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Booth v. CLIVE.

April 24. THIS HIS was an action upon the case against the judge The 138th of the Southwark County-Court of Surrey, for section of the

county-courts maliciously issuing an order for the imprisonment of the act 9 & 10

Vict. c. 95. plaintiff, after service of a writ of prohibition.

enacts, that, in The second count of the declaration stated, that, be- actions and

prosecutions to fore and at the time of the committing of the grievance be commenced thereinafter mentioned, the defendant was the judge of against any

person for any an inferior court of record, to wit, the Southwark thing done in County-Court of Surrey, in which court a judgment had pursuance of

the act, notice been recovered against the now plaintiff, in a cause in writing of

such action, wherein one W. G. Sill was plaintiff, and the now plain- and of the tiff was defendant; that, before and at the time of the cause thereof,

shall be given committing of the said grievance, to wit, on the 26th of to the defendFebruary, 1850, a writ of prohibition had been duly ant one calenissued out of Chancery, prohibiting the judge of the said least before the court, and also the clerk and high-bailiff and officers

ment of the thereof, from proceeding or carrying into execution, or in action. any wise giving effect to, or proceeding upon, the said against a judge judgment,—which said writ the plaintiff, to wit, on the of a county

court for said 26th of February, 1850, caused to be made known making an to the defendant as judge of the said county-court, and order for com

mitting the plaintiff to

gaol for disobedience of an order for payment of certain instalments, after due service him of a writ of prohibition, the jury were told, that, if the defendant acted under a bona fide belief that his duty as judge of the county-court rendered it incumbent on him to do so notwithstanding the probibition, the act must be considered as done in pursuance of the county-court act, and he was entitled to notice of action:

Held, no misdirection.

Where, in such a case, the judge, in the presence of the counsel, directs a verdict for the defendant, but at the same time tells the jury to assess damages for the plaintiff contingently, and the counsel do not object,—it is not competent to the plaintiff afterwards to move for a new trial on the ground of misdirection : he can only move to enter a verdict for the damages so contingently assessed.


In case





then caused a copy thereof to be left with the defendant; and it then became the duty of the defendant, as such judge, to refrain from proceeding or carrying into execution, or in any wise giving effect to or proceeding upon the said judgment, according to the tenor and effect of the said writ; yet the defendant, not regarding his duty in that behalf, and intending to injure the plaintiff, did not refrain from proceeding upon the said judgment, but, on the contrary, maliciously, and without reasonable and probable cause, made an order founded upon the said judgment, that the plaintiff should be committed for one month to Horsemonger Lane Gaol, for neglecting to pay 21. alleged to be due and payable by the now plaintiff for and in respect of two instalments of the said debt and costs recovered by the said judgment. The count then proceeded to aver special damage resulting to the plaintiff from such imprisonment.

The defendant pleaded,-first, not guilty,-secondly, that the grievances in the declaration mentioned were committed by the defendant after the passing of the statute 9 & 10 Vict. c. 95., and were, and each of them was, done in pursuance of the said act, and by the defendant acting in execution of the said act, and that no notice in writing of the action, and of the cause thereof, was given to the defendant one calendar month before the commencement of the suit, pursuant to the said statute,---verification. (a)

The plaintiff replied to the second plea, that the grievances in the declaration mentioned were not, nor was either of them, done in pursuance of the said act. Issue thereon.

The cause was tried before Jervis, C. J., at the sittings at Westminster after last Hilary term. It appeared that an order had been duly made by the defendant, as judge

(a) There were other pleas, which it is unnecessary to advert to.

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of the Southwark County-Court, for payment by Booth, by instalments, of a debt and costs recovered against him in that court by one Sill. Booth afterwards obtained his discharge under the insolvent debtors act as to the debts mentioned in his schedule, including Sill's judgment. The order of adjudication was produced before the judge, but he declined to give effect to it, and made an order committing the now plaintiff to Horsemonger Lane Gaol for one month, for non-payment of two instalments of 11. each.

Booth afterwards obtained a writ of prohibition out of the petty-bag office, which was duly served upon the judge, but he refused to obey it, and Booth was accordingly arrested under the order, and committed to prison.

No notice of action had been given to the defendant, pursuant to the 9 & 10 Vict. c. 95. s. 138.

The lord chief justice told the jury, that, if the defendant, in making the order, acted under the bona fide belief that his duty as judge of the county-court rendered it incumbent on him to do so notwithstanding the prohibition issued out of the petty-bag office, the act done by him must be considered as done in pursuance of the county-court act, and that he was entitled to notice of action.

Being pressed by the counsel for the plaintiff to leave to the jury the further question, whether the defendant reasonably believed it to be his duty to proceed, his lordship told them, that, if "reasonably" meant any thing else than “in good faith,” it meant, “ according to his reason,” as contradistinguished from “caprice.”

The jury found a verdict for the defendant,-assessing the damages contingently at 40s.; for which sum the lord chief justice reserved leave to the plaintiff to enter a verdict, if the court should be of opinion that the defendant was not entitled to notice of action.




Humfrey (with whom was Skinner), on a former day in this term, moved for a new trial, on the ground of misdirection. [Cresswell, J. You can only ask for a rule in the terms in which the leave was reserved. Morrish v. Murrey (a) is an authority for that.

That was trespass for breaking and entering the plaintiff's dwelling-house. The judge, at the trial, having ruled that a plea justifying the entry of the plaintiff's house, the outer door being open, to search for one C. F., who for six months had resided in the plaintiff's house, and that the defendant (a sheriff's officer) had good grounds to suspect and believe that she was in the plaintiff's house at the time, had been proved, and constituted a good defence, stated, in the presence of counsel on both sides, who made no objection, that he should direct the jury to assess the damages contingently, and should give the plaintiff leave to move to enter a verdict for the amount found by the jury,—it was held, that both parties were bound thereby, and that the plaintiff's counsel was not at liberty to move for a new trial, for misdirection.] The real question is, whether, under the circumstances, the defendant was entitled to a notice of action. That tion turns upon the 138th section of the 9 & 10 Vict. c. 95., which, “ for the protection of persons acting in the execution of the act," enacts" that all actions and prosecutions to be commenced against any person for any thing done in pursuance of this act, shall be laid and tried in the county where the fact was committed (6), and shall be commenced within three calendar months after the fact committed, and not afterwards or otherwise ; and notice in writing of such action, and of the cause thereof, shall be given to the defendant one calen

That ques

(a) 13 M. & W.52., 2 D. & L. 199.

(6) See Lawson v. Dumlin, antè, Vol. IX. p. 54.



v. Clive.

dar month at least before the commencement of the action; and no plaintiff shall recover in any such action, if tender of sufficient amends shall have been made before such action brought, or if after action brought a sufficient sum of money shall have been paid into court, with costs, by or on behalf of the defendant.” (Jervis, C.J. The words “ in pursuance of this act” must receive the same construction as in execution of or under the authority of this act,” in Cook v. Leonard. (a)] The subject underwent much discussion in Hughes v. Buckland (b), where Parke, B., says: “The act is general in its terms, and gives protection to all persons for all acts done in pursuance of it. Those words do not mean acts done in strict pursuance of the act, because, in such a case, a party would be acting legally, and therefore would not require protection. The words, therefore, must be qualified by the decisions; and then the meaning will be, that a party, to be entitled to protection, must bona fide and reasonably believe himself to be authorised by the act.” [Williams, J. The defendant here was acting in the supposed performance of his duty to the plaintiff in the county-court. Does not that bring him within the protection of the act?] Clearly not, unless he was acting reasonably. The definition of that word, as given by the chief justice, was not the correct one, viz. that it must be taken to mean "according to his reason," as contradistinguished from “capricious.” (Jervis, C.J. I left it to the jury to say whether the defendant acted bona fide. Williams, J.

Williams, J. In Horn v. Thornborough (c), it was held, that a person who causes the apprehension of another for a malicious trespass to property of which the former is the reversioner only, is entitled to notice of action under the malicious trespass act, 7 & 8 G. 4. C.

(a) 6 B. 8. C. 351., 9 D. & R. 339.

(6) 15 M. & W.346., 3 D. & L. 702.

(c) 3 Exch. 846.

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