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1883.

independently of any statute, we, as conservators of the peace, Ex p.SEYMOUR have jurisdiction to require security for good behaviour from any Ex P. BEARNA

v. DAVITT; persons whose acts or speeches are shown to be likely to endanger

v. HEALY; the public peace. Our jurisdiction is entirely independent of the Exp. SeyMOUR statute 34 Edw. 3, and the statute of 21 Jac. 1, or the corre

v. QUINN. sponding statute of Charles 1 in this country, which was passed in order to prevent abuses in the exercise of the jurisdiction by the Courts of Chancery and Queen’s Bench, and prescribes the Sureties for mode in which it is to be carried out. It is only necessary to refer

good behaviour. to the most elementary treatises in our law to establish this proposition. In 4 Bl. Comm. c. 18 (ed. 1857), the subject is fully explained, viz., the means of preventing offences. He says, at page 298: “This preventive justice consists in obliging those persons, whom there is probable ground to suspect of future misbehaviour, to stipulate with and to give full assurance to the public, that such offence as is apprehended shall not happen, by finding pledges or securities for keeping the peace, or for their good behaviour.” He says, at page 299, mention is made of this in the laws of Edward the Confessor, Tradat fidejussores de pace et legalitate tuendâ ; and he says, at page 253, “ Any justices of the peace, by virtue of their commission, or those who are ex officio conservators of the peace, as was mentioned in a former volume, may demand such security according to their own discretion, or it may be granted at the request of any subject upon due cause shown.” We turn to 1 vol. c. 9, page 350, where he says, " The Lord

" Chancellor, &c., and all the justices of the Court of King's Bench by virtue of their offices are general conservators of the peace throughout the whole kingdom, and may commit all breakers of it or bind them in recognisances to keep it.” Therefore we, in exercising this jurisdiction, are not embarrassed by considering the precise import of the words “of evil fame” in the statute of Edward, or the construction of the words of the Commission of the Peace, we have only to consider whether the language or conduct complained of endangers, or is likely to endanger the public peace. Neither is this a case in which musty statutes and obsolete laws are called into existence in order to abridge the liberty of the subject, and deprive him of his constitutional right to be tried by the ordinary course of law; if it were I should be no party to it; it is an act of prevention, and may be fitly used, though no offence actually indictable has been committed, and entails no hardships on those who intend, not to defy and outrage the law, but to conform to its just and reasonable requirements. Then arises the second question-do the acts and words of the parties charged before us call for the exercise of this salutary jurisdiction. Hawkins, bk. 1, c. 28, lays down, “no one ought to be bound to the good behaviour for any rash, quarrelsome, or unmannerly words, unless they either directly tend to a breach of the peace, or to scandalise the government by abusing those who are intrusted with the administration of justice;” and he says such recognisance will be forfeited

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Exp. Seymour " by speaking words tending to sedition.” Now it appears in these v. DAVITT;

cases from the affidavits before us, and the reports of the speeches Er p. BEARNS v. 'HEALY; furnished to us, that they were delivered at public meetings to . Erp. Seymour large numbers of persons, “held,” to use the language of the ". QUINN. affidavit, “in pursuance of an illegal combination against the 1883. payment of rent, and in consequence of which numerous crimes

and outrages were committed in various parts of the country. Sureties for I have read the reports of these speeches, and in my opinion good behaviour.

they far transcend the limits of just comment upon public affairs. It would be a very mild description of them to say they tend to sedition. They are in my judgment a distinct incentive to crime and outrage. I think it unnecessary to repeat the language here. Michael Davitt in effect invites to civil war when he points to the possible incursion of hordes from Donegal and Connemara to take possession of the fertile lands of Meath. He advises the people not to pay any rent from November till next May, unless, forsooth, Mr. Gladstone will comply with Mr. Davitt's requirements. Mr. Healy describes the British Government in Ireland as a system of land piracy, and, being an organisation against the will of the people, was simply an organisation of so many pirates and so many brigands, and was entitled to the same moral respect as the wishes of a man who held a revolver to your head, and said "your money or your life," and in no ambiguous terms he advises his hearers not to pay the judicial rents any more than the former rents. We may well ask how is it possible that Government can be carried on, that peace can be preserved, or Her Majesty's subjects be protected from outrage and assassination if such meetings and speeches are allowed to pass unchecked. . Mr. Quinn's speech is to the same effect, and very little less violent than those of his companions. We are asked, then, by the Attorney-General, as conservators of the public peace, to put this jurisdiction in force, in order to prevent the recurrence of these things. The case has been met by the traversers in a very defiant manner. Mr. Healy boasted that he had since made many speeches as criminal, and would continue to do so. He alleges that other persons in high positions have made use of language as seditious as his. With that we are not concerned even if true, which I do not believe it is, and it affords no argument when addressed to a judicial tribunal. It may be that the remedy sought for by this application may be wholly inadequate or insufficient to meet this state of things. Upon that I express no opinion; it is a matter for the Executive Government of the country to consider; our duty is plain and clear to deal with the case before us according to law.

BARRY, J.-After the able and exhaustive judgments just delivered it is only necessary for me to say that I concur in the opinion that this order should be made. In the addresses delivered at the bar by the defendants, Messrs. Davitt and Healy, a great deal was urged or suggested to the effect that in instituting this proceeding the Government displayed political, and

1883.

some of its members personal, inconsistency, and that the Exp. SEYMOUR Government, whatever may be the legal position of the case, Ex P. BEARNS

v. DaVITT;

, acted unconstitutionally in adopting this form of procedure l'. HEALY; instead of submitting their complaint, if they have one, to the Exp. SEYMOUR determination of a jury. I need scarcely say that on these points

v. QUINN. I directly or indirectly offer no opinion; in fact I can best describe my state of mind by saying that I am not conscious of having formed any opinion. I confine myself to the only two Sureties for

good behaviour. questions submitted to us for determination, namely, first, has this Court jurisdiction to make the order applied for by the Attorney-General; and, secondly, are the facts such as to entitle him to demand at our hands the exercise of that jurisdiction. Now, as to the jurisdiction, I confess that if, as has been mooted during the argument, the origin of and sole foundation for requiring persons to find sureties for good behaviour on such a charge as that put forward by the Crown in this case was the language of the statute 34 Edw. 3, respecting "them that be not of good fame," I should hesitate, in the absence of any authority, and there is none, to hold that the jurisdiction of that statute could, by a sort of implication, be held to extend not merely to the local justices, who were to be appointed under its direction, but to this court. It might be, no doubt, & very anomalous state of things that local justices should possess a jurisdiction which this court would not possess; but even the existence of such an anomaly could not affect the construction of the language if otherwise clear and unambiguous. It was argued for the Crown that the words “process of the peace or good behaviour," in the statute 10 & 11 Car. 1, c. 10 (Irish) must have reference to or include all cases, whether originating in the statute of Edw. 3 or otherwise; but this is by no means necessarily so. It does not seem disputed that not only this court, but local justices, possessed power irrespective of the statute of Edw. 3 to hold persons to good behaviour in certain cases, and the words of the statute of Charles I. would be satisfied by referring them to the issuing of process in such cases. But I do not think it necessary in this case to have recourse to a construction so forced of the statute of Edw. III. as that it created a novel jurisdiction, and merely by implication conferred it upon this Court. I am disposed to hold, and as at present advised, would hold, that the statute of Edw. III. created no new jurisdiction, and that the true construction and result of the statute is tbat it directed local justices to be appointed throughout the kingdom, and it then proceeds in general terms to describe the powers to be possessed and exercised by these magistrates-powers, some of them perhaps new to local justices, but previously possessed and exercisable by this court and the other high tribunals and functionaries entrusted with the conservation of the public peace and good order. But whatever may be the construction or effect of the statute of Edward, whether it created any new jurisdiction and conferred it upon this court, or whether it merely conferred upon the new

VOL. XV.

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1883.

Exp. Seymour local magistrates a jurisdiction formerly existing in other tribunals,

". DAVIIT; I am of opinion that in a case like the present, when the charge Ex p. BEARNS

v. "HEALY; against the defendants is the public utterance of language of a Ex p. SEYMOUR seditious character calculated to endanger the public peace

and v. Quinn.

promote public disorder-in such a case I am of opinion that, irrespective of the statute of Edward III., or any other statute,

this court possesses, and has possessed from the earliest times, an good behaviour. original inherent jurisdiction to entertain such a charge ; and if

it be established, to issue process of good behaviour against the
defendants. The only question then remaining is, has the charge
been established in evidence. The affidavits filed for the Crown
primâ facie sustain the charge ; no affidavits in contradiction
have been filed by Messrs. Davitt and Healy ; an affidavit has
been filed by Mr. Quinn, but of a character so vague as not to
amount to any contradiction or qualification of the evidence
adduced by the Crown. Under these circumstances I am of
opinion that the court has no alternative but to make the order
applied for.

Order made.
Solicitor for Seymour and Bearns, T. Gerard.
Solicitor for Quinn, McGough.

a

QUEEN'S BENCH DIVISION.

Nov. 27 and Dec. 20, 1882.

(Before FIELD and WILLIAMS, JJ.)

CHICHESTER v. HILL AND Son. (a)
Right to restitutionOwner of a stoler negotiable instrument,

Bonâ fide transfer-Action to recover—24 & 25 Vict. c. 96,

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s. 100.

Sect. 100 of the Larceny Act, 1861, enacts that upon conviction

for felony or misdemeanour under that Act the property acquired shall be restored to the owner, and in every case the court before which the conviction takes place shall have power to order restitution in a summary manner, provided that in case of a bona fide transfer of a negotiable instrument for value, and without notice or reasonable cause to suspect, the court shall not award or order the restitution of such security.

(a) Reported by M. W. MCKELLAR, Esq, Barrister-at-Law.

1883.

The defendants had bona fide and without cause to suspect acquired CHICHESTER

the possession for value of a New Zealand bond for 10001., HILL AND SON. which had been stolen from the plaintiff's possession, after the

conviction of a person for feloniously receiving the same. Held, that the proviso in the above section applies to the right to

Restitution of recover as well as to the summary restitution of a negotiable stolen property instrument, and that, under the circumstances, the owner of the Right of bond could not recover it from the transferees.

action.

THIS
HIS was a special case stated for the opinion of the Court,

from which it appeared as follows:
The plaintiff is the rector of Drewsteignton, in Devonshire,
where he resides, and the defendants are stock and share brokers,
carrying on business in the city of London.

In or about the month of July, 1880, the plaintiff's dwellinghouse was entered, and (inter alia) a New Zealand Five per Cent. Consolidated Government Bond for 10001., and numbered 1713, the absolute property of the plaintiff, was then feloniously stolen from his said house.

In November, 1880, one Walter Selwyn deposited with the Westminster Branch of the Imperial Bank Limited the said bond, and obtained thereon an advance of 8001. from the said bank. On or about the 16th day of November, 1881,

the said Imperial Bank Limited delivered to Messrs. Oates and Cockburn (jobbers in stocks and shares) the above-mentioned bond No.1713 in part performance of a contract for sale.

On the 26th day of November, 1881, the said Walter Selwyn having been indicted by the Director of Public Prosecutions, within the meaning of sect. 7 of the Prosecution of Offences Act 1879 (42 & 43 Vict. c. 22), for having feloniously received the said bond well knowing the same to have been stolen, was convicted thereof at the Central Criminal Court on that day.

On the 30th day of November, 1881, H. L. Scott and Son
obtained from the said Messrs. Oates and Cockburn the said bond
No. 1713.
In fulfilment of a contract of sale the said H. L. Scott and Son

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tendered to the defendants' on the said 30th day of November,
1881 (inter alia), a certain New Zealand Government bond for
10001., which is numbered 1713, and is the bond so stolen from
the plaintiff; and the defendants then accepted and took delivery
of such bond in part completion of their said contract of
purchase, and paid the purchase price thereof.

The said bond, was at the date and under the circumstances above mentioned, bonâ fide taken or received by the defendants by delivery thereof to them for a just and valuable consideration, without any notice or reasonable cause to suspect that the same had by any felony or misdemeanour been stolen, or taken, or otherwise improperly obtained. No writ or order of restitution was applied for or has been obtained by the plaintiff. The defendants are still in possession of such bond, and while

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