Exch. of Pleas, city of Bristol, and the plaintiff, until the month of Jan 1841. GILLARD V. BRITTAN. uary, 1841, carried on the business of a tailor in the same city, and had purchased goods of Mr. Brittan, to whom, in December, 1840, after various payments made on account, he was indebted in a balance of £67, in part payment of which he gave his acceptance for £30, and was to provide for the remainder by weekly payments. On Sunday the 10th of January, however, the plaintiff, having first disposed of his furniture to a broker, left Bristol secretly, taking with him all his other effects. The defendant, after some difficulty, traced him to a place called Bradwick, near Collumpton, in Devonshire, where he had a brother-in-law living of the name of Rowland, and on the 31st of January, Mr. Brittan, accompanied by the other defendants, who were police officers, went to Rowland's house, and there, and in the adjoining house, found a quantity of ready-made clothes, which had been brought by the plaintiff, and the greater part of which Brittan was able to identify as having been made from the materials furnished from his shop; all these the defendants took away, amounting in value, according to the lowest estimate made by the plaintiff's witnesses, to £50 or £60. A few of them, which Brittan could not identify, were subsequently returned to the plaintiff. The learned Judge, in summing up, left it to the jury to say whether the plaintiff had sustained damage to a greater amount than the sum paid into Court, or whether that was not a sufficient compensation; and told them, that in estimating the damages, they must take into consideration all the circumstances of the case, and, amongst others, the plaintiff's debt to the defendant Brittan, which would be reduced pro tanto by the value of the goods taken away. The jury found a verdict for the defendants. In Easter Term, Erle obtained a rule nisi for a new trial, on the ground of misdirection, against which Bompas, Serjt., and Carrow now shewed cause. The Exch. of Pleas, jury had a right, in estimating the amount of damage which the plaintiff had sustained, to take into consideration all the circumstances of the transaction. If the re taking of the goods by the defendant Brittan would have been an answer to an action of debt against the plaintiff for the price, the direction of the learned Judge was correct; and it is submitted that it would. Where a man sells goods to another in the way of his trade, and has reasonable ground for believing that the party never intends to pay for them, he is entitled to re-take them, if he can do so without any breach of the peace; but even if such re-taking of them be wrongful, he surely cannot afterwards sue for the price. That being so, in an action of trespass for so taking them, it is a material circumstance in the consideration of the damages, that the debt is thus extinguished pro tanto. There are many authorities to shew, that in trespass the jury are at liberty to take into their consideration all the surrounding circumstances. Thus, they may consider the malicious intention of the defendant, and are not confined to the actual damage sustained by his act: Sears v. Lyons (a). Where the alleged trespass consisted in destroying a picture which contained a scandalous libel, it was held that the jury, in assessing the damages, might take that into consideration, and were only to award the plaintiff the value of the canvas and paint, and not the full value of the picture as a work of art: Du Bost v. Beresford (b). So, in trespass for breaking the plaintiff's house, and taking his woollen yarn, it was held that, under not guilty (before the new rules), the defendants might shew that the yarn was afterwards condemned under the stat. 17 Geo. 3, c. 56, in order to make out that the plaintiff could have no lawful property in it: Davis v. Nest (c): see also De Gondouin v. Lewis (d). It has been held, that, in case for selling goods distrained (a) 2 Stark. 317. (c) 6 C. & P. 167. (d) 10 Ad. & Ell. 117; 2 P. & D. 283. 1841. GILLARD บ. BRITTAN. 1841. GILLARD บ. BRITTAN. Exch. of Pleas, for rent without an appraisement, the measure of damages is not the full value of the goods, but their value minus the rent: Biggins v. Goode (a). Sowell v. Champion (b) will probably be relied on for the plaintiff: but that case is distinguishable, because there the trespass was committed in the irregular execution of process: and all that was decided was, that the plaintiff might recover the full value of the goods, not that he necessarily must. Erle and Cockburn, in support of the rule, were stopped by the Court. Lord ABINGER, C. B.-I am of opinion that the ruling of the learned Judge was wrong. It would lead to this consequence, that a party may set off a debt due in one case against damages in another. The verdict in this case does not at all affect the right of the defendant to recover the whole £67 due to him from the plaintiff. The learned Judge was, therefore, clearly in error in telling the jury that they might consider the debt to the defendant as diminished pro tanto by the value of the goods taken: he ought to have excluded that consideration altogether. The rule must be absolute for a new trial. ALDERSON, B.-No doubt the jury may consider the whole of the circumstances really belonging to the case; but here the learned Judge has directed them to take into consideration a circumstance which ought to be excluded, viz. the existence of a debt due from the plaintiff to the defendant. That consideration ought to have been excluded altogether: otherwise it is equivalent to allowing a set-off in trespass. GURNEY, B., concurred. ROLFE, B.-I am of the same opinion. It has been (a) 2 C. & J. 364. (b) 6 Ad. & Ell. 407; 2 N. & P. 627. 1841. GILLARD V. BRITTAN. contended, that where the party wrongfully retakes his Exch. of Pleas, own goods, he thereby debars himself from suing for the price. No authority has been cited which supports that position. It is unnecessary, however, to give any opinion on that point, because here the goods seized were in no respect the same as those which the defendant had supplied to the plaintiff, but were altogether altered in character; neither did it clearly appear that they were made of cloth which had not been paid for. Rule absolute. DOE d. LEGH v. ROE (a). set It A RULE had been obtained by the Attorney-General, calling upon the lessor of the plaintiff to shew cause why the declaration in ejectment in this cause should not be aside, and why all proceedings should not be stayed. appeared from the affidavits in support of the motion, that the present action was brought to recover possession of a house and land adjoining to Hurst Castle, in the county of Hants, in which a person of the name of Watson had been placed, in 1823, by the authority of the Board of Ordnance, as master gunner, in charge of the defences of Hurst Castle, which commands the passage of the Needles: that Hurst Castle had been, from the time of the reign of Henry VIII., a possession of the Crown of England; and that the premises sought to be recovered were part of the hereditary possessions of the Crown, and were in the possession of the Crown. The declaration had been served upon Mr. Watson, and also upon the Board of Ordnance. of Henry VIII., possession of England. An action of eject the Crown of ment having been brought to recover possession of this house and land, and the declaration served on W. and on the Board of Ordnance, the Court, on motion made on behalf of the Crown, set aside the declaration and stayed the proceedings. (a) This case was decided in Easter Term (April 22.) VOL. III. Q Q M. W. 1841. Exch. of Pleas, The affidavits in opposition to the rule denied that the property in question belonged to the Crown, and stated various acts of alleged ownership exercised over the locus in quo by the lessor of the plaintiff, and those under whom he claimed. DOE d. LEGH V. ROE. Erle and Bere shewed cause against the rule.-This ejectment is not, as is assumed for the purpose of this application, brought against the Crown, but against the officers of her Majesty's Ordnance, who, by virtue of the statutes 1 & 2 Geo. 4, c. 69, 3 Geo. 4, c. 108, and 2 Will. 4, c. 25, are in the nature of a corporation. By the 9th section of the 1 & 2 Geo. 4, c. 69, the officers of the Ordnance department are empowered "to bring, prosecute, and maintain any action or actions of ejectment, or other proceedings at law or in equity, for recovering any manors, messuages, tenements, and hereditaments by that act vested in them :" and by another branch of the same section, they are empowered also to "defend any action or suit in respect of, or in relation to, the said manors, messuages, tenements, or hereditaments." [Lord Abinger, C. B.-The object of that act was only to enable the Board of Ordnance to manage the Ordnance property, without being compelled to resort on every occasion to the Attorney or Solicitor-General.] The Board of Ordnance is, in this respect, in the same situation as an ordinary subject, and is liable to an action of ejectment. The action is not brought to try any title of the Crown, or to turn the Queen out of possession, but to establish affirmatively the title of the plaintiff to this particular portion of land. Suppose Watson had trespassed on the lands of the plaintiff, and had assaulted him, could he be allowed to set up the title of the Crown in answer to an action by the plaintiff, and thus obtain an injunction against him? It will be said for the Crown, that the proper proceeding on the part of the lessor of the plaintiff is by a mons |