wife and family, who had continued to reside in the In September, 1861, the wife having no means of same house in W during the whole period of B's subsistence for herself and children, applied for relief absence. B always had the intention to return to his to the board of guardians of the Tavistock Union, of family at the end of his engagement. In May, 1862, which the parish of Whitchurch forms a part, and an order was made for the removal of B from W she and her children became chargeable to the said to the parish of his settlement:parish of Whitchurch, and received 5s. as relief on the 26th of September, 1861, and a further sum of 5s. as relief on the 3rd of October following, which sums were regularly charged to the said parish of Whitchurch. Held, that the order was rightly made, and that B had not resided in W during three years next before the application for the warrant for his removal, within the meaning of 9 & 10 Vict. c. 66, and 24 & 25 Vict. c. 55, so as to become irremoveable from W. Case stated by the consent of the parties, under 12 & 13 Vict. c. 45, s. 11, upon an appeal against an order of removal, made on the 30th of May, 1862, by two justices of Devon, whereby the place of the last legal settlement of William Brooks and his wife, and six children, was adjudged to be in the parish of Wellington, in the county of Somerset. The pauper, William Brooks, is a miner, about 36 years of age; and in November, 1847, he married his present wife, by whom he has six children. At the time of his marriage he resided in the parish of B, and he continued to do so until the year 1852, when he removed, with his wife and children, into the parish of Whitchurch, the respondent's parish, and resided there with his wife and family continuously, at a place called Horrabridge, within the parish, until the month of May, 1859, a period of about seven years. In April, 1859, Brooks entered into an agreement in writing, with a London Company to go to the Cobre Mines, in Cuba, to work there for a period of three years, residing in such place in the island of Cuba, and removing from time to time to such parts as might be required by the said company. The company agreed to pay him 97. per month, of which 51. per month was to be paid in this country to his wife, or to such other person or persons as he might from time to time appoint. The pauper states that it was always his intention to return to England to his wife and family at the expiration of the three years of his engagement. The pauper went to Cuba, according to his agreement, in May, 1859, leaving his wife and children at Horrabridge aforesaid, inhabiting the same house wherein they had resided during the previous seven years, and his said wife and family, received their allowance from the said company regularly for about one year and five months. In or about the month of October, 1860, a disagreement arose between the pauper and the manager of the mine, in consequence of which the allowance to his wife and family in England was discontinued, and no more money was sent by the company to her at all; but, in the following month of February, 1861, the pauper himself made a remittance to his wife of 207. out of his own money, and she received it in April, 1861, and this was the last money she received either from her husband or the company. The pauper, in consequence of illness, left Cuba on or about the 25th day of September, 1861, to return to his wife and family in England, and he arrived home on or about the 17th day of November, 1861, having been absent about two years and six months, and he found his wife and family in the same house in which he had left them in the said parish of Whitchurch, and in which they had resided continuously from the time he left them to go to Cuba until his return. After the pauper's return, he applied for relief for himself and family, which was granted to him by the said parish of Whitchurch, and he has continued to receive regular weekly relief from that parish ever since, and was in receipt of such relief at the time the order of removal to the appellant parish was made. The question for the opinion of the Court is, whether the facts above stated constitute such a break of the pauper's residence, in the said parish of Whitchurch, as to render him and his family legally removable. If the Court should be of opinion that there was no such break of residence, and that the paupers were not removable at the time when the said order was made, then the order of removal is to be quashed. If the Court is of a contrary opinion, then the order is to be confirmed. Karslake, Q.C., and T. W. Saunders, for the respondents. By 9 & 10 Vict. c. 66, s. 1, it is enacted, that "no person shall be removed from any parish in which such person shall have resided for five years" (now three years, by 24 & 25 Vict. c. 55, s. 1) "next before the application for the warrant for removal." It is contended by the respondents, that the pauper's absence in Cuba constituted such a break in his residence in Whitchurch, as to prevent him from becoming irremoveable thence under the above statute. The case of is, Reg. v. Stapleton, 1 E. & B. 766, it is submitted, conclusive in the respondent's favour. There Crompton, J., says in his judgment, that "an intention to return at a remote period, after a permanent absence, is not sufficient to prevent the absence from being a break. When the animus revertendi merely means that, though the absent person has what amounts to a residence elsewhere, it is his intention to return when that residence is at an end; I think that the animus revertendi cannot be said to make his absence temporary and not permanent." H. T. Cole, for the appellants. It appears upon the case, that the pauper had an animus revertendi, and that his wife continued to reside in Whitchurch during the whole time. It is submitted that these two facts, taken together, show a continuous residence in Whitchurch by the pauper. In Reg. v. Stapleton, there was a contract for a continuous and indefinite period of service, and the pauper had no intention to return, so long as he could keep his situation; it could not, therefore, be said that he had an animus revertendi. The present case resembles that of Reg. v. Brighton, 4 E. & B. 236, 24 L. J. where the Court held, there had been no break in the twenty-five yards of a carriage-way, is an engine "erected" within twenty-five yards of such carriage. way within the meaning of sect. 70 of the Highway Act, and any person there working the same, in a manner dangerous to passengers, horses, or cattle, then being upon such carriage-way, may be convicted under the provisions of the said section. Case stated by two justices of Kent under 20 & 21 Vict. c. 43. The appellant was charged under sect. 70 of the Highway Act, 5 & 6 Will. 4, c. 50, with erecting a portable steam-thrashing machine at the side of the road, within twenty-five yards of, to wit, twenty-four yards from, the carriage-way, without any sufficient screen between the same and the said carriage-way. It was proved that the thrashing-machine had been COCKBURN, C.J.-We have to decide this case with moved to a spot within twenty-five yards of the carreference to the removeability of the father, William riage-way, but had not been fastened in any way to the Brooks; if he is removable, so are his wife and family. ground. While the machinery was in motion, a horse, The question, whether he is removeable or no, depends which was drawing a carriage along the highway, took upon the question, whether or no he has resided con- fright and ran away. The justices convicted the tinuously during the three years immediately preceding appellant of the offence with which he was charged; May, 1862, in the respondent parish. I do not desire and the question for the opinion of the Court was, to lay down any general rule beyond that which was whether he was rightly convicted or not. By 5&6 laid down in Reg. v. Stapleton, namely, that in order Will. 4, c. 50, s. 70, it is enacted "that from and after to constitute a break in residence, the absence must the commencement of this Act, it shall not be lawful be something more than temporary. Is an absence, for any person to erect, or to cause to be erected, any then, of two years more than a temporary absence? I steam-engine, gin, or other like machine, or any think that it is. The fact, that the wife and family machinery attached thereto, within the distance of continued to reside in Whitchurch makes no difference, twenty-five yards from any part of any carriage-way because we have only to deal with the question, where or cart-way, unless such steam-engine, gin, or other did the husband reside? There is, it is true, a well-like engine or machinery, shall be within some house known maxim which says, Ubi uxor, ibi domus; but that only applies to those cases where the husband is sometimes with his wife, but often away in other places, where he is often going backwards and forwards. Here the house was maintained not for the husband but for the wife and children. BLACKBURN, J.-I am of the same opinion. I do not know that any better definition can be given of an interruption of residence than that which was given by my Brother Crompton in Reg. v. Stapleton, where he says, that we can have "no more definite guide than the use of the words 'temporary' and "permanent."" No doubt that definition still leaves the rule somewhat vague. Each case must, in fact, be decided with reference to the whole of the circumstances in it. Q. B. or other building, or behind some wall or fence, suffi- Thrupp, for the appellant, contended, which was a machine invented since the passing of 2nd. That the machine, not being fixed to the ground in any way, could not be said to be "erected," within the meaning of the Act, which was intended to protect the public from permanently built nuisances, and not from a nuisance of a temporary and moveable nature. Judgment for the respondents. steam locomotives upon highways, had, to a certain 3rd. That the Legislature, by sanctioning the use of 3 JUNE, 1863. Engine Erected near to a Carriage-way-Portable Steam-thrashing Machine-5 & 6 Vict. c. 50, s. 70. extent, sanctioned the use of these machines on or near the highway. No counsel appeared for the respondent. BLACKBURN, J.-The justices were perfectly right in convicting the appellant. The object of the Legislature clearly was to prevent any one from putting up an engine so near to the highway as to be A portable steam-thrashing machine, placed within dangerous, unless such engine was properly screened. Here the engine is placed near the highway for the purpose of being worked there; but it is not fixed to the soll. It appears to me that the only question is, whether the engine was put up there for the purpose of doing work there. As soon as it is taken to a place, and put up there for the purpose of doing work, it is "erected" within the meaning of the 70th sect., and the public are entitled to protection, even though it be at work but for a day. Witnesses-Mandamus-Commission. The Court will not grant a mandamus to examine witnesses abroad, unless it be perfectly clear that the same object cannot be obtained by issuing a commission. A rule having been obtained on the part of the defendant for a mandamus to the Canadian Court to examine witnesses at Quebec, Cohen now showed cause, and moved that a commission be issued instead, under the powers given by 1 Will. 4, c. 22, ss. 1, 4. He referred to Solaman v. Cohen, 15 Jur. 362. T. Jones supported the rule on the ground that the commission would probably be of no use, as there was no power in such a case of compelling an unwilling witness to give evidence, whereas, if a mandamus issued, the Colonial Courts possessed the same powers of examining as the Courts here. THE COURT (Erle, C.J., Williams, Willes, and Byles, JJ.) were most unwilling to grant a mandamus, unless absolutely necessary; but said, that one might be issued simultaneously with a commission, but held in reserve, and only to be used if the witnesses absolutely refused to be examined, and that the whole question of costs should be in the discretion of the Court. afterwards bought the property of the owner without communicating with the agent :- Held, that the agent was entitled to his commission. The defendant arranged that the plaintiff should sell the Island of Herm for him, promising to allow him 24 per cent. on the price if he sold it, and to give him 251. for his trouble in endeavouring to sell it if he did not succeed. The plaintiff advertised in the newspapers, and stuck up large hand-bills. The island was then put up to auction, but not sold. It appeared, however, that one Hyde, who had seen the advertisements, attended the sale, and when it was over, asked the auctioneer if it had been sold. Hearing it had not, he inquired who was the owner, and then communicated with the defendant, and commenced negotiations with him for the purchase. The plaintiff, knowing nothing of this, spoke to the defendant about the matter, and was informed that he (the defendant) did not intend to sell the island at all. He did, however, soon after sell it to Hyde, for 2,5007. The plaintiff then brought an action for his commission, and the defendant paid 257. into Court. A verdict was found for the plaintiff. 18 APRIL. Serjt. Shee obtained a rule to enter the verdict for the defendant, on the ground that, as the plaintiff had not sold the island, he was not entitled to the commission, but only to the 257. which he had been promised for his trouble. 30 MAY. Coleridge, Q.C., and Day, showed cause, and contended that the plaintiff was entitled to retain his verdict, as Hyde had first heard of the island through the advertisements inserted by the plaintiff, and, consequently, that it was sold through him. Serjt. Shee, and Salter, supported the rule. They argued that the plaintiff had nothing to do with the sale, and that if the Court discharged this rule they would really decide that when an agent was once appointed to sell property he would be entitled to be paid, whoever really sold it. ERLE, C.J.-I am of opinion that this rule must be discharged, the agreement was that the plaintiff was to have his commission if the estate was sold by him. After he had done his best to dispose of it, the defendant arranged to sell it, telling the plaintiff he had This changed his mind, and did not intend to do so. is a question which has been frequently litigated, and always determined in favour of the agent, if the relation between the buyer and seller has been brought about through his efforts. Here the plaintiff was the causa causans. WILLIAMS, J.-I am of the same opinion. It has been contended on behalf of the defendant that, by deciding this case in favour of the plaintiff, we are deciding that an agent is always entitled to recover M if the property has been sold by any one. This is not Rolls refused to set the attachment aside. It was subso; it will always be a question of fact. sequently set aside by the Lords Justices, on appeal : Held, that A and B were not liable in an action, they having acted under the authority of the Court. WILLES, and BYLES, JJ., concurred. Rule discharged. MARSH v. LOWDER. The plaintiff (an infant under the age of seven) took a piece of wood from the defendant's yard. The defendant gave him into custody. He was taken to a police station, locked up in a cell all night, and the next day brought before a magistrate, who discharged him. An action was brought for false imprisonment, to which the defendant pleaded, 1st, not guilty; and, 2nd, that the plaintiff stole a piece of wood, and was, therefore, lawfully given into custody. At the trial, the Judge (Keating, J.) told the jury than an infant under the age of seven was in law incapable of committing a felony, and, therefore, that he could not be legally taken into custody on that charge. The jury found a verdict for the plaintiff, damages 201. J. J. Powell now moved for a new trial, on the ground (inter alia) of misdirection. He admitted that a child of the plaintiff's age could not be convicted of felony; but contended that the case was similar to that of a lunatic, and that he might be taken up and tried; but was entitled to an acquittal on his age appearing. He referred to Hawkins' Pleas of the Crown, 2. THE COURT (Erle, C.J., Willes, and Byles, JJ.,) were unanimously of opinion that the direction of the Judge was right. C. P. Rule refused. 18 APRIL, 30 MAY, WILLIAMS v. SMITH and CASSE. 2 JUNE, 1863. False Imprisonment-Attachment-Order of Court. A having changed her attorney, an order was made, in the Rolls Court, on the plaintiff, her first attorney, to deliver to B, her second attorney, all papers, &c. Plaintiff complied with the order, except as to some papers detained by counsel and a law stationer, who claimed a lien on them. B made an affidavit to the effect that the papers had not been delivered up accord ing to the exigency of the said order, whereupon an attachment was issued against plaintiff. On application made, stating the circumstances, the Master of the The plaintiff in this case was attorney in an action for the defendant Mrs. Casse. In 1860 she found out that he was in prison, in Whitecross Street; she consequently appointed the defendant Smith to act as her attorney, and he obtained an order for the delivery up of all papers in her cause by the plaintiff. This order was served on the plaintiff, and he delivered up some of the papers, and in an affidavit swore that others were in the hands of counsel, and in the hands of law stationers who had a lien on them; thereupon the defendant Smith made an affidavit in the common form, that the plaintiff had not obeyed the order of the Court, and a writ of attachment was issued against him for his contempt, under which he was arrested and cast into prison, whereby he suffered loss. The plaintiff moved, before the Master of the Rolls, to set aside the attachment, on the ground that it had been obtained on an affidavit which concealed material facts viz., that it did not mention that Mrs. Casse had promised to furnish the plaintiff (Williams) with money to pay counsel's fees and other expenses, and that it was in consequence of her not having done so, that he was unable to deliver up all the papers. The Master of the Rolls refused to set it aside; and, on appeal to the Lords Justices, they held the Master of the Rolls to be wrong, and set aside the attachment; whereupon the plaintiff brought the present action for false imprisonment, which was tried before Byles, J., in London. The jury found a verdict for the plaintiff, damages 2507.; and the learned Judge gave the defendants leave to move to enter the verdict, or for a nonsuit. 18 APRIL, 1863. Serjt. Piggott, for the defendant Casse, and Serjt. Parry, for the defendant Smith, moved accordingly. Rule nisi. 30 MAY, 2 JUNE, 1863. Edward James, Q.C., L. Temple, and Vaughan Williams, showed cause. Serjt. Piggott and Serjt. Parry supported the rule, on behalf of their respective clients. D. D. Keane, who appeared for both the defendants, was not called on. The following cases were cited, Green v. Elgie, 5 Q.B. 99; * Re Williams, 30 L. J. Ch. 610. Parsons v. Loyd, 3 Wilson, 341; Rankin v. De Medina, 1 C. B. 183; person liable for obeying the order of a competent Court. WILLIAMS, J.-I am of the same opinion. If there had been any irregularity, then it is clear that both the defendants would have been liable; but, considering all the facts of this case, it is not true that the attachment was set aside because the Lords Justices found any irregularity in it; they set it aside because they thought the Master of the Rolls' judgment was erroneous. This is like the case of a writ being set The arguments of counsel will sufficiently appear aside in error, which does not prevent parties being from the judgment. ERLE, C.J.-I am of opinion that this rule must be made absolute. The declaration is for false imprisonment, the plea sets up an attachment out of the Rolls Court. The replication is that the attachment was set aside on the ground of irregularity. When the defendant Casse wished to change her attorney, an order was made on the plaintiff to deliver up all papers in the suit, and to disobey this order would be in itself a contempt. He did not give them all up. Some were in the possession of counsel, and others in that of a law-stationer, both of whom claimed to have a lien on them. The defendant Smith made an affidavit, that the plaintiff had refused to deliver up the papers according to the exigency of the order, on this affidavit being handed to the proper officer (a clerk of the Court) an attachment issued as a matter of course. It was agreed on both sides during the arguments, that if the attachment was set aside for irregularity, then the defendant Smith would be liable, and (on the authority of some cases cited) the defendant Casse also. But it seems there was nothing wrong on the face of the order. It was contended that it was irregular, because it did not set out the facts of the case, and that if the facts had been set out, viz., that the papers were withheld because Mrs. Casse had not furnished the plaintiff with money, then the attachment would not have issued. This is not so. When the facts were brought before the Master of the Rolls, he held that they were not material, and refused to set aside the attachment, being of opinion it had been properly issued. He (the Master of the Rolls) considered that the plaintiff ought to have had the command of the papers, and that when he became embarrassed in his circumstances he had not done his duty. On appeal, the Lords Justices thought the Master of the Rolls had drawn a wrong conclusion, and they reversed his judgment; they thought that if the client had promised to advance money to her attorney, and had not done so, she could not imprison him for not giving up papers, the lien on which he had been unable to discharge through her breach of contract. This is a very different case from that of a judgment which has been set aside on the ground of irregularity. It would not be consistent with justice to make a protected for what they had done under it. WILLES, J.-I am of the same opinion. It by no means follows that because a writ is set aside, the person who has acted under it should be liable to an action. Indeed, it is constantly set aside on the terms that no action should be brought. This case is in the nature of a judgment set aside in error, and there, a writ of restitution, and not an action, is the proper remedy. I quite agree with my Lord and my Brother Williams that an action would lie if the writ had been set aside for any irregularity. It has been contended that it was set aside because of the defendant Smith's misconduct in swearing an erroneous affidavit. This is not so. When the case went before the Lords Justices, they did not decide it on the affidavit; they set aside the attachment because, first, Smith and then the Master of the Rolls had been mistaken. The Master of the Rolls thought the attachment had been properly issued, the Lords Justices thought it had not, and set it aside. The rule that a writ of restitution, and not an action, is the remedy where a judgment has been reversed on appeal, seems to apply here. This seems one of the numerous class of cases where the act of the Court, though erroneous, is no cause of action. If it were not so, numbers would suffer great wrong. BYLES, J.-I also am of opinion that the defendants are entitled to enter the verdict in their favour. If a man acts erroneously himself, then he is liable to an action; but if under the direction of the Court, then he ought to be protected. Here the Master of the Rolls adjudicated in favour of both the defendants, and they acted on his order, which was afterwards reversed by the Lords Justices. C. P. 20 APRIL, 2 JUNE, 1863. Rule absolute. GREY and Others, Assignees, v. JONES and Another. Bill of Sale-Description-Gentleman. A person who is not engaged in business, may be described as "gentleman," within the Bills of Sale Act (17 & 18 Vict. c. 36). This was an action by the assignees of one Jousiffe (a bankrupt) to recover some furniture from the |