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between us. But I must insist upon the practical remedy being pointed out for levying the rate upon the refusal of a rate by the vestry. Mere dicta as to the obligation upon the parish to repair will not invalidate my position."

We have given more than mere dicta as to the obligation, which the common law, the canon law, and the statute law concur in proving beyond the shadow of a doubt. The utmost that Sir John Campbell can be considered to have established is a doubt as to the precise mode of enforcing it, but the doubt is in which Court proceedings are to be taken; there being no doubt, in the opinion of the best lawyers, that if there be no effective remedy in the Spiritual Courts, the Court of King's Bench is not merely competent, but bound, to interfere.

What, then, setting party considerations aside, was the duty of the chief law officer of the Crown? Surely to support and maintain the law, instead of unsettling its authority, and be amongst the first to remedy its defects by legislative enactment (if necessary), instead of writing bad pamphlets to aggravate the mischief of uncertainty. Judging from the probable results, one might almost fancy that the AttorneyGeneral had acted less with a view to the success of the Church Rate Bill (of which the Government are already heartily ashamed) than with a view to the filling of his own pockets by fees for resisting the enforcement of a duty, which has hitherto afforded hardly any scope for litigation, because it has been habitually and prescriptively observed. The prestige is now fairly broken, and there will be parish squabbling and local agitation enough to satisfy even our agitation-loving ministry, who can only keep their places by exciting and fostering a general feeling of discontent.

In conclusion, we have one remark to offer upon the style and tone of this production, which are on a par with its spirit and tendency. Nisi prius advocates, of the Attorney-General's cast of mind, are in the habit of dealing about assertions at random, and taking their chance for the proof. This may do very well with an ignorant or careless jury, but it will not do to adopt the same habit in writing, where the exaggeration may be fixed, followed and exposed; and we recommend Sir John Campbell to be more cautious in his next effort of this kind.

H.

DIGEST OF CASES

COMMON LAW.

[Comprising 4 Adolphus & Ellis, Part 2; 6 Nevile & Manning, Part 3; 1 Nevile & Perry, Part 2; 2 Meeson & Welsby, Part 2; Moody's Crown Cases Reserved, Part 4; 1 Moody and Robinson, Part 4; 5 Dowling's Practice Cases, Parts 2 & 3; and a selection from 7 Carrington and Payne, Part 3:-all Cases included in former Digests being omitted.-5 Tyrwhitt, Part 4, just published, contains no Case not before digested.]

AFFIDAVIT.

In an affidavit by an attorney's

1. (Statement of deponent's residence.) clerk, it is unnecessary for him to state his own residence, if he states that of his master.-Strike v. Blanchard, 5 D. P. C. 216.

2. (Title, amendment of.) An affidavit on which a rule has been obtained, but improperly entitled, may be taken off the file and amended, on payment of costs, the opposite party having leave to file affidavits in reply.— Rex v. Justices of Warwickshire, 5 D. P. C. 382.

3. (Sworn before Attorney's Clerk.) An affidavit sworn before the clerk to an attorney who makes an application that his client may be admitted as a party to a cause, is not within the prohibition of the rule of H. 2 W. 4, s. 6.-Doe d. Grant v. Roe, 5 D. P. C. 409.

AFFIDAVIT TO HOLD TO BAIL.

1. (By Indorsee of Note.) In an affidavit of debt by the indorsee of a promissory note against the maker, it is not necessary that the deponent should describe himself as the indorsee, if he traces title to himself; nor is it necessary to allege the maker's default.-James v. Trevanion, 5 D. P. C. 275.

2. (On bill of exchange-Time to object to, by prisoner defendant.) A prisoner comes too late, after 19 days, to object to a defect in the affidavit to hold to bail.

Semble, that an affidavit to hold to bail is not sufficient, which states that the defendant is indebted in "principal monies" due on a bill of ex

change, unless it also states the amount for which the bill is drawn.- Fowell v. Petre, 1 N. & P. 227; 5 D. P. C. 276.

AGREEMENT.

(Construction of.) Assumpsit for work done under the following agreement:

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." Mrs. E. agrees with Mr. B. to cleanse the cesspools to the 13 houses in S. street for 8l. 2s.; Mr. H.'s rent balance to be deducted from the said sum." H. was a weekly tenant to the defendant of one of the houses. The agreement was signed in the middle of one of the weeks of his tenancy. At that time 21. was due from him for rent; but when the work was completed, another week's rent had become due. The judge, at the trial, having expressed an opinion that the rent-balance meant the amount due when the agreement was signed, and the verdict having been found accordingly, the Court refused a new trial.- Edwards v. Bagster, 2 M. & W. 221. AMENDMENT.

1. Where a verdict was taken for the plaintiff, and all matters in difference in the cause were referred to an arbitrator, who certified, that for the justice of the case the record ought to be amended, by allowing the plaintiff to substitute a replication putting all the circumstances of the plea in issue; the Court held that they had no power to direct such an amendment.-Cross v. Metcalfe, 1 N. & P. 232.

2. In case for fraudulent misrepresentation, an amendment of the misrepresentation charged may be made at Nisi Prius, under the 3 & 4 W. 4, c. 42, s. 23.-Mash v. Denham, 1 M. & Rob. 442.

3. An amendment of a declaration will not be allowed under 3 & 4 W. 4, c. 42, s. 23, if it appears probable that the variance may have prevented the defendant from pleading a good bar to the action.-Ivey v. Young, 1 M. & Rob. 545.

ANNUITY.

(Enrolment.) A deed of separation, after reciting that differences sub

sisted between the husband and wife, and that they had agreed to live separate, and that the husband had agreed to give trustees, for the benefit of the wife, a life annuity for her maintenance, witnessed, that in consideration of 107. paid by each of the trustees to the husband, and of the covenants thereinafter contained, the husband granted to the trustees a life annuity of 2007. for the wife's benefit; and there was a covenant by the trustees to indemnify the husband from the debts of the wife: Held, that the deed need not be enrolled under the 58 G. 3, c. 141, s. 2. (2 B. & C. 881; 4 Bing. 214; 3 B. & Ad. 602.)-Carter v. Smith, 6 N. & M. 480.

ARBITRATION.

1. (Arbitrator's authority.-Finality of award.-Time for setting aside award.) Where in covenant, several breaches being assigned, a verdict was taken for the plaintiff on one issue, and damages assessed at 107. subject to the award of an arbitrator, to whom the cause and all the matters in difference were referred, with power to direct what should be done be

tween the parties, and with liberty to supply a defect in the record; and he assessed damages on the other issues also, and directed a verdict on them for the amount so assessed: Held, that he had thereby exceeded his authority, and that the award was bad.

Where two substantial matters are referred to an arbitrator, and he finds on one of them only, the award is bad altogether, as not being conclusive. Where a cause and all matters in difference are referred, a motion may be made to set aside the award at any time during the next term after its publication: where the cause only is referred, and the arbitrator is put into the place of the jury, the motion must be made within the first four days. - Hayward v. Phillips, 1 N. & P. 288.

2. (Award as to costs—Attachment.) If an award directs costs to be paid in equal proportions by several persons, a separate attachment must be obtained against each for their non-payment.-Gulliver v. Summerfield, 5 D. P. C. 401.

3. (Award-Excess of arbitrator's authority.) If a cause is referred to an arbitrator, the costs to abide the legal event, it is an excess of authority to award a stet processus (5 B & Ad. 403; 10 Bing. 507; 2 C. & M. 722.)

Where several issues are referred to an arbitrator, it is not indispensably necessary for him to award on each issue, if his intention on each of them is sufficiently clear from the general language of the award.-Hunt v. Hunt, 5 D. P. C. 442.

And see AMENDMENT, 1.

ARREST.

Where a defendant has been arrested on a ca. sa., to execute which the officer has broken an outer door, the Court will discharge him out of custody on

1

a summary application. (Bac. Abr. Execution, n.. Cowp. 1.)-Hodgson v. Towning, 5 D. P. C. 410.

ARSON.

An open shed in a farm yard, composed of upright posts supporting pieces of wood laid across them, and covered with straw as a roof, is an outhouse, within the meaning of the 7 & 8 G. 4, c. 30, s. 2.

To constitute a setting on fire, it is not necessary that any flame should be visible.— Rex v. Stallion, Moo. C. C. R. 398.

The prisoner was convicted on an indictment for setting fire, with intent to injure A. B. The property fired belonged to A. B. The jury found the intent to injure C. D.: Conviction held good.

An indictment under 7 & 8 G. 4, c. 30, s. 17, for setting fire to a stack of straw, is good, without stating any intent to injure.-Rex v. Newill, Moo. C. C. R. 458.

An unfinished building, intended as a cart-shed, which is boarded up on all its sides, and has a door with a lock to it, and the frame of a roof with loose gorse on it, because it is not yet thatched: Held to be a building, within 7 & 8 G. 4, c. 29, s. 44.-Rex v. Worrall, 7 C. & P, 516.

ASSAULT. See EVIDENCE, 7.

ATTACHMENT.

1. Semble, where a plaintiff is entitled to an attachment, pursuant to the rule of H. T. 3 W. 4, against the sheriff for not obeying a judge's order in vacation to bring in the body, although the defendant is afterwards rendered in vacation, he is bound to apply for the attachment promptly in the following term.-Rex v. Sheriff of Middlesex, 5 D. P. C. 245.

2. It is no answer to a rule for an attachment, that the judge's order, which has been made a rule of Court, has not been personally served, if the rule itself has been regularly served.-Greenwood v. Dyer, 5 D. P. C. 255. 3. If a defendant will not take the copy of an award and rule, the other requisites of a service being complied with, it is sufficient for a rule nisi for an attachment.-Ellis v. Giles, 5 D. P. C. 255.

4. (When to stand as security.) A plaintiff has not lost a trial in a town cause, if he could have proceeded to trial at any time in the term next after the return of the writ; and therefore where a plaintiff might have proceeded to trial at the third sittings, though not at the first, he is not entitled to have the attachment stand as a security.-Rex v. Sheriff of Shropshire, in Chappell v. Bowdler, 5 D. P. C. 256.

5. (For not obeying subpæna.) The affidavit whereon to obtain an attachment for not obeying a subpoena, must state that the original subpœna was shown at the time of serving the copy. (1 C. & M. 87; 5 N. & M. 432.)-Garden v. Cresswell, 5 D. P. C. 461.

And see BAIL, 1, 8.

ATTORNEY.

1. (Admission.) A party intending to apply for an original admission as an attorney, must, under the rule of H. T. 6 W. 4, s. 5, cause the required notices to be delivered at the master's or prothonotary's office (as the case may be,) three clear days before the commencement of the term next preceding that in which he proposes to be admitted. In re Prangley, 6 N. & M. 421.

2. (Same.) Where an articled clerk to an attorney had legally changed his name shortly before the expiration of his articles, and in his notices of intention to apply for admission as an attorney, had described himself by his new name, without any notification of the change, the Court, upon motion on the first day of term, gave permission for him to be admitted on the last day of term; but required that a notice should be up till the end of the term with both names.-In re Ridley, 6 N. & M. 436.

3. (Penalty for practising in County Court.) An attorney who has neglected to take out his certificate in pursuance of the 37 G. 3, c. 90, s. 31, is not liable to the penalty imposed by the 12 G. 3, c. 13, s. 7, for practising in the County Court. (3 Ad. & E. 224; 1 B. & Cr. 254.)-Hodkinson v. Mayor, 1 N. & P. 397.

4. (Privilege of attorney defendant.) The privilege of an attorney defendant to be sued in his own Court, is not taken away by the Uniformity of

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