1872. June 7.

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GRANT, respondent v. R. J. SHAW, appellant.

Bill of Sale Act-Description of Resi dence and Occupation of Assignor and Attesting Witness-17 § 18 Vict. c. 36. s. 1.

S., who was a clerk in the Admiralty, was described in a bill of sale given by himself and in the affidavit filed pursuant to 17 & 18 Vict. c. 36. s. 1, as a government clerk," and the attesting witness, of whose occupation there was no direct evidence, was described as an "insurance clerk: Held, that the descriptions were sufficient.

Appeal against a decision of the Deputy Judge of the Brompton County Court upon the following facts.

1. Certain goods and chattels were seized by the bailiff of the County Court, under an execution in an action wherein Grant is the plaintiff and G. J. Shaw is the defendant. R. J. Shaw thereupon claimed to be entitled to the goods and chattels by virtue of a bill of sale, dated the 3rd of November, 1869, and made between the defendant and the claimant, whereby the defendant assigned the goods and chattels to the said claimant to secure repayment of 2807. with interest.

2. An interpleader summons was accordingly taken out, and came on for hearing before the Deputy Judge of the said County Court on the 27th of March, 1872.

3. At the hearing the bona fides of the bill of sale was proved, and the bill of sale and the affidavit of execution thereof were put in evidence.

4. G. J. Shaw is described in the bill of sale and in the affidavit as a "Government clerk," and the attesting witness is described as an "insurance clerk."

5. G. J. Shaw in cross-examination stated that he was a clerk in the Admiralty, but no evidence was adduced as to the occupation of the attesting witness as an insurance clerk. Objection was taken by the attorney for the plaintiff to the validity of the bill of sale, on the ground that the words Government clerk were not a sufficient description of the Occupation of the maker, and that the words insurance clerk were not a suffiNEW SERIES, 41.—Q.B.

cient description of the occupation of the attesting witness. The Judge held that the objection to the description of the occupation of the maker of the bill of sale was valid, and on that ground gave judgment for the plaintiff without deciding upon the second objection; but gave the claimant leave to appeal.

6. The question for the opinion of the Court is whether the description "Government clerk" is or is not a sufficient description of the occupation of the maker of the bill of sale.

Chapman, for the appellant, the claimant under the bill of sale.-The question is whether the description of the occupation of the assignor and attesting witness is sufficient, under 17 & 18 Vict. c. 36. s. 1, which requires in the affidavit filed with any bill of sale of personal chattels the" description of the residence and occupation of the person making or giving, and of the attesting witness to the bill of sale." A clerk in the Admiralty is a "government clerk," and the description could not mislead persons dealing with the maker of the bill of sale. Hewer v. Cox (1), it is explained that the object of the registration required by the Act was so far to identify the assignor as to prevent persons dealing with him from supposing that it was another person who had given the bill of sale. Taking this as the test there could have been no doubt as to the identity of the assignor, or of the attesting witness. He also cited Allen v. Thompson (2), Routh v. Roublot (3).

In

Sills, for the plaintiff.-The description of the assignor as "Government clerk " is insufficient. The particular department of the Government service in which he was engaged ought to have been specifiedAttenborough v. Thompson (4), Blackwell v. England (5).

(1) 3 E. & E. 428; s. c. 30 Law J. Rep. (N.s.) Q.B. 73.

(2) 1 Hurl. & N. 15; s. c. 25 Law J. Rep. (N.s.) Exch. 249.

(3) 1 E. & E. 850; s. c. 28 Law J. Rep. (N.S.) Q.B. 240.

(4) 2 Hurl. & N. 559; s. c. 27 Law J. Rep. (N.S.) Exch. 23.

(5) 8 E. & B. 541; s. c. 27 Law J. Rep. (N.s.) Q.B. 124.

2 R

Trover-Trial of Action-Evidence tending to prove a Felony-Jurisdiction of Judge at Nisi Prius.

At the trial of an action of trover to recover damages for the conversion of a chattel, evidence was given on both sides. The evidence tended to shew that the defendant had stolen the chattel. The plea was, not guilty. The issue raised having been left to the jury, a verdict was found for the plaintiff. A rule nisi having been granted calling upon the plaintiff to shew cause why there should not be a new trial on the ground that the judge ought to have nonsuited the plaintiff or to have directed a verdict for the defendant, this Court discharged the rule, holding that the judge had acted properly in leaving the case to the jury, and that the defendant could not complain of his having done so.

Declaration in an action of trover brought to recover damages for the conversion of a gold brooch.

Plea, not guilty.

At the trial which took place before Lush, J., at the Liverpool Spring Assizes, 1872, evidence was given on both sides. It was sworn on behalf of the plaintiff that his wife had on the 25th of August, 1871, handed to the defendant a parcel, containing, amongst other things, the brooch in question; that the defendant opened the parcel, and took out the contents; that he did not put the brooch

(6) Blackburn, J.; Mellor, J.; and Lush, J.

back into the parcel; and that on the 29th of August she opened the parcel and then found that the brooch was not in it. It was sworn by the defendant and others that the parcel was left in his charge between the 23rd and 25th of August; that it was returned to the plaintiff's wife on the latter day; that the contents were counted over in her presence; that she said that they were correct; that she took the parcel away with her, and that the defendant did not take the brooch. The learned judge left the case to the jury, and a verdict was returned for the plaintiff for 150l.

Torr (on March 19) moved for, and obtained, a rule nisi for a new trial, on the ground that the evidence given at the trial tended to prove that the defendant had feloniously taken the brooch. He also moved upon an affidavit of the defendant, from which it appeared that subsequently to the trial criminal proceedings had been instituted against him (defendant) in respect of the larceny of the brooch, which proceedings were still pending. It was stated in the affidavit that the defendant had neither converted the brooch nor committed any larceny in respect of it.

The Court granted a rule nisi, against which cause was now shewn by

Aspinall. Neither the plaintiff nor his wife have instituted the criminal proceedings against the defendant. They have been compelled by the public authorities to come forward as witnesses for the prosecution. No suggestion was made at the trial that the learned judge should nonsuit the plaintiff, or that he should interfere. The defendant gave evidence, and denied that he had taken the brooch.

[LUSH, J.-Suppose at the end of the plaintiff's case I had interposed, and had said that the matter looked like a felony, the defendant would have said-"I am going to call witnesses, and to shew that I have not stolen the brooch." He would have been very angry if I had replied― "I do not believe you; I shall nonsuit the plaintiff, and you must be prosecuted for felony." BLACKBURN, J.-The position of the defendant is this: he says that the evidence points to his being a felon, which he denies, and yet he says

that the judge ought to have nonsuited the plaintiff. That would be very strange. COCKBURN, C.J.-How can the judge at Nisi Prius try anything but the issues on the record? It may be that the private remedy is absorbed in the greater public interest of the criminal proceeding, but I am unable to see how the judge at Nisi Prius can interfere proprio vigore. It may be that an application could be made to the Court to which the record belongs. No suggestion was made at the trial that the defendant ought to be prosecuted.]

In Stone v. Marsh (1) the question was somewhat discussed, but the precise point. did not arise. In Crosby v. Leng (2) the defendant had been acquitted on an indictment for a felonious assault upon the plaintiff. The plaintiff was allowed to recover in an action subsequently brought against the defendant, there being nothing to shew that he had colluded in procuring the acquittal. Lord Ellenborough, C.J., said "The policy of the law requires that before the party injured by any felonious act can seek civil redress for it, the matter should be heard and disposed of by the proper criminal tribunal, in order that the justice of the country may be first satisfied in respect of the public offence. . . . Here the defendant having been before tried and acquitted of the felony, the objection founded upon the general policy of the law does not apply." The case is not an anthority upon which the present defendant's contention can be supported. White v. Spettigue (3) was a case in which the plaintiff brought an action against the defendant, a bookseller, to recover books which had been stolen from the plaintiff, and purchased innocently by the defendant. The objection was unsuccessfully taken that the plaintiff ought to have prosecuted the thief before proceeding by action against the defendant. Upon the whole it is submitted, first, that the authorities do not shew that the defendant is entitled to insist that a nonsuit should be entered against the plaintiff, and, secondly, that if it be so, it lies in

(1) 6 B. & C. 551.

(2) 12 East 409.

(3) 13 Mee. & W. 603; s. c. 14 Law J. Rep. (x.s.) Exch. 99.

the breast of the judge at the trial to take the objection in furtherance of public justice. The defendant cannot start the objection now.

Torr, in support of the rule.-The law requires that the criminal proceeding against a man who has committed a felony should precede the civil remedy. In 1 Hales P.C. 546 it is stated as to retaking of goods stolen: "If A. steal the goods of B., and B. take his goods of A. again to the intent to favour him or to maintain him, this is unlawful, and punishable by fine and imprisonment, but if he take them again without any such intent, it is no offence-Mich. 16 Jac. B. R. Higgins and Andrews (4), but justifiable. But after the felon is convicted, it can be no colour of crime to take his goods again when he finds them, because he hath pursued the law upon him, and may have his writ of restitution if he please." It is submitted that if the plaintiff in proving his case shews that the act of the defendant amounts to a felony, the judge should interfere, and nonsuit the plaintiff, or stop the case. The rule has been made with a view of preventing persons from selfishly pursuing their own interests instead of protecting the interests of the public. In Com. Dig. Tit. "Action upon the case" (B. 5), the following passage appears-"So an action upon the case lies not for a wrong which is a felony." In Dawkes v. Coveneigh (5), where the defendant had been convicted of felony for taking 2501. out of the house of the plaintiff, and had been burnt in the hand, and an action of trespass quare clausum fregit, and for carrying away the 250l., was afterwards brought against him, Rolt C.J., said "This is after a conviction, and so there is no fear that the felon shall not be tried; but if it were before conviction, the action would not lye, for the danger the felon might not be tryed. And there is no inconvenience if the action do lye; and since he could not have had his remedy before, he shall not now lose it; and now there is no danger of compounding for the wrong." The rest of the judges agreed with Rolt, C.J., and so judgment

(4) 2 Rolle Rep. 65. (5) Styles 346.

was given for the plaintiff. The rule is referred to in the notes to Ashby v. White (6)-"And though the damage and wrong be excessive, and peculiarly concern an individual, still if it amount to a felony, the private remedy is suspended until public justice shall have been satisfied; a very wholesome rule, and tending to prevent the composition of felonies under the pretence of seeking remedy by action." And the editors add: "This rule, however, does not apply to actions against others than the person guilty of the felony.-White v. Spettigue (3); and the statute 9 & 10 Vict. c. 93, for compensating the families of persons killed by accidents, whilst it recognises the general rule, expressly enacts that it shall not apply to actions brought pursuant to its provisions."

[BLACKBURN, J.-Dawkes v. Coveneigh (5) simply shews that the action ought to be stayed by the summary interference of the Court, it is not an authority to support the present application. LUSH, J.-In Lutterell v. Reynell (7), which was trespass for taking money, the jury gave 6,000l. damages; a new trial was moved for on the ground that the evidence, if it were true, destroyed the plaintiff's action inasmuch as it amounted to proof of the defendants being guilty of felony, and that the law will not suffer a man to smother a felony and bring trespass for that which was a kind of robbery. "But the Lord Chief Baron declared, and it was agreed that it should not lie in the mouth of the party to say that he himself was a thief, and therefore not guilty of the trespass; but perhaps if it had appeared upon the declaration, the defendant ought to have been discharged of the trespass. Sed quære, what the law would be, if it appeared upon the plead ing, or were found by special verdict." That is an authority against you.]

But it recognises the rule and shews that the judge ought to take the matter into his own hands. The defendant is not setting up the felony, but merely submitting that the judge should have done it.

[COCKBURN, C.J.-But what is that to

(6) 1 Smith's L. C. 3rd ed. 132b. (7) 1 Mod. 282, 283.

the defendant? How can he come here and set up his own turpitude? The public have no right to come to this Court to complain that there has been a miscarriage in the course of the trial of an action.]

In Wellock v. Constantine (8), which was an action for assaulting the plaintiff and forcibly violating and carnally knowing her, after the evidence of the plaintiff, Willes, J., ruled that the action was not maintainable; for if a rape was proved, that could not form the subject of a civil action, but the plaintiff must proceed criminally; if the connection took place with the consent of the plaintiff, no action would lie, but she must apply for an order of affiliation. Having intimated that he should direct a verdict for the defendant, the plaintiff's counsel elected to be nonsuited. Pollock, C.B., and Bramwell, B., held that the direction was right. In White v. Spettigue (3), Rolfe, B., said, "I cannot agree to the law as laid down by Best, C.J., in Gimson v. Woodfull (9), that a plaintiff is bound in the first instance to do his duty to the public by prosecuting, and that it actions like the one he was then trying could be maintained, there would be no more criminal prosecutions. I think that is too general, and I cannot accede to the doctrine. I think the true principle is, that where a criminal and consequently an injurious act towards the public, has been committed, which is also a civil injury to a party, that party shall not be permitted to seek redress for the civil injury to the prejudice of public justice, and to waive the felony and go for the conversion."

[BLACKBURN, J.-In Gimson v. Woodfull (9) Best, C.J., did order a nonsuit under circumstances very like those now before us, but I cannot see why the defendant should be allowed to take advantage of his own guilt.]

In Stone v. Marsh (1) no doubt the question was scarcely raised. A power of attorney was forged by Fauntleroy, who was dead at the time the action was

brought. But Lord Tenterden, C.J., in delivering the judgment of the Court, said: "There is indeed another rule of the law of England, viz., that a man shall not be allowed to make a felony the foundation of a civil action, not that he shall not maintain a civil action to recover from a third person that which has been feloniously taken from him, for this he may do if there has not been a sale in market overt; but that he shall not sue the felon. . . . Now public policy requires that offenders against the law shall be brought to justice, and for that reason a man is not permitted to abstain from prosecuting an offender, by receiving back stolen property, or any equivalent or composition for a felony, without suit, and of course cannot be allowed to maintain a suit for such a purpose."

[BLACKBURN, J.-In Markham v. Cobb (10) the plaintiff brought an action of trespass against the defendant-" Pur enfriender de son meason, et pur prisel de 3,0007. in pecuniiss numeratis, le defendent plede en barre que le dit plaintiff procure lui destre indite et convict devant les Justices de Gaol delivery del' county de Nottingham de eo quod prædict defendant burglayer enfriender le dit meason, et prist 3,000l. felonice hors de ceo que fuit mesme le trespass, sur que le plaintiff demurre, apres divers arguments al barre, judgment fait done per Dodridge Jones et Whitlock en absence del Chief Justice pro querente, pur default de pleding." On the second point, the one which is material to the present case, the judges differed in opinion-" Dodridge and Whitlock, prima facie fuerunt de opinion que coment le defendant fuit conviet de felony, pur prisel de biens felonice, tamen le owner del biens poet aver action de trespass vers le party auxi et recover ses damages," &c. "Jones prima facie e contra. Le sole difference est sur cest point, quant home est indite pur prisel de argent de J. S. et soit indite et convict al suit le Roy sans evidence, ou prosecution del J. S. ou en ceo case J. S. avera trespass. Dodridge et Whitlock tient come avant est dit, que J. S. poet aver trespass coment il fuit (10) W. Jones, 147.

barre de son appeal, car le owner al primes avoit election a porter trespass on appeal," &c.]

It is clear that the rule exists, and Wellock v. Constantine (8) is a direct authority to shew that the proper course to be pursued would have been to nonsuit the plaintiff.

COCKBURN, C.J.-I am clearly of opinion that this rule should be discharged. There is no doubt that there has been a rule of long standing, perhaps coeval with the law of England, that where a given state of facts amount at one and the same time to an infringement of the civil rights of an individual, and also to a felonious offence against the rights of the public -that the right of redress for the civil injury must remain in abeyance until the party who has inflicted the injury has been prosecuted by the party injured. But although that be the rule, it becomes a very different matter when we consider how that proceeding is to be enforced. It may be that the person against whom the prosecution for felony is impending, may have a right to shew that he is in the position of a felon, and thus to stop the action against him. I do not say that this is so, because it strikes me that it would be allowing a party to shew his own criminality. It may be that an application might be made to the summary jurisdiction of the Court which, in all cases of abuse or oppression, would be willingly exercised. It may be that, supposing the case of a person who, neglecting his duty to prosecute, preferred, from a selfish regard to his own interests, to bring a civil action instead of prosecuting, the Crown might call upon the Court to intervene and prevent the plaintiff from recovering and obtaining the fruits of the action thus improperly brought. But it is not necessary now to consider in what way the rule might be enforced, for the question which we have to consider is whether my brother Lush, who tried this cause at nisi prius, was called upon to interfere and to nonsuit the plaintiff, or if the plaintiff refused to be nonsuited, to direct the jury to return a verdict for the defendant. I am at a loss to see from what source any such power could spring.