Gray against Cookson and Clayton

JurisdictionEngland & Wales
Judgment Date01 June 1812
Date01 June 1812
CourtCourt of the King's Bench

English Reports Citation: 104 E.R. 994

IN THE COURT OF KING'S BENCH

Gray against Cookson and Clayton

994 OKAY V. COOKSON 16 EAST, 13. £13] gray against cookson and clayton. Monday, June 1st, 1812. The stat. 20 G. 2, c. 19, s. 4, empowering justices of peace upon complaint made on oath by any master against his apprentice for any misdemeanor, miscarriage, or ill behaviour in his service, to hear and determine the offence, and commit the offender, is not repealed by stat. 6 G. 3, c. 25, s. 1, empowering the justices to oblige an apprentice absenting himself from his master's service to serve out, after the expiration of the apprenticeship, such time of absence, or to make satisfaction for it; and in default of such satisfaction, to commit the apprentice: for the remedy given to the master by the latter statute is cumulative to the punishment inflicted on the apprentice by the former statute for his offence. The statute 5 Eliz. c. 4, avoiding all indentures of apprenticeship other than for seven years, is to be construed as rendering indentures made for a less time voidable only, and not void. But such indenture cannot be avoided by the mere act of an apprentice absenting himself from his master's service, which is an offence under the stat. 20 Geo. 2, c. 19. And generally it seems that no act can be relied on as such an avoidance, in an action of trespass against the convicting magistrates, except it appears on the face of the conviction. So a refusal of the apprentice to return into the service of his master, when urged to it by the magistrates themselves in the course of the inquiry upon the complaint of the master, on a prior absenting himself by the apprentice from the service, is not available in support of such action against the conviction. But where the master had agreed by indorsement (unstamped) on the indenture to cancel it, "provided the apprentice made no engagement or entered into any person's service in the town of N.;" it was held that the apprentice setting up a trade for himself in N. was a breach of the condition, which entitled the master to reeal him back into his service. It seems also that if a conviction be good upon the face of it, the production and proof of it at the trial will justify the convicting magistrates under the general issue in an action of trespass, as well in respect of such facts therein stated as are necessary to give them jurisdiction, as upon the merits of the conviction. But the stat. 43 Geb. 3, c. 141, extends to protect magistrates against actions of trespass only in the case of a conviction quashed; giving to the party grieved a remedy by action on the ease. This was an action of trespass, in which the first count of the declaration charged that the defendants assaulted the plaintiff, and without reasonable or probable cause committed him to the house of correction, and kept him there until he sued out a writ of habeas corpus, by which he was removed from thence to and before the Court of K. B., and was afterwards by that Court discharged from the imprisonment; by means of which he was injured in his business of a woollen draper, and put to expense, &c. There were other counts, stating the assault and imprisonment more generally. The defendants (who were justices of the peace, acting as such in this transaction,) pleaded the general issue. [14] At the trial before Ghambre, J. at Newcastle, the plaintiff, a "woollen draper at Newcastle, after proving the regular notice to the defendants of the process, and the service of it within the time limited by law, proved the habeas corpus writ directed to the keeper of the house of correction, tested the 23d of January 1810, ~by virtue of which he was brought up before this Court, with the original warrant of his commitment for one calendar month, as an apprentice, for having absented himself without his master's consent. ' This warrant had been issued by the defendants, whose signatures to it were admitted; and on the production of it, this Court had before discharged the plaintiff. But it also appeared that after the first warrant of commitment had been delivered with the plaintiff to the keeper of the house of correction, on the 17th of January 1810, he had received another warrant of commitment on the 20th, and that he had both those warrants at the time of his bringing the plaintiff before this Court in obedience to the habeas corpus : but that in consequence of advice by the plaintiff's attorney, he had only produced to the Court the first warrant. It was also proved that when the parties were before the magistrates on the 17th of January, previous to the commitment, Spencer, the master of the apprentice Gray, insisted upon his return into his service for the remainder of his term; and that on the plaintiff's part it was insisted, that the indenture which had been laid before the defendants was at an end. That Mr. Cookson, the Mayor of Newcastle, then asked the plaintiff if he would return into Spencer's service; and he refusing, the first warrant 16 EAST," 15. GRAY V. OOOKSON 995 of commitment was filled up and executed, and the plaintiff was sent away in custody. At the close of this evidence it was objected, on the part of the defendants, [15] that an action of trespass was not maintainable since the st. 43 G. 3, c. 41 (a) which protects magistrates from actions in this form for mistakes committed by them in the execution of their duty : but the learned Judge, doubting whether the statute extended to this case, where there had been no conviction quashed, but the party had been discharged on the ground of the illegality of the warrant of commitment, issued without any information on oath in the presence of the party so committed, directed the cause to proceed; with liberty to the defendants to move the Court to enter a nonsuit. Thereupon the defendants called a witness, who produced the conviction (hereafter stated), which he also proved to have been drawn up and signed on the 10th of August 1810, after the commencement of this action, which was on the 16th of July preceding. It was also proved that Spencer, the master, was sworn to the truth of his information, upon his...

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