1. An indictment for disobedience of an order of justices for payment of a church-rate, alleged, in prefatory allegations, that the rate was "duly made," "duly allowed," and that the defendant was "duly rated:"—Held, sufficient, without stating the facts which constituted the due making, &c., because this was matter of inducement only:-Held also, that as, on a sufficient complaint on oath by the churchwardens, the justices would have had jurisdiction to make the order, these allegations were unnecessary. Reg. v. Bidwell, 564 2. In such an indictment, it is not necessary

to aver that the churchwardens were authorized to collect and receive the rate when they demanded it, if it be averred that they were so at the time when the defendant refused and neglected to pay it, which is the offence; nor is it any valid objection to such an indictment, that, in stating the warrant to appear, it is alleged, that in the warrant, "it is recited as is therein recited," as enough of the warrant would be stated without mentioning the recital.

Ibid.

3. In such an indictment, an allegation that the justice made his warrant, whereby he did sum mon, convene, and require the defendant to appear, &c., sufficiently shows that the warrant was addressed to the defendant, and it is not necessary to aver in the indictment that the warrant was served a reasonable time before the day of appearance. Ibid.

4. It is also no objection that the order is not averred to have any date; neither is it that there is no averment that the rate was in force when the order was made, if it be averred that it continued in force at the time of the indictment. Ibid.

5. In such an indictment it is not necessary to set out the order verbatim. Ibid. 6. Form of indictment

7. A warrant of distress for church-rate, which does not specify the time at which the distress is to be sold, is bad; and the rescue of a distress, taken under such a warrant, is no 1001 offence. Reg. v. Williams,

COMMENCEMENT OF PROSECUTION. See NIGHT POACHING, 1.

COMMUNICATION (PRIVILEGED.)

See LIBEL, 1.

CONCEALMENT OF BIRTH.

A woman who was delivered of a child, which died soon after its birth, concurred with her paramour in endeavouring to conceal the birth. and he, in consequence of her persuasion, she remaining in bed, took the body and buried it in a field, intending thereby to conceal the birth-Held, that she could be convicted of endeavouring to conceal the birth, under the stat. 9 Geo. 4, c. 31, s. 14, and he of counselling, aiding, and abetting her in the offence, under sect. 31 of the same statute. Reg. v. Bird, 817

3.

Where stolen goods are found in a man's house, and his wife in his presence makes a statement exonerating him and criminating herself, semble, that, with respect to the admissibility of this statement in evidence against her, it may be a question whether the doctrine of presumed coercion does not apply. Ibid. 4. A statement made by a prisoner before suspicion attaches to him, and before search made, in order to account for his possession of property, which he is afterwards charged with having stolen, is admissible as evidence for him. Reg. v. Abraham, 530

Ibid.

5. Semble, that, before a statement made by a

prisoner in the presence of and duly signed by the committing magistrate, can be received in evidence against him, proof must be given that he was cautioned in the manner provided by the 11 & 12 Vict. c. 42, s. 18, dehors any declaration to that effect, contained in the caption of the statement itself. Reg. v. Higson, 769 6. In order to exclude evidence of a prisoner's confession, must appear affirmatively that some inducement to confess was held out to him, by or in the presence of some one having authority. Reg. v. Garner, 920 7. In such a case it does not turn on what may have been the precise words used, but in each case it is for the judge to consider, before he receives or rejects the evidence, whether the words used were such as to convey to the mind of the person addressed an intimation that it will be better for him to confess that he committed the crime, or worse for him if he does not. Ibid.

8. If a confession be received in evidence, it not appearing that any inducement had been held out, but, at a later period of the trial, it appear that such an inducement was held out before the making of the confession as would render it inadmissible, the judge will strike the evidence of the confession out of his notes, and, if there be no other evidence, direct an acquittal Ibid.

CONTRACT.

1. An auctioneer entered into an agreement on behalf of A. to sell certain premises to B., without having communicated to A. that B. was in treaty for such premises. A. had himself previously sold the premises to another party, and therefore could not fulfil the contract so made with B.; whereupon B. sued A. for nonfulfilment of his contract:-Held, that, under these circumstances, B. was not entitled to recover damages for the loss of his bargain. Tyrer v. King, 149 2. If a broker enter into a contract for an undisclosed principal, the latter may sue on such contract in his own name; and a rule of the Exchange on which the contract was made, which declares that a contract made by a broker for an undisclosed principal shall be regarded as the contract of the broker only, does not control this right, even although the principal was cognisant of such rule. Humphrey v. Lucas, 152

8. The plaintiffs declared on a contract by the defendants to purchase certain iron of the plaintiffs, alleging a promise by the defendants, "that, if the delivery of the said iron should not be required by the defendants on or before the 30th day of April, 1845, the said iron was to be paid for by the defendants on the day and year last aforesaid;" and averring that the plaintiffs had always been ready and willing to deliver the said

4.

iron in terms of the contract; that the 30th of April was past before the commencement of the suit; but that the defendants had not paid for the iron :-Held, first, that, under the averment of readiness and willingness to deliver the iron, the plaintiffs were not bound to show that any specific iron had been appropriated by them for that purpose; and, secondly, that the plaintiffs were entitled to recover on the above contract the full price of the iron, and not merely the damages which they had sustained by the defendants' breach 153 of contract. Dunlop v. Grote,

1st. An endorsement, written and signed after the agreement to which it was annexed, purported to guaranty the performance of the covenants and conditions of that agreement, but there was evidence to show that the guarantee was from the first agreed on between the parties:-Held, that the agreement and subsequent endorsement formed but one entire contract, and that, therefore, the latter did not require a separate consideration.

2dly. It being part of the agreement that the plaintiff should pay the first instalment of a certain sum on a given day :-Held, that a verbal agreement to postpone the day was sufficient.

3dly. It being one of the covenants in the agreement that the landlord of a certain publichouse would accept the plaintiff as tenant, the declaration alleged that the landlord had refused so to accept him:-Held, that the plaintiff was not required to prove that the individual who acted as the landlord was the real owner of the premises or his authorized agent. Coldham v. Showler,

261

5. In assumpsit for the price of, and the setting up of, a "fourteen horse-power steam-engine," "the last instalment to be paid two months after its completion," it appeared that the degree of power in the engine delivered was not equal to the power mentioned in the contract, and improvements and alterations were made by the plaintiff from time to time till the action was brought :-Held, 1st, that common counts would lie; 2dly, that the term "compietion" did not apply to the mere making of improvements and alterations; 3dly, that the degree of power of the engine was a material part of the contract. Parsons v. Saxter, 266 6. Where H. contracts to furnish R. with a reasona e quantity of work, at a fixed rate of wages, and R. is bound not to work for any other person or persons for a period of seven years-Held that there is a mutuality of contract implied, and that H. would be bound to furnish work for the whole period of seven years. Hartley v. Cummings,

433

7. In an action for work and labour, where there had been a breach of contract on the part of the plaintiff :-Held, that, under the common counts, he could not recover a quan

8. A letter, setting forth the terms of a contract contained in another letter between the same

641

warrant to the high bailiff of S., is not responsible for acts afterwards done under colour of such warrant. Smith v. Pritchard,

COUNTY PALATINE.

699

10. Where a thing is to be done in a reasonable time, the reasonableness of the time is a question wholly for the jury. Ibid.

CONVICTION (PROOF OF).

See EVIDENCE, 9, 13.

COPYRIGHT.

i. In an action for infringement of copyright in a foreign work, there was a contemponeous publication abroad and in this country: -Held, that, notwithstanding, plaintiff was entitled to recover. Cocks v. Purday, 269

Lancaster was sued in trover for goods alleged to have been wrongfully seized and sold under an execution; and the defence was, that the plaintiff claimed the goods by virtue of an assignment which was void as against creditors:-Held, that the sheriff could take advantage of this defence without, as in ordinary cases, showing his authority by proof of the writ, and that proof of the mandate to him from the Chancellor of the county was sufficient for that purpose. Ogden v. Hesketh,

COURT (COUNTY).

See COUNTY COURT.

COVERTURE.

772

right, by merely publishing a work, printed and caused to be printed by others, knowledge of the copyright so infringed on must be proved. Leader v. Strange, 1010

CORN TRADE.

See CUSTOM OF TRADE. CORPORATE TOWN. See TRIAL.

CORPORATION.

See FALSE ANSWER.

COSTS.

See ASSAULT, 6.

381

1. The stat. 43 Eliz. c. 6, s. 2, which authorizes the judge to grant a certificate to deprive the plaintiff of costs where less than 408. damages are recovered, is still in force as to actions on promises, e. g. in actions for breach of promise of marriage. Townsend v. Sims, 2. After nonsuit in ejectment, where the defendant did not appear, a judge at Nisi Prius cannot certify for the costs of a witness for lessor of plaintiff who attends to prove handwriting to a document, though the order of a judge at chambers made under Reg. Gen. Hil., 4 Will. 4, Part. 1, Rule 30, has ordered those costs to be paid "whatever the result of the cause." Doe d. Meredith v. Sapsford,

COUNSEL.

See ARREST.-QUEEN'S COUNSEL.

COUNTY COURT.

See NOTICE OF ACTION.

30

The high bailiff of L., who has transferred a

3. On this issue, proof that the defendant and the person alleged in the plea to be her husband have cohabited together as husband and wife for four years, is some evidence of the marriage, which the judge will leave to the jury. Ibid. 4. On a plea of coverture, in order to prove the defendant's husband alive, a witness stated that he knew the handwriting of a person of the same name, and had corresponded with him, and had received a letter from him since the action, and that he knew that person to be the same person who was the husband of the defendant, as he had seen the marriage register of the defendant (of which he produced an examined copy), and the signature to it was of the handwriting of his correspondent:-Held, that this evidence was receivable, although the marriage register was not produced on the trial. Sayer v. Glossof, 5. In an action on a promissory note, in which the defendant pleads coverture, and the plaintiff takes issue on that plea, the defendant has the right to begin; although, as the note dia not bear interest on the face of it, the plaintiff claimed interest in the shape of damages. Cannam v. Farmer, 746

694

6. On these pleadings it lies on the defendant affirmatively to prove the coverture; and if she does so, it is no answer to the defence, that,

CUSTOM-HOUSE AGENT.

at the time of the making of the note, she represented herself to be a widow. Ibid.

CROSS-EXAMINATION.

See EVIDENCE, 29.

1. The mere fact of counsel, whilst cross-examining a witness, putting a document into the witness's hand, and asking him whether it is in his handwriting, does not entitle the opposite counsel to see such document. But the opposite counsel has a right to see the document before the cross-examining counsel proceeds to found any question on the document itself. Cope v. Thames Haven Dock Company, 757 2. On the trial of a prisoner, his counsel may ask a witness for the prosecution whether he did not make a certain statement whilst under cross-examination before the magistrates, although the depositions contain no note of such cross-examination. Reg. v. Curtis, 763 3. Witnesses were examined before a magistrate

on a charge of felony, and minntes of their evidence taken down; these minutes were sent to the office of the magistrate's clerk, and his clerk, Mr. T., drew up depositions from the minutes and from questions he asked the witnesses:-Held, that, on cross-examination,

994

1. On a case reserved for the opinion of the judges, counsel can only argue the question stated in the case, upon the facts stated in the case, and cannot go beyond that; but if, in the statement of any such case, any material fact has been omitted, the counsel should, before the time of the argument, apply to the judge who tried the case, to have such fact inserted. Reg. v. Smith, 882

2. On a Crown case reserved, the judges will hear objections to the indictment, if they appear on the case stated. Reg. v. Webb, 933 3. Recorders of boroughs have power to reserve cases for the opinion of the judges, under the stat. 11 & 12 Vict. c. 78. Reg. v. Masters, 930

CUSTOM-HOUSE AGENT. Where a custom-house agent entered into a custom-house bond, with respect to goods consigned to him by the plaintiff, and claimed a percentage on the sum mentioned in the bond, and no contract or usage for the payment of such was proved :-Held, that the plaintiff was VOL. II.-85

(ACTION FOR).

See NEGLIGENCE, 1, 2.

DEED.

See EVIDENCE, 10, 11.

DEER-KEEPER.

31

Pulling a deer-keeper to the ground, and holding him there while another person escapes, is not a beating of the deer-keeper within the stat. 7 & 8 Geo 4, c. 29, s. 29. A mere battery is not sufficient to come within this enactment. There must be a beating in the popular sense of the word. Reg. v. Hale, 326

DELIVERY OF GAOL.
See GAOL DELIVERY.
DELIVERY OF GOODS.

A. gave B. a written order for ten firkins of butter, which were to be sent to A. by a particular carrier. B. sent by that carrier twelve firkins instead of ten. A. refused to receive more than ten firkins; and, as the carrier would not deliver less than the whole number sent, he refused to take the butter at all. He, however, drew a sample from one of the firkins:-Held, that, under these circumstances, there had been neither an actual nor a constructive delivery of the butter to A., and consequently no acceptance thereof by him,

3. A caption of a deposition, which was read in evidence against a defendant in a case of false pretence, stated that it was taken on a charge of "obtaining money and other valuable security for money from M. R., then and there being the money of W. S. R.; and the said valuable security for money being then and there the property of one C. R.:-Held to be no objection to its being received in evidence that it did not state that the charge was, that the money was unlawfully obtained. Reg. v. Langbridge, 975

DEPOSITION TAKEN UNDER A JUDGE'S ORDER.

To render a deposition, taken before the Master, under a judge's order, admissible, on the ground that the witness is abroad, evidence must be given to satisfy the judge that the witness is out of the jurisdiction of the Court; and proof by a person that he had prepared the witness's outfit for Australia, and had seen him start by the Blackwall Railway to go on board the "Asia," which lay at Gravesend, bound for Australia, and that he had received a letter from the witness from Sheerness, and another from Plymouth, at both of which places the " Asia," had put in, was held sufficient for this purpose, as being evidence that his voyage had commenced. Varicas v. French, 1008

DESTRUCTIVE MATTER.

DETINUE. 1. Where defendant, after signing an acknowledgment that certain scrip had been “lodged in his hands" by plaintiff, and was to be re-delivered to him on request, wrongfully detained the scrip for a considerable time, so that its market value had been much diminished, and did not re-deliver it until after action brought: -Held, that the action was rightly brought in detinue, as the term "lodged" implied that the identical scrip was to be returned; and also, that plaintiff was entitled to more than nominal damages.

2.

On the second point a bill of exceptions was tendered.

But where the plaintiff suffered loss by the detention, in this, that he was thereby deprived of the means of paying up his deposits, which would have entitled him to claim an allotment of 100 other shares-Held, that the damage was too remote, and plaintiff could not recover. Archer v. Williams,

26

In detinue by the executor of N. against M., a banker, for a policy of insurance on the life of S., M. pleaded that the policy was not the property of N., and also that N. had fraudulently permitted S. to hold the policy and represent that he was entitled to the money secured by it, and that he did so represent to M., who lent him money on it. Replication, denying the fraudulent permission. S. had insured his own life in 1831, and by deed assigned the policy to N. in 1832, who gave notice of the assignment to the office, and paid all the premiums afterward. S. retained the policy till he deposited it with M. on a loan of money in 1843:-Held, first, that the property in the policy passed to N. by the deed of 1831, although he had no possession of the policy and, secondly, that though N. had been guilty of negligence in allowing S. to retain the policy, the defendant had not proved his special plea, unless the jury were satisfied that N. intended that S. should borrow money of some one, and left the policy in S.'s hands in order that he might cheat some one by borrowing money on it; and the judge would not ask the jury what they would have found if the word "fraudulently" had not been inserted in the plea. Neale v. Molineux, 672

DISTRESS.

6, 7, 10, 11.

1. Semble, that an animal doing damage to the freehold is doing such a damage as will jus tify the distraining of the animal damage feasant, provided that the animal be thes actually doing the damage, or, having done some damage, it be necessary to detain the animal to prevent its doing further damage.

But if the owner of the freehold seize an ani