Brittain v Kinnaird and Another
| Jurisdiction | England & Wales |
| Judgment Date | 24 November 1819 |
| Date | 24 November 1819 |
| Court | Court of Common Pleas |
English Reports Citation: 129 E.R. 789
IN THE COURT OF COMMON PLEAS, AND OTHER COURTS
S. C. 4 Moore, 50; at Nisi Prius, Gow, N. P. 164. Referred to, Foster v. Dodd, 1867, L. R. 3 Q. B. 76. Adopted, Usill v. Hales, 1878, 3 C. P. D. 324. Referred to, Huxley v. West London Extension Railway, 1886-89, 17 Q. B. D. 378; 14 App. Cas. 26. Distinguished, R. v. Farmer, (1892) 1 Q. B. 639. Referred to, Livingstone v. Westminster Corporation, (1907) 2 K. B. 119.
brittain v. kinnaird and another. Nov. 24, 1819. [&. C. 4 Moore, 50; at Nisi Prius, Gow, N. P. 164. Referred to, Foster v. Dodd, 1867, L. R. 3 Q. B. 76. Adopted, I/sill v. Hales, 1878, 3 C. P. U. 3^4. Raferred to, Huxley v. We&i London Extension Railway, 1886-89, 17 Q. B. D. 378; 14 App. Gas. 26. Distinguished, B. v. Farmer, [1892] 1 Q. B. 639. Raferred tu, Livingstone v. Westminster Corporation, [1907 j 2 K. B. 119.] In trespass against magistrates for taking and detaining a vessel, a conviction by the defendants, under the Bum-boat act, (no defect appearing on the face of the conviction), is conclusive evidence that the vessel in question is a boat within the meaning o| the act, and properly condemned.-In an action against a magistrate, a conviction by him, if no defect appear on the face of it, is conclusive evidence of the facts contained in it. , Trespass for seizing and taking possession of a certain vessel, called the " Phoenix," and detaining the same, with her masts, &c., and 5001bs. of weight of gunpowder. Pba, general issue. At the trial before Dallas C. J. at the sittings after Trinity term, 1819, it appeared [433] that the vessel in question, which was decked, and of the burthen of thirteen tons, was seized by the defendants, as magistrates, under the Bom-boat act (2 Geo. 3, c. 28). The Plaintiff was about to offer evidence, that the vessel in question was not a boat within the meaning of the act, when it was objected by the counsel for the Defendants, that the conviction was the only admissible evidence of what the magistrates had determined, and was conclusive as to the subject matter of that determination. The Chief justice coinciding in that opinion, the conviction was put in, and appeared to be a conviction under the stat. 2 G. 3, c. 28, for thai "the Plaintiff unlawfully had in his possession in a certain boat in the river Thames certain stores; to wit, 3501bs. weight of gunpowder, and 581bs. weight of ball cartridges, which had then lately been unlawfully procured from and out of a ship or vessel in the said river Thames." His lordship being of opinion, that the conviction wa a conclusive defence to the action, directed a nonsuit, reserving the point. Accordingly, Vaughan Serjt., on a former day, had obtained a rule nisi for a new trial, on the ground that he magistrate had, by the act, no power to take any thing but a boat; tbat he had no right to assume to himself a jurisdiction by calling that a boat which 790 BRITTAIN V. KINNAIRD l BROD. & B. 434. was in truth a vessel; and that he could not, by the terms of his conviction, exclude a party from raising the question on the subject matter of it: the learned serjeant cited Damon v. Gill (1 East. 64), and Welch v. Nash (8 East. 394) in support of his motion. Lens Serjt. now shewed cause. The only mode of getting rid of a conviction is by appeal 01? certiorari: as long as a conviction remains unquashed, it is conclusive of the facts stated in it. Whether the subject [434] matter of this conviction were a boat or not, was the very question to be decided before the magistrate, and upon which his decision was final. Even if the magistrate, contrary to all law and fact, had corruptly stated that to be a boat which was clearly a ship, the Plaintiff's remedy would be by information, not by action. Had a want of jurisdiction, or other defect, been apparent on the face of the conviction, the case might be otherwise; but while the conviction remains unimpeached, the merits of the case cannot form the subject of enquiry by action. Vaughan and Lawes Serjts. in support of the rule. The question to be decided, iti reality, amounts to this, whether, in cases of summary convictions, where neither appeal nor certiorari is allowed, such convictions are to be deemed conclusive of the facts stated in them; and whether the party, who feels himself aggrieved, is precluded from shewing, that the convicting magistrate had no jurisdiction. In such cases, if the party is not allowed to shew that the facts, on which jurisdiction is...
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