objects did not share the increased rents in the proportions in which they stood to each other at the time of the will. Mayor of South Molton v. The Attorney-General, 181. Charitable bequest-Mortmain.-Where a testator had directed money to be invested in the names of trustees, to be applied as they might think proper among deserving poor of a particular place, and then empowered them to apply both the capital and income in establishing almshouses or other permanent places for the poor, his will being that they should commence building almshouses as soon as convenient after his death, it was Held, that the bequest was void, as being within the Mortmain Act, 9 Geo. 2, c. 36. Martin v. Wellsted, 273. School-Foundation-Ordinances-Religious instruction -Admission of Dissenters-Powers and functions of visitor Information-Relator-Attorney-General. A school was founded by King Edward VI. in the year 1550, by letters patent, for the education and instruction of boys and young men in grammar; and power was thereby given to the governors of the school to make ordinances for the ordering and governing and directing of the master, and of the scholars of the school, with the advice and sanction of the Bishop of Bristol for the time being: Held, that the founder contemplated the establishment of a Church of England school, and that the governors had power, with the sanction of the Bishop, to make ordinances, providing (amongst other things) that all the scholars should receive religious instruction in the doctrines and formularies of the Church of England, and should attend service at church, and when instructed, &c. partake of the sacrament: Held, also, that this was a question relating to the internal management of the school, and was therefore a subject of visitorial jurisdiction exclusively: Semble, if ordinances are made in opposition to the visitor, the Court of Chancery has jurisdiction, as in the case of a breach of trust. The AttorneyGeneral will not be permitted to argue in support of a view conflicting with the object of the relator. Attorney-General v. Sherborne Grammar School, 271. Parol trust-Superstitious uses-1 Edw. 6, c. 1443 Eliz. c. 4-2 & 3 Will. 4, c. 115-1 Vict. c. 26.Where a testator transferred a sum of stock in his lifetime into the names of trustees, and declared by parol that they should hold it upon certain trusts (which were partially executed before his death), and then (inter alia) to have masses and requiems said for his soul and the souls of the poor dead, and for other pious uses: Held, that such a transfer and declaration of trust was not a violation of the Wills Act 1 Vict. c. 26; that, although charitable uses might be declared by parol, gifts for such purposes as the saying of masses and requiems for the souls of the dead were not charitable, but superstitious uses, within 1 Edw. 6, c. 14; that they bore no analogy to the charitable uses enumerated in the 43 Eliz. c. 14; that they were not rendered legal by the 2 & 3 Will. 4, c. 115; and that they were void. Held also, in accordance with West v. Shuttleworth, 2 Myl. & K. 684, that the next of kin and not the Crown was entitled to the benefit of the void gift. Heath v. Chapman, 247. Public charity-Concealed trust--Investment in Threeand-a-Quarter per Cents. disallowed-Interest at five per cent. charged on fund in trustee's hands-Annual rests.-A testator bequeathed the residue of his personal estate to his executor upon trust to pay and apply the same to the relief of such persons resident within a certain parish as might be sufferers from accidental losses or misfortunes, which should not have been occasioned in any way by their own imprudence or misconduct. He directed that the estate should remain in the executor's hands, to be bestowed with the joint consent and approbation of the rector and churchwardens for the time being of the said parish. The executor kept the whole trustfund in his hands for twelve years, concealed from the rector and churchwardens. Upon its being accidentally discovered, the fund was invested by the executor in the Three-and-a-Quarter per Cents., without the concurrence of the rector and churchwardens, and afterwards transferred into court under the Trustee Relief Act: Held, that the investment in the Three-and-a-Quarter per Cents. was an improper investment: Held, also, that the executor was to be charged with interest at five per cent. on the balance of cash in his hands, and on the dividends received half yearly; annual rests to be made in computing the same. The Attorney-General v. Alford, 199.

COMMITMENT. Warrant of commitment-Showing jurisdiction.-A. B. was convicted of an offence under the 16 & 17 Vict. c. 30, s. 1, which gives "two justices of the peace, sitting at a place where the petty sessions are usually held," jurisdiction summarily to adjudicate. The warrant of commitment was in the form prescribed by schedule (P. 1) of the 11 & 12 Vict. c. 43, which only generally describes the conviction as being before certain justices "in and for the said (county) of -." Upon an objection taken to the warrant that it was bad for not showing that the Justices were "sitting at a place were the petty sessions were usually held:" Held, that the warrant was good, inasmuch as it was in the form per

mitted by the 11 & 12 Vict. c. 43, schedule (P. 1). Ex parte Allison, 281.

CONTRACT.

Several actions for distinct breaches.-Agreement that the plaintiff should enter into service of defendants for sale of wines on commission; the agreement to continue in force for five years, and the defendants guaranteeing the plaintiff 6007. per annum as a minimum revenue from the business during the continuation of the agreement: Held, that the plaintiff might sue in any year during the continuance of the agreement for breaches in any former year; but that, if there was an entire dismissal from the service before the expiration of the agreement, the plaintiff ought to include in one action the whole gravamen he would probably sustain therefrom. Clossman v. Lacoste and another, 131.

Construction of statutory arrangement for supply of water from the river Lea to the New River. The Trustees of the river Lea v. The New River Company, 177.

Breach before commencement of performance-Damages.-Agreement in consideration that plaintiff would enter defendant's service as courier, on June 1, 1852, and travel with him for three months certain from that day, defendant would employ him and pay him 107. per month, during the service. Breach, that before the 1st of June 1852, the defendant refused and declined to employ plaintiff, and wholly absolved and exonerated and discharged plaintiff from his said agreement: Held, that the plaintiff might sue defendant immediately upon the refusal and breach of the agreement; and was not bound to wait until the day for the commencement of the service had arrived. Held, also, that in estimating the damages, the jury might look at all that had happened, or was likely to happen, down to the day of trial, to increase or mitigate the plaintiff's loss. Hochster v. De Lautour, 11. Dispute between Publisher and Author.-Articles contributed voluntarily to a periodical, cannot be charged for because they have been inserted, unless there had been an employment of the contributor by the publisher. In an action for money lent and work done (to which was joined a claim in trover for a book) a set-off for such contributions was not allowed, plaintiff being allowed his full claim. Auty v. M'Burnie, 63.

Where an offer by letter to supply goods is accepted, but the answer to the offer adds a further stipulation, to the effect that goods already supplied should be paid for at the rate contained in the offer, that is a new term in the agreement, and must be shown to be accepted. Hayward and another v. Barnes, 107.

Registered public company-Liability of, for goods supplied and kept-Evidence of user-7 & 8 Vict. c. 110, 8. 44. A quantity of prospectuses had been ordered by the secretary of a public company, delivered at the offices of the company, and there received and kept. The plaintiff had executed former orders for the company, which had been paid for. At the trial there was but slight evidence of the nature of the goods supplied; there was no proof that they had been used by the company; but it was shown that the goods were useful to the defendants and useless to any one else, and that, after delivery at the place of business of the company, they were not repudiated or returned. The jury, on this evidence, found for the plaintiff, and the court, on motion to set aside the verdict, refused to disturb it. Levy v. The Metropolitan Cab Company, 107. Horse-dealing tricks.-Action by a dealer who had been tried at Liverpool and York Assizes, and sentenced to twelve months' imprisonmeut on each occasion for fraud. The opinion of the court as to the character of such a plaintiff not given as judgment for defendant was founded on the absence of a written agreement in such a transaction, together with a want of evidence in plaintiff making out his case. Haigh v. King and Dunhill, 188.

A public body constructing works under the authority of an Act of Parliament, not liable for damages arising from any accident during their progress. As the company deliver up in a safe state to the contractors, they alone are liable. Bolland v. Borough Market Company, 87.

Customs in the cloth trade-Allowances of half-yards in the measure of fabrics.-Though there be a variation in the general custom of the trade between the resident merchants and those attending market on market-days, yet, as the parties had agreed to go upon the evidence as to whether the half-yards had been allowed in the measure in this case, and the witnesses proving that they had, the plaintiffs could not recover. Heavy costs of defendants' witnesses. Barker and others v. Day and another, 87. Contract for wool-Condition precedent-Pleading.

The declaration stated a contract for wool to arrive at 10 d. per pound, laid down either at Liverpool, Hull, or London, deliverable at Odessa during August then next, to be shipped with all dispatch, &c.; the names of the vessels to be declared as soon as the wool was shipped; that the wool was delivered at Odessa, to the agents of plaintiff, and was with all dispatch shipped on board a certain ship, which sailed from Odessa with the said wool

on board, and afterwards arrived at Liverpool with the said wool on board. There was further an averment of notice to the defendants, and of the lapse of a reasonable time after arrival, and of performance by the plaintiff of all conditions. Breach, that defendants would not accept or pay for any part thereof. To this the defendants pleaded, that they agreed with plaintiff to buy the said wool for the purpose of reselling the same in their trade; that wool fluctuated greatly in price in the market, and that they could only resell the said wool when they had notice of its being shipped, and the name of the vessel in which it was shipped declared according to the contract mentioned in the declaration of which plaintiff had notice; but that plaintiff did not declare to defendants the name of the vessel in which the wool was shipped at or within the time within which he was bound to declare, that is to say, as soon as such wool was so shipped, but omitted and delayed so to declare the name for a long and unreasonable time; and before they had such notice, the price of wool had fallen in the market, &c. wherefore they did not, nor would accept or pay for the said wool: Held, a good plea, such declaration of the name of the vessel being a condition precedent to the acceptance of the wool. Graves v. Legg and another, 203.

Breach of contract in the nondelivery of iron bargained and sold, the price of iron having increased. Damages in such a case estimated by prices nearer the time of contract than when iron was at a much higher price a long time after. Howden v. Tomlinson, 284. Weights-5 Geo. 4, c. 74-5 & 6 Will. 4, c. 62-Construction "Long weight." -A contract for sale by the long hundredweight is valid under the Weights and Measures Act, it being a multiple of a pound. The long hundredweight is not a local and customary weight, and the contract does not require to set forth the ratio that the long hundredweight bears to the standard hundredweight. The declaration stated a contract for 240,000lbs. of iron, at the price of 4167. Breach, the nondelivery of the iron. Plea, that the contract for the sale and purchase of the iron was made between the plaintiff and the defendant after the passing of 5 & 6 Will. 4, c. 63, relating to the sale and purchase of iron, to wit, 100 tons long weight; that is to say, a certain illegal weight, to wit by the ton weight, consisting of 2400lbs. avoirdupois, being more than twenty hundredweight standard weight in the said Act mentioned, contrary to the form of the statute. Held, that the plea was bad, and judgment for the plaintiff non obstante veredicto. (Per Pollock, C.B.; Platt and Martin B.B.-Parke, dissentiente.) Jones v. Giles, 204.

me:

Guarantee." I, R. C., engage that the work entrusted by A. B. to C. D. shall be properly done and returned within a week, or the value thereof paid by "Held, to be a continuing guarantee. Dutton v. Cannon, 14. Breach of contract-Damage too remote.-Where two parties have made a contract, which one of them has broken, the damages which the other ought to receive should be such as may fully and reasonably be considered either arising ordinarily- that is, according to the usual course of things, from such breach of contract itself--or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract. Hadley v. Baxendale and others, 133.

An agreement to waive right to administer in favour of another on consideration of a weekly payment, and thereby transfer the administration, binding upon the party so taking it upon himself-Pension money, however received by the transferror, to be paid back again, and allowed in this case as a setoff, as it belonged to the administration. Pinder v. Pinder, 138.

Telegraphicmessages-Contract-Commission.-Semble, telegraphic messages are admissible evidence. A broker cannot recover on a quantum meruit for the sale of a ship unless the contract be signed by vendor and purchaser, and the sale in all other respects be complete. Meeson v. Oliver, 231. Action for castings supplied to a third party on the credit of defendant who had agreed to find money and materials in a patent for a new grinding machine. -The order was not expressly given by defendant, but bill had been sent in and no objection madeAgreement put in-Its validity disputed, on the ground of not being stamped nor signed by the parties-Defendant's answer to the judge unsatisfactory. Darwin and Co. v. Cashin, 188.

COSTS.

County Court Act-9 & 10 Vict. c. 95, s. 128-Where the plaintiff dwells more than twenty miles from the defendant-Affidavits, sufficiency of-Carrying on business. Semble, per Jervis, C.J., and Maule, J., that the twenty miles mentioned in sect. 128 of 9 & 10 Vict. c. 95, ought to be measured in a straight line. An affidavit that plaintiff does not believe that the defendant carries on business; that the plaintiff does not know of any; that he has made inquiries, and has learned that, though defendant did carry on business, he has ceased to: Held sufficient, in the absence of an affidavit by the

defendant that he does carry on business. Stokes v. Grissell, 155. County Court-Concurrent jurisdiction. A surgeon and accoucheur carries on his business within the meaning of section 128 of the 9 & 10 Vict. c. 95, in that district where he attends his patients, though in fact he may be dwelling in another district. A., a surgeon and accoucheur, who lived within the Co. C. district of B., was sued for a debt in this court (Q. B.) for a cause of action which arose in the Co. C. of C.; and, a verdict being returned for less than 201., the plaintiff applied, under section 4 of the 15 & 16 Viet. c. 54, for a rule for his costs. It appearing, however, that A. attended patients daily within the jurisdiction of the Co. C. of C.: Held, that this was a carrying on of his business within such jurisdiction within the meaning of section 128 of the 9 & 10 Vict. c. 95, and that the plaintiff, therefore, was not entitled to his costs. Mitchell v. Hender, 731.

Higher or lower scale-Plea of tender.-In an action for a sum exceeding 20. the defendant pleaded (inter alia) a tender of 231. 5s. 8d., and payment into court of the sum tendered. The case was referred to arbitration, the arbitrator to have the same powers as a judge at Nisi Prius. The arbi trator found for the defendant upon the plea of tender, and for the plaintiff on the other pleas, and directed a verdict to be entered for him for the sum of 21. 10s. 5d. beyond the amount paid into court. At the taxation of the plaintiff's costs it was contended for the defendant that they should be taxed on the lower scale, pursuant to the directions to the taxing-officers of H. T. 1853; but, upon its being suggested that the arbitrator would give his certificate for the higher scale, the taxation was postponed, and the arbitrator gave his certificate accordingly; but at the time of his doing so his time for making his award had expired. The costs were subsequently taxed upon the higher scale; and upon a motion for a review of the Master's taxation, on the ground that the costs should have been taxed upon the lower scale, as the plaintiff recovered less than 207.: Held, that the taxation upon the higher scale was correct, for that the money tendered and paid into court was recovered in the action equally with that which was given beyond it, and so the amount recovered in the action exceeded 201. (overruling Dixon v. Walker, 7 M. & W. 214.) Query, whether an arbitrator, who has the same power given him as a judge at Nisi Prius, has power to grant a certificate after his time for making his award has expired. Cooch v. Maltby, 180.

Costs Suggestion-City of London Small Debts Act (15 & 16 Vict. c. 77, ss. 119 and 121.)-By the reasonable construction of the 119th and 121st sections of the City of London Small Debts Act, in order to give a plaintiff suing in the Superior Courts, and recovering less than 201. in an action on contract which might have been brought in the City Court, the presiding judge's certificate must be given forthwith; but, where a sum between 201. and 50%. is recovered, the certificate may be given at any convenient time after the trial is over. · Chaplin v. Levy, 130.

Costs in the Co. C. between attorney and client-Statute 15 16 Vict. c. 54, s. 1.-Until the scale of costs authorised by the above section shall have been made and approved by the judges, the costs of an attorney in the Co. C., as between attorney and client, may be taxed according to the old method of taxing. Leverson v. Shaw, 277. The London Small Debts Act, 15 & 16 Vict. c. 77, s. 119, which gives an exclusive jurisdiction to the Small Debts Court in cases in which a verdict for 507. is recovered, does not take from an attorney his common law privilege of suing in his own courts in cases between 207. and 50%. Borodaile v. Nelson, 156.

Judgment by default.-Where a defendant suffers judgment by default, and whether that judgment be final or interlocutory, the plaintiff, although he recovers only a farthing damages, is entitled to his full costs under the 13 & 14 Vict. c. 61, s. 11 (the County Courts Extension Act). Glyn v. Roberts, 14.

DAMAGES.

Covenant by defendant to pay, on a day certain, a sum due from plaintiff and defendant to a third person, and to indemnify plaintiff-Breach by nonpaymentMeasure of damages. Plaintiff and defendant, being partners, executed a deed of dissolution of partnership, whereby defendant covenanted to pay and satisfy the debts of the firm within eighteen months, and to indemnify the plaintiff against all costs, losses, damages, claims, or demands, which he might incur or be liable to in respect of those debts. The defendant not having paid a creditor of the firm within eighteen months, the plaintiff was called upon to pay, and did pay part in cash, and gave promissory notes for the residue. In an action by him upon the defendant's covenant, commenced during the currency of the notes: Held, that the measure of damages was the whole amount of the creditor's demand, including that for which the promissory notes were given. Robinson v. Robinson, 276.

DISTRESS.

Distress for tithe rent-charge-Plaint for unlawful distress-Particulars of claim-Notice of action.-A plaintiff in the Co. C. delivered particulars of his claim, containing six items. The fourth was for continuing on his premises and proceeding to sell after abandonment of a distress. He had given notice of action pursuant to 5 & 6 Vict. c. 54, s. 19, wherein he stated his cause of action to be "for entering his premises and seizing three in-calf heifers, under colour of a distress, and also for selling and driving away three heifers belonging to him." The Co. C. judge held that the plaintiff was not entitled under that notice to give evidence of the fourth item in his particulars; but this court held that he was, and directed a new trial. Howard v. Remer, 10.

EVIDENCE.

Ancient map-Production and custody. On an issue whether a locus in quo is in the county of A., a map was tendered in evidence, printed on paper from an engraved copper-plate, and having on the face of it the following words: "New map of the county of A., taken from the original map published by B. C. in 1736, who took an accurate survey of the whole county, now republished with corrections and additions by the sons of the author, 1766, and engraved by D. E." This map was produced out of the custody of a county magistrate, who had had it in his possession for the preceding twelve years: Held, that it was inadmissible in evidence, the statement on the map merely amounting to a statement of the sons or the author as to its accuracy, without in any way showing that they had authority to make the map from any one interested: and that the custody from which it came was also insufficient. Hammond v. Bradstreet, 231.

Bankruptcy-Contract.-A promissory note, given by a bankrupt under the 5 & 6, Vict. c. 122, after the passing of the Bankrupt Law Consolidation Act 1849, in respect of a debt from which he was discharged by his certificate, is void. A bankrupt's certificate is evidence of all proceedings therein recited. Broughton v. Henshall, 37. Master and servant-Negligence causing death of servant-Evidence for a jury-Nature of exception to judge's ruling-In an action by the widow of A., a miner, to recover compensation for his death, alleged to be caused by the negligence of the defendants, his employers, it appeared from the plaintiff's evidence that A. worked in the main road of the pit, taking out coal there; that he had often complained of a large stone in the roof, which was in a dangerous position; that defendants' manager had said there was no danger, but promised frequently to remove it, yet had not done so; that at last two men had been sent to remove the stone, and, on reaching the spot, they found A. filling his hutch with coals, and they waited till he should finish it, but before that had been done the stone fell and killed A. There was conflicting evidence as to whether the men told A. to fill his hutch first, before they would remove the stone, or whether A., for his own benefit, asked the men to wait till he filled it: Held, reversing the judgment of the Court of Session in Scotland, that there was evidence to go to the jury; and the two questions for them were-first, was the stone negligently allowed by the defendants to remain in a dangerous position too long? and, secondly, did A. lose his life in consequence of the negligence, and not in consequence of his own rashness? If an exception to a judge's ruling sufficiently call the judge's attention to the point, it is immaterial whether the counsel may set forth as the ground of his exception that which is bad law. Paterson v. Wallace, 232. Witness.-Secondary evidence of the contents of a written document, the original being in the possession of a foreigner abroad-defendant refusing to be sworn as a witness, on the ground that his answers to the questions asked may tend to criminate himself. Boyle v. Wiseman, 280. Lost note-Secondary evidence.-In an action on a promissory note not negotiable, secondary evidence may be given of the note, if proved to have been lost, where the only plea is non fecit: Semble, also, that a special plea that the note was lost would not be an answer to the action. Charnley v. Grundy, 107.

Appeal against order of removal-Subsequent settlement by renting a tenement-Secondary evidence of the rate-books of a third parish.-Where, upon appeal against an order of removal, the appellants set up a subsequent settlement by renting a tenement in a third parish, they are not entitled to give secondary evidence of the rate-books of that parish, because the parish officers who have been subpoenaed to produce them refuse to do so. Reg. v. the Inhabitants of Llanfaethly, 10.

Where a judge leaves a question to the jury, about which there is no dispute and no evidence, and the jury find a wrong verdict, that is a misdirection, it being the duty of the judge, where the facts are perfectly plain, to tell the jury how to find. The York, Newcastle, and Berwick Railway Company, Apps., v. Crisp and others, Resvs., 129.

FRAUDS, STATUTE OF. Statute of Frauds-Sale of goods-What constitutes a delivery and acceptance within the statute.-A. agreed to buy of B. fifteen head of cattle. A. was about to pay the purchase-money, but, not finding his cheque-book, offered B. to give him the cheque any time he would call for it. A. asked that the cattle might remain in B.'s field three days, and that his (A.'s) man might feed them with some hay there, to be supplied by B. This was done. A. afterwards refused to pay for them: Held, that there was no evidence to go to the jury of an acceptance and actual receipt of the cattle within the Statute of Frauds, so as to bind the bargain. Holmes v. Hoskins, 157.

FRIENDLY SOCIETIES. Friendly Societies Act-Dispute between the society and one of its members-Arbitration-Award-Erroneous decision Jurisdiction of justices. Under the Friendly Societies Act (4 & 5 Will. 4, c. 40, s. 7), justices have no jurisdiction to decide disputes between a society and any of its members, if the rules provide for the settlement of such disputes by arbitration, unless the arbitrators neglect or refuse to make an award; and an erroneous decision by arbitrators duly appointed cannot be treated as a nullity, so as to give the magistrates jurisdiction to hear. Where the rules required that a member should be summoned before expulsion, and the affidavits stated that the complainant had been expelled without any summons: Held, that this was no ground for an application to justices, after an award made by arbitrators who had heard and decided upon the objection. Ex parte Amy Long,

257.

Appointment of arbitrators-Award-Justices-Juris diction.-At the first meeting of a friendly society nine arbitrators were appointed; two became incapable of acting, and the other seven the society alleged wrongly (and it was not stated by the other side that they knew the allegation to be false) had left the place. D. was expelled by the society; then nine fresh arbitrators were appointed. After that D. gave notice to refer his dispute to arbitration, and selected five of the second set of arbitrators, not knowing at the time that they were other than duly elected. He also signed an agreement to refer his case to them, and to be bound by their award. The award was made, affirming the decision of the society, expelling D. After that the society called another meeting to reconsider D.'s case and refer it again; but D. declined to refer to the second set of arbitrators, and laid a complaint before justices, who made an order for his readmission: Held, that the award of the arbitrators was binding on D., and that the order of the justices was bad for want of jurisdiction. Reg. v. Rowland Evans,

137.

False and fraudulent representation by the wife-Liability of the husband.—An action will not lie against husband and wife for a false and fraudulent representation by the wife to a loan society that she was sole and unmarried at the time of her signing a promissory note as surety for a third person, whereby the loan society were induced to advance a sum of money to that person. A feme covert is incapable of binding herself by her contract, and it is wholly void; but she is responsible for torts committed by her during coverture. The husband and wife are liable, therefore, for frauds committed by the wife; but when the fraud is directly connected with the contract of the wife, and, in fact, is the means of effecting it, and it is part of the same transaction, the wife cannot be responsible, and the husband cannot be sued for it, neither can the wife. The Liverpool Adelphi Loan Association v. Fairhurst and Wife, 84.

Coverture-Liability of a widow for a debt contracted during coverture, but whilst holding herself out as a single person.-A., a married woman living apart from her husband, bought household furniture of B., which were delivered at a house in which A. lived, apparently as a single person. After the husband's death, A. promised payment of the debt: Held, that B. was entitled to recover the price and value of the furniture from A. Richdale v. Linwell, 111.

INFANT.

Infancy-Ratification of contract-9 Geo. 4, c. 14.A. accepted a bill of exchange during his infancy, and after attaining his majority, wrote to the holder of the bill, "Pray make yourself easy about it (the bill); I will take care it is paid. And Sir Henry (meaning the father of the drawer) returns to England in June." Quare, was this a sufficient ratification to take the case out of the 9 Geo. 4, c. 14? Per Parke and Alderson, BB., it was not. Per Platt and Martin, BB., it was. Morson v. Bland, 202.

Plea of infancy, in action of tort overruled.-In an

action to be recouped, the amount of damages and costs recovered against the plaintiff by a third party in another court, the original amount of the debt sued for in the other court, and not the costs added to the debt, are recoverable, as the plaintiff seeking to recover over, should have paid the original claim on demand without suit. Mixen v. Dovey, 17.

Necessaries-Acknowledgment by of debt-Statute of Limitations. An infant during minority may acknowledge in writing, under Lord Tenterden's Act (9 Geo. 4, c. 14, s. 1), a debt for necessaries, so as to defeat the operation of the Statute of Limitations. Williams and Wife v. Smith, 21.

INNKEEPER.

Lien of innkeeper-Goods hired by guest.-An innkeeper has no lien for a guest bill on a hired pianoforte. Semble (per Parke, B.), that the right of lien depends on the question, whether the landlord was bound to receive the goods in his house. Broadwood and others v. Granara, 280.

INTERPLEADER.

County Court-Interpleader summons-Amount of seizure-Jurisdiction of Superior Courts.-Where on a plaint in the County Court between A. plaintiff, and B. defendant, execution has issued, under which the goods claimed by C. have been seized, and on notice being given by him, an interpleader summons has issued: the Superior Courts have no jurisdiction to interfere, although the value of the goods seized exceeds 50%. M'Kellar v. J. Summers the younger, 179.

Special case-County Court-Interpleader-High bailiff's costs.-A suit of fi. fa. was executed by the high bailiff of the County Court of Staffordshire. When he had seized the goods a claim was put in by a third person, and an interpleader summons issued on the application of the high bailiff. The interpleader was determined in favour of the plaintiff in the County Court, and the judge ordered that the costs of the interpleader proceedings should be paid by the claimant. The goods were sold, and the proceeds were paid into court, and afterwards taken out by the plaintiff in that court. He afterwards brought this action for his costs against the defendant, the then plaintiff. Stat. 9 & 10 Vict. c. 95, s. 118, enacts that "the judge of the County Court shall adjudicate upon such claim" (on an interpleader summons), "and make such order between the parties in respect thereof, and of the costs of the proceedings as to him shall seem fit, and such order shall be enforced in like manner as any order made in any suit brought in such court." By the 148th rule of practice in the County Courts, "where the claim to any goods or chattels taken in execution, or the proceeds or value thereof shall be dismissed, the costs of the bailiff shall be retained by him out of the amount levied, unless the judge shall otherwise direct:" Held that, assuming that the plaintiff could have deducted his costs out of the proceeds, having omitted to do so he had no right of action against the defendant, the plaintiff in the County Court for his costs. Held, also, that such costs are not fees. Blower v. Haston, 277. Fraudulent transfer of goods to defeat judgment-creditor -Statute of Elizabeth, 13, c. 6-Policy of the law and acts establishing County Courts-Want of possession-Badge of fraud Judgment summons-Committal of defendant under 98th section after verdict against judgment-creditor.-The policy of the law, and the acts establishing County Courts, is, to discourage transfers of property made for the purpose of defrauding creditors. A landlord who allows his tenant to run greatly into arrear with rent, lying by, without recovering or enforcing payment, and immediately previous to a judgment recovered in this court becoming payable, secretly obtains a transfer of all the tenant's property, in discharge of his debt, acts with great impropriety, and his transactions are to be looked on with every suspicion, as thereby he obtains an advantage over other creditors, which he would not otherwise, if he had distrained, be entitled to; as, in the latter case, he could claim only twelve months' rent against an execution-créditor. A vendor's continuing in possession, after an alleged transfer of goods, is itself "a badge of fraud." Where the verdict of a jury is against the execution-creditor, and manifestly erroneous, this court will relieve him of costs, and order them to be paid by the claimant and the creditor in equal portions. A defendant who parts with his property, after judgment and before the time for payment arrives, will be committed for the full period of forty days. Sandry v. Key, 60.

JURISDICTION. Cause of action-County Court judgment-Action on. -An action is not maintainable in a Superior Court upon a judgment in a County Court, established under 9 & 10 Vict. c. 95, or upon the same cause of action for which the plaint in the County Court issued. Austin v. Mills, 13.

Prohibition Title to land-Objection to jurisdiction.A. sued B. in a County Court on a promissory note, given as a deposit on the sale of real estate. B.'s defence was, that the consideration for the note had failed, inasmuch as A.'s abstract disclosed an im

perfect title: Held, that the action involved a question of title to a hereditament within the meaning of 9 & 10 Vict. c. 95, s. 58. The affidavit upon which the prohibition was applied for, did not aver that the objection to the jurisdiction was taken at the trial: Held, nevertheless, that the defendant was entitled to a prohibition, inasmuch as consent cannot give jurisdiction where the action involves a subject-matter not within the jurisdiction of the County Court. When the prohibition was applied for, execution had already issued, and the defendant's goods seized, but not sold: Held, that it was not too late to apply for a prohibition, since there was still something to be done. Marsden v. Wardle, 84. Defendant residing within the jurisdiction of one court, and having a business within another. Whiley v. Stiff, 58. Replevin― Jurisdiction of the Co. C.-Prohibition.— Semble, that the jurisdiction of the new Co. Courts in replevin extends only to cases where the distress was for rent in arrear or for damage faisant. Harries v. Hands and another, 134.

Title to office-Incorporeal hereditament-Prohibition.A plaintiff in the Co. C. claimed from the defendant as an inhabitant householder within the chapelry of B., certain arrears of "the ancient customary yearly wages, or sum of 4d. from each householder, payable at Easter," to which he alleged himself to be entitled, as "parish clerk of the said chapel and chapelry." The defendant disputed the title of the plaintiff to the office of clerk, and also his right to the payment claimed: Held, that this was a case in which the title to an incorporeal hereditament was in question within the meaning of sect. 58 of 9 & 10 Vict. c. 95, and that consequently the Co. C. had no jurisdiction. Re Stephenson v. Raine, 9. Corporation-Costs.— Quære, whether the County Court Acts apply to corporations? Taylor v. The Crowland Gas Company, 282.

LANDLORD AND TENANT. Agreement Terms of holding-Evidence. - In an action for excessive distress, the defendant having seized for two quarters' rent when only one was due, an agreement was produced, the terms of which were" that the rent was to be paid quarterly, and to be due in advance." The agreement was void, under 8 & 9 Vict. c. 106. A receipt given to the plaintiff by the defendant was also produced, which expressed that the sum had been received "for rent due in advance," although it had not been paid in advance: Held, that the agreement and receipt might be received in evidence to show the terms under which the plaintiff held, which were binding upon him as to the terms of holding the premises as a yearly tenant; and semble, per Martin, B. that the agreement alone would have been sufficient for that purpose. Lee v. Smith, 134. In an agreement made between plaintiff and a third person for the letting of a house, and headed as made between them, the defendant undertook to see the rent paid, or to pay it himself: Held, that the agreement showed him to be a party, and that the consideration for his promise was the letting of the house. Cavaliero v. Slater, 67. Stat. 56 Geo. 3, c. 50, s. 11-Sale of farming-stockRemoval of straw by purchaser.-Sect. 11 of 56 Geo. 3, c. 50, is not confined to sales of farmingstock taken in execution; but applies to all sales of farming-stock, and prohibits the removal of straw, manure, &c. off the farm. Wilmot v. Rose, 128.

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. French v. Marsh, 158.

Lease-Assignee of reversion-Forfeiture-Covenant to insure. An assignee of the lessor cannot take advantage of right of entry for breach in the time of lessor of a covenant to insure. A lease, containing a covenant "that lessee will insure at his own expense, in the joint names of the lessor, his heirs and assigns, and the lessee, his executors, administrators and assigns, in such fire office as the lessor, his heirs or assigns, shall direct," was assigned without notice to the lessee. Before the assignment there was no breach of the covenant of which the assignee could take advantage. At the time of action brought by assignee for an alleged breach of this covenant the premises were uninsured; but there was no evidence that defendant had notice of the assignment: Held, that there was no breach of covenant since the assignment, and before action, of which the assignee could take advantage. Crane v. Batten, 176. Lease for three years not under seal-Implied tenancy from year to year-Notice to quit-Statutes 7 & 8 Vict. c. 76, s. 4, and 8 & 9 Vict. e. 106, s. 4.—A tenant occupied premises for three years under an agreement of demise for that term, which was void by statute 8 & 9 Viet. e. 106, s. 4, because not under seal. Upon the expiration of the three years the landlord brought ejectment, without any notice to quit. Held, that the action was maintainable, because, though the statute rendered the instrument void as a lease, and the defendant was only tenant from year to year, that tenancy from year to year

expired by agreement of the parties at the end of three years; and that in this respect the law was the same under statute 8 & 9 Vict. c. 106, s. 4, as it had been under the repealed statute, 7 & 8 Vict. c. 76, s. 4. Tress v. Savage, 178. Construction of agreement-Occupation of premises as tenant or servant.-In an action for breaking and entering the plaintiff's house, the plaintiff set up by the pleadings a right of possession to the house as tenant to the defendant under an agreement, which recited that the house was in the possession of the defendant; that the sale of beer and porter had been carried on therein by a third person on the defendant's account, and that plaintiff was desirous of carrying on the trade there for the defendant; and then provided that the plaintiff should and might, from the date thereof, enter upon the premises and conduct therein the trade in the place of and in the same manner and on the same terms as that third person, until the agreement should be determined by the notice thereinafter mentioned. By the same instrument the plaintiff on his part agreed to carry on the business for the defendant, to take from the defendant all the beer and porter to be consumed on the premises, and not to part with the trade or occupation without defendant's consent. It was also further agreed that, upon receiving one month's notice from defendant, plaintiff should, without being paid commission, deliver up possession of the premises, and, upon giving one month's notice, should be at liberty to leave the business and quit the occupation. No notice to determine the agreement had been given on either side. Held, upon the construction of the agreement, that the plaintiff did not occupy the premises as tenant to defendant, but as a mere servant, and that consequently the action could not be sustained. Mayhew v. Shuttle, 227.

Covenant to repair-Action by assignee of part of reversion-Partial merger of term-Surrender-Suspension of right to sue-Prevention of performance by plaintiff's act.-A. demised to G. for ninety-nine years, ending 25th Sept. 1849; and G. under-leased to V. and S. for twenty-five years and a quarter, ending 25th March 1848; and V. and S. demised to T. for twenty-three years, ending 24th June 1848. G. afterwards, by deed, granted his reversion to S. and B. and L., and V. afterwards assigned to S. all his interest in the lease from G. to V. and S.; whereby the term as to one-third became merged in the reversion. S. died before the determination of that lease by effluxion of time; and after such determination, B. and L., as assignees of the remaining two-thirds of the reversion, sued V. upon the covenant to repair. V. pleaded that after the death of S. and T., A., the original lessor, had sued B. and L. for non-repair upon the covenants in T.'s lease; and that that action had been settled by an agreement to which V. was not a party, whereby the representative of T. agreed to give up possession of the premises to A., and B. and L agreed to concur in executing a surrender of the lease as soon as all claims against V. or others relating to the premises should have been satisfied; but that in the mean time the lease should be deposited with a third person in trust for A., and to be produced for the purpose of enforcing any such claims. The plea alleged, that in pursuance of that agreement, possession of the premises had been delivered to A.; and that thereby V. had been prevented from performing his covenant. Upon demurrer thereto: Held, that the plea was bad, inasmuch as the agreement and delivery of possession to A. did not operate as a surrender of all the plaintiff's interest, and was not intended so to operate; and inasmuch as V., the defendant, not being a party to the agreement, might, at the expiration of T.'s lease, have entered for the residue of his term and repaired. Held, also, that the declaration was good, inasmuch as the plaintiffs were entitled to the whole reversion which remained, and were not prevented from suing as assignees under stat. 32 Hen. 8, by reason of the partial merger of the term. Badeley and another v. Vigurs, Executor, fc., 227.

LEGACY.

Action for legacy-Legacy not denied but no assets in hand-Deficiency of summons where no charge of waste-When necessary to issue a second summons under such omission, the costs of the proceedings on first summons not allowed-The action for the legacy and the charge of waste might have been made in one summons.-Practice as to calling causes. Absence of attorney to instruct barrister this time allowed to stand over, but court agreed with the rule of some judges to make the calls peremptory. Bedford v. Foster, 138.

MANDAMUS.

Costs.-Where a party in a court below successfully takes an objection which has the effect of stopping the proceedings against him, and afterwards, upon an application for a mandamus to compel the court to proceed, he unsuccessfully shows cause, he will, as a general rule, be compelled to pay the costs of such mandamus. If, however, there are special circumstances which show that his resistance to the mandamus was well founded, he will not be com

pelled to pay them. A. B. was sued in the Co. C. to recover the costs awarded against him for the expenses, &c. of the guardians of a union, in proceeding against him for a nuisance in a ditch, under the provisions of the 11 & 12 Vict. c. 123 (the Nuisances Removal Act). At the trial he objected that he was not the owner of the ditch, and that, as the title to land came into question, the court, as provided by sect. 58 of the 9 & 10 Vict. c. 95, had no jurisdiction to try the case. The Co. C. judge, being clearly of this opinion, refused to give judgment. But upon a motion of the Q. B. for a mandamus, the court held that, upon a proper construction of the 3rd section of the 11 & 12 Vict. c. 123, the Co. C. had jurisdiction, and made the rule absolute. Upon an application subsequently made to this court for the costs of the rule for the mandamus against the defendant in the action, who had shown cause against it: Held, that the special circumstances in the case exempted the defendant from the payment of the costs. Reg. v. Harden, 35.

MASTER AND SERVANT. Hiring-A gardener, whose wages are paid weekly, is a menial servant, and entitled to a month's wages. Banks v. Dawson, 135.

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 dismissal. Robert W. Beer v. Edward Smyth, 160.

Evidence-Tort.-Semble, in tort committed, in the course of his duty, by a servant, what is said by him subsequent to the tort is evidence against the master. Baring v. Priestly, 250. Construction of contract-Commencement of hiring.-"I should require you to enter into an engagement for at least three years, at my option, at a salary of 250% a year; and I should further require you to visit some of the principal smelting establishments in England, and to go out by way of Gibraltar." Acceded to by plaintiff: Held, a contract for a yearly hiring: Held that the contract commenced from the time the plaintiff began to visit the smelting establishments referred to in the letter of the defendants. Parke, B. dubitante on the second point. Down v. Pinto and Another, 58.

PARTNERSHIP. Partnership accounts-Balance-Contract in partnership deed-Specialty-debt.-The general balance due on the result of the accounts of a partnership, although the contract for partnership be by deed under seal, is not a specialty-debt, unless there be an express covenant or contract in the deed for payment of the balance. G. H. by his marriagesettlement, under seal, covenanted with a trustee to settle a real estate, B. He afterwards exchanged B, for another estate, M., and 10507., by way of owelty of exchange. He received the 10501., and applied it to his own use: Held, that the 10501. was a specialty-debt due to the trustee from the estate of G. H. Powdrell v. Jones, 248.

PRACTICE.

Common Law Procedure Act-Evidence.-The Common Law Procedure Act 1854, sect. 22, is applicable to suits in equity. And it is so, although the examination had commenced previously to the Act coming into operation. Therefore, a witness was allowed to be produced before the examiner, to prove that another witness produced by the party had, on a previous occasion, made statements inconsistent with his present testimony. In such case the examiner should take down the questions as well as the answers. Buckley v. Cook, 274. Action for penalty-Verdict against evidence-Room for supper and music- Misdirection-New trial.-At Evans's Hotel, Covent-garden, there is a public room provided after nine o'clock for supper and refreshment, with music and singing; no fee on entrance. The place had no licence for music; and in an action for the penalty in consequence, the judge left it to the jury to say whether the refreshment or music was the principal object. The jury answered the former; they were then required to say whether it was used for both purposes; they replied that it was for refreshment only: Held, the direction was correct: Held, also, in an action for a penalty, a new trial is not granted because the verdict was against the evidence. Hall v. Green, 32. A summons issued and served the day before court day in pursuance of rule made to meet a case of emergency, defendant being about to remove out of district, viz., to America. Benjamin Hobson v. Nathaniel Earnshaw, both of Dodworth, 235. Hearing in County Court-Error in adjudication.Where, at the hearing of an insolvent in the County Court, an erroneous adjudication has been recorded by the inadvertence and error of the clerk: Held, that the record may be returned to the County Court to be amended. Re David Cole, 254. Adjournment of hearing from a County Court to Dublin.

The assistant-barrister or judge of a County Court has no authority to adjourn a case for hearing to Dublin, and if he do so, the commissioner in Dublin has no power to deal with it. He cannot even appoint an assignee. Quære, how can the in

solvent be heard in such case? Re Michael Arthur Anthony, 254.

Practice-Affidavit.-An affidavit sworn before the British Consul at Philadelphia referred to a deed, of which it stated the paper writing thereto annexed was a correct copy. The paper writing referred to was attached to the affidavit by a ribbon, under the consular seal; but it contained on the face of it no reference to the affidavit: Held, that the affidavit was irregular, and leave to have it filed by the Clerk of Records and Writs refused. Hewetson v. Todhunter, 83.

Payment of money into court in lieu of bail-Plea of payment into court-Transfer of part to plaintiff's credit.-Where a defendant has paid money into court in lieu of bail, pursuant to stat. 7 & 8 Geo. 4, c. 71, s. 2, he cannot, upon subsequently pleading payment into court of a smaller sum, obtain an order for transferring to the plaintiff's account so much of the sum paid in as will satisfy the plea of payment. Sloman v. Sievert, 56. Committal-Suing jointly.—Where an action is originally commenced against several defendants, one of them cannot be committed for nonpayment of the whole amount of debt and costs. Pierce v. Reeves,

17.

Action against a constable-Notice of action-New trial. -A constable who wrongfully apprehends a person without warrant is not entitled to notice of action unless he bona fide believed at the time he made the arrest, and also had reasonable grounds for his belief, that he was acting within his authority. Trafford v. Yeomans and Long, 63.

Notice of action under the 11 & 12 Vict. c. 63, s. 139 -Person working under direction of Board of Health entitled to. Griffith Davies v. Daniel Jones, 210.

PRINCIPAL AND AGENT. Discounting bills-Representation of genuineness of instruments. If a bill-broker brings a bill to a moneylender to be discounted, declining to indorse or guarantee it, he is still responsible for the genuineness of the instrument; and if the acceptance, upon the faith of which the money-lender discounts it, is forged, and the bill is thereby rendered worthless, he is entitled to recover the amount from the billbroker as money had and received. Gurney and others v. Womersley and others, 274.

PROHIBITION.

Interest of the judge in the cause.-Rule for a prohibition to a judge of a borough court, on the ground of his being interested in the result. Ex parte Lawrence, re Titcombe and others v. Lawrence, 282. Jurisdiction-Defendant sued in two different capacities -Prohibition.-The defendant was sued in the Co. C. as administrator of A. and as executor of B.; and the judge of the court refused to allow evidence that he was not the executor of B., or to call upon the plaintiffs to elect in which character they would sue the defendant; and he further refused to call upon the attorney to prove that he was properly appointed by the plaintiffs who sued in their corporate capacity; but gave judgment generally against the defendant, without distinguishing the proportions for which he was liable in each character: Held, that although this might be a wrong decision, it was no ground for a prohibition. Ex parte Thomas Southgate, re The Guardians of the Poor of the Lexden and Munster Union v. Thomas Southgate, 180.

RAILWAY COMPANY. Amendment of summons.-A plaint to recover the market price of goods not duly delivered by railway altered to entitle a plaintiff to damages by inserting "for value of goods not delivered Goods tendered by railway company, too late for market, in consequence of their negligence, ought not to be altogether refused by the party to whom they are sent, but they might be received and sold for what they would fetch, and the damages sustained would be the difference. So decided in this Blackburn v. The Lancashire and Yorkshire Railway Company, 112. Liability of railway company for damage done to goods, and non delivery at a particular time.-A consignee of goods sent by a consignor by a railway company from a distant place may sue the railway company who were to deliver them to him, for damage resulting thereto, whether such damage actually arise by the act of the latter company or not. Macguire v. The North Staffordshire Railway Company, 17.

case.

Liability of railway company for delay in delivering goods.-Though insufficiently directed when due proof by letters and invoice of the identity of the owner, by keeping them from him after that time, the company is liable for damages for carelessness and negligence. Linley v. Midland Railway Company, 86.

County Court appeal-Nonliability of railway companies to fence as against the cattle of persons who are not occupiers of adjoining land.The cattle of the plaintiffs, without any fault on their part, strayed on a public road running alongside the railway of the defendants, and through a defect in their fences got upon the railway and were killed. The Rail

way Clauses Act, 8 Vict. c. 20, s. 68, enacts that "the company shall make and at all times thereafter maintain the following works for the accom modation of the owners and occupiers of lands adjoing the railway (that is to say), also sufficient posts, rails, hedges, ditches, mounds or other fences for separating the land taken for the use of the railway from the adjoining lands not taken, and protecting such lands from trespass or the cattle of the owners or occupiers thereof from straying thereout, by reason of the railway, together with all necessary gates made to open towards such adjoining lands, and not towards the railway, and all necessary stiles:" Held, that a railway company is only bound to fence as against the occupiers of adjoining lands; that a public highway running alongside a railway is "adjoining land not taken" within the meaning of the above section; but that the owners of cattle straying on a highway, and being wrongfully there, are not occupiers of the highway so as to cast an obligation upon the railway company to maintain a fence against their cattle: Semble, that if the cattle had been passing rightfully along the highway, and had got on the line through a defect in the company's fences, the company would have been liable for any injury they might have sustained, the owner being in that case an "occupier of adjoining land." Wallis and another v. Manchester, Sheffield and Lincolnshire Railway, 56.

Director contracting with company-Illegality of contract in equity-Pleading-Companies Clauses Act, 8 & 9 Vict. c. 16.-A contract made by a director of a railway company, or by a firm of which he is a member, with the company, while he is such director, is bad on general principles; but these principles are enforceable only in a court of equity, and are not recognised in a court of common law. Hence, though Foster v. Oxford, W., and Wolverhampton Railway Company, 13 C. B. 200, may have been rightly decided in the C. P., it is no authority in a court of equity, for the Companies Clauses Act does not make valid such a contract which is otherwise bad on general principles. B., a director of the A. railway, and a member of the firm of B. brothers, while he was such director, entered into a contract with the company to supply a large quantity of iron chairs at a certain price. The company, after accepting delivery of part, refused to receive the rest of the chairs, whereupon B. instituted a suit in the Court of Session, which is a court both of law and equity, praying that the company might be decreed either to specifically perform the contract or pay damages for the breach of contract. The company pleaded that, "under the Companies Clauses Act, any such contract, to which the plaintiff B. was a party while he remained a director of the company, was illegal, and cannot be enforced:" Held, reversing the decision of the Court of Session, that this plea sufficiently raised the general question, whether such a contract is illegal, and that it merely assigned a wrong reason for such illegality, viz., the provisions of the Companies Clauses Act: Held, also, that such a contract was bad in equity, and as the court below was a court of both law and equity, it ought to have decided in favour of the validity of the plea. Aberdeen Railway ComLiability of railway company for not delivering goods pany v. Blaikie Brothers, 244. according to the engagement of their servant.-If the goods' manager at a railway station state to a person delivering goods to be carried by such railway that they will arrive at their destination at a certain hour, and they do not arrive there for some hours after that time, whereby the owner of the goods loses a market for them, the railway company will be liable to the owner for the damages sustained. Blackburn v. The Lancashire and Yorkshire Railwry Company, 18.

Liability for passenger's luggage.-The Great Western Railway Company's Act (5 & 6 Will. c. 107, s. 169), enables every passenger to take with him his articles of clothing not exceeding 40lbs. weight, and four cubic feet in dimensions:-free of charge. The company (empowered by sect. 144, to make by-laws for its regulation and good government), by a by-law provided that every first-class passenger would be allowed 112lbs. weight of luggage, and every second-class passenger 56lbs. of luggage free of charge, but that the company would not be responsible for the care of the same, unless booked and paid for accordingly. A first-class passenger, whilst travelling on the railway with a portmanteau containing his articles of clothing not exceeding 40lbs. in weight, nor four cubic feet in dimensions, lost the same. It had been neither booked nor paid for: Held, that the by-law made was in contravention of the Act of Parliament and bad; and that the plaintiff was entitled to recover for the articles lost. Williams v. The Great Western Railway Company, 179. Action for overcharge by railway in the carriage of goods-for loss of a barrel of fish and loss caused by delay of game and fish.-The railway company using a line belonging to another company for their conveyance, liable unless it could be proved the goods were delivered to the custody of the borrowed line. Raywood v. The Midland Railway Company, 86.