grieved, and this Court ought to relieve him. is We come now to the question of jurisdiction of the Quarter Sessions, and it would seem extraordinary if, without further proceedings, that Court could estreat recognizances which had been taken elsewhere. This power should be shewn affirmatively to exist, as in ordinary cases it would. The 4 Geo. 4. c. 37. applies to other matter, not material to be considered here. The 3 Geo. 4. has directed an appeal, without interfering with the method or with the authority by which these recognizances may be legally put in execution. Sufficient authority is attributed to that act in this way. We do not think the provisions of the 5th section, by which the Sessions can give relief, apply to this case. They apply to two cases only where forfeitures may be incurred. The case of Haynes v. Hayton only proves that although the Sessions may relieve when the party in prison, they have no such power when he pays the money at once; but that is totally without the question, whether they have the power to estreat the recognizances in the first instance, when those recognizances have been taken in another court: nor is there any argument in favour of the jurisdiction now claimed, if we attend to the state of the law generally. There is no law more clearly decided, than that you cannot prejudice a man who has not been heard in his defence, and is it certain that the conviction in this case is decisive proof of the forfeiture of the recognizances? It may have been wrong, and the party may or may not be the same man; but, if he is the same man, he may still have some cause to shew against the forfeiture of the recognizance. Bac. Abr. tit. Scire Facias,' C, 2, relates to this matter, and we have been referred to this passage in it :"If a man be bound in recognizances to the King, upon condition to be of good behaviour, &c., he cannot be indicted for breach of the good behaviour without a scire facias, for if the scire facias had been brought, he might have pleaded some matter in discharge thereof." And the cases there referred to, shew that a scire facias has always been brought under such circumstances; and, on inquiry, we find that the course of practice in the Crown - Custom-Parish Boundaries-Perambulation-Evidence. A custom for parishioners in perambulating the parochial boundaries, to go through a particular house in the parish, which is not on the boundary line, or in any manner required in the course of the perambulation, cannot be supported. In an action of trespass by a party whose house is situate in the parish, against other parishioners, for the exercise of such an alleged customary right, an entry in the parish books, recording the fact that the perambulation has taken place in a particular line, is inadmissible in evidence. Trespass for breaking and entering the plaintiff's dwelling-house. Plea-That the said dwelling-house in the said declaration mentioned, now is, and at the said time when &c. was, and from time whereof the memory of man runs not to the contrary hath been situate within, and parcel of St. Bridget, otherwise. St. Bride, in the city of London. And the said defendants further say, that from time whereof the memory of man runs not to the contrary, there hath been, and at the time when &c., there was, and now is, within the parish of St. Bridget, otherwise St. Bride, aforesaid, a certain ancient and laudable custom there used and exercised, (that is to say,) that during all the time aforesaid, it hath been, and still is lawful for all and every the parishioners for the time being of the parish of St. Bridget, otherwise St. Bride, aforesaid, to go through the said dwelling-house in which, &c., upon their perambulation of the boundaries of the said parish of St. Bridget, otherwise St. Bride, upon Thursday in Rogation Week, in every third year. And the said defendants further say, that from time whereof the memory of man runs not to the contrary, hitherto, the parishioners for the time being of the parish of St. Bridget, otherwise St. Bride, aforesaid, have used and been accustomed, in the exercise of the custom aforesaid, to go through the said_dwelling-house in which, &c., upon the perambulation of the boundaries of the said parish of St. Bridget, otherwise St. Bride, upon Thursday in Rogation Week, in every third year; wherefore the said defendants being then and there two of the parishioners of the parish of St. Bridget, otherwise St. Bride, aforesaid, on the Thursday in Rogation Week, in the year 1833, (being then and there a third year,) in the exercise of the custom aforesaid, went through the said dwelling-house in which &c., upon the perambulation by the parishioners of the said parish of St. Bridget, otherwise St. Bride, of the boundaries of the same parish, using the said custom there, for the purpose, and on the occasion aforesaid, as they lawfully might, for the cause aforesaid; and in order to go through the said dwelling-house, as last aforesaid, and because just before and at the said time when &c., the said door of the said dwelling-house in which &c., was closed and fastened with the said lock, staple, bar, and hinges, so that the said defendants, as such parishioners, could not go through the said dwelling-house, for the said purpose, and on the occasion aforesaid, and because the said plaintiff, on being then and there requested so to do, then and there wholly refused to open the same, they, the said defendants, as such parishioners as aforesaid, and for the purpose and on the occasion aforesaid, &c. The plaintiff in his replication, traversed the right to go through his dwelling-house. At the trial, at Guildhall, at the Sittings after Michaelmas term, 1835, before Lord Denman, C.J., it appeared that the plaintiff's house was not on the boundary line of St. Bride's parish, but there were other houses beyond it and upon the line, and evidence was given of customary perambulations through the house which the plaintiff occupied. It was objected, that the plea was not proved, if it was to be understood as signifying that the plaintiff's house was on the boundary line of the parish, and if it did not signify that, that then the custom was invalid. His Lordship was of opinion, that the plea did not import that the plain tiff's house was on the boundary line, and that the question as to the validity of the custom was on the record, and the defendants obtained the verdict. In the ensuing term Cresswell obtained a rule nisi for a new trial, on the ground, that the plea was not proved; or to enter up judgment non obstante veredicto, if the Court should be of opinion that it was; against which, cause was shewn, in Trinity term last, by— The Attorney General, Barstow, and White. First, the plea was proved: it certainly did not imply that the plaintiff's house stood on the boundary line; and, therefore, under the plea, there was no necessity to prove that such was its situation. Assuming then that the plea does not signify that the plaintiff's house stands on the boundary line, still, secondly, it is a good plea. There is no doubt, that a custom for the parishioners to enter the lands of private individuals, in their perambulation of the bounds of a parish, is valid Goodday v. Michell (1), and Vin. Abr. 'Perambulation,' 5: and going through a house, is the same as entering the lands. But, it is contended, that they must go to the extreme boundary, and that the custom to go through a house not on the boundary, is bad. It is difficult to see why it should not be good; the object of the custom is to keep up the remembrance of the boundary, and that will be effected as well by going through a line of ascertained and definite distance from the actual boundary, as by going on it. Some deviation must be lawful, because all cannot go on the line, or there may be obstructions in the way. [LORD DENMAN, C.J.-If the deviation be necessary, ought it not to have been set out in the plea?] It has been established by the proof in the cause, that the perambulations have gone by this line, and it has been probably according to some arrangement made in early times, of which the memorial is now lost. This plea is, according to the precedent in Co. Entr. 651. Fitch v. Rawlings (2) was referred to. Cresswell and W. H. Watson, contrà. (1) Cro. Eliz. 441. (2) 2 H. Black. 593. This plea, assuming that it has the meaning contended for, is bad. This being a custom to invade a man's private dwelling-house, is prima facie void. The general right of The general right of the parishioners to perambulate, is not disputed; but unless some special necessity be shewn, they cannot have a right to go through premises not on the line. A custom for all the parishioners to go through the house of an individual on a particular day, would be unreasonable, unless there be some lawful occasion which justifies it. In this case, it is alleged to be for the purpose of perambulating the parish boundary. But, how can it be said that it was either necessary or convenient, for that purpose, that the parishioners should all go through a house not on the boundary? Here, too, the plea is not that the parishioners have a right to go through the plaintiff's house, to ascertain the boundary of the parish, but to make the perambulation itself. As to the case of Goodday v. Michell, it may be observed that judgment was, in fact, given against the plea; but it is quite consistent with the pleadings in the case, that the custom should be to go on the boundary line. This right has not been allowed to be enlarged, for in Reynolds's case (3), it was held, that a custom for the owner of a house to find refreshment for the parson and churchwardens of a parish, when they made their perambulations, was void. So, though a custom for fishermen to dry their nets on the soil of another person, is good, in consequence of the public benefit (4), a claim to drive stakes into the ground, was held to be unnecessary and void (5). As to Fitch v. Rawlings, the custom was alleged to be for a good purpose, namely, for wholesome exercise. Here, then, no necessity being shewn for the deviation, the custom is void. Cur. adv. vult. LORD DENMAN, C.J.-There was a case of Taylor v. Devey last term. The action was brought to try the existence of a custom for all the parishioners of St. Bride's, on their annual perambulation of the pa (3) Moore, 916. (4) Cro. Car. 419. (5) Bro. Abr. Customs,' 45. See the observations of Buller, J., iu Fitch v. Rawlings. rish bounds, to go through the plaintiff's house, although it did not appear to be in the line of parish boundary. The plaintiff's counsel observed to the jury, that the defendant had given no evidence of the contents of parochial books on the subject, nor any evidence of reputation. In summing up, I observed on this, and I am supposed to have said, that such evidence would have been inadmissible. One ground on which a rule nisi has been obtained is, that herein I misled the jury. We agree, that if a Judge misleads a jury on any question of law, the losing party is entitled to a new trial; but the jury must be supposed to adopt the law as expounded to them, as their verdict may have proceeded on the erroneous direction; nor can any calculation be permitted of the extent to which the error may have operated. But I am by no means clear, that the observation was made in the manner supposed. My attention was not called to it at the time of the summing up, and I took no note of what I said in that particular; on the contrary, recalling what passed as accurately as I now can, I am rather inclined to believe the evidence which I thought would have been inadmissible, was that of an entry in the parish books, recording the fact, that the perambulation had taken place in a particular line; and we all think that would have been correct, and even a careful reporter has confounded this opinion with that which would justly be considered objectionable. On this ground, therefore, we think, no sufficient cause for granting a new trial was made out. But the learned counsel for the plaintiff moved to enter a verdict for him, notwithstanding the plea found for the defendant, urging that a custom to pass through a particular house on the perambulation of the boundaries, is bad in law, unless such house is in the boundary line, so that the perambulation could not be made without passing through the house. The plea, indeed, stated the defendants went through the plaintiff's house on the perambulation of the boundary, using the said custom there, which expression it was said would import, that the house was on the boundary line. If this construction were admissible, the plaintiff would be entitled to a new trial, and ultimately to a verdict, because the plea so understood was disproved; but the construction cannot be adopted, the plea only averring the house to be within the parish, and the custom to be, that it is lawful for all and every the parishioners to go through it, on their perambulation of the boundaries. The question, therefore, is, whether a custom so laid is valid in law. The right to perambulate parochial boundaries, to enter private property for that purpose, and to remove obstructions that would prevent this from being done, cannot be disputed. It prevails as a notorious custom in all parts of England, is recognized by all text writers, and confirmed by high judicial sanction. Lord Chief Justice Anderson, and the whole Court of Common Pleas, assert the custom and right in the most unqualified manner, in Michell v. Goodday, the pleadings in which case are to be found in Croke's Entries, 651, b. In that case, indeed, the plaintiff succeeded: the justification failed; but the defect was in the mode of pleading, for the defendant's right was thought to be placed on prescription, and not on custom; and, besides, the plea did not embrace all the trespasses laid in the declaration and these material faults being pointed out, the judgment thereon superseded the necessity of examining the plea more minutely, and inquiring whether the custom was well laid. The plea there claims a prescriptive right to enter the plaintiff's close, exactly in the same manner as the defendant in this action justifies under the custom, for all and every parishioner, on the perambulation of the boundaries, to enter the plaintiff's house, which is averred to be within the parish. Now as it is obvious the right to perambulate boundaries cannot confer a right to enter any house in the parish, however remote from the boundaries, and although not required to be entered for any purpose connected with the perambulation, it seems to follow, that a custom on that occasion to enter a particular house which is neither on the boundary line nor in any manner wanted in the course of the perambulation, cannot be supported. On principle, therefore, the custom laid is bad in law, and the authority of the case as to the form of pleading can not go for much, as the plea was set aside on two fatal faults in other respects. The report contains several references to the Year Books, and one to Fitzherbert's Natura Brevium, none of which have any bearing on this objection. The Book of Entries, p. 158, is also quoted, but neither in that page, nor any other in that book, is there any authority on the subject. For the reasons given, we think ourselves bound to give our judgment for the plaintiff, notwithstanding the verdict. Trespass and false imprisonment. At the trial, before Lord Abinger, C. B., at the Summer Assizes for Carlisle, the plaintiff's counsel opened, that the plaintiff, a young woman, under age, had contracted, with one Christopher Hobson, to serve him as a house-servant, and entered into his service under such contract, and afterwards, having absented herself from his service, and refused to complete the contract, was committed to prison for a month, by the defendant, a Justice of the Peace for Cumberland, under the authority of the 4 Geo. 4. c. 34. Upon this statement, his Lordship nonsuited the plaintiff, holding, that the defendant had jurisdiction. In the following Michaelmas term, a rule was obtained for setting aside this nonsuit, against which, cause was shewn in Hilary term last by Coltman.-There are two questions in this case. The first is, whether a Justice of the Peace has any jurisdiction under the 4 Geo. 4. c. 34. over household servants. The second is, whether, as the plaintiff was an infant, she could be bound by the contract of service. Now, the 4 Geo. 4. c. 34. is a general act. Its title is 'An act to enlarge the powers of Justices in determining complaints between masters and servants;' and in section 3, it is enacted, "That if any servant in husbandry, or any artificer, calico-printer, &c., labourer, or other person, shall contract to serve any person, for any time, or in any other manner, and shall not enter into the service according to his or her contract, or having entered into such contract, shall absent himself or herself from the service before the term of his or her contract shall be completed, any Justice of the Peace is empowered to hear the complaint, and to commit the party to prison, for any term not exceeding three months." This enactment was taken from the 6 Geo. 3. c. 25. s. 4. Now, when such general words are used, as "labourer or other person," it is difficult to see any reason why they should not include household servants. But, it is contended, that the decisions upon the 20 Geo. 2. c. 19, which have restrained its application, must be referred to as a guide to the Court in their interpretation of this act. That is an act for the adjusting of differences between certain servants and their masters; and, in the 1st section, it is provided, that the differences between servants in husbandry and their masters and mistresses, and also between masters and mistresses and artificers, handicraftsmen, miners, &c. and other labourers, shall be adjusted by a Justice of the Peace. So that it is obvious that the statute is not of universal application, but the words, "other labourers," may well be confined to labourers ejusdem generis. Such has been the determination of the Courts in Lowther v. Lord Radnor (1), Branwell v. Penneck (2), Hardy v. Ryle (3), Lancaster v. Greaves (4). But there is no reason why the one statute should influence the interpretation of the other, which contains general words, and is not in any way restricted as the 20 Geo. 2. c. 19. is. Secondly, the plaintiff could (1) 8 East, 113. (2) 7 B. & C. 536; s. c. 6 Law J. Rep. M.C. 47. (3) 9 B. & C. 603; s. c. 7 Law J. Rep. M.C. 118. (4) 9 B. &C. 628; s. c. 7 Law J. Rep. M.C. 116. not set up this objection: having misconducted herself in her service, she had become amenable to the jurisdiction of the Justice-Grey v. Cookson (5). Cresswell, in support of the rule.-All these statutes are part of a general system. It is intended, on the one hand, to give labourers a means of recovering their wages; on the other, to give their masters a means of compelling the performance of their work. The statutes, therefore, are correlative, and throw light upon each other. Now, the 5 Eliz. c. 4, as pointed out by Bayley, J. in Branwell v. Penneck, supplies the key to these enactments, and shews that the labourers and other servants, to whom they were intended to apply, were servants in husbandry; and Holroyd, J. agrees with him in his judgment. If, as is contended, the words, "other person," in the 6 Geo. 3. c. 25, extended to all servants whatsoever, it is difficult to understand why, in the 4 Geo. 4. c. 34, it was necessary to provide expressly for servants in husbandry; for certainly, if those words would have included household servants, they must have included husbandry servants. husbandry servants. It will be observed, also, that the 4 Geo. 4. c. 34. provides for the recovery of wages as well as the punishment of servants. The proper mode of construing these words is pointed out by Lord Tenterden, in Sandiman v. Breach (6), where it was required to construe the 29 Car. 2. c. 7, which prohibits tradesmen, artificers, workmen, labourers, or other persons, from exercising their worldly callings on Sunday, and it was contended, that the words, "other persons," would extend to the drivers of stage coaches. But the judgment of Lord Tenterden is, that "where general words follow particular ones, the rule is, to construe them as applicable to persons ejusdem generis. Secondly, here was no valid contract which could be enforced by the Justice. The plaintiff was an infant. This was not a contract of apprenticeship, but of service, and there is a great distinction between them. An apprentice may be corrected by a Justice if he misbehaves himself, but is (5) 16 East, 13. (6) 7 B. & C. 96; s. c. 5 Law J. Rep. K.B. 298. |