of the said John Johnson as of the said John Gray, did examine and inquire into the proofs and allegations of the said parties touching the matter of the said complaints." Am I to infer that there were witnesses called and examined upon oath, in the presence of the party, or not? If I am, I must infer it from the word "proofs," for the word "allegations" may mean an allegation in writing, or by word of mouth, or an argument of law, or an assertion of fact; it is a very vague and uncertain word. If the word "proofs" means legal proof upon oath, then there is something in it; but I cannot infer that clearly, as it may be that the Magistrate may have thought it sufficient if he read over the complaint to the party, and did not examine the witness again; and it may be that the person who made the complaint would not be able to prove the facts. It ought to have appeared upon the face of the document that there had been witnesses examined upon oath, in the presence of the party; and the conviction is therefore bad. The objection in In re Tordoff was, that it did not appear that the examination was in the presence of the party. In The Queen v. Lewis, although the same objection might have been taken, the objection was, that the examination did not appear to have been on oath; here the parties have avoided the defect which was fatal in the first case, and stumbled on the defect in the last. Taking those cases together, I think I must consider the law to be, that, in convictions under this act of parliament, where there is a conviction and commitment in one document, it is necessary it should appear that the examination took place in the presence of the party; and that the examination was upon oath. I think, therefore, the party is entitled to be discharged; and as the same objection applies to both these convictions, I need not give any opinion as to whether the other objections can or cannot be supported. I have taken the opportunity since yesterday of mentioning the case to the other Judges, and they quite agree with me. say this, in order that the matter may be considered to have been decided.

Prisoners discharged.

I

Warrant of Apprehension-JurisdictionIreland-Riot-Rescue.

A warrant of the Court of Quarter Sessions for Tipperary, dated the 20th day of October 1804, stated, that A. B. stood indicted, in the peace office of that county, for a rescue and a riot, and commanded the police of that county to apprehend," and him so apprehended in safe custody keep, so that you may have his body before her Majesty's Justices of the Peace at the next Sessions, at &c., to be held in the said county on the 13th of January next:"-Held, that it did not disclose jurisdiction, as the words "peace office" did not shew in what court the indictment was pending.-Held, also, that it was bad, as the Sessions had no power to authorize the police to keep the defendant in their custody till the next sessions.

Held also, that the Court would take judicial notice that the common law of England extended to Ireland, and that "a riot" was a sufficient statement of an offence: but semble that " a rescue" alone would not be suffi

cient.

The Rev. J. M. Nesbitt having been arrested by the police of the city of London, a writ of habeas corpus had been obtained, upon which he was now brought up, and to which the sergeant of police returned that he detained him under the following warrant:

"County of Tipperary, to wit.-By the worshipful the Justices of the Peace at the General Quarter Sessions of the Peace, held at Thurles, in and for the county of Tipperary, the 28th day of October 1844. Whereas James Meade Nesbitt, late of Borrisokane, in the county of Tipperary, stands indicted in the peace office of the county of Tipperary, for a rescue at the prosecution of Martin Corbon and John Morgan, and also for a riot, for which he has not as yet received his trial. These are, therefore, in her Majesty's name, strictly to charge and command the police of the county of Tipperary forthwith to apprehend the said James Meade Nesbitt, if he may be found in the said county of Tipperary, and him so apprehended in safe custody keep, so that you may have his body before her Majesty's

Justices of the Peace at the next Sessions of Nenagh, to be held in said county, on the 13th day of January next, to answer for the said offence; and this shall be your warrant. Dated as above.

"John Ponsonby Pretty, clerk of the peace.

"To the police of the county of Tipperary."

This was indorsed "To all constables of the Metropolitan Police Office, and all others whom it may concern.-Metropolitan Police district, to wit.-Let this warrant be executed within the said district, proof, upon oath, having been made before me, one of the Magistrates of the Police Office, Bow Street, of the due signature and hand-writing of the above-named John Ponsonby Pretty. Given under my hand, at the Police Court, Bow Street, this 8th day of November 1844.

"D. Jardine."

Humfrey, Bodkin, and Sturgeon, on behalf of the prisoner, stated and urged the following objections to this warrant and indorsement. First, that the clerk of the peace for a county has no power to issue a warrant of apprehension; secondly, that the statute 44 Geo. 3. c. 92. s. 3, was intended to reach only those persons who escaped from some place in Ireland to England, and that it did not appear that the defendant was such a person; thirdly, that it did not appear that either of the offences committed was an offence against the law of Ireland; fourthly, that the Court could not put any construction upon the words "peace office," and that it did not shew that the defendant stood indicted in any court within the jurisdiction of the Sessions; fifthly, that the warrant ought to have stated that the defendant had not appeared and been admitted to bail, it being consistent with the warrant that he might be exempt from liability to apprehension at the time, on the ground of having found bail; sixthly, that the indorsement was made under the statute 24 Geo. 2. c. 55, which did not relate to offences committed in Ireland.

Dowdeswell, in support of the return.This is not the warrant of the clerk of the peace, but the warrant of the Court of Quarter Sessions, of which that person is the officer, and merely certifies their act. The Court of Quarter Sessions is an ancient

e;

court of record, and the right to issue process necessary for the conduct of matters depending in it is incident to, and implied by the establishment of every such court, and hence the Sessions have authority to issue warrants to bring before them persons against whom indictments have been placed upon their records. These courts in Ireland differ in no respect as to jurisdiction from the same courts in England; the form of the commission to the Magistrates is the same the time of holding them is prescribed by 1 & 2 Will. 4. c. 31; and their power to issue process, and to deal with misdemeanours like the present, is recognized by 5 & 6 Will. 4. c. 48. The clerk of the peace is the person who is to record their acts, and the proper organ to express their will. This brings the argument to the fourth objection, that the term "peace office" is not known to the law; but no one can doubt to what office that has reference-it evidently means the office of the clerk of the peace. It may not be the most accurate technical description, but it is perfectly intelligible, and that will suffice. The office of the clerk of the peace is well known; he is directed to be appointed by the Custos Rotulorum to keep the records of the sessions under 1 Geo. 4. c. 27, and he is thereby made their officer. His powers are pointed out and recognized in numerous subsequent statutes, which are collected in Oulton's Index. His office would therefore be the place of deposit for an indictment found at the Sessions; and it is doing no violence to the language to say, that as the word "indicted" imports the presentment of a grand jury, the expression "stands indicted in the peace office," means that an indictment against the party was lying in the office of the clerk of the peace. Then, as to the third objection, the term "riot" is a term and an offence known to the law, and is defined by Hawkins, book 1, c. 65. In a warrant of apprehension, which is mere process, strict technicality is never required, and it might be contended, that the term "rescue" would be sufficient. The form of warrants, in Wilkes's case (1), and The King v. Wyndham (2), was equally general with this, yet was held to be good; and it is laid down in 1 Hale

(1) 2 Wils. 151. (2) 1 Stra. 2.

As

P.C. 583, 2 Hale, 123, Hawkins, bk. 1. c. 19. s. 24, Hawkins, bk. 2. c. 13, 2 Co. Inst. 52, that a warrant need not describe the offence with any technical nicety. The King v. Kendal (3) and Crofton's case (4) are instances of this nature. In The King v. Judd (5), "wilfully and maliciously setting fire to a parcel of unthreshed wheat" was considered enough to justify the Court in requiring the defendant to find bail. to the suggestion that a riot is not an offence against the law of Ireland, the Court will not assume such an act not to be illegal in any civilized country; but even if it would, it cannot do so here, for the Court will take judicial notice of the law of Ireland in this respect. It is laid down in Co. Litt. 141, that the common law of England was introduced into Ireland by King John, and in 2 Co. Inst. p. 2, that, "by Poyning's laws, made anno 11 Hen. 7, all the laws and statutes of this realm were made to extend to Ireland." Then a riot was an offence against the common law of England, and consequently now is an offence against the law of Ireland. It was not necessary for the warrant to state that the defendant had not appeared and been bailed; as those facts would form a good cause to be shewn by him for his discharge, the Court will not assume them to have occurred. In the ordinary process of the superior courts, there are various matters which would entitle a party to his discharge, none of which are negatived in the writ. Prima facie, a person against whom such a charge as this is subsisting is liable to be arrested, and it is unnecessary for the Magistrate, issuing the warrant, to negative all possible means by which he may be lawfully at large. Those circumstances lie in the knowledge of the accused, and he must advance them. It never can be contended, that the warrant need negative that the defendant has been pardoned, or that he has been tried before for the same offence. The indorsement is also perfectly regular under the statutes 44 Geo. 3. c. 92, 45 Geo. 3. c. 92, 54 Geo. 3. c. 186, and 13 Geo. 3. c. 31. The first of those statutes, in the 3rd section, although in the recital it refers only to malefactors making their escape from Ireland into England, yet in

(3) 1 Salk. 347.

(4) 1 Sid. 439. (5) 2 Term Rep. 255.