ecution amounts to no more than 300%., costs included. A judgment creditor, under a warrant of attorney, took out execution for 2531. consisting of 2501. debt and 37. costs, and also for interest on 250/. from a day named till the day of payment. The defendant was taken in execution, and detained till the debt and interest, with the addition of costs (but not without,) exceeded 3007. Held, that the compulsory clause could not be enforced. Robins v. Cresswell. XI. 35 G. 3, c. 101, s. 2. Effect on settlement. Poor, VII. 37 G. 3, c. 90, s. 3. Attorney. Post, XX. (3.) XII. 38 G. 3, c. 78. (1.) Evidence of publication of libel. 23 On motion for a criminal information for a libel published in a newspaper, if the Stamp Office affidavit, under stat. 38 G. 3, c. 78, be put in to shew that the defendant is the printer and publisher, such proof is not sufficient unless the newspaper produced as containing the libel correspond with the description in the affidavit, not only in title, but in the name of the place of printing. And where the place of printing was called Union Street, Castle Street, in the affidavit, and Union Buildings, John Street, in the newspaper, the Court refused to enlarge the rule, in order that supplemental affidavits might be filed, shewing that the places named were identical. Where a newspaper is filed, together with affidavits, in support of a motion for a criminal information for a libel, the Court will take notice of it, if it correspond in the necessary particulars, with the Stamp Office affidavit, though it be not annexed to, and expressly identified by, any affidavit. v. Franceys. 10. Rex 49 (2.) Who may bring action under ss. 7 & The stat. 44 G. 3, c. 98, s. 10, which forbids the bringing of actions for any penalty incurred by virtue of that or any other act relating to the stamp duties, unless in the name of the Attorney General, &c., applies only to cases where the enactment proceeded upon relates to those duties. Not, therefore, to an action on 38 G. 3, c. 78, ss. 7 & 10, for publishing a newspaper without having delivered a proper affidavit at the Stamp Office, and without stating in such paper the true names and additions of the printer and publisher. (But see, now, stat. 5 & 6 W. 4, c. 2.) Smith v. Gillet. XIII. 43 G. 3, c. 46, s. 3. 361 (1.) Payment into Court. The statute 43 G. 3, c. 46, s. 3, does not apply to the case where a defendant having been arrested for debt, pays into Court less than the amount sworn to, and the plaintiff accepts it. The new rules of pleading, Hil. 4 W. 4, which direct such payment and acceptance to be pleaded and replied, make no difference as to the operation of the statute. Brooks v. Rigby. (2.) Costs under. 21 [1.] An attorney, employed to transfer stock, found that a distringas had been entered at the Bank to prevent the transfer. He thereupon made several inquiries respecting the transactions, on behalf of his client, and prepared a notice to the solicitor of the Bank, to file a bill in consequence of the writ being entered: Held, that his charges for this business were not taxable items between him and his client, it not appearing that the distringas originated in any suit, or that the business had reference to any proceeding in the Court. Per Patteson, J., if the distringas had been in a suit, the steps taken by the plaintiff did not form taxable items. Charges for inquiries made, and attendencies in the course of such inquiries, relating to a suit of which another attorney had the management, and in which after such inquiries, the attorney making them did not further interfere, are not taxable items. On motion for costs under 43 G. 3, c. 46, s. 3, though the defendant need not prove malice, the burden of proving want of probable cause lies upon him; but it is sufficient if he establishes a prima facie case which is not satisfactorily answered. Nicho las v. Hayter. 348 [2.] Plaintiff arrested defendant, and cause was referred to arbitration, before declaration, by a Judge's order, which directed that the costs of the suit, reference, and award, should "abide the event in like manner as upon a verdict." The arbitrator awarded that the defendant should pay to the plaintiff a sum less than that for which the defendant was arrested: Held, that this Court could not give the defendant the costs of either the suit or the reference under stat. 43 G. 3, c. 46, s. 3. Quære, Whether any words in the order of reference could regularly give a power to the Court to act upon the statute? Holder v. Raitt, 445 XIV. 45 G. 3, c. 99, s. 33. Demand under. To justify a distress for taxes under stat 43 G. 3, c. 99, s. 33, it is not necessary that there should have been a personal demand by the collector, or personal refusal by the party distrained upon. Nor is it essential that the demand to which the refusal applies should have specified the precise amount claimed, if the debtor understood what the amount was, and did not object to it. Rez v. Ford. 568 XV. 44 G. 3, c. 54. Settlement of member of volunteer corps. Poor, IV. XVI. 44 G. 3, 98, s. 10. Whether it restricts party bringing action under stat. 38 G. 3, c. 78. Ante, XII. (2-) XVII. 48 G. 3, c. 149. Stamp on mortgage. Premises were mortgaged to trustees for the purpose of securing 11377., and the trustees were authorized to sell, and out of the proceeds, in the first place, to pay the costs of putting the deed in execution, and also s reasonable sum of money by way of satisfac tion to themselves for their trouble in executing the trusts. The deed had the stamp of 51. required by 48 G. 3, c. 149, for mort gages to secure any sum exceeding 10004. and not exceeding 20002: Held, that the stamp was sufficient, no XIX. 55 G. 3, c. 51. 135 (1.) When bond not warranted by s. 19. Bond, 1. (2.) When borough exempt from county rate under s. 1. By the charters of the borough of Marlborough, the burgesses were exempt from suit of shires and hundreds, and all pleas and plaints except pleas of the crown, from duel, and from being impleaded out of the borough in pleas concerning tenements in the borough, and from all secular exactions: the borough had also fairs and markets, and a prison for custody of persons till delivered by law, and power to send to the county gaol prisoners apprehended for treason, murder, felony, or suspicion of felony: there was also a power to make by-laws for the government of the inhabitants, and to have courts leet and courts of piepoudre; there were borough justices, who were prohibited from determining felonies without special mandate from the crown; the mayor was coroner, escheator, and clerk of the market, and there was a non-intromittant clause as to other justices, escheators, coroners, or clerks of the market. In practice, the county magistrates exercised no jurisdiction within the borough, their warrants being backed by the borough magistrates. There were borough quarter sessions, at which misdemeanors were tried, but not felonies. There was a borough gaol, supported by the borough, in which prisoners were sometimes placed previous to examination. Prisoners to be tried at the borough quarter sessions, or remaining in custody for any time, were confined in a county bridewell within the borough at the expense of the borough. Prisoners charged with felonies committed within the borough were tried at the county assizes, and previously confined in the said county bridewell, or, where the offences were heavy, in the county gaol without the borough, in which case the borough paid the expense of conveying them to the county gaol; but the county paid the expenses of conveying them from the county bridewell to the assizes, and maintained them in the county gaol without the borough. The borough paid the expenses of passing vagrants, and of inquests, the mayor acting as coroner. The borough repaired a bridge within the borough. The above borough expenses were defrayed by a borough rate, first levied in 1775. No county rate had been levied in it. Held that M. was a place with a separate jurisdiction, derived from charter, and one which, before stat. 55 G. 3, c. 51, was subject to rates in the nature of county rates, imposed by its own justices, and, therefore, by the proviso in sect. 1, was exempt from county rates. Rex v. Shepherd. 298 XX. 55 G. 3, c. 184. (Stamp Act.) (1.) Stamp on deed of feoffment. A feoffment, for the consideration of natural love and affection, and 108., does not require two stamps of 1. 158. each, under stat. 55 G. 3, c. 184, sched. part I. title Feoffment and Conveyance. Doe dem. Wheeler v. Wheeler. 28 (2.) Stamp on agreement. (1.) Per Patteson, J. The stamp imposed, by stat. 35 G. 3, c. 184, on agreements under hand, applies only to agreements, which, per se, are binding as agreements. Rex v. Inhabitants of St. Martin's, Leicester, 210, (and see Evidence, III., 2 (2). ) [2.] A paper as follows:-" Memorandum, I, J. R., consent to take 108. per month from W. H. H., in discharge of a sum of 321. the said W. H. H. intends giving him, and upon the said sum being paid, he engages giving a receipt in full of all demands," signed by J. R., and dated, requires a stamp under stat. 55 G. 3, c. 184, sched. part I. Agreement, as an agreement whereof the matter is of the value of 201. Remon v. Hayward. 666 (3.) Certificate, renewal of by attorney. An attorney, who has taken out his certificate within a year from the expiration of a former certificate, but has transacted business between the expiration of the first certificate and taking out of the second, may recover for such business done, unless it appear that he delayed renewing the certificate with intent to evade the higher duties imposed by stat. 55 G. 3, c. 184, sched. part I. tit. Certificate in which case he is disabled from recovering, by that act and by stat. 37 G. 3, c. 90, s. 30. Bowler v. Brown. 116 (4.) What constitutes "matter annexed" to award. Award, 1. (5.) What is a public charity. J. N., in 1720, devised property to trustees, who were to employ the proceeds in apprenticing, at stated intervals, a certain number of boys of his wife's family; and, failing that family, to make up the number from among the inhabitants of a certain parish and two wards; and, failing those, out of the neighbouring parishes. No failure occurred in the family named by the testator, and boys of that family were apprenticed, according to the will, with premiums from the devised funds. Quære, whether the indentures were free from stamp duty under the clause of stat. 55 G. 3, c. 184, sched. part I., tit. Apprenticeship, which exempts indentures for apprenticing poor children at the sole charge of any public charity? A boy was apprenticed as above to a tinman for seven years, the master binding himself to teach the apprentice, and to pay his father a weekly sum during the term. At the end of three years the master, at the boy's desire, consented that he should serve the rest of his time with his own brother, a plumber and glazier; and agreed "to give the brother 67. as part of the premium on the binding of the apprentice, for taking him." There was no contract in writing, and the trustees under the will were not parties to the agreement. The 67. were paid, and the boy went to, and served, his brother: Held, that this transfer did not come within the second part of the above exempting clause as an assignment of such poor apprentice without valuable consideration given to the new master or mistress, "other than what may have been or shall be given by any parish or township, or by any public charity." Rex v. Inhabitants of Fakenham. 528 XXI. 59 G. 3, c. 12, (Select Vestry Act.) Power of Justices. Under stat. 59 G. 3, c. 12, (Select Vestry Act), the justice has no discretion as to appointing the persons nominated and elected by the inhabitants as select vestrymen. Therefore, where the inhabitants had nominated and elected twenty select vestrymen, one of whom was a justice of peace for the district, and the other an overseer, and therefore ex officio a member of the select vestry, and the justice omitted the names of these two from the appointment, this Court issued a mandamus to compel him to insert the two names; though it was sworn that the district was small, with only five acting justices, and that injury had already resulted from the union of the offices of select vestryman and justice. Rex v. Adams. XXII. 3 G. 4, c. 126, s. 55. 409 How far it controls an earlier local act. Post, XXXIX. XXIII. 5 G. 4, c. 83, s. 3. (Vagrant Act.) Appeal. A party convicted by a justice under the Vagrant Act, 5 G. 4, c. 83, s. 3, appealed under sect. 14, which gives an appeal to the next general or quarter sessions, and enacts that the Court at such general or quarter sessions shall hear and determine the appeal, and, if the conviction be affirmed, shall issue process for the apprehension and punishment of the offender. The conviction was quashed, subject to a case which the justice brought up by certiorari; and this Court sent it back to be reheard by the sessions. They, in July, 1833, affirmed the conviction, again subject to a case; but a question being raised before this Court on motion, whether or not the party convicted was bound to take out a certiorari to remove the case as re-stated, none was sent up, and the time for suing out a certiorari expired. Afterwards, this Court decided against the convicted party on the point of practice; and a motion was made to the next sessions, July, 1834, for process to enforce the conviction, which being refused, this Court was applied to, in the next term, for a mandamus. Held, that the appeal had not been "heard and determined" within the meaning of the statute, before the last mentioned decision of this Court; and that the sessions, in July 1834, ought to have issued the process. Mandamus granted. Rex v. Justices of Warwickshire: (See Mandamus, II. 2.) XXIV. 7 & 8 G. 4, c. 31. Commencement of action. 768 The premises of A., a termor, having been burnt by a riotous assembly, A. complied with all the requisites of stat. 7 & 8 G. 4, c. 31, and commenced an action against the inhabitants of the city and county, within three months from the offence. Before ver dict or judgment, and after the expiration of three months, A. died. His executrix commenced an action against the inhabitants on the seventh day from A.'s death: Held, that, supposing an executrix entitled to sue in any such case (as to which the court gave no opinion), the action, having been commenced more than three months from the offence, was too late, under the provisions in section 3. Adam v. Inhabitants of Bristol 359 XXV. 11 G. 4, & 1 W. 4, c. 70. Its effects on customs of Chester. Eze cution, III. 1. XXVI. 1 W. 4, c. 18. II. Settlement by renting tenement. Poor, XXVII. 3 & 4 W. 4, c. 42. (1.) s. 21. Payment of money into court In assumpsit for breach of an agreement to keep premises in repair, the Court would not allow defendant to pay money into Court as compensation, under stat. 3 & 4 W. 4, c. 42, s. 21, upon pleas of payment into Court and of tender. Dearle v. Barrett. (See Pleading, III. 2). 82 (2.) 8. 24. What variance will prevent judgment. Pleading, II. 5). (3.) 8. 31. Liability of executors to costs. An executor suing on a count upon promises to himself as executor, stating a consderation, partly of money due to the testator in his lifetime, and partly of an account stated with himself, as executor, is liable to costs, if non-suited: and cannot be relieved by the Court or a Judge under stat. 3 & 4W. 4, c. 42, s. 31. Spence v. Albert. XXVIII. 3 & 4 W. 4, c. 53, s. 48. (1.) Liability of foreigner. 785 An information charged that defendant, not being a subject of his Majesty, was, on the 28th of October, 1834, found on board a vessel within a port of the United Kingdom, and within one league of the coast of the United Kingdom, such vessel being liable to forfeiture under an act relating to the cus toms: Held, that a conviction for a pecuri ary penalty on this information was bad; stat. 3 & 4 W. 4, c. 53, s. 48, not having made it an offence, in a foreigner, to be on board such vessel within any port besides those of the Isle of Man; and the offence created by the same section, of being on board such vessel within one league of the coast of the United Kingdom, having been done away with, so far as relates to the pe cuniary penalty, by stat. 4 & 5 W. 4, c. 13, (22d of May, 1834.) Rex v. Pereira. 375 (2.) How far repealed by stat. 4 & 5 W. 4, c. 13. Ante, XXVIII. (1.) XXIX. 3 & 4 W. 4, c. 98, s. 7. Its effect on warrants of attorney. The stat. 3 & 4 W. 4, c. 98, s. 7, which protects bills of exchange payable at three months or less from the operation of the usury laws, extends also to warrants of attorney given to secure payment of such bills. Connop v. Meaks. XXX, 4 & 5 W. 4, c. 13. 326 Its effect on stat. 3 & 4 W. 4, c. 53. Ante, XXVIIL XXXI. 4 & 5 W. 4, c. 62, s. 31. Execution. Under stat. 4 & 5 W. 4, c. 62, s. 31, where a judgment has been obtained in the Court of Common Pleas, Lancaster, and it is sworn that the defendant has removed his person out of the jurisdiction, but nothing is said as to his goods, the Court of K. B. will grant execution against the person only. Lord v. Cross. 81 XXXII. 5 & 6 W. 4, c. 1. See Execution, XXXIII. 5 & 6 W. 4, c. 2. Ante, XII. (2.) Certain proprietors were, by two statutes, appointed undertakers of the river Dun navigation, and empowered to make cuts and other works. By a subsequent statute they were united in one company, and it was enacted, that the said company should not "be taxed or assessed for the same or the profits thereof at any place except S. or D." The clause immediately preceding contained nothing to which "the same" could refer. By a later statute, reciting that it was found expedient that the company should abandon part of the old navigation, and make new cuts in lieu thereof, they were empowered to make such cuts, and afterwards to take certain new rates and duties. And it was then enacted, "That the intended cuts or canals, alterations and works, shall be considered and taken as part of the navigation of the river Dun; and all and every the provisoes, directions, restrictions, penalties, and forfeitures in and by the before-recited acts, respecting the boatmen employed on the said river, the owners of boats, keels, or vessels, or other persons employed thereon passing the locks of the said river, or making obstructions therein, or in any other respect relating thereto, or for the benefit or protection of the said navigation, and all other powers and authorities therein contained, shall extend and be applicable to the said cuts or canals, alterations and works, as fully in every respect as if the said cuts, &c., had originally been part of the said navigation, and had been inserted in the said acts:" Held, that the words "the same or the profits thereof," in the first exempting statute, must be taken to mean the then navigation, so far as any part of it was the subject of rate, and that the navigation, so far as it would otherwise have been rateable, was thereby exempted from poor-rate. And that the subsequent act, by incorporating the new cuts with that navigation, extended the exemption to them. Without such incorporation, Quære, whether the words beginning "and all and every the provisoes," &c., would have exempted the new works? Rex v. Inhabitants of Barnby Dun. XXXV. Court of Requests Act. 551 To deprive a plaintiff of costs, under a Court of Requests Act, for debts not exceeding 51, owing by persons residing within a district, it must appear that the defendant resided at the time of the action being brought; an affidavit that the defandant "resides" within the district is insufficient. An act excepted any debt for any sum, being the balance of an account or demand, originally exceeding 51. Semble, that this exception applies to a debt reduced below 51. by payments made from time to time, while the items of debt, forming a demand above 51. were being contradicted. Moreau v. Hicks. 782 XXXVI. Inclosure Act. An allotment made to a vicar in lieu of tithes, under an inclosure act, is subject to the law and custom of England as to dilapidations, equally with the ancient glebe; and if, when he comes into it, there are fences upon it which he ought to repair, but he dies leaving them unrepaired, his executors are liable at the suit of his successor. By an inclosure act, land was to be allotted to a vicar in lieu of tithes, and was to be first well and sufficiently fenced, in such manner as the commissioners should direct, at the public charge, but for ever afterwards to be repaired by the vicar and his successors. An appeal, to be brought within four months, was given to parties aggrieved by any thing done in pursuance of the act. The land was allotted, and fenced by the commissioners; but the fences, being only calculated to last three or four years, became ruinous, and remained so till the incumbent died, about eleven years after the inclosure. No step had been taken to obtain a remedy for the neglect to fence properly: Held, that the commissioners, by making the fences according to their discretion, had, prima facie, fulfilled the condition precedent to the vicar's liability to repair; that if the work was improperly done, steps should have been taken at the time to enforce a due performance of it; and that the executrix of the late vicar was liable to his successor for the dilapidation of the fences. Bird v. Relph. 773 XXXVII. Poor acts. (1.) (St. James, Westminster.) By a local act for the relief of the poor, it was provided that, if any person found himself aggrieved by the rates or assessments, he should first apply to two justices, residing, &c., and, if not relieved, should be obliged to pay; and then, upon an appeal to the next quarter sessions, it should be lawful for the justices there to cause so much money to be returned to the appellant as should appear to have been overpaid, and to make such order in the case as they should think fit. No power was given to the two justices to administer an oath, nor was there any direction as to the mode of hearing the complaint; and no appeal was given to the parish against the decision of these two justices: Held, that the clause, by necessary implication, gave the two justices power to hear the complaint, and relieve the party, if they thought fit, by reducing the assessment complained of. Two justices, on the complaint of a parishioner, made an order under the above clause. The order stated the complaint, and that the justices had heard the parties, and were of opinion that the sum of, &c., (a lower sum than that assessed), was the full yearly value of the premises; and they adjudged that the party should be relieved by reducing the estimate on which the assessment was made, to the latter sum. peared by affidavit, that, upon the hearing It ap of such complaint, the justices declared the rate to be made upon an erroneous principle, and, after viewing the premises, and receiving some statements not on oath, reduced the assessment, laying down at the same time, as the proper principle to be followed, a different one from that on which the rate had been made. The regularity of the order, on the face of it, was not questioned: Held, that the order having been made by competent jurisdiction, the Court could not inquire into the sufficiency of the reasons for making it. Rex v. Parishioners of St. James, Westminster. (2.) 1 G. 2, st. 2, c. 20. (Canterbury). 241 A local statute enacted, that certain guardians of the poor should have power to bind children apprentices, "provided such children be not bound for a longer term than until they shall have attained the respective ages following;" viz. a boy of the age of twenty-two, and a girl that of twenty: Held, that an indenture binding a boy for a longer term than that allowed by the act was not absolutely void, but only voidable. Rex v. St. Gregory. 99 (3.) 11 G. 4 & 1 W. 4, c. 10. (Bloomsbury). Who to be rated under. Poor, I. 5. XXXVIII. Railway Act (London and Greenwich). A company was empowered by statute to take certain lands, making compensation to the owners for the value of the lands, and for damage occasioned by the taking; and it was enacted that such compensation, in case of disagreement, should be assessed by a jury to be summoned by the sheriff on the company's warrant. It was also enacted that, upon such assessment, the satisfaction for damages should be settled and ascertained separately from the value of the lands. A jury was summoned on warrant as above, stating the subject of the inquiry to be, the purchase-money to be paid for lands of T. K., and the compensation to be made to him for damage. The jury returned a general verdict for 15,000l. Neither the proprietor nor the company (unless by the form of the warrant) required a distinct assessment to be made of value and damages. This Court refused to grant a mandamus to the sheriff, at the company's instance, to summon a jury for a new inquiry. It being objected that, for want of a distinct assessment, the ad valorem duty to be put upon the conveyance to the company could not be ascertained, the Court recommended that the findings of the jury should be specially stated in the conveyance, and duty paid as upon a purchase for 15,0007. In re London and Greenwich Railway Company. XXXIX 54 G. 3, cxxiv. (Turnpike Act). 678 By a local statute prior to the General Turnpike Act, 3 G. 4, c. 126, trustees of a turnpike road were empowered to let the tolls by writing under their hands and seals; the rent to be made payable to their treasurer, in default of which every such lease should be "null and void to all intents and purposes whatsoever." Held, that this clause was still impera tive, though by the General Turnpike Act, s. 55, it is enacted, that after the tolls shall have been let, as there directed, the purchaser shall "enter into a proper agreement" for the taking thereof, and paying the rent, "under such conditions and in such manner" as the trustees shall think fit. Held, further, that a lease making the rent payable to the trustees or their treasurer, was not conformable to the local act: That the words "null and void" in that act were not to be construed as "voidable," but that the lessee or his surety might treat the lease as absolutely void: And that the lessee's surety might take advantage of the above defect, in an action brought against him by the trustees for nonpayment of the rent, though the lessee had taken the tolls for several years under the lease. Pearse v. Morrice. 84 (See Deed, 3.) STOLEN PROPERTY. In what case recoverable in trover. Market Overt. STOPPAGE IN TRANSITU. Withholding goods from vendee at request of vendor, when a good consideration for premise by vendor to indemnify. Assumpsit, L1. SUBMISSION. To arbitration, whether partner can bind his co-partners by. Award, 1. SURETY. Of lessee, when he may take advantage of defect in lease. Statute, XXXIX. SURVEYOR. Allowance of his accounts. An allowance of a surveyor's accounts at special sessions is irregular if they have not first been carried before a single justice, though the vestry did not desire it, and though no notice was taken of the omission on the accounts being discussed at the special sessions. Rex v. Goodenough. 463 (See Days, 1). TAXATION. 1. When court will order master to review. Costs, 14, (1). 2. What items in attorney's bill are taxable. Attorney, I. 4; Statute, XIII. (2). [1]. TAXES. What demand of, necessary for distress, under 45 G. 3, c. 99, s. 33. Statute, XIX. TENANCY. What gives a settlement. See Poor, II. V. TENANT. See Landlord. TENDER. When it may be pleaded. Pleading, III. 2 TENEMENT. Settlement by renting. Poor, II. TIMBER. See Trees. |