that "the Defendant had only shewn that a bill "of Middlesex had been sued out per quod the "sheriff made his warrant; so he has not alleged 66 any thing traversable except the per quod, which "is not traversable." The cases, therefore, of Beale v. Simpson, and Green v. Jones, appear to me to furnish no reasonable ground for saying that the including the "virtute cujus" in the traverse mentioned in your Lordships' question, in no respect affects the validity of that traverse, or prevents it from including the question, whether the sheriff seized by virtue of the writ. Two cases, however, were mentioned at your Lordships' bar, which, I think, we are called upon to notice, viz. Groenvelt v. Burwell, Lord Raym. 452., and Crowther v. Ramsbottom, 7 T. R. 654. In Groenvelt v. Burwell, the Defendant justified an arrest under a sentence and warrant. The warrant directed the officer to take the Plaintiff, and deliver him to the keeper of the gaol of Newgate; and the plea alleged that the officer did take him by virtue of the warrant, and delivered him, with the warrant, to the keeper of Newgate, there to be detained, &c.; the replicacation was, that Defendants took him of their own wrong, and not by virtue of the warrant; the replication, therefore, admitted that the warrant had issued, that it was in the hands of the officer, and that what it required, viz. that the Plaintiff should be delivered to the keeper of Newgate, had been effected under it. The Defendants demurred, and the traverse was held bad: first, because, had the Plaintiff been arrested by the officer upon any other warrant, he ought to have shewn it specially; and secondly, because, though he had been arrested 1833. LUCAS บ. NOCKELLS. under any other warrant, he would, in law, have been arrested under every other warrant the party making the arrest had at the time, and consequently was, in point of law, arrested under the warrant stated in the plea. That traverse, therefore, would have referred to the jury what upon the pleadings was a mere question of law, and was, therefore, upon the distinction which I have made, clearly bad. In Crowther v. Ramsbottom, 7 T. R. 654., the Defendant seizing cattle, justified under a warrant upon a justicies, to compel an appearance in replevin, and alleged that the Plaintiff having appeared, the cattle were returned. The Plaintiff admitted the justicies, but traversed the residue of the cause. It appeared in evidence, that when the Defendant seized he had his warrant with him, and shewed it, and that he returned the cattle when an appearance was entered; but there being proof that he said, at the time he seized, he was seizing for a debt, it was left to the jury whether the Defendant entered for the mere purpose of compelling an appearance, or whether for the purpose of compelling Plaintiff to pay the debt; and the jury found for the Plaintiff. Now it was clear, there, that the Defendant entered under the warrant: he had it with him, and produced it, and the object of the warrant, viz. to compel an appearance, was answered. If he had any ulterior purpose, viz. that of compelling the payment of a debt, the pleadings were not calculated to raise that question, the only issue was, whether the residue of the cause stated in his plea, i. e. his having a warrant and acting under it, were proved. The verdict, therefore, was clearly wrong, and the Court could not do otherwise than grant a new 66 proceeded on a mistake of the law. Lawrence J., "the only other judge who spoke, referred to "Groenvelt v. Burwell as in point, and observed "that the judge, in the case in question, had left "to the jury what in Groenvelt v. Burwell was "stated to be immaterial: for it was not material "to enquire what they said when they entered and "seized, but only whether they had, in fact, a legal "warrant to justify them." Now all expressions are to be considered in conjunction with the facts of the case in which they are used; and in Crowther v. Ramsbottom, there was no doubt, not only that the Defendants had the warrant under the justicies at the time when they seized, but that they seized under it, and enforced the obedience which that writ required; at least, there was nothing to shew that they had repudiated the right to refer to that warrant as the ground on which they acted. The expressions, then, of Lord 1833. LUCAS V. NOCKELLS. 1833. LUCAS บ. NOCKELLS: 1 Kenyon and Mr. Justice Lawrence, taken in conjunction with the facts of that case, go no farther than this, that whoever seizes another man's goods, and has a right by warrant, which it is his duty to execute, so to seize them, and applies that seizure to the purposes which that warrant directs, he is not precluded by any thing he says at the time of the seizure from so applying them; but that does not bear, as it seems to me, upon a case where the officer does not apply the seizure to the purposes of his warrant, but leaves those purposes wholly unsatisfied... Upon this ground, therefore, that, in Groenvelt v. Burwell, and Crowther v. Ramsbottom, the warrant was ultimately pursued, and the thing it commanded was enforced, which was not the case here, it seems to me that those cases form no ground for impeaching the opinion which I submit to the house, that, upon the traverse absque residuo causæ, it was competent to the Plaintiff to shew that the acts of the Defendant were not really done under or in execution of the writ, but for another purpose, and under another claim, and that the writ and pro ceedings under it were a mere colour and contrivance to get possession of the goods, and that what the writ required, viz. to cause the debt for which the judgment was obtained to be made, was never effected or attempted... D This being my opinion, it is unnecessary to say any thing upon the new assignment; I will only observe, that, unless the Plaintiff proves more trespasses than the plea, if unanswered, necessarily covers, he cannot both reply to the plea and new assignment: he may do either, not both. 【}་ Lord Wynford. - Your Lordships must feel great obligation to the learned Judges for the trouble they have taken in examining this very intricate case-intricate only upon the point with respect to the pleadings; for with respect to the justice of the case, it is impossible that any man (to use the expression of a learned judge now no more), either layman or lawman, as he was in the habit of saying, can for a moment doubt. One of my learned brothers who last addressed your Lordships, has said that he cannot look to the bill of exceptions. It is perfectly true, the question put by your Lordships unfortunately precludes the learned Judges looking to the bill of exceptions; and, therefore, his Lordship truly says, he cannot say whether the Plaintiff is injured or not, because he is not informed of the facts of the case: when I say he is not informed, he knows them, but he does not know them in that manner in which he can avail himself of that knowledge in answering this question. But your Lordships are not in that situation; your Lordships can look at the bill of exceptions; it is upon the record, and that is before you; and there you will see that the Plaintiff will be grievously injured if he does not recover in the present action. This case was decided in the Court below more than five years ago, and I am sorry that it is possible that a case can be so long pending in any of our courts. I hope, for the honour of the administration of justice, that is one of the evils that will soon be corrected. It was decided in the Court of Exchequer Chamber, by eight Judges, four Judges of the Common Pleas, of whom I was one, and the four Barons of the Exchequer only one of these eight Judges now remains to assist your Lordships, all the other VOL. VII. 1833. LUCAS บ. NOCKELLS. June 27. |