dar month at least before the commencement of the action; and no plaintiff shall recover in any such action, if tender of sufficient amends shall have been made before such action brought, or if after action brought a sufficient sum of money shall have been paid into court, with costs, by or on behalf of the defendant." [Jervis, C.J. The words "in pursuance of this act" must receive the same construction as "in execution of or under the authority of this act," in Cook v. Leonard. (a)] The subject underwent much discussion in Hughes v. Buckland (b), where Parke, B., says: "The act is general in its terms, and gives protection to all persons for all acts done in pursuance of it. Those words do not mean acts done in strict pursuance of the act, because, in such a case, a party would be acting legally, and therefore would not require protection. The words, therefore, must be qualified by the decisions; and then the meaning will be, that a party, to be entitled to protection, must bonâ fide and reasonably believe himself to be authorised by the act." [Williams, J. The defendant here was acting in the supposed performance of his duty to the plaintiff in the county-court. Does not that bring him within the protection of the act?] Clearly not, unless he was acting reasonably. The definition of that word, as given by the chief justice, was not the correct one, viz. that it must be taken to mean "according to his reason," as contradistinguished from "capricious." [Jervis, C. J. I left it to the jury to say whether the defendant acted bonâ fide. Williams, J. In Horn v. Thornborough (c), it was held, that a person who causes the apprehension of another for a malicious trespass to property of which the former is the reversioner only, is entitled to notice of action under the malicious trespass act, 7 & 8 G. 4. c.

(a) 6 B. & C. 351., 9 D. & R. 339.

(b) 15 M.&W.346., 3 D. & L.

702.

1851.

BOOTH

v.

CLIVE.

(c) 3 Exch. 846.

1851.

Воотн

บ.

CLIVE.

30., if he causes such apprehension under a boná fide belief that he is acting in pursuance of the statute. I observe Baron Parke in that case omits the word "reasonably." Jervis, C. J. Mr. Baron Rolfe says: "I am reported to have said, in Hughes v. Buckland, and I have no doubt correctly, that all who bonâ fide and reasonably think they fill the character mentioned in the several statutes, and act in pursuance of them, are protected;' and that is a position which has been adopted by the court of Queen's Bench. In fact, a man's reasonably believing himself to be the owner of the property injured, is one ingredient in enabling us to arrive at the conclusion as to his bona fides." Cresswell, J. That is very like Lord Tenterden's use of "reasonable care and caution,"-only as an ingredient towards shewing good faith. In Wedge v. Berkeley (a), there was no reasonable ground of suspicion, and yet the magistrate was held entitled to notice under the 24 G. 2. c. 44. s. 1.] In Hopkins v. Crowe (b), a hired driver of a cabriolet, having brought home a horse apparently much ill-used by him, the owner's son (in the owner's absence) called in a policeman, and told him that the driver had ill-used the horse the policeman said, that, if the complainant charged the driver with cruelty to the horse, he would take him into custody; the complainant said "I do;" and the policeman apprehended the driver, under the 5 & 6 W. 4. c. 59. s. 9.: and it was held, that the complainant must be considered, not as a party giving information to the officer, in consequence of which the plaintiff was arrested, but as a principal causing the arrest to be made: and that he was not entitled to notice of action, which the statute required to be given to persons sued for any thing done in pursuance of it. There,

(a) 6 Ad. & E. 663., 1 N. & P. 665.

(b) 4 Ad. & E. 774., 7 C. & P. 373.

the defendant really believed that he was acting in pur-
suance of the act, but not upon such ground as a reason-
able man would found his belief
Kine v. Ever-
upon.
shed (a) is an authority to the same effect. Can the
defendant here be said to have been acting in pursuance
of the act, after the prohibition was served upon him?
From that moment, he had no power to act under the
statute the proceeding was coram non judice: Bevan
v. Prothesk. (b) This prohibition issued from the petty-
bag office is just as binding and obligatory upon the
judge of the county-court, as if the matter had been
heard and adjudicated upon before the lord chancellor.
[Jervis, C. J. Notwithstanding it was afterwards set
aside by the court of Queen's Bench?] Yes. Speaking
of a writ of prohibition which had been said to have been
irregularly issued, Lord Eldon, in Iveson v. Harris (c),
says: "If the practice of this court, founded upon the
orders of the chancellor, has been, that a prohibition
should issue upon such an affidavit, it is to be considered
whether that practice shall continue, or be corrected
according to this case in Peere Williams. (d) But,
whether right or wrong, it is clear this court can hardly
hear an inferior court discuss with it, for any purpose
but to have the proceeding superseded, the question
whether it issued improvidently. That is a question for
the consideration of the court out of which the writ
issued, not of the court to which it is addressed. It is
of the last consequence not to suffer a breath of doubt to
hang upon this point,-that an inferior court is not to
disobey any of the writs issuing out of this court, upon
their notion that the writ issued improvidently. There-
fore, though this writ might have improvidently issued,

(a) 10 Q. B. 143. (b) 2 Burr. 1151.

(c) 7 Ves. 251. 254.

(d) Anonymous, 1 P. Wms. 476.

1851.

BOOTH

บ.

CLIVE.

1851.

Воотн

V.

CLIVE.

I should without doubt have held a proceeding in breach of it a contempt."

Cur. adv. vult.

CRESSWELL, J., now delivered the judgment of the
After stating the pleadings, ut antè, the learned

court.

The lord chief justice told the jury, that, if the defendant, in making the order, acted under the bonâ fide belief that his duty as judge of the county-court rendered it incumbent on him to do so, notwithstanding the prohibition issued out of the petty-bag office, the act done by him must be considered as done in pursuance of the county-court act, and that he was entitled to notice of action: and, being pressed to leave to the jury the further question, whether the defendant reasonably believed it to be his duty to proceed, he told them, that, if "reasonably" meant any thing else than "in good faith," it meant, "according to his reason," as contradistinguished from "caprice."

A great many cases were mentioned yesterday by Mr. Humfrey, in which the right to notice of action has been discussed: and, at first sight, it seems difficult to reconcile all the expressions used by the judges in dealing with those different cases; but, upon examination, the difficulty is rather seeming than real, and arises from the circumstance that language used by the judges with reference to the particular case then before them, has been afterwards quoted as used generally. Thus, in some cases, we find judges saying that the party claiming notice of action, because the act imputed to him was done in a particular character, or in the exercise of some particular authority, did such act either having or not having reasonable ground for believing that he filled that character or had that authority, when

it is manifest that the meaning of the words used by them, is, that the party must, according to the evidence, be assumed to have acted under, or without, the bonâ fide belief that he fulfilled the character, or had the authority, then in question. In other cases, the judges have said that the real question is, whether the party bonâ fide believed so and so, and acted under that belief. Now, although there is a difference in the terms used, there is no difference in the principle laid down in these cases. And we apprehend that the true principle by which we must be guided in disposing of this application, is this,-did the defendant try the cause, honestly believing that his duty as judge under the county-court act called upon him to do so?

The last case on the subject,—Hornv. Thornborough,(a) -illustrates the view above taken of the whole series of authorities. There, a reversioner caused a party to be apprehended under the malicious trespass act, 7 & 8 G. 4. c. 30. Trespass was brought against him; and he pleaded not guilty "by statute." No notice of action was given. The court of Exchequer held that he was entitled to notice of action, provided he bonâ fide believed that he was acting in pursuance of the statute,which is strictly in accordance with the ruling of the lord chief justice in the present case. It is remarkable that Parke, B., mentions Hughes v. Buckland (b) as a decision that the protection afforded by the statute then under consideration is extended to all persons who have a bonâ fide belief that they fill the character mentioned in the statute, and act bonâ fide under that belief. But Hughes v. Buckland was pressed upon us by Mr. Humfrey as an authority for holding that bona fide belief will not suffice, unless it is founded upon reasonable

(a) 3 Exch. 846.

(b) 15 M. & W. 346., 3 D. & L. 702.

1851.

BOOTH

v.

CLIVE.