fendants sued for "anything done in pursuance of this

1853.

THOMAS

Act" to tender amends. In Stamp v. Sweetland (a) the present point was argued; but the Court gave no STEPHENSON.

decision on it: the authorities are collected in the report (b). No doubt the Legislature might enact that bona fides should be a substantive defence; but they shew no such intention here. Sect. 39 allows the defendant to give any actual compliance with the Act in evidence under the general issue. Sect. 40 enacts "that no plaintiff shall recover in any action for any irregularity, trespass, or other wrongful proceeding made or committed in the execution of this Act," if sufficient amends be tendered before action, or paid into court. This would be superfluous if sect. 39 had already made it a substantive defence that the wrong was done in execution of the Act; unless indeed it was meant by sect. 40 to protect those who malâ fide, under colour of the Act, did a wrong, knowing it to be one. It would be strange if such persons were protected.

Bramwell, in reply. Sect. 40 may be put in as a cumulative protection. A prudent man, threatened with a vexatious action, will tender a small sum and be safe. The words in sect. 39 are "in pursuance of this Act;" and it cannot be denied that, as far as the venue is concerned, those words mean something else than strictly justified by the Act. In sect. 40 the words are "in execution of this Act," which is a change of language indicating some intention to change the meaning.

(a) 8 Q. B. 13.

Cur. adv. vult.

(b) 8 Q. B. 18, note (h). See also Mellor v. Leather, 1 E. & B. 619.

V.

I 2

1853.

THOMAS

V.

STEPHENSON.

Lord CAMPBELL C. J., now delivered the judgment of the Court.

On a former day we intimated a clear opinion that the defendant was not justified by stat. 5 & 6 W. 4. c. 63. s. 28. in taking away the plaintiff's scales as forfeited, although they were unjust, and he incurred a penalty by keeping them: but we took time to consider whether the finding, that the defendant acted bonâ fide and in the bonâ fide belief that he was acting in pursuance and by the authority of that statute, entitled him to a verdict. It is impossible to lay down any general rule applicable to all the various statutes passed for the protection of public functionaries, who have made a mistake in the exercise of a statutable authority, honestly believing that they were justified by it. Parliament, in its omnipotence, might exempt them from all liability; although it seems more reasonable, and more in conformity with the policy hitherto pursued by the Legislature, only to free them from technical difficulties in conducting their defence, and to exempt them from the heavy costs which must follow a verdict against them, if they are willing to offer compensation for the wrong which they have unintentionally committed. The second question in this case depends entirely on the construction to be put upon sects. 39 and 40 of stat. 5 & 6 W. 4. c. 63. Looking only to the former of these two sections, there would be some ground for contending that, if the grievances complained of appear to have been done in pursuance of the Act, there shall be a verdict for the defendant, although not done under the authority of the Act, and although there has been no tender of amends and no payment of money into Court; but the following

section we think shews satisfactorily that the Act only meant to apply to procedure, without giving an absolute indemnity; for it goes on to enact that no plaintiff shall recover in any action for any irregularity or other wrongful proceeding in the execution of the Act, if tender of sufficient amends shall have been made before action brought, and that, if there has been no such tender of amends, the defendant may pay money into Court. Thus he is to be entitled to a verdict only on condition that he has tendered sufficient amends, or that he has paid into Court a sum which the jury may think an adequate compensation for the wrong suffered. Although there is some change of phraseology in this section, and the expression occurs" in the execution of this Act" instead of "in pursuance of this Act," it seems clearly to extend to irregularities where the party bonâ fide believed that in what he did he was justified by the Act. That being so, it is impossible to conceive that the Legislature intended, where such irregularities have occurred, to entitle the defendant to a verdict on simply proving that what he did without the authority of the Act he did in pursuance of it, i. e. in the belief that under the statute he was justified in doing it.

We are therefore of opinion that the county court judge was right in his decision of both questions, and that the appeal must be dismissed with costs.

Appeal dismissed.

1853.

THOMAS

V.

STEPHENSON.

To an action

upon a covenant by defendant

to pay money, defendant pleaded that, before the

making of the deed, it was unlawfully agreed, be

FISHER against BRIDGES.

DECLARATION, for that defendant, by his deed, bearing date 27th October, 1849, covenanted with plaintiff, for himself, his heirs, executors and administra-tors, that he, defendant, his heirs, executors, administrators and assigns should and would well and truly pay, or cause to be paid, to plaintiff, his executors, administween plaintiff trators and assigns, the sum of 6301, with interest and defendant, thereon, after the rate of 5l. per cent. per annum, on 27th April 1850, without making any deduction or abatement on any account whatever; and also that, in case the said sum of 6307. should not be then paid, defendant, his executors, administrators or assigns, should and would thenceforth pay unto plaintiff, his

that plaintiff should sell to

defendant, and

defendant purchase of plaintiff, and accept from

him a conveyance of, land for a term, in con

sideration of a

sum of money

to be paid by defendant to plaintiff, "to the intent, and in order, and for the purpose, as the plaintiff at the time of the making the said agreement well knew," that the land should be sold by lottery, contrary to the statute. That afterwards, "in pursuance of the said illegal agreement," the lands were assigned for the term; and defendant made the deed to secure payment of a part of the purchase money to be paid by defendant to plaintiff, which remained unpaid.

Held a bad plea, on motion for judgment non obstante veredicto; for that it did not connect the deed of covenant with the effectuating the illegal purpose.

executors, administrators and assigns, interest for the same, after the rate aforesaid, by even and equal half yearly payments, until the same should be paid: Yet defendant did not pay to plaintiff on 27th April, 1850, the principal sum of 6301, or any part thereof: and the same is still unpaid &c.

Plea 1: "That, before the making of the said deed in the declaration mentioned, it was unlawfully agreed, by and between the plaintiff and the defendant, that the plaintiff should sell, assign and transfer to the defendant, and that the defendant should purchase of the plaintiff, and accept from him a conveyance of, certain lands and houses, for the residue of a term of years, subject to a certain mortgage thereon, and to the payment of a certain sum of money, at and for and in consideration of a certain sum of money to be therefore paid by the defendant to the plaintiff, to the intent, and in order, and for the purpose, as the plaintiff at the time of the making the said agreement well knew, that the said lands and houses should be exposed to sale, and sold by way of lottery, or by lots, tickets, numbers or figures, or by a method or device depending upon or to be determined by lot or drawing, contrary to the form of the statutes in such case made and provided: And the defendant further says that afterwards, in pursuance of the said illegal agreement, the said lands and houses were sold, transferred and assigned for the residue of the said term of years, subject as aforesaid: and, a part of the said purchase or consideration money to be paid by the defendant to the plaintiff for the same being unpaid, the defendant, to secure the payment thereof to the plaintiff, made the said deed and covenant in the declaration mentioned; the said 6301. being parcel of that money."

1853.

FISHER

V.

BRIDGES.