Cotterell v. Jones. JERVIS, C. J. In the view which the court takes of this case, it is not necessary to consider the principal point which has been discussed; because, whether an action lies or not, for bringing and prosecuting an action in the name of a third person maliciously and without reasonable and probable cause, whereby the party against whom that action is brought sustains an injury, it is admitted that, unless an injury be sustained, no such action will lie. It is also admitted, that if the action had been brought by a solvent plaintiff and had been determined in favor of the defendant, and there had been an adjudication of costs in his favor, he would have sustained no injury, and would have had no action against the party who sued him, although without reasonable and probable cause; because, in contemplation of law at least, he would have had compensation in the shape of his costs. We must, therefore, look at this record to see whether it shows that an injury has been sustained. Now, it was necessary, in this case, the action being founded on malice and the want of reasonable and probable cause, to show that the original action was at an end. The judgment of nonsuit is therefore stated, and it is stated in these words: "when the said L. H. Osborne was nonsuited, and afterwards it was considered by the said court that the said Osborne should take nothing by his writ, but that he and his pledges to prosecute should be in mercy, &c.," and there the statement of the judgment terminates. We think the court is bound to notice that a judgment of nonsuit entitles the defendant to costs if he applies for them, and that, if the defendant had applied for them, judgment for his costs ought to have followed. The mere obligation of a judgment against Osborne does not amount to an allegation that the plaintiff sustained any injury. The only injury alleged is the being unable to obtain his costs; but how is it possible to say that that injury, if he has sustained any, does not result from his not having made the proper application for them? It is sufficient, therefore, to say that it does not appear that the only injury relied upon was not in consequence of the act of the plaintiff himself, and in no way owing to the defendants. MAULE, J. I agree. I think that the declaration is insufficient in not showing that any damage was sustained by the plaintiff in consequence of the act of the defendants. It is conceded that extra costs, that is, costs ultra the costs awarded by the court to a successful defendant, are not recognized by law. That being so, how does the case stand as to damage? The declaration says that, in the action brought by the now defendants, it was considered that the plaintiff should take nothing by his writ, and that he and his pledges should be in mercy, "whereupon and whereby the said suit was and is wholly ended and determined.". That is a correct description of a final judgment on a nonsuit where no costs are awarded. In order to make the non-payment of costs a legitimate subject of damage, it must be shown that they are such costs as properly follow the judg ment of the court in which the action was brought; but here it does not appear there were any such costs, for here he was entitled to Cotterell v. Jones. no costs unless he applied for them, and it does not appear he has applied. All he asks for here he has been paid; that is, nothing. Or the case may be looked at in this way: in an action in the nature of conspiracy, you must show that the cause in which the plaintiff was proceeded against, is at an end. That is shown here. Then, if any vexation had taken place, it was competent to the court in which that action was brought to award costs to the present plaintiff: no costs were awarded; that shows that none were incurred; the plaintiff, therefore, had all the recompense he was entitled to, and the cause was brought to its proper termination without the plaintiff having incurred any costs. The declaration therefore fails in that respect, and the judgment must be arrested. The WILLIAMS, J. I am of the same opinion. I think it is clear that no action lies for commencing and prosecuting an action in the name of a third party, without an allegation of damage caused to the plaintiff, even though it be alleged that the action was brought and prosecuted with malice and without reasonable and probable cause. If such an action be brought and prosecuted maliciously and without reasonable and probable cause, I think there is no doubt an action will lie for it, provided legal damage have been sustained. question, therefore, is, whether the declaration contains any statement of legal damage. Now, it is unnecessary to say whether, if the declaration averred the recovery of costs by the judgment in the action prosecuted by the defendants, and that those costs had not been ob tained by the present plaintiff by reason of the insolvency of the plaintiff in that action, that would have been a sufficient statement of legal damage; because I agree that there is no sufficient averment that the plaintiff ever gained a legal right to costs, and there is, therefore, no averment that any costs to which he had a legal right were not obtained by him owing to the insolvency of Osborne. There is, therefore, no averment of legal damage, and the plaintiff must fail. TALFOURD, J. I am of the same opinion. It appears, from the whole current of the authorities on the subject, that such an action is only maintainable for legal injury actually sustained by the plaintiff. It is also clear that the mere expenditure of money by the plaintiff in consequence of the action brought against him is not sufficient to give him a right of action, but only the non-payment of such proper costs as the court would award. But in this case there is no averment that any costs were applied for; we cannot tell whether any were awarded or not: if not, it may have been owing to the plaintiff's own act that he did not obtain them. There is, therefore, no allegation that any legal damage had been sustained by the plaintiff, and the action cannot be maintained. Rule absolute. Burton v. Brooks. BURTON, appellant; BROOKS, respondent. BURTON, appellant; Cove respondent.1 November 13, 1851. Parliament Appeal-Jurisdiction of Common Pleas - Signing Case 6 Vict. c. 18, s. 42- Freehold Interest - Evidence. Where the case transmitted to the Court of Common Pleas contains no signature of the revising barrister at the end of it, the Court of Common Pleas cannot entertain the appeal. But the court allowed an appeal to be argued, the respondent consenting to have the sig nature inserted. A case stated that the respondent, being minister of a congregation, occupied premises worth more than 40s. per annum, under the trusts of a deed, one of which trusts was "to permit the minister for the time being to reside in the premises rent free," and that the evidence of the respondent's appointment was his own statement that it was for life. The legal estate was in the trustees: Held, that there being no appeal upon questions of evidence, the case disclosed an equitable estate for life in the respondent, entitling him to a vote. THESE cases, stated by the revising barrister for the southern division of the county of Northampton, were found to contain no signature of the revising barrister, as required by 6 Vict. c. 18 s. 42,2 but only the indorsement required by a subsequent part of the same section. [JERVIS, C. J. The 62d section enacts, that every appellant who shall intend to prosecute his appeal, shall, within the first our days of the next Michaelmas term, transmit to the masters of the Common Pleas the statement in writing "so signed by the said revising barrister as aforesaid." Then the masters are to enter the appeals, and then by section 63, the court is to hear the appeals "entered as aforesaid." We cannot repeal the act of parliament.] Humfrey, for the appellants in both cases, submitted, that, under section 65, the case might be remitted to the barrister. [TALFOURD, J. The case can only be remitted to the barrister "by whom it shall have been signed."] Hayes, for the respondent in the first case, consented to have the signature inserted in the proper place at the end of the statement, and to take no objection on account of its not having been placed there at the proper time. 121 Law J. Rep. (N. s.) C. P. 7. Appeal from Revising Barrister's Court. 2 Which section, after providing that the revising barrister, when he has received notice of appeal, shall, if he thinks fit, state in writing the facts established by the evidence, and his decision upon the whole case, and his decision upon the point of law in question appealed against, enacts that "the said barrister shall read the said statement to the appellant in open court, and shall then and there sign the same; and the said appellant or some one on his behalf, shall, at the end of the said statement, make a declaration in writing under his hand to the following effect (that is to say,) I appeal from this decision.' And the said barrister shall then indorse," &c. · Burton v. Brooks. JERVIS, C. J. We will hear the first case, which has now been signed, and we are not supposed to know when. In the second, no one appears for the respondent; therefore, no one can consent to the same course being taken, and we cannot dispense with the requirements of the act of parliament. That case must, therefore, be struck Burton v. Cove struck out. out. BURTON V. BROOKS. The case stated that the respondent filled the office of minister of a dissenting congregation, and occupied a house and premises worth more than 40s. per annum, under the trusts of the following deed, the legal estate being in the trustees of the deed. "Upon trust from time to time, and at all times thereafter to permit and suffer the said Samuel Deacon, the then minister of the said congregation of Protestant dissenters called Baptists, belonging to the said meeting-house, for and during his life if he should so long continue minister of the said congregation, and after the death of the said Samuel Deacon, or his ceasing to be minister of the said congregation, to permit and suffer the minister for the time being, such minister to be from time to time elected and appointed by the majority of persons of and belonging to the said congregation, to dwell, inhabit, and reside in the said cottage or tenement, and occupy and use the same with the orchard, &c., thereto belonging, without paying any rent for the same. And upon this further trust, from time to time and at all times thereafter to permit and suffer the congregation of Protestant dissenters called Baptists, whereof the said Samuel Deacon was then minister, and every succeeding congregation of Protestant Baptist dissenters at Roade aforesaid, when and so often as they should think fit, to use the said erection and building erected and built on the said orchard as and for a meeting-house, &c." The case also stated that the evidence of the respondent's appointment was his own statement, that it was general and for life. It was objected that the respondent under the circumstances above stated did not take a freehold interest. The revising barrister decided that he did, stating a case in which the above facts were set forth. Humfrey, for the appellant. The respondent in this case was a mere tenant at will. Doe d. Nicholl v. M'Kaeg, 10 B. & C. 721. [MAULE, J. That case only decides that, the legal estate being in the trustees, they might eject the minister; here, if the trustees brought an ejectment, they would be breaking their trust. It is quite consistent with the decision in that case that the respondent may here be an equitable tenant in fee.] There is no evidence in this case that he was appointed for life. [MAULE, J. The revising barrister says, "The evidence of his appointment was his own statement that it was general and for life." The statute gives no appeal " upon the admissibility or effect of any evidence adduced in any case to establish any matter of fact only." Section 65.] Beamish v. Overseers of Stoke. JERAIS, C. J. The revising barrister finds that the evidence of the respondent's appointment is his own statement that it is for life. The statute gives no appeal upon questions of fact or admissibility of evidence. The respondent is, therefore, found to be appointed for life, and holding under the trusts of the deed. He has, therefore, an equitable life estate, and the decision of the revising barrister must be affirmed. MAULE, J., WILLIAMS, J., and TALFOURD, J., concurred. BEAMISH, appellant, v. OVERSEERS OF STOKE, respondents.1 November 13, 1851. Parliament County Vote Mortgagor in Possession Building Society Payments in Reduction of Mortgage Debt - Annual Value of Estate-8 Hen. 6 c. 76 & 7 Vict. c. 18, s. 74. The claimant, a member of a building society, purchased land of the yearly value of 61. and mortgaged it to the trustees of the society for the amount of the purchase-money, which they had advanced to him. He was also a holder of three shares in the society. By the rules of the society he was bound to pay 1s. 6d. weekly for each share (11/. 14s. per annum.) And by the mortgage, which was in accordance with the rules of the society, power was reserved to the trustees, on neglect or refusal to observe any of the regulations, &c. to sell the premises, &c., and receive the rents. By the mortgage a sum equal to 5l. per cent. as premium for prior advances was to be and was secured; and the sum fixed to be paid for incidental expenses was 6s. per annum, which was also secured. Of the 117. 14s. per annum, 21. 16s. was appropriated to the payment of interest on the money still due upon the mortgage, and for incidental expenses, and the remainder was taken in part discharge of the mortgage debt, and a receipt given from time to time: Held, that the whole 117. 14s. must be deducted from the annual value of the estate, and therefore that the claimant had not an estate of the value of forty shillings by the year, within the meaning of the 8 Hen. 6, c. 7, and the 6 & 7 Vict. c. 18, s. 74, and was not entitled to a vote for a knight of the shire. THE following case was stated for the opinion of the court, by the revising barrister for the northern division of Warwickshire. The claimant, J. S. Beamish, is a member of the Coventry and Warwickshire Benefit Building and Investment Society (established under the 6 & 7 Will. 4, c. 32,) in which he held three shares. The rules of the society are duly certified and allowed by the barrister. Rules 5, and 7, require each member to pay 1s. 6d. weekly for every share he may hold, and rule 12, provides, "That all members, upon receiving the amount advanced, shall execute to the trustees for the time being a legal mortgage for the property offered as a security, to secure to them the sum he may be indebted to the society, with a premium for prior advances equal to 5l. per cent. per annum for incidental expenses as the committee shall fix," in which mortgage, power is to be reserved for the trustees, "in case the member taking the 121 Law J. Rep. (N. s.) C. P. 9; Appeal from Revising Barrister's Court. |