1827.

BRAMWELL

V.

this warrant, Richards was left by Bramwell in possession, and he remained on the premises, four days and three nights. Bramwell refused to pay any thing to Richards PENNECK. for his services, alleging that he had suffered part of the goods to be removed. Upon this refusal, a summons for the appearance of Bramwell, to answer the complaint of Richards before the defendant, then being mayor of Penzance, was granted by Beard, the town-clerk. This summons being shewn to the defendant, he objected that it was informal and improper; upon which he was told by Beard, that if he had thought that Richards's claim was one of which the defendant had cognizance, he would have prepared it in a more formal manner. On the 1st of January, 1827, the defendant issued a summons stating, that "information, &c. upon the oath of Nicholas Richards, labourer, of Penzance, had been made to him, defendant, that on the 24th day of December last, Richards was employed by Thomas Bramwell of Penzance, solicitor, and sent to the house of James Jenkin, of the same town, to take care of certain goods taken in execution, but without naming the amount of the wages; that he, Richards, had duly performed the service, and that Bramwell refused to pay him the wages justly due to him for this service; and Bramwell was thereby required to appear before Penneck, at the Guildhall, on the 2d January, to show cause why the said wages should not be paid." Upon this summons the parties attended; and the mayor proceeded to hear the complaint. Bramwell objected that the mayor had no jurisdiction, and also that Richards had earned nothing, because he had suffered the goods to be removed. It was stated, that Richards had acted under the execution; and the warrant lay on the table. The defendant said he had jurisdiction, and that the compensation claimed was due as wages to Richards for services done; but said he would take time to consider of the case. On the following day, the mayor made the following order :-"Whereas, information and complaint

have been made unto me, Henry Penneck, M.D., mayor,
and one of his Majesty's justices of the peace of and for
the said town, by Nicholas Richards of the said town,
labourer, setting forth, that on or about the 4th day of
December last past, he was hired or employed by Tho-
mas Bramwell, of the said town of Penzance, gentleman,
to perform certain services for him at Penzance aforesaid;
that the said complainant hath duly served the said T. B.
under that hiring, and performed the said services, for the
space of five days and four nights; and that there is now
justly due and owing, from the said T. B. to the said com-
plainant, for his services aforesaid, the wages for such
services, which the said complainant hath demanded of
the said T. B.; but he, the said T. B., hath refused, and
doth refuse to pay the same. And whereas the said T. B..
hath been duly summoned to appear before me, the said
Justice, to answer the matter of the said complaint, but
has not shewn any sufficient cause; I, therefore, having
duly examined into the truth and matter of the said com-
plaint, and upon due consideration had thereof, do hereby
adjudge and determine, that the sum of 13s. and 6d. is
now justly due and owing, from the said T. B. to the said
complainant, as and for the wages aforesaid, and do there-
upon order, that the said T. B., upon due notice hereof,
do pay, or cause to be paid to the said complainant, the
said sum of 13s. and 6d., as and for his wages aforesaid;
and the further sum of 8s. and 6d., as and for his costs
and charges by him in that behalf incurred; the same to
be paid within the space of six days from the date hereof.

Given under my hand and seal, the third day of
January, in the year of our Lord 1827.

L. S.

HENRY PENNECK." No attention being paid by the plaintiff to this order, after several applications to him for payment, the following warrant of distress was issued:

"Town of To the constables of the town, and to every Penzance. S of them. Whereas Nicholas Richards, of

1827.

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PENNECK.

1827.

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PENNECK.

Penzance, labourer, hath complained unto me, Henry PenBRAMWELL neck, M. D., Mayor, and one of his Majesty's Justices of the Peace of and for the town, that he was employed by Mr. Thomas Bramwell, of the town of Penzance aforesaid, solicitor, on the fourth day of December last, and sent to the house of Mr. James Jenkin, in the said town, and there employed to take care of certain goods, taken in execution, where he continued for five days and four nights, and that the said Nicholas Richards hath duly performed the said service, and that no particular wages were specified. And whereas the said Thomas Bramwell, having appeared before me, in pursuance of my summons for that purpose, hath not proved to me that the wages justly due unto the said Nicholas Richards, for the service aforesaid, have been paid to him, the said Nicholas Richards, nor hath shewed any just cause why the same should not be paid, and hath not paid the same; I, therefore, the said Justice, upon due examination and consideration had thereof, on the third day of January instant, by writing under my hand and seal, did thereupon adjudge, determine, and order, that the said T. B., within six days from the date of the same order, shall pay, or cause to be paid to him, the said N. R., the sum of 13s. and 6d., which appeared to be justly due from him, the said T. B., to him, the said N. R., as and for his wages, for the service aforesaid. And whereas it appears to me, that the said T. B., on the third day of January instant, had due notice of my said order, and that due demand of the said sum of 13s. and 6d. was then made of him, the said T. B., but that he, the said T. B., did not then pay, nor hath yet paid the same, or any part thereof: these are, therefore, to command you to make distress of the goods and chattels of him, the said T. B.; and if within the space of four days next after such distress by you made, the said sum of 13s. and 6d., together with the reasonable charges of taking and keeping the said distress, shall not be paid, that then you do sell the said goods and chattels so by you distrained, and out of

the money arising by the sale, you do pay the said sum
of 13s. and 6d. unto the said N. R., returning the over-
plus upon demand to the said T. B., the reasonable
charges of taking, keeping, and selling the said distress,
being thereout first deducted.

Given under my hand and seal, the twentieth day
of January, 1827.

L. S.

HENRY PENNECK, Mayor." Under this warrant the plaintiff's office was entered, and his goods taken, until the 13s. 6d. was paid. Notice of action was proved, and the suit was commenced in due time (a). The learned Judge told the jury, that he was clearly of opinion, that the plaintiff was not liable to pay Richards a single shilling; that Richards was employed under the borough court, and for distraining the plaintiff in that action; that Richards was entitled to receive a compensation for his services, but that in ordinary cases it is not the attorney, but the plaintiff in the action, who is liable to pay that compensation; that Richards's services were not in the nature of labour, within the meaning of the statute (b); and that he was clearly of opinion

(a) See 24 Geo. 2, c. 44.

(b) 20 Geo, 2, c.19, which enacts, that "all complaints, differences, and disputes which shall happen between masters, or mistresses, and servants, in husbandry, who shall be hired for one year, or longer, (extended by 31 Geo. 2, c. 11, s. 3, to all servants in husbandry, though hired for less time than a year), or which shall happen or arise between masters and mistresses and artificers, handicraftsmen, miners, colliers, keelmen, pitmen, glassmen, potters, and other labourers, employed for any certain time, or in any other manner, shall be heard and determined by one or more justice, or justices of the peace of the county, riding, liberty, town

corporate, or place where such
master or mistress shall inhabit, al-
though no rate or assessment of
wages has been made that year, by
the justices of the peace of the
shire, riding, or liberty, or by the
mayor, bailiffs, or other head offi-
cers, where such complaints shall
be made, or where such differences
or disputes shall arise; which said
justice, or justices, is, and are
hereby empowered to examine up-
on oath any such servant, artificer,
handicraftsman, miner, collier,
keelman, pitman, glassman, potter,
or other labourer, or any other wit-
ness, or witnesses, touching any
such complaint, difference, or dis-
pute, and to make such order for
payment of so much wages to such

1827.

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PENNECK.

1827.

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that the Mayor had no jurisdiction. Upon this a verdict was found for the plaintiff, damages 13s. 6d., with leave for the defendant to move to enter a nonsuit.

In Michaelmas Term, C. F. Williams moved accordingly; and cited Lowther v. Earl of Radnor (a), and Foster v. Blakelock (b). The Court granted a rule to show cause why a nonsuit should not be entered, or a new trial had, unless the parties consented to a special case. No such consent having been obtained,

Halcomb (with whom was Tindal, S. G.) now shewed cause. This rule was moved on the ground that the learned Judge misdirected the jury upon two points, viz. by telling them, first, that the defendant had no juris