1851. DAVIS บ. BURRELL. to get in. When a rate is duly made and published, it I am of CRESSWELL, J. I am entirely of the same opinion. WILLIAMS, J. The plaintiff was bound by his covenant to pay the rates. There was no necessity for a personal demand. TALFOURD, J. There was an absolute covenant to pay all rates and taxes; not conditional upon their being lawfully demanded. There was a clear breach, and consequently the lessor had a right to re-enter. Rule refused. 1851. THIS BOOTH V. CLIVE. HIS was an action upon the case against the judge of the Southwark County-Court of Surrey, for maliciously issuing an order for the imprisonment of the plaintiff, after service of a writ of prohibition. April 24. The 138th section of the act 9 & 10 county-courts Vict. c. 95. enacts, that, in actions and be commenced prosecutions to against any person for any thing done in pursuance of the act, notice in writing of such action, and of the cause thereof, shall be given to the defend The second count of the declaration stated, that, before and at the time of the committing of the grievance thereinafter mentioned, the defendant was the judge of an inferior court of record, to wit, the Southwark County-Court of Surrey, in which court a judgment had been recovered against the now plaintiff, in a cause wherein one W. G. Sill was plaintiff, and the now plaintiff was defendant; that, before and at the time of the committing of the said grievance, to wit, on the 26th of February, 1850, a writ of prohibition had been duly issued out of Chancery, prohibiting the judge of the said least before the court, and also the clerk and high-bailiff and officers thereof, from proceeding or carrying into execution, or in any wise giving effect to, or proceeding upon, the said judgment, which said writ the plaintiff, to wit, on the said 26th of February, 1850, caused to be made known to the defendant as judge of the said county-court, and ant one calendar month at commence ment of the action. In case against a judge of a countymaking an order for com court for mitting the plaintiff to gaol for disobedience of an order for payment of certain instalments, after due service upon him of a writ of prohibition, the jury were told, that, if the defendant acted under a boná fide belief that his duty as judge of the county-court rendered it incumbent on him to do so notwithstanding the prohibition, 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. 1851. BOOTH v. CLIVE. 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. 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 17. 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 bonâ 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. 1851. BOOTH v. CLIVE. 1851. BOOTH บ. CLIVE. 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 question 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 (b), 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 (a) 13 M. & W. 52., 2 D.& L. 199. (b) See Lawson v. Dumlin, antè, Vol. IX. p. 54. |