victed A. of the offence, and sentenced him to be imprisoned for a month.

Held, that A. was entitled to be discharged from custody, as the warrant was bad for not stating either that the contract was in writing, or that A. had entered into the service.

This was an application to discharge Joseph Askew, who had been brought up by habeas corpus, out of the custody of the keeper of the House of Correction at Stafford. The instrument under which the prisoner was in custody, stated as follows: "Whereas complaint upon oath has been made before me, T. B. Rose, Esq. one of Her Majesty's Justices of the Peace acting in and for the county of Stafford, by J. C, &c. agent of Thomas Mayer, John Mayer and Joseph Mayer, of Longport, potters, that Joseph Askew, late of Longport, in the said county, hath contracted with the said Thomas Mayer, John Mayer and Joseph Mayer, to serve them as their servant in the business of potters, at the parish of Burslem, in the said county, for a certain time, to wit, for the term of one year, to commence from the 11th of November last, and that the term of his contract being unexpired, the said Joseph Askew did, on the 2nd of June instant, unlawfully misdemean and misconduct himself in his said service by neglecting and absenting himself from his said masters' service without having given to his said masters any notice thereof, and without assigning any sufficient reason for so doing, contrary to the provision of the statute in that case made and provided." The instrument then proceeded to the effect that the Justice adjudged the complaint to be true, and convicted the prisoner of the offence and sentenced him to be imprisoned for one month.

Huddlestone, in support of the motion. -The prisoner must be discharged. The conviction is made under the statute 4 Geo. 4. c. 34. s. 3; but the warrant is bad, as it does not shew on its face that the contract between the prisoner and his masters was in writing, or that the prisoner had entered into their service. The case of Lindsay v. Leigh (1) is conclusive on

(1) 11 Q.B. Rep. 455; s. c. 17 Law J. Rep. (N.s.) M.C. 50.

this point. He referred to In re Hammond (2) and In re Gray (3).

Pashley, contrà.-It is conceded that it must appear upon the face of the instrument either that the contract was in writing, or that the service had been entered into. But it is submitted that the terms of the warrant shew sufficiently that the prisoner had entered into the service. The judgment in Lindsay v. Leigh points out that the terms of the warrant are not to be construed as strictly as if it were a conviction. The warrant here says that Askew contracted to serve his master for one year, that the contract being unexpired, he misconducted himself in his said service by unlawfully absenting himself from his said masters' service. These allega

tions shew that he must have entered into

the service previously. In Lindsay v. Leigh, the warrant stated that Leigh had in his service with his masters been guilty of divers misdemeanours, particularly that he absented himself from the service of his masters before the term of his contract was completed; but the point as to whether the warrant impliedly stated that the prisoner had entered into the service was not taken in Lindsay v. Leigh. Besides the warrant here is much more specific in its details. It states the dates, and shews that more than six months after the service had commenced the prisoner absented himself. It is discretionary with the Court to quash a conviction: if the point be one of any doubt, as this is, the Court will not quash it, but remand the prisoner.

WIGHTMAN, J.-If a prisoner, brought before me by habeas corpus, applies for his discharge, and I am of opinion that he is entitled to be discharged, I think that I am bound by every rule of law to grant him his discharge. I cannot distinguish this case from the case of Lindsay v. Leigh, which was decided by the Exchequer Chamber, a Court of higher authority than this Court. The warrant in that case was under the same section and almost in the same words as in this case. Now, the statute applies

(2) 9 Q.B. Rep. 92; s. c. 15 Law J. Rep. (N.S.) M.C. 136.

(3) 2 Dowl. & L. P.C. 539; s. c. 14 Law J. Rep. (N.S.) M.C. 26.

to the case where the servant shall contract in writing to serve, and shall not enter into and commence his service, and also to the case where he shall contract to serve, whether by writing or not, and shall enter into such service, and afterwards absent himself. The present warrant neither states that the contract was in writing, nor that the prisoner had entered into the service. It alleges that the prisoner contracted to serve for a specified time, and that he did unlawfully misconduct himself in his said service by absenting himself from his masters' service. It is said that the above allegation ex vi termini implies that he had entered into the service. That does not seem to me to be a necessary implication from the words, and the terms of the section are much against such an implication. For if the fact that the servant had entered the service ought necessarily to be implied from the expression that he had absented himself from it, it would not have been necessary for the statute to have inserted the words "having entered into such service" at the commencement of the branch of the section imposing the liability ́on the servant for absenting himself from the service. This seems to be the view taken in Lindsay v. Leigh, in which decision

I fully concur. I think, therefore, that the warrant is bad, and that I am bound to discharge the prisoner.

1851. Feb. 10.

THE

Rule absolute.

LONDON AND NORTHWESTERN RAILWAY COMPANY v. WETHERALL AND ANOTHER.

Railway Clauses Consolidation Act-8 Vict. c. 20. s. 58.—Order of Justices, Validity of-Conviction.

An order of Justices, made under 8 Vict. c. 20, s. 58, directing a railway company to repair damage done by them to a road, need not specify the particulars of the damage done or of the repairs ordered, if it states the length of road injured, and directs the damage so done to be made good.

Such an order, as well as a conviction adjudging a penalty for its disobedience, may include several roads situate in the same parish.

The conviction purported to be made by virtue of the Railways Clauses Consolidation Act:-Held, sufficient.

[For the report of the above case, see 20 Law J. Rep. (N.S.) Q.B. p. 337.]

Appeal-Right of. See Lunatic.

See Notice of Appeal.

Apprenticeship-Sufficiency of allowance of indenture by a single metropolitan police magistrate. R. v. St. George, Bloomsbury, 200

Arbitration Power of arbitrator appointed by order of county court, to administer an oath. R. v. Hallett, 197

Arson A building used as storehouse for seasoned timber, as place of deposit for tools, and as workshop, correctly described as a "shed." Semble, a gentleman supplying materials and superintending the building of houses on his own estate, to let or sell, is a person carrying on the trade of a builder. R. v. Amos, 103

Articles of the Peace-If a partner by violence force his co-partner out of the business premises of the firm, and threaten such co-partner with violence and danger to his life if he again enter them, and it is necessary for such co-partner to enter and use them for purpose of carrying on his ordinary business as partner, Court will permit articles of the peace to be exhibited. R. v. Mallinson, 33

Assault - Indictment for robbery with violence does not include a charge of the minor felony of assaulting with intent to rob, although the word "rob" is used in the indictment. On such indictment verdict of guilty of assaulting with intent to rob does not justify a conviction of assault under 7 Will. 4. & 1 Vict. c. 85. s. 11. R. v. Reid, 67

Upon trial of indictment for murder by violence, charging the murder to have been effected by blows inflicted on several occasions, if the assaults committed and relied on by the Crown as conducing to the death are proved by the evidence to have been unconnected with the homicide of the deceased, the prisoner ought not to be convicted of assault, under 7 Will. 4. & 1 Vict. c. 85. s. 11, but is entitled to a general acquittal; and such acquittal is no bar to a subsequent prosecution in respect of those very assaults. R. v. Bird, 70

See Justice of the Peace.

Autrefois acquit-As to what is the proper direction to the jury on a plea of autrefois acquit, see the judgments of Lord Campbell and of the other Judges in R. v. Bird, 70

Bail. See Scire Facias. Bailment. See Larceny.

Bastardy-Order of maintenance, though bad in part for excess of jurisdiction, may be enforced for the residue. R. v. Green, 168

See Indictable Offences.

Beer Act-A place being an aggregation of houses and inhabitants which has received a separate name is a "place" in which a public-house may be kept open until eleven under 3 & 4 Vict. c. 61. s. 15, though it has no local rights peculiar to itself. A licence to sell beer specifying that the house should be closed at ten o'clock, will not support an information for keeping open the house beyond ten o'clock, if by statute the house may be kept open to a later hour. R. v. Charlesworth, 181

Borough Rate. See Rate. Builder. See Arson.

Case from Sessions. See Costs. Certiorari-Court will grant certiorari to remove indictment for conspiracy, on application of one of several defendants, without consent of others, if that defendant enter into recognizances to pay costs if either himself or any of the other defendants are convicted. R. v. Foulkes, 196

to remove Order of Sessions-Affidavit of service of notice on A. & B. not shewing that A. & B. were two of the Justices by and before whom order made, is insufficient. No presumption can be drawn that they were present when order made from circumstance of their names appearing in caption. R. v. Inhabitants of St. James's, Colchester, 203

Church Building Act-What sufficient to constitute
a township a distinct parish under 58 Geo. 3.
c. 45. s. 59. Insufficiency of resolution of vestry
as a consent of vestry to borrowing money on
security of rates within that section; and man-
damus to chapelwardens to pay off arrears of
money borrowed out of rates, not supported. R.
V. Bilston, 63

Church Rate. See Rate.

Coining and Uttering-A person who in payment
for goods at a shop, puts down a counterfeit
shilling, and upon the shopman saying it is bad
quits the shop leaving the coin there, is guilty of
"uttering and putting off" within the meaning
of the statute. R. v. Welch, 101
Conspiracy-The 3 & 4 Will. 4. c. 53. s. 120, which
enacts, that all suits, indictments, or informations
exhibited for any offence against that or any other
act relating to the Customs in any of his Majesty's
courts of record at Westminster, shall be brought
within three years after date of commission of
offence, is confined to indictments to be brought
under sections 75. and 112. in name of Attorney
General, in one of the courts of record at Westmin-
ster, and does not apply to an indictment preferred
at assizes for a conspiracy to defraud the Queen
of certain duties, which is an offence at common
law. Upon an indictment charging A, B. and C.
with conspiring together and "with divers other
persons, to the jurors unknown," the evidence at
the trial applied only to A, B. and C. The jury
found that A. had conspired with either B. or C,
but that they could not say with which; and
Judge directed verdict of guilty to be entered
against A. and of not guilty in favour of B. and
C. On this finding A. entitled to be acquitted,
as persons unknown meant persons other than
A, B. and C, and there was no evidence adduced
as to any other persons being concerned; Erle, J.
dissentiente. R. v. Thompson, 183

See Misdemeanour.
Constable is not justified in shooting at a person
he has seen stealing wood growing in a copse, to
prevent his escape, not knowing at the time that
such person had committed a previous felony.
R. v. Dadson, 57

Copyright of Designs-A design for a new ventilator,
consisting of an oblong pane of glass fixed in a
frame, which was inserted into an ordinary win-
dow frame, and hinged at the top so as to open
and admit air by means of a screw acted upon by
cords passing over its head, and having a half
pane of glass fixed in the lower portion of the
frame in which the ventilating frame moved, so
as to prevent a downward draught, is not a design
for the shape and configuration of an article of
manufacture within 6 & 7 Vict. c. 65, and there-
fore not the subject of registration; and a con-
viction for infringement of such registered de-
sign was quashed for want of jurisdiction. R. v.
Bessell, 177
Costs-Persons who prosecute on account of some
moral duty, though of imperfect obligation on
them to do so, and not as mere volunteers, are
entitled to costs under 5 Will. & M. c. 11. s. 3.
Indictment by guardians of a union against a
father for ill-treatment of his child, found in the
street, and brought to the union workhouse, being
NEW SERIES, XX.-MAG. CAS.

removed by defendant into Queen's Bench by
certiorari, and defendant being found guilty,
guardians entitled under that statute to their costs
as civil officers, prosecuting upon account of a
fact committed or done that concerned them as
officers to prosecute. R. v.
53

If, upon appeal to Quarter Sessions, a case
is stated for the opinion of a superior court, under
12 & 13 Vict. c. 45. s. 11, the practice is to give
costs as between party and party. Clarendon v.
St. James's, Westminster, 213

Upon a case reserved at Sessions, if points
are raised in favour of both sides, and the Court
confirms the order of Sessions and decides against
all the points raised, neither party is entitled to
costs under 5 Geo. 2. c. 19. s. 2. R. v. South-
ampton Dock Co., 228

See Maintenance.

Deposition-of witness too ill to attend at trial of
prisoner may be read as evidence before the grand
jury as well as petty jury. R. v. Clements, 193

On trial of indictment counsel for prisoner is
not at liberty, when cross-examining witness for
prosecution, to put into witness's hand his depo-
sition, and then ask witness whether, having
looked at the paper, he still adheres to the state-
ment already made in his evidence in court,
counsel not intending to put deposition in evi-
dence. R. v. Ford, 171

Deposition of witness taken before magis-
trate upon criminal charge is (independently
of 11 & 12 Vict. c. 42. s. 17.) receivable only in
evidence at the trial in case deponent dead or
kept out of the way by procurement of prisoner.
Where, upon trial of three persons for felony, it
appeared that witness had been kept out of the
way by procurement of one only of the prisoners,
and deposition admitted in evidence against all
the prisoners, it was held to have been impro-
perly admitted against those who were uncon-
nected with absence of witness. R. v. Scaife, 229
Evidence. See Deposition. Receiving Stolen Goods.
False Pretences--It being the duty of prisoner,
a servant of prosecutor, in absence of chief
clerk, to purchase and pay for, on behalf of his
master, any "kitchen stuff" brought to their
premises for sale, he on one occasion falsely stated
to the chief clerk that he had paid 2s. 3d. for
"kitchen stuff" which he had bought for his
master, and demanded to be paid for it. The
clerk paid him 2s. 3d. out of money which his
master had furnished him with to pay for "kitchen
stuff." Prisoner applied this money to his own
use. This false pretences, and not larceny, as
the clerk had delivered the money to prisoner
intending to part with it altogether.
R. v.
Barnes, 34

Indictment charged prisoner with attempting,
by false pretences made to J. B. and others, to
defraud said J. B. and others of certain goods,
property of said J. B. and others. On the trial,
it was proved that prisoner made false pretence
set forth in indictment to J. B. only, with intent
to defraud J. B. and others his partners of pro-
perty belonging to their firm. This not a vari-
ance between indictment and proof, as words

2 K

"and others" in allegation that false pretence was made to J. B. and others" might be rejected as surplusage. R. v. Kealey, 57 Forging and Uttering-A forged letter purporting to be written by A. and addressed to B, which after setting out the amount due from B, proceeded, "Sir, I hope you will excuse my sending for such a trifle," &c. "but I am obliged to hunt after every shilling," is a forged "warrant" for the payment of money within 11 Geo. 4. & 1 Will. 4. c. 66. s. 3. Semble that it is also a forged "order" for the payment of money. R. v. Dawson, 102

Upon indictment for uttering a forged warrant, order and request, it is immaterial that the instrument proved is neither a warrant nor an order but only a request, if it is set out in hæc verba. R. v. Williams, 106

Habeas Corpus-Application for habeas corpus ad respondendum, to take prisoner, in custody on charge of felony, before Justices to answer to another charge of felony, must be made to Judge at chambers, and not to the Court. R. v. Isaacs, 232; Q.B. 395

Highway, Non-Repair of Indictment against parish

for non-repair of highway, "that from the time whereof the memory of man runneth not to the contrary, there was, and yet is, a common and ancient highway," &c., the only other allegation as to time being that part of said highway situate, &c. " on 1st day of January in the 12th year aforesaid and continually afterwards, until the taking of this inquisition, was, and yet is" out of repair, so that the liege subjects of the Queen could not during the time aforesaid, nor yet can go, return, pass, &c. Allegation of immemoriality rejected as surplusage, and enough appeared on indictment as to time, to support the liability charged. R. v. Turweston, 46

Idem Sonans. See Indictment.

Indictable Offences-A soldier in the Queen's service may be indicted for disobeying an order of bastardy, it being a criminal matter and therefore not within the Mutiny Act. R. v. Ferrall, 39

The abandoning a child with intent to throw on parish the burthen of its maintenance as casual poor not an indictable offence. Indictment not sustainable as an indictment for neglect of natural duty in abandoning child, there being no averment that prisoner had means of providing for it, or that child's health had suffered injury by the abandonment. Hogan, 219

R. v.

See Misdemeanour. Indictment-The finding of the jury on one count cannot be used, on motion in arrest of judgment, to impeach the finding on another count, however contradictory. R. v. Craddock, 31

It is a question of fact for the jury, and not of law for the Court, whether two names are idem sonantia, unless they must necessarily sound the same. R. v. Davis, 207

Materiality and Identity. See Perjury.
Surplusage. See Highway.

See False Pretences.

Information. See Beer Act.

Jurisdiction. See Justices of the Peace. Poor Law Commissioners. Rate.

Justice of the Peace-Sections 1. and 2. of 11 & 12 Vict. c. 44. are to be read together, and section 2. applies only to those cases where the act, in respect of which the action is brought against the Justice, is itself an excess of jurisdiction. And where a Justice convicted plaintiff in a penalty, and adjudged it should be levied by distress and sale, but exceeded his jurisdiction in ordering plaintiff, in default of payment, to be set in the stocks, which however was never done, but the penalty was levied by distress, trespass for seizing the goods was not within section 2, and was not maintainable by reason of section 1. Barton v. Bricknell, 1

Magistrates enforcing payment of contributions under 2 & 3 Vict. c. 84. s. 1, when there is no legal obligation to pay, are acting without jurisdiction, and are liable in trespass, under 11 & 12 Vict. c. 44. sections 1. and 2. Newbould v. Coltman, 149

Upon information for assault, praying sureties of the peace, Justices have no jurisdiction to convict summarily of the assault against the will of the informant. R. v. Deny, 189

See Lunatic. Mandamus. Order of Justices. Poor Law Commissioners. Rate. Replevin.

Larceny A building called "the machine-house," but in which all goods sent out were weighed, and in which the men's time was taken and their wages were paid, the books being brought to the building for the purpose of making the entries, but kept in another building called "the office," where the general books and accounts were kept, is a counting-house within 7 & 8 Geo. 4. c. 29. s. 15. R. v. Potter, 170

There being one bailment of separate articles forming one parcel, original bailment determined by unlawful act of pawning part of them; and subsequent fraudulent appropriation of residue a larceny. R. v. Poyser, 191

Literary Society. See Rate.

Lunatic-Under 1 & 2 Vict. c. 14. s. 2, juris

diction of two Justices to inquire into settlement of lunatic is not limited to time of making the order by which he is conveyed to the asylum, but may be exercised at any subsequent time, and no order can be made on county for expenses until they have inquired into and failed to ascertain place of settlement. The provisions of section 3. of the Lunacy Act, 1 & 2 Vict. c. 14, come into operation only when an appeal has been commenced; and therefore, the keeper of the asylum is a proper person to serve notice of chargeability and other documents, required by Poor Law Acts to be sent to overseers of parish to be affected by order of adjudication of settlement. R. v. West Riding, 18

Notice of chargeability need not be sent by a parish obtaining an order for payment of expenses and maintenance of a pauper lunatic, under 8 & 9 Vict. c. 126. s. 62. upon the parish in which he is adjudged to be settled. Order of maintenance reciting prior order of removal of lunatic to asylum, and an order adjudging his settlement to be in appellant parish, and stating that pauper from