Court Of Common Pleas, Gu...
eIr. t-L.u Ty sravecs wnat uns was an action for arrcsting the wbti3, a=4Pib'ding them to bafl, maliciouasly, and without reason. cr prGa_^ cause. N7r.Ses,-ant PELL detailed the circumstances under vhich the iLFisoneht to recover. They werc assignees of a bankrupt, in that character had employed the defendant, who was an at- - to eondctan action. For. some reason, which he did uDot to insinuate as derogatory to Mr. Collins, they thought fit to the proceedings out of his hands, and to place them in those of Da. l)vi Frn this dcrcumstance, AMr. Collins probably eater. c resenatnent against his late clients, and sought for. an- oppor- Xof making tnem feel his powvr. Hia bill was originally C&ll but 407. was taken eff on taxation ; not, certainly, al. er on the gromnd of exces1ive chargs,- hut- partly because of o' its items were not chargeable to thc estate of the :S.xrwF ~ For the residue of the bill he thought fit to cause the ;!rfi to be arrested, though he inew they had a set-off reducing es emded to a few pounds. Basl was, of course, provided; the ofr31. lOs_ ias paid into Court; and Mr. Collins who hod ar- .-nd tkese gentlSemen fcr 601., now accepted this small sum Ilt fuul, ad an2nedS his sunit. To prove that-the arrest was malicioum a saeswsuld be produced, in which Mr. Collins observed, "that if Sey w=ld take the proceedings out of his hand<s they must not de- oa rn rzeeng him in the vAtncss.bo, to prove tfseir case, and evi. et4imoedd be given to show, that on the taxation of costs, and at ;:. timas, he bhd expreased himself with decided hostility towards An objection might perhaps be raised, that there wa no wznT for ajoint 060aon; but this, at aU events, would not-be de. hii to-day, brtt must be left for the Court to determine. MIr. &xgcnnr V&JerUGa, for the deferidant, suggeated that the ;- ionld find a dimclty in amsessing the damaes. ,IaLord Chief JusticeBEsT said there could be no donbt the da- . =ai sntt bejoint for both plaintiflT. As the obiection would ap. enron th 2recrd, he shoul give no opinion onitamerita;but al- o the cause to proceed. he afidavi ot debt sworn by the defendant, and the writ en- seA to levv GIl., were then put in and read. _bertOL?Jy,thc officer whoexecuted the warranty rproducedbthem. Vo cr=5avu=inatlon, he said Mr. Collins dczired bim to execute Z:: Lrit in the most gentle manner, not to makeit knowh,4 nndptst te pI.infs to) jas little inconvenience as possible. 'He1bidtrG -aSly had oeasio o to arrest them. Atthetime of the arr1stIfey -e livins in the same house. Hetook their word eash for tie othier; _ L. t;he evening Mr. Hodsell's brother came arJr2 sij- ` r4biW _l. He as oly in the house ten minutes, and iiirer inForined Nh= that hehd war-nts aginast eacb, and wxould be tatifiediVWith Eurara:u taionsunt5J it should be:eo;;veniantto gild b.5l~ - I Re.e-nined...Tbeother arrcsts were in suitls it fMI.'uel. I las;w?raD r,rnotthctlaintiff. arri EiDe Adas produced the ball-ondglveny iythe plain. <fi; Xr^Viy prve Jt3m"ecutlon-'1I.-C6llE4Go fbLad,oa nrrr eccesien,.esed Eis word for MIr. HEodsell hen he io ar. .l M.. gUo..ell paid the expeise of the baillbnd. ' - The mLt fr psy3ng 51. *10s. into couirt and- :Ils.coitiinthe- eg.;:1 r.zter, was read; and it was further jioXcdtEitC themonbq t2?5 take.n oatt of court by hlr. Collinis. :1r. Davirs, ~teatteyn for the plWintiffi, proved that he paid the- r yinceten:,rtz end thse cost, out of thejoint fa9dsdf1th&plaihitifs ~t amu;.;3ds obtatit a mulc o show-cause why0r.Wltir -should 5trny the s; hat it .wa~ dischatged w ith costi. ci wassubsti. -v:thy llr. Ceil.in; iii ~th2 aetiozi ."Barretty; V~BIger,!' as at. tsy fa tlh3 p1&intif&, after plea pleaded. Hlie coducst3.tie causa to trial, andihad communications with an articled clerk of Iy. Col. lin2 fesipectitig it.-''f 5'- ^- t: The lettev aaudid to, by Mr. Sergeant-Pelt'w-read. lt wai a-remonstrancewith l'lr. Hodeell, who vwia ar&siied` as"7Dear RodAell," o t the intention of taking away tlihe ihpe*j whicb'l'?cemed to -be ?oeardedl on a, supposition that it woiild iioti''bb prop't or'advia-' able for Mlr. Collins to costlnue the atiorey, i8"'ie wdald bea wit. ness. It contained the expression "If oua take'away'tile-papero, do nbot depend on seeing srue snx he wlinacss.bo ," ibd ttieg were quali- ficd by other7*ords intimating that thie ifair cb'uldbebetter settled in another way, and by. expressions 'that he should be sorry to thiow any obstarle in the way of what tlXey'th'ought best." . Mr.Davies'proceeaed:-lM . Col n's'bill was ixed&*hilehe was out oftow,n dating the long vacation. - On -his return to towin he re- ceived a letter from Mlr. Collins applying for the bil, which was an. sWered on te 7th of October. On the 17tb- of October he wrote, -stating that thc assignees claimed nset-bff'of 511., and that thev were ready to pAy the balance. - - A letter froms lr. collins of the 22d pf May 1821, was put in, to show ehNt he admitted a receipt on account o? the assignees of 211. Al r. Davies added, Mr. Collins had expressedahimself exceedingly displeased that the business was taken out of his hands. His Own bill in the dsfence of Collins's aetion was 181. 6s. 4d. Cross-eaxAmined.-After the 17th of October there was much cor- respoddence with Mr. Collins, which hadnot been proEluced. The plaintiffs recovered in the action against Bridger, on Collins's evi- dence. When the costs werc paid, CollinH saidhlsreason fortaking the .money out. of court was, -that he could not prove the delivery of a copy of his bill to Barrett and Hlodsell. Mr. George Martin, of the firm of Brown and Martin, stated that he attended for M1r. Davies on the the taxation of-Mr. Collins's bill against the plaintiffs. Tke amount of the bill driginally was 1011. and odd shillings,* the amount taken off was 411. WVarm language ,passed between Mir. Collins and the plaintiffs so that tbe sMaster reguired themlo withdraw. As the witnessand ir. Collins left the office, he said he would proceed, the witinesi thought " by arrest," against the plaintiffs, on which Air. Mlartin observed, the smore cor. rect course would be by petition to 'the Chancellor. In the biU was a Eharge of 81. 16s. for writing fifty lettcrs to apprize creditors of the place where they miglht receive a dividend, which was disallowed as a charge which could not be made against the estate; but for which the assignees, if liable at all, were liable in their personal character. trss.examined.Z_The laster taxes as between the assignees and the e.rtate, not as between the attorney and the assignees; and Se- veral items were disadlowed en the ground that though the assignees might be liable to the attorney personally, the estate could not be Sentcvnber.t ~ ~ ~ ~ ~ ~ no b chared iththem Th taatio tok pace bou th later end of hIr. Bel?iabam, whs keeps the Spur Inn, in the Borough, stated, that Mr. ColI~s- asked him if Alr. Hodsell owed him any moner and oa his ansTering " Some little," ho replied, "Then yoa sild see and get it." Mr. Robert Curtis, clerk to Messrs. Everett and Co., produced a bill endorsed by Mi..Collins of which the plaintitlk were drawers, and which Everett and Co. iscounted for sftr. Collns. It was for oill. 19. 4d., and bore date in 1829. This was the plaintiff"& case. Mr. Sergeant VAUGHAN' addressed the jury for the defendant. He expressed his confidence th5t if the plaintiffs obtained a verdict, they would be unable, in point oft lav, to sustain it; but he was still anxious to pre7ent that result, in order to protect the character of his client from the imputations cast upon it. To sustain this action, , there mnust be an entire absence of ibable cause, and also malice; and in truth there was neither, lt wdtadmitted that, independent of the set-off, Mr. Collins Ied a valid demand for 601. against the plaintiff.; and in the case of " Pigeon v. brown," 2 Campbell, 594, Lsord Bllenborough held, that where s.uch a demand exis.ted, the plaintiff might arrest for the whole sum without subjecting himself to this species of action. But here the set-off was denied, and the reason for accepting the sum paid into Cotrt was merely that Mr. ColDins had omitted to deliver an office-copt of his bill before he sued out a writ. He therefore called on the learned judge to decide that the arrest was not without probable cause, and that the action would not lie. But where was the malice? Wa.s it not disproved by the instructions to the officer to execute the warrants as delicatelv anad as privately a possiblc ? Was there any inconvenience really sustained; any pavation suffered; any credit lost; nay, was there even an arrest in point of fact or law? As to theletterwhicli had been introduced insidof the charge of malice, when taken altogether it proved its absenct; it contained expressions of regard; and was obviously written only to put arn end to the indecisive measutres of which the defendant had just reason to complain. All thegrounds, therefore, of the action fail?d, and the defendant was clearly entitled in law and in justice to a veidict. Alr. Sergeatt PELL rose, and, as the case of " Brown v. 2i. geon" had been cited, begged to observe- Mr. Sergeant VAuG_IAN*_.yMy Lord, I rise to order- Lord Chief Justice BEST.-Then, brother, I wish you would rise a little oftener. (A laugh.) Dlr. Sergeant PELL.-I was merely about to observe, that the Case of " Brown v. Pigeon" hbs been expressly, and eo somine, over- ruled by the pre.Sent Lord Chief Justice Abbott Lord ChiefJustice BEST summed up the care to the jury. They had been rightly told that the cause involved two questions-first, whether the arrest was without reasonable and probable cause; se- cond, whetlher it was malicious. The first was a question of law obr the Judge; and he had no hesitation in expressing his decided opi- nion that there was no probable cause for the arrest. There was a demand of 1011., reduced b, taxation to about 601., and then distinct warning given that the plaintifth claimed todeducta,l. by way of set- off, anl were ready to pay the balance. After this, the defendant chose to arrest for the whole of his bill, as if there werc no set-off; and this, nc'twithstanding the deciaion of Lord Ellenborough, which he was glad to hear had been over-ruled by Lord Chief Justice Ab- bott, ho was clearly of opinion was an arrest without probable cause and if that dedsion had not been over-ruled before, he was prepared to over-rule it now. The question whether the arrest was dictated by malice was a question for the jury; both ingredients must concur to form a ground ofaction, but they might infer malice from the to- tal want of probable cause; and what other motive could they sug- gest in the absence of all proof that there was any other ? But in this case, to his mind there was abundant evidence of malicious motiec. The plaintiffs had thought fit to remove the defendant from the conduct of a cause in which he was a material witness; and upon their communicating their intention, he gave them an in- timation that If they did so, they must not expect to see him in the witness.box,an intimation, wliich, if he intended it to operate as an inducement to continue him in the management of the cause, was improper, because he knew that the parties had the means of compelltmg lis attendance by subpc:na. True it was, that he had been their friend, and that this letter proved that all appearance of regard was not destroyed at the timc it was written; but it too often happened,that when friends becameenemies, thev pursued theirqaar. rcl with more bitterness than entire strangers. 'But this was not all. At the office of the Alaster there was an altercation, which proceeded with so much violence that the parties were ordered to withdraw; was this no evidence of malice ? Yet further: it was in proof that the defendant went to a person to whom Hodsell owed money, and advised him "- to see and get it ;" did not this show a disposition to oppress this plaintiffand destroy his credit ? Against all this, there was undoubtedly the fact that Mr. Collins directed the officer to whom the executtion of the writ was confided, to perform his duty in the nmost delicate manner, and not unnecessarily to expose the parties: but the jury must decide on the balance of evidence, and if they thought the proceeding by arrest was adopted, not to secure a debt, but to gratify evil and malignant feelings, thev would find a verdict for the plaintiffs, against wlhom the process' of law had been employed for purposes which the law would not sanction. In esti- matng the damnages, they were not confined to the mere expense 'which tbe plaintiffs had sustained, but might also consider the inconvenience and painful feelings which such a measure was natur. ally calculated to preduce. Wbetlher the parties could ultimately sustain the verdict in this joint action, he would not now decide: the objection was on the record, ardtherefore the defendant might bring it under consideration hereafter. The Jury tturned round to consider of their verdict. While they were so engaged, MVlr. Sergeant WrnLD, who was with Dtr. Sergeant Vaughan for the defendant, begged to suggest that the objection to the action as Joint would not appear on the record, because the declara- tion alleged a juint damnage, which, af;er verdict, must be taken as pr-ored. AS, therefore, the verdict would conclude them on this point, it' it passed without observation, he begged for leave to move to enter Lord Chief Justice BgST.-No ;l cannotgive you leave to move: the objection is on the recerd. MIfr. Sergeant VAuoGRAN..Then, my Lord, I shall feel it my duty, with all deference to your Lordship, to tender a bill of ex. Lord Chief Justice BEsT.-Well, then, write down fnur excep. tions: I can wait till they are ready. Air, Sergeant VAU GRAN.-.Mly Lord, I am sure I have no wish to take this course. I only desire to have it open to me to move hereafter-that I may not be concluded by the finding of the jury. The LORD CRIXEF JUSTICE.-If thle Court think you entitled to a nonsuit, brother Vaughan, you shall have It; 1 will reserve it, so that you shall take any rusle the Court may think proper. Mr. Sergeant PErL.f-ly Lord, to prevent any difficulty, I am ready to engage on the part of the plaintiffns, to take no technical ob. Jection to any motion my learned brother may make to the Court bu t to meet him on broad legal grounde. Thejury here retunied a verdict for the plaintiffs-Damages 201. Lord Chief JustIce BEST.-YOU Shall leave them to move for a nonsuit, if the Court shaU be.of opinion that there was no evidence ofjoint damage, and that without sitch evidence a joint action cen- not he supported. MIr. Sergeant VAUGMAN.-And also, my Lard, if the Courtshall think there was probable cause for the arrest. Lord Chief Justice BEsT.-No; if you go on so, tender your bill of exceptions.I mor. Sergeant VAUGOAN-.M1y Lord, I would wish to do what is mlost agreeable to your Lordship.- Lord Chief Justice BEST.-Then tender your bill of exceptions. That coarse would be more agreeable tome than any other; but you mnust do it now. Let mre have the exceDtions in writing before the Court rises, and I will Eeal them. - Mr. Sergeant VAUGIIAN.-.Fy Lord, that is impossible. ejoroh~OT.-.- unse Jutic kxi...No i not; cnsi tillmidIgh Lordl Chief Justice BEsT.-44, Witi ot can 'sit till mididight if necegsary; but I am de-termined to take this course, because I will not haic plaintiffi' delayed in their remedy. Six months ago exceptions were sent to me, and they are yet unsettled. I ought not fo have new terms introduced to me in this manner, after I have once given leave to move. Mr. Sergeant VAUGHAN._..I introduced no new tereai, my lford. Lord Chief Justicc B3sT.-Yes; my brother Vilde addressed me simply on the ground thiat there was no evidence of joint damage; 4, gave leave to move on tilat ground, if the Court should think it tenable; and then my brother Vaughan rises and introduces the question of probable cause. Tender your bill oF exceptions now. I can watt in mr room; I shall be under thie roof till they are ready- '-His'Lordslmbp ttien left the Bench and rAtired to hig apmrtment; bihd AtF. Sergeant Vaughan proceeded to wrlteddwn' his exceptions to the charge. In 'a fewminuteslhis Lordsli'p retatned 'and'restw3ed hiA scat..- --: . ..,1 - ~ -. _lr. Sergeant PELi rose, andbegged bis Lordship to ask'the juiry whether they fiound-ny joint damag.and-o wh3t amount? -Luord Chie fJu s ti e BE T.. vwiId o6- I camne into Court again fof that purpose. Stay; I will ask Mr. Davies losw-Inuch his bill was increiased by. the defendants pro'ceeding by bailabic 1)tccdss. Air; Sergessnt VArJGuA< r4lI^ MyL,obd,-'1 obiccst otise afler 'the-verdict is recordetl. . '' ' -L d -hief Justice BEaT.-Iljib'e ieraict'is to b1e taken ss se; chrded; you cannot tender-your exceptions; I a'r anxious to assist- yost by considering the verdict is inot 'ecorded; bu t you -must- not tak.it-both waya, Ift the verdict Is recoded,ybihiatfio'utofiCWitsi. ; Air. Davies then stated, in answer to the learied'.udge, that- -his' billVwas ln6reased L by the halilible,pioeess;3an&the;jury:foundI 51A!tb e amount of jQInitexpenie susiianed by die taties. - Alr. Sergeant VAUGirAx.-Now,; my Lord v read pry ex.. aUp 5D3oUIU nave osrectC# rne Jury?, o ue t!, re?' A thie defendani.. ~~I~T c Lord Chief Justice Brsm.-1LChen: y6ttt me3t'et.tthfocts'2sWmit your billof exceptions.. Put them. .doFn, sl;t,your chic fos;= let: tne have the'bill, and I will seal it. ^ i' Mli. Sergeahi VAUGUAN.-BUt' y me to do this to.day. 'Lord Chief Justice BEST.-I Will not` receive thbilfite the Court rises; but I will sit as long as yoftl --:- -: Air. Sergeant VAUGHAN.If that.is your Loriihbip'*decision, I must acquiesce. I cannot set oue evidence' which halcsi'tkefireii hoursindelivering: it isimpossible. - ; Alr.'Scrgeant PELL.-W-1I your Lordship allow. mq to mgre it my personal request,tthat yon would give my bi6tberVu1iujfisucCh timoe as he thinks necessary to prepare his bill of eicetioon ? Lord Cbief Justice BEST. -No I csmott4oit in justice to the suiters of thu Court; I recollect what was done in eprecedang cage, and I am bound not to arsist sach delay. ' 'a'-' Mr. Sergeant WILDE.-MY Lord, in that casewe are agreed on the exceptions; but there is a point on which I understood yoar Lordship had not decided. A[r. Sergeant VAU GAN.-MY Lord, if your Lordship says It must prepare my bill in form to-day, I submit it is imipossible. Lord Chief Justice BEsT.-If you had asked for leave toumove on the ground that there was probable cause, I would certain% have granteit.Theseare conflicting decisions, ard though I thinkl "Brown v. Pigeon wrong, I still would give leave to move.' But you first ask to move on one point, and then turn round and introduce ariother. IUr. Sergeant VAUGIIAY.-.ly Lord, I only wish for leave to move. I shose to tender a bill of exceptions, because your Lordsvp said it would be the most agreeable course to you. Lord Chief Justice BEsT.-I will have no more of this discus. sion. I know she mischief such discussions have done; the busi- ness of the Court cannot go on if they 'continue. Air. Sergeant VAuoGAw.-Thea, nmy Lord, Iwill take it in the form of leave to move for a nonsuit if the Court shall see fit. Lord Chief Justice BEsT-Take it so, then. I should wish to see my brothers Pell, Vaughan, and Onslow, in my private room His Lordship then withdrew, and was followed by the leared Sergeants Pell and Vaughan; we rather think that Mr. Sergeant Onslow had left the Court. In abput a quarter of an hour they all- returned totheir seats, apparently in good humour, and thenext cause proceeded. _ I COtTRTOFCOMMION PLEAS. (Tr.nTMAT.I.. n- Q I _ - ATnUATT AND HODSELL V. COLLINS.