as the conspiracy is the gist of the action, and that
took place after, and independent of, the illegal con-rently the charge against the defendant as extruder
tract. But to maintain this action, it was necessary would mean as an executor mentioned by some will,
to shew Rouse had no cause of action against the and it would seem at first singular that the tere re
now plaintiff, and the absence of that cause of action cutor should comprehend any other than an executor
arises entirely out of the transaction in respect of named by a will, but so undoubtedly it is. Tro
which the bill of exchange was accepted, and that time immemorial it has been the ordinary way of
was the illegal transaction. The declaration states charging an executor de sou tort, and the reason is
that "there was no reasonable or probable cause that there is no other form of writ. The term ext
whatsoever for suing him thereon;" if that had been cutor, as understood in the declaration, comprehends
the only statement of the kind, the declaration might two descriptions of executor, one who is named by a
possibly have been good, but it would ultimately not will, and one who, entering upon the property
have been sustained, as soon as by the pleas the meddles with it.
The plea therefore denying that the
whole of the transaction had been made to appear.
I think it appears sufficiently that the plaintiff's cause
of action arises out of an illegal transaction to com-
promise a felony, and, therefore, that the case falls
within the general rule, and that the plaintiff cannot

Dowling, Serjt. replied. TINDAL, C.J.-The question is whether the conclusion in this plea to the country is a wrong one, and it is not necessary to decide whether it may not also conclude with a verification. It appears to me, from the doctrine contained in the case of Scott v. Wedlake, that the issue raised by this plea is a complete answer and no more to the charge contained in the declaration, and all the authorities say, from 5 Report downwards, that there is no other way of charging the defendant than as an executor, whether he be a rightful or a wrongful one. The plaintiff therefore says in the declaration, you, the defendant, MAULE, J.-I am of the same opinion. The are an executor either properly so or 'de sou tort, and plaintiff cannot recover without shewing the illegal the defendant in answer says, I am neither the one transaction to which he was himself a party. It is nor the other. The plea goes in denial of no more not denied, on the part of the plaintiff, that where than is implied in the term used in the declaration, such is the case the action will not lie, but it is said and there can be therefore no objection to its conthat there is no necessity for the plaintiff so to shew cluding to the country. Very possibly it may also the illegal transaction as part of his case, inasmuch conclude with a verification.

seems to us not inaptly to be placed immediately after the words, "Signed, sealed, and delivered;" and as there is no other subscribing witness than Mr. Whittaker, it is clear that the concluding words, "I hereby subscribe my name as witness to the due execution hereof," must be taken to be the words of the witness, who is the only person speaking, and consequently in conformity to the ordinary rules of grammatical construction. The preceding words, "I hereby subscribe myself to be the attorney, &c." must also be taken to be his words; and this objection, we think, ought not to prevail. The second and the principal objection was, that the attestation did not comply literally with the Act of Parliament. It was said that it neither contained a declaration by the attesting witness that he was his attorney, nor a statement that he had subscribed it as such attorney. In support of this objection various cases were cited, all of which however may we think be distinguished from the present. The first was, Poole v. Hobbs (8 Dow. 113.) In that case the attestation was as follows, "Witness George Edwards, defendant's attorney, named by him and attending at his request." The attestation in that case contained no express statement that he sub

under the firm or name of Smith & Co. to wit, one
Parker and one Coyle, obtained and procured the
said promissory notes from the said John Mytton, by
fraud, covin, and misrepresentations, and afterwards,
to wit, on, &c. wrongfully delivered the said promis-
sory notes to the plaintiff, who then had notice of
the premises, whereupon the defendant afterwards, to
wit, at the same time when, &c. for and as the agent
of the said John Mytton, and by his direction and
authority, took the said promissory notes, then being
and still remaining the property of the said John
Mytton, then being entitled to the possession, from
and out of the possession of the plaintiff, as he law-
fully might, &c.-Verification.

Replication thereto, that the plaintiff at the said
time when, &c. was lawfully possessed as of his own
property of the said promissory notes, in manner and
form as in the declaration mentioned, without this,
that the said promissory notes, or any or either of
them, then were the property of the said John Myt.
ton, or that the said John Mytton was then entitled
to the possession thereof modo et formá.

either immediately interested in the event of the suit, or might make the record serviceable to him after. wards. As to the former of such objections, the nature of it appears from numerous cases; as, for instance, in an action of ejectment the landlord cannot call the tenant as a witness, because the immediate event of the action would be the turning the tenant out of pos session; and therefore he obviously has an immediate interest in the same. So where a sum of money as a wager is made to abide on the event of an action. But is there any such interest here? All that can be said is that Mytton might be better off if the verdict be for the defendant Turner. Suppose Hearne weretorecover, the liability would be the same, and Mytton woeld have the same right to recover the notes as before. Then as to whether the verdict would be evidence which could be used by Mytton for his benefit; that is an objection which has not been much pressed, bes cause it is clear Mytton is no party or privy to such record, and any doubt as to his competency on this account is removed by the statute 3 & 4 Wm. 4, c. 42. [The rest of the judgment then proceeded on the ground of surprise.]

MAULE, J.-I am of the same opinion. As to the

scribed as the attorney for the defendant, nor any- action was brought by Messrs: Smith and Colity of the witness, it used often to be a

At the trial before Erle, J. at the London sittings after last Trinity Term, the defence was, that Mr. Mytton had been defrauded of the notes for which the thing that could be considered as equivalent. The whom the notes had been given by Mytton to be disnext case was Potter v. Nicholson (8 M. & W. 294); counted; and that the plaintiff had received the notes the attestation was as follows, "Joseph Bamford, from Smith and Co. under circumstances which would one of the attorneys of her Majesty's Court of Ex-prevent his recovering on them. The notes, having chequer of the Pleas, at Westminster, acting for the been obtained by stratagem from the plaintiff, were said William Nicholson, at his request to and did in- delivered to the defendant as the solicitor for and in form him of the nature and effect of the above cognovit, behalf of Mr. Mytton. To establish the third plea, before the execution thereof by him." This attestation the defendant called Mytton as a witness. When was also defective, as it did not state that he subscribed examined on the voir dire, he said that the action was as such attorney. The next case which was cited was not defended by him, that he had not indemnified the "Elkington v. Holland (9 M. & W. 659). The attes- defendant, and that he did not know where the notes tation in that case was as follows: "Signed, sealed, were, but that he supposed the defence was for and delivered, by the said Joseph Ankers, in my pre- his benefit. The plaintiff objected to the admissibility sence, and I subscribe myself as attorney for the said of Mytton as evidence, but the learned judge received Joseph Ankers, expressly named by him to attest the the evidence, and a verdict was found for the deexecution of these presents.". This attestation was fendant. A rule for a new trial having been obtained also held insufficient by Mr. Baron Alderson, because on the ground of surprise, and on the improper reit did not contain any express terms that he was the ception of Mytton's evidence, attorney, the statement that he subscribed as the at- Shee and Byles, Serjts. (J. Henderson with them) torney not amounting to a declaration that he was for the defendant, now shewed cause, and, as to the the attorney. The next case cited was Everard v. admissibility of the witness, contended that Mytton Poppleton (5 Q. B. Rep. 181); and the attestation had no immediate interest in the event of the action, there was "Signed, sealed, and delivered by the otherwise than so far as the record might be evidence above named George C. Poppleton, in the pre-in his favour, and that was entirely removed by the sence of us, of whom the said John Hope Shaw is stat. 3 & 4 Wm. 4, c. 4, s. 26; and that, therefore, the attorney expressly named by him, and acting at independent of the stat. 6 & 7 Vict. c. 85, he was a his request, and by whom the above written warrant competent witness as to this. (Carter v. Pearce, 1 of attorney was read over, and the nature and effect T. R. 163; Collins v. Gwynne, 9 Bing. 544; and thereof explained to the said George C. Poppleton before Gilbert on Evidence, 106, were cited.) It was also the execution thereof by him." "John Hope Shaw, at- contended, that if it were necessary to rely on the torney, Leeds; John Richardson." This attestation stat. 6 & 7 Vict. c. 85, the case was one within that was also held defective as not containing a statement Act. [The arguments upon the ground of surprise are that the witness subscribed as such attorney. The omitted.] last case, and the one most relied upon, was Sir Thomas Wilde (B. Jumes with him), in support case of Hibbert v. Burton (10 M. & W. B48) The of the rule, and as attestation in that case was as follows: "Witnessed the witness, contended that the defendant, by his by me, Wm. Pemberton, as the attorney of the said third plea, shewed that he was acting on the Wm. Barton, attending at the execution thereof, at authority and in behalf of Mytton. [By the his request, and expressly named by him. Wm. Pem- COURT.-The authority is not put in issue.] berton, Prescott, Lancashire." The objection urged, It was contended that the right to the possession and which the Court appears to have sustained, was, of the notes was in issue, and that Mytton was called that the attestation did not contain an express al- to prove that that right was in himself in which he legation that the witness was the attorney employed had a direct interest. In an action on a policy of inin the transaction, but only a statement that he wit-surance where the interest is averred to be in A B, nessed it as the attorney. The present case, how- A B is not a competent witness, and the present case ever, is, we think, distinguishable from all these was very similar to that. (Grant v. Hill, 4 Taunt. cases, for the attestation contains, first, the words 380.) [TINDAL, C.J. referred to Ward v. Wilkinson signed, sealed, and delivered in the presence of (4 B. & Ald. 410).] It was also contended that if Henry Whittaker, attorney for the said Lord Ken- the defendant obtained a verdict, the defendant, as sington, expressly named by him, and attending at agent of Mytton, would be estopped from denying his his request," and this appears to us to be a sufficient title to the bills, and that therefore Mytton was diallegation of his being the attorney employed in the rectly interested in the result. The following cases business by Lord Kensington; and for this the case were also cited: King v. Williams (9 B. & C. 549); of Knight v. Hasty (12 Law J., N. S., Q. B. 293) may Bell v. Smith (5 B. & C. 188); Doe dem. Lord Teynbe referred to as an express authority; and we think ham v. Tyler (6 Bing. 390). [MAULE, J. referred the words immediately following the signature, "I to Blakemore v. The Glamorganshire Canal Company hereby subscribe myself to be the attorney for him," (2 C. M. & R. 133).] If not admissible at common law, are equivalent to an allegation that he subscribes as the witness was not made competent by reason of the such attorney. We think, therefore, in this case stat. 6 & 7 Vict. c. 85, for by the proviso of that Act, that there has been a substantial compliance with the it is not to render competent " any person in whose requisitions of the statute, and we think the rule ought immediate and individual behalf any action may be to be discharged; and as there is no justice in the de- brought or defended," in which situation, it was subfendant's complaint, we think it should be discharged mitted, Mytton stood. [The argument on the other with costs. 4 Rule discharged with costs. point is omitted.] Tuesday, Jan. 20. HEARNE V. TURNER.

ア

In trover for promissory notes upon an issue whether they were the property of one J. M. in whose behalf the defendant took them: Held, that as well independent of as under the statute 6 & 7 Vict. c. 85, J. M. was a competent witness for the defendant to prove snch issue.

TINDAL C.J. It appears to me that with respect to the admissibility of Mytton the objection which has been taken falls to the ground. I think that without reference to the statute of Victoria, but according to the law as it stood before that statute, Mytton was admissible as a witness for the defendant. This is an action of trover to recover possession of two promissory notes. The defendant answers it by alleging that the notes were wrongfully Trover for two several promissory notes. The de-in the possession of the plaintiff, and that the defenfendant, among other pleas, pleaded, 3rdly, that before the plaintiff was possessed of the notes, to wit, &c. John Mytton was lawfully possessed, of his own property, of the said promissory notes, and that whilst he was so possessed thereof, to wit, on, &c. certain persons, then pretending to carry on business by and

dant obtained them as the agent of Mytton, who was
rightfully entitled to them. The sole question in issue
on this was whether the notes were the property of
Hearne, the plaintiff, or Mytton. Now before Lord
Denman's Act, the only ground of objection to the
competency of a witness was, that the witness was
།སཀྱུ་ ༥༢:;s

C

of much nicety whether a witness was, on
account of interest, to be excluded; and the object
of the Act of Lord Denman was to prevent for the
future such difficulties as to the admissibility of a
witness. I am not, therefore, willing to enter into
the question of the witness being admissible by the
rules of common law. To have made the objection
tenable, the witness must have an immediate interest
in the result or the record be evidence for him; as to
the latter, there is no doubt that that portion of the
objection is removed by the statute 3 & 4 Wm. 4,
c. 42; and as to the former, if Mytton was lia-
ble to be sued on the bills, he would have been
still liable to pay, notwithstanding any thing that
occurred between the plaintiff Hearne and Turner
the defendant; and therefore, at common law,
he would be admissible. There is a case of
Grylls v. Davis (2 B. & Ad. 314), which has not been
before adverted to, and which goes, I think, a long
way to decide this question. That case was trover
for a flute. There had been a proposed purchase of
the flute by a Mr. Brittan, and the defendant had re-
ceived the flute of the plaintiff to shew to Brittan
It was not returned, and no terms come to as to the
purchase. For the defence, Brittan was called to
prove that the defendant was his servant and acted by
his authority, which is very much the same as this
case, except only that this is respecting a negotiable
instrument, and that was concerning a chattel. The
Court of Queen's Bench held that Brittan was a
competent witness for the defendant, therefore there
is strong ground at common law for holding this with
ness to have been properly admitted. Bat it is clear
that Mytton is competent since Lord Denman's Act

unlwhose immediate and individual behalf the action
was brought or defended. The defence might, how-
ever, have been the same if Mytton had been dead;
therefore it does not appear from the record to have
been defended in his behalf. It might no doubt have
been shewn on the voir dire, and if Mytton had said **I
have directed the defendant to get possession of these
notes for me and on my account, and have said that I
would indemnify him in defending this action," be
would have been the party in whose behalf the action
was brought; the evidence, however, so far from
shewing this, proves the reverse, and therefore I am of
opinion that Mytton was a competent witness.
CRESSWELL, J. and ERLE, J. concurred.
Rule discharged.
BUSINESS OF THE WEEK.
Friday, Jan. 16.
CLARKE . DUNSFORD.-Court said they would grant
rule nisi in this case, which had been moved for on Wednes
day last.
Rude nisi

within the peaving es virty a persoa

CHAPMAN. SUTTON.-Channell, Serjt. (Willer with him), for the plaintiff, and Sir Thomas Wilde (Crompion with him), for the defendant, were part heard in the argsment of this special case.

reduce the verdict, pursuant to leave reserved.
NASH . KEMPSEY. Byles, Serjt. moved for a rale to

Rule sin
WOOD v. HARRIS.-Talfourd, Serjt. moved for a rule to
shew cause why the rule for a special jury should not be set
aside.
Rule ain,
Tuesday, Jan. 20.
KEYS. IRVING. Byles, Sent, moved for a rule is to
set aside judgment on ground of its having been signal
against good faith.
Rule nisi.
MANSON . DAVIS.-Channell, Serjt. for the plaintif, ad-
mitted he could not support the rule. Shee, Sert. appeared
for defendant.
Rule discharged.
James with him), for the plaintiff, shewed cause against the
VALLANCE U. DUKE OF BRUNSWICK.-Shee, Sert (E.
rule for a new trial. C. Jones, Serjt: (Wood with him), for
defendant, admitted that he could not support the rule.

4

Rule discharged.

SQUIRE v. GUNN.-Clerk, Serjt. moved for a rule nisi why judgment should not be set aside for irregularity, rule served. Cases cited: Gingell v. Bean (1 M. & G. 50), and for peremptory undertaking not having been drawn up and Knight v. Smith (1 Dowl. & L. 912). Rule min. BROOM V. HARRIS.-Byles, Serjt. shewed cause. Talfourd, Serjt. in support of rule for discharging rule for a "pecial jury. Rule discharged, defendant undertaking to be ready for the second sittings in London.

REGISTRATION APPEALS.

Thursday, Jan. 15.

SCARBOROUGH.

FLOUNDERS, Appellant, and DANCE, Respondent. The claimant of a vote in a borough must give the number of his house, if any; and where the number is omitted, the vote must be expunged.

The question in this case turned upon whether a party claiming to vote in respect of the occupation of a house was bound to specify in the column of the claimants' list the number of the house, if any, in respect of which the claim to vote was made. The claimant lived in a street in the borough, the houses of which were all numbered, and, having omitted to insert his number, the vote had been expunged, as a non-compliance with the provisions of the Registration Act.

Wharton, for the appellant.-The 40th, 75th, and 101st sections of the 6 Vict. c. 18, cure all defects of mere form. The present case was one of evidence, and within the exclusive jurisdiction of the revising barrister. The reasoning of Cresswell, J. in Daniels v. Camplin (7 M. & G. 167), is conclusive.

NORTHERN DIVISION OF THE COUNTY, the names, and therefore the decision should be

OF LANCASTER.

RAWLINS, Appellant, and the OVERSEERS OF the
HUNDRED OF WEST DERBY, Respondents.
When the last day for service of notice required by the
Reform Act falls upon a Sunday, service on that
day is good service for the purposes required in the
Act.

This was a consolidated appeal from the northern
division of the county of Lancaster, upon a question
affecting the right to vote of nineteen persons; the
barrister had rejected these votes. The question was
whether these parties, by serving notices of their
claims to vote at the overseer's house after nine
o'clock of the night of Sunday, the 20th of July, in
the absence of the overseer, was a sufficient com-
pliance with the statute.

Crompton. The names were improperly rejected; by common law all acts except judicial acts were good, notwithstanding their being performed on a Sunday; fairs and markets by statute and custom commenced on that day. The service of the notice to the overseer could not be construed as coming within the exercise Charles I. c. i, aether could the of man's ordinary calling, so as claim to vote be looked upon as a process, writ, or other matter contemplated and forbidden to be executed under the provisions of the same statute. The act to be done by the overseer was, if anything, merely ministerial; his duty was to receive the claim. The decision must be reversed.

Bliss, for the respondents.-Where the house has a number, the omission of such is a misde--within scription. The Act requires a number to be given, **if any," and the omission is fatal to the claim. The interpretation clause does not apply, and the same may be said of the 41st section.

TINDAL, C.J. delivering judgment.-I think the decision of the revising barrister in this case was right. He has decided that the claimant was not en titled to be inserted in the list of voters, on the ground that the statute required that the number of each house constituting the qualification should have been contained in the column describing the situation of the property; and such I think is the proper construction of the statute, coupled with the form to which reference is made. The moment this Court held that it was not sufficient to give merely the house which was the qualification, which was existing at the time of the matter coming before the revising -barrister, but that he must also give the description, which, coupled with the present qualification, made out the whole-the moment that was decided, the law would apply as much to one as to the other; and, therefore, if the proof was necessary to the one, that was the later of the two, so also it is necessary in the other, that is, the earlier. You may find out the man by his present residence; but you may have great difficulty in finding the number of the precise house on which he intended to rest his qualification for the earlier part, and the necessary part. Therefore, it appears to me it was necessary that the number of the house should be given which formed part of his qualification in Queen-street. The answer endeavoured to be made to this was, that the revising barrister has stated the facts in this case, from which we must see whether he had a right to make the amendment or not, and from which we suot supply the amendment, if, in point of fact, he has not made it. Reference is made to sections 40 and 101. On looking at section 40, I conceive that is to apply only to a case where the revising barrister, not being satisfied with the qualification of the premises, has expunged the name of the person from the list; and that afterwards, and before the revision has ceased, evidence is given to him which, to his satisfaction, supplies the misdescription. Therefore, in order to avail himself of section 40, this claimant ought to shew that the revising barrister was satisfied before the sittings for the revision ceased, that the number had been soand-so, and the qualification was complete. But we, as far as the statement goes, must hold that be was not satisfied; for it is still persisted that the name should be expunged from the list, and it has been already remarked, it was obvious enough on the face of the case, there appears to have been no evidence of any fixed number applying to the house at all. Therefore he cannot avail himself of section 40. Section 101 appears so far removed from the present subject matter of enquiry, that the provision at the end of that section is only "that no misnomer or inaccurate description of any person, place, or thing, shall prevent or abridge the operation of this Act with respect to such person, place, or thing, provided that person, place, or thing, shall be so denominated as that it may be understood." You cannot liken it to a case where you are uncertain as to how it would be; uncertain at all whether in this street, called Queen-street, there would be 100, or 500, or only a very few houses; and you cannot say necessarily that this particular house would be commonly understood to be the house unless you are supplied with the means of forming a judgment as to the actual state of the street. Besides, the meaning of the words commonly understood would refer to some class of descriptions that is given from which you may extract the same in the common understanding. I think, therefore, it comes back to the single question referred to in our decision; and as the statute requires the claimant should insert the number of the former as well as the latter house that originally formed his qualification, I think the revising barrister has decided right. The rest of the Court concurred.

Decision affirmed, without costs.

C.

Arnold for the respondent.-It was contended that a service of the kind contemplated was absolutely void for being performed on a Sunday. If the 19th of July had fallen on a Sunday, and service had been then made, it might have been good service, as the Monday would have been the 20th and the last day for service. The ground of objection really was that the service of the notice was a matter of business to which the overseer was not bound to attend; being delivered on a Sunday he was entitled to throw it aside and discard it altogether for that day; if that was admitted there was an end of the matter, as Monday would be too late.

Crompton not called upon to reply.

reversed.

The rest of the Court concurred.

Judgment for the appellant.

BUSINESS OF THE WEEK.
Thursday, Jan. 15.
NORTHERN DIVISION OF CHESHIRE.
THORNELEY, Appellant, and ASPLAND, Respondent.
Cur. adv. vult.

NORTHERN DIVISION OF CHESHIRE.
NEWTON, Appellant, and THE OVERSEERS OF MOBBER-
LEY, Respondents.—Cockburn, Q.C. for the appellant.
Cur. adv. vult."
NEWTON, Appellant, and THE OVERSEERS OF CROW
LEY, Respondents.
Cur, adv, vult..

CHATHAM.
COLVILLE, Appellant, and THE OVERSEERS OF CHAT-
BAM, Respondents.-Kinglake, Serjt. for the apppellant.
Cur. adv. vult.

CITY OF ROCHESTER.
CHESTER, Respondent.-C. Jones, for the appellant.
COLVILLE, Appellant, and THE TOWN CLERK OF RO-
Cur, adv. vult.

COURT OF EXCHEQUER.

Tuesday, Jan. 13.

c. 56.

Re JOHN BOOTHROYD. Motion for habeas corpus-Conviction under 17 Geo. 3, In a conviction under 17 Geo. 3, c. 56, which was repealed as to the apportionment of the penalty by 58 Geo. 3, c. 51, it is sufficient to direct the penalty "to be paid, applied, and distributed as the law directs, according to the form of the statute, &c." without adjudicating in what manner such penalty shall be applied.

Held, also, that the statute intended to be repealed by 58 Geo. 3, c. 51, is the 17 Geo. 3, c. 56, and not the 13 Geo. 3.

Quare, whether a habeas corpus cum causâ will go to bring up a prisoner committed under a conviction by justices, affirmed by Quarter Sessions, with a view to quash the conviction for want of form?

TINDAL, C. J.-It appears to me the case may be Pashley moved for a habeas corpus cum causâ to bring determined by reference to the very plain language of up the body of John Boothroyd, at present in the custhe 41st section of the Registration Act. That sec- tody of the governor of the House of Correction at tion directs the overseers on a certain day to publish Wakefield. From the affidavits it appeared that in a notice requiring those persons who intend to claim September 1845, Boothroyd had been convicted before to give or send to the overseer, on or before the 20th two justices at petty sessions, under 17 Geo. 3, c. 56, day of July then next ensuing, the notice in writing, s. 10, for having in his possession in his dwelling, house which was in this case given; and then it goes on to certain materials used in the woollen and worsted say, that such persons as are desirous to make their manufacture, then and there suspected to have been claims shall, on or before the 20th day of July, deliver purloined and embezzled, without giving a satisfacor send to the overseer. "Send" to him; there- tory account to the said justices as to how he become fore the statute does, in plain terms, give the power possessed of the same. Against this conviction of sending in these claims at any time after the notice the defendant appealed, and duly entered into given one before the 20th day of Inly ment on the part of the respondents is, that it recognizances to prosecute his appeal at the not next general quarter sessions to be holden for obligatory in all cases, but that in the case where the the West-Riding of Yorkshire, and also abide Sunday is the 20th day of July, then it is to be excepted. the judgment and pay all costs as should be I think the language of the Act is so plain, that unless awarded by the justices of such sessions. The defenit can be shewn by some other authority of equal dant duly appeared at the next general quarter sesforce with this Act, that Sunday is excepted, we sions, when the appeal was (by the desire of the remust take the Act as we find it, the more particularly spondents) respited until the next sessions, when it as it is clear the legislature in this very Act, when was heard, the conviction affirmed, and the defenthey wish to except Sunday from the operation of it, dant adjudged to pay the full penalty given by the have expressly done that in more than one instance. Act, of 201. and 151. costs. This sum not being paid Now the only Act of Parliament that would except by the defendant, he was committed to the House of Sunday at all would be the statute of Charles II. and Correction, and his recognizance estreated. It was it is clear, on looking to that, the delivery and send- now submitted that the conviction was bad, on seveing of the notice is not at all a matter prohibited by ral grounds. [PARKE, B.-Have you a copy of the any part of that statute. First it goes to the ordi- commitment?] No; but it is submitted that the nary callings of men that are prevented from being affidavit, which sets out the conviction and shews carried on, and then it goes to make void the service that the defendant is in custody under it, is sufficient. of any process or any legal proceedings; within nei- Then the conviction is bad: first, for not directing ther of which by any common construction can the how the penalty is to be paid; by the conviction mere sending of this notice be classed. Then, when it is merely directed "to be paid, applied, and distriwe consider that at common law many things have buted, as the law directs, according to the form and dialways been held feasible and valid though performed rection of the statute in such case made and provided." on a Sunday, and still are so, there can be no reason Now the penalty is given by 17 Geo. 3, cap. 56, sec. where this enactment authorises an act to be done on 14, which section also directs that one moiety be the 20th of July, that it may not be a valid act though paid to the informer, and the other moiety "to and it should be a Sunday. And an entry on a condition amongst the poor of the parish, town, or place where being broken, or an entry to reserve an estate if it such conviction shall be, or to such public charity or must be made on a particular day, is equally valid charities as the justices convicting shall appoint, &c." whether it is made on a Sunday or not. in general considered as good. Notice, or Contracts Now it has long been a question before the justices of not made by persons in their ordinary the West-riding whether or not this section is repealed callings de- quo ad the apportionment of the penalty by the 58 mand of possession, which is the ground of an Geo. 3., cap. 51, (and there have been many conflictejectment, has been held in a decided case to be ing decisions on the point by the justices, one bench good though made upon a Sunday. There are other deciding that it is, and another that it is not,) it has cases of a different nature noticed in the argument, therefore become most desirable to obtain the opinion particularly the case of notice of dishonour of a bill of the Court upon it; and, in the present case, in respect to which it is said the law excepts the Sun- if it is held that it is not so repealed, then day if the notice arrives on that day; that the party the conviction is bad for not adjudicating need not pass it on, but may omit taking notice how the penalty is to be applied. Now, by the 58 of it during the Sunday. But, in order to make that Geo. 3, various Acts relating to the woollen and other an argument in favour of the construction contended manufactures are repealed or amended; and in it an for, it should have gone further, and shewn that, if he act is mentioned as of the "thirteenth year of his had forwarded the notice on a Sunday, it would have present Majesty, intituled," and then sets out the been a fit notice. There is no authority to that title, which is identical with the 17 Geo. 3, c. 56. effect, but it is matter of excuse only. Looking, then, Now, as there is an Act in the thirteenth of George to the statute, and considering the argument on it, I the Third relating to the subject-matter, it is conthink the revising barrister was wrong in expunging tended that it is the 13 Geo. 3 which is intended to

be repealed, and that the title of the 17 Geo. 3 being
set out after the date of the Act does not matter.
[ALDERSON, B.-How are we to know to which stat.
a reference is intended to be made, unless the title is set
out? surely the title is most material.] But there is
only one Act relating to the subject-matter passed in
the 13 Geo. 3, which makes the reference clear.
Here it may be said that as the 17, Geo. 3, is put
in the margin opposite the mention of the 13th statute,
this is the statute repealed, but it is submitted that
the margin of an act has no force whatever. Then
the conviction does not say whether the penalty is to
be paid to the poor of the parish or township,
as it ought to have done, for it appears by the convic-
tion that the place where the conviction was obtained
is a township, maintaining its own poor within a
parish. [ALDERSON, B.-Here it is to be paid "as
the law directs," and what does it matter whether it
ought to be paid to the poor of the parish or town-
ship?] Then there is no allegation that the goods
found were of any value, and it is submitted that
as the party has taken the common law form in-
stead of the general one given by the statute, it must
be drawn in all particulars with as much certainty
as an indictment, therefore there should be an alle-
gation of value and that the goods were the pro-
perty either of A. B. or of some one unknown.
[PARKE, B.-I have no doubt but that the practice
of alleging value in indictments arose from the dis-
tinctions between grand and petit larceny. Now that
could not arise on convictions of this kind.] Then
they fail to shew on the face of the conviction that
the witnesses were sworn in the presence of the de-
fendant. The information also is invalid. The in-
former merely swears that he hath cause to suspect,
and does suspect that, and verily believes, that a
quantity of purloined and embezzled materials, used in
the worsted woollen manufacture, are concealed in the
dwelling-house, &c. in the occupation of John Booth-
royd," and do not shew any guilty knowledge or
any offence. [PARKE, B.-The offence is not giving
a satisfactory account to the justices. The informa-
tion is merely a proceeding on which to found a search
warrant.] Then this is called "the information,"
and, by the words of the Act, should be "the com-
plaint." [ALDERSON, B.-The object of that is, under
the sec. 4 of 58 Geo. 3, c. 51, to exclude the informer
from having any share of the penalty, as it appears in
the body of the conviction that he was examined on
oath in support of the charge, in which case the whole
penalty is to go to the poor.] Then the conviction
does not negative that the defendant sought for time
since, under sec. 11, 17 Geo. 3. [PARKE, B.-That
must come from the defendant; he must shew he
asked for it.]

Bovill moved in this case for leave to plead certain pleas, and, in doing so, stated to the Court that much inconvenience had arisen, owing to the practice which prevailed of the judge at chambers refusing to hear either counsel or special pleader during Term time; the consequence being, that attorneys or their clerks were obliged to attend, who could not be expected to be able to explain intricate pleading points which frequently came before a judge at chambers, and therefore the parties were in many cases ultimately obliged to come before the full Court.

The LORD CHIEF BARON said he was not aware that such had been the practice, and fully concurred with the learned counsel in its inconvenience. For the future, however, the learned baron who might happen to be sitting at chambers would hear any counsel or special pleader on all points arising on pleadings drawn by them.

HOLMES v. CARDEN.

Where, at the trial of a cause, the attorney refers it to
arbitration, this binds his client as against the other
party, although the client has given express direc-
tions to his attorney not to refer.

In this case it appeared that at the trial it had been
agreed, by the counsel appearing for the plaintiff and
defendant, to take a verdict for the plaintiff subject to
a reference.

Carden now moved to set aside the verdict and order of reference, and for a new trial, and stated that he was the defendant in the action, and that he had given express directions to his attorney not to refer the cause, which had been done entirely against his (the defendant's) wishes and orders.

ALDERSON, B.-How can you set these proceed ings aside as against the other party? You place your attorney in a position to act as your agent, and are bound by what he does. Your remedy is against the attorney.

POLLOCK, C.B.-The case is similar to the one of a servant warranting a horse when he was expressly directed by the master not to do so, and there the master was nevertheless held liable for such warranty. Rule refused.

POWEL . WILSON.

Power moved for judgment as in case of a nonsuit, and stated that issue was joined in this cause in Easter Term, when there had been a consent by the defendant to submit to speedy execution, if the plaintiff would postpone the trial until the sittings at Trinity Term. The plaintiff, however, had not proceeded to try at these sittings, or had taken any steps, under water circumstances, it was contended that the defendant was entitled to move for judgment as in case of a nonsuit.

FRITH V. ROTHERAM.
New trial.

Rule nisi.

or sums of money not exceeding 1,000l. Now this is the limit, and these are the words by which the stamp also is to be limited; it is true that there is a further statement as to interest and commission that may be to be included in the 1,000l. or it may be put merely to shew that the banker was to be entitled to charge interest and commission. As to Dickson v. Cast is virtually overruled as to this point by Merceim Bragg. The true principle seems to be that the stamp is to be regulated by the limit of the sum to be ad vanced. Now, in this case, that is 1,000l. therefore the 61. stamp is sufficient. Rule Refused.

Tuesday, Jan. 20.

GEEVES and ANOTHER 7. GORTON.

A special jury cause was referred to arbitration: the
arbitrator made his award in favour of the defendant,
but did not give any certificate under 6 Geo. 4, c. 50,
s. 34, that the cause was a proper one to be tried by
a special jury. On taxation of costs, the Master re
fused to allow the costs of the special jury, whereupon
an application was made to the arbitrator to give a
certificate, which he did.

Held, that this was too late, and that the Master was
justified in still refusing to allow the costs.
Held also, that where, on an arrangement being made to
change the venue from Middlesex to London, an agree
ment was entered into between the parties that all
costs of and occasioned by such arrangement should
be costs in the cause and abide the erent" that the
costs of the fruitless special jury in Middleser were
costs incurred in consequence of the arrangement, and
were to be allowed on the taxation.

Webster moved for a rule in this case calling on the Master to review his taxation, and stated that the question for the Court would be the allowance of the costs of the special jury struck herein. The action was brought against the defendant for an alleged libel, and was entered, and notice of trial given, for the sit tings after Trinity Term in Middlesex.

The cause, however, being low down in the list, and the parties being anxious to have it tried at those sittings, it was agreed between them to change the veone to London, which was accordingly done.

On the cause, which was a special jury one, coming on for trial, a verdict was taken for the plaintif, subject to a reference, and the arbitrator was to have all the powers of a judge at Nisi Prius. The award, which was in favour of the defendant, was made some time in the long vacation; nothing was said in the award as to the costs of the special jury; and on the taxa. tion of costs before the Master he refused to allow them to the defendant, as no certificate had been given by the arbitrator, under 6 Geo. 4, c. 50, s. 34, that the cause was a proper one to be tried by a By the COURT.-This is quite a novel applicaspecial jury. Upon this an application was made to tion, and I am not aware of any instance in which the arbitrator to give a certificate to that effect, it has been made before. By sec. 22 of 17 Geo. which he immediately did. The Master, however, 3, the certiorari is taken away, and now it is still refused to allow the costs of the play, we sought to bring the conviction before -110 by the ground that the power of the arbitrator expired moving for a habeas corpus. Now the effect of when he had made his award. It was now contended granting a rule in this case would be to make that the defendant was entitled to these costs on one this court a court of appeal from quarter sessions, of two grounds; first, that the certificate of the and I do not see how we could prevent every conarbitrator was given in sufficient time; and, secondly, viction affirmed at sessions being brought up before if the certificate was not in time, that the defendant us, or a motion for a habeas corpus, instead by the Action upon a surety bond-Stamp. was entitled to them under the special agreement usual course into the Queen's Bench by certiorari, In bonds given to secure floating balances on sums of entered into between the parties at the time the vente which is a proceeding that I should pause long ere I money to be hereafter advanced, the stamp is to be was changed. First, then, the certificate is in time, acceded to. I, however, am not sorry that the pre- regulated ly the limit of the sum secured. as it is not necessary that it should be given inme sent case has been brought before us, as it enables us This was an action of debt upon a surety-bond. diately, in a strict sense of the word it is enough f to say that we have no doubt that the statute in- Verdict for the plaintiff, damages 1,1011. given within a reasonable time. (Christiev. Richard. tended to be repealed by the 58 Geo. 3, c. 51, is the At the trial it appeared that the action was brought son, 10 M. & W. 688.) Then is this within a reason 17 Geo. 3, and not the 13 Geo. 3, for the 13th does to recover certain advances made by the North able time? it is submitted that it is. The verdict st not in any way answer the description in 58 Geo. 3. Derbyshire Bank to a party who had opened an ac- the trial being for the plaintiff, the record remained Then we think that the 17 Geo. 3 is varied and al count with them, together with interest and commis- with the Master, and the defendant could not know tered as to the distribution of the penalty, which, by sion thereon, and for whom the defendant had become that he was entitled to the certificate, or do any 58 Geo. 3, is to go, one half to the poor of the surety, and had given the bond sued on. The bond thing in the matter until after the award was made parish or township where the conviction is ob- was made on the penal sum of 2,000l. conditioned to in his favour; and even then he could do nothing tained, and the other half to the informer, except secure the bank against all advances to be thereafter until after the first four days of the next term. The of the offence, and then the whole penalty goes to the account current between the parties to the amount upon which the arbitrator upon being applied to i in cases where the informer is examined in support made, or any balance which should become due, or on question was first raised on the taxation of tests, poor. In either case the offender is to pay the same of 1,000l. together with interest and commission mediately gave his certificate, by which it is subarten Bum, and the justices have nothing to do with direct-thereon. The deed bore a 61. stamp. At the trial it the statute was substantially complied with. T merely to decide whether the offence is proved; bond could not be put in evidence, as it should have pired on his having made his award; now gener ing how the penalty is to be applied. They have was contended, on behalf of the defendant, that the it is said that the power of the arbitrator hand dr it is quite sufficient for the to borne a stamp of 251. order the penalty to be paid to the poor. Then, no schedule of the Star Act (36 Grous, that 184, making his award, and he cannot alter or vary it on the ground the no doubt, the power of the arbitrator does expire on doubt, if a party departs from the form given by the part, Title Bond) required it to bear that but it is nowhere held that he is not Lock, statute, he must make his conviction good in all par- stamp, as it was (as it was contended) to secure ticulars; and it is said that the word information is a sum of money to be thereafter lead, the amount a of the an act to carry out his award. [POLLOCK, used here, and does not shew a good information, but of which was uncertain. Dickson v. Cass (1 Br. & Ad. award. How can he do this act of granting be that is merely introduced for the purpose of shewing 343) was then relied on as in pony. Cass plain. & ad certificate after his award is complete? Why be that the same person who was the informer, and made 33) dies, with leave for the defendant to move to end only does it when his attention is called toit after - afterwards examined on oath, so that all the penalty Martin, Q. C. now moved accordingly, and con- favour. Poto that could not be done by the defendant patil after was to go to the poor ; and the information was quite tended that it was clear that this was an uncertain LOCK, C. B. The arbitrator has a power genet suficient to give the justices jurisdiction to issue their amount which was secured, and therefore the higher him is to search as to the other points, we think stamp was there is nothing in them; it is not at all necessary (PARRE, B. In cannot add tras spied Dickson v. Cass was in point Term, and he must make his award before that time; to show to whom the goods belong, or their value, rest of the Court with great reluctance, and when I could give this certificate at the time it he and the conviction is It is unnecessary afterwards read Were orat. Elvagance, and when could give this certificaIt is clear that he cant to decide now whether the habeas corpus ought to go and the subsequent cases, I felt that I was wrong,

the complaint on which the search warrant issued, was ter a nonsuit, or for a new trial.

at all in cases like the present, which is a point on which the Court entertain very considerable doubt.

Rule refused.

and that Dickson v. Cass was not well decided.]

applied

not entitled to these costs under the special agree POLLOCK, C.B.-The higber duty is not to be ment which was entered into when the arrangement charged except upon the clearest grounds. Now, on was come to to change the venue. The words i referring to the words of the bond, it is for any sum that agreement are," And we consent, that all