1850.

Ross v.

NORMAN.

fendant may have made the application to the Judge bonâ fide, but was mistaken as to the amount really due.

The Court then called on

Hugh Hill to support the declaration. The declaration is framed in accordance with the precedents since the alteration of the law by the 1 & 2 Vict. c. 110: 2 Chit. Plead. 437, 7th edit. It in substance alleges, that the defendant, without reasonable or probable cause, maliciously procured from the Judge an order, by means of a false affidavit that a debt was due to him. The plea of not guilty puts in issue all that it is necessary to prove in order to sustain the action, namely, want of reasonable and probable cause, and malice: Mummery v. Paul (a). Here, as required in Daniels v. Fielding, it is stated what the false charge was by which the Judge was misled.

Needham in reply.-There is no part of the declaration which shews that the defendant knew that the affidavit was false. If it is meant only that the affidavit was false in fact, that affords no ground of action. It might be that the affidavit was untrue in some trifling particular, but that the defendant, at the time he made it, believed it to be true. In De Medina v. Grove (b), it was held, that no action would lie against an execution creditor or his attorney for issuing a fi. fa. indorsed to levy the whole sum recovered by a judgment, which, to the knowledge of both, has been partly satisfied by payment, unless malice and want of probable cause were alleged in the declaration and proved. Lord Denman, in delivering the judgment of the Court, there said, "If malice and want of reasonable and probable cause had been alleged, they would have formed the gist of the action, and the part payment would only have been a circumstance, which alone would not have entitled the plain

tiff to maintain the action." In Roret v. Lewis it was clear from the facts that there was no ground for the arrest, yet the declaration was held bad for not alleging a want of reasonable and probable cause.

THE COURT having intimated their opinion that the declaration was good,

Needham prayed leave to withdraw the demurrer and plead over, which was granted on terms.

Amendment accordingly.

1850.

Ross

V.

NORMAN.

In the Matter of the APOTHECARIES COMPANY v. BURT.

THIS was a rule calling on the Judge of the County

Court of Cambridgeshire, and the plaintiffs, to shew cause why a writ of prohibition should not issue to prohibit the said Court from further proceeding in this plaint.

The summons in the plaint required the defendant "to appear at a county court, to be holden at" &c., "to answer the plaintiffs in an action on contract for illegally practising as an apothecary;" and the "debt or claim" was stated to be 201.

The particulars were as follows:-"This is an action brought to recover the sum of 207., for that, after the 1st day of August, 1815, mentioned in a certain Act of Parliament passed in the fifty-fifth year of the reign of his late Majesty King George the Third, intituled, An Act for

better regulating the practice of apothecaries throughout

tioned, whereby the defendant had forfeited the sum of 201. By the 55 Geo. 3, c. 194, s. 20, any person who shall practise as an apothecary without a certificate, shall forfeit" for every such offence" 201.:-Held, on motion for a prohibition, that, whether the facts stated in the particulars amounted to four offences, or one only, the sum recoverable was limited by the summons and particulars to 207., and therefore the county court had jurisdiction.

1850.

In re

Co.

V.

BURT.

England and Wales,' and before the commencement of this suit, to wit, on the 17th of November, 1849, and on divers APOTHECARIES Other days and times, the defendant (he the defendant not being a person who, on the said 1st of August, 1815, or at any time theretofore, was actually practising as an apothecary) did act and practise as an apothecary in England, and within the jurisdiction of this Court, that is to say, in Upwell, in the Isle of Ely and county of Cambridge; Upwell, in the county of Norfolk; Outwell, in the Isle of Ely and county of Cambridge, and Outwell, in the county of Norfolk; by then and there, as such apothecary, attending and advising and furnishing and supplying medicines to and for the use of certain persons, to wit, one George Swan, one Caroline Palmer, one Eliza Andrews, and one William Ranson, without having obtained such certificate as by the said Act is directed, contrary to the form of the statute in such case made and provided; whereby, and by force of the same statute, the defendant forfeited for his said offence the sum of 207. The sum of 207. so forfeited is the sum which this action is brought to recover."

The ground of the present application was, that it appeared by the particulars, that the plaintiffs sought to recover, or might recover, four distinct penalties of 201 each, and consequently the county court had no jurisdiction.

Martin and F. Robinson shewed cause.-The plaint was issued for penalties under the Apothecaries Act, 55 Geo. 3, c. 194, the 20th section of which enacts, "That, if any person (except such as are then actually practising as such) shall, after the 1st of August, 1815, act or practise as an apothecary in any part of England or Wales, without having obtained such certificate as aforesaid, every person so offending shall for every such offence forfeit and pay the sum of 201." By the 26th section, all penalties and forfeitures exceeding five pounds shall be recovered “in any

1850.

In re

Co.

v.

BURT.

of his Majesty's courts of record in England or Wales." And by the 58th section of the County Court Act, 9 & 10 Vict. c. 95, “all pleas of personal actions, where the debt APOTHECARIES or damage claimed is not more than 20%., whether on balance of account or otherwise, may be holden in the county court." So that a penalty of this kind may form the subject of a plaint in the county court. Then it is obvious, from the summons and particulars, that the plaintiffs are seeking to recover one penalty only. It is true that the particulars mention four instances of practising; but that cannot affect the jurisdiction of the Court. The particulars are not delivered under any statute; they mean no more than that the defendant actually practised as an apothecary by attending the persons mentioned. Treating them as a declaration or count, all that can be said is, that they are open to objection on the ground of duplicity. When one case of attendance had been proved, it would be the duty of the Judge of the county court to prevent the plaintiffs from proceeding with the others; or if they proved four offences, they could only recover 201., and might abandon the excess under the provisions of the 63rd section. It would seem, however, from the case of the Apothecaries Company v. Bentley (a), that an unqualified person only incurs one penalty, though he attends several patients. In Rex v. Lovet (b), which was an information under the game laws for using a dog and also a gun on the same day, it was held, that the defendant could only be convicted in one penalty. So, a person can commit but one offence on the same day, by exercising his ordinary calling on a Sunday, contrary to the 29 Car. 2, c. 7: Creeps v. Durden (c).

Naylor, in support of the rule.-The particulars state that the defendant attended four different persons at dif

1850.

In re

Co.

v.

BURT.

ferent times and places; and, by the 55 Geo. 3, c. 194, s. 20, he is liable, for "every such offence," to forfeit 201. APOTHECARIES Should the Judge of the county court, on evidence of the several acts of practice, decide that the plaintiffs were entitled to recover one penalty, they might afterwards issue another plaint, omitting the name of one of the persons attended, and so on with respect to the other two. If the plaintiffs intended to abandon the excess above 20%., it should have been so stated in the particulars. In Vines v. Arnold (a) it was held, that where the debt due from the defendant to the plaintiff was above 20%., the levying a plaint in the county court for less than that amount was not an abandonment of the excess. But in this case the plaintiff's could not abandon the excess; for though the action must be brought in the name of the Company, yet the 25th section directs that one half of the penalty shall be given to the informer; so that, at most, they could abandon their own portion only. [Alderson, B.-Is not the construction of the particulars this: I go for one or other of the four penalties, amounting to 207.?] In re Ackroyd (b) shews that the cause of action may be made up of several

contracts.

POLLOCK, C. B.-The rule must be discharged. I do not see any ground for this Court prohibiting the county court from hearing and determining the case. The claim is limited to 20%., and more cannot be recovered. The statement of the claim is indeed ambiguous, and may give rise to a question which has been urged to a certain extent, but upon which it is unnecessary to pronounce an opinion; namely, whether a number of acts done by the defendant at various times and places may be made the subject of more than one penalty. We need not, however, enter upon that inquiry. The county court has jurisdiction whenever the