about the true construction. That contended for by the return makes the act consistent and intelligible, and conforms to the literal and plain meaning of the words of the act with regard to all periods subsequent to the first which, as we have already explained, was necessarily extended somewhat beyond twenty-one years. That contended for by the prosecutors is inconsistent with the words and plain meaning of the act, making the period twenty-two years instead of twenty-one as fixed by the act. Neither is there any reason in the nature of the provisions of the act, or in their operation upon the interest of the parties, which in any way calls upon us to put a constrained and unnatural construction upon the words.

The judgment must be for the defendants.

Judgment for defendants.

*IN THE EXCHEQUER CHAMBER. ·

(Error from the Queen's Bench.)

COBBETT v. HUDSON.

[*497

A writ of attachment in Chancery for non-payment of costs is in the nature of final process and therefore an officer may justify the taking and detaining under such attachment without showing any return of the writ.

Where, under stat. 5 & 6 Vict. c. 22, s. 2, the keeper of the Queen's prison, by warrant from the Chief Justice of Q. B., received from the warden of the Fleet the plaintiff, being then in custody under such writ of attachment: Held, that in justification to an action of false imprisonment, the keeper need not show that the plaintiff was committed by warrant to the custody of the warden, the writ being itself a justification, and the statute being applicable, though there was no commitment.

It is no objection to such plea of justification that the writ in Chancery appears to be returnable immediately, though there is no averment as to residence, so as to bring the case within the words of stat. 11 G. 4 & 1 W. 4, c. 36, s. 15. (3).

Nor that the writ is not stated to have been endorsed with the name of the solicitor.

THE plaintiff in error (the plaintiff below) declared, in the Court of Queen's Bench, in trespass, for assaulting him, and seizing, imprisoning, and detaining him in prison.

Plea. That, before the passing of an act, &c. (5 & 6 Vict. c. 22), "for consolidating the Queen's Bench, Fleet, and Marshalsea Prisons, and for regulating the Queen's Prison," and before the committing, &c., to wit, on 16th June, 1840, by a certain writ then issued out of and by Her Majesty's High Court of Chancery at Westminster in a certain cause then depending in the said Court, wherein one Jesse Oldfield was the plaintiff, and the now plaintiff was defendant, and wherein the said J. Oldfield was plaintiff, and one Benjamin James was defendant, by original and supplemental bills, Her said Majesty commanded the then Warden. of Her said Majesty's prison of the Fleet to attach the now plaintiff, so as to have him before Her said Majesty in her said Court of Chancery, VOL. XIII.-38

immediately, wheresoever the said Court should *then be, there *498] to answer to Her said Majesty as well touching a contempt which he (as it was alleged) had committed against Her said Majesty, as also such other matters as should be then and there laid to his charge, and, further, to perform and abide.such order as the said Court should make in that behalf; and that the said Warden should thereof fail not, and should bring that writ with him: on which said writ was then duly endorsed in manner following, that is to say: "By the Court, for not paying the sum of 411. 3s. 9d. costs to the said Jesse Oldfield in the said cause" and which said writ, so endorsed, was then delivered to William Robert Henry Brown, who then was, and long after continued to be, Warden of the said Prison of the Fleet, to be executed: That afterwards, and before the passing of the said act, and before the committing, &c., to wit, on, &c., the said W. R. H. Brown, then being the Warden, &c., by virtue and in pursuance of the said writ, attached the now plaintiff, as by the said writ commanded: and he, the said W. R. H. Brown, being and continuing such Warden, detained the said plaintiff William Cobbett in the custody of him the said Warden from thence continually until the said Warden delivered over the said W. Cobbett to Thomas Chapman, the then Marshal of the Queen's Prison, in the said act mentioned, as in this plea after mentioned. That, after the passing of the said act, and before the committing, &c., to wit, on 7th November, 1842, the Right Honourable THOMAS Lord DENMAN, then being the Lord Chief Justice of the Court of Queen's Bench at Westminster, made his warrant under his hand, directed to the said T. Chapman, then being the Marshal, &c., to the said W. R. H. Brown, *then being the Warden, *499] &c., and whom else it might concern; and thereby required and commanded the said W. R. H. Brown, then being such Warden, to deliver into the custody of the said T. Chapman, then being the Marshal, &c., the said plaintiff W. Cobbett, he the said W. Cobbett then remaining and being in the custody of the said Warden, and by virtue of the said writ, as in this plea aforesaid. That afterwards, and before the committing, &c., and whilst the plaintiff remained and was in the custody of the said Warden under and by virtue of the said writ, to wit, on, &c., the said warrant of the said Lord Chief Justice was delivered to the said W. R. H. Brown, then being such Warden as aforesaid; and the said Warden, in obedience to and in pursuance of the said warrant, then delivered the plaintiff into the custody of the said T. Chapman, then being the Marshal, &c.: and the said Warden, at the same time, delivered to the said Marshal the said writ in this plea aforesaid: and the said T. Chapman, then being such Marshal, &c., then took and received the plaintiff into his custody, together with the said writ: and, thereupon, to wit, on, &c., the said T. Chapman, then being such Marshal, forthwith conveyed the plaintiff in his custody, under and by virtue of the said writ and warrant, to the said Queen's Prison, and there, in the

said Prison, detained the plaintiff in his custody under and by virtue of the said writ, until afterwards, and before the committing, &c., to wit, on 13th June, 1843, when the said T. Chapman resigned his said office of Marshal, &c., and the now defendant was, by, &c. (Sir James R. G. Graham, one of the Secretaries of State), appointed to be keeper of the said Queen's Prison: and defendant then became, and thence until *the commencement of this suit continued to be, the keeper of

the said Queen's Prison. And, thereupon, and before the com- [*500

mitting, &c., to wit, on, &c., the plaintiff, together with the said writ, was by the said T. Chapman delivered to and was by the defendant, so being such keeper, &c., received into the custody of him defendant, as such keeper. And defendant, being such keeper, &c., detained the plaintiff in his custody, under the said writ, from thence until the commencement of this suit, as defendant lawfully might, for the cause, &c.: and, in so receiving, &c., defendant unavoidably assaulted, &c., and imprisoned, &c., and detained, &c.: which are the same, &c. Verification. Replication: De injuriâ. Issue thereon.

Verdict for the defendant.

Judgment having been entered for the defendant in the Court of Queen's Bench, the plaintiff brought error in the Exchequer Chamber. Joinder in error.

The case was argued in last Michaelmas vacation, (a) and in this vacation.(b)

The Plaintiff in error (plaintiff below), in person.-The plaintiff is entitled to judgment non obstante veredicto. First, the warden had no power to act without a warrant of commitment. The duty of the warden of the fleet was only to receive and keep: the warden attended the Court of Chancery by deputy, in readiness to execute all warrants of commitment.(c) There is a *difference between the warden and [*501 the sheriff: the sheriff is not the mere gaoler. In the act which consolidates the prisons, 5 & 6 Vict. c. 22, s. 2, the step preliminary to the transfer of the prisoners is to certify their names, with the several causes and times of their commitments." So in stat. 8 & 9 W. 3, c. 27, s. 1, the prisoners spoken of are those "committed" to the custody of the marshal of the King's Bench and the warden of the Fleet. The remedy given against those officers, in actions of escape, by section 2, is not given as against the sheriff. From 1 Tidd's Practice, 351 (ed. 9), where Turner v. Eyles, 3 B. & P. 456, S. C. at N. P. 5 Esp. N. P. C. 8, is referred to, it appears that, in an action against the marshal for an escape, a commitment must be alleged and proved: and, in p. 352, it is pointed out that the prison rules are not admissible to prove the

(a) December 4th, 1848; before CRESSWELL and WILLIAMS, Js., and PARKE, ALDERSON, and ROLFE, BS. ALDERSON, B., left the Court during the argument.

(6) February 1st, 1849; before COLTMAN, MAULE, and WILLIAMS, Js., and PARKE, ALDERSON, ROLFE, and PLATT, BS.

(c) As to the Keeper of the Queen's Prison, now, see 1 Grant's C. Pr. p. 34, ch. 3 (5th ed.).

1

cause of the commitment. In p. 352 reference is made to Barns v. Eyles, 8 Taunt. 512 (E. C. L. R. vol. 3), where a party, suing the warden of the Fleet for an escape, not having alleged a commitment on record, was allowed to amend. Here, therefore, the plea does not give a legitimate origin to the imprisonment. By 2 stat. 13 C. 2, c. 2, s. 5, if it was necessary to declare against a prisoner in the Fleet, he was brought by habeas corpus to the bar. Then stat. 8 & 9 W. 3, c. 27, s. 13, enabled plaintiffs to charge prisoners in the Fleet simply by a declaration and there the expression is, "who now is, or are, or hereafter shall be committed to the said prison." Stat. 1 & 2 Vict. c. 110, s. 36, assumes that no person will be imprisoned for contempt except by commitment. Now, as imprisonment by the Court of Chancery for contempt must be regulated by the same principles as common law pro*502] cess, it follows that the plaintiff here ought to have been brought to the bar of the Court, and thence committed; and that the plea is bad for not showing that this has been done. In stat. 11 G. 4 & 1 W. 4, c. 36, s. 15, the process for charging a prisoner in contempt appears to be framed entirely on the supposition that he must be brought to the bar of the Court, and committed. That was the course pursued in the case

of a contempt of the Court of King's Bench, in Bryant v. Clutton, 1 M. & W. 408,† S. C. Tyrwh. & G. 843. The plea should also have shown that the plaintiff was transferred, together with the cause of his commitment, as directed by sect. 2 of stat. 5 & 6 Vict. c. 22.

Next, the writ, issued on the 16th June, 1840, is averred to have been made returnable immediately. In Chancery, the process of contempt is now returnable immediately only where the party in contempt resides or is in London or within twenty miles thereof; stat. 11 G. 4 & 1 W. 4, c. 36, s. 15 (3). Now it is not shown here that the plaintiff was within that distance. In 1 Grant's Chancery Practice, 136 (ch. 23, 5th ed.), it is said: "This writ is regularly made returnable in term time, on any of the old return days:" adding the exceptions of cases where the statute is applied: and in 1 Daniel's Chancery Practice, p. 430 (2d ed.), it is said: "It is to be observed that where an attachment is issued not returnable immediately, but of which the return must take place in term time, it must still, as before, be made returnable on a general return day." The return days were altered by stat. 11 G. 4 & W. 4, c. 70, s. 6: but, by stat. 1 W. 4, c. 3, that provision was repealed: and other return days are substituted in *the three common law Courts but the returns in Chancery are left as before. Next, it does not appear that the writ was endorsed with the name of the solicitor. (The plaintiff here referred to stat. 2 G. 2, c. 23, s. 22.(a))

*503]

Further, it is not shown that the writ was returned in fact. "A justification by the sheriff or officer, under a returnable process, is ill, with

(a) Repealed by stat. 6 & 7 Vict. c. 73, s. 1, and 1st sched. 1st part.

out showing a return of it;" 2 Tidd's Pr. 1032 (ed. 9), citing Middleton v. Price, 2 Str. 1184, S. C. 1 Wils. 17: and Tidd shows, in his note on the passage, that the rule, though not applicable to final process in the superior courts, holds good in cases of mesne process or of process in inferior courts. Now an attachment for contempt in not paying money is in the nature of mesne process; Lewis v. Morland, 2 B. & Ald. 56; where the Court of King's Bench adhered to the doctrine of the Court of Common Pleas, as laid down in Morris v. Hayward, 6 Taun. 569 (E. C. L. R. vol. 1), and dissented from that of the Court of Exchequer, as laid down in Phelips v. Barrett, 4 Price, 23.

Watson, contrà.-The defendant justifies under the warrant of Lord DENMAN, C. J., by virtue of stat. 5 & 6 Vict. c. 22, s. 2. [MAULE, J. -Will that warrant transfer a custody which is unlawful?] So far as regards the justification of the officer, it will: he cannot inquire into the propriety of the original commitment in Chancery, or of the Lord Chief Justice's warrant: and, further, it appears that the Lord Chief Justice has himself no discretion, but must issue his warrant in every case *certified to him. [PLATT, B.-You contend that the au[*504 thority of the defendant goes farther than that of the warden on the original commitment.] It does, because his duty goes farther. [MAULE, J.-Then, if the original commitment be improper, the prisoner is without remedy.] He may obtain a habeas corpus. [PLATT, B.— That is not exactly a remedy.] There is no remedy against the present defendant; nor ought there to be one.

The Court of Chancery here had power to issue the writ returnable immediately. But, even if the writ was not properly returnable for fifteen days, that did not make the process void; and the objection of irregularity cannot be now taken. It is true that in counties such process is addressed to the sheriff: but in London and Middlesex it is addressed to the warden, who is as much an officer of the Court as the sheriff; Bethell's Case, 1 Salk. 348. This Court will at any rate not inquire whether the Court of Chancery has properly pursued its own practice.

As to the plea not showing a return of the writ, that cannot be always necessary. It might be necessary to plead before the return day had arrived. [PARKE, B.-It might then be averred that the return day had not arrived.] The writ commands the warden to bring the defendant before the Court. [PLATT, B.-Could the warden keep him ten years?] There is no new assignment: the first taking and detaining only can be in question on this record. This is in the nature of final process, though returnable, like a ca. sa. [WILLIAMS, J.-The reason given by BAYLEY, J., in Lucas v. Nockells, 10 Bing. 157, 192 (E. C. L. R. vol. 25), for requiring a sheriff who justifies under a capias ad respondendum to state a return is, "because the process *will not justify him, he shall not be protected by it, unless he shows that he has paid a due and full obedience in

[*505