The defendant, pleading "Not guilty, by statute," relies for protection on stat. 11 & 12 Vict. c. 44. s. 2., whereby it is enacted: that no action shall be brought against a justice "for any thing done under such conviction or order until after such conviction shall have been quashed;" "nor shall any such action be brought for any thing done under any such warrant which shall have been issued by such justice to procure the appearance of such party, and which shall have been followed by a conviction or order in the same matter, until after such conviction or order shall have been so quashed as aforesaid; or if such last mentioned warrant shall not have been followed by any such conviction or order, or if it be a warrant upon an information for an alleged indictable offence, nevertheless if a summons were issued previously to such warrant, and such summons were served upon such person, either personally or by leaving the same for him with some person at his last or most usual place of abode, and he did not appear according to the exigency of such summons, in such case no such action shall be maintained against such justice for any thing done under such warrant." The defendant contends that, although this illegal warrant was not followed by any such conviction or order, a summons had been issued previously to such warrant, and such summons was duly served upon the plaintiff, and the plaintiff did not appear according to the exigency of such summons; therefore this action is not maintainable against the justice for the arrest and imprisonment under the warrant. But we are of opinion that, where there has been a conviction by the justice, the summons and warrant referred to by this enactment must be a summons and warrant before conviction, and 1853. BESSELL V. WILSON. 1853. BESSELL V. WILSON. that it does not apply to a summons and warrant after the conviction, issued with a view to the levying of the penalties. The warrant here, which was issued after the conviction, recites that John Bessell had unlawfully neglected and refused to pay two penalties with costs, directed to be paid by him, and that a summons had been issued commanding him to appear to answer to the said complaint, and that he had neglected to be or appear at the time and place appointed by the summons, although proof was given that the summons had been duly served. The warrant then concludes in these words: "These are therefore to command you, in Her Majesty's name, forthwith to apprehend the said John Bessell, and to bring him before me, or some other of Her Majesty's justices of the peace in and for the said City, to answer to the said complaint, and to be further dealt with according to law." Now this is not any proceeding pointed out by the preceding statute, 11 & 12 Vict. c. 43., "To facilitate the performance of the duties of justices of the peace out of Sessions, within England and Wales, with respect to summary convictions and orders," or by any other statute, nor a proceeding which the Legislature could well have had in contemplation when it indemnified a justice for what was done under a warrant preceded by a summons to appear. Suppose it to be fitting that, after a conviction imposing penalties, the justice, before issuing a distress warrant to levy them, should issue a summons calling on the party convicted to answer a complaint that he had neglected and refused to pay them, it never could have been supposed that the justice, on a default to appear, instead of issuing a distress warrant, would issue a warrant to arrest and imprison the party, and to bring him in custody before the justice to answer for not appearing. This is not a warrant granted by the justice to procure the appearance of the party with a view to a future conviction or order: and therefore there would be no indemnity to the justice for what was done under it, although a summons to appear had been previously served, even if the party had not appeared according to the exigency of such summons. But we are further of opinion that, if the summons and warrant did come within the second section of stat. 11 & 12 Vict. c. 44., it cannot be justly said that the party did not appear according to the exigency of the summons. The object of the summons must reasonably be taken to be that he might shew cause why a distress warrant should not issue. During the argument, there was a suggestion that distress warrants had before issued: but at the trial such prior distress warrants were not given in evidence, nor ever alluded to. At the time and place appointed by the summons, the plaintiff did appear by his counsel and attorney; and his counsel earnestly pressed that he might be heard to shew cause, on the ground that the conviction was illegal and void; but the alderman refused to hear him, because the party was not personally present. We think that, in so refusing, the alderman was wrong in point of law. The legitimate object of the summons did not render necessary the personal appearance of the party: and that object might be better answered if he appeared by his counsel and attorney. In criminal cases, after a verdict of Guilty, this Court requires the personal appearance of the party: but, generally speaking, the Judges are contented to hear any question of fact or law discussed by counsel without the personal appearance of the client. VOL. I. 2 L E. & B. 1853. BESSELL v. WILSON. 1853. BESSELL V. WILSON. It is unnecessary to consider the general law respecting the occasions when a party in the course of legal proceedings is privileged to appear by attorney or counsel, as the Legislature has plainly intimated that, upon such an occasion as that which we are considering, an appearance by counsel or attorney is sufficient. The statute 11 & 12 Vict. c. 43., which is in pari materiâ with c. 44., not only, by sect. 12, allows on the hearing of informations and complaints that the parties may plead by counsel and attorney, but, by sect. 13, which specifies what is to be done if at the return of the summons when the complaint is to be heard the complainant or the defendant do not appear, goes on to say: "But if both parties appear, either personally or by their respective counsel or attorneys, before the justice or justices who are to hear and determine such complaint or information, then the said justice or justices shall proceed to hear and determine the same." Upon the whole, it seems to us that the defence set up has entirely failed; and that the verdict which the plaintiff obtained ought not to be disturbed. Rule discharged. 1853. The QUEEN against the Inhabitants of INDICTMENT against the inhabitants of the township of Haughton, in the parish of Manchester, for not repairing a highway. The indictment contained four counts. The first, second and third described the highway as being in the township of Denton, and alleged Indictment for non-repair of a highway, them to be liable by pre repair such scription to bitants of the in each count, on a different ground, that Haughton was liable to repair it. The fourth count, on which highways in the township alone the question discussed in banc arose, described as the inhathe highway as in the township of Haughton, and averred that the inhabitants of the township were, by prescription, liable to repair all roads within the township which would otherwise be repairable by the parish. Plea: Not Guilty. Issue thereon, parish, but for the prescription, would have been liable to repair, that the high with averment way was in the township. guilty. The gave in evi At the trial, before Wightman J. at the Liverpool Plea: Not Summer Assizes 1852, it appeared that the road was prosecutors out of repair, and that the township of Haughton was liable to repair all roads within it. The prosecutors failed in proving the first three counts, but relied on the fourth: and the question became, Whether the road in dence a record ment by a justice, under of a present stat. 13 G. 3. question was out of repair; averring that it was in the township of H., and that the inhabitants of that township ought to repair it: the record shewed a plea of Guilty by two inhabitants of the township of H., a conviction before the Sessions, and a sentence of fine. Held that this conviction was conclusive evidence, against H., that the road was in that township. And that, though the presentment might be bad on error for not shewing how the township was liable, the conviction, being before a competent tribunal and being unreversed, was not the less an estoppel. Held, also, that it was not necessary to shew that the fine had been levied, the conviction not being impeached on the ground of fraud or collusion. By a local and personal act (since repealed) it was recited that the highway in question was in the township of D. Held, that the recital in the Act was not conclusive, and consequently did not open the estoppel. |