Re William Baker
| Jurisdiction | England & Wales |
| Judgment Date | 02 June 1857 |
| Date | 02 June 1857 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 92
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 26 L. J. M. C. 1553 Jur. (N. S.) 514 in Queen's Bench, 7 E. & B. 697. Dissented from, Whittle v. Frankland, 1862, 2 B & S. 49. Discussed, Unwin v. Clarke, 1866, L. R. 1 Q. B. 423. Referred to, In re Authers, 1889, 22 Q. B. D. 350.
92 IN RE BAKER 2 H. & N 219. [219] exchequer reports. trinity term, 20 vict. in re william baker June 1, 2, 1857-B. agreed with H & Co. to serve them as a potter from the llth Nov. 1856 till the llth Nov. 1857. He entered the service, but a dispute having arisen between him and his employers as to his wages, he left the service on the 10th March, 1857. On the 18th March he was convicted by a justice of the peace for unlawfully absenting himself from his employer's service, and sentenced to one month's imprisonment, with hard labour, in the House of Correction. On the 17th April he was discharged from prison, and on the 29th was requested by H. & Co. to return to their service, but refused. On the 13th May he was again convicted by a justice, on a charge of unlawfully absenting himself from the'service of H. & Co., and sentenced to one month's imprisonment, with hard labour, in the House of Coriection A writ of habeas corpus having issued, the governor of the House of Correction returned that he held B. in custody under the wariant of a justice, which after reciting that complaint on oath hath been made to him that B. on the llth November last contracted and agreed with H & Co to serve them as a potter, in their business as potters, until the llth November next, and "having entered upon and worked under such agicement, and the term of his contract being unexpired, the said B. did on the 29th April last unlawfully misdemean and misconduct himself in his said service by neglecting and absenting himself from his said master's service without the leave of his said master, contrary to the provisions of the statute in such case made and provided. And, whereas the said B. being now brought before me the said justice to answei the said complaint, and I having duly examined into the nature thereof : Do adjudge the said complaint to be true, it appearing to me as well upon the examination on oath of M. in the presence of the said B. as otherwise, that the said B having contracted as aforesaid to serve the said H. & Co as a potter in their business of potters, and the term of his contract being unexpired, did on the 29th of April last misdemeau and misconduct himself in his said service, by neglecting and absenting himself from his said master's service without the leave of his said master: I do therefore convict him the said B. of the said offence, and do order and adjudge that the said B. for his said offence be committed to the House of Correction at S., there to remain and be held to hard labour for the space of one calendar month These are therefore to command you," &c.-Held : First, that, assuming the contract was dissolved by the conviction, affidavits might be used for the purpose of shewing that the absenting in respect of which the second conviction took place was the not returning to the service after the expiration of the imprisonment under the first conviction, for in that case the justice had no jurisdiction : Per Pollock, C. B, and Watson, B , Martin, B , dubitante, Bramwell, B , dissentiente -Secondly : That the contract was not dissolved by the first conviction : Per Bramwell, B., and Watson, B.; Pollock, C. B , dissentiente, Martin, B , dubitante -Thirdly : That the conviction was not open to the objection that it did not affirmatively appear that B. had entered the service, or to the objection that the adjudication was made on evidence other than that taken in the presence of B.: Per totam Curiam. -Fourthly. That the conviction was bad, inasmuch as the justice had not adjudicated as to an abatement of wages during the period of imprisonment: Watson, B., dissentiente. [S. C. 26 L. J. M. C. 155, 3 Jur. (N. S.) 514 in Queen's Bench, 7 E. & B. 697. Dissented from, Whittle v. Fiankland, 1862, 2 B & S. 49 Discussed, Uuwm v. Glaike, 1866, L. R. 1 Q B. 423. Referred to, In re Anthers, 1889, 22 Q B. D. 350.] Scotland (May 29th) had obtained a rule for a writ of habeas corpus to issue, directed to the governor of the [220] County prison at Stafford, to bring up the body of William Baker. The application was made on an affidavit (a) which stated that Baker had entered into an agreement with Messrs. Hawley to serve them as a potter from the llth of November, 1856, till the llth of November, 1857 , that he entered (a) The Court intimated a doubt whether the affidavit could be used, but expressed a wish to hear the point argued. 2 H. & N 221. IN RE BAKER 93 on the service under the agreement, but a dispute having arisen between him and his employers as to his wages, he left the service on the 10th of March, 1857. On the 18fch of March, 1857, he attended before h justice of the peace, in obedience to a previous summons, on a charge of unlawfully absenting himself from the service of his employers on the 10th of March, and was convicted and sentenced to one month's imprisonment with hard labour in the House of Correction. He underwent the sentence, and on the 17th of April was discharged from prison, when he entered the service of another person. On the 29th of April he was requested by Messrs. Hawley to return to their service, but he refused. On the 13th of May he was again brought before a justice of the peace, on a charge of having unlawfully absented himself from the service of Messrs. Hawley on the 29th of April, and was convicted and sentenced to one month's imprisonment, with haid labour, in the House of Correction, under which sentence he was in prison In the present term (May 27), Scotland made a similar application to the Court of Queen's Bench for a writ of habeas corpus, to bring up the body of William Baker, but that Court refused to grant the application On the 1st June the prisoner was brought before this Court, in obedience to the writ of habeas corpus, by the governor of the prison, who returned that he held him in custody under the following warrant of commitment:- [221] County of Stafford, to wit -To all constables, &c., and to the keeper of the House of Correction at Stafford, 01 his deputy. Whereas, complaint upon oath hath been made unto me, Thomas Baily Rose, Esquire, one of her Majesty's justices of the peace acting in and for the county of Stafford, by James Mayer of, &c., agent for Felix Hawley and others of, &c., potters; that William Baker, late of Langton in the said county, potter, did on llth day of November last, contract and agree with the said Felix Hulme Hawley and his copartners to serve them as a potter in their business of potters at the parish of Stoke-upon-Trent in the said county under a written contract for a certain time (to wit), until the llth day of November next, And h.iving entered upon and worked under such agreement and the teim of his contract being unexpired, the said William Baker did, on the 29th day of April last, unlawfully misdemean and misconduct himself in hia said service by neglecting and absenting himself from his said master's service without the leave of his said master, without having given to his said master any notice thereof, and without any sufficient reason for so doing, contrary to the provisions of the statute in such case made arid provided And, whereas the said William Baker being now brought before me the said justice, in pursuance of my wairant issued against him to answer to the said complaint, and I having duly examined into the nature thereof Do adjudge the said complaint to be true, in appearing to me as well upon the examination on oath of the said James Mayer in the presence of the said William Baker, as otherwise, that the said William Baker having contracted as aforesaid to serve the said Felix Hawley and his copartners as a potter in their business of potters, and the teim of his contract being [222] unexpired, did on the 29th day of April last misdemean and misconduct himself in his said service, by neglecting and absenting himself from his said master's service without the leave of his said master, and without giving to his said master any notice thereof, and without any sufficient reason for so doing. I do therefore convict him the said William Baker of his said offence, and do order and adjudge that the said William Baker for his said offence be committed to the House of Correction at Stafford aforesaid, there to remain and be held to hard labour for the space of one calendar month These are therefore to command you the said constable forthwith to convey the said William Baker to the House of Correction at Stafford aforesaid and deliver him to the keeper thereof together with this warrant. And I do hereby command you the said keeper to receive the said William Baker into your custody in the said House of Correction at Stafford aforesaid, there to remain and be held to hard labour for the space of one calendar month from the date hereof, and for your so doing this shall be to you and each of you a sufficient warrant Given under my hand and seal this 13th day of May, A.D. 1857, at Langton in the said county. (Signed and sealed) thos. B rose. Scotland (with whom was Wheeler) moved for the prisoner's discharge. First, 94 IN RE BAKER 2 H ft N 223 affidavits may^he used for the purpose of shewing that the justice had no jurisdiction. In\r& Bailey (3 E & B. 607) is an express authority to that effect Theie the prisoner had been convicted under the 4 Geo 4, c, 34, and on an application for his discharge, Lord Campbell, C. J., said -" I think that the prisoner may use affidavits to shew that there was no evidence before the [223] justice from which he could reasonably infer that there was a contract creating the relation of master and servant, as that would shew that there was no...
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