Where a landexistence of a tenancy, charged his tenant, under lord, during the the 2 & 3 Vict. c. 71, s. 38, (the Police Court Act), with having three months before wilfully damaged his premises: Held, that magistrate had no jurisdiction, and that the charge should have been made month. MALICIOUS PROSECUTION.-The first count of the declaration, which was in the usual form, charged the defendant with having maliciously prosecuted the plaintiff on a charge of felony, under the stat. 7 & 8 Geo. 4, c. 29, s. 45, in stealing fixtures let to him. The second count alleged that the plaintiff occupied certain premises as tenant to the defendant, and carried on therein the business of a smith and machinist; that more than a month before the making of the charge the plaintiff had removed certain sheds by the leave and license of the defendant; and that, whilst the plaintiff occupied the premises as tenant, and more than a month after the sheds were removed, the defendant maliciously, and without reasonable or probable cause, charged the plaintiff with having wilfully damaged the premises by pulling down the sheds, and upon such charge caused and procured P. Bingham, Esq., a magistrate, wrongfully and illegally to adjudge the plaintiff to pay a sum of money, which he having refused to pay, the defendant caused and procured the magistrate wrongfully and illegally to commit the plaintiff to the House of Correction, where he remained to him, it is not until he was afterwards discharged by the Queen's war- give a notice of rant (a). The defendant pleaded not guilty, and other the 75th section pleas on which no question arose. within one In an action by a tenant against his land lord for a mali cious charge of the stat. 7 & 8 felony, under Geo. 4, c. 29, s. 45, for steal ing fixtures let necessary to action under of the stat. 7 & 8 Geo. 4, c. 29, (the Larceny Consolidation Act). Quare, Whether an action for a malicious prosecution can be maintained where the party charged has been illegally convicted by a magistrate who had no jurisdiction to entertain the charge? (a) As the form of the second count of the declaration may be useful in practice we have sub joined it. Second Count. That the plaintiff, before and at the time of the 1841. DOWELL v. It appeared that the defendant had let to the plaintiff certain premises, situate in Booth-street; and that, the BENINGFIELD. committing of the grievance here inafter next mentioned, occupied a certain house and premises situate and being in Booth-street, in the parish of Christchurch, in the county of Middlesex, as tenant thereof, and then exercised and carried on therein the trade and business of a smith and machinist; and the plaintiff whilst he so occupied the said house and premises as aforesaid, and more than one calendar month next before the making of the charge hereinafter mentioned, had, by and with the leave and license of the defendant to him the plaintiff for that purpose granted, pulled down and removed two sheds, the same being incommodious and inconvenient in the exercise of the plaintiff's said trade and business; yet the defendant well knowing the premises, but further contriving and maliciously intending to injure the plaintiff in his said good name, fame and credit, and to bring him into public scandal, infamy and disgrace, and to cause the plaintiff to undergo the pains and penalties by the laws of this country made and provided against tenants who should wilfully or maliciously damage the premises which they might occupy, and to impoverish, oppress, and wholly ruin him the plaintiff; and heretofore, and whilst the plaintiff occupied the said premises as tenant thereof, and more than one calendar month next after the said sheds were so pulled down and removed as aforesaid, to wit, on the said 6th day of November, in the year of our Lord 1840, aforesaid, under colour and pretence of a just and lawful complaint, wrongfully, falsely, maliciously and unjustly, and without any reasonable or probable cause whatsoever, and after such leave and license had been so granted by the defendant to him the plaintiff, as aforesaid, caused and procured the plaintiff to be arrested by his body, and held and detained in custody before the said Peregrine Bingham, Esq., so being such police magistrate, and so then sitting as aforesaid; and then before the said Peregrine Bingham, Esq., under the said colour and pretence, and after such leave and license had been so granted as aforesaid, and well knowing that the said sheds had been removed more than one calendar month next before, then falsely and maliciously, and without any reasonable or probable cause whatsoever, charged the plaintiff, for that he the plaintiff, being, on the 4th day of August, in the year aforesaid, and then still the occupier of the said house and premises as tenant thereof, did, on the 4th day of August in the year aforesaid, wilfully damage the said premises by then and there breaking and pulling down the said two sheds; and upon such charge the defendant wrongfully, falsely and maliciously, and without any reasonable cause whatsoever, and after such leave and license had been so granted as aforesaid, caused and procured the said Peregrine Bingham, Esq., so being such police magistrate as aforesaid, wrongfully and illegally to adjudge the plaintiff to forfeit and pay a large sum rent being in arrear, the defendant, on the 14th of October, 1840, came upon the premises with a broker, for the of money, to wit, the sum of £15. And the plaintiff further saith, that he the plaintiff having refused to pay the said sum of £15, the defendant, then, to wit, on the day and year last aforesaid, wrongfully, falsely, and maliciously, and without any reasonable or probable cause whatsoever, and after such leave and license had been so granted as aforesaid, caused and procured Peregrine Bingham, Esq., so being such magistrate as aforesaid, wrongfully and illegally to order and adjudge the plaintiff to be committed to the House of Correction in Clerkenwell, in the county of Middlesex, there to remain for the space of three calendar months, unless the said sum should be sooner paid. And the plaintiff further saith, that such proceedings were thereupon had, that afterwards, to wit, on the said 6th day of November, in the year of our Lord 1840, aforesaid, by a certain warrant under the hand and seal of the said Peregrine Bingham, Esq., he the plaintiff was, in pursuance of such last mentioned wrongful and illegal order and adjudication, committed to the custody of the Governor of the said House of Correction, and remained and continued in his custody there from thence continually, until afterwards, to wit, on the 18th of December in the year aforesaid, when, by a certain other warrant under the hand and seal of our Lady the Queen, directed to the said Governor of the said House of Correction, and bearing date the day and year last aforesaid, whereby, after reciting (amongst other things) that 1841. DOWELL V. the plaintiff stood committed to the BENINGFIELD. said House of Correction for the said county for three months, in default of paying the said fine of £15, our said Lady the Queen thereby willed, and her pleasure was, that the said Governor should cause the plaintiff to be forthwith discharged out of custody, and he the plaintiff was then, to wit, on the 24th of December in the year last aforesaid, accordingly discharged out of the custody of the said Governor; and the said last-mentioned complaint and prosecution then became and was and is wholly ended and determined. By means of which said several premises the plaintiff hath been and is greatly injured in his credit and reputation, and brought into public scandal, infamy, and disgrace with and amongst all his neighbours, and other good and worthy subjects of this realm, inasmuch as divers of those neighbours and subjects to whom his innocence in the premises was unknown, have, on occasion of the premises, suspected and believed, and still do suspect and believe, that the plaintiff hath been and is guilty of the offence and offences hereinbefore mentioned; and also he the plaintiff hath, by means of the premises, suffered great anxiety and pain of body and mind, and hath been forced and obliged to pay, lay out, and expend, and hath laid out and expended divers large sums of money, and hath in curred great costs and expenses, and become liable to divers other large sums of money, in the whole amounting to a large sum of money, 1841. DOWELL v. BENINGFIELD. purpose of levying a distress; and that the defendant and the broker pulled down a punching-engine used by the plaintiff in his trade, and seized and removed fixtures, and committed other irregularities. The plaintiff told the defendant that he should bring an action against him, upon which the defendant replied, that if the plaintiff entered an action against him he would charge him with felony. It further appeared, that, between two and three o'clock in the afternoon of the 5th of November following, the defendant was served with a declaration in an action of trespass at the suit of the plaintiff, and on the evening of the same day the defendant gave the plaintiff into the custody of a policeman upon a charge of feloniously stealing a quantity of building materials; and that the plaintiff was taken to a police station-house, where he remained all night, and on the following morning he was brought before P. Bingham, Esq., at Worship-street Police Court, where the defendant attended and renewed his charge against the plaintiff of stealing the building materials. It further appeared, that the materials alluded to were those which formed some sheds removed by the plaintiff about three months before, and which, as he contended, were taken down with the permission of the defendant. The magistrate, after hearing the evidence and referring to the stat. 7 & 8 Geo. 4, c. 29, s. 45, (the Larceny Consolidation Act), was of opinion that the charge of felony, in removing fixtures let to a tenant, could not be sustained; and the defendant then charged the plaintiff, under the Police Court Act, to wit, the sum of £200, in and cessary affairs, for a long space of time, to wit, for the space of ten weeks, and thereby lost and been deprived of divers great gains and profits, which he might, and otherwise would, have obtained and acquired; and also by means of the premises the plaintiff hath been and is otherwise greatly injured and damnified. 2 & 3 Vict. c. 71, s. 38, with having wilfully damaged the premises by removing the sheds. Upon this charge the magistrate convicted the defendant, and he was committed to the House of Correction, where he remained for more than a week, when, upon a representation of the facts to the Secretary of State for the Home Department, the plaintiff was discharged by a warrant under her Majesty's royal sign manual. Thesiger, for the defendant.-I submit that the plaintiff must be nonsuited-First, with respect to the charge of felony: it appears that the charge was made by a landlord against his tenant, under the 45th section of the 7 & 8 Geo. 4, c. 29, and as the taking of these building materials would not have been an offence at common law, but depends entirely upon the provisions of that statute, the defendant was entitled to notice of action, under the 75th section of the act. Secondly, it appears, on the face of the second count, that the plaintiff was actually convicted. by the magistrate of having committed wilful damage to the premises; and having been convicted he cannot maintain any action upon that charge. Platt, for the plaintiff.-The 45th section of the 7 & 8 Geo. 4, c. 29, only applies to persons acting in the execution of that act, and requires notice only where the action is commenced for any thing done in pursuance thereof. Here the ground of complaint is, not that the defendant acted under the provisions of that act, but that he maliciously made a charge without any foundation for it. Lord DENMAN, C. J.-I do not think a notice of action was necessary (a). Platt. With respect to the other objection, it appears by the second count of the declaration, that the magistrate (a) See the cases of Brooker v. Field, 9 C. & P. 651, and Home v. Grimble, post, p. 17. 1841. DOWELL v. BENINGFIELD. |