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GRAY against COOKSON, and Another.

castle, where he was carrying on the business of a
woollen draper.

The following exhibits were also

1. An indenture of the 16th of June 1808, between the plaintiff, a minor, and his father, of the one part, and William Spencer, of the town and county of Newcastle-upon-Tyne,woollen draper, of the other part; whereby the plaintiff, with the consent of his father, bound himself an apprentice to Spencer in his trade for 3 years and 9 months from the day of the date, to become void on the death of the father before the end of that period. On the 17th of April 1809, the following indorsement was put upon the indenture : “I agree to cancel this indenture as against John Gray and William Gray his son, provided the said William Gray makes no engagement or enters into any person's service in the town of Newcastle-upon-Tyne: in sach case this indenture to remain valid, and the present agreement to be void. As witness my hand this 17th of April 1809. William Spencer.2. A notice from Spencer after that indorsement, and after the plaintiff had set up in business in Newcastle, but before the application to the magistrates, requiring the plaintiff to return to him and serve out the remainder of his time. 3. The information and complaint upon oath of Spencer, taken before the defendants on the 17th of January 1810, stating that the plaintiff, his indentured apprentice for a term not expired, had in his service been guilty of divers misdemeanors, miscarriages, and illbehaviour towards the informant; and particularly that the plaintiff had absented himself from the service of the informant without his consent and without just cause. (Upon which the defendants, on the same day, issued their warrant for the plaintiff's apprehension to answer



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that complaint, which was also in proof.) 4. The con 1812. viction, bearing date the 17th of January 1810; which stated that on that day W. Spencer came before the de

against fendants, justices, &c. and informed them that W. Gray, and Another. the indentured apprentice of the informant for a term yet unexpired, had in his service been guilty of divers misdemeanors, miscarriages, and ill-behaviour towards the informant, and particularly that he W. G. had absented himself from the service of the informant, without his consent, and without just cause. Whereupon W. Gray afterwards on the said 17th January 1810, being duly brought before the said justices in the presence of W. Spencer to answer and make his defence to the charge, &c. admitted that he had absented himself from the service of the said W. S., but said further in his defence that the indenture of apprenticeship, under which he was so bound, had been agreed to be cancelled, and that the said W. S. had agreed to let him leave his service, and had repeatedly told him that he W. S. had far too many people in his shop, a great many more than he had employment for, and had often expressed to him W. G. that he might have his liberty; on account of which they had agreed to part. And W. G. produced an unstamped indorsement, signed by W. S., but not sealed, made on the said indenture of apprenticeship (which was set out). The conviction then stated, that it appeared to them (the justices) by the indenture, that no sum was paid to Spencer; and that Spencer deposed that W. G. had made an engagement in the town of Newcastle-upon Tyne by setting up the trade there of a woollen draper. Whereupon the justices convicted W. Gray of the offence charged against him, according to the form of the statute, and adjudged him to be committed to the house of correction in and for Vol. XVI. С



GRAY against COOKSON and Another.

the said town and county for one calendar month. And he was accordingly committed on the same day. 5. The second warrant of commitment spoken of as having been received by the keeper of the house of correction on the 20th of January 1810; which bore date as of the 17th, the day on which the plaintiff was committed.

The learned judge, on summing up the evidence to the jury, advised them, if they found for the plaintiff, (as he thought they should, subject to the question of law,) to give moderate damages, as there was no reason to suppose that the defendants had acted intentionally wrong; and they found a verdict for the plaintiff with 1201. damages.

This case was discussed upon a motion for setting aside the verdict and entering a nonsuit, or for granting a new trial; which was made in last Michaelmas term by Topping on behalf of the defendants, and was now supported by Clayton, Serjt., Richardson, and Cookson ; and opposed by Hullock for the plaintiff; in which several points were made. First, it was contended on the part of the defendants, that the production of a subsisting conviction was conclusive in an action of trespass, particularly since the st. 43 G. 3. c. 141.; which, assuming that a subsisting conviction would protect the convicting magistrates in a collateral action, provides that even in the case of a conviction quashed, they shall only be liable to damages in an action on the case. For the general point the case of Strickland v. Ward (a) was

(a) Winchester summer assizes, 1767, coram Yates, J. cited in Lorelace v. Curry, 7 Term Rep. 633, 4, vide note (d), in Massey v. Johnson, 12 East, 74.


referred to; and Massey v. Johnson (a) for the construc 1812. tion of the statute. And it was insisted that to make

GRAY convicting magistrates trespassers, it must be shewn that


COOKSON they had no jurisdiction as to the subject-matter of the

and Another. conviction ; for if they had, their judgment was decisive on the fact.” But if there were any doubt of this, the action of trespass, they intended, was taken away by the late statute, which, though it only provides in terms for the case where a conviction shall have been quashed, yet must necessarily be taken to extend to all cases where á magistrate, having power to convict, had actually made a conviction; otherwise he would be placed in a better condition where his conviction, being bad, had been quashed, than where he had made a good conviction; a distinction which the legislature could never have contemplated. With respect to the period when the conviction was formally drawn up, after it had been in fact made, it was not considered in Massey v. Johnson as material; but that it was sufficient to draw it : up at any time before it was given in evidence in defence of the magistrates in any collateral proceeding, On the other hand, it was insisted that the conviction, shewn to have been drawn up in its present form so long after the time when it purports to have been made, and after proceedings had upon the commitment in execution of it before this Court, was too late, and could not be resorted to as evidence to defend the magistrates against this action. That though there was no time limited by statute for drawing it up, it ought to be done within a reasonable time, and at all events before the

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GRAY against CookSON and Apother.

next practicable quarter sessions after the adjudication to' which court all convictions were properly returnable (a) for the purpose of being filed. But if an indefinite time were to be allowed, no person would be safe in bringing an action, however informal the instrument under which he was committed, as a more regular conviction might afterwards be drawn up, and ante-dated to the time of the commitment. [Bayley, J. If the magistrate do not return his conviction to the sessions, may not the party apply for a mandamus?] That would not remedy the mischief in many cases. [Lord Ellenborough, C. J. The formal conviction, when issued, would properly bear date at the time when in fact it took place; and will not the Court give credit to it, as to a conviction made at that time, when produced in a collateral proceeding, such as the action of trespass, however they may inquire of the time upon any other occasion when the conviction is directly impeached.] The fact of the conviction itself is traversable, and therefore it is not strictly a record. Before the act of the 7 J. 1. c. (b) enabled justices of peace, sued for acts done by virtue of their office, to plead the general issue, they could only have justified specially by pleading all the facts necessary to shew a legal conviction, and that they thereupon convicted the plaintiff; and the plaintiff might have taken issue upon any one fact thus set out; and every fact necessary to prove the justification must have been shewn at the trial to have existed when the action commenced, amongst others, the conviction itself.

(a) Rex v. Eaton, 2 Term Rep. 285., and Rex v. Barker, 1 East, 188., were cited. (6) Made perpetual by 21 J. 1. c.12.


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