the complaint of the Marquis of Abercorn, and the fifth on the complaint of his agent, Mr. John Humphreys. The objections to these convictions are brought before the court in the affidavit of the prosecutor, Mr. George Porter, and are as follows:-Firstly, that the court of petty sessions was improperly constituted, inasmuch as the Messrs. Humphreys took part in the proceedings, and were present on the bench with the other magistrates; secondly, that Mr. Porter raised an objection to the jurisdiction of the magistrates, on the ground that the alleged trespasses were committed by him under an impression that he had a bona fide claim of title to the lands upon which they took place; and thirdly, that the evidence in the court below did not establish that the acts done constituted a wilful and malicious trespass, but were consistent with his defence, that they occurred in the course of an entry made by him upon the lands with a view of asserting his title. The first objection is pointed at the constitution of the court below, and is founded on the circumstance that the Messrs. Humphreys during, at all events, part of the proceedings, sat upon the bench which is the place appropriated to the magistrates. There is no doubt that the appearance presented to the public of these gentlemen in that position, would afford ground for the supposition that they took part in the proceedings; and, as it would give these gentlemen an opportunity of conferring with the rest of the magistrates, and participating in the discussion of the case, it would be prima facie objectionable, not only with respect to the fair and impartial decision of the case, but also because in the eyes of the public it was calculated to bring suspicion on the proceedings. Now, it has been said that the circumstance of the Messrs. Humphreys sitting on the bench raises a prima facie presumption that they participated in the decision; but there is a maxim, "Stabitur præsumptio donec probetur in contrarium:" we must therefore inquire whether this presumption has been met satisfactorily by the evidence on the other side. Now, we have not only the denial of the Messrs. Humphrey themselves, but also the statement of the five other magistrates who sat upon the bench on the day when these convictions were made, and who were confessedly impartial, that the Messrs Humphrey took no part in the proceedings; and we have not merely a general denial, but there is a statement in the affidavit of Mr. T. W. D. Humphreys, that when the magistrates retired into their private chamber to confer on their decision, the Messrs. Humphreys remained in the court. As regards the impression which the public might have received, we have this additional evidence. An objection was taken by Mr. Porter's attorney to these two gentlemen remaining on the bench, and in reply to his objection the chairman, whose impartiality is not questioned, stated that it was usual as a matter of courtesy to persons in a respectable position, when they came into court, to allow them to occupy that portion of the court where the Messrs. Humphrey then sat. These gentlemen then remained on the bench, and it is stated that Mr. Porter's solicitor acquiesced in their doing so, and of that acquiescence there has been no denial. But there is one additional circmustance so far as regards the view which the public might take of the matter-namely, that these gentlemen both an

nounced, before the proceedings commenced, that they did not intend to take any part in the proceedings upon that day. In this statement one of the Messrs. Humphreys inserts the word "audibly;" that word has been omitted from the affidavit of the other; but we have the statement of the petty sessions clerk that both the Messrs. Humphreys made that announcement audibly. Now, when we compare these circumstances with the facts which existed in the cases that have been cited, we find a solid and substantial difference. In French's Case (2 Ir. Jur. N.S. 431), the magistrate was admitted to a share in the proceedings with respect to the adjournment. Mr. French voted on that question, and therefore there was in that case the fact that the magistrate sat on the bench and appeared to take part in the proceedings. The question in that case respected the adjustment of rent-charge in lieu of tithe, and Mr. French was a parishioner, and therefore had a pecuniary interest in the adjudication of the question. In the case of The County of Clare Justices (7 Ir. C. L. 211), the magistrate whose conduct was complained of, when the other magistrates retired to consider the case, went along with them, and remained in their chamber-and therefore in that case there was a palpable participation in the proceedings. In the case of the Surrey justices, the magistrate remained on the bench, and no disclaimer was made on his part. That was sufficient to impress the public with the conviction that he did act, and further, the justices did not retire to consider their decision, and the chairman announced their decision in terms general enough to embrace him: "all of us are of opinion." It occurs to me, therefore, that, with respect to the illegal constitution of the court, there is no foundation for the prosecutor's objection, and I do not feel that it is a wholesome administration of the control which this court exercises over magistrates, to raise imaginary objections, which are calculated to bring their proceedings into disrepute. I consider that justices are entitled to the greatest consideration at our hands, for they, without remuneration, discharge an onerous and often disagreeable duty, and yet, in the administration of that duty, are excluded from the protection which has been extended to the paid administrators of the law. We are now asked to inflict on these magistrates all the consequences that may arise from our granting this motion. It may be a flaw in the laws regulating the jurisdiction of the justices of the peace, that they should be exposed to consequences to which they are liable for errors committed in the discharge of their duty—a duty gratuitous on their part-and that they should not have the same exemption from liability which the paid administrators of the law enjoy. But, at the same time, the court will not countenance the slightest departure from that strict impartiality with which the law should be ever administered. The next objection to these convictions is, that the jurisdiction of the justices was ousted, by reason of the defendant raising a bona fide question of title. I could not but observe the tenderness with which the counsel who opened handled this part of the case, as if it would not bear much presHe showed his judgment in not making this the strength of his position. But, considering all the circumstances, it is clear that there was not a scintilla of evidence that a bona fide question did or could exist as

sure.

to Porter's title to the land. It was a tenancy from year to year, derived from his mother, who transferred all her interest to him, but continued as the ostensible tenant the receipts for rent were made out in her name, though the rent was paid by Porter himself. In the month of October, 1858, two year's rent being due, Mrs. Porter went to the agent of Lord Abercorn, and earnestly entreated him to accept £100 in full of all demand for rent, and to take the land off her hands. The possession was, therefore, actually up, and an undertaking entered into on the part of Porter to become caretaker on the lands; and from that time down to the period when these trespasses were committed, Lord Abercorn remained in possession of the lands, and his agents continued to manage them. It was argued that this operated as an estoppel, and concluded Porter from setting up a question of title to the lands; while, on the other hand, Porter denied that his signature was properly obtained, and insisted that the undertaking was entered into under a mistake. In this defence, however, he was defeated in the civil bill ejectment at the quarter sessions held at Strabane in June, 1859, and the decision of the assistant barrister was afterwards affirmed at the following assizes. There was, then, evidence of record before the magistrates to show that Porter's title was invalid. But it was invalid the moment the tenant from year to year gave up possession. On looking through the authorities the impression left on my mind is, that the circumstances which have taken place put an end to the tenancy. I will only refer to the authority of Grimman v. Legge (8 B. & Cr., 324); in that case, Bayley, J., says "a parol license to quit will not of itself operate as a surrender of the tenant's interest. But when the tenant gives up possession, in pursuance of such a license, and the landlord accepts it, the license, coupled with the fact of the change of possession, operates as a surrender by act and operation of law, and the landlord cannot recover any rent which becomes due after his acceptance of the possession." From that case down to Nickells v. Atherstone (10 Q. B., 944), with the exception of one case-Lyons v. Reed (13 Mee & W., 306)—that doctrine has obtained. As to the third objection, that the alleged trespasses took place in the course of an entry made by Porter on the lands for the purpose of asserting his title, the very nature of the acts done is sufficient to remove any such presumption. I need only allude to the abominable nature of one of the acts complained of, an act which the magistrates very properly visited with seven days' imprisonment, ex uno disce omnes. Whatever other ground the prosecutor may have had for resting this motion upon, he has failed in establishing this objection. On the whole case, I am of opinion that this motion should be refused.

O'BRIEN, J. During the course of the argument I had some doubts as to the validity of the surrender in point of law, and we were not referred to the authoririties on that branch of the case. But, on the authority of the case of Dodd v. Arklow (7 Scott's N.R., 415), it appears to me that the circumstances which have occurred in this case constitute a valid surrender by operation of law. But whatever question may have existed upon that point was set at rest by the decision of the Assistant Barrister, affirmed, as it was, at the subsequent Assizes. It would have been much better

had the Messrs. Humphreys taken their seats in the body of the court; but I do not concur in the opinion that this is a ground to disentitle them to costs. HAYES, J.-I am of the same opinion as the other members of the court upon this case. With regard to the question of title, it appears that the prosecutor, Mr. Porter, in the year 1849, became entitled under his marriage articles, to the entire interest in the lands, but that this circumstance was never communicated to the landlord, and that after his marriage the prosecutor allowed his mother to continue as the ostensible tenant; and, although the rent was paid by him, and he derived all the benefit from the farm, yet the receipts were taken out in his mother's name, and this person whom he thus put forward as tenant in the year 1859 surrendered the lands and put the landlord into possession. He can hardly now be permitted to raise a question of title, after having stood by during all these proceedings and signed an undertaking on his own part to act as caretaker on the lands. But, notwithstanding this undertaking, he refuses to give up possession of the house upon demand made by the landlord, and he puts his landlord to the trouble of an ejectment. A civil bill ejectment is brought, and a decree pronounced against him by the Assistant Barrister, and this decree is affirmed at the subsequent assizes. Yet, after all this, this gentleman proceeds to commit these trespasses, which he says the magistrates had no right to adjudicate upon, as there was a bona fide question as to whether they were not committed under a fair and reasonable supposition of title on his part. If we required anything else, the very nature of the trespasses would be quite sufficient to show that no such supposition could have existed. A man would be insane who would commit acts of such a nature on his own land. the next objection, that the Court of Petty Sessions was not rightly constituted, the question is, whether any of the persons who constituted the court were interested in the result. I cannot come to the conclusion that these two gentlemen formed part of the bench of magistrates upon that day. I am always most anxious to protect magistrates in cases of mistake— they should receive the greatest consideration from us; but I do not like to see a man acting as Mr. Hum phrey, sen., has acted in this case. I think he would have acted with much better feeling had he abstained altogether from interfering in the matter, as he did in the first instance by issuing the summonses. These summonses were not issued until Saturday, and the defendant was required to appear on the following Monday; this was hardly a reasonable time for a person to prepare for his defence, more especially in a case of a criminal nature, where the defendant cannot be examined himself. I think, under these circumstances, it would have been much better if the magistrates had postponed the case; and I think the Messrs. Humphreys would have acted with much better feeling had they, during the hearing of the case, retired to another part of the court. Upon the whole case, I am of opinion that the certiorari should not issue, and that these magistrates should not have costs.

As to

FITZGERALD, J.-I concur in the judgment pronounced by the other members of the court; and in an ordinary case I would have contented myself with a mere expression of my concurrence. But I think it

right that each member of the court should express his individual opinion in a case like the present, where this court has not only to see that the law is administered impartially, but to encourage a confidence in its impartial administration. I entirely concur in the observations that have been made, that the greatest consideration should be shown to magistrates, but I cannot express anything but condemnation on the course that has been pursued in this case. These two gentlemen were the real plaintiffs; the summonses were issued on Saturday, the 30th July, for the following Monday, and we cannot take into consideration the intervening Sunday; besides the undue haste with which the matter was thus pressed forward, when the case came on to be heard these two gentlemen took their seats on the bench. I was prepared to pronounce my judgment at the conclusion of the argument, but I considered it my duty to read over the affidavits, in order to discover if there had been any interference on the part of the Messrs. Humphreys; but after having examined the affidavits with care, I could not detect the slightest interference by them during the progress of the case. Assuming that to be so, still I cannot help saying that it is a most objectionable proceeding for a party in a case to take his seat on the bench along with the magistrates. How would it be possible for the members of this court to communicate freely if we had parties interested in the case sitting beside us, while it was at hearing? Besides, the appearance which is presented to the public, of the prosecutor sitting on the bench, is most injurious. It would be well for gentlemen in the position of the Messrs. Humphreys if they were to remember the words of Crampton, J., in the case of The Queen v. Massy: "But the admission of Sir Hugh Massy that he was interested, and his continuing to sit with the other magistrates, and the important declaration from the bench, at the calling on of the case, are what this court cannot give its sanction With regard to the question of title, I agree that the real question is, whether Mr. Porter acted under a fair and reasonable supposition of right, and whether that appeared to the magistrates below; for although the party may have had no right to the lands, it might be that he acted under a fair and reasonable supposition that he had. But it is clear from the affidavits that he could have acted under no such supposition, and the nature of the acts was such as to show that they were the acts of a wilful trespasser, and not those of a person going upon his own ground.

to."

that the defendant, on the 1st March, 1860, broke and entered certain houses of the plaintiff, and ejected, expelled, put out, and removed the plaintiff from the possession, use, and enjoyment of the same, and kept and continued him so ejected, &c., from thence hitherto. To the second paragraph of the plaint, the defendant filed two defences-First, that he did not commit the trespasses; second, that the houses mentioned in the second paragraph were not, nor was any or either of them, the property of the plaintiff.

C. Coates now moved to set aside the second defence to the second paragraph of the plaint, inasmuch as it does not traverse, or confess and avoid any of the material averments in said paragraph, and no certain or material issue can be taken thereon, and because it attempts, by inference, to raise a right by title in the defendant, to the houses, without pleading or showing the same, and is ambiguous, argumentative, and embarrassing. The mere statement of the pleadings will suffice to carry this motion. The action is a possessory action, and the defendant pleads title in himself. That is no answer to the causes of action stated in the plaint. The defence which this motion seeks to set aside does not either traverse or confess and avoid any material averment in the second paragraph, and must therefore be set aside.

T. A. Purcell, in support of the defence, submitted that if the motion succeeded, it would bring back all the vices of special demurrers. This defence is a simple traverse of the plaintiff's possession. The averment is, that the defendant broke and entered the plaintiff's houses, to which the defendant answers that the houses are not the property of the plaintiff, as alleged. That expression is precisely equivalent to that which the plaintiff says it ought to be-that the houses are not the houses of the plaintiff. "Id est hujusque proprium quo quisque utitur et fruitur" was the language of Cicero; and therefore my defence is a simple denial of the plaintiff's enjoyment. Although possession by the plaintiff is sufficient to enable him to sustain this possessory action, yet the defence is not embarrassing because it uses the term "property," for property does not exclude possession. Even if the defendant had pleaded in terms that the houses were not the houses of the plaintiff, he would be entitled to establish by evidence a lawful right to the possession either in himself or in some other person under whose authority he claims to have acted. Jones v. Chapman (2 Exch. 803); Burling v. Read (11 Q.B. 904). This defence merely states that the plaintiff has not such a possession as in point of law makes the defendant a wrong-doer.

Coates was not called on to reply.

Per CURIAM.-Lord Coke distinguished between three things, namely, the absolute right of property, the right of possession, and mere possession in fact. The person who disseises another, has the possession; the heir at law has the right of possession; and the party seised has the absolute right of property. Now the form of pleading adopted in this defence is, in every respect, objectionable. The issue which ought to be raised by the pleadings in an action of this nature is, whether the plaintiff had the possession. But the de

THE plaintiff complained that by indenture dated the 27th January, 1859, sealed with the seal of the defendant the defendant covenanted to pay the plaintiff the sum of £60 48., yet the defendant has not paid that sum or any part thereof. The second paragraph stated that the covenant was to pay that sum within a reasonable time after the execution of the deed, which time had long since elapsed. The third paragraph claimed £16 13s. 4d. for money received by the defendant to the plaintiff's use. The plaint also contained counts for money lent, and for money found to be due on accounts stated. The defendant pleaded payment into court as to the sum of £10, parcel of the sum of £76 17s. 10d., and as to the remaining £66 17s. 10d., pleaded that the plaintiff was, before and at the time of the commencement of this suit, and still is indebted to the defendant in an amount equal to the sum of £66.17s. 10d. for goods bargained and sold, and for goods sold and delivered, and for goods of the defendant which the plaintiff converted to his own use, and for money lent, and for money had and received, and for money paid, and for money found to be due on accounts stated, which said account the defendant is willing to set off against the plaintiff's

£70 12 6 The plaintiff, by his replication, traversed each paragraph of the defence of set-off, except the third paragraph, to which he demurred, because the money Bought to be set-off by said paragraph is not a debt or a liquidated demand, and because it is sought thereby to set off unliquidated damages, the amount of which was unascertained, and incapable of being ascertained at the time of filing said defence, or which could not be ascertained save by the intervention of a jury; and

before or at the time of the commencement of this action, or at the time of the filing of the defence, or at any time, but merely shows a cross demand sounding in damages.

J. W. Carleton (W. J. Sidney with him,) in support of the demurrer.-This is an action of trover, for unliquidated damages, and to that cause of action the defendant has pleaded a set-off. It is only by statute that the defendent is entitled to set off one Act, sec. 40, gives a defendant the right to set off mudebt against another. The Common Law Procedure tual debts, but nothing else. This plea does not set off a mutual debt, but an unascertained sum. Craw ford v. Stirling (4 Esp. 207); Morley v. Inglis (4 Bing. N.C. 58). [The Court called upon the defendant to support his plea.]

M. Morris (with him J. E. Walsh, Q.C.)-This demurrer has been taken irregularly. The defence consists not of distinct pleas, but of one plea, and this demurrer is an attempt to demur to a portion of a plea. The defence admits the cause of action for £76 17s. 10d., and then pleads payment into court of £10, and as to the residue, a set-off of a debt due by the plaintiff to the defendant. The indorsement of particulars on the defence, shows that this plea is not a set-off of an unliquidated demand. In trover, a party may waive the trespass, and sue for the value: so, here, the set-off consists of the value of horses and of cash. In Morley v. Inglis, Tindal, C. J., says—“ It seems to me that the rule by which we are to determine whether or not a demand can become the subject of a set-off, is, by enquiring whether it sounds in damages-whether the demand is capable of being liquidated or ascertained with precision at the time of pleading." So here, the value of the horses is set down in the indorsement, at a specific sum. The setoff need not consist of an actual debt. "If it be a liquidated money demand, it is a proper subject to which we would allow a set-off to be pleaded.". Pigot, C.B., in Scott v. Anderson (2 Ir. Jur., N.S. 422). It lies on the plaintiff to prove that this demand cannot be the subject of a set-off. This is one of the large class of cases where you may waive a tort and sue in assupsit; and the oldest cases on the subject are cases of trover. Lamine v. Dorrell (2 Lord Ray, 1216); Young v. Marshall (1 Moore & Scott, 110). The meaning of the statement is this: You are indebted to me on foot of a wrong which 1 am entitled to convert into a contract. This demand might, within the principle of Young v. Marshall, be made the subject of a set-off in favour of the plaintiff, and that rule must be reciprocal: and this defence really amounts to the statement-I waive the tort, and sue upon the contract.

-Per

Carleton, in reply.-It is said that this demurrer has been taken irregularly-but the plaintiff could not

have gone to trial on this defence; and as to its not being a set-off of unliquidated damages in trover, why the form of his defence is precisely the form of the count in trover, given in the schedule to the Common Law Procedure Act. The defendant has no right to set off the value of goods sold and delivered. Castelli v. Boddington (17 Jur. 457); Countess of Rutland's Case ( Roll. Abr. ). Moreover, the full value of the horses world not be the measure of damages. Greening v. Wilkinson (1 C. & P. 625).

Demurrer allowed.

[BEFORE THE FULL COURT.]

THE QUEEN V. THE POOR LAW COMMISSIONERS.May 30, 31.

Mandamus to compel the exercise of a discretionary power refused-Fixing the salary of chaplains of Union Workhouses under 1 & 2 Vict., c. 56,

sec. 48.

Upon an application by the Guardians of the Y
Union for a writ of mandamus to compel the Poor
Law Commissioners to appoint a Roman Catholic
Chaplain to the Workhouse of that Union.
Held,-Per curiam, that the power vested in the
Commissioners by statute 1 & 2 Vict., cap. 56, sec.
48, is discretionary; and that, as it had been
exercised in a manner not illusory, the writ of

mandamus could not issue.

On the 25th of January 1860, it was ordered by the court, that a writ of mandamus do issue directed to the Poor Law Commissioners commanding them to appoint a fit person to be Roman Catholic chaplain in the Workhouse of the Youghal Union; on the grounds that for a considerable time past religious service, according to the rites of the Roman Catholic church, has not been performed in the said Youghal Union Workhouse, and that order has not been duly taken for the performance thereof by the said commissioners in accordance with the statutable provisions in that case made and provided, unless cause shewn. In the affidavits upon which the above conditional order was obtained, the following facts were detailed: that from the formation of the Youghal Union up to the month of April, 1856, the Roman Catholic inmates of the Workhouse had the the services of a Roman Catholic chaplain, and were thereby enabled to attend to their spiritual and religious duties; that the parish priest, Kev. M. Sheehan, had been chaplain to the Youghal Union at a salary varying from £50 to £75 yearly, until in October 1855, the commissioners fixed the salary at £60 per annum; that the Rev. M. Sheehan died in February 1856; that the Rev. T. Murphy was then appointed parish priest and was offered the chaplaincy of the workhouse at the yearly salary of £60, which offer he declined because the parochial duties engrossed so much of his and his curates' time as to render them unable to attend to the spiritual wants of the work

house inmates, but that if the salary was fixed at £80 per annum, he would procure the services of a priest exclusively for the workhouse; that the commissioners refused to fix a salary higher than £60 per annum, so that the Roman Catholic inmates were left without the means of attending their religious duties, even on Sundays, to the great detriment of the discipline of the establishment; that the commissioners refused the guardians' request to raise the salary to £75, and asked the then Roman Catholic bishop, Murphy, to procure a chaplain, who replied that he could not find any clergyman willing to accept the office at a salary of £60, and could not compel any one to accept it as the amount would be insufficient for his maintenance; that at the request of the guardians the Rev. T. Murphy at a loss of £20 a-year to himself, did in October 1856, procure the Rev. Mr. Coleman to discharge the duties of chaplain, who was accordingly appointed chaplain by the commissioners at £60 aa-year, but resigned his office in July 1857, when the Rev. Mr. Murphy, being requested by the commissioners to procure a chaplain, endeavoured with the assistance of his curates to discharge the duties pro. tem.; in November 1857, the Roman Catholic bishop procured a chaplain who died about February, 1858; that Mr. Murphy and his curates then attended in extreme cases, but would not accept the office, and that the bishop in reply to the commissioners stated, that he had no disengaged clergyman whom he could appoint at £60 per annum; that the guardians proposed giving a salary of £100 per annum, but the commissioners gave no answer, and the guardians in May, 1858, appointed the Rev. Mr. T. as chaplain at £100 per annum, and were thereupon informed by the commissioners that any payment made to Rev. Mr. T. would be disallowed, as the guardians had no power to appoint a chaplain or pay him a salary unless he was appointed by sealed order; that after correspondence with the commissioners, Rev. Mr. T. in September, 1858, fresigned his chaplaincy as the salary was not to be raised above £60 a-year, and that the union has remained without a Roman Catholic chaplain ever since; that the Roman Catholic inmates were since permitted to attend the parish chapel on Sundays, but about one-third were unable to avail themselves of the permission, and of those who did go many did not return till the evening or following day; that in February, 1859, the bishop offered to procure a chaplain at £80, which offer the commissioners refused; that in September, 1859, they, the guardians, were advised by counsel to apply for a mandamus; that in deferénce to the resolutions of the guardians the commissioners, in October, 1859, appointed Rev Mr. Mullane chaplain at a yearly salary of £70, but the bishop refused to appoint a chaplain for less than £80 per annum, and Mr. Mullane refused the appointment; and that after further correspondence they, the guardians, ordered their solicitor to commence these proceedings. The answering affidavit was made by the Chief Clerk of the Commissioners. In that affidavit it was stated that Rev. Mr. S. had been appointed chaplain in 1851, at a salary of £50 per annum, with an addition of £20 per annum, so long as the chaplain should be required to perform a separate service on Sundays and holidays at one of the additional workhouses of the union; that in 1853, the