448 Analytical Digest of Cases: Common Law Courts. TENDER. See Composition Deed. TOWN CLERK'S ACCOUNTS. TRESPASS. Colour. Reversion. - Condition. - Vi et suage was not kept in repair, and the defend ant entered in pursuance of the proviso: Held, 1st, that the defendant was an assignee within the 32 Hen. 8, c. 34, and could therefore avail himself of the condition of re-entry; 2ndly, that, although livery of seisin is rendered unnecessary by the 8 & 9 Vict. c. 106, s. 2, in order to pass an estate of freehold, the colour given by the plea did not show a title in the plaintiff; 3rdly, that the allegation vi et armit does not import a breach of the peace; and 4thly, that the matter alleged in the rejoinder was not a departure from the plea. Wright v. Burroughes, 4 D. & L. 438. with a common count on an account stated, and the latter count will be struck out as in "apparent violation of the above rule. armis.-Trespass quare domum fregit. Plea, Mathewson v. Ray, 16 M. & W. 329. that M. being seised in fee of the messuage in the declaration mentioned, demised to L. for 21 years, who demised it to the defendant for the residue of that term less one day. It then gave colour that "under colour of a charter of Remedy for not delivering--Case. Declara- demise, pretended to be made to the plaintiff, tion stated that defendant, after 9th November, whereas nothing passed by it," &c.; and then 1835, and after the first election of councillors justified the trespass. Replication, that before under stat. 5 & 6 W. 4, c. 76, was appointed the demise to the defendant by L., he demised and acted as town clerk of the borough of L., to F. for 3 years, and that F. assigned his term and continued to be and act as such town to the plaintiff. Rejoinder, that the demise to clerk, until the expiration of his office by his F. was subject to a proviso for re-entry prelawful removal; that, after such removal, and served to L., his executors, administrators, and within three months after the expiration of de-assigns, in case of non-repair; that the mesfendant's office, the council of the borough, in pursuance of the statute, fully authorised and appointed 4. to receive from defendant, and required defendant to deliver to A. a true account in writing of all moneys committed to defendant's charge as such town clerk, by virtue of the act, and also of all moneys, &c., together with proper vouchers, &c., and also a list of the names of debtors, &c.; of which premises defendant, within the three months, had notice, and was, within the three months, required by A., pursuant to the authority, to deliver the said matters and things which A. was so authorised to receive; that since defendant had such notice, &c., and within the three months, a reasonable time for the delivery had elapsed; that before the expiration of defendant's office, to wit, on, &c., divers matters and things were committed to his charge under the act, and for the corporation, viz., certain deeds, &c.; that during the time aforesaid, defendant received moneys amounting, &c., by virtue and for the purposes of the act, and had not tendered any account thereof to plaintiff; and that, before and at the expiration of defendant's office, there were divers persons from whom moneys were due for the purposes of the act, which ought to have been received and accounted for to plaintiff by defendant, but who had not paid the same: Breach, that though it was defendant's duty to deliver the said matters and things pleaded a former recovery by 4. in trover In trover by A. against B. for a bedstead, B. to A., and A. all the time continued to be au- for the same identical bedstead against C.; thorised to receive them, defendant had not delivered them to A.; by means whereof plain- that action was brought, was a conversion not averring that the conversion by C., for which tiffs were kept in ignorance of matters which later in point of time than the conversion men ought to have been contained in the account, tioned in the declaration against B., and that, list, and vouchers, and had been prevented before the conversion in that declaration men from obtaining money which they might have obtained if defendant had performed his duty, sold it to B., who paid him for the same, and tioned, C., being possessed of the bedstead, and from carrying on the business of the cor- received it under such sale, and that the taking poration: Held, on special demurrer, that an action on the case for breach of duty lay against the defendant, and that plaintiffs were not restrained to the summary remedy, under stat. 5 & 6 W. 4, c. 76, s. 60, before justices of the. peace. And that the appointment of A. to receive the several matters and things, and the defendant to deliver them, were sufficiently alleged. Mayor of Lichfield v. Simpson, 8 Q. B. 65. Cases cited in the judgment: Taunton v. Costa, 7 T. R. 431; Matures v. Westwood, Cro. Eliz. 599, 617; Chaworth v. Phillips, Moore, 876. See Justification. TROVER. chattel converted by him to his own use, upon Vesting in defendant of the property in the that conversion being established by a judg ment recovered against him in an action of trover. Plea, of a former recovery in an action against a third party. in the chattel in the defendant as against the A recovery in trover vests the property plaintiff. under such sale was the conversion complained of in the declaration against B: Held, that this plea was a good answer to the action. Cooper Shepherd, 3 C. B. 266. Cases cited in the judgment: Adams v. Brough ton, 2 Stra. 1078; Andrews, 18; Bird v. Ra dell, 2 Burr. 1345; Comyns v. Boyer, Cra Eliz. 485; Leyfield's case, 10 Co. Rep. 99,1; Unwin v. St. Quentin, 11 M. & W. 277. The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, MARCH 11, 1848. "Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. NEW BILLS BEFORE PARLIAMENT. however, whether some of the provisions of -PROTECTION OF JUSTICES' BILL. the proposed bill would not operate to abridge the rights of parties injuriously THE Scope and objects of four separate affected by the acts of magistrates, and to bills laid upon the table of the House of deprive them of those remedies which the Commons, shortly after the re-assembling existing law affords, where a justice acts, inof parliament, by the Attorney-General, advertently, negligently, or without due were briefly adverted to in a former number, caution and circumspection, although not (ante, p. 390). The bills have since been corruptly or maliciously. As this bill, in printed, and regard being had to the subject- common with the others presented to parmatter of the proposed enactments, as well liament by the Attorney-General, has been as to the changes introduced by them in referred to a select committee, consisting of law and practice, it must be admitted the the Hon. and Learned Mover, together with bills are one and all deserving of careful Mr. Henley, Mr. Clifford, Sir John Pakconsideration on the part of, the magistracy, ington, Mr. Langston, Mr. Cripps, Mr. the legal profession, and the legislature. Wrightson, Mr. Robert Palmer, and Sir Of the four bills, that which strikes us as John Guest, it would be idle to anticipate far the most important in reference to its the alterations that may be introduced in it, effects upon public and private rights, is or the shape it may assume when it is again that entitled "A Bill to protect Justices of brought under the consideration of the the Peace from Vexatious Actions for Acts House. All that can be done at present is, done by them in the execution of their to direct attention to the leading provisions office." of the bill as it is printed, a knowledge of which will enable our readers to appreciate the spirit in which the subject will be dealt with by the committee. The intention of the proposed measure, as appears from the preamble, is to preserve justices of the peace, acting in the bond fide exercise of what they may have conceived The bill begins by enacting, that every to be their duty, from vexatious actions, action brought against any justice, for any reserving, nevertheless, to a party injured act done by him in the execution of his duty by any act of a justice, the right to main- with respect to any matter within his juristain an action, where the justice has acted diction, shall be on the case, and it shall maliciously, and without reasonable or be expressly alleged in the declaration that probable cause. It may be safely conceded, such act was done maliciously and without that justices are fairly entitled to the pro- reasonable or probable cause, and if at the tection here contemplated, so far as such trial upon the general issue pleaded, the protection is compatible with the security plaintiff shall fail to prove such allegation, of individuals in respect to their liberty, he shall be nonsuited, or a verdict given for property, and character. It may be doubted, the defendant. In every case in which a VOL. XXXV. No. 1,044. U 450 New Bills before Parliament.—Protection of Justices' Bill. justice acts within the scope of his jurisdic- 9th section fixes the period of limitation in tion, therefore, to entitle the plaintiff to actions against justices at "six calendar recover, he must prove, not only that the months next after the act complained of defendant acted without reasonable and shall have been committed;" so that if the probable cause, but also that he acted ma- conviction or order is not quashed within liciously. The expediency of throwing this that period, the right of action is at an end. twofold shield around justices is somewhat The proviso which takes away the right of questionable. The race, of which Justice action against a justice for anything done Shallow is the dramatic incarnation, may on a warrant, preceded by a summons which not yet be extinct; but we think too highly has not been attended to, requires to be conof this class of the magistracy to suppose siderably modified. As at present framed, that they need the protection of the law to a case may be supposed, in which a sumsuch an extent, that no man can maintain mons should be left at an accused person's an action unless he is prepared to prove that house, at a time, or under circumstances, the justice has acted wickedly as well as which would render it impossible for the absurdly. It were much better and more accused party to attend according to the intelligible at once to enact, "without more," exigency of the summons. If an illegal that no action should be maintainable warrant then issued, however grievous the against a justice for anything done by him injury inflicted by its execution, the injured in the execution of his office. party would be left without any remedy against the justice! The second section provides, that for any act done under a conviction or order made, The 3rd section of the bill appears to be or warrant issued, by a justice, in a matter unobjectionable: it simply enacts in which he has not jurisdiction, or in which where a conviction or order shall be made he shall have exceeded his jurisdiction, no by one justice, and a warrant of distress or action shall be brought until the conviction commitment shall be granted thereon by shall be quashed; or, if the warrant be fol- another justice, bond fide and without collowed by an order or conviction, until the lusion, no action shall be brought against order or conviction shall be quashed; and the justice who granted such warrant, but it is further provided, that if a justice issues the action (if any) shall be brought against a warrant for an alleged indictable offence, the justice who made such conviction or and the person against whom the warrant order. issues has been summoned personally or by The next section provides, that no action leaving the summons at his abode, and does shall be brought against the justice who not appear according to the exigency of the grants a warrant of distress against any summons, no action shall be maintained person named and rated in a poor rate, by against the justice for anything done under reason of any defect or irregularity in the such warrant. Bearing in mind that this rate, or by reason of such person not being section contemplates no other cases but liable to be rated therein, unless the plainthose in which a justice has acted without tiff shall have appealed against such rate, jurisdiction, or has exceeded his jurisdiction, and unless at the time of issuing such warin other words, where he has acted rant such appeal be then pending, or have illegally-the difficulties sought to be thrown been tried and such rate quashed. In this in the way of the party aggrieved in seek- case, as in the case of convictions and ing to obtain redress are of a very serious orders already adverted to, the injured party nature. If the illegal act of the justice is to incur the expense of appealing against arises upon an order or conviction, the order the rate, before the action can be comor conviction must be quashed, either upon menced. appeal, or by application to the Queen's The 5th section declares, that where a Bench, as a proceeding preliminary to bring- discretionary power is given to a justice by ing the action. Those who have any prac- any act of parliament, no action shall be tical acquaintance with such matters know, brought against him by reason of the that an order or conviction cannot be manner in which he shall have exercised his quashed, either upon appeal, or by applica- discretion-a provision which, if necessary, tion to the Queen's Bench, without con- seems to be reasonable. siderable expense and delay, and the bill under consideration does not point out how the injured party is to be reimbursed or indemnified for the expense to be incurred in quashing the conviction or order; but the The 6th section proposes to introduce a novel branch of practice. It recites, that justices often refrain from the execution of duties relating to their office, doubting whether they may lawfully act, and fearing New Bills in Parliament.-Protection of Justices' Bill. copy 451 actions, and that it would conduce to the The 14th section is substituted for the advancement of justice, if such justices were provisions of the statute 43 Geo. 3, with enabled and directed to perform their duties some important modifications. We it without risk. It therefore enacts, that without abridgment :where a justice refuses to do any act for fear of subjecting himself to an action, the party requiring such act to be done may apply to the Queen's Bench upon affidavits, for a rule, calling upon such justice, and also upon the party to be affected by such act, to show cause why such act should not be done, and if good cause shall not be shown, the rule may be made absolute, with or without costs; and the justice, upon being served with the rule, shall obey the same, without being subject to an action for such obedience. The effect of this enactment will be, to relieve justices from all responsibility which they are not willing voluntarily to incur. Every doubtful question will have to be discussed and determined in the Court of Queen's Bench in the first instance, and with the pressure of business which already exists in that court, it is not easy to conceive how the judges will find time to dispose of the additional business thus sought to be thrown upon them. The 7th section merely provides, that where a warrant of distress or commitment founded on a conviction or order shall be confirmed upon appeal, no action shall be brought against the justice who granted such warrant, by reason of any defect in such conviction or order; and the 8th section enacts, that if an action be a brought against the provisions of this act, court. "In all cases, where the plaintiff in any such action shall be entitled to recover, and he shall prove the levying or payment of any penalty or sum of money under any conviction or order, as parcel of the damages he seeks to recover, or if he prove that he was imprisoned under such conviction or order, and shall seek to recover damages for any such imprisonment, he shall not be entitled to recover the amount of such penalty or sum so levied or paid, or any sum beyond the sum of twopence, as damages for such imprisonment, or any costs of suit whatsoever, if it shall be proved that he was actually guilty of the offence of which he was so convicted, or that he was liable by law to pay the sum he was so ordered to pay, and (with respect to such imprisonment) that he had undergone no greater punishment than that assigned by law for the offence of which he was so convicted, or for non-payment of the sum he was so ordered to pay. The 15th section provides for costs, which, in certain specified cases, are to be taxed, either for plaintiff or defendant, as remaining section of importance is the 18th, between attorney and client; and the only which repeals the 7 James 1st, c. 5, the 21 James 1st, c. 12, so much of 24 Geo. 2, c. 44, as relates to actions against justices, and the 43 Geo. 3, c. 141, except so far as they may repeal other statutes. Anxiously desiring to see the magistracy in every grade upheld and protected in the administration of their duties, we deem it also desirable, that the execution of a trust so grave and important should be attended with a degree of responsibility sufficient to secure the exercise of due caution and consideration on the part of those invested with such extensive powers. The summary above given of the leading provisions of the bill now before parliament, and the accompanying observations, will enable our readers to judge for themselves whether the principle of protection is carried so far, as to engraft unnecessary exceptions on the rule, that there is no wrong without a remedy. When the bill is again submitted to parliament, after having passed through committee, we shall revert to its enactments, and hope to find them amended in such a commendation less qualified than we are manner as to entitle the bill to a degree of now enabled to bestow upon it. 452 Proceedings for Repealing the Certificate Duty. PROCEEDINGS FOR REPEALING the larger branch of that profession of THE CERTIFICATE DUTY. which he is the head. Obviously, however, there must still be 6 & 7 Vict. c. 73, (the Attorneys' and Soan annual registration of attorneys. The licitors' Act,) will require some alteration in order to simplify the annual certificate now issued by the Registrar of Attorneys and Solicitors, and render it a complete autho rity to practise, without either stamping or In our last week's statement of the measures adopted for bringing before parliament the subject of the repeal of the certificate duty, we reported the proceedings of the Incorporated Law Society and the Manchester Law Association. The Metropolitan and Provincial Law Association are also in entering. Besides, therefore, the subthe field,―joining the other professional bodies in promoting the general object. The statement in support of the repeal of the tax, a copy of which appeared in our last number, (p. 424, ante,) has been forwarded, 1st, to all the provincial law societies,-2ndly, to all the country members of the Incorporated Society,-3rdly, to all the country members of the Metropolitan and Provincial Law Association,—and 4thly, in the towns where there are no law societies, or members belonging to any law society, (we are sorry to say a considerable number,) it has been transmitted to the town clerk, or clerk to the magistrates, or other influential solicitor. stantial saving of money, there will be a saving of time and trouble. granted that there is no present chance of One of our contemporaries takes for success, and talks proudly of buckling on his armour for five years, anticipating a long harvest of profitable exertion. We would make much fewer campaigns in at tacking this grievance, and have no apprehension that our occupation will be gone" when that grievance is no more. There are other large fields of periodical exertion:Such as the taxes upon the administration of justice;-the right of advocacy by attorneys ;-removing the restrictions of the Inns of Court;-the encroachments made Numerous petitions, as our readers are in regard to government solicitorships;aware, have already been presented for the the exclusion of attorneys from local judgerepeal of the tax, of which a list is subjoined. ships and other posts of distinction;These are, for the most part, from the forced and unauthorized references and smaller towns and from individuals, the compromises;-many objectionable points signatures amounting to about 1400. To in the practice of retainers;-neglect of this number we must now add the 1400 attendance after acceptance of briefs;—and members of the Incorporated Law Society other matters equally injurious and incon represented by the Council under the com- venient both to clients and attorneys. mon seal of the society. Doubtless, when Ample scope and room enough may be the petitions of Manchester, Liverpool, here found for five years, but we hope to Birmingham, Leeds, and other large towns make much shorter work of the poll-tax. and districts, are presented, the numerical force will be more than doubled. It is proposed, we understand, to convene a general meeting of the whole London profession, in the Hall of the Incorporated Society, at as early a day as may be expedient; and, at all events, to procure the individual signatures of London solicitors, and to put their influence in requisition amongst the members of parliament. We proceed now to a few points of prac tical advice in conducting the attack upon the stronghold which has to be carried. should be as speedily as possible sent up 1. We recommend that the petitions to the members representing the several counties, cities, or boroughs where the pe titioners respectively reside. This will be preferable to sending them either to the The intended bill for the repeal of the litan and Provincial Law Association, or Incorporated Law Society or the Metropotax, to which we adverted last week, may through any other professional channel in aptly follow the precedent of 1824, repealing the stamps on law proceedings by the 5 Geo. 4, c. 41. Sir John Copley was then the Attorney-General, and we hope that Sir John Jervis will not be less willing than his distinguished predecessor to do justice to There are no less than 15 English and 10 Welsh counties in which there is no law society. London. By submitting them to the members themselves, attention will be better secured than through any other medium. mation be given to the Secretary of the In2. We would suggest, also, that inforcorporated Law Society and the Metropoli tan and Provincial Law Association, of whatever petitions may be presented, and to whom entrusted. |