of which says "that no person shall be deemed a trustee until the resolution has been transmitted to the registrar." The statute requires that the rules shall contain a provision relative to the appointment of trustees; and therefore the 4th rule is not in accordance with the statute, unless the transmission to the registrar is a condition precedent.

(LORD CAMPBELL, Ch. J.: But can the trustees say they are not duly appointed?)

They can, because they are not sued upon any personal liability.

(LORD CAMPBELL, Ch. J.: But the society is sued, and it cannot say the appointment is not regular.)

S. 17 of 18 & 19 Vict. enacts, that if no trustees are appointed the treasurer is to act as trustee, as the existence of trustees is not necessary to the maintenance of the action. As to 441. the debt was contracted before the appointment of the defendants.

LORD CAMPBELL, Ch. J.:

At the trial I considered the only serious objection to be, that no notice of the appointment of trustees had been transmitted to the registrar, but that difficulty is now got over. 13 & 14 Vict. was repealed before the appointment; and 18 & 19 Vict. confers the power of appointing trustees, without the condition of sending the resolutions to the registrar. I think, therefore, that these defendants were duly appointed trustees, and are liable to be sued for the whole debt.

WIGHTMAN, ERLE, and CROMPTON, JJ., concurred.

Rule discharged.

IN THE COURT OF EXCHEQUER.

PIDGEON v. LEGGE.

(5 W. R. 649-650.)

A person who requests another, his servant in that behalf, to remove one making a disturbance in his house, is not responsible for excess of force or violence in carrying out his command.

Semble, that he may be answerable for a negligent performance of his order.

THE first count of the declaration stated that the defendant assaulted and beat the plaintiff, and gave him into custody. Second count, that the defendant kept a common inn and the plaintiff was his guest, and that the defendant wrongfully turned him out.

Pleas,-First, Not guilty. Secondly, to the first count, that the plaintiff was in the defendant's dwelling-house, creating a noise. and disturbance therein, and was requested to leave and refused; and the defendant requested certain persons as his servants to turn the plaintiff out, who laid their hands gently upon him and turned him out, using no more force than was necessary. Thirdly, to the second count, that the dwelling-house of the defendant was not a common inn. Fourthly, justifying turning the plaintiff out, that the plaintiff was a chimney-sweep, and was in a dirty and improper state, and offensive to the guests of the defendant, and was requested to leave the defendant's house, &c. Replication, To the third plea to the first count, that the servants of the defendant used more force than was necessary; to the third plea to the second count, taking issue thereon; to the fourth plea, that the plaintiff was in the defendant's inn taking rest and refreshment therein, and desired to remain, and was entitled to remain.

At the trial, before Pollock, C. B., at the last Cambridge Assizes, it appeared that the defendant kept a house of public entertainment called the "Sun" Inn, at Ely; but the only evidence of its being a place for the accommodation of travellers, was that a card with the word "beds" was exposed in the window. The plaintiff, who was a chimney-sweep, went into the bar of an evening in his working dress, where several persons were taking refreshment. It was after working hours, and the defendant recommended him to go and make himself clean. The plaintiff declined, and also refused to leave the house, whereupon the defendant called in two police constables and requested them to turn the plaintiff out. The plaintiff offered resistance to the policemen, by whom he was forced out, and when outside the door of the house, he was thrown down upon the pavement, and his leg was broken. Upon these facts appearing on the plaintiff's

case, and when the defendant's counsel was about to cross-examine one of the witnesses, the learned Judge intimated that it would

1857. May 25.

[ 649 ]

PIDGEON

v.

LEGGE.

[ *650 ]

be unnecessary that he should cross-examine as to the excess, since he should direct the jury that if they should be of opinion that the policemen had used greater violence than was necessary, the defendant could not in point of law be held responsible for such excess of force. His Lordship also intimated that he considered that if the plaintiff was in his clothes and person in a condition. unfit to be in a public-house, the landlord was justified in turning him out on his refusal to leave. The defendant's counsel suggested that it would save time if he were at that stage of the trial to submit to a nonsuit, and have leave to move for a new trial, on the ground that the law laid down by the learned Judge was erroneous. A nonsuit was accordingly entered, subject to such leave, and a rule was subsequently obtained in pursuance thereof.

Keane showed cause against the rule:

There was no excess of force, all that was done being occasioned by the plaintiff's resistance and violence. But if there was such excess, the defendant is not responsible for it. Secondly, the house was not a common inn, and the plaintiff had no right to remain after being required to withdraw.

Naylor and Mills, in support:

First, the defendant was *liable for the violence of his servants and agents in excess of what was necessary for the purpose of ejecting the plaintiff. Having a right which he might exercise against another in invitum, he is responsible for the excess of those he employs in that behalf in the same way that he would be responsible for excess in case he had in his own person exercised the right. Therefore trespass may be maintained against him in respect of that excess. Having told his agents to do specifically the act which was injurious, he is responsible in trespass, on the principle of M'Laughlin v. Pryor (1), in which a master who told his coachman to "cut in " between carriages, was held liable in trespass for the upsetting of a vehicle tilted over, in the course of following the command. [They also cited Freeman v. Rosher (2).] BRAMWELL, B.:

The rule ought to be discharged. In the first place, I am of opinion that the defendant's house was not an inn; in the second place, that if it was, the plaintiff being in an unfit condition to be there, the defendant was justified in insisting upon his leaving. Then as to the point with respect to the excess of violence in removing the plaintiff, I think the law laid down at the trial was perfectly correct. A refractory person was to be turned out of the defendant's house; the defendant not being sufficiently strong to do it (1) 61 R. R. 455 (4 Man. & G. 48). (2) 78 R. R. 514 (13 Q. B. 780).

himself, gets others to do it for him. It may be that he was responsible not only for the acts of his agents done pursuant to that authority, but perhaps also for a negligent execution of his orders, as, for example, if in carrying the man out they had negligently knocked his head against the door post. But it is contended that he is responsible for a trespass. The answer to that is, that such trespass was not committed in pursuance of any authority, nor was it a negligent performance of anything authorized. I entirely subscribe to what is laid down in Freeman v. Rosher, and M'Laughlin v. Pryor. A man may be responsible as a trespasser for the act of another, as in M'Laughlin v. Pryor, where the jury found that he had authorized the particular act. On the other hand, suppose a master tells his servant to turn a boy off the wall of his garden, and the servant is aggravated, and, while the master looks on, he gives the boy a box on the ear, it is clear the master would not be answerable for that; so neither is the defendant answerable for the violence used by the policemen when exasperated by the resistance of the plaintiff. There is this dilemma, either there was no excess, or the excess was in the nature of a trespass.

WATSON, B.:

I am of the same opinion. I think it is clear that the defendant's house was not a common inn; it was merely an alehouse. It is stated in 1 Burn's Justice, 89, that "if an inn use common selling of ale within the meaning of the recent statutes, allowing persons licences for that purpose, it is then also an alehouse, and if an alehouse lodges and entertains travellers it is also an inn." Even although it were an inn, the plaintiff was not there as a traveller, but was using it as an alehouse. A house may be an inn for the accommodation of travellers, and it may also be an alehouse. As to the point upon the first count, the defendant justifies the assault therein complained of by alleging that the plaintiff was in his house making a disturbance, and that his servants at his request and by his orders turned him out, and the plaintiff replies excess. The facts are, that in being turned out he offered resistance to and struggled with those who were justified in removing him. They were entitled to use force against force, and probably no trespass whatever was committed; but if there was, the defendant is not responsible for it. I agree with my brother BRAMWELL, that the defendant might probably be liable in case of an injury by the negligent performance of his orders; but what is charged here is a distinct act of trespass.

POLLOCK, C. B.:

Two points arose at the trial. One relating to the right to turn

PIDGEON

v.

LEGGE.

the plaintiff out of the locus in quo; the other respecting the responsibility of the defendant for the acts of the policemen. With respect to the right to turn the plaintiff out, I ruled that if there was no misconduct or impropriety on the part of the guest, the landlord of an inn or alehouse could not revoke the invitation held out to all, and could not without some sufficient reason eject him from it. It was admitted, however, that the plaintiff was in the state alluded to; and I expressed an opinion, in which the jury acquiesced, that if in an unfit state the defendant was justified. That view was also adopted by Mr. O'Malley, the plaintiff's counsel, who elected to be nonsuited, with liberty to move to set the nonsuit aside, if my ruling in point of law that a master is not responsible for the acts of his servants committed in excess of his orders was correct. I am of opinion it was correct; and that a master is not, under the circumstances of this case, responsible for the act of his servant in excess of his command.

Rule discharged.