special session held for that purpose" under s. 13 of 1 & 2 Wm. 1869 4, c. 41 (1); that the order was bad in form, for not stating the THE QUEEN facts which gave the justices jurisdiction to make it. Maule, Q.C., and McIntyre, shewed cause. (2) A disturbance was apprehended in Carnarvon, and the justices, in the exercise of their discretion, appointed special constables. The Court will not now inquire whether the provisions of the statute have been observed with perfect accuracy. The order for the payment of the special constables was duly made at a "special session held for that purpose," because when the order was made the justices had concluded the business of the petty session, and were then sitting for the special purpose of auditing the accounts. This was, therefore, a special session held for the purpose of making these allowances. Reg. v. Hamilton (3) shews that an order of this sort for the expenses of special constables may be rightly made at a special session of the justices usually acting in the petty sessional division and need not be made at a special session of the whole body of justices for the county. The form of the order is correct, because it is not a judgment between parties in a contentious proceeding, but is a mere direction to the treasurer to pay a sum of money. No particular form is required for this purpose. Even if there have been some irregularities in the proceedings, the Court will not now reopen them. The maxim quod fieri non debuit factum valet applies to this case. The special constables were appointed, and have acted. An order for their payment was made which the treasurer obeyed, and his accounts have been allowed at the (1) S. 13:-"The justices of the peace acting for the division or limits within which any such special constables shall have been called out to serve at a special session to be held for that purpose... are hereby empowered to order . . . such reasonable allowances for their trouble, loss of time, and expenses, to be paid to such special constables. as to the justices shall seem proper, and the said justices . . . may also order the payment of such expenses as may have been incurred ... in providing staves or other necessary (2) In the Bail Court, before Lush (3) Law Rep. 3 Q. B. 718. v. NEWBOROUGH. quarter sessions, and he is discharged from all liability by s. 9 of THE QUEEN 12 Geo. 2, c. 29. (1) 1869 V. NEWBOROUGH. Poland, in support of the rule. The whole of the proceedings in this case have been illegal from beginning to end. As there is a mode of appointing special constables pointed out by s. 1 of 1 & 2 Wm. 4, c. 41, that mode of appoinment must be followed. If it is not followed, no special constables are appointed, and there are no persons for whom the justices have jurisdiction to order payment. Even if special constables are properly appointed, the order for payment must be made "at a special session held for that purpose." The order in this case was not made in such a session, as the session was held without notice. [LUSH, J. We think it is clear that the order was not made "at a special session held for that purpose."] Then the order is void, and there is really no order at all. The order is also bad in form, as it should state those facts which alone can give jurisdiction to make the order. It should state that the justices who made it were sitting at a special session as required by the Act; that 957. 18. 3d. was a reasonable allowance; that the constables had been properly appointed, &c., &c. All these facts should appear on the face of the order. The order being void, both on account of its not being made at a special session and on account of its form, the treasurer ought not to have paid it, and its allowance at quarter sessions can have no effect. LUSH, J. I think it would be a bad precedent, and we should be doing a mischievous act if we made this rule absolute. The first question is, as to the validity of the appointment of the special constables. I am far from agreeing with the argument that if the appointment was bad the whole of the subsequent proceedings are void; I am not prepared to say that after these constables had acted they would be liable to be sued as if they had received no appointment at all. Even if the provisions of the statute (1 & 2 Wm. 4, c. 41) were not followed, it is clear that the (1) 12 Geo. 2, c. 29, s. 9, enacts that the discharges of justices at their general or quarter sessions to treasurers "shall be deemed and allowed as good and sufficient releases, acquittances, or discharges in any court of law or equity to all intents and purposes whatsoever." บ. magistrates were informed upon oath that tumult and riot might 1869 be reasonably apprehended. On this information they acted, THE QUEEN whether the constables were appointed by writing or not, and we NEWBOROUGH. are not inclined to do any act which may imperil the position of the constables. The second question is, whether the order is good in point of form. It is not necessary to express an opinion upon this point, but I see no objection to its form. It is not necessary that the form of an order like this should be the same as in a contentious proceeding, where there is a judgment between two parties. This is a mere direction to the treasurer; the form is general, but I think that it is a sufficient direction to the treasurer to pay. It appears that the order was not made at a special session, and I think that the order is on that account invalid. Mr. Poland is entitled to any benefit that may be derived from this expression of opinion. If any question arose as to the validity of the order, I should hold it to be invalid, as not having been made at a special session. The reason for the provision requiring such orders to be made at a special session, is obvious, viz. to give notice to all the justices of the division that they may have an opportunity of attending when the order is made. If the order had not been acted on, a different question might have arisen. But it was acted on. It was made in December, and the money was paid immediately and distributed amongst the constables who had been employed. The account was allowed at quarter sessions in January. As the account has been allowed, the treasurer is justified by the terms of the statute (12 Geo. 2, c. 29, s. 9). He might have been liable if the account had not been allowed, and the order did not appear to have been properly made. As it is, however, the allowance of the account discharges the treasurer absolutely by 12 Geo. 2, and no question can arise about this now. It is in the discretion of the Court to grant or to refuse a certiorari, and it is not a matter of right. As the order has been acted on, the money paid, and the account allowed, we think we ought not to do anything to re-open these proceedings. If Mr. Poland's argument is right, and the whole proceedings are void, we do not affect the matter by our decision. Attorneys for defendants: Bloxam, Ellison, & Bloxam, for W. J. Poole, Carnarvon. July 3. DENSTON, ASSIGNEE, &c., v. ASHTON AND OTHERS. Practice-Costs, Security for—-Assignee suing for benefit of Creditors—Insolvent. The Court will not require security for costs to be given by a plaintiff who sues as the assignee of a bankrupt for the benefit of the estate, although he is in insolvent circumstances. THIS was an action of ejectment brought by the plaintiff as creditors' assignee of Hawgood, a bankrupt, to recover possession of certain premises which were in the occupation of Hawgood at the time he became bankrupt. A summons had been taken out on the 28th of May, by the defendants, calling upon the plaintiff to shew cause why he should not forthwith give security for the defendants' costs, to the satisfaction of the master. The summons was heard before Master Hodgson, who endorsed "no order" upon the summons. An appeal from the master's decision was, on the 6th of June, heard before Willes, J., who, on the 8th of June, made an order that the plaintiff "give security for costs to the satisfaction of the master. The plaintiff, being dissatisfied with this order, took out a summons calling on the defendants to shew cause why the order of Willes, J., should not be rescinded. The summons was heard before Blackburn, J., who endorsed the summons "no order," without prejudice to any application to Willes, J. A similar summons was then taken out and heard by Willes, J., but he declined to rescind his former order. There were conflicting statements on the affidavits as to whether the plaintiff was in insolvent circumstances and unable to pay the defendants' costs in the event of not succeeding in the action. A rule was afterwards obtained calling on the defendants to shew cause why the order of Willes, J., dated the 8th of June, should not be rescinded. April 22. M. Bere shewed cause. Day supported the rule. The arguments and the cases cited sufficiently appear in the judgment of the Court. Cur. adv. vult. July 3. The judgment of the Court (Cockburn, C.J., Hannen and Hayes, JJ.) was delivered by HAYES, J. This was a rule obtained to set aside an order of Willes, J., requiring the plaintiff to give security for costs in the action, which was ejectment by the plaintiff as assignee of one Hawgood, a bankrupt, to recover some premises formerly occupied by the bankrupt, and claimed by the plaintiff for the benefit of the estate. The order had been made on the ground of the plaintiff's poverty and alleged inability to pay costs if he failed, and because he was suing not for his own benefit, but for that of the creditors. The case was argued in Easter Term last, when cause was shewn against the rule by Mr. Bere on the part of the defendants, and the rule was supported by Mr. Day on the part of the plaintiff. On the part of the defendants reliance was placed on the general rule for requiring security for costs in the case of an insolvent who is suing as a mere nominal plaintiff for the benefit of a third person, and the cases of Perkins v. Adcock (1); Elliot v. Kendrick (2), and Goatley v. Emmart (3) were cited. On the other hand it was contended by Mr. Day that the case was distinguishable from the cases cited and withdrawn from the ordinary rule, on the ground that the plaintiff had as assignee a duty to collect the assets for the benefit of the estate, and that there was no instance in such a case of requiring security for costs which might obstruct him in the performance of his duty and prevent the assets from being collected. We took time to consider the case, and being unable to find any authority in favour of en(2) 12 Ad. & E. 597. (3) 15 C. B. 291; 24 L. J. (C.P.) 38. 3 C 2 (1) 14 M. & W. 808. 1 1869 DENSTON ข. ASHTON. |