[*688

the Court in Rex v. The Justices of the West Riding, 7 B. & C. 678, *and Rex v. Blackawton, 10 B. & C. 792, is expressly in his favour. [DENMAN, C. J. We do not think anything of that objection.] As to the second point, even the rule of the sessions only requires ten days' notice, exclusive of the day of service and first day of the sessions, in those cases where it is not otherwise directed by law. Here the statute requires ten days' notice; the proper construction of which, according to the general rules of law, is, that one day shall be reckoned exclusively and one inclusively. That mode of construction is adopted in the new rules of Court, Hil. 2 W. 4, 3 B. & Ad. 393, and was recognised in Pellew v. The Hundred of Wonford, 9 B. & C. 134, as applicable where the computation is made from an act done by the party against whom the time runs. That is so here. If the sessions intended, by their rule of practice, to require ten days' notice exclusively, where a statute only prescribes "ten days' notice," the question then will be, whether the justices ought to have acted upon such a rule, and if not, this Court will exercise its discretionary power of controlling their practice, as in Rex v. The Justices of Wilts, 10 East, 404, and Rex v. The Justices of Lancashire, 7 B. & C. 691. As to the third objection, it is not denied that there were notices of appeal against three orders: the appellant was called upon in Court to elect on which appeal he would proceed; and when one had been dismissed in the manner stated, it became useless to proceed with the others.

DENMAN, C. J. I am of opinion that this rule must be made absolute. As to the last objection, the omission *to proceed on the appeal to the first

and third orders is explained by the decision of the Justices on the [*689

:

second and it appears sufficiently on the affidavits that the attorney meant to tender his appeals to be entered against the three orders. With respect to the second point, the rule of practice at the sessions is inapplicable here; for it applies only to "cases of appeals not otherwise directed by law." Here it is directed by the statute that there shall be ten days' notice of appeal to the sessions, and that, according to the practice of the superior courts in other cases where such notice is required, must be taken to mean that one day shall be reckoned inclusively and one exclusively. It was not competent to the sessions to impose such a rule as is here contended for; if they meant it to be applicable to this statute, they have misconstrued the clause in question; but it seems to me that they have merely left the act as they found it. On the first point their decision was right.

LITTLEDALE, J. The words " ten days' notice" in 55 G. 3, c. 68, s. 3, must be construed as such words are in other cases, and are not affected by the rule of the sessions. It does in this case sufficiently appear by the words of the notice that the appellant is a party aggrieved; the allegation of inconvenience to the public in general, is an addition which make no difference.

PARKE, J. If the time of notice was already fixed by law, the rule of sessions does not interfere with it; and if the rule were intended to have that effect, this Court might exercise a control over it. The act *says there shall be "ten days' notice" of appeal to the sessions, and the Court cannot [*690 adopt a better rule for construing the words than that which has been already adopted in similar cases. If the legislature had intended a different practice to be followed in this instance, they would probably have said "ten clear days.” With respect to the appeals against the several orders, it seems that the intention of the appellant was to enter his appeals against all the orders. If that was not done, there is nothing to shew that it was his fault. On the first point, I think the decision of the justices was right.

Ex parte BATTINE, LL.D. April 25.

Rule absolute.

A pension during his Majesty's pleasure, granted by order in council on petition, for past services as advocate of the admiralty, and charged on the navy estimates, may be ap

propriated, under the insolvent act 7 G. 4, c. 57, s. 29, with the consent of the lords of the admiralty, for payment of creditors.

Quære, Whether this Court could have granted a prohibition to the insolvent debtors' court against proceeding upon an order for such appropriation, if it had not been warranted by the statute?

A RULE had been obtained, calling upon the Commissioners of the Insolvent Debtors' Court to shew cause why a prohibition should not issue to the said court against proceeding on an order made by them on the 17th of November, 1831, for the assignment of part of a certain pension of 2007. per annum granted to William Battine, LL.D, by the Prince Regent in council on the 8th of May, 1812, and held by the said William Battine during His Majesty's pleasure; and from making any order, or taking any proceedings for assigning any part of such pension. The material facts stated on affidavit for and against the rule were as follows:

*691] *In March, 1812, the Prince Regent, by order in council, referred to a committee of the privy council a report from the Lords Commissioners of the Admiralty upon a certain memorial of the above mentioned Dr. Battine, late His Majesty's advocate general in his office of Admiralty. The memorial stated, that Dr. Battine had been superseded in his office, and prayed some provision on retirement in remuneration of his past services during twenty years. The Lords of the Admiralty had in their report submitted, for reasons assigned by them, whether it would be proper to grant any pension, but recommended that such pension, if granted, should not exceed 2007. per annum. Upon this report the committee of privy council, on the 8th of May, 1812, represented to the Prince Regent in council that it might be advisable to grant Dr. Battine, in the name and on the behalf of His Majesty, a pension of 2007. per annum to commence from the day he ceased to hold his office, and to be charged on the ordinary estimates of the navy; and on the same 8th of May the Prince Regent, by and with the advice of the privy council, approved of the proposal made by the committee, and ordered that the said pension should be granted, to commence and to be charged as recommended by the committee; and the Lords of the Admiralty were, by that order, required to give the necessary directions.

On the 17th of November, 1831, Dr. Battine was discharged from custody under the Insolvent Debtors' act, 7 G. 4, c. 57, and executed the usual warrant of attorney. Before his discharge it was determined by the Court that the annual sum of 1807., part of the said pension, should be paid to the assignees *692] of the *insolvent's estate, to be applied in discharge of the debts till that Court should further order; and they communicated to the Lords of the Admiralty their intention to make an order to that effect, if, upon receipt of their communication, the said. Lords should consent thereto in writing, according to the statute. The Lords of the Admiralty consented. A similar communication was made to the commissioners of the navy, and assented to by them.

In answer to an inquiry made by the clerk of the Insolvent Debtor's Court (with reference to the present proceeding) Mr. Barrow, the Secretary to the Admiralty, stated the nature of Dr. Battine's pension as follows:

"Dr. Battine's pension of 2001. per annum, enjoyed under this department, is a naval pension for civil services, namely, as advocate of the admiralty. It is charged, like all other civil naval pensions, on the ordinary estimate of the navy, is paid by the treasurer of the navy by warrant from this deportment, and differs in no respect from any other naval pension for civil services, except in its amount being larger than is authorized by the act 50 G. 3, c. 117; which required that it should be sanctioned by His Majesty's order in council.' Dr. Battine denied that the pension was one which the Insolvent Debtors' Court could legally appropriate in the manner directed by 7 G. 4, c. 57, s. 29.(a)

""

(a) 7 G. 4, c. 57, s. 29 "Provided always, and be it further enacted, that nothing in

Even as

[*693

[*694

The Solicitor-General and F. Pollock, now shewed cause. suming that the Insolvent Court has acted erroneously, this Court ought not to interfere in the manner proposed. The Court below may be in error, and their proceeding void; but that is not of itself ground for a prohibition. [PARKE, J. Not if they had authority to decide the point as to the pension being assignable. But if they had not, this Court may control them.] The same reasoning would have been applicable in Ex parte Cowan, 3 B. & A. 123, where, however, the Court did not decide that a prohibition lay to the Lord Chancellor sitting in bankruptcy. If the present case is not within the proviso made by sect. 29, of the act, the pension is wholly subject to the authority of the Court below; and there is no other exception *in the act to limit it. [PARKE, J. That is so, if the clause operates merely as an exception to a general power which the Commissioners possess under the act; but, if the act gives them only a special authority over pensions, while it confers a general power over other kinds of property, may we not be entitled to restrain them if they exceed the limited authority?] It is for them to determine whether the particular instance falls within their jurisdiction; and if they are wrong, it is not a ground of prohibition, as if they had taken cognizance of a subject-matter altogether out of their province. The eleventh section of the act gives a general power over the insolvent's estate; the twenty-ninth restrains that power; but it is for the Commissioners to interpret the restricting clause. Unless they are to do so, how are they to make the orders which that section requires? and it cannot be said that as often as they make an order not warranted by the act, the jurisdiction is exceeded. This order has been made, subject to the assent of the admiralty, as directed by sect. 29. If the section did not apply, the pension was disposable for the benefit of the creditors without such assent. Besides, the proceeding was taken by the Court with the consent of the party himself, for his own benefit as well as for the promotion of justice; and is, therefore, valid, even if there was, strictly, no jurisdiction to make the order. Follett, contrà. A mere pension during pleasure, as this is, would not pass by the general assignment under sect. 11. Neither is it reached by the proviso in sect. 29. That applies only to pensions held under any department of His Majesty's government. This is not so held, but is merely an allowance granted at the will of the Prince Regent on the petition of the party. There is no doubt that if the Court below was acting within its jurisdiction, a prohibition would not lie, but here no jurisdiction exists, unless it be given by the twenty-ninth section. The nature of the pension, and the mode in which this act contained shall extend to entitle the assignee or assignees of the estate and effects of any such prisoner, being or having been an officer of the army or navy, or an officer or clerk, or otherwise employed or engaged in the service of His Majesty, in the customs or excise, or any civil office, or other department whatsoever, or being or having been in the naval or military service of the East India Company, or an officer or clerk, or otherwise employed or engaged in the service of the Court of Directors of the said company, or being otherwise in the enjoyment of any pension whatever under any department of His Majesty's government, or from the said Court of Directors, to the pay, half-pay, salary, emoluments, or pension of any such prisoner, for the purposes of this act: Provided always nevertheless, that it shall be lawful for the said Court to order such portion of the pay, half-pay, &c. of any such prisoner, as on communication from the said Court to the Secretary of War, or the Lords Commissioners of the Admiralty, or the Commis sioners of the Customs or Excise, or the chief officer of the department to which such prisoner may belong or have belonged, under which such pay, half-pay, &c. may be enjoyed by such prisoner, or the said Court of Directors, he or they may respectively. under his or their hands, or under the hand of his or their chief secretary, or other chief officer for the time being, consent to in writing, to be paid to such assignee or assignees, in order that the same may be applied in payment of the debts of such prisoner; and such order and consent being lodged in the office of the paymaster of His Majesty's forces, &c. or of any other officer or person appointed to pay, or paying, any such pay, half pay, &c. such portion of the said pay, half pay, &c. as shall be specified in such order and consent, shall be paid to the said assignee or assignees, until the said Court shall make order to the contrary."

[*695

it is granted, render that section inapplicable. [PARKE, J. You say this is not a pension under any department of His Majesty's government; but the Lords of the Admiralty are to execute the order in council for the payment.] Still, the question is, whether this be a pension held under the Admiralty; being granted by order in council, merely at the royal pleasure. It is a matter of favour only; and differs altogether from pensions for services, held by vote of parliament, pursuant to the several acts which regulate such pensions. For instance, in 50 G. 3, c. 117, ss. 2, and 3, the former kind of pension is expressly distinguished from the latter. It is not subject to the same regulations and deductions. The pension voted by parliament under that act is in the nature of a continued pay; it is fixed by reference to the salary which the party enjoyed in his office, and to the length of his service; and where granted in the offices of the Secretary at War, Master-general of the Ordnance, or Lords of the Admiralty, it is returned with the estimates of that department. But the pension granted by the King in council has nothing analagous to pay. [PARKE, J. Would not scet. 11, pass every kind of pension, but for sect. 29?] It would not pass an officer's half pay, Flarty v. Odlum, 3 T. R. 681. [PARKE, J. That was under a differently framed act. *696] Here it is argued, from the restraining section, that whatever is not within that, was meant to pass by sect. 11.] It could not have that effect if the pension did not come within the description of property enumerated in sect. 11. As to the supposed assent of the insolvent, if he did what was required by the Insolvent Court as a condition of his discharge, that is no bar to the present application, if the matter was wholly out of the jurisdiction of that Court.

DENMAN, C. J. Without touching upon the very important general question, whether or not a prohibition would lie to the Insolvent Court against entering upon a case of this kind under other circumstances, it is sufficient to say here, that I think this pension is clearly within the twenty-ninth section of the act. The eleventh section, primâ facie, would pass all those matters which are afterwards made the subject of exception in sect. 29. Then, by that section, a proviso is introduced, that nothing in that act shall extend to entitle the assignees of the estate of any such prisoner, being or having been, an officer of the army or navy, or an officer or clerk, or otherwise employed or engaged, in the service of His Majesty, in the customs or excise, or any civil office or other department whatsoever, or being otherwise in the enjoyment of any pension whatever under any department of His Majesty's government, to the pay, half-pay, salary, emoluments, or pension of any such prisoner, for the purposes of this act:" but, nevertheless, that a part of such pay or pension may be appropriated to the purposes of the act, by arrangement made with the heads of the department, as is directed in that clause. I think, in this case, there is no doubt that the in*697] solvent *was a person who had been employed in the service of His Ma

jesty in a civil office, and was in the enjoyment of a pension under a department of His Majesty's government. The Privy Council recommended the grant to the Prince Regent, to commence from the day when Dr. Battine ceased to hold his office, and to be charged on the ordinary estimates of the navy. The order in council passed accordingly, and the Lords of the Admiralty were required to give the necessary directions. Here, then, is a pension, held under such a department, and by such a person, as are expressly named in the twentyninth section. Giving that section a reasonable and ordinary construction, I think it is clear that the pension was such as might, with the consent which the act required, be assigned for the benefit of the creditors.

LITTLEDALE, J. I am of the same opinion. The insolvent had certainly been a person employed in a civil office in the naval department of His Majesty's. government, and enjoyed a pension under that department. The commissioners, therefore, might properly make the order for paying over a part of it, with the assent of the Lords of the Admiralty. As to the power of this court to grant a VOL XXIV.-20

prohibition to the Insolvent Debtors' Court, it is not necessary to express any opinion.

PARKE, J. It is unnecessary to say whether or not such a pension as this would pass under the general assignment directed by section 11; I think it is clearly within the proviso of section 29, as granted to a person who had been in His Majesty's service in a civil office, and held under, and included in the estimates of a department of His Majesty's government.

Rule discharged with costs.

*The KING v. DONNISON and Another. April 25.

[*698

The rule established at nisi prius in prosecutions for libel in a newspaper, viz. that after production of the stamp office affidavit, a paper corresponding with it in title, printer's and publisher's name, and place of publication, may be put in and read as published by the parties therein named, without other proof on this point, applies equally on motions for criminal information.

A RULE nisi had been obtained for a criminal information against these parties for misdemeanors in printing and publishing certain scandalous libels. The rule was drawn up on reading the affidavits of the Earl of Lonsdale and other persons, and a paper partly written and partly printed, thereto annexed, (a) and the several printed papers thereby referred to. Upon cause being shown, it appeared that some newspapers, entitled "The Whitehaven Herald," published at Whitehaven, and bearing the name of the printer and proprietor, had been put in with (though not annexed to) the affidavits; but the latter consisted merely of the usual copy of the stamp office affidavit (that the defendants were the printer and proprietor of a newspaper called, &c. and intended to be published at Whitehaven,) and depositions by the Earl of Lonsdale and other persons, denying that the Earl had been guilty of particular acts of misconduct; as peculation, breach of certain trusts, entertaining ruffians at his table, &c. They did not in any more direct manner refer to the newspapers or any part of them, nor did they charge the defendants or any other person with having asserted or published the matters stated to be untrue; but the newspapers did, in fact, contain such imputations upon the Earl.

[*699

Armstrong now shewed cause. The rule must be discharged, for the affidavits do not, either directly or *by reference, impute any offence to the parties against whom this motion is made. The rule states that the printed papers are referred to by the affidavits, but that proves not to be the case; they make no reference to any paper or passage. The act 38 G. 3, c. 78, does not meet this objection; that merely gives facilities in proving who are the printer and proprietor. [Follett, amicus curiæ, mentioned the case of Rex v. Featherstone, editor of The Western Times newspaper, in Trinity term, 1830, where the present objection was taken, and the Court enlarged the rule, in order that supplemental affidavits might be made.(b)]

Sir James Scarlett and F. Pollock, contrà. On applying for the rule, the stamp office affidavit was produced, and newspapers were put in, corresponding with it in title, place of publication, and printer's and publisher's names. That by 38 G. 3, c. 78, s. 11, was sufficient proof that the papers in question had been printed and published by the defendants; and the rule is drawn up "on reading the printed papers," which shews that the libellous matter was read to the Court on moving for the rule.

The stamp office affidavit.

In the affidavits afterwards made, one deponent stated that he had read the libellous matter in a certain paper, &c. and another expressed his belief that it referred to the party complaining.