question fitted for their consideration, unless we are most clearly satisfied that upon some misunderstanding or mistake they have come to a wrong decision. For these reasons, I think the rule ought to be discharged. Rule discharged. 1834. BELCHER V. PRITTIE AN JAMES V. SAUNDERS. Jan. 23. C. upon fendant, a attorney who had been committed to prison by A disturbance the magistrates of Carmarthen, for violence alleged took place in the to have been committed at an election of members of liberation of a parliament, was ordered by the Court of King's Bench prisoner. Deto be discharged. On the day of his liberation great magistrate, excitement prevailed in the town; and many persons seized Plaintiff assembled at the prison to greet him on his release. because he was going Guns were fired, and the discharges were accompanied towards the with other noisy demonstrations of joy. prison. Plaintiff was not concerned in the disturbance, which was going on out of sight of the place where he was seized by persons Defendant. The Defendant, a magistrate of the town, who was sitting in an inn near the prison, upon hearing the noise at some distance and seeing persons pass by towards the prison, rushed out, seized the Plaintiff by the collar, saying, "you are one of the rascals," and detained him about five minutes, till a constable came up and informed the Defendant that the Plaintiff was not one of the who had been making the disturbance. The Plaintiff was a carpenter, who had left his work to procure some nails; but he was accompanied by a person who was proceeding towards the prison. There was no disturb ance at the precise spot where the Plaintiff was seized. The Defendant was of a political party opposed to that to which the liberated attorney belonged. Ff VOL. X. The Held, that Defendant was not en titled to notice of trespass The Plaintiff having sued the Defendant in trespass for this assault, without giving him notice of action as a magistrate, it was objected at the trial, that the Defendant was acting in that capacity when he seized the Plaintiff, and therefore, having received no notice of action, was entitled to a verdict. Bosanquet J., before whom the case was tried, told the jury that, in his opinion, the Defendant was not acting in his capacity of magistrate; but that, if the jury thought that he was bona fide under an erroneous impression, they might apportion the damages accordingly. He reserved leave, however, to the Defendant to move to enter a nonsuit. A verdict having been found for the Plaintiff with 107. damages, Wilde Serjt. obtained a rule nisi to enter a nonsuit, upon the objection made at the trial. Talfourd Serjt., who shewed cause, relied on the circumstance that there was no riot at the spot where the Plaintiff was seized, as shewing that the Defendant was not acting bonâ fide in his capacity of magistrate, but merely under the influence of party feelings. Wilde. The excitement in the town and the noise of firing were sufficient to authorize the Defendant to act as a magistrate; and though he was mistaken as to the individual, he was still entitled to notice of action. It is with a view to the magistrate being in error that the statute has given him the privilege of receiving notice of action, in order to afford him the opportunity of making amends. TINDAL C. J. The learned Judge haying reserved it to the Defendant, upon these facts, to move to enter a nonsuit, nonsuit, after intimating an opinion that the verdict ought to be for the Plaintiff, the case must be taken as if, by consent, the Court were substituted for the jury; and then we must consider the question as if this were a motion for a new trial upon a verdict against evidence. Upon such a motion it is the constant practice to refer to the Judge who presided at the trial for his opinion as to the propriety of the verdict; and, in the present case, he expresses himself satisfied. It has been argued, that the protection afforded by the statute can only be of use to a magistrate where he has erred in the execution of his duty, and ought therefore to be extended to him on the present occasion; and I agree that it ought, if he had erred in supposing he was called to suppress a riot. But if it be a question whether he was acting bona fide on such a supposition or not, it is material to consider what was the nature of the disturbance. Here there was a firing at a distance, in which the Plaintiff was not concerned; and there was no tumult where the Defendant stood. I do not urge this as disentitling the Defendant to the protection of the statute if he had been acting bonâ fide on a mistaken supposition of his duty, but as circumstances which might reasonably induce the jury to infer that he was not so acting; and the learned Judge who tried the cause being satisfied with their finding, I think we ought not to set it aside. PARK J. concurred. ALDERSON J. I am not altogether satisfied; and I think I should have left it to the jury more distinctly to say whether the Defendant was acting bonâ fide in his capacity of a magistrate, or not. BOSANQUET J. I was not asked to put it precisely in that shape: the jury had a strong opinion, and it Ff2 was 1834. JAMES V. SAUNDERS. 1834. JAMES V. SAUNDERS. was thought the question of law might be sufficiently raised by giving the Defendant leave to move to enter a nonsuit. Rule discharged Jan. 25. a reference of two causes, COWELL v. BETTELEY. COWELL v. SNOW and Others. Where upon THESE actions, the first of which was trover, and the second, case for an irregular distress, were, together with all matters in difference between the parties, referred by an order of Nisi Prius to an arbitrator, who was to decide for whom and for what amount the verdicts should be entered. damages in the first were ordered by the award to be set off against costs only be done Costs to abide the event. In the first cause the arbitrator awarded a verdict for the Plaintiff, with 100l. damages. In the second, a verdict for the Defendants; but With respect to the other matters in difference, found attorney of the that 867. 11s. 6d. was due from Cowell to Betteley; that the second action had been defended at the sole expense Plaintiff in the first cause for his costs. of Betteley; and thereupon awarded that Betteley should set off the 867. 11s. 6d., and the costs of the second action, against the damages and costs in the first action. Wilde Serjt. obtained a rule nisi to refer it to the prothonotary, to ascertain the amount of the lien of the Plaintiff's attorney on the damages and costs recovered in the first action, and to issue execution for the amount of such lien, notwithstanding the set-off ordered by the award. He contended, that as the costs were to abide the 1834. COWELL v. the event, the arbitrator had exceeded his authority in making any directions on the subject; and that if they had abided the event of the award, without any such directions, the Plaintiff's attorney would have been BETTELEY. secure of his lien under rule 93. of Hilary term 2 W. 4., which provides that "no set-off of damages or costs between parties shall be allowed to the prejudice of the attorney's lien for costs in the particular suit against which the set-off is sought; provided nevertheless, that interlocutory costs in the same suit, awarded to the adverse party, may be deducted." Jones Serjt., who shewed cause, argued, that even if the arbitrator had no authority to order the costs in the second cause to be set off against the damages of the first, he had authority under the reference of all matters in difference, to order the set-off of the 861. 11s. 6d. due from Cowell to Betteley; Figes v. Adams (a); and the Plaintiff's attorney having consented to the arbitration upon all matters in difference, was bound by that part of the award. TINDAL C. J. It is unnecessary to decide whether the arbitrator had or had not authority to order this set-off as between the parties to the two causes. The question is, whether the jus tertii of the attorney is to be governed by the act of the arbitrator, contrary to the express provision of a rule of Court, in other words, whether we shall put such a construction on the award of the arbitrator as will defeat the rule of Court. And it seems to us that the rule of Court must govern the present case. If there had been no arbitration, the parties could not, by their own agreement, divest the attorney of his lien on the judgment; neither can they |