1847. SMITH V. HOPPER. another point.] It must be admitted that, if the words Queen's Bench. "in pursuance" &c. have not a different meaning when applied to the provision as to notice in the beginning of sect. 109, and that as to a verdict if the thing shall appear to have been done &c., the former provision becomes superfluous: yet it is difficult to say that the same words occurring in the same clause are to have two interpretations. Watson, Granger and Atherton, contrà. As the bona fides is not disputed, it is for the plaintiff to negative reasonableness. Now the general purport of the act might well lead the Board to believe that they were acting at least in analogy to the powers expressly conferred on them. Under sect. 69 the surveyor is to abate encroachments. [Wightman J. The party encroaching is to be fined, and the surveyor to cause the encroachment to be taken down; and the justices may direct the expense to be levied by distress, as in the case of forfeitures under the act.] The clause may not strictly justify what has been done; but the question is as to absence of all colour for it. A similar argument arises on sect. 73. Again, the plaintiff, supposing the highway to have existed, was liable to a penalty for placing the gate, under sect. 72: here the Board have merely done directly what (if they had been right in their belief as to the facts) they might have done indirectly by enforcing the penalty. Indeed, the sur- veyor having, under sect. 18, the Volume IX. law, not under the authority of the act.] Jones v. 1847. SMITH v. HOPPER. Gooday (a) is a case very closely resembling the present. ment. (a) 9 M. & W. 736. (b) 6 B. & C. 351. Watson referred also to a case (not reported) decided by the Court of Exchequer in Trinity term, 1845, where that Court held that an officer of the Metropolitan Police, who had entered a house to search for stolen goods without the warrant of a justice, was nevertheless protected by sect. 41 of stat. 10 G. 4. c. 44., having acted bonâ fide. (c) 1 M. & W. 628.; S. C. Tyrwh, & G. 920. (e) 10 A. & E. 582. 589. 1847. SMITH V. HOPPER. ance of a statute; for no one can say what may possibly Queen's Bench. come into an individual's mind on such a subject. Still, protecting clauses, like that before us, would be useless if it were necessary that the person claiming their benefit should have acted quite rightly. The case to which they refer must lie between a mere foolish imagination and a perfect observance of the statute." In Rudd v. Scott (a) it was attempted to shew that the defendant had so entirely misconstrued the act as to be without the protection of such a clause: but the Court held that it was rightly left to the jury whether he bonâ fide intended to act in pursuance of the statute. Lidster v. Borrow (b) is inapplicable: the party there acted as a volunteer, without colour of right; he merely fancied that he filled the character of gamekeeper. In The Company of the Proprietors of the Witham Navigation v. Padley (c) the question was whether, under the statutable general issue, the defendants could justify what they had done; for that, it was necessary that they should have followed the act strictly. The difficulty suggested as arising on the comparison of the two clauses, in sect. 109, as to notice and as to the verdict, does not exist. The notice is required when the thing is done "in pursuance of or under the authority of this act; " the defendant is to have a verdict if the thing "appears to have been done under or by virtue of this act." The former words apply to a fair belief on the part of the person acting: the latter require a compliance with the act. Cur. adv. vult. (a) 2 Scott's New R. 631. (c) 4 B. & Ad. 69. (b) 9 A. § E. 654. Volume IX. 1847. SMITH V. HOPPER. Lord DENMAN C. J., in this term (January 14th), delivered the judgment of the Court, waqt This was an action of trespass for breaking the plaintiff's gate, for which he recovered a verdict and considerable damages. The defendants claimed a nonsuit, because no notice of action had been given, though the trespass was committed (as they contended) in pursuance of the late Highway Act, though not strictly justifiable under its provisions. ides is The case was rendered quite peculiar from an admission on all hands, at the trial, that the defendants acted bonâ fide in committing the trespass. But several decisions have established that bona fides is not alone sufficient to bring a case within the privileges of such an act of parliament, which ought not to be accorded to a proceeding which the Court deems utterly unreasonable and absurd. And some of the cases have said (properly in our opinion) that it on) that it is not enough for the defendant to have thought generally that he possesses the power to do what was done; he must also think that it was done in execution of some particular provision of the statute which applies. ་་ We are of opinion that in this case the defendants might believe that they were acting in execution of the power to remove obstructions in public roads, without coming to a very irrational conclusion. The The argument against it is indeed founded on a specific clause which prescribes a different course of proceeding to this end but we are not prepared to say that officers of this description are bound to argue on a comparison of various clauses in a long act, and to decide correctly. We think that clauses which confer this privilege ought to receive a liberal construction, because officers de 1847. SMITH V. serve [the protection of a fair notice of the ground of Queen's Bench. complaint when they act bonâ fide: compensation, may then be obtained without further litigation: and there is no substantial inconvenience in requiring the party aggrieved to give such notice: on the contrary, he be greatly benefited by the result just alluded to. may Rule absolute. HOPPER. CASE. The declaration, charged that, whereas, before and at the time of the making of the conspiracy, confederacy, combination and agreement, and of the committing &c., hereinafter mentioned, defendant Frederick Charles Fitch exercised and carried on the trade and business of an auctioneer, and, as such auctioneer, had been and was retained and employed to sell and goods which were of E.; that defendants had caused to be published certain advertisewent ouncing the auction, and announcing that a certain quantity of choice wines would be sold thercat, and that they had been the property of E.; that defendants, knowing the premises, conspired to bring to the place of sale at the time of the sale wines of inferior quality which had not belonged to E., and falsely to represent to plaintiff and others attending the sale that these wines were valuable and had been the property of E., and were sold by order of his executor, and thereby to induce plaintiff and others to purchase them, and thereby to deceive and defraud the purchasers. That defendants did so bring &c., and did so falsely represent &c. ; whereupon plaintiff, at request of F., purchased a quantity of such wines, which were worthless, and had not belonged to E., as defendants knew. The three defendants pleaded separately. S. pleaded that he, S., had not caused the advertisements to be published modo et formâ; and D. pleaded that he, D., had not. Plaintiff demurred to these pleas, on the ground that the traverses were immaterial (a). A Judge, on summons, ordered the demurrers to be set aside as frivolous, or that the allegations in the declaration which the pleas traversed should be struck out. This Court, in banc, held the order to be right. Although S. and D., before obtaining the summons, had obtained time to join in de murrer. And although F., to whose plea (setting up a different defence) plaintiff demurred also, had joined in demurrer. (a) The abstract is confined to the ground of demurrer noticed by the Court.itto szurood or dispritzens |