610

Superior Courts: Vice-Chancellor Knight Bruce.

Mr. Russell and Mr. Roundell Palmer, for the plaintiffs, cited Doe v. Bingham, 4 B. & Ald. 672; Dunn v. Calcraft, 2 S. & S. 56; Humming v. Perrier, Gilb. 95; and The Attorney-General v. Day, 1 Ves. sen., 218.

Mr. Rolt, Mr. Wigram, Mr. Bacon, Mr. Cowling, Mr. J. V. Prior, and Mr. Selwyn, for the several defendants.

one part, and the said T. Boyd, G. Badenoch, that, if necessary, the deed of 1846 might be P. Ross, and William Walker of the other part, established, and the trusts thereof performed after reciting the deeds of 1838, 1839, and and carried into execution under the authority 1840, before-mentioned, and that the 250l. of the Court. mentioned in the deed of 1838 was part of a sum subscribed for establishing a church and school in connection with the Established Church of Scotland, and that questions had arisen as to the validity of the deeds of 1839 and 1840, by reason of which the trusts of the same were void, and that John Walker and J. Barban refused further to act in the execution of the trusts, it is witnessed that William His Honour, after disposing of an objection Walker, in pursuance of the powers contained as to want of parties, proceeded,-"It seems in the deed of 1838, appointed the land and proper to say at once whether I consider the buildings to the use of the said Boyd, Bade- disputed question of the validity, the legal and noch, Ross, and William Walker, as joint equitable validity, of the conveyance to the tenants, and their heirs and assigns for ever, plaintiff William Walker, dated, though not but upon trust, when thereunto required by executed, in 1838, as material. I say 'legal any decree of the Court of Chancery, to convey and equitable validity,' for the nature of the and assure the same to such persons as the case strikes me to be such that this conveyance, Court should direct by any order made in the suit if legally valid, ought to be taken as equitably of The Attorney-General v. Gardner, (which valid, and if legally invalid, as equitably invalid. was the original suit,) or in any supplemental I certainly consider the question very material. suit; but nevertheless, for the same charitable The object of the suit I may, omitting inci trusts, intents, and purposes, &c., as were ex- dental matter, describe as being to assert and pressed in the deed of 1839, or as near thereto, establish a title to the absolute property in real &c., so as perpetually to maintain and establish estate, namely, in a parcel of land at Birkenthe said church and school-house as a church head, in Cheshire, forming the site of certain or place of Divine worship and place of instruc- buildings erected in order to be used as a tion, according to the provisions as in the deed Presbyterian place of worship and as a Presby of 1839 was particularly set forth concerning terian school, which buildings are in fact used the same; and until any conveyance should be as a Presbyterian place of worship and as a made under a decree, upon trust to stand seised Presbyterian school, but are used for those of the same upon the trusts declared by the purposes upon a system and in a manner con deeds of 1839 and 1840, in the same way as if tended by the Attorney-General and the plainthe deed of 1839 had been duly attested and tiffs as varying from the intention for which enrolled. This deed of 1846 was duly exe- the land and buildings were acquired and cuted, attested by two witnesses, and enrolled erected, and to be improper. Accordingly, the in the Court of Chancery. The original bill asserted title to the land is so asserted on the and information was filed against Mr. Gardner, sole ground that the land and buildings were J. Walker, J. Barbon, and others, praying, effectually subjected, and now stand subjected, among other things, a declaration that the land to the trust which the defendants consider and and buildings were in equity subject to the describe as a charitable trust in favour of Prescharitable trusts, intents and purposes de- byterian education and Presbyterian worship clared by the deeds of May, 1839, and January, upon certain principles set forth on the record, 1840, so far as the same were capable of being and the suit seeks to vindicate and enforce that carried into effect; that they ought to be per- trust. The suit then, if the site of the building petually preserved and maintained in as strict is bound by a charitable trust, may be successcommunion and connection with the Church of ful; but if not, must, I suppose, fail, since, as Scotland. The supplemental information was I apprehend the matter, there is neither claim afterwards filed, alleging that the informants upon any other hypothesis. Now it is conand plaintiffs were advised, that if for any tended by some at least of the defendants, cause or reason the appointment of 1839 was though admitting the buildings to be now used not valid and effectual in law for the purposes by them, or with their sanction or concurrence, therein expressed, then that all the estate and as a Presbyterian place of worship and a Presby interest in the premises, which before the exe- terian school, that the property is not effectually cution thereof was vested in the plaintiffs, was devoted to any such object, and has never been duly appointed by the indenture of 1846 to the effectually subjected to any charitable trust; uses and for the purposes therein declared or the reason assigned being, as I understand the referred to, and praying that the informants fact, a failure of compliance with the requi and plaintiffs might have the same benefit of the execution and enrolment of the indenture of 1846, in respect of all the relief prayed by the amended information and bill, as they would be entitled to if the same indenture had been duly executed and enrolled before the filing of the original information and bill, and

sitions of the stat. 9 Geo. 2, called the Mortmain Act; and, as I understand the fact, it is true, that although the alleged charity origi nated, if at all, within the last 12 years, the only instrument concerning it, or the site or buildings in question, with regard to which there appears to have been, or ought I think to

Superior Courts: V. C. Knight Bruce.-Queen's Bench.

611

the said G. A. forcibly entered the premises, and that notice of such complaint was given to the said G. A., who received the said notice but said nothing, and then went on to allege that the justices received evidence on oath of the unlawful entry.

Held, that the conviction was bad for omitting to show that G. A. had been summoned to answer the charge of the unlawful entry, or that he had had any opportunity afforded him of defending himself against such charge.

be presumed or taken to have been, any accurate or effectual compliance with that statute, is the deed of 1846, a deed subsequent to the institution of the original suit, but made the subject of a supplemental information and bill; and it is asserted, correctly as it appears to me, by the opposing defendants, that the effectiveness of the deed of 1846, as an instrument imposing a charitable trust on the site and buildings, must depend entirely on the title of the plaintiff William Walker. So that if he had not then a title to the site and buildings, that deed cannot be taken to have imposed a chariTHIS was an action of trespass, and false table trust upon them; but William Walker's title to the site and buildings depending on the imprisonment. Plea: Not guilty, by statute. validity of the conveyance of 1838, if that con- The plaintiff was a labourer, and the defendants, veyance be legally and equitably valid, which justices of the peace for the county of Somerset. the opposing defendants deny, the land and The case was tried before Wightman, J., at buildings may, with the aid of the deed of 1846, the Summer Assizes, (1844,) for the county of be treated, I think, in the suit as effectually Somerset, when a verdict was found for the appropriated to the charity which is the sub- plaintiff, by consent, damages 101., subject to ject of the suit. Whether a charity to be ad- the opinion of this court, on a case. The plainministered in the mode that the relators and tiff was arrested under the following warrant : "To the keeper of her Majesty's gaol of plaintiffs think right, or in another mode, is, Whereas upon comof course, a different question. The main Shepton-Mallet, &c. question then being in my view, the legal plaint made unto us by John Holdway, overvalidity of the deed of 1838, as I have said, I seer of the poor of the parish of Hemmington, must own that, whether willingly or un- in the said county: we went to the dwellingwillingly, I have found myself unable to treat house belonging to the overseers of the said the case made against it as unworthy of a parish of Hemmington, aforesaid, in the said lawful technical consideration. My province county, and there found George Attwood, late being, not to make the law, but to administer of Hemmington aforesaid, labourer, forcibly, the law as I find it, I have been obliged to view and with strong hand and armed power holdthe point with a lawyer's eye, so far as my ing the said house, against the peace of our faculties enable me; and so viewing it, though said Lady the Queen, and against the form of I cannot declare myself satisfied of the validity the statute in such case made and provided. of the instrument, I am not so clearly satisfied Therefore we send you by the bringers thereof, of the contrary as not to be justified in giving the body of the said George Attwood, convicted to the relators and plaintiffs an opportunity, if of the said forcible holding by our own view, they wish it, of trying that question in an testimony, and record, commanding you in Her action under the direction of this Court. said Majesty's name, to receive him into your Unless they desire to do so, the information said gaol, and there safely to keep him until he and bills must, I apprehend, be dismissed, but shall have paid the sum of 51. of good and lawwithout prejudice to any future suit. I say an ful money of Great Britain, to our said soveaction advisedly, not an issue, unless both reign Lady the Queen, which we have set and parties ask it, and not a case, unless both imposed upon him for a fine and ransom for his said trespass, &c. Given, &c. parties ask it.

Jan. 11th. Counsel for the plaintiffs declining to try an action, the informations and bills were dismissed as, above stated.

Queen's Bench.

Signed,

"THOS. R. JOLIFFE, (L.S.) "J. T. JOLIFFE, (L.S.)"

At the trial, the defendants put in and proved the record of a conviction duly signed by them; which, after stating that the plaintiff had been permitted to occupy a parish house, in the said parish of Hemmington, and had refused to quit and give up possession thereof; and the plaintiff having been summoned, and having appeared before the defendants, they TRESPASS-CONVICTION-FORCIBLE ENTRY directed the possession of the house to be given

(Before the Four Judges.) Attwood v. Joliffe and another. Hilary Vacation, Feb. 3, 1848.

AND DETAINER.

up to the parish officers of Hemmington. And In order to justify a conviction by justices the said parish officers having made further under the statutes 15 Rich. 2, c. 2, and 8 complaint before the defendants, that the plainHen. 6, c. 9, there must be proof before tiff had forcibly entered the said house, the them, as well of an unlawful entry on the conviction went on to allege," which complaint premises, as a forcible detainer. Where a conviction stated that justices had convicted G. A. of forcible detainer upon their own view, and that afterwards a complaint was made to the same justices that

and prayer by us the aforesaid justices being heard, we, the said T. R. Joliffe and J. T. Joliffe, the justices aforesaid, did on the day and year last aforesaid, give notice to the said G. Attwood of the said complaint and prayer, and the

said G. Attwood on the same day and year red to a conviction in aid of a commitment, aforesaid, received the said notice, but said As to the want of summons, it is conceded that nothing then or at any other time in bar or preclusion of us the said justices enforcing against him the provisions of the statute in such case made and provided." The conviction went on to allege that certain witnesses were examined, and that the defendants convicted the plaintiff of the forcible entry and detainer.

Several objections were taken to the conviction, but the one on which the argument proceeded was, that the plaintiff was not summoned to answer the complaint of the forcible entry and detainer. It was also objected to the warrant of commitment that it did not disclose any offence over which the magistrates had jurisdiction.

If the Court should be of opinion that the said conviction and warrant, or either of them, are not sufficient to justify the said imprisonment, then the verdict found for the plaintiff to stand; but if the Court should be of a different opinion, then a verdict for the defendant, or a non-suit to be entered, as the Court should direct.

the conviction ought either to show that the plaintiff was summoned, or had otherwise an opportunity of defending himself. A good complaint is alleged, and the conviction then goes on to state, that notice was given to the plaintiff of the complaint as to the unlawful entry, therefore he had an opportunity of defending himself, but refused to avail himself of it.

Lord Denman, C. J. I think this objection to the want of summons must prevail, but I do not express any opinion on the other objections that have been taken. The observations made by Best, C. J., in Wickes v. Clutterbuck upon the duties of magistrates, are exceedingly good, and ought to be well considered by all magistrates when they are about to commit a person for a violation of the law. I think it is not necessary to consider whether the warrant be good or bad, because I am clearly of opinion that the conviction cannot be supported according to the general rules of law repeatedly laid down, and particularly in this Court, by Lord Kenyon, in Rex v. Benn and Church, and Kinglake, Sergeant, with whom was Mr. whenever the point has been considered in any Butt, for the plaintiff. One objection to the court of justice, it has always been held, that conviction is, that it does state that the plaintiff where a person is to be charged with an offence was summoned to answer the complaint of and subjected to an imprisonment, the proforcible entry and detainer. All that appears ceeding is bad unless he has had an opportu is that notice of the complaint was given to nity of being heard. Here, not only was there the plaintiff, that he received it, and said no-no summons, but the plaintiff had no opportu thing. The allegation is consistent with the fact that the plaintiff only received a verbal intimation that the defendants would at some time proceed to hear the evidence as to the unlawful entry. The warrant of commitment fails to show the jurisdiction of the justices, and for any thing that appears, the plaintiff may have been in possession of his own house. Under the statutes 15 Rich. 2, c. 2, and 8 Hen. 6, c. 9, there must be a forcible detainer after an unlawful entry, in order to give the magistrates jurisdiction. Rex v. Oakley, and Rex v. Wilson.b

Jurisdiction must appear on the face of a warrant of commitment, Regina v. Chaney, and Regina v. King, and where the commitment is defective in that respect, such defect cannot be supplied by reference to a good conviction. Wickes v. Clutterbuck.e

nity of being heard. The conviction, therefore, under the circumstances, cannot be supported, and the plaintiff is entitled to judgment.

Mr. Justice Patteson. It appears to me unnecessary to decide in this case whether the warrant of commitment is sufficient or not, by reason of the reference to it in the statute, be cause the conviction is substantially bad, and shows a material defect of justice, and the warrant of commitment alone cannot entitle the defendant to a verdict. The fact stated on the face of the conviction is, that there was a forcible holding. That alone does not constitute an offence under the statute; this we decided in Rex v. Wilson, but it is also necessary that it should be shown that there was an unlawful entry. The magistrates might have convicted the plaintiff of an unlawful entry and of a forcible detainer on view, for both might Mr. Crowder, (with whom was Mr. Phinn,) have taken place in their presence; but that is for the defendants. If a warrant of commit- not pretended to have occurred here. The ment be sufficiently explanatory of the offence, conviction states a forcible holding on their then it may be supported by a good conviction. own view; but the fact of the unlawful entry, There is a substantial allegation in the words which did not take place in their presence, of the statute 8 Hen. 6, c. 9, that there required to be proved aliunde. If so, the per was a forcible holding of the house against the peace, and against the statute. In Rogers v. Jones, Daniel v. Phillips, Rex v. Taylor, and Stamp v. Sweetland, the Court has refer

son accused ought to have had the opportunity of examining the witnesses called to prove that fact. This plaintiff had no such opportunity. If there had been a summons, he would have known that a complaint had been made, and he would have had an opportunity of hear ing the witnesses. There was not even a notice that a complaint had been made, and that he

Superior Courts: Queen's Bench.-Queen's Bench Practice Court.

would have had an opportunity of being heard on some future day. All that is said is, that he had notice of the complaint, and that he held his tongue. There is nothing to show he had any opportunity of doing otherwise. At some time or other, it is not said when, two witnesses are said to have been examined by the magistrates as to the unlawful entry, but it is clear, as far as the conviction goes, that that was in the absence of the plaintiff. There is, therefore, a defect of justice apparent on the face of the conviction, and the plaintiff is therefore entitled to a verdict.

613

the present plaintiff upon a judge's order under the 1 & 2 Vict. c. 110, s. 3, upon the ground that he was about to leave England and go to Scotland. By the 18th section of the 2 & 3 Vict. c. 41, it is enacted that the warrant of protection shall protect the debtor from arrest in Great Britain and Ireland and her Majesty's other dominions, for civil debt contracted previous to the date of the sequestration, but such warrant shall not be of any avail against the execution of a warrant of arrest or imprisonment in meditatione fugae, &c.

Montague Smith now applied for a rule for Mr. Justice Wightman. I am of the same the discharge of the defendant from the cusopinion. It is unnecessary to inquire into the tody of the Sheriffs of London, on the ground validity of the warrant of commitment when that at the time of the arrest he was privileged the conviction on which it is founded is clearly by the foregoing warrant of protection. bad. Before the plaintiff could be convicted [Wightman, J. The ground for the defendof this offence, it ought to have been proved, ant's arrest is, of course, that he was about to not only that he was guilty of a forcible hold- leave England, that he came therefore within ing, but of an unlawful entry. The magistrates the meaning of the words meditatione fugae.] do find, on their own view, that there was an Yes, but those words have obviously reunlawful holding, but they must be satisfied ference only to the case of a bankrupt running by evidence that the plaintiff was there unlaw-away from his creditors, and not to a case like fully; that is not so stated at all. They may this, where he is actually going back to Scothave seen it, but they did not say so. It only land, where he will meet them. By this arrest, appears that the plaintiff had notice, but not he is actually kept away from his creditors. that he was summoned to appear at any fixed The words of the statute privilege him in all time and place, when witnesses would be exa- parts of Great Britain. In Jones v. Anstrumined to prove the unlawful entry. On every ther, a debtor was discharged in a similar way principle of justice, therefore, there is a fatal on motion under this act. defect apparent on the face of the conviction, and the plaintiff must have judgment.

Judgment for the plaintiff.

The defendant, who was a Scotch bankrupt, and had obtained from the Lord Ordinary a warrant of protection under the 2 & 3 Vict. c. 41, s. 17, which by section 18 protects him from arrest in any part of the Queen's dominions, except in meditatione fugae, was arrested in London by virtue of a judge's order made under the 1 & 2 Vict. c. 110, s. 3, upon an affidavit that he was about to leave England and go to Scotland: Held, on application for his discharge, that the words in meditatione fugae do not apply to a case where the defendant is about to return to Scotland, but to cases where he intends to escape from his creditors by leaving the dominions.

THE defendant in this case was a Scotch bankrupt, and having obtained from the Lord Ordinary a warrant of protection under sections 17 and 18 of the 2 & 3 Vict. c. 41, ("An Act for regulating the Sequestration of the Estates of Bankrupts in Scotland,") he came to London, where he was arrested at the suit of

Willes showed cause in the first instance. The words meditatione fugae have a general meaning, and apply to any case where the debtor is about to leave the country where he is staying at the time of his arrest. If this were not so, he might go over to Ireland and then start away for America, and so be entirely out of the reach of his creditors, or he might go to some of the colonies, and so defeat the rights of those to whom he is indebted. In a recent case at Chambers, Mr. Baron Parke refused under this act to discharge a debtor, though he had his warrant of protection.

Montague Smith, in reply, was stopped by Wightman, J., who intimated that he would facts of the case mentioned, and his reasons see Mr. Baron Parke, and learn from him the for his decision. On his return, his lordship said, that Mr. Baron Parke's decision was founded upon this, that it was sworn that the defendant was about to leave England and go to Toronto, which was a case widely different from the present one, in which the defendant does not purpose going abroad, but in fact to return back to the very jurisdiction from which he received his protection. He thought that the words in meditatione fugae could not have been intended to apply to a case of a party being about to leave England for Scotland, but to some intention of escaping from the dominions of Great Britain. He therefore directed the rule to be absolute, the defendant undertaking to bring no action.

614

Superior Courts: Common Pleas.-Exchequer.

Court of Common Pleas.
Newton v. Lord Albert Conyngham. Easter
Term, 1848.

also inserted in the list of the managing committee, of which he is subsequently aware, and to which he does not object, such managing committee being authorized to direct the affairs of the company, he will not, without interference on his part in the affairs of such company, be liable to the attorney for his costs in any proceedings adopted by him by order of suck managing committee, no bill having been obtained, or deed signed. It is, however, a question for the consideration of the jury whether, from all the circumstances, the committee are authorized to pledge the defendant's credit.

EXECUTION FOR COSTS ONLY.-WRIT OF ERROR UNDER 7 & 8 VIC. c. 96, s. 57. As to whether the stat. 7 & 8 Vict., cap. 96, sec. 57, operates to protect a plaintiff who had been nonsuited from being taken in execution under a ca. sa. for costs. Quære. In such a case, however, the Court refused to treat as frivolous a writ of error founded on the award of a writ of ca. sa. in the record of judgment, and to allow the defendant to issue execution notwithstanding. THIS was an action against the defendant, as In this case an action had been tried before the member of a railway provisional committee, Mr. Justice Patteson at Gloucester. It apand the plaintiff having been non-suited at the peared at the trial that the plaintiff was attor trial, the usual record of judgment was drawn ney to the "Wolverhampton, Bridgnorth, and up, containing an award of a writ of ca. sa. to Ludlow Railway Company:" that at the first recover the defendant's costs in the action. meeting of the company, on the 6th of No Upon that record, the plaintiff brought a writ vember, 1845, the defendant, (Sir Robert of error, alleging as a ground that no such Pigott,) being present, was appointed one of writ of ca. sa. could be awarded, as the case the committee; to this he made no objection; came within the operation of the 7 & 8 Vict., he, however, shortly afterwards left the room; cap. 96, s. 57, which provided " that no person subsequently, on the same day, the defendant shall be taken or charged in execution upon not being then present, the committee of any judgment obtained in any of her Majesty's management was appointed, and the defendant superior courts, &c., in any action for the re- being named as one of such committee. There covery of any debt wherein the sum recovered was evidence that the defendant was aware he shall not exceed the sum of £20, exclusive of was elected upon such committee, that he the costs recovered by such judgment." never repudiated the connexion, and also that

Bramwell now moved, on behalf of the de- he never attended any of the meetings subse fendant, for a rule nisi to issue execution, not-quently. That at the meeting on the 6th of withstanding the writ of error, on the ground November, a prospectus, which had been be that the latter was frivolous. In this case, fore then issued, was adopted by the company, there had been no sum recovered," and in which prospectus it was declared, that until therefore it was clear the section in question an act of parliament should be obtained, the did not apply. To hold otherwise would be a direction of the affairs should be under the great hardship on the defendant, and looking control of the committee of management. at the intent and spirit of the act, and more There was no doubt this was a bona fide particularly at the words as well of the 57th scheme, but failed from want of money: great section as the two sections immediately follow- expenses were, however, incurred after the 6th ing, it was evident that no real ground existed of November, 1845, and much progress was for the writ of error. made towards carrying out the scheme. It Wilde, C. J. My impression is, that some was for some of these expenses that this action doubts have been entertained as to the con- was brought. The plaintiff attended at the struction of the section in question, and certain meeting of the 6th of November, and it was judges have so construed it, as to relieve not disputed that he was one of the solicitors plaintiffs from imprisonment for costs only. I to the company. The question at the trial cannot, therefore, say that this is not a fit turned solely upon the liability of the defend question to be agitated by a writ of error, and ant. The learned judge, in summing up, said, in the absence of any special circumstances to the question was, whether the defendant was warrant execution pending the writ of error, I think, without expressing any opinion upon the construction of the statute, we cannot treat this as a frivolous writ of error. Coltman, J., Cresswell, J., and Williams, J., concurred. Rule refused.

Exchequer.

Williams v. Pigott. April 19, 1848. RAILWAY COMPANY.-LIABILITY OF PROVISIONAL AND MANAGING COMMITTEE

MAN TO SOLICITOR OF COMPANY.

Where a person allows his name to be placed upon the provisional committee, and it is

liable to the plaintiff for work done in this bona fide scheme; that merely being one of those connected in the appointment of the managing committee, would not, of itself, make him liable: there was no positive act done by the defendant; he merely did not interfere, he did not repudiate. The question then was, did he authorise others to pledge his credit?

The jury returned a verdict for the defendant. Whateley, on behalf of the plaintiff, moved for a new trial, on the ground of misdirection, and that the verdict was against evidence. It was contended at the trial, that although the defendant never did attend any of the meetings, he was, nevertheless, liable. [Parke, B.