matter. There is an essential difference between a false imprisonment and a malicious prosecution: (see Sutton v. Johnston, 1 Term Rep. at p. 544.) In Chivers v. Savage, 25 L. J. 85, Q. B., the facts were like the present case, and the judge was held right in hearing and deciding the case. It is unnecessary to allege malice in an action for false imprisonment (Brandt v. Craddock, 27 L. J. 314, Ex.) In Jones v. Currey, 20 L. J. 438, Q. B., malice was expressly alleged, whereas here we expressly renounce any right of action on that head.

Arundel Rogers.-The County Court judge was right. It was impossible to fairly sever the evidence. Signing the charge sheet is the commencement of a prosecution for felony. This, then, is really an action for malicious prosecution, though brought as an action of false imprisonment. On the authority of Hunt v. North Staffordshire Railway Company, 2 H. & N. 451, the learned judge was right in nonsuiting the plaintiff.

WILLES, J.-It is perfectly clear in this case that there was some evidence of a false imprisonment, i. e, an imprisonment without justification. The defendant's wife took it into her head to give the plaintiff into custody on a charge of felony, because he broke into her lodger's room. In doing so she was plainly wrong. The plaintiff clearly had no felonious intent. He thought that the defendant had put his goods into this room, and a man may lawfully enter the land of another to take his goods which that other has put on his land. The defendant's wife, having wrongfully given the plaintiff into custody, the plaintiff was taken to the police station, where he would not have been detained without the subsequent act of the defendant's wife. If all that the defendant's wife had done had been to sign the charge sheet, that, according to the decision of the Court of Exchequer in Grinham v. Willey, would not have amounted to a direction to the police to imprison the person charged, it would only have been equivalent to making a charge against a person whom the police had already in their custody. But it is found in the case that, although the defendant's wife gave no express direction to the police, she was made aware by the police that they would have nothing more to do with the detention except on her responsibility. Under these circumstances, the defendant's wife signed the charge-sheet with the full knowledge that, except for her doing so, the plaintiff would not have been kept in custody. She thus did an act which caused the plaintiff to be kept in custody. The plaintiff was so kept in custody on a charge of felony, when according to the case of Patrick v. Colerick, 3 M. & W. 483, he was not even guilty of trespass, if the defendant had placed his goods in this room. How long did that imprisonment last? It lasted so long as the plaintiff was in the custody of the purely ministerial officer, that is to say of the policeman. He was kept in that custody until he was brought before a judicial officer, which judicial officer discharged him. Up to that time he was falsely imprisoned, and it was not until brought before the judicial officer, that the malicious prosecution could be said to have commenced. A malicious prosecution means a prosecution before a judicial officer without reasonable and probable cause. The distinction between a malicious prosecution and a false imprisonment is well shown by those cases, in which the parties are before a magistrate, and one makes a charge against the other, when the magistrate may order the party charged to be kept in custody until the charge can be investigated. In such a case there is no false imprisonment, because the imprisonment is the act of a judicial officer. Although in such a case

[C. P.

one consequence of the prosecutor's conduct is to have the party imprisoned, yet that is not the direct consequence, because there is interposed the act of a judicial officer, who decides whether it is necessary to order imprisonment with a view to legal proceedings being taken. Thus there is a clear distinction between imprisonment by a ministerial officer and imprisonment by a judicial officer; and it is fallacious to inquire whether one is separate from the other until we are shown some inevitable and necessary connection between the two. A case similar to the present might well occur in a Superior Court. A person might be arrested, taken in custody through the streets, detained in prison, and then brought before a magistrate who discharges him. He might elect to sue in respect of the false imprisonment only. In such a case it would not be necessary to inquire into the proceedings before the magistrate. The judge would have to tell the jury to give damages only in respect of what was complained of and not in respect of that part of the proceedings which came under the cognizance of the magistrate. What was it then that the judge did in this case? He decided that there was evidence of false imprisonment, but, as there was evidence also that would support an action for malicious prosecution, he refused to sever the evidence. I am of opinion that the former part of his ruling was right, but the latter part was wrong. The learned judge appears to have thought that the malicious prosecution commenced at the moment of signing the charge sheet. There he was wrong, as the proceedings were then only before the ministerial officer, and until the proceedings came before the judicial officer, there was no malicious prosecution. The learned judge ought to have warned the jury that they had nothing to do with the proceedings after they came before the magis. trate, and he ought to have excluded the evidence given of those proceedings. On these grounds, I think, there must be a new trial.

KEATING, J.-I entirely concur.

M. SMITH, J.-I also am of the same opinion. The plaint was clearly for false imprisonment. It states that the defendant assaulted the plaintiff, and gave him into custody. No doubt it alleges that this was done without reasonable and probable cause, but that does not convert the false imprisonment into a malicious prosecution. All causes of action in respect of such prosecution are expressly disclaimed. There is nothing in the plaint to show that the judge had no jurisdiction to try the case, and the judge was not justified in withdrawing it from the jury, merely because some of the evidence given might have supported an action for malicious prosecution. There was clear evidence of false imprisonment, altogether distinct from that of malicious prosecution. The case of Hunt v. North Staffordshire Railway Company, is clearly distinguishable. There, as was stated by Martin, B., "the only action that could be maintained by the plaintiff is for a malicious prosecution." Bramwell, B., also said "the plaint is either a plaint for a malicious prosecution, or nothing; therefore it must be taken to be a plaint for a malicious prosecution." There there was no evidence of false imprisonment, but only of a malicious prosecution. On these grounds, I think that the judge of the County Court was wrong, and that there must be a new trial,

New trial ordered. Attorney for plaintiff, J. J. Darley, agent for Clifton and Moseley, Bristol.

Attorneys for defendant, Stocken and Jupp, for Alman, Bristol.

Upon an information against the appellant for a nuisance through a chimney sending forth black smoke, an order was made on the 20th July 1868, that within two months he should make such alterations in the said chimney, &c., so as to consume the smoke arising therefrom. The appellant thereupon made certain alterations and the smoke ceased to issue until the 4th of the following February, when for a certain limited period on that day and following days it again issued. In the following July an information was laid for disobedience to the said order. No evidence was given as to the cause of the issuing of the smoke, ana the justices convicted the appellant.

Held, first, that there was evidence justifying the conviction; secondly, that as the nuisance was a continuing one the 11th section of the 11 & 12 Vict. c. 43 did not apply.

This was a case stated by Justices for the County of Chester under 20 & 21 Vict. c. 43, on the application of the appellant as follows:-On the 20th of July, 1868, an order was made on the appellant by the Hon. Arthur Lascelles and Samuel Woodhouse, Esq., two of Her Majesty's justices of the peace in and for the said county of Chester, at a petty sessions holden in and for the said county, at Oakman, of which a copy marked A. is hereunto

annexed.

At a petty sessions holden at Oakman aforesaid,

on the 28th of June, 1869, a summons, of which a copy marked B. is hereto annexed, was granted upon an information laid on the 22nd of June, 1869, by the respondents against the appellant, was heard and determined by us, and upon such hearing the appellant was convicted by us of the offence stated in the said summons, and we adjudged him to pay a penalty of 41. 10s., and to pay to the respondents the

sum of 9s. 6d. for their costs.

The following facts were either proved before us or admitted by both parties. That black smoke of great volume issued from the chimney mentioned in the said order on the dates and for the periods following, viz.:-1869: Feb. 4, 26 min.; Feb. 22, 25 min.; March 4, 21 min.; March 8, 23 min., 35 min., 23 min.; March 10, 26 min., 24 min., 12 min.; April 1, 10 min.; April 18, 28 min., 29 min., 15 min.; May 18, 16 min.; June 4, 12 min. That the manufacture of salt carried on at the appellant's works on which the chimney mentioned in the order consists in the evaporation of brine pumped from natural springs into large metal evaporating pans heated by coal furnaces, and that the smoke from nineteen furnaces entered this chimney.

That furnace and flues used in evaporating brine, constructed on a principle known as Hogarth's principle, so far as the information of the persons who have studied the peculiarities of the manufactures of salt extends, are, if carefully attended to by the person having the charge of them, among those best adapted for consuming smoke arising from com(a) Baron Pigott sat pursuant to the provisions of the

33 Vict. c. 6, s. 4.

bustibles used therein. That since the said order, dated the 20th July, 1868, the appellant had constructed all the furnaces of his works upon the plan known as Hogarth's principle, and it was proved by the manager of the appellant's works and one of his bricklayers that the plan had been adopted in all its details.

observations hereinbefore mentioned were made did That the respondent's inspectors at the time the not enter the manufactory of the appellant, or take any steps whatsoever for the purpose of ascertaining whether the black smoke complained of was occasioned by the careless firing of the furnaces erected by the appellant on Hogarth's principle, nor for any other purpose.

for forty years, and that during that period there That the appellant's works had been carried on had been no increase in the smoke, but that it had since the adoption of Hogarth's principle at the works been considerably decreased.

there was no evidence of nuisance given by the It was contended on the part of the appellant that respondent, for that the mere fact of black smoke issuing for a certain time from the said chimney did not itself prove the existence of a nuisance within the 19th section of the Sanitary Act, 1866. That the manufactory having been in existence for so many years, and the smoke having of late rather diminished than increased, the subject of the complaint was not within sect. 19 of the Sanitary Act 1866, or within any Nuisance Removal Acts. That the appellant had fully complied with the order, which is a structural one, by making the most approved alterations in all the furnaces, and that as the furnaces were so constructed, the nuisance, if any, did not arise by his act, default, or sufferance, and that the inspector of nuisances not having taken any steps to ascertain the person by whose act, default, or sufferance the nuisance arose, or continued, proceedings could not be instituted against the appellant, the owner, or occupier of the works; that we, the said justices, had no juristhat as by the statute 11 & 12 Vict. c. 43, s. 11, diction to hear the said summons, upon the ground

it is enacted that in all cases where no time is

already or shall hereafter be specially limited for making any such complaint, or laying any such information in the Act or Acts of Parliament relating to each particular case, such complaint shall be made, or such information shall be had within six calendar months from the time when the matter of such complaint or information respectively arose, and as upwards of six calendar months had elapsed since the expiration of the period of two months mentioned in the said order of the 20th July 1868, before the date of the laying of the information upon which the said summons of the 22nd June, 1869, was granted, we had no power to hear and determine the said summons or to adjudicate thereon.

It was contended on the part of the respondents that the first, second, and third contentions of the appellant were quite beside the question, which simply was whether the appellant had used due diligence to carry out the said order, and that the fact of black smoke issuing in large volume out of the chimney mentioned in the order on the days and for the periods proved by the respondents' witnesses, subsequently to the time limited by the order for the appellant to abate the nuisance, was conclusive evidence that the appellant had not used due diligence to carry out the said order, and

that it was not necessary for the respondents' inspectors to ascertain, before laying an information against the appellant for not obeying the said order, whether such black smoke arose from the negligent firing by the appellant's workmen of furnaces constructed upon Hogarth's principle. And as to the

Q. B.]

nuisance."

[Q. B.

We, the said justices, however, being of opinion that the objections raised in this matter are not good in law, gave our determination against the appellant in manner before stated.

The questions of law upon which this case is stated for the opinion of the Court therefore are: First, whether the evidence do justify us in finding that the appellant had not obeyed the said order of the 20th July 1868, and had failed to satisfy us that he had used due diligence to carry out the said order. Secondly, whether the appellant had gained such a prescriptive right to carry on his works as to render him not liable to the provisions of the Nuisances Removal Act. Thirdly, whether the appellant, being the owner and occupier of the said works, and having made such alterations in the structure of his premises and flues as abovestated, was the proper person to be summoned for non-compliance with the said order of the 20th July 1868. Fourthly, whether our jurisdiction is ousted by the operation of the statute 11 & 12 Vict. c. 43, s. 11, under the circumstances above stated.

If this honourable Court shall find upon the said acts that we were right in our judgment, then the said conviction is to stand, otherwise the conviction is to be quashed.

Order "A" recited that "Whereas Thomas Higgin, the owner or occupier within the meaning of the said Nuisance Removal Acts, hath this day appeared before us, the undersigned, being two of Her Majesty's justices in and for the county aforesaid and sitting in petty session at our usual place of meeting to answer the matter of the said complaint," and proceeded: "Now upon proof here had before us that the nuisance as complained of doth exist on the said premises and that the same is caused by the act or default of the owner or occupier of the said premises. We, in pursuance of the said acts, do order the said Thomas Higgin, the owner or occupier,

within two months from the date of this order to make such alterations on the said chimney, furnaces, flues, and other appurtenances therein, so as to consume the smoke arising therefrom and so that the same shall no longer be a nuisance. And, if the above order for abatement be not complied with, then we do authorise and require you the said Guardians of the Poor of the Northwich Union aforesaid from time to time to enter upon the said premises and to do all such works, matters, and things as may be necessary for carrying this order into full execution according to the acts aforesaid." Order B., made on June 22, recited the making of order A., and that the said order was not obeyed by the appellant for the space of (to wit) 182 days after the expiration of two months from the service thereof, contrary to the Act, and commanded him to appear before the justices on the 28th June, to answer to the said information and to be further dealt with according to law.

By sect. 13 of the 18 & 19 Vict. c. 121 (The Nuisances Removal Act for England, 1855) powers are given to justices to order the removal and abatement of certain nuisances; and by sect. 14 it is enacted that

Any person not obeying the said order for abatement shall, if he fail to satisfy the justices that he has used all due diligence to carry out such order, be liable for every such offence to a penalty of not more than ten shillings per day during his default; and any person knowingly and wilfully acting contrary to the said order of prohibition shall be liable for every such offence to a penalty not exceeding twenty shillings per day during such contrary action," &c.

By the 29 & 30 Vict. c. 90 (The Sanitary Act 1860) it is enacted by sect. 19 that the word "nuisance" shall include "any chimney (not being the chimney of a private dwelling-house) sending

By the second proviso in the said section it is enacted that where a person is summoned before the justices in respect of a nuisance arising from a fireplace or furnace which does not consume the smoke arising from the combustible used in such fireplace or furnace, the justices may hold that no nuisance is created within the meaning of this Act, and dismiss the complaint if they are satisfied that such fireplace or furnace is constructed in such manner as to consume as far as practicable, having regard to the nature of the manufacture or trade, all smoke arising therefrom, and that such fireplace or furnace has been carefully attended to by the person having the charge thereof.

By sect. 12 of the 18 & 19 Vict. c. 121 (the Nuisances Removal Act for England 1855) it is enacted by sect. 12 that

In any case where a nuisance is so ascertained by the local authority to exist, or where the nuisance in their opinion did exist at the time when the notice was given, and although the same may have been since removed or discontinued, is in their opinion likely to recur or to be repeated on the same premises, or any part thereof, they shall cause complaint thereof to be made before a justice of the peace, and such justice shall thereupon issue a sum. mons requiring the person by whose act default, permission, or sufferance, the nuisance arises or continues, or if such person cannot be found or ascertained, the owner or occupier of the premises on which the nuisance arises to appear before any two justices in petty sessions assembled, at their usual place of meeting, who shall proceed to inquire into the said complaint; and if it be proved to their satisfaction that the nuisance exists, or did exist at the time when the notice was given, or if removed or discontinued since the notice was given, that it is likely to recur or to be repeated, the justices shall make an order in writing under their hands and seals on such person, owner, or occupier, for the abatement or discontinuance and prohibition of the nuisance as hereinafter mentioned, and shall also make an order for the payment of all costs incurred up to the time of hearing or making the order for abatement or discontinuance, or prohibition of the nuisance.

By the 11 & 12 Vict. c. 42 (Jervis's Act) it is enacted by sect. 11:

after be specially limited for making any such complaint,

That in all cases where no time is already or shall here

or laying any such information in the Act or Acts of Par liament relating to each particular case, such complaint shall be made, and such information shall be laid within six calendar months from the time when the matter of such complaint or information respectively arose.

Baylis appeared for the appellant.-The justices had no jurisdiction to convict, inasmuch as more than six calendar months had elapsed since the expiration of the two months named in the order of the 20th of July, 1868, and the laying of the information, which is the limit as provided by the 11 & 12 Vict. c. 43, s. 11 This, if any, is a new offence, and there should have been a summons founded upon it. [MELLOR, J.: You contend that the present conviction being for disobeying the order of the 20th July, 1868, there ought to have been an information as for a fresh offence.] Yes, and the summons should have been issued within six months of the first order, whereas it was not issued until the month of July in the following year. [MELLOR, J.: But the information is based upon the disobedience to the order.] The appellant also had resorted to the best plan for obviating the nuisance by the adoption of Hogarth's principle, and the respondent did not show that the order had been disobeyed. The issuing of black smoke at certain times is quite consistent with the order being obeyed. All went well until the 4th of February, after the order had been made. The appellant did all that it was possible for him to do, and there was nothing to show that the black smoke did not issue merely by accident. If there was any nuisance, the proceedings should have been taken against the person actually causing it. The proviso in the 19th section provides for the protection of the party where the fireplace or furnace is constructed in such manner as to consume as far

Q. B.]

as practicable, having regard to the nature of the manufacture or trade, all smoke arising therefrom, and the evidence shows that that was done here. If the smoke was occasioned by the neglect of the person attending to the fire place, he is the person against whom the proceedings should have been taken. The owner is only liable for neglect of construction; it is the servant who is liable for neglect of the nature of inattention. [MELLOR, J.: The parties ask us, as a matter of law, whether there was any evidence that the appellant had disobeyed the order. PIGOTT, B.: Ought not the appellant to have accounted for the smoke escaping?] There was evidence that the order had been complied with. [MELLOR, J.: There was certainly evidence that he had adopted the best apparatus, but that only carried his case a certain length.] It was clear that the appellant had complied with the order, and that the escape of smoke was occasioned by some accidental cause. The smoking was for a very

short time.

M'Intyre for the respondents.-This was a question of fact for the justices; there was no evidence but that the smoke may have been caused by the defective apparatus. (He was stopped by the Court.)

MELLOR, J.-I am of opinion that upon the facts as stated there was evidence that the order was not obeyed. The justices are the best judges whether or not an efficient alteration has taken place, and it seems they have come to the conclusion that the order was not observed. Looking to the history of this case it is clear that the justices had evidence on which they could act, and sitting here I am not in a condition to say that they were wrong. I will also add that I do not think that the limitation of six months applies to such a case as this, which is a continuing nuisance.

PIGOTT, B.-I am of the same opinion. The order was that the appellant should, within two months, make such alterations in the said chimney and the furnaces so as to consume the smoke arising therefrom, so that the same should no longer be a nuisance; and then, under the 14th sect. of the 18 & 19 Vict. c. 121, if the party fails to satisfy the justices that he has used all due diligence to carry out the order, he is to be liable to a certain penalty. Now, here the appellant has been convicted under that section, and the question is, whether there was any evidence that he had not obeyed the order? The evidence is that on the 4th Feb. a great volume of black smoke issued. True, there is no evidence as to how it was occasioned, and an argument may be used that as there was no smoke before that day, it did not arise from the alleged cause, but I think that the fact of the smoke issuing on that and on subsequent days is evidence upon which the justices were justified in acting. Then, did the appellant fail to satisfy the justices that he had used all due diligence to carry out such order? The evidence, certainly, went to show that he had made use of Hogarth's process, but yet the smoke issued. No evidence was given by the appellant why the fire-place smoked, or how it was that smoke issued. I think, therefore that the justices were quite justified in the decision at which they arrived.

Judgment for the respondents.

Attorney for the appellant, W. Royle, agent for C. Cheshire, Northwich.

June 3 and 7, 1870.

[Q. B.

WEBB AND OTHERS V. THE COMMISSIONERS FOR IMPROVING THE TOWN OF HERNE BAY. Improvement commissioners — Assignment of ratesIllegality of contract-Estoppel-Security for debtMandamus.

Commissioners appointed by Act of Parliament for the improvement of a town, were authorised to levy rates and also to borrow money upon the credit of the rates, giving therefor mortgage securities in a form coRtained in the Act, which mortgages were by the Act made transferable. Money raised by virtue of the Act was, by sect. 123, to be applied, after payment of the costs, &c., of obtaining the Act, in payment of the interest upon any money borrowed upon credit of the rates, in carrying out the purposes of the Act, and then in discharge of the principal sums of money borrowed upon the credit of the rates. By other sections of the Act any person who was himself a commissioner was disqualified from entering into any contract with the commissioners, and a penalty of 50l. was inflicted upon any commissioner who did so.

H., himself one of the commissioners for improving the town, having supplied the commissioners with a quantity of bricks for the purposes of the Act, received from the commissioners mortgage securities for the price, in the form provided by the Act, the mort gages stating that they were given in consideration of sums of money "advanced and lent by H. upon the credit and for the purposes of the said Act, and paid by him to the treasurer of the said commissioners,” no money having been in fact advanced or lent to them by H. The plaintiffs, as transferees of these secu rities, without knowledge of the nature of the transaction between H. and the commissioners, having brought an action against the commissioners, and claimed a writ of mandamus commanding them to apply all money raised by virtue of their Act in the manner prescribed by the 123rd section thereof: Held, that the defendants, the commissioners, were estopped by the recital in the mortgage securities from denying that they were given in consideration of sums of money "advanced and lent" by H. upon the credit and for the purposes of the Act and paid by him to the treasurer of the commissioners; and that the plaintiffs were entitled to the mandamus asked for.

date the 4th June 1869, with an endorsement that This was an action commenced by writ bearing the plaintiffs intended to claim a writ of mandamus to command the defendants to apply all money raised or to be raised under or by virtue of the 3 & 4 Will. 4, c. cv. in the manner prescribed by the 123rd sect. of that Act.

This cause came on to be tried before Kelly, C.B., when, by consent of the parties, a verdict was at the last summer assizes for the county of Surrey, entered for the plaintiffs, subject to the opinion of the court on the following case, which by agreement was stated without pleadings.

CASE.

1. The defendants are a body politic and corporate, incorporated by an Act passed in the session of Parliament holden in the 3rd and 4th years of the reign of his late Majesty King William IV. c. cv. and intituled "An Act for paving, cleansing, lighting, watching, repairing, and improving a certain portion of the parish of Herne, in the county of Kent," and the said Act forms part of this case.

2. By the 109th section of the said Act, the said commissioners were authorised and empowered to raise and levy from time to time, when and as often as they should think necessary, such sum of money as they might think requisite by a rate or assessment to be made and levied under the name and description of the repairing, lighting, and watching

Q. B.]

rate, upon such persons and in respect of such property and in such manner as by the said Act provided.

3. By the 119th section of the said Act the said commissioners were authorised and empowered from time to time, when and so often as they should think it expedient, to borrow and take up at interest, any sum of money upon the credit of the rate or assessment authorised to be made, levied, and collected by virtue of the said Act under the name or title of the repairing, lighting, and watching rate, and in the event of the same sum of money, or any part thereof, being repaid by the said commissioners, to borrow and take up at interest in like manner any other sum of money and so on, toties quoties; but so, nevertheless, that there should not be owing upon the security aforesaid at any one time more than the aggregate sum of 5000l.; and it was enacted that any such mortgage security should, or might be, in in the words, or to the effect provided by the said Act.

4. By the 120th section of the said Act it was enacted that it should be lawful for the persons entitled to any of the securities, for the money to be borrowed as aforesaid, and their respective executors, administrators, and assigns, at any time by writing under their respective hands and seals, to transfer the same respectively to any person whomsoever, in the form or to the effect provided by the said Act.

5. By the 121st section of the said Act it was enacted that the several persons to whom any such mortgages should have been made should be severally entitled to their respective quota of the said rate and assessment respectively in proportion to the annual amount of the interest of the moneys borrowed on mortgage without any preference by reason of the priority of date in any such mortgages or on any other account whatsoever.

6. By the 123rd section of the said Act it was enacted that the money to be raised or to be received by virtue of the said repairing, lighting and watching rate, and the money to be raised on the credit thereof, and also any other money to be raised and received under or by virtue of the said Act, should, in the first place, be applied in defraying the costs, charges, and expenses of applying for and incident to the obtaining and passing of the said Act, and of interest for any money advanced for that purpose in preference to all other payments whatsoever, then in paying the interests of the several sums of money borrowed on the credit of the said repairing, lighting, and watching rate, thereby granted; then in executing the several works and purposes by the said Act directed to be done, performed, and executed, and then in reducing, paying-off, and discharging the several principal sums of money that might be from time to time borrowed on the credit of such repairing, lighting, and watching rate.

7. The plaintiffs are assignees and transferees for value of six mortgages or securities upon the said rate of 1007. each, bearing interest after the rate of 51 per cent. per annum. These mortgages were granted to David Halket, under the circumstances hereinafter appearing, of which circumstances the plaintiffs' testator and the plaintiffs had no notice. These mortgages were, with other securities, deposited with the testator, from whom the plaintiffs drew their title, in 1836, to secure the sum of 40007. and interest. Upon Halket's bankruptcy, in 1859, these bonds were valued at 75l., and were transferred by a deed, which states the said sum of 757. to be the consideration of the transfer; but after realising all the securities a considerable balance of the 40007., exceeding the sum of 6004., remained due. Such mortgages, and the transfers of them to the plaintiffs, are all in the form prescribed by the said

[Q. B.

Act, and were duly registered after they were respectively executed, and the mortgages had the common seal of the commissioners affixed in the presence of five commissioners, who signed the mortgages. In no case was the said David Halket one of the said five commissioners. A copy of one of the said mortgages is set out in the schedule to this case, and the others of them are mutatis mutandis in the same words.

8. The said David Halket is the same person as the David Halket mentioned in the 3rd section of the said Act, and continued to be and acted as a commissioner at the time of execution and granting to him of the said six mortgages, and he was a brick and tile manufacturer.

9. It appears by the minute book of the proceedings of the commissioners, which is to be taken as correctly representing what took place at the meetings of the said commissioners, that on the 11th April 1835, at a meeting of the said commissioners at which the said David Halket with five others was present, it was resolved that the offer of the said David Halket to sell to the commissioners 125,000 bricks at 20s. per 1000, to be secured by debentures, be accepted, and that the clerk do prepare such debentures accordingly; and that on the 5th August following, at a meeting of the commissioners, at which the said David Halket was present with five others, it was resolved that the said meeting do seal and approve by the signature of five commissioners, present certain debentures, and amongst them two to the said David Halket, viz., Nos. 19 and 20, each for 100l., and the same having been done, the clerk was directed to register the same, and hand them over to their respective owners.

10. It further appears by the said minute book of the proceedings of the commissioners, that on the 17th August 1835, at a meeting of the commissioners, at which the said David Halket was present with five others, it was resolved that the clerk do prepare by the next meeting a debenture of 100l. to the said David Halket on account of work done by Ambrose Hickins, and that three additional debentures be prepared to the said David Halket in further discharge of his account for bricks amounting to 427. 4s., and the said David Halket engaged to furnish bricks at 17. 12s. per 1000, to increase the amount of his claim to 500l.; and that on the 14th of Sept. 1835, at a meeting of the commissioners at which the said David Halket was present with five others, it was resolved that this meeting do seal and approve by the signatures of five commissioners present, four debentures to the said David Halket, and the same being done, that the clerk be directed to register the same and hand them over to the owners. The said last-mentioned debentures were numbered 27, 28, 29, and 30.

11. The said David Halket did before the said 14th of Sept. 1835, supply bricks to the said commissioners to the value of 500%, and the said Ambrose Hickins was a contractor to execute a culvert and other works for the said commissioners, for the amount of 1237.. and he was also a debtor to the said David Halket in the amount of 1007. for bricks supplied to him, the said Ambrose Hickins, by Halket, and he agreed to receive payment of the said sum of 12377. in 9371. in cash, and in three of the said mortgages of 1007., and the said Ambrose Hickins by writing, dated 8th Aug. 1835, directed the said commissioners to grant one of the said mortgages of 100l. to the said David Halket, the said David Halket having arranged with the said Ambrose Hickins to take one half of the said mortgages of 100l. in satisfaction of the said debt of 1007. due to him from the said Ambrose Hickins.

12. The said two bonds granted to the said David Halket, on the 3rd Aug. 1835, together with the