But the practice is still to be restrained, on the principle formerly recognized, where the course of pleading manifestly tends to vexation. An action of debt was brought for compensation assessed by a sheriff's special jury, under the Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 18. The declaration stated that A., B., C., &c. and N., twelve persons in number, were by the sheriff duly chosen, tried and sworn to assess, and did assess, the compensation. Defendants pleaded, among other pleas, by leave of a judge and rule of court for pleading several matters, that A., B., &c., the first eleven persons abovenamed as jurors, and J. F., whose name was substituted by the plea for that of N., whereby the sheriff chosen, tried and sworn to assess, and whereby the jury lawfully chosen to assess, &c., without this that N. was duly chosen, &c., and sworn to assess, &c., or had any power to act as a juryman on the inquiry. On motion to rescind the order and rule for pleading the matters of the several pleas, it appeared by affidavit that after twelve special jurors had been sworn to assess, &c., and before any hearing, one juryman, N., became too ill to proceed, and was excused, and F. was sworn in his place and served with the other eleven jurors. This was objected to on the part of the defendants, but neither the jury nor any juryman was challenged. The inquiry proceeded, and counsel on both sides were heard, and a verdict taken for the plaintiff. Costs were taxed before the Master, both parties attending. The defendants then moved for a certiorari to bring up the proceedings; a rule nisi was obtained, and discharged on argument. On receiving notice that an action would be brought, the defendant's attorney wrote an answer denying the plaintiff's right to recover. The defendants did not, in any of these proceedings (except on the inquiry as above stated) intimate an objection to the jury, as improperly constituted: Held, under these circumstances, that the above plea, pleaded with others, was vexatious, and a perversion of justice; and the court rescinded the judge's order under which it was pleaded, and compelled the defendants to elect whether the above or the other pleas on the record should be retained. Cooling v. Great Northern Railway Company, 15 Q. B. 486.

SHERIFF.-Escape-5 & 6 Vict. c. 98, s. 31-Damages.-In an action against the sheriff, in which the damages for the escape of an execution debtor were to be assessed upon the same principle as in an action under the 5 & 6 Vict. c. 98, s. 31: Held, that the true measure of damages is the value of the custody of the debtor at the moment of the escape, and that no deduction ought to be made on account of anything which might have been obtained by the plaintiff by diligence, after the escape. Arden v. Goodacre, 20 Law J. (N. S.) C. B. 184.

SLANDER.-Privileged communication-Words spoken in presence of third party. The defendant having a suspicion that the plaintiff, who was his shopman, had in one instance embezzled money, sent for him, and in the presence of A. B. charged him with

embezzlement, and at the same time discharged him from his service. After his discharge, the plaintiff being about to enter into a fresh service, referred to the defendant for a character, but in consequence of what the defendant said, his intended master refused to engage him. Upon this the plaintiff's brother called upon the defendant and inquired why he had given the plaintiff such a character as prevented him from getting a situation, and in answer to these inquiries the defendant said, he has robbed me; I believe he has robbed me for years past; I can prove it from the circumstances under which he has been discharged by me: Held, that the occasions upon which each of these statements was made rendered them privileged communications, and that the fact of the first charge being made in the presence of a third party, did not warrant the judge in leaving the question to the jury, and that the excess of the defendant's statement on the second occasion did not raise any presumption of express malice. Taylor v. Hawkins, 20 Law J. (N. S.) Q. B. 313.

USE AND OCCUPATION.-An action for use and occupation under the statute 11 Geo. 2, c. 19, s. 14, does not lie where there has not been an actual entry by the lessee. Lowe v. Ross,

5 Exch. 553.

WITNESS.-Commission to examine witnesses abroad.-Where a commission had issued to a foreign country, requiring the commissioners to be sworn and to administer an oath to the witnesses, and depositions had been taken by the commissioners and returned, but no oath had been taken by the commissioners or witnesses, owing to a law of the foreign country that burgomasters alone should administer oaths, and that no voluntary oath should be taken, a new commission was ordered to be issued to burgomasters to examine the witnesses, without requiring the burgomasters to be sworn. Bolin v. Melliden, 20 Law J. (N. S.) C. B. 172.

CRIMINAL AND MAGISTRATES' CASES.

CONTAINED IN

20 Law J. (N. S.) part 8.

LUNATIC PAUPER.· ·Costs of maintenance Order on union. The 12 & 13 Vict. c. 103, s. 5, providing that the costs and expenses of the removal and maintenance of a lunatic pauper removed to any asylum, and who, if not a lunatic, would have been exempt from removal under the 9 & 10 Vict. c. 66, shall be borne by the common fund of the union comprising the parish where such lunatic was resident when removed to the asylum, applies to an union formed under Gilbert's Act, 22 Geo. 3, c. 83. Reg. v. Priest Hutton (Inhabitants of), 20 Law J. (N. S.) M. C. 226.

3. Order of maintenance-County of a city-8 & 9 Vict. c. 126, ss. 62, 84.-The court will take judicial notice that the city is a county of a city. Where, therefore, an order for the payment of the expenses and maintenance of a lunatic pauper was expressed throughout to be made by two justices of the peace "in and for the city of York:" Held, that such was valid, under the 8 & 9 Vict. c. 126, s. 62, the word "county" in that section being, by the 84th section, interpreted to mean "county of a city." Reg. v. St. Maurice, 20 Law J. (N. S.) M. C. 221.

EQUITY.

Comprising the Equity Cases contained in the following Reports :

13 Beavan's Reports, part 1.

14 Beavan's Reports, part 1. 3 De Gex & Smale, part 2.

8 Hare, part 1.

2 Mc Naughten & Gordon, part 3. 1 Simons, part 3.

20 Law Journal (N. S.) part 8, 9.

ACCOUNTANT-GENERAL.-Where a matter is pressing, the Accountant-General will grant his direction to pay money into the Bank instanter. Foley v. Smith, 13 Beav. 113.

AGREEMENT.-Injunction.-Injunction to restrain the defendants from entering into an agreement with another railway company, which would be a violation of or inconsistent with a subsisting agreement between the plaintiffs and the defendants, refused; the inconvenience to arise from granting the injunction being greater than the inconvenience to arise from refusing it. In what cases the court will interfere to preserve property in litigation in statu quo. Shrewsbury and Cheshire v. Shrewsbury and Birmingham Railway Company,

1 Sim. 410.

CHARITY.—Trustees.--Church Building Act.-The right of selecting new trustees of a parish charity held to belong to the ratepayers in vestry, and not to the surviving trustees. In 1671 an estate was purchased out of parish funds, and was conveyed to the rector, churchwardens and twelve parishioners, for the relief of the poor inhabitants. The deed was lost. New trustees were appointed by deed, dated in 1701, which recited that the deed of 1671 provided that when the trustees were reduced to five, they should convey the premises to themselves and eleven other parishioners. In 1725, 1769, 1782 and 1806 new trustees were appointed by the parishioners; but the deeds executed in 1769, 1782 and 1806, contained a proviso that the new trustees should be nominated by the five survivors. In 1831 and 1842 new trustees were appointed by the old trustees. The legal estate was presumed to be vested in the persons to whom it was purported to be conveyed, notwithstanding some irregularities. Special directions were asked to be given to the Master as to taking the provisions of the Church Building Acts into consideration in settling the scheme, the parish being divided into eight separate districts, and the money being to be distributed by the rector and churchwardens; and it was also asked, that directions should be

given as to the mode of distribution in each district of the portion allotted to it. The former was refused, and it was held, that the Master could take the latter into consideration without any special direction. Attorney-General v. Dalton, 13 Beav. 141.

CLAIM.-1. Parties.-17th, 18th and 32nd orders of August, 1841.-If, at the hearing of a claim, it will be necessary for the court to direct special inquiries, and the claim does not contain any specific statements upon which to ground those inquiries, the claim will be dismissed. In a legatee's claim against a surviving executor, who denies assets, the representatives of the deceased co-executors are necessary parties. Observations on the 8th Order of April, 1850, as to parties necessary to be named in a claim in the first instance. Construction of the 32nd Order of August, 1841. Penny v. Penny, 20 Law J. (N. S.) Chanc. 339.

2. Statute of Limitations.—A testator by his will devised his real estate to A. and B. on the usual trusts for sale, and directed them to pay a share of the purchase monies to A. The testator died in February, 1816, and A. and B. proved the will. A. died in October, 1817; B. died in 1849, having appointed C. his executor. Letters of administration of A.'s estate were granted to D. in June, 1850. A claim filed by D., the administrator of A., against C., the executor of B., in respect of the share of the purchase monies of the testator's estate given to A., was dismissed, with costs, but without prejudice to a suit. Whether the produce of real estate directed to be sold is a sum charged upon or payable out of land within the meaning of the 40th section of the Statute of Limitations (3 & 4 Will. 4, c. 27), quære. Pawson v. Barnes, 20 Law J. (N. S.) Chanc. 393.

CLAIMS.-Evidence.-Plaintiff's affidavit.-A plaintiff's affidavit in support of a claim will be treated as evidence, where there is no opposition or conflict of affidavits. Shardlow v. Gaze, 20 Law J. (N. S.) Chanc. 395.

CLASS.-Affidavit.-A class of children being interested, the court, instead of directing the preliminary class inquiry, received the affidavit of the parents proving the class, and then allowed the cause to be heard. Bush v. Watkins, 14 Beav. 33.

COMMON CLAIMS.-Special claim.-Legacy and interest.— Where a question, which ought to have been made the subject of a special claim, is brought before the court on a common claim, the court will give leave to have it filed as a special claim nunc pro tunc. A testator bequeathed a legacy, payable to the legatee at the age of twenty-one, with interest from his death, and died in 1840. The legatee attained the age of twenty-one in 1850, and filed a common claim for the legacy, with interest from her majority, and obtained a decree for the payment of the amount claimed, and received the money. The legatee afterwards, having discovered that she was entitled to interest from the testator's death, filed another common claim for this interest: Held, that she was entitled to this interest,