Trespass Defences
Cases
Dellway Investments v NAMA
[2011] IESC 14
“A property owner has a clear right to have his property respected by the State and safeguarded from trespass or seizure by others; but there may be imperatives arising from a state of war or armed rebellion, an accident, or an acute emergency created by fire, natural disasters or other sudden and extreme circumstances which justify transient trespass upon his property without his consent or without taking the time to see if he, as owner, wishes to urge any reason against it. Thus the placing of a fireman’s ladder in one’s garden, to save imperilled life and property, does not require audi alterem partem if the garden’s owner is absent. But it is the business of the law to identify such circumstances: otherwise the cry of ‘emergency’ would be sufficient to set all rights aside at the whim of the Executive.”
Purtill v. Athlone U.D.C.
[1968] IR 205
O’DalaighC.J.; Walsh J. O’DALAIGHC.J. :
19 July
I have read the judgment that Mr. Justice Walsh will deliver and I agree with it.
WALSH J. :
On the relevant dates the defendants owned and operated an abattoir in the town of Athlone. The method of slaughter of the animals, carried out by the defendants’ employees, was by the use of a humane killer which is a pistol-like instrument in which the power is supplied by the explosion of a detonator. A separate detonator is employed for each use of the instrument and the defendants kept a stock of these detonators on the premises for the purpose of carrying on the work of the abattoir. The premises were situated about a half a mile from the residence of the plaintiff and he passed the abattoir every day going to, and coming from, school. The doors of the abattoir were open from 9 a.m. until about 6 p.m. and apparently it was customary for boys to go into the premises without objection from the caretaker of the premises or the employees working at the slaughter of the animals. At the time of the accident in respect of which he has sued, the plaintiff was fourteen years old and he had visited the abattoir premises on about ten occasions in the previous five years, always with other boys. The visits were during the periods when the doors were open and apparently the gate leading into the premises was never shut during those hours. In the course of his visits he had seen the method used for killing the animals and had observed that the detonators were kept on a shelf in the office and also in the actual place of killing, where they were left on a stool.
On Thursday, the 14th November, 1963, he went to the premises with another boy, named John O’Brien, at about 3 or 4 p.m. when they saw some men killing sheep. The boys spent about half an hour there and afterwards lent a hand in cleaning up the premises. The plaintiff said in the course of his evidence that this was the first time he had ever assisted in any work in the premises. While the boys were there, the plaintiff observed fifteen detonators on the stool in the slaughter-house and he took seven or eight of these without the knowledge of the employees and without their consent. This, according to the evidence, was the first time he had ever taken detonators but he had seen other boys in possession of some on earlier occasions, though he did not actually see them take any from the premises. It is, however, an inference, which is open on the evidence, that the boys had obtained these detonators in the premises. The plaintiff and his friend then went home and exploded the detonators in the back garden of the plaintiff’s house by wrapping them in paper and setting fire to the paper. On the same afternoon, at about 5 p.m., he went back to the abattoir and went into the slaughter-house and took another five detonators from the stool. None of the employees of the defendants were in the slaughter-house at that time. The plaintiff then left and went to another boy’s house and exploded the detonators in a similar fashion to the earlier ones.
On the following day, which was the day of the accident, he deliberately played truant from school and went down to the abattoir at about 10 a.m. While he was there, three employees of the defendants were also there. When they were not observing him, he went into the office and took about twelve detonators from the shelf in the office. This shelf was within easy reach as it was no higher than the boy’s chest or shoulders. Later he went back to the office and took some more of the detonators, making in all about forty which he had taken without the consent or knowledge of the defendants or their employees. The plaintiff brought these detonators home to his own house and proceeded to explode them in the back garden of his house. Later on the same day, at about 1.30 p.m., he returned to the abattoir and went into the office, which was open, and saw some more detonators scattered on the shelf in the office. He took about nine of these. On this occasion he was accompanied by another boy. The boys then went off to another place, which was not the plaintiff’s home, and proceeded to explode the detonators. The plaintiff did not explode them all and when he went home to his own house he still had about seven. Four or five of these he exploded in a shed at the end of his own garden. After igniting the paper, holding one of the detonators, he threw it on the ground but it failed to explode. Thinking that the rain had affected it, he picked it up and it then exploded causing the severe injuries which resulted in the subsequent removal of his right eye. There is no doubt whatever that on this day his sole purpose in visiting the abattoir was neither to watch the men at work nor to assist in the cleaning up, but simply to steal the detonators. The employees were aware of his presence but they were not aware, apparently, of his purpose in being there. There was no evidence that the defendants or their employees were actually aware that the plaintiff, or any other boys who frequented their premises, had taken detonators from the defendant’s premises at any time.
The plaintiff sued the defendants for negligence. The negligence alleged was that the defendants knew or ought to have known that young boys, including the plaintiff, had access to their premises and in fact resorted there from time to time during the hours of work and without objection from the defendants or their servants, and that the defendants took no steps to keep the humane killer and the detonators in a place where they would not be accessible to the boys, including the plaintiff, frequenting the premises. Furthermore, it was alleged that in the circumstances the defendants were negligent in leaving the detonators readily available on the premises, either on the stool in the slaughter-house or on the shelf in the office, and that the detonators should have been kept in a safe place under lock and key, and that
the defendants should have foreseen that the boys, including the plaintiff, would be tempted to interfere with these detonators and that they would constitute an allurement for boys. It was further alleged that the defendants took no steps to warn the boys of the danger which could result from the handling or misuse of these detonators, or generally of the danger of interfering or tampering with them.
The defendants contended that they were not guilty of any of the alleged acts of negligence and further contended that the plaintiff was at all material times a trespasser on their premises and that, in effect, they owed him no duty. They also pleaded that the plaintiff himself had been guilty of negligence and that the injuries and loss suffered by him were too remote.
The defendants did not go into evidence but, at the close of the case for the plaintiff, the defendants submitted to the learned trial judge that they had no case to meet and that the plaintiff’s claim should be withdrawn from the jury. It was submitted on behalf of the defendants that the plaintiff was a trespasser and that there was no evidence that the defendants had consciously or wilfully caused him any injury, and that the full extent of their duty to a trespasser did not amount to any more than that.
The learned trial judge ruled that on the day in question the plaintiff, while he was on the defendants’ premises, was a trespasser and that the only duty owed by the defendants to the plaintiff as a trespasser was not to set a trap. He ruled, however, that there was a case to go to the jury on the question of the defendants’ negligence on the basis that, in the circumstances, it was for the jury to decide whether or not the defendants had failed to observe the degree of care in the control of the detonators that one would expect from a reasonably prudent person and whether such want of care resulted in the plaintiff’s injury. The circumstances that the judge was dealing with were the circumstances of an abattoir to which these boys had resort, without objection from the defendants or their employees, at times when these detonators were being used and were accessible to such boys.
The jury found that the defendants were guilty of negligence and they also found that the plaintiff was guilty of contributory negligence and they assessed damages at the sum of £4,242. They apportioned the degrees of fault between the parties on the basis of 85% of the fault being the defendants’ and 15% being the plaintiff’s. Against these findings and the verdict the defendants have appealed. They seek an order directing judgment to be entered for the defendants on this appeal or, alternatively, an order for a new trial. The grounds upon which the appeal is based are that the trial judge misdirected himself and was wrong in law in not acceding to the application of counsel for the defendants at the close of the plaintiff’s case to have the action completely withdrawn from the jury, and that the apportionment of the degrees of fault between the parties was perverse and not in accordance with the evidence. It was also submitted in the notice of appeal that the damages awarded by the jury were excessive and unreasonable and were not in accordance with the evidence offered at the trial.
The defendants base their appeal primarily upon the submission that the plaintiff was a trespasser on the day in question and that he cannot, therefore, be heard now to say that any greater duty was owed to him than that of not laying a trap for him. The learned trial judge ruled that the plaintiff in this case was a trespasser. The defendants, in their submission to the learned trial judge, had submitted that the plaintiff was a trespasser because his real object in coming into the premises of the defendants was to steal the detonators even though his actual entry was not sought to be prevented, or indeed objected to, by the defendants through their employees at the time. On the evidence the defendants, through their servants, could be said to have acquiesced in his presence on the premises. The acquiescence was, of course, based on the assumption that the plaintiff was coming upon the premises for the purpose of watching the defendants’ employees at work or of participating, in some minor degree, in that work. If in fact the plaintiff had gone to the premises for the purpose of assisting at the work or even merely as a spectator without the intention of stealing, it could not be maintained that he was a trespasser in the circumstances of the present case. Whether he be an invitee rather than a licensee, or vice versa, is not, in my view, decisive in this case. If he were there in either category and, having entered without any intention of stealing, he then formed the intent to steal, does he become a trespasser as from the moment he forms the intent on the grounds that once he exceeds the terms of his invitation or his licence he becomes a trespasserab initio? If the answer to that question is in the affirmative then a fortiori he is a trespasser if he forms the intention before he enters at all.
For the purposes of the present decision I do not think it is necessary to answer this question because it would only be relevant if the plaintiff had sustained injuries as a consequence of some defect or danger in the static condition of those premises, or if the defendants’ liability is attributable only to their duty as occupiers. The plaintiff’s claim against the defendants is not wholly, or even primarily, based upon the neglect of the defendants as occupiers of the premises so much as upon the neglect by the defendants of a duty which, it is claimed, they owed to the plaintiff and which did not depend upon the defendants being the occupiers of any premises but rather upon the defendants being the custodians of chattels which, if not properly controlled by them, might foreseeably cause injury to the plaintiff.
The liability, if established, is therefore one which arose by virtue of the proximity of the parties and it would be the same wherever the parties might find themselves, provided their proximity to each other was the same. In other words the liability is not based upon any special relationship such as occupier and invitee, or licensee or even trespasser, but simply upon proximity.
The first question, therefore, is whether the parties were sufficiently proximate so that the defendants might owe a duty to the plaintiff. In my view the answer to this question is in the affirmative. The plaintiff was one of a class (namely, a class of local boys), who frequented the premises in question for the purpose of watching the men at work and the plaintiff himself had on a number of occasions been on the premises for that purpose. The defendants’ employees were therefore accustomed to having these young boys around them while performing their work. The degree of physical proximity was quite close on such occasions. It was sufficiently close to make the employees conscious of the possibility of injury to any of these boys, as well as to themselves, by any untoward incident during the operation. The detonators were admittedly of a nature calling for care and ones which were known, or ought to have been known, to be capable of causing injury if wrongly used. If the employees, or one of them, were to give some of these detonators to any of these boys as playthings, or to use as they wished, with or without a warning of the nature of the detonators, and injury befell the recipient due to that nature, there would be little doubt but that the employee who gave it would be personally liable in negligence. The very nature of the detonators and their function were, in my view, sufficient to enable a jury to hold that the detonators would constitute a source of attraction or an allurement for boys. That would be a matter which a jury would be entitled to hold as something which ought to be foreseen by the defendants’ employees. If, without any question of stealing arising, the boys were allowed to handle the detonators while on the premises, or to play with them, and injury resulted, it would be difficult to hold that such an event was not foreseeable by the defendants or their employees.
In the present case it is submitted that the defendants could not be held to have been able to foresee that some of these materials would be stolen and removed from their premises by these boys. When the objects in question are sufficiently small to be removed without attracting attention and are very easily concealed and are of such a nature that they constitute an allurement to boys frequenting the place where the objects are to be found, it is a matter for the jury to say whether, in all the circumstances, the owners of these objects ought reasonably to have foreseen that the attraction of these objects for the boys might be sufficient to tempt them to steal some of them. In my view the evidence in the present case was sufficient to justify the learned trial judge leaving the matter to the jury upon this basis, and was sufficient to warrant the jury taking the view that the defendants owed a duty to the plaintiff and that they failed in that duty.
In what way would the liability have been different if the accident had occurred on the defendants’ premises? The plaintiff was on the premises, at the time when he took the detonators, with the tacit permission of the defendants’ employees. Unknown to the defendants’ employees the plaintiff was in law a trespasser, because the ostensible purpose for his being on the premises was not his real purpose which was unlawful. Nonetheless the defendants’ employees were in charge and control of the detonators, which could be held to be an allurement to a boy of the plaintiff’s age because of the knowledge he had gained of them during his lawful visits to the premises. When the proximity of the parties is voluntary on both sides and when, because of that proximity, the lack of control over the detonators may be a danger, is the duty to keep these detonators safe from interference by the boy any the less because one of the parties has achieved that proximity by concealing the real purpose of his presence? I do not think so. When the danger is reasonably foreseeable, the duty to take care to avoid injury to those who are proximate, when their proximity is known, is not abrogated because the other party is a trespasser. The duty to those in proximity is not based on any implied term of an invitation or a licence, or upon any warranty for safety which might be thought to be inherent in any such invitation or licence. Rather is it based upon the duty that one man has to those in proximity to him to take reasonable care that they are not injured by his acts. What amounts to sufficient care must vary necessarily with the circumstances, the nature of the danger, and the age and knowledge of the person likely to be injured.
The next matter to be considered is the question of the apportionment of the fault. The plaintiff undoubtedly knew, and was old enough to appreciate, that these objects had an explosive effect and were therefore likely to be dangerous. He knew from experience that they could be detonated by wrapping them in lighted paper. If, therefore, on this occasion he had kept one in his hand while the paper was igniting and the explosion had occurred then, it might rightly be regarded as a very dangerous activity consciously engaged in, and a high proportion of the fault might well be attributed to him. In the present case, however, what happened was that the detonator failed to explode and the plaintiff then retrieved it from the ground and it then exploded. The plaintiff’s knowledge of the dangers of these objects and his experience of them may not have been sufficient, and there is nothing to indicate that it was, to warn him of the danger of a delayed explosion. In those circumstances, therefore, his negligence in retrieving the object which had apparently failed to explode might well be held by the jury to have been far less culpable than the doing of an act of whose danger he had full knowledge and appreciation. While the jury’s apportionment may appear to be generous in some degree to the plaintiff, it is not one which, in the circumstances and on the evidence, must necessarily be held to be unreasonable and perverse.
The last matter to be considered is the question of the amount of damages. The damages awarded in this case, £4,242, are claimed by the defendants to be excessive and unreasonable and not in accordance with the evidence offered at the trial. The most serious consequence of the accident to the plaintiff was the loss of one eye. There are a number of cases in which it has been held by this Court that a sum of £3,000 is not an unreasonable award for the loss of an eye, as such, of a person under middle age, apart from any question of economic loss which may result from it Applying that standard to the present case, it would leave a sum of approximately £1,200 to cover all the other matters which fall under the heading of pecuniary loss and economic loss in the future. The evidence on the question of the boy’s future as an earning unit is not very satisfactory. At the time of the trial he was working as an apprentice jockey but he complained that having only one eye was something of a disadvantage in that occupation. After the accident he worked for about nine months in a bakery where it does not appear that his disability was anything of a handicap. His future employment would seem to lie in the category of semi-skilled or unskilled employment, probably of a manual nature. Experience in the Courts shows that, although the loss of an eye may not be such a great handicap to a man in such an occupation as it would to one doing precision work, it can nevertheless be an inhibiting factor in obtaining employment mainly because every prospective employer knows that his workman has but to lose one eye to achieve total blindness. In my view, a sum of £1,200 as compensation for a boy of sixteen (the plaintiff’s age at the date of the trial) is not to be regarded as unreasonably large for the purpose of covering, for the rest of his life, all the contingencies of the labour market which may arise because of his one-eyed condition. I would not disturb the damages. For the reasons I have already stated, in my view the appeal should be dismissed.
BUDD J. :
I agree.
McMullan v Bradshaw and another
Supreme Court of Judicature.
Court of Appeal.
26 May 1916
[1916] 50 I.L.T.R 205
Sir Ignatius J. O’Brien Bart. L.C., Ronan, Molony L.JJ.
Sir Ignatius O’Brien, L.C.
This is an appeal from an order of the King’s Bench Division setting aside a verdict had for the plaintiff, and directing a new trial of the action. The case came before the King’s Bench Division on an application by the defendants to enter judgment for them, or in the alternative for a new trial, on the ground that the damages, £280, were excessive. The view taken by the Court below, which appears clearly from the judgment of Gibson, J., was that the damages were excessive, and the verdict could not stand, because the Court considered that it was obvious that the damages were made excessive by reason of the jury having taken into consideration various matters which they should not have considered, and also by reason of confusion of issues which the Court were of opinion must have arisen at the trial. In that view, after having heard the very able arguments of counsel, I concur. But I wish to express my view as to the grounds on which I concur in the judgment of Gibson, J. The action is brought by Mr. Louis McMullan, the proprietor of auction rooms at 30 Bachelors’ Walk, in the City of Dublin, for damages occasioned, as is alleged, by reason of a seizure which was made of his property under a judgment obtained by his landlord, Mr. T. P. Bradshaw and Mrs. Bradshaw—husband and wife, are joined as defendants—and in respect of which execution irregularities are alleged. Now, the pleadings are in a form that is now possible under the Judicature Act, but which would not have been the form under the Common Law Procedure Act. And, speaking for myself, it is not the first case in which I confess to a predilection for the clear, terse and logical form of pleading which on the Common Law Side was insisted on prior to the Judicature Act to the more diffuse and not always too accurate pleadings which have grown up under the present system. But I think I can clearly ascertain that the present action is based on two separate and alternative views of the facts which it is alleged gave rise to the plaintiff’s claim. The first cause of action is contained in paragraphs 1-5 of the statement of claim, which I will read. They set out the facts with regard to this judgment. [His Lordship then read the paragraphs as given above.] Reading the whole of these paragraphs, the action contained in them is one of wrongful entering under a judgment, and alleging that in so doing the action of the defendant was malicious. The sixth paragraph admits, for the purpose of the claim, that the judgment was a valid judgment, and it sets out the perfectly independent, and in form perfectly sustainable, cause of action—viz., that the judgment, being a valid one, the plaintiff says that “by virtue of the Courts (Emergency Powers) Act, 1914, made and passed on the 31st day of August, 1914, and at the time of the occurrence herein com *207 plained of, in full force and effect, the defendant, Georgina W. Bradshaw, was not entitled to proceed to execution on or otherwise to the enforcement of the said judgment except after an application to the Court in the manner prescribed by the said Act and the rules and directions under same which were then in operation. The plaintiff says that no notice or summons relating to any such application under the said Act was given to or served on him, and that no order, in fact, was made by the Court giving the said defendant leave to issue execution as aforesaid, and the plaintiff had no opportunity of showing, as he could have shown, that no execution ought to have been allowed in the circumstances.” Now, both in the Court below and the Court here it was, of course, admitted by counsel for the appellant that in the case of a perfectly regular judgment, not set aside, the plaintiff could not set up the case—without setting this judgment aside—that the judgment, in fact, was in respect of a debt which had been paid, satisfied or discharged before entering the judgment. This is at the root of the miscarriage which has taken place in the present case. The plaintiff has to admit that in law this judgment, not having been set aside, was regularly entered in respect of a debt which was not satisfied or discharged prior to the entering of the judgment. That being so, if there was nothing further in the case, and the plaintiff brought an action irrespective of the provisions of the Courts (Emergency Powers) Act—if he brought the action based on the issue of the writ of fi. fa. founded on the regular judgment, and lodged with the sheriff—he could not, without setting aside this judgment—apart from another question—possibly maintain an action based on the wrongful and malicious entering of the judgment. So we must start this case with what is now admitted that, so far as the judgment is concerned, it is a regular judgment. Of course if, after the judgment, the amount of the judgment and costs had been paid, and if, after that had taken place, the plaintiff had proceeded to enter up the judgment and issue execution, a certain class of case would have arisen, which is not this case, because, as I understand the evidence, there is not suggested here that there was payment as satisfaction of the judgment, after judgment and before execution by Mr. McMullan, or anything that would amount to accord and satisfaction. That being the position of affairs, we must look at the second cause of action. The provisions of the Emergency Powers Act prohibit the issue of execution in respect of judgments for debts contracted prior to a certain period within which this particular debt would unquestionably fall. It was argued before Dodd, J., who tried the action, and before the Court below and here (and there was, judging from the proceedings before Dodd, J., no dispute about the matter at all), that if an execution is issued in respect of a judgment on foot of a debt coming within the provisions of that Act, that the proceedings taken by way of execution are illegal. The words of the Act are—[His Lordship read the text of s. 1 of the Act.] I am satisfied, so far as the execution is concerned, unless liberty is obtained from the Court, that the issue of execution is not a mere irregularity, but is prohibited by the Act in the same way as the arrest under a ca. sa. in respect of a debt under £20 was considered to be illegal in the case of Brooks v. Hodgkinson, 4 H. & N. 712. Accordingly, Mr. and Mrs. Bradshaw having caused an execution, under which there appears to have been taken the chattel interest in the premises which Mr. McMullan held, are liable for an action in trespass. Now, that was not disputed before Dodd, J., because I find a passage in the Judge’s note in which he says—and it can only refer to this part of the action—that it was admitted that it was a case for assessing damages as a whole. That was perfectly right. It was an action for trespass, and an action in which, in my opinion, the defendants would have to be treated as traspassers ab initio; and in such an action if there was anything wanton or malicious in the conduct of the defendants that, beyond all doubt, might affect the quantum of the damages. There is in this class of action, as Gibson, J., pointed out in the Court below, a vast distinction between the case of a man who absolutely innocently sets the law in motion—where the amount of damage done and the circumstances are not such as to show evil intention or animus against the defendant—and the case where the trespass is a deliberately wanton and unprovoked trespass actuated by malicious motives. That being the position of affairs, I find a condition of things which to my mind is absolutely unsatisfactory in connection with the trial of a case of this kind, and, indeed, in principle, of any kind. I have indicated that, so far as the judgment is concerned, it must be treated as a valid judgment. I find from the Judge’s note that the case was opened by counsel in the form of giving a history of the case. It was opened on the basis of a judgment which was not set aside, having been marked under circumstances showing distinct malice on the part of the defendants in the present action. And *208 I find that statement of counsel followed up by evidence given with regard to all that had taken place with reference to the supposed discharge of this £20, but which supposed discharge could not be listened to in an argument based on the first branch of the case. Beyond all question, all this must have influenced the jury, and wrongly influenced the jury, in producing this verdict of £280 damages. Our system of trial by jury has many merits, and far be it from me to disparage it, but it certainly has one defect, which is possibly inherent in it. Counsel cannot as a practical matter be restrained from stating what he alleges are the general facts of the case, which he undertakes to make evidence. These statements get into the minds of the jury. In the case of the Judge, who is trained to distinguish between what is legal evidence and what is not, these statements have very little weight; but, of course, they must have an effect on the jury, and counsel for the defendant may even produce a wrong impression against his own client if he tries to interfere Now, that is what has happened in the present case. Evidence was given of all these matters—which would undoubtedly be evidence if the judgment had been set aside—and produced the most unfortunate result. That evidence, which would rightly be evidence if the judgment had been set aside, was in reality no evidence at all in an action based on paragraph 6. If the contention of the appellant here were to prevail, the result would be that the plaintiff in an action like this would be just in the same position as regards damages whether he set aside the judgment or not, and all the law which has been laboriously built up during two centuries of litigation would be so much waste paper. That is not the law. If a person is bringing an action based on a regular judgment in respect of a debt undischarged, he cannot go back and give in evidence, as damages, facts in respect of an execution which per se would be perfectly regular, there being no discharge of the judgment after date of judgment and before execution. But it is sought to justify it on this ground. It is said an action of trespass unquestionably lies for executing the writ without getting the leave of the Court under the Courts (Emergency Powers) Act. That implies malice in law, and when an action of this kind is brought—which is quite a new kind of action—we are entitled to give in evidence all those matters which could not be given in evidence under normal circumstances without setting aside the judgment. With that contention I cannot agree. The execution would have been perfectly lawful if it were not for the Courts (Emergency Powers) Act, as the taking of the body under the ca. sa. if there had not been a statute. Accordingly, this case must, in my mind, be treated simply as an action of trespass—trespass ab initio, in which evidence of malice may be given, but not evidence of that which was no malice at all, and upon which it is perfectly clear the jury built up its large verdict in the case. Now, another view has been suggested that Shearer v. Shields, [1914] A. C. 813, is an authority for saying that in an action of this kind you can infer not only malice in law, but malice in fact, and give any damages you like. Lord Haldane, at p. 813, says, in language which negatives this contention in the clearest manner: “Between malice in fact and malice in law there is a broad distinction, which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently. Malice in fact is quite a different thing: it means an actual malicious intention on the part of the person who has done the wrongful act, and it may be, in proceedings based on wrongs independent of contract, a very material ingredient in the question of whether a valid cause of action can be stated.” Accordingly, the plaintiff here has been fishing about for some kind of evidence of malice in fact, irrespective of what they cannot utilise—viz., proceedings before the judgment, which is quite regular, but he can find none. And, as far as I can see, a microscope could not detect any malice in fact in respect of the issuing of the judgment by Mr. Chidley, plaintiff’s solicitor, or in the proceedings for execution. Accordingly, I am brought to the very clear summary and questions of Gibson J., and I think this is the true and only legal way of looking at the case. The learned Judge says: “The best way to test all these matters would be by leaving only two questions to the jury—viz., (1) Was the writ issued through a mistake of Bradshaw or his solicitor, or did they issue execution with full knowledge that they were acting in defiance of an Act of Parliament? (2) Damages.” I do not say that this is the form every judge would put the questions, but it is an admirable summary of the position in law in a case like this, which can only be maintained as an action of trespass. I am bound to hold that the verdict should be set aside, and a new trial held. *209
Ronan and Molony, L.JJ., delivered concurring judgments.