year ending the 25th of March. His father and mother were inhabitants of and resided, so far as could be ascertained, in the same extra-parochial part of the said forest, and there was no evidence, nor could it be ascertained, that either of them, or any of their parents, had ever obtained or were entitled to any settlement in any parish or place whatsoever. The circumstances of the several persons in respect of whom the said sums of 54l. 13s. 84d. and 137. 11s. 7 d., also objected to, had been expended, were similar in all respects to those of T. Dawe.

The said Eliza Tingle was born a bastard in the same extra-parochial part of the forest in 1832, and never gained a settlement in any other township, parish or place. She lived and inhabited in the same part of the Forest of Dean the whole of her life, and whilst so inhabiting had become chargeable to and was relieved by the said township.

Under the above circumstances, the auditor allowed the said several sums, so objected to, to continue charged to the common fund of the said union, and, having been requested to do so, entered in the book of accounts the following reason for the said allowance: "because the said T. Dawe and the said other poor persons having resided in the said township of East Dean for more than five years before they were relieved as above mentioned, and not being settled in such township, were in my judgment irremovable therefrom by reason of an act (9 & 10 Vict. c. 66.), and therefore, and also because it did not sufficiently appear, nor was it shewn to me that the said T. Dawe and the said other poor persons had not respectively settlements, either acquired by themselves, or derived by them respectively, in some parish or township other than the said township of East Dean, that the costs incurred in their relief were properly chargeable to the common fund of the said union by virtue of the 11 & 12 Vict. c. 110. s. 3."

Alexander and Phipson, for, the auditor, and R. Hall, for the township of East Dean, now shewed cause against the rule. -These paupers, having resided in the township of East Dean for more than five years, were irremovable therefrom by virtue of the 9 & 10 Vict. c. 66. s. 1. Then the 11 & 12 Vict. c. 110. s. 3. provides

that "all the costs incurred in the relief of any poor person who, not being settled in the parish where he resides, shall by reason of some provision of the 9 & 10 Vict. c. 66. be or become exempted from the liability to be removed from the parish where he resides, shall, when the said parish shall be comprised in any such union as aforesaid, be charged to the common fund of such union, so long as such person shall continue to be so exempted." This township being within the Westbury Union, the case falls directly within the clause.

[LORD CAMPBELL, C.J.-The question is, whether the 11 & 12 Vict. c. 110. s. 3. applies to paupers who were irremovable independently of the 9 & 10 Vict. c. 66.]

The auditor has not decided on the ground that these persons had not a settlement elsewhere than in East Dean; he proceeds solely on the fact of the five years' residence. With the exception of Eliza Tingle, it is by no means clear that these paupers are really not settled elsewhere.

[COLERIDGE, J.-Your argument would throw on the common fund the expense of maintaining all paupers resident for five years in East Dean who have not gained a settlement elsewhere.]

Probably that is the effect of the act. Suppose these paupers had resided in any other parish for five years, they would be irremovable and chargeable to the common fund. If this were not so, the 9 & 10 Vict. c. 66. could never apply, except where a pauper has a known settlement. If it should afterwards turn out that these paupers have a settlement elsewhere, how is the charge to be set right?

[WIGHTMAN, J.-The 9 & 10 Vict. c. 66. s. 1. only applies where there has been an attempt to remove.]

Its effect is rather to prevent such attempts being made, and that is the way in which it practically operates.

Pashley and Dowdeswell were not called upon to support the rule.

LORD CAMPBELL, C.J.-This is a very unjust attempt to prevent the operation of the statute and to throw the charge of these paupers on the common fund of the union. The object of the 11 & 12 Vict.

c. 110. clearly is to cast on the union fund the expense of that class of persons only who are rendered irremovable by the 9 & 10 Vict. c. 66. Unless it be shewn that these paupers become irremovable by virtue of that act, no use can be made of the subsequent statute. Now, these paupers were irremovable not by virtue of that act, but were so before it passed, on the ground that they had no settlement anywhere to which they could be removed. That being so, the cost of their relief is not cast on the common fund of the union, and the auditor was wrong, and the allowance must be quashed.

COLERIDGE, J.-I am of the same opinion. We must look at this case upon the facts presented to us by the auditor, and on the grounds stated by him. That being so, it comes to the question whether he has rightly construed the 9 & 10 Vict. c. 66, which applies only to paupers who might have been removed to the place of their settlement, and not to paupers who have no settlement. The words must be read as if restrained to such cases.

WIGHTMAN, J.-The 11 & 12 Vict. c. 110. s. 3. is only applicable to cases falling within the 9 & 10 Viet. c. 66; and that does not extend to persons who had no place of settlement to which they could be removed.

Nor can a prisoner so arrested be legally detained under a second warrant, subsequently lodged against him, which has been issued at the instance of the same parties, though not in their capacity of town council, but as Commissioners under a local act.

But a detainer under a ca. sa., subsequently issued by a third party and without collusion, is a valid ground for refusing to discharge the prisoner.

Where a return to a habeas corpus states that a prisoner is detained under civil process, it is competent to him to shew, by affidavit, that he was originally arrested on a Sunday.

A writ of habeas corpus had issued to bring up into this court the body of Alfred Eggington, who had been committed to the custody of the keeper of Stafford gaol, under a warrant of commitment issued by two Justices, for the city and county of Lichfield, on the 8th of October 1853.

This warrant, which was directed to "the constables and dozeners of the city and county of Lichfield, and to the keeper of the common gaol of Stafford," recited a complaint on behalf of the town council of Lichfield, "that Alfred Eggington, late town clerk of the said city, was, on the 12th of September 1853, duly required by notice in writing, under the hands of the members of the council of the said city, in pursuance of the order and direction of the said council, to deliver to James Burton, who was by the said council authorized to receive the same, a true account in writing of all matters committed to his charge, by virtue of the 5 & 6 Will. 4. c. 76, and also of all monies by him received by virtue and for the purposes of the said act, and also of the amount expended and disbursed by him, and for what purposes, together with proper vouchers for such payments, and also a list of the names of all such persons as had not paid the monies due from them for the purposes of the said act, and of the amount due from each of them; and also to deliver to the said J. Burton, so authorized as aforesaid to receive the same, all books, papers, and writings in his custody or power relating to the execution of the said act, and to give satisfaction to the said J. Burton respecting the same;" that Eggington had refused to

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deliver the said account, &c., and that a warrant and summons to answer the said complaint had been issued and served upon Eggington, who had not appeared in obedience thereto; that the said Justices had proceeded to hear and determine the matter of the said complaint; and that upon such hearing it duly appeared to them, "that he had wilfully neglected to deliver such account, and the vouchers relating thereto, and such lists as aforesaid, and that certain books, papers, and writings relating to the execution of the said act, and particularly the corporation minute-book and cheque-book, remained in the hands or in the custody or power of the said A. Eggington, and that he had wilfully neglected to deliver the same, or to give satisfaction respecting the same." The Justices then adjudged "that the said A. Eggington shall be committed to the common gaol at Stafford (being the common gaol for the said city and county of Lichfield), there to remain without bail until he shall have delivered a true account as aforesaid, together with such vouchers and lists as aforesaid, and until he shall have delivered up such books, papers, and writings, or have given satisfaction in respect thereof to the same J. Burton as aforesaid." The warrant then commanded the said constables, &c. to take the said A. Eggington, and him safely to convey to the said gaol at Stafford, there to deliver him to the keeper thereof, and the said keeper to receive the said A. Eggington into his custody in the said gaol, there to imprison him until he shall have delivered, &c. [as in the adjudication].

On the 24th of October 1853 another warrant of commitment, under the hands of the same Justices, also dated the 8th of October, which was substantially in the same form and to the same effect as that last stated, was lodged with the keeper of the gaol at Stafford.

The gaoler returned to the writ of habeas corpus that he received the said A. Eggington into his custody on the 17th of October 1853, and that the residue of the execution of the said writ appeared by certain schedules thereto annexed. These schedules merely contained copies of the two warrants above mentioned. This return having been read,

Yes.

It does not contradict the return; and the fact of the arrest having taken place upon a Sunday cannot otherwise be brought before the Court. The first arrest was bad under the 29 Car. 2. c. 7. s. 6, which enacts, "that no person upon the Lord's Day shall serve or execute any writ, process, warrant, order, judgment or decree (except in cases of treason, felony or breach of the peace), but that the service of every such writ, &c. shall be void to all intents and purposes whatsoever." The default provided for in the 5 & 6 Will. 4. c. 76. s. 60. is a civil and not a criminal matter, and is rather in the nature of a capias ad satisfaciendum in a civil suit. The section at the end of it reserves the right of proceeding against the officer by action. This shews that it is a civil proceeding. The King v. Myers (1) decided that a party convicted under a statute and committed for non-payment of the penalty cannot be apprehended on a Sunday. The statute of Charles applies wherever there has been no breach of the peace-Rawlins v. Ellis (2). Then, if the original arrest was illegal, the subsequent detainer under a warrant issued for the same cause by the same parties cannot be good. In Taylor v. Phillips (3), Lord Ellenborough, C.J. said, that it was a matter of public policy that no proceedings of the nature described in the statute should be had on a Sunday, and that they could not be made good by any assent or waiver by the party illegally arrested. If so, it would be an evasion of the statute to allow parties who have illegally arrested another to take advantage of that illegal capture.

[COLERIDGE, J.-I suppose if Eggington had got out of prison on the 23rd he might

have been retaken on the 24th under the second warrant?]

Probably he might; but that is a very different case. There are several authorities which decide that a person illegally arrested cannot be detained by civil process issued at the suit of the same party and for the same cause.

Pashley, for the Justices, and W. R. Cole, for the town council, shewed cause. -It is conceded that in civil process a party who arrests another illegally cannot detain him by subsequent process. But neither that rule nor the privilege from arrest upon Sunday applies to this, which is a commitment for an offence, not indictable indeed, but for which a specific remedy is provided by the 5 & 6 Will. 4. c. 70. s. 60. He is there expressly called an "offender."

[COLERIDGE, J.-You must make out that this is "treason, felony, or breach of the peace." In Taylor v. Freeman (4) it was held that a warrant committing a person for getting a bastard was not within the statute of Charles.]

[LORD CAMPBELL, C.J.-Is there any case where an arrest upon a Sunday for anything short of an indictable offence has been held legal?]

Every violation of a statute is indictable and in its nature a breach of the peace, which words are construed largely-Johnson v. Coltson (5). In The Queen v. Richards (6), where the prisoners were taken to gaol under a bad warrant, but a good warrant lodged subsequently was also returned as a ground of detainer, the Court said they would not look at the first warrant, but remanded the prisoners on the good warrant.

Gray was not called upon to reply.

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wholly unavailing, as the fact upon which it rests would not appear upon the return. We come, then, to the question whether this warrant was one which could be legally executed on a Sunday. I think it does not fall within the exception in the statute of Car. 2, according to any construction which has ever been put on the words of that exception. This was not a commitment for an indictable offence, but merely for not performing a duty similar to that spoken of in the same section of paying over money. The mode of proceeding against a town clerk for either withholding money or not delivering up documents is the same. In one sense, no doubt, he is an offender," but he has committed nothing which is either actually or constructively a breach of the peace. It is the same as if judgment had passed against him in an action of detinue for these documents and he had been taken under a ca. sa. founded on that judgment. Such process clearly could not have been executed on a Sunday. That being so, the arrest on the 16th of October was illegal and void. What, then, is the effect of the warrant subsequently lodged? This being in the nature of civil process, the detention under that warrant was also illegal. It is allowed that in civil process, after an arrest on a Sunday, the same individual cannot by suing out fresh process take advantage of the illegal arrest. Here the town council of Lichfield must be considered as having sued out the first process and having executed it on a Sunday, and to have also sued out the second process to detain the party so illegally arrested. If we held this could be done it would be enabling them to take advantage of their own wrongful act.

COLERIDGE, J.-I am of the same opinion. As to this being civil process, I will only add that the same clause which calls this

person an "offender" does not give, but saves, the right of proceeding by action. This shews, therefore, that an action might have been maintained independently of the clause which substitutes a summary remedy to enforce the civil duty. The common rule consequently applies, that the same party shall not, by issuing second process, avail himself of his own illegal act.

This order for the discharge of the prisoner was received by the gaoler of Stafford on the 3rd of November. On the 1st of November another warrant of commitment by two Justices of the city of Lichfield, dated the 31st of October, and issued on the complaint of the town council of Lichfield, acting as Commissioners under a local act for cleansing and paving, &c. the streets of Lichfield, against Eggington, for not delivering up the books. in his custody, as clerk to the Commissioners, was lodged with the gaoler, and under it he detained the prisoner in custody. In the afternoon of the 4th of November a warrant under a writ of ca. sa., issued without any collusion at the suit of a creditor of the prisoner, was lodged with the gaoler.

Upon an affidavit stating the above facts,

Gray obtained a rule to shew cause why a writ of habeas corpus should not issue to discharge the prisoner out of custody, and why, in the event of the rule being made absolute, he should not be discharged without the writ of habeas corpus actually issuing (7).

Cause was now (Nov. 21) shewn against this rule, by

Pashley, for the town council, and Griffits for the execution creditor.-The town council in issuing this warrant acted in a very different capacity from that in which they issued the former warrants, and the prisoner is proceeded against as their

(7) Pashley objected to the form of this rule, but the Court observed that it was a usual and convenient course, as it saved expense.

clerk in their office as Commissioners, and, in the absence of any collusion, the detention under this warrant is legal-Collins v. Yewens (8). But the prisoner is at all events not entitled to his discharge from custody under the ca. sa. The original illegal arrest was not the act of the sheriff or of the detaining creditor. Barratt v. Price (9), as explained in Robinson v. Yewens (10), cannot be relied upon as an authority for the discharge. They referred also to Howson v. Walker (11), Davies v. Chippendale (12), Ex parte Cogg (13), Barclay v. Faber (14), and Re Ramsden (15).

Gray, contrà.-Neither the sheriff nor the gaoler can detain a party who is in illegal custody under an unlawful arrest. The prisoner was illegally detained after the receipt of the order of this Court for his discharge, because the town council in lodging the fresh warrant were taking advantage of their own wrong, which they could not do. At the time when the ca. sa. was lodged the prisoner was in point of law out of custody, and could not, therefore, be properly detained.

[COLERIDGE, J.-There was no illegal arrest by the sheriff. The prisoner was not at the time in the civil custody of the sheriff.]

Where a person is in custody on the criminal side of this court, he cannot be charged under a ca. sa. without the leave of the Court. In Barratt v. Price, the defendant was in custody some time before the warrant was in the hands of the sheriff, and the arrest there was by the sheriff's officer.

[WIGHTMAN, J.-If the gaoler chooses to detain the prisoner, may not the sheriff go and arrest him?]

The sheriff himself might have gone and arrested him; but here the gaoler is in the situation of the sheriff's officer in Barratt

(8) 10 Ad. & E. 570; s. c. 8 Law J. Rep. (N.S.) Q.B. 332.

(9) 9 Bing. 566; s. c. 2 Law J. Rep. (N.s.) C.P. 56.

(10) 5 Mee. & W. 149; s. c. 8 Law J. Rep. (N.S.) Exch. 166.

(11) 2 W. Black. 823.
(12) 2 Bos. & P. 282.
(13) 6 Dowl. P.C. 461.
(14) 2 B. & Ald. 743.

(15) 15 Law J. Rep. (N.s.) M.C. 113.