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the charges which were made against his all the more entitled to attention from the client, by which I
presume he meant that fact that the Judges would willin gly have he abstracted from the mass of evidence come to a different conclusion, as the evithat had been given the several charges dence would not have satisfied them that which had been made), and when the there was proof of Mr. Osgood not having accused had an opportunity of hearing properly discharged the duties of his office. the evidence which had been given in
Now I shonld wish to say a very
few support of those charges, and an oppor words indeed with regard to the proof of tunity of cross-examining the witnesses, neglect of duty which was before the and an opportunity of producing his own Court of Common Council, and upon witnesses; and when he informed the which it appears to me they might reasonCourt that he had produced all the evi- ably have acted. The great charge against dence he desired to produce; and when Mr. Osgood was for habitual non-attendthe cause was one which was just and ance, and it was suggested by his learned reasonable in itself, if proved, the Court counsel that there was not only proof of had no further duty to discharge; it was his not having neglected his duty, but left to those in whom the power of there was proof that he had performed removal rested, to act and decide upon his duties in the most satisfactory manner. the evidence so placed before it; and Now of course no one would be better with their decision it is not competent for able to judge upon that subject than the the Court below, or for us, sitting to learned commissioner in whose Court he review the decision of that Court, to inter acted as registrar, and the evidence of fere.
Mr. Kerr, the Commissioner, satisfies me I therefore concur with the view which that there had been considerable neglect of the learned Judges bave taken in this duty and habitual non-attendance upon case; and I apprehend that your Lord the part of Mr. Osgood. For what does the ships will
come to the conclusion of Commissioner say ? Mr. Osgood puts this affirming the decision of the Court below, question to him: “ How many years has and dismissing this appeal with costs. your Honour been judge of the Sheriffs'
Court. A. Eight years. Q. During the LORD CHELMSFORD.—The only question whole of that time have you been perfectly which your Lordships have to determine is satisfied with the manner in which my whether there is evidence of a breach or duties in Court as registrar have been neglect of duty on the part of Mr. Osgood, performed ?” If he was satisfied, the for which the Court of Common Council answer would certainly be in the affirmamight properly be of opinion that reason tive. But what is his answer ? “I have able cause existed for his removal from' made no complaint, Mr. Osgood." He his office. It is not a question whether the does not say that there was no complaint Judges in the Court below, or this House, to make, but rather that he had abstained might have come to a different conclusion from making any complaint. Then he purif the case had been originally before sues the question—“Have I been regular them, but whether the Court of Common and punctual in my attendances at and Council have proceeded to amotion with during the sittings of the Court?" If he out any proof at all of a reasonable cause had been, the answer would have been in for such a proceeding. There can be no the affirmative. But what is the answer of doubt that if the Courts below had been the Commissioner ? “I have explained to of opinion that there was no evidence that the committee that on several occasions, Mr. Osgood bad improperly discharged I would not like to fix the number, for the duties of his office, they might have certain periods you have been unwell and given judgment for him on the ground away." (He does not say that he was that he was unlawfully removed. But all not away on other occasions when he was the Judges, without a single exception, not unwell.) “At other periods and other have been of opinion that there was evi times you bave availed yourself of the dence which supplied a ground for the privilege to appoint a substitute, and on judgment pronounced. And this opinion is certain mornings you have occasionally
been late. On the occasion of the last It
may be that other persons might not be snow storm you were half an hour late. of opinion that there was a sufficient cause I consider that is a want of punctuality in for his removal, but the Common Council point of fact, but not an intentional one.” having come to this conclusion upon Certainly, if I had to judge upon this evi- these grounds, it is clear that there was dence, I should have said that the learned reasonable ground. There was not such Commissioner was of opinion that there a ground perhaps as others might have had not been a punctual and faithful per- acted upon, but when you are called upon formance of duty on the part of Mr. to say that there was no evidence whatOsgood, but that he forbore out of kind. ever, which is the only ground upon which ness to him to press his opinion against you could revorse their decision, and when him.
you find these instances, I think there is I will take one other proof of neglect of quite sufficient ground for your Lordships duty (not a very strong or important one to be of opinion that it is impossible to as it appears to me), which is to be found
reverse the judgment which has been proin page 135 of the evidence, that is, with nounced by the Court of Common Council, regard to the stamping of the different and therefore I agree with my noble and summonses. I quite agree that the fact learned friend that the judgment must be of Mr. Osgood having a stamp for his affirmed. signature was of no importance, perhaps it was almost necessary because of the LORD COLONSAY.—I agree that the office number of documents which had to be held by Mr. Osgood may be regarded as signed by Mr. Osgood, but at all events a judicial office. I think it is so in its the stamp ought to have been affixed to “nature, and I think that the tenure of it the documents when they were ready for is secured to him by the terms of the 11th signature. What is the evidence upon section of the statute, that is to say, that that subject? The question is put to he cannot be removed except for cause. Mr. Marshall, who is, I think, the second Then that same section of the statute precopying clerk. “When other parties have scribes the parties who are to be the judges taken minutes in these books, when they of that cause. They are to be judges of have been taken in the handwriting we it in fact, and judges of it as to its suffiwill say of Mr. Tilt, have you stamped ciency. That point being established, them with Mr. Osgood's signature ? A. and such being their jurisdiction, I am I am not prepared to say that any of also of opinion that if in the pretended those I have stamped are in Mr. Tilt's exercise of that jurisdiction they act mala handwriting. Q. How do you stamp the file (if that were possible), or act upon book, all at one time ? A. All at one frivolous grounds, they are not performtime. Q. Therefore, you turn over the ing the duty which the statute gives pages, and finding thirty or forty pages them, or exercising the power which it not stamped you begin to stamp them?
them. If they had removed A. Yes. Q. And has that ever been in him for some capricious cause, such arrear for two or three months at a time? as the shape of his hat or the cut of his A. Possibly it may have been. The Town beard, I hold that that would be clearly an ('lerk.—But are you aware of the fact that improper proceeding, and that a supreme it has been so ? A. I think I can state Court of law could correct it. So also, positively that it has been so. Mr. although less capricious than that, if it Ackman.-Who has directed you to stamp were clearly a futile cause, the Court the book ? A. Mr. Osgood, the registrar.'
would interfere and protect the party Now I should scarcely have said, if that had against injustice done in a pretended or huen the only ground of complaint against a mistaken exercise of the jurisdiction, Mr. Osgood, that it was such a very which has been conferred upon the lord serious dereliction of duty that it would mayor, alder men and common council. have been quite sufficient to justify the But they bong the judges of the fact (tinclusion at which the Common Council and the judges of the law, they were set bad arrived with regard to his amotion. upon an inquiry in this case.
Now, I think there has been a misap that he had improperly performed them, prehension on the part of the appellant were stated, to a certain extent, at the as to the nature of those proceedings. I outset, and the rest were evolved in the do not regard it as a case to be assimi. course of the enquiry, and Mr. Osgood lated to a criminal prosecution. It is was afforded an opportunity of meeting an enquiry, and I do not regard Mr. them, and he did meet them. Whether Aikman as being in the position of a pro he met them satisfactorily or not is a secutor in this matter. He disowns it; different question. The enquiry was a he assumes the position of an informer full one, both parties being present and in regard to this matter. If the Common having what assistance they required, Council come to the knowledge through and I do not see that the Common Council one of their other officers that a particu proceeded in any respect irregularly. lar officer has been neglecting his duties I quite agree with the observation made habitually, I think it becomes the duty by the learned Baron, that there was no of the Common Council, under such cir violation of the rule of delegation in this cumstances, to enquire into that matter, The mode adopted was the mode and to use what machinery is at their in which such enquiries are ordinarily concommand, in order to ascertain the truth. sidered, and necessarily conducted by What they did in this case was this : such a tribunal. What was the course having been informed by Mr. Aikman which was stated to have been rethrough his letter, and through the sub quisite ? It was that after this comsequent statements that he made, that mittee had made their report, if they did Mr. Osgood had been in the habit of neg make such a report, there should have been lecting his duty, and that certain other an assembling of the Common Council, objections were made to the
in which there should have been a prosecutor aphe performed his duty, they did institute pointed, and there should have been a an inquiry, and they called Mr. Aikman new trial with all the formalities of a who had made those statements, he being criminal trial before they could have an officer of the Court, before them, and arrived at a conclusion. But the comrequired him to substantiate what he had mittee of enquiry into this matter, having said, in order that they might see how made their enquiry in the ordinary way, the truth really stood. That enquiry having collected their evidence in the
It may have happened in the ordinary way, and allowed the party who course of that enquiry that matters were had been present at the collecting of that evolved prejudicial to Mr. Osgood which evidence, to state his case by counsel, I had not been contained in Mr. Aikman's cannot conceive a more fair mode of prostatements. Still if they came out in the ceeding. The conclusion at which they course of the enquiry, Mr. Osgood was to arrived is a different matter, but that was be allowed a fair opportunity of meeting the course of their proceeding. The resothem, but the Common Council were not lution which they came to was a general to shut their eyes to them.
resolution, that Mr. Osgood had neglected Then it is said that the charge against or had not properly discharged the duties him was too general in its character, it of his office. Now, if there had never being merely that he had not performed been any specific statement, either made his duties satisfactorily. I quite agree by Mr. Aikman or evolved in the course that if that had been the original charge of the enquiry, I should have thought against Mr. Osgood, and if he was called that that finding of the Common Council before this tribunal upon an allegation was very similar to what occurred in one that he had not properly discharged the of the cases which has been cited at the duties of his office, he was entitled to bar, and that it would have been too ask and to require that he should be told vague for such a case.
But when we see in what respect it was supposed that he that there had been charges made and had not properly discharged the duties of matters particularly evolved in the course his office. But the matters in which it was of the enquiry, I think the general findsaid that he had neglected his duties, or ing must be referred to those matters,
and taken as being a general conclusion is any evidence which might reasonably, derived from the enquiry into those to their minds, have led to such a conmatters.
clusion as they have arrived at, a These matters are collected by the Lord Court of law is precluded, and we are Chief Justice in one portion of his speech, precluded, from interfering with their they had been classified by Mr. Osgood's conclusion. counsel, but the Lord Chief Justice clas- Upon these grounds I concur in the sifies them into three heads, very dis- judgment proposed by my noble and tinctly. The undertaking of the learned learned friends! counsel for the appellant at the bar, was to shew that upon none of those heads Judgment of the Court of E.cchequer was there any evidence whatever, but Chamber affirmed, with costs. that on the contrary they were all totally displaced, and that there was no appear.
Attorneys–Mr. Osgood, in person; The City ance of evidence to support any of them.
Solicitor, for defendant. If that had been the case, if there had been no appearance at all of evidence to support any of them, then there would either have been what we may call a miscarriage of justice, or an extraordinary piece of misconduct on the part of the tribunal. But if there is evidence to 1872. FEARON (appellant) v. support them, I do not mean to say con- May 29.) MITCHELL (respondent). clusive evidence, to your mind or to mine, but if there be that kind of evidence, (10 Vict. c. 14), s. 13–Local Government
Markets and Fairs Clauses Act, 1847 which, as the Lord Chief Justice describes
Act (21 & 22 Vict. c. 98), s. 50—Dwelling it, might go to a jury upon the case, then
Place or Shop-Infringement of Market. the statute does make this tribunal the conclusive tribunal without an appeal of The Local Government Act (21 & 22 any description from them. Now I can. Vict. c. 98) was adopted by the township of not say that the case is destitute of evi. C. Section 50 of that Act incorporates the dence. I do not say that I would have provisions of the Markets and Fairs Clauses arrived at the same conclusion which the Act (10 Vict. c. 14) so far as they relate to Common Council has arrived at, as to the markets, with a proviso that no marketbalance of evidence in this case; but place established in pursuance of that section they were the jury as well as the judge, shall interfere with any rights
, powers or and they have found that there was. evi- privileges enjoyed within any district by any dence, and they have pronounced the person, without his consent. By section 13 sentence which they think ought to of the Markets and Fairs Clauses Act, follow upon
it. I cannot find anything after the market-place authorised by the to shew that they have transgressed their statute is opened for public use, every per. powers, or that there is anything which son, other than a licensed hawker, who shall we can call a miscarriage of justice in the sell or expose for sale in any place within case, I mean in the legal sense of that the prescribed limits, except in his own term. Whether Mr. Osgood may have dwelling place or shop, any articles in rebeen harshly dealt with is another spect of which tolls are by the special Act matter. The Lord Chief Justice says, authorised to be taken in the market, shall that if this had been the finding of a jury for every such offence be liable to a penalty where there is a power of correcting it by not exceeding forty shillings.” a new trial, he would have done what he The local board for C., acting under the could to upset such a verdict, and that powers of the above-mentioned Acts, made might have been a very right thing to bye-laws, directing that cattle markets and do; but we are not in that position. The an annual show of horses should be held in matter is committed to this body, the prescribed places, and appointing a toll for Court of Common Council, and if there cattle, horses, 8c., exposed for sale in such markets. The respondent, an auctioneer, at to a properly constituted stakeholder, though the time when these markets were established, he may have forbidden the stakeholder to was possessed of a building called the hand it over to the person claiming it, and
Agricultural Hall,” which was erected in whose favour it was drawn. some years before the passing of the bye- The trustee of a composition deed holdlavus regulating the market. It was a large ing the bills or notes of the debtor or of his builling, containing a ring or area in which surety for the benefit of creditors is such a was accommodation for about 100 head of stakeholder. cattle. Adjoining to, and communicating Semble, by LORD CAIRNS,—a creditor who with it, was a yard with pens capable of has, as between himself and the debtor, holding 1,400 sheep. The respondent's successfully contested in a Court of law dwelling house was separated from the the validity of a creditors', or composition, Agricultural Hall by his harness-room deed executed by his debtor, is not thereby and stable. He advertised and held precluded from afterwards coming in under sales by auction in the Agricultural the deed, and obtaining the benefits he would Hall on market-days, the average sale on only be entitled to on the footing that the these days amounting to 100 cattle and deed was valid. 1,000 sheep, and exceeding the sales in the A Court of Error has no larger power to regular market. The cattle and sheep so draw inferences than had the Court of orisiid were the property of farmers and ginal jurisdiction. And where, in a special . others, the respondent charging them with a case, power for the Court to draw inferences commission :
from the facts stated is not reserved, neither Held, without expressing any opinion as the Court of first instance nor the Court of to whether an auctioneer would have been at Error can draw such inferences. liberty to sell horses by auction on his premises, notwithstanding the market, it was This was a proceeding in error against evident, having regard to the nature and ex- a judgment of the Court of Exchequer tent of the respondent's premises, that they Chamber reversing a judgment of the were not part of his dwelling place or shop, Court of Queen's Bench. within the meaning of 10 Vict. c. 14. 8. 13, The action was brought in 1869, by the and that the business carried on by him was now plaintiff in error, to recover from not a right, power or privilege which he William White the amount of three proenjoyed when the market was established, missory notes, and also in detinue to within the meaning of the Local Government recover possession of the same notes, the Act, s. 50.
said notes having been executed by Wil.
liam White jointly with, and as surety for [For the report of the above case, see his son, W. A. White, in performance of 41 Law J. Rep. (n.s.) M.C. 170.]
a covenant in that behalf contained in a composition deed made between W. White and W. A. White and certain of the creditors of W. A. White, and having been in further pursuance of such deed deli
vered by the father and son to the trustees [IN THE HOUSE OF LORDS.] named in the deed. 1872.
The circumstances out of which the LATTER V. WHITE. June 13.
action arose may be briefly stated as
followsComposition Deed -- Bankruptcy Act,
In November, 1867, W. A. White, the 1861, s. 192—Detinue for Bills against
son, being a trader and then in difficulties, Surety-Right of Creditor to Composition ajter disputing Validity of Deed--Special called a meeting of his creditors to inves: inse— Power of Court of Error to draw
tigate his affairs, when it was found that
his estate would not pay more than 78. 6d. Inferences—23 & 24 Vict. c. 126. 88. 4-10.
in the pound. Thereupon the defendant, Detinue does not lie against the maker of William White, in order to save his son a promissory note after he has delivered it from bankruptcy, with which the credi.