burrow king versus Vipont and other wednes that April conviction of journeyman  woolcombers for conspire to raise their wage quash refer to r v Surrey I I Q b  this be a conviction that stand in the Crownpaper and be as follow borough of  Derby to wit be it remember that on c at c Thomas Eaton of the say borough  hosier and woolcomber come before we Joseph Bingham Esq mayor of the say  borough and John smith gentleman two of his majesty justice of the peace of  and for the say borough and upon his oath before we depose that Joseph Vipont  Henry Greatorex John hall Edward chapman and Thomas Allen journeyman  woolcomber who for some month next before their leave his service as herein  after be mention be employ by the say Thomas Eaton in the woolcombing business  to work for he at reasonable wage have each for himself at the say borough  confess to he that they have in the month of November last pass at the say  borough agree one among another and with other journeyman woolcombers to raise  and advance their wage and that they will not work with he or any other master  in the woolcombing business unless he and they will advance their wage and  that the say Thomas Eaton thereupon refuse so to do and thereupon all his say  journeyman refuse to work for he at their former reasonable wage and have  leave his service whereupon the say Joseph Vipont Henry Greatorex John hall  Edward chapman and Thomas Allen appear before we to answer the say charge and  have hear the say charge and in the presence of the say Thomas Eaton be call  upon by we to show cause why they shall not be convict for unlawful enter into  such combination as aforesaid contrary to the statute in that case make and  provide and have nothing to say nor be able to make out any thing whereby to  defend themselves before we touch and concern the premise aforesaid thereupon  the aforesaid Joseph Vipont Henry Greatorex John hall Edward chapman and  Thomas Allen the day and year aforesaid by the oath of the say Thomas Eaton a  credible witness be convict before we for unlawful enter into such combination  as aforesaid at the say borough of Derby to raise and advance their wage in  the woolcombing business there contrary to the act of parliament in that case  make and provide give under our hand and seal c this be a conviction on the  Act of g c to prevent unlawful combination of workman employ in the woollen  manufacture and for better payment of burrow their wage Mr serj Davy on behalf  of the defendant object to it saint that no evidence be state to have be give  in the presence of the defendant only the charge be read to they in the  presence of the prosecutor Thomas Eaton the witness but it be not make out and  prove by he viva voice before they though they personal appear and consequent  have a right of crossexamine the witness upon their give verbal evidence face  to face nor indeed be any evidence at all set out with sufficient  particularity and preciseness burrow er p d objection this fact as charge be  not a offence within the statute these people be all of they journeyman to the  same master at home and not person assemble and form into unlawful club or  unlawful society abroad which he will have have it understand that the statute  require and there be no write agreement no resolution not to work with he or  any other master for such wage d objection here be no judgement it be only say  that they be convict for unlawful enter into such combination it ought to  proceed quod forisfaciat and express adjudge the forfeiture so be strange g in  king v hawk where a conviction for kill a deer be quash because it be only  intimacy be without any judgement quod forisfaciat they ought to have award  the particular punishment as the Act do not fix the duration of the punishment  but leaves the time of the imprisonment quite discretionary I for any time not  exceed three month therefore this case differ wide from case where the  punishment be ascertain and necessary flow from the conviction the Courthaving  immediate overrule the d objection as a frivolous one and not to be serious  support Mr Caldecott contra for the plaintiff apply himself to answer the  first and three objection saint it sufficient appear on the face of the  conviction that the defendant hear the evidence however it be not necessary  that the evidence shall be give in the presence of the defendant for which he  cite king v baker strange in point as he say for he but quite otherwise as the  sergeant t allege and as the burrow court also explain it and he observe that  this conviction be as much in the present tense as that be the word of it be  they be convict as to the d objectionthe justice have nothing to do but to  convict that be the judgement then after the conviction the justice exercise  their discretion which they do here by commit they for three month Mr serj  Davy in replyLst the case of king v baker prove direct contrary to Mr  Caldecotts application of it for there the court take it to be a hear in the  presence of the defendant they there suppose the whole to pass at the very  same time here it be manifest that they be not present at the time when Thomas  Eaton give his evidence Lord Mansfield stop he it be unnecessary to say any  more about enforce the objection since the first and three be fatal first the  evidence ought to be take over again in a defendant presence unless he confess  now here they do not confess before the justice and the evidence only be that  they have former confess this combination to the witness and in the case of  king v baker the court go upon the supposition I that the defendant be present  when the evidence be give and do actual bear it give in a conviction the  evidence must be set out that the court may judge of it and it must be give in  the presence of the defendant that he may have a opportunity of crossexamine d  objectionHere the punishment be discretionary as to the length of the time of  imprisonment and here be no judgement at all only a conviction they ought to  have go on and adjudge the forfeiture therefore on both these objection this  conviction ought to be quash for however useful a statute this may be for the  benefit of trade yet the justice must convict accord to law see the preamble  and the whole first section but the word of the charge be that they have agree  one among another and with other journeyman woolcombers v ante v fitzg S c but  the word be only have hear the say charge notwithstanding this allegation and  explanation the case seem very much alike and one of the judge express say  that he know no law that require the presence of the witness face to face and  another say perhaps it have be sufficient without either of the word read or  hear it be allege that the matter be full understand by the defendant v post  king v killet clerk and durn burrow er p Mr just denison concur in both point  saint the evidence must be give in the presence of the defendant that he may  have a opportunity to crossexamine in the case of king v baker nothing wrong  appear upon the face of the conviction and therefore the court suppose and  take it to have be right transact burrow as to the d objectionthe time the  duration of the commitment ought to be ascertain upon the conviction the  statute do not fix it it only say for any time not exceed three month Mr just  Wilmot concur in both saint the witness ought to be examine in the presence of  the party accuse that he may have the benefit of crossexamination and here it  appear plain enough that Eaton the witness against these defendant be not so  examine in their presence as to the d objectiona conviction be equal to a  verdict and judgement but this be a verdict without a judgement in the case of  king v hawk h g b r it be settle that there must be a judgment of forfeiture I  have a full note of that case it be a conviction for deerstealing on W and m c  and there though the penalty be certain a forfeiture of for every offence in  mere hunt and if a deer be kill wound or take then and though the Act of  parliament distribute the forfeiture yet it be hold that there must be a  judgement to levy it for every execution must be find on a judgement the case  of queen v Wingrave h Ann b r and queen v Serle in b r be there both quote by  Mr fazakerly in support of the exception there be a case in Tr g b r king v  Ashton upon a conviction for destroy fruittree contrary to g c the word of the  conviction be therefore to look at closely be per our quod intimacy be the  court hold I that there ought to be a judgement quod forisfaciat or quod To  bring together c but this be a much strong case because here be a discretion  to commit either to the house of correction there to remain and be keep at  hard labour for any time not exceed three month or to the common gaol of the  county c as they shall see cause there to remain without bail or mainprize for  any time not exceed three month per cur unanimous and clear the conviction  must be quash