In this case it was said that the want of probable cause was evidence of malice. Floyd and Baker's case (1) and Dicas v. Lord Brougham (2) show that there is no distinction between a Judge of a court of record and another Judge. The result of the authorities is, that at common law magistrates were not liable except for trespasses. If a magistrate authorized a trespass and had no jurisdiction, or if there was no conviction, he was liable to an action of trespass: if the conviction was quashed, the conviction being gone, he was left without protection; therefore the statute 43 Geo. III. c. 141, was passed for the protection of a magistrate under such circumstances. The 11 & 12 Vict. c. 44, does no more than extend the protection given by the former Act.

(MARTIN, B.: What protection would the magistrate require if the defendant's contention were well founded?)

In Hilary Term (Jan. 29) the COURT called on

N. Palmer and J. H. Mills to support the rule obtained
on behalf of the plaintiffs:

First, the defendant acted without jurisdiction. The warrant
of commitment refers to a bye-law, but does not show that
the plaintiff committed any offence against that bye-law, or
within the Isle of Ely. The offence charged is, that the
plaintiff unlawfully travelled in one of the Company's carriages
from Trowse to Ely without having first booked his place and
paid his fare, contrary to the bye-law in that behalf; but the
bye-law imposes no penalty for such an offence. Again, there
is no power to apprehend a person for an alleged offence
against a bye-law, or to issue a warrant before conviction,
but a summons ought to have issued. By the 6 & 7 Will. IV.
c. cvi., s. 236, all penalties imposed by any bye-law may
be recovered by order of any two justices of the peace. By
the 237th section, when any penalty is recoverable by informa-
tion before any justice, he may summon before him the party
complained against. Here there was no information or sum-
mons. The 238th section only enables any officer or servant
of the Company to seize and detain an offender whose name
and residence shall be unknown, for offences committed against
the provisions of that Act. The justice has no jurisdiction
except on summons, and he must then proceed to the deter-1
mination of the case without any remand. By the 1 & 2 Vict.
c. lxxxi., s. 56, there is power to apprehend any person
travelling without having previously paid his fare; but not for
(2) 1 Moo. & Rob. 307.

(1) 12 Co. Rep. 24.

R.R.-VOL. CXV.

39

GELEN

v.

HALL.

[394]

GELEN

v.

HALL

[*395 ]

1*396 1

refusing to deliver up his ticket. That enactment, however, has no application here, because the warrant refers to an offence against a bye-law, and the bye-law imposes no penalty for such offence. The 145th section of "The Railways Clauses Consolidation Act," 8 & 9 Vict. c. 20, does not affect the case, because that Act only applies to railways to be thereafter constructed. *Moreover, there was no power to apprehend the plaintiff at Ely, for he was a passenger from Trowse to London. Secondly, the warrant of commitment is bad on the face of it. *

Cur. adv. vult.

The judgment of the COURT was now delivered by

POLLOCK, C. B.:

This was an action tried before Lord Campbell at the last Cambridge Summer Assizes. There were two counts in the declaration, the first for an assault and false imprisonment; the second for an alleged wilful and malicious conviction of the plaintiff, without reasonable or probable cause, for the breach of a bye-law of the Eastern Counties Railway Company, by refusing to deliver up his ticket.

The facts proved, so far as they are material to the present judgment, were, that on the morning of the 23rd of September last, the plaintiff paid for and received a ticket at the Eastern Counties Railway Station at Norwich for London. He travelled by the railway to Ely, when one of the Company's officers required him to produce it: after some time, and as to the circumstances connected with which the evidence was contradictory, the ticket was produced. It was a ticket dated the 3rd of September, and the plaintiff was thereupon taken into custody by an officer of the Railway Company, who did not then know his name *or residence, but who was informed of it immediately afterwards. On the following morning (Monday) he was taken before the defendant, a justice of the peace, who committed him to the house of correction, under a warrant in the Form (D.) in the schedule to the Act, 11 & 12 Vict. c. 43. The warrant stated that the plaintiff had been charged on oath before the defendant, for having travelled on the railway without having paid his fare, contrary to a bye-law of the Company, and commanded him to be taken to the house of correction and there kept until the 27th, and to be then brought before the justices at Petty Sessions to answer the charge.

on the next day (Tuesday) it was ascertained that the plainhad paid his fare and received a ticket, but that in conthe stamping machine being out of order the date

was marked as the 3rd instead of the 23rd.

The defendant being informed of this caused the plaintiff to be sent for from the house of correction and discharged him; but a summons was then served upon him requiring his appearance on the 27th to answer a charge for refusing to deliver up his ticket. He appeared in consequence, and was convicted in a penalty of five shillings and costs which he paid. The conviction was afterwards quashed by the Court of Quarter Sessions on appeal. The first count was for the imprisonment under the warrant of the 24th September. The CHIEF JUSTICE was of opinion that the imprisonment was lawful, but directed the jury to find the damages, and the verdict was entered for the defendant, but leave given to the plaintiff to move to enter the verdict for him for 201., which the jury found to be the damages. Mr. Palmer obtained a rule to enter the verdict accordingly, but we are of opinion that the ruling of the CHIEF JUSTICE was right, and that this rule ought to be discharged.

GELEN

v.

HALL.

The question depends entirely upon certain Acts of Parliament. The Railways Clauses Consolidation Act, 1845, *8 & 9 [ *397] Vict. c. 20, does not apply. It is confined to railways authorized to be thereafter constructed, and the Eastern Counties Railway was made under a previous Act, viz., the 6 & 7 Will. IV. c. cvi. Under the 158th section of this Act a bye-law had been duly made which imposed a penalty of forty shillings upon any one travelling upon the railway without having booked his place and paid his fare. By the 237th section, penalties are made recoverable before a justice, who is authorized to summon before him any person against whom complaint is made for any offence against a bye-law, and to proceed therein. By the 238th section, any officer of the Company is empowered to seize and detain any person whose name and residence shall be unknown to him who shall commit any offence against the Act, and to convey him before a justice without any warrant; and the justice is required to proceed immediately to the conviction or acquittal of the offender. Upon this Act it was argued on behalf of the plaintiff, and we think correctly, that the defendant had no authority to issue a warrant before conviction, that his authority was to issue a summons only, and that the authority to arrest in the first instance, under the 238th section, was confined to the officer of the Company, and the duty thereby imposed upon the justice was forthwith, upon the alleged offender being brought before him, to proceed to the determination of the case.

But the Act relied upon by the defendant as justifying the imprisonment was the 11 & 12 Vict. c. 43, one of the Acts

BOOTH

v.

KENNARD.

[96]

the specification enrolled is a good specification; or secondly,
whether, with reference to Heard's specification the invention
is new.
Heard's patent and specification were not before a
court of error, not having been given in evidence on the former
trial. We entirely concur in the decision of the Court of
Exchequer Chamber, as we understand it; but it appears to
us that the specification is the document which ascertains the
nature of the invention and the manner of performing it. The
plaintiff, by his specification, claims generally the invention of
making gas direct from oily substances, without obtaining the
oil previously and then making it from the oil; and he claims
to do this without reference to any method of doing it. We
think that Heard's specification clearly shows that as a general
fact, (viz. making gas direct from seeds and other oily matters),
the invention was not new, and it was decided in Bush v.
Fox (1) that where the want of novelty appeared distinctly from
documents or written instruments, such as a prior patent and
specification, it was for the Court to take notice of the identity
of the two supposed inventions, and the want of novelty, there-
fore, in the second. That Heard had discovered, and had com-
municated to the world, that gas might be made direct from
nuts and other oily and fatty substances, appears to us to be
quite clear from his specification enrolled. We think it was
not necessary to submit this to the jury and take their opinion
on it; it is, we think, the plain meaning of *the written
document, and we think it is for the Court to construe it;
and as this is part of the invention claimed by the plaintiff
in his second patent, we think the plaintiff's invention is so
far not new, and therefore the invention as a whole cannot
be claimed as new.

We are also of opinion that the claim is too large and that such claim cannot be supported. It is a claim to make gas direct from seeds-not in any mode pointed out in the specification, but generally. After the publication of Heard's specification no patent could be taken out for the process generally, though a patent might be taken out for a particular method of doing it. We think the plaintiff's second patent was not for any particular method of doing it, but for the doing of it by any method; and we think if even it had been new (which it turns out not to be), such a mode of specifying and claiming the invention cannot be sustained as a good specification.

We have not in our judgment taken any notice of the publication in Parke's Essays. It was contended that the Judge at the trial could not decide upon that, but ought to have left

(1) 101 R. R. 335 (5 H. L. C. 707).

1

it to the jury. We think it unnecessary to express any opinion
on this point, as we think that the construction and effect of
Heard's specification is clearly for the Judge or the Court,
and as that shows to our minds most satisfactorily that the
invention (as claimed by the plaintiff), is (in part at least)
not new, we discharge the rule on that ground without reference
to the publication in Parke's Essays.

We are therefore of opinion that the verdict for the defen-
dant ought to stand, and that the rule to set it aside and enter
the verdict for the plaintiff must be discharged.

Rule discharged.

SMITH AND ANOTHER v. VOSS.

(2 H. & N. 97—104; S. C. 26 L. J. Ex. 233; 29 L. T. O. S. 97; 5 W. R. 534.)
[Obsolete decision on repealed sections of Acts relating to the rule of the road
at sea (14 & 15 Vict. c. 79, s. 27, and 17 & 18 Vict. c. 104, ss. 296 and 297.]

BISS AND WIFE v. SMITH.

(2 H. & N. 105-114; S. C. 26 L. J. Ex. 295; 29 L. T. O. S. 164; 5 W. R. 610.)
A testator by a codicil, (made before the 1st January, 1838) which he
desired should be considered as annexed to and taken as part of his will,
devised certain freehold land to P., to hold to P., her heirs and assigns for
ever: Provided that in case she should depart this life without leaving
lawful issue of her body, then he gave and devised the same in manner and
form by him given and devised by his will. By his will he had devised the
said land to W. to hold to W., her heirs and assigns for ever: Provided,
nevertheless, that in case W. should die without lawful issue living at the
time of her decease, then the residue should go to and be possessed by P.,
her heirs and assigns for ever: Provided also, that in case W. and P. should
both die without leaving issue lawfully born of their bodies, then the said
land should go to the daughters of R. and F., and their heirs: Held, that
by the codicil P. took an estate tail.

ATTERBURY AND OTHERS v. JARVIE.

(2 H. & N. 114—122; S. C. 26 L. J. Ex. 178; 29 L. T. O. S. 128.) [Obsolete practice as to pleading equitable pleas.]

HENRY COOPER AND SARAH COOPER, EXECUTOR AND
EXECUTRIX OF W. COOPER, v. EDWIN WOOLFITT.

(2 H. & N. 122-127; S. C. 26 L. J. Ex. 310; 3 Jur. N. S. 870; 29 L. T. O. S.
212; 5 W. R. 790.)

A testator devised to W. certain land called the "Clay pits," and
bequeathed to C. and W. all his monies, &c., personal estate and effects
whatsoever and wheresoever, not therein specifically bequeathed. There
was no specific bequest of crops growing on the land: Held, that the
devisee of the land was entitled to the emblements growing upon it at the
time of the testator's decease.

THE declaration alleged that W. Cooper, in his lifetime and at the time of his death, was seized in fee of certain land called the

BOOTH

1.

KENNARD.

1857.

April 28.

1857.

May 8.

1857. May 7.

1857. May 4.

[ 122 ]