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from that time. No cause was assigned, nor would the magistrate, on application made to him for that purpose, state any, or afford him an opportunity of answering any charge that might have been made against him. It did not appear that any such complaint had in fact been preferred. No order of petty sessions was made for his dismissal.

J. Williams now contended that the clerk had such a right and interest in his office that the justices could not remove him at pleasure, and without cause assigned. He is appointed by an order of petty sessions; and the office is recognised, not only by 26 G. 3, c. 14, which provides for its emoluments, but by other statutes, particularly the Jury Act, 6 G. 4, c. 50, s. 10, and the act for licensing public-houses, 9 G. 4, c. 61, s. 15.

PER CURIAM. (a) There is no ground for this application. A clerk to justices has no legal hold upon his office; he is only appointed to assist the justices; it is an office during pleasure, like that of a vestry clerk. There must be no rule. Rule refused.

*In the Matter of FLOUNDERS, Esq. May 8.

[*865

Notice to a magistrate (under 13 G. 2, c. 18, s. 5), of intention to move for a certiorari, "on the first day of next term, or so soon after as I can be heard," is irregular if served on the first day of that term, though the party does not, in fact, move till after the expiration of six days. Held, Denman, C. J., dubitante.

BENJAMIN FLOUNDERS, Esq., a justice of peace for the North Riding of Yorkshire, having made an order of allowance of surveyors' accounts, was served with the following notice on the 11th of January, 1833 :—

"I do hereby give you notice that I shall, on the first day of next Hilary term, or as soon afterwards as I can be heard, move his Majesty's Court of King's Bench for a rule, calling upon you to shew cause why a writ of certiorari should not issue, directed to you, and calling upon you to certify and remove into the said Court a certain order of allowance, &c. and also the accounts so allowed, &c., in order that the said order of allowance, and accounts, &c. may be quashed, or otherwise dealt with according to the judgment and discretion of the said Court. Dated," &c.

On the 19th he was served with a copy of a rule nisi, which was abandoned on the 21st, and a fresh rule obtained, and enlarged to the present term. No notice of intention to apply for a certiorari was ever served on the magistrate but that of January 11th. Notice of the enlarged rule was served on the 30th of March.

F. Pollock now shewed cause. The notice was irregular, for it was given on the 11th of January, which was the first day of Hilary term, and it states that on the first day of Hilary term, or so soon after as the party can be heard, [*866 a certiorari will be moved for. *The act 13 G. 2, c. 18, s. 5, directs that no certiorari shall be granted to remove proceedings before a justice, unless moved for within six months, and unless it be proved on oath that the party suing forth the same has given six days' notice in writing to the justice, to the end that he may shew cause. The rule here might not in fact be moved for till the expiration of six days, but the justice could not know that. [PARKE, J. By the act he ought to have six days before the time at which the application can be first made.] It is true the rule was enlarged, but that does not cure the • defective form of notice.

Sir James Scarlett and S. Temple, contrà. "As soon afterwards as I can be heard," means, "as I can legally be heard ;" that is, after the expiration of

(a) Denman, C. J., Littledale, and Parke, Js.

six days. [LITTLEDALE, J. The rule is a four day rule.] It would not be made absolute in less than six. [LITTLEDALE, J. The Court ought not to entertain the rule unless proper notice were first given. PARKE, J. The notice is, in effect, that the party must be ready on any day; whereas he ought to have six days to prepare himself. At most, as it is now put, the notice is that the Court will be moved as soon as counsel can be heard.] In Doe dem. Lord Huntingtower v. Culliford, 4 D. & R. 248, notice was given to a tenant, dated the 27th of September, 1822, to quit "at Ladyday, or at the end of your current year;" the tenant having entered in August, 1821; and it was said this might mean a current year which expired on the 29th of September, and so there would be only two days' notice. But the Court decided that the words must be taken to mean a six months' notice, or such notice as the law required; *the rule being to construe general language (in case of doubt) so as to *867] make it sensible, not insensible. [LITTLEDALE, J. The rule acted upon in that case has been long established, and does not apply to this. landlord often does not know when the tenancy expires, but it is supposed to be within the knowledge of the tenant.]

A

DENMAN, C. J. I should have thought it sufficient if the justice actually had six days' notice; but as the rest of the Court is of a different opinion, the rule must be discharged. Rule discharged.

The KING v. MARGARET JOLLIE and JAMES STEEL.(a)

A motion for a criminal information against a person who is not charged as a magistrate or public officer, may be made later than the second term after the alleged offence, if it be shewn that the prosecutor did not know of the fact in time to make an earlier application.

By a rule of last Hilary term, January 21st, granted on the affidavit of the Earl of Lonsdale and others, the defendants were called upon to show cause on the 30th, why a criminal information should not be exhibited against them for printing and publishing certain libels. The libels were contained in a newspaper called the Carlisle Journal (published in that city) of the 23d of June, 29th of September, and 20th and 27th of October, 1832, and went into much detail upon transactions extending over a great length of time. The Earl, in his affidavit, sworn on the 18th of January, 1833, contradicted the charges in a circumstantial manner, and in conclusion stated, "That he did not see, nor had *868] any knowledge of the matters contained in the said *several statements before set forth, until this present month of January." The defendant Steel, in an affidavit sworn on the 26th of January, stated that the rule nisi and copies of the affidavits were not served upon him and Margaret Jollie till the 24th of that month, and that he could not peruse and answer the affidavits within the time assigned by the rule for shewing cause. He also made some allegations tending to call in question the fact that the Earl had not known of the libels before that month. The rule was enlarged to this term.

he

Rex

Aglionby, in the course of the term, shewed cause. The application came too late. A rule for a criminal information cannot be moved for later than the second term after the imputed offence, and that only if no assize has intervened; and there must be time for the defendant to shew cause within the term. v. Harries and Peters, 13 East, 270, Rex v. Morice and Others, 13 East, 271, note (a), Rex v. Marshall and Grantham, 13 East, 322. Here a quarter session had intervened, and there was not time to shew cause within the term. It is no excuse for applying after the proper time, that the prosecutor did not know of the libel sooner. Rex v. Bishop, 5 B. & A. 612.

(a) This case was decided May 4th.

F. Pollock, contrà. In the cases cited the motions were all against magistrates, who are entitled to peculiar protection in the discharge of their duties. There is nothing in common between such cases and that of an individual publishing a newspaper for his own profit.

*DENMAN, C. J. I think, under the circumstances stated by the prosecutor, the application comes in sufficient time.

[*869

LITTLEDALE, J. I also think that in this case the time to be allowed for moving must be reckoned from the prosecutor's knowledge of the libel: though if that had been otherwise, I should not have thought the application made early enough in the present term to give the defendant an opportunity of answering in the course of the term. The rule must be absolute. Rule absolute.(a)

PARKE, J., concurred.

GEORGE MOORE, Gent., One, &c., v. TERRELL and Others. May 8.

In an action for a libel, charging an attorney with "disgraceful conduct" in having, at an election, disclosed confidential communications which he had acquired professionally, the defendant pleaded that the plaintiff had, on that occasion, disclosed details professionally and confidentially made known to him, relating to three transactions (which were specified); two of them being instances in which he had been employed by mortgagors to manage mortgages, and a third, where, in his employment as attorney, he had become acquainted with the nature of his client's title, and his right to grant freehold leases. At the trial, it appeared, as to the mortgages, that the plaintiff had acted as attorney both for the mortgagors and mortgagees:

Held, that the question for the jury was, whether the matters disclosed by the plaintiff were confidential communications acquired by him professionally, and not whether they were such as he would not be compellable to disclose, if called as a witness in a court of justice.

(a) The general rule, as affecting prosecutors of criminal informations, is to be found in Rex v. Robinson (1 Sir W. B. 542), where Lord Mansfield says, that, as to the time of application, "there is no precise number of weeks, months, or years; but, if delayed, the delay must be reasonably accounted for." An exception seems to be now well established in the case of magistrates, against whom the motion must be made early enough in the second term (no assize having intervened, according to Rex v. Harries, 13 East, 270) to allow of their shewing cause during the term. And this, in the following case, was extended to other public officers.

REX v. HARTLEY and Others.

IN Michaelmas term, 1825 (Nov. 25), Scarlett moved for a rule nisi for a criminal information against certain commissioners of paving in Southwark, for corrupt exercise of authority, and misappropriation of funds. The objection was, that the matter complained of took place in June, 1824; but it had only been disclosed by an investigation of the parishioners, principally in May last. Rex v. Marshall (13 East, 322), was mentioned to the Court; but Scarlett said that the parties here were not justices, and, though public commissioners, they were self-elected, and it was a place of advantage. The Court thought that public officers were entitled to the same protection as magistrates, and that the principle of the rule was the same; they therefore said Scarlett should take nothing by his rule then, but might mention it again the first day of the next term if he thought right. The case was not again mentioned. MS. of Mr. Robinson of the Crown Office.

Rex v. Barry O'Meara, the prosecutor, Sir Hudson Lowe, on the 11th of Feb

ruary, 1823 (the last day but one of the term), obtained a rule nisi for a criminal [*870 information against the defendant, for libels in a work called Napoleon in Exile. The prosecutor's affidavits stated, that the first edition of the work was published in August preceding, and a fifth in the subsequent November. It was not mentioned when the prose cutor (who had been abroad) returned to England, or when the libel came to his knowledge. On cause being shewn, the Court held that the application came too late, and discharged the rule.

It appears from Rex v. Bishop (5 B. & A. 612), that, on motion against a magistrate, the prosecutor cannot excuse delay by merely swearing that the facts have but lately come to his knowledge. And Rex v. Hartley (supra), seems to extend this to other public

officers.

Semble, that the knowledge acquired by the plaintiff as to the right of his client to grant freehold leases, was of that privileged nature that he would not have been bound to disclose it if called on as a witness.

DECLARATION stated that there had been an election of a knight of the shire to serve in parliament for Dorset, on which occasion Lord Ashley and the Honourable W. F. S. Ponsonby were candidates, and the plaintiff was retained by and acted as attorney on behalf of Lord Ashley, during the examination of voters; and that the defendants contriving, &c., and to cause it to be believed that the plaintiff, as such attorney, was unworthy of confidence, and that he was a person who, as such attorney, had illegally, dishonestly, treacherously, and disgracefully disclosed communications which he had acquired *profes

*871] sionally, and that he was a person to whom it would be dangerous to

make any confidential communications as such attorney, wrongfully and maliciously published in a newspaper called the Western Times, a false, malicious, and defamatory libel, of and concerning the said election, and of and concerning the plaintiff, and of and concerning him in the way of and in respect of his profession as such attorney as aforesaid, containing the libellous matter following:Blandford. We are sorry to find that the town of Blandford has, since the election, become the scene of violent outrage. Mr. S. Smith and Mr. Moore (meaning the plaintiff), two attorneys, advocates for Lord Ashley, had, during the examination of the voters, disclosed many confidential communications which they had acquired professionally. The townsmen, justly annoyed at such conduct, have broken into their offices, taken all their papers, and scattered them about the streets of Blandford. This is the more to be lamented, as Mr. Smith, we understand, was one of the registrars of the diocese, and we fear the wills intrusted to his care have shared a similar fate with his private papers. Nothing can be more disgraceful than such conduct as was pursued by those attorneys" (meaning to include the plaintiff) "at the election, but we regret that it should have entailed such serious consequences as we have related."

Plea, that before the publishing of the libel, and before the said election, W. Ball and John Ball had borrowed a sum of money of the Blandford Bank, upon mortgage of certain property in which they were jointly interested, and had, upon that occasion, employed the plaintiff, then being an attorney, to conduct *872] and negotiate the said mortgage on their behalf, and *that he had conducted and negotiated such mortgage for them, and had received, in the course of such employment, divers professional and confidential communications touching the affairs and property of the said W. B. and J. B., and especially touching the said mortgage and the sum borrowed thereon, and the value of the said mortgaged premises, and that they W. B. and J. B., before the publishing of the supposed libellous matter, and at the election, came up to poll as voters, and tendered their votes respectively for W. F. S. Ponsonby, one of the candidates at the election, and were examined in the presence and hearing of the plaintiff touching their said votes; and thereupon the plaintiff, acting as attorney on behalf of Lord Ashley during the examination of voters, and being one of his advocates, did, without the permission of W. B. and J. B., and during such their examination, disclose and make known to one J. H. Terrell, and to other persons then present, and hearing the same, the said mortgage transactions, and divers details and particulars relative thereto, and divers of the said confidential communications which the plaintiff had professionally received as aforesaid, and did then, in the presence and hearing of the said persons, disclose and declare the amount of the purchase money of the said mortgaged property, and the amount of the moneys borrowed thereon, and declared aloud, in the hearing of the same persons, that the interest on the money so borrowed as aforesaid was as much as the rent payable in respect of the said property, whereas, in truth, there was a considerable surplus accruing from the said rent, over and above, and after, the payment of the said interest. The plea

[*873

stated another transaction, similar to the first, in which the plaintiff was employed to conduct and manage a mortgage of one Nippard, and that, upon his tendering his vote, the plaintiff made a similar disclosure as to the amount of the money borrowed, and the interest, &c. The plea also stated, that, before the publishing of the supposed libellous matter, and before the said election, the plaintiff, then being an attorney, had been professionally employed by Sir J. W. Smith in the management of his affairs and business, and in the course of such employment had become professionally and confidentially acquainted with the title of the said Sir J. W. Smith to certain property in the county of Dorset, and to the exercise and enjoyment of certain rights and powers respecting the same, and especially to the exercise of a power to grant a freehold lease of part thereof, and which power had been exercised by the said Sir J. W. Smith before the said election, by granting a freehold lease of part of the said property to one J. Coward; and the said J. Coward, before the publishing of the supposed libellous matters, and at the said election, came up to poll as a voter, and tendered his vote for the said F. W. S. Ponsonby, and was examined in the presence and hearing of the plaintiff touching his said vote; and that the plaintiff, acting as attorney for Lord Ashley, without the permission of either the said J. Coward or the said Sir J. W. Smith, and during such examination of Coward, disclosed and made known to J. H. Terrell and other persons, then present and hearing the same, divers details and particulars touching the title of the said freehold lease, and touching the right of the said Sir J. W. Smith to grant the same, which said details and particulars had been so professionally and confidentially made known to the plaintiff as aforesaid. The plea *further stated, that the plaintiff, for the purpose of delaying the election, [*874 and harassing Ponsonby's voters, took frivolous and unfounded objections to the votes of persons who tendered their votes for Ponsonby, and insulted the voters, and conducted himself in a disgraceful manner; that divers of the townsmen of Blandford were justly annoyed at the disclosure of the confidential communications, and were thereby induced to and did break into the office of the plaintiff, and take his papers, and scatter them about the streets of Blandford, and the said town became the scene of violent outrage, &c., wherefore the defendants did compose and publish, &c., as they lawfully might.

At the trial before Park, J., at the Dorset Spring assizes, 1832, evidence was given by the defendant of the three instances in which the plea charged the plaintiff with having improperly availed himself of the knowledge obtained by him as an attorney, to prevent parties from voting. In the two cases of the mortgages, it appeared that no other attorney than the plaintiff had been employed, and that he acted for mortgagor and mortgagee. As to Coward's case, it was stated that he tendered his vote in right of a freehold lease granted to him by Sir J. W. Smith in 1829, and that the plaintiff said he (plaintiff) was the attorney of Sir J. W. Smith, and that the latter had no power at that time to grant such a lease. Some evidence was also given of the alleged frivolous objections. One of the facts in dispute at the trial was, whether the outrages were committed against the plaintiff's property by inhabitants of the town, or by strangers. There was some, but not very explicit evidence on that subject, but the question was not distinctly submitted to the jury. The jury found a verdict for the plaintiff, damages 1007. In Easter term follow[*875 ing, a rule nisi was obtained for a new trial, on the ground that the learned Judge, in his address to the jury, had too much narrowed the sense of the words "professional and confidential communications" employed in the plea, and that he had treated them as synonymous with those privileged disclosures, which an attorney, if called upon as a witness in Court, would not be compelled to reveal.

Coleridge Serjt. and Barstow shewed cause in this term. The defendants failed in proving the justification. The misconduct of the plaintiff, and the annoyance and consequent outrage of the townsmen of Blandford, are connected

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