1791.

The KING

DERBYSHIRE.

Chambre, Balguy, and Clarke, who relied on the King v. the Justices of the North Riding of Yorkshire (a); observing that this was even a stronger case than that, because this act of par- against liament directs that the appeal shall be heard and determined The Justices of at the next Sessions. It is extremely doubtful whether under this act the Sessions could have adjourned the hearing of the appeal, because then it would not have been heard within six months after the cause of complaint. But, even if they had a discretion, it is a sufficient answer to this application that they' have exercised their judgment upon the subject.

The Court had no doubt but that the clause in the act was compulsory on the justices to receive the appeal, but not to respite it. And they said that, as this was a conditional motion, only to enter the appeal in case the Sessions would agree to respite the hearing, they could not compel the justices now to receive it. Rule discharged.

(a) Ante, 3 vol. 150.

THE

WARD against MACAULEY and Another.

Friday, Nov. 25th.

4. having let his house ready fur

nished to B. can

the sheriff for

taking the furni execution against B.; though no

ture under an

'HE plaintiff was the landlord of a house, which he let to Lord Montfort ready furnished; and the lease contained a schedule of the furniture. An execution was issued against not maintain Lord Montfort, under which the defendants, sheriff of Middle- trespass against sex, seized part of the furniture, notwithstanding the officer had notice that it was the property of the plaintiff. For this the plaintiff brought an action of trespass against the defendants. At the trial Lord Kenyon thought that trespass would not lie, and that the plaintiff should have brought trover (a): a verdict, however, was taken for the plaintiff for value of the goods, with liberty to the defendants to move to enter up a nonsuit, if this Court should be of opinion that the plaintiff could not recover in this form of action.

Mingay obtained a rule for that purpose on a former day; against which

Erskine now shewed cause. The plaintiff may maintain trespass on a constructive as well as an actual possession. Bro. Abr. Trespass, pl. 303. In Smith v. Milles (b), where, indeed, the sheriff was excused because he could not be made a trespasser by relation, Ashhurst, J. in giving the judgment of the Court, (a) Trover does not lie in this case; because pending the demise the landlord is not entitled to recover the possession. Vide Gordon v. Harper, post. 7 vol. 9.

(5) Ante, 1 vol. 480.

tice were given that the goods belonged to A.

1791.

WARD against MACAULEY.

said, "to entitle a man to bring trespass, he must at the time "when the act was done, which constitutes the trespass, either "have the actual possession of the thing, which is the object "of the trespass, or else he must have the constructive posses"sion in respect of the right being actually vested in him.” The right to personal property is not divested out of the owner, because he gives the temporary use of it to another. In the case of a carrier, the owner may maintain trespass, on the ground of his having the general property; and the carrier trover on account of his special property.

Lord KENYON, Ch. J.-The distinction between the actions of trespass and trover is well settled: the former is founded on possession: the latter on property. Here the plaintiff had no possession; his remedy was by an action of trover founded on his property in the goods taken. In the case put of a carrier, there is a mixed possession: actual possession in the carrier, and an implied possession in the owner.

BULLER, J.-The carrier is considered in law as the servant of the owner, and the possession of the servant is the possession of the master.

Per Curiam,

(a) Ante, I vol. 480.

Rule absolute (a).

Friday, Nov. 25th.

The 9 G. 2. c. 35.. 26. which enacts that prosecutions for as

saults on re

TH

The KING against CARTWRIGHT.

HIS was an indictment against the defendant for an assault upon an excise officer. Several counts charged the offence as committed against the prosecutor while in the exercise of his may be tried in office: another count only charged a common assault; but even any county, only this described the prosecutor to be an excise officer. And all the

venue-officers

extends to as

saults on them counts stated the offence to have been committed in Surry. quà officers.

And a defendant The venue was laid and the trial had in Middlesex; when the having been found guilty on defendant was acquitted upon all the counts, but that charging an indictment of him with a common assault, of which alone he was found

a common as

secutor who was

sault on the pro- guilty. A motion was made in arrest of judgment for a misan excise officer, trial, on the ground that the 26th clause in the 9th Geo. 2. c. this Court arrest- 35. which enacts, "that for the better and more impartial trial ed the judgment, though the pro"of any indictment or information which shall be found, secutor was described to be an "commenced, or prosecuted for any assault made or committed excise officer, the upon any of the officers of the customs or excise, every such offence being laid in Surry and the offence shall and may be inquired of, examined, tried, and

venue in Middle

sex.

"deter

"determined in any county in England, in such manner and "form as if the same offence had been therein committed," only extended to assaults on officers when in the exercise of their office.

so.

The Attorney-General, Bearcroft, and Wood, for the Crown, contended, that the words of the statute were general, and warranted no such limited construction as was attempted to be put on them. They stated, that they were instructed, that there had been many instances of similar convictions, and judgments, upon them; and that the general course of practice had been And the benefit intended to be conferred on revenue officers by the act, will be very materially defeated, if a more narrow construction prevails: for their situation necessarily exposes them to the resentment of those whose goods are seized, and of their connections; and if they are assaulted for having done their duty on any former occasion, and cannot obtain a fair trial in the place where such assault happened, the probability of which is presumed by the act, the mischief is just as great as in the instance admitted to be provided for by the act.

Erskine, for the defendant, argued from the absurdity of such an extensive construction as was intended for, and from the general purviews of similar statutes made in pari materiâ; which were passed for the protection of the revenue, and could never have been intended to apply to private quarrels between its officers and other persons. The protection afforded to excise and custom-house officers is quà officers; and must be meant only while they are officiating as such.

The Court were all of opinion that the 26th section of this act of parliament must be confined to prosecutions for assaults on the revenue officers when in the execution of their office, and that the mischiefs from a contrary determination would be intolerable.

And

BULLER, J. added, That the intention of the Legislature might be collected from other parts of the act, which was made for the sake of the revenue, as its title imported. The first section enacts, that all persons who have incurred penalties and forfeitures against the revenue laws, "and any persons who have "beat, abused, obstructed, or hindered any officer of the customs or excise in the due execution of their duty," &c. shall be by the authority of that act acquitted, &c. of and from all the said offences, except as therein excepted. Now it is fair to infer that the Legislature meant to extend the indemnity to all those cases

66

1791.

The KINO against CARTWRIGHT.

in which by the subsequent clause they gave the right of changing the venue. But the first clause must clearly be confined to assaults on the revenue officers in the execution of their duty: a mere personal assault on a prosecutor not in the exercise of his office, but who happened to be an officer, would not be pardoned by this act. Then the subsequent clause, on which this question arises, may be construed with the same restriction and qualification; and, when it speaks of " assaults on any of the officers of the customs or excise," it means assaults on them quà revenue officers.

Rule absolute.

Saturday, Nov. 26th.

The rule of Tr.

31 G. 3. which orders that after

Mich.Termnext,

no attornies act

clerks to other

attornies shall

take clerks

under articles,

no service with

attornies so act

Exposition of the Rule of Court of Tr. 31 Geo. 3.

ante 379.

BALDWIN, after adverting to the late rule of Tr. 31 Geo. 3. relating to attornies' clerks, whereby it is "ORDERed, That from Michaelmas Term [then] next ensuing, no attorney ing as writers or "who shall be retained or employed as a writer or clerk by any "other attorney shall, during the time of such employ, take "or have any clerk under articles; and that no service to any and declares that "such attorney under articles, during the time that such at"torney shall be so employed by any other attorney, shall be deemed good service," &c. desired the opinion of the Court, upon the subject of the assignment of an articled clerk, who had served an attorney for three years under such circumstances, whether the rule in question was intended to have a retrospective operation with respect to services already performed, or merely to such as were to commence from the present Michaelmas Term? The former construction, he suggested, would press very hard upon individuals, who had already served a great part of their time in this manner under a general persuasion, warranted by the common practice, that such service was valid. But

ing shall be good service; applies to services per

formed as well before as after Mich. Term.

The Court said, That the rule, which was only made in conformity to and in furtherance of the act of parliament (a), could not be limited in restraint of future services of this nature only; for the mischief intended to be remedied was the admission of improper persons as attornies; which required as much to be prevented now as at any future time; and no hardship could be complained of, as the rule was not introductive of any new regulation, but confirmatory of an old one.

(a) 22 Geo. 2. c. 46. s. 7.

1791.

MESSIN against Lord MASSAREENE and Wife.

Monday, Nov. 28th.

The defendant

THE plaintiff, having obtained a judgment against the de- having suffered fendants in the Chatelet of Paris, brought an action of as- judgment by default in an action sumpsit here on that judgment, in which the defendants suffered judgment to go by default; whereupon

of assumpsit on

a foreign judgment the Court

it to the Master

due, and give the

Walton obtained a rule, calling on the defendants to shew would not refer cause why it should not be referred to the Master to see what to see what was was due for principal and interest, and why final judgment plaintiff leave to should not be entered up for such sum, without executing a writ enter up of inquiry?

Holroyd was now shewing cause, on the ground that there was no instance in which such a rule had been made; and that the reason (a) of the former cases (b) on bills of exchange did not extend to this; when

Lord KENYON, Ch. J. said, This is an attempt to carry the rule farther than has yet been done: and as there is no instance of the kind, I am not disposed to make a precedent for it. BULLER, J.-Though debt will lie here on a foreign judgment, the defendant may go into the consideration of it.

Rule discharged.

(a) The value of the foreign money is uncertain. Vid. Bagshaw v. Playn, Cro. El. 536, and Rands v. Peck, Cro. Jac. 617.

(b) Shepherd v. Charter, ante, 275. Rashleigh v. Salmon, H. Bl. Rep. C. B. 252, Andrews v. Blake, ib. 529, and Longman v. Fenn, ib. 541.

judgment for such sum, without executing a

writ of inquiry. [14 East. 625.]

IN

The KING against The Sheriff of Middlesex.

Monday, Nov. 28th.

It

larly put in till

the allowance of

ser

it

N a cause of Metcalfe against Aylett, an attachment was Bail is not reguobtained against the sheriff for not bringing in the body. appeared that bail was put in and justified, but there was no vice of the rule allowing the justification: but the plaintiff was present at the time of justifying, and opposed the bail, though unsuccessfully. A rule was obtained by

has been [2 B. & P. 341.] served, even plaintiff oppose

though the

the justification; and the sheriff is

tachment for not

Garrow, to shew cause why the attachment should not be liable to an atset aside, on the ground that the party's having been present, bringing in the and opposed the bail, dispensed with the necessity of the defend- body, if the alant's serving the plaintiff with the allowance; for that the only served, though the bail justified.

use

lowance be not