Breach, that the defendant afterwards, without sending or delivering to the plaintiff any (a) notice in writing of the appointment by the defendant of any reasonable earlier day or time in that behalf for the payment of the said money and before any default had been made by the plaintiffs in the payment of the said sum contrary to the said proviso and the true intent and meaning of the said deed, wrongfully, and contrary to his covenant in that behalf (b), seized and took possession of the said stock, &c. and afterwards wrongfully sold and disposed thereof as under the provisions of the said deed, and received the proceeds of such sale to his the defendant's own use (c). And by means of the premises, &c. Second breach, for not accounting, &c. Third breach, for not paying over the proceeds. Second count, in trespass. Third count, in trover (d). Pleas 1. Not guilty. 2. That due notice was given. 3. Leave and licence. O'Malley and J. Martin for the plaintiff. Collier and H. T. Cole for the defendant. On the 5th of March, 1860, the plaintiff executed a bill of sale to the defendant, with the provisoes stated in the declaration, and as security for the sum of 55l. There was a verbal agreement between them, that the plaintiff should have the money for two months certain, on paying 31. interest in advance, and so on from two months to two (a) The word sufficient was here omitted, which was inserted in the similar action. Brightly v. Norton, ante, p. 722. (b) Vide supra note (d), p. 768. (c) Vide Ward v. Audland, 16 M. & W. 862. (d) See Ward v. Audland, 16 M. & W. 862, as to an action of cove- 1862. ROGERS บ. MUTTON. VOL. II. 3 F F.F. 1862. ROGERS v. MUTTON. months, and a receipt for 31. for interest from 19th March to 19th May, 1861, was produced. On the 30th April, 1861, the defendant, with several other persons, went to the plaintiff's house, and shortly before two o'clock served him with a written notice to pay the money by two o'clock on that day. The plaintiff remonstrated, and pressed for at least an hour or two to go and get the money, to which the defendant appeared to assent, and the plaintiff went away for the purpose, but in his absence the defendant seized his stock, &c. on the premises and removed it. There was some attempt to prove an implied assent to this course in the event of the plaintiff not being able to get the money, and it appeared that he had not got it by the time the removal was completed, just as he returned. The goods were afterwards sold, and 27. 2s. paid to the plaintiff as the balance. The value of the goods was shown to be 2004., and there was evidence that they were sold carelessly and under the proper value. There was evidence also that the defendant's men behaved with violence and rudeness in the plaintiff's dwellinghouse and premises, and towards his wife and the other inmates (a). It appeared, also, that the removal of the stock, &c. put an end to the plaintiff's business as a farmer, and that the taking away his furniture deprived him of his dwelling (b). (a) Which would justify vindictive damage, i. e. even beyond the full value of the goods: Williams v. Currie, 1 C. B. 841, a very similar case, where, as here, the defendant had entered without notice, and the value of the goods was only 2001., but the damages 3001., a verdict which was upheld by the Court as not excessive. (b) Collier got a rule for a new trial, which was argued in Easter Term, and both as to the main point, whether the deed imported or admitted evidence of a reusonable notice, and also as to the damages. On the first point, that the deed might imply a reasonable time, see Hyde v. Watts, 12 M. & W.254. And that, even if it did not, yet as it was silent on the point, parol evidence would be admissible to MARTIN, B. (to the jury).-Was the notice reasonable? That is a question for you (a). If it was not reasonable find for the plaintiff, unless you believe he assented to the defendant taking the course he did, which is very unlikely (b); and if you think there was no assent, and explain the ambiguity as to the word "notice," or to add a term not contradicting or altering anything in the deed, vide Carpenter v. Buller, 8 M. & W. 214; Humphrey v. Dale, 26 L. J., Q. B. 137; Smith v. Buttams, Ibid. Exch. 232. That the question of reasonable notice is for the jury, whether it means a reasonable time to do the partícular act, or what is reasonable under all the circumstances, vide Goodwyn v. Cheveley, 28 L. J., Exch. 298. The Court appeared to be strongly of opinion that some reasonable notice was required, and that the rule to be laid down as to what was reasonable would proba bly be, the time necessary to enable the plaintiff to get the money; and supposing him to be able to do so, either by recourse to his bankers, or by borrowing it from a neighbour, it not being reasonable to expect that he would keep the money about his person, or even locked up in his house; and the natural meaning of the word "notice," especially coupled with the words "left at the place of abode," &c., was, that was to be something beyond a mere demand, and to precede, by some reasonable time, the actual seizure of the goods, and what would be reasonable was for the jury. But as they thought that the debt should be deducted from the damages, they suggested that the defendant should be content with a reduction of the damages to that amount, to which both parties acceded. This point, however, was not argued; and though in Gillard v. Bates, 8 M. & W. 575, it was held, that in an action for a debt for goods sold, the defendant could not plead a re-taking of the goods by the plaintiff, that was a mere plea of the tort; and in Jones v. Sawkins, 5 C. B. 142, it was held, that it was a good answer in debt, that the plaintiff had taken goods wrongfully, and retained them in satisfaction. It should seem, therefore, that in this case the plaintiff was entitled to retain the full da mages, the defendant being a wrongdoer (vide Keen v. Priest, 28 L. J., Exch. 157; sed vide Chunery v. Viall, 29 L. J., Exch. 180, which, however, was only trover, and the price was due), even apart from the question as to vindictive damages, as to which, vide Vol. I, p. 68, and 27 L. J., Exch. 353. (a) Vide ante, p 722. (b) Still it would be for the jury, because the circumstances of violence, &c. not amounting to any substantive trespass (such as the breaking of outer doors, &c.), would be mere matter of aggravation, assuming any right to enter and seize, although it is otherwise of a personal assault, which ex vi termini, and as a matter of law, excludes licence or assent. Christopherson v. Bare, 11 Q. B. 473. 1862. ROGERS ย. MUTTON. 1862. ROGERS V. MUTTON. that there was not a reasonable notice, find for the plaintiff, with such damages as you think reasonable under all the circumstances. Verdict for the plaintiff, damages 3001. (a). (a) The learned Baron refused to stay execution, thereby showing that he did not deem the damages excessive; and vide similar case and similar verdict, coram BRAMWELL, B., Thomas v. Harris, ante, Vol. I., pp. 68, 69, et vide ante, p. 722. Middlesex Sittings. Hilary Term. Where a newspaper proprietor carried on business under the control of inspectors, who were empowered by the deed to pay costs, &c., and reimburse STEELE v. LOW AND ANOTHER. ACTION for work and labour as an attorney. Plea: never indebted. Manisty and Prentice for the plaintiff. Lush, Keane and Wills for the defendants. The claim was chiefly for the costs of defending an action for libel-Jones v. Young-brought against one of monies they Young, the printer, publisher and editor of the Sun newsmight receive, themselves out there being no- paper. And the action was against two persons, Low and thing in the Clayton, inspectors under a deed entered into between Young and his creditors. deed to import personal liability:- Held, that they were not personally liable to an attorney who had defended a the business at trader, without any direction In 1848, one Harmer being then mortgagee in possession, the deed in question was entered into between one E., a prior mortgagee, Harmer, Young, and Low and suit relating to Clayton (the defendants), with the rest of his creditors. the order of the By this deed the defendants were appointed inspectors, and Young was to continue to act (as he had been acting) from them, un- as printer, publisher and editor for Harmer, until his debt was paid, at a salary to be paid to him (he, however, not to be liable to dismissal), and he was to carry on and contions with him duct the newspaper under Low and Clayton's inspection. The funds were to be applied, in the first instance, to “the payment of expenses of and incident to the management, and incident to any actions and suits, in any way relating less there was anything in their previous communica to lead him to suppose they meant to make themselves personally liable for such claims. 1862. STEELE บ. Low to the premises, by the inspectors, when the same shall be by them judged advisable." Covenant by the creditors that "the defendants should be indemnified out of the estate, or by the creditors, in respect of all matters and things which and Another. they should lawfully and rightfully do, or cause to be done, or direct or order to be done, in or concerning the estate and effects of the trader, by virtue of and in pursuance of these presents." Power to the inspectors, out of monies which should come to their hands, "to retain and reimburse themselves all charges, costs and expenses which they might be put to, in or about the execution of the trusts, or otherwise by virtue of these presents." Harmer to have power to permit them to carry on the business, &c. Weekly accounts to be sent to him. [There was no provision in the deed expressing or implying (otherwise than as above mentioned) any personal liability in the defendants (a), or any liability on them to pay, except out of the assets or estate.] In 1848, Harmer was registered proprietor, but after the above deed was executed he took no part in the management, which was left in the hands of Young, under the control of the defendants. The plaintiff was Harmer's attorney, and, as such, received a weekly statement of accounts. In 1853, Harmer died, and the plaintiff acted as solicitor to the executors. Previous to Harmer's death, there was an account in plaintiff's book, in which he debited Harmer with costs relative to the Sun; and after Harmer's death the account was continued in the book, including all costs relating to the Sun, and, inter alia, the costs claimed in this action. [But this account, the plaintiff said, had not been sent in to the executors, nor was it headed or entered to the estate of Harmer; but was headed," Sun Account, In re Young," and indorsed" Sun."] (a) Vide Wardell v. Jackson, Vol. I., p. 452. |