TRIAL BY RECORD.-Upon an issue of nul tiel record, the court refused to give judgment, where the dies datus clause was omitted from the record. Aylward v. Garrett, 1 Q. B. P. 750.

TROVER.-Conversion.-A. having lawfully received certain bills of exchange from B., a trader, C. came to him, and stating that he was acting on the part of Messrs. Y. & Co., creditors of B., demanded the bills from A., and upon his refusal, said that B. was about to be made a bankrupt, that the bills must be given up, and that if they were not, A. would be compelled to give them up by the commissioner, and the expense would cost A. 2004., and the commissioner would be very angry. A. was at the time ill in bed, and being greatly alarmed, gave up the bills: Held, that this was no conversion by C., as trespass would not have been maintainable for the taking under these circumstances. It appeared, however, that afterwards and before C. had handed the bills to his principals, he was informed that the plaintiff was entitled to the bills, and possession of them was demanded on behalf of the plaintiff, but notwithstanding this, he delivered them to Messrs. Y. & Co.: Held, that this was a conversion. Powell v. Hoyland, 20 Law J. (N. S.) Exch. 82.

USE AND OCCUPATION.-Evidence of.-C. having mortgaged a piece of land to the plaintiff, the defendants, a railway company, afterwards occupied it by laying their rails upon it, and being subsequently called upon by the plaintiff for compensation, negotiated with him in respect thereof. The plaintiff had never been in possession of the land, but gave notice of the mortgage to the defendants, and then brought an action for use and occupation. The judge directed the jury that the plaintiff was in a condition to waive the trespass in respect of the occupation of the land by the railway company, and to bring an action for use and occupation: Held, first, that there was evidence for the jury of the defendants having held the land on the terms of paying for it; secondly, that the plaintiff being a mortgagee out of possession, and not having entered upon the land previously to the trespass, nor having a judgment by default or a verdict in ejectment in his favour, was not entitled to maintain an action of trespass against the defendants. Quære, supposing the plaintiff to have been in possession of the land, and the defendants to have trespassed thereon and occupied it to his exclusion for some time, whether he would be entitled to recover for use and occupation, on the principle that he might waive the trespass and recover in assumpsit. Turner v. Cameron's Coalbrook Steam, Coal and Swansea and Loughor Railway Company, 20 Law J. (N. S.) Exch. 71.

VARIANCE.-Special finding on record-3 & 4 Will. 4, c. 42, s. 24.-A plea of set-off stated that the plaintiffs authorized one G. W., trading as G. W. & Co., to sell the goods, for the price of which the action was brought, as and for the proper goods of him G. W., and that he did so sell them, and that G. W. was indebted to the defendant, &c. The evidence was, that the plaintiff authorized G. W. to sell the goods as and for the goods of G. W. & Co., which firm

consisted of G. W. & L. S.: Held, that this was a material variance. The jury having found the facts as above according to the evidence, and that finding having been indorsed upon the record, Held, that the court could not give judgment for the defendant "according to the very right and justice of the case," by section 24 of 3 & 4 Will. 4, c. 42, that power only being given to the court in the case of variances which they shall think immaterial to the merits of the case. Addington v. Magan, 20 Law J. (N. S.) C. B. 82.

VENUE. The plaintiff laid the venue in London, believing that he could give material evidence there. The defendant having changed it to the country where the cause of action arose, the court allowed the plaintiff before plea pleaded to amend the declaration by changing the venue to a county in which the plaintiff could undertake to give material evidence. The venue as thus amended is regarded as the original venue, quoad the defendant's right to change it upon the common affidavit. Coleman v. Foster, I Q. B. P. 753.

WASTE.-Tenant for life-Tenantable repair.-A testator devised to A. for life a house and other real estate, "he committing no manner of waste and keeping the premises in good and tenantable repair." In July, 1837, A. entered into possession, and in November, 1844, the house was totally destroyed by an accidental fire. In 1845 A. was found lunatic by inquisition, and the lunacy was dated from the 1st of October, 1843. Upon petition in lunacy of the remaindermen, who were also committees of the person and estate, Held, that the lunatic's estate was liable under the terms of the condition to reinstate the house; and reference was directed as to what amount ought to be expended in rebuilding, and out of what fund the expense should be paid, with liberty to the next of kin to take a case to law upon the construction of the condition. In re Skingley, a lunatic, 20 Law J. (N. S.) Chanc. 142.

WITNESS.-1. Action for expenses.-A party served with a subpoena in a civil action receiving a sum of money therewith, and making no further demand, may maintain an action against the party on whose behalf he has been subpoenaed for additional expenses incurred by him in attending the trial, but not for loss of time. Pell v. Daubney, 20 Law J. (N. S.) Exch. 44.

2. Commission for the examination of witnesses-Costs.-Under a commission issued forth for the examination of witnesses, both the plaintiff and the defendant examined witnesses: Held, that the defendant was liable to pay his proportion of the expenses of the execution of the commission. Grove v. Young, 20 Law J. (N. S.) Chanc. 167.

WRIT OR SUMMONS.-Evidence of-Date of-Where a cause alone is referred, and the costs of the cause and of the reference are to abide the event, the costs of the reference are costs of the cause and follow its event. The defendant's costs under the 11 & 13 Vict. c. 106, s. 86, are to be deducted from the debt or damages recovered by the plaintiff, and not from the debtor's damages and the plaintiff's costs added together. Upon an application by defendant under the

12 & 13 Vict. c. 106, s. 86, for his costs, the date of the commencement of the action is sufficiently shown by the statement of the writ of summons in the issue delivered by the plaintiff, without any express averment to that effect upon the affidavits. Deere v. Kirkhouse, 1 Q. B. P. 783.

CRIMINAL AND MAGISTRATES' CASES.

CONTAINED IN

20 Law J. (N.S.) parts 2, 3, 4.

CONSTABLE.-Shooting thief.-A constable is not justified in shooting at a man whom he has seen stealing wood growing in a copse (which, if a first offence, is only a misdemeanour), although the constable has no means of arresting the man without firing, and although the stealing the wood in the particular instance amounted to felony, by reason of the man having been previously convicted several times for similar offences, under statute 7 & 8 Geo. 4, c. 29, s. 39, these convictions being unknown to the constable at the time. Reg. v. Dadson, 20 Law J. (N. S.) M. C. 57.

PRETENCES.-Indictment-Allegation-False

pre

FALSE tences made to J. B. and others-Variance-Surplusage.-An indictment charged the prisoner with attempting, by false pretences made to J. B. and others, to defraud the said J. B. and others of certain goods, the property of the said J. B. and others. On the trial it was proved that the prisoner made the false pretences set forth in the indictment to J. B. only, with intent to defraud J. B. and others, his partners, of property belonging to their firm: Held, that there was no variance between the indictment and proof, as the words "and others," in the allegation that the false pretence was made to "J. B. and others," might be rejected as surplusage. Reg. v. Kealey, 20 Law J. (N. S.) M. C. 57.

FORGERY.-Warrant and order for the payment of money.The prisoner forged, and delivered as genuine to B., who owed money to A., a letter purporting to be written by A. and addressed to B., in which, after setting out the amount due from B., A. was made to say, "Sir. I hope you will excuse me sending for such a trifle," &c., " but I am obliged to hunt after every shilling:" Held, that the document

66

was a forged "warrant" for the payment of money within the meaning of the statute 11 Geo. 4 & 1 Will. 4, c. 66, s. 3. Semble, that it was also a forged "order" for the payment of money. Reg. v. Dawson, 20 Law J. (N. S.) M. C. 102.

MANDAMUS TO CHAPELWARDENS.-Money borrowed -Consent of vestry-Re-payment out of rates-Township not a distinct parish. The township of B. formed part of the parish of W., but it maintained its own poor, and from time immemorial it had chapelwardens and a chapel, in which divine service and the sacraments of the church had been performed. In 1727, for the first time, a separate burial ground for the township was consecrated, in which the rite of burial had since regularly taken place. The repairs of the chapel had always been defrayed by rates raised within the township; and the vestry books of B. showed that several payments had been made to the churchwardens of W., but it did not appear that they were contributions towards the repair of the parish church. On the 30th of June, 1825, it was resolved, by a majority of the vestry of B., duly convened for that purpose, that an offer of 550l. from the Society for Promoting the Enlargement of Churches and Chapels" should be accepted, and that the chapel should be enlarged, any deficiency in the expense to be made up by the sale of certain pews, and by rates under the acts of parliament. It was also resolved to petition the Commissioners for Building New Churches to erect a new church in the township free of expense to the inhabitants. On the 29th of November, 1827, the then chapelwardens duly executed a deed charging the chapel rates of the township with 600l. and interest, borrowed for the purpose of enlarging and rebuilding the chapel, a part of which had been paid off: Held, first, that B. was not in itself a parish within the meaning of the 58 Geo. 3, c. 45, s. 59; secondly, that the resolution of the 30th of June did not contain a sufficient consent of the vestry to the borrowing the 6007. upon the security of the rates within the same section, and, therefore, that a mandamus under the 58 Geo. 3, c. 45, to compel the defendants to pay off the arrears of that amount out of the rates, could not be supported. Reg. v. Bilston (Chapelwardens of), 20 Law J. (N. S.) M. C. 63.

MISDEMEANOUR AT COMMON LAW.-Conspiring to procure the defilement of a girl.-A conspiracy to procure by false pretences, false representations, and other fraudulent means, a young girl to have illicit carnal connection with a man, is a misdemeanour at common law. Reg. v. Mears, 20 Law J. (N. S.) M. C. 59.

EQUITY.

Comprising the Equity Cases contained in the following Reports :

12 Beavan, part 2.

1 Simons, part 1.

2 Macnaughten & Gordon, part 2. 3 Macnaughten & Gordon, part 1.

6 Railway and Canal Cases, part 2. 20 Law Journal (N. S.) part 2, 3, 4. 6 Moore, part 1.

AMENDMENT.-67th & 68th Orders of May, 1845.-The sole defendant to a bill put in his answer. The bill was afterwards amended, and an answer put in to the amended bill. The plaintiff, within four weeks from the time that the answer was to be deemed sufficient, obtained an order from the Master for leave to amend, without the production of the affidavit mentioned in the 68th Order of May, 1845: Held, that the order was regular. Masterman v. Midland Great Western Railway Company, 20 L. J. (N. S.) Chanc. 43.

ANSWER.-Insufficiency-Defendant-Privileged communications.-A defendant admitted that he had in his possession documents relating to the matters in the bill, but refused to set forth a list of them, because they had been procured by his solicitor since the institution of the suit and for the purpose of his defence to it; and the same were, as he was advised and insisted, confidential communications: Held, that the allegation relative to the documents did not justify the defendant's refusal to set forth a list of them, and therefore that his answer was insufficient. Balguy v. Broadhurst, 1 Sim. 111.

ASSETS.-Administration of.-A testator had mortgaged his estate S. By his will he directed his debts, other than the mortgage, to be paid out of a specified part of his personal estate; he recited his intention of forthwith paying off a great part of the mortgage debt, and he directed that "the balance" of such mortgage should be paid by sale of timber on the S. estate. He made no bequest of his general personal estate: Held, that the mortgage was payable, first, out of the general personal estate; secondly, out of the descended real estate; and, thirdly, out of the timber money. A testator gave several life annuities, one of which was (expressed in the alternative) either 107. a year or 51. and a tenement (part of the N. estate); and he charged them all on the N. estate: Held, that all the annuities were charged exclusively on that estate. Lomax v. Lomax, 12 Beav. 285.