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1832.

other person

made.

Feb. 3rd. Rex v. BIRNIE, Knt., Halls, Esq., and Others. Magistrates

INDICTMENT for the false imprisonment of, and for have no authori. ty to detain a assaulting William Henry Carmichael Smyth, person known to

Mr. Smyth, being called as a witness, said—“On the them till some

15th of December, 1830, I was at the Bow Street Police makes a charge against him. Office; I went to complain against Goddard the officer; I Before they de tain a known

went in consequence of a rule of the Court of King's person, they Bench; Sir Richard Birnie and Mr. Halls were sitting ; Sir should have a charge actually 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

1832.

REX

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.'”

v.

BIRNIE.

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 till the next day, which he did.” action for false imprisonment, in This was held a good justification, which the defendant justified, without alleging the cause that the “for that the plaintiff being in the justice had for imprisoning the presence of a Justice of Peace, plaintiff, and without shewing a and the justice, not having oppor- warrant in writing, because it octunity to examine him, command- curred in the presence of the jused the defendant, being a con- tice. stablc, to take him into his custody

1832.

Adolphus dcclined calling witnesses.

REX

BIRNIE.

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.

Verdict-Guilty.

Archbold, for the prosecution.

Adolphus, for the defendants.

(Attornies-A. H. Smyth, and Roche & P.]

Feb. 3rd.

Rex v. Pope and Others. INDICTMENT for a conspiracy to defraud the Sheriff Where the 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 prefaan indictment for a conspiracy, tory allegation. the assignment cannot be re

To prove this allegation, the proceedings under the ceived as evidence in support

bankruptcy were put in. of such allegation, unless it be proved by the Lord TENTERDEN, C. J.-You cannot put in the assubscribing wit.

signment, without calling the subscribing witness to prove the execution of it.

ness.

This was done.

Verdict-Guilty.

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

Curwood, for the defendant Pope.

[Attornies-- Willoughby, and Pope.]

1832.

BEFORE MR. JUSTICE LITTLEDALE,

(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

that an appointof limitations.

ment of funds to The delivery of the goods was admitted; and, to take the pay a debt, due case out of the statute of limitations, the following letter dant to the plain

tiff had been was put in:

made, and that

Mr. Y. was one of 10th October, 1825.

the trustees; but “Gentlemen-1 have hitherto deferred writing to you must elapse be

that some time regarding your demand upon me, in consequence of some fore the trustees family arrangements, through which I should be enabled to will not take the

case out of the discharge your account, and which were in

progress, not

statute of limihaving been completed.

tations, as it is

at most only a “ I have now the satisfaction to inform you, that an ap- promise to pay

as soon as the pointment of sufficient funds for this purpose has been trustees are in signed, of which Henry Young, Esq., 12, Essex-street, cash. But, semStrand, is one of the trustees, to whom I have given in ditor's remedy

would be by a a statement of your account, amounting to 981. 8s. 6d. bill in equity

against the trusIt 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 bim for any further information you may deem requisite on this subject. I remain, Gentlemen, your obedient servant,

A. W. Hillary."

tees.

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

1832.

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.

.

WHIPPY

v. HILLARY.

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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