which an indictment was never heard of, and that the
object, which may be said to be the procurement
of well-qualified men to act as attorneys, is provided
for by the other remedies given, and consequences
arising from the statute, it is too much to say that it
is also an indictable offence.
The Attorney-General (with whom was Bodkin)
contrà, were not called upon.

Lord DENMAN, C.J.-The defendant is indicted for acting as attorney, not being qualified, in condocting an appeal at the Court of Quarter Sessions, which is forbidden by the 2nd section. I am clearly of opinion that the clause relates to a matter of a public nature, and that the offence, as described, is indictable. I quite agree that, if the same clause which prohibits the doing a particular act affixes a penalty, then the only remedy is by enforcing that penalty. It is as if the legislature said you shall not do this upon pain of so and so. But where the prohibition is in general terms, then I think that an indictment will lie, although a separate and additional penalty may be added in a subsequent clause. We cannot draw any inference from the provisions of other Acts, but I may observe both upon the 22 Geo. 2 and the present Act, that many unnecessary clauses are introduced; for it is obvious that no costs could be recovered for doing what is prohibited by statute; and also the assuming to act as an attorney without being so, is clearly a high contempt of the Court. Acting without the qualifications required by the Act is a factitious offence, but it is necessary for the general good that these regulations should be observed. I consider the true rule to be that laid down in Rex v. Wright, and, if this were not so, there would be a prohibition which would have no effect. Crofton's case may be said to be an infamous one, for it is quite clear that where the punishment is inflicted by the same section that creates the offence, no indictment will lie, unless there be also a general prohibition. PATTESON, J.-It may be that there is no express decision upon this principle; but I think that the law is as laid down in R. v. Dickenson (1 Saund. 135). WILLIAMS and WIGHTMAN, JJ. concurred.

REG. v. GAWTON. Where a parish is divided into separate townships, and churchwardens appointed for the whole, they cease to be necessary parties to appeals, and it suffices if the notice of appeal is signed by the overseers. This was a case stated, which involved the old question as to the signature of the churchwardens heing necessary to the notice of appeal, where the parish has been divided into townships, with separate Overseers. It arose upon a removal from one of the townships into which Wrexham is divided to another, and the facts found were nearly the same as those in Reg. v. Acton (6 Law T.), which was a question from the same parish. The Quarter Sessions had overruled the objection, subject to the present case. The Court called on

Whately, Q.C. and Phillimore to distinguish the case. -Reg. v. Acton is different, because there the township was partly in one county and partly in another, and it was found there that churchwardens were in some cases appointed separately. Here the churchwardens are stated to have been appointed for the whole. Then they are churchwardens for each part. [WILLIAMS, J.-No, they are churchwardens for no part. This was decided in Rex v. Nantwich (16 East.)] R. v. Marsh (5 A. & E. 468) is an autho rity the other way. There would be no inconvenience, as suggested, in their being parties on each side, or the majority of the parish officers might act without them.

V. Lee, contrà, referred to Rex v. North Riding (6 A. & E. 803; Rex v. Derbyshire (ib. 885); Rex v. Warwickshire (ib. 873); Reg. v. Acton (6 Law T.)

Lord DENMAN, C. J.-Suppose this were a new case; if the parish is divided, and overseers appointed separately, they are overseers for all purposes. PATTESON, WILLIAMS, and WIGHTMAN, JJ. concurred. Order confirmed.

REG. v. ASHBURTON. Apprenticeship deed-Allowance by justices. A deed of apprenticeship, under 56 Geo. 3, c. 139, which in the body of it accords with the requirements of the statute is good, although the allowance does not state affirmatively, or by distinct words of reference, that the justices who signed it were the same as those who made the order, or were acting in and for the county at the time the allowance was made. On appeal, the Sessions confirmed the order, subject to a case, the single point in which was, whether the allowance by justices to an apprenticeship deed, under 56 Geo. 3, c. 139, must shew distinctly, or by reference, the jurisdiction of the justices who

that the plaintiff ought to have brought his action in covenant upon the deed. Wherever the covenant upon which the plaintiff proceeds is a covenant to perform any act beyond the simple payment of money from the one party to the other, debt will not lie on the deed; the action must be in covenant. Here the covenant is collateral, to pay the insurance offer; and therefore debt will not lie. (Harrison v. Mei. thews, 10 Mee. & W. 768; Kandall v. Rigby, 4 M. & W. 130.) And no agreement between parties can vary the proper form of action. (Ker v. Osborne, 9 East, 378; Marshall v. Hopkins, 9 East, 313; Lindon v. Hooper, Cowp. 414.)

allowed it, and that they were the same who made
the order.
Greenwood (with him Merivale) in support of the
order.-This indenture of apprenticeship in every re-
spect agrees with the requisites of the statute. It
recites the consent of the justices, and the date of
the order, and then the allowance is dated the same
day, and signed by two justices, bearing the same
name as those by whom the order was made, and
purports to be by two of her Majesty's justices, and to
have been allowed before the execution of the deed by
any of the parties. It is clear that in fact they were
the same justices who made the order; and no form
of allowance is required by the statute. It only re- Crompton, contrà.-Debt will lie where by dead
quires that the indenture be allowed by such justices; upon a particular event a sum certain is to be paid;
that is, the justices who made the order of appren- and that is the case here. The annual premium is a
ticeship; and it is a question of fact for the Sessions sum certain; for id certum est quod certum reddi
to determine. It might as well be objected that the potest; and the plaintiff proceeds upon the implied
deed is not good, because not signed by the overseers covenant to repay contained in the words “it shall
as such. [PATTESON, J.-It cannot be necessary to be lawful for him to sue for and recover the same,
aver that they are the said justices.] Yet they must &c." (Hooper v. Shepherd, 2 Strange, 1089; Ingleden
contend for that, for even if their jurisdiction had been v. Cripps, 2 Lord Raym, 814; Com. Dig. "Debt,"
stated, it could not have been shewn they were the A. 4.) In Randall v. Rigby, and Harrison v. Met-
same identical justices mentioned in the indenture. thews, the covenants were collateral; and therefore
Rex v. Hinckley (1 B. & Ald. 327); Rex v. Countes- debt would not lie; but in Evans v. Jones (5 Mee. &
thorpe (2 B. & Ad. 487), were referred to.
W. 295) it was held that debt would lie upon a
Rowe, contrà.-There are two fallacies in the argu- covenant by the defendant to pay a sum certain,
ment on the other side. It is assumed that the word though the same sum was by the same deed secured
such in the Act means the same justices who make the by a mortgage. [Lord DENMAN, C.J. mentioned
order. But this is not so, for any justices having the case of Yates v. Aston, 4 Q.B. 182.]
jurisdiction might sign the allowance, and it is sup-
posed not to be an act of jurisdiction. But this is
clear. [PATTESON, J.-They must sign together.
See R. v. Hamstall Ridware, 3 T. R. 380). That
being so, their authority to do the act must distinctly
appear as in jurats. (Reg. v. Shipston-upon- Stour,
6 Q. B. 119.) The identity of name is not sufficient,
nor that like allowance took place upon the same day.
(Reg. v. St. Anne's, Westminster, 2 New Sess. Cas.;
Reg. v. Bloxham, 1 New Sess. Cas.) The question
is open here, for the objection was, that the allowance
by justices did not legally appear upon the face of the
documents, which the Sessions overruled. It should
have stated that they were acting in and for the county.
(Reg v. Stockton, 2 New Sess. Cas.; 1 New Mag.
Cas.) Or at least words of reference should have
been inserted, so as to show they were the justices
whose jurisdiction is set out in the indenture.

Lord DENMAN, C. J.-This is no doubt an act of jurisdiction, and I am very unwilling to favour any laxity of practice in these matters, and have some doubt whether this is a sufficient statement, but the rest of the Court think otherwise.

PATTESON, J.-If this allowance were to have
validity as a document separate from the indenture,
then it would be necessary to shew the jurisdiction of
the justices who make it. But taken with the docu-
ments it suffices. Such must mean the same justices;
then it is stated that prior to the execution of the
indenture the allowance was signed. And the pre-
sumption of omnia rite acta applies. The indenture
also refers to the order of the justices who are of the
same name as those who sign the allowance, and it is
executed upon the same day after the allowance; then
it is clear that the documents shew that they had
jurisdiction.

WILLIAMS and WIGHTMAN, JJ. concurred.
Order of Sessions confirmed.

Tuesday, April 28.

Pleading-Debt on a deed-Covenant.
Debt. The declaration set out a deed which, after reciting
the assignment, by the defendant to the plaintiff, of a
policy of insurance, contained a covenant by the de-
fendant to pay to the insurance office the annual
premiums, and provided that, if he should neglect or
refuse to do so, it should be lawful for the plaintiff
to pay them, and recover the same in an action as
for money paid to the defendant's use. The declara-
tion then alleged the nonpayment by the defendant,
and the payment by the plaintiff of a certain premium,
whereby (the defendant not having repaid him) an
action had accrued, &c. Held, upon demurrer, that
the declaration was good, and that it was not neces-
sary for the plaintiff to sue in covenant.

Debt on a deed, which recited that a policy of in-
surance had been effected in the Caledonian Insurance
Office, on the life of the defendant, for 9991. and that
the defendant, being indebted to the plaintiff, it had
been agreed that he should assign the policy to the
plaintiff; and that he had so assigned it. The deed
then contained a covenant by the defendant that he
I would pay the annual premiums, and all sums neces-
sary to keep the policy alive; and an agreement by
him, that if he should at any time refuse or neglect
to pay such premiums, &c. it should be lawful for the
plaintiff to pay the same, and "to sue for and re-
cover the same in an action at law as for money paid
to the use of the defendant." The declaration then
alleged that an annual premium had become due; that
the defendant had neglected and refused to pay; and
that the plaintiff had paid the same; whereby, and
by reason of the defendant not having repaid the
same to the plaintiff, an action had accrued, &c. To
this declaration the defendant demurred.
Petersdorff, in support of the demurrer, contended

Petersdorff, in reply.-In the cases cited, the evenants were direct covenants between the parties to the action; but here the covenant is to pay the office; and a tender to the plaintiff of the amount of the premium, or even payment of it to him, would be no answer to an action for the breach of that covenant.

Lord DENMAN, C.J.-I entertain no doubt that this action is maintainable. A deed is set out, which shews that the defendant ought to have paid money; that it was not paid; and that he had agreed thi the plaintiff should pay it, and recover it from him is money paid to his use. It seems only necessary to state the case to shew that debt will lie. WILLIAMS, J. and COLERIDGE, J. concurring, Judgment for the plaintif

BUSINESS OF THE WEEK.
Thursday, April 23.

Dor dem. DARK T. BOWDITCH.
BARCLAY . KEMP.

DOBSON . BLACKMORE.

R. v. HURST.-The Attorney-General nal information.

Saturday, April 25
Tuesday, April 28.

R. v. CoxvY RBĄ.......
POLLETT v. FORREST.
SCADDING v. LORANT.

Cur. ads, velf.

Cur. adr. ruit.
Part heard.

moved for a crimi❤
Rule nisi.
Cur. ade. vult.
Cur. ade, tell.
Cur. ade, quit.

Monday, April 27.
DOBSON V. BLAKEMORE. - Shee, Serjt. Peacock, and
Pigott were heard in support of the rule. Cur. ade, vuil.
DOE dem. EGREMONT . COURTENAY.-Crowder, Q.C.
(with whom was Butt, Q.C.) was heard against the rule.
Adjourned,
WHITE v. COE.-Dowling, Serjt. moved for a rule misi to
reduce damages.
Rule nisi, not to go into the New Trial Paper.
Written judgments were delivered in the following cases:
REG. v. DOUGLAS.
Rule for new trial refused.
ALFRED U. FARLOWE.
Rule refused.
SOLOMON U. LAWSON Rules absolute in arrest of judg,
GRIFFITHS v. LEWIS. J ment.
Wednesday, April 29.

REG. . BRADFORD.-Hodges and Fitzgerald, in support of the order of Sessions. Pashley, contrà.

Order of Sessions quashed.
REG. v. KEIGHLEY.-Pashley and Overend, in support of
the order of Sessions. Hall and Ingham, contrà.
Order confirmed,

These two cases will appear next week.
The following cases were disposed of without argument,
the parties not appearing :-

REG. v. BOND.

REG. v. PAYNTER.
REG. v. ST. GENNYS.

REG. v. FOSTER.

COURT OF COMMON PLEAS.

April 21 and 22.

BENTLEY V. Carver.
Costs-Practice.

The costs incurred by a cause being made a remanet, are costs in the cause, and are therefore not chargeable upon a defendant obtaining a new trial on the payment of costs.

This was a town cause, originally entered for the sittings after Trinity Term, 1844. In consequence of the length of the cause list, it had been made a remanet, and not tried until the sittings after Michaelmas Term in the same year. A verdict was then found for the plaintiff, which was afterwards set aside, and a new trial granted upon payment of costs by the defendant. In taxing these costs, the Master, upon the authority of Robinson v. Day (2 N. & M. 670), allowed to the plaintiff the costs of the cause being made a remanet. A rule had been obtained for the Master to review his taxation, against which cause was now shewn by

Channell, Serjt.-The rule was settled, after con

siderable deliberation, in Robinson v. Day. There partners as aforesaid, to wit, &c. the said plaintiff,
a pointed distinction was made between town and M. F. G. with the privity and concurrence of the
country causes. In the latter it is admitted the other plaintiffs, applied to and requested the defend-
earlier decisions are to the effect that, in the case ants, who then carried on, and still continue to carry
of a new trial, the party to whom it is granted is not on in partnership together the trade and business of
liable for the expense of making a cause a remanet. auctioneers and appraisers, and also then retained
[TINDAL, C. J.-Why should there be any difference and employed them, the defendants, as such auc-
between them?] In town causes, the expenses are tioneers, to put up to sale and dispose of certain pro-
often incurred several times as the Court proceeds perty of and belonging to the plaintiffs, as such co-
from sittings to sittings. The cause in the country partners as aforesaid, which they, the said defendants,
has to be re-entered, and then a fresh notice of trial then agreed to do; and they, the said defendants,
given, and has no priority; whereas in town it is further say, that at the said time, when the said M.
continued in the list until it gradually finds its way F. G. applied to and requested them to sell and dis-
to the top, and no fresh notice of trial is requisite. pose of the said property, and also at the time of
Wilde, Sir Thos. Serjt. in support of the rule.-selling and disposing thereof, and at the time when
The case of Robinson v. Day was decided without re- the debts and moneys hereinafter mentioned to have
ferring to the old decisions. In practice none of the become due from the said M. F. G. to the defendants,
officers of the other courts, or even of the Queen's became and were due as hereinafter mentioned, the
Bench, act upon the principles of that case. Costs defendants believed that the said M. F. G. was the
upon a new trial granted, and costs of the day, stand sole and exclusive owner of the said property, and had
upon the same footing; and in the latter the costs full power and lawful and absolute authority to sell
occasioned by a cause being made a remanet, are not and dispose of the same, and receive the proceeds
included. (Waters v. Weatherby, 3 Dowl. 328; Brett thereof, as and for his own property, and for his own
v. Stone, ì D. & L. 140.) The proper costs to be sole use, benefit, and advantage, they, the defendants,
allowed in both cases are those to which either party then having, and they in fact say, that they had no
has been put in preparing for trial. Where either notice or knowledge whatsoever that the said other
party in an earlier stage of proceedings has obtained plaintiffs, or any other person whatever, had any right,
costs of the day, still the party ultimately successful title, estate, or interest whatever in the said property,
has the costs of the cause being made a remanet. or any part thereof, and the defendants further say,
There is no reason why a party should be in a worse that the said defendants afterwards, to wit, &c. sold
position as to the costs of the cause, because a verdict and disposed of the said property for certain sums of
has been found which the Court thinks ought not to money, being the same identical moneys in the declara-
stand, and which may perhaps be upset at the second tion above-mentioned, and for which this action is
trial. (Gibbons v. Phillips, 8 B. & C. 437; Saddler brought; and that after the said M. F. G. had so
v. Evans, 4 Burr. 1986.)
retained and employed them as aforesaid, and before
the said defendants had any notice that the said M.
F. G. was not the sole and exclusive owner of the
said property, or the proceeds thereof, or any part
thereof; and before the commencing of this suit, &c.
the said M. F. G. was indebted to the defendant, &c.
shewing a set-off in the usual form.

TINDAL, C. J.-If this were res nova I should be disposed to make this rule absolute, but we will speak to some of the judges of the other courts.

Cur, adv. vult.

On the following day TINDAL, C. J. said:-We have mentioned this case to some others of the judges. They agree with us that Robinson v. Day was decided upon some misapprehension, and must be over-ruled. In cases of this kind no costs are to be allowed but costs of the day; the rest are to be costs in the cause. Rule absolute.

WHITE v. JAMES HANCOCK. Debt may be maintained upon an obligation for a sum to be paid to A or his attorney, or to B. Where a declaration upon such an obligation described it as for a sum to be paid to A: Held, that if this were a variance, it was cured by setting out a bond

Debt on a bond in the common form. The defendant set out the bond on oyer, "know all men, &c. that we, James Hancock and John Hancock, as sureties for J. B. are severally held and firmly bound in 1007. each to J. White, to be paid to J. White or his certain attorney, executors, &c. or to the treasurer of the Company for the time being, &c." It then set forth the condition, which was for the faithful performance of his office by J. B. to the company. The defendant then demurred, assigning for causes that the action of debt was not maintainable on this bond, that the declaration did not set forth the legal effect of the bond, that it did not shew that the money was not paid to the treasurer, &c.

Byles, Serjt. in support of the demurrer.-The action of debt will not lie, unless there is a simple duty to pay some one person. (Viner's Abridgt. Debt D. Pl. 3; Wentworth's office of Executor, 123; Harrison v. Matthews, 10 M. & W. 768.) [TINDAL, C.J. -That was a covenant that the defendant or some one else would pay. In this case the defendant is to pay at all events. The same objection might be made to every bond, as the form always is to pay A B, or his attorney. Here a particular attorney, viz. the treasurer of the company, is pointed out.] Then there is a variance. The bond now appears not to be in the terms set forth in the declaration.

CRESSWELL, J.-You have corrected that by setting out the bond for the plaintiff. His declaration shows a good cause of action, and you cannot now demur. Tindal, C.J. referred to Anon. (3 Salk. 119; Dyer, 350, a.); you are out of Court upon this objection. Judgment for the plaintiff.

Wednesday, April 22. GORDON v. ELLIS and OTHERS. Pleading-Partners-Set off. Where, in an action by partners, the defendant seeks to set up the defence that the partnership u as a secret one, and that he dealt with one of the partners, relying upon a set-off between himself and that partner, he must shew distinctly by his plea, that the other partners concurred in something which induced him to suppose that he was dealing with a person who had no partners. Assumpsit for money received to the use of the plaintiff, and upon an account stated.

Plea, that before the said money was had or received, and before the stating of the account, &c. to wit, &c, the plaintiffs carried on their trade and business in partnership as copartners, and thereupon while the plaintiffs continued to be and were such

To this plea there was a replication, which was specially demurred to. The argument, however, was confined to the validity of the plea.

1301.; for the fifth and following years, 150l.: and I also agree, in case of the death of either of us, to return 150l." It appeared in evidence that, upon the occasion of this memorandum being signed, the plaintiff had said to the defendant that it would suit him to receive his salary quarterly; and it was shown that that had been the uniform mode of payment between the parties. At the time of action brought the plaintiff had served for more than three, but less than four, years. All payments due to the end of the third year had been made, and the plaintiff now claimed a quarter's salary.

Under these circumstances Coltman, J. nonsuited the plaintiff, upon the ground that he could sustain no action until the end of the fourth year, reserving leave to move to enter a verdict for 461. A rule having been obtained for that purpose,

Byles, Serjt. now shewed cause.-The plaintiff was rightly nonsuited. The contract only provided for a yearly payment. It is like the case of a yearly rent reserved which is only payable at the end of the year. (Bacon's Abridg. Rent F. Lutwych, 231; Spain v. Arnott, 2 Stark, 256; Turner v. Robinson, 5 B. & Ad. 789). This is not like the case where a contract is rescinded by mutual consent, upon an understanding that payment should be made pro ratâ. (Thomas v. Williams, 1 A. & E. 685). Unless, therefore, this contract could be varied by parol, the nonsuit must stand. But this is an agreement "not to be performed within a year," within sect. 4. of the Statute of Frauds, and therefore could not be by parol at all. There is in it, moreover, no contingency. Written agreements would be valueless if they could be varied by parol. (Goss v. Lord Nugent, 5 B. & Ad. 58; Marshall v. Lynn, 6 M. & W. 109). Neither can they be varied by the conduct of the parties. The mere fact that the payments have been made quarterly will not affect the question. Ridgway v. Hungerford Market Company (5 A. & E. 171) has no bearing upon this case.

Talfourd, Serjt. in support of the rule.-The written contract only defines the rate, not the time or mode of payment. The year is only mentioned to facilitate the calculation. In the absence of an exByles, Serjt. (with him Willes) for the defendants. press contract, services done entitle the plaintiff to -The plea is good upon general demurrer. The ef- payment. There is no analogy between this case and fect of it is, that the defendants knew no one in the that of rent. The latter is an entire matter, very diftransaction but M. F. G. In ordinary cases, it is ferent from personal service. This is more like the true, that there is no set-off of a debt due from one case of use and occupation, with the debt accruing member of a firm against a debt due to the whole de die in diem. [CRESSWELL, J.--If there were no firm. But these partners are in the nature of undis- evidence but the written contract, would the plaintiff closed principals. They allow M. F. G. to be the after a day's service, be entitled to require pay. sole and exclusive owner of the goods; he has pos- for that day?] I think he might. Then it is q session of them, and deals with them as his own, consistent with this case that there was a substituted exactly as a factor might do. [TINDAL, C. J.-It agreement for quarterly payments. That would bring does not appear clearly that M. F. G. had posses-it to the case of Ridgway v. Hungerford Market. sion.] (Carr v. Hinchliff, 4 B. & C. 547) At all That supposition is helped by the evidence that the events the other partners lie by. The defendants had payments were always made quarterly. But even no notice. All is said to be done with the privity and without this, it may be argued that the time of payconcurrence of the co-partners. It is a well-esta- ment is left entirely open and unsettled. [CRESSblished rule of law, that partners who do not appear, WELL, J.-Then you come to this. If the time of and undisclosed principals are to be placed upon the payment is material, there is a material term of the same footing. (Sims v. Bond, 5 B. & Ad. 393; Stacey contract not provided for, and as the contract extends v. Ross, 1 Esp. 470.) All that the plea need aver is, over five years, the Statute of Frauds puts you out of that the other partners did not appear to the defend- Court]. ants. The fact that the defendants knew of the partnership at the time of the employment should come from the other side. (George v. Clagett, 7 T. R. 359; Rabone v. Williams, 7 T. R. 360, note a.) Formerly this defence might be set up under the general issue. Now, it will suffice on general demurrer, if the plea state, in substance, that when M. F. G. em. ployed the defendants, he employed them as the true and sole owner.

TINDAL, C. J.-No, that will not do, unless it
shews some concurrence on the part of the other
partners. Here there is no allegation, nothing what-
ever to shew any default by the other partners. This
is a mere plea of set-off against one partner.
Channell, Serjt. (with him Bovill), for the plaintiffs,
were not called upon. Judgment for the plaintiffs.

Thursday, April 23.
GERAUD v. RICHMOND.
Yearly salary-Statute of Frauds.

1. An agreement to receive a person as clerk, and to
pay him a salary at rates varying each year until
after the fifth year, is within the latter part of the
4th section of the Statute of Frauds.

2. Under an agreement whereby A undertakes to pay
to B a salary at the rate of £ a year, nothing is
recoverable as a rateable proportion for part of a
year.

Assumpsit for wages or salary for services done and
performed by the plaintiff, &c.

Plea, non assumpsit.

At the trial it appeared that the action was brought to recover wages for services performed by the plaintiff. On the 2nd of May, 1842, the plaintiff entered into the service of the defendant upon the following memorandum being signed by the defendant: "I agree to receive you as clerk or book-keeper in my establishment, in consideration of your paying me a premium of 3001. and to pay you a salary at the following rates, viz.: for the first year, 70l.; for the second, 901.; for the third, 1101.; for the fourth,

TINDAL, C. J.-It appears to me that this contract binds the parties for five years, and is therefore within the Statute of Frauds. It is an agreement that cannot be performed within a year. The work and labour was done either under this contract or under none. Then this contract must have the same construction as a lease, reserving a yearly rent, and the salary must be regarded as a yearly salary, payable at the end of every year, and at no other time. Were we to interpose any other terms we should violate the statute. But the plaintiff wishes it to be inferred, from the conduct of the parties, that quarterly payment was contemplated. The actions, however, of the parties cannot carry it further than parol evidence would. Both are alike inadmissible, to alter or vary a written contract. That is clear from Goss v. Nugent. The case of Ridgway v. Hungerford Market Company was quite different. There the nonsuit was directed upon a different point, and there was no decision upon any point like the present. COLTMAN, CRESSWELL, and ERLE, JJ. concurred. Rule discharged.

Saturday, April 25.
TOMLINSON, CLERK, V. BOUGHEY AND OTHERS.
Practice-Costs.

In carrying out 6 & 7 Wm. 4, c. 71, s. 46, the Court
will follow the general rule of giving costs to the suc-
cessful party, or against the party making default,
unless there be some special circumstances to justify a
departure from that general rule.

This was a feigned issue under the Tithe Commutation Act, 6 & 7 Wm. 4, c. 71, in which Talfourd, Serjt., had obtained a rule for judgment, as in case of a nonsuit. The plaintiff was rector of Stoke-uponTrent, in Staffordshire; the defendants, owners of lands within the parish. Proceedings being taken before an assistant tithe-commissioner, under the statute, the defendant set up fourteen several moduses. Of these ten were found in their favour. The rector commenced his action in order to try his right, pur

intention of the legislature. Warrington v. Furbor (8 East, 242), per Lord Ellenborough; Tomkins v. Ashby (6 B. & C. 541), per Lord Tenterden. There are only two cases directly in point. Case v. Barnard (8th Jan. 1827, G. H.), reported in the notes to "Chitty on Stamps," 186. There it is said, "A paper authorizing A to sell certain property, and thereout pay rent and expenses, and his own commission, signed by B, does not require a stamp." Monmouthshire Canal Company v. Kendal (4 B. & A. 458) raised a similar point without deciding it. Reg. v. Kelt (12 A. & E. 559) was a much stronger case than this. This is not a letter of attorney, according to the ordinary use of language. In such ordinary use a formal instrument is always contemplated. If this be decided to be a letter of attorney, there is no employment of one person by another, down to the case of a lady authorizing her servant to buy a skein of silk, which will not, if in writing, require to be stamped. Suppose the letter had been, "I'll bear you harmless, if you indorse the bills," and he had then failed to indemnify the person to whom such letter was sent, would there be no remedy against him, unless the letter were stamped as a power of attorney? Orif Upon the second point, Kinglake, Serjt. submitted, A writes to his attorney, "You may sell my estate for that, by the recent Act, the declaration was bad in so much," and there is an action for breach of con- arrest of judgment. By 8 & 9 Vict. c. 109, s. 18, tract, would that require more than an agreement" All contracts or agreements, whether by parol or in stamp? [TINDAL, C.J.-Is there not a difference be- writing, by way of gaming or wagering, shall be null tween the case where the instrument is to be used as and void; and no suit shall be brought or maintained

in any court of law or equity for recovering any sum
of money or valuable thing alleged to be won upon
any wager."
[CRESSWELL, J.-There is no real
contract here.] [TINDAL, C. J.-It is not a wager
in the sense of the Act. The Act relates to a real
wager. Here, everything is based upon fiction.]
Then sec. 19, together with the 2nd schedule, pro-
vides a new form in which questions of this sort are
to be tried. The marginal comment on that section
is "Proceedings under feigned issues abolished," and
the section itself, after reciting that "many im-
portant questions are now tried in the form of feigned
issues, by stating that a wager was laid between two
parties," and "that such questions may be as satis-
factorily tried without such form," enacts, "That in
every case where any court of law or equity may desire
to have any question of fact decided by a jury, it shall
be lawful for such Court to direct a writ of summons
to be sued out, by such person or persons as such
Court shall think ought to be plaintiff or plaintiffs
against such person or persons as such Court shall
think ought to be defendant or defendants therein, in
the form set forth in schedule 2, and thereupon all
the proceedings shall go on and be brought to a close
in the same manner as is now practised in proceedings
under a feigned issue." The fair inference is, that
even in feigned issues a wager is void, and that it is
for that reason a new form is substituted, which form
all parties are bound to employ. [TINDAL, C.J.-
The 19th section only says, that the Court may order
it to be in that form; it does not say, that you must
employ that form and no other.] [CRESSWELL, J.
-The plaintiff makes up a complete issue, and de-
livers it to the defendant. The defendant returns it
with his consent; they both agree to try a particular
question in a form based upon a fiction.] [TINDAL,
C.J.-You assent to it upon the chance of succeeding,
and when you fail you come here and object.]
Rule refused.
Wednesday, April 29.
BROWN V. GILL.
1. To entitle the steward of a court-baron to preside
over its proceedings, it need not appear that he is
also steward of the manor.

2. A court-baron is properly described, as being held
"before A. B. esq. the steward of the said court,
and C. D., E. F. and others, suitors of the said

court."

3. After pleading and judgment in an inferior court, it cannot be objected, that the plaint by which proceedings were commenced did not disclose the form of action.

4. It is unnecessary that the names of more than two of the suitors should appear upon the judgment or other proceedings of a court-barons

that he is a free suitor as well as steward. The
same state of things must be presumed to continue
unless there is an allegation to the contrary, and then
why should he lose the privilege of a free suitor,
merely because he is also steward? It is stated
that he is a free suitor at the commencement of the
proceedings in 1843, there is no subsequent allega-
tion to the same effect, and judgment is not until the
end of 1844. There is no inference in favour of
these proceedings, because it is not a court of
record. The capacity in which he is everywhere
said to be present is as steward. There is no dis-
tinction as to this point between the county court
and the court-baron. In both the judges are the
suitors only. (4 Inst. 268; Brooke's Abr." Court
Baron," pl. 11; Ibid. "Judgment," pl. 118; Jones
v. Jones, 5 M. & W. 523; Holroyd v. Breare, 2 B. &
A. 473; Kingsley v. Nassau, M. & M. 52.) Thirdly,
the plaint is merely levied against the defendant in a
plea of 39s. 11d. That does not shew what the cha-
racter of the plaint or the form of action was.
Fourthly, the names of all the free suitors present
ought to be stated. The judgment may have been
given by some of those whose names do not appear.
(Lewis v. Weeks, Carth. 85, 7 Dowl. 844; Rex V.
Mein, 4 T.R. 480.)

Channell, Serjt. for the defendant in error, the
plaintiff below.-Jones v. Jones has no application:
there the declaration was held bad on special demur-
rer, for not describing the county court according
to the old precedents. Lord Coke (4 Inst. 55) de-
scribes the county court "as the court of the sheriff
held at B;" but at page 57 he describes the court-
baron as held "before the steward and suitors."
The expression in the judgment, "it is considered by
the Court," means the Court above described: if
that description be, as it is, correct, the question is
at an end. By 4 Inst. 56, it appears that in the
court of the hundred, the suitors are the judges in
the same way as in the court baron. Yet in Bacon's
Abrid. "Hundred Court," where to a description of the
hundred court as being held "coram seneschallo et
sectatoribus," it was objected that it should have been
"coram seneschallo per sectatores," the description
was held good. Holroyd v. Breare decided that the
steward was not a mere ministerial officer, but a con-
stituent and essential part of the Court. With regard
to the last point, only a sufficient number of suitors
to give the Court jurisdiction need be named. This
principle is adopted in the description employed for
Courts of Quarter Sessions. R. v. Main is a very
different case. That was a quo warranto, and the de-
fendant rested his case upon the validity of a parti-
cular election. The title which he set up failed him.
Kinglake, Serjt. in reply.

This was a writ of false judgment, upon the judg TINDAL, C.J.-It appears to me that the judgment ment of the court baron, of R. Mattocks, esq. lord of of the inferior Court ought to be affirmed. Four obthe manor of Taunton Dean, in the county of Somerset.jections have been taken to the regularity of the proThe roll of procee lings described the court as a court-ceedings. First, that the steward of the court does baron holden at Castle Hall, in and for the said ma- not appear to be also steward of the manor; and that nor, according to the custom of the said court and he is not competent to be present, unless he is also manor from time immemorial, before William King- steward of the manor. But there is nothing in the lake, esq. the steward of the said court, a free suitor style of the court to shew that it is necessary that thereof, and William Upham and William Eardley the steward of the court need be steward of Mulford, and others, free suitors of the said court. the manor. In Comyn's Digest, "Copyhold" It then set out, that on the 28th day of November, (R. 5), referring to Co. Lit. 61, b, it is said, A.D. 1843, came James Gill, and levied his plaint A steward may be retained by deed, or by against John Brown, in a plea of 393. 11d. and a parol, and a retainer by parol may be for a court. particular day was given for the appearance of both leet as well as for a court-baron. A retainer by parol parties. On the appointed day, the proceedings continues till it be discharged." That does not speak shewed the appearance of both parties by their attor- of the steward of the manor, but of the court. We neys, and a declaration by J. G. against J. B. in an know in practice, that stewards of the courts are action of debt. Then followed an imparlance. A often appointed by particular deputation. The second long series of proceedings were then set out, always objection, and that upon which most reliance is alleged to be before W. K. esq. steward, and W. placed, is, that it appears upon the face of the proU., W. E. M., and others, free suitors. The judg-ceedings that the court was held before improper ment was in the following form: "At which next judges, and that being so, the Court would be with court held in and for the manor aforesaid, and within out jurisdiction. If the style employed be the wrong the jurisdiction aforesaid, on the 9th day of October, style, then the whole proceedings are irregular. It A.D. 1844, before Wm. Kinglake, esq. steward, and will not, however, be necessary to consider who are Wm. Upham, Wm. Eardley Mulford, and others, free re: lly the judges of the court, since the description suitors of the said court, came, as well, &c." Then of the court agrees with the usual style. Mr. Kingcame a description of the jury, the verdict for the lake does not necessarily put himself in the position plaintiff, &c.-"and hereupon all and singular the of a judge. He has a known definite duty to perform, premises being, &c. it is considered by the said Court, namely, to collect the suffrages of the suitors; &c." on the other hand, the suitors have their deKinglake, Serjt. for the plaintiff in error, the de- finite duty, namely, to judge. Jones v. Jones, and fendant below.-First, if right to insert the name of the other cases relate to county courts. But there the steward at all, it should be as steward of the is a difference between the style of the two courts, so manor only, not as steward of the court. The that what might be law in one case would not be in the steward of the court may not even be a free suitor, other. The style of the county court is "Essex to and may have no right to be present. Secondly, the wit. The first county court of A B, &c. held at C." steward of a court-baron, even though he may be a It might be usurpation to say that it was held before constituent member, is not a judge of the court. the sheriff; but in describing the court-baron you The judges are the free suitors. Here it is stated must say that it was held "before the steward and that the court was held before the steward and free the suitors." In the Year Book, 21 H. 6, p. 34, it suitors, and then follows an ideo consideratum. That seems to have been thought well to describe the shews that it was the judgment of the steward and county court as held before the sheriff. As to the free suitors. This court-baron is the court of the third objection, that the plaint does not specify the freeholders, and is incident to every manor: in it the form of action, that goes only to a matter of irregufree suitors are the judges, and it is quite distinct larity, and the time is gone by for taking the objecfrom the customary court baron, which is the court tion. It has been said, indeed, that no intendment of the copyholders, and in which the steward only is is to be made in favour of the proceedings, because judge. The power of the court-baron is much more the court-baron is not a court of record; but in all extensive than that of the latter. [TINDAL, C.J.-inferior courts, when the matter is within the jurisIt is stated at the commencement of the proceedings diction of the Court, every intendment ought to be

made for the regularity of the proceedings. As to the last point, that all the names of the suitors are not specified, no authority has been cited to shew that you must set out all the names. You must shew the names of two freeholders, because there can be no court unless there are two. There is a case, too, in Willes' Reports that they must be two old freeholders, and that it is not sufficient to make a new one. Why we should encourage prolixity, and perhaps mistakes, by requiring any thing so inconvenient as the names of all the suitors, without authority, I cannot see.

CRESSWELL, J.-With regard to the third objection, it is not usual in these inferior courts to set out the nature of the claim in the plaint. If it were necessary, the omission would only be an irregularity, which the defendant cures by appearance and pleading.

The rest of the Court concurring,

Judgment for the defendant in error (the plaintiff below).

EVERETT . SMALLPIECE.-Channell, Serjt. moved for
leave to plead puis darrein continuance, and that the affidavit
that the matter of the plea arose within eight days might be
dispensed with. He cited Reg. Gen. H.T. 4 Wm. 4; Chitty's
Archbold, 452; Powell v. Duncan (5 Dowl. 550); Dunn v.
Hill (11 M. & W. 470.)
Rule to shew cause.

Friday, April 24.
BEARD V. EGERTON AND OTHERS.-Wild, Sir Thos. Serjt.

(with him Webster and Ogle) in support of the demurrers.
Channell, Serjt. (with him Groves and J. Brown) contrà.

Cur. adv. vult. HARRIS V. ROBINSON.-No cause being shewn against the rule obtained by C. Jones, Serjt. Rule absolute. COOPER V. SHEPHERD.-Dowling, Serjt. in support of the demurrer. Talfourd, Serjt. (with him Hawkins, contrà.)

Part heard.

HUNTER. CLARKE.-Dowling, Serjt. (with him Bramwell, shewed cause against the rule obtained to enter a nonsuit, or to reduce the damages. The question turned upon the admissibility of a certain agreement, but as it appeared that the objection had not been taken at the trial, the rule was discharged as to the first point. As to the second, it was consented that the damages should be reduced.-C. Jones, Serjt. in support of the rule. Rule discharged.

BENNETT U. DURLAND.-Wilkins, Serjt. moved for a rule to shew cause why the Master should not review his taxafendant all costs incurred subsequent to a summons to stay tion, and why an order of Coltman, J. for allowing the deproceedings, should not be rescinded. Rule refused.

DOE dem. v. Roɛ. Channel!, Serjt. moved for judgment against the casual ejector. The notice to appear was served on the 22nd of March. It was, however, dated April 22nd, but required the party served to appear next Term. It was submitted that this might be regarded as an impossible date, and that the case was similar to Doe dem. Woodroop v. Roe (5 Scott N.R.800), and Doe dem. Sanders v. Roe, (12 M. & W. 556.)

SPECIAL PAPER.

Rule absolute.

Tuesday, April 28. DOE dem. ATKINSON . FAWCETT.-Sir T. Wilde, Serjt. concluded his argument against the rule. Channell, Serjt. in support of it. Cur. adr. vult. Wednesday, April 29. COOPER . SHEPHERD.-Argument concluded. Cur, adv. rult. PRYCE v. BELCHER.-Talfourd, Serjt. for the defendant; and Kinglake, Serjt. for the plaintiff. Argument adjourned.

In an action of assumpsit on a bill of exchange brought by a second indorsee against the drawer, the notice of dishonour proved was a notice by the plaintiff's attorney (by the authority of the plaintiff), but who, by mistake, gave the notice in the name of the first indorsee, and not in the name of the plaintiff: Held, that this misrepresentation of the name did not make the notice of dishonour void, for as the first indorsee might have recovered on this notice, the defendant had every defence as against the plaintiff as he would have had against the first indorsee.

This was an action of assumpsit by indorsee against the drawer of a bill of exchange. The bill was dated December 21, 1844, payable four months after date, and was indorsed by the defendant to one Vaughan, and by him to the plaintiff; the plea was no notice of non-payment. The case was tried before Mr. Wellsby, the Recorder of Chester, when it appeared that the bill

became due on the 24th of April, when it was dis- whose request it was given, nor who was the owner
honoured; notice was given to the defendant of the dis- of the bill." It remains, therefore, to consider what
honour in the following form:-"Sir, I am requested by is the effect of not giving a true description of the
Mr. Vaughan, of this city, to apply to you for payment of party in whose behalf he gave this notice. This point
the amount due on you and your brother, D. Roscoe's has not been decided; but in Chapman v. Keane (the
dishonoured bill to him, and as Mr. Vaughan is very only case that bears upon it) it will appear the plain-
pressing for the amount, I trust you will immediately tiff's clerk was authorised, by the nature of his em-
oblige me with the same, together with my charge as ployment as clerk, to give it on behalf of the plaintiff,
under, I am, &c." By the evidence given at the trial and he was, by the express authority of the holder, to
it also appeared that the attorney was not authorised give it for him. Here there is an untrue statement;
to give any notice of dishonour, and also that Vaugh- but made unintentionally, and by a mere mistake. No
han's name was inserted by mistake instead of that of doubt there is a difference between the two cases,
the plaintiff. Whereupon it was contended by the where the notice is given by an authorised person,
defendant's counsel that the notice was bad, as without stating on whose behalf it is given, and where
Vaughan had given no authority to the attorney to an untrue intimation is given. In the one case the
give the notice. The learned recorder, however, di-party is put upon inquiry, in the other he is misin-
rected a verdict to be entered for the plaintiff, giving formed. What ought to be the result of a misin-
the defendant leave to move to enter a nonsuit.
Jervis, Q.C. having obtained a rule nisi,
Egerton and Unthank now (Feb. 9) shewed cause,
and contended, upon the authority of Chapman v.
Keane (3 A. & E. 193), that the notice was sufficient,
it being enough if a defendant had notice of dis-
honour from any one who was a party to the bill,
although not the holder.

Cur adv, vult.

Jervis and Atkinson, contrà. Some time after, the judgment of the Court was delivered by

HUNTINGDON

Saturday, April 18.

Rule discharged.

. THE GRAND JUNCTION RAIL-
WAY COMPANY.
New trial.

This was an action brought by the plaintiff against
the defendants to recover the value of three casks of
pearl shells, which had been deposited in the store-
houses of the defendants, at Liverpool, and stolen
therefrom. There were two counts in the declaration,
one stating that the goods were to be taken care of
and safely kept by the defendants, and delivered to the
plaintiff on request, for reasonable reward to be paid
to the defendants by the plaintiff in that behalf. The
second count was a count in trover. A verdict
having been found for the plaintiff,

formation? It is to be recollected that whether a party is misled or not as to the person giving the notice, the object of the notice is answered by the information of the dishonour of the bill: the person to whom notice is given is entitled to withdraw from the effects of it, or take a remedy against the prior party; and we think it reasonable to hold, that the misrepresentation of the name of a person on whose behalf notice is given ought not wholly to avoid the notice, but only to place the party giving it in the same situation, as to the party to whom it is given, PARKE, B.-This case was argued some time since as if the representation had been true. I therefore before the Lord Chief Baron, my brother Platt, and think that the defendant ought to have every defence myself, on shewing cause against a rule to enter a against the plaintiff that he would have had if the nonsuit on a point reserved by Mr. Wellsby, the notice had been given and the party's name had been learned recorder for Chester. The question in this correctly described. This is in analogy to the law case is a perfectly novel one, never having been and of contract with factors in similar cases where a before the Court. It was an action upon a bill of contract is not avoided by a mistake that had been exchange drawn by the defendant payable to his order, committed by the vendor. This was the case referred and by the defendant indorsed to W. H. Vaughan, to in the judgment by my brother Alderson just deliand by W. H. Vaughan again to the plaintiff. The vered. The other party has all the equity against the defendant pleaded that there was no notice of dis- real as against the apparent owner. If, therefore, in honour. The bill was, in the body, made payable in the present instance, a notice by Vaughan would have London, and it became due on the 24th of April. On been bad, as it would have been if he had been disthe 26th an attorney at Chester, acting for the plain-charged by laches, the defendant would have had a tiff, gave notice to the defendant of the dishonour, good defence, and the plaintiff would have had no stating he was required by the drawer, Vaughan, to right of action on the bill against the defendant; if desire payment of the defendant's dishonoured bill, he had taken it up, the defendant would have had a but he swore he was not authorised by Vaughan to defence, and if good, as, on the evidence, it appears to give that notice, and at the time that he gave the no us it would have been, the defendant has not been tice he gave it in a wrong name by mistake. The sole injured, and has no right to complain of misrepresentquestion is, whether this notice was sufficient. We ations. We think the ruling of the learned recorder have already intimated our opinion that the notice right, and the rule ought to be discharged. was in sufficient time if it be considered as given by the plaintiff, and if it sufficiently referred to the bill in question. Since the case of Chapman v. Keane (3 A. & E. 193), it must be considered as perfectly settled that a notice of dishonour need not be given by the holder, but it may be said to be sufficient if a notice is given in due time by any one who is a party to the bill. The decision in the case that came before Chancellor Kent is referred to in the 3rd volume of his Commentaries, p. 108, and by Mr. Justice Story on Bills of Exchange, s. 304. The former states the rule to be general that the notice may be given to any one who is a party to the bill; the latter states it more fully, and says that the notice would be sufficient, although not given by the holder or his agent, if it comes through some person holding, or who is a party to the bill, or who will be entitled to require the reimbursement thereof. The notice, by the terms of the rule, as laid down by the Queen's Bench, must be given in due time by a party to the bill-that is, in due time, as if he was the plaintiff himself, and was suing; and, consequently, the case where a bill has been discharged by the laches of the holder, and is excluded; and so the terms of the rule, laid down by Mr. Justice Story, seem to exclude the case of a party to the bill, who could not sue on it as being a party to the bill, unless it is so understood; otherwise the mischief would happen, pointed out by Mr. Jervis, that there might be a bill having twenty indorsees; the owner might retain the bill for twenty days, and then recover against the drawer by a notice given by the first indorsee, which the indorsee himself could not do. Such a notice as this would not be in due time if given by the first indorsee; it would be bad, and would not support an action. The rule extends equally to a notice by an acceptor, who could not sue himself on the bill after taking it up. The instances referred to in which a notice by an acceptor have been held good at nisi prius are in Mr. Chitty's book on Bills, 227; and Rosher v. Kieran, 4 Camp. 87, which is explained by Bayley on Bills, 259, and this is explained under the supposition that the acceptor had a special authority to do so. In the present case it appears the directions given were not such as can be understood to have given a discharge by the holder at the time. The notice by him on the 26th would have been in sufficient time to have supported an action by him, and consequently an action by the plaintiff; there is, therefore, no objection to the notice on this ground, nor, indeed, would there have been any if the attorney had omitted or refused to state in whose behalf he applied. That was held in the case of Woodthorpe v. Lawes (2 M. & W. 109). It had been previously so laid down in Kent's Com. 2 vol. 108, where he says, " Any agent in the possession of the bill may give the notice, and it need not state at

Alexander, Q. C. now moved (pursuant to leave
reserved) for a nonsuit, on the ground that there was
no contract for reward proved, so as to support the
first count; but that it was a mere bailment without
reward; and as to the second count, there was no
conviction proved.
Rule nisi.

THE MAYOR OF POOLE v. WHITT.
New Trial.

This was an action of covenant for rent. The plea
was eviction. Verdict for the plaintiff, with leave for
the defendant to move to enter a verdict.

Cockburn, Q. C. now moved accordingly. It appeared that the action had been brought to recover certain rents for a market, of which the defendant was lessee to the corporation, and the facts set out in the plea and relied on as a defence were, that some time since a gentleman named Parr, who was the town clerk of Poole, had been removed from that office, under the Municipal Corporation Act, and that the corporation awarded him compensation for the loss of his office, which was secured by a bond for 4,000l. Some time in 1838, this bond was put in force by Mr. Parr, and an elegit was sued out against the lands of the corporation on a judgment obtained on it. At this time the market was let by lease to a Mr. Browne, who attorned to Mr. Parr and paid him the rents, with the knowledge and without any objection on the part of the corporation. In 1840, his lease expired, and a Mr. West became lessee, and paid the rent to Parr as lessee until 1843, when his lease expired, and the defendant, Whitt, then became lessee; he also received notice from Mr. Parr, and paid him the rents without objection from the corporation for the first year of his lease. The corporation then thought that they had discovered something which would avoid the elegit, and gave notice to the defendant to pay his rent to them; this being refused, the present action was brought. The ground on which the corporation said the elegit could not issue was, that there

had been a prior mortgage for years of the market,
and therefore that Parr could not have the writ
This, it was contended, was not so; for if they were
sufficiently in possession to execute a lease, the rents
could be taken in execution here they had a disposing
power over them.

ROLFE, B.-If this was a mortgage for years,
surely the reversion might be taken in execution.
Authorities cited: Lyster v. Dollond (3 Brown,
Chan. Cas. 478, 1 & 2 Vict. 110).
Rule misi

MITCHELL v. NEWARK.
In an action by a sharebroker against a party for t
accepting certain shares in a foreign railway, it op.
peared that there were no shares (strictly so cuded)
in the market, but that the plaintiff had bought that
was current in the market as shares in that compay,
namely, a letter of allotment. Held, that the
fied the authority to buy shares.

This was an action brought by the plaintiff, wh was a broker, to recover 1501. the price paid by hin for certain shares in the Belgian Eastern Junction Railway Company.

At the trial it appeared that the authority giva ta the plaintiff by the defendant was to buy fifty shara in this company. By the prospectus which was t in, it appeared that no shares were to be issued by the company until three-tenths of the capital ad been paid up; but letters of allotment were issued the persons to whom shares were allotted, and it peared that these letters of allotment were currenta sale in the share market. The plaintiff bought a letter of allotment of fifty shares for the defendant the price of 150l. and on the defendant's refusing to accept the same, brought the present action.

At the trial it was contended that the purchase dia letter of allotment did not satisfy the authority to buy shares, and that therefore the defendant must have a verdict. The jury, however, under the direction of the Chief Baron who tried the cause, found for the plaintiff, damages 1507.

Humfrey, Q. C. now moved for a new trial, on the ground of misdirection, and contended that as the defendant had distinctly used the word "shares" in his authority to the plaintiff, the word must be taken it its strict literal meaning, and that it could not be satisfied by a purchase of something which might be equivalent to shares.

POLLOCK, C. B.-I left it to the jury to say whe ther the defendant meant the plaintiff to buy shares, strictly speaking, or what was on sale in the market as such, and they have found for the plaintiff.

Humfrey.-But it is submitted that it was not for the jury to decide that question, but the Court, upon the construction of the words of the act. No, if Newark had brought an action against Mitchell for not buying shares, would it not have been an answer to the action to say that there were no shares in the market?

By the COURT.-There is no rule of law to compel us to shut our eyes to what really was the intention of the parties, and it is clear they meant the thing really bought: it was quite a question for the jury. Here was an authority given to do something, and it was for them to say what was meant. They have decided, and we do not think we should disturb that decision. Rule refused.

CREMER v. CHUCK. At the trial of a cause at Nisi Prius, a verdict was taken for the amount claimed by the plaintiff, subject to a reference; the arbitrator to have power to make an award, or to give a certificate as to the sum for which the verdict was to stand; some months after the trial the arbitrator, instead of making an award, gave his certificate for the sum found by him to be due: Held, that the plaintiff might immediately pro ceed to sign judgment and tax his costs, and was not obliged to wait until after the four first days of the next Term.

In this case a verdict had been taken at the trial by consent for the plaintiff for the amount claimed, subject to a reference; the arbitrator to have power to make an award, or to give his certificate as to the amount for which the judgment was to be signed.

The arbitrator did not make an award, but two Terms after the verdict gave his certificate, whereupon, on the 7th of April, the plaintiff signed judgment.

Jervis, Q.C. having obtained a rule, calling on the plaintiff to shew cause why this judgment should not be set aside, on the ground that it was irregular, having been signed before the first four days of the Term after the certificate was given had expired,

Martin, Q.C. and Willes now shewed cause, and contended that the judgment was perfectly regular. This was not like the case of an award; it must be taken that the verdict was given six months since, and this certificate is given merely to settle the amount for which the execution is to issue, the whole being done by consent of the parties. It is not contended that the defendant cannot come here within the first four days of the next Term after the certifi cate is given, to set aside the certificate; if there were any ground for such motion, all that is contended is, that there is no stay of proceedings, and that the plaintiff's hands are not tied from taxing his costs,