1853.

FUSSELL

v.

GORDON.

deliver to the defendant further and better particulars of the plaintiff's demand in this action, or identify as the particulars of such demand up to the 2nd of May, 1850, the claim of The North Wilts Banking Company in Chancery, in the matter of The Joint-Stock Companies Winding-up Act, 1848, and of The Vale of Neath and South Wales Brewery Joint-Stock Company, and deliver to the defendant particulars of the further demand of the plaintiff, if any, in this action."

Upon the hearing of this summons, the plaintiff's attorney offered to identify as the particulars of the plaintiff's demand, in the terms of the summons, the claim of the banking-company in Chancery in the matter of The Joint-Stock Companies Winding-up Act, 1848, and of The Vale of Neath and South Wales Brewery Joint-Stock Company, so far as related and referred to the debit side of such claim, and to deliver to the defendant particulars of the further demand of the plaintiff since the 2nd of May, 1850; but the defendant's attorneys declined to accept such claim as the particulars of the plaintiff's demand, without the credit side of the claim being also admitted as part of the particulars in this action; whereupon the learned judge refused to order the plaintiff's attorney to identify the claim except in so far as related to the debit side thereof, but made the order in the terms of the summons.

In pursuance of that order, the plaintiff's attorney delivered full particulars of their claim upon The Vale of Neath and South Wales Brewery-Company, containing an account of all payments made to or on account of the company by the bank, from the 12th of March, 1840, to the 2nd of April, 1852, and ending with the following clause,-"Out of the foregoing items of account, the plaintiff claims in this action the sum of 20,4271. 19s. 6d., with interest thereon at the rate of 51. per cent. per annum from the 2nd of April, 1852."

On the 26th of May, the defendant took out a summons for "a further and better account in writing of the particulars of the plaintiff's demand, shewing how the plaintiff made up the sum of 20,4271. 19s. 6d. ;" whereupon Williams, J., ordered that the plaintiff's attorney should, unless he would consent to strike out the final clause of the particulars already delivered, deliver a further and better account in writing of the particulars of the plaintiff's demand, shewing how the plaintiff made out the sum of 20,4277. 19s. 6d.

Willes, on a former day in this term, obtained a rule nisi to rescind the last-mentioned order.

Montagu Smith now shewed cause. He submitted that the order of Williams, J., only imposed a reasonable limit to the plaintiff's claim. [Maule, J. Why should the plaintiff be called upon to shew the payments which reduce the amount to the sum he claims to be entitled to recover?] The order of Williams, J., would be complied with, by striking out the clause at the end of the particulars last delivered.

Willes was not called upon to support his rule.

Per Curiam. We think the rule to rescind the order

of Mr. Justice Williams must be made absolute.

1853.

FUSSELL

v.

GORDON.

Rule absolute.

1853.

June 1.

The plaintiff

being in the

defendant's

workshop, and

when desired, the defendant

READ v. COKER.

ASSAULT and false imprisonment. The first count charged an assault committed by the defendant on the refusing to quit plaintiff on the 24th of March, 1853, by thrusting him out of a certain workshop; the second count charged a similar assault on the 22nd of April, and an imprisonment of the plaintiff without reasonable cause; the third count charged a second assault and false imprisonment on the same 22nd of April; and the fourth count an assault and false imprisonment on an unfounded charge of felony, on the 27th of April.

and his servants surrounded him,

and, tucking up their sleeves and aprons, threatened to break his neck

if he did not go out; whereupon the plaintiff, apprehensive of violence, departed:Held, an assault.

In order to entitle a party to notice of action for a thing done "in pursuance" or "in

the execution," of an act of

parliament, it is

not necessary

Plea, not guilty "by statute," upon which issue was joined.

The cause was tried before Talfourd, J., at the first sitting in London in Easter Term last. The facts which appeared in evidence were as follows:-The plaintiff was a paper-stainer, carrying on business in the City Road, upon premises which he rented of one Molineux, at a rent of 8s. per week. In January, 1852, the rent being sixteen weeks in arrear, the landlord employed one Holliwell to distrain for it. Holliwell accordingly seized certain presses, lathes, and other trade fixtures, and, at be cognisant of the plaintiff's request, advanced him 167. upon the security of the goods, for the purpose of paying off the rent. The plaintiff, being unable to redeem his goods, on the 23rd of February applied to the defendant for assistance. acting strictly The goods were thereupon sold to the defendant by Hol

that he should

at the time of doing the act

the existence of

the statute

giving him such protec tion, or that he should be

in the execu

tion of it.

liwell, on the part of Read, for 25l. 11s. 6d.; and it was agreed between the plaintiff and the defendant, that the business should be carried on for their mutual benefit, the defendant paying the rent of the premises and other

outgoings, and allowing the plaintiff a certain sum weekly.

1853.

READ v.

COKER.

The defendant becoming dissatisfied with the speculation, dismissed the plaintiff on the 22nd of March. On As to the first the 24th, the plaintiff came to the premises, and refusing count. to leave when ordered by the defendant, the latter collected together some of his workmen, who mustered round the plaintiff, tucking up their sleeves and aprons, and threatened to break his neck if he did not go out; and, fearing that the men would strike him if he did not do so, the plaintiff went out. plained of in the first count. learned judge left it to the jury to say, whether there was an intention on the part of the defendant to assault the plaintiff, and whether the plaintiff was apprehensive of personal violence if he did not retire. The jury found for the plaintiff on this count, damages one farthing.

This was the assault com

Upon this evidence, the

As to the second count, the evidence was, that the As to the seplaintiff went to the premises again on the morning of cond count. the 22nd of April, and began pulling to pieces a press, when the defendant's workmen, in the absence of the defendant himself, caused him to be apprehended. Upon this count, the learned judge directed the jury to find for the defendant.

count.

As to the third count, it was proved that, in the after- As to the third noon of the same 22nd of April, the plaintiff went again to the premises, and began to unscrew a lathe, when the defendant sent for a constable, and caused the plaintiff to be taken before a magistrate upon a charge of wilful and malicious trespass, when the magistrate, finding the case involved a disputed claim to the property,—the defendant insisting that the machinery had been absolutely sold to him on the 23rd of February, and the plaintiff that he was jointly interested with the defendant as a partner in it,-declined to entertain the charge.

As to the fourth count, the evidence was, that, on the As to the fourth

count.

1853. READ

v.

COKER.

Direction to the jury as to the third and

fourth counts.

morning of the 27th of April, the plaintiff came to the premises with a van, accompanied by three or four men, broke open the door, and commenced removing the goods, and in the afternoon the plaintiff caused him to be taken into custody, and carried before a magistrate, on a charge of stealing in a shop, which the magistrate dismissed, upon the same ground as before.

On the part of the defendant, it was contended, that, the acts done by him being done under and in pursuance of the statutes 7 & 8 G. 4, c. 29, and 7 & 8 G. 4, c. 30, he was entitled to a notice of action under the 75th and 41st sections of those acts respectively. But the learned judge overruled the objection, remarking that the defendant could not be said to have been acting in pursuance of acts of parliament of the existence of which there was no evidence to shew that he had the slightest cognizance.

His lordship left it to the jury, as to the third count, to say whether the defendant really and bonâ fide believed that the plaintiff was committing a malicious trespass when he gave him into custody; to which the jury answered that they thought the defendant believed the plaintiff was committing a malicious trespass, but that the latter was in reality acting in the assertion of a claim of right. And, as to the fourth count, he left it to them to say whether the plaintiff was committing a felony on the 27th of April, when he was given into custody, and whether the defendant, when he gave the plaintiff into custody, bonâ fide acted under a belief that the plaintiff had committed a felony: the first of these questions the jury answered in the negative, and the last in the affirmative. The learned judge then asked them whether they thought there was any partnership between the plaintiff and defendant in the machinery: the jury found that there was. Upon the third count, the damages were assessed at 207., and, upon the fourth, at 57.