Greaves on a former day in this term moved to set that nonsuit aside, and for a new trial. The cases cited at the trial of Matthews v. Dickenson and Whitworth v. Hall do not apply to this case, as the proceeding here complained of as malicious was not of a civil but a criminal nature. The proceeding being of a criminal nature there could be no mutuality, as the quashing of the conviction would not have been evidence in the plaintiff's favour in an action of trespass brought against him by Baddeley, the owner of the land (a). The conviction, having been obtained on the evidence of one of the defendants, was not admissible in evidence in a civil proceeding between them and the plaintiff; Smith v. Rummens(b); where it was held, that "if A. is convicted before a magistrate on the evidence of B., although B.'s name does not appear on the conviction, he cannot avail himself of it in any civil proceeding between him and A.;" and Hathaway v. Barrow (c) is to the like effect. The effect of receiving such evidence would be to make a party a witness in his own cause. The Court took time to confer with the learned Judge who tried the cause, and the opinion of the Court was now delivered by VAUGHAN, B.-This was an action against the de fendants for maliciously and without probable cause laying an information before a magistrate against the plaintiff, and causing him to be imprisoned thereon. The declaration having set out the summons, and a conviction under the Game Act, 1 & 2 Will. 4, c. 52, s. 30, alleged, that a penalty and costs were imposed by the conviction, for the non-payment of which the plaintiff was committed to prison, and kept in custody there for (e) 1 Stark. on Evid. 234—2371 (b) 1 Camp. 9. (c) Id. 151. 1834. MELLOR v. BADDELEY. 1834. MELLOR V. BADDELEY. two months. The action was not brought against the defendant for any act done by him in his character as a magistrate, but for maliciously laying an information without reasonable or probable cause. The plaintiff's counsel in the course of his case, after having examined some witnesses, was interrupted by the statement of the counsel for the defendants, that they could produce a conviction under 1 & 2 Will. 4, c. 32, for trespassing in pursuit of game, which not having appealed against, pursuant to section 44 of the act, afforded a conclusive answer to the charge of malice and want of probable cause for the information. The plaintiff was nonsuited, on the ground that he ought to have appealed within the time limited by section 44 of that statute. We are of opinion, that, to support this action, it was necessary that there should have been proof of a prosecution which had been discharged and put an end to, and also of want of probable cause, and a damage sustained in consequence of the prosecution. The declaration contains counts, some for causing the plaintiff to be committed, and others for causing him to be arrested; but all substantially state the same cause of action; and the simple question is, whether this conviction unreversed must of necessity be an answer to the action, as shewing probable cause for laying the information complained of. It is unnecessary to refer to many cases, but there is one of Whitworth v. Hall (a), which is direct to the point. That was an action against a party for maliciously suing out a commission of bankruptcy, which was not proceeded in, and therefore not brought to an end. There Lord Tenterden said, "an action cannot be supported for maliciously holding to bail, without shewing that the proceedings were at an end, and yet the discharge from arrest is in the discre (a) 2 Barn. & Adol. 695, 697. tion of the Court;" and Littledale, J. added, "there is no distinction between the action for a malicious prosecution by indictment or for a malicious arrest, and one for maliciously suing out a commission of bankrupt. In all of them it is necessary to shew that the original proceeding which formed the alleged ground of the action is at an end." In this case the conviction under 1 & 2 Will. 4, c. 32, being summary, section 44 gives to the party convicted an appeal from it to the quarter sessions, provided he give the complainant a notice in writing within three days after such conviction, and shall also either remain in custody till the sessions, or within such three days enter into a recognizance to appear and try such appeal. The plaintiff in this case neither gave notice of appeal nor entered into such recognizance, but suffered the punishment awarded on the conviction. Therefore, as he acquiesced in it, that was evidence of probable cause. Rule refused. 1834. MELLOR บ. BADDELEY. PRIESTLEY V. WATSON. ASSUMPSIT, by the plaintiff, as clerk to the Under- On the 15th of takers of the Aire and Calder Navigation, against the August, 1828, defendant, an overseer of the township of Brotherton, for poor-rate was an increased assessed on certain premises, against which an appeal was entered at the October sessions, and respited to the following sessions in January. On the 15th of December, 1828, the overseers distrained for the increased rate; but, to prevent a sale, the amount was paid under protest, and the distress relinquished. The rate was subsequently reduced, in consequence of the decision of the Court of King's Bench, on a case sent up by the justices on the hearing of the appeal. It did not appear that any notice in writing of the appeal had been given to the overseers, pursuant to the 41 Geo. 3, (U.K.) c. 23, s. 2, before the levy. In an action brought by the party on whom the increased rate was made against the defendant, one of the overseers at the time of the levy, to recover back the excess above the last effective rate, as money had and received to his use.. Held, that as no notice of appeal had been given to the overseers, pursuant to the second section of the statute, the action could not be maintained. 1834. PRIESTLEY บ. WATSON. money had and received by the defendant to the use of the Undertakers, and on an account stated. Plea: the general issue. At the trial before Alderson, J., at the spring assizes for the county of York, 1833, the jury found a verdict for the plaintiff for 1637. 3s. 31d., subject to the opinion of this Court on the following case: On the 15th August, 1828, the overseers of the poor of the township of Brotherton, in the county of York, of whom the defendant was one, duly made and published a rate for the relief of the poor of the said township, in which they rated the said Undertakers at the sum of 150%. in respect of property of the annual value of 2000l. Against this rate the said Undertakers entered an appeal at the October sessions, 1828, which appeal was respited till the following sessions in January, 1829. On the 15th December, 1828, after summons and refusal to pay, a distress was duly made by the said defendant, who was one of the overseers of Brotherton, on a vessel belonging to the said Undertakers, for 150l., being the amount of the said rate; and, to prevent a sale, the sum of 1631. 3s. 3 d., being the amount of the said rate and of the expenses of the said distress, were paid to the defendant, being still overseer of the poor, who was at the same time served with the following written protest, signed by the Company's clerk, and expressed to be on behalf of the Undertakers of the Aire and Calder Navigation. "I do hereby tender you the sum of 150l., for which you have distrained the goods and chattels of the said Undertakers, and also the sum of 15l. 3s. 34d. for costs of distress, making together the sum of 1631. 3s. 3§d.; but I do on their behalf hereby protest against your right to recover the same by the illegal distress you have made; and I do hereby give you notice that an action will be brought for restitution and for damages. Dated 15th December, 1828." And the defendant on that occasion gave a receipt for the said sum of 165l. 3s. 34d., of which the following is a copy: "Received, the 15th December, 1828, of the Aire and Calder Navigation (by payment of J. P. S.), the sum of 150/. claimed and distrained for by the township of Brotherton for poor-rates, upon the Undertakers of the said Navigation, together with 137. 3s. 3 d. for costs attending the distraining the same. £150 O O 13 3 3 £163 3 3 (Signed) E. W., one of the overseers of the poor of the said At the January sessions, 1829, the rate was confirmed by an order of sessions, subject to a case for the opinion of the Court of King's Bench; and, whilst the decision of this case was pending, viz. on 27th March, 1829, another rate was made by the overseers of the said township of Brotherton, in which a similar charge was made on the said Undertakers in respect of the same property, assessed at the same annual value of 2000/.; against which rate the said Undertakers appealed to the then next sessions, which appeal was respited; but before the following sessions, viz. in Trinity term, 1829, the Court of King's Bench ordered that the order of sessions confirming the rate of the 15th August, 1828, should be quashed, and the said rate amended by an order, of which the following is a copy: "King's Bench.-Wednesday next after three weeks of the Holy Trinity, in the tenth year of King "Liberty of St. Peter's, York.-The King v. The Undertakers of the Aire and Calder Navigation.-Upon hearing the counsel on both sides, it is ordered that an order of sessions made on the appeal of the defendants 1834. PRIESTLEY 0. WATSON. |