then and there being a commissioner duly authorized and empowered to take affidavits in the said county of Gloucester, in or concerning any cause depending in her said Majesty's Court of Exchequer at Westminster." It was proved by Mr. R. G. W., that he had acted as a commissioner for taking affidavits in the Exchequer for ten years, but had never seen his commission; and that ten years ago he applied to his agent to procure for him a commission to take affidavits in the Exchequer, and that his agent had told him that he had done so:-Held, that the proof of Mr. R. G. W.'s acting as a commissioner was primá facie evidence that he was so. Ibid.

5. On an application to a judge to discharge A. from custody on a ca. sa., A. made an affidavit, in which he stated, that he had been previously taken in execution on the same judgment and discharged by order of the plaintiff's attorney; and that, in order to make the second arrest, the back door of his house had been broken open. A. being indicted for perjury on this affidavit, the indictment in setting out the affidavit alleged, that the defendant swore and made affidavit, that G. W., the officer who made the second arrest," was appointed for the was appointed for the purpose of such occasion only, at the special instance and part of the said plaintiff;" and that G. W. "made efforts to break the front hall-door of the said dwelling-house," and "then went round to the door of the backkitchen of deponent's said dwellinghouse, which is the only outer-door of the same." The affidavit itself stated, that G. W. was appointed "at the special instance and peril of the said plaintiff," and that G. W. "went round to the door of the back-kitchen of deponent's said dwelling-house, which is the only other outer-door of the same." It being objected, that these were variances, the judge allowed them

to be amended under the stat. 9 Geo. 4, c. 15, as neither of the assignments of perjury were at all affected by these misrecitals of the affidavits, and therefore these misrecitals could not affect the merits of the case. Ibid.

6. A person may be indicted for perjury who gives false evidence before a grand jury when examined as a witness before them upon a bill of indictment, and another witness on the same indictment, who is in the grand juryroom while such person is under examination, is competent to prove what such witness swore before the grandjury, and so is a police-officer who was stationed within the grand-juryroom-door to receive the different bills at the door, and take them to the foreman of the grand jury; these persons not being sworn to secresy, although the grand jury are so. Reg. v. Hughes,

519

7. To convict a person of perjury in swearing falsely before a grand jury, it is not sufficient to shew that the person swore to the contrary before the examining magistrate, as non constat, which of the contradictory statements was the true one.

8. Form of indictment.

Ibid.

Ibid.

9. An indictment for perjury alleged to have been committed on a writ of trial, stated the trial to have taken place before the high sheriff. It was proved, that, when the defendant gave evidence on the writ of trial, neither the high sheriff, nor the under-sheriff, were present; but that the writ of trial was executed before Mr. S., the sheriff's assessor, who was proved to have been in the constant practice of acting as the sheriff's assessor and deputy, but the writ of trial was directed to the sheriff, and it was stated in the postea that the trial took place before him:-Held, that the allegations in the indictment was supported, and that it sufficiently appeared that Mr. S. had authority

See ATTORNEY.-EXECUTORS AND ADMINISTRATORS, 1.

1. A. entered into a written agreement with B. to let him a house for a year, and therein stipulated that if B. expended money in repairing the house, and A. did not at the end of the year grant to or procure for B. a lease of the house for seven years, A. would repay to B. half the amount of the repairs, not exceeding £40, within the year. B. expended money in repairs, and had paid the workmen, and A. neither granted nor procured the lease:-Held, that B. could not, on a common count for money paid, recover the half of the amount of the repairs under the agreement, but that the declaration must be special. Thurnell v. Symonds,

44

2. Semble, that a plea puis darrein continuance at Nisi Prius should be tendered to the judge within the eight days allowed by the Reg. Gen. of Hilary Term, 1834, though the cause may not have been reached in its turn. Townsend v. Smith,

160 3. Where issue is taken on an averment in a declaration, that the plaintiff was "ready and willing and able" to do a certain act, the defendant may shew thereunder any circumstancesuch as the insanity of the plaintiff— which disqualified him from doing the act in question. Kirtley v. Copeland,

319

4. A plea in abatement to an action

ex contractu must, to be a good plea, set forth the names of all the parties with whom the defendant was joined as a co-contractor. Crellin v. Brook, 571

Pleadings (Forms of).

1. Plea in action for breach of promise of marriage, that the parties agreed to exonerate each other from the promise. 148

2. Plea in the like action that the plaintiff was of unchaste behaviour. 464 (a)

3. The like, but that the plaintiff was of intemperate habits. 465 (n) 4. Declaration for maliciously omitting to give notice that a judgment 282 (a) 5. Declaration against an innkeeper for not receiving a guest.

was satisfied.

404 (a)

6. Pleas in that action that the defendant did not hear the plaintiff knock at the inn door, and that there was no room in the inn. Ibid. 7. Declaration against a commissioner of a court of requests for acting without a qualification. 408 (a)

8. Declaration by the administrator of a legatee, for a legacy which the executor was to hold, paying interest for it. 642 (a)

9. Plea justifying the dismissal of a pupil and assistant to a surgeon for misconduct, and injuring his employer's practice.

Form of Indictments.

665

1. On the trial of an indictment on the stat. 9 Geo. 4, c. 69, s. 9, for night poaching, it appeared that the offence was committed on the 12th of January, 1844. The indictment was preferred on the 1st of March, 1845. The warrant of commitment by which the defendant was committed to take his trial for this offence was given in evidence: it was dated on the 11th of December, 1844:-Held, that it was sufficiently shewn that the prosecution was commenced "within twelve calendar months after the commission" of the offence, within the 4th section of that statute. Reg. v. Austin,

621

2. In a case of night poaching by three or more armed, if one has a gun, all are armed within the stat. 9 G. 4, c. 69, s. 9. Reg. v. Goodfellow,

724

POISON (ADMINISTERING). See ASSAULT, 3.-ATTEMPTING TO ADMINISTER POISON.

POST LETTER.

See POST-OFFICE.

POST-OFFICE (OFFENCES RE

LATING TO THE).

1. A post-office being at an inn, a person was sent to put a letter, containing promissory notes, into the post. He took it to the inn with money to prepay the postage; he did not put it into the letter-box, but laid

the letter, and the money upon it, upon a table in the passage of the inn, in which passage the letter-box was, and he pointed out the letter to the prisoner, who was a female servant at the inn, who said she would "give it to them." The prisoner, who was not authorized by the innkeeper, her master, to receive letters for him, stole the letter and its contents:-Held, that this was not a "post-letter" within the stat. 7 Will. 4 & 1 Vict. c. 36, ss. 27, 28, and that the stealing of the letter and its contents by the prisoner was not an offence within either of those sections. Reg. v. Harley, 89

2. Mr. R., an officer in the postoffice in London, intending to try the honesty of A. G., the post-mistress of Enstone, went to Oxford, and having put marked money into a letter, directed to "Tomas Hicks, Radford Lane, Exeter," placed this letter in a bundle of letters in the Oxford post-office, which was to go to the Enstone postoffice. This letter going in the bundle of letters to the Enstone post-office, A. G. took out the marked money and denied any knowledge of the letter. Mr. R. neither knew any person named Tomas Hicks, nor that there was any such place as Radford Lane in Exeter: -Held, that this was not a stealing of a "post-letter" within the stat. 1 Vict. c. 36, but that the taking of the money by A. G. was a larceny. Reg. v. Gardner, 628

POSTPONING TRIAL.

1. If it is moved, on the part of the prosecution in a case of felony, to put off the trial, on the ground of the absence of a material witness, who has not made a deposition before the committing magistrate, the judge will require an affidavit stating what points the witness is expected to prove, in order that he may form a judgment

as to the witness being material or not. Reg. v. Savage, 75

2. An affidavit of a surgeon, that a witness is the mother of an unweaned child, which is afflicted with inflammation of the lungs, and that the child could neither be brought to the assize town nor separated from its mother without danger to its life, is sufficient ground for the absence of the witness, in order to found a motion to postpone the trial.

Ibid.

3. Semble, that a trial for felony may be postponed on application by the prisoner on sufficient cause shewn by affidavit, after the jury have been charged with the indictment, and before any evidence has been given in the case. Reg. v. Fitzgerald, 201

4. A defendant cannot be presumed to know what evidence will be required until after issue joined; and, therefore, where it appeared, that, between that time and the first day of the assizes, due diligence had been used to procure the attendance of a material and necessary witness, but without effect, the judge ordered the trial to be put off, on the defendant bringing the money into court and paying costs. Dale v. Heald,

POUND.

See CRUELTY TO ANIMALS.

314

POWER OF ATTORNEY. A person who pays money to another, who is authorized to receive it by a power of attorney, is not entitled to keep possession of the power of attorney. Pridmore v. Harrison, 613

PRACTICE.

See ADDRESSING THE JURY.- IDENTIFYING PRISONERS.-INDICTMENT, 6.-JUDGMENT.-POSTPONING TRIAL. REPLY. RIGHT TO BEGIN.TRIAL, Where countermand of notice of

PROSECUTION &c.

trial is given after the commission day, and the record is not withdrawn, the proper course is, on the cause being called on, to nonsuit the plaintiff. Haworth v. Whalley, 586

PREVIOUS CONVICTION. 1. A certificate of a previous conviction under the stat. 7 & 8 Geo. 4, c. 28, s. 11, must state that judgment was given. Reg. v. Ackroyd, 158

2. Where a prisoner is indicted for a felony after a previous conviction under 7 & 8 Geo. 4, c. 28, s. 11, it is sufficient to allege in the indictment that the prisoner was "convicted of felony," without stating the judgment. Reg. v. Spencer, 159

PRINCIPAL AND ACCESSARY. See ACCESSARY.

PRINCIPAL AND AGENT. See AGENT.

PRINCIPALS IN OFFENCE. See COIN, 4.-MISDEMEANour.

PRISONER'S PASS.

See FORGERY, 3, 4.

PROMISE OF MARRIAGE
(BREACH OF).

See RIGHT TO BEGIN, 3. Form of plea that the parties agreed to exonerate each other from the promise. 148

PROMOTIONS, 444, 620, 751.

PROOF OF FOREIGN LAWS. See FOREIGN LAWS.

PROSECUTION (COMMENCEMENT OF).

See COMMENCEMENT OF PROSECU

TION.

PROSECUTION (GOVERN

MENT).

See REPLY.

PUIS DURREIN CONTINUANCE.

See PLEADING, 2.

PUPIL AND ASSISTANT.

1. A person has a right to dismiss a servant for misconduct, but has no right to turn away an apprentice because he misbehaves; but the case of a young man seventeen years old, who, under a written agreement not under seal, is placed with a surgeon, as "pupil and assistant," and with whom a premium is paid, is a case between that of apprenticeship and service; and if such a person on some occasions come home intoxicated, this alone will not justify the surgeon in dismissing him. But if the pupil and assistant, by employing the shop-boy to compound the medicines, occasion real danger to the surgeon's practice, this would justify the surgeon in dismissing him. Wise v. Wilson, 662 2. Form of plea. Ibid.

QUASHING INDICTMENT.

See TRAVERSE, 4.

RAILWAY.

1. A. was tenant of a farm over which two railways passed, in respect of which tenant's damages were payable to the owner of the land, or to his lessees or tenants. A. received the money:-Held, that, if the land covered by the railways passed to A. by the agreement under which he became tenant, the owner could not recover that money as money had and received to his use. Wilson v. Anderson, 544

VOL. 1.

2. A railway act imposed a penalty on the company for the interruption of any road, and, in the case of a private road, made the penalty "payable to the owner thereof:"-Held, that the tenant of the farm over which the road passed could not sue for the penalty. The same act enacted, that any penalty imposed thereby, the recovery of which was not otherwise provided for, might be recovered by summary proceeding, upon complaint before two or more justices:-Held, that this did not bar the party entitled from his remedy by action at law. Collinson v. Newcastle and Darlington Railway Company, 546

2. On the trial of an indictment for rape, the prosecutrix, a servant, stated that she made almost immediate complaint to her mistress, and that on the next day a washerwoman washed her clothes, on which were blood. Neither the mistress nor the washerwoman were under recognizance to give evidence, nor were their names on the back of the indictment, but they were at the assizes attending as witnesses for the prisoner. The judge directed that both the mistress and the washerwoman should be called by the counsel for the prosecution, but said that he should allow the counsel for the prosecution every lati