1858.

PHILLIPS

NAYLOR.

EXCHEQUER REPORTS.

that the defendants are entitled to a new trial, as we do not think there was an absence of reasonable and probable cause for the arrest for this rate, and we think the jury ought to have been so told.

But the defendants' counsel insisted that the verdict ought to be entered for them upon the leave reserved. It is certainly extremely difficult to see how any action can be maintained for the proceedings which are the subject of the first count. The plaintiff by his own admission owed the three rates; he was adjudicated bankrupt, but had not obtained his certificate; the liability to pay them was therefore as before the bankruptcy; what the defendants did was to summon the plaintiff before the justices, who are the tribunal appointed by the legislature to adjudicate upon the matter, to show what answer he had to payment of the rate being enforced; he did not appear upon the summons at all, and what took place before the justices was not proved at the trial. It is highly probable that they were informed of the bankruptcy, for the matter connected with it was written on the summons which had been returned to Moody, and for anything that appeared the justices thought that the bankruptcy and protection were no answer to the rate, and advisedly issued the distress warrant, and afterwards the warrant for the arrest. Now, unless the arrest under the warrant was itself a trespass, we very much doubt whether there be any cause of action at all. All that the defendants did was to summon the plaintiff before the justices, who by law had jurisdiction upon the matter, and (upon the plaintiff's not appearing) to obtain their decision against him, and the warrant which they delivered to the constable to whom it was directed. There is no evidence that they concealed anything from the justices, or did other than state the whole truth. And we are not aware of any case or authority deciding that persons so conducting them

HILARY VACATION, 21 VICT.

selves do anything unlawful, and subject themselves to an action The justices may have thought that the bankruptcy before certificate had no operation upon the demand for the poor rates, and it seems to us that it cannot be said that the defendants, who were certainly not "creditors" of the plaintiff in the ordinary acceptation of the word, acted without reasonable and probable cause in supposing that the protection of the plaintiffs did not avail against the warrant. We decline to express an opinion that it did not, but we certainly think the point by no means clear.

We have all carefully read the evidence at the trial, and we cannot find any evidence of malice in the defendants; so far as we can judge they seem to have acted bonâ fide, and with the honest intention of enforcing payment of the rate or punishing the plaintiff by a month's imprisonment for his default.

As to the count in trespass, the case of Yearsley v. Heane (a) is a direct authority that it is not maintainable. We therefore think that the rule ought to be absolute for entering a verdict for the defendants.

Rule absolute to enter a verdict

for the defendants.

(a) 14 M. & W. 322.

1858.

PHILLIPS

v.

NAYLOR.

that the defendants are entitled to a new trial, as we do not think there was an absence of reasonable and probable cause for the arrest for this rate, and we think the jury ought to have been so told.

But the defendants' counsel insisted that the verdict ought to be entered for them upon the leave reserved. It is certainly extremely difficult to see how any action can be maintained for the proceedings which are the subject of the first count. The plaintiff by his own admission owed the three rates; he was adjudicated bankrupt, but had not obtained his certificate; the liability to pay them was therefore as before the bankruptcy; what the defendants did was to summon the plaintiff before the justices, who are the tribunal appointed by the legislature to adjudicate upon the matter, to show what answer he had to payment of the rate being enforced; he did not appear upon the summons at all, and what took place before the justices was not proved at the trial. It is highly probable that they were informed of the bankruptcy, for the matter connected with it was written on the summons which had been returned to Moody, and for anything that appeared the justices thought that the bankruptcy and protection were no answer to the rate, and advisedly issued the distress warrant, and afterwards the warrant for the arrest. Now, unless the arrest under the warrant was itself a trespass, we very much doubt whether there be any cause of action at all. All that the defendants did was to summon the plaintiff before the justices, who by law had jurisdiction upon the matter, and (upon the plaintiff's not appearing) to obtain their decision against him, and the warrant which they delivered to the constable to whom it was directed. There is no evidence that they concealed anything from the justices, or did other than state the whole truth. And we are not aware of any case or authority deciding that persons so conducting them

selves do anything unlawful, and subject themselves to an action The justices may have thought that the bankruptcy before certificate had no operation upon the demand for the poor rates, and it seems to us that it cannot be said that the defendants, who were certainly not "creditors" of the plaintiff in the ordinary acceptation of the word, acted without reasonable and probable cause in supposing that the protection of the plaintiffs did not avail against the warrant. We decline to express an opinion that it did not, but we certainly think the point by no means clear.

We have all carefully read the evidence at the trial, and we cannot find any evidence of malice in the defendants; so far as we can judge they seem to have acted bonâ fide, and with the honest intention of enforcing payment of the rate or punishing the plaintiff by a month's imprisonment for his default.

As to the count in trespass, the case of Yearsley v. Heane (a) is a direct authority that it is not maintainable. We therefore think that the rule ought to be absolute for entering a verdict for the defendants.

Rule absolute to enter a verdict

for the defendants.

(a) 14 M. & W. 322.

1858.

PHILLIPS

v.

NAYLOR.

1858.

EXCHEQUER REPORTS.

Feb. 9.

A. P., on the marriage of his daughter I. B.. coven

anted to pay to

the trustees of

the settlement

then made, as

a provision for his daughter on

her marriage, 20001. The

trusts were to

IN RE ARTHUR PALMER.

PIGOTT, Serjt., for the Attorney General, had ob

tained a rule under the 42 Geo. 3, c. 99, s. 2, calling on A. H. Palmer, E. Harley and E. Harley the youger, executors of Arthur Palmer, to shew cause why they should not deliver to the Commissioners of Inland Revenue, an account, upon oath, of all the legacies, and of the property

of the said A. Palmer deceased, respectively, paid or to be pay the income paid, or administered by the said A. H. Palmer, E. Harley, and E. Harley the younger, as such executors, and why

to I. B. for life,

and after her death to her

husband for life,

and after the

decease of the

survivor to the children, and

the duties have not been paid, or should not forthwith be paid, according to law.

The rule had been obtained upon an affidavit of a clerk if there should in the legacy duty office that the duties had not been paid.

be no child

then to such

person as she

The following facts appeared from the affidavit of the should appoint, executors filed in reply-Arthur Palmer, by his will,

and in default

of appointment directed, "that the covenants on his part contained in the settlements made on the respective marriages of his daugh

then to her

next of kin ;

and in the same settlement he covenanted

that his execu

ters, Isabella Bruce, Elizabeth Blake, and M. A. Harley,

tors should pay the further sum of 20001. to the trustees, to be held upon the same trusts, within six months after his decease. On the marriage of his daughter, E. B., he covenanted to pay to the trustees of the settlement then made 20001. within one month after the marriage. The trusts of this sum were to pay the income to G. B., the husband of E. B., for his life, and after his death to E. B. for her life, and after the death of the survivor to the children, and if there should be no child then to such person as E. B. should appoint, and in default of appointment to her next of kin. By his will the testator directed "that the covenants on his part contained in the settlements made on the marriage of his daughters, for the payment of monies and annuities for the benefit of themselves and their respective children and grandchildren as therein stated, should be performed;" and proceeded as follows:-"In addition to the property settled by my daughter I. B.'s marriage settlement, I give the further sum of 8000l. to the trustees, &c., to be held, &c., upon the same trusts in all respects, for the benefit of my daughter I. B. and her children, as thereby declared as to the property thereby settled; and in addition to the property settled by my daughter E. B.'s marriage settlement, I give the further sum of 80001 to the trustees of such settlement, to be held upon the same trusts in all respects, for the benefit of my daughter E. B. and her children and grandchildren, as thereby declared as to the property thereby settled.-Held, that the words "to be held, &c., upon the same trusts in all respects for the benefit of my daughter and her children and grandchildren, as thereby declared as to the property thereby settled," were to be construed as words of reference, incorporating the trusts of the settlements in the will; that the trusts for the husbands were not excluded, and therefore that legacy duty was payable upon that principle.