« EelmineJätka »
1872. GRANT, respondent v. R. J. SHAW, cient description of the occupation of the June 7. ) appellant.
attesting witness. The Judge held that
the objection to the description of the Bill of Sale Act-Description of Resi
occupation of the maker of the bill of dence and Occupation of Assignor and sale was valid, and on that ground gave Attesting Witness-178 18 Vict.c. 36. 8. 1. judgment for the plaintiff without decid. S., who was a clerk in the Admiralty, was
ing upon the second objection; but gave described in a bll of sale given by himself
the claimant leave to appeal. and in the affidavit filed pursuant to 17 8.
6.' The question for the opinion of the 18 l'ict. c. 36. s. 1, as a
Court is whether the description
government clerk,” and the attesting witness, of whose description of the occupation of the maker
vernment clerk” is or is not a sufficient occupation there was no direct evidence, was
of the bill of sale. described as - insurance clerk :". Held, that the descriptions were sufficient.
Chapman, for the appellant, the claim.
ant under the bill of sale.—The question Appeal against a decision of the Deputy is whether the description of the occuJudge of the Brompton County Court pation of the assignor and attesting witupon the following facts.
ness is sufficient, under 17 & 18 Vict. c. 1. Certain goods and chattels were 36. s. 1, which requires in the affidavit seized by the bailiff of the County Court, filed with any bill of sale of personal chatunder an execution in an action wherein tels the "description of the residence and Grant is the plaintiff and G. J. Shaw is occupation of the person making or the defendant. R. J. Shaw thereupon giving, and of the attesting witness to claimed to be entitled to the goods and the bill of sale.” A clerk in the Admiralty chattels by virtue of a bill of sale, dated is a "government clerk," and the descripthe 3rd of November, 1869, and made tion could not mislead persons dealing between the defendant and the claimant, with the maker of the bill of sale. In whereby the defendant assigned the goods Hewer v. Cox (1), it is explained that the and chattels to the said claimant to secure object of the registration required by the repayment of 2801. with interest.
Act was so far to identify the assignor as 2. An interpleader summons was to prevent persons dealing with him from cordingly taken out, and came on for supposing that it was another person hearing before the Deputy Judge of the who had given the bill of sale. Taking said County Court on the 27th of March, this as the test there could have been no 1872.
doubt as to the identity of the assignor, 3. At the hearing the bona fides of
or of the attesting witness. He also cited the bill of sąle was proved, and the bill Allen v. Thompson (2), Routh v. Rouof sale and the affidavit of execution
blot (3) thereof were put in evidence.
Sills, for the plaintiff.—The description 4. G. J. Shaw is described in the bill of of the assignor as " Government clerk sale and in the affidavit as a “ Govern. is insufficient. The particular department ment clerk," and the attesting witness of the Government service in which he is described as an “ insurance clerk.”
wasengaged ought to have been specified — 5. G. J. Shaw in cross-examination Attenborough v. Thompson (4), Blackwell stated that he was a clerk in the Ad
v. England (5). miralty, but no evidence was adduced as
(1) 3 E. & E. 428; S. C. 30 Law J. Rep. (N.s.) to the occupation of the attesting witness
Q.B. 73. as an insurance clerk. Objection was (2) 1 Hurl. & N. 15; 8. c. 25 Law J. Rep. (N.s.) taken by the attorney for the plaintiff to Exch. 249. the validity of the bill of sale, on the (3) 1 E. & E. 850 ; 6. c. 28 Law J. Rep. (N.s.)
Q.B. 240. ground that the words Government clerk
(4) 2 Hurl. & N. 559 ; s. c. 27 Law J. Rep. were not a sufficient description of the
(N.s.) Exch. 23. occupation of the maker, and that the
(5) 8 E. & B. 541; s. c. 27 Law J. Rep. (N.s.) words insurance clerk were not a suffi. Q.B. 124, New SERIES, 41.-Q.B.
Per CURIAM (6).—The description of back into the parcel; and that on the the assignor is quite sufficient, as is also 29th of August she opened the parcel and that of the attesting witness, for there then found that the brooch was not in it. was no proof that the latter was engaged It was sworn by the defendant and others in any other occupation than that of that the parcel was left in his charge beinsurance clerk.
tween the 23rd and 25th of August;
that it was returned to the plaintiff's wife Judgment for the appellant.
on the latter day; that the contents were
counted over in her presence; that she Attorneys—W. Maynard, for appellant ; said that they were correct; that she Dod & Longstaffe, for respondent. took the parcel away with her, and that
the defendant did not take the brooch. The learned judge left the case to the jury, and a verdict was returned for the
plaintiff for 1501. 1872. 1
Torr (on March 19) moved for, and WELLS V. ABRAHAM. May 2.)
obtained, a rule nisi for a new trial, on
the ground that the evidence given at Trover-Trial of Action - Evidence tend
the trial tended to prove that the defen. ing to prove a Felony-Jurisdiction of Judge
dant had feloniously taken the brooch. at Nisi Prius.
He also moved upon an affidavit of the At the trial of an action of trover to
defendant, from which it appeared that recover damages for the conversion of a subsequently to the trial criminal prochattel, evidence was given on both sides. ceedings had been instituted against him The evidence tended to shew that the de- (defendant) in respect of the larceny of fendant had stolen the chattel. The plea the brooch, which proceedings were still vas, not guilty. The issue raised having pending. It was stated in the affidavit been left to the jury, a verdict was found
that the defendant bad neither converted for the plaintiff. A rule nisi having been
the brooch nor committed any larceny in granted calling upon the plaintif to sher respect of it. cause why there should not be a new trial
The Court granted a rule nisi, against on the ground that the judge ought to have which cause was now shewn by nonsuited the plaintiff or to have directed a Aspinall.—Neither the plaintiff nor his verdict for the defendant, this Court dis- wife have instituted the criminal proceed. charged the rule, holding that the judge had ings against the defendant. They have acted properly in leaving the case to the
been compelled by the public authorities jury, and that the defendant could not to come forward as witnesses for the procomplain of his having done so.
secution. No suggestion was made at
the trial that the learned judge should Declaration in action of trover nonsuit the plaintiff, or that he should inbrought to recover damages for the con
terfere. The defendant gave evidence, version of a gold brooch.
and denied that he had taken the brooch. Plea, not guilty
[LUSH, J.-Suppose at the end of the At the trial which took place before plaintiff's case I had interposed, and had Lush, J., at the Liverpool Spring Assizes, said that the matter looked like a felony, 1872, evidence was given on both sides.
the defendant would have said_“I am It was sworn on behalf of the plaintiff going to call witnesses, and to shew that that his wife had on the 25th of August,
I have not stolen the brooch.” He would 1871, handed to the defendant a parcel,
have been very angry if I had replied containing, amongst other things, the “I do not believe you ; I shall nonsuit brooch in question ; that the defendant the plaintiff, and you must be prosecuted opened the parcel, and took out the con- for felony." BLACKBURN, J.-The potents; that he did not put the brooch
sition of the defendant is this : he says
that the evidence points to his being a (6) Blackburn, J.; Mellor, J.; and Lush, J. felon, which he denies, and yet he says
that the judge ought to have nonsuited the breast of the judge at the trial to tako the plaintiff. That would be very strange. the objection in furtherance of public Cockburn, C.J.-How can the judge at justice. The defendant cannot start the Nisi Prius try anything but the issues on objection pow. the record ? It may be that the private Torr, in support of the rule.—The law remedy is absorbed in the greater public requires that the criminal proceeding interest of the criminal proceeding, but against a man who has committed a felony I am unable to see how the judge at Nisi should precede the civil remedy. In Prius can interfere proprio vigore. It 1 Hales P.C. 546 it is stated as to retaking may be that an application could be made of goods stolen: “ If A. steal the goods of to the Court to which the record belongs. B., and B. take his goods of A. again to No suggestion was made at the trial that the intent to favour him or to maintain the defendant ought to be prosecuted.] him, this is unlawful, and punishable by
In Stone v. Marsh (1) the question was fine and imprisonment, but if he tako somewhat discussed, but the precise point them again without any such intent, it is did not arise. In Crosby v. Leng (2) the no offence-Mich. 16 Jac. B. R. Higgins defendant had been acquitted on an in- and Andrews (4), but justifiable. But after dictment for a felonious assault upon the the felon is convicted, it can be no colour plaintiff. The plaintiff was allowed to of crime to take his goods again when recover in an action subsequently brought he finds them, because he hath pursued against the defendant, there being no- the law upon him, and may have his writ thing to shew that he had colluded in of restitution if he please.” It is subprocuring the acquittal. Lord Ellen- mitted that if the plaintiff in proving his borough, C.J., said—“The policy of the case shews that the act of the defendant law requires that before the party injured amounts to a felony, the judge should by any felonious act can seek civil redress interfere, and nonsuit the plaintiff, or for it, the matter should be heard and stop the case. The rule has been made disposed of by the proper criminal tri. with a view of preventing persons from bunal, in order that the justice of the selfishly pursuing their own interests inconntry may be first satisfied in respect stead of protecting the interests of the of the pablic offence. . . Here the public. In Com. Dig. Tit.“
“Action uponthe defendant having been before tried and case” (B. 5), the following passage apacquitted of the felony, the objection pears——“ So an action upon the case lies founded upon the general policy of the not for a wrong which is a felony.” In law does not apply.” The case is not an Dawkes v. Coveneigh (5), where the defenanthority upon which the present defen- dant had been convicted of felony for dant's contention be supported. taking 2501. out of the house of the plainWhite v. Spettique (3) was a case in which tiff, and had been burnt in the hand, and the plaintiff brought an action against an action of trespass quare clausum fregit, the defendant, a bookseller, to recover and for carrying away the 2501., was books which had been stolen from the afterwards brought against him, Rolt plaintiff, and purchased innocently by the C.J., said—“This is after a conviction, defendant. The objection was unsuccess- and so there is no fear that the felon shall fully taken that the plaintiff ought to not be tried ; but if it were before convichave prosecnted the thief before pro- tion, the action would not lye, for the ceeding by action against the defendant. danger the felon might not be tryed. And Upon the whole it is submitted, first, that there is no inconvenience if the action do the anthorities do not shew that the de- lye; and since he could not have had his fendant is entitled to insist that a nonsuit' remedy before, he shall not now lose it; should be entered against the plaintiff, and now there is no danger of compoundand, secondly, that if it be so, it lies in ing for the wrong.” The rest of the judges (1) 6 B. & C. 551.
agreed with Rolt, C.J., and so judgment (2) 12 East 409. (3) 13 Mee. & W. 603; 8. c. 14 Law J. Rep.
(4) 2 Rolle Rep. 65. (x.s.) Exch. 99.
(5) Styles 346.
was given for the plaintiff. The rule is the defendant ? How can he come here referred to in the notes to Ashby v. White and set up his own turpitude ? The (6)—“And though the damage and wrong public have no right to come to this be excessive, and peculiarly concern an Court to complain that there has been a individual, still if it amount to a felony, the miscarriage in the course of the trial of private remedy is suspended until public an action. justice shall have been satisfied ; a very In Wellock v. Constantine (8), which wholesome rule, and tending to prevent was an action for assaulting the plaintiff the composition of felonies under the pre- and forcibly violating and carnally knowtence of seeking remedy by action.” And ing her, after the evidence of the plainthe editors add: “This rule, however, does tiff, Willes, J., ruled that the action was not apply to actions against others than not maintainable ; for if a rape was the person guilty of the felony.-White proved, that could not form the subject of v. Spettigue (3); and the statute 9 & 10 à civil action, but the plaintiff must proVict. c. 93, for compensating the families ceed criminally; if the connection took of persons killed by accidents, whilst it place with the consent of the plaintiff, recognises the general rule, expressly en- no action would lie, but she must apply acts that it shall not apply to actions for an order of affiliation. Having intibrought pursuant to its provisions." mated that he should direct a verdict for
[BLACKBURN, J.-Dawkes v. Coveneigh the defendant, the plaintiff's counsel (5) simply shews that the action ought elected to be nonsuited. Pollock, C.B., to be stayed by the summary interference and Bramwell, B., held that the direction of the Court, it is not an authority to was right. In White v. Spettigue (3), support the present application. Lush, Rolfe, B., said, “I cannot agree to the law J.-In Lutterell v. Reynell (7), which was as laid down by Best, C.J., in Gimson v. trespass for taking money, the jury gave Woodfull (9), that a plaintiff is bound in 6,0001. damages ; a new trial was moved the first instance to do his duty to the for on the ground that the evidence, public by prosecuting, and that it actions if it were true, destroyed the plain- like the one he was then trying could tiff's action inasmuch as it amounted be maintained, there would be no more to proof of the defendants being guilty criminal prosecutions. I think that is of felony, and that the law will not suffer too general, and I cannot accede to the a man to smother a felony and bring tres- doctrine. I think the true principle is, pass for that which was a kind of robbery. that where a criminal and consequently “But the Lord Chief Baron declared, and an injurious act towards the public, has it was agreed that it should not lie in the been committed, which is also a civil mouth of the party to say that he himself injury to a party, that party shall not be was a thief, and therefore not guilty of permitted to seek redress for the civil inthe trespass; but perhaps if it had ap- jury to the prejudice of public justice, peared upon the declaration, the defen- and to waive the felony and go for the dant ought to have been discharged of conversion.” the trespass.
Sed quære, what the law [BLACKBURN, J.-In Gimson v. Woodwould be, if it appeared upon the plead. fulī (9) Best, C.J., did order a nonsuit ing, or were found by special verdict." under circumstances very like those now That is an authority against you.]
before us, but I cannot see why the deBut it recognises the rule and shews fendant should be allowed to take advanthat the judge ought to take the matter tage of his own guilt.] into his own hands. The defendant is In Stone v. Marsh (1) no doubt the not setting up the felony, but merely question was scarcely raised. A power of submitting that the judge should have attorney was forged by Fauntleroy, who done it.
was dead at the time the action [COCKBURN, C.J.-But what is that to
(8) 2 Hurl. & C. 146; 8. c. 32 Law J. Rep. (6) i Smith's L. C. 3rd ed. 132b.
(n.s.) Exch. 285. (7) i Mod. 282, 283.
(9) 2 Cr. & Ph. 41.
brought. But Lord Tenterden, C.J., in barre de son appeal, car le owner al delivering the judgment of the Court, primes avoit election a porter trespass on said: “ There is indeed another rule of the appeal,” &c.] law of England, viz., that a man shall not It is clear that the rule exists, and be allowed to make a felony the founda- Wellock v. Constantine (8) is a direct tion of a civil action, not that he shall not authority to shew that the proper course maintain a civil action to recover from a to be pursued would have been to nonthird person that which has been feloni- suit the plaintiff. ously taken from him, for this he may do if there has not been a sale in market COCKBURN, C.J.-I am clearly of opinion overt; but that he shall not sue the that this rule should be discharged. felon. . . . Now public policy requires There is no doubt that there has been a that offenders against the law shall be rule of long standing, perhaps coeval with brought to justice, and for that reason a the law of England, that where a given man is not permitted to abstain from
state of facts amount at one and the same prosecuting an offender, by receiving time to an infringement of the civil rights back stolen property, or any equivalent of an individual, and also to a felonious or composition for a felony, without suit, offence against the rights of the public and of course cannot be allowed to main- —that the right of redress for the civil tain a suit for such a purpose.
injury must remain in abeyance until the [BLACKBURN, J.-In Markham v. Cobb party who has inflicted the injury has (10) the plaintiff brought an action of been prosecuted by the party injured. trespass against the defendant-"Pur But although that be the rule, it becomes enfriender de son meason, et pur prisel de a very different matter when we consider 3,0001. in pecuniiss numeratis, le defen- how that proceeding is to be enforced. dent plede en barre que le dit plaintiff It may be that the person against whom procure lui destre indite et convict devant the prosecution for felony is impending, les Justices de Gaol delivery del county may have a right to shew that he is in de Nottingham de eo quod prædict de- the position of a felon, and thus to stop fendant burglayer enfriender le dit mea- the action against him. I do not say that son, et prist 3,0001. felonice hors de ceo this is so, because it strikes me that it que fuit mesme le trespass, sur que le would be allowing a party to shew his plaintiff demurre, apres divers arguments own criminality. It may be that an apal barre, judgment fuit done per Dodridge plication might be made to the summary Jones et Whitlock en absence del Chief jurisdiction of the Court which, in all Justice pro querente, pur default de pled- cases of abuse or oppression, would be ing.” On the second point, the one
willingly exercised. It may be that, supwhich is material to the present case, the posing the case of a person who, neglectjudges differed in opinion—“ Dodridge ing his duty to prosecute, preferred, from and Whitlock, prima facie fuerunt de a selfish regard to his own interests, to opinion que coment le defendant fuit bring a civil action instead of prosecuting, conviet de felony, pur prisel de biens the Crown might call upon the Court to felonice, tamen le owner del biens poet intervene and prevent the plaintiff from aver action de trespass vers le party auxi recovering and obtaining the fruits of the et recover ses damages,” &c.
action thus improperly brought. But it prima facie e contra. . . . Le sole diffe- is not necessary now to consider in what rence est sur cest point, quant home est way the rule might be enforced, for the indite pur prisel de argent de J. S. et question which we have to consider is soit indite et convict al suit le Roy sans
my brother Lush, who tried this evidence, ou prosecution del J. S. ou en cause at nisi prius, was called upon to ceo case J. S. avera trespass. Dodridge interfere and to nonsuit the plaintiff
, or if et Whitlock tient come avant est dit, que the plaintiff refused to be nonsuited, to J. S. poet aver trespass coment il fuit direct the jury to return a verdict for the
defendant. I am at a loss to see from (10) W. Jones, 147.
what source any such power could spring.