the opinion expressed in these pages, that the decision of the Court of Exchequer, In re the Hammersmith Rent Charge (19 Law J. 357), would be found not to affect it, is supported by the judgment of the Court of Common Pleas in the cognate case of Kinning v. Buchanan having since been affirmed in the Exchequer Chamber by an all but unanimous decision (Buchanan v. Kinning, in C. S., Feb. 4, 1851).

The case at the head of this note contains a fresh sanction, and a striking illustration of it, also in a court of error. A vicar neglecting to reside at his vicarage, his bishop, after various other steps, caused a sequestration to issue under the 1 & 2 Vict. c. 106, s. 56, against his benefice, without any previous citation or summons; thereupon the present action was brought against the sequestrator for the profits, to try the validity of the sequestration.

The question was, whether it should have issued without the vicar's having an opportunity of disproving the charge of nonresidence, or of showing that he had some legal excuse for it. It was admitted that the bishop was the final judge of the fact, so that there was no loss of the benefit of an appeal. Although the court thought that one of the objects of the sequestration was to enforce future residence, and that so far it was in the nature of a distress; yet, as under the 58th section of the statute 1 & 2 Vict. c. 106, it might become the first step towards deprivation, it was held, that another of its objects was clearly to punish past delinquency, and that consequently it was also in the nature of a penalty. It was considered that if the legislature had meant to authorize such a departure from the usual course of justice, as to proceed to punish ex parte, it would have done so in express terms, or at least by the strongest inference.

A portion of the judgment of Baron Bayley, in the case of Capel v. Child (2 Cr. & J. 568), in which he says, "I know of no case in which you are to have a judicial proceeding by which a man is to be deprived of any part of his property, without an opportunity of being heard in his defence," is cited, and the case itself, adduced as a strong instance of the firmness with which the court had adhered to the principle alluded to at the head of this note and elsewhere, characterized as being of justice both divine and human. Whatever question may be supposed to exist as to its right decision since "In re the Hammersmith Rent Charge," must therefore solely affect the construction of the particular statute, and not the principle adopted in it. Moreover, so fundamental did the Court esteem this principle, that they even hinted that a monition to reside, which had been issued by the bishop, without a previous notification of the charge in the

nature of a summons, was objectionable, because it was issued in a judicial capacity, and because it partook of a penal nature, in that the 55th section of the 1 & 2 Vict. c. 106, imposes the costs of it, at all events, upon the incumbent. Although the court disclaimed pronouncing any formalities necessary for a substantial hearing, they thought a notice that sequestration would issue in case of further absence not an equivalent. That the charge should be specified and an opportunity of rebutting it given, were held to be essentials, failing which, the sequestration was void.

COSTS-ISSUES OF LAW AND FACT-4 & 5 ANNE, c. 16, s. 5. Callander v. Howard, 20 Law J. C. P. 66.

COSTS not being given by the common law, the right to them turns entirely on the construction of various statutes. As long as but one issue could be joined upon each count, its event depended upon the establishing the cause of action about which it was joined. But when, by the 4th Anne, c. 16, a defendant was enabled to plead several matters to the same cause of action, one or more issues might be decided for the plaintiff, while the alleged cause of action out of which they sprung might be negatived on another issue, and thus the success of each issue no longer varied with the merits of the controversy of which it was supposed to be the hinge. Therefore, as a collateral check to the cumulation of insufficient defences, the 5th section of that statute (which mentions demurrers also) gave the costs of the issues on pleas, on which the defendant failed, to the plaintiff, although his cause of action was defeated by another plea.

There are however many conflicting decisions on its application to circumstances like those of the present case, which are briefly as follows:-Issues of fact had been raised upon fifteen pleas, some to the whole declaration, others to one or more counts: the other plea, pleaded to the whole declaration, was specially demurred to and held good. All the other issues having been previously found for the plaintiff, he was held entitled to the costs of them; and had one or more of them been found against him, he would have been clearly entitled to the costs of the rest. In this Bird v. Higginson (5 Åd. & Ell. 83) was followed: in which two pleas to the first count resulted in an issue of fact found for the plaintiff, and an issue of law on which the defendant having succeeded (as well as on one issue on the other count), the plaintiff got the costs of the issue found for him. That decision, which overruled an earlier one (Cooke v. Sayer, 2 Burr. 753) in the same

court to follow one in the Common Pleas (Yates v. Gun, Barnes, 141), was itself in terms overruled by the Court of Exchequer in Partridge v. Gardner (4 Exch. 303), which decision was adhered to in Howell v. Rodbard (4 Exch. 309). The ground on which this was stated to be done was, that Bird v. Higginson was inconsistent with Richmond v. Johnson (7 East, 583), where two issues raised by two pleas to one count being found for the plaintiff with three shillings damages, he lost his costs under the 43rd Eliz., and it was held that this 5th sect. of the 16th Anne c. 4, did not apply. This is very clear, but by no means inconsistent with Bird v. Higginson, for in Richmond v. Johnson (and cases of that class) the plaintiff loses his costs by a collateral matter, were it not for which, he would get them without the help of the 16th Anne; but in the present case, it is by reason of some one of several pleas, defeating his alleged cause of action, that he must resort to the 16th Anne for the costs of the issues on the pleas he succeeds upon. Now what difference can it make if the one plea which defeats him terminates in an issue of fact or law? Yet Partridge v. Gardner would make the costs of the issues on all the others depend upon this. As however Clarke v. Allatt (4 Com. B. 335), a modern case supporting Bird v. Higginson, had not been cited in it, it may be hoped that the doctrine laid down in it may be abandoned, as contrary to the weight of authority no less than to common sense.

It may be observed, that in Partridge v. Gardner had issue been joined on the pleas demurred to, and a verdict found on those also for the plaintiff, he would have lost his costs; for the declaration being bad, the defendant might successfully have moved in arrest of judgment.

BILL OF EXCHANGE-FRAUD-ONUS OF PROVING CONSIDERATION.

Smith v. Braine, 15 Jur. Q. B. 287.

How to check bill swindling, without affecting the credit of negotiable instruments, is a difficulty which has occasioned some oscillation of the law; and as the present case settles a point of much practical importance, it becomes of considerable interest.

The general rule in all contracts not under seal, that if made without good consideration they are not capable of being enforced, meets with no exception in the case of bills; but the onus of proving the consideration is shifted. Its existence is presumed and the want of it must be re-established by the defendant; and if he relies solely upon the want of it as a defence, it must be alleged to be wanting at every transfer of the instru

ment, where it is sued upon by a remote party; and the defendant must, if all those material allegations are put in issue, prove them all, notwithstanding the case of Heath v. Sampson, (2 B. & Ad. 291). Where however illegality and no value given by the plaintiff are set up as a defence to an action by an indorsee, and are both in issue, on proof of illegality the onus of showing consideration shifts back again to the plaintiff; but whether the same result would follow in the analogous defence of fraud was hardly settled.

An opinion expressed in the valuable treatise of Mr. Serjeant Byles (p. 94, 6th ed.), that on proof of the fraud the burthen of proving consideration will equally revert to plaintiff, is confirmed to some extent at least by this case. Here in an action by the second indorsee of a bill against the acceptor, the defendant pleaded that the drawer gave him the bill indorsed in blank; that he gave it to one M. to get discounted, for which purpose M. gave it to the first indorsee, who in violation of that purpose and against good faith and without authority or consideration indorsed to the plaintiff. These facts, being all put in issue, were all substantially proved except the want of consideration. The plaintiff gave some evidence in reply.

The defendant had a verdict on the plea, and a rule, pursuant to leave, to enter it for the plaintiff, was discharged. Two points were made, that the facts did not warrant the inference of fraud, and that if they did still proof must have been given of the want of consideration. The court, while admitting that a mere want of consideration did not constitute fraud, held that the jury, though not bound so to do, might reasonably infer from the evidence that the prior indorsee meant from the first to misappropriate the bill, and that his declarations, which were relied upon as proofs of good faith, might in fact be considered only the false pretences by which he obtained and was allowed to keep the bill. As to the allegation that there was no consideration not being proved, the case of Brown v. Philpot (2 Moo. & Rob. 285) was certainly an express authority in the plaintiff's favour; but the court thought that case must be considered as overruled.

This case however only decides that the onus of proof shifts upon fraud being shown in the immediate indorser; and the position, that it is sufficient to show that the defendant was defrauded of the bill, must be qualified; for even if it were not necessary to show that the immediate indorser committed the fraud, it would at least seem necessary to show a state of facts, in which the fraud would afford a complete defence as against him, before the plaintiff could be called upon to prove that he is a holder for value.

Short Notes of New Books.

Summary of the Law as applied to the rating of Railways and other Undertakings. By Henry John Hodgson, Esq., Barrister at Law, Recorder of Ludlow. London: Stevens and Norton.

1851.

A VERY carefully compiled work, which will prove exceedingly useful to all who are connected with Railway Practice.

Journal of Psychological Medicine and Mental Pathology. Edited by Forbes Winslow, M.D. London: Churchill, Princes Street, Soho.

THIS work maintains its reputation for patient and earnest investigation of the maladies of the mind.

The New Stamp Act, 13 & 14 Vict. c. 97, with Notes and Explanatory Observations and Tables of all the Stamp Duties, with a Digest of all the Cases not included in the Treatise on the Stamp Laws. By Hugh Tilsley, Esq., Assistant Solicitor of Inland Revenue. Third edition. London: Stevens and Norton. 1851. A WELL and carefully compiled edition of an indispensable book.

*** Some notices prepared are unavoidably postponed till next number.