peared that his clients having inquired of the defendants as to the truth of a representation made by a person who had offered to buy goods of them, the defendants replied that they would not be responsible for the price of the goods, but believed the person had the employment he represented. The goods were then supplied to him. His representation turned out to be false, and the plaintiff, by the direction of his clients, wrote a letter to the defendants, demanding payment from them for the goods obtained from his clients through the defendants' representation, and stating that the circumstances made it incumbent on his clients to bring the matter under the notice of the public, if the defendants did not immediately discharge the amount; and that he had instructions to adopt proceedings, if the matter were not arranged in the course of the morrow; and that, as those measures would be of serious consequence to the defendants, he hoped they would prevent them by attention to his letter. The defendants were then summoned before a magistrate to answer a charge of obtaining goods under false pretences. The plaintiff served the summons, and attended for his clients, and the summons was dismissed. The defendants afterwards indicted the plaintiff for sending a threatening letter, contrary to the 7 & 8 Geo. 4, c. 29, s. 8, and he was acquitted. On the trial of this action, the judge, without leaving any question to the jury, decided that there was reasonable and probable cause for preferring the indictment: it was held that the decision was correct, and that the evidence did not raise a question of fact for the jury, whether the defendants bonâ fide believed that they had a reasonable cause for indicting; but a pure question of law for the judge, whether the defendants had such reasonable cause. Ravenga v. Mackintosh, 2 B. & C. 692, 4 D. & R. 187, is distinguishable from the present case: there, it was conceded that the prosecution was without 1835. MACDONALD บ. ROOKE. 1835. MACDONALD v. ROOKE. reasonable or probable cause; the only question was whether or not the defendant had proceeded bonâ fide. TINDAL, C. J.-There may be an entire absence of reasonable or probable cause, and yet no malice-the defendant may have acted with perfect good faith, upon advice. The construction of a threatening letter is undoubtedly for the judge alone. In such cases he ought to direct the jury as to whether or not there was reasonable or probable cause for the defendant's proceeding. But, where the question of reasonable or probable cause is a mixed question of law and fact, the absence of a distinct direction on the part of the judge is hardly ground for a new trial, where he is satisfied with the verdict. I think the present comes within that class of cases in which want of reasonable or probable cause depends, not upon a dry question of legal construction, but upon a chain of facts, the consideration of which ought not to be withdrawn from the jury. I therefore think there is no ground for disturbing the verdict. PARK, J., concurred. GASELEE, J.-I think his lordship did perfectly right in taking the opinion of the jury upon the facts. BOSANQUET, J.-I am also of opinion that there was in this case matter for the consideration of a jury: it was for them to say whether the articles carried away by the plaintiff were taken animo furandi, or merely borrowed. There is no ground for a new trial. (a) In the course of the argument, Taddy, Serjeant, referred to Willans v. Taylor, 6 Bing. 183, Rule refused (a). 3 M. & P. 350; S. C. nom. Taylor v. Williams, 2 B. & Ad. 845. HALL and Another v. GoODRICKE. THIS was an action on the case against the sheriff of Berkshire for taking insufficient pledges on a replevinbond. The cause was tried before Lord Denman at the last Assizes at Abingdon. It appeared that the bond was taken in the penalty of 170l.; and that the amount due for rent was 687., and the costs of the replevin suit 1201. There was no evidence of the value of the goods seized, but it was assumed to have been 85l., the half of the penalty in the bond. A verdict having been found for the plaintiffs, damages 1707.— Talfourd, Serjeant, moved (in pursuance of leave reserved at the trial) to reduce the damages to 85l. The cases upon the subject are conflicting: but, upon principle, there seems no reason why, the bond being conditioned in the alternative for the prosecution of the suit with effect, or for a return of the goods distrained, the sheriff should be liable to an amount exceeding the value of the goods. It was so determined in the case of Yea v. Lethbridge, 4 T. R. 433. Lord Kenyon there says: "In order to see to what amount the sheriff is answerable, it is necessary to inquire what would have been the consequence if he had taken sufficient pledges. Now, the duty of the sheriff, as prescribed by the act of parliament, is, to take a bond for prosecuting the suit, and for a return of the goods distrained if a return shall be awarded (11 Geo. 2, c. 19). Then, if he had taken such a bond, how would it have been satisfied? By returning the goods taken. Then, the value of those goods seems to be the true measure of damages to be given in this action." And Grose, J. says: "The duty of the sheriff is accurately pointed out by the statute of Westminster 2, which requires that sheriffs shall not only receive of the plaintiffs 1835. Wednesday, In an action on the case against the sheriff for taking insufficient pledges in replevin, the proper measure of damages is, the penalty of double the the bond, viz. value of the goods distrained. 1835. HALL บ. GOODRICKE. pledges for the pursuing of the suit, before they make deliverance of the distress, but also for the return of the beasts if return awarded. And if any take pledges otherwise, he shall answer for the price of the beasts.' And the 11 Geo. 2 does not enlarge the sheriff's responsibility in this respect." In the next case that occurred, Concanen v. Lethbridge, 2 H. Blac. 36, it was held that the plaintiff might recover damages beyond the penalty of the bond, that is, more than double the value of the goods distrained. But, in Evans v. Brander, 2 II. Blac. 547, the court said, "that, notwithstanding the late determinations on the subject, the good sense and justice of the case seemed to be, that the sheriff should be liable no further than the sureties would have been if he had done his duty and taken a bond under the statute 11 Geo. 2, c. 19, and they had been sufficient; that their responsibility was limited by that statute to double the value of the goods distrained, which sum ought to be the measure of damages against the sheriff." And the rule was made absolute to reduce the damages to the amount of double the value of the goods distrained; but, as appears by the report, by consent. In Baker v. Garratt, 3 Bing. 56, 10 Mo. 324, it was sought to charge the sheriff with the costs of a fruitless action against the sureties on the bond; but the court decided in conformity with Evans v. Brander. In Scott v. Waithman, 3 Stark. 168, however, Abbott, C. J., intimated an opinion in conformity with the decision of the court of King's Bench in Yea v. Lethbridge: in leaving the case to the jury, his Lordship said: "As the verdict in the replevin suit was merely for a return of the goods, the jury could not in their verdict exceed the value of the goods;" and that ruling was not disputed. In this conflict of opinions, unless the court shall be of opinion that the rule laid down in Evans v. Brander has settled the point, the defendant will be entitled to a rule. TINDAL, C. J.-In Hefford v. Alger, 1 Taunt. 218, it was held that the measure of liability of the sureties in a replevin bond is the amount of the penalty, and the costs of the suit on the bond. After that decision, coupled with Evans v. Brander, I do not think the court would be warranted in throwing the point open again by granting a rule. PARK, J.-In Evans v. Brander, the liability of the sheriff and the liability of the surety are said to be correlative. I concur in thinking that the point is definitively settled by the decisions referred to by his lordship, and that the amount of the penalty is the only measure of the damages whether against the sheriff or against the sureties in the bond. The rest of the court concurring 1835. HALL v. GOODRICKE. Rule refused. BOYCE v. CHAPMAN and Another. Thursday, against coach proprietors for the loss of a parcel contain ing cash and peared that the parcel had ar THIS was an action on the case against coach proprie- In an action tors for the loss of a parcel containing money and notes. The defendants pleaded-first, not guilty-secondly (on the statute 11 Geo. 4 & 1 Will. 4, c. 68, s. 1), that, at the time of the delivery of the parcel to the defendants for the purpose of being carried, the value and nature of the articles contained in it were not declared, nor was any increased rate of charge received by the defendants as a compensation for the greater risk and care to be taken for the safe conveyance of such articles. The plaintiff replied (on s. 8) that the loss was occasioned by the felonious act of the defendants' servant. rived at the defendants' coach-office in August, 1834, and was there lost; that, in June, 1835, a porter who was in the employ of the defendants at the time of the loss was sent by a guest at the hotel in the yard in which the office was situate with a 57. note and five sovereigns to get a 101. note in exchange for them; that the porter procured a 101. note at a shop in the neighbourhood, and gave a 101. note to the guest, which note proved to be one that had been contained in the lost parcel, and which the person from whom the porter was supposed to have procured it stated that he thought was not the same note he had given him. Upon an issue as to whether or not the parcel was lost through the felonious act of the defendants' servant, the jury having found for the plaintiff, the court refused to grant a new trial; the defendants not having called the porter. |