the settlement or the management of the estate; and this information is for not filing an inventory within the six months. The special verdict finds that probate has been obtained in England, and probate duty paid here. The mode in which probate duty is collected in Scotland is, not by a probate granted in Scotland or any proceeding analogous to a probate, but an inventory is required to be filed, stating the amount of the property, upon which the duty is to be calculated and paid. Now, inasmuch as it would be necessary, in transferring the *property after the death of the shareholder, to produce the will in Scotland and give other evidence to the Railway Company, this enactment is made by the 20th section of 8 & 9 Vict. c. 17: "The probate of the will, or the letters of administration, or an official extract therefrom, obtained from any Prerogative Court if granted in England, or a testament testamentary, or a testament dative if expede in Scotland, or an official extract thereof, shall together with such declaration be produced to the secretary; and upon such production in either of the cases aforesaid the secretary shall make an entry of the declaration in the said register of transfers" (1). Now, supposing there had been no probate in England, in what mode would the transfer have taken place? The shares would have been transferred on the production in Scotland of the testament testamentary with the declaration. The section in question, in order to prevent the inconvenience of bringing a will from London to pass a few shares in Scotland, provides, that the probate when produced with the proper declaration, shall be the evidence upon which the transfer is to take place, and nothing more. By the Acts of Parliament regulating probate duty, it is simply payable upon the property situate within the province or diocese wherein the probate is granted. The power of the Ordinary is not with respect to the person, but with respect to the goods-he does not grant probate with respect to the individual, but with respect to the goods within the diocese or province. The Act does not provide that these shares are to have their situs in Canterbury, although the railway is in Scotland; therefore, its meaning is simply this, if a testator has bona notabilia in England, and the executors obtain probate in England, that when produced shall be evidence to satisfy the secretary, and on which he is to make the transfer. It was not intended in any way to abrogate the force and effect of the *Act of Parliament on which the Crown collects the duty in Scotland. Nay, more, if the testator had no property in England, and these shares in Scotland were all the property he possessed in the world, the Ordinary would have had no jurisdiction. The inten(1) See note, p. 577 above. tion was merely to facilitate the mode of transferring the shares in Scotland, and for that reason, I think that the right to have the inventory exhibited in Scotland still remains, and therefore the Crown is entitled to our judgment. Judgment for the Crown. EX PARTE CROSS. (2 H. & N. 354—355.) This Court will grant a rule calling on a committing magistrate to show cause why a writ of habeas corpus should not issue to bring up a prisoner, in order that the validity of the warrant of commitment may be discussed on showing cause. HUDDLESTON moved for a rule calling upon Thomas Bent, Esq., (the committing magistrate) to show cause why a writ of habeas corpus should not issue directed to the keeper of the house of correction at Derby, commanding him to have the body of the said Thomas Cross and the original warrant of commitment of the said Thomas Cross before this Court on a day to be named. In support of the application it was stated that a writ of habeas corpus had been previously obtained, which the gaoler had refused to obey, on the ground that he had not received the expenses of the conveyance of the prisoner to Westminster (1), under the statute, and it was urged that the validity of the commitment might be discussed on showing cause; and the case of In re Elizabeth Jones (2) referred to. (POLLOCK, C. B.: In the case of Ex parte Martins (3) my brother PATTESON was informed by one of the officers of the Crown Office that it was never the practice to waive *the necessity of a party's appearing before the Court on a habeas corpus, where the validity of a commitment is to be discussed, and though he regretted that the defendant should be put to the expense of a habeas corpus, he said that he could not alter the practice in that particular. However, we have adopted a different practice. It is very much in ease of a poor man who thinks he has a right to be discharged, if the expenses which would be incurred in causing him to be brought up under a habeas corpus under 31 Car. II. c. 2, s. 2, can be saved to him.) Rule accordingly. The original warrant of commitment bore date the 4th of May; but it appeared that on the 21st of May an amended warrant of commitment had been lodged with the gaoler, which was unobjectionable. Ex parte 1857. June 9. [356] C. G. Merewether now showed cause upon these grounds on behalf of the magistrate. Huddleston argued in support of the rule, and referred to Chaney v. Payne (1). Per CURIAM: The rule must be discharged. The case of Reg. v. Richards (2) is a conclusive authority. Rule discharged. COLLETT. FOSTER (3). (2 H. & N. 356–362; S. C. 26 L. J. Ex. 412; 29 L. T. 229; 5 W. R. 790.) Trespass for false imprisonment. Pleas: Not guilty, and justification under a ca. sa. Replication, to second plea. That the ca. sa. was irregularly obtained, and set aside for irregularity. It was proved at the trial that judgment having been entered up against the plaintiff, on a warrant of attorney, for 601. given to the defendant to secure the payment of a debt by instalments of which less than 20. were due, the defendant's attorney caused the plaintiff to be arrested under a ca. sa., indorsed to levy 217. 10s. The defendant having been informed that the plaintiff had been arrested by a person who had joined in the warrant of attorney, wrote a letter in answer not denying that such arrest had taken place by her authority. The writ was afterwards set aside by order of a Judge: Held, first, that the replication was proved. Secondly, that the defendant was liable in trespass for the act of her attorney in improperly causing the plaintiff to be arrested. (Dubitante, BRAMWELL, B.) Thirdly, that there was evidence to go to the jury that the defendant had authorized the arrest. TRESPASS. The declaration stated that the defendant assaulted, arrested, imprisoned and beat the plaintiff, whereby the plaintiff was injured in credit and reputation, and put to expense. Pleas. First: Not guilty. Secondly: Justification under a writ of ca. sa., in an action in which the now defendant was plaintiff. Replication to the second plea. That the ca. sa. was irregularly obtained and was set aside for such irregularity. At the trial before Martin, B., at the Middlesex sittings after last Term, it appeared that the defendant had lent 30l. to the plaintiff and a Mrs. Bass, payable by instalments of 41. a month, for which they had given a warrant of attorney to enter up judgment for 601. Some instalments being due amounting to 18., judgment was signed for the sum of 60l., and on the 26th of February, a ca. sa. issued, indorsed to levy 21. 10s., under which the plaintiff was arrested and carried to Whitecross Street prison. Mrs. Bass stated that she had paid a sum of 6l., leaving 121. only due, and that she wrote to the defendant to inform her that Lewis her attorney had wilfully or by mistake caused the plaintiff to be arrested. The defendant wrote the following letter in answer. In reply "66 340, 344, 47 L. T. 142, C. A.; and see Morris v. Salberg (1889) 22 Q. B. Div. 614, 58 L. J. Q. B. 275, 61 L. T. 283. .. FOSTER. [ *357 ] to your letter, I beg to say that I have seen Mr. Lewis, and COLLETT your cause of complaint arises from misunderstanding *the business arrangements. Mr. Lewis had always been ready to allow the 6l., but the understanding was that such allowances should not occur until Mr. Butler's bill for 12., which is now dishonoured, had been paid; but to save Mr. Collett any trouble, Mr. Lewis has instructed the attorney to allow the supposed overcharge." On affidavits showing that in fact 201. was not due to the defendant, on the 14th of March an order was made by COLERIDGE, J., setting aside the ca. sa. on that ground, and the plaintiff was discharged from prison. At the close of the plaintiff's case, the defendant's counsel urged that the defendant had not herself committed any illegal act, and that she was not liable for an illegal act done by her attorney unless it was shown that she expressly authorized it. The learned Judge told the jury that in his opinion the imprisonment was illegal, and that the plaintiff was entitled to damages, but he left it to them to say whether upon the evidence they thought that the defendant had authorized the arrest. The jury found a verdict for the plaintiff. Hawkins, in the present Term, obtained a rule to show cause why a new trial should not be had, on the ground that the learned Judge misdirected the jury on the plea of Not guilty, in telling them that there was evidence of the liability of the defendant and also in directing them that the arrest under the circumstances afforded a ground of action; that the ca. sa. was not irregular but simply erroneous, and that the learned Judge ought to have directed the jury that an arrest under it afforded no ground of action, and that the verdict was against the evidence. Shee, Serjt., and Unthank now showed cause: First: as to the plea of Not guilty. The letter of the defendant was evidence that the client was cognizant of all that was done. But if that were not so, a client is answerable for the *act of his attorney as if it were his own. It makes no difference that the ca. sa. was illegal: Barker v. Braham (1). (POLLOCK, C. B.: A man who employs an attorney to act for him in a cause in one of the superior Courts, employs him to represent him in every stage of the cause. What the attorney does is the act of the client.) Jarmain v. Hooper (2) is an authority to that effect. (BRAMWELL, B.: This is not the case of a thing which [ *358 ] COLLETT v. FOSTER. [ *359] might have been done but was done irregularly; it was an act wholly illegal. Can a client, who gave no instructions to an attorney to do such an act, be rendered liable for it?) Secondly, the replication was proved and is a good answer to the plea. It is well established, that if a writ is set aside on the ground of irregularity it is the same as if it had never existed: Prentice v. Harrison (1). It is not necessary to consider whether that case was rightly decided; and whether it is not enough to show that the writ has been set aside by a Judge's order, in order to sustain the replication. Here it appears that the ca. sa. was set aside on the ground that 201. was not due. That was an irregularity only: Blew v. Steinau (2). It cannot be said that this writ was set aside on the ground of error. There is no error on the record; the writ was regular and followed the judgment, and the indorsement was not erroneous but irregular: R. Hil. T. 1853, r. 76. Hawkins, in support of the rule: The arrest in the present case was illegal, not irregular. (MARTIN, B.: Would the action have been sustainable if the writ had not been set aside.) The attorney, and not the client, is the party liable for an act of this sort. It will not be found in any of the cases, that the client has been held liable for acts done by the attorney under process which was wholly void. *The 7 & 8 Vict. c. 96, s. 57, forbids the issuing of a ca. sa. upon any judgment in any action for the recovery of any debt where the sum recovered shall not exceed 201. The act of the attorney is similar to that of a servant who, while driving his master's coach, of his own accord strikes a person with his whip; for that the master would clearly not be liable. The general rule is, that a principal is not liable in trespass for the act of his agent, unless he authorized it beforehand or subsequently consented to it, with knowledge of what had been done. Accordingly in Freeman v. Rosher (3), in an action of trespass against a landlord, where it appeared that he gave a broker a warrant to distrain for rent, and the broker took away and sold a fixture and paid the proceeds to the defendant, who received them without inquiry, but without knowing that anything irregular had been done, it was held that the action was not sustainable. (Unthank: This was a debt payable by instalments; therefore the attorney must have taken his instructions from his client as to the sums paid.) (1) 4 Q. B. 852. (3) 78 R. R. 514 (13 Q. B. 780). |