1858.

VAUGHAN

v.

TAFF VALE

defendants' banks, not daily but occasionally; so that in fact it stood confessed that the locomotive was productive of mischief, that its use was dangerous, and that what had happened on this particular occasion-that is, its setting RAILWAY CO. fire to the defendants' grass-was not a particular accident, but one of the habitual incidents to the use of the locomotive. Upon this the Judge offered to direct the jury to find for the plaintiff, but Mr. Grove preferred the question should be left to them. It was left to them to say if the defendants were guilty of negligence; the learned Judge observing, among other things, that if they had kept their banks shorn, or had had a strip of incombustible matter between their land and the plaintiff's, as, for instance, a line of gravel or stone, the mischief in all probability would not have happened, and it may be taken that the case was put to the jury in the strongest way in favour of the plaintiff. Still the question was left to them, and, unless a verdict ought to have been directed for the defendants, there is no misdirection.

The first question then is: Was there evidence for the jury? And, as they may have found on either count, was there evidence in support of each? Next: Was the evidence such as to warrant the strong opinion of the learned Judge?

We are of opinion, on both these questions, in favour of the plaintiff. Here is confessedly the use of an instrument likely to produce damage, and producing it. This, according to general rules, would make the defendants liable. But two answers were suggested on their behalf. The first was, that if the fire originated on their own land they were protected by the 14 Geo. 3, c. 78, s. 84. But we are of opinion that the statute does not apply where the fire originates in the use of a dangerous instrument, knowingly used by the owner of the land in which the fire breaks out.

1858.

VAUGHAN

It is impossible to suppose that the engine driver is liable to eighteen months imprisonment under section 84, and equally impossible to suppose there is no remedy against RAILWAY CO. either master or servant, for what is a wrong by one or both. We are of opinion therefore that this answer fails.

v.

TAFF VALE

The next answer was, that the Railway Clauses Consolidation Act, 1845 (8 Vict. c. 20), s. 86, afforded a defence to this action. Whether it would if there was no negligence other than the use of a dangerous instrument it is not necessary to say. But here there was abundance of such evidence, if the fire broke out in the defendants' lands, for the reasons before given. So indeed there was, if it broke out in the plaintiff's land; but anyhow it cannot be contended that the statute gives the railway company a right to throw lighted coals on the adjoining land. That would be a trespass.

It remains to notice another point made by the defendants. It was said that the plaintiff's land was covered with very combustible vegetation, and that he contributed to his own loss, and Mr. Lloyd very ingeniously likened the case to that of an overloaded barge swamped by a steamer. We are of opinion this objection fails. The plaintiff used his land in a natural and proper way for the purposes for which it was fit. The defendants come to it, he being passive, and do it a mischief. In the case of the overloaded barge the owner uses it in an unnatural and improper way, and goes in search of the danger, having no right to impede another natural and proper way of using a public highway. We therefore think the direction was right, the verdict satisfactory, and the rule must be discharged.

The learned Judge added that he abided by the opinion he expressed at the trial.

Rule discharged.

1858.

THE

SEMPLE V. KEEN.

plaintiff having recovered judgment against the defendant for 15997., a writ of ca. sa. was issued and placed

in the hands of Slowman, a sheriff's officer, for execution. On the defendant paying down 2007. and agreeing to satisfy the residue of the debt by instalments, the plaintiff handed the following letter to the sheriff's officer:

May 10, 1858. writ till further

"Dear Sir,-Please do not execute the writ of ca. sa.

herein till further notice.

Yours truly,

"H. SEMPLE.

"To Mr. Slowman and the sheriffs of Middlesex.”

On the 24th of June the defendant was arrested at the

notice." The
defendant
being arrested
on another
writ, the officer
detained him
on the plain-
tiff's writ till

he had com-
municated with

the plaintiff,

and then, on

suit of one Pritchard, when the sheriff's officer refused the plaintiff's

to discharge him except on payment of the balance of the

debt of 15997, saying that the notice of the plaintiff was merely a direction not to take the defendant if he saw him. As soon as the plaintiff heard of the detention of the defendant, he directed the officer to let him go. It was

sworn that a notice to the sheriff's officer not to execute a writ till further orders is a practice between attornies and officers of the sheriff, whereby, if a defendant be taken at the suit of any one else, he cannot be discharged without the officer being bound to give notice to the attorney so directing a suspension, in order that he may make fresh terms, take fresh securities, or else withhold his assent to the discharge.

J. Brown now moved for a rule to shew cause why

instructions, let

the defendant

go:- Held,

that, the de

fendant not

having been
legally in cus-
tody under the
plaintiff's writ,

the debt
was not satis-
fied by the
detention and
subsequent
discharge of

the defendant.

VOL. III.-N. S.

EEE

EXCH.

1858.

SEMPLE

v.

KEEN.

satisfaction should not be entered on the judgment roll, the debt being satisfied by the arrest of the defendant on the ca. sa. and his subsequent discharge.-Though a direction not to execute a writ is a countermand of it, a direction not to execute it till further orders has not that effect.

The

defendant having been in custody under the writ, and having been discharged, the debt is gone. In The National Assurance Association v. Best (a) the countermand was absolute.

POLLOCK, C. B.-There will be no rule. The plaintiff may not be without means of redress for the arrest.

BRAMWELL, B.-It is clear there was no lawful arrest under the plaintiff's writ. If a defendant is arrested after explicit notice to the sheriff not to execute the writ, I think that an action lies against the sheriff. The practice in the sheriff's office does not alter the law, and it is consistent with the case of the plaintiff. The plaintiff, supposing that he would get notice if the defendant should be arrested at the suit of another creditor, keeps his writ in the office and tells the sheriff not to execute it. To tell the sheriff not to execute the writ, is to tell him not to execute it till further orders.

WATSON B.-I am of the same opinion. If a man is in custody on one writ he is in custody on all the writs in the office of the sheriff to be executed. The writ here was lying in the sheriff's office as an useless piece of paper till further orders; yet the defendant contends that he was in custody under it. If dissatisfied with our judgment, he has a remedy by auditâ querelâ.

CHANNELL, B., concurred.

(a) 2 H. & N. 605.

Rule refused.

1858.

METCALF and Others v. HETHERINGTON.

Nov. 24.

QUAIN had obtained a rule nisi to set aside the judg- Rule 176,

ment signed in this case by the defendant.

Hil. T. 1853, requiring a month's notice

of intention to proceed where

there have been no proceedings

for one year,

Judgment on

applies to the signing of

1855; but no

judgment for

not proceeding

In

to trial under

the 101st sec

no

tion of the

The declaration was delivered on the 9th of November, 1854. The defendant pleaded on the 27th of the same month. In Hilary Term 1855, the plaintiffs replied to the several pleas and demurred to the 2nd plea. the demurrer was given on the 11th of June, judgment with respect to the demurrer was signed. Trinity Term, 1856, the defendant gave twenty days tice to the plaintiffs to proceed to the trial of the issues in fact. Subsequently the plaintiffs applied to a Judge at chambers to enlarge the time for proceeding to trial, but no order was made. No proceedings were taken from the 11th of July, 1856, when the summons was heard, till the 31st of May, 1858, when the defendant signed judgment, the entry of which stands in the books of the Court as follows:

"31st May, 1858.

"Cumberland, for defendant.

"Plaintiffs not proceeding to trial.

"Thomas Metcalf, George Metcalf &c., against Robert Hetherington. "Costs £

A summons having been taken out to set aside the judgment on the ground that it had been signed prematurely, no proceedings having been taken in the action for more than twelve months and no notice of intention to proceed having been given in pursuance of Reg. Gen. Hil. T. 1853, r. 176, Channell, B., referred the parties to the Court.

Milward now shewed cause.-Formerly it was not neces

Common Law

Procedure

Act, 1852.