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1850.

of correction, for fourteen days, or until discharged by due course of law. On the 14th of November, instant, O'Neill was arrested upon a warrant issued upon that order, dated the 19th of October.

Ex parte O'NEILL.

Skinner, on a former day in this term, moved for a habeas corpus to bring up the prisoner to be discharged, on the ground that the warrant was illegal, inasmuch as it appeared to have been issued more than six months after the date of the order. The order was, it may be assumed, properly made: and the warrant was made pursuant to the 102nd section, which enacts, “that, whenever any order of commitment shall have been made as aforesaid, the clerk of the said court shall issue, under the seal of the court, a warrant of commitment, directed to one of the bailiffs of any countycourt, who by such warrant shall be empowered to take the body of the person against whom such order shall be made." The question is, whether the warrant should not be issued immediately, or whether the order may be kept suspended over the party for an indefinite

fraud or breach of trust, or has against him, either altogether, wilfully contracted such debt or by any instalments which or liability without having had the court in which the judgment at the same time a reasonable was obtained shall have ordered, expectation of being able to pay and if he shall refuse or neglect or discharge the same, or shall to pay the same as shall have have made or caused to be made been so ordered, or as shall be any gift, delivery, or transfer of ordered pursuant to the power any property, or shall have hereinafter provided, - it shall charged, removed, or concealed be lawful for such judge, if he the same, with intent to defraud shall think fit, to order that his creditors, or any of them, any such party may be comor if it shall appear to the mitted to the common gaol or satisfaction of the judge of the house of correction of the county, said court that the party so district, or place in which the summoned has then, or has had party summoned is resident, since the judgment obtained or to any prison which shall be against him, sufficient means provided as the prison of the and ability to pay the debt or court, for any period not exdamages or costs so recovered ceeding forty days."

1850.

Ex parte
O'NEILLE

period. The 37th of the rules framed by the judges under the 78th section of the act, provides that “no warrant of execution or commitment shall be executed after the expiration of two calendar months from the date thereof.” (Jervis, C. J. This warrant was executed within two months of its date.] But more than six months after the date of the order. [Maule, J. You do not shew that the prisoner might have been arrested earlier.] Under the 105th section, the judge has a discretion to suspend execution in certain cases. That section enacts, “ that, if it shall at any

time

appear, to the satisfaction of the judge, by the oath or affirmation of any person, or otherwise, that any defendant is unable, from sickness, or other sufficient cause, to pay and discharge the debt or damages recovered against him, or any instalment thereof ordered to be paid as aforesaid, it shall be lawful for the judge, in his discretion, to suspend or stay any judgment, order, or execution given, made, or issued in such action, for such time, and on such terms, as the judge shall think fit, and so from time to time until it shall appear, by the like proof as aforesaid, that such temporary cause of disability has ceased.” If this warrant be good, the clerk will have a larger discretion than the judge; for, the latter can only suspend the execution under special circumstances. [Jervis, C. J. I see no objection to the warrant's remaining a time in the office. Williams, J. The clerk is not to issue the warrant until the plaintiff calls upon him to do so.] That must be within the two months provided by the 37th rule.

The prisoner was now brought up on a return to the habeas, and a clerk from the office of the county-court attended, but no counsel appeared to support the warrant.

1850.

Ex parte O'Neill

Skinner, for the prisoner, submitted that the whole object of the county-court act being the summary adjustment of small demands, the warrant ought to issue at once, or, at all events, within a reasonable time after the making of the order; more especially as the satisfaction of the debt would not relieve the defendant from the liability to be imprisoned under the warrant, if it could be allowed to stand over in this manner.

JERVIS, C. J. We granted the writ in this case, not because we entertained any very serious doubt, but because the point was novel, and involved the liberty of the subject. Upon attentively looking at the statutc, however, I am of opinion that all that has been done is regular. The order was made on the 19th of April, and directed that the defendant be committed for fourteen days, for not answering, when properly called upon 50 to do. The circumstance of the order not having been drawn up until a long time afterwards, makes no difference. There is no rule requiring it to be drawn up immediately. The term of imprisonment must commence from the time of the arrest, whenever that may be. For any thing that appears, there might have been two or three warrants issued before the warrant

question, but the defendant was not to be met wit

MAULE, J. I am of the same opinion. It does not appear that the defendant could have been arrested a day earlier than he was taken. It may be convenient that some rule should be framed, as to warrants, analogous to the 37th rule, which has been referred to. Until that is done, however, there is nothing irregular in what has been done here.

WILLIAMS, J. I am of the same opinion. There being no rule affecting this case, the prisoner must be remanded.

Prisoner remanded.

1850.

ABLEY V. DALE.

Nov. 11.

Held, that a TRESPASS and false imprisonment. The declaparty ordered

ration stated that the defendant, on the 20th of to pay a sum recovered

August, 1849, with force and arms, assaulted the against him

plaintiff, and seized him, and caused him to be arrested in the county- and apprehended, and unlawfully committed to a certain court, who has made de- common gaol or prison, called the house of correction fault, and, for the county of Middlesex, and also there imprisoned upon being examined

the plaintiff, and kept and detained him in prison there, upon a judg- without any reasonable or probable cause, for a long ment-sum

space of time, to wit, &c. &c. mons, shews no sufficient Plea, — that, before the time when &c., to wit, on excuse for

&c., the now defendant and one George Cornelius Dale such default, may be com

levied their plaint in the Whitechapel county-court of mitted to Middleser, against the now plaintiff, for the recovery of prison forth

a certain debt, to wit, 131. 3s., then, and within the with ; but that, if judge jurisdiction of the said court, justly due and owing from orders him to the now plaintiff to the now defendant and the said pay the money at a future

George Cornelius Dale; which said court then, and day, or, in thence continually during the times hereinafter in this default, to be

plea mentioned, was holden within the district of the committed, and the party, said court, before James Manning, one of Her Majesty's again makes serjeants-at-law, then, and during all that time, being default, he cannot be

the judge of the said court; which said court then, and committed without being examined as to the cause of such second default.

Plea, to an action by A. against B. for false imprisonment, - that a judgment was recovered by B. against A. in the county-court, for a sum ordered to be paid by instalments; that A. was summoned, under s. 98. of the 9 & 10 Vict. c. 95., to shew cause why he had not paid the instalments; that he appeared to the summons, and that the judge ordered him to pay the debt and costs on a given day, or, in default, that he should be committed for twenty days; and that he made default, and was thereupon arrested, and carried to gaol, &c. : Held, bad.

1850.

ABLEY

Dale.

during all that time, had jurisdiction to hear and determine the said plaint; and the now plaintiff, who then was liable to be sued in the said court for the said debt, was then, to wit, on the day and year last aforesaid, duly summoned to answer the said plaint: That the now plaintiff, afterwards, and before the said time when &c., to wit, on the 10th of June, in the year last aforesaid, appeared in the said court so holden as aforesaid, to answer the said plaint; and such proceedings were thereupon had in the said plaint, that afterwards, and before the said time when &c., to wit, on the day and year last aforesaid, the now defendant and the said George Cornelius Dale, by the consideration and judgment of the said court, recovered against the now plaintiff, as well the said debt, amounting to the said sum of 131. 38., as also the sum of 21. 7s. for the costs and charges of the now defendant and the said George Cornelius Dale, by them about their suit in that behalf expended, by the said court then adjudged to them in that behalf, -- which said two several sums of 131. 3s. and 21. 7s., amounting in the whole to a large sum, to wit, the sum of 15l. 10s., were then ordered by the said court, in due manner, according to the statute in that behalf, to be paid by the now plaintiff to the now defendant and the said George Cornelius Dale, by certain monthly instalments, that is to say, by instalments of 15s. every month, the first of such instalments to be paid on the 10th of July then next; such payments to be made at the office of the clerk of the said court; as by the record of the proceedings in the said plaint, still remaining in the said court, more fully appears : That the now plaintiff, on divers days afterwards, and before the issuing of the summons thereinafter mentioned, paid divers small sums of money, amounting in the whole to the sum of 21. 7s. 4d., and no more, for and towards payment of the said instalments ; but that the

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