1839. Plaintiff, were properly rejected. They were no part of the res gesta, and if they applied to any thing beyond the colours to be given to the goods, were out of the NEWSHOLME. Scope of Baily's authority. SHARP V. R. Alexander and Hoggins contended that the directions were admissible as accompanying Baily's act of going to the dyer with the Plaintiff's concurrence. Thomas v. Connell. (a) TINDAL C. J. It is very difficult to draw a precise and defined line between a declaration and a direction. If Baily gave directions, even as to colours, that was a dealing with the goods; and as it was material to know who was dealing with the goods, I think the evidence was admissible, and should have been submitted to the jury, valeat quantum. BOSANQUET J. having been absent during the argument, pronounced no opinion. COLTMAN J. It appears to me that any directions given by Baily ought not to have been withdrawn from the jury. ERSKINE J. Two things must be made out to bring a transaction within the seventy-second section of the Bankrupt Act; first, that the bankrupt took on himself the order and disposition of the property; and, secondly, that he did so with the consent of the true owner. It is impossible to say that giving directions to the dyer would not have been some evidence that the bankrupt was dealing with the goods as his own, though it would have been unavailable unless proved to be with (a) 4 Mees. & Welsb. 267. the consent of the true owner. Still the Defendants were entitled to have the evidence submitted to the jury, and therefore the rule for a new trial must be 1839. SHARP บ. Absolute. NEWSHOLME. PORTER v. WESTON. June 13. THE declaration stated, that on the 15th of December Defendant, 1838, one Thomas Burbidge caused a capias to be telling a bail that his prinissued against the now Plaintiff, directed to the sheriff cipal was of Leicestershire, and indorsed for bail for 90%., which likely to writ so indorsed was delivered to the sheriff, who abscond, procured arrested the now Plaintiff, and lodged him in the com- from him mon gaol of the county of Leicester; that on the 28th directions to take his affi davit of Thedirections having been given too late, defendant of December 1838, one Thomas Shenton and one Nathan Scampton became jointly and severally bail for the now justification Plaintiff in the said action; yet the Defendant wrongfully off the file. and unjustly intending to injure and aggrieve the now Plaintiff, and to cause and procure him to be kept and detained in custody in the said gaol in the said action, thereofore, and whilst the said N. Scampton was and means of continued such bail as aforesaid, on the 2d of January 1839, wrongfully and injuriously and maliciously, without the leave or licence, direction or authority, and against the will of the said N. Scampton, caused and obtained, by them, an order of a judge for the render of the principal : Held, that an action did not him for this procured to be represented to Lord Denman, the Chief said common gaol of the county of Leicester; and then proceeding, alleging and proving express malice. 1839. PORTER V. WESTON. also, without the leave or licence, direction or authority, and against the will of the said N. Scampton, applied to Lord Denman for, and caused and procured him to make and grant, and the said Lord Denman did then accordingly make and grant, his order in writing, whereby, after reciting that the now Plaintiff had been held to special bail upon mesne process, issued out of the Court of Queen's Bench in an action at the suit of the said T. Burbidge (the sum sworn to being 90%.), being the said process and action before mentioned, and that N. Scampton, one of the bail of the now Plaintiff, the Defendant in the said action, was desirous of surrendering the now Plaintiff in discharge of his bail in the said action, the said Lord Denman ordered that the said N. Scampton might, in pursuance of the statute in such case made and provided, surrender and deliver the now Plaintiff into the custody of the gaoler of the said common gaol, in discharge of his bail in the said action, there to remain until discharged by due course of law; and that the said order should be lodged with the said gaoler at the time the now Plaintiff should be so surrendered and delivered into the custody of the said gaoler: That the Defendant further contriving and intending as aforesaid, afterwards and whilst the Plaintiff so continued in custody in the said gaol, and whilst N. Scampton continued such bail, to wit, on the 3d of January 1839, wrongfully, injuriously, and maliciously, and without the leave, licence, direction, or authority, and against the will of the said N. Scampton and of the said T. Shenton, or either of them, and against the will and consent of the Plaintiff,, and without any right, title, or authority whatever as for and on behalf of the said N. Scampton, surrendered and delivered the now Plaintiff into the custody of Christopher Musson, then being gaoler of the said gaol, as for and in discharge of the now Plaintiff's said bail in the said action. Plea, not guilty. At the trial before Bosanquet J., it appeared that the Defendant was the attorney of Burbidge, in the action of Burbidge against the now Plaintiff, who was arrested on the 19th of December 1838. On the 29th, he gave notice that he should put in and justify bail on the 2d of January 1839. The Defendant told Scampton, one of the bail, that Porter would probably go off to America, and leave his bail to pay; whereupon Scampton signed the following instrument, which the Defendant sent, without instructions, to Mr. Taylor, his London agent. "In the Queen's Bench. Thomas Burbidge and William Porter, a prisoner, Plaintiff'; Defendant. "I, Nathan Scampton, of Belgrave Gate, Leicester, in the county of Leicester, wheelwright, bail for the abovenamed Defendant in this cause, do hereby decline to justify as such bail; and I do hereby authorise and empower William Grimwood Taylor, of 14. John Street, Bedford Row, London, gentleman, to act for me in this behalf, and to decline on my behalf to justify as the said bail. And I further authorise and empower the said William Grimwood Taylor to take the affidavit of justification, made by me in this cause, off the file, if I can lawfully do so: but I hereby decline and refuse, at all events, to justify as bail for the Defendant in this cause." The document arrived too late for preventing the jusfication of Scampton, who was therefore allowed as bail: but the agent produced the document at the Judge's chambers, and procured an order to render Porter in discharge of his bail; this order he sent to Leicester, where Porter was in gaol, and he was then detained till he procured other bail to justify. 1839. PORTER v. WESTON. 1839. PORTER v. WESTON. Bosanquet J. told the jury that, in order to maintain the action, the Plaintiff must prove that the Defendant acted maliciously and without the authority of Scampton. If they thought there was an absence of malice on the part of the Defendant, or that the instrument signed by Scampton amounted to an authority to render the Plaintiff, their verdict would be for the Defendant. A verdict having been found for the Defendant, Hill moved for a new trial on the ground of misdirection, contending that if the Defendant acted without authority, the law would presume malice from conduct so injurious to the Plaintiff. A rule nisi was granted, and Humfrey and Mellor shewed cause. As the defendant sent no instructions with the instrument signed by Scampton, the action should have been brought against his agent Taylor, who actually caused the render. Assuming, however, that the Defendant is liable for the act of his agent, the instrument signed by Scampton amounted to an authority to render the Plaintiff, if necessary: when Scampton says, "take the affidavit of justification off the file, if it can lawfully be done; but at all events I decline to justify," his meaning must have been, that if the justification should have been completed before his instructions arrived, his responsibility should at all events be got rid of by the render of the Defendant. Then, the render was prima facie a lawful act, and in order to make the Defendant answerable for it in damages, express malice must be proved; as in cases of arrest where nothing is due, or less than the sum sworn to. Lewis v. Morris (a), Mitchell v. Jenkins (b), (a) 2 Cr. & M. 712. Spencer v. Jacob (c), Saxon v. (c) 1 Mood. & Malk. 180. |