1853. HAYLOCK V. SPARKE. Mary, the following offensive words, reflecting on the character of Mr. Robert Johnson Watt, Station Master of the Ely Railway Station, (that is to say) Donkey Watt, the Railway Jackass:' and it having been stated to me, on the oath of the said T. Palmer, that the continued writing for some time past of these offensive words are (a) calculated to provoke a breach of the peace, and the said Thomas Palmer having prayed that the said John Haylock might be required to find sufficient sureties to keep the peace towards Her Majesty and all Her liege subjects: I therefore, the said justice, have ordered and adjudged, and do order and adjudge, that the said John Haylock shall enter into his recognizance in the sum of 30%, with two sufficient sureties in the sum of 157. each, to keep the peace towards Her Majesty and all Her liege people for the space of three calendar months now next ensuing: and, inasmuch as the said John Haylock hath refused to enter into such recognizance and find such sureties as aforesaid, I do hereby require and command you, the said constable, forthwith to convey the said John Haylock to the said house of correction, and to deliver him to the said keeper thereof there, together with this warrant. And I do require and command you, the said keeper, to receive the said John Hayluck into your custody in the said House of Correction, and him there safely to keep for the space of three calendar months, unless he, in the mean time, enter into such recognizance with such sureties as aforesaid to keep the peace in the manner and for the term aforesaid. Herein fail not. "Given under my hand and seal, the 30th day of April, 1852. J. H. SPARKE." (a) Sic. On the 6th May 1852, plaintiff was brought up, by habeas corpus, before Coleridge J., and discharged. On 18th May, plaintiff, under stat. 11 & 12 Vict. c. 44. s. 9., caused a notice, dated the same day, to be served on defendant, stating that plaintiff would, "at or soon after the expiration of one calendar month from the time of" defendant "being served with such notice," commence an action against defendant. On 12th June, the warrant, having been brought up by certiorari, was quashed by the Court of Queen's Bench; and on 19th June the writ of summons in this action was issued. The defendant's counsel contended, upon these facts: 1. That defendant, in committing the plaintiff, had acted within his jurisdiction, and that, the declaration not being in case, and not averring malice, the action failed under stat. 11 & 12 Vict. c. 44. s. 1.; 2. That the warrant of commitment was good; 3. That, under stat. 11 & 12 Vict. c. 44. s. 13., plaintiff could have a verdict only for 2d. without costs, as he had been proved to have been guilty of the offence of which he had been convicted, and had suffered no longer imprisonment than that assigned by law for such offence; 4. That, under the same statute, sect. 9, the notice of action was insufficient, not having been given after the cause of action was completed. The counsel for the plaintiff contended that these objections failed, even on the assumption that the facts were as suggested for the defence: and, further, as to the first point, that it was essential to the jurisdiction, at all events, that an information should have been preferred; and, as to the third, that it should have been shown that the plaintiff had been guilty of the offence charged in the warrant, and had been convicted of such offence, none of which facts had been 1853. HAYLOCK v. SPARKE. 1853. HAYLOCK v. SPARKE. proved. The defendant's counsel relied on the warrant itself as evidence of the facts recited in it: but the Lord Chief Baron held, as to the first two points, that there was no jurisdiction and that the warrant was bad altogether: and, as to the third point, he thought the recitals not evidence. But he held the fourth objection fatal, and directed a verdict to be entered for defendant. He allowed, however, the damages to be assessed contingently, by consent; and he reserved leave to plaintiff to move to enter a verdict for the amount which should be assessed, and to the defendant to raise upon the argument on such rule the first three points insisted upon at the trial on his behalf. The jury assessed the damages at 421. O'Malley, in Michaelmas term 1852, obtained a rule Nisi to enter the verdict for 427. In the same term (a), Byles Serjt. and Wells shewed cause. First: as to the notice of action. The Lord Chief Baron's ruling was correct. The action was not maintainable till one calendar month had elapsed after the notice; and the notice could not be given before the cause of action was complete. Sect. 9 was passed to protect justices who might, in the execution of their office, have committed an act not within their jurisdiction. It enacts that no action shall be commenced against a justice of the peace for anything done by him in the execution of his office "until one calendar month at least after a notice in writing of such intended action shall have been delivered to him, or left for him at his usual place of abode, by the party intending to commence such action, or by his (a) The argument was heard on 11th and 12th November, 1852, before Lord Campbell C. J., Coleridge and Erle Js., and on 13th November before Lord Campbell C. J., Wightman and Erle Js. attorney or agent, in which said notice the cause of action, and the court in which the same is intended to be brought, shall be clearly and explicitly stated." It was intended to give the justice a month's time for the purpose of his tendering amends, before the action should be brought; and this intention would be defeated if notice of action could be given before the cause of action was complete; for, till the cause of action is complete, there is nothing for which amends can be tendered. Here the cause of action (the "act complained of," as it is called in sect. 8) was not complete until the warrant was quashed; for, by sect. 2, no action "shall be brought for anything done under such conviction or order until after such conviction shall have been quashed." [Coleridge J. Do you say that no cause of action existed here until the warrant was quashed?] The cause of action was at any rate suspended; there was no cause of action within the statute, so as to allow of notice being given. [Lord Campbell C. J. The quashing of the warrant can scarcely be called "the act complained of."] It is one of the elements which makes the entire transaction an act capable of being complained of. Sabin v. De Burgh (a), and other cases there cited, shew the strictness with which notices of this kind are to be construed. Secondly: The defendant was entitled to the verdict upon the two points first made for him at the trial. These both depend on the question of jurisdiction. It is true that the Court, in quashing the commitment, has decided that the warrant itself is defective; but the defendant may still have acted within his jurisdiction: (a) 2 Campb. 196. 1853. HAYLOCK V. SPARKE. 1853. HAYLOCK v. SPARKE. and, if so, the plaintiff should, under sect. 1, have averred malice. [Lord Campbell C. J. The informality of the warrant itself is not inconsistent with your present point.] In Barton v. Bricknell (a) it was decided that the quashing of a conviction for informality did not deprive the justice of the protection of the statute, where he had convicted for an offence within his general jurisdiction. [Coleridge J. There he had not put into execution the illegal alternative which was contained in the conviction itself, which was the only objection to the validity of the conviction.] In fact the defendant has here done nothing which was not within his jurisdiction. The warrant shews, upon the face of it, the publication of a libel by the plaintiff, and the fact of his being charged with it before the defendant. The warrant was put in by the plaintiff: the defendant, therefore, though he could not himself have made the recital in it evidence, may insist that all the contents of the document so put in are evidence, though not conclusive; Baildon v. Walton (b). The sheriff's warrant to his bailiff, under a ca. sa., is some evidence of the ca. sa. which it recites; Bessey v. Windham (c). That case, it will be said, is overruled by White v. Morris (d): but in White v. Morris (d) the decision proceeded on the ground that the evidence was given on a question between the officer and a stranger. The commitment here furnishes evidence also of a representation, by the informant, that such libel was calculated to produce a breach of the peace. The defendant had, under those circumstances, a right, as justice of the peace, to call upon the plaintiff to find sureties to keep the peace, (a) 13 Q. B. 393. (b) 1 Exch. 617. (d) 21 L. J. N. S. C. P. 185. |