Salmon Fishing Act, 1861-"Having in Possession the Young of Salmon"-24 & 25 Vict. c. 109, s. 15.

By section 15 of the Salmon Fishing Act, 1861, it is enacted, that any person "having in his possession the young of salmon" shall incur certain penalties

therein named :

Held, that a person, who has taken, and is in possession of, young of salmon, not knowing them to be such,

cannot be convicted under the above section.

Case stated by justices in petty sessions. The respondent, the Rev. Mr. Hopton, was charged by the appellant before two justices of Radnorshire, sitting in Petty Sessions, with unlawfully having in his possession the young of salmon.

By section 15 of 24 & 25 Vict. c. 109, it is enacted, that any person who shall "buy, sell, or expose for sale, or have in his possession, the young of salmon," shall forfeit such young of salmon, and the tackle used in committing the offence, and shall be liable to a penalty not exceeding 51. By section 4, it is enacted, that 'young of salmon' shall include all young of the salmon species, whether known by the name of fry, samlet, smolt, smelt, &c."

The appellant and another witness proved that, on the 27th of March, 1863, they found the respondent fishing with rod and line in the river Ithon; that they searched his basket, and that it contained several trout and eight or ten recently killed samlet. spondent admitted that he had taken the fish in tion; but said, that he had been fishing for trout, and did not know that these fish were samlet: but, on the contrary, took them for trout.

The re

ques

The justices found that the respondent had taken in the river Ithon certain fish called samlet; but that he did not know that they were samlet or young of salmon, and that he had not taken them wilfully.

The justices, thereupon, declined to convict the respondent of the offence charged, and the question for the opinion of the Court was, whether they were right in law in so doing.

J. E. Davies appeared for the appellant, and contended that the justices ought to have convicted the respondent, inasmuch as the word "wilfully" did not

occur in the statute; but the offence was completed by the mere possession of samlet.

COCKBURN, C.J.-"Wilfully" is always implied, if it is not expressed. A man is bound to know the law; but he is not bound to know facts. Our judgment will be for the respondent.

WIGHTMAN and MELLOR, JJ., concurred.

Arrest

Judgment for the respondent.

Q. B. } WILLIAMS v. GIBBON.

12 Nov. 1863.

Warrant under Absconding Debtors' Arrest Act-Capias-14 & 15 Vict. c. 52. Where a debtor is arrested under a warrant granted by a County Court Judge pursuant to the provisions of the Absconding Debtors' Arrest Act (14 & 15 Vict. c. 52), but no capias is obtained and served within seven days from the date of the warrant, as required by section 1 of that Act, the debtor may, nevertheless, on his discharge from custody, be again arrested under a capias granted by a Judge of one of the Superior Courts, on the same grounds as those on which the warrant was obtained. Masters v. Johnson, 8 Exch. 63, dissented from.

McIntyre moved for a rule, calling on the plaintiff to show cause why the defendant in this action should not be discharged out of custody, on the ground that the capias under which he was detained was irregular.

On the 12th of October a warrant for the arrest of the defendant was granted under the Absconding Debtors' Arrest Act (14 & 15 Vict. c. 52), by a County Court Judge, and, on this warrant, he was arrested at Liverpool on the 14th of October. On the 20th of October the plaintiff, by leave of a Judge, obtained a capias upon affidavits sworn on the 16th of October, setting forth the same grounds for believing that the defendant was about to abscond as those on which the

County Court Judge's warrant had been obtained. This capias was directed to the sheriff of Lancashire, but was not put in force, the defendant having been, on the 22nd of October, discharged from custody under the warrant. The plaintiff accordingly, on the 24th of October, obtained a fresh capias, directed to the sheriff of Glamorganshire; but it was obtained upon the same Judge's order as the previous one, and without any new affidavit. Under this capias the defendant was arrested, and it was from custody under this capias that it was now sought to discharge him.

The learned counsel cited and relied on

Masters v. Johnson, 8 Exch. 63,

as a conclusive authority in his favour, and as unaffected by any subsequent decision, no judgment having been given on this point in the case of

Hughes v. Griffiths, 32 L. J. C. P. 47.

He contended that, when a creditor elects to adopt the remedy provided by the Absconding Debtors' Arrest Act, he must take it with all its incidents, one

of which is, that if no capias be served within seven days to support the warrant as required by that Act, the debtor cannot be again arrested, except upon fresh grounds.

Gray, Q.C., showed cause in the first instance.The decision in Masters v. Johnson is based on a misapprehension of the nature of the present writ of capias. The old writ of latitat was the commencement of the action, and the maxim nemo debet bis vexari properly applied when the cause of action was the ground of arrest. Now, however, the action commences with the writ of summons, and under 1 & 2 Vict. c. 110, the debtor can only be arrested if a Judge be convinced that he meditates flight. All that the 14 & 15 Vict. c. 52 intended to provide for was, that the debtor might be detained while the necessary process was being procured, but it left the capias under the former Act altogether unaffected.

McIntyre, in support of his rule.-Section 1 of the 14 & 15 Vict. makes it obligatory on the creditor to issue and serve the capias within seven days, and if he fail to do so he loses his right of arrest except upon new grounds arising.

tion of the proceeding before the County Court Judge, and that which originated the proceeding having failed, it must fail also. That, however, does not appear to me to be the real ground on which the

capias issues, because section 3 provides that “the warbe auxiliary only to the processes now in use." That rant which shall be issued by virtue of this Act, shall is, it is to be only preliminary as an assistance to enable the plaintiff to issue a capias, and I see no reason for holding that the capias was in any way affected by the defect under the warrant. As the debtor was still, in the opinion of the Judge, about to abscond, I do not see why the capias should not be perfectly effectual for

his detention.

That

The case of Masters v. Johnson was relied on, on the part of the defendant, and there the Court certainly seem to have considered, in a case which it is difficult to distinguish from the present, that the arrest under the capias was irregular. In the judgment there, it is said, "This capias was applied for, not on independent grounds, but on the same grounds on which the Commissioners' warrant was originally obtained." may be so, but that is hardly a ground for considering that the capias itself would be of no effect, because the warrant is only a preliminary proceeding, quite apart from the merits, which are, that the debtor is about to abscond. The judgment seems to have proceeded on the idea that the capias was a continuation of the proceeding by the warrant, for it goes on to say,

"It is in truth a part of and completion of that proceeding, and inasmuch as it did not comply with the Act by being issued and served within the limited time, we think the defendant could not legally be arrested and detained under it." But I do not see why an independent proceeding should not be available, if the Judge who granted it was satisfied that it ought to issue. Further on in the judgment it is said,—“We think, therefore, that this falls within the principle of not allowing a defendant bis vexari pro cádem causâ.” That maxim, however, hardly seems applicable to a case like this. The defendant still has the intention of going abroad, and it is quite different from the case of a man being vexed twice for the same cause of action. If this maxim were to apply, then, whenever there was any defect in the first arrest of the defendant, so that he was discharged out of custody, he might leave the country at any time, and there would be no power to stop him. It is true that the Judges proceed to limit it thus,-"We do not say that no fresh capias can issue; on the contrary, if applied for on any fresh grounds afterwards, it will be valid," but it is difficult to understand what is meant by that, as the sole ground on which the capias issues at any time is, that the defendant meditates flight.

WIGHTMAN, J.-I am of opinion that this rule should be discharged. It appears that in this case there had been a warrant issued, under the 14 & 15 Vict. c. 52, by a County Court Judge, and that the applicant was arrested under it on the 14th of October, but there was no capias issued within seven days to support that arrest under the warrant, and the consequence was that the prisoner was discharged. He was afterwards arrested, however, under the capias, treating it as an independent proceeding, and the question is, whether that arrest was regular or not. He was arrested in the first instance by virtue of the 14 & 15 Vict. c. 52, which recites, "that the laws now in force for the arrest of debtors absconding from England are insufficient and inadequate for that purpose by reason of the delay which is occasioned in obtaining the necessary process." That is to say, that while the plaintiff was seeking to obtain the capias, the defendant (as it appears would have been the case Lere,) left the country; and section 1 accordingly provides that the debtor may be arrested at once under a warrant granted by a County Court Judge or Commissioner of Bankruptcy. But to make the arrest binding, it was necessary that a capias should have issued within seven days. It did not issue, however, within that time, but it afterwards did issue upon the same materials as were before the County Court Judge, and which were considered sufficient by the Judge of the Superior Court who issued the capias. And under that the defendant was arrested after he had been There is, however, a subsequent case of Hughes v. discharged by reason of the defect in obtaining the Griffiths, in which the authority of the case in the necessary process to support the warrant. The ob- Exchequer appears to have been at least doubted by jection made is, that he could not be so arrested, the Judges of the Court of Common Pleas, although under the capias, because it was a mere continua- it became unnecessary to decide the point. There

1

Libel-Words not Libellous on the face of them -Inuendo-17 & 18 Vict. c. 126, s. 61.

In an action of libel for words which have no tendency in themselves to disparage the plaintiff, the inuendoes must contain such averments as, when read together with the words, will show a tendency to an inuendo which disparage the plaintiff, and amounts merely to an averment of an intention on the part of the defendant to disparage the plaintiff will not be sufficient.

DEMURRER. Declaration; S. D. Cox sues W. A. Cooper for that the defendant falsely and maliciously wrote and published of the plaintiff in a certain newspaper the words following, that is to say, Huntingdon County Court, Thursday, Cox v. Gowler. When this case was called on, the plaintiff, S. D. Cox (meaning the now plaintiff) was not in Court, on which Mr. Gibson who appeared for the defendant, the

the said

plaintiff's mother-in-law, applied for costs, which were
allowed, and the case struck out;" meaning that the
now plaintiff was the plaintiff in an action in the
Huntingdon County Court, when in fact he was not the
plaintiff, and one T. Cox was the plaintiff therein, and
meaning that in that action the plaintiff was suing
his mother-in-law, and meaning that
action was struck out, and that the said County
Court ordered the now plaintiff to pay costs on account
of the said action being so struck out, when in
truth the said action was not struck out, but the
trial thereof was only adjourned, with costs to be paid
by the plaintiff therein, and was so adjourned on the
application of the plaintiff therein, and meaning that
the relationship of son-in-law and mother-in-law
which in fact existed between the now plaintiff
and the defendant in the said action, was mentioned
in the said County Court in the course of the pro-
ceedings therein, or otherwise appeared from these
proceedings, when in truth it was not so mentioned
and did not so appear, but being otherwise known to
the now defendant, was by him maliciously introduced
into the said libel for the purpose of creating in the

minds of those who should read the said libel, an
impression unfavourable to the now plaintiff, and a
suspicion against the now plaintiff, and meaning that
that the now plaintiff ought to be regarded with sus-
picion of being guilty of something wrong and blame-
able in so suing his said mother-in-law in the said
action.

Demurrer and joinder in demurrer.

mother-in-law. That is not actionable unless it be wrong to sue a mother-in-law.

BLACKBURN, J.-I am of the same opinion. The 61st section was intended to effect an alteration in the form of pleading, but not in the law, which is clearly this:-that any words tending to bring a person into odium are actionable, but the words, coupled with the inuendoes, must disclose a cause of action. I remember a number of actions which were brought some years ago, on the Northern Circuit, in which the libel was contained in letters, written by the secretary of a society for the protection of tradesmen, to the various members of the society, and consisted of the words "AB" (the plaintiff) "is fit to be a member of our Society." But there the declaration went on to show, that this was the ordinary form of intimating to the members of the society that a particular person was a swindler, and that the words were used, upon the occasion in question, with reference to this practice; and then followed an inuendo, "meaning thereby that A B, the plaintiff, is a swindler." That, no doubt, disclosed a good cause of action, and, since the

Common Law Procedure Act, 1852, such an inuendo would, no doubt, be sufficient by itself, without any explanatory averments, and all matters in explanation of the meaning, might be given in evidence under a declaration in that form. But if the words are not actionable in themselves, there must be a distinct averment that they bore a meaning which was actionable. Here there is no averment that the defendant meant to charge the plaintiff with suing his mother

Keane appeared in support of the demurrer, but the in-law under disgraceful circumstances, or that the

Court called upon

Archibald for the plaintiff.

The declaration shows a sufficient cause of action. To publish of a man that he has sued his mother-inlaw is in itself a proceeding tending to bring him into a certain amount of odium, and here the inuendoes, which upon demurrer must be taken to be true, show that the defendant published the statement knowing it to be false, and with a malicious intention to injure the plaintiff, and to prove that the plaintiff ought to be regarded with suspicion, as being guilty of something wrong or blameable.

Following the rule laid down in section 61 of the Common Law Procedure Act, 1852, and the forms given in the appendix to that Act, it is enough if the words and the inuendoes together constitute something defamatory; the rest is entirely for the jary,

Hemmings v. Gasson, 1 E. B. & E. 346; 27 L. J.
Q. B. 252.

WIGHTMAN, J.-It is quite clear, that this declaration does not disclose a sufficient cause of action. Taking it altogether, it is evident that the plaintiff alleges that the defendant meant to charge him with having done something wrong in having sued his

words meant anything more than they appear on the face of them to mean.

The defendants owed the plaintiff 671., and plaintiff owed defendants 1111. Defendants held as security for 1007. of such 1117. an equitable mortgage of some land of the plaintiff's. It was orally agreed between the plaintiff and the defendants that the defendants should take the plaintiff's interest in the land at a value then fixed at 701., and that such sum should be placed to the credit of the plaintiff, leaving defendants indebted to plaintiff in 261. A further sum of 41. was at the same time deducted from plaintiff s claim, leaving 221. due to him. Afterwards, but before action, plaintiff conveyed his interest in the land to defendants. Plaintiff having sued the defendants upon an account stated for the 221. :—

Held, that he might maintain his action, the agreement to take his interest in the land at 701. being a consideration for the account stated, which was valid at the time of the making of the agreement, and which | had not subsequently failed; but that, if after the making of the agreement, the plaintiff had made default in the conveyance of his said interest to the defendants, the consideration for the account stated would have failed, and the action could not have been main-agreed that such balance should be taken at the sum tained.

of 227., to which the plaintiff assented. The plaintiff had not sued Edward Taylor, the third partner in the same firm of Pickles & Co., the County Court Act (9 & 10 Vict. c. 95, s. 68) enabling the plaintiff to The action was brought in the County Court of sue any one or two of joint-debtors, without being Leeds, to recover 227. upon an account stated. subject to a plea of non-joinder.