the charges which were made against his client, by which I presume he meant that he abstracted from the mass of evidence that had been given the several charges which had been made), and when the accused had an opportunity of hearing the evidence which had been given in support of those charges, and an opportunity of cross-examining the witnesses, and an opportunity of producing his own witnesses; and when he informed the Court that he had produced all the evidence he desired to produce; and when the cause was one which was just and reasonable in itself, if proved, the Court had no further duty to discharge; it was left to those in whom the power of removal rested, to act and decide upon the evidence so placed before it; and with their decision it is not competent for the Court below, or for us, sitting to review the decision of that Court, to interfere.

I therefore concur with the view which the learned Judges have taken in this case; and I apprehend that your Lordships will come to the conclusion of affirming the decision of the Court below, and dismissing this appeal with costs.

LORD CHELMSFORD.-The only question which your Lordships have to determine is whether there is evidence of a breach or neglect of duty on the part of Mr. Osgood, for which the Court of Common Council might properly be of opinion that reasonable cause existed for his removal from his office. It is not a question whether the Judges in the Court below, or this House, might have come to a different conclusion if the case had been originally before them, but whether the Court of Common Council have proceeded to amotion without any proof at all of a reasonable cause for such a proceeding. There can be no doubt that if the Courts below had been of opinion that there was no evidence that Mr. Osgood had improperly discharged the duties of his office, they might have given judgment for him on the ground that he was unlawfully removed. But all the Judges, without a single exception, have been of opinion that there was evidence which supplied a ground for the judgment pronounced. And this opinion is

all the more entitled to attention from the fact that the Judges would willin gly have come to a different conclusion, as the evidence would not have satisfied them that there was proof of Mr. Osgood not having properly discharged the duties of his office.

Now I should wish to say a very few words indeed with regard to the proof of neglect of duty which was before the Court of Common Council, and upon which it appears to me they might reasonably have acted. The great charge against Mr. Osgood was for habitual non-attendance, and it was suggested by his learned counsel that there was not only proof of his not having neglected his duty, but there was proof that he had performed his duties in the most satisfactory manner. Now of course no one would be better able to judge upon that subject than the learned commissioner in whose Court he acted as registrar, and the evidence of Mr. Kerr, the Commissioner, satisfies me that there had been considerable neglect of duty and habitual non-attendance upon the part of Mr. Osgood. For what does the Commissioner say? Mr. Osgood puts this question to him: "How many years has your Honour been judge of the Sheriffs' Court. A. Eight years. Q. During the whole of that time have you been perfectly satisfied with the manner in which my duties in Court as registrar have been performed?" If he was satisfied, the answer would certainly be in the affirmative. But what is his answer? "I have made no complaint, Mr. Osgood." He does not say that there was no complaint to make, but rather that he had abstained from making any complaint. Then he pursues the question-"Have I been regular and punctual in my attendances at and during the sittings of the Court?" If he had been, the answer would have been in the affirmative. But what is the answer of the Commissioner? "I have explained to the committee that on several occasions, I would not like to fix the number, for certain periods you have been unwell and away." (He does not say that he was not away on other occasions when he was not unwell.) "At other periods and other times you have availed yourself of the privilege to appoint a substitute, and on certain mornings you have occasionally

been late. On the occasion of the last snow storm you were half an hour late. I consider that is a want of punctuality in point of fact, but not an intentional one.' Certainly, if I had to judge upon this evidence, I should have said that the learned Commissioner was of opinion that there had not been a punctual and faithful performance of duty on the part of Mr. Osgood, but that he forbore out of kindness to him to press his opinion against

him.

I will take one other proof of neglect of duty (not a very strong or important one as it appears to me), which is to be found

in

page 135 of the evidence, that is, with regard to the stamping of the different summonses. I quite agree that the fact of Mr. Osgood having a stamp for his signature was of no importance, perhaps it was almost necessary because of the number of documents which had to be signed by Mr. Osgood, but at all events the stamp ought to have been affixed to the documents when they were ready for signature. What is the evidence upon that subject? The question is put to Mr. Marshall, who is, I think, the second copying clerk. "When other parties have taken minutes in these books, when they have been taken in the handwriting we will say of Mr. Tilt, have you stamped them with Mr. Osgood's signature? A. I am not prepared to say that any of those I have stamped are in Mr. Tilt's handwriting. Q. How do you stamp the book, all at one time? A. All at one time. Q. Therefore, you turn over the pages, and finding thirty or forty pages not stamped you begin to stamp them? A. Yes. Q. And has that ever been in arrear for two or three months at a time? 4. Possibly it may have been. The Town Clerk-But are you aware of the fact that it has been so ? A. I think I can state positively that it has been so. Mr. Ackman.-Who has directed you to stamp the book? 4. Mr. Osgood, the registrar." Now I should scarcely have said, if that had en the only ground of complaint against Mr. Osgood, that it was such a very serious dereliction of duty that it would have been quite sufficient to justify the cnclusion at which the Common Council had arrived with regard to his amotion.

It may be that other persons might not be of opinion that there was a sufficient cause for his removal, but the Common Council having come to this conclusion upon these grounds, it is clear that there was reasonable ground. There was not such a ground perhaps as others might have acted upon, but when you are called upon to say that there was no evidence whatever, which is the only ground upon which you could reverse their decision, and when you find these instances, I think there is quite sufficient ground for your Lordships to be of opinion that it is impossible to reverse the judgment which has been pronounced by the Court of Common Council, and therefore I agree with my noble and learned friend that the judgment must be affirmed.

LORD COLONSAY.-I agree that the office held by Mr. Osgood may be regarded as a judicial office. I think it is so in its nature, and I think that the tenure of it is secured to him by the terms of the 11th section of the statute, that is to say, that he cannot be removed except for cause. Then that same section of the statute prescribes the parties who are to be the judges of that cause. They are to be judges of it in fact, and judges of it as to its sufficiency. That point being established, and such being their jurisdiction, I am also of opinion that if in the pretended exercise of that jurisdiction they act mala fide (if that were possible), or act upon frivolous grounds, they are not performing the duty which the statute gives them, or exercising the power which it confers upon them. If they had removed him for some capricious cause, such as the shape of his hat or the cut of his beard, I hold that that would be clearly an improper proceeding, and that a supreme Court of law could correct it. So also, although less capricious than that, if it were clearly a futile cause, the Court would interfere and protect the party against injustice done in a pretended or a mistaken exercise of the jurisdiction, which has been conferred upon the lord mayor, aldermen and common council. But they being the judges of the fact and the judges of the law, they were set upon an inquiry in this case.

Now, I think there has been a misapprehension on the part of the appellant as to the nature of those proceedings. I do not regard it as a case to be assimilated to a criminal prosecution. It is an enquiry, and I do not regard Mr. Aikman as being in the position of a prosecutor in this matter. He disowns it; he assumes the position of an informer in regard to this matter. If the Common Council come to the knowledge through one of their other officers that a particular officer has been neglecting his duties habitually, I think it becomes the duty of the Common Council, under such circumstances, to enquire into that matter, and to use what machinery is at their command, in order to ascertain the truth. What they did in this case was this: having been informed by Mr. Aikman through his letter, and through the subsequent statements that he made, that Mr. Osgood had been in the habit of neglecting his duty, and that certain other objections were made to the way in which he performed his duty, they did institute an inquiry, and they called Mr. Aikman who had made those statements, he being an officer of the Court, before them, and required him to substantiate what he had said, in order that they might see how the truth really stood. That enquiry went on. It may have happened in the course of that enquiry that matters were evolved prejudicial to Mr. Osgood which had not been contained in Mr. Aikman's statements. Still if they came out in the course of the enquiry, Mr. Osgood was to be allowed a fair opportunity of meeting them, but the Common Council were not to shut their eyes to them.

Then it is said that the charge against him was too general in its character, it being merely that he had not performed his duties satisfactorily. I quite agree that if that had been the original charge against Mr. Osgood, and if he was called before this tribunal upon an allegation that he had not properly discharged the duties of his office, he was entitled to ask and to require that he should be told in what respect it was supposed that he had not properly discharged the duties of his office. But the matters in which it was said that he had neglected his duties, or

that he had improperly performed them, were stated, to a certain extent, at the outset, and the rest were evolved in the course of the enquiry, and Mr. Osgood was afforded an opportunity of meeting them, and he did meet them. Whether he met them satisfactorily or not is a different question. The enquiry was a full one, both parties being present and having what assistance they required, and I do not see that the Common Council proceeded in any respect irregularly.

I quite agree with the observation made by the learned Baron, that there was no violation of the rule of delegation in this case. The mode adopted was the mode in which such enquiries are ordinarily considered, and necessarily conducted by such a tribunal. What was the course which was stated to have been requisite ? It was that after this committee had made their report, if they did make such a report, there should have been an assembling of the Common Council, there should have been a prosecutor appointed, and there should have been a new trial with all the formalities of a criminal trial before they could have arrived at a conclusion. But the committee of enquiry into this matter, having made their enquiry in the ordinary way, having collected their evidence in the ordinary way, and allowed the party who had been present at the collecting of that evidence, to state his case by counsel, I cannot conceive a more fair mode of proceeding. The conclusion at which they arrived is a different matter, but that was the course of their proceeding. The resolution which they came to was a general resolution, that Mr. Osgood had neglected or had not properly discharged the duties of his office. Now, if there had never been any specific statement, either made by Mr. Aikman or evolved in the course of the enquiry, I should have thought that that finding of the Common Council was very similar to what occurred in one of the cases which has been cited at the bar, and that it would have been too vague for such a case. But when we see that there had been charges made and matters particularly evolved in the course of the enquiry, I think the general finding must be referred to those matters,

and taken as being a general conclusion derived from the enquiry into those

matters.

These matters are collected by the Lord Chief Justice in one portion of his speech, they had been classified by Mr. Osgood's counsel, but the Lord Chief Justice classifies them into three heads, very distinctly. The undertaking of the learned counsel for the appellant at the bar, was to shew that upon none of those heads was there any evidence whatever, but that on the contrary they were all totally displaced, and that there was no appearance of evidence to support any of them. 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 support them, I do not mean to say conclusive evidence, to your mind or to mine, but if there be that kind of evidence, which, as the Lord Chief Justice describes

it, might go to a jury upon the case, then the statute does make this tribunal the conclusive tribunal without an appeal of any description from them. Now I cannot say that the case is destitute of evi

dence. I do not say that I would have arrived at the same conclusion which the Common Council has arrived at, as to the balance of evidence in this case; but they were the jury as well as the judge, and they have found that there was evidence, and they have pronounced the sentence which they think ought to follow upon it. I cannot find anything to shew that they have transgressed their powers, or that there is anything which we can call a miscarriage of justice in the case, I mean in the legal sense of that term. Whether Mr. Osgood may have

been

harshly dealt with is another matter. The Lord Chief Justice says, that if this had been the finding of a jury where there is a power of correcting it by a new trial, he would have done what he could to upset such a verdict, and that might have been a very right thing to do; but we are not in that position. The matter is committed to this body, the Court of Common Council, and if there

is any evidence which might reasonably, to their minds, have led to such a conclusion as they have arrived at, a Court of law is precluded, and we are precluded, from interfering with their conclusion.

Upon these grounds I concur in the judgment proposed by my noble and learned friends.

Judgment of the Court of Exchequer Chamber affirmed, with costs.

Attorneys-Mr. Osgood, in person; The City Solicitor, for defendant.

1872.

May 29.

}

FEARON (appellant) v.
MITCHELL (respondent).

Markets and Fairs Clauses Act, 1847 (10 Vict. c. 14), s. 13-Local Government Act (21 & 22 Vict. c. 98), s. 50-Dwelling Place or Shop-Infringement of Market.

The Local Government Act (21 & 22 Vict. c. 98) was adopted by the township of C. Section 50 of that Act incorporates the provisions of the Markets and Fairs Clauses Act (10 Vict. c. 14) so far as they relate to markets, with a proviso that no marketplace established in pursuance of that section shall interfere with any rights, powers or privileges enjoyed within any district by any person, without his consent. By section 13 of the Markets and Fairs Clauses Act, "after the market-place authorised by the statute is opened for public use, every person, other than a licensed hawker, who shall sell or expose for sale in any place within the prescribed limits, except in his own dwelling place or shop, any articles in respect of which tolls are by the special Act authorised to be taken in the market, shall for every such offence be liable to a penalty not exceeding forty shillings."

The local board for C., acting under the powers of the above-mentioned Acts, made bye-laws, directing that cattle markets and an annual show of horses should be held in prescribed places, and appointing a toll for cattle, horses, &c., exposed for sale in such

markets. The respondent, an auctioneer, at the time when these markets were established, was possessed of a building called the Agricultural Hall," which was erected some years before the passing of the byelaws regulating the market. It was a large building, containing a ring or area in which was accommodation for about 100 head of cattle. Adjoining to, and communicating with it, was a yard with pens capable of holding 1,400 sheep. The respondent's dwelling house was separated from the Agricultural Hall by his harness-room and stable. He advertised and held sales by auction in the Agricultural Hall on market-days, the average sale on these days amounting to 100 cattle and 1,000 sheep, and exceeding the sales in the regular market. The cattle and sheep so s were the property of farmers and others, the respondent charging them with a commission:

Held, without expressing any opinion as to whether an auctioneer would have been at liberty to sell horses by auction on his premises, notwithstanding the market, it was evident, having regard to the nature and extent of the respondent's premises, that they were not part of his dwelling place or shop, within the meaning of 10 Vict. c. 14. s. 13, and that the business carried on by him was not a right, power or privilege which he enjoyed when the market was established, within the meaning of the Local Government Act, s. 50.

to a properly constituted stakeholder, though he may have forbidden the stakeholder to hand it over to the person claiming it, and in whose favour it was drawn.

The trustee of a composition deed hold ing the bills or notes of the debtor or of his surety for the benefit of creditors is such a stakeholder.

Semble, by LORD CAIRNS,—a creditor who has, as between himself and the debtor, successfully contested in a Court of law the validity of a creditors', or composition, deed executed by his debtor, is not thereby precluded from afterwards coming in under the deed, and obtaining the benefits he would only be entitled to on the footing that the deed was valid.

A Court of Error has no larger power to draw inferences than had the Court of original jurisdiction. And where, in a special. case, power for the Court to draw inferences from the facts stated is not reserved, neither the Court of first instance nor the Court of Error can draw such inferences.

This was a proceeding in error against a judgment of the Court of Exchequer Chamber reversing a judgment of the Court of Queen's Bench.

The action was brought in 1869, by the now plaintiff in error, to recover from William White the amount of three promissory notes, and also in detinue to recover possession of the same notes, the said notes having been executed by William White jointly with, and as surety for his son, W. A. White, in performance of 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 delivered by the father and son to the trustees named in the deed.

The circumstances out of which the action arose may be briefly stated as follows

In November, 1867, W. A. White, the son, being a trader and then in difficulties, called a meeting of his creditors to inves

tigate his affairs, when it was found that his estate would not pay more than 7s. 6d. in the pound. Thereupon the defendant, William White, in order to save his son from bankruptcy, with which the credi