fourth plea was not divisible in its nature, and therefore, first, that the whole replication being double was bad, and, secondly, that the two parts of the replication taken separately were bad, on the ground that each was replied to a part of the plea only, whilst, if true, they were respectively an answer to the whole, and, thirdly, that the latter part was bad as a new assignment for informality: Held, also, that the plaintiff had a right to revoke the alleged licence. But quære, whether if the defendants had justified in their character of churchwardens, the plaintiff's right in that respect would have been different. Adams v. Andrews, 20 Law J. (N. S.) Q. B. 33.

7. Debt on bond.-Debt against the defendant as surety for J. C. on a bond conditioned that J. C. would duly and faithfully account for, apply and pay to the plaintiff all sums of money which had or should come to his hands as treasurer of the S. M. turnpike roads according to the direction, true intent and meaning of the 26 Geo. 4, c. lxxi, and three other acts extending that act, and of the 3 Geo. 4, c. 126. Plea, that the 3 Geo. 4, c. 126, was repealed by the 4 Geo. 4, c. 95, and that up to the time of such repeal J. C. had duly and faithfully accounted, &c. Replication, assigning as a breach that although after the said repeal J. C. was required by the then trustees of the S. M. roads to render to A. C. P. and S. G., then being persons duly appointed by them for that purpose, a true and perfect account in writing of all monies which he had received and disbursed as treasurer, and although a reasonable time had elapsed, yet the said J. C. had not rendered such account; and for a further breach, that J. C. had received large sums of money as treasurer, and had failed duly to account for and pay the same, according to the true intent and meaning of the said acts and the statute 3 Geo. 4, c. 126, and of the said bond, although before and after the said repeal large sums remained in his hands, and although during all the time there were trustees entitled and ready to receive the same, and although no other person was authorized to receive the same. Rejoinder, as to the first breach, that a part of the sum was received by J. C. before the repeal of the 3 Geo. 4, c. 126, for which he had duly accounted, and that the residue of the said sum was received after the repeal of the 3 Geo. 4, c. 126; and as to the other breach, that no part of the sums in that breach mentioned was received by J. C. before the repeal of the 3 Geo. 4, c. 126: Held, upon demurrer, first, that the repeal of the 3 Geo. 4, c. 126, did not of itself render the bond invalid, supposing the enactments of the local act to be sufficient for enforcing it; secondly, that the first breach assigned was bad, as the local act provided only for the treasurer being called upon to account to the trustees themselves, and the section in the 3 Geo. 4, c. 126, requiring the treasurer to account to such person or persons as the trustees should appoint, had been repealed by the 4 Geo. 4, c. 95; thirdly, that although the other breach required no aid from the repealed section of the 3 Geo. 4, c. 126, and therefore that the statement as to that act was surplusage, yet as there was no allegation of a requisition to account or pay, as provided by the local act, the breach failed to show

a forfeiture of the bond under that act, and was therefore bad; fourthly, that the plea admitting a non-performance of the condition subsequent to the repeal of the 3 Geo. 4, c. 126, did not answer the whole of the declaration, and was therefore bad. Davis v. Carey, 20 Law J. (N.S.) Q. B. 68.

8. Several pleas with trespass quare clausum fregit.-The defendant to an action of trespass quare clausum fregit may still plead together the pleas of not possessed and liberum tenementum, notwithstanding the former plea puts in issue the possession and also the right to the possession of the close in question. Slocombe v. Lyal, 20 Law J. (N.S) Exch. 95.

9. Time for pleading under Reg. Gen. Mich. 3 Will. 4 (12). – Reg. Gen. Mich. 3 Will. 4 (12), which directs that where the time for pleading shall not expire before the 10th of August, it shall run from the 24th October following, applies where, according to the practice during other parts of the year, the time for pleading would expire upon the 10th of August. Therefore, if an eight days' notice to plead be given on August 2nd, jugdment signed on the 11th for want of a plea, is irregular. Severin v. Leicester, 12 Q. B. 949.

10. Trespass.-To a declaration in trespass for breaking plaintiff's close and digging up and carrying away the turf, defendant pleaded that the close was the close of W. and others as tenants in common and justified under licence from W. On motion for judgment non obstante veredicto: Held, a bad plea, because W., the tenant in common, could not himself have done the act, which amounted to a destruction, and therefore he could not authorize another to do it. Defendant also pleaded that the close was not plaintiff's. Held, that he did not support his traverse by proof that the plaintiff was tenant in common with another person under whom defendant acted. Wilkinson v. Haygarth, 12 Q. B. 837.

POOR LAW.—1. Order of removal-Interruption of residence. -The absence of a person from a parish in which he is residing, in consequence of an imprisonment out of the parish, is not of itself such an interruption of the residence as would prevent his becoming irremovable by five years residence, including the time of the imprisonment, if an intention to return at the expiration of the imprisonment exists throughout it. Therefore, where a pauper had resided for five years in the respondent parish, and during that time had been imprisoned in an adjoining parish for seven days under a conviction in default of paying a fine, and had afterwards returned to his residence, it was held, that he was irremovable under the 9 & 10 Vict. c. 66, s. 1. Reg. v. Holbeck (Overseers of), 20 Law J. (N. S.) M. C. 107.

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2. Settlement by estate. The father of a pauper had gained a settlement in the township of B. on the sixth of April, 1837, by renting a tenement. He had also been the owner of a freehold estate in the township of C. for some years before, and down to 1838, and it was admitted that on the 27th of April, 1837, he had resided and slept for more than forty days upon his estate in C. since the purchase of

it, several days residence between the 6th and 27th of April, 1837, being included in the computation of such forty days. An order for removal of the pauper to C., as the place of his derivative settlement, was obtained on the 28th of November, 1849: Held, that the residence in C. had the effect of superseding the settlement gained in B. and of establishing a subsequent settlement in C., to which the pauper might properly be removed. Reg. v. Knaresborough (Inhabitants of), 20 Law J. (N. S.) M. C. 147.

POOR RATES.- -Concerts and musical entertainments.-The Manchester concert hall was built by a society, partly from funds subscribed by eighty individuals, who were among its first subscribers, and was held in trust to pay off that amount, and subject thereto in trust for the society. The number of subscribers of five guineas each annually to the society was 600; and besides these there was another class of members called quasi members, who paid an annual subscription of two guineas and a half each, and all were admitted by ballot. The annual subscriptions, amounting to about 3,000l., went to pay off the above debt and interest, and to meet the current expenses of furnishing the concert hall and supporting the society generally. The concert hall was used by the society for concerts and musical entertainments open to subscribers, and parties admitted by tickets to subscribers, at which music of a high class was generally practised and performed, and for the general business of the society; except on one occasion in 1848, when the use of the hall was given gratuitously by the society for the charitable purpose of a public concert on behalf of the funds of the Manchester Royal Infirmary. Each subscriber was entitled to tickets of admission to every public and private concert, which were transferable to ladies generally and to gentlemen and quasi subscribers subject to certain restrictions. Each subscriber might also give orders for the admission of four persons to the private or undress concerts. The quasi subscribers were each entitled to admission without ticket to the private or undress concerts. Most of the vocal and instrumental performers were paid out of the amount subscribed, which was also expended in the purchase of music for the society's use. A highly skilled professor of music was induced to settle and remain in Manchester, solely because of the existence of the society, the tendency of which had been to promote and improve the science and practice of music in Manchester and the neighbourhood. No dividends or bonus in money had ever been made to any of the members, and the rules of the society provided that in the event of a dissolution the funds, after payment of all debts, should be applied to the promotion and encouragement of music: Held, that the society could be regarded only as a musical club, the primary object of which was the gratification and amusement of the members and their families, and therefore not entitled to an exemption from poor rates as a society instituted for the purposes of the fine arts exclusively, within the 6 & 7 Vict. c. 36: Held also that had the society been otherwise entitled to the exemption, the accidental use of the hall for the benefit of the infirmary in 1848 would not have affected the right to exemption. Reg. v. Brandt, 20 Law J. (N. S.) M. C. 119.

POWER.—Leasing.-The latest lease preceding the creation of a leasing power is of greater weight as to the ancient and accustomed rent than any single earlier lease, and ought to govern where there is a balance of evidence; but if the ancient custom is uniform, and the single lease varying therefrom is granted just before the creation of the power, such exceptional lease cannot be taken as evidence of the custom. By a will dated in 1761, a power was given to the tenants for life to lease for three lives lands usually so letten, provided there were reserved the ancient and accustomed rents and heriots or more, and usual and reasonable covenants. By a codicil dated 1763, provisions for a younger child were made, and the will was in all other respects confirmed. By a lease in 1724, the rent reserved is 17., the heriots 31., and the fine paid 91. By a subsequent lease of the same premises in 1762, the rent was 157., which was the rack rent value, and there was no fine or heriot. By a lease of 1824 of the same premises, purporting to be made under the power, the rent and heriots reserved were the same as in the lease of 1724: Held, first, that it was a question for the jury under these circumstances, whether of the two leases (of 1724 or of 1762) reserved the ancient and accustomed rent, so as to be the pattern for future leases: Held, secondly, that the rule that a codicil confirming a will makes the will to have the date of the codicil, is subject to the limitation that the intention of the testator be not thereby defeated; and therefore, as the codicil in the present case, if it brought down the date of the will to 1763 for all purposes, would materially alter the power contained in the will, and so contravene the intention of the testator, the leasing power must be taken to speak from the date of the will, and not from the date of the codicil. Doe d. Biddulph v. Hole, 20 Law J. (N. S.) Q. B. 57.

PRACTICE.-1. Affidavit of service.- Decree taken against a defendant on an affidavit of service of the subpoena to hear judgment. The affidavit stated service on T., who, according to the belief of the deponent, was the defendant's solicitor: Held, that if it should appear on the record that T. was such solicitor, the affidavit would be sufficient. Marsden v. Blundell, 20 Law J. (N. S.) Chanc. 104.

2. Motion-Stat. 13 & 14 Vict. c. 35-Reference to the Master as to debts.—A motion, under the 19th section of the 13 & 14 Vict. c. 35, for a reference to the Master to take an account of the debts of a deceased person, must be made in court. Harrold, In re, 20 Law J. (N. S.) Chanc. 168.

3. Motion for new trial after bill of exceptions tendered.—Where a bill of exceptions has been tendered, the party cannot afterwards move for a new trial upon a point which might have been (but was not) included in the bill of exceptions, without abandoning the bill of exceptions. Semble, that if the point could not have been included in the bill of exceptions, the motion for a new trial might have been made concurrently. Adams v. Andrews, 20 Law J. (N. S.) Q. B.

39.

4. New trial, time of moving for.-Where a party has obtained a rule nisi for a new trial by leave of the court after the expiration of

the first four days of term, but without giving notice within that period to the opposite party of his intention to move, and the opposite party has signed judgment without any notice of the motion, the court will not permit the rule to be made absolute if the objection is raised on showing cause. Quære, whether an application to set aside the judgment might not have been made promptly. Doe d. Whitty v. Carr, 20 Law J. (N. S.) Q. B. 83.

5. Notice of trial after injunction.-A town cause having been made a remanet, and then postponed by consent to the sittings after Hilary Term, 1849, further proceedings were stayed by an injunction obtained by the defendant on the 11th of January, 1849. The injunction was dissolved on the 7th of August, 1850: Held, that the plaintiff was not bound to give a fresh notice of trial for the sittings after Michaelmas Term. The Stockton and Darlington Railway Company v. Fox, 20 Law J. (N. S.) Exch. 96.

6. Stay of proceedings in error till security given for costs.Where a plaintiff in error, defendant below, died after a joinder in the Exchequer Chamber, that court stayed proceedings till security for costs should be given to the defendant in error, upon affidavits showing ground for believing that the plaintiff in error had died insolvent, and that his attorney was prosecuting the writ in error at his own risk, and for his own benefit. Haygarth v. Wilkinson, 12 Q. B. 851.

7. Trial-Right to begin.-A new trial will not be granted because a judge has wrongly ruled at nisi prius as to which party must begin, unless such ruling did clear and manifest injustice. Branford v. Freeman, 20 Law J. (N. S.) Exch. 36.

PRODUCTION OF DOCUMENTS.-Banking firm.-A defendant admitted that certain documents were in the possession of himself and W. C., his co-executor, and that others were in the possession of their solicitor, W. C. not being a party to the suit: Held, that an order for production could not be made against the defendant on such an admission. Morrell v. Wotten, 20 Law J. (N. S.) Chanc. 81.

PROMISSORY NOTE.-Joint and several payment-Pleading-Evidence.-An agreement between the payee and one of several makers of a joint and several promissory note, that the payee shall take another promissory note in satisfaction of the first, with payment of the note taken by the payee on such understanding, amounts to payment by the other makers of the joint and several note. A joint and several promissory note had been given by the defendant and K. to the plaintiffs. K. agreed with L. and the plaintiffs that the plaintiff should take L.'s promissory note in satisfaction of the defendant's liability on his joint and several note. The plaintiffs, having taken L.'s note on that understanding received payment of it from R., authorized by L. to pay it: Held, that, in an action on the first note, the above facts might be given in evidence under a plea alleging payment by the defendant. Thorne v. Smith, 20 Law J. (N. S.) C. B. 74.

VOL. XIV. NO. XXVII.-DIG.

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