CASES ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH, IN Easter Term, In the Thirty-first Year of the Reign of GEORGE III. 1791. The KING against The Inhabitants of KINGSWINford. Thursday, May 12th. Service under a N an appeal against an order of removal of J. Lockwood, the order, and stated the following case: The pauper being settled at Wakefield, in October 1775, entered into an agreement with W. Bullock, by which he covenanted to work with and serve Bullock, as an artificer, in the art of a glassgrinder, or in any other part that Bullock should think proper to employ him in for 7 years; that he would not, at any time during the term, work for or serve any other person; and would not, at any time during the term, depart from or leave the work and service aforesaid, without the leave or licence of Bullock, his executors, &c. but would continue and be in such service as aforesaid, from 6 o'clock in the morning till 7 in the evening of each day, during the said term, including half an hour at breakfast, and one hour at dinner-times (except on Sundays) if in proper health. Bullock agreed to provide shop-room for Lockwood; to pay him 3s. and 6d. per week during the term, and to provide meat, &c. The pauper served Bullock two years at Birmingham under this agreement, and lodged and boarded at Bullock's. He occasionally worked in the night-time, and often went on errands for his master on Sundays; and never worked with any body else during that time, nor thought himself at liberty so to do. hiring for seven only 13 hours in the day (and Sundays excepted) will not give a settle ment. Leycester 1791. The KING against The Inhabit ants of KING WINFORD. 66 Leycester moved for a rule to shew cause why the order of Sessions should not be quashed; attempting to distinguish this case from that of R. v. Macclesfield (a), by observing, that in that case the Court decided that there was an exception in the contract of hiring, as "the service was to be only thirteen hours " in the six working days, and all the rest of the time as well as on Sundays, the pauper was at his own liberty, and his own "master;" whereas here it did not form a part of the contract that the pauper should be his own master after seven o'clock in the evening, and on Sundays, but on the contrary, he expressly stipulated not to work for any other person during the whole term; and it is stated in the case that he actually did work for his master occasionally in the night-time and on Sundays. But The Court refused to grant a rule to shew cause, thinking that it could not be supported. And Lord KENYON, Ch. J. said that there was no real distinction between this case and that of R. v. Macclesfield; for that the fair construction of this agreement was, that the pauper was to be his own master on Sundays, and on other days after he had served the thirteen hours, because he had only covenanted to serve those hours; and that the expression of one was the exclusion of the other: and he added, that it was essential in these cases that the servant should be under the power and coercion of the master during the whole time. Rule refused (b). (a) Burr. S. C. 458. (6) Vide R. v. North Nibley, post. 5 vol. 21. S. P. Thursday, May 12th. A commitment on 17 G. 2. c. 5. must be a com THE The KING against FRANCIS RHODES. HE defendant being brought up by habeas corpus, it appeared that he had been committed to the house of correc mitment in exe- tion in Middlesex, under the following warrant: cution, and is therefore bad, unless it be pre viction. [12 East. 78. 575.] "Receive into your custody the body of Francis Rhodes hereceded by a con- "with sent you, brought before me J. Spiller, Esq. one of his "Majesty's justices of the peace, &c. by J. Armstrong, con“stable, and charged before me the said justice upon the oath " of Mary Green, for being a rogue and vagabond within "the intent and meaning of an act entitled, &c. [17 Geo. "2.] for that the said Francis Rhodes, on the 25th of "March last, at, &c. did unlawfully use a certain subtle "craft, to deceive and impose upon the said Mary Greer "by pretending to tell the fortune of the said Mary Gree " and her husband James Green; and did then and there foretell ❝ events which should happen to and concern her husband James "Green, contrary to the statute, &c. him the said Francis "Rhodes therefore safely keep in your custody until the next "General Sessions of the peace to be holden for the said county, "then and there to be further dealt with according to law; and "for so doing," &c. Erskine and Garrow moved to discharge the defendant out of custody; contending, that the warrant of commitment which purported to be a conviction was void, inasmuch as he was only charged with, but not convicted of, the offence of which he was accused; and though it was held in R. v. Brooke (a), that a justice of peace might under this act commit a vagrant in execution in the first instance, yet such conviction must appear upon the face of it to have been duly and legally made, and should state that the magistrate, after hearing the charge and the defence, did adjudge the party to be guilty of the offence. The commitment is also bad on another ground, for not having pursued the words of the statute, in committing the defendant till the next sessions, or until discharged by due course of law, which the act has provided may be done by two magistrates, of whom the committing magistrate shall be one. In R. v. Hall (b) the defendant was discharged, because he was only committed under this act, until he should be discharged according to law; and it is an equally good objection to this commitment, that it omits the latter branch of the clause, as it was to the other, because the prior was omitted. But, secondly, If this were only to be considered as a commitment for safe custody, in order that the party should be tried at the next sessions, he is entitled to be bailed under the habeas corpus act. Bearcroft and the Common Serieant, contrà, admitted that this could not be supported as a commitment in execution, because the party was not convicted; but contended, that under the statute there was an option in the magistrate either to form his own judgment upon the case, and convict the party charged, or to commit him for safe custody to the next sessions, that they might inquire into the merits, and that this was a commitment of the latter sort; consequently, that in no event could the defendant be discharged without giving bail for his appearance at the sessions. But they also suggested whether the statute had not incidentally taken away the power of bailing the party; for the 32d section directs the magistrate to commit him to the house of correction, there to be kept to hard labour till (4) Ante, 2 vol. 190. (b) 3 Burr. 1636. the 1791. The KING against RHODES. 1791. The KING against RHODES. the next sessions, &c. which words are equivalent to saying "without bail or mainprize;" and it also enables the Sessions to continue him in custody for such a time as they shall see fit, not exceeding three months. Lord KENYON, Ch. J.-After observing on the incorrect manner of penning this statute, said, It having been admitted, and very properly too, that a conviction must precede a commitment in execution, I think this commitment is absolutely void, and that the party cannot be called upon to give bail. Although the act does not say in express terms that the party accused must be convicted previous to his commitment, yet, considering the whole statute together, that must be the construction of it. The judgment of the magistrate is a partial punishment. The commitment by him is in execution of his sentence, and not by way of safe custody for a future trial. If the party accused be committed for a limited time to expire before the sessions, they of course can exercise no judgment upon it; if the commitment be till the next sessions, they may, if they see fit, adjudge a further imprisonment. But in neither case is it a commitment for trial. This therefore being a commitment in execution, there ought to have been a previous conviction; for want of which the party is entitled to be discharged. ASHHURST, J.-This act of parliament is so inaccurately drawn, that it is extremely difficult to understand it. But on considering the whole together, it strikes me that the magistrate may either convict the party accused, or commit him to prison till the next sessions for trial. If this were merely a commitment for safe custody, I should have thought the commitment good for that purpose, and consequently that the party must have given bail; but if it be considered as a commitment in execution, it cannot be supported without an adjudication. Now it appears to me from the language of this commitment that the magistrate meant this to be a commitment in execution; for it says, Safely keep him in your custody until the next General Ses"sions, &c. then and there to be further dealt with according to "law." Therefore the justice intended that the defendant should at all events be kept in prison till the next sessions, and then that he should suffer such further imprisonment as the Sessions should adjudge. This then being a commitment in execution, is bad for want of adjudication that the party is guilty of the crime with which he is charged. 66 BULLER, J.-In the cases of R. v. Brook, and R. v. Aldred, the Court determined that a commitment under this act of parliament is in execution; and I continue to hold that opinion. This This seems clear, from the option given to the committing magistrate as to the punishment to be inflicted; he is either to order the party to be whipped, or to commit him till the next sessions, or for a shorter period: now in two of those instances it is properly admitted that there must be a conviction of the offence to warrant the sentence; and there seems to be no reason why it should not also extend to the third instance, the Legislature not having made any distinction between them: and, as there might exist cases in which an imprisonment beyond the next sessions is necessary, power is given to the magistrate to commit the offender till the next sessions, who may increase the punishment if they think proper. This being the true construction of the act, the only question is, Whether this warrant on the face of it be a good commitment in execution? and that it is not, cannot be doubted; first, Because the party was not previously convicted; and secondly, Because he is only committed till the next sessions, without adding" or until discharged by due course of law.” GROSE, J.-I still entertain the opinion I formerly gave in the cases cited. The Legislature meant to give the magistrate jurisdiction to hear and determine the complaint, and to punish the offender; though if imprisonment be part of the punishment, there is a limitation annexed to it, and the justice can only imprison the party till the next sessions, who may order a further imprisonment if they think it right: but a commitment under this act is not for safe custody only, but in execution, and after a conviction of the offence: therefore this warrant of commitment is bad, because it only states that the party had been charged with, not that he had been convicted of, the offence imputed to him. Defendant discharged out of custody (a). (a) In Hil. Term 37 Geo. 3. the Court quashed a similar commitment in the same words as the present, which was intended as a conviction, and ordered the party, one Richard Devereux Coombe, to be discharged. Vid. Rex v. T. Cooper, post. 6 vol. 509. The KING against G. SYMMONS. A Rule having been obtained in the last term to shew cause why an information in nature of a quo warranto, should not be exhibited against the defendant, calling on him to shew his title to be mayor of Axbridge, from Michaelmas 1789 to Michaelmas 1790, on the affidavits of four persons, Erskine and Wigley now shewed cause; and, before they went into a discussion of the merits, raised a preliminary objection that the Court ought not to attend to the application of these persons, 6 inasmuch himself to be the relator. |