Pater v Baker
| Jurisdiction | England & Wales |
| Judgment Date | 16 January 1847 |
| Date | 16 January 1847 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 333
IN THE COURT OF COMMON PLEAS
S. C. 16 L. J. C. P. 124; 11 Jur. 370. Applied, Wren v. Weild, 1869, L. R. 4 Q. B. 737. Observation adopted, Steward v. Young, 1870, L. R. 5 C. P. 127.
pater v. baker. Jan. 16, 1847. [S. C. 16 L. J. C. P. 124; 11 Jur. 370. Applied, Wren v. WeM, 1869, L. E. 4 Q. B. 737. Observation adopted, Steward v. Yowng, 1870, L. R. 5 C. P. 127.] In case against a surveyor of highways, appointed under the 7 & 8 Viet. c. 84, for the following words alleged to have been spoken by him at a public auction, in reference to certain unfinished houses at a place called Agar Town, which the plaintiff had put up for sale-"My object in attending this sale is, to inform purchasers, if there be any here present, that I shall not allow purchasers (meaning persons who then might be disposed to purchase at the said sale the said house of the plaintiff, so exposed for sale as aforesaid), to be finished or occupied, until the roads are made good in Agar Town. I have no power to compel any one to make the roads; but I have power to stop the buildings until the roads are made. If there shall be any purchasers, they will have to keep the carcasses in their unfinished state until the roads are made "-the judge at the trial allowed the declaration to be amended, under the 3 & 4 W. 4, c. 42, s. 23, by substituting for the words in italic, the words " the houses : "-Held, that such amendment was properly allowed. -In such a case, malice is not to be inferred from the circumstance of the defendant having acted upon an incorrect view of his duty, founded upon an erroneous construction of the statute. Case, for words in the nature of slander of title. The declaration stated that the plaintiff, before and at the time of the committing of the grievances by the defendant thereinafter mentioned, was possessed, for the residue of a certain term of years then to come and unexpired, to wit, the term of twenty-one years, of divers, to wit, twelve unfinished houses, with the ap-[832]-purtenances, situate, lying, and being in a certain place called Agar Town, wherein divers roads were then marked out and unfinished, which said place then was, and now is, parcel of the parish of St. Pancras, in the county of Middlesex, and then did and still does form part of a certain division or district for the administration, and within the (a) See Anonymous, 1. Salk. 86, Garth. 412, Skinn. 679, Comb. 439; Turwin v. Gibson, 3 Atk. 720; WaUrm, In re, 2 Str. 1126; Sex v. Smollett, 3 Burr. 1313; Wilkins v. Carmichael, 1 Dougl. 104; Welsh v. Hole, 1 Dougl. 238; Griffin v. Eyles, 1 H. Bla. 122; Mitchell v. Oldfield, 4 T. R. 123; Read v. Dupper, 6 T. R. 361; Hollis v. Olaridge, 4 Taunt. 807; C'owell v. Betteley, 10 Bingh. 432, 4 M. & Scott, 265, 2 Dowl. P. C. 780; W&rrall v. Johnson, 2 Jac. & W. 218; Colegrave v. Manley, 1 Turn. & Russ. 400; Fleury v. The Earl of Heath, 1 Alcock & N. 88; Newton v. Harland, 2 M. & G. 886, 4 Scott, N. R. 769; Tidd's Practice, 9th edit., 337, 338; Archbold's Practice, 7th edit. 86, 87. The rule of the 17th of December, 1846, for payment of the 50001. to Cook, was afterwards, in consequence of other claims being set up on the fund, amended by an order of Maule, J., at chambers, made by consent. The amended rule directed "that the tenant do and-shall forthwith pay to G-ustard the sum of 2501., to Messrs. Davies & Son the sum of 7001.; and that he do and shall forthwith pay into court the sum 'of 16001. to cover the lien claimed by Cook, and also the sum of 7181. 5s. lOd. to cover the lien claimed by Clarke; and that, out of the said last-mentioned sum, there be paid out of court to Clarke the amount of his bill, as soon as the same shall have been ascertained by the master; and that the tenant shall forthwith pay the residue of the said sum of 50001. amounting to the sum of 17311. 14s. 2d., to the said demandant." Cook's claim was afterwards satisfied by paying him 8001., and Clarke's bill was taxed at about 4001. Several other payments having been made in satisfaction of liabilities incurred by the demandant, in the result, she returned to Wales with about 5001. 334 PATER V. BAKER 3 C. B. 833. operation, of an act made and passed in the eighth year of Her Majesty Victoria, intituled "An act for regulating the construction and use of buildings in the metropolis and its neighbourhood," called the district of the parish of St. Pancras, and which houses then were approached by, and adjoined to, a certain roadway, of the width, quality, and description, required by the said act, that is to say, of such width as would admit to one of the fronts thereof, of a scavenger's cart of the ordinary size of such carts; the said houses then being of the class described in the said act as the first class : that the plaintiff, before and at the time of the committing of the grievances thereinafter mentioned, was desirous of selling his said estate and interest in the said houses by public auction, and, for that purpose, the plaintiff, before and at the time of the committing of the said grievances, to wit, on the 2nd of March, 1846, caused his said estate and interest therein to be advertised for, and the same were then put up and exposed to, sale by public auction, at a certain house, to wit, the Camden Arms, within the said parish and district of St. Pancras, by one James Kennedy, as the auctioneer and agent of the plaintiff, in order that the same might be then sold for the plaintiff: that, before and at the time of the said putting of the said houses up for sale, the defendant was, and filled the office of, one of the surveyors appointed in pursuance of the said act, for the said district within which the said houses then were so built: yet that the defendant, well knowing the premises, but contriving, and falsely and maliciously intending [833] to injure the plaintiff, and to cause and induce the persons attending the said exposure to sale, to believe and apprehend that there was no such roadway to one of the fronts of the said houses, as required by the said act, and to interrupt the said sale, and to hinder and prevent the plaintiff from selling or disposing of his said estate or interest in the same, and to cause the plaintiff to lose and be deprived of divers great gains, which he might, and otherwise would, have reaped and derived from the said sale, and to lose and be deprived of the expenses attending the said exposure to sale, and to which he the plaintiff had then been put in procuring the said estate to be so advertised for and exposed to sale, and to cause the same to be sold for a much smaller price than the said houses otherwise, but for the committing the grievances thereinafter mentioned, would have realised and produced, and to vex, harass, and oppress the plaintiff, to wit, on the day and year aforesaid, wrongfully, injuriously, falsely, and maliciously, and without any reasonable or probable cause, and under colour of his said office, and under the false and malicious pretence of executing the same, attended, and was present at, and upon, such exposure to sale of his the plaintiff's said estate and interest of and in the said houses, and at the place aforesaid, and then, upon such exposure to sale, and before the said estate and interest had been put up for sale, falsely and maliciously, under colour and pretence of executing his said office, in the presence and hearing of divers liege subjects of our said lady the Queen, then and there assembled and present, and attending the said sale for the purpose of bidding for, and purchasing, the said houses, spoke and published of and concerning the plaintiff, and of and concerning the said houses with the appurtenances, and the plaintiff's said estate and interest therein, the false, scandalous, slanderous, [834] and malicious words following-" My object (meaning, his the defendant's object) in attending this sale, is, to inform purchasers, if there be any here present, that I (meaning, the -defendant) shall not allow purchasers (meaning, persons who then might be disposed to purchase at the said sale the said houses of the plaintiff so exposed for sale as aforesaid,) to be finished or occupied, until the roads are made good in Agar Town (meaning, the said district called Agar Town aforesaid) : I (meaning the said defendant,) have no power to compel any one to make the roads (meaning, the roads in Agar Town aforesaid); but I (meaning the defendant) have power to stop the buildings (meaning, that he, the defendant, had power, under and by virtue of his feeing such district surveyor under the said statute, to prevent the said unfinished houses from being finished,) until the roads (meaning the said roads in Agar Town aforesaid,) are made: If there shall be any purchasers (meaning, purchasers of the said houses of the plaintiff at the said sale), they will have to keep the carcasses (meaning the said houses in their then unfinished state,) until the roads (meaning the roads aforesaid) are made." And the plaintiff further said, that the defendant, further intending as aforesaid, afterwards, to wit, on the day aforesaid, at the place aforesaid, and just before the commencement of the said putting up for sale of the said houses, in the presence and hearing of the said subjects so assembled at the said putting up for sale for the purpose of bidding for and purchasing the said houses, 3 C. B. 835. PATER V. BAKER 335 spoke and published the false, malicious, and slanderous words, following of and concerning the said houses, with the appurtenances, and the plaintiff's said estate therein- " Gentlemen, I am not come here as a purchaser, but to inform the company (meaning, the subjects aforesaid who were then there assembled at the said intended sale,) that the roads [835] (meaning the roads aforesaid) must be made good, or I will stop the communication with the buildings " (meaning the said houses of the plaintiff): That, by...
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