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detail in the case sent to us. It does not appear to be one of his specified duties to receive money; but he had several duties to perform cognate to the receiving of money, viz., to make applications for interest or instalments due, and for better security or part payment. If the ordinary duties of a person in the employ of another are proximately connected with the receiving of money, the receipt of money for his employer, and appropriation of it to his own use, would make him liable to the charge of embezzlement. It was so laid down in Spencer's case, Russ. & Ry. 299. And it is sufficient if there was a specific employment to receive money on one occasion only. The case seems to me, therefore, to fall within the statute as far as the prisoner's employment as a servant is concerned. Then was he within the statute as far as relates to the receipt of the money? Had he a right to the repayment of the loan, and to hold the money as collateral security for the costs? If this had been a mere loan, and the prisoner had been sent to apply for the money, or for better security, I think there would have been no doubt that the receipt would have been for the use of the club. The strength of Mr. Gibbons' argument was, that the prisoner had a cause of action on the promissory note. Now what passed between the club and the secretary had not the effect of passing the absolute property in the note to him as against the club; that gave only a limited authority, i. e. to sue upon it. As between him and the club, there is nothing to show that they authorised him to receive the money, and become the absolute owner of the note; and I take the finding of the jury to have affirmed the question put to us, "Was the money received by the prisoner for or in the name, or on the account, of his master or masters ?" The jury have found that the prisoner had no lien on the money in the capacity of plaintiff, or as making himself liable for the costs of the action. The conduct of the prisoner is clear; he was acting fraudulently, for when asked about it he declared on several occasions that he had not received the money on the note.

CROMPTON, J.-I must own that I am in the same position as the recorder who has sent this case to us, in entertaining some doubt as to the conviction. The prisoner must be made out to be in the capacity of a clerk or servant. In the present case it is not contended that by his general employment he was authorised to receive money. The cases have gone to a considerable length on this point, and it has been held that if a prisoner received money as a clerk or servant on one particular occasion, that would do. My brother Erle has, I think, used the right expression, that the receipt of the money must be upon a duty cognate to his general duties. My doubt is, whether the money was received by virtue of any of the duties for which the prisoner was employed. There being a discussion about the payment of the note, it was handed over to the prisoner, and Whiles desired that his name should not be made use of in any legal proceedings upon it. The prisoner then indorsed the note with the name of Whiles. It would be too much to say that by indorsing Whiles' name he was guilty of forgery; and I think that here we ought to take the note as properly indorsed to the prisoner. The prisoner then employed an attorney to sue for him upon the note. My doubt is whether he was a clerk, or servant, or agent when he was suing in his own name upon the note.

Can we

consider him as the mere machinery used by the club ? The transaction was one per se, and not of every-day occurrence, and the law of embezzlement is not to be extended to cases not cognate to the general employment as clerk or servant. This one particular circumstance of suing on the note makes it desirable to throw that duty on the prisoner which he accepted. I also have some doubt whether the prisoner can be said to

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have received the money for the use of the club. Being the party in the suit, I should have thought that he received it for himself, to hand over the balance after deducting the costs of the action.

BRAMWELL, B.-I think the conviction should be affirmed. The first point is, whether the prisoner received this money as a clerk or servant, or by virtue of an employment in the nature of a clerk or servant. Suppose a man hired for a definite service as clerk or servant, and employed to receive rent, it is extremely improbable that he received as clerk or servant If in this case there was any finding or evidence of a definite set of duties, of which the one in question was not one, I should share the doubt of my brother Crompton. But I doubt, under the circumstances, whether that can be conceded to be so. The prisoner was appointed secretary to the club, and I do not find anywhere any specification of his duties. The office of secretary may comprise many miscellaneous duties. I see nothing inconsistent with his duties when he was told by the club to receive the money as their servant. I think that there was evidence that he was so employed, and that that fact is concluded by the finding of the jury. I cannot think that he received the money for himself, or that the law proceedings make any difference. The bringing of the action was mere machinery to obtain the money, and the money when received was on account of his employers. He sued that he might receive the money for his masters, and if he made himself liable for any costs, of which I see no evidence at all, he had no right to employ the attorney and incur them. I therefore think that the prisoner was made out to be the servant of the prosecutors, and that he received the money for them, and that he must be held to have embezzled it.

CHANNELL, B.-I also think that the conviction must be affirmed. Did the prisoner stand in the relation of clerk or secretary to the club? It may be that the office of secretary does not necessarily carry with it the duty of receiving money for the club; but here it is found that the prisoner was employed by the club to sue upon the note, or get better security; and Spencer's case is an authority to show that a duty to receive money in a single instance is sufficient. The suit was mere machinery for obtaining the money for the club. HILL, J.-I am of the same opinion.

A

Conviction affirmed.(a)

COURT OF ARCHES.

Wednesday, Nov. 28.
(Before Dr. LUSHINGTON.)
ATTENBOROUGH v. PAGE.
Church-rate.

vestry was held for the purpose of making a churchrate. An estimate was produced; objections were made to some of the items, which were rejected by a majority of the ratepayers present. A poll was demanded, and taken on the following day, when there appeared to be 117 votes for the rate and twentyfive against it.

The payment, however, was resisted by the appellant on the ground that the rate was made on the assessment for the poor-rate, which was not a just and equal rate. Proof of inequality of rating having been produced, it was

Held, that a church-rate acquired no validity by being made according to the assessments for the poor-rates, and that the rate in question being upon the evidence unequal, it was bad and could not be enforced. Dr. Deane, Q.C. and Dr. Spinks for the appellant. Dr. Twiss, Q.C. and Dr. Swabey for the respondent. The facts are sufficiently stated in the head-note and judgment.

(a) It is not, therefore, now necessary to prove that the prisoner received the money in his usual employment.

ARCHES.]

REG. v. GOSSE AND CARTER.

[Q. B.

COURT OF QUEEN'S BENCH.

HERTSLET, Esqrs., Barristers-at-Law.

Monday, Nov. 19.

Dr. LUSHINGTON.-A church-rate acquired no valid-| parishioner was a large or small occupier. It is maniity by being in conformity with the poor-rate. The fest that the justice of a rate cannot depend on such statute which directs the mode in which a poor-rate considerations. The errors must be substantial, and, shall be made is silent as to a church-rate. A poor-rate if substantial, then justice points out imperatively being laid upon nearly the same properties as a the course which must be taken. As to the state church-rate, and almost always for a much larger of the law, I may observe that the Legislature amount, the acquiescence of a parish in such a poor- has afforded every facility for the poor-rate being rate furnished presumptive evidence that the rate had made upon an equitable principle. The statute been justly and equitably made, and consequently that directs upon what basis and according to what rules a church-rate made on the same basis was a just and poor-rates shall be made. The most ample opportuequal assessment. A poor-rate may be illegal and void nity is given to persons overrated to obtain redress, and by the provisions of the statute, and yet a church-rate the means of collecting the rates are certain and speedy. made on the same assessment may be valid. This Church-rates have existed from time immemorial, but requires some explanation. The statute enacts that a the circumstances of the country have changed, and since poor-rate shall be made according to the full rateable the 53 Geo. 3, as to the collection of the rates where value, and declares that if not so made such poor-rate shall the validity is not disputed, not one statute has been be null and void. There is no statute to govern church- passed facilitating the making a rate, allowing a just rates. If a church-rate be just and equal, as upon a moiety opportunity to individuals to complain and obtain reof the rental throughout the parish, it would be valid, dress for overrating, or affording any remedy for any just though a poor-rate so made would be by the statute demand, save the cumbrous and obsolete proceedings of invalid. Acquiescence in a poor-rate furnishes a pre- the Ecclesiastical Court. It is my opinion that, if churchsumption in favour of a church-rate made on the same rates are to be maintained, the means ought to be afbasis, and so it does also for another reason, because forded of doing justice. There ought to be a rule the presumption is that the law has been complied on which the assessment should be founded, means to with, and the law requires an equal assessment; but collect that assessment, and an expeditious and cheap the presumption may be rebutted by evidence. A mode of recovering the rate. In this case I am comstatute is not, as we all know, always obeyed, and in pelled to say that I cannot pronounce for the rate, as it the case of poor-rates very often violated. It is is founded on an erroneous and unequal basis, not conaverred that the assessment is unequal and unjust. If sistent with justice; but I do not consider this a case in the assessment be substantially unequal, it must which I can give costs. Judgment accordingly. be unjust and illegal. That is the issue the court has to try. I have used the expression "substantially unjust" because perfect equality is utterly Reported by Jons THOMPSON, T. W. SAUNDERS, and C. J. B unattainable, and the law requires no such impossibility. If there is a substantial inequality, it matters not what the cause of such inequality may be-whether the omission of property that ought to be rated, or the underrating some and overrating others. The court is bound to express its opinion upon the validity of the rate, and it cannot pronounce a rate to be valid which from any cause is substantially unequal. The issue is not whether Mr. Attenborough is correctly rated with regard to the annual value of the property he occupies, but whether also the other parishioners are adequately rated. (He then review ed the pleadings, and the evidence adduced on both sides, as to the value of the properties on which the rate was made.) The oral testimony was very conflicting, and it was by the documentary evidence alone that he could be guided in his decision. The poor rate assessment on the basis of which the church-rate of 1857 was made, appeared to have been made about twelve or eighteen years before that time, and modified according to the altered value of the properties assessed. It was admitted that in 1859 a poor-rate was made, and a church-rate was made unanimously on the basis of that assessment. He then, after contrasting the value of the properties as assessed for the churchrate in 1857 and in 1859, said the rates so greatly differed that it would be absurd to suppose that the difference altogether arose from anything that took place between those years. It clearly appeared from a comparison of the two assessments that the assessment of 1859 had not only altered the ratings of 1857, but had also altered them in widely different proportions; hence it followed that the assessment of 1859 being based on the poor-rate, and confirmed, and therefore being just and equal, it was impossible that the assessment of 1857 could have been correct. The question remaining is, whether the assessment of 1857 is so unequal as to be substantially unjust, and void the rate. It is a question of degree. This question cannot depend upon the merely nominal amount of difference to any individual, for that would be to make the validity of a church-rate depend upon whether the rate was large or small-whether the

REG. v. GOSSE AND CARTER (Justices of Surrey). Certiorari-Nuisances Removal Act 1855-18 & 19 Vict. c. 121, ss. 7, 22-Order of justices for payment of expenses for works out of highway-rate. The power given to justices by sect. 7 of the Nuisances Removal Act 1855, to make orders for the payment of expenses incurred by the local authority in executing the Act is not to be resorted to until the means given by the 22nd sectim of the Act for defraying expenses for structural works have been exhausted. The 39th section of the Act, taking away the writ of certiorari, is not applicable when the justices have acted without jurisdiction, and contrary to the Act.

Garth showed cause against a rule for a certiorari to bring up an order of Mr. Gosse and Mr. Carter, two of the justices of Surrey, in the Epsom division, made on the 16th May last, directing the surveyor of highways of Ewell to pay over 502l. 4s. 3d. out of the highway-rates to the local board constituted at Ewell under the Nuisances Removal Act 1855, for England, for sewerage and structural works done by such board, and which they claimed under the 7th section of the said Act to have paid them out of the highway-rates.

The affidavit of the applicant stated that he was a landowner and ratepayer of the parish of Ewell, in the county of Surrey. A committee in the parish was constituted in 1856 or 1857 under the Nuisances Removal Act for England 1855, of which James Josh. Blake was chairman, and soon after they commenced to make a large drain or sewer. These works were done by order of the chairman of the committee, without any magistrates' order or any order of two justices directing payment thereof, and no assessment had been made on the houses of parties benefited by the drain. The committee had expended on this work between 500l. and 600l. Such drain only benefited the proprietors whose lands adjoined the same, and did not benefit the applicant. The chairman of the Nuisances Committee had given orders to Mr. Hards, one of the

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surveyors of highways, and who was also one of the committee, to pay a sum of 502. 48. 3d. on account of the structural works, and Mr. Hards had paid, at various times, the said sum out of the money in his hands collected from the highway-rates. The said surveyor had attended before the justices of Surrey to pass the accounts of the surveyor of highways or waywardens, and on the 11th April last the applicant, Mr. Hobman, attended as a ratepayer, and objected to the passing of such accounts. On that occasion Mr. Hards stated that about 300%. had been expended on highway and about 5007. on sanitary improvements, ordered by the said Nuisances Removal Committee, but it appeared that there had been no order of justices. And it further appeared that the said sum had been discharged out of the highway-rates without any order of justices, and the justices struck out of the surveyors' accounts the said sum of 5021, 4s. 3d.

On the 16th May Mr. Blake, the chairman of the Nuisances Removal Committee, applied to the magistrates then present for an order on the surveyor of highways, and this order was then made. The first question to be considered is, whether this is such a charge as the committee have power to impose; and if that be so, then it is said that there was a means provided for payment which was to be exhausted before the| highway-rate could be resorted to. The Nuisances Removal Act, 18 & 19 Vict. c. 121, s. 7, provides for the defraying expenses of executing the Act; and the question is, whether it was intended that the highwayrate should be resorted to till other means were exhausted. The committee was duly appointed, and the surveyor of highways constituted one of the committee; and they in truth have everything in their own control, and there was no necessity to go to the justices to make this order, in which case it will be merely useless, which is no ground for quashing it; the only object of making the highway overseer one of the committee is to give the overseers a command over money required for contemplated improvements. The question is, whether the benefit derived is a public benefit or not. [COCKBURN, C. J.-A person contributing to the highway-rate may receive no benefit from the sewerage.] The question of its being a general or a special charge is for the committee; the justices made this order on the application of the committee, and they are the proper persons to inquire whether the order was proper, and if so, they had power to make it. If their order is merely ministerial, they are bound to make it for any amount for which it is asked. The writ of certiorari is taken away by the

39th section.

Badeley contra.-An order of this sort cannot legally be made by the justices when no resort has been had to the fund primarily provided by the Act of Parliament. The principle of the Act is this, that persons creating nuisances shall pay for their removal; and where considerable structural works are carried out, the persons benefited thereby are to be assessed to contribute to the expense of such works. The 22nd section provides how the means of payment are to be obtained for such works, and to such means the committee is bound first to resort; and it is the duty of the justices, before making such an order as this, first to ascertain that the primary means pointed out by the Act have been exhausted. The section referred to limits the rate to be made to 1s. in the pound; and only when that is exhausted can the highway-rate be resorted to. (He was stopped by the court.)

COCKBURN, C.J.-I think it is clear, looking at these affidavits, that this improvement was within the 22nd section of the Act, and that it follows that the fund pointed out by that section is the one primarily liable to meet the expenditure. It is not necessary to say whether the highway-rate is to be resorted to as an auxiliary rate; it is enough to say that the primary MAG. CAS.

[C. B.

fund is liable. Then it is said that the 39th section takes away our jurisdiction; but I do not think that objection can avail. That section says that no order shall be quashed or set aside for want of form, nor shall any order or other proceeding done in relation to the execution of the Act be removed by certiorari; but that only relates to matters as to which justices have jurisdiction. Here it cannot be said that the justices have power to make an order directly contrary to the Act of Parliament, and therefore this order cannot be a proceeding within the 39th section. I think the order is bad, and that the rule should be absolute. HILL and BLACKBURN, JJ. concurred.

Rule absolute for certiorari to issue; order to be quashed on the return thereof. (a)

COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and W. MAYD, Esqrs., Barristers-at-Law.

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Nov. 14 and 22.

LEGG (appellant) v. PARDOE (respondent). Appeal from justices under 20 & 21 Vict. c. 43-Game Act, 1 & 2 Will. 4, c. 32-Trespass in pursuit of game-Claim of title ousting jurisdiction.

Where an information was laid against defendant for trespassing in pursuit of game, contrary to 1 & 2 Will. 4, c. 32, s. 30, and the defendant set up a right to shoot, but offered no evidence in support of his claim, the justices dismissed the information, on the ground that a question of right was thus raised, on which they had no power to adjudicate. appeal under 20 & 21 Vict. c. 43:

On

Held, that, as the justices believed there was a bonâ fide question of tille in question, they came to a proper conclusion.

This was a case stated for the opinion of the court, under the 2nd section of 20 & 21 Vict. c. 43. At a petty sessions holden at Bridport, in and for the division of Bridport, in the county of Dorset, on the 26th Sept. 1859, before three justices of the peace in and for the said county, an information preferred by John Legg, hereinafter called the respondent, under sect. 30 of the statute 1 & 2 Will. 4, c. 32, charging "for that he the said respondent, on the 12th Sept. then inst., at Hook, in the said county, did commit a trespass by entering and being in the daytime on land in the occupation of the said appellant in search or pursuit of game or rabbits, contrary to the statute in that case made and provided," was heard and determined by the said justices, and upon such hearing they dismissed the infor

mation.

At the hearing of the aforesaid information, it was proved on the part of the informant, the appellant in this appeal, that he resided at Hook, in the said county, that he rented a field called Ragg's-close, parcel of the manor of Hook, with other lands there, of M. James Mintern; that the game and rabbits on such lands were not in any way reserved, and that his landlord, who himself was a lessee of the said lands, gave him a right over the same; that no one had any right to enter or be on any such lands in search or pursuit of game or rabbits without his (the appellant's) leave; that on the 12th Sept. last the respondent did enter and was on Ragg's-close for that purpose, without the leave of the appellant. On the part of the defendant, the respondent in this appeal, it was not denied that he was on Ragg's-close for the purpose aforesaid, but evidence was given that he was there by permission of the Rev. Paulet Mildmay Compton, who stated he had made a parol arrangement with Lord Sandwich for the

(a) It is important to note the decision incidentally made in this case, that certiorari is still a remedy, where justices have acted without jurisdiction. It had been much questioned whether It was not entirely taken away by sect. 39.

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shooting at Hook, and that he therefore claimed the right. Not the least evidence was offered to show that Lord Sandwich had any right or claim to the shooting over the lands in the appellant's occupation, or that the landlord, Mr. Mintern, could not give the game and rabbits to the appellant. No evidence was given that the respondent had any game certificate or other licence to sport.

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was the lord of the manor. But it has been said that the servant acted bonâ fide, and therefore had not incurred the penalty of the statute. The servant, indeed, chose to trust to what his master told him on the subject; but as the master had no right, or even colour of title, it is no justification to the servant." The Act of Will. 4 is no doubt directed against ordinary poachers; and here the party is not such It was contended on behalf of the respondent, that a person. It appears from the case, however, the justices had no right to adjudicate on the charge, that the magistrates came to their determination on the for that the respondent acted under a supposition that proviso of the 24th section of 7 & 8 Geo. 4, c. 30 he had a right to do the act complained of, and that (the Malicious Injuries Act): "Provided always that the act not being wilful and malicious, their jurisdiction nothing herein contained shall extend to any case where was ousted under 7 & 8 Geo. 4, c. 30, s. 24. The the party trespassing acted under a fair and reasonable justices being of opinion that the respondent in com- supposition that he had a right to do the act complained mitting the said trespass on the said close did so in of, nor to any trespass not being wilful and malicions, pursuance of the permission of the said P. M. Comp-committed in hunting, fishing, or in the pursuit of game, ton, who he believed was entitled to the right of sport- but that every such trespass shall be punishable in the ing thereon, gave their determination against the ap- same manner as before the passing of this Act." The pellant in the manner before mentioned, conceiving that information not being laid under that statute, but there was a question of right between the parties, under the late Act of Will. 4, it was manifestly an which they, as justices, had no power to adjudicate on. error to decide under the Act of Geo. 4. The next The questions of law arising out of the above state- question is, was there any claim of title, supposing ment therefore were the following: First, were the that to be sufficient, to oust the jurisdiction of justices empowered in law, and ought they to have the magistrates? It is submitted there was convicted the respondent in respect of the said tres- not. The case states that the respondent was pass? Secondly, was their jurisdiction taken away, shooting by permission of the Rev. P. M. Compton, and were they empowered to make the order against who stated in evidence that he had made a parol the appellant dismissing the information; or were arrangement with Lord Sandwich, but no proof was there no circumstances or evidence before them depriv- offered that Lord Sandwich had any right whatever. If ing them of their right to adjudicate, and ought they this is a sufficient claim of title, any poacher may to have exercised jurisdiction and to have convicted the come forward with a like story. It is not enough respondent? to state before the justices, "I have a title;" Kingdon for the appellant.-The justices have de- but the justices must see that there is at least cided erroneously upon the points reserved by the case. a colourable title. Reg. v. Burnaby, 2 Ld. Raym. The 1 & 2 Will. 4, c. 32, s. 30, recites that "after 900, cited by Erle. J. in Cridland's case, confirms the commencement of this Act, game will become an this view. Holt, CJ. agreed that without doubt, if article which may be legally bought and sold, and it is the defendant had but a colour of title, the justices had therefore just and reasonable to provide some more no jurisdiction in the cause. [BYLES, J.-Do you summary means than now by law exist, for protecting contend that under the 30th section it is not a crime? the same from trespassers," &c. It is then enacted WILLIAMS, J.-The 6th section says that the party is that "if any person whatsoever shall commit any tres- liable to an action for trespass by him committed in pass by entering or being in the daytime upon any land search or pursuit of game.] The 46th section allows in search or pursuit of game, &c., such person shall, on civil actions, where no criminal proceedings have been conviction thereof, before a justice of the peace, forfeit taken under the provisions of the Act. The 37th and and pay such sum of money not exceeding 21., as to 38th sections contains provisions in regard to penalties. the justice shall seem meet, together with the costs of The 12th section makes the tenant liable to a penalty conviction. Provided always, that any person charged for killing the game, where the right is in the landlord. with such trespass shall be at liberty to prove by way [WILLIAMS, J.-Suppose the tenant is ignorant of the of defence any matter which could have been a defence clause in his lease forbidding the killing of game; to an action at law for such trespass," &c. The general how then?] It is submitted that the rule still holds rule that where property or title is in question the good. Then the party summoned under this Act is jurisdiction of justices of the peace to hear and deter-bound to show a defence which would have been a mine in a summary manner is ousted, does not apply good defence to an action at law for the trespass, except in the present case. The Act empowers the justices that the leave and licence of the occupiers shall not be to decide the whole matter. [ERLE, C.J.-The point a defence where the right is in the landlord. The was considered in Reg. v. Cridland, 7 E. & B. 853.] object of this Act is to enable the justices to hear and The question is, whether a claim of title is sufficient to decide the whole question, as appears from the recital oust the jurisdiction of the justices. In the case mentioned of the 30th section. This is made clearer by the 35th Erle, J. says: "I strongly incline to the opinion that section, which shows who are not included within the the true meaning of the statute is, that the justices Act. [BYLES, J.-Suppose one shooting accidentally ought to try whether the defendant entertained an allows shot to go over a neighbour's property?] honest belief that he had a title; and if he had such | Even then the party would be liable, as may be belief he ought not to be convicted; I think that in a criminal statute trespass means an intended trespass." (He referred to Morden v. Porter, 7 C. B., N.S., 641.) The principle, however, is laid down in Calcraft v. Gibbs, 5 Term Rep. 19. That was an action for penalties under game laws, for shooting and having no right; and courts have always held that questions of title could not then be entered into. Kenyon, C. J. saying, that where a party has even a colourable title only to a manor, a penal action is not a mode of proceeding by which they will investigate it. "But here nothing of the sort is even pretended; for it is admitted on the part of the defendant, that the plaintiff

inferred from Reg. v. Pratt, 4 E. & B. 860. But even if it had been shown that Lord Sandwich had a title, it would be no answer, as the 11th section provides that the party authorised to shoot shall have a game certificate; and here no evidence was given of such a certificate, which the 42nd section shows it was the duty of the defendant to prove, and not of the prosecutor to deny. As to innocence of intention, be referred to Reg. v. Woodrow, 15 M. & W. 404. [ERLE, C. J.-I have always thought that in proceedings under the excise laws, no innocence of intention avails, BYLES, J. cited Hearne v. Garton, 28 L. J., M. C., where dangerous goods had been sent by railway, with

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out giving notice of their character. Mens rea held necessary to conviction.]

[C. B.

Nov. 22.-ERLE, C.J. delivered the judgment of the court. As we understand the statement of facts Karslake for the respondent-1t is contended on in this case, the justices dismissed the summons bethe other side that the justices were bound to enter cause, in their judgment, the question of title was into the question of respondent's title to shoot, raised bonâ fule, and because, under the words of the by virtue of the provisions in the 30th section of the 30th section of the statute 1 & 2 Will. 4, c. 32, the 1 & 2 Will. 4, c. 32, although it is admitted that in point was not for their determination, conceiving that all other cases the allegation of a bona fide right is there was a question of right between the parties which sufficient to oust the jurisdiction of magistrates. Here they had no power to adjudicate on, on this ground we the respondent believed he had a right to shoot. affirm their decision. If the question of title was bonâ [ERLE, C.J.-Mere belief of a right where there is no fide raised, they took the right course in dismissing the foundation of one, will not do. Mr. Compton no doubt complaint according to Reg. v. Cridland, 7 E. & B. ; thought he had a right, when there was not the and Morden v. Porter, 7 C.B., N.S. The facts tending shadow of a right] The justices heard the reference to raise the question of title are extremely scanty, and to Lord Sandwich, whom they might know to be the the case would have been more satisfactory if some furlord of the manor. Campbell, C J., in Reg. v. Cridland, ther evidence of the title supposed to be in question says: "Though no evidence of title was actually had been given, so as to ascertain whether Lord Sandoffered, it was quite clear that a bonâ fide claim of wich claimed in respect of the land, or of the manor, or title was set up, and when such a claim is set up, it of any other right, and whether there was a colour for the seems to me that justices have no longer jurisdiction to claim; still, it is a matter which the justices had to deproceed to a summary conviction." [ERLE, C.J.- termine, and we cannot say they were wrong. If the There it was known, and no evidence was necessary.] justices wished to raise the question whether the defenThe question is, whether there is a bona fide claim of dant ought to have been discharged because he believed title, and that depends on the evidence of the clergy- | he had a right to enter on the land, and so had no inman, who stated that he had made a parol arrange- tention to trespass, we have not so understood the case. ment with Lord Sandwich for the right of shooting. Judgment for respondent. (a) The respondent, therefore, having obtained the permission of Mr. Compton to shoot, had an honest belief that he had the right to shoot accordingly. To show that the ordinary rule as to colour of title ousting jurisdiction does not apply, reference is made to the words of the 30th section of the Act under

Nov. 19 and 20.
BRADSHAW v. Vaughton.

A certificate given under 9 Geo. 4, c. 3, 88. 27, 28,
upon the withdrawal of a charge by the complainant,
is a bar to an action.

The plaintiff having been assaulted by the defendant, laid an information before a magistrate, who granted a summons and fixed the hearing of the complaint for a certain day; before, however, the day arrived, the plaintiff gave notice to the defendant that he should withdraw the charge. On the day appointed for the hearing the defendant appeared before the magistrate and claimed a certificate under the Act, which was given :

that this certificate was a bar to an action afterwards brought for the assault.

which the information is laid, that any person "shall
be at liberty to prove, by way of defence, any matter
which would have been a defence to an action at law for
such trespass, save and except," &c. But this proviso is
disposed of in the judgment of Reg. v. Cridland.
Coleridge, J. says that "it may be that a defendant
might, by virtue of this provision, compel justices to
try a question of title; but it by no means follows that
justices, of their own inclination and against the will
of a defendant, may determine on his title to estates.
If they are not so compelled the ordinary rule must pre-Held,
vail." Next, this is a criminal proceeding: (Cattel v.
Ireson, 1 El. B. & El. 91: 27 L. J. 167, M. C.) It
lies on the other side to show guilty knowledge. The
case of Reg. v. Pratt has been mentioned, and it is
noticed in the judgment of Morden v. Porter. It is,
no doubt, true that the statement by the defendant in
that case, as to his ignorance of the law, usually gives
no excuse; but here a bonâ fide claim is set up. And
it is submitted that a claim of title has been made suf-
ficient to oust the jurisdiction of the justices. [ERLE,
C.J.-The notion that imprisonment and hard labour
may possibly ensue on disobedience to a statute, has
often caused that statute to be held a criminal one, but
I am not disposed to assent to it entirely.]

This was an action tried on the 11th Aug. last, at the County Court of Shropshire, Madeley, brought by the plaintiff, who was a minor, and who sought to recover damages for an assault alleged to have been committed upon him by the defendant on the 13th June last.

Two defences were relied upon: first, a justification on the facts; and, secondly, a certificate of magistrates of dismissal under 9 Geo. 4, c. 31, ss. 27, 28. In support of the second ground of defence the fellowing facts were proved on the part of the defendant:

"On the 18th June last the plaintiff went before a magistrate for the county of Salop, and on oath preferred an information against the defendant, of which the following is a copy. (Here the information is set out.)

Kingdon in reply.-Before this statute there was no statute against trespassing in pursuit of game in the daytime. The 7 & 8 Vict. c. 30, s. 24, punishes malicious trespass, but it contains a provision as to the The summons was accordingly issued by the magisparty trespassing acting under a fair and reasonable sup-trate to the defendant, requiring him to appear at the position that he had a right to do the act complained of, and also as to a trespass in pursuit of game, which is to be dealt with as was formerly the practice. Then comes the 1 & 2 Will. 4, c. 32, which, in the 30th section, recites that it is just and reasonable to provide some more summary means than now by law exist. This Act abolishes a distinction that formerly existed; the later Act makes it a trespass simpliciter, and it need not be malicious. The justices carefully avoid saying that the defendant had a right, for they state that he set up a right from a person who was only supposed to have authority to grant the right. It is for the other side to show that the jurisdiction is ousted. Cur. ade. vult.

(a) The question whether, in any particular instance the claim of title ousts Jurisdiction is extremely difficult for Justices to determine, and this case does not help them out of the difficulty. It does not suffice that such a claim be set up, the justices must be satisfied that it is offered bona fide, though they are not to inquire if it be a good claim, for that would be to try the title itself. The question they should ask themselves is this: "Is the clalm of title raised bona fide, or only as a pretence to escape our jurisdiction?" And this they may try by inquiring into the nature of the claim, for the purpose of satisfying themselves if it has a real foundation. But they should not go beyond this. If satisfied that a claim really exists, they are bound to dismiss the complaint

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