said commissioners, until fourteen days' notice given in writing.

Can any reasonable doubt be entertained that the officer thought himself justified in entering the Plaintiff's house in search of Simonds under a warrant of the commissioners, which ordered his apprehension wheresoever he might be found? At common law the house of a third person would be no protection to a debtor against the process of law, and sheriffs' officers are constantly in the habit of entering in pursuit; for though a man's house may be his own castle, it is not a castle for others also. No doubt the officer enters at his peril, and if he fails to find the object of his pursuit, is liable to an action of trespass. Now what difference is there between proceedings under this act and proceedings at common law? The officer enters the house bonâ fide in pursuit of the party named in the warrant; he is therefore entitled to the protection afforded by the twenty-first section of the act, of having an opportunity afforded him to tender reasonable amends. Acts of parliament which protect officers of justice in the discharge of their duty, have always been construed liberally. The case of Edge v. Parker is clearly distinguishable, for the party who there entered the house of a third person had no justification under the statute by virtue of which he entered. For though that act entitled him to enter the house of the bankrupt, yet by section 29. he was bound to obtain a search warrant before entering the house of a third person in search of the bankrupt's goods; without such a warrant, therefore, he must have been conscious that he was not acting in discharge of his duty.

As to the jury's having found that the Defendant had no sufficient ground for believing Simonds to have been in Plaintiff's house, the objection on the act of parliament was before the learned Judge who presided at the

1833.

Cook

V.

CLARK.

1833.

COOK

V.

CLARK.

trial, and the opinion of the jury was only taken in case the Court should think the Defendant not entitled to the notice prescribed by the act.

PARK J. The opinion of the jury cannot be taken into consideration, because the question under the statute arose before the question on the particulars of the alleged trespass. All these acts for the protection of officers of justice are in pari materia, and the Courts have looked at the local acts in the same way as the general acts. Here, by section 21. " no action shall be commenced against any person for any thing done in pursuance of that act, or on account of any order, judgment, or decree of the said commissioners, until fourteen days' notice given in writing."

It is impossible to say that a person acting bonâ fide in pursuance of that statute, does not come within the principle laid down by Lord Tenterden in Beechy v. Sides.

BOSANQUET J. I am also of opinion that this case falls within the principle laid down by Lord Tenterden in Beechy v. Sides. In order to entitle the Defendant to the notice required by the twenty-first section, it is not necessary he should be able to justify under the statute, for in such a case the notice would be superfluous. And this case is distinguishable from Edge v. Parker, for there the officer could not have been acting in pursuance of the statute, having neglected to procure the warrant, which could alone authorize him to enter the Plaintiff's house. Here the officer had a warrant to take Simonds, and the only question is, whether he entered the Plaintiff's house bona fide with the intention of putting the warrant in force. If he did, he was entitled to notice of action, and the rule must be made

Absolute.

1833.

EMERY and MIDDLETON v. MUCKLOW.

May 27.

THE Plaintiffs had been appointed, and had acted as Where one

trustees for the benefit of certain creditors of a tradesman, under a composition deed dated January

21st, 1833.

of several plaintiffs dis

sents to bringing the action,

In this capacity they sued the Defendant in replevin. the Court will

not interpose, unless upon a

fraud.

Adams Serjt., upon an affidavit that Middleton had suggestion of never executed the trust deed, that the creditors and Emery refused to indemnify him, and that Middleton had the opinion of counsel that the action was not advisable, obtained a rule calling on Emery and the Defendant to shew cause why Middleton's name, as a joint Plaintiff, should not be struck out.

Wilde Serjt., who shewed cause, relied on the fact of Middleton's having acted as trustee, and contended that the Court would not interfere between two Plaintiffs, unless upon suggestion of fraud or improper proceeding.

Adams urged the hardship of Middleton being compelled to proceed without indemnity in an action which he deemed unadvisable; but, although called upon, he adduced no authority for the interposition of the Court.

TINDAL C.J. The usual course is, for the dissenting Plaintiff to release the Defendant, and the question as to his right to do so is then raised upon a suggestion to the Court, that the release is fraudulent; we have no authority in this stage of the proceedings, unless the party's

C 4

1833.

EMERY

V.

party's name has been used, not only against his will, but fraudulently. If Middleton chose to act as trustee, he must bear all the burthens of such an office. No MUCKLOW. authority can be adduced to shew that the Court has interfered to prevent an action by trustees, till all the trustees have been indemnified by the creditors for whom they act. We have the less difficulty in deciding this, because we interfere with no legal right which Middleton may have to release the action.

PARK J. There is no imputation of any fraud in the proceedings, and we should be going further than a court of law has any right to go, if we were to interfere with the rights of the Plaintiffs and accede to this application.

BOSANQUET J. concurred.

GASELEE J. abstained from expressing any opinion, because he had knowledge of the situation of the parties dehors the affidavits now before the Court.

Rule discharged.

May 28.

PLEVIN V. HENSHALL and Another.

After verdict TROVER. The Plaintiff and Defendants both claimed under different instruments as assignees of

for Plaintiff in

trover, the

goods were

seized in the hands of Defendant for

rent due to

the estate and effects of one Davis.

At the trial the title was found to be in the Plaintiff,

and a verdict was given for 9477. 19s., the value at the

A., which the Plaintiff was liable to pay: Defendant having paid, the rent, the Court allowed him to deduct the amount from the verdict found for Plaintiff.

time of the trial of the goods in the Defendants' pos

session.

After the verdict, and before the Defendants had removed the goods from a leasehold which had been occupied by Davis, the landlord distrained for 1187., a quarter's rent which became due after the verdict: whereupon

Wilde Serjt. obtained a rule nisi to reduce the verdict by this 118., the Plaintiff as assignee of Davis's estate being bound to pay the rent in question.

Jones Serjt. who shewed cause, contended that the motion was of the first impression, and that the Court had no authority to alter the verdict in ease of wrong doers, who having taken the goods without title, had by improperly retaining them given the landlord time to distrain. No set off was allowable in trover, nor could the Defendants have brought an action for money paid to the use of the Plaintiff.

TINDAL C. J. The case falls within a principle well known and recognized in Westminster Hall. The Plaintiff has recovered damages in action of tort; the Defendant has, in effect, satisfied them pro tanto, and he comes to us to allow this amount towards satisfying the judgment. The Plaintiff as assignee of Davis's estate was liable to pay the rent in question; and what difference is there between the Plaintiff himself taking and selling cattle for such rent, or the landlord's taking and selling them? the effect is the same, whether the cattle were taken from the hands of the Plaintiff or of the Defendant. The parties are in the same situation as if the Defendant had gone to the Plaintiff after the verdict, and had paid him 1187. the sum distrained for. It is urged that there is something new in the applica

1833.

PLEVIN

V.

HENSHALL.