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diction; and secondly, that any claim which Richards might have, must be against the plaintiff in the former action. This is not a case in which a justice of the peace has any authority, under 20 Geo. 2, c. 19, extended by 31 Geo. 2, c. 11, to cases where the hiring is for less than a year; or under 4 Geo. 4, c. 34, which merely authorizes the magistrate, in cases falling within the two former statutes, to direct the payment of the wages to be made within such period as he shall think proper. The employment of Richards by the plaintiff, in executing the process 'of a court as a special bailiff, does not constitute him a labourer, within the meaning of these statutes. The kinds of labour to which the statutes were intended to apply, may be collected from the several provisions contained in them; and which give the magistrate power to punish the servant or labourer, by committing him to hard labour, for breach of his contract, and to discharge him from the service or employment, in respect of which the claim of wages has arisen. But how could the defendant have discharged Richards from his employment under the warrant in question ? [Bayley, J. You would put it thus: A magistrate could not have committed the party to hard labour for a month. He could not have discharged him from the warrant.] In Lowther v. Earl of Radnor (a), the labour performed, was clearly of the description intended by the statutes; but there are many kinds of service to which these statutes do not apply; as for example, the services rendered by domestic servants. Upon the second point, Foster v. Blakelock (b) was cited, but that case is very distinguishable from the present. [Bayley, J. That only shews, that an attorney may so deal with an officer as to make himself liable.] Then, if the defendant had not originally jurisdiction over the subjectmatter of complaint, it is quite clear that he cannot have acquired it by any act of his own; and the whole proceeding being coram non judice, trespass will lie against him. (a) 8 East, 113.
(1) 8 D. & R. 48; 5 B. & C. 328.
C. F. Williams and Carter, contrà. Richards was put into the process by the plaintiff's own nomination. In Lowther v Earl of Radnor, the party was a master-mason, and not a labourer. It would be a great inconvenience, if a person in the situation of Richards, was compelled to sue in the superior courts for such a demand as this. [Holroyd, J. You might sue in the county court. Littledale, J. We must look to the act of parliament.] The fact of Richards's name being in the warrant was not before the mayor. [Bayley, J. Richards states, that he told the defendant, that the sum was claimed for fees in executing the writ.] There was no evidence before the defendant, that Richards was named in the process. Trespass does not lie against the magistrate for any thing done in the discharge of his duty, where he is not made acquainted with all the circumstances under which he is called upon to act. Pike v. Carter (a). [Holroyd, J. There is no allegation in the warrant, that Richards was employed as a labourer. The addition of labourer, does not shew that he was a labourer on the particular occasion.] It is sufficient if the employment constitutes him a labourer. [Holroyd, J. Convictions are stricti juris. The warrant should have shewn, first, that Richards was a person within the statute; next, that the employment was within the statute). The whole facts were not before the magistrate. [Bayley, J. No question was put on cross-examination, to shew, that defendant did not know that Richards was named in the writ of execution. Holroyd, J. The magistrate should have shewn, that the case was within his jurisdiction; or at least, that the evidence presented such a case. Bayley, J. Richards's examination was read; and if the plaintiff had kept back any circumstances, tending to shew that the magistrate had no jurisdiction, the case would have been very different.] The warrant was sufficient to protect the defendant, unless it was known on the part of the plaintiff, that the defendant had no jurisdiction. The work was sufficiently described in the warrant, without
(a) 3 Bingh. 78.
distinctly calling the party a labourer. There was not any distinct evidence at the hearing before the defendant, that Richards's name was in the warrant. [Littledale, J. If, instead of a distress, there had been a commitment, would not the plaintiff have been discharged under a habeas corpus?] It does not follow, that an action would lie. [Holroyd, J. The charge itself should shew, that the complainant was within the act. Bayley, J. A magistrate ought to be protected, where he is justified by what appears before him, however the real fact may be. Holroyd, J. Though you describe the party by the addition of labourer, you would not, by that allegation, be bound to prove that he was one. Bayley, J. If this sort of labour were within the act, an attorney's writer would be entitled to avail himself of it. Holroyd, J. merchant's clerk.] The assessment of wages directed by the statute, could not apply to persons in that situation of life. [Bayley, J. We are to act upon the representation made before the magistrate. When one party represents that which the other does not contradict, the magistrate would be justified in acting upon the statement.] The only objection taken, was to the nature of the services, and not to the manner in which he was employed.
Bayley, J.-In this case, there is not any description of the party, or of the labour in which he was employed. This excludes the question, whether the magistrate knew that Richards was named in the writ, taking it, that the plaintiff concealed the fact. The statute does not give a general authority to the magistrates; but “ although no rate or assessment may have been made that year by the justices.” The act refers to existing laws, for the better regulation of servants, and for the payment of wages to them, and to artificers, handicraftsmen, and labourers; and then it empowers the justices to hear disputes, although no rate may have been made that year. It seems that the employment contemplated is not every species of labour.
The statute 5 Eliz. c. 4 (a), will give some idea what sort of labour was meant. It was principally out-door work and country labour. Another of the laws referred to in 20 Geo. 2. c. 19, is the statute, 2 Jac. I. c. 6. (b). The
(a) Which enacts (sect. 15), “that wages of all other labourers, artifithe justices of the peace of every cers, workmen, or apprentices of shire, riding and liberty within the husbandry which have not been limits of their several commis- rated, as they the same justices, sions, or the major part of them, mayors, or head officers, within being then resiant within the same, their several commissions or liberand the sheriff of that county if he ties shall think meet by their disconveniently may, and every cretions to be rated, limited, or mayor, bailiff, or other head of
appointed by the year, or by the ficer within any city or town cor- day, week, month, or otherwise, porate wherein is any justice of with meat and drink, or without peace, within the limits of the said meat and drink, and what wages city or town corporate, and of the every workman or labourer shall said corporation, shall before the take by the great, for mowing, 10th day of June next coming, reaping, or threshing of corn and and afterward, shall yearly, at grain, or for mowing or making every general sessions first to be of hay, or for ditching, paving, holden and kept after Easter, or railing, or hedging, by the rod, at some convenient time within six perch, lugg, yard, pole, rope, or weeks next following every of the foot; and for any other kind of said feasts of Easter, assemble reasonable labours or service; and themselves together; and they (so shall yearly before the 12th day of assembled), calling unto them July next after the said assesssuch discreet and grave persons of ments and rates so appointed and the said county, or of the said made, certify the same ingrossed city or town corporate as they shall in parchment, with the considerathink meet, and conferring together tions and causes thereof, under their respecting the plenty or scarcity hands and seals into the Queen's of the time, and other circum- most honourable court of Chanstances necessarily to be consider- cery." ed, shall have authority by virtue (6) By which after reciting (sect. thereof, within the limits and pre- 1), the provision of 5 Eliz. c. 4, s. cincts of their several commis- 15, and reciting (sect. 2), that the sions, to limit, rate, and appoint act hath not, according to the true the wages, as well of such and so meaning thereof, been duly put in many of the said artificers, handi- execution; whereby the rates of craftsmen, husbandmen, or any for poor artificers, labourers, other labourer, servant, or work- and other persons whose wages man, whose wages in time past were meant to be rated by the said have been by any law or statute act, have not been rated, and prorated and appointed, as also the portioned according to the plenty,
reason of passing this statute was a doubt which had been entertained, whether the power of the justice extended beyond ordinary labour and work. In Lowther v. Earl of Radnor (a), there was no difficulty as to fixing the rate of the particnlar species of labour. It is expressly mentioned in the statute of Elizabeth. Here there was nothing to do but to take care that nothing was done by others. Ad ea quæ sæpius occurrunt jura adaptantur (b). There is also considerable weight in what was said by Mr. Halcomb as to the second clause of the statute. By that clause the magistrate has power to put the parties to hard labour for a month. This shews what description of labour the statute contemplated.
HOLROYD, J.-I entirely concur in the view of my brother Bayley. If this is not correct, I do not see why the statute should not be extended to the service of a merchant's clerk, where the rate of remuneration was not settled between the parties. I think it was enough for the party summoned to say that the claim was for fees. The onus probandi as to the nature of the employment, lay upon the party applying to the magistrate to act. A considerable objection arises upon the form of the warrant, in not stating expressly a case within the statute. scarcity, necessity, and respect of any person or persons for assessthe time which was politically in- ing and rating of wages, and the tended by the said act, by reason authority to them in the said act that ambiguity and question have committed, shall be expounded risen and been made, whether the and construed, and shall by force rating of all manner [of] artificers, of this act give authority to all perworkmen, workwomen, his and sons having any such authority to their wages, other than such as by rate wages of any labourers, weavsome statute and law have been ers, spinsters, and workmen or rated, or else such as did work workwomen, whatsoever, either about husbandry should or might working by the day, week, month, be rated by the said law, foras- year, or taking any work at any much as the said law has been
person or persons hand whatsofound beneficial for the common
to be done in great, or otherwealth ; It is enacted (by sect. 3), wise. that the said statute, and the autho- (a) 8 East, 113. rity by the same statute given to (6) Bole v. Horton, Vaugh. 373.