which he does not know to be about him; possession includes a knowledge of the facts, as far as the possession of the article is concerned, but no farther.

ROLFE, B. concurred.

Order of Sessions quashed, and the defendant convicted in the penalty of 501.

COURT OF EXCHEQUER.

Trinity Vacation.-June 24, 1846.

WILLIAM TARRY v. JOHN NEWMAN, Esq.

Action against magistrate-Validity of conviction under stat. 7 & 8 Geo. 4, c. 29-Complaint or information, by whom to be made-Party aggrieved-Jurisdiction— Summons by one justice and conviction by another-Adjudication of imprisonment for non-payment of costs.

Upon the face of a conviction for stealing a tree under 7 & 8 Geo. 4, c. 29, ss. 39 & 65, it appeared that the complainant and the party aggrieved were different persons: Held no objection to the conviction; for that that statute does not require the information or complaint to be made by the party aggrieved. A party charged with an offence under that Act was summoned by one justice to appear before him; and upon his appearance was convicted by another justice:

Held, 1st, that the objection was not available in an action for false imprisonment, because it did not arise upon the face of the conviction; but 2ndly (per Parke, B.), if it did arise it could not be sustained, because, when the party appeared in obedience to the summons, the Act gave any magistrate who might be present authority to hear and determine the matter.

The conviction adjudged the plaintiff "to forfeit and pay, over and above the value of the said tree, &c. the sum of 5s., and for the value, &c. Is., and also to pay the sum of 1l. 4s. 6d. for costs, to be paid on or before the 19th day of March next, and in default of payment of the said sums to be imprisoned,” &c. It then gave directions as to the payment and application of the other sums, and concluded, “ And I do order that the sum of 1l. 4s. 6d. for costs shall be immediately paid to the complainant." The commitment recited the order to pay "these sums and (generally) default in payment of the said sums." Held, that the Act gave general authority to impose costs as well as penalty or damages, and that the true construction of the conviction was that the condition of imprisonment applied to the non-payment of the penalty and damages, but not of the costs.

TR

RESPASS for assault and false imprisonment against the defendant, a magistrate of the county of Buckingham.

Plea-Not guilty, by statute.

The trial took place before Maule, J. during the Spring Assizes, 1846, for the county of Buckingham, when, at the suggestion of the learned judge, a verdict was taken, by consent, for the plaintiff, with 57. damages, subject to the opinion of the Court upon the points of law which he reserved. The material facts proved were, that the plaintiff and another person named Gray were summoned on February 10, 1845, to appear before Mr. Dashwood, a justice of the peace for the county of Buckingham, under the 7 & 8 Vict. c. 29, ss. 39 (a), and 65, (b)

(a) Sect. 39 provides that if any person shall steal, or shall cut, &c., or otherwise destroy, &c., with intent to steal the whole or any part of any tree, &c. the stealing of such article or articles, or the injury done, being to the amount of 1s. at the least, every such offender, being convicted before a justice of the peace, shall, for the first offence, forfeit and pay, over and above the value of the article or articles stolen, or the amount of the injury done, such sum of money, not exceeding 51., as to the justices shall seem meet, &c.

(b) Sect. 65 enacts, "for the more effectual prosecution of all offences punishable on summary conviction under this Act,"-" That where any person shall be charged, on the oath of a credible witness, before any justice of the peace, with any such offence,

the justice may summon the person charged to appear at a time and place to be named in such summons; and if he shall not appear accordingly, then (on proof of the due service of the summons upon such person, by delivering the same to him personally, or by leaving the same at his usual place of abode), the justice may either proceed to hear and determine the case ex parte, or issue his warrant for apprehending such person and bringing him before himself or some other justice of the peace, or the justice before whom the charge shall be made, may if he shall so think fit, without any previous summons (unless where otherwise specially directed), issue such warrant; and the justice before whom the person charged shall appear or be brought, shall proceed to hear and determine the case."

to answer the information and complaint of one Jos. Reeves, charging them with stealing one ash tree, of the value of 1s., the property of one E. F. Middleton. In pursuance of this summons, the plaintiff alone appeared on the day and at the time and place indicated therein; Mr. Dashwood, Mr. Newman, and another justice, being then assembled at petty sessions.

When the case was called on, Mr. Dashwood was on the bench, but did not take any part in the proceedings, which were conducted before Mr. Newman, who, having heard evidence, convicted the plaintiff; and the conviction was drawn up in the following form :

"County of Be it remembered, that on the 21st day of February, 1845, Bucks. Jat Chipping Wycombe, in the county of Bucks, Wm. Tarry, of the parish of Hughendon, in the county of Bucks, is convicted before me, John Newman, Esq., one of her Majesty's justices of the peace for the said county, for that he, the said Wm. Tarry, on the 9th of February, in the year aforesaid, at the parish of H., in the said county of Bucks, one ash tree, of the value of 1s. at the least, the property of E. F. M., Esq., then and there growing, unlawfully did steal, take, and carry away, against the form of the statute in such case made and provided. I, the said J. N. do therefore adjudge the said W. T., for the said offence (the same being his first offence) to forfeit and pay, over and above the value of the said tree so stolen as aforesaid, the sum of 5s., and for the value of the said tree so stolen as aforesaid, the further sum of 1s., and also to pay the sum of 17. 4s. 6d. for costs, to be paid on or before the 19th day of March next; and, in default of payment of the said sums, to be imprisoned in the house of correction at Aylesbury, in and for the said county of Bucks, and there kept to hard labour for the space of one calendar month, unless the said sums shall be sooner paid; and I direct that the said sum of 5s. shall be paid to one of the overseers of the poor of the said parish, in which the said offence was committed, to be by him applied according to the directions of the statute in that case made and provided; and that the said sum of 1s. shall be paid to the said E. F. M., as the party aggrieved by the said offence, who has not been examined in proof of the same; and I do order that the sum of 17. 4s. 6d. shall be immediately paid to Jos. Reeves, the complainant. "Given under my hand and seal, the day and year first above mentioned. "JOHN NEWMAN." (L. S.) The plaintiff was afterwards committed to prison under the following

warrant :

، County of Bucks, ( To the constable of the parish of Chipping Wycombe, to wit. in the county of Bucks; and to the keeper of the House of Correction at Aylesbury, in the said county.

"Whereas Wm. Tarry, of the parish of Chipping Wycombe, in the said county, labourer, is convicted before me, John Newman, one of her Majesty's justices of the peace in and for the county of Bucks, upon the oath of J. Reeves and others, in the parish of Hughendon, in the said county, for that he the said William Tarry did, on the 9th of February last, at the parish of Hughendon, in the said county, steal, take, and carry away, one ash tree, from a certain place called Green Hill, in the parish of Hughendon, in the said county, then and there growing, of the value of 1s., the property of E. F. M., Esq., contrary to the form of the statute in such case made and provided; and then I, the said justice, adjudged the said W. T. to forfeit and pay for his said offence (the same being his first offence) the sum of 5s., over and above the value of the article so stolen as aforesaid, and for the value of the said article so stolen the sum of 1s., and also to pay the sum of 17. 4s. 6d. for costs; and I directed that

the said sum of 5s. should be paid to one of the overseers of the poor of the parish last aforesaid, in which the said offence was committed, to be by him applied according to the directions of the statute in such case made and provided; and the said sum of 1s. to be paid to E. F. M., Esq., the party aggrieved by the said offence, who was not examined in proof of the same; and that the said sum of 17. 4s. 6d. for costs should be paid to the said J. R., the complainant. And whereas the said W. T. has made default in payment of the said sums, these are therefore to require you, the said constable, to apprehend and forthwith to convey the said W. T. to the said house of correction, at Aylesbury, in the county of Bucks, and deliver him to the keeper thereof, together with this precept. And you, the said keeper, are hereby commanded to receive the said W. T. into your custody in the said house of correction, there to be imprisoned and kept to hard labour for the space of one calendar month, unless such sums as aforesaid shall be sooner paid and satisfied; and for your so doing this shall be your sufficient warrant.

"Given under my hand and seal, this 20th day of March, 1845. "JOHN NEWMAN." (L.S.) Numerous objections were taken on the part of the plaintiff, at the trial, to the validity of these proceedings, but all the material points were urged in the following argument. In last Easter Term, Byles, Serjt., obtained a rule nisi to set aside the verdict found for the plaintiff, and to enter a verdict for the defendant. Against which rule,

O'Malley now shewed cause. This conviction is bad upon several grounds. 1st. It appears that the party complainant and the party aggrieved are different persons, whereas the statute requires that the proceedings shall be commenced upon the information and complaint of the party aggrieved. Section 68 shews this, because it provides that "where any person shall be summarily convicted, before a justice of the peace, of any offence against this Act, and it shall be a first conviction, it shall be lawful for the justice, if he shall so think fit, to discharge the offender from his conviction, upon his making such 'satisfaction to the party aggrieved for damages and costs, or either of them, as shall be ascertained by the justice." But if the proceedings under the Act may all take place behind the back of the party aggrieved, and at a time, therefore, when the party aggrieved might not be in a condition to accept satisfaction, the party convicted would be altogether deprived of the benefit of this provision, and the object of the legislature would be entirely defeated. On the other hand, unless the party aggrieved is the complainant, the danger of collusion, for the purpose of securing the protection of the 70th clause, (a) would be very great. [ALDERSON, B. referred to section 66, by which it is provided that every sum of money forfeited for the value of property stolen shall be paid to the party aggrieved, if known, but if unknown, shall be applied as a penalty.] That section cannot apply to this case, because here the conviction itself shews that the party aggrieved is known; and that appearing, he ought to have made the complaint. R. v. Corden (4 Burr. 2279) and R. v. Daman (2 B. & Ald. 378) are authorities in support of this view. In the former, the conviction took place upon 5 Geo. 3, c. 14, s. 3, an Act "for the more effectual preservation of fish in fishponds and other waters;" and the Court, holding the conviction bad, said, "Here is no complaint from the

(a) Sect. 70. "In case any person convicted of any offence punishable upon summary conviction by virtue of this Act, shall have paid the sum adjudged to be paid, together with costs under such conviction, or shall have received a remission thereof from the Crown, or shall have suffered the imprisonment

awarded for non-payment thereof or the imprisonment adjudged in the first instance, or shall have been discharged from his conviction in the manner aforesaid (i. e. by s. 68), in every such case he shall be released from all further or other proceedings for the same cause."

owner, nor does it even appear to have been without his consent. It ought at least to appear that it was without his consent. This is plainly implied in the Act of Parliament; the giving the penalty to the owner shews it." But in the present case there is much more than the merely giving a penalty to the owner. So in R. v. Daman, which was the case of a conviction under the same statute, for destroying, with a net, fish in inclosed grounds, being private property, the Court held that that Act of Parliament, giving a penalty to the owner, required the information to be in the name, or at the instance, of the party grieved, and that that must appear both in the information and in the evidence stated in the conviction. In Midelton v. Gale (8 Ad. & E. 155), the Court came to a different decision upon the construction of stat. 1 & 2 Wm. 4, c. 32, s. 30; but there were in that case no such provisions as in the 68th and 70th sections of this Act. 2ndly. The case ought to be heard and decided by the magistrate to whom the complaint is made. In the present case that course has not been pursued. Mr. Dashwood received the complaint and issued the summons; he therefore had possession of the case, and, as the plaintiff appeared in obedience to the summons, no other magistrate had jurisdiction over the matter. It is true that the 66th section directs that if the party summoned shall not appear, the justice may issue a warrant for apprehending and bringing him before himself or any other justice, or the justice before whom the charge is made may issue such warrant in the first instance; but the proceeding in this case was by summons under the earlier part of that section, and the summons required the plaintiff to appear before Mr. Dashwood, who issued it. This case, therefore, falls within the decision in Jones v. Gurdon (2 Q. B. 600), where the question turned upon stat. 52 Geo. 3, c. 93, sched. (L), rule 13; and the Court said, "The words are that it shall be lawful for any one justice, being also a commissioner, to summon the person accused to appear before him" (not adding "or any other justice and commissioner," or any equivalent words), "and upon appearance or default, to proceed. We are of opinion that this rule does not authorize any justice to hear the matter except that one to whom the information or complaint is made." In Reg. v. Ellis (2 Dowl. N. S. 361, 375; 12 L. J. M. C. 25), where justices had refused to issue a distress warrant for enforcing payment of poor-rates, Patteson, J. said, "The fifth objection was, that as to the last refusal the magistrates had no jurisdiction, because the matter was already before the bench of magistrates at Skipton; and R. v. Sainsbury (4 T. R. 451), and other cases, were cited to shew that where one set of magistrates have possession, as it were, of a case, others cannot interfere. This is very true as a general rule;" and the learned judge then proceeded to distinguish the case then before the Court. R. v. Willcock (1 New M. C. 306; 1 New S. C. 651; 14 L. J. M. C. 104) also supports the view now suggested. In R. v. Wroth (1 New S. C. 494; 2 D. & L. 729), S. C. nom. R. v. The Justices of Bucks (1 New M. C. 192), the application for a summons under the Bastardy Act, 7 & 8 Vict. c. 101, was made to one justice, and the order of affiliation by two other justices. Lastly, the statute does not authorize the justice to imprison for non-payment of costs, but only for non-payment of the penalty and damages; and the conviction, therefore, is bad for directing, that "in default of payment of the said sums," the plaintiff is to be imprisoned. [PARKE, B.— The order to pay costs may be read as in a parenthesis. ALDERSON, B.And then the said sums would refer only to the 5s. penalty and the 1s. damages.] That is not the plain meaning of the language used; but, assuming that it could be so understood in the conviction, the commitment is not capable of the same explanation, for there the words, "whereas the said

W. T. has made default in payment of the said sums," clearly refer to the amount of costs as well as the other sums. In the Justice of the Peace (vol. 9, p. 335) there is the following note of a case of Ward v. Rolfe, tried at the Norwich Spring Assizes, 1845:-"This was an action of trespass against a magistrate for a conviction under the Malicious Trespass Act, 7 & 8 Geo. 4, c. 30, s. 20; and Baron Parke decided, as the section under which the plaintiff was convicted did not in express terms give the magistrate power to award costs, that the magistrate had no power to commit the plaintiff till he should pay the costs as well as the penalty. The learned baron intimated that the magistrate might give costs by virtue of the provisions of 18 Geo. 3, c. 19, s. 1, in cases in which he convicts under 7 & 8 Geo. 4, c. 30; but under 18 Geo. 3, c. 19, s. 1, the justice had no power to commit upon non-payment of the costs, unless the party against whom he awards costs has no goods upon which they can be levied by distress; and as forms are given in 18 Geo. 3, c. 19, there could be no difficulty in giving costs under that statute."

Worlledge, contrà.-1. There is nothing in this Act of Parliament to shew that the original information must be laid by the party aggrieved; on the contrary, the words of the 65th section are quite general, that "where any person shall be charged on the oath of a credible witness," and the 66th section proves conclusively, that the legislature contemplated cases in which the informant and the party aggrieved might be different persons. The 63rd section favours this construction; and the 68th section is not inconsistent with it, because the offender might be discharged upon making satisfaction to the party aggrieved, although the party aggrieved should not be the complainant. The cases cited are quite distinguishable. In R. v. Corden, the Court held that the conviction shewed no offence; because it charged the defendant with fishing in private waters, and did not negative the owner's consent; so that, consistently with all that was stated in the conviction, the conduct of the defendant might have been perfectly innocent; and in R. v. Daman, the Act authorized the party aggrieved to recover the penalty either by action, or summarily by information, and the Court therefore thought that as, if an action were brought it must be brought in his name, so the summary proceedings must be set on foot in his name, or at his instance; but Midelton v. Gale (8 Ad. & Ell. 155) is a distinct authority for the defendant. The 66th section of the Act points out the application of forfeitures and penalties; and the justices were bound, in their conviction, to direct the application according to that section. (Griffith v. Harries, 2 M. & W. 335.) In so doing they have exactly followed the form given by section 71. 2. This statute merely requires that the party charged shall be summoned by a magistrate to answer the charge; it gives no direction that the magistrate who summons shall also hear the case; and there is no principle of common law by which that is required. (Jones v. Gordon, 2 Q. B. 600, per Lord Denman, C.J.) [Upon the last point he was stopped by the Court.]

POLLOCK, C. B.-The questions raised in this case turn entirely upon the construction of the statute 7 & 8 Geo. 4, c. 29, by the 39th section of which the offence is created. Several objections were made to the conviction. The first is, that the information and complaint must be made before the magistrate by the party grieved; but there is no foundation for that objection in the words of the Act. If the legislature had so intended, that intention might easily have been expressed; but the 39th section itself is quite general; and the 65th, which points out the mode of proceeding, directs the magistrate to summon any person charged upon the oath of a credible witness. So far, therefore, there is no limitation as to the party making the charge; but then