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have a new one substituted for it. Mildmay v. Smith (7), in Saunders's Reports, is quite a different case from the present one. There error was brought upon a decision of the Common Pleas in a scire facias against the sheriff to obtain execution against him for 1601., the value of goods which, according to the return, had been seized by him and afterwards rescued. It was held that the sheriff could not in this proceeding deny the truth of his return, for by the return he had put the plaintiffs to the end of their suit, as they could not sue a new execution, except only for the surplus of their debt over and above the 160l. And in the case referred to in the note, Clerk v. Withers (8), it was merely held that where the sheriff had returned that he had seized goods to the value of the debt, and the execution creditor died before the sale, the judgment debtor was not entitled to have the goods back again. It is obvious that in neither of these cases is it laid down that the sheriff is estopped in an action for a false return. Then we have the authority of Remmett v. Lawrence (3), where there is a dictum of Lord Campbell, that if the sheriff should return that he had taken the goods of the execution debtor he would be estopped by this statement in an action for a false return. But this observation was not necessary for the decision of the case; and with regard to the two previous cases, Sir Edward Williams, who refers to them in Levy v. Hele (4), had no occasion to consider the difference between a proceeding where a return is a collateral matter, and one where it is a matter in the same suit.

MELLOR, J.—I am of the same opinion. Mr. Field referred at the trial to the cases in Saunders's Reports; and it was upon the authority of these cases that I granted leave to move, though with much hesitation. I agree that the case is no exception to the ordinary rule, that in an action of tort actual damage must be proved.

Rule discharged.

Attorneys-J. Briggs, agent for J. W. Smith, Nottingham, for plaintiff; Robinson & Preston, agents for Berridge & Morris, Leicester, for defendant.

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Public Health Act, 1848 (11 & 12 Vict. c. 63), ss. 20, 24-Notice of Voter's Qualification as "Owner"-Nomination Paper -Description of Nominator.

By the Public Health Act, 1848 (11 & 12 Vict. c. 63), s. 20, at the election of members of a local board of health, the ratepayers in respect of property in the district, and the owners of such property, shall be entitled to vote according to a certain scale; and any person who is owner and also occupier of the same property, shall be entitled to vote both in respect of the ownership and occupation; and no owner shall be entitled to vote as such unless, fourteen days at least previously to the day of tendering his vote, he shall have delivered to the clerk a statement in writing of his name and address, and containing a description of the nature of his interest in the property creating the qualification. By section 24 any person entitled to vote may nominate for the office of member of the local board himself, if qualified to be elected, or any other person or persons so qualified (not exceeding the number of persons to be elected); and every such nomination shall be in writing, and shall state the names, residences, calling, or quality of the persons nominated, and shall be signed by the party nominating, and be sent to the chairman :-Held, that the statement of the voter's qualification as owner cannot be delivered once for all, but must be delivered before every election.

At an election of members of a local board a nomination paper was signed, "A. B. being duly qualified as owner in the district." A. B. was not qualified as owner, but was qualified as ratepayer: -Held, that the nomination was valid, as the Act did not require the qualification of the nominator to be stated, and the words " as owner" might be rejected as surplusage.

Motion for a rule for G. Morgan to shew cause why an information in the nature of a quo warranto should not issue, calling upon him to shew cause by what authority he exercised the office of member of the local board of health for the district of Sheerness.

It appeared from the affidavits that in

September, 1871, there was an election of four members of the local board for the district of Sheerness, under the Public Health Act, 1848 (1), when John Cole

(1) By the Public Health Act, 1848 (11 & 12 Vict. c. 63), s. 13, a fixed number of persons are to be elected by the owners of property and ratepayers, to be members of the local board under the Act.

By s. 20, at every such election the ratepayers, in respect of property in the district for which the election is held, and the owners of such property, shall be entitled to vote according to a prescribed scale.

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And any person who is owner and bona fide occupier of the same property shall be entitled to vote, both in respect of such ownership, and of such occupation; and the votes shall be given, taken, collected, and returned according to the directions hereinafter contained; and the majority of the votes actually collected and returned shall be binding on the district for which the election is had; and whosoever shall not vote or shall not comply with such directions shall be omitted in the calculation of votes, and be deemed to have had no vote.

And no owner whosoever shall be entitled to vote as such, unless fourteen days at least previously to the day of tendering his vote he shall have delivered to the clerk a statement in writing of his name and address, and containing a description of the nature of his interest or estate in the property giving the qualification, and a statement of the amount of all rent-service (if any) which he may receive or pay in respect thereof.

By ss. 21, 22, 23, the elections are to be conducted by the chairman of the local board, who is to have power to inspect the rate books, and may cause an alphabetical list of the voters to be made, and give a notice containing certain particulars of the election.

By s. 24 any person entitled to vote may nominate for the office of member of the local board himself (if qualified to be elected), or any other person or persons so qualified (not exceeding the number of persons to be elected), and every such nomination shall be in writing, and shall state the names, residence, calling, or quality of the persons nominated, and shall be signed by the party nominating, and be sent to the chairman. And if the number of persons nominated shall be the same or less than the number of persons to be elected, such persons (if duly qualified), shall be deemed to be elected, and shall be certified accordingly by the chairman under his hand, but if the number so nominated exceed the number to be elected, the chairman shall cause voting papers, in the form contained in the schedule A to the Act, to be prepared and filled up, and shall insert therein the names of all the persons nominated, in the order in which the nomination papers were received.

The form of voting paper in schedule A has columns for the initials of the voter, names,

and three others were nominated by A. W. Marks. The nomination paper gave the names, residences, &c., of the persons nominated, and had at the foot of it, "I, being duly qualified to vote as owner in the district, nominate the above to be members of the local board for the district. A. W. Marks." At the date of the nomination, Marks was the owner of property in Sheerness, and a ratepayer.

In September, 1870, he sent in the particulars required by section 20, to entitle him to vote as owner, and his name was entered in the register, but he had not since then delivered a second statement. The voting papers were collected on September 29, 1871, and the chairman afterwards declared that four persons, of whom G. Morgan was one, had been elected, and that Cole, although he had a majority of votes over Morgan, was not duly elected, on the ground that his nomination was void, as Marks had not furnished the statement required by the statute, and was therefore not qualified to vote as owner. The motion previously mentioned was then made by Cole for the purpose of disputing the election.

Michael, in support of his motion (on Nov. 4), contended that the nomination was good, first on the ground that Marks was entitled to vote, although he had not fourteen days before the election sent in the particulars of his qualification, for his name still remained on the register, and his qualification was the same as it had been when he sent in his notice in 1870. The object of the statute was satisfied by a single notice. Secondly, that the words "as owner," might be rejected, for as a fact Marks was qualified as ratepayer, and section 24 did not require that his qualification should be inserted in the nomination paper.

The Court were, however, of opinion that on the true construction of the statute, the particulars given for the election in 1870 were not available for the election in 1871, but that it was necessary to furnish

residences and quality or calling of the persons nominated, and for the names and addresses of the nominators. At the top are columns for the names and addresses of the voters, and the number of his votes as owner and as ratepayer.

the statements before every election. On the second ground they granted a rule. Merewether (on Nov. 20) shewed cause, and contended that by analogy to a voting paper, the form of which is prescribed by the statute, it was necessary that a nomination paper should state the qualification of the person nominating. If the number of persons nominated do not exceed that of the persons to be elected, the nomination virtually amounts to a vote-Regina v. Parkinson (1), and if it be equivalent to a vote it is clear that the requirements as to voting papers have not been observed. It is most unreasonable that after the nominator has relied upon his title to vote as owner, and this qualification has been found to be insufficient, that it should be necessary to search the rate book to see whether he is qualified as ratepayer.

Michael, in support of the rule, was not heard.

qualification, it will be necessary in every case for the officer to see whether the nominator is properly qualified, so that no additional trouble is imposed upon him. Therefore, although the nominator has gone out of the way to describe himself as owner, yet inasmuch as he appears to have been duly qualified as ratepayer, the description may be rejected as surplusage, and the chairman was bound to receive the nomination.

MELLOR, J.-I am of the same opinion. If the statute had contained no provision whatever as to the form of the nomination paper, there might have been some foundation for the arguments of the defendant, but directions are given as to particulars which are to be inserted, and the nominator is only required to sign the paper. Then we find that a form is prescribed for the voting paper, but not for the nomination paper. I think, therefore, that there is no foundation for the argument that the qualification of the nominator ought to be inserted.

LUSH, J., and HANNEN, J., concurred.
Rule absolute.

Attorney-Brook & Chapman, agents for R. H.
L. Mole, Sheerness, for relator; A. Scott
Lawson, for defendant.

1871.

THE QUEEN v. SIR S. R. GLYNNE,
BART., AND OTHERS, JUSTICES
FLINTSHIRE, AND WILLIAM

COCKBURN, C.J.-I am of opinion that the rule must be discharged. The question turns upon the construction of section 24 of the Public Health Act, 1848, which is as follows: [His Lordship read the section. There is nothing in this section which requires that the person nominating shall state in what respect he is qualified, but it is required that the name, residence, calling or quality of the person nominated, should be stated in the nomination paper, so that we may assume that if it had been meant that the person nominating should state his qualification, Nov. 16. OF there would have been an express provision to that effect. Mr. Merewether has argued that the nomination operates as a vote, so that the same particulars should be required in the nomination paper as in the voting paper. It may be desirable that this should be the law, but the legislature has not provided for it. It has also been urged that it is a great trouble for the returning officer, in a case where the nominator is wrongly described as owner, to have to search the rate book to see whether the description is true. But if it is unnecessary, according to the statute, for the nominator to state his

(1) 37 Law J. Rep. (N.S.) Q.B. 52. NEW SERIES, 41.-Q.B.

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SMITH.

Bastardy Appeal Second OrderJurisdiction of Justices-7 & 8 Vict. c. 101; 8 & 9 Vict. c. 10.

Upon the hearing of an appeal to the Quarter Sessions against an order made by justices in Petty Sessions adjudicating the appellant to be the putative jather of a bastard child, the respondent, the mother of the child, and witnesses on her behalf were examined, after which the Court decided that the evidence of the respondent was not corroborated with regard to the main issue in any material point, and quashed the order :-Held, that this was a decision upon the merits and was final, so that a fresh

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order could not be obtained by the respondent against the appellant.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. 58.]

1871. Nov. 28.

SWEETING (appellant) v.
TURNER (respondent).

Landlord and Tenant-Rent--Sale by Auction-Liability of Auctioneer.

The plaintiff and M. carried on business in premises rented by M. of C. Being about to dissolve partnership, their respeetive attorneys gave a joint order to the defendant, an auctioneer, to take possession of the goods upon the premises, to "realise the same with all convenient dispatch, and to hold the proceeds as stakeholder until we shall join in directing you as to the disposition thereof." The defendant took possession, and sold the goods by auction, under conditions, one of which was as follows: "Each lot shall be paid for immediately after the sale and previously to its removal. Each and all lots shall be taken to be de livered at the fall of the hammer, after which time they shall remain and be at the exclusive risk of the purchasers, and the auctioneer shall not be called upon for compensation for any injury or loss sustained after that time." After the lots were sold, but before all had been taken away by the purchasers, the agent of C. told the defendant that he could not allow the things to go until he was paid rent then in arrear. The rent was the private debt of M., who asked the defendant to pay it out of the proceeds of the sale. The plaintiff gave the defendant notice not to pay the rent, and the attorneys gave him notice to pay the net proceeds to the plaintiff, he being entitled to the whole. The defendant paid the rent to C. and the balance of the proceeds to the plaintiff-Held, that the defendant was not justified in paying the rent, and that the plaintiff was entitled to maintain an action against him to recover the residue of the proceeds.

Upon appeal against the decision of the Judge of the County Court of Suffolk

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This was an action to recover the sum of 371. 15s. 7d.

The following are the particulars of the plaintiff's claim delivered in the action:

The plaintiff claims 377. 15s. 7d. for money payable to the plaintiff for money received by the defendant to the use of the plaintiff.

The plaintiff claims the same sum, for that on the 3rd day of December, 1870, the plaintiff and one Josiah Garrard Matthews being then about to dissolve partnership, by the hands of their respective attorneys wrote and delivered a joint note, or letter of instructions, to the defendant, in the words and to the effect following:

"We authorise and request you to take possession of the stock-in-trade and effects belonging to Messrs. Matthews & Sweeting, and to realize the same with all convenient despatch, and to hold the proceeds as stakeholder until we shall join in directing you as to the disposition thereof." Whereupon the defendant took possession of the chattels and effects; and on the 7th day of December, 1870, realized the same by public auction, and the net proceeds thereof, as appearing by the account stated by the said defendant, amounted to the sum of 761. 6s. 10d. And that on the 10th day of December, 1870, the plaintiff and the said Josiah Garrard Matthews, by the hands of their respective attorneys, wrote and delivered a further joint note to the defendant in the words and to the effect following: "We direct you to pay the net proceeds of the 7th instant in pursale your suance of our instructions, of the partnership effects of Messrs. Matthews & Sweeting, to Messrs. Aldous & Pearce, on behalf of Mr. G. A. Sweeting, he being entitled to receive the whole of such net proceeds." Yet that the defendant did not so pay such proceeds, though lawfully demanded, but wrongfully and contrary to such directions paid the said sum of 371. 15s. 7d., part of such proceeds, to one Cobbold, for rent, as appears by the said account stated, remitting to the

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plaintiff only the sum of 381. 11s. 3d., the balance after such wrongful payment. The facts proved on the hearing were as follows:

On the 1st day of September, 1870, the plaintiff and Josiah Garrard Matthews entered into partnership for the term of ten years, as auctioneers, carrying on business upon premises known as the Auction Mart, Upper Orwell Street, Ipswich. The deed of partnership was put in. It did not contain any arrangement about the rent of the premises, which were then, and had previously been, in the occupation of Matthews, as tenant, at 801. per annum, payable quarterly, on the 1st day of January, the 1st day of April, the 1st day of July, and the 1st day of October. Subsequently to the 1st September it was verbally agreed between Matthews and the plaintiff, but without communicating with the landlord, that part of the rent should be borne by the firm, Matthews paying 201. per annum for such part of the premises as were in his own occupation, and not required for the partnership purposes.

Within three months after the commencement of the partnership violent quarrels arose between the partners; and in November last it was arranged between them that the partnership should be dissolved, and the partnership effects sold. With this view the following authority was given to the defendant, an auctioneer, residing in Ipswich:

"Ipswich, 3rd December, 1870. "To Mr. G. A. Turner. "We authorise and request you to take possession of the stock-in-trade and effects belonging to Messrs. Matthews & Sweeting, and to realize the same with all convenient despatch, and to hold the proceeds as stakeholder until we shall join in directing you as to the disposition thereof.

"For Matthews, A. F. VULLIAMY. "For Sweeting, R. PEARCE." This authority was drawn up by the two solicitors, Mr. Vulliamy and Mr. Pearce, in the defendant's office, and he was made fully aware that he was to take possession of the partnership effects, to hold them against Matthews, as the plaintiff did not live at the Auction Mart,

and that the partners had become extremely hostile to each other.

On the same 3rd day of December, the defendant, in pursuance of his authority, took possession of the goods, except some fixtures which the plaintiff claimed as partnership property, but which Matthews alleged did not belong to the firm.

Defendant was present at a violent altercation between the partners about these fixtures.

On Wednesday, the 7th December, the defendant, in pursuance of the authority of the 3rd December, 1870, held an auction at the Auction Mart of the effects of which he had taken possession, selling them under certain printed particulars and conditions of sale, containing, amongst other stipulations, the following:

"Each lot shall be paid for immediately after the sale, and previously to its removal. Each and all lots shall be taken to be delivered at the fall of the hammer, after which time they shall remain and be at the exclusive risk of the purchaser, and the auctioneer shall not be called upon for compensation for any injury or loss sustained after that time."

The lots, 118 in all, fetched 971. 118. 4d. No single lot fetched 107. After the sale was over but before all the things had been removed by the respective purchasers, Mr. Henry Sidney, the agent of the landlord of the premises, stopped the defendant just as he was leaving the mart, and said he could not allow the things to go until he was paid the rent then in

arrear.

The defendant said he had sold all the things and could not pay it without some authority, and both Sidney and defendant went to speak to Matthews who was on the premises, and Sidney said to him he must distrain unless the rent were paid. Matthews said it had better be paid out of the proceeds of the sale, and asked defendant to pay it. Defendant without further enquiry, and without seeing either of the solicitors, Mr. Vulliamy or Mr. Pearce, or the plaintiff, at once said to Sidney he would pay the rent out of the proceeds of the sale, and Sidney went away satisfied. The rent then due was the private debt of Matthews, and was 401. for a half year's rent, which was in

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