Court Of Common Pleas, Tu...
The Times, 1824-11-10T00:00:00

Thc Court met and sat this day at 112o'clock, ir banco. CLAYTON V. CLUTTERBUCIc. Afr. Sergeant TADD Y moved for a rule to show cause why the verdict in this cause should not be set aside, and a new trial be grant- ed. It appeared from his statement that ti-s was an action of tres- pass in which the plaintiff complained ef having been taken into custody under a warrant issued by the detendant, and of having been subsequently committetl by him to the gaol at St. Albans,where he was imprisoned forseven days. The defendant iustified his cow- duct, by stating that he had committed the plaintiff to gaol under the actof 5 Geo. IIi., chap. 14, sec. 3, which had been passed for the protection of private fisheries. That act makes it an offence for any person to take or destroy fish, or to cause fish to be taken or de- stroyed, in any water running in any park. padidock, or garden, or in any other enclosed ground, being private pro.)er:y ; and imposes upor the offender a fine of 51. on conviction pf the offence before a magistrate; and in case of non-payment of that fine, imptisonment for any period of time not exceeding six calendar months. Now tipon the trial it was shown, that the water in which the plaintiff was found fishing was private property. It was also surrounded by tences, and enclosed in every direction except one, which he did not consider to be niaterial. A public bridge passed over it, and the only fence by which the water was guiarded in that direction was the railinK of the bridge. On the 18th of Slav, the plaintiff was detected in the act of fishing in this water. Air. Kidd, to whom the ivater belonged, applied in consenuence to Afr. Clutterbuck fora warrant to apprehend the plaintif. The plaintiff was accordingly apprehended, and brought before AlSr. Clutterbuck, the defendant in thlis action. MIr. Clutterbtuck conceiving the water to be enclosed and private property, convicted the plaintiff' in thc penalty of 51., and on his rerusal to pay it committed him to prison. The plaintiff, oni learning that such was the defendLant's determination, rubbed his hands and said that "t that was all he wanted." Mlr. Clutterbuck sent him to prison in a postchaise. The LoRD CHIES' JUSTICE.-" I suppose lie meant, that the ride in the postchalee was all he wanted." AlMr. Sergeant TADDY.-." No, my Lord, lie said that he hat got what he had been trying for some time, and he would make them remember troubling him about fishing." The learned counsel then proceeded to inform theCourt,thatat thetrial,his client had put in as evidence the conviction of the plaintiff under the act 5 (3eo. III., cap. 14, sec. 3, stating, that the plaintiff wa% convicted in a penalty of 51. for fisliing in a water that was private property, and in enclosed ground. The jurv, however, gave a verdict for the plaintiff for 351. damages, on no other grround, which lie could see, except that he was entitled to 51. a-day for his loss of time. Now, at the trial he had contended. and meant to contenid-again that day, tlhat no action was maintainable against Al r. Clutterbuck for what he had then done, as the convictlon was in itself conclusive. He had quoted at the trial; in support of that posltion, the case of Britton v. Kinnaird, ' as given in the first volume of Mr. Bing- ham's Reports. In that case, there had been a conviction under the Excise L,aws, in whichl the magistrate had held a vessel to be a boat, which the Court was of opinion was not a boat. The Court were, however, of opinion, that no action was maintainableagainst the ma- gistrate, as the conviction was good on the face of it, and must be taken as conclusive. A similar decision hadl been formerly given in the case of" (rayvv. Cookson," IS East, 13, where itwashel:l thatifacon- viction be good upoi the face of it, the production and proofofit at the trial will justify the convicting magistrate under the geiieral issue in an act of trespass, as well in respect of such facts therein stated as are necessary to give them jurisdiction as upon the merits of the conviction. The learnedl.Judge, however, who. tried thecase, told the jury that, notwithstanding the cases w7hich had been quoted to him, he had no doubt that the action wvas maintainable * and it was upon that misdirection of the learned .Judge that he now ap- plied to the Court for a new trial. lIe had also another question to submit to the Court. on which, if their Iordships should go alotig with him, he had obtained leave from the learned Judge who tried the case to enter a nonsuit against the plaintif That question was, by whom ought the notice of action to be served on the Magistrate r The statute said that it must be served by the plaintiff's attorney or his agent. Now the notice in this case had been served by ayoung man who was clerk to Mr. R. Hill, the plaintiff's attorney, and not by AMr. R. Hill Ihimself. The COURT intimated that thev had no doubt that a notice so Ferved was perfectly correct. It coiuld not be expectedtlhat attornies could be running all over the country serving notices personally: if the notices were served by their clerks, they must be censidered as served by the attornies themselves. Mlr. Sergeant TADDY pressed a contrary op7nion upon the Court, contending tlhnt the notice to the magistrate was intended by the Legislature as a means of affording him an opportunity of making a tender of reparation to the party alleging himself to be aggrieved. Now suchi tender cou.ld not be made to the attorney's clerk; and if it were *nade, the attorney's clerk wotuld be without authority to ac- Mr. Justice PARK.-YOU will recollect, brother Taddy, that the tender is not required to be made upon the instant: vou have awhole month in which to offer it; and in that time, if you are anxious, you can surely meet the plaintiff's attorney. -u1r. Sergeant TADDY intimated that the attorney's place of resi- denice might be unknown. Sir. Justice PARX observed, that if the notice of action did not contain the place of residence of the plaintiff's attorney, it waa in- sufficient. The COURT, after againi declaring that the defendant hiad 21o grounds upon which to enter a nonsuit, gave Sir. Sergeant Taddy leave to take a rule to show cause why a new trial should not be had. The RFconDER entered the Court a few minhutes before three- o'clock, attended by the new Lord MAayor and tble Slieriffs. After they had appointed an attorney to maintain the rights and privilezes of the city of Lnn(ton ini that Court for the ensuting year, the Re- corderinvited their Lordshipa to dine with the city, in Guildhall, at five o'clock. Their Lordships gave the usual answer to this annual invItatisn, by slaking their heads with a very slow and solemn motion. COURT OP floMMNVr PF.1.AR 'PTTnV Nmr- 0.