C. 44. Sect. 11. "And be it enacted, that in every such case, after notice of 11 & 12 VICT. action shall be so given as aforesaid, and before such action shall be commenced, such justice, to whom such notice shall be given, may tender to Tender and paythe party complaining, or to his attorney or agent, such sum of money as ment of money he may think fit, as amends for the injury complained of in such notice; into court. and after such action shall have been commenced, and at any time before issue joined therein, such defendant, if he have not made such tender, or in addition to such tender, shall be at liberty to pay into court such sum of money as he may think fit, and which said tender and payment of money into court, or either of them, may afterwards be given in evidence by the defendant at the trial, under the general issue aforesaid; and if the jury at the trial shall be of opinion that the plaintiff is not entitled to damages beyond the sum so tendered or paid into court, or beyond the sums so tendered and paid into court, then they shall give a verdict for the defendant, and the plaintiff shall not be at liberty to elect to be nonsuit, and the sum of money, if any, so paid into court, or so much thereof as shall be sufficient to pay or satisfy the defendant's costs in that behalf, shall thereupon be paid out of court to him, and the residue, if any, shall be paid to the plaintiff; or if, where money is so paid into court in any such action, the plaintiff shall elect to accept the same in satisfaction of his damages in the said action, he may obtain from any judge of the court in which such action shall be brought, an order that such money shall be paid out of court to him, and that the defendant shall pay him his costs to be taxed, and thereupon the said action shall be determined, and such order shall be a bar to any other action for the same cause."(a) nonsuit, or Sect. 12. "And be it enacted, that if, at the trial of any such action, the In what cases plaintiff shall not prove that such action was brought within the time verdict for hereinbefore limited in that behalf, or that such notice as aforesaid was defendant. given one calendar month before such action was commenced, or if he shall not prove the cause of action stated in such notice, or if he shall not inasmuch as the six months will have elapsed before he can issue his writ, and thus he will necessarily be nonsuited at the trial, since there is no power, as there should have been, to refer the issuing of the writ to the date of the levying of the plaint. True it is that the plaintiff need not drive his action off to the last moment, but the Legislature in giving him six calendar months within which to commence his action, intended he should have that period in a full and unrestricted manner. 2nd. In an action thus brought in one of the Superior Courts, it will be necessary that the plaintiff should obtain a verdict for 57., in order to be entitled to his costs, the 9 & 10 Vict. c. 95, s. 129, depriving him of his costs in any action for a suit brought in one of the Superior Courts which may have been brought in a County Court; and even should it be held that under the peculiar circumstances, this section would not apply, it will still be necessary that the plaintiff should obtain a verdict for 40s., the 3 & 4 Vict. c. 24, s. 2, depriving a plaintiff of costs in any action of trespass or trespass on the case where less than 40s. are recovered, unless the judge certifies that the action was brought to try a right besides the mere right to recover damages, or that the trespass or grievance was wilful and malicious, which certificate in the great majority of cases the judge would feel himself precluded from giving. This section will undoubtedly prove a most fruitful source of litigation, and will press most severely upon poor plaintiffs, and those who have to complain of small acts of injustice. Why the County Court should thus be lightly treated it is difficult to understand, unless, indeed, the Legislature are becoming suspicious of their utility; and any ordinary observer would have thought that without giving a justice an absolute right to be sued alone in one of the Superior Courts, the discretion vested by the 90th section of the County Courts Act (9 & 10 Vict. c. 95), in one of the superior judges to remove a plaint, if it shall appear to him to be proper to remove it, and upon proper terms, would have answered every useful and proper purpose. (a) This section is most carelessly drawn, the author of it having obviously his attention solely directed to an action in one of the superior courts, and having altogether lost sight of the fact that it may be brought in the County Court and tried without a jury. The whole of the machinery of this section is adapted only to an action in one of the courts of Westminster Hall, speaking as it does of "issue joined,' "the general issue," "the jury at the trial," " any judge of the court in which such action shall be brought," "costs to be taxed," &c. Grave doubts will therefore exist whether the provisions in this section, as to tendering the damages, apply to an action brought in the County Court. c. 44. 11 & 12VICT. prove that such cause of action arose in the county or place laid as venue in the margin of the declaration, or (when such plaintiff shall sue in the County Court) within the district for which such court is holden, then and in every such case such plaintiff shall be nonsuit, or the jury shall give a verdict for the defendant."(a) Damages. Costs. Act to extend Sect. 13. "And be it enacted, that in all cases where the plaintiff in any such action shall be entitled to recover, and he shall prove the levying or payment of any penalty or sum of money under any conviction or order, as parcel of the damages he seeks to recover, or if he prove that he was imprisoned under such conviction or order, and shall seek to recover damages for any such imprisonment, he shall not be entitled to recover the amount of such penalty or sum so levied or paid, or any sum beyond the sum of two-pence as damages for such imprisonment, or any costs of suit whatsoever, if it shall be proved that he was actually guilty of the offence of which he was so convicted, or that he was liable by law to pay the sum he was so ordered to pay, and (with respect to such imprisonment) that he had undergone no greater punishment than that assigned by law for the offence of which he was so convicted, or for nonpayment of the sum he was so ordered to pay." Sect. 14. "And be it enacted, that if the plaintiff in any such action shall recover a verdict, or the defendant shall allow judgment to pass against him by default, such plaintiff shall be entitled to costs in such manner as if this act had not been passed; or if in such case it be stated in the declaration, or in the summons and particulars in the County Court if he sue in that court, that the act complained of was done maliciously and without reasonable and probable cause, the plaintiff, if he recover a verdict for any damages, or if the defendant allow judgment to pass against him by default, shall be entitled to his full costs of suit, to be taxed as between attorney and client; and in every action against a justice of the peace, for anything done by him in the execution of his office, the defendant, if he obtain judgment upon verdict or otherwise, shall in all cases be entitled to his full costs in that behalf, to be taxed as between attorney and client." Sect. 15. "And be it enacted, that this act shall extend only to England only to England, and Wales, and the town of Berwick-upon-Tweed." Wales and Sect. 16. "And be it enacted, that this act shall commence and take Commencement effect on the second day of October in the year of our Lord one thousand eight hundred and forty-eight." of Act. After commence ment of this Act statutes or parts the following of statutes repealed: 7 Jac. 1, c. 5. Sect. 17. "And be it enacted, that from and after the time this act shall so commence and take effect as aforesaid, the following statutes and parts of statutes, except so far as they may repeal other statutes, shall be, and shall be deemed and taken to be repealed; that is to say, so much of an act of Parliament made and passed in the seventh year of the reign of His Majesty King James the First, intituled 'An Act for Ease in pleading against Troublesome and Contentious Suits prosecuted against Justices of the Peace, Mayors, Constables, and certain other His Majesty's Officers, for the lawful Execution of their Office,' as relates to actions against justices of the peace; and so much of an act made and passed in the twentyfirst year of the reign of His said Majesty King James the First, intituled 'An Act to enlarge and make perpetual the Act made for Ease in pleading against Troublesome and Contentious Suits prosecuted against Justices of the Peace, Mayors, Constables, and certain other His Majesty's Officers, for the lawful Execution of their Office, made in the seventh year of His Majesty's most happy Reign,' as relates to actions against justices of the peace; and so much of an act made and passed in the twenty-fourth year of the reign of His Majesty King George the Second, intituled 'An Act ss. 1, 2, and part for the rendering Justices of the Peace more safe in the Execution of their Office, and for indemnifying Constables and others acting in obedience to 21 Jac. 1, c. 12, s. 5. 24 Geo. 2, c. 44, of s. 8. (a) The difficulties pointed out in the note to section 10, may be considered with reference to the present section. c. 44. 43 Geo. 3, c. 141. their Warrants,' as relates to actions against justices of the peace; and a 11 & 12 VICT. certain other act made and passed in the forty-third year of the reign of His late Majesty King George the Third, intituled An Act to render Justices of the Peace more safe in the Execution of their Duty;' and all other act or acts or parts of acts, which are inconsistent with the provisions of this act; save and except so much of the said several acts as repeal any other acts or parts of acts, and also except as to proceedings now pending, to which the same or any of them may be applicable." by the repealed Sect. 18. And be it enacted, that this act shall apply for the protection Act to apply to of all persons for anything done in the execution of their office, in all persons protected cases in which, by the provisions of any act or acts of Parliament, the statutes. several statutes or parts of statutes hereinbefore mentioned and by this act repealed would have been applicable if this act had not passed." Sect. 19. "And be it enacted, that this act may be amended or repealed amended, &c. by any act to be passed in the present session of Parliament." Act may be Land Tax. BY the 11 & 12 Vict. 62, intituled "An Act to appoint additional Com- 11 & 12 Vict. c. 62. missioners for executing the Acts for granting a Land Tax and other Rates and Taxes" (passed 14th August, 1848), a large body of additional com missioners are created. Larceny. finding. See "Evidence," "Indictment," ante, "Post Office," post. Finding-Verdict.]-A. was indicted for stealing a watch; for the A verdict of defence it was suggested that he had found it, and retained possession of it for the purpose of restoring it to the owner; the jury returned the following verdict in writing: "We find the prisoner not guilty of stealing the watch, but guilty of keeping it in hope of reward from the time he first had the watch." Held, that the finding amounted to a verdict of "not guilty," and that a verdict of "not guilty" ought to have been entered. (Reg. v. York, 3 Cox's Crim. Cas. 181, the 5 judges). Lawful possession.]—The prisoner was indicted for larceny of a half- What not a larcrown piece. It appeared that the prosecutor went into a public-house, has lawful posceny if the party called for something to drink and held out the half-crown in his hand to session. pay for it. The landlord said he could not give any change. The prisoner was standing near and offered to go out and get change, upon which the prosecutor gave him the half crown. The prisoner went away with it and did not return. Held, that this was not a larceny. (Reg. v. Reynolds, 2 Cox's Crim. Cas. 170, Maule, J.) carrying away. Asportavit.]-Upon an indictment for stealing five pints of porter, it What a sufficient appeared that the prisoner was discovered standing by a barrel of porter, out of a hole in which the porter was running into a can on the ground, and that about five pints had run into the can. Held, that there was a sufficient asportavit proved of the porter in the can. (Reg. v. Wallis, 3 Cox's Crim. Cas. 67, Coltman, J.) falsehood cattle Cattle impounded.]-Prosecutor's horse had been impounded. Pri- Obtaining by a soner pretending that he had been sent by the prosecutor, paid the pound- which are keeper's demand, received the horse and made off with it. Prisoner was impounded. Taking goods animo furandi. Who, a servanttaking by him animo furandi. indicted for larceny, and the indictment contained two counts, one laying the property in the prosecutor, and the other in the pound-keeper. Held, that the pound-keeper was a servant of the owner, and therefore that the offence was larceny. (Reg. v. Simpson, 2 Cox's Crim. Cas. 235, Williams, J.) Animus furandi.]—-A. pawned B.'s coat for B.; on the following day A. having proposed to B. to go and redeem the coat, and B. having expressed no dissent, A. obtained and took it away with him to a place eleven miles distant, where he was found with it some days after. Held, that if A. at the time be took the coat out of pawn intended to deprive B. of the use of it, and to appropriate it, he was guilty of larceny. (Reg. v. Sparrow, 2 Cox's Crim. Cas. 287, Parke, B.) Servant-animus furandi.]—Prisoner, who was a servant of B. who was a horsedealer, was sent by him to prosecutor to deliver a horse. Prosecutor asked prisoner to sell a pony for him to C. for 51. and not less. Prisoner took the pony to another person, sold it for 37. and absconded with the money. Held, that the pony was in the custody of the prisoner in the character of servant to the prosecutor, and that it was not in his possession as bailee, and that he was therefore guilty of larceny. (Reg. v. Stanbury, 2 Cox's Crim. Cas. 272, Williams, J.) Sufficiency of a Licence. A CONVICTION under the 11 Geo. 4 & 1 Will. 4, c. 64, ss. 13, 15, conviction under (for the general sale of beer, &c.), amended by the 4 & 5 Will. 4, c. 85, the licensing acts. and the 3 & 4 Vict. c. 61, alleged that on, &c., J. W., of the parish of Ashford in the county of K., was duly convicted before, &c., justices, &c., acting in petty sessions in and for the division of Ashford, in the said county, for that he the said J. W., being such seller of beer, &c., and licensed, &c., did on, &c., permit drunkenness and other disorderly conduct in the house and premises mentioned in such licence, and situate in the said parish of Ashford, in the county of K. aforesaid, against the tenor of such licence, &c., and contrary to the form of the said statutes, whereby the said J. W. has forfeited the sum of 107. &c., this being adjudged to be his second offence, &c., and we, the said justices, do hereby award one moiety of the said penalty of 107., after deducting the costs attending this conviction, to the use of J. C., of, &c., police constable, the prosecutor herein; and the other moiety, being the remainder of the said penalty, after deducting the costs as aforesaid, to be paid to the treasurer of the county of K.-Held, that if it were necessary, in order to give the justices jurisdiction, that the house of the plaintiff should be situate within the sessional division for which they acted, that such fact did sufficiently appear on the face of the conviction. Held, also, that the conviction need not notice that the prosecution was within three months after the offence was committed, that being matter of defence, and the form given in the statute not requiring such statement. Held, also, that the offence was properly stated to be contrary to the form of the statutes; also, that the charge of permitting drunkenness and other disorderly conduct was not double, and that it was sufficiently certain without giving the names of the persons drunk, or alleging them to be unknown; also, that the allegation against the tenor of the licence was sufficient, and that the licence need not be set out; also, that there was a good adjudication as to costs. (Wray v. Toke and another, 3 New Sess. Cas. 290; 17 Law J. M. C. 183; 3 New Mag. Cas. 84.) The overseers of a parish are not compellable by mandamus to grant the certificate that a party is the real resident holder and occupier of a under 2 & 3 Vict. house within their parish required by sect. 2 of the 2 & 3 Vict. c. 61. (Reg. v. Kensington and another, 3 New Mag. Cas. 45.) Overseers not compellable to grant certificate c. 61, s. 2. Literary Enstitution (see “Poors'-rate," post.) Lock-up Houses. c. 101. BY the 11 & 12 Vict. c. 101, intituled "An Act to provide for the Expense 11 & 12 VICT. of erecting and maintaining Lock-up Houses on the Borders of Counties," (passed 4th September, 1848), after reciting that by an act of Parliament passed in the sixth year of the reign of Her present Majesty, intituled "An Act for the Appointment and Payment of Parish Constables," it was 5 & 6 Vict. c. 109. enacted, that it should be lawful for the justices of the peace of any county in general or quarter sessions assembled, if they should think fit, to order that lock-up houses for the temporary confinement of persons taken into custody by any constable, and not yet committed for trial, or in execution of any sentence, should be provided in such places within their county as the said justices should think fit, and for that purpose to purchase and hold lands and tenements, or to appropriate to that purpose any lands and tenements belonging to the county which were not needed for the purpose to which they were applied or intended to be applied before such appropriation, or, instead of providing new lock-up houses, to order that the lock-up houses, strong-rooms, or cages belonging to any parish be appropriated for the purpose of that act, and, if necessary, be enlarged or improved, and that the expenses of building, hiring, or otherwise providing, repairing, and furnishing such lock-up houses should be defrayed out of the county rates: and that it is often desirable that on the borders of two or more counties or places having respectively a separate general or quarter sessions of the peace, or in some other situation convenient for the common use of such counties or places, a lock-up house for the purposes in the said act mentioned should be provided and maintained, to which persons apprehended by constables or remanded by justices in each of such counties or other places may be temporarily confined previously to their being committed for trial, or in execution of any sentence: it is therefore enacted, "that it shall be lawful for the justices of the peace in Power to justices and for any county, and for the mayor, aldermen, and burgesses of any to enter into borough (having a separate commission of the peace), to agree with the providing lock-up justices of the peace of any one or more county or counties, or with the houses for two mayor, aldermen, and burgesses of any one or more such borough or are which shall boroughs, that a lock-up house shall be erected, hired, or otherwise pro- be maintained at their joint vided at some place or places on or near any common boundary, or in any other situation convenient for the purposes aforesaid, or that a lock-up house for any county or borough, or any lock-up house, strong-room, or cage which might have been appropriated for a county under the said act, and which shall be in a situation convenient for the purposes aforesaid, shall be appropriated, and, if necessary, enlarged or improved for such purposes accordingly, and that the same shall be so provided or appropriated, enlarged and improved, and shall be from time to time repaired and furnished, and a superintendent constable appointed and paid for taking charge thereof, at the joint expense of the counties and boroughs, by the justices and mayor, aldermen, and burgesses of which respectively such agreement shall be made, in such manner and proportions as in the said agreement shall be specified: provided always, that no such lock-up No lock-up house house shall be erected, hired, provided, appropriated, enlarged, or im- to be erected proved, except upon such plan as shall be approved of by one of Her approved by Majesty's Secretaries of State: provided also, that every such lock-up Secretary of house shall be subject to the inspection of the inspectors of prisons." R agreements for or more counties, expense. except as State. |