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Analytical Digest of Cases: Appeals in Chancery.

ANALYTICAL DIGEST OF CASES.

SELECTED AND CLASSIFIED.

Appeals in Chancery.

VENDOR AND PURCHASER.

4. Interest-Wilful default-Just allowances. Where conditions of sale provide that interest shall be paid by the purchaser from a fixed time if the completion should be delayed by any cause whatever, delay merely occasioned by the state of the title, and not wilful on the part of the vendor, falls within the provision.

Where in addition to such a provision there were stipulations that the vendor might rescind on the title being objected to, and that if a good title should not be made to a defined proportion of the property, compensation should be allowed: Held, on appeal from the Master of the Rolls, 17 Beav. 267, that the non-delivery of a complete abstract, at a time fixed by the conditions, would not of itself exempt the purchaser from payment of interest.

Where the execution of an agreement fixing a time for completion, and requiring payment of interest in case of delay was intercepted by negotiations, ending in an alteration of the agreement, but not of the time for completion: Held, that in fixing the period for the payment of interest this circumstance ought to be regarded.

A vendor who has to account to the purchaser for rents and profits from the time fixed for completion is not, unless a special case be made, liable to account for sums which he might have received but for his wilful default, nor entitled to an inquiry as to repairs or lasting improvements.

In fixing occupation rent to be paid by a vendor in such circumstances, it is not according to the course of the court, to insert in the decree a provision respecting income tax, any just allowance, in that respect, being comprehended in the general and usual word. Sherwin v. Shakspear, 5 De G. M'N. and G. 517.

A

One

5. Railway shares-Specific performance-Privity of contract. The plaintiff employed a broker to sell railway shares and the broker employed an auctioneer, who sold the shares by auction to the defendant. few days affer, the defendant employed the same auctioneer to re-sell the shares which were accordingly sold by him to a third party, whose name was handed in to the plaintiff's broker for the purpose of preparing the deed of transfer, which was thereupon executed by the plaintiff conveying the shares to such third party, who refused to complete the contract by registering the shares in his name. year after this sale, during all which time the plaintiff was ignorant that the defendant had been the original purchaser (the shares remaining in the plaintiff's name and calls having been made) he filed his bill for specific performance against the defendant: Held, dismissing with costs an appeal from Vice-Chancellor Stuart, that having executed the deed of transfer to the third party, the privity of contract between the plaintiff and defendant no longer existed, and the bill was accordingly dismissed.— Shaw v. Fisher, 5 De G. M'N. and G. 596.

VOLUNTARY STATEMENT.

See Creditor's suit.

WILFUL DEFAULT.

See Vendor and purchaser, 4.

WILL.

1. Construction-Contingent bequests.-A testatrix bequeathed the interest of long annuities to her sister, and in case of one or both of their deaths before hers gave "the whole of interest in long annuities" to her brother for life. At his death half of the interest she gave to the daughter of the brother till she attained twenty-one and "then to receive half the capital." Likewise the testatrix bequeathed to a son of her brother the other half. Held (varying the decision of the Master of the Rolls), on the construction of the whole will, that the bequests to the niece and nephew were not contingent upon the sisters' deaths in the testatrix's lifetime. Boosey v. Gardener, 5 De G. MN. and G. 122.

2. Construction-Gift of annuity—Interest for life. -Bequest to A. M., a married woman, of an annuity "for her life and the issue of her body lawfully be gotten, on failure of which to revert to my heirs," with a request that K. and C. would act as trustees for A. M., so that the annuity might be secured for her sole use and benefit: Held, on appeal from the V. C, Stuart, by the Lord Chancellor, and the Lord Justice Turner, the Lord Justice Knight Bruce giring no opinion on the point, that A. M. took an interest for life only with a gift in the nature of a remainder to her issue. Held, by the Lord Justice Turner, that, according to the true construction of the devise, the life interest of A. M. was merely equitable, and the interest of the issue legal; and that, therefore, A. M. could not have taken an estate tail, even if the devise had been of real estate; and also that, admitting the annuity to partake of the nature of real estate, it did not follow that in construing the will it ought to be treated as real estate; for that it was, in fact, personal estate, with peculiar incidents belonging to it in that character.

There is nothing in the decisions relative to the limitations of personal estate by which an absolute interest has been held to be given to the first taker. which obliges the court in construing bequests of personalty, where technical words are not used, and the interest of the first taker is expressly confined to a life estate, to act on principles derived from laws of tenure, and not resting on intention.-By the Lord Chancellor.

The Court in construing a disposition by will of personal estate, is not to be absolutely governed by the rules which would be applied at law in the case of real estate. By the Lord Justice Turner.

The decision of Lord Thurlow, in Knight v Ellis, 2 Bro. C. C. 570, approved of, and held not to be overruled; and the cases of Attorney-General v. Bright, 2 Keen, 57; Tate v. Clarke, 1 Beav. 100; Jordan v. Lowe, 6 Beav. 350; and Bird v. Webster, 1 Drew. 338, commented upon.-By the Lord Chancellor and the Lord Justice Turner. Exparte Wynch, 5 De G. MN. and G. 188.

Cases cited in the judgment: Tothill v. Pitt, 1 Madd.
488; 7 Bro. P. C. 453: Elton v. Eason, 19 Ves, 73:
Britton v Twining, 3 Mer. 76: Lyon v. Mitchell, 1
Madd. 467: Chandless v. Price, 3 Ves. 99: Aubin v.
Daly, 4 B. and A. 59: Oates v. Cooke, 3 Burr. 1684:
Trent v. Hanning, 1 Bos. and P. N. R. 116; 10 Ves

Analytical Digest of Cases: Appeals in Chancery.

495; 7 East, 95: Doe v. Woodhouse, 4 T. R. 89: Mogg v. Mogg, 1 Mer. 654: Dunk v. Fenner, 2 Russ and M. 557: Darley v. Martin, 17 Jur. 1125: Forth v. Chapman, 1 P. Wms. 663: Clare v. Clare, Cas. temp. Talb. 21: Warman v. Seaman, Finch, 279: Stafford v. Buckley, 2 Ves. S. 170.

3. Executor Power of sale by implication-Seeing to application of purchase money.--A testator devised Lands for life, with contingent remainders over, and then devised other lands to another tenant for life, with contingent remainders over, and charged the latter lands with the payment of a mortgage on the former lands, and also with his debts generally, but grave no express power of sale: Held, by the Lords Justices, dismissing with costs an appeal from the Master of the Rolls, that the executor took a power of sale by implication, and that after a sale of the latter lands by the executor, the devisees of the former had no equity against the purchaser in respect of the charge of the mortgage debt. Robinson v. Locater, 5 De G. M'N. and G. 272.

4. Construction-Legacy-Children of child dead at date of will.-A testator bequeathed a sum of stock in trust for a daughter for life, and in case there should be no child of the daughter living at her decease, or being such, they should all die under twenty-one, then the testator bequeathed the stock unto all and every his children then living, and the child or children of such of his said children as should be then dead in equal shares, but so that such his grandchildren should only have among them such share as their parents would respectively have been entitled to in case they had been then living: Held (dismissing with costs an appeal from Vice-Chancellor Wood), that children of a child of the testator known by him to be dead at the date of the will, did not take any interest.—In re Thompson's Trusts, exparte Tunstall, 5 De G. M·N. and G. 280.

Case cited in the judgment: Tytherleigh v. Harben,

6 Sim. 329.

5. Construction-"Money"-Stock does not pass.Under the following bequest, "to my brother, J. T., the whole of my money for his life, at his death to be divided between my two nieces Rebecca and Mary L., my clothes to be likewise divided between them, my watch and trinkets for my niece Mary L. I likewise declare the longest survivor of the abovementioned nieces is to become possessor of the whole money:" Held, confirming the decision of ViceChancellor Wood, that stock did not pass.-Lowe v. Thomas, 5 De G. M'N. and G. 315.

Case cited in the judgment: Lynn v. Kerridge, West's
Rep. temp. Hardw. 172.

6. Conversion-Breach of trust.-A testator gave the residue of his estate to trustees, who were also his executors, desiring them immediately after his decease to convert all his personal estate into money, and to invest the amount "in the Bank of England," and to permit his daughter to receive the rents and Profits, dividends or "other annual produce" of his Eersonal estate for her life, for her own use, and after er death the property was to go to her children equally. The testator died in 1825 possessed of, mong other things, £24 Long Annuities, which the executors did not convert, but permitted the tenant For life to enjoy in specie. On the death of the survivor of the executors, his executors also neglected to convert the Long Annuities. The tenant for life had represented both to the original executors and to the executors of the survivor the propriety of a conversion. She had mortgaged her interest, and two of the children had mortgaged their shares in the residue. Upon bill filed by all the children against

407

the executors of the surviving executor and their mother, Held, on appeal from the Vice-Chancellor Stuart, that the non-conversion was a breach of trust, and that the executors must account for the difference between the value of the Long Annuities at the end of one year from the date of the testator's death, and their value when paid into court; that the tenant for life was not liable to refund the overpayments voluntarily made to her, and that the facts disclosed no case of acquiescence either on the part of the tenant for life or thosə in remainder.-Bate v. Hooper, 5 De G. M'N. and G. 338.

Case cited in the judgment, Howe v. Earl Dartmouth, 7 Ves. 137.

7. Construction-Husband does not take as person entitled under statute of distributions.-Under a bequest (in the event of daughters dying without leaving issue) in trust for the persons who would, at the time of the decease of such daughters respectively, be entitled as next of kin, or otherwise, to the personal estate of such daughters respectively, under the statutes made for the distribution of intestate's effects: Held, dismissing with costs a petition of rehearing, 2 De G. M'N. and G. 715, that the husbands of the daughters did not take.-Milne v. Gilbart, 5 De G. MN. and G. 510.

Case cited in the judgment: Garrish v. Lord Camden, 14 Ves. 372.

8. Construction-Shares per stirpes.-A testator gave his real and personal estate to trustees on trust, to sell and convert the same and pay the interest and annual produce to his ten nephews and nieces nominatim for their respective lives, and after their respective deceases the share of such nephew or niece so dying "to be held in trust for all and every the children or child of my said nephews and nieces, who being a son or sons should attain the age of twenty-one years, or being a daughter or daughters should attain that age or marry, to be divided between and amongst such last children, if more than one, in equal shares and proportions; and if any one or more of them my said nephews and nieces shall not have any child, who being a son shall attain twenty-one or being a daughter shall attain that age or marry under it, then and in each or any such case as well the original share or shares of, as also the share or shares surviving or accruing to each or any such last-mentioned nephew or niece and his or her child or children, or to such child or children only in possession or expectancy, &c., shall go and accrue to and vest in the survivors or survivor or others or other of them my said nephews and nieces and their respective children, at and in such and the same times, shares and proportions and manner as are hereinbefore expressed of and concerning their respective original shares," &c. One of the nephews having died, leaving an only child, an infant: Held, reversing the decision af Vice-Chancellor Stuart, that such only child exclusively became presumptively entitled to his father's share, subject to its going over as provided by the will in the event of his dying under twenty-one without children.-Hunt v. Dorsett, 5 De G. MN. and G. 570. 9. Construction Trust created by words of reference-Duplication of charges.-A testator by his will limited real estate to trustees for a term of 500 years, upon trust in a certain event to raise £20,000 and to stand possessed as to one-fourth part thereof "upon such trusts as are hereinafter declared touching the sum of £20,000 Three-and-a-Half Per Cent. Consolidated Bank Annuities hereinafter bequeathed in trust for the benefit of my son W. F. H his wife,

408

Analytical Digest of Cases: Appeals under the Winding-up Acts.

children and issue as hereinafter mentioned;" in a subsequent part of his will he directed other trustees to stand possessed of a sum of £20,000 Three-anda-Half Per Cent. Consolidated Bank Annuities upon trust to pay the dividends, interest and annual produce to his son W. F. H. and his assigns during his life and after his decease in trust during the widowhood of E., his wife, to pay her out of the interest, dividends and annual produce the clear yearly sum of £200, but if she should marry again then after her second marriage to pay to her separate use free from the debts and engagements of any her future husband the clear sum of £100 only during the then remainder of her natural life, and after the death of his son W. F. H., subject to the said provision for his wife upon trusts for the children of his son W. F. H.: Held, reversing the decision of the Master of the Rolls, that the widow of the testator's son W. F. H. took only one annuity of £200.

A trust created by reference to other trusts ought not, generally speaking, to be so read as to create a duplication of charges.

Hindle v. Taylor, 5 De G. M'N. and G. 577.
And see Mortmain Acts, 1, 2.

WINDING-UP ACT.

See Specific performance, 2.

Appeals under the Winding-up Acts.

ACTION AT LAW.

See Creditors, 1, 2.

ASSURANCE COMPANIES.

See Directors.

CALL.

Managing Committee-Parties-Official manager.By the subscribers' agreement of a provisionallyregistered railway company, the subscribers who were expressed to be parties of the first part, covenanted with trustees (who were expressed to be parties of the second part), that they would indemnify the managing directors (who were expressed to be parties of the third part, as distinct parties, and also to be among the parties of the first part). Preliminary prospectuses were circulated naming the managing directors, among whom was F. (who was named also in the deed as one of the parties). F. never agreed to be connected with the undertaking, but expressly declined to be so. None of the managing committee paid any money or executed the deed. On the company being wound-up :- Held, reversing the decision of V. C. Stuart (2 Smałe and G. 1)—– 1. That a call on the subscribers, exclusively of the managing committee, as primarily liable under the covenant for indemnity ought not to have been made.

:

2. That on a motion of some of the subscribers to discharge a call, the court could not properly make an order staying all proceedings under the winding-up order and directing the official manager to repay all moneys which he had received, the notice of motion not seeking such an order, and some of the respondents, who were served, not having appeared.

3. That the official manager was entitled to appeal from the order.

4. Semble, that the order to stay all proceedings could not have been properly made without the creditors who had proved, and the subscribers who had overpaid, being before the court.

5. That the absent parties were not sufficiently represented by the official manager.

6. Leave having been given to serve with notice of an appeal, from an order staying all proceedings made on a motion to discharge a call, a member of the committee, who had not been served with the original motion to discharge the call; held, that he could not object that the appeal was out of time. In re Dover, Hastings and Brighton Junction Railway Company, exparte Carew, 5 De G. MN. and G. 94.

CONTRIBUTORIES.

Directors-Transfer ultra vires.-The deed of settlement of a joint stock company provided for the transfer of shares with the approbation of the directors. Some of the shareholders threatened to take proceedings to set aside a purchase and lease for fraud, whereupon the directors agreed with them that they should be allowed to transfer their shares on payment to the company of a sum, out of which a claim of one of the direectors against the company should be satisfied. The money was paid and the claim satisfied out of it, and the shares transferred to nominees of the directors for a nominal consideration: Held, on appeal from the Master of the Rolls, 18 Beav. 339, that the transaction was inconsistent with the duty and beyond the power of the directors, and that the shareholders were, notwithstanding the transfer, properly placed on the list of contributories under the winding-up acts.

Directors of joint stock companies are in a sense trustees. In re Cameron's Coalbrook Steam-coal and Swansea and Loughor Railway Company, exparte Bennett, 5 De G. MN. and G. 284.

Case cited in the judgment: Straffon's Executors' case, 1 De G. M'N. and G. 576.

See Creditors, 2, 3.

CLAIM.

CREDITORS.

1. Rights of engineer-Action-at-law. - By the subscription contract of a provisionally-registered railway company the managing committee were empowered to appoint engineers and to enter into any contracts for making the proper surveys, and taking all necessary measures with a view to the application to Parliament for carrying the project into effect, and the subscribers covenanted that in the event of the application to Parliament being unsuccessful, they would pay and discharge all the costs and expenses which should have been incurred with a view to the promotion of the undertaking.

The application to Parliament failed, the company was ordered to be wound up, and an engineer enployed by the committee tendered a proof against the company under the winding-up order.

Held, reversing the decision of Vice-Chancellor Stuart, that the debt (if any) was one due from the company, proveable under the winding-up order,

and

an action having been brought under the direction of the court to determine the amount due, the official manager was directed to admit that the debt was due from the company. Held, also, that on the official manager failing to obtain funds under the winding-up order to meet the demand, the creditor was entitled to proceed at law on the judgment so obtained, and leave was, on appeal, given for that purpose

In re London and Birming ham Extension and Northampton, Daventry, Leamington, and Warwick Railway Company, exparte Prichard, 5 De G. M'N. and G. 484.

The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, OCTOBER 18, 1856.

PROPOSED DISTRICT OFFICERS TO
SUPERINTEND PROSECUTIONS.

WE have noticed the several objections to the proposed appointment of public prosecutors, official counsel and attorneys to conduct criminal prosecutions;* and think that, with certain important exceptions, the aggrieved parties should be allowed to select their own attorney and counsel and to conduct their cases as they may be advised. We agree, however, with the recommendations contained in the able Report of Mr. Greaves on "Criminal Procedure," subject, it may be (on further consideration), to some modifications regarding the appointment of district officers to superintend prosecutions of "heinous offences."t

The appointment of one person as a public prosecutor to discharge all the various and complicated duties essential to the due and complete administration of the criminal law throughout the length and breadth of the land would evidently fail of any useful or satisfactory result. There should be a competent number of officers selected in different parts of the country proportioned to the wants of each district, and the officer should have assigned to him such an extent of official duty as he could efficiently perform. In order to appoint properly qualified persons, and to determine the number that should be selected, we shall extract from the Report of Mr. Greaves a statement of the duties which he conceives the district officer should be required to execute.

"On the commission of any heinous offence he should proceed to the place, and cause all necessary inquiries to be made, with a view to the discovery of the offender. In order to enable him to perform this duty it should be incumbent on all peace officers to give him notice of the commission of every such offence.

"He should have authority to direct all peace officers to assist in his inquiries.

"He should be empowered to attend any investigation before the magistrates or coroner, and be

See p. 313 ante.

The "superintendence" of criminal procedure is very different from the appointment of district attorneys and agents and the selection of official counsel wholly to conduct all prosecutions.

VOL. LII. No. 1,493.

entitled to regulate the examination of witnesses and the evidence adduced, and to see that the proceedings on such occasions were regularly conducted.

"In all capital cases it should be his duty to attend before the magistrates or coroner; and in every other case, which from its difficulty or particular circumstances required more than ordinary care and attention, he should also attend before the magistrates, if practicable

"In all cases, to which he did not personally attend, it should be his duty to read the depositions, and to give any directions to the attorney for the prosecution as to anything which might appear to him expedient to be done-e. g., the obtaining additional evidence, or the omitting superfluous witnesses.

"Where a defendant called witnesses before the magistrates, or was expected to call witnesses on his trial, it should be his duty to make, or cause to be made, any such inquiries as should seem expedient to ascertain whether the defence were founded in truth or the contrary.

"In any case where on investigation it appeared to him that the prisoner had an honest defence to set up, and where he was also satisfied that the prisoner was so poor as to be unable to make that

defence, he should be empowered, in his discretion, to direct an attorney to be employed, and such witnesses to be subpoenaed as he thought fit, or the latter only

and requiel his opinion, it should be his duty to "Where the magistrates entertained any doubts, advise them, and in cases of difficulty to obtain the opinion of the Crown counsel, hereafter suggested, for their guidance.

"When a case had been sent to trial, it should be his duty to take care that any additional inquiries that were expedient should be made.

"Whenever any attorney applied to him as to any evidence to be obtained or other matters to be done, it should be his duty to decide what should be done, and the responsibility of its being directed to be done or omitted should rest upon his shoulders.†

"It should be his duty to attend the grand jury, swear the witnesses, and watch their evidence, with the depositions or a copy in his hand, and ask any questions that might be necessary to elicit all the evidence they could give.‡

We doubt whether the district officer should be permitted to "regulate" the examination of witnesses. The legal advisers of the prosecutor, subject to the control of the magistrates, may safely be left to discharge this duty.

+ This would often relieve the prosecutor's attorney of much responsibility, especially in reference to the costs and expenses which the prosecutor may be entitled to recover from the county.

The prosecutor's attorney should also be entitled to attend the Grand Jury and perhaps also the prisoner s attorney. They attend the magistrates and coroner: why should they not attend the grand jury?

CC

410

District Officers to Superintend Prosecutions.

"It should also be his duty to see that the grand jury did not throw out any bill unless the whole of the members of it voted on the bill; but he should take no part in their deliberations as to the finding or throwing out of any bill, though it should be his duty to explain the nature of the charge contained in the indictment, and any matter or thing which might tend to facilitate the performance of their duties.

"In case after conviction the court or the Home

Office should require any information, it should be his duty to make, or cause to be made, any inquiries that should be necessary for the purpose of obtaining

such information.

"Wherever the depositions of witnesses or the examinations of prisoners appeared to be irregularly or improperly taken, it should be his duty to call the attention of the clerk of the magistrates to such irregularity or impropriety, with a view to preventing its recurrence in future.

"In all cases of difficulty, and where any question arose as to whether the prosecution ought to be proceeded with, it should be his duty to submit the depositions, &c., to the Crown counsel.

"Wherever he was of opinion that any prosecution ought not to be proceeded with, either because no offence had been committed, or for want of any sufficient evidence to make out a case, and the Crown counsel sanctioned such opinion, it should be his duty to give notice to the prosecutor and witnesses, and the attorney, not to proceed any further with such prosecution, and not to attend at the assizes or sessions; and also, in case the prisoner was in custody to order the gaoler to discharge him; and in case he was on bail, to give him notice that he need not attend at the assizes or sessions, as far as such particular prosecution was concerned.

"Where anything was done by his directions or under his advice which did not fall within the ordinary course of the prosecution, it should be his duty to ascertain the expense thereof, and, where practicable, to make an arrangement beforehand for its being done on the most reasonable terms which

could be obtained.

"Where any public nuisance was created, it should be his duty to give notice to the parties

forthwith to abate the same; and in case of their neglect or refusal, it should be his duty to institute a prosecution against the parties.

"Wherever he had information of the maltreatment of any child, apprentice, servant, idiot, or insane person, or the like, it should be his duty to have the case brought before the magistrates.

"In all cases where there was no prosecutor, or where the prosecutor did not think fit when before the magistrate to name his own attorney to conduct the prosecution, it should be his duty to direct the proceedings of the attorney nominated by the magistrates; and so likewise in any case where the magistrates, in their discretion, did not think that the prosecutor was a fit person to have the control over the prosecution.

"He might also be vested with authority to arrange the time at which witnesses in particular

cases should come to the assizes or sessions, and as to the means for their accommodation during their sojourn there, and anything else which might tend to facilitate the proceedings or lessen the expenses of prosecutions.

"It should also be his duty to direct the police to take any measures which in his judgment might

tend to the detection and punishment of well-known thieves and receivers of stolen property.

"His duties should commence with the first information of an offence, and continue until the case had been finally disposed of; and it should be his special duty to elicit the truth, not merely on the part of the prosecution, but on that of the prisoner also. In fact, he ought to be a minister of justice. He ought, therefore, from the beginning to the end, to keep his attention alive to whatever might be conducive to the real ends of justice."

Greaves suggests such an officer ought to Such are the principal duties which Mr. perform; and although at first sight they may appear numerous yet he thinks there is no doubt that in most counties they might very well be performed by a single officer, though in large counties, where there is a great amount of crime, a second officer would be required.

Nor, he contends, can it be doubted that such an officer would produce a very great amount of good. He would in no way interfere with any of the usual parts of criminal procedure, or check their working; on the contrary, he would stimulate their energies, and afford the most material and essential assistance and co-operation just on those occasions where they are most of all needed. Prosecutors and witnesses would find in him a most useful and efficient adviser, and no one can doubt that even the attorneys themselves, on many occasions, would be very desirous of seeking the advice of such an officer, and of relieving themselves by that means from the unpleasant position in which they are now placed. In serious cases it often occurs that points of difficulty and doubt arise, and at present the attorney is generally obliged to act entirely on his own judgment; and peradventure, after having exercised the best discretion in his power, he may at the and perchance the costs of some of the wittrial be blamed for the course he has adopted, nesses may be dissallowed, which, if he happens to have a poor client (as is commonly the case) must either be paid out of his own pocket or not at all.

In serious cases, also, such an officer would sometimes prevent the prosecution from failing, and Mr. Greaves mentions the following instance in support of his opinion.

"A case of murder by poison occurred, in which it was very material to prove that the prisoner had bought the poison at a particular shop; one witness only was brought to prove that fact; but a doubt occurring in consultation as to his evidence, a little girl, who was in the shop at the time, was sent for by the advice of counsel. On cross-examination the witness completely broke down; but the little girl proved the sale of the poison in so clear a manner as to leave not a particle of doubt of the fact, and the prisoner was convicted. Another case of poisoning was tried at the same place within a year afternegative a statement of the prisoner, in which he wards, and here a single witness was called to failed, and the prisoner was acquitted, though any

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