deacon had vacated on being promoted to be Archbishop of Dublin, says: "That when the archdeacon was by the King preferred to an archbishopric, he (the King) has the presentation to the archdeaconry, in respect of the temporalities of the Bishop of Exeter, patron of the archdeacon, and not by any prerogative." In the following case, it was held that the prerogative right of the Crown to present to a benefice in England, vacated by promotion of the incumbent to a bishopric in England, does not extend to a colonial bishopric created by the Crown, and without any jurisdiction except over those who voluntarily submit to jurisdiction. Where the prerogative exists, it is not defeated by the circumstance of the advowson having been granted away by the Crown. Reg. v. The Provost, &c., of Eton College, 30 Law Tim. Rep. 186.

DISEASED ANIMAL.-Action, when maintainable-Exposure of glandered horse.-By the 16 & 17 Vic. c. 62, continued by 19 & 20 Vic. c. 101, it is illegal knowingly to bring, or attempt to bring, a glandered horse for sale into any market, fair, or other open or public place where animals are commonly exposed for sale; but there is nothing in the statute to prohibit the simple sale of such horse. In the following case, the declaration alleged that the defendant was possessed of a horse, and knowing it to be afflicted with the glanders, caused it to be sold by auction at a horse repository, and the plaintiff, believing it to be in a healthy state, became the purchaser, and paid a large sum for it; and by reason of its diseased state, the horse was utterly worthless to the plaintiff, and he paid a veterinary surgeon for examining it; and in consequence of the horse being put into the plaintiff's stable, wherein another horse of his was, the last mentioned horse became infected and died of the disease, and the plaintiff was obliged to pay a large sum in endeavouring to cure it: Held, on demurrer (Pollock, C. B., dubitante), that the declaration disclosed no cause of action. Balls, 27 Law Journ. Ex. 45.

Hill v.

DISTRESS.- Conversion Money had and received, evidence of Restoration of goods unsold, and surplus proceeds of goods sold.-The case of a landlord after a distress is quite different from the class of cases where, in the ordinary course of commercial dealing, parties are made aware that they have possession of the goods of others; for a landlord distraining exercises a legal right, and may decline, in the exercise of it, to embarrass himself with the rights of third parties. He may restore the goods remaining unsold to the premises from which he removed them, and may leave any stranger who claims them to enforce his right against the tenant. The liability of goods to distress does not depend on the ownership of them, but upon their being found

on the premises demised. To whomsoever they belong, they may be seized for rent. In the following case, it was held that a landlord or bailiff who has distrained, even if not bound (as, semble, he is) to restore goods remaining unsold to the premises on which he distrained them, is at liberty to do so; and his doing so will not be a conversion, even although they are the goods of third parties, and the bailiff has had notice of this from them, after the impounding, and has promised to act on the notice, both as to goods unsold, and the surplus proceeds of goods sold for such a promise does not impose any duty on the bailiff to deliver the goods to the right owner, neither will it sustain an action for money had and received to recover the surplus proceeds of the goods sold. Evans v. Wright, 27 Law Journ. Ex. 50.

MALICIOUS PROSECUTION. Reasonable and probable cause-Evidence of malice-Continuing unauthorised proceedings.-There is a material distinction, as to liability for malicious prosecution, between the institution of the prosecution and its continuance, after it has been already instituted, without authority, by an agent. And the absence of reasonable and probable cause, which might be evidence of malice in the one case, will not be so in the other. Where the party put in possession under a bill of sale had issued a summons against the assignor for feloniously stealing some of the chattels assigned, and the assignees attended the hearing, and allowing the case to be opened on the behalf of prosecutors: Held, that the absence of reasonable and probable cause would not be evidence of malice as against them; and, quære, whether there was such an entire absence of reasonable and probable cause as would, in any case, be evidence of malice. Weston v. Beeman, 27 Law Journ. Ex. 57.

SHIPPING.-Insurance on ship—Abandonment— Right of abandonees to compensation in the nature of freight for carriage of the shipowner's goods prior to the casualty.-The underwriters of a policy on a ship are not entitled, upon the abandonment of the ship to them, to any compensation in the nature of freight for the carriage of the shipowner's own goods prior to the happening of the casualty to which the abandonment refers; even though the shipowner may have insured with other underwriters under the designation of freight, the increased value of his goods by reason of their being carried on the voyage during which the accident happens. But for the carriage of the shipowner's goods after the casualty, the underwriters are entitled to such compensation, to be calculated according to the current rate of freight. Miller v. Woodfall, 30 Law Tim. Rep. 240.

ment, 15 & 16 Vic. c. 44-Expense of forwarding passengers by other ships.-The plaintiffs, shipowners, effected with the defendants a policy "against all costs, charges, and liabilities to which the owners or charterers of the ship M. P. might be subject under the clauses 46, 47, 48, 49, and 150 of 15 & 16 Vic. c. 44" (Passengers Act Amendment). The ship struck on a bank about sixty miles from her port of discharge on the voyage insured; and the captain incurred a large expense in hiring steamers, into which, after vain endeavours to haul the vessel off the bank, he transferred her passengers who were taken on board such steamers to their destination: Held, that assuming the expense was within the policy, in estimating it such part of the expenditure as had reference to the attempts to get the vessel off, so that she might prosecute her voyage, ought not to be taken into account, but only so much of the hire of the steamers as was paid for the carrying the passengers to the place where the voyage ought to have terminated. Quare, whether the plaintiffs were entitled to recover anything. Bains v. The Royal Exchange Assurance Company, 6 Week. Rep. 247.

STATUTE OF LIMITATIONS.-Signing acknowledgment. The defendant pleaded a plea of the Statute of Limitations to an action on two promissory notes. It was proved that he had at the request of the plaintiff made a statement in writing of his affairs, beginning with the words "J. Mackrill," in his own handwriting, and in which he debited himself with the notes given to the plaintiff: Held, that the statement was signed within the meaning of the statute, and involved a promise. Holmes v. Mackrill, 30 Law Tim. Rep. 243.

THE METROPOLITAN BUILDING ACT.— Exemption of building belonging to and used for the purposes of a railway company-Surveyors' fees.-By 8. 6 of 18 & 19 Vic. c. 122, buildings belonging to and used for the purposes of a railway company under the provisions of an act of Parliament are exempted from the operation of the first part of that act: Held, that the exemption extends to a stable made by walls built at each end of, and closing an arch under, a viaduct on the North Kent Railway. The Secretary of the North Kent Railway Company v. Badger, 6 Week. Rep. 246.

TROVER.-Measure of damages where an offer to return the chattels has been made after writ issued.— In trover the conversion proved was a refusal to deliver upon demand; but it was also proved that after a writ was issued the defendant offered to return the chattels; which offer was then declined: Held, that the measure of the damages was the value of the chattels at the time of the conversion, and not the difference in their value between the

time of the conversion and the offer to return. Homer v. Mallars, 30 Law Tim. Rep. 241.

TROVER.-Conversion-Evidence of, by implied. admission by defendant not called as a witness to explain it.-Although, where there is no evidence in itself to affect a defendant, the mere fact that he is not called as a witness is not sufficient to sustain a verdict against him; yet if there is some evidence against him (as an implied admission on his part), then the circumstance that he is not called to explain it may be enough to turn the scale and sustain the verdict. In an action for the conversion of a bill of exchange, it being proved that the defendant had said, in answer to a demand for it, that he could not give it up because it had been burnt, and the defendant not being called as witness: Held, that the case was rightly left to the jury, and that their verdict for the plaintiff was justified by the evidence. M'Kewen v. Cotching, 27 Law Journ. C. P. 41.

TROVER.-Conversion-Title- Plaintiff's fraud —Receipt given to deceive third parties-Simulated sale. -Where goods are proved to have been transferred by deed, they are proved to have been actually transferred, for at the moment of the deed being executed, the goods cease by law to be the property of the person executing the assignment, and from that moment become the property of the person in whose favour the deed is executed. But that is not the case where what is done is the giving of an invoice, and of a receipt, and no money passes, and the transaction is a mere sham. There is an essential difference between a release and a receipt: the former must be set aside, or it will otherwise operate as a bar to an action; but a receipt is only evidence of payment, and the jury are not bound to find that payment was made simply because a receipt was given, where the other evidence shows that there was no payment. The case of Alner v. George (1 Camp. 392) was overruled by Graves v. Key (3 B. and Adol. 318), in which last case Lord Tenterden said "a receipt is an admission only, and the general rule is that an admission, though evidence against the person who made it, and those claiming under him, is not conclusive evidence, except as to the person who may have been induced by it to alter his condition." These observations will explain the following case. The plaintiff, apprehending that an execution might be put in upon his goods, colluded with the defendant that in the event of their seizure, the defendant might appear to be the owner of them, and with that view made out an invoice of the goods to the defendant, gave a receipt for the purchase. money, and a person was put in possession, as if for the defendant, no money passing, and the entire transaction being a sham: Held, that the plaintiff might maintain an action against the defendant for

the conversion of these goods, and that he was not precluded from showing that the receipt was given merely to defraud execution creditors; and that the property in the goods was never transferred. Alner V. George (1 Camp. 392) overruled. Bowes v. Foster, 6.Week. Rep. 257.

WAY, RIGHT OF.-Construction of agreement— Reasonable use of the way-Question for the jury — Trespass.-Where premises are demised or conveyed "with right of way thereto," it may be a question for the jury what is a reasonable use of such right. Where a right of way was expressed to be " through the gateway" of the plaintiff (which gateway led to other premises of the plaintiff), and, at the time of the lease, carts could come in to load and unload, and turn round and go out again, but, through alterations of the premises, could not now do so without slightly trenching upon the plaintiff's premises: Held, that in the reasonable use of the right of way, the defendants had a right to do this; and that what was a reasonable user was for the jury. Hawkins v. Carbines, 27 Law Journ. Ex. 44.

COMMON LAW PRACTICE.

ARBITRATION.-Award disposing of each issue raised by the pleadings.-Where an action, in which there are several issues, is referred, the arbitrator should not certify for a general verdict only, but should dispose of each issue. Holland v. Judd, 30 Law Tim. Rep. 275.

ARBITRATION.

Compulsory reference-Ac

count. The court will not refer an action upon a mere account compulsorily, unless it be shown that it cannot be conveniently tried by a jury. Pellatt v. Markwell, 30 Law Tim. Rep. 275.

ARBITRATION.-Some issues found for plaintiff and others for defendant-Costs.-Where, by the terms of the submission, the costs of the reference and of the cause are to abide the event of the award, and the declaration contains counts upon distinct causes of action, some of the issues upon which the arbitrator finds for the plaintiff, and some for the defendant, so that the plaintiff recóvers damages for the one cause of action and not upon the rest, the event of the award being in favour of the plaintiff, he is entitled to the costs of the cause. Reynolds v. Harris, 30 Law Tim. Rep. 275.

ARREST.-Civil process-Privilege [vol. 3, p. 158]-Witness-Police court-Voluntary attendance. -In Exparte Cobbett (26 Law Journ. Q. B. 293), it was held that a person who attended before a justice of the peace to obtain a summons on a complaint against a clerk of turnpike trustees for penalties was not privileged from arrest on civil process in returning to his residence. In the folowing case it was held that a person attending

before a police magistrate as a witness on a charge of felony after a remand, is privileged from arrest on civil process, eundo, morando, et redeundo, though he was not under recognisances or summons to appear. Montague v. Harrison, 27 Law Journ. C. P. 24.

ATTORNEY. Striking off roll Answering matter of affidavits.-In motions impeaching the conduct of attorneys of this court, the rule is, that where the matter alleged against an attorney is not of itself sufficiently grave, when proved, to justify the striking of his name off the rolls, the motion should simply call upon him to answer the matter of affidavits, but where the matter is sufficiently strong to require his removal from the rolls the motion should take the severer form, and be made to strike him off the rolls. Re An attorney, &c., 30 Law Tim. Rep. 243.

BILL OF EXCHANGE ACT.-Summary remedy -Right of defendant to appear and defend under 18 & 19 Vic. c. 67.-The defendant has a right to set up any defence to a bill of exchange which is not merely fictitious, and cannot be deprived of this right under 18 & 19 Vic. c. 67. Matthews V. Marsland, 6 Week. Rep. 244.

BILLS OF EXCHANGE ACT.-18 & 19 Vic. c. 67—Costs-City of London Small Debts Act.—By the 18 & 19 Vic. c. 67, the plaintiff may recover a sum for costs, to be fixed by the masters of the superior courts, subject to the approval of the judges. It has been decided that the City of London Small Debts Act, 15 & 16 Vic. c. lxxvii., does not deprive . a plaintiff of his costs under the above act of the 18 & 19 Vic. c. 67, where the bill sued upon is under £20, and the plaintiff and defendant both reside within the limits of the City of London Act. Healey v. Johns, 6 Week. Rep. 261.

COSTS.-Security for-Increase of security.Where, upon an interpleader, a party has been let in to defend on the condition of his paying money into court, and giving security for costs to an amount to be fixed by the master, on whose decision security has been given to a certain amount. Quære, if the court can order that security to be increased. At all events, the court will not do so merely because it turns out that, by reason of commissions or from other causes which were not unforeseen when the master settled the amount of security, the costs are likely to exceed the amount for which the security was given. Foster v. Colby, 27 Law Journ. Ex. 55.

ments in three actions against A., and issued three writs of elegit indorsed to levy £1,143 10s., £6,003 10s. and £1,411 respectively. The sheriff held an inquisition, by which it was found that A. was possessed of a term of years in certain property of the annual value of £3,000. The sheriff received poundage at the rate of one shilling in the pound on £3,000, the alleged annual value, but he claimed poundage also on the two other writs: Held, that the sheriff had spent his power under the first writ, and had seized all that could be taken under it, and that therefore the lands could not be extended under the second and third writs, and that no poundage was payable under them. Carter v. Hughes, 30 Law Tim, Rep. 275.

INTERROGATORIES.-Too extensive, rejected— Amendment by the court or judge.—If interrogatories are drawn far too wide, it is not for the court or a judge to cut them down to the proper limits, but they will be rejected in toto. Robson v. Crawley, 6 Week Rep. 260.

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INTERROGATORIES.- Neglect to answer Attachment-Oral examination of the parties.-Section 51 of the Common Law Procedure Act, 1854, provides that if the party omits, without just cause, sufficiently to answer, he shall be deemed to have committed a contempt of court. Section 53 enacts that in case of omission, without just cause, to answer sufficiently the interrogatories, the court may direct an oral examination. The Court of Exchequer has decided, that where a party to whom interrogatories have been allowed to be administered, under the Common Law Procedure Act of 1854, s. 51, has neglected to answer at all, without just cause, it may be admissible to apply for an order, under section 53, for his oral examination, instead of proceeding by way of attachment for contempt; at all events, where there is a question whether, by reason of illness, or on account of co-parties to the suit having sufficiently answered, or otherwise, the neglect is not altogether without "just cause," and certainly is not wilful or contumacious in the sense of a defiance of the authority of the court. But the rule for an oral examination is only nisi in the first instance. Turk v. Syne, 27 Law Journ. Ex. 54.

JUDGMENT.-Revising judgment more than ten years old-Motion to enter suggestion under C. L. P. Act, 1852-Application by executors of administrator of deceased plaintiff.-The executors of an administrator of a deceased plaintiff are not entitled to revive a judgment more than fifteen years old by entering a suggestion under the C. L. P. Act, 1852.. Croft.v. Foulkes, 30 Law Tim. Rep. 241.

PUBLIC COMPANY.-Joint Stock Banks Regulation Act-7 & 8 Vic. c. 113, s. 21-Scire facias against legal representatives of deceased shareholder.—

By sec. 21 of the 7 & 8 Vic. c. 113, "the persons whose names shall appear from time to time in the then last delivered memorial, and their legal representatives shall be liable to all legal proceedings under this act as existing shareholders of the com. pany, and shall be entitled to be reimbursed as such existing shareholders only out of the funds or property of the company for all losses sustained in consequence thereof." It has been decided that the words in the above section, the "legal representatives" of a person whose name appears in the last delivered memorial, are only liable in respect of that person's estate and effects where that person would have been liable in his lifetime in consequence of his name so appearing. Therefore, where the name of a deceased shareholder in a joint stock bank was inserted after his death, in the last delivered memorial, and an action was subsequently brought against the bank, and judgment recovered against the official manager, and no satisfaction could be had out of the property of the bank: Held, that the executors of the person whose name was so inserted were not liable in respect of his estate and effects in a scire facias on the judgment. Powis v. Butler, 6 Week. Rep. 252.

VENUE.-Change of, on common affidavit unanswered.-The usual affidavit on the part of the defendant on an application to change the venue to the assizes-i. e. that the cause of action arose in the country, and that the parties reside there, and their witnesses-is sufficient, if unanswered. But, per Martin, B., it is answered by the inconvenience arising from the delay of the action until the assizes, unless that is counterbalanced by some advantage on the other side; as, for example (when the question is only as to amount) the defendants undertaking to pay money into court. Gough v. Bertram, 27 Law Journ. Ex. 53.

WRIT OF SUMMONS.-Altering date of writ of summons.-The date of a writ of summons cannot now be altered after it is issued. Clarke v. Smith, 6 Week. Rep. 260.

PROBATE AND DIVORCE.

ADMINISTRATION.

Practice Presumption of death-Advertisements in newspapers.-W. T. N., a settler in New Zealand, embarked July 1st, 1856, in a vessel bound for Sydney, on his way to England. The vessel never reached Sydney; and as no intelligence after inquiries had been instituted was obtained as to the vessel or any of those on board, she was supposed to have foundered at sea in some heavy gales which occurred at the time she was making the voyage in question: Held, that the death of W. T. N. was to be presumed. Semble, that advertisements in newspapers for a person supposed to be dead may be dispensed with, where his history

is traced up to a period shortly prior to his death. Re Norris, 6 Week. Rep. 261.

ADMINISTRATION.-Practice-Presumption of death-Payment of policy by underwriters.-A. M. sailed from Liverpool in the Brevel, January 27th, 1857, for Valparaiso. The voyage should have been made in ten weeks. Nothing had been heard of either the Brevel or crew since she left Liverpool. The Brevel was insured, and underwriters had paid policy thereon, as upon a total loss: Held, that the death of M. was to be presumed; that payment of policy by underwriters was strong evidence in favour of such presumption. Re Main, 6 Week. Rep. 262.

COUNSEL.-Privilege of- Non-contentious business.—Barristers-at-law are not admissible to practice in the Court of Probate in non-contentious business. Motion for grant of letters of administration is non-contentious business. Re Ludlow, 30 Law Tim. Rep. 278.

DISSOLUTION OF MARRIAGE.- Adulterer made a co-respondent.-The 28th section of the 20 & 21 Vic. c. 85, directs, that upon any petition for dissolution of marriage, presented by a husband, the petitioner shall make the alleged adulterer a corespondent to the petition, unless, on special grounds to be allowed by the court, he shall be excused from so doing. It has been held that a suggestion that the husband had, before the commencement of the act, obtained a verdict and recovered damages in crim. con. action, is no special ground to excuse him from making the alleged adulterer a co-respondent to a petition for dissolution of marriage. Anonymous, 30 Law Tim. Rep. 278.

PROBATE.- Property out of province-20 & 21 Vic. c. 77, s. 87-Additional probate duty. By sec. 87 of the 20 & 21 Vic. c. 77, it is provided that legal grants of probate and administration made before commencement of this act, and grants of probate and administration made legal by this act, shall have the same force and effect as if they had been granted under this act; but in every such case there shall be due and payable to her Majesty such further stamp duty, if any, as would have been chargeable on any probate or administration which, but for this act, would or ought to have been obtained in respect of the personal estate not covered by the grant. In the following case, it appeared that a grant of probate was taken out in the Prerogative Court of Canterbury to cover property, part of which was within, and part without, the province of Canterbury : Held, that such grant of probate took effect under 20 & 21 Vic. c. 77, s. 87, as to the property without the province; that the same amount of probate duty must be paid, as would have been before this

act came into operation. Re Frecklington, 6 Week. Rep. 262.

WILL.-Subscription of attesting witness.—W. F. having signed his will in the presence of two witnesses, A. and B.; B. being unable to write, A., by his request, guided his hand when he subscribed the will: Held, that the subscription of B. was valid. Re Frith, 6 Week. Rep. 262.

BANKRUPTCY.

ARRANGEMENTS.-Dismissal of petition-Act of bankruptcy—Relation back.—By sec. 76 of the 12 & 13 Vic. c. 106 (the Bankrupt Law Consolidation Act), it is enacted, that the filing of a petition by any such trader for an arrangement between such trader and his creditors under the provisions of this act with respect to arrangements between debtor and creditor under the superintendence and control of the court shall be accounted and adjudged conclusive evidence of an act of bankruptcy committed by such a trader at the time of filing such petition, provided a petition for adjudication of bankruptcy shall, be filed against him within two months after such petition for arrangement shall have been dismissed; provided also, that no adjudication shall be made on any such act of bankruptcy unless and until after such petition for arrangement shall have been dismissed. The 223rd section provides that if such petitioning trader shall not duly attend the sitting of the court, &c., such petition shall be dismissed; and if at the first private sitting of the court, or at any adjournment thereof, the proposal of the petitioner, or some modification thereof, be not assented to, it shall be lawful for the court to adjudge such petitioner a bankrupt, and to adjourn all further proceedings in the matter into the public court, and to advertise such adjournment, and to appoint sittings for choice of assignees, and for last examination, as in bankruptcy. In the following case, it appeared that a debtor on the 25th June, 1855, presented his petition (under the Bankrupt Law Consolidation Act, 12 & 13 Vic. c. 106, s. 211) for arrangements with his creditors, but he did not attend at the adjourned meeting on the 6th August following, so that neither his proposition nor any modification thereof was accepted by his creditors. The meeting was adjourned to the public court, and the debtor adjudicated bankrupt. The petition he had presented was not in fact dismissed. Between the time of presenting his petition and the alleged adjudication in bankruptcy, on the 5th July, 1855, he assigned a debt due to him to a creditor, and notice thereof was at once given to the debtor. As above stated, it is enacted, by sec. 76, that the filing of a petition by a trader under the arrangement clauses shall be