« PreviousContinue »
Page 270, et
conviction, so as to make them liable to be sued by the plaintiffs for the goods. The interpretation clause as to 'property' in sect. 1 of 24 & 25 Vict. c. 96, is not to be read into sect. 100, so as to render the defendants liable to restore to the plaintiffs the proceeds of their sale of the goods. Lindsay v. Cundy, 45 L. J. Q. B. 381.
By 24 & 25 Vict. c. 97, s. 77 (Malicious Injuries to Property Act), the Court before which any indictable misdemeanor against this Act shall be prosecuted or tried may allow the costs of the prosecution in the same manner as in cases of felony, and every order for the payment of such costs shall be made out, and the sum of money mentioned therein paid and repaid, upon the same terms and in the same manner in all respects as in cases of felony.
A person deaf and dumb from four years of age was indicted for larceny from the person, and not answering when called upon to plead, the jury found the prisoner mute by the visitation of God.' The Court then ordered a plea of not guilty' to be entered, and the trial to proceed. A relation of the person, who could in some degree communicate with the prisoner by means of signs, was sworn to interpret the nature of the proceedings and the evidence, and the Court assigned counsel to the prisoner. At the conclusion of the case, after the summing up of the presiding judge, the jury found the prisoner guilty, but in answer to a question left to them in the summing up found that the prisoner was not capable of understanding, and, as a fact, had not understood the nature of the proceedings'-Held, that the above finding shewed that the prisoner was at the time of the trial of non-sane mind; therefore, that the Court were wrong in entering a plea of not guilty, and in allowing the trial to proceed. That they ought to have discharged the jury, and ordered the prisoner to be detained during Her Majesty's pleasure, under 39 & 40 Geo. 3, c. 94, s. 2; and the conviction was quashed. R. v. Berry, 45 L. J. M. C. 123.
The 16 & 17 Vict. c. 107, except certain sections, is repealed by the 39 & 40 Vict. c. 36. See s. 288 of this Act, post, p. 701.
The 17 & 18 Vict. c. 102, so far as it is not repealed, and certain enactments amending the same, are continued until the 31st December, 1877, by the 39 & 40 Vict. c. 69.
On the trial of an indictment for fraudulently placing ballot papers in a ballot box at a municipal election contrary to 35 & 36 Vict. c. 33, s. 3, a sealed packet was produced under the order of a county court judge, obtained under 35 & 36 Vict. c. 33, sched. 1, rules 40, 41, part ii., r. 64, and the counterfoils and marked register and voting papers produced therefrom were given in evidence, and the face of the voting papers inspected: Held, that the evidence was properly admitted. R. v. Beardsall, 45 L. J. M. C., 157.
L. was mortgagee in fee of a dwelling house, the possession being left in the mortgagor. The mortgagor while in possession let the house to T. for a goods store. It was otherwise unoccupied. Early one morning, during the continuance of T.'s tenancy, L., without giving any notice to the mortgagor or to T., went to the house, in company with a carpenter and another man. The carpenter opened the front door, and the other man entered the house. L. and the carpenter remained on the doorstep, the latter being employed in putting on a new lock. While this was happening, T., and his brother-in-law, W., with several other persons came up, and T. and W. climbed into the house through a window, and after a slight struggle expelled L. and his men from the premises. L. indicted T. and W. and others for a forcible entry, riot, affray, and assault. T. and W. were tried and acquitted. They defended themselves by the same solicitor, and incurred joint costs. T. & W. then brought an action against L. for malicious prosecution, and obtained a verdict, subject to
leave to move to enter a verdict for L., upon the grounds, first, that there was no reasonable and probable cause for the prosecution; second, that there was no evidence of malice; third, that there was no joint cause of action. The Court of Exchequer having set aside the verdict, and entered a verdict for L., and, the Court of Exchequer Chamber having reversed the decision of the Court of Exchequer :-Held, reversing the decision of the Court of Exchequer Chamber, that there was reasonable and probable cause for the prosecution, inasmuch as the facts shewed that T. and W. were, at the time of the expulsion of L., disturbing a possession which had been lawfully acquired by him. Lows v. Telford, 45 L. J. Ex. 613.
As to a body in whom the guardianship of the highway is vested having Page 439. the right of removing obstructions in the highway, see Bagshaw v. The Boston Local Board of Health, 45 L. J. Chanc. 260.
A. let to B. a field for the purpose of its being worked as a lime quarry. Page 441. The ordinary way of getting the limestone was by means of blasting, and A. authorised the quarrying of the stone and the erection of lime kilns in the field. A nuisance was caused to the adjoining occupier by the blasting and by the smoke from the kilns, and he brought an action against both A. and B. On demurrer by A.:-Held, that he, the landlord, was liable, although the nuisance was actually created by the act of his tenant, because the terms of the demise were an authority from him to B. to create the nuisance, which was, therefore, the necessary consequence of the mode of occupation contemplated in the demise. Harris v. James, 45 L. J. Q. B. 545; et per Blackburn, J. :-'In the present case, as I understand the averments, the field was let for the very purpose and object of being worked as a lime quarry, and for erecting lime kilns and burning lime. When, then, it is stated as a fact that the injury complained of arose from the natural and necessary consequence of carrying out this object, and as the result of lime getting and lime burning, then I think we must say that the landlord authorised the lime burning and the nuisance arising from it as being the necessary consequence of letting the field in the manner and with the objects described. In Rich v. Basterfield, 4 C. B. 483, the Court of Common Pleas came to a conclusion of fact which authorised their conclusion upon the case. There, a former occupier of the premises where the chimney was used to burn coke in the fire, and caused no smoke which could be at all injurious to the plaintiff; and the judgment proceeded on that ground, as is evident from the following passage-It being therefore quite possible for the tenant to occupy the shop without making fires, and quite optional on his part to make them or not, or to make them with certain times excepted, so as not to annoy the plaintiff, or in such a manner as not to create any quantity of smoke that could be deemed a nuisance, it seems impossible to say that the tenant was in any sense the servant or agent of the defendant, in doing the acts complained of. The utmost that can be imputed to the defendant is, that he enabled the tenant to make fires if he pleased." Assuming that the evidence really did establish the facts which the Common Pleas thought it did, and if it was not the necessary consequence of burning fires in the chimney that there should be smoke, I have no fault to find with the decision; but then, this case is not the same, because the fifth paragraph finds that the injury arising from the smoke and vapour is the natural and necessary consequence of the use of the land, and the plaintiff must therefore have judgment upon the demurrer to that paragraph.'
A public highway ran along the slope of a hill, beneath which was a Page 459. valley, the slope being at right angles to the valley, and very precipitous. A landslip of considerable magnitude occurred on the slope, and about 252 yards of the highway were carried off into the valley below, and its
place being filled up with stones and other débris, no trace of the old metalled road remained, but the line of it was known and admitted. An engineer, who had inspected the locus in quo, reported that it was practicable to form a permanent and passable road along the whole track, and of a similar character, at a moderate outlay. The Court had power to draw inferences of fact :-Held, that there was no such total destruction of the road as would relieve the parish from liability to repair. The Queen v. Hornsea (23 L. J. R. M. C. 59), distinguished. R. v. Greenhow, Inhab. of (45 L. J. M. C., 141.)
Defendant had a lamp projecting from his premises over a footway in a street. It fell on the plaintiff, who was passing underneath, and injured her. Defendant had shortly before employed a competent person, C., to put the lamp in good repair, but at the time it fell it was, though not to his knowledge, in a dangerous and decayed state. The jury found there was no personal negligence in the defendant, but there was negligence in C.-Held, by Lush, J., and Quain, J., that it was the absolute duty of the defendant, as occupier of the premises having a lamp in such a position, to prevent its becoming dangerous to the public; that if, in fact, it did become dangerous, it was a nuisance, and for any injury caused by such nuisance defendant was liable; and that he could not shift the liability arising from such a duty from himself by having employed a competent person to do the necessary repairs. By Blackburn, J., that as the defendant in this case had express knowledge shortly before the injury of the lamp needing repair, he was then bound to put it into reasonable repair; and was liable for the consequences of its not being in repair, arising from the breach of duty in the person, however competent, whom he had employed; it was therefore not necessary to decide, and quare, whether, if the danger arose from a latent defect, or from the act of a wrong doer without defendant's knowledge, he would be liable for an injury so happening.' Tarry v. Ashton, 45 L. J. Q. B. 260.
By the Epping Forest Amendment Act, 1872,' sect. 5, the Epping Forest commissioners may make orders prohibiting, until after their final report, any enclosure or waste of land within the forest, subject in their judgment to any forestal or common rights. The commissioners made a general order prohibiting all persons from committing waste upon a piece of land described until the final report, or until further order; all persons affected to be at liberty to apply to them as there might be occasion. The defendant applied to the commissioners by counsel as a person affected, but they refused to enter into the question raised. The defendant was convicted upon an indictment moved by certiorari for breach of this order:-Held, upon a case stated, that the order and the indictment were good. R. v. Walker, 13 Cox, C. C. 94.
Add to note (h)—R. v. Handley, 13 Cox, C. C. 79.
C. was summoned for trespassing in pursuit of coneys. He absconded, and a warrant was issued for his apprehension, addressed to all peace officers in the county of Devon. A constable in the county police force endeavoured to arrest C. at a time when he had not the warrant in his possession. C. resisted and assaulted the constable :-Held, 'that as the offence with which C. was charged was not felony, C. was justified in resisting the attempt of the constable to arrest him without having the warrant in his possession.' Cod v. Cabe, 45 L. J. M. C. 101; 13 Cox, C. C. 202.
ADDENDA ET CORRIGENDA
Add to note (r)-The following document was held to be a valuable Page 81. security within this section: London, July 19, 1875, I hereby agree to pay you 1007. sterling, on the the 27th instant, to prevent any action against me.' R. v. John, 13 Cox, C. C. 100, Brett, J.
Whilst in treaty with Messrs. G. and P. for the sale and transfer of a Page 390. public-house license, the prisoner was required by them to give security for the purchase money before they would assist him in procuring a transfer. To enable him to give the required security, the prosecutor accepted three bills of exchange drawn upon him by the prisoner, which the latter was to deposit with Messrs. G. and P. by way of security, and not negotiate or use for any other purpose, and if the transfer was not effected, was to return them to the prosecutor. The prisoner, instead of depositing them with Messrs. G. and P., converted two of them to his own use:-Held, that the prisoner was not an agent' within the 75th sect., nor a 'bailee' within the 3rd sect. of 24 & 25 Vict. c. 96, and could not be convicted under either. R. v. Cosser, 13 Cox, C. C. 187, Bramwell, B.
The 16 & 17 Vict. c. 107, s. 95, is repealed by the 39 & 40 Vict. Page 402. c. 36, noticed post, p. 692.
See 39 & 40 Vict. c. 36, The Customs Consolidation Act, 1876,' Page 786. noticed post, p. 692.
The 6 & 7 Will. 4, c. 85, s. 38, is repealed by the 37 & 38 Vict. c. 35. Page 811. See vol. 3, p. 28.
Seventh line from top, insert 'c. 97,' instead of 'c. 17.'
ADDENDA TO VOLUME III.
The defendants were indicted, as directors and promoters of a certain company called the Eupion Fuel and Gas Company, Limited, for conspiring to induce the committee of the Stock Exchange to order a quotation of the shares of the company in their official list, and thereby to induce and persuade divers of the liege subjects of our Lady the Queen, who should thereafter buy and sell the shares of the said company, to believe that the said company was duly formed and constituted, and had in all respects complied with the rules and regulations of the . . . . said Stock Exchange, so as to entitle the said company to have their shares quoted in the official list of the said Stock Exchange ;—Held, that the indictment disclosed an indictable offence, The King v. De Berenger discussed and followed. R. v. Aspinall, 45 L. J. M. C. 129.