Q. B.]

BRINE V. THE GREAT WESTERN RAILWAY COMPANY.

[Q. B.

proper and sufficient drains to same. To this replication | were justified by the authority of the statutes, or by the deft. demurred, alleging it to be a departure from way of showing how they were not justified. The rethe declaration. Upon the argument it was contended plication commences by a statement that it is true by the plt. that a departure in pleading was not ground the embankment was raised under the powers of the of general demurrer, but we thought this point not open Acts, and then goes on to show that it was negligently for the plt. in this court after our recent decision in the and improperly constructed, so as to show that it was case of Bartlett v. Wells: (see also the note to Richards not justified by the powers of the Act. This seems v. Hodges, 2 Wm. Saund. 84 a.) The real question on repugnant and inartificial, but taken according to the argument was, whether the replication was a de- its real meaning seems to me to amount to saying: parture from the declaration. On considering what is "Though you have had the authority of the Acts of Parthe gravamen of the charge alleged in the declaration, liament, and were raising your embankment under their I am of opinion that the replication is no departure. authority, yet you did not so construct your embankThe substance of the complaint in the declaration is, ment as to make it a work done under the authority the wrongful making, raising and continuing the em- of the statutes." The distinction is now clearly estabbankment near the plt.'s dwelling-house, and by means lished between damage from works authorised by stathereof causing water to run and flow to and against tute where the party is generally to have comsuch dwelling-house, whereby it was rendered damp pensation, and the authority is a bar to an and incommodious. The plea excuses the making and action for damage by reason of the works raising the embankment under the provisions of certain being negligently done, as to which the owner's Acts of Parliament, to which the plt. in substance re- remedy by way of actions remains ; and it plies, that his complaint against the defts. is not for the seems to me that the effect of the plea and replication, lawful exercise of the powers conferred upon them, but fairly considered as a general demurrer, is, that the for an improper making and raising the embankment plea says, "What you complain of arises from work without proper drains. It appears to me that the sub- justified under statutes, and for which your remedy, if stance of the complaint, both in the declaration and re- any, is for compensation;" and that the replication plication, is the wrongfully causing the water to run inartificially answers this by saying, "The works causing and flow against the dwelling-house of the plt.; and, the injuries were not authorised by the Acts of Paralthough it may be doubtful whether the replication is liament, but were negligent and improper works, for to be considered as an informal traverse of the plea, which you are answerable in damages." Whether the or in the nature of a new assignment, it appears to me replication is a mere informal denial, or whether it not to be obnoxious to the very wholesome rule against explains why the plea is not a bar or is in the nature departure in pleading. In Co. Lit. 304 a, cited in note of a replication of excess, it is not necessary to inquire. 1 to Richards v. Hodges, 2 Wm. Saund. 84 a, it is said "a The plea, pleaded in a compendious and general form, departure in pleading is said to be where a man acts or that the works were done under the authority of the departs from one defence which he has first made, and statutes, must, I think, be construed as if it contained has recourse to another." And the same rule is all the necessary averments of a special plea expanded stated by Tindal, C. J., in Prince v. Brunette, 1 Bing. on the record, and would, I think, be bad if not conN. C. 438, in the following terms: แ Undoubtedly, strued to contain expressly or impliedly an averment where a replication does not consist with or fortify the that the works were such as were authorised by the declaration, it is a departure in pleading; for a plt. is Act; and to this averment the replication seems to me not entitled to declare in respect of one right, and then to contain a direct answer. It might depend on the to set up another in his replication. The only ques- mode in which the special pleas, if expanded on the tion here is, whether, this replication does set up a record, were framed; whether the formal mode of title inconsistent with that disclosed in the declara- answering the plea would be by a denial of the avertion." Another test of a departure in pleading is ment of the acts complained of being justified by the stated by Tindal, C.J., in Smith v. Nicholls, 5 Bing. statutory authority, or whether a new assignment or N. C. 218, as follows: "That which is a departure replication of excess might be rendered necessary by in pleading is a variance in evidence; and if the evi- reason of the plea containing an averment of quæ est dence in support of the replication would support eadem, or of the acts being done under statutory the allegation in the declaration, there is no departure." authority, without any unnecessary damage. Applying that test in the present case, it appears to these questions no longer arise in the general mode of me that the evidence necessary to prove the matter pleading adopted in this case, which seems sufficient, alleged in the declaration is not inconsistent with, but as general demurrers are no longer allowed. It is would clearly support, the allegations in the declaration. sufficient if the replication contains, as I think it does, Tried, therefore, by the test of variance in evidence, as either a denial that the acts complained of were authosuggested in Smith v. Nicholls, I think that the objec-rised by the statutes, or an explanation how they were tion fails, and that the plt. is entitled to succeed on this demurrer. The case in 2 Wilson, 96, cited by Mr. Smith, is clearly distinguishable, inasmuch as the plea was, that the deft impounded the mare damage feasant, which is a private trespass, whereas the rejoinder that the mare was mangy set up that which is a common nuisance. I am therefore of opinion that the plt. is entitled to our judgment.

CROMPTON, J.-I concur with my brother Mellor in thinking that the replication in this case is no departure from the declaration. The declaration is for wrongfully (that is without lawful excuse) causing the water to flow on the plt.'s land and against his house, by means of an embankment, and so injuring his premises: and the plea is a justification for so causing the water to flow and injure the premises under the anthority conferred on the defts. by certain Acts of Parliament. The replication is very inartificially drawn, but it appears to me, in substance, to avoid the plea by way of informal denial that the acts complained of

But

not so authorised. Suppose that this had arisen before the new rules of pleading, when the whole matter of defence would have arisen under the general issue of not guilty. The plt. would have proved the injury to his premises by the water being thrown upon them by means of the embankment. The defts. would have shown their authority under the Acts of Parliament, and the plt.'s answer would be that the construction of the works was such as was not authorised by the statutes. The evidence which would prove the replication would therefore support the declaration, accord-ing to the test proposed by Tindal, C. J., cited by my brother Mellor; and it should be observed that the facts in the replication do not the less prove the declaration because the replication contains nothing more in answer to the plea than would be necessary to prove the declaration, so long as the new matter is not inconsistent with that in the declaration. The case in principle does not differ from the ordinary case of a plt. replying to a plea setting up a licence or authority,

Ex.]

REEVES AND ANOTHER v. HAWKES.

[Ex.

holders and indorsees for value, without notice, and being dishonoured, an action was brought by them against deft. The learned judge left it to the jury to say whether the bill was given to buy off C.'s opposition to deft.'s passing his last examination and obtaining his certificate, or to the passing the last examination only. The jury found for deft., and a rule nisi having been obtained to enter judgment for plt. non obstante veredicto:

Held (following the decision in Goldsmid v. Hampton, 5 C. B., N. S., 94; 27 L. J., 286, C. P.), that the bill, having been given to buy off opposition to the last examination and the allowance of the certificate, was void, under sect. 202 of 12 & 13 Vict. c. 106, even in the hands of a bona fide holder and indorsee for value, and without notice. It was in fact absolutely void ab initio.

Action on a bill of exchange by the plts., as indorsees, against deft. as drawer and indorser.

or in fact, or under a deed, that the acts were not such as were covered by the licence, or were acts done in exercise of it. The plt. was not called upon to anticipate the defence by showing that the works were not justified by reason of the Acts of Parliament, which might never be set up. Such mode of pleading would probably be improper, and the matter alleged would probably have no effect on the subsequent pleadings, and be returned as merely idle, as in the case where the plt. alleges in his declaration that a deft., from whom he expects a plea of infancy, was of full age when he executed the instrument declared on. Such pleading is what has been called leaping before you come to the hedge. I think that the plea in the present case must be taken to aver that the grievances complained of were such as were justified under the authority of the statutes, and that the replication is not in the nature of bringing forward a new cause of action, but avoids the plea, either by an informal denial of the implied averments Seventh plea. That before action deft. became of the plea, or by stating matters which show how the and was a bankrupt within the true intent and plea does not answer the declaration, because the meaning of the statutes relating to bankruptcy, grievances in the declaration were not such as the and was duly adjudged bankrupt, and all things. statute authorised. If, indeed, it could be made out, as necessary to render the said adjudication a valid argued by Mr. Smith, that the replication disclosed aadjudication according to the law of bankruptcy, had new distinct cause of action, it would, no doubt, be a happened and existed, and that the said bill and the departure; but after consideration, and with great deft.'s indorsement thereof, was and is a contract and respect for the doubts thrown out in the course security made and given by the deft., so being such of the argument on this part of the case, bankrupt, to the said Joseph E. Cox, then being a I construe the replication as not complaining of creditor of the deft. under his said bankruptcy, for the breach of some statutory duty, as for the building securing the payment of money due by the deft. at his of a bridge, er making a communication, but as bankruptcy to the said J. E. Cox, as a consideration averring and undertaking to prove that the construc- and with the intent to persuade the said J. E. Cox, so tion of the works was so faulty as not to be under the being such creditor, to forbear opposing and to consent protection of the statutes. In other words, as alleging to the allowance of the deft.'s certificate, and to forthat the grievances complained of in the declaration bear opposition to the deft. on his examination under were not occasioned by the building of any embank- the said bankruptcy; and that there never was any ment which the statutes authorised, because the value or consideration for any indorsement of the said statutes must be taken to authorise properly-con- bill, or for any person holding the same, and that each structed embankments only. The replication seems to indorsee and holder of the said bill had notice of the me to set up an improper construction of the embank-premises before and when the said bill was indorsed to. ments in question as an answer to the proposed protection under the statutes, and so to rely on the plt.'s common law right claimed in his declaration to have damages for the mischief accruing from the water being thrown on the land without any lawful excuse. I therefore concur with my brother Mellor in thinking that our judgment should be for the plt.; but the decision must be taken as the decision of him and myself only, as the Lord Chief Justice is not prepared to assent to the judgment we have delivered.

John Slade, plt.'s attorney.

Maples, Maples and Pearse, defts.' attorneys.

him, and took it from his indorsee with such notice, and that the said bill was overdue, according to its tenor, before and when it was indorsed to such indorsee and holder thereof. Issue thereon.

At the trial before Williams, J., at the Maidstone summer assizes 1861, the following facts appeared in evidence :-Deft., a brickmaker, at Poole, in Dorsetshire, being in pecuniary difficulties, filed a declaration of insolvency early in Jan. 1860, and was duly adjudicated a bankrupt on the 10th of the same month in the Court of Bankruptcy for the Exeter district. One Cox, a creditor to the amount of 300l., went to Exeter in March 1860, for the purpose of opposing the bankrupt's examination, but before he could do so the commissioner adjourned the meeting in order to enable> the bankrupt to give further explanations. Between that time and the 16th May, when deft. passed his final examination, Cox had several meetings with Nov. 8, Jan. 15 and 16. deft., and having, according to deft.'s statement, REEVES AND ANOTHER v. HAWKES. threatened to oppose the final examination and Bankrupt Law Consolidation Act 1849 (12 & 13 grant of the certificate, unless deft. gave him bills Vict. c. 106, s. 202)—Bill of exchange given to for the amount of his debt, deft. was at length induced induce creditor to forbear opposing last examination to do so. Accordingly a series of bills, of different and certificate-Action upon by indorsee against amounts and various long dates (of which the bill drawer-Bill void under sect. 202, in hands of in question in this action was one), were, at innocent holders for value-Goldsmid v. Hampton Cox's suggestion, drawn by deft. on one Strong, followed.

COURT OF EXCHEQUER. Reported by F. BAILEY, and H. LEIGH, Esqrs., Barristersat-Law.

a stranger to deft., and then indorsed by deft. to The deft., on the eve of passing his last examination Cox, upon the express condition, as deft. swore, in bankruptcy, at the urgent solicitation of C., a that Cox would stop all further opposition to deft.'s creditor, drew a bill of exchange on a stranger, passing his examination and getting his certifi and indorsed it to C., in consideration of C.'s for cate. Cox, on the other hand, denied that there bearing to oppose the bankrupt's passing his last was any arrangement at all as to the certificate, though examination and the allowance of the certificate. he admitted that he was to allow deft. to pass his exaThe bill subsequently came by successive indorse-mination. The bills were dated 15th May 1860, and ments to the hands of the plis., as bonâ fide |on the following day deft. passed his final examination.

CRONSHAW v. CHAPMAN.

It was not denied that plts. were bona fide holders for | meant void, either as to bonâ fide holders or others. value and without notice. The 166th section of the New Bankruptcy Act 1861 The question left to the jury by the learned judge enacts that all such contracts or securities as that in was, whether the bill was given to induce Cox to for- this case shall be void; but there is a proviso added, bear opposition to deft.'s passing his last examination" that no such security, if a negotiable security, shall and obtaining his certificate; or to forbear opposing the last examination only. The jury found a verdict for the deft., with which verdict it appeared that the learned judge was not dissatisfied.

be void as against a bona fide holder thereof for value, without notice of the consideration for which it was given." It is clear, therefore, that if, before the Iste Act, such a security was not absolutely void, then this proviso was unnecessary.

Jan. 16.-Lush, Q.C. and Prentice would not attempt to support their rule in the teeth of the decision in Goldsmid v. Hampton.

WILDE, B.-This rule must be discharged, unless the plts.' counsel can show something to overrule the decision in Goldsmid v. Hampton. There can be no doubt, after that case, that under the 202nd section of the 12 & 13 Vict. c. 106, this bill, which was given, as the jury found, for the purpose of buying off opposition to the last examination and to the allowance of the certificate, was void, even in the hands of a bonâ fide holder for value without notice; and such it was not denied the plts. were. The bill was, in fact, absolutely void aš initio.

MARTIN, B.-I concur in the opinion which my brother Wilde has expressed, with regard to the bill being absolutely void in the hands even of a bona fide and innocent indorsee. The fact is, the plts. want the proviso here which is added to the 166th section of the new Act. The rule will be discharged.

City.

Deft.'s attorney, Mr. J. Atkinson, 5, Bow-street, Covent-garden.

Ex.]

caster.

The two first counts of the declaration charged a trespass to plt.'s dwelling-house and goods. The third and fourth counts were in trover and detinue. Deft. pleaded, first, not guilty (by statutes 9 & 10 Vict. c. 95, ss. 118, 138; 13 & 14 Vict. c. 61 s. 19; 15 & 16 Vict. c. 54, s. 6; and 19 & 20 Vict. c. 108, s. 60.) Secondly, to first count, a denial that the dwelling-house and goods therein mentioned were the dwelling-house and goods of plt. Thirdly, to first count, that before the time when, &c., one Joseph Cronshaw, being indebted to the plt. in a certain sum of money to wit, 45l. 15s. 6d. the same being a cause of action in which the County Court of Lancashire, holden at Preston, had jurisdiction, the plt. entered his plaint in the said County Court against the said J. C. for the cause of action aforesaid, and the said J. C. was duly summoned to appear in the said County Court, to answer the plt. in the matter of the said plaint, and such proceedings were thereupon had that it was adjudged by the said court that the plt. should recover against the said J. C. the said sum of 451. 15s. 6d., and the sum of 5. 128. 8d., with costs of suit, amounting together to 517. 8s. 2d; and thereupon it was ordered by the said court that the said J. C. should pay the same as in the said order mentioned; and the said J. C. having made default in payment of the same, according to the said order, a writ of fi. fa., as a warrant of execution to the high bailiff of the said court, was, on 1st Aug. 1861, issued out of the said court and delivered to the said high bailiff, requiring him to make and levy, by distress and sale of the goods and chattels of the said J. C., where they might be found within the district of the said court (except the wearing apparel and bedding of the said J. C. or his family, and the tools and implements of his trade, if any, to the value of 5.), the said sum of 511. 88. 2d. including the costs of the said execution; and the deft. says that divers goods and chattels of the said J. C. being out of the jurisdiction of the said court and within the jurisdiction of the County Court of Lancashire, holden at Liverpool, the high bailiff of the said County Court of Lancashire, holden at Preston, sent the warrant of execution with a warrant thereto annexed, under the hand of the said high bailiff and seal of the said court, requiring execution of the same, to the registrar of the said County Court of Lancashire holden at Liverpool, who also sealed and stamped the same with the seal of the last-mentioned court and issued the same to the high bailiff of his court, and divers goods and chattels of the said J. C., liable to be taken in execution under the said warrant, being at the said time when, &c., in the said dwelling-house in which, &c., such last-mentioned high bailiff, under and by virtue of such warrant as aforesaid, by certain of his servants and under-bailiffs in that behalf, entered the said dwelling-house in which, &c. (the outer door thereof being then open), and did then and there seize and take the said goods and chattels of the said J. C. for the purpose of making and levying the moneys so directed to be made and levied as aforesaid, and did then necessarily and unavoidably make a little noise and disturbance in the said dwelling-house, and remain therein making such noise and disturbance for the space of time in the said first count mentioned, doing no unnecessary damage to the plt. on the said occasion, which are the several alleged grievances in the introductory part of this plea mentioned. Fourthly, to second, third and fourth counts, a denial, that the goods in those counts respectively mentioned were the goods of the plt. as alleged.

This was an action originally brought in the Passage | was levied, and that the furniture and goods therein. Court, at Liverpool, and removed by the deft., by belonged to him, except a few bundles of cigars, which certiorari, into the Court of Common Pleas, at Lan- were the property of his brother, the execution-debtor, Joseph Cronshaw, and that upon the door of the house was a brass plate with the words "Joseph Cronshaw, cigar dealer," engraved thereon, which plate belonged to the debtor, Joseph Cronshaw, but he did not reside there; that Joseph Cronshaw was then indebted to Chapman, the deft., in a sum of money, on which judgment had been recovered in the County Court at Preston, and that the levy was made to enforce payment of this debt. The bailiffs of the County Court at Liverpool made the levy, the warrant having been sent to them for execution from the County Court at Preston.

At the trial it appeared that the plt. Thomas Cronshaw was tenant of the house in which the execution

To connect the deft. with the trespass, a clerk was called from the office of the Preston County Court, who swore that the deft. had directed him to write the following letter to the high bailiff of the Liverpool› County Court:

66

County Court Office, Preston, 1st Aug. 1861.
Chapman v. Cronshaw.

66

"The plt. in this action has some reason to believe in the possibility of a third person claiming the goods, &c. at the address given on the back of the execution; he will, however, contest any claim that may be made, and he desires that the high bailiff at Liverpool should be so informed, in order that the officer who levies will not, in any way, be deterred from putting the warrant in force by reason of any party setting up a claim.

"JAMES WHITESIDE, Clerk to Registrar."

It also appeared that the present plt. having, on the 3rd Aug., the day of the levy, given a general notice to the high bailiff that he claimed "the goods seized," an interpleader summons was accordingly issued, and the plt. was required to give an inventory of the goods he claimed, and he did so on the 12th Aug., but omitted part of the goods, and on the 23rd Aug. the issue was tried before the judge of the County Court.

The plt.'s counsel, on the trial in the County Court, endeavoured to give evidence of other goods than those in the inventory of the 12th Aug. but the judge would not permit it, and eventually gave judgment for the plt., which was entered in the books of the County Court thus: "Judgment for claimant as to goods in claim dated 12th Aug. 1861, value 8., high bailiff and court fees to be paid by execution-creditor." The high bailiff thereupon sold the rest of the goods and handed the proceeds to the deft., whereupon this action was brought.

The deft. before pleading to the present action took out a summons to stay proceedings so far as related to the goods in the declaration mentioned. On the hearing of this summons the deft. quoted Chater v. Chigwell, 15 Q. B. 217; s. c. 19 L. J. 520, Q. B., and urged that the action should be stayed as to all the goods. For the plt. it was said that, inasmuch as the County Court judge had refused to allow the plt. to go into the whole question of the goods, the judge at chambers could only make an order as to the goods mentioned in the inventory of the 12th Aug. Willes, J., however, refused to decide as to what goods were included in the County Court judgment, and declined to stay the action as to those causes of action, the plt. undertaking "not to claim in respect of any goods as to which the County Court judge had adjudicated.”

At the trial of the present action, before Crompton, J., at the Liverpool winter assizes, James, Q.C. objected on the part of the deft.: 1. That there was no evidence to connect the deft. with the trespass. 2. That if so, as to the first count, there was a justification. 3. That the deft. was entitled to notice of action. 4. As to the goods, res judicata.

The learned judge was of opinion that the deft. was entitled to notice of action, and nonsuited the plt., giving him leave to move to set aside the nonsuit and enter a verdict for the plt. for 51. on the trespass and

'for 31. 10s. for the goods, with power to the judge to certify at any time, and leave to the deft., on the argument of the rule, to avail himself of all his objections.

Littler accordingly (Jan. 14) moved for and obtained a rule nisi to set aside the nonsuit and enter a verdict for plt. for 51. on the first count and 31. 10s. on the second, third, and fourth counts, on the ground that deft. was not entitled to notice of action, he not being an officer of the County Court, and also having interfered voluntarily with the process of the County Court, against which Jan. 31.-James, Q.C. (with him R. G. Williams) now appeared to show cause.

MARTIN, B.-Mr. Littler, are you not concluded as to the question of notice? How do you get over Burling v. Harley, 27 L. J. 258 Ex. ?

Littler.-I think I can get over that. The deft. in Burling v. Harley was a bailiff of the County Court. I do not contend that if deft. had been an officer of the court he would not have been entitled to notice; but as execution-creditor he is not. The words "acting in execution of this Act" (sect. 138 of 8 & 9 Vict. c. 95) seem to point to officers of the court, and are different from the words "acting in pursuance of," which are found in some other Acts, and which might be held to include others than "officers" of the court. In Edge v. Parker, 8 B. & C. 697, assignees under a bankruptcy were held not entitled to notice under a similar clause. In Brooker v. Field, 9 C. & P. 651, which was an action for false imprisonment, the deft. was held not entitled to notice by the 75th section of 7 & 8 Geo. 4, c. 29; so also in Dowell v. Beningfield, 1 C. & M. 9; and Homes v. Grimble, Ib. 17. In Hopkins v. Crowe, 4 A. & E. 774, where protection was claimed under similar words, and quite as wide as these, the deft. was also held not entitled. Smith v. Hopper, 9 Q. B. 1005, is also in point.

Feb. 4.-POLLOCK, C.B.-We think we ought to call on Mr. James to show cause.

[Ex.

stand the consequences, notwithstanding an advere claim is expected."] Just so; it simply directed him to do his duty, for not doing which the bailiff would have been liable to an action. (He was here stopped

Littler (with him Fenwick) contra.-In the face of this letter and the finding of the jury, it cannot be contended that deft. is not liable. He is not content with simply giving information where the party is to be found, but goes beyond the bounds of his duty a execution-creditor under sect. 94, and tells the bailiff of the court not to be deterred by any claim, and this distinguishes the present case from Childers v. Wooler. (Reads the letter.) Surely this was an active inter ference, and, apart from actual personal interference, is not easy to say what more he could have done to drive on the bailiff. [POLLOCK, C.B.-His directions to the bailiff are pointed against goods that are liable.] He is determined to resist any claim. [POLLOCK, C.B.-Is your claim against the deft. founded on that letter alone, or on anything beyond it ?] On the letter alone. [POLLOCK, C.B.-Then I cannot imagine how that fixes the deft. Unless it contained a specific direction to seize the very goods that were seized, how can you use a letter to an officer, who is bound to do his duty, to show that the officer has exceeded his duty or done wrong?] It was not the brother's house, and nothing there, except a few bundles of cigars, belonged to the brother, the execution-debtor. [POLLOCK, C. B.-It would be a fraud on the Excise if the plt., having permitted his brother to give his address at plt.'s house, were afterwards to be allowed to deny that it was his brother's place of business.] The bailiffs seized not only the executiondebtor's cigars, but all the things belonging to plt. The words "goods, &c." must mean the whole that were in the house. [CHANNELL, B.-If you seek to make the officers liable you must give notice of action; but you must make out a very strong case indeed before you can make a third party a trespasser by relation. James, Q.C. (with him R. G. Williams).-There is POLLOCK, C.B.-Suppose the plt. in an execution no doubt a bailiff is entitled to notice of action: case describes the deft. accurately enough, and the (Burling v. Harley.) It is apprehended there is no bailiffs seize a wrong man, would that render the distinction between the case of a bailiff and any other execution plt. liable?] If he went on to say, "There is person acting bona fide in pursuance of the Act. some person like the deft., but do not be deterred by Reading sect. 94 of the Act 9 & 10 Vict. c. 95, with that, but go on and apprehend, &c.," then it is submitted sect. 138, it is clear this was something done in pur- he would be liable. [POLLOCK, C.B.-If a third person, suance of the Act, and it is immaterial that he was not a stander by, says, bona fide, to the officers, "That is an officer. He falls within the words " any person "the man," and the officer takes him, it is clear the third in sect. 138. Burling v. Harley is therefore in point, person is not liable, the officer takes him at his own and so is White v. Moss, 11 C.B. 1015. The words risk; then why should the deft. here be liable? It is of the 138th section are as general as they can be, not easy to see why information given by one man 'persons acting in the execution of this Act," renders him liable, and by another not so, but so it is, "against any person." In directing the letter to be but I for one am not inclined to carry the doctrine a written, deft., as execution-creditor, was acting in pur-jot beyond the necessary point. WILDE, B.—It suance of the provisions of sect. 94. [WILDE, B.-Is comes to this, that you must show that there was the he liable at all? That ought logically to come first. most express direction by the deft. to do the act comPOLLOCK, C.B.-I should rather think he is not. Read plained of, but at the most you can only say that the the letter.] (Letter read.) If the letter is to be read as letter was ambiguous; you cannot make a man liable an order to seize all the goods, then deft. may be liable. under an &c. POLLOCK, C.B.-After all it is very much The effect of the letter is, "Go to a house where you a case for the jury, and I for one, if acting as a jurywill find certain goods liable to be taken in execution:" man, would say, not responsible if bona fide."] The Chater v. Chigwell, 19 L. J. 520, Q.B.) How can it jury have found damages. [CHANNELL, B.-They have be said that deft. himself, the execution-creditor, is only assessed damages in the event of your being entitled to liable? [POLLOCK, C.B.-I cannot see that he is the verdict. POLLOCK, C.B.-We must take it that more responsible than he would have been if the bailiff the jury have found nothing in your favour, and unless had committed an assault. I think we are bound to we are compelled to find deft. liable, there is nothing in suppress these actions. BRAMWELL, B.-I have been your favour. The real question is, does the letter of so impressed with the idea that nothing should be done, necessity authorise the taking of plt.'s goods, and so and no action brought in such cases, that I stopped create a ground of action?] Anything which has a an action in a case which came before me under similar tendency to influence the mind of the bailiff and to circumstances.] The case of Childers v. Wooler, induce him to act would render a man liable to an 29 L. J. 129, Q. B.; 2 L. T. Rep. N. S. 49, is not dis-action. [POLLOCK, C.B.-That is a most mischievous tinguishable from the present case. [CHANNELL, B.- doctrine. CHANNELL, B.-It may be a threat to inThe present case is even more against the plt. With fluence the bailiff, but that would not make him liable; this letter the bailiff was bound to act. WILDE, B.-it must be in the nature of a command.]

.46

The effect of the letter is, "Keep the goods; I'll POLLOCK, C.B.-I think the nonsuit was perfectly