and charges of the said distress should be sooner paid. This conviction was afterwards brought up by certiorari, and quashed by this Court, on the ground that the award of the punishment of the stocks was unauthorized as to the costs, though it was warranted as to the penalty-see The Queen v. Barton (1). The defendant had issued a warrant of distress founded upon this conviction, under which the plaintiff's goods were seized, to regain which he had paid 17. 14s., being the amount of the penalty and the costs of the conviction and of the distress, and the action was brought in respect of this seizure. The plaintiff never was, in fact, put in the stocks at all.

At the trial it was objected that, under the 11 & 12 Vict. c. 44. s. 1, the action was misconceived, and should have been on the case, and that the declaration should have alleged that the defendant acted maliciously and without reasonable or probable cause. The learned Judge, however, declined to stop the case on this point. The jury found upon evidence to that effect, given by the defendant, that the plaintiff was actually guilty of the offence of which he had been convicted, and that he was liable by law to pay the sum levied under the distress, and the jury returned a verdict for the plaintiff, giving 1s. damages for taking the distress, and 221. 7s. 10d. as the costs of quashing the conviction. Leave was reserved to the defendant to move to enter a verdict in case the Court should be of opinion that the form of action was misconceived, or to reduce the damages either to 1s. in case the costs of quashing the conviction could not be recovered as special damage, or to 2d. under the 11 & 12 Vict. c. 44. s. 13. A rule nisi having been accordingly obtained,

Whateley and Gray now shewed cause. -The defendant in this case exceeded his jurisdiction by ordering the plaintiff to be put in the stocks, and therefore the action might properly be brought in trespass according to 11 & 12 Vict. c. 44. s. 2. It is for an act done in a matter in which he has exceeded his jurisdiction. Sect. 1. applies only where a Justice has acted

(1) 18 Law J. Rep. (N.s.) M.C. 56.

entirely within his jurisdiction, but the conviction has been set aside for some defect of form; and there it is necessary to allege and prove malice.

[WIGHTMAN, J.-This action was not for any act done beyond the defendant's jurisdiction.]

That is immaterial: the conviction upon which the distress was founded was bad, because it was partially without jurisdiction, and there is nothing in the words of section 2. to limit it to actions brought for that part which is excessive. In Leary v. Pattrick (2) this Court held that trespass would lie where a Justice has acted beyond his jurisdiction. (3)

[WIGHTMAN, J.-There the act complained of was an excess of jurisdiction.]

Keating and Greaves, in support of the rule. This case involves a very important point to Magistrates who act substantially within their jurisdiction. The object of the 11 & 12 Vict. c. 44. is to protect Justices from vexatious actions for acts done by them in the execution of their office: and this is clearly a case to which, if possible, the protection should be extended. Sect. 1. applies wherever the Justice acts in a matter in which the information laid before him gives him jurisdiction.

[COLERIDGE, J.-What is meant then by exceeding his jurisdiction, in section 2?]

It will apply where the matters stated in the information are partially beyond his jurisdiction. Now, here the defendant clearly had jurisdiction over the matter brought before him, but he erroneously sentenced the plaintiff to the stocks in default of non-payment of the costs. The act done for which this action is brought is, not putting the plaintiff in the stocks, but the levying the penalty and costs by distress. That was a matter which he clearly had jurisdiction to order, and that

(2) 19 Law J. Rep. (N.s.) M.C. 211.

(3) They also argued that section 13 of the act confined the damages to 2d. in respect only of imprisonment, and did not apply to a case like the present, where the action was brought for seizing goods; and also that the costs of quashing the conviction could be recovered as special damage. For the defendant, the 41 Geo. 3. c. 141. was referred to on the first, and Holloway v. Turner (6 Q.B. Rep. 928; s. c. 14 Law J. Rep. (N.S.) Q.B. 143) on the second of these points. As no opinion was expressed by the Court, it is thought needless to notice them more fully.

jurisdiction cannot be affected by the addition of an improper alternative, which, in the result, has become quite inoperative. Leary v. Pattrick is quite consistent with the view taken, that to come within sect. 2. the act for which the action is brought must be itself an excess of jurisdiction.

[COLERIDGE, J.-This is literally within section 2: it is an act done in a matter in which the defendant has exceeded jurisdiction.]

his

[ERLE, J.-Suppose it falls within the words of both sections.]

Then the Court will look to the spirit and intention of the act, and construe the clauses so as not to make them contradictory.

COLERIDGE, J. (4).-I quite agree that this is a very important case, and that the statute 11 & 12 Vict. c. 44. is not very clearly worded. For both these reasons, it is prudent for us to decide no more than is absolutely necessary to dispose of this rule. Therefore I confine what I have to say to the construction to be given to the first and second sections of the act. I think this case falls directly within sect. 1. The defendant had an information laid before him, which on the face of it was in a matter clearly within his jurisdiction; he heard the case and awarded a penalty and costs, with a power of levying them by distress. So far he acted quite rightly, but he went and added an alternative that the party convicted should be put in the stocks for the costs. In this point it is conceded on all hands that he exceeded his jurisdiction. Then, instead of actually putting the plaintiff in the stocks, the amount of the penalty and costs is levied by distress. Afterwards the conviction is quashed here because of the excess of jurisdiction. It cannot be doubted that up to the award of the stocks all the proceedings were right, and this action is brought, not for putting the plaintiff in the stocks, but for seizing his goods under a warrant of distress for the penalty and costs. Section 1. says, that any action brought against a Justice for any act done by him in the execution of his duty as such Justice, with respect to any matter within his jurisdiction as such Justice, shall be an

(4) Lord Campbell, C.J. was sitting at Nisi Prius, and Patteson, J. had gone to attend at chambers.

action on the case, and contain an allegation of malice and want of reasonable and probable cause. It is impossible to find words more exactly representing the present cause of action than those, and according to their literal meaning, if they stood alone, without section 2, the plaintiff having brought an action of trespass, must have been nonsuited. We must then see whether it is within the spirit of the act to give this full effect to the words of section 1. The act is passed to protect Justices in the execution of their duty, and that section must contemplate some informality in the proceedings, otherwise no protection would be required. Section 2, which is relied on by the plaintiff, speaks of acts done by a Justice in a matter of which he has not jurisdiction, or in which he shall have exceeded his jurisdiction. Now, I am not prepared to deny that this case may range itself within the literal meaning of these words: for this action is certainly brought for an act done by a Justice in a matter in the course of dealing with which he has exceeded his jurisdiction; but the following words are, that "any person injured thereby, or by any act done under any conviction or warrant issued in such matter," may maintain an action in the same form and case as he might have done before the act passed. If we gave these words their literal meaning, it would be impossible to reconcile them with section 1, and the general rule in construing a statute is, if possible, to reconcile all its parts, and give full effect and meaning to the whole. That may be done here by supposing section 2. to apply to cases where the party brings his action for the thing which is itself the excess of jurisdiction. If this action had been for putting the plaintiff into the stocks, it is extremely probable that trespass would have lain. But as that was not done we may, I think, leave section 2. out of the question, and hold that the defendant is protected by section 1. It is, therefore, unnecessary to decide the point arising on section 13, or as to the special damage.

WIGHTMAN, J.-It appears to me that the objection taken to the form of this action is well founded, and that the defendant is entitled to the protection of sect. 1. of 11 & 12 Vict. c. 44, as this action was

brought for an act done by him in the execution of his duty as a Justice with respect to a matter within his jurisdiction as such Justice. It is an action of trespass to recover damages for having levied the plaintiff's goods under a warrant of distress, issued in a matter over which he certainly had general jurisdiction, and in which an information having been regularly laid before him, he had jurisdiction to proceed so far as to award payment of the penalty and costs, and that these might be levied by distress and sale. But he went further, and ordered that in default of payment the plaintiff should be set in the stocks. He never was, in fact, set in the stocks; but under a warrant of distress which the defendant had jurisdiction to issue, his goods were seized and the penalty and costs levied. For this taking the present action is brought. It seems to me that this falls within section 1. It is argued that the case falls within section 2, because it happens that, although the action is not brought for any particular act in which the Justice has exceeded his jurisdiction, he has in one part of the proceedings gone beyond his jurisdiction, and that therefore trespass may well be brought. Now, in order to reconcile sections 1. and 2, we must, I think, hold that this is not an act done by a Justice in a matter in which he has exceeded his jurisdiction, although in case the plaintiff had been put in the stocks and the action had been brought in its present form for that, it would have been brought for an act done in a matter in which he had exceeded his jurisdiction. The matter of which he had no jurisdiction was the ordering the plaintiff to be set in the stocks. The present action is brought not for that, but for an act done in a matter over which he certainly had general jurisdiction, and it is therefore within section 1.

ERLE, J.-I also concur in the opinion which has been given. This case is one of considerable importance in respect of the construction of a statute of very wide application. I think the cause of action was an act done by a Justice in the execution of his duty in respect of a matter within his jurisdiction. The defendant was a competent tribunal to try and convict the plaintiff, and he had jurisdiction to order payment of the penalty and costs, and to direct them to be levied by distress and

sale of the plaintiff's goods. That is what he has, in fact, done, and so he has not by any of the acts complained of exceeded his jurisdiction. But the plaintiff has been enabled to maintain an action against the defendant, because there was a defect of form in the judgment pronounced by him by reason of his ordering the plaintiff to be put in the stocks in case of non-payment of the costs. If anything had been done upon that wrongful order as to the stocks, I think it would have been a matter not within the jurisdiction of the defendant as a Justice. The present is one of those cases where a few words perfectly immaterial to the plaintiff have crept into the conviction by reason of which he has been enabled to get it quashed and to bring an action in respect of all that has been done under it. I think it is precisely the case intended to be provided for by section 1, and where malice and want of probable cause is essential to give a right of action. The only difficulty which arises is under the words of section 2. But it seems to me necessary to hold that a limitation must be put on that section. We must construe both clauses together, and prevent them from conflicting. In any case where the cause of action arises out of or is proximately connected with an excess of jurisdiction an action of trespass would be proper. The present case affords an example of this. If the action had been for putting the plaintiff in the stocks, trespass might have been brought for that cause of action.

proved that A, carrying a sack containing stolen fowls went with B. at past four in the morning into the house of C.'s father; that in about ten minutes time A. (still carrying the sack) came out at the back-door with B, preceded by C. with a lighted candle; that C. was the only member of the family up in the house; that the three went together into a stable on the same premises; that the police went into the stable after them, and found the sack lying on the floor, and the three men standing round it as if bargaining. The Bench told the jury that the taking of A. and B. with the stolen goods by C. into the stable over which he had the controul for the purpose of negotiating about the buying of them, he well knowing the goods to have been stolen, was a receiving them within the meaning of the statute. The jury convicted A. and B. of stealing the fowls and C. of receiving the fowls, knowing them to have been stolen.

Upon a case, stating the above facts, the question asked being whether the conviction of C. was proper,-Held, by a majority of the Judges (eight to four) that the conviction

was wrong.

The majority were of opinion that C. did not receive the fowls, as they all along remained in the manual possession of A. and B, and were never under C.'s controul, and it was not the intention of A. and B. that C. should have them except on the contingency, which never happened, of his completing a bargain for them.

The minority held that as C. co-operated with A. and B. in the common purpose of carrying the fowls into the stable, he had a joint possession with them, and that as he knew that the fowls were stolen, and assisted in the removing them for the purpose of negoliating about the purchase, he had a possession with a wicked purpose, and therefore might properly be convicted as a receiver.

The opinion of the Judges was requested on the following

CASE.

At the General Quarter Sessions of the Peace for the county of Northumberland, holden by adjournment at the Moot Hall of the same county, in the Castle of Newcastle-upon-Tyne, in the same county, on the 26th of February A.D. 1850, Bryan

Straughan, George Williamson and John Wiley were jointly indicted for stealing and receiving five hens and two cocks, the property of Thomas Davison. It was proved that on the morning of the 28th of January in the same year, about half-past four, Straughan and Williamson were seen to go into the house of John Wiley's father with a loaded sack that was carried by Straughan. John Wiley lived with his father in the said house, and was a higgler attending markets with a horse and cart. Straughan and Williamson remained in the house about ten minutes, and then were seen to come out of the back door, preceded by John Wiley with a candle, Straughan again carrying the sack on his shoulders, and to go into a stable belonging to the same house, situated in an inclosed yard at the back of the house, the house and stable being on the same premises. The stable door was shut by one of them, and on the policemen going in they found the sack lying on the floor tied at the mouth, and the three men standing round it as if they were bargaining, but no words were heard. The sack had a hole in it, through which poultry feathers were protruding. The bag when opened was found to contain six hens, two cocks and nine live ducks. There were none of the inhabitants up in the house but John Wiley, and on being charged with receiving the poultry knowing it to be stolen, het said "that he did not think he would have bought the hens."

The jury found Straughan and Williamson guilty of stealing the poultry laid in the indictment, and John Wiley guilty of receiving the same knowing it to be stolen.

The Bench told the jury that the taking of Straughan and Williamson with the stolen goods as above by Wiley into the stable, over which he had controul, for the purpose of negotiating about the buying of them, he well knowing the goods to have been stolen, was a receiving of the goods by him within the meaning of the

statute.

The question for the opinion of the Court was, if the conviction of Wiley was proper.

Otter, for the prisoner.-The conviction is wrong. The direction of the chairman of the Quarter Sessions does not lay down

a correct rule. Wiley ought not to have been convicted unless he had possession of the property. He never did receive it at all within the meaning of the statutes 3 W. & M. c. 9, the 22 Geo. 3. c. 58, and the 7 & 8 Geo. 4. c. 29. s. 54. Wiley's leading the thieves into the stable was no receipt of the stolen property by him. The thieves retained the actual possession of the property all the time. There cannot in law be a joint possession by the thief and receiver. The thief, it is submitted, must have parted with the possession to another person to constitute the latter a receiver-The Queen v. Parr (1). If a thief says to a friend "I have here a stolen watch, will you buy it?" and the friend answers "Come home to my house with it and sleep there, and we will talk about it in the morning," and the thief goes to his friend's house and sleeps there with the watch in his pocket, the owner of the house, it is submitted, could not be convicted as a receiver.

a

[LORD CAMPBELL, C.J.-Suppose thief brings a large hamper to a friend's house and tells him it contains stolen goods, and asks permission to leave it in the house all night, could not the owner of the house be convicted as a receiver?]

If the thief left the hamper he would be liable; but not so if the thief remained with the hamper all the time. The fact of the bargain being made in Wiley's father's stable, cannot affect Wiley's liability as a receiver any more than if it were made on a common or in a field.

[LORD CAMPBELL, C.J.-Suppose the policemen had come in just after the bargain had been concluded, and before the fowls had been handed over to Wiley, do you contend that in that case Wiley could not have been convicted as a receiver?]

The conclusion of the bargain, it is apprehended, would have made no difference if the possession of the property had not been delivered to Wiley. The Queen

possession as soon as they are delivered to the carrier, yet the consignee cannot be convicted as a receiver without an actual delivery to him. What is sufficient as a receipt for civil purposes is not enough to affect a person with criminal liability as a receiver. In Farina v. Home (3) it is said, by Parke, B. that a receipt is " the delivery of the possession of the goods on behalf of the vendor to the vendee, and the receipt of the possession by the vendee.” If Wiley had refused to give the price the thieves asked for the fowls, they would have been able to have taken them away. Wiley cannot be made criminally liable for a receipt which would not have been sufficient under the Statute of Frauds. It may also be observed, that the house and stable were not in the possession of Wiley, but of his father.

[LORD CAMPBELL, C.J.-Suppose Wiley had said, "Let me feel the fowls," and had taken them into his hands, could you contend that he would not then have had the possession?]

Perhaps not; but here he never had the fowls in his hands, or the power to take them into them. He intended to obtain possession, but the bargain being incomplete, he never did obtain it. Wiley never had any manual possession of the goods, and it is quite clear that the thieves never intended that he should have them until the price was agreed upon and the bargain completed. The thieves had such a possession that they might have maintained trespass-Purnell v. Young (4), Ashmore v. Hardy (5), or brought an indictment for larceny against any one who should have stolen the property from them—The King v. Wilkins (6).

Liddell, for the Crown.-There is sufficient evidence stated in the case to warrant the conviction. In East's P.C. 765, it is thus laid down:-"As to what general evidence shall be held to constitute a receiver under the statutes of William and Anne, and 22 Geo. 3. c. 58. it is to be observed, that the words are in the dis

(3) 16 Mee. & W. 119; s.c. 16 Law J. Rep. (N.S.) Exch. 73.

(4) 3 Ibid. 288; s. c. 7 Law J. Rep. (N.s.) Exch. 80.

(5) 7 Car. & P. 501. (6) 2 Leach, C.C.582.