Lord ELLENBOROUGH, C. J. When the conviction is produced at the trial as of the date when it took place, it would so appear; and it still comes to the same question, whether the Court in a collateral inquiry will look out of the record of conviction for the time when it took place but I think that we ought to give credit to it. Then as to the objection upon the stat. 43 G. 3. c. 141. to the form of the action, that act applies only to the case of a conviction quashed. Magistrates were before protected in an action of trespass by a subsisting conviction good upon the face of it; and the act meant to protect them still further to a certain extent in a case where before they were left unprotected by the quashing of the conviction. Even before this statute, I had always considered that if a conviction were produced at the trial which would justify the imprisonment, that was sufficient. It was next contended on the part of the plaintiff, that the justices in this case had no jurisdiction, and therefore that the conviction was a nullity: and Crepps v. Durden (a) was referred to, where trespass was maintained against a magistrate, who had convicted a baker by four several convictions, each in the penalty of 5s., for exercising his business on the same day, being a Sunday, when the act which gave the penalty had only made the exercising of any such calling on the Lord's day one entire offence, whether done in one or more instances on the same day. But Lord Ellenborough, C. J. and Bayley, J. observed, that the objection in that case had appeared upon the face of the four convictions given in evidence, which shewed that the plaintiff had been con 1812. GRAY against COOKSON and Another. (a) Cowp. 640. 1812. GRAY against COOKSON and Another. victed of four several offences in exercising his calling of a baker on the same Sunday, when by law he could only be convicted of one such offence on the same day. By collating and bringing together the four convictions, it appeared that the justice of peace had exercised a jurisdiction in respect of three of the convictions, which was not given to him by any law; for after the first conviction he was functus officio. The Court therefore desired Hullock to confine his objections to such as appeared upon the face of the present conviction. Hullock then objected, first, that the stat.20 Geo. 2. c. 19. s. 4. on which the conviction was founded, was impliedly repealed by the stat. 6 Geo. 3. e. 25. s. 1. giving to the master of an apprentice absenting himself from his master's service a different compensation; upon the principle of the case of John Caruthers (a), that an affirmative statute, giving a new rule, repeals a prior statute concerning the same matter. Secondly, that the indenture of apprenticeship not being for 7 years as required by the stat. 5 Eliz. c. 4. was void, and not merely voidable. But if voidable, then, thirdly, that it had been avoided by the apprentice, the plaintiff having quitted his master's service: for which Guppy v. Jennings (b) was cited. These three objections were afterwards stated and answered fully by the Court, which makes it unnecessary to say more of them in this place. But during the discussion upon the last point, Hullock was desired by the Court to point out the particular act of avoidance on which he meant to rely: to which he answered at first, that when the apprentice was before Mr. Cookson the magistrate, he was asked (a) 9 East, 44. The general rule is laid down in Harcourt v. Fox, 1 Show. 520, there referred to. (b) 1 Anstr. 256. whether whether he would return into his master's service, which he refused to do; and this, Hullock contended, was an election by the apprentice to avoid the indenture, which avoidance he might originate before the magistrates, independently of the prior act of leaving his master, for which he was then questioned, and which he insisted upon his right to do by virtue of the agreement between him and his master indorsed upon the indenture. [Lord Ellenborough, C. J. asked how his refusal to return to his master when asked by the magistrates, which did not appear upon the face of the conviction, could be taken notice of by the Court as an original avoidance of the indenture? He observed that the case of Crepps v. Durden was only an authority for noticing what did appear upon the face of the conviction. The plaintiff might certainly shew that the magistrates had no jurisdiction, by any matter which appeared upon the face of the conviction.] In Welsh v. Nash (a) it was said by Lawrence, J. that the justices cannot give themselves jurisdiction in a particular case by finding that as a fact, which is not the fact: and the Court there held that the action of trespass lay against the party who justified under an order of justices for diverting a highway. [Bayley, J. That was the case of an order of justices, and not of a conviction. The only act of avoidance relied on by the apprentice before the magistrates was the prior act of leaving his master's service, and neglecting to return when called upon; for which he was then questioned upon the complaint of his master, as stated in the conviction.] In this stage of the argument it seemed to be the opinion of the Court that Hullock could not rely on any act of avoidance (a) 8 East, 394. 403. 1812. GRAY against COOKSON and Another. 1812. GRAY against COOKSON and Another. which did not appear upon the face of the conviction: upon which he said, that as he was concluded from adverting to any fact not stated in the conviction, he should contend that the plaintiff had not contracted any engagement to do away the effect of the conditional avoidance of the indenture, indorsed by mutual consent upon it; which made the fourth point reserved by the Court for consideration. Curia adv. vult. Lord ELLENBOROUGH, C. J. This was a motion for a new trial, which was argued on the part of the defendant in support of the rule for the new trial, on Saturday. The defence made below to the action of trespass and false imprisonment, in which the plaintiff had recovered a verdict against the defendants for 1207., was founded on a conviction of the plaintiff by the defendants, who in their character of aldermen are justices of peace for the town and county of Newcastle-uponTyne, and which conviction was given in evidence by them on the general issue, under the stat. 7 Jac. 1. c. 5. The conviction was founded upon the stat. 20 G. 2. c. 19: s. 4. empowering two or more justices, upon application or complaint upon oath, by any master or mistress against any such apprentice, (i. e. by reference to the 3d sect. such apprentice upon whose binding out no larger a sum than 57. of lawful British money was paid; which was the case here, as nothing was taken with the apprentice,) touching or concerning any misdemeanor, miscarriage, or ill-behaviour in such his or her service; (which oath such justices are thereby empowered to administer;) to hear, examine, and determine the same, and to punish the offender by commitment to the house of correction, &c.. &c. for a time not exceeding one calendar month. The first question which was argued in this case was whether this provision of the stat. 20 Geo. 2. c. 19. was repealed by implication by the stat. 6 Geo. 3. c. 25. s. 1., which empowers the justices to oblige such apprentices, absenting themselves before the expiration of their apprenticeships, to serve for such time as they shall be absent, or to make satisfaction for their absence; or, in default of giving security for such satisfaction, to commit them. But we thought that the remedy given by this statute to the master for the loss of his apprentice's service was cumulative, and did not repeal the penal provision of the stat. 20 G. 2. c. 19. as applied to the misdemeanor itself. It was then contended that the conviction was bad, for want of any jurisdiction in the defendants, the convicting justices, on another ground, namely, that the indenture of apprenticeship was not warranted by the stat. 5 Eliz. c. 4., under which the binding took place, not being for a term of 7 years, as required by the 26th sect. of that statute, and all other indentures made otherwise than by the statute is limited, being declared by s. 41. of that statute to be "void in law to all intents and purposes." Perhaps, in order to raise this objection, it should properly have appeared on the face of the conviction, that the indenture was in fact made for a less term than 7 years: which no where appeared. It may however be inferred from the conduct of the parties; the one of whom insisted upon an avoidance of the indenture by the act of the parties; the other resisting such avoidance; thereby by their mutual consent admitting that the indenture was in its original frame a voidable instrument. And it was admitted by the plaintiff's counsel, on the authority of The King v. The Inhabitants of 1812. GRAY against COOKSON and Another: St. |