The method of working, and not the nature of the substance obtained, is the criterion to determine the question of mine or no mine, so as to be exempt from poor rates. Rer v. Dunsford, 93.

Where a coal mine extends under two parishes, but all the coals are raised in one, where the only shaft is, the occupier is liable to be rated in each parish, and not exclusively in that parish in which the coals are raised. Rex v. Foleshill, 71.

Semble, that a defect in the enumeration of some of the property in a poor rate, is no ground for refusing a mandamus to justices to issue a distress warrant. Rex v. Wilson, 407.

Such a defect is ground of appeal. Id.

Quare, whether a confirmation by the sessions of overseers' accounts which have been objected to on the ground that the overseers have omitted to collect any assessment from a party who it is alleged is liable to be rated, is any answer to an application for a mandamus to justices to enforce a rate on that party. Id.

Where after a rule nisi for a mandamus to justices to issue a distress warrant for a poor rate had been obtained, a tender of the amount was made by a third party to the overseers and refused:-Held, that it was no ground for discharging the rule. Id.

On the application of a summons for non-payment of a poor rate, the overseer engaged before the justices to procure evidence of a beneficial occupation. On the hearing he failed to do so; and the justices deciding against the validity of the rate on that ground, refused to issue a distress warrant:-Held, that without a further application, after stating that the occupation need not be beneficial, a mandamus could not be granted. Id.

Semble, that an occupier of land within a parish, to whom, on behalf of himself and the other tithe payers of the parish, a lease of the tithes of the whole parish is granted by the vicar at an annual rent, the amount of which is apportioned, is liable to poor rate in respect of the tithes, though he personally has no beneficial occupation. Id.

Where a poor-rate was made for a parish, and the name of a party who occupied lands for which he was rated in another parish was inserted after the rate was made, the Court refused to grant a mandamus to magistrates to issue a summons and grant a distress warrant for non-payment of the

rates. 275.

Rex v. The Justices of Cardiganshire,

In moving for a mandamus to an overseer to deliver up books, &c. belonging to the parish, on account of his having been convicted under 4 & 5 Will. 4, c. 76, s. 97, a copy of the conviction ought to be annexed to the affidavits on which the rule is moved. Rex v. Simms, 514.

In debt, on the 17 Geo. 2, c. 3, s. 2, against an overseer, for refusing to allow inspection of the

rate; it is sufficient to allege in the declaration, that the plaintiff is an inhabitant of the parish, without going on to say that he is a rated inhabitant. Batcheldor v. Hodges, 725.

That statute applies to assistant overseers, who have the custody of the rates, as well as to overseers, the words of the second section being referable to the words of the first, where the expressions used are, "churchwardens, overseers, or other persons authorized to take care of the poor." Id.

The statute applies to old as well as modern rates, and to those against which the time for appealing has elapsed, as well as subsisting rates. Id.

POWER.

A power was given to appoint, by "last will and testament in writing, or any writing purporting to be, or in the nature of a last will and testament, or by any codicil or codicils thereto, to be by the appointor signed, sealed, and published in the presence of and attested by three or more credible witnesses." A will was made. At the commencement was a declaration by the testatrix that she did publish and declare it to be her last will and testament. At the end, after a similar declaration, it proceeded, " in witness whereof, I have set my hand and seal." Then followed her name and seal, and after the word "witness," the names of three witnesses:-Held, that the will was a good execution of the power, though it was objected that the attestation ought in terms to have expressed that the will was executed in the presence of the witnesses. Doe d. Spilsbury v. Burdett, 591.

PRACTICE.

In a case tried before the sheriff, the Court refused to allow a motion for a new trial after the

fourth day of the term, though the sheriff's notes had not been received until the fifth day, when the motion was made. Anonymous, 146.

The Court will not grant a distringas_merely because the defendant is resident in Ireland. Evans v. Fry, 185..

Where a rule was enlarged to a subsequent term, on the usual terms of filing the affidavits a week before the term, the Court refused to hear affidavits filed afterwards. Turner v. Unwin, 186.

Where a defendant does not enter an appearance, and the plaintiff omits to do it for him, it is a nullity; which is not waived either by delay in making an application to set aside the proceedings, or by the defendant taking a step in the cause. Robarts v. Spurr, 201.

Where a defendant pleaded by an attorney who was in partnership, and the partnership was afterwards dissolved; and the other partner took a step in the cause, which the plaintiff's attorney recognized; the Court refused to set aside the

Where an arrest was on the 29th of January, and on the 10th of March the defendant made application to be discharged out of custody, on account of irregularity in the capias :- Held, it was not made within a reasonable time, as required by the rule of Court, 33 H. T. 2 Will. 4. Foote v. Dick, 207.

It is a good excuse for not proceeding to trial according to a peremptory undertaking, that owing to the press of business in the Court, another cause which was in the new trial paper, and would have decided the dispute, had not yet been argued, and which it was expected it would have been when the undertaken was given. Baron de

Rützen v. Richards, 210.

Where a defendant was under terms of rejoining gratis, and the plaintiff signed judgment for want of a rejoinder, when he might have himself added a similiter, the Court set aside the judgment, but without costs. Seaton v. Seale, 210.

On discharging a rule for judgment as in case of a nonsuit, where the plaintiff had become insolvent, and made an assignment of his property to trustees; the Court required not only a good peremptory undertaking, but also that security should be found for the costs. Nicholson v. Milne, 211.

Where a verdict was taken on all the counts by consent, with liberty to move to enter a nonsuit; the Court refused, after that motion had been discharged, to allow the defendant to confine the verdict to any particular counts. Martin v. Coleman, 86.

The Court allowed a fresh affidavit to be filed in support of a rule nisi to set aside an award the day after the rule was obtained. Perrin v. Kymer,

20.

The practice of requiring that a party obtaining a rule nisi is bound to take office copies of the affidavits of the other party, on showing cause, is not adhered to. Pitt v. Combs, 13.

A party may make a second application to the Court on the same subject, though he has not paid the costs of a former rule nisi, which had been discharged. Wilton v. Chambers, 116.

The Master, upon reference to him, may receive affidavits, but cannot, except by special directions in the rule, receive vivá voce testimony. Noy v. Reynolds, 14.

The Court refused to allow affidavits to be used on showing cause against a rule for a new trial, where the rule had been moved on the report alone without any affidavits. Doe d. Johnson v. Baytup, 270.

In an action commenced by writ, since the Uniformity of Process Act, against two defendants, a verdict was found for the defendants. Judgment number, and that the plaintiff should take nothing was entered up for the defendant in the singular by his bill, and the word " counts" was used in

stead of "issues." The Court allowed an amendment of these mistakes on payment of costs, after the term in which judgment was signed, and although there was a writ of error pending, upon which there was an assignment of other substantial errors. Paddon v. Bartlett, 286.

Where a motion is made after plea to change the venue, it is the duty of the defendant to state distinctly in his affidavit what witnesses reside in the county into which he seeks to change the venue. Higgins v. Houseman, 218.

Where the plaintiff knew the application would be made, leave was granted to change the venue after issue joined, though the witnesses might already be on their way to attend the trial. Jones v. Gee, 183.

Quare, whether an application to change the venue in a special jury case, can be granted after the jury are struck. Rex v. Tarpeley, 58.

the ground of insanity, the Court refused to enter In ejectment, to try the validity of a will on a suggestion on the roll, under 3 & 4 Will. 4, c. 42, s. 22, to change the venue from Somersetshire to London, on the ground that the testator resided in London at the time of his death, and that the evidence of an eminent medical man living in London was essential, when it appeared that the testator was most visited and best known at his country estate in Somersetshire, where the will was made, and in which county there were also many witnesses. Doe d. Baker v. Harmer, 80.

A motion to change the venue cannot be made after plea, but the defendant must wait until issue is joined. Youde v. Youde, 338.

An attachment was granted for non-payment of costs, in pursuance of the master's allocatur, where the service was regular, except that the party refused to take the copy of the rule and allocatur, which was then put under the house door. Rose v. Koops, 213.

An attachment against an attorney for nonpayment of costs in pursuance of the master's allocatur, will not be granted, unless there has been an absolute personal service. Albin v. Toomer,

215.

Where a defendant, on being served with a writ of summons, took forcible possession of it after a refusal to see it, and then returned it to the person who served him-Held, it was no ground for an attachment. 218. Weeks v. Whiteley,

Where a person behaved in so violent a way as to prevent a formal service of a rule and allocatur for payment of costs, he being aware of the intention to do so:-Held, sufficient service to warrant an attachment. Wenham v. Downs, 216.

An affidavit by the defendant, on taking money out of Court which had been deposited in lieu of bail, stating that bail had been put in, but not stating "in due time :"-Held sufficient. Young v. Maltby, 214.

A plaintiff cannot be nonsuited but by his own consent; and where at a trial leave was given to move to enter a nonsuit, and the trial proceeded, and the jury after a long consideration disagreed upon their verdict: Held, that the judge could not in the absence of the plaintiff and his counsel direct a nonsuit. Dewar v. Purday, 227.

Where a jury cannot agree in their verdict, they may be discharged, if circumstances render it improper that they should continue to deliberate; but the judge cannot nonsuit the plaintiff without his assent. Id.

The Court refused to discharge an order of a judge, by which time was given to the defendant to rejoin, until after the plaintiff had purged himself from a contempt in the non-payment of interlocutory costs in the cause, although an attachment had been issued for the same contempt, but it had not been executed. Wenham v. Downes, 324.

Where the trial of a cause came on unexpectedly, and one of the plaintiff's witnesses and both the defendant's counsel were absent, in consequence of which the cause was struck out, the Court enlarged a peremptory undertaking which the plaintiff had given to try the cause, but on the terms of the payment of the costs of the day and of the application. Saron v. Swaby, 345.

Rule calling on the directors of an insurance office to deliver up a policy, refused, where they had refused to make good a loss, and the party insured could not declare without it, there being no action pending. Ex parte Partridge, 350.

Countermand of notice of trial does not prevent the defendant from having judgment as in case of a nonsuit. Dennehey v. Richardson, 367.

After having obtained a rule for the costs of the day for not proceeding to trial, the defendant cannot, by Reg. Gen. 69, H. T. 2 W. 4, have judgment as in case of a nonsuit, though no further

A writ directed to the coroner need not show upon the face of it the reason why it is so directed. Baxter v. Gutch, 321.

A suggestion of the reason for directing a writ to the coroner, instead of the sheriff, need not be made upon the roll previously to the writ being issued. Id.

Where a defendant is in custody in the county jail at the time a ca. sa. directed to the coroner is issued against him, he is sufficiently charged in execution under that writ by its being lodged by the coroner, with his indorsement upon it, with the keeper of the jail. Id.

Where an attorney brought an action, and the summons was indorsed, "This writ was issued by W. Y. attorney, in person, of, &c."-Held, that though not strictly according to the form given in the act, it was nevertheless sufficient. Yardly v. Jones, 332.

A defendant being under terms to plead issuably, rejoin gratis, and take short notice of trial in a country cause, for slander, pleaded on the 19th Feb. a special justification, the replication was de injuria, and the issue was delivered at half-past seven o'clock in the evening of the 27th, with notice of trial for the 3d March. The cause was tried as an undefended cause, and a verdict was found for the plaintiff. The Court made absolute a rule for a new trial, on the ground of irregularity, directing the costs to abide the event. Pound v. Penfold, 323.

terms. Palgrave v. Justin, 398.

After allowance of a writ of error the plaintiff in error neglected to transcribe the record within the time limited by Reg. Gen. 10, H. T. 4 W. 4, whereupon the defendant applied to the officer of the liberty to do. The officer refused, and then the Court to sign judgment of non-pros, which he was at transcript was removed. The Court below after

wards refused to allow the defendant in error to

sign judgment of non-pros, nunc pro tunc, though the fault was in the officer of the Court. Pitt v. Williams, 363.

The Court refused to allow an appearance to be entered under the 2 W. 4, c. 39, s. 3, after a distringas, on an affidavit which merely stated generally that diligent inquiry had been made to find the defendant, without success. The affidavit should specify the places where, and the persons from whom, the inquiries were made. Copeland v. Neville, 374.

The copy of the writ of summons must be left on the last of the three times of calling which are required in order to obtain a distringas. Anonymous, 380.

On a motion against which cause is shown in the first instance, the counsel making the motion has the right to reply, as in an ordinary case. Gibson v. Winter, 463.

A party who applies by summons to a judge, is not bound to draw up an order according to the minute of the judge made on the hearing of the 462. parties. Macdougall v.

Though the effect of a plaintiff recovering a verdict will only be to make him the trustee for the defendant for half the amount recovered, the Court will not stay the proceedings in such action on the payment of the other half of the sum sought to be recovered, but will leave the defendant to his remedy in equity. Barlow and Wife v. Leeds, 479.

A promissory note was given by a brother to his two sisters jointly for 100l., each of them having separately lent him 501. One of the sisters married, and the other died; and the brother took out administration to the effects of the de

ceased sister. An action was brought against him for the whole amount by the surviving sister and her husband:- Held, that the Court could not, in the exercise of an equitable jurisdiction, stay the proceedings upon payment into Court of 50l. Id.

Since the rule of H. T. 4 W. 4, No. 15, it is not necessary to set out in the issue and Nisi Prius record, a previous plea in abatement and judgment of respondeat ouster thereon; the omission to do so is no ground for setting aside a verdict or arresting the judgment, even where the issue had been refused by the defendant on that ground. Pepper v. Whalley, 480.

A plaintiff may not, since the passing of the Uniformity of Process Act, sue out bailable process against two and declare against one only. Carson v. Dowding, 507.

The Court will not grant a distringas where the three calls have been all made on the same day. Cross v. Wilkins, 516.

on

The writ of summons was in an action " promises," and those words were omitted in the declaration, but which appeared a good declaration in assumpsit : :- Held, not to be an irregularity. Straughan v. Buckle, 519.

A copy of a writ of summons was served on a person by a wrong name:-Held, that he was not bound to make application to set it aside. Hinton v. Stevens, 521.

A notice of declaration, in which he was rightly named, being afterwards served:--Held, he was bound to apply to a judge at chambers within four days. Id.

A Sunday not being either the first or last, is to be reckoned one of the four days. Id.

A rule for judgment as in case of a nonsuit having been served more than seven years after the plaintiff's default on the London agent of the plaintiff's attorney, who had ceased to act for him, and knew nothing either of him or of the plaintiff, the Court refused to make the rule absolute, but enlarged it, so as to give the defendant time to serve it on some other person, no delay in the trial being thereby incurred. Curtis v. Tabram, 523.

Distringas granted though two of the calls

made were not according to previous appointment. Hickman v. Dallimore, 524.

Tufton-street, in the county of Middlesex, is a sufficient description of a defendant in a writ of summons. Cooper v. Wheale, 525.

Where a rule has been discharged in the Bail Court, that fact is an answer to a similar application in the full Court, though there may be new facts stated in the affidavit, if they might have been brought before the Court on the first occasion. Rossett v. Hartley, 581.

Where at the trial of an action the judge suggests the withdrawal of a juror, and the plaintiff acts on the suggestion, the Court will stay the proceedings in a second action commenced by the same plaintiff for the same cause, even where on the first occasion he conducted the case in person. Moscati v. Lawson, 572.

It is no excuse for the delay of a whole term, on a motion to set aside an order of a judge, that a person had been ill and unable to leave his house to make an affidavit. Octon v. France, 672.

A motion to set aside a writ of summons for irregularity must be made within four days. Chubb v. Nicholson, 666.

On a sham plea being pleaded, the Court will not give the plaintiff leave to sign judgment as for want of a plea. Cowper and another v. Jones, 642.

Issue having been joined in Trinity Term in a country cause, and no notice of trial given for the next assizes, the defendant cannot move for judgment as in case of a nonsuit until after the following Spring Assizes. Douglas v. Winn, 662.

After several defaults in trying a cause the Court will enlarge a peremptory undertaking on the terms of the plaintiff paying the costs of the day. Dennehaye v. Richardson, 653.

A rule for judgment as in case of a nonsuit may be granted, though eight years have elapsed since the default of the plaintiff. Curtis v. Tabram,

645.

The Court has no power to call on the assignees of an attorney who has become bankrupt, to deliver up title-deeds of a client which have come into their possession under the fiat. Ex parte Roy, 669.

The sum indorsed on the writ being above 201., but the sum claimed by the particulars being less, the Court will not discharge a rule for judgment as in case of a nonsuit on an undertaking to try before the sheriff. Frodsham v. Round, 667.

A rule for the consolidation of several actions

against the underwriters on the same policy may be obtained before declaration. Hollingsworth v. Collinson, 691.

After judgment of non-pros, a rule for the defendant to take out money deposited in lieu of bail is nisi only. Wild v. Rickman, 670.

On the same motion the Court granted leave to

stick up rule nisi to compute and afterwards the rule absolute in the K. B. Office. Broom v. Stittle, 672.

PRESUMPTION.

In all questions upon the existence of life at a particular time, the presumption in favour of life must be governed, and the weight that is to be attached to it, regulated by the circumstances of each particular case; and the determination of the question is for a jury or the sessions. Rer v. Harborne, 36.

The sessions were justified in presuming that a first wife was alive at the time of a second marriage of the husband, on evidence being given of a letter from her dated at Van Dieman's Land twenty-five days before the time of the second marriage. Id.

PRISONER.-See INSOLVENT.

PROBATE.-See ECCLESIASTICAL LAW.

PROHIBITION.-See ECCLESIASTICAL LAW. Several pleas may now be pleaded in an action of prohibition. Hall v. Maule, 583.

QUARE IMPEDIT.-See PLEADING.

RATE.-See JUSTICES. MANDAMUS.
POOR.

A sewer-rate was imposed upon certain public offices in Somerset House, and its amount levied upon the goods of a person who had an office in that building, to which he repaired every day for the purpose of transacting business, but in which he did not reside. Somerset House is drained by sewers of its own, but derives an indirect benefit from the general drainage of the neighbourhood. The officer was treated as an occupier, and held to be properly made liable to the rate required for the support of the sewers, and the Court would not inquire into the question of the amount of the benefit. Soady v. Wilson, 256.

If commissioners of sewers have jurisdiction to rate a particular district, the Court will not minutely inquire into the way in which they have exercised that jurisdiction. Id.

REAL ACTION.-See PRACTICE.

REPLEVIN.-See COSTS. LANDLORD AND ΤΕΝΑΝΤ.

REQUESTS, COURT OF.

Where a verdict was given for 21. 8s. 6d. for goods sold, after deducting 47. 19s. 6d. for tuition and money payments :-Held, that the claim was a balance of an account on demand originally exceeding 57. within 47 Geo. 3, sess. 1, c. 4, s. 4, (Blackheath Act); and therefore that no suggestion to deprive the plaintiff of costs could be entered. Moreau v. Hicks, 87.

Where a Court of Requests Act applies to defendants residing within the jurisdiction, the affidavit of a defendant applying to enter a suggestion to deprive the plaintiff of costs, ought to show that the defendant was residing there at the time of action brought, as well as merely describing him as resident there at the time of affidavit Id.

sworn.

If a defendant, liable to be sued in the Westminster Court of Requests, omits to plead the Statute (23 G. 2, c. 27,) in bar of a suit in a superior Court, or to apply for a nonsuit at the trial, on the ground that the claim is less than 40s., the Court will not after verdict enter a suggestion to deprive the plaintiff of his costs. Clark v. Hamlet, 177.

SALE.-See AGENT.

A signature by an auctioneer's clerk, in the character of witness merely to a contract for the sale of property, which is signed by the purchaser alone, is not a sufficient signing of an agreement or memorandum, or note thereof, by an agent of the seller, to satisfy the Statute of Frauds. Gosbell v. Archer, 31.

Quære, whether it would have been sufficient, even if the document had shown upon the face of it, that the clerk had knowledge of its contents? Id.

The receipt of deposit money by an auctioneer's clerk, which was paid over to the seller, and a letter from the solicitors of the seller admitting that no title could be made, and offering to relinquish the purchase, and pay the charges of investigating the title, do not amount to a ratification of an imperfect contract for the sale of property by auction, which was only signed by the purchaser and the auctioneer's clerk in the character of witness, so as to satisfy the Statute of Frauds; for the receipt of the money is a transaction distinct from the power to contract, and is within the ordinary scope of the clerk's duty; and the latter, not containing any of the terms of the contract, cannot be connected with what had been previously done, without resorting to parol evidence. Id.

The owner of chattels stolen, who prosecutes the thief to conviction, may recover their value in trover from a person who purchased them from the thief by a bona fide sale, but not in market overt, and sold them again in market overt before the conviction, notice of the felony having been