to the Commissioners, but that the prosecution may be instituted by any person. And I cannot think that, under these circumstances, it was the intention of the Legislature that a party should incur the penalties of that section, except the act complained of was one which, in the opinion of the Commissioners, might be injurious to the navigation or drainage. I think, on the contrary, that according to the true construction of that section, it would be for the Commissioners, in the first instance, to determine whether the act complained of was one which might be productive of such injury. And if it was shown that they were of opinion that it was, then their opinion should be conclusive on that question, and it would be for the Magistrates to decide whether the act complained of came within the prohibitory terms of that section, and was done by the party summoned before them. If this be the true construction of the 38th section, I am further of opinion that the document produced before the Magistrates in this case, and relied on by the appellant as the expression of the Commissioners' opinion, would not be sufficient to warrant a conviction.

It states

in general terms their opinion, "That the placing of frames, "anchors, and nets in the the river Shannon may prove injurious "to the navigation of the river," without at all referring to the particular frames or nets complained of. Frames and nets may differ materially in size and form; and their effect on the navigation would also depend on the locality in which they are placed; but that document affords no means of ascertaining whether the particular frames and nets in question may not be of such a description as to produce no injury whatever to the navigation.

On these grounds I think that in both the cases before us the Magistrates' orders should be affirmed, and that the appellant should pay the costs of the appeals.

T. T. 1865.
Queen's Bench

HORNSBY

V.

CONSIDINE.

T. T. 1865.
Queen's Bench

May 31.
June 3.

In re LAURENCE MOYLAN,*

a prisoner in the Four-courts Marshalsea.†

M. having ob- THIS case came before the Court on argument on the return to tained a writ of

habeas corpus, a writ of habeas corpus. The writ was directed to the Mar

directed to the

Marshal of the shal of the Four-courts Marshalsea, and the High Sheriff of the Marshalsea,

and to the She- city of Dublin. It appeared, from the returns now made by these riff of D., the

re

Marshal officers respectively, that the prisoner had been arrested on the 28th of February, under a warrant from the High Sheriff of the

turned that M. had been

handed over to him, under a writ of ca. sa., suit of F. Swan, against the prisoner; that the prisoner had been by the Sheriff

city of Dublin, in execution of a writ of ca. sa., issued at the

of D., and had delivered into the custody of the Marshal, by the Sheriff, on the

been in his

custody since; said day; that the Marshal had retained him in his manual cus

that while in

such custody a tody ever since, as Marshal of the Four-courts. While he was Judge of the Bankruptcy so in custody, the Court of Bankruptcy and Insolvency proceeded and Insolvency Court had re- to hear the petition of one Doyle; Moylan being an opposing quired the pro- creditor of Doyle's, it became necessary to examine said Moylan

duction of M.

that Court;

as a witness in in person before the said Court. That, at the instance of the that he was prisoner's. brother, an order was made by Judge Berwick for the brought up on

two occasions, Marshal to bring the prisoner up before the said Court on the

in the Mar

shal's custody, 29th of March 1865, in order to his being examined as a witness without the

knowledge or in the said matter.

consent of the Sheriff, and

was again

This order the Marshal obeyed; but the matter

not being gone into that day, the witnesses were ordered to attend

brought back the next day. That the Marshal again attended with the prisoner; to the Mar- and when his examination was over, he again brought him back

shalsea. On

the second oc- to the Marshalsea. That the removal of the prisoner on each of casion M. re

fused to return those occasions was without the knowledge, authority, or consent of

with the Mar

shal, but was the High Sheriff. That, on the 19th and 22nd of April, and 2nd of compelled

do so,

to

Held, that those facts did not constitute an escape, and that, accordingly, he was still in the lawful custody of the Marshal.

See this case reported in the Exchequer, infra.

Before the Full Court.

MOYLAN.

May, the prisoner had been brought up to the Court of Exchequer, T. T. 1865. Queen's Bench in obedience to a writ of habeas corpus which the prisoner had In re obtained from that Court, and that the said Court adjudged the custody and detention of the said Laurence Moylan proper and lawful. That, on the 2nd of May, the Marshal delivered another writ of ca. sa. to the Sheriff, commanding him to arrest and detain the prisoner for the costs awarded the Marshal in the Court of Exchequer; and on the 3rd of May the Sheriff duly ordered the Marshal to detain the prisoner accordingly. The Sheriff further returned that, "having no knowledge of the removal of the prisoner on the 29th "and 30th of June, and immediately after the return of the prisoner "to the said prison, which return was not caused by any act of mine, or the act of any one authorised to act for me in that behalf, "and finding him the said Laurence Moylan again within the pre"cincts of said prison, I then again detained, and from thence "hitherto, under and by virtue of said writ as aforesaid, and under "and by virtue of the detainer, as hereinafter mentioned, do still "detain," &c.

Sidney (with him Dowse) now opened the returns.

Onslow's Act does not apply to this case. The Court must assume these returns to be true; if they are not so, the prisoner can have his action. The ground for quashing the writ in the Court of Exchequer was, that it was only directed to the Marshal, and not to the Sheriff also. But it really decides the case of merits; and, being a Court of co-ordinate jurisdiction, this Court ought to be bound by it. Ex parte Higgins (a).

Jellett (with him O'Loghlen), for the prisoner.

The handing over the prisoner to the Sheriff takes place under the 5 & 6 Vic., c. 95. The order of Judge Berwick was clearly illegal. The 38 G. 4, c. 26, s. 3, is the only Act to authorise such a proceeding; but that is confined to Judges of the Superior Courts. The 44 G. 3, c. 102, is also confined to Judges of those Courts. The fact of obeying that order was clearly an escape. It was (a) 9 Ir. Law Rep. 414.

In re MOYLAN.

are,

T. T. 1865. alleged, on the other side, that he went back; but he went back on Queen's Bench compulsion; that, though he escaped from actual custody, he was still in the custody of the Sheriff; for the Sheriff was no party to the escape; that the prisoners in the Marshalsea were in the actual custody of the Marshal, but in the metaphysical custody of the Sheriff. [LEFROY, C. J. What other place, after that statute, could be, in imagination or in fact, the place of custody for the Sheriff's prisoners than the Marshalsea?]-The Sheriff's responsibility lasted until the prisoner was handed over to the custody of the Marshal; after that the Marshal alone was responsible. The words of the Act "shall be then in the custody of the Marshal." If the escape is voluntary, a prisoner cannot be re-taken; if negligent, he can of course. This was a voluntary escape. As to the construction of the Act, it was considered in the case of Ex parte Higgins (a).— [HAYES, J. I take you as contending that the Sheriff discharged his his duty on the day he handed the prisoner over.]-Yes; as a conble does. [FITZGERALD, J. If so, the writ ought to be altered; for it runs, "to take, and safely keep."]-When Ex parte Higgins was decided the alarming doctrine prevailed that, unless the Sheriff executed a warrant on handing over a prisoner to the Marshal, there was an escape in passing from one to another. The only point decided in that case is, that manual tradition is sufficient. Then comes the case of Lamphier v. (b) and that of Ex parte Staunton (c). I refer to this as showing that the custody of the Marshal is separate from that of the Sheriff-[FITZGERALD, J. Is it not the case that subsequent writs are executed by delivering them to the Sheriff only? How would he be made responsible if the prisoner was not then in his custody?]-I do not think they issue a ca. sa. at all. The object is attained under the 138th section of the Common Law Procedure Act by a side-bar rule; and that is served on the keeper of the prison. If the doctrine of double custody is admitted, the doctrine of escape is put an end to.-[LEFROY, C. J. What objection is there to that? You take the opportunity of doing an illegal act.]—But it should not be done by a forced construction.(b) 2 Ir. Jur., O. S. 291.

(a) 9 Ir. Law Rep. 414.

(c) 5 Ir. Law Rep. 58.

Queen's Bench

In re

MOYLAN.

[O'BRIEN. J. This construction does not abolish the doctrine of T. T. 1865. escape; it only says that it is the act of the Sheriff that constitutes an escape. Suppose the case of a forged order brought to the Sheriff.]-This does not come within the cases where the prisoner went back voluntarily into custody; he was forced to go the second day.— [FITZGERALD, J. Page v. Williams (a) does not, I think, touch this point].

O'Loghlen (with him Jellett) was then called on to proceed, but objected that he was entitled to reply to Mr. Sidney, who had only read the return, and not gone fully into his argument. To this objection the Court yielded.

Sidney, in support of the return.

The only hardship suggested is, that the prisoner has two parties to deal with instead of one, in order to take advantage of his illegal act. The writ shows that the Sheriff not only arrests but detains the party. The Sheriff, too, must have a right to execute subsequent writs; he cannot take the prisoner out of another custody. The return to the subsequent writ always states that he has taken him.-[HAYES, J. Would it not be a good return, that he had arrested the man, and that he was now in the custody to which he had transferred him previously ?]-That would not be an arrest under the second writ; that would be excusing himself for not arresting him. The sentence in the Act, "being in the legal custody of the Marshal," means no more than that the Marshal is his gaoler. The Marshal here got judgment against his own prisoner, but had to send the writ to the Sheriff to be executed.— [FITZGERALD, J. Where a prisoner in the county Antrim gaol, for instance, sues out habeas corpus, and we commit him to the custody of the Marshal, the Marshal is then our officer, and holds a character quite distinct from that of the officer of the Sheriff.]Boothman v. Earl of Surrey (b). There the Marshal is not the deputy of the Sheriff. Roll. Abr., vol. ii, p. 552, is quoted in Brown v. Copley (c); Wilkin v. Salter (d).

(a) 1 Ir. Com. Law Rep. 477.

(c) 8 Scott, 28.

(b) 5 T. R. 5.

(d) Temp. Hardwicke, 311.