Slike strani


Feb. 3rd.


have no authority to detain a

person known to them till some other person makes a charge against him. Before they detain a known person, they should have a

charge actually


REX v. BIRNIE, Knt., HALLS, Esq., and Others. INDICTMENT for the false imprisonment of, and for assaulting William Henry Carmichael Smyth.

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Mr. Smyth, being called as a witness, said-" On the 15th of December, 1830, I was at the Bow Street Police Office; I went to complain against Goddard the officer; I went in consequence of a rule of the Court of King's Bench; Sir Richard Birnie and Mr. Halls were sitting; Sir Richard Birnie refused to hear the case, and referred me to Mr. Halls. I refused to submit it to Mr. Halls, as the rule was addressed to Sir Richard Birnie. Mr. Halls dismissed the complaint; I bowed, and was about to retire, when Sir Richard Birnie exclaimed, Stop him, shut the door, don't let that man escape. Where is the person that has got the information to lay against Mr. Smyth, for tampering with the due course of justice?' I insisted on being let go. A person, named Wotton, was keeping the door. I was repeatedly repulsed by him. He said, 'Why do you attempt to escape, when you know you cannot?' I said, because they would say I acquiesced, and was not a prisoner. There was a long consultation between the magistrates and ten or a dozen officers. Sir Richard said 'This man is a pensioner, we must see and get his pension stopped, a pretty man to be a pensioner, tampering with the due course of justice.' I was kept a quarter of an hour or twenty minutes. Sir Richard Birnie went out at the back door. I was sitting down at the end of the office. Mr. Halls called out Mr. Smyth, repeatedly. I said, I have nothing to say to Mr. Halls; I demand my liberty. The defendant, Birchell, then said, 'If you will not come by fair means, I must take you by force.' He dragged me by the collar across the office, and Mr. Halls said, 'Mr. Smyth, I understood there was an information against you for obstructing the due course of justice, and, as you were present, I considered it my duty to detain you. Now that

I have read the charge, I don't think I should be justified in detaining you any longer; you are discharged.' I said, you may depend on it, Mr. Halls, if there is any law in the country, to which I can have recourse for redress for this outrage, I will have recourse to it. Mr. Halls said 'I might do as I thought proper.""

Adolphus, for the defendants, opened, that the magistrates were informed that Goddard, the officer, had a complaint to make against Mr. Smyth, for having tampered with the due course of justice; and that, Goddard not then being at the office, they detained Mr. Smyth till Goddard was sent for. And he contended, that, if a magistrate has a person before him, charged with either felony or misdemeanor, he may either go into the case immediately, or detain the party to await his leisure. And he cited the case of Broughton v. Mulshoe (a).

Lord TENTERDEN, C. J.-I am of opinion, that the Justices could not detain a person known to them till some other person should make a charge. I think, before they detain a known person, they should have a charge made; therefore, unless you can shew that Goddard's charge was made by him, and received by the magistrates before Mr. Smyth was stopped, you cannot vary the case; and it is plain that you cannot, as they evidently detain Mr. Smyth till Goddard makes his charge, and then it is found to be not sufficient. However, I will hear any evidence you have to offer.

(a) Moore, 408. This was an action for false imprisonment, in which the defendant justified, "for that the plaintiff being in the presence of a Justice of Peace, and the justice, not having opportunity to examine him, commanded the defendant, being a constable, to take him into his custody

till the next day, which he did."
This was held a good justification,
without alleging the cause that the
justice had for imprisoning the
plaintiff, and without shewing a
warrant in writing, because it oc-
curred in the presence of the jus-









Adolphus declined calling witnesses.

Lord TENTERDEN, C. J., (in summing up).—The only question of fact is, whether Mr. Smyth was detained against his will; for I think that a magistrate is not justified in detaining a known person till a charge is made. The magistrate should have the charge actually made before he detains the party.

Archbold, for the prosecution.

Adolphus, for the defendants.


[Attornies-4. H. Smyth, and Roche & P.]

Feb. 3rd.

Where the

REX v. POPE and Others.

INDICTMENT for a conspiracy to defraud the Sheriff

bankruptcy of a of Middlesex. In the first count of the indictment, the party is stated in

an allegation, in bankruptcy of the defendant Pope was stated in a prefa

an indictment

for a conspiracy, tory allegation.

the assignment cannot be received as evidence in support of such allegation, unless it be proved by the subscribing wit


To prove this allegation, the proceedings under the bankruptcy were put in.

Lord TENTERDEN, C. J.-You cannot put in the assignment, without calling the subscribing witness to prove the execution of it.

This was done.


Denman, A. G., and Bodkin, for the prosecution.

Curwood, for the defendant Pope.

[Attornies-Willoughby, and Pope.]


(Who sat for the Lord Chief Justice.)


WHIPPY and Another v. HILLARY.

Feb. 7th.

GOODS sold. Pleas-General issue, and the statute A letter, stating

of limitations.

The delivery of the goods was admitted; and, to take the case out of the statute of limitations, the following letter was put in: :

10th October, 1825.

“Gentlemen—I have hitherto deferred writing to you regarding your demand upon me, in consequence of some family arrangements, through which I should be enabled to discharge your account, and which were in having been completed.

progress, not

"I have now the satisfaction to inform you, that an appointment of sufficient funds for this purpose has been signed, of which Henry Young, Esq., 12, Essex-street, Strand, is one of the trustees, to whom I have given in a statement of your account, amounting to 981. 8s. 6d. It will, however, be unavoidable that some time must elapse before the trustees can be in cash to make these payments; but I have Mr. Young's authority to refer you to him for any further information you may deem requisite on this subject. I remain, Gentlemen, your obedient servant, A. W. Hillary."

Curwood, for the defendant.-This letter is not an absolute, but a conditional promise, and will not support the declaration. This is merely a promise that the money shall be paid out of a particular fund, and not a general pro

mise to pay.

Mr. Justice LITTLEDALE.-I think that this is not suffi

that an appointment of funds to

pay a debt, due

from the defen

dant to the plain

tiff had been made, and that Mr. Y. was one of the trustees; but that some time

must elapse be

fore the trustees

would be in cash;

will not take the

case out of the statute of limitations, as it is at most only a

promise to pay trustees are in ble, that the creditor's remedy

as soon as the

cash. But, sem

would be by a

bill in equity

against the trustees.





cient to take the case out of the statute of limitations; and I think that the plaintiffs ought to have gone to Mr. Young for the money.

For the defence, Mr. Young was called. He stated, that he was not in funds till about three months after the bringing of the present action; and that, as soon as he was so, he sent to the plaintiffs to offer them the sum mentioned in the letter.

Coltman, for the plaintiffs.-I submit that this acknowledgment is sufficient, under the statute 9 Geo. 4, c. 14. It is not necessary that there should be a new promise; an acknowledgment of the debt is sufficient. Here we have an absolute acknowledgment, and the law raises the promise. This is not like the case of a bankrupt's certificate, because there the debt is extinguished.

Comyn, on the same side.-An acknowledgment in writing would be sufficient, although there was not a promise of any kind.

Curwood.-The act of Parliament only requires that to be in writing which before might be by parol. If there be an acknowledgment alone, that will be enough; but, if the acknowledgment be coupled with a condition, you cannot take the acknowledgment without the condition; you must take the whole together.

Mr. Justice LITTLEDALE.-I am of opinion, that this letter is not sufficient to take the case out of the statute. If the acknowledgment be accompanied by a condition, you must take the whole together. In this letter, the defendant refers to Mr. Young. At most it is only a promise to pay when Mr. Young is in funds; but I have great doubts whether the plaintiffs' only remedy is not by a bill in equity against Mr. Young. I shall nonsuit the

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