Dews v. Ryley. [MAULE, J. Did the warrant here amount to any thing more than a statement made by the defendant that the court said the plaintiff should be committed?] If Even if it did not, the defendant would still be liable in trespass. In Bryant v. Clutton, 1 Mee. & W. 408; s. c. 5 Law J. Rep. (N. s.) Exch. 182, a person, who duly delivered an order to the marshal of the Queen's Bench Prison, was held liable in trespass. this warrant amounted to an authority given by the defendant to take the plaintiff into custody, the defendant is a trespasser. In the next place, the evidence given at the trial was not admissible under the general issue. It was the defendant's duty, at all events, to plead the order specially in order to bring himself under the 102d section of the 9 & 10 Vict. c. 95, which enacts that when any order of committal shall have been made "as aforesaid," the clerk shall issue a warrant of commitment. The words "as aforesaid" must mean according to the terms of the act, and the defendant should, therefore, have shewn in his plea that he was acting in accordance with the provisions of the statute. Watson and Manisty, in support of the rule. The judge had power to order the imprisonment. He ordered imprisonment forthwith, but, by the practice of the court the warrant does not issue for seven days. If the order had been erroneous, the judge himself would not have liable, if acting within his jurisdiction. Bushell's case, 1 Mod. 119, and Hamond v. Howell, 2 Ibid. 218. The clerk, in putting the seal of the court to the warrant, was guilty, at most, of an irregularity in making a misrecital, which does not vitiate an order. Cooper v. Harding, 7 Q. B. Rep. 928. [MAULE, J. The mandatory part of the warrant is quite correct.] The clerk had no control whatever over the warrant, when once it had issued. The issuing of it became the act of the court. Whitelegge v. Richardson, 3 B. & B. 188. Trespass will not lie even against a judge acting without jurisdiction, unless he is shewn to have been aware of it. Calder v. Halket, 3 Moo. C. C. 28. But the clerk here acted in a ministerial capacity only; and a ministerial officer is not liable in trespass. Buron v. Denman, 2 Exch. Rep. 167. The case of Andrews v. Marris is distinguishable from the present, as the clerk there acted spontaneously; and besides, the question whether trespass was the proper form of action was not raised there. The objection as to the general issue is answered by the statute 13 & 14 Vict. c. 61, s. 19, which must apply to clerks as well as bailiffs, and enables them to give special matter in evidence under the general issue. Cur. adv. vull June 17. JERVIS, C. J., now delivered the judgment of the court.1 Upon the trial of this case, my Brother Maule doubted whether there was sufficient evidence to fix the defendant, but directed the jury to assess the damages for the plaintiff, and gave the defendant leave to 1 JERVIS, C. J., MAULE, J., and Cresswell, J. Dews v. Ryley. enter a nonsuit, if, upon consideration, the court should be of opinion that the defendant was not liable, and that the defence was admissible upon the record. The only evidence against the defendant was the warrant, sealed and signed by him as clerk of the court. The defendant produced a minute of the proceedings at the court held on the 10th of October, which, after stating the particulars, the amount claimed, and the judgment, under the word "Order" contained the following entry: "On the 17th of October instant, or thirty days' imprisonment for not attending." The judge of the court proved, from a private memorandum, that he intended the order to be for a commitment forthwith, with an understanding that it should not be enforced till after the 17th of October. By the statute 9 & 10 Vict. c. 95, s. 111, the clerk is directed to cause a note of all orders and proceedings of the court to be fairly entered in a book, and a copy of such entry, duly authenticated, is at all times to be admitted as evidence of such entry and of the proceedings referred to by such entry or of the regularity thereof. We are bound therefore, by the copy of the entry so produced, and must assume, contrary to the evidence given by the judge, that the order was, that the present plaintiff should be imprisoned for thirty days for not attending, unles she paid the debt and costs on or before the 17th of October. According to the decisions of this court, confirmed in this respect by the court of error, this was a bad order; but it is correctly stated in the warrant produced, and the question is, whether the clerk of the court is liable in trespass. We are of opinion that he is not. By the 102nd section of the County Courts Acts, "where any order of committal shall have been made as aforesaid, the clerk of the court shall issue under the seal of the court a warrant of commitment," &c. It is said that the words "as aforesaid" by reference to the preceding section, require that the order should be in compli ance with the terms of the act, and that this section is not obligatory upon the clerk where the order is bad, and cannot be sustained. This is not, in our opinion, the correct construction of the act. It would throw upon the clerk the duty of reviewing the decision of the judge, his superior officer. The clerk is a mere ministerial officer to carry into effect the order of the judge, and cannot be liable in trespass for the mere performance of his duty cast upon him by the express language of the act of parliament. The case of Andrews v. Marris, cited in the argument for the plaintiff, is distinguishable in several material respects from the present, and does not conflict with our decision. In that case, the local act empowered the commissioners, if they made an order or decree for payment of a sum of money forthwith to award execution against the body or goods of the defendant, and thereupon the act required the clerk of the court to issue a precept under his hand and seal by way of capias ad satisfaciendum, &c. If the commissioners thought fit to order payment by instalments, they might do so, and if they adopted this course. the award of execution was to be made only in case of failure in payment of an instalment and proof of that failure, upon which the commissioners present in court were em Dews v. Ryley. powered to award execution in manner aforesaid for the unpaid resi due of the debt, and for such further costs as to them should seem just and reasonable. It is clear, therefore, that under that act execution could not lawfully be awarded after an order to pay by instalments, until proof had been made of the default before the commissioners present in court who were to exercise a discretion as to costs. In fact, no proof of default had been made before the commissioners, and they had made no award of execution, for the words "or execution to issue," at the end of the order for the payment by instalments, are clearly no award of execution, being silent as to the mode of execution and the amount of either the sum of money or the costs for which it should issue, but amount to no more than a warning to the defendant that in default of obedience to the order, execution may issue against him. The defendant Marris, therefore, in issuing the precept, acted without any order of the court requiring him to issue it; and although it appeared that a practice had prevailed with the concurrence of the commissioners that the clerk should issue a precept in such a case, without any order, the defendant in issuing it was usurping a power which the commissioners could not confer upon him. In the case of Andrews v. Marris also, the precept was under the hand and seal of the defendant, and by that order the defendant, required the sergeant to arrest the plaintiff, and if it had been made, as it professed to be made, by order of the court, it would have been correct; but, in fact, there was no such order of the court; the defendant therefore had in terms ordered the arrest of the defendant without any authority to do so. In the present case, the order of the court, as it appears by the minute, is that the plaintiff shall be imprisoned thirty days if he do not pay 4l. 11s. 4d. debt, and 11s. 4d. costs, on the 17th of October. The warrant is under the seal of the court, and purports to be a command by the court in strict conformity with the minute. It is indeed signed by the defendant as clerk of the said court, but this seems only to mean that he attests in that capacity that the warrant is the act of the court whose seal it bears. In the case of Andrews v. Marris, therefore, the defendant in his own name ordered the arrest of the plaintiff, assuming to do so by force of an order of the commissioners, who, in fact, had made no such order. In the present case the court did, in fact, order the arrest of the plaintiff, and the defendant did no more than authenticate the order as being the act of the court. But it was said, in the argument, that the clerk must, at all events, produce evidence of the order to bring him within the 102nd section, and that for that purpose the order should have been specially pleaded; to which it was answered that he was merely a ministerial officer, that he was not a trespasser, even though the judge might be, and that he was well defended under the general issue. It is unnecessary to decide this question. The plea upon the record is "not guilty by statute," and the statute 13 & 14 Vict. c. 61, s. 19, applies to this case, and allows the defendant to plead the general issue and give the special matter in evidence. Although the primary object of that section is to protect high-bailiffs and their officers, it applies to actions brought against clerks jointly Hutchinson v. The Surrey Consumers Gas-Light and Coke Association. with high-bailiffs, and enacts generally that if any action shall be brought the defendant or defendants shall and may plead the general issue and give the special matter in evidence. For these reasons, we are of opinion that the rule for a nonsuit should be made absolute. Rule absolute. HUTCHINSON v. THE SURREY CONSUMERS GAS-LIGHT AND COKE ASSOCIATION.1 November 6, 1851. Company-Contract-7 & 8 Vict. c. 110, s. 23- Provisional and complete Registration. An action for work and labor does not lie against a company completely registered for work done for the company provisionally registered. A company completely registered is not liable on any contract made by the promoters before provisional registration. Quare, whether a company is liable, after complete registration, to be sued in its collective name upon contracts previously made by the provisionally registered company, when such contracts are within section 23, of the 7 & 8 Vict. c. 110. DEBT, for work and labor done by the plaintiff, an engineer, in the formation of the Surrey Consumers Gas-Light and Coke Association, procuring a site for the works, obtaining leave to lay down the mains, making plans, &c., and salary at 500l. per annum, agreed to be paid. Pleas First, as to 50l., parcel, &c., payment into court of 50%. and 1s. damages, and never indebted as to the residue; second, as to the said residue, payment. At the trial, at Guildhall, before Jervis, C. J., after Trinity term, it appeared that early in 1848, one Byron, then acting as promoter of the intended association with others, engaged the plaintiff as engineer, and agreed to give him 500l. for his services. In November, 1848, the company was provisionally registered. The plaintiff gave his whole time to the provisionally registered company during the whole of the remainder of 1848 and until May, 1849, when the company was com pletely registered, and after that time he remained in the service of the company. The Chief Justice left it to the jury to say whether enough had been paid into court to cover the amount of work done since complete registration, who found that the 50l. was enough; and he ruled that the plaintiff was not entitled to recover against the company for work done before it was completely registered, nor upon the contract made before provisional registration; upon which the verdict was entered for the defendants. Byles, Serj., now moved for a rule for a new trial on the ground of misdirection. His Lordship ought to have told the jury that under 121 Law J. Rep. (N. s.) C. P. 1. Cotterell v. Jones. section 23, of the 7 & 8 Vict. c. 110, the plaintiff was entitled to recover for work done by him for the provisionally registered company. [MAULE, J. You cannot have an action for work and labor done for the completely registered company, at their request; it was done for a provisionally registered, at their request.] In this case there was an express contract with the plaintiff to pay him 500l. a year. [MAULE, J. That was before provisional registration.] There was evidence of the adoption of that contract by the company after provisional registration. [MAULE, J. That point was not made at the trial.] MAULE, J. The direction to the jury was, that section 23, of the 7 & 8 Vict. c. 110, which enables the promoters of a company provisionally registered to make contracts of a certain description, did not validate this contract, which was made before provisional registration, as against the completely registered company. The point was not presented at the trial, how far, owing to any adoption subsequent to provisional registration, this might have been considered as a contract made after provisional registration, nor how far such a contract would bind the company after complete registration. I do not think that we ought to disturb the verdict of the jury by now suggesting that there was some evidence which might have raised these questions. WILLIAMS, J. The ground taken at the trial was, that the contract had been made before provisional registration, which the company were called upon after complete registration to perform. I think it is impossible to contend that any contract made by the promoters before provisional registration can bind the present company. As to any contract made by the promoters under section 23, I do not offer any opinion; but that question does not arise. TALFOURD, J., and JERVIS, C. J., concurred. Rule refused. COTTERELL v. JONES & ABLETT.1 November 25, 1851. Pleading Arrest of Judgment Action for maliciously bringing Costs on No action lies for commencing and prosecuting an action maliciously and without reasonable or probable cause in the name of a third party, without an allegation shewing that legal damage has been sustained. 121 Law J. Rep. (N. s.) C. P. 2; 16 Jur. 88. |