Superior Courts: V. C. Knight Bruce.-Queen's Bench.

193

and that the fact of the broken leg was im

material.

Held, that the direction of the learned judge was right, that if the plaintiff intended to claim damages for the broken leg, he ought, after the justification set up in the plea, to have new assigned that injury as a ground of damages, and not having new assigned it, he could not claim anything for that which was in substance a new trespass.

THIS was a motion on behalf of the plaintiff for leave to enter an appearance for one of the defendants named Chandler. On a former occasion a similar motion was made, when it was shown that the defendant had left his usual place of residence two months previously, and that it was believed that he was keeping out of the way to avoid, amongst other things, the service of the proceedings in this court; but that motion was refused. Since that application was made, a letter had been sent to THIS was an action of trespass. The declathe defendant through his father, in which ration alleged, that the defendant assaulted the reference was made to the necessary proceed- plaintiff, and beat and kicked him, and pushed, ings by advertisement to compel an appearance, dragged, and pulled him about, and otherwise and it was said, that if he was desirous of avoid- ill-treated him, and struck and knocked the ing this annoyance, he might do so by causing plaintiff' down and upon the ground, and broke an appearance to be entered for him, or com- one of the plaintiff's legs, whereby, &c. The municating his place of residence. In this defendant pleaded,-1. Not guilty; 2. Son letter was enclosed a copy of the subpoena. assault demesne; 3. That the plaintiff was conOn the 7th of August, a letter, in the defend- ducting himself in a disorderly manner in a ant's handwriting, was received by the plain-public-house at, &c., and disturbing the landtiff's solicitors, in which the defendant ac- lord, and also the defendant and other persons knowledged the receiptof the "letter in closing then in the house, and because the plaintiff rethe subpoena to appear to a bill filed by Messrs. Gathercole against him," and stated that he would attend to it. No further notice was taken by the defendant of the subpoena, and accordingly

H. Clarke now moved, under the 29th Order of May, 1845, for leave to enter an appearance for the defendant. He referred to the 4th

Order of the 21st Dec. 1833.,

The Vice-Chancellor said, that for all substantial purposes of justice the defendant had been served, but technically he doubted whether he had been so. He was willing to make the order asked, because he considered that the defendant had been substantially served, but the officers of the court might not consider it sufficient. If, however, they made no difficulty, he would make the order.

Dec. 1.-It was stated to the court that the registrars considered the service of the subpœna insufficient, and therefore the motion was refused.

Queen's Bench.

(Before the Four Judges.)

Moore v. Allard. Michaelmas Term, 1847. TRESPASS.

PLEADING.

JUSTIFICATION.

fused to go out when requested by the landlord, the defendant, in aid of the landlord, and to preserve the peace, endeavoured to turn the plaintiff out, and because he resisted and conducted himself violently, the defendant was compelled to resort to force, and in so doing necessarily committed the trespass complained of. Replication de injuria. The case was tried before Erle, J., at the last summer assizes for the county of Worcester, and the evidence was, that the plaintiff was using violent and abusive language to a person in a public-house, when the defendant got up and removed him out of the house. When they got out of the house some further altercation took place, blows were struck, and the plaintiff's leg was broken. The learned judge told the jurors that they were not to inquire about the broken leg, that it was not involved in the question which they had to decide, which was, whether the defendant was, under the circumstances, justified in turning the plaintiff out of the public-house. The jury found a verdict for the defendant.

Mr. Godson moved for a rule to show cause I why there should not be a new trial on the ground of misdirection. The learned judge was wrong in directing the jurors that the fact of the broken leg of the plaintiff was immaterial, and was not to be taken into their conDeclaration in trespass alleged that the de-sideration on these pleadings. In Penn v. fendant assaulted and kicked the plaintiff Ward," where the defendant pleaded moderate and broke his leg. The defendant pleaded chastisement, the court held, that if the plainthat the plaintiff was misconducting himself tiff at the trial intended to prove excess, he in a public-house, and that the defendant should have pleaded it. In this case the turned him out, and because the plaintiff breaking of the plaintiff's leg is alleged in the resisted the defendant was compelled to declaration, and is not a trespass existing at resort to force, and in so doing necessarily the time the plaintiff was turned out of the committed the trespasses complained of house, but succeeding those trespasses which Replication de injuriâ. The evidence was, the defendant justifies. It is one of a chain of that the defendant removed the plaintiff trespasses which is not justified by merely from the house, and at the door a struggle justifying that which preceded it. ensued and the leg of the plaintiff was Parker. In Phillips v. Howgate, the plaintiff broken. The learned judge told the jury that the question was, whether the defendant was justified in turning the plaintiff out,

b

Bush v.

Cr. M. & R. 338. 71 Bing. N. C. 72. c 5 Barn. & Ald. 220.

194

Superior Courts: Queen's Bench.-Common Pleas.

complained of a trespass and battery, the plea alleged a justification to both, but the justification to the battery was not proved, the court held the plaintiff entitled to judgment on that part, and that he need not new assign the battery.

Cur. ad. vult.

adding s, to the word house in the third column, and insertiny the name of the place where the first house occupied was situate, in the fourth column.

JOHN BOWDLER objected to the name of Henry Onions being retained on the original list of 101. occupiers for the parish of St. Alkmond, in the said borough. The list stood thus:

Christian

Name

of each

Voter.

Henry
Onions,
Baker.

Place of
Abode.

Nature

of Qualification. House

Butcher

in

Row. succes

sion.

Street, Lane, or other Place in the Parish where the Property is

situate.

Butcher Row.

Lord Denman, C. J., delivered judgment in this case. Having stated the pleadings and the evidence, his lordship said:-Upon the issue thus raised the question was, whether the justification was proved, and whether, while the jurors were trying the question of the justification of the trespass, they might lay out of view the consideration of the broken leg, on the ground that that injury to the plaintiff was an immaterial fact with regard to the issue itself. The jury found a verdict for the defendant. Henry Onions occupied two houses in imThe plaintiff had applied for a rule for a new mediate succession. It was proved that he trial on the ground of misdirection, because had removed from Coleham, in the parish of the learned judge had at the trial told the St. Julian, to Butcher Row, in the parish of jury that the breaking of the plaintiff's leg St. Alkmond, on the 1st of May, 1847. Both was an immaterial circumstance under the parishes are within the borough. The revising issue as it stood upon the record, and because, barrister was required to amend the third he did not leave that matter to the considera- column by making it "houses in succession," tion of the jurors when he directed them that and the fourth by inserting "Coleham ;" and if the justification as to the turning out of the he held that he had no power to do so, on the house was not established in fact, they must ground that both the qualifying properties ocfind damages for the plaintiff, but that if they considered it established, then on the pleadings as they now stood, the defendant must have a verdict. We are of opinion that there ought not to be any rule in this case, the injury to the plaintiff's leg not being a subject for consideration under the pleadings here, the proper question being confined to this, whether the justification was made out by the evidence. On the issue, such as its form was in this case, the plaintiff was not entitled to lay claim to the verdict. If he intended to claim damages for the broken leg, he ought, after the justification set up in the plea, to have new assigned that injury as a ground of damages, and not having new assigned it, he could not claim anything for that which was in substance a new trespass.

Common Pleas.

Rule refused.

SUCCESSIVE OCCUPATION.DESCRIPTION

OF QUALIFYING PROPERTY. AMEND-
MENT BY REVISING BARRISTER.

The appellant's qualification to vote was in
respect of two houses occupied in immediate
succession. In the list of voters, however,
his qualification was described in the third
column as "house in succession," and in
the fourth" Butcher Row," the latter being
the place where the house last occupied by
the appellant was situate. Held, that the
revising barrister had no power under the
6 Vict. c. 18, s. 40, to amend the list by

cupied in succession should be stated in the list, and he therefore expunged the name. Several other cases were consolidated with the principal one, and the names of the persons in those cases are to be retained on the list of voters in the event of the court holding the decision of the barrister to be wrong.

Whately, for the appellant. The list of voters in question is made out by the overseers of the parish, and it is submitted that, under the 40th section of the 6 Vict. c. 18, the revising barrister had the power to amend in the way asked. The 40th section enacts, "that the revising barrister shall correct any mistake which shall be proved to him to have been made in any list, and shall expunge the name of every person whose qualification as stated in any list shall be insufficient in law to entitle any person to vote, and also the name of every person who shall be proved to him to be dead, and wherever the christian name, or the place of abode, or other description of the property of any person the nature of the qualification, or the local or who shall be included in any such list, and the name of the occupying tenant thereof, shall be wholly omitted in any case where the same is by this act directed to be specified therein, or of any person whose name is included in any such list, or his place of abode, or the nature or description of his qualification, shall in the judgment of the revising barrister be insufficiently described for the purpose of being identified, such barrister shall expunge the name of every such person from such list, unless the matter or matters so omitted, or insufficiently described, be supplied to the satisfaction of such barrister before he shall have completed the revision of such list, in which case he shall then and there insert the same in such list."

Wilde, C. J. How do you distinguish this

Superior Courts: Common Pleas.

Whately was heard in reply.

195

case from Bartlett v. Gibbs, 5 Man. & Gr. 81, the statute of Victoria." The case of Flounders Lutw. Reg. Cas. 73, where it was decided that v. Donner is a totally different case from the the omission to state in the list, all the premises present. There the qualification was correctly held in succession, was a misdescription which described, and the objection merely as to the the revising barrister had no power to amend? omission of a number, by which it might be Whately. There the qualification was not "more clearly and accurately defined" within stated in such a way as to give the party suffi- the 40th section, that section expressly enabling cient notice of the change in the qualification, the barrister in such a case to alter the descripso as to enable him to make an inquiry as to tion of the qualification. On the whole, it is the occupation. But in the present case it is confidently submitted that the revising barotherwise, for the qualification is expressly rister's decision is correct. stated to be a successive one, namely, "house in succession." In the case of Flounders v. Wilde Č. J. I am of opinion in this case Donner, 2 Com. B. 63, 1 Lutw. Reg. Cas. 365, that the decision of the revising barrister is where the omission to state in the list the num-right, and that he had no power to make the ber of one of the houses held in succession, amendment asked. The case of Bartlett v. was held to be a valid objection. Erle, J., Gibbs has decided that where the right to says, "It is clear the revising barrister had a vote arises out of two houses held in succession, right to expunge the name from the list of both must be stated in the list, and I think the claimants, if he thought the description insuf-good sense of that decision, as well as the ficient, and if the number of the first house necessity for it with reference to the act of were not supplied to his satisfaction. But if parliament, is quite clear. The object of the the number were so supplied, then he had the legislature was that an opportunity should be power to insert that number, and it was his duty to do so." In the present case there was abundant evidence to enable the barrister to amend. Hitchins v. Brown, Pig. & Rod, 209, 2 Com. B. 25; 1 Lutw. Reg. Cas. 328, was also a strong authority in support of the power of amendment. The description here, pointed sufficiently for all purposes, to a successive occupation, and that it was in respect of two houses.

Keating for the respondent. The question raised is really whether the court will overrule the case of Bartlett v. Gibbs. There, as here, the subject of the qualification was stated to be a "house," and was that last occupied by the voter; and the only difference between the two cases is, that here the words "in succession" are added to the word house in the third column. Those words, it is submitted, make no real difference, as appears from the judgment of Tindal, C. J., in Bartlett v. Gibbs. He says, "We think the legislature intended that the registration list should afford such information of the nature and situation of the premises, in respect of the occupation of which each person claimed a right to vote, as would entitle the other voters to ascertain by inquiry the sufficiency of the occupation and value of such premises. And it is obvious that for such a purpose, in cases of successive occupation, the description of the premises formerly occupied by the claimant would be at least as necessary as the description of the premises still in his occupation, for without such information it might be difficult to prevent surprise and fraud on the one hand, or to avoid groundless opposition on the other." Then as to the power of amendment the judgments proceeds, "As the whole object of the notice would be defeated if the omission of any part of such qualification could be remedied at the court of revision, we are also of opinion that the addition of the premises &c., would be a change in the description of the qualification not warranted by the provisions of the 40th section of

given to ascertain whether or not the necessary incidents of the qualification existed, and that object would not be answered unless the situation of the qualifying property were fully stated. The statute having established the right to vote in respect of a successive occupation of different houses, it becomes just as important that the particulars should be given of one house as the other, and therefore it was that in Bartlett v. Gibbs, the court decided that both the houses held in succession must be stated. The court there also went further, and said, that the revising barrister had not the power to amend, by adding one of the houses which had been omitted. That being so, we have now before us the question of whether the description originally given of the property was such as, in Bartlett v. Gibbs, the court said was necessary, and it is quite clear to me that it was not, for here there is not merely an omission of something, but the statement of a false description. Nobody looking at the list had a right to suspect that the claimant had any other property in any other place than Butcher Row, and after going to Butcher Row a party would deem it unnecessary to go any further. If the claimant were allowed to supply the part wanting in the description at the last moment, and to say, as here, that he also occupied a house in "Coleham;" what time would a party have for inquiring into the circumstances under which he occupied? In one of the cases referred to, the omission of the numbers of the houses was held a good objection: here the description is generally "Butcher Row," and when the right to vote is impeached, and the objector is ready to prove that the claimant did not occupy the house in Butcher Row for the specified time, the latter says, No, I occupied a house part of the time in Coleham, and asks the revising barrister to amend. The revising barrister refuses to do so, on the ground that he had no power. Now the 40th sec, of the Registration Act gives the power to amend, if at all; and it provides, that

196

Superior Courts: Common Pleas.—Exchequer.

where the property shall be insufficiently de- Petersdorff now showed cause, and first subscribed or shall be wholly omitted, and the mat-mitted that even if the plaintiff's right to costs ter so insufficiently described, or wholly omitted, were at all affected by that act, the defendant shall be supplied to the barrister's satisfaction, an should have applied to enter a suggestion to amendment shall be made. But it being thought deprive him of them; Watson v. Quiller, 11 that too large a power was thereby given, a pro- M. & W. 706; Forman v. Davis, id. 730: and viso was added, which declared, that "the next relied on affidavits showing that on the barrister shall not be at liberty to change the 25th of March, when the action was comdescription of the qualification as it appears in menced, there was no County Court constituted, the list, except for the purpose of more clearly or judge appointed, or office open for the issuand accurately defining the same." Now, ing of writs under the new act, in the district surely it is very simple to see whether the mat- of Wimbledon, where the cause of action arose, ter required to be added here does define more and which was now within the jurisdiction of accurately, or whether it is not the addition of the Kingston Court. something wholly new and independent. What Bovill, contrà, contended that the act having is there with relation to "Butcher Row" more been brought into operation on the 15th of accurately defined by adding " Coleham?" It March by the order in council, in all actions seems to me to be something wholly independ- commenced after that day, which were of a ent, and if added would be substantially the character to be tried in the new courts, the addition of something new, not before found in plaintiffs were to be deprived of costs, whether the list. With respect to Hitchins v. Brown, there was a court then open or not in the disthe 4th column there gave expressly all informa- trict for trying them, as it was their duty to tion with respect to the two houses which con- wait till such courts should be constituted in stituted the qualifying property, and there- their neighbourhood. The Queen, by the fore, everything useful to be known. The order in council, directed the act to come into case of Flounders v. Donner was one in operation on the 15th March. From that day which the court directed that the omission of the numbers of the houses was material, because the statute in express terms said, that if a house had a number, it must be stated. With respect to the power of amendment, three of the judges in that case said nothing, but Mr. Justice Erle expressed an opinion to the effect that the revising barrister had such power. That case, however, did not apply at all to the present, for here the omission appeared to be something which, if added, would not be a more accurately defining," but an addition of something substantially different. On the whole, therefore, I think the revising barrister's decision must be affirmed.

Coltman, J., Maule, J., and Williams, J., concurred.

Decision affirmed with costs.

Exchequer.

Before Mr. Baron Platt.

Parker v. Crouch. Nov. 24, 1847. COSTS IN ACTIONS COMMENCED SINCE THE PASSING OF THE COUNTY COURTS ACT.

Per Baron Platt.-Plaintiff in an action commenced since the 15th March, is entitled to costs if there was no County Court open in his district at the time of his suing out the writ. Sed quære.

TRESPASS. The writ was issued on the 25th March, the declaration delivered on the 8th June, and the trial took place on the 9th August, at the Surrey Assizes, before Mr. Justice Coltman, when the plaintiff obtained a verdict for 40s. damages. The judge refused to certify, and the plaintiff subsequently having taxed his costs in the usual manner, the defendant obtained a rule nisi to set aside the taxation on the ground that the plaintiff was deprived of his costs by the 9 & 10 Vict. c. 95.

the County Court became the court for recovery of such claims. If she had not proceeded further, and neither appointed judges nor assigned districts, the old County Court, of which those under the present act were merely modifications, would be the proper court for entertaining such actions. The effect of the 128th and 129th sections was, that after the passing of the act no trifling action should be brought "for which a plaint might be entered in the County Court." These words "for which a plaint might be entered in the County Court" were descriptive of the cause of action, not of the court where the action was to be brought. If this were not the meaning of the act, it would have said “from and after the appointment of judges, the assignment of districts, the opening of courts, and the making of seals for the same, no action shall be brought;" but it said no such thing, the object of the legislature being to prevent the superior courts from being swamped by every petty action which had been lying by for years.

Platt, B., after stating the substance of the 1st, 2nd, 3rd, 4th, and 5th clauses, said, it was the obvious intention of the legislature to establish new courts after the fashion of the old County Courts, but which were not to be the County Courts. One of the provisions of the act was, that the County Courts might be holden simultaneously with those "holden under this act." He did not think that the words of the 119th section,-" if in any action commenced after the passing of this act in any of her Majesty's Superior Courts of Record for which a plaint might have been entered in any court holden under this act," could be said to apply to a proceeding under the old County Court, for that would not be a court "holden under this act," and in this case there was no other court at the time in this particular district in which a plaint might have been entered. The

Superior Courts: Exchequer.-Bankruptcy.—Analytical Digest of Cases.

197

construction contended for by the defendant Mr. Bamfield Hamer applied to Mr. would make the legislature provide that if the Commissioner Goulbourn for an order diplaintiff did not do what was impossible, he recting his discharge from custody, upon the should lose his costs. Could there be anything following statement of facts. He had been more absurd? The plain meaning of the served on the preceding evening with a sumstatute was, that if after the passing of it parties | mons signed by Mr. Commissioner Fonblanque, sued in the superior courts on causes of action for which they might sue in one of these new courts then actually open for the purpose of administering justice in the district, they should lose their costs in the contingencies specified under the 129th section. He was clearly of opinion that the present case did not come within the statute, and should therefore discharge the rule with costs.

Rule discharged with costs.

Bovill then asked for leave to enter a suggestion, otherwise there would be no means of reviewing his lordship's decision; and there was no reason why the defendant should not have the benefit of the objection on the record. Platt, B. I see no reason why I should give you the benefit of an apex juris. You have not hit the point properly. The motion now before me is at an end, and I will not interfere further. Do you move?

Bovill admitted that he was not in a position to move then.

(Before the full Court.)

November 25.

Bovill this day applied for a rule to have the suggestion entered on the roll, so that he might be in a position to bring before a court of error the question of the plaintiff's right to costs in this case. The same grounds having been again gone over as on the rule above to set aside the plaintiff's taxation of costs, the court granted a

Rule nisi to enter a suggestion.

Court of Bankruptcy.

calling upon him to attend this court, at ten o'clock, to give evidence before Mr. Commissioner Goulbourn in the matter of an insolvent named Irwin. He left his home this morning a few minutes after nine o'clock, in obedience to the summons, intending to proceed directly to the court, but before he was twenty yards from his own door he was arrested, and was now in custody of the officer.

Mr. Commissioner Goulbourn inquired upon the officer produced his warrant, which appearwhat process the applicant was arrested and ed to have been granted by Mr. Commissioner Law, one of the insolvent commissioners, under the Small debts Act, 8 & 9 Vict. c. 127, e. 1, for a judgment debt which, including costs, amounted to 271. The learned cominissioner said, it was matter of some doubt whether a warrant issued under this Act was to be considered in the nature of process for contempt, or as an execution for a debt. If it was to be considered in the light of an execution for a debt, the witness was clearly entitled to his discharge. As the matter was of some importance, he should consult his brother commissioners. The learned commissioner then retired, and upon his return stated, that he had had an opportunity of consulting Commissioners Evans and Fonblanque, who agreed with him in thinking, that Mr. Commissioner Law's warrant in this case was to be regarded as similar in effect to an ordinary writ of capias ad satisfaciendum. Such being the case, the witness was clearly privileged from arrest, coming to, remaining at, and returning from, this court, where he was summoned to give evidence. Upon making oath to the facts

In re Irwin. Exparte Hamer. 17th Dec. already stated by him, Mr. Hamer would be

1847.

WITNESS.-PRIVILEGE FROM ARREST.

A witness arrested on his way to the Court of Bankruptcy, by virtue of a warrant issued under the Small Debts Act, is entitled to be discharged from custody.

entitled to his discharge; but he must sign an undertaking not to bring any action, though it was extremely doubtful, under the circumstances, whether any action would lie.

Mr. Hamer having sworn to the facts above stated, and signed the required undertaking, was then discharged from custody.

ANALYTICAL DIGEST OF CASES.
REPORTED IN ALL THE COURTS.

the footing of wilful neglect and default, but made no case of misconduct against them, except that they had improperly defended an action in which they had failed, and the costs of which they had claimed to retain out of the estate. The court at the hearing, although of opinion that the action ought not to have been defended, gave the defendant their costs of the depositions which had been taken relative to that subject, on the ground, that having no connexion with a case of wilful neglect and de