This subject was fully considered in the case of Reg. v. Bolton (1), which laid down this rule: that where the justice. has jurisdiction the Court will not receive affidavits impeaching his decision on the facts; and that the test of jurisdiction is whether or no the justice had power to enter upon the inquiry, not whether his conclusions in the course of it were true or false but that it may be shown by affidavits that he had no authority to commence an inquiry, inasmuch as the question brought before him was not one to which his jurisdiction extended; and this, although by misstatement he has made. the proceedings on the face of them regular. (MARTIN, B.: Suppose the magistrate determined that a person was a potter, when he was not a potter.) That fact might be shown by affidavit, for it would disclose a want of jurisdiction. (WATSON, B., referred to Thompson v. Ingham (2).) Here the matters existed which were necessary to give the justice jurisdiction: the person charged was a potter, there was a contract, and he had entered into the service. Then the justice having jurisdiction to inquire into the misconduct, adjudges that the party was guilty of misconduct in absenting himself after the termination of his punishment; and affidavits cannot be used to show that he has come to a wrong conclusion. (On this point he also referred to Reg. v. Dayman (3) and Reg. v. Brown (4).) Although the complaint is of such a nature as to give the justice jurisdiction to hear it, yet if it turns out in the course of the inquiry that he has no jurisdiction to convict that may be shown by affidavit: In re Bailey (5). (BRAMWELL, B., referred to the note to Crepps v. Durden (6).) In Paley on Convictions, p. 377, 4th ed., the rule is thus stated: Although the magistrate may have had power to enter upon the inquiry, it may be shown by affidavit that there was no evidence of that which is required to form the basis of his jurisdiction, e.g. of a contract of service under the Master and Servants Act, 4 Geo. IV. c. 34." The absenting is as much the basis of jurisdiction as the contract. (1) 55 R. R. 209 (1 Q. B. 66). (5) 97 R. R. 677 (3 El. & Bl. 607). In re BAKER. [232] In re BAKER. [234] [238] (BRAMWELL, B.: In Mould v. Williams (1), a justice made an order under the Highway Act, 5 & 6 Will. IV. c. 50, s. 73, for the removal of the plaintiff's timber, which was stated in the order to be laid upon a highway; and it was held that in an action of trespass against the magistrate, the plaintiff could not give evidence, in contradiction to the order, that the locus in quo was not a highway.) It is now more necessary to receive affidavits in cases of this kind, since no action will lie against the justice until after the conviction is quashed: 11 & 12 Vict. c. 44, s. 2. I am of opinion that the warrant is good. I have the misfortune to differ from the rest of the COURT on one point. As to the general jurisdiction of this Court to receive affidavits for the purpose of invalidating a conviction, I think that wherever the objection is an entire want of jurisdiction in the magistrate, it is competent for the Court to ascertain, by affidavit, whether or no he had jurisdiction. For instance, if the person convicted was not a potter, or if a potter there was no contract between the parties, there would be no jurisdiction in the magistrate to adjudicate, and he could not, by finding those facts, confer on himself jurisdiction. Again, supposing the construction of the statute right, that the contract is dissolved by the adjudication, or that the power of the magistrate was exhausted by the conviction, these facts might be shown by affidavit. Thompson v. Ingham (2) is an express authority on this point. There the county court Judge had primâ facie jurisdiction to try the plaint; but it was taken away by a question raised as to title to land. The Court of Queen's Bench came to the conclusion that, although the county court Judge had decided that the title to land was not in question, that matter must be tried as a fact in a suit for prohibition. If the 6 Geo. III. c. 25, stands unrepealed, a conviction under it is good, notwithstanding the subsequent Act, and it is not necessary to show on the face of the conviction under which Act it took place. If under the 6 Geo. III. c. 25, it could not be under the 4 Geo. IV. c. 34, and vice versâ: it is sufficient to say contrary to the form of the statute." Then is the 6 Geo. III. c. 25, repealed by the 4 Geo. IV. c. 34? The law on this subject is thus stated in Dwarris on Statutes, p. 532, 2nd ed. "But a later statute which is general and affirmative, does not abrogate a former which is particular: thus, the stat. 5 Eliz. c. 4, (1) 64 R. R. 558 (5 Q. B. 469). (2) 80 R. R. 376 (14 Q. B. 710). that none use a trade without being apprentice, did not take away 4 & 5 Ph. & M. c. 5, that no weaver use &c. Sir O. Bridgman lays down this doctrine: that the *law will not allow the exposition of a statute to revoke or alter by construction of general words any particular statute where the words may have their proper operation without it. Affirmative words do not take away a prior exemption. It is a general rule that subsequent statutes which add accumulative penalties and institute new methods of proceeding, do not repeal former penalties and methods of proceeding ordained by preceding statutes, without negative words." That being so, there is nothing in the 4 Geo. IV. c. 34, to repeal the 6 Geo. III. c. 25, and therefore if this is not a good conviction under one Act it may be under the other. I am sorry to say that on this part of the case I differ from the rest of the COURT, but relying on the view I have taken of the statute 4 Geo. IV. c. 34, I think the commitment good, and I also think that the 6 Geo. III. c. 25, being unrepealed, may be resorted to in order to support this conviction. BRAMWELL, B.: I think that the prisoner ought to be discharged. Upon the question whether we can look at the affidavits in order to ascertain whether the magistrate had jurisdiction, I own the inclination of my opinion is, that we are not at liberty to look at them. Perhaps, what I am now saying may be extra-judicial, because it is not the point on which the prisoner is to be discharged, but I wish to state shortly the grounds on which I think the affidavits ought not to be received. I am inclined to adopt the rule laid down by the learned editors of Smith's Leading Cases, vol. 1, p. 591, 4th ed. (1). "Possibly the distinction may be between cases in which the conviction or order is made by persons who are admitted to constitute a legal Court, and who have stated facts which, on information being laid or a case coming before them, would be matter to be proved and adjudicated upon by them, and cases in which the *objection is that they are not a Court at all, because not in fact magistrates, or because interested, [or] because they sat out of the limit of their jurisdiction, or for some other reason striking at their existence as a Court, so that the objection is not that the statement of a Court is erroneous, but that the source of the statement is not a Court at all." I do not otherwise see why a person might not contest the jurisdiction of the magistrate either by an action against him, or in any other way; for the principle on which we examine the propriety of these convictions must be equally applicable whether personal liberty or property is concerned; and the inconvenience of revoking the (1) P. 683, 11th ed. (1903). In re ВАКЕВ. [ *239 ] [ *240 ] In re BAKER. [242] [243] [ *244 ] adjudication of magistrates in matters of this kind is so great, that I think the rule which I have referred to ought to be adopted. But, assuming that we have power to examine into the jurisdiction, as it is called, or into the existing facts necessary to give jurisdiction, it ought not to be more extensive than this, viz., we may enquire into the truth of everything except the subjectmatter of complaint. Therefore, all that we are at liberty to inquire into is, whether the person convicting was a magistrate, whether a complaint was made, whether the prisoner was a potter, and whether there had been an entry into the service: those facts existing, it was for the magistrate to adjudicate on the complaint. On these grounds I think that we ought not to look at the affidavits. * Then Mr. Huddleston says that it is a good conviction under the 6 Geo. III. On that point I differ from my brother WATSON. I should not like to say that the 6 Geo. III. has been repealed, because I am not sure that there may not be some important clauses in respect of which no provision is made in the subsequent statute; but when a statute directs something to be done in a certain event, and another law is made which appoints something else to be done, not contradictory, but more comprehensive and including the former, I cannot help thinking that the first Act is gone. It seems to me that the 6 Geo. III. is no longer in force quoad this particular matter, and that the conviction, being under the 4 Geo. IV. c. 34, is bad for not containing any adjudication as to abatement of wages. MARTIN, B.: * I I am also of opinion that this conviction is bad. found my judgment upon the want of that which the statute expressly requires to be in the adjudication, and which is necessary and important for the reason given by my brother BRAMWELL. Then it is said that this is a good conviction under the 6 Geo. III. c. 25. I concur, as a general rule, with what my brother WATSON has read from Dwarris on Statutes, but *all these matters must be looked at with common sense. Here there is a subsequent Act of Parliament in similar words, but with a provision superadded, and when we find two Acts on the subject, both affirmative, with something superadded to one, we must look to both and see how the object of the Legislature can be effectually carried out. For this reason we must read the 4 Geo. IV. c. 34, in connection with the 6 Geo. III. c. 25, to which that provision is superadded. Again, the 6 Geo. III. c. 25, contains. an express provision that the party aggrieved by any determina tion or order of a justice shall have an appeal; in the 4 Geo. IV. c. 34, there is no such provision. It is a matter of right that a person should know under what Act of Parliament he is convicted, and if the justice meant to convict under the 6 Geo. III. c. 25, he should say so, in order that the party may have an opportunity of appealing. If the justice does not, the conviction is bad, for the party is deprived of a right which he has under the one Act, but not under the other. I cannot think it a proper mode of carrying the law into effect, to shift back from one Act of Parliament to another, and say that if the conviction is not good under this Act, it is under that. On the question as to receiving affidavits, I have had the greatest doubt; and cannot arrive at a satisfactory conclusion. The first part of the 3rd section of the 4 Geo. IV. c. 34, enacts, "That if any servant in husbandry or any artificer, calico printer," &c. (mentioning a variety of persons), "shall contract with any person to serve him for any time, &c., and shall not enter into or commence his service according to his contract (such contract being in writing and signed by the contracting parties)," &c. Now, it is conceded that under that part of the section there can be only one offence, and that if the party is brought before a justice and convicted of not entering the service, there is an end of it. *Then, in the event of a second conviction for the same offence, what redress has he? If the argument of Mr. Huddleston is correct, the consequence will be that the party has no appeal and no redress of any sort, and he may be convicted over and over again, contrary to law. Again, suppose a justice convicts a person who is not within the class of persons with respect to whom the enactment is made, is the finding of the justice to be conclusive, and the person subject to punishment although he is not one of the class mentioned in the Act? What is the objection to that conviction? I can see no other than this-that the justice had no jurisdiction. Can he find, as a fact, that a person who is not a calico printer is a calico printer, and thereupon imprison him for three months with hard labour, and deprive him of all possible redress? It seems to me a question of the greatest difficulty, and I am not able to give an answer satisfactory to my mind. I concur with the majority of the COURT that the applicant is entitled to his discharge. I agree with my brothers MARTIN and BRAMWELL that the adjudication is bad. The magistrate was bound, not merely to commit but also to abate a proportionate In re BAKER. [ *245 ] [246] |