BURLING

v.

HARLEY.

· [ *276 ]

set up this defence, which prevailed. It is true that the point was not taken in that case. We think that the clause is for the *protection of bailiffs, as otherwise they might be exposed to many vexatious suits. Under these circumstances we think that the bailiff of the county court was a person acting in execution of the Act, and that he was acting in pursuance thereof, and therefore entitled to the protection given by the Acts in question, and the rule for a new trial must be absolute. Rule absolute.

1858. April 30. [276]

[277]

LINFORD v. LAKE.

(3 H. & N. 276-278; S. C. 27 L. J. Ex. 334; 6 W. R. 515.)

In trespass for false imprisonment, the defendant, under the plea of "Not guilty," may give in evidence the excuse, if it merely goes in mitigation of damages, though he cannot do so without a special plea if it amounts to a justification.

TRESPASS for an assault, giving the plaintiff into custody of a policeman and causing him to be imprisoned. Plea: Not guilty.

At the trial before Pollock, C. B., at the London sittings after Hilary Term, it appeared that the plaintiff, an excavator, had been given into the custody of a policeman by the defendant, the engineer of the Land Drainage Company, for attempting to defraud the Company of about 21. He was taken to the station-house, but the inspector refused to detain him. The defendant's counsel admitted that there was no legal justification for the act, but tendered evidence to show that the plaintiff had attempted to commit a fraud on the Company by heaping up earth on certain hillocks in order to increase the measurement of work for which he claimed payment. The learned Judge rejected the evidence on the ground that a distinct substantive offence ought not to be proved against a person who had no notice that it was to be set up against him; and the jury under his direction found a verdict for the plaintiff with 251. damages.

Hawkins had obtained a rule for a new trial on the ground that the evidence was improperly rejected, against which

Woollett and Worsley now showed cause:

The defendant had no right to go into collateral matters. Thus, in Downing v. Butcher (1), the defendant in trespass for false imprisonment was not allowed to cross-examine the plaintiff's witnesses as to the character of the plaintiff, or as to previous charges against him.

(1) 62 R. R. 808 (2 Moo. & Rob. 374).

v.

(POLLOCK, C. B.: Can you say that this evidence was not LINFORD admissible under the general issue to mitigate the damages? Chinn v. Morris (1) is an authority to that effect.)

In that case it was proposed to show that there was reasonable ground to suspect that a felony had been committed; here the defendant proposed to show that the charge was true.

(CHANNELL, B.: I have always understood the rule to be that a defendant cannot give the excuse in evidence without pleading it, if it amounts to a justification, but that he can do so if it merely goes in mitigation of damages.)

In Watson v. Christie (2), where no justification was pleaded, it was held that the jury should give damages to the amount of the injury suffered, without lessening them on account of the circumstances under which it was inflicted.

(BRAMWELL, B.: The defendant in that case ought to have pleaded that he moderately corrected the plaintiff the plaintiff would have new assigned, and the defendant might then have suffered judgment by default.

CHANNELL, B., referred to Reg. v. Poole (3).) POLLOCK, C. B.:

We all think that this evidence ought to have been received At the trial I thought it very important, but I rejected it on the ground that what was sought to be proved was a distinct substantive crime. However, on the authorities, it appears not to be so.

BRAMWELL, B., concurred.

CHANNELL, B:

This evidence cannot be said to be irrelevant. The defendant may have been wrong in supposing that the facts constituted an offence, but he ought to have had the opportunity of showing that the charge was not a pure invention.

LAKE.

[278]

Rule absolute.

CARTWRIGHT v. FROST.

(3 H. & N. 278-279; S. C. 27 L. J. Ex. 352; 4 Jur. N. S. 464; 6 W. R. 542.)

1858.

May 7.

1858. April 17.

[ 280 ]

[281]

TUTON v. SANONER (1).

(3 H. & N. 280–283; S. C. 27 L. J. Ex. 293; 4 Jur. N. S. 365; 6 W. R. 545.) Under the 17 & 18 Vict. c. 36 (2), which requires to be filed an affidavit of the description of the occupation of every attesting witness to a bill of sale, it is not a compliance with the statute to describe as "gentleman a witness, who, though formerly an attorney, was at the time of the attestation acting as an attorney's clerk. THIS was an interpleader issue to try whether certain goods seized under a writ of fieri facias were, at the time of the delivery of the writ to the sheriff, the property of the plaintiff, the claimant, as against the defendant, the execution creditor.

At the trial before Martin, B., at the last Liverpool Assizes, the plaintiff gave in evidence a bill of sale to him of the goods in question, dated the 25th June, 1857. It purported to be attested by "William Johnson," following which there was an erasure of the words "solicitor, Liverpool." In the affidavit verifying the bill of sale, the attesting witness was described as "William Johnson, of Liverpool in the county of Lancaster, gentleman." The evidence showed that Johnson had formerly been an attorney, but for some years past had ceased to practise, and at the time he attested the bill of sale was clerk to an attorney in Liverpool.

It was submitted, on behalf of the defendant, that the bill of sale was void, inasmuch as the requisites of the 17 & 18 Vict. c. 36 (2), had not been complied with. The learned Judge was of that opinion, and a verdict was entered for the defendant, leave being reserved to the plaintiff to move to enter the verdict for him.

* *

Milward, in the present Term, moved accordingly (April 17): The requisites of the 17 & 18 Vict. c. 36 (2), have been sufficiently complied with. The words [in sect. 1] "and of every attesting witness to such bill of sale," seem to refer to the words "in case the same shall be made or given by any person under or in the execution of any process." But, assuming that a description of the residence and occupation of the attesting witness is in all cases necessary, here there is a sufficient description in the affidavit (3).

(MARTIN, B.: The attesting witness was acting as clerk to an attorney: that was his occupation.)

Though he had ceased to practise, his name was on the roll of

(1) Sharp v. McHenry (1887) 38 Ch. D. 428, 449, 57 L. J. Ch. 961, 57 L. T. 606.

(2) Repealed, with saving, 41 & 42 Vict. c. 31, s. 23. See now s. 10 of the repealing Act.

(3) With respect to the residence, it was objected that the name of the town was not a sufficient description, but the decision of the COURT rendered this point immaterial.

attornies, and therefore he was properly described as man."

(BRAMWELL, B.: In Allen v. Thompson (1) this Court held that "gentleman was not a proper description of a clerk in a Government office.)

There the party misdescribed was the assignor of the bill of sale, not, as here, the attesting witness. The object of the statute was to give such information that the witness might easily be found, if wanted. Therefore it has been held that an attorney's clerk is properly described as *residing at the attorney's place of business, though the clerk does not sleep there: Attenborough v. Thompson (2), Blackwell v. England (3). (He also referred to Arch. Prac. p. 1519, 9th ed.; 1 Black. Com. 406.)

MARTIN, B., now said:

Cur. adv. vult.

The question in this case was whether the description of the residence and occupation of an attesting witness was sufficient within the 17 & 18 Vict. c. 36 (4), the Act for preventing frauds upon creditors by secret bills of sale. The first point to consider is, whether it is necessary to give a description of the residence and occupation of the attesting witness to a bill of sale. We have carefully read the Act of Parliament, and are of opinion that there ought to be one. Now, in this case there was no statement in the bill of sale of the residence and occupation, but simply the name "William Johnson;" and therefore, if a description of the residence and occupation is anywhere, it is in the affidavit. The statement in the affidavit is "William Johnson, of Liverpool in the county of Lancaster, gentleman.” The evidence was that Johnson had originally been an attorney; that he had for many years ceased to be so, and at the time the bill of sale was executed he was acting as clerk to another attorney. The question is, whether, under those circumstances, there is a sufficient description of the residence and occupation of the attesting witness within the meaning of the Act of Parliament. We think that question has been already concluded by the case of Allen v. Thompson (1), and if the matter were to come before us de novo, we should be of the same opinion. The witness had an occupation, which ought therefore to have been stated. The definition of "an occupation" is "the principal business of one's life; vocation; calling; trade; the business which a man follows to procure a living or obtain

(1) 108 R. R. 429 (1 H. & N. 15). (2) 115 R. R. 692 (2 H. & N. 559).

(3) 112 R. R. 685 (8 El. & Bl. 541).
(4) See note (2), ante, p. 690.

v.

SANONER.

[ *282]

[ 283 ]

wealth" (1). The bill of sale was an honest transaction, so that it is to be regretted that the assignee is deprived of his security. On the other hand it would lead to very great inconvenience, if, in order to give effect to an honest transaction, we were to put a wrong construction on the statute. It was argued that the case of Allen v. Thompson did not apply, because there the person in respect of whom the description was incorrect was the assignor. But that argument cannot avail, for the same description of residence and occupation is required, and the same words are used with reference both to the assignor and the attesting witness, and to hold it a description in one respect and not in the other would be contrary to all reason and every principle of construction. On consideration, therefore, we think that the judgment in Allen v. Thompson is conclusive, and that there has not been a sufficient description of the attesting witness to satisfy the statute. There will therefore be no rule.

Rule refused.

HALL v. FEATHERSTONE (2).

(3 H. & N. 284-288; S. C. 27 L. J. Ex. 308; 4 Jur. N. S. 813; 6 W. R. 496.) Action by indorsee against drawer of a bill of exchange. Plea: that the defendant indorsed the bill and delivered it to W. to get discounted for the defendant and pay him the proceeds: that the bill was never discounted for the defendant, nor was there any consideration for his indorsing it or paying the amount thereof and W., in fraud of the defendant, indorsed the bill to the plaintiff without consideration. At the trial, the defendant proved that he indorsed the bill in blank and delivered it to W. to get discounted for him, which W. promised to do and bring him the money on the following morning. W. took away the bill, but never returned, and the defendant heard no more of it until payment was demanded by the plaintiff's attorney: Held sufficient evidence of illegality to cast on the plaintiff the onus of proving consideration.

DECLARATION on a bill of exchange, dated the 22nd December, 1856, and drawn by the defendant upon and accepted by one Richardson, for payment of 65l. two months after date, and indorsed by the defendant to one Wallis, and by Wallis to the plaintiff.

Plea. That the bill was indorsed by the defendant and delivered by him so indorsed to Wallis who received the same from the defendant and always held the same, for a special purpose only, to wit, that he might get it discounted for the defendant and pay him over the proceeds, which purpose wholly failed and was never carried out, and the bill was never discounted for the defendant, nor was there ever any value or

(1) Webster's Dict.

(2) Tatam v. Haslar (1889) 23 Q. B. D. 345, 348, 58 L. J. Q. B. 432.