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in Her Majesty's name, forthwith to apprehend the said J. B., and to bring him before me, or some other of Her Majesty's justices of peace in and for the said city, to answer to the said complaint, and to be further dealt with according to law." The plaintiff was apprehended under this warrant, and imprisoned (a). On 1st November, rules for two writs of certiorari having been obtained, the plaintiff was liberated on giving security to prosecute the writs of certiorari. The convictions were afterwards quashed, on the ground that the design was not within the statutes protecting the copyright of designs and the present action was brought for the imprisonment.

The counsel for the defendant contended that, on these facts, the action was not maintainable, under stat. 11 & 12 Vict. c. 44. s. 2., the plaintiff not having appeared according to the exigency of the summons. The Lord Chief Justice overruled the objection, giving leave to move to enter a verdict for the defendant. Verdict for plaintiff.

In this

In Michaelmas term 1852, Hugh Hill obtained a rule Nisi to enter a verdict for the defendant. term (b),

First: assuming

O'Malley and Lush shewed cause. that the summons in this case was a summons of the kind contemplated in sect. 2 of stat. 11 & 12 Vict. c. 44., there was an appearance. What appearance is suffi

(a) He was apprehended by the police force for the city of London, and, upon being put into custody, was searched; which, it was stated, was the invariable practice of the city police. Lord Campbell C. J., upon the motion for the rule mentioned in the text, very strongly reprobated the application of the practice to such a case.

(b) January 13th, 1853. Before Lord Campbell C. J., Wightman and Crompton Js.

cient, must depend upon the object of the summons.
Here, by stat. 5 & 6 Vict. c. 100. s. 8. (the powers of
which extend to the cases comprehended in stat. 6 & 7
Vict. c. 65.), the magistrate had power to order a dis-
tress, but none to imprison. Then stat. 11 & 12 Vict.
c. 43. s. 22. would indeed have enabled the magistrate
to commit for three months in case it had been returned,
to a warrant of distress, that no sufficient goods could be
found. But here it was not shewn that any warrant of
distress had issued. The plaintiff could here be sum-
moned only for the purpose of shewing cause why a
distress warrant should not issue. For this purpose, the
appearance of counsel or attorney was enough. In Rex
v. Simpson (a) it was held that a party might be con-
victed for deer stealing, under stat. 3 & 4 W. & M. c. 10.,
without appearing. There Parker C. J. said: "to require
the offender to be brought before the justices and de-
tained, will be a strange construction, for that detainer
may be accounted a greater punishment than the for-
feiture; and if in such a case the offender, to prevent
further trouble, would send the forfeiture, why should
not that be a sufficient authority for the justice to
convict him, though he does not appear in person?
To compel the offender to appear would be to no
purpose; for if he does appear, the justices cannot
compel him to make a defence." In Rex v. Haddock (b)
it was held that a party, indicted of mayhem, need not
be brought to the bar, but might deliver his plea in the
office, the crime not then being one by which life and
member were affected. An appearance
An appearance of an infant by
attorney, upon an information for riot, was held suffi-

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(a) 1 Str. 44.

(b) 2 Str. 1100.

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cient in Regina v. Tanner (a). Stat. 11 & 12 Vict. c. 43., which must be construed in connection with stat. 11 & 12 Vict. c. 44., recognizes, by sect. 13, the appearance by counsel or attorney before a justice. But, secondly, the summons here is not the kind of summons which is the subject of the enactment in sect. 2 of stat. 11 & 12 Vict. c. 44. That section contains provisoes for three cases. First, where an act is done under a conviction, the conviction must be quashed before the action is brought. The act in the present case, however, is not properly an act done under a conviction; for the conviction imposes no imprisonment and, further, the conviction has been quashed. Secondly, where the action is brought for any thing done under a warrant to procure appearance, and is followed by conviction, the conviction must be quashed. Here, even if the conviction had not been quashed, the provision would not apply; for this summons followed the conviction. Thirdly, where the warrant is on an information for an alleged indictable offence, still, if a summons has issued before the warrant, and been served, and the party summoned has not appeared, the action is not maintainable. It is sought to bring the present case within the last proviso. But it is manifest that the summons there spoken of is a summons in the nature of process to bring the party before the magistrate to answer the charge. Here the charge had been disposed of, and a conviction had taken place, before the summons issued. If the statute were otherwise interpreted, a magistrate might protect himself from responsibility for an illegal conviction by

(a) 2 Ld. Raym. 1284.

issuing a summons afterwards. The plaintiff would be worse off than if the magistrate had acted within his jurisdiction, and were protected only by sect. 1. [Wightman J. Should a warrant of distress issue without a summons?] It may: non-payment is enough to authorise it. At any rate, the non-appearance to such a summons is merely an abstaining from resisting it.

Hugh Hill and Willes contrà. This action is not maintainable under either sect. 1 or sect. 2 of stat. 11 & 12 Vict. c. 44. Under sect. 1, if the magistrate has jurisdiction, the action must be in case, with an allegation of malice. The action here is trespass: and it is said that the magistrate had no jurisdiction, and that the plaintiff in effect appeared to the summons. By common law there could be no appearance by attorney; the cases where there may be such appearance are to be found in Com. Dig. Attorney (B 4.), (B 5.), (B 6.) (a): but no authority is to be found for appearing by attorney to answer a complaint before justices. Stat. 6 & 7 W. 4. c. 114. s. 2., for the first time, establishes the right of parties so charged to have the assistance of counsel and attorney; but that does not dispense with appearance. All that Rex v. Simpson (b) decided was that the party convicted could not there rely upon his own non-appearance as an objection to the conviction. Rex v. Haddock (c) related only to the mode of putting in a plea of Not Guilty. In Regina v. Tanner (d) it was not competent to the defendant to contend that he had

(a) See authorities in Doe dem. Bennett v. Hale, 15 Q. B. 171, and note to the same case, 15 Q. B. 225.

(b) 1 Str. 44.

(d) 2 Ld. Raym. 1284.

(c) 2 Str. 1100.

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appeared irregularly. Stat. 11 & 12 Vict. c. 43. s. 12. enables both parties to have the assistance of counsel and attorney: but that does not affect the question of appearance. Sect. 13 of the same statute applies to the particular proceeding there regulated: but it rather affords an opposite inference in cases which are not within that section. Here the magistrate, if not bound, was at any rate entitled to inquire, before issuing a warrant of distress, or of apprehension in default of goods to answer the distress, whether the plaintiff could shew cause against the proceeding. The principle appears from Hammond v. Bendyshe (a), where several authorities are cited; among others, Ex parte Kinning (b) and Kinning's Case (c), to which may be added Kinning v. Buchanan (d), and the doctrine laid down in the Exchequer Chamber in Bonaker v. Evans (e), and the language of Parke B. in In re Hammersmith Rentcharge (g).

Cur. adv. vult.

Lord CAMPBELL C. J., in this term (January 19th), delivered the judgment of the Court.

In this case the action is primâ facie maintainable. The warrant granted by the defendant, under which the plaintiff was arrested and imprisoned, was illegal. The conviction had been quashed by this Court; and the defendant had clearly exceeded his jurisdiction in requiring the plaintiff to be apprehended and brought before him in custody to answer the complaint stated in the warrant.

(a) 13 Q. B. 869.
(c) 10 Q. B. 730.

(b) 4 Com. B. 507.
(d) 8 Com. B. 271.

(e) 16 Q. B. 162.

(9) 4 Exch. 87.