in possession of the farm"? Mr. Gray contended that the terms of the compromise are inconsistent with the notion that the plaintiff had no right to give notice to quit, inasmuch as the compromise recognises the plaintiff's title. But my Lord has given the answer to that. It was also contended that, the defendant having taken twenty acres at an increased rent, there was a new taking, and therefore an estoppel, and consequently the defendant could not question the title of the plaintiff. But, in the first place, that does not obviate the objection that arises. from the hardship to which the defendant was exposed. Captain Swinfen might still have been at liberty to treat the defendant as his tenant; and though, possibly, it might have been contumacy in a tenant who was an acute real property lawyer or special pleader not to give up possession to the plaintiff under such circumstances, it is a different matter with a tenant farmer. Not that I think it a plain case, but the reverse. If I had been in the situation of the defendant I should have done what he did. For these reasons I think that the defendant is entitled to our judgment. CHANNELL, B.: I agree that the defendant is entitled to judgment. I think this is a very plain case. The question turns upon the construction of the 4 Geo. II. c. 28, s. 1, and if no judicial construction had been put upon that statute, and I had to look at its language for the first time, I should come to the conclusion that this case is not within it. We must place the same construction on the word "wilful" which it received in Wright v. Smith (1) and Soulsby v. Neving (2); and, applying the principle there laid down, I think that there is no ground for holding the defendant *liable. As I entirely concur in the view of the facts, and in the reasoning of the LORD CHIEF BARON, I do not think it necessary to say more. WILDE, B.: Unless we are prepared to overrule the prior decisions as to the construction of this statute, we must say that, to subject himself to the penalty, a tenant holding over after the expiration of a notice to quit must do so contumaciously. Then, was the holding over by the defendant in the present case contumacious? The defendant, having attorned to the plaintiff before any question had arisen as to the title, is said by Mr. Gray to have been in the same position as if he had taken a new lease. Captain Swinfen commences a litigation to obtain possession (1) 5 Esp. 203, 215. (2) 9 R. R. 567 (9 East, 310, 313). SWINFEN v. BACON. [ *192 ] SWINFEN ር. BACON. 1860. of the estate. There was a compromise, which was embodied in an order of Nisi Prius, which the defendant, not being a lawyer, or looking strictly into the rights of the parties, but as one of the public, might fairly presume would be carried out. Any ordinary man, at that time, would suppose that the matter had been decided in Captain Swinfen's favour. I cannot conceive what a tenant could do under such circumstances, except treat as his landlord the person who appeared to have the best right. Mrs. Swinfen gave the defendant notice to quit, and distrained upon him for rent. It would be the hardest thing possible, in such a case, to make a tenant pay double rent if he failed to find out which of the two was right. The defendant appears to have considered that person as having the right who practically had the matter decided in his favour. The compromise having been set aside, it is said that this was contumacy. But I think it was not contumacy, and that the defendant simply acted with the desire of doing what was right, and that he is, therefore, entitled to our judgment. Judgment for the defendant. IN RE WILLIAM THOMPSON, A PRISONER (1). Νου. 23. (6 H. & N. 193-210; S. C. 30 L. J. M. C. 19; 7 Jur. N. S. 48; 3 L. T. N. S. 409; 9 W. R. 203; 9 Cox, C. C. 70.) 193] On a rule to show cause why a habeas corpus should not issue to bring up the body of a prisoner, it appeared from the affidavits, that the information charged that one W. T. did "unlawfully assault and abuse" Susannah T. In stating the case before two justices sitting in Petty Sessions, the prosecutrix's attorney detailed facts, showing a violation or attempted violation of the prosecutrix's person against her will. The prisoner's advocate objected to his giving evidence of anything but a common assault, but, after some argument between the advocates and the justices, it was agreed that the case should be taken under the Aggravated Assaults Act, 16 & 17 Vict. c. 30 (2). The prosecutrix stated that the prisoner began to rawl" her for about a quarter of an hour; that she rawled till she could not rawl any longer with him, when he put her against a gate and had connexion with her against her will. She was cross-examined as to whether she had not consented to what took place. The justices convicted the prisoner, and in the commitment stated that they found the assault to be proved, and to be of such an aggravated nature that it could not, in the opinion of the justices, be sufficiently punished under the 9 Geo. IV. c. 31 (3), and the justices therefore, in pursuance of the 16 & 17 Vict. c. 30, adjudged the said W. T. to be imprisoned &c. for six months: Held, that the 16 & 17 Vict. c. 30, s. 1, applies only to common assaults, and not to an assault accompanied by any circumstances which make it a distinct offence recognised by the law as something more than a mere assault-such as an assault with intent to commit a rape: per totam CURIAM. Per POLLOCK, C. B., and WILDE, B., that inasmuch as the charge was not of a common assault, and the evidence did not point to a (1) Referred to, in Reg. v. Miles (1890) 24 Q. B. D. 423, 59 L. J. M. C. 56. (2) See now the Offences against the Person Act, 1861, s. 43. (3) See now id., s. 42, common assault, but to a rape or an attempt to commit a rape, the Per BRAMWELL, B., and CHANNELL, B., that the information charged OVEREND had obtained a rule calling on H. Slater and R. Wild, Esquires, two of the justices of the county of Lancaster, and on Susannah Taylor, to show cause why a writ of habeas corpus should not issue, directed to the keeper of the house of correction at Preston, commanding him to bring up the body of William Thompson. From the affidavits on which the rule was moved, it appeared that the information charged that William Thompson on the 29th of October, 1860, at the township of Lower Darwen, "did unlawfully assault and abuse Susannah Taylor, contrary to the statute in such case made and provided." The material parts of the commitment were as follows: Whereas William Thompson was duly convicted before the undersigned &c., upon the information and complaint of Susannah Taylor, of &c., single woman, in that the said William Thompson, within three calendar months last past, to wit, on &c., at &c., did unlawfully assault and abuse the said Susannah Taylor, contrary to the *statute in such case made and provided. And the said justices did find the said assault to be proved, and to be of such an aggravated nature that it could not, in the opinion of the said justices, be sufficiently punished under the provisions of the statute 9 Geo IV. c. 31. And the said justices did therefore, in pursuance of the statute passed &c. (16 & 17 Vict. c. 30), intituled 'An Act for the better prevention and punishment of aggravated assaults upon women and children, and for preventing delay and expense in the administration of certain parts of the criminal law,' adjudge that the said William Thompson, for his said offence, should be imprisoned in the house of correction at Preston, in the said county, for the space of six calendar months." These, therefore, are to command you &c. "Given under our hands and seals, this &c. "H. SLATER. One R. Thompson deposed that he was present at the trial, and heard the evidence of Susannah Taylor and the other witnesses; that the only evidence of the assault was that of Susannah Taylor, who swore that on the 29th of October the prisoner "had committed a rape upon her." The words she used were that "he rawled her and melled her, and had connexion with her against her will," and she stated the same on In re THOMPSON, [ *194] In re THOMPSON. [195] [ *196 j cross-examination &c.; and that when particularly asked by the justices she said that the said William Thompson put his privates into her, and that she screamed violently. (This did not appear in the depositions, and the magistrates' clerk and other deponents did not recollect it.) Other witnesses were examined, but they did not speak to the said assault, but only to a meeting which had taken place for the purpose of arranging the matter without its going before the magistrates. Affidavits were filed in opposition to the rule, viz. one by *the clerk of the justices, which set out the depositions of the witnesses when before the magistrates, and amongst others that of Susannah Taylor, who said: When coming to my work I met the prisoner, who after some observation began to rawl me something like ten minutes or a quarter of an hour. I rawled till I could not rawl any longer with him. He put me against the factory gate and began to mell of, and tried to do, and had connexion with me. I did not consent to his having connexion with me," &c. She was cross-examined by the prisoner's advocate, as to whether she made any outery or complaint to any person of the prisoner's conduct; she stated that she screamed, but the engine was going, and people could not hear her at some cottages which were near. Other witnesses spoke chiefly as to attempts by the prisoner to settle the matter. Mr. Barlow, an attorney who appeared before the magistrates as advocate for Susannah Taylor, deposed that, "the case having been called on, I proceeded to state the facts to the justices, and whilst doing so Mr. Hall, the prisoner's advocate, objected to my going into anything but a common assault; but after some argument betwixt myself and Mr. Hall, and the justices, it was agreed that the case should be taken under the Aggravated Assaults Act, and it was so taken and dealt with, and the prisoner was committed under that Act." Kay showed cause (Nov. 22): First, the commitment is good upon the face of it. The conviction is not before the Court, and unless it is brought before the Court by certiorari they will not look beyond the commitment. The 16 & 17 Vict. c. 30, s. 1, enacts that "when any person shall be charged &c. with an assault upon any female whatever &c., either upon the complaint of the party aggrieved or otherwise, it shall be lawful for the justices &c., if the assault is of such an aggravated *nature that it cannot in their opinion be sufficiently punished under the provisions of the 9 Geo. IV. c. 31, to proceed to hear in a summary way, and, if they shall find the same to be proved, to convict the person accused; and every offender so convicted shall be liable to be imprisoned in the common gaol or house of correction, with or without hard labour, for a period not exceeding six calendar months" &c. If the justices found that the assault was not merely a common assault, but one within the provisions of this section, they were warranted in convicting the prisoner. (WILDE, B.: If the evidence points to a rape, can the justices convict the party charged of an assault?) The information does not charge a rape, but rather points to an 66 (WILDE, B.: Was there any evidence of an aggravated assault except what went to prove a rape?) Overend and Wheeler, in support of the rule: The addition of the word "abused" shows that something more than an assault was charged. The charge was really one of rape, and it cannot be reduced to a charge of an aggravated common assault by a private arrangement between the *parties. If "abused" means "indecently assaulted," the jurisdiction of the justices is ousted, for the offence is an indictable misdemeanour. Under the 14 & 15 Vict. c. 100, s. 29, the prisoner had a right to have his case considered by a jury, and therefore the magistrates had no jurisdiction: Ex parte Jacklin (1). Where the charge is not such as, if true, would be within the magistrate's jurisdiction, no finding of facts by the magistrates can alter it: Thompson v. Ingham (2). The power of the magistrates to deal summarily with cases of aggravated assault, being a statutory power, must be strictly pursued. The Act which originally gave power to justices to deal summarily with cases of assault is the 9 Geo. IV. c. 31. Section 27, after reciting that "it is expedient that a summary power of punishing persons for common assaults and batteries should be provided under the limitations hereinafter mentioned," proceeds to enact (1) 2 Dowl. & L. 103, 106. (2) 80 R. R. 376 (14 Q. B. 710, 718). In re THOMPSON, [197] |