principle than that recognised by the court in the two first-mentioned cases, and that the other cases were all distinguishable. He cited 3 Black. Com. 26; Com. Dig. tit. "Nuisance"; Ellis v. The Sheffield Gas Consumers' Company, 22 L. T. Rep. 84; Burgess v. Gray, 1 C. B. 578, note (a). Bagley, in reply.

PARKE, B.-His Lordship referred to the case of Dodd v. Holme, 1 A. & E. 493. The ruling of the judge cannot be supported, and the case must be sent back for a new trial. The judge said that the plaintiff had no right to support-then he had no remedy; and the action fails. There can be no right to bring an action, unless the plaintiff can show something that gives him a right to the support of the adjoining soil.

The present case goes entirely on the supposed obligation to support the adjoining house whilst works are in operation. I am of opinion that in this case there is no such right, and I do not think the defendant is responsible. Then the judge says trover will lie for the bricks. I am clearly of opinion that no such action will lie, unless the defendant, or some one by his desire, took them away; and that is expressly negatived by the case.

PLATT, B. concurred.

MARTIN, B.--I am of the same opinion. The person committing the injury is the person who is responsible.

BUSINESS.

PAGE . THE AGRICULTURIST INSURANCE COMPANY. - A Co. C. appeal. In answer to one of the questions of the company on effecting the plaintiff's insurance, he had made an untrue statement within his own knowledge. A jury had tried the case and given a verdict for the plaintiff: this was an appeal for misdirection. Bramwell appeared for the appelCOURT said it was an untrue statement made by the plaintiff to the defendants, and a fraud upon them, and the policy did Judgment of nonsuit.

lants, the defendants. J. Addison, contrà, called upon, The

not attach.

BAIL COURT.

Wednesday, May 10. EDWARDS . DAVIES. Arbitration-Neglect to enlarge time-Discretion of the Court.

The 3 & 4 Will. 4, c. 42, s. 39, which enacts that "the court, or any judge thereof, may from time to time enlarge the time for any such arbitrator making his award," applies equally to a case where the arbitrator has himself power to enlarge the time for making his award, but neglects to enlarge it, as to the case where he has no such power:

The Court, in exercising its discretion in enlarging the time for an arbitrator to make his award, will be guided by the particular circumstances of the case, and will not enlarge it if by so doing it will put either of the parties in a position of disadvantage. Where, therefore, an arbitrator allowed the time for making his award to expire without enlarging it, and afterwards the plaintiff died, and an application was subsequently made to this court for an enlargement, which the defendant resisted on the ground that, should the award be in his favour, he would, as against the plaintiff's executor, have no satisfactory means of enforcing it, this Court refused the application.

This was a rule calling upon the defendant to show cause why the time for making the award herein should not be enlarged to Trinity Term next. It appeared that the plaintiff and defendant heretofore had carried on, as partners, the profession of attorneys at Southampton, but under no deed of copartnership. Subsequently a dissolution of partnership took place, likewise without deed. Afterwards the plaintiff brought the present action, and, upon its coming on for trial, it was referred, together with all matters in difference. By the order of reference the arbitrator was to make his award in August, with power to enlarge the time. The parties met in June 1852, and part of the evidence was gone into, when, as the plaintiff was about to be called as a witness, a suggestion was made that the defendant should make an offer of a sum in full, and so put an end to the litigation altogether. It appeared that one of the incidents of the case standing over was that the plaintiff should send an account of all moneys received by him from certain dates. The arbitrator never enlarged the

time for making his award. The accounts were not delivered till November, and then, as it was contended, not in such a form as was required. In Jan. 1853 it was discovered that the time for making the award had expired, and a form of consent that the arbitrator's powers should stand was sent to each party for his signature. No consent was given by the defendant, nor did the arbitrator further proceed in the matter. In June 1853 the plaintiff died, and his will, appointing his wife executrix, was duly proved. The present rule was obtained under the authority of the 3 & 4 Will. 4, c. 42, s. 39, which enacts that the court, or any judge thereof, may from time to time enlarge the time for any such arbitrator making his award."

Barstow showed cause (6th May), and contended, first, that the clause in the Act applies only to cases where the arbitrator himself has no power to enlarge the time for making his award: (Doe d. Jones v. Powell, 7 Dowl. 539; Parbery v. Newnham, 7 M. & W. 378; Lambert v. Hutchinson, 2 M. & Gr. 858; Leslie v. Richardson, 6 C. B. 378; Andrews v. Eaton, 7 Ex. 221.) Secondly, that the death of the plaintiff so altered the position of the parties that the court would not interfere, since it could not give the defendant those equal rights with the plaintiff which he ought to possess; for, should there be an award in his favour, he would be unable to avail himself of it if the plaintiff had left no available assets: (Lewin v. Holbrook, 11 M. & W. 110.)

Borill, in support of the rule, argued, first, that it is now well established that the power of the court to enlarge is irrespective of whether the arbitrator has the power or not: (Doe d. Jones v. Powell, 7 Dowl. 539; Parbery v. Newnham, 7 M. & W. 378; Leslie v. Richardson, 6 C. B. 378.) And, secondly, that the death of the plaintiff is immaterial, particularly as it clearly would have been no objection had he died pending the reference itself: (Clarke v. Crofts, 4 Bing. 143; M'Dougall v. Robertson, 2 Y. & J. 11; Bowen v. Williams, 3 Ex. 93; Ex parte Hare, 6 Bing. N. C. Cur. adv. vult.

158.

in the argument on the other side, on the construction of the mere words, without reference to convenience, there can be no doubt that in their ordinary understanding they are well capable of this construction, and that it is by far the most convenient and most in advancement of the general object of the provisions of the statute; and in this court, sitting alone, I think

ought to act upon the judgment of

that full court, the latest in which the point in question has been the express point for decision. This raises the second question; and it was not denied that, assuming the power to exist in the court, the exercise of it was a matter of discretion, to be regulated in each particular case by a consideration of all the circumstances. In that consideration I know of no rule which ought to be more steadily attended to than the taking care that upon the enlargement of the time and the reconstitution of the arbitrator's power, both parties shall stand upon an equal footing. Now, the death of one party, though not in all cases necessarily inconsistent with this, and therefore not alone, I think, a circumstance which ought in all cases to determine the decision, yet raises a strong presumption against the enlargement, and, coupled with the subject-matter of the reference and the lapse of time, may be conclusive. In nearly all cases it creates an inequality as to the remedy for enforcing the award. In case it be made in favour of the survivor, the estate may not be solvent, and it must be very questionable whether an executor would be liable to an attachment. Supposing, moreover, the survivor to be the party applying for the enlargement, there would be great difficulty in compelling the personal representative of the deceased party to come in. There is, therefore, necessarily, in a majority of cases, a want of mutuality, which would make the court slow to interfere. But here, in addition, the parties were partners, and the partnership accounts and the separate payments and receipts of each partner were to be inquired into in the reference. The plaintiff had not been, but was about, as it was said, to be examined, and, of course, cross-examined. The defendant charges that he had received large sums of money for the partnership funds, on account of them, and not brought them into any account. It is true that the defendant swears last, and that there may be exaggeration or entire want of truth in this statement; but I have no right to presume this, when, by doing so, I may lay one party under a great hardship and difficulty of proof; and, by declining to do so, I only remit both to the ordinary tribunals. No case was cited in which, under such circumstances, any court has compelled an unwilling party to continue a reference; and some where, as in Lewin v. Holbrook, 11 M. & W. 110, the judges have expressed opinions the other way. Upon the whole, I think the safest course is to discharge the rule.

REPORTS.

Rule discharged.

Cases decided in the County Courts. ESSEX.

His LORDSHIP to-day gave judgment as follows:This was a rule calling upon the defendant Davies to show cause why the time for making an award should not be enlarged to the first day of Trinity Term. The arbitrator was appointed under an order of Nisi Prius; his award was to be made on or before the 24th Aug. 1852, or such ulterior day as he might from time to time indorse on the order. Some meetings were held, and then an adjournment took place with a view to an amicable settlement by the parties themselves. The arbitrator inadvertently allowed the 24th Aug. to pass without enlarging his time. In the month of June 1853 the plaintiff died, leaving a will, by which he constituted his wife his personal representative. By the order of reference the award was to be delivered to the personal representatives of either party who should die before the making of the award, The arbitrator presented to the plaintiff and defendant, during the lives of both, a form of consent for the enlargement of the time, which the defendant, however, has refused to sign; and the interval of time, though long between the 24th Aug. 1852 to the moving for this rule, is upon the whole so accounted for that the rule cannot be disposed of on the ground (Before DAVID CATO MACRAE, Esq., Deputy Judge.) of delay; nor, indeed, has it been resisted on that ground. But it was contended, first, that the court had no power by the 3 & 4 Will. 4, c. 42, s. 39, to make the enlargement required; and, secondly, that at all events it could not make it in the exercise of its discretion under the circumstances of the case. The first question, that on jurisdiction, depends on this whether the provision of the statute extends to cases in which by the order or rule of court the arbitrator himself has power to enlarge the time, but refuses or neglects to do so. Upon this point several cases were cited, not agreeing with each other; but in the case of Leslie v. Richardson, 6 C. B. 378, the matter was fully considered; and after time taken the Court of C. P. decided that under that section it might enlarge the time where the arbitrator had had the power, but inadvertently omitted to exercise it; and also that the power might be exercised after the time originally limited had expired. Whatever force there may be

CHELMSFORD, June, 1854.

FRENCH v. MARSH.

Fixtures-Right of removal by tenant.

A tenant has only a right to remove fixtures erected by himself for the purposes of ornament or convenience, slightly affixed or fastened to the freehold. This was a plaint for the recovery of 17. 5s., damage done to premises belonging to plaintiff, lately occupied by the defendant, by the removal of a fence and shed, and by cutting down trees growing thereon. Defendant was tenant of the plaintiff, and during his tenancy cut down on the premises a pale fence, a hovel, and an apple-tree. With regard to the apple-tree, the defendant did not appear to contend that he was justified in removing it, but alleged that he built the hovel and fence with his own materials. This was denied by the plaintiff, who alleged that the materials were his; I think, however, it is not necessary to determine this fact, for it appears to me that the hovel and the pale fence were so substantially implanted and affixed in the soil that the tenant was not at liberty to remove them, assuming, for the sake of argument, that the materials were his own.

This is an ordinary case of landlord and tenant, and a tenant in such case has only a right to remove fixtures erected by himself, for the purposes of ornament or convenience, slightly affixed or fastened to the freehold. It is most difficult in these cases to decide what is the degree of affixing which will leave the tenant at liberty to remove, and it is impossible to reconcile all the decisions on the subject; but, to the best of my judgment, these were so affixed that even though they belonged to the tenant he could not remove them, and I think the necessity of sawing the posts off shows the substantial affixing of those materials to the soil. Tenants in such a case, if the materials really are their own, should protect themselves by an express agreement and understanding with their landlord that they should be at liberty to remove them. I am, therefore, of opinion that there should be judgment for the plaintiff.

CHESHIRE.

CONGLETON, June 17, 1854. (Before JOSEPH ST. JOHN YATES, Esq.) WARRINGTON v. CHARLES HENRY COBBE. Statute of Limitations-Part payment.

Pickford for the plaintiff. Cooper for the defendant.

It appeared that the debt was contracted so far back as 1844, but according to the plaintiff's evidence, the defendant's wife had, some few months ago, paid-or rather requested the plaintiff to retain the sum of 4s to which her husband was entitled for tolling the bell at Mrs. Walworth's funeral, in part payment of the old debt. It further appeared that the defendant had taken the benefit of the Insolvent Act in 1847; and the defence now set up was, that the debt was barred by the Statute of Limitations, that the defendant was under protection of the Insolvent Court, and that his wife was not the proper agent to revive the debt by paying a portion of it, and that unless it was proved that the money was paid with the precise sanction of the husband, as part payment of the debt, it could not be held that he was liable for the payment of the whole, as he had been discharged from payment of it by a final order.

Pickford submitted that the plea, as to the protection of the defendant under the final order, was bad, unless the plaintiff's name and debt were inserted in the schedule, and it was not inserted in that document.

His HONOUR held that the debt was not barred if Mr. Warrington's name as creditor was not inserted in the defendant's schedule, for the final order only protected him from the creditors who were named in the schedule, and as the payment of the 4s. by Cobbe's wife was a revival of the debt, gave judgment for the plaintiff, with costs.

be paid at the expiration of six months from testatrix's decease, and the annuitant dying before that period, her representatives could not claim apportionment, as the annuity never vested, and also that there could be no apportionment under the Act 5 & 6 Will. 4, c. 22, as the fund did not continue after the annuitant's death, and cited the Queen's Case (20, L. J. 309, Q. B.) Cooper, in reply, asserted that the Statute of Limitations did not apply, as this was the case of an express trust recognised by the Court of Chancery, and that no plea of the statute could be allowed in that court, especially as the defendant was not in a position to claim until very recently and as to the question of apportionment, that the 2nd section of the Act of Will. 4, provided for payments of every description due at fixed periods.

His HONOUR reserved his judgment, which was now delivered as follows:

This action was brought to recover the sum of 261., which the plaintiff claimed under the following circumstances: Charles Lockett, deceased, by his will, inter alia, gave, devised, and bequeathed all, the rest, the remainder and residue of his estate and effects, both real and personal, whatsoever, and wheresoever, and of what nature, kind, or quality soever, and whether in posses sion, reversion, remainder or expectancy unto his friends, Charles Wallworth and Samuel Boyse, both of Congleton aforesaid, silk throwsters, and to the survivor of them, his heirs, executors, and assigns, for ever, or for and during all such estate and interest, as he then and therein respectively, upon the several uses, trusts, intents, and purposes, following, namely, upon trust that the said Charles Wallworth and Samuel Boyse, or the survivor of them, his heirs or executors, did or should stand seised and possessed of all his said real and personal estate and effects, in trust, firstly, to place out the clear sum of 2,000l. on mortgage, and pay and apply the interest thereof, namely the clear yearly sum of 100l.

Cooper appeared for the plaintiff.
Pickford for the defendant.

The facts were briefly as follow:-Charles Lockett, deceased, formerly of Congleton, by his will directed Charles Wallworth and Samuel Boyse to invest 2,000l. out of his personal estate, and to pay the interest, fixed at 100%, to the testator's wife, Jane, for life, with a direction for the half-yearly payment thereof-the first payment to be made at the end of six months from testator's decease. The will also provided that, as soon as this life-interest determined, the 2,000l. should sink into the personalty. The trustees and Jane Lockett were named executors; but the will was proved by the trustees alone. Jane Lockett died on the 2nd April, 1837, three months after testator's decease; and the plaintiff, her grandson, took out letters of administration to her estate, and brought this action for recovery of 254, a quarter's proportion of the annuity. Charles Wallworth died on the 29th September, 1845.

Pickford, for the defendant objected to the jurisdiction of the court, on the ground that the subject matter of the claim was for a trust, and not for a legacy, ander 9 & 10 Vict. c. 95 s. 65, urging that this was the case of a trust, requiring the intervention of trustees, to invest a sum of money, and pay a particular interest, with a direction as to the subsequent disposal. He referred to Pears v. Wilson (20 L. J., N. S., 381, Ex.), and his Honour's judgment, last November, in Sanders v. Wallworth.

Cooper maintained that the County Courts Act empowered the judge to deal with all cases where a bequest was made; and that, as the Superior Courts, previously to that Act, had no jurisdiction over any legacy, the

use of his dear wife Jane, for her natural life; and he directed such interest to be paid to his said wife half-yearly, and the first payment to be made at the end of six calendar months next after his decease. And he further charged the annual sum of 47. on the dwellinghouse and premises in the occupation of his son Thomas, which he directed his said trustees, or the survivor of them, to raise by distress in the usual way, and pay the same half-yearly to his wife for and during her natural life; and by a subsequent clause the testator directed that upon the decease of his wife the said principal moneys of 2,000l. should sink into and become part of his residuary estate, and be disposed of as was thereinafter mentioned. The testator died January 2, 1837, and his will was duly proved on the 2nd of March then following. Jane Lockett, his widow, died on the 2nd of April in the same year, and his will was duly proved on the 2nd of October then following; but both his executors having since died, administration de bonis non was, on the 22nd of December last, granted to the plaintiff, who thereupon instituted proceedings under 9 & 10 Vict. c. 95, s. 65, to recover from the defendant, who is the surviving executor of the late Charles Lockett, the testator, a proportionate part of the annuities of 100l. and 47., so bequeathed by him to his widow for her life, in respect of the period which elapsed between their respective deaths-namely, for the period between January 2nd, 1837, and April 2nd in the same year. In addition to these facts, which were all uncontradicted, the defendant admitted that the testator had left assets applicable to the satisfaction of the plaintiff's demand, in case it should be sustained in law. But he contended-1st, that the subject-matter of this dispute was not a legacy within the meaning of the section of the County Courts

Act, upon which the plaintiff relied; 2ndly, if so, it was not apportionable; and 3rdly, that at all events the remedy was barred by the Statute of Limitations. Upon the question of jurisdiction I am free to admit that I am not without doubt upon the subject. An annuity created by will is no doubt a legacy in the ordinary and more extended signification of the word, and, as such, is subject to duty and to many other incidents in common with legacies of sums in gross. But when, by the terms of the bequest, the exercise of a discretion is made imperative upon the executors, or duties are required to be performed by them other than or beyond what are incidental to their office, it may be doubted whether the subject-matter of the bequest (whether it be an annuity or a sum in gross) is a legacy within the meaning of the section referred to. And this seems to be the view adopted by the Court of Exchequer (Pears v. Wilson, 6 Ex. 833); but since Fuller's case (2 E. & B., 575, per Campbell, C.J.), a doubt has been thrown upon the distinction. But even admitting it, I am not prepared to say, with Mr. Pickford, that because a testator uses the words trust and trustees, and because he empowered his executors either to pay an annuity to his widow or to apply it to her use, it not being shown that she was in a position to render the intervention of trustees necessary, the jurisdiction of this court is, ipso facto, ousted. On the contrary, while I admit that the question is not free from doubt, still these doubts are not such as in my opinion to justify me in refusing to proceed to the merits of the case. And I am the more disposed to adopt this course as, by so doing, both parties will be placed in a position to obtain from the court above a final decision upon the whole matter in dispute without the expenses and delay of coming here again to try the facts. therefore now come to what is, in fact, the real point at issue, namely, whether the statute 4 & 5 Will. 4, c. 22, extends to an annuity terminable upon the death of the annuitant. By the second section of the statute in question, it is enacted, inter alia, that all annuities and periodical payments created by any will, sball come into operation after 16th June, 1834, shall be apportioned in such manner that, on the death or other determination of the interest of any person entitled thereto, he or his representatives shall be entitled to a proportion of such annuities or periodical payments according to the time which shall have elapsed from the commencement or last period of payment up to and including the day of the death, or other determination of such person's interest." And so far at least there is nothing inconsistent with the plaintiff's claim. But the Legislature goes on to provide when and under what circumstances the apportionment part shall be recoverable, which it does in words to the following effect, viz.

that the annuitant, his executors, administrators, and assigns, shall be entitled to recover such apportioned part "when the entire portion of which such apportioned part shall form part shall become due and payable, and not before." And, therefore, the inference to be drawn is, that the framer of the act contemplated those cases only in which the subject to be apportioned should continue to exist in favour of some one after the termination of the interest of the person claiming the benefit of the apportionment. In fact the very word apportionment implies division or distribution, and supposes an existing fund to be divided amongst several claimants in succession or otherwise according to their respective rights. In the present instance the payment sought to be apportioned, viz., that for the halfyear ending 2nd July, 1837, never became due and payable to any person whomsoever, for the annuity ceased by the death of the annuitant on the previous 2nd of April. So that not only was there no person between whom and his representatives the payment in question could be apportioned, but the time at which any apportioned part would be recoverable under the statute could never arrive. And this is the construction which the statute has received in the recent case of Lowndes v. Lord Stamford and Warrington (a case of some little notoriety in this county), when the Lord Chief Justice, in delivering the judgment of the court, says,

"the language of the statute clearly contemplates a case where the party who has to pay will have to pay the whole period to some one, and not a case where the payment ceases with the determination of the interest of the person claiming to receive the apportionment, and where the entire portion of which the apportionment forms part never does become due and payable to any body. The judgment will, therefore, be entered for the defendant, and it becomes unnecessary that I should revert to the defendant's remaining point. With respect to the Queen Dowager's case, quoted by Mr. Pickford, I will merely observe, that although at first sight it would appear that it had, on examination of the facts, it has clearly no bearing on the question here in issue; for if the learned gentleman will direct his attention to the facts of the case he will see that the annuity which was then in question was created by deed executed about two years before the Apportionment Act came into operation; so that the decision in

that case has no bearing upon the matter here under discussion.

Pickford asked for the costs, Mch were granted, and stated that he felt some difficulty as to raising the question of jurisdiction, decided adversely to the defendant, as the judgment on the other point was in his

favour.

His HONOUR stated that, if Cooper thought proper to appeal, the question of jurisdiction might be then raised by the defendant.

Cooper assented, and Pickford stated that this had been done in the case of Fuller v. Mackay, on behalf of the appellant.

Cooper then stated in writing his intention to appeal.

GLAMORGANSHIRE.

June 14.

(Before THOMAS FALCONER, Esq., Judge.)
ROBERT W. BEER v. EDWARD SMYTH.

Master and servant-Action for wrongful dismissal
Ground of dismissal.

To an action by a servant for a wrongful dismissal, the master may, as a defence, give proof of acts of misconduct not known to the latter at the time of dis

missal.

Tripp for plaintiff. Simons for defendant.

His HONOUR said, in December, 1853, the plaintiff engaged himself as an assistant draper to the defendant, at the rate of 30l. per annum, for three months, and for the following three months at the rate of 351. a year, and to have one month's notice on leaving. He now sued for an unpaid balance of wages alleged to be due to him. In February he went home on account of illness. Afterwards he received this letter from the defendant: "Swansea, March 2nd, 1854. Sir,-As your health is not very good at present, and in some respects you do not suit me, and as you require an advance of salary at the expiration of the current quarter, which I cannot afford to give, I have thought it best to acquaint you that I shall not require your services again. I have not doubted your ability to get the salary you wish, and as the season is now just at hand when assistants will be wanted, you will have no difficulty in finding situations at a higher salary. When you come to town I will pay you the amount of salary due, or if you prefer, I will remit it to you through the post. Should you wish to return and finish up the quarter (if your health permits) you can do so. I think to do without a young man for some time until the summer trade commences, for I expect business will be dull for a few weeks. I hope your severe cold and deafness will soon pass off; no doubt the change of air has been advantageous to you. I am, &c., Edward Smith, To R. W. Beer, Sea-side, Llanelly." No misconduct is all ged in this letter for the dismissal of the plaintiff. It appeared, however, by the admission of the plaintiff himself that in February he asked leave to go out to a pic-nic. He said he did not himself ask leave for the apprentice and two other hands, but they had leave and they went with him. At half-past twelve at night, but according to the statement of the defendant (who sat up for them until one o'clock in the morning), after one o'clock in the morning, they came home, and finding the house closed they passed through the adjoining premises, with the assent of the persons there, and having got over a wall and obtained a ladder, they got in through a window into the shop, and slept in the shop until the morning. Nothing was told to Mr. Smyth of this proceeding at the time, and the difficulty in this case is this: The defendant, Mr. Smyth, did not find out, until late in the evening before the trial of this action, of this occurrence, and the question has been argued whether these facts, which prove most culpable misconduct on the part of the plaintiff, and such a gross breach of duty, on his part, as would have been sufficient to authorise his immediate dismissal, can now be set up as an answer to this action. The defendant did not make the conduct of the plaintiff the reason for the nonpayment of the arrears, for he did not know of the misconduct of the plaintiff until not merely after his refusal to pay the arrears, but also not until the evening before the trial of this action. In the case of Ridgway v. The Hungerford Market Company (3 Ad. & E. 171), Lord Denman desired the jury to say, whether the fact of the plaintiff having entered a certain protest on the minutes of the proceedings against his own dismissal justified his dismissal without notice; and it was found "that the defendants were justified in dismissing the plaintiff after his entry of the protest." In the argument on this case it was asked "Suppose a master, in ignorance of misconduct, dismisses a servant, can such misconduct be set up as determining a contract which was deliberately determined on another ground?" Lord Denman remarked, in the present case the misconduct was known, and we cannot say the

In

But

reason of dismissal, nor can we inquire as to their motives; if a sufficient cause of dismissal existed they had a right to rely on it." That learned judge also remarked, "It is unnecessary to discuss how it would be if the master, at the time of the dismissal, had no knowledge of the fact which was to justify it, yet I think the justification would be good even if the fact existing at the time was not known to the master." the case of Cussons v. Skinner (15 L. J. 347, Ex.; and 11 M. & W. 161), the jury were told, that if the dismissal were without any of the causes on the record, then the plaintiff was entitled to damages for the breach of contract. Baron Park afterwards said "it would be necessary for the defendants who justify the discharge to show that, at the time when the discharge took place, in January, 1841, they knew at least of the act of misconduct." In the case of Mercer v. Whall (5 Q. B. 451), Lord Deninan left it to the jury to say, first, whether any acts of misconduct were proved; and secondly, whether they were such breaches of duty as to warrant the defendant in dismissing the plaintiff ?a mode of putting his last question to the jury which Mr. Justice Pattison thought to be too favourable to the defendant. It was afterwards contended that, in support of certain of the pleas, it ought to have been proved that the defendant, at the time when he dismissed the plaintiff, had notice of the matters charged against the plaintiff. Lord Denman, in this case, referring to the decision in Ridgeway v. The Hungerford Market Company, said, "that case is right, for if good ground of dismissal existed, the plaintiff suffered no wrong from the dismissal from not having been accused of it. when a plea embodies the master's knowledge with the cause of dismissal, that knowledge becomes a part of the description of the offence, and might mislead in material points by directing the plaintiff's attention to an entirely different set of facts." Lastly. in the case of Spotswood v. Barrow (19 L. J. 226, Ex.), the pleas alleged-disobedience of reasonable orders, the wrongful appropriation of money, and threats of injury of the defendant in his trade. The jury found that these three facts were proved, but that the defendant did not dismiss the plaintiff for these causes. Mr. Justice Wightman, thereupon, directed the verdict to be entered for the plaintiff; but this verdict was afterwards set aside on the ground of misdirection on the part of the judge. He had, it was said, by inquiring into the motive of the dismissal, erred when the defendant had merely to prove that he had a justifiable cause for dismissal." Applying, therefore, the conclusions from these cases, to the case before me, in which a most justifiable cause of dismissal existed, though not known to the defendant until the day before the trial, it appears, 1. That the actual and insufficient cause of dismissal expressed at the time of dismissal, does not prevent the setting up and proof of a sufficient cause of dismissal. the motive of the dismissal is unimportant, and it is sufficient if a justifiable cause of dismissal exists. 3. That if a plea connects the knowledge of that act with the cause of dismissal, the knowledge of that act must be proved. 4. That the act of misconduct which would justify the dismissal, need not to have been known to the master at the time of the dismissal, in order to use the act of misconduct, so unknown to the master at the time of dismissal, as a justification for the dismissal. Then the last question is this,-is the knowledge of the misconduct after action brought sufficient to justify the dismissal? I am of opinion that it is; for the foundation of the case of the plaintiff is-the faithful and loyal performance of his duty towards his master; and if the master is not precluded from the absence of knowledge of the contrary, at the time of the dismissal, to justify the dismissal subsequently-which the cases cited show that he is not-the plaintiff cannot be exempted from the consequences of his misconduct, if his misconduct is shown when he attempts to enforce his demand. Misconduct is an answer any time after the dismissal; and the consequences of misconduct cannot be avoided by the temporary concealment of the act of misconduct; nor is the master, when a demand for the payment of wages is sought to be enforced, precluded from noticing the delinquency of the servant, because the precautions of the servant had prevented his having an earlier or previous knowledge of it. The decisions apparently to the contrary have arisen out of pleadings the necessity for which may be found to be some few years hence as utterly needless in the Superior Courts of law, as they are in the County Courts of the kingdom. On the general question of justification of the dismissal of the plaintiff, judgment will be for the defendant.

YORKSHIRE.

SHEFFIELD, April 10, 1854. (Before WILLIAM WALKER, Esq.) M LAUGHLAN v. TRUSSWELL. Dispute between friends.

2. That

perty transferred by sheriff's officer considerably more than would cover execution—Goods sold as if the transfer was an absolute sale-Slovenly way of transacting-As there was no distinct sale excess to be returned.

Patteson appeared for the plaintiff, who is a brickmaker in St. Mary's-road.

Turner for the defendant, a carter in Sheldon-street. The facts of the case were as follow :-In October last Mr. Dodgson, a sheriff's officer, entered an execu tion on the premises of the plaintiff for 211. at the suit of Mr. Timins. He had been in possession some time when the defendant (who was a friend of his), calling one day, expressed his regret that plaintiff should be paying 10s. a day for the expenses of a sheriff's officer, and stated that he would be happy to assist him out of his difficulties if he could find security. Mr. Dodgson, as security, offered to dispose of the bricks on the ground and the plant to defendant, that being the only course he was allowed by law to take under the circumstances. The defendant and plaintiff agreed to this, and defendant gave Mr. Dodgson a promissory note for 201. 1s. 4d. No agreement was entered into between the parties, but the understanding was that the defendant was to hold possession till the money he had advanced was refunded. There were 25,800 bricks on the ground, which, at 24s. a thousand, were worth 341. 11s. 6d. ; and the plant was valued at 15. It was stated that when defendant got possession of the property he sold the bricks and the plant, and in removing the bricks did damage to the flues of the kilns to the extent of 81. The sum claimed by the plaintiff on this account was 57 11s. 6d. ; but a set-off for various items was allowed, leaving a balance of 297. 123. 4d,, to recover which the present action was brought.

For the defence it was urged that the defendant absolutely bought the bricks and plant, and that there was no understanding about their being taken possession of merely as security.

Turner contended that if plaintiff considered the bricks to be his property he would before this have offered to pay back some of the money which defendant had advanced in the shape of the promissory note; but his Honour said he could not concur in this argument, because if plaintiff had done so he would have been a leser of his bricks and have been paying defendant for taking them away.

The defendant, on being called, denied that the bricks were worth 24s. a thousand, and stated that they were only worth about 10s. a thousand. He said he only gave the promissory note as a friend of the plaintiff, being desirous of assisting him in his difficulties.

His HONOUR said the transaction was a very slovenly one throughout; but there was clearly no distinct sale. He could not believe defendant's statement as to the value of the bricks; while, on the other hand, plaintiff's case was in some respects, enormously exaggerated. Allowing for the promissory note a charge made by the defendant for finishing" part of the bricks, his Honour gave a judgment for the plaintiff for 47. 7s. 6d., a sum which he said would leave just about enough to pay his costs; and for this he had nobody to blame but himself, as he had not gone about the business in a proper manner.

STATUTES OF THE SESSION 1854.

CAP. XVI.

An Act to amend the Act of the Thirteenth and Fourteenth Victoria, Chapter Sixty-one, and the Act of the Fifteenth and Sixteenth Victoria, Chapter Fiftyfour. (June 2, 1854)

Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

1. Right of appeal giren by sect. 14. of 13 & 14 Tid. c. 61 to extend to cases in which jurisdiction is giren by s. 17.-That the right mode of appeal given by the fourteenth section of the Act of the thirteenth and fourteenth Victoria, chapter sixty-one, as amended by the second and third sections of the Act of the nitent and sixteenth Victoria, chapter fifty-four, shall exten to all cases decided after the passing of this Act i which jurisdiction is given by the seventeenth sectio of the said first-mentioned Act in consequence of th agreement of parties; but it shall be lawful, whe both parties shall desire that the decision of the Count Court judge shall be final, to exclude such right appeal, by expressing such their desire in the mem randum of agreement directed by the said seventeen section to be filed with the clerk of the Court.

2. Petitions for protection from process to be wi the provisions of the 8th section of 15 & 16 Vict. c. 54 The provisions of the eighteenth section of the Act the fifteenth and sixteenth Victoria, chapter fifty-f shall extend to all cases of petitions for protect from process made to a County Court under the p

chapter one hundred and sixteen, of the seventh and eighth Victoria, chapter ninety-six, and of the tenth and eleventh Victoria, chapter one hundred and two, as fully as if the filing of every such petition had been required to be registered by the said eighteenth section of the first-recited Act.

BILLS IN PROGRESS.

A BILL for the better Prevention and Punishment of fraudulent Dealings in Bills of Exchange and ProInissory Notes.

Preamble 7 & 8 Geo. 4, c. 29.-Whereas it is expedient to amend and extend so much of an Act pissed in the seventh and eighth years of the reign of his late Majesty King George the Fourth, intituled An Act for consolidating and amending the Laxs in England relating to Larceny and other Offences connected therewith, as relates to bills of exchange and promissory notes, and to make further provision for the prevention of frauds relating to bills of exchange and promissory notes, and to provide for the more effectual prosecution and punishment thereof be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

note in

1. Interpretation of words "bill" and ". 7 of 8 Geo. 4, c. 29, s. 5.-From and after the passing of this Act. the words "bill" and "note," in the fifth section of the said Act mentioned, shall, for the purposes of the said Act, be taken to include any paper having any signature written thereon, and purporting or intended to be or capable of being written upon, so as to be or to purport to be a bill of exchange or promissory note, drawn, made, accepted, or indorsed by the person appearing to have signed such paper. 2. Every person obtaining by fraud or duress a bill or note, or signature to a paper capable of being conrerted into a bill or note, whether the paper be his own or not, guilty of felony.—From and after the passing of this act, if any person shall, by any false pretence, or by menaces, or force, or other fraudulent means, obtain from any other person any bill of exchange or promissory note, or obtain from any person the signature of such last-mentioned or of any other person, either as drawer, acceptor, or indorser to or on any bill of exchange or promissory note, or shall obtain from any person the signature of such last-mentioned or of any other person tor on any paper capable of being written upon, so as to be or to purport to be a bill of exchange or promissory rote, drawn, made, accepted, or indorsed by the person appearing to have signed such paper, whether such bill of exchange, promissory note, or paper as aforesaid be the property of the person so obtaining the sane, or procuring any such signature as aforesaid thereto, or of any other person, with intent to appropriate or convert to his own use or otherwise fraudulently dispose of such bill of exchange, promissory note, or paper, or the proceeds thereof respectively, every such offender shall be guilty of felony, and, upon conviction thereof, shall be kept in penal servitude for any terin not exceeding six years, or be imprisoned and kept to hard labour for any term not exceeding three years and not less than one year.

3. Every holder of such bill, note, fc., with notice, guilty of felony.-If any person shall at any time knowingly and wilfully become the holder of any such bill. note, or paper, which, or the signature on or to which, respectively, shall have been obtained by any such means and with any such intent as aforesaid, every such offender shall be guilty of felony, and upon conviction thereof shall be kept in penal servitude for any term not exceeding six years, or be imprisoned and kept to hard labour for any term not exceeding three years and not less than one year.

lently appropriate to his own use or otherwise fraudulently dispose of such bill of exchange, promissory note, or paper, or the proceeds thereof, every such offender shall be guilty of a misdemeanor, and upon conviction thereof shall be imprisoned and kept to hard labour for any term not exceeding three years.

5. Every person becoming holder of such misappropriated bill or note, with notice, guilty of a misdemeanor. -If any person shall at any time knowingly and wiffully be or become the holder of any such bill, note, or paper as last aforesaid, which or the signature on or to which respectively shali have been so intrusted, procured, or received as aforesaid, and which bill, note, or paper snall have been, or shall, by and on the same being passed and delivered to him as such holder, be or become so fraudulently appropriated or disposed of as aforesaid, every such offender shall be guilty of a misdemeanor, and upon conviction thereof shall be imprisoned and kept to hard labour for any terin not exceeding three years.

protest in the Court of Common Pleas, and obtain an order for the payment against any of the parties to bill or note.- -Every holder of a dishonoured bill of exchange or promissory note which is free from erasure or alteration in any material part, except as aforesaid, may, after protesting the same, register such bill of exchange or promissooy note and the protest thereon in the register of the Court of Common Pleas, and shall thereupon be entitled to judgment on such bill of exchange or promissory note against the parties to such bill or note whose names are signed or endorsed thereon, and also to an order of such court setting forth that the bill or note and protest have been registered, and containing a copy of the bill or note and protest so registered, together with the judgment of the court thereon, in the form contained in the schedule to this Act annexed marked No. 1, against such parties to such bill or note, for payment of the same within six days after service of such order exclusive of the day of such service, and upon the expiration of such six days after service of such order on any such party, execution may then issue on such judgment against such party, on affidavit of the service of such order, which affidavit shall be endorsed on such order or annexed thereto: provided always, that in any case of doubt or difficulty arising to the registrar of protested bills of exchange and promissory notes in the execution of his duties under this act, it shall be lawful for such registrar to refuse to register any protest of a bill of exchange or promissory note until such holder shall apply to and obtain the fiat or order of such court or a judge directing the registration of such protest.

6. Power to judge, upon affidavit of fraud, to impound bill, at instance of defendant, as soon as action brought, and to order security for costs.In any action now pending or hereafter to be brought in any of Her Majesty's courts of common law or in any other court of competent jurisdiction, on any bill of exchange or promissory note, the defendant may, at any time before trial, apply to a judge at chambers, where such action is brought in either of the Superior Courts, or to the judge of any other court in which such action may be brought, on affidavit showing that the bill of exchange or promissory note on which such action is brought, or his signature thereto or thereon, was obtained from him by any false 6. Order to be endorsed with name and abode of pretence, or menaces, or force, or other fraudulent attorney or a memorandum that writ has been served by means, or that such bill or note has been fraudulently plaintiff in person.—The order shall be endorsed with appropriated or disposed of as aforesaid; and thereupon the name and place of abode of the attorney actually such judge may order the said bill or note to be forth-suing out the same; and when the attorney actually such application is made, to abide the event of the trial with deposited with some officer of the court in which suing out any order shall sue out the same as agent for an attorney in the country, the name and place of abode of such action, and may further order that all pro- of such attorney in the country shall also be endorsed ceedings therein shall be stayed until the plaintiff on the said order; and in case no attorney shall be shall have given satisfactory security for the costs employed to sue out the order, then it shall be endorsed with a memorandum expressing that the same has been sued out by the plaintiff in person, mentioning the city, town, or parish, and also the name of the hamlet, street, and number of the house of such plaintiff's residence, if any such there be.

thereof.

7. Short title. This Act may be cited for all purposes as "The Bills of Exchange Frauds Prevention Act, 1854."

A BILL intituled An Act to permit the Registration of dishonoured Bills of Exchange and Promissory Notes in England, and to allow execution thereon. Preamble Whereas the mode of recovering on dishonoured bills of exchange and promissory notes which prevails in the law of Sotland, known as the process of summary diligence, is found to be of beneficial operation, and it is expedient to introduce a similar mode of recovering on such instruments into the law of England, so far as may be consistent with the forms of procedure of the latter: be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows:

1. Commencement of Act.-The provisions of this Act shall come into operation on the twenty-fourth day of October one thousand eight hundred and fifty-four.

2 Bills and notes to be protested.-All bills of exchange and promissory notes shall for the purposes of this Act be noted or noted and protested as in the case of foreign bills of exchange.

7. Attorney, on demand, to declare whether order issued by his authority, and to declare name and abode of his client if ordered. Iforder issued without authority of attorney, proceedings to be stayed.-Every attorney whose name shall be endorsed on any order issued by authority of this Act shall, on demand in writing made by or on behalf of any party against whom such order has issued, declare forthwith whether such order has been issued by him or with his authority or privity, and if he shall answer in the affirmative then he shall also, in case the court or a judgeshall so order and direct, declare in writing, within a time to be allowed by such court or judge, the profession, occupation, or quality of the holder of the bill or note on whose behalf such order has been issued, on pain of being guilty of a contempt of the court; and if such attorney shall declare that the order was not issued by him or with his authority and privity, all proceedings on the same shall be stayed, and no further proceedings shall be taken thereupon without leave of the court or a judge.

8. Order may be served in any county.-Any order for payment of a bill or note obtained under this Act may be served in any county.

9. Service on corporations.-Where an of the parties against whom such order has issued is a corporation aggregate, such order, in so far as such corporation is concerned, may be served on the head officer, clerk, treasurer, or secretary of such corporation.

3. Holders of dishonoured bills or notes, after protesting them, may proceed under this act.--It shall be lawful for the holder of a bill of exchange which has been noted for non-acceptance, or of a bill of exchange or promissory note which has on the day of its becoming due been noted for nonpayment, and which bill of exchange or promissory note is free from erasure or alte- 10. Mode of service.--The service of such order shall ration in any material part, except by striking out the be by serving a copy thereof personally upon the party name or names of endorsers, to proceed under the probe practicable so to do; but it shall be lawful for the or parties against whom it is directed, wherever it may visions of this Act at any time after protest for nonacceptance or for non payment and before the expiration of six months after the date of such bill or note becoming due.

4. Her Majesty may appoint a registrar of protested bills.-It shall be lawful for Her Majesty to appoint an officer to be attached to the Court of Common Pleas, who shall be called "The Registrar of protested Bills of Exchange and Promissory Notes;" and the said registrar so appointed shall keep a register in the said Court of Coinmon Pleas, in an office to be assigned by the Lords Commissioners of the Treasury, for the registration of protested bills and promissory notes as hereinafter provided; and such registrar may by a writing under his hand and seal appoint a deputy or deputies, who shall be previously approved of by the Lord Chief Justice of the Court of Common Pleas, and all registrations made and other acts done by such deputy or deputies shall have the same effect as if made and done

party who has obtained such order to apply from time to time, on affidavit, to the court, or to a judge; and in case it shall appear to such court or judge that reasonable efforts have been made to effect personal service on any of the parties against whom it issued, and either that the order has come to the knowledge of such party, or that he wilfully evades service of the saine, it shall be lawful for such court or judge to direct that execution shall issue as if personal service had been effected.

11. As to order against party residing out of the jurisdiction of Superior Courts.-In case any party to a dishonoured bill of exchange or promissory note against whom the holder of such bill or note wishes to proceed under the provisions of this act is residing out of the jurisdiction of the said Court of Common Pleas, it shall be lawful for such holder to apply to the said Court of Common Pleas or any judge for an order in the form contained in the schedule to this act annexed marked No. 2, which order shall bear the endorsement contained in the said form, purporting that such order

is for service out of the jurisdiction of the court; and the time for payment of such bill or note in such order mentioned shall be regulated by the distance from England of the place where the party against whom such order has been obtained is residing; and it shall be lawful for the court or judge, upon being satisfied by affidavit that the order was duly served on the party against whom the same issned, having regard to the time allowed to such party for making payment of the bill or note on which such order issued, to direct that such order shall have the effect of a judgment within the jurisdiction of such court.

12. Concurrent orders may issue.- Any order for service within the jurisdiction may be issued and marked as a concurrent order with one for service out of the jurisdiction, and an order for service out of the jurisdiction may be issued and marked as a concurrent order with one for service within the jurisdiction.

13. Before execution party served with order may apply to court to stay execution.-It shall be lawful for the party who has been served with any order for the payment of a bill of exchange or promissory note as aforesaid, at any time before execution has issued, or before any writ of fieri facias, levari facias, or elegit issued on the judgment on which such order has proceeded has been fully executed, to apply to the court or a judge to stay execution, which application must be supported by an affidavit disclosing what would constitute a legal defence to an action on the bill or note

against the party seeking to stay execution: provided always, that if the party served with such order shall be arrested on any writ of capias ad satisfaciendum issued on the judgment on which such order has proceeded, it shall be lawful for him, at any time before he is discharged from custody, to apply to the court or a judge to set aside such writ, and to discharge him from custody, and to stay all further execution, which application shall be supported by affidavit as aforesaid. 14. Where proper grounds are disclosed, court may direct an issue in law or in fact.--In any of the said cases, if the court or judge shall think that such legal defence has been disclosed, execution shall be stayed, or the party discharged from custody, and execution stayed, as the case may be, and an issue in fact shall be directed to be tried by the parties, or a special case to be stated by them for the opinion of the court, in the same manner as if the question of fact or of law so directed to be tried or stated had been raised by consent of parties without pleading, under the provisions of the Common Law Procedure Act, 1852, and in the proceedings in such issue or special case the party seeking to stay execution shall be plaintiff, and the holder of the bill or note defendant.

15. Party secking to stay execution must furnish security for debt and costs. Within six days after such issue or special case has been directed, or such further time as the court or a judge shall appoint, the party seeking to stay execution or to be discharged from custody shall give security for the payment of the bill or note and interest thereon, and for the costs of protesting and registering the bill or note, and of the order and service of the same, and also for the costs of trying the issue or of the special case, and proceedings thereon, or pay into court a sum of money which shall be deemed sufficient by such court or judge to abide the event of such issue or special case, otherwise execution shall procced as if no such issue or special case had been directed: provided always, that the court or judge may direct that such security shall not be required where the party applying for a stay of execution or discharge from custody can show to the satisfaction of the court or judge, upon affidavit, that his alleged signature to the bill or note has been forged, or that circumstances exist which affect the title of the holder with fraud, or that any other circumstances exist which, in the opinion of the court or judge, may render such security unnecessary; and in such case it shall be lawful for the court or judge, in its or his discretion, to direct that the holder shall find security for the defendant's costs of trying such issue or of such special case and proceedings thereon, or pay into court a sum of money which shall be deemed sufficient by such court or judge to abide such event as aforesaid.

16. Costs of issue.-The costs of such issue in fact or special case shall be in the discretion of the court. 17. Judgment on issue; when order to be discharged, and when execution to proceed.-Upon the finding of the jury in any such issue in fact the order for the payment of the bill or note shall be forthwith discharged, or execution shall forthwith proceed thereon, according to such finding, unless the court or a judge shall otherwise order, for the purpose of giving either party an opportunity for moving to set aside the verdict or for a new trial; and upon the judgment of the court in any such special case the order for payment shall be forthwith discharged, or execution shall forthwith proceed thereon, according to such judgment, unless proceedings in error be taken by either party provided always, that if the plaintiff has been discharged

from custody by order of the court or a judge, such discharge shall not be a satisfaction of the debt due by such plaintiff on the bill of exchange or promissory note on which the order for payment originally issued.

18. Attornies and solicitors not exempt from pro visions of this Act -No privilege shall be allowed to any attorney or solicitor, to exempt him from the provisions of this Act.

19. Execution against debtor within two months of filing petition to be void. Every judgment or order obtained under this act, and every execution issued or taken out thereon, against any debtor within two months of the filing of a petition for adjudication of bankruptcy by or against such debtor, shall be null and void to all intents and purposes whatsoever.

20. Saving all other remedies.-Nothing in this act contained shall be construed or taken to interfere with or to affect any remedy which is now competent to the holder of or to any party to a bill of exchange or promissory note, at law or in equity.

nions in which such offence shall have been committed, or in that part of Her Majesty's dominions in which such person shall be apprehended or be in custody: provided also, that if any person shall wilfully or corruptly make a false affidavit before such magistrate or justice of the peace or other officer, every person so offending shall be deemed and taken to be guilty of perjury, in like manner as if such person had wilfully and corruptly made such false affidavit in England before competent authority, and shall be liable to be prosecuted for such perjury in any court of competent jurisdiction in that part of Her Majesty's dominions in which such offence shall have been committed, or in that part of Her Majesty's dominions in which such person shall be apprehended or he in custody.

25. Affidavits in certain cases may be sworn before a consul. Any affidavit for the purpose of proving service of any order for the payment of any dishonoured bill of exchange or promissory note, issued under this act against any person residing out of Her Majesty's 21. General rules may be made by Judges of Court dominions, or service of notice of such order, or for the of Common Pleas.-It shall be lawful for the Judges purpose of making any application to the court out of of the Court of Common Pleas, or any three or more of which such order issued, may be sworn before any them, of whom the chief of such court shall be one, consul-general, consul, vice-consul, or consular-agent for from time to time to make all such general rules and the time being appointed by Her Majesty at any foreign orders for the effectual execution of this Act in the said port or place; and every affidavit so sworn by virtue of court as in their judgment shall be necessary or proper, this Act may be used and shall be admitted in evidence, and for fixing the costs to be allowed for and in respect saving all just exceptions, provided it purport to be of the matters herein contained, and of the fees to be signed and sealed by such consul-general, consul, vicepaid to the registrar for such registration, and the judg-consul, or consular-agent: provided always, that if any

ment and order thereon.

person shall forge the signature of the deponent or the shall use or tender in evidence any such affidavit with signature or seal of any such consul-general, consul, vice-consul, or consular-agent to any such affidavit, or a false or counterfeit signature thereto, knowing the felony, and shall upon conviction be liable to imprisonsame to be false or counterfeit, he shall be guilty of

Such new or altered writs and forms of proceedings 22. New forms of writs and other proceedings → may be issued, entered, and taken in the said Court of Common Pleas as may by the judges of the said court, or any three or more of them, of whom the chief of the said court shall be one, be deemed necessary or expedient, for giving effect to the provisions hereinment for any term not exceeding three years nor less before contained, and in such forms as the judges of than one year, with hard labour; and every person who such court shail from time to time think fit to order; shall be charged with committing any such felony may and such writs and proceedings shall be acted on and be dealt with, indicted, tried, and if convicted, sentenced, enforced in such and the same manner as writs and and his offence may be laid and charged to have been proceedings of the Superior Courts are now acted on committed, in the county or place in which he shall be and enforced, or as near thereto as the circumstances apprehended or be in custody; and every accessory of the case will admit; and any existing writ or pro-with, tried, and if convicted, sentenced, and his offence may before or after the fact to any such offence may be dealt ceeding the form of which shall be in any manner altered in pursuance of this act shall nevertheless be of the same force and virtue as if no alteration had been made therein, except so far as the effect thereof may be varied by this Act.

be laid and charged to have been committed, in any county or place in which the principal offender may be tried: provided also, that if any person shall wilfully and corruptly make a false affidavit before such consulfor further proof after suspension.-Every protest of a 23. Protest to prove itself for registration-Proviso general, consul, vice-consul, or consular agent, every person so offending shall be deemed and taken to be bill of exchange or promissory note shall, for the purpose guilty of perjury, in like manner as if such person had of registration under this Act, be received by the registrar wilfully and corruptly made such false affidavit in of protested bills of exchange and promissory notes England before competent authority, and shall and may without any evidence being required as to the signature be dealt with, tried, and, if convicted, sentenced, and his or seal to such protest: provided always, that it shall be offence may be laid and charged to have been comcompetent for any party to a bill of exahange or promis-mitted, in any county or place in which he shall be sory note, who shall apply for and obtain a suspension apprehended or be in custody, as if his offence had been of execution as hereinbefore provided on the ground that actually committed in that county or place. such bill of exchange or promissory note has not been duly presented, to call for further proof that the presentation alleged in the protest has actually been made by the notary public by whom such protest shall have been made, or by some clerk of or apprentice to such notary public, or by some other person acting in this behalf in default of a notary public.

24. Affidavits in certain cases may be sworn before magistrates.--Any affidavit for the purpose of proving service of any order for the payment of a dishonoured bill of exchange or promissory note issued under this Act against any person residing in any part of Her Majesty's dominions except England, or for the purpose of making any application to the court or a judge may, in any part of Her Majesty's dominious except England, be sworn before a magistrate or justice of the peace or other officer having such jurisdiction for or in the county, city, town, or place where any such affidavit shall be sworn; and every affidavit so sworn by virtue of this Act may be used and shall be admitted in evidence, saving all just exceptions, provided it purport to be signed by such magistrate or justice of the peace or other officer: provided always, that if any person shall forge the signature or seal to any protest, or shall use or tender for registration or in evidence any protest with a false or counterfeit signature or seal thereto, knowing the said signature or seal to be false or counterfeit, or shall forge the signature of the deponent or magistrate or justice of the peace or other officer to any such affidavit, or shall use or tender in evidence any such affidavit with a false or counterfeit signature thereto, knowing the same to be false or counterfeit, he shall be guilty of felony, and shall upon conviction be liable to imprisonment for any term not exceeding three years nor less than one year, with hard labour; and every person who shall be charged with committing any such offence, and every accessory before or after the fact to any such offence, may be prosecuted for such offence in any court of competent jurisdiction in that part of Her Majesty's domi

26. Interpretation. In citing this Act in any instrument, document, or proceeding, it shall be sufficient to use the expression "The Summary Execution on Bills of Exchange Act, 1854."

SCHEDULE. No. 1.

A.D. 18 To C.D in

In the Common Pleas. On the day of VICTORIA, by the Grace of God, &c., of in the County of E.F. of the County of &c. (England to wit.) A.B. in his own proper. person [or by G.H., his Attorney] appeared and craved that the protest underwritten should be recorded in the register of this court for protests of bills of exchange and promissory notes for execution, according to the Summary Execution on Bills of Exchange Act, 1854," which was accondingly done, and of which the tenor follows in these words:

[Take in the Bill and Protest.] Therefore it is considered, that the said A.B. recover against the said C.D., E.F. &c. £ with interest thereon since the said bill became due, together with the sum of £ for costs of protest, registration, and charge We command you, therefore, that within six days after the service of this writ on you, exclusive of the day of such service, you make payment to the said A.B. of the said sum of £ and take notice, that in default of your so doing the said A.B. may proceed to execution against you. Witness, &c.

No. 2. (Same as No. 1.) Indorsement to be made on writ before service thereof. This writ is for service out of the jurisdiction of the

court.