that case is clearly in favour of the petitioners. If the case be considered doubtful, the Court will pay attention to the enactment in the 135th section, which directs that the act shall be construed favourably to creditors. mately pronounced by Lord Chief Justice Tindal in favour of the proof being admitted. In arriving at this conclusion, his Lordship stated that two questions had been raised: first, whether the bankrupt had contracted a debt, payable on a contingency, within the meaning of the statute; secondly, whether, if so, this was a contingency on which the commissioners could set a value. On the first point, he held, that a debt was contracted, inasmuch as a covenant constitutes a debt whereon an action of debt may be maintained; and that a covenant by a man for payment by his executors constitutes also a debt, as much as if he himself had covenanted to pay it; that though it might be doubted whether an action of debt, technically so called, would lie against the executors, this was only as to the form of action; but the opinion of the Court in this instance was not formed on the technical ground, but upon the substance and effect of an absolute covenant that the executors should pay a certain sum of money; and that, though it was possible the contingency might never happen, that uncertainty afforded no reason against its being within the meaning of the act; and it was reasonable to presume, that the Legislature, in using the word " contingency," meant it should apply to all such cases as fall under the ordinary acceptation of the terms." Previous, in point of date, to this very solemn decision in Ex parte Tindal, the judgment of Lord Brougham had been pronounced in another of the cases which have been cited in the argument, that of The Lancaster Canal Company, (Mont. 27), where his Lordship, in affirming, though on a different ground, the decision of the Vice-Chancellor, held, that there was no debt proveable, the ground of his opinion in that case being, that the covenant was not absolute, nor for a sum certain, but merely to pay all balances which might happen to be in the hands of the trustees, "when required by the company, and that no demand had been made"-a ground which, it will be immediately seen, was wholly independent of that taken in Ex parte Tindal, with which it is quite consistent. This distinction between the two cases is no other, in fact, than the same which has governed most of the other cases referred to in argument against the admissibility of the proof, namely, that the alleged debt is non-existent. So, in Fallop v. Ebers, (1 B. & Ald. 698); Bodman v. Nash, (9 B. & C. 145); Ex parte Thompson, (Mont. & Bl. 319); and also Ex parte Marshall, (Mont. & Ayr. 118). The case of Atwood v. Partridge (4 Bing. 209)| is among those which were referred to by the commissioners as governing their decision in Ex parte Marshall, (which decision was affirmed by the Court of Review); and, as this is the case which seems most in point with the present of all those which I have now been citing, I will shortly state the substance of it :-It was the case of a covenant by A. for payment by B. of the premiums on a policy effected to secure a debt from B. to the plaintiff. The premium, becoming due, was paid neither by B. (who had become bankrupt) nor by A., whereupon the plaintiff himself paid it; and A. having in the meantime also become bankrupt, and obtained his certificate, it was held, that the certificate was no discharge from the payment of the premiums. It is unnecessary to express an opinion as to what might have been our decision if the proof here had been otherwise presented to us; but the parties have, in this case, been advised to exhibit it in a different shape, namely, for the value of the policies, estimated according to the amount of the premiums; and it is argued, that this is an amount clearly capable of valuation; that although there is strictly no debt, inasmuch as the covenant is to pay, not to the bankrupt, but to a third party, namely, the insurance company, yet, when it is considered that the policy has been made the subject of an absolute assignment, and that the covenant to pay is for the immediate benefit of those who are the objects of it, there can be no question that this is an obligation within the contemplation of the statute. There is, at least to my mind, much force in the reasoning which has been objected tothe reception or admission of this proof beyond that which arises from the nature of the contingency, and which is capable of valuation, and sufficient, perhaps, to justify the expression of some desire, that the provisions of the act were extended to cases such as the present, of no unfrequent occur. rence, and distinguishable, in point of moral justice, from those VICE-CHANCELLOR WIGRAM'S COURT. NEWTON v. ASKEW.-July 4, 5, and 18. Arrest-Privilege-Registrar's Office. A Party interested in a Decree in a Suit is privileged from Arrest while attending the Registrar's Office, on passing the Minutes of the Decree. A Vice-Chancellor cannot (unless specially authorised by the Lord Chancellor) make an Order, on Motion in a Rolls Cause, for the Discharge of a Prisoner brought before him on Habeas Corpus-semble. In a suit at the Rolls, instituted by Mrs. Newton of Ex parte Tindal and others, already cited. But we apprehend, that, whatever disposition may be felt to give effect to such an extension, it is too strongly opposed to the principle of a distinction between debts and mere liabilities, as is laid down by Erskine, C. J., in the case of Ex parte Marshall, (3 Deac. & Chit. 139). Then there were the cases of Ex parte Wyatt, (1 Mont. & A. 405), Taylor v. Young, (3 B. & A. 521), and Atwood v. Partridge, which latter I have before referred to. Then the two cases not referred to in the argument, namely, La Costa v. Gilmer, (1 Price, 315), where a similar question to the present arose under the Insolvent Debtors Act, 51 Geo. 3, c. 125, s. 16; and it was contended, that premiums on a policy of insurance, payable after the 1st of May, 1811, (up to which day the act operated in discharge, sect. 30), must be considered as "sums of money payable by way of annuity or otherwise, at any future time or times, by virtue of any bond, covenant, or other securities of any nature whatsoever," within that section; but the Court of Exchequer thought otherwise, and held, "that the debtor was not exonerated, as to such premiums, by his discharge under the act." In the other case, namely, that of Bennet v. Burton, (12 Adol. & Ell. 657), a mortgagor, by a deed of mortgage for a debt of 10007., covenanted, as a further security, to insure his life for the mortgagee's benefit, deliver the policy to him, and keep the premiums paid till the debt was discharged; and that if, in the meantime, the premiums should be in arrear, the mortgagee might pay them and receive the amount from the mortgagor. The mortgagor afterwards took the benefit of the Insolvent Debtors Act, 7 Geo. 4, c. 57, and included the 10007. in his schedule, stating also, that the creditors held a policy of insurance on his life, with a joint security of A. B. for the payment of the premiums. It was held, that the mortgagor was not protected by his discharge, nor from an action of covenant at the suit of the mortgagee, for premiums becoming due after such discharge, and paid by the mortgagee on the mortgagor's default. Now, in the case upon which we have to decide, the bankrupt covenants to pay the insuranceoffice certain premiums; and, if he does not, the trustees may pay them, and he (the bankrupt) is to indemnify the trustees. It seems to us that this indemnity is incapable of being estimated. If the trustees had paid a year's premium, and the bankrupt had died before the next premium became due, the amount of damage would have been the sum paid by the trustees; or it might have been, in addition to that, a fine imposed by the office for paying the premium too late. Again, if the bankrupt had died, and the payment of the last year's premium had been altogether omitted, the whole sum insured would have been lost. We think that this case is analogous to the cases of Bennet v. Burton and La Costa v. Gilmer, and must be governed by them; but, independent of any authority, we also think that there was here no debt between the trustees and the bankrupt to which any of the clauses of the Bankrupt Act are applicable; and that, consequently, this proof must be rejected. But t ། ear the trustees of a settlement, under which they were and her infant children by their next friend, against was directly interested in the decree, namely, as to the interested, a decree was made in favour of the plaintiffs, might seriously affect the right of the client; and, with a direction that the costs of the plaintiffs should therefore, the party was allowed personally to attend be paid by the trustees, and that those of Mr. Newton, and watch the proceedings, and was protected during the plaintiff's husband, who was named as a defend- such attendance. The order, therefore, must be for the ant in the suit, should be paid by the plaintiffs, who discharge of Mr. Newton. costs of the suit. The consent of counsel or solicitor were to have them over against the trustees. An K. Parker asked that an undertaking by Mr. New appointment having been made by the plaintiffs' solici- ton not to bring any action against the parties at whose tor (who was also the solicitor on the record of the de- instance the attachment had been executed might be the purpose of settling the minutes of the decree, Mr. Rep. 880; Lorimer v. Dale, 1 Chit. Rep. 134; Magnay fendant Newton) to attend at the Registrar's office, for made a term of the order. (Frost v. Daniell, 4 Q. B. Newton, while on his way to keep the appointment, v. Burt, 5 Q. B. Rep. 381). was arrested in Lincoln's-inn by a sheriff's officer, under an attachment for non-payment of a sum of 197. | Mr. Newton, in person, contra. Sir JAMES WIGRAM, V. C., refused to impose any costs, which he had been ordered in another suit to pay terms upon Mr. Newton, observing that the point upon grounds. First, that a party engaged in the prosecu- tion of a suit was gaged; and that such protection extended to a proceed- [ COURT OF QUEEN'S BENCH.-TRINITY TERM. before the Court, or the Master, or the Commissioners In an Action for Slander, which was primâ facie privi in Bankruptcy. (Sidgier v. Birch, 9 Ves. 69; Ex parte | King, 7 Ves. 312; List's case, 2 Ves. & B. 373; FrankT. R. 534). Secondly, that no attachment for non-payhyv. Colquhoun, 1 Madd. 580; Ardney v. Flower, 8 ment of costs under 207. could issue. And, thirdly, that, although the cause was depending in the Rolls, the application for a discharge from arrest might be made | before any judge of the superior courts. Sir JAMES WIGRAM, V. C., said, that the proposition, that every judge had jurisdiction to discharge a priSiner unlawfully detained, certainly admitted of some qualification. Thus it had been decided, that a party committed in bankruptey could not be discharged by an order in Chancery; and that a party committed by the Court of Chancery could not, in all cases, be discharged by the Court of Exchequer. The same rule, he thought, would prevent a judge in one branch of this court from discharging a party attached under an order made in another branch of the court. The present motion, therefore, was made in a form which precluded him from dealing with it, however reluctant he might be to decide the case on a point of form. On the following morning Mr. Newton renewed his application, having, in the meantime, obtained an order of the Lord Chancellor that the motion should be heard before Vice-Chancellor Wigram. Kenyon Parker and Hall, contra, contended, that the protection extended only to attendance at a judicial proceeding, and not to a proceeding in the Registrar's office, which was merely ministerial. The privilege, if carried beyond this, would have the effect of exempting the party from arrest during the continuance of the suit. (Crone v. Odell, 2 Moll. 525; 7 Beames' Orders, p. 88). be trustess Bankr Sir JAMES WIGRAM, V. C., said he was of opinion that Mr. Newton was entitled to his discharge, on the ground of privilege while in attendance at the office. It was true, no doubt, in theory, that the proceeding in the Registrar's office was merely ministerial, the duty of the Registrar being merely to draw up the order which the Court had pronounced. In practice, howEver, the Court, for greater caution and for the sake of accuracy, required notice of the drawing up of the detree to be given to all parties interested in the suit, in order that they might be present if they thought fit, and be satisfied that it was drawn up in accordance with the judgment pronounced in court. It was the practice in the office not to draw up the decree until three such notices had been served. In the present case, the party leged, Plaintiff, in order to prove express Malice, gave Evidence of a former Dispute between him and Defendant respecting a Claim of 201., and proved an Examination of himself before the Commissioner in Insolvency in the Presence of Defendant, and upon Defendant's Application to have this Claim struck out of the Schedule, in which he stated that before that Time the Money had been received by Defendant, and that Defendant had, upon repeated Applications for it, untruly pretended that he had paid it over. The Examination was after the Time of the Slander:-Held, that the Evidence was admissible, the Object of it being to shew that Plaintiff had given such Provocation to Defendant as might naturally br expected to excite Defendant's Ill-will towards him. Plaintiff expressed in Court his willingness to accept an Apology and nominal Damages, Defendant not persisting in a Justification which he had pleaded. Defendant refused, and, though he offered no Evidence in support of the Justification, never withdrew the Charge: -Held, that the Jury might take these Facts into consideration as proving Malice, and aggravating the Injury. Slander. The declaration stated, for that whereas heretofore, and before and at the time of &c., the plaintiff was and now is an honest, upright, and faithful subject of this realm, and at the several times hereinafter mentioned, and for a long time before, was superintendent of fire-engines in the town of Hadleigh, in the county of Suffolk: and whereas, as such superintendent of fire-engines, it became and was his duty to receive divers sums of money from divers fire-offices and divers persons, and to account and settle for the same: and whereas the plaintiff had always, during the time of his being such superintendent of fire-engines, behaved and conducted himself honestly, truthfully, uprightly, properly, faithfully, justly, and with integrity, in the discharge of the duties of the said office of superintendent of fire-engines; and had always accounted and settled for all monies which had been received by him from such fire-offices and persons respectively, as such superintendent of fire-engines aforesaid, and never was guilty of the offences, breaches of duty, or misconduct hereinafter stated to have been charged upon and imputed to him by the defendant; nor until the time of the committing the grievances by the defendant, as hereinafter mentioned, was ever suspected of any such offences, breaches of duty, or misconduct, by reason whereof the plaintiff had deservedly acquired the esteem and good will of all his neighbours, and other good and worthy to the said John Ansell and the last-mentioned persons, subjects of this realm to whom he was known: ne- of and concerning the plaintiff, and of and concerning vertheless, the defendant, well knowing the premises, him, the said plaintiff, in the exercise of his said office but contriving, and wickedly and maliciously intend- of superintendent of fire-engines, and of and concerning ing, to injure the plaintiff in his good name, credit, and the propriety of his being dismissed from the said office reputation, and to bring him into disgrace, scandal, and of superintendent of fire-engines, the false, scandadistrust, as such superintendent of fire-engines as afore- lous, malicious, and defamatory words following, that said, among all his neighbours and other good and is to say :-"They (meaning the statements so made faithful subjects of this realm, and to cause it to be be- by the said John Ansell as aforesaid) are perfectly lieved that he had received divers large sums of money true:" meaning thereby that the plaintiff had received from divers fire-offices and persons, as such superin- various sums of money from a certain fire-office in the tendent of fire-engines, and had misapplied, and had discharge and by virtue of his said office of superintend omitted and refused to account and settle for, such ent of fire-engines, and that he had misapplied and not sums of money; and also to cause and procure him to be accounted for such sums of money as such superintenddismissed from the said office of superintendent of fire-ent of fire-engines; and that the said John Ansell had engines, for the offences, breaches of duty, and miscon- seen receipts, written by the plaintiff himself in the duct imputed to him by the defendant, as hereinafter plaintiff's own hand, to the amount of 5807., which the stated, heretofore, to wit, &c., in a certain discourse plaintiff denied ever having received the money for; which the defendant then had with a certain person, to and meaning that the plaintiff had received the sum of wit, John Ansell, of and concerning the plaintiff, and 580., for which he had given written receipts, and that of and concerning him in the exercise and discharge of he had afterwards falsely denied the receipt of such his said office of superintendent of fire-engines, and of sum by him. By means of which premises the plaintiff and concerning the propriety of his being dismissed from has been and is greatly injured in his aforesaid good the said office of superintendent of fire-engines, in the name, fame, and credit, and brought into public scandal, presence and hearing of the said John Ansell and infamy, and disgrace with and amongst all his neighdivers other persons, and in answer to the following bours and other good and worthy subjects of this realm, statement and question respectively, then, and in the insomuch that divers of those neighbours and subjects, presence and hearing of the last-mentioned persons, to whom the innocence, honesty, uprightness, and inmade and put by the said John Ansell to the defend- tegrity of the plaintiff were unknown, have, on occaant, of and concerning the plaintiff, and of and concern- sion of the committing of the said several grievances by ing him in the exercise and discharge of his said office the defendant, from thence hitherto suspected and beof superintendent of fire-engines, and of and concern- lieved, and still do suspect and believe, the plaintiff to ing the propriety of his being dismissed from the said have been and to be a person guilty of the offences, office of superintendent of fire-engines, that is to say: breaches of duty, and misconduct so as aforesaid men"I (meaning the said John Ansell) can soon settle the tioned to have been charged upon and imputed to the question (meaning the question of the propriety of the plaintiff by the defendant; also by means of the said plaintiff being dismissed from the said office of superin- premises the plaintiff has been dismissed from and has tendent of fire-engines). I (meaning the said John lost the said office of superintendent of fire-engines at Ansell) am extremely sorry. I(meaning the said John Hadleigh aforesaid, and has been and still is deprived Ansell) do it very reluctantly; but I (meaning the said of the same and of the salary and emoluments thereto John Ansell) must speak the truth. Mr. Simpson (mean- attached and theretofore received and enjoyed by him ing the plaintiff) has received various sums of money as such superintendent of fire-engines; and the plainfrom the fire-office, which he (meaning the plaintiff) has tiff has been and still is greatly injured and damnified, misapplied and never accounted for, nor settled the ac- to the plaintiff's damage, &c. Pleas-first, not guilty; counts (meaning that the plaintiff had received various third, justification as to the reception and misapplication sums of money from a certain fire-office, in the dis- of monies by the plaintiff. Replication to third plea, de charge and by virtue of his said office of superintendent injuriâ. On the trial, before Erle, J., at the sittings at of fire-engines, and that he had misapplied and not ac- Guildhall after Easter Term, 1848, it appeared that the counted for such sums of money, as such superintendent plaintiff was superintendent of fire-engines at Hadleigh, of fire-engines). Under these circumstances, (meaning and that the defendant was an attorney and agent for the the circumstances by the said John Ansell lastly before Sun Fire-office, in which capacity he received fees and mentioned), I (meaning the said John Ansell) consider paid them over to the plaintiff, whose duty it was to Mr. Simpson (meaning the plaintiff) to be an improper attend any fires which might happen, and to distribute person to fill the situation (meaning the said office of the fees and account for their distribution. The words superintendent of fire-engines). I (meaning the said in question were spoken at a vestry meeting held for John Ansell) have seen receipts written by Mr. Simp- the purpose of determining whether the plaintiff should son himself, (meaning the plaintiff), in his (meaning be dismissed from his office. The plaintiff was then in the plaintiff's) own hand, to the amount of 5801. I execution upon a judgment for debt recovered by the (meaning the said John Ansell) believe it was 6007.; defendant and his partner. Soon after the meeting, the but 5807. I (meaning the said John Ansell) will plaintiff brought an action against Ansell, who had be sworn, which he (meaning the plaintiff) denied made charges against him at the meeting, and the deever having received the money for, (meaning that fendant conducted the defence. In order to prove exthe plaintiff had received the sum of 5807., for which press malice the attorney for the plaintiff was called to he had given written receipts, and that he had after- prove that the plaintiff, being in execution at the suit wards falsely denied the receipt of such sums by him). of the defendant and his partner, and pending the action I (meaning the said John Ansell) therefore con- against Ansell, petitioned the Court for the Relief of sider him (meaning the plaintiff) an improper per- Insolvent Debtors, and in his schedule inserted, as a son to fill the office (meaning the said office of super- debt due to him from the defendant, a sum of 20%. 18s. 6d, intendent of fire-engines): he (meaning the plain- which the defendant had received for him from the tiff) ought to have been discharged months ago. Are Sun Fire-office, but had never paid over to him. Upon not these statements (meaning the said statements so the hearing of his petition, the defendant opposed his made by the said John Ansell as aforesaid) correct?"- discharge, and prayed that the item might be expunged, then, in the presence and hearing of the said John on the ground that it was injurious to him in his priAnsell and of the said other persons in that behalf vate and professional character. On his examination, aforesaid, falsely and maliciously spoke and published the plaintiff swore, that the defendant had obtained of Another part of the direction was said to be wrong: from him a receipt for 201. 18s. 6d., which was due from thought honest, might possibly leave feelings of resentthe Sun Fire-office for fires; that the defendant had ment in his mind. never paid it over to him, though he had on several the plaintiff had expressed in court his willingness to received the money from the Sun Fire-office, but had commissioner of the Insolvent Court refused to expunge not persisting in a justification of the truth which he had the entry, unless the defendant would contradict the pleaded. This the defendant refused; and, though he occasions pressed the defendant for a settlement. The accept an apology and nominal damages, the defendant plaintif on oath, which, by the advice of his attorney, offered no evidence in support of the justification, he he declined to do, on the ground that the 201. 18s. 6d. never withdrew the charge. On this the learned judge was the subject of the action against Ansell. The plain- remarked, with reference to the question of malice, learned judge overruled the objection. The jury gave quent, might indicate the existence of motives at a fendant, that this evidence was inadmissible; but the considered by the jury, and that acts, although subsetiff obtained his discharge. It was objected for the de- that the whole of the defendant's conduct might be a verdiet for the plaintiff, damages 401. In the follow- former time. And with reference to the question of O Malley moved for a rule nisi for a new trial, on the the nature of the imputation, how it had been made, grounds of the improper reception of evidence, misdi- and how it had been persisted in down to the time of rection, and the verdict being against evidence. The the verdict; and they should calmly consider what points sufficiently appear from the judgment of the damages would reinstate the plaintiff's character. ing Trinity Term*, Court. Lord DENMAN, C. J., Cur, adv. vult. now delivered the judgment of damages, he remarked, that the jury should consider We see no objection to this direction. The defendant's conduct, in putting a justification on the record the Court.-This was a motion for a rule to set aside which he does not attempt to prove, and will not the verdict for the plaintiff, and for a new trial, for abandon, may be taken into consideration as proving the reception of improper evidence and misdirection. proving what is called 66 express malice." This the malice and aggravating the injury. And if the defendant's conduct in that respect may at all affect the same disposition may equally be laid before the jury. The action was for slanderous words, which were prima facie privileged, and so a necessity arose for verdict, every other part of his conduct shewing the plaintiff sought to do by a former dispute between him Refusing to make reparation for unjustifiable slander evidence of that dispute, he proved an examination of, at the time of the trial, but connected with the subjectand the defendant respecting a claim of 20%., and, as may have that effect; and the malice proved to exist himself before the commissioner in insolvency in the matter of it, may well be believed to have existed at application to have this claim struck out of the schepresence of the defendant, and upon the defendant's the time of speaking the words. dule. The examination was after the time of the the plea of justification, and the Court of Exchequer slander, but that time, the money had been received by the defend ant, and that the defendant had, upon repeated applications for it, untruly pretended that he had paid it over. The defendant was fully at liberty to answer this, and was called on to do so, but he had declined to be examined, alleging that he plaintiff's attorney was likely to take an unfair advanwas apprehensive that the tage of him for other purposes. That evidence was said to be inadmissible on the authority of a case of Melen v. Andrews, (M. & M. 336), in which Parke, B., declined to receive against a party proof of evidence given in his presence by a witness, and not denied by him. That learned judge thought it safer and better not to lay before the jury the defendant's conduct in not denying in a court of justice what a witness swore, to the prejudice of a party present, although that party had the opportunity of cross-examining the witness, of which he did not avail himself. My Brother Rolfe lately observed at Nisi Prius on he thinks that he only made the remark to meet the defendant's argument in that case, that the words were hastily spoken. But the subsequent justification has no bearing even on that speaking, except as inferring malice at that earlier time; and any conduct of the deference, must stand on the same footing.-Rule refused. fendant at a subsequent time, leading to the same in We do not understand that case as deciding, that under no circumstances can such evidence be admitted, though the learned judge thought it in that case safer and better to exclude it, and the plaintiff's counsel acquiesced; for cases might certainly be conceived in which a party, by not denying a charge so made, afford might possibly strong proof that the imputation was just. But the case does not apply: the object of the evidence in this case was not to deduce the truth of the plaintiff's statement from the defendant's not denying it, but to make it probable that the plaintiff had given such provocation by former disputes as might naturally be expected to excite the defendant's ill-will towards him. For this purpose, anything that shewed that the plaintiff and the defendant lived on bad terms may bear upon the issue of malice; and, on this particular imputation, the learned judge was well warranted in asking the jury whether they inferred malice from it, and observing that such an attack on the character of an honest man, or one who wished to be May 30, before Lord Denman, C. J., Patteson, Coleridge, and Erle, JJ. MICHAELMAS TERM. BURY v. BLOGG.-Nov. 25, 1848. To an Amendment made by the Judge at Nisi Prius, under Stat. 3 & 4 Will. 4, c. 42, s. 23, it was at the Time objected, that it rendered the Declaration specially demurrable; but the particular Defects were not then pointed out. The Court afterwards, on Motion and Proof of formal Defects in Points immaterial to the Merits, refused to enter a Nonsuit according to Leave reserved, or to grant a new Trial. In this case, which was tried before Lord Denman, C. J., at the Sittings at Guildhall after Hilary Term, 1848, it became necessary to amend the original declaration. Upon the amendments being proposed, it was objected for the defendant, that they ought not to be allowed, since the declaration, as amended, would be open to a special demurrer. The formal objections were not then pointed out. The amendments were allowed, leave being given to the defendant to move to enter a nonsuit, if the Court should think that the amendments ought not to have been made. A verdict was entered for the plaintiff. In the following Easter Term, Butt, Q. C., obtained a rule nisi to enter a nonsuit, or for a new trial. In Michaelmas Term*, Shee, Serjt., (with him Bovill), shewed cause.-Some of the formal objections now raised might have been taken on the old as well as on the new declaration. [Erle, J.-Can it be said, if an amendment be allowed, that thereupon a special demurrer may be pointed to *Nov. 10, before Lord Denman, C. J., Coleridge, Wightman, and Erle, JJ. parts of the old declaration?] It is said to have been held in a recent case in the Exchequer, that an amendment which makes the pleading demurrable ought not to be allowed. If so, the party objecting has in effect a double chance, as if he had both pleaded and demurred. He should elect either to demur or plead, and should do so at the trial. [Coleridge, J.-By the discretion given to the judge, in sect. 23 of stat. 3 & 4 Will. 4, c. 42, to allow an amendment upon the terms of postponing the trial, it seems assumed that the time for demurring is passed.] The amended declaration, although it may be in some immaterial points informal, is substantially good it was supported by the evidence; and the amendments were, therefore, properly allowed. Butt, Q. C., (with him John Henderson), contra.-It is admitted, that the declaration, as amended, is open to a special demurrer on some grounds. It was held, in Evans v. Powis, (11 Jur. 1043), that an amendment which made a plea demurrable ought not to have been allowed. And in Oakley v. Pritchard, which is not reported, but which was tried before Wilde, C. J., at the Sittings after Hilary Term, 1848, where an amendment was allowed in the declaration, and a verdict was entered for the plaintiff, and leave was given to the defendant to move to enter a nonsuit, on the ground that an amendment which leaves the declaration open to a special demurrer cannot be made, and the formal objections were substantiated before the Court, the Court of Common Pleas ordered a nonsuit to be entered. Cur, adv. vult. Lord DENMAN, C. J., now delivered the judgment of the Court. It was contended for the defendant in this case, that an amendment allowed at Nisi Prius was improper, and ought not to have been allowed, because the effect of it, in the terms in which it was made, was to make the declaration specially demurrable in form in a point quite immaterial to the merits, and which would have been cured by pleading over. We are, however, of opinion, that such an objection cannot prevail, unless it be made at the time, and the effect of the verbal omission be pointed out, as there can be no doubt that it would be immediately set right. There is no hardship or injustice in this, but the contrary; for, if the defendant could avail himself of the objection now, he would convert a mere formal mistake, amendable immediately, into an incurable defect. The rule, therefore, will be discharged.-Rule discharged. HILARY TERM. BROWN v. HUTCHINSON and Others.-Jan. 25. Issue under Stat. 6 & 7 Will. 4, c. 71, to try whether a Modus extended over all the Lands of a Township except the Glebe, the Lands inclosed under an Inclosure Act, and an ancient Farm called F. On the Trial the Proof was of Payments made for the old Inclosures except F, the Inclosures under the Act, and the Glebe. The Judge refused to amend the Issue, but under Sect. 24 of Stat. 3 & 4 Will. 4, c. 42, directed the Jury to find the Fact according to the Evidence, and their Finding was stated on the Record:-Held, that the Direction was wrong; and the Finding was expunged. Issue under sect. 46 of stat. 6 & 7 Will. 4, c. 71, to try whether there existed a valid modus, or prescriptive or customary payment, of the annual sum of 16l. 198.2d., payable by the lord of the manor of Egleston, to the rector of the parish of Middleton in Teesdale, instead of the tithes of hay annually arising from all the lands in the said township, except the lands then or theretofore glebe lands of the rector, except certain lands enclosed by virtue of the provisions of a certain act of Parliament, (25 Geo. 3, A. D. 1785), and except a certain ancient farm and lands, called Foggerthwaite. The issue was settled by a learned judge, in accordance with the decision of the Assistant Tithe Commissioner. On the trial, before Erle, J., at the Durham Summer Assizes, in 1848, it appeared that there were four classes of lands in the township of Egleston: first, glebe land; secondly, lands inclosed under stat. 25 Geo. 3; thirdly, the farm called Foggerthwaite; and fourthly, other lands, which consisted of inclosed lands, called old inclosures and common lands. Evidence was given by the plaintiff that the common lands were not covered by the modus; and an application was made to the learned judge, on behalf of the defendants, to amend the statement in the issue, in pursuance of sect. 23 of stat. 3 & 4 Will. 4, c. 42, so as to remove this variance; but, it being objected to on behalf of the plaintiff, he refused to amend. It was then contended, on behalf of the defendants, that the judge, under sect. 24 of the same statute, might direct the jury to find the fact according to the evidence; and the learned judge directed the jury accordingly, and the following finding was stated on the record:-"Verdict for the plaintiff on the issue; and that payments were made for the old inclosures, except Foggerthwaite, except the inclosures under the act, and except the glebe. Amount of modus, 167. 19s. 2d." In the following Michaelmas Term, (Nov. 3), Manisty moved for a rule nisi for setting aside or expunging the special finding of the jury indorsed upon the postea. The only question which can be tried in this action is that raised by the Assistant Tithe Commissioner. If the finding indorsed on the postea is authorised, it is binding upon the defendant, by sect. 46 of stat. 6 &7 Will. 4, c. 71, and the modus is established for all the lands except the unenclosed or common lands; whereas the plaintiff has not had an opportunity of contesting that. [He cited Barker v. The Tithe Commissioners, (11 Mee. & W. 320).] Further, the power to direct a special finding, given by sect. 24 of stat. 3 & 4 Will. 4, c. 42, applies only to cases in which the judge may amend; and this is a variance, between the modus as laid and the modus as proved, material to the merits of the case; the plaintiff's case, upon the issue, as stated, being that some part of the other lands, besides those excepted, was not covered by the modus; and the defendant's case being, that every part of the lands in the township, except those excepted, was covered by the modus. The Court granted a rule nisi, and directed that the case should not be put down in the new trial paper. Knowles now shewed cause.— e.-If the power of the judge to make this indorsement does not apply because the Court has not to give any judgment upon the finding, this application is premature, and the plaintiff is not prejudiced by the indorsement. The plaintiff has got the verdict, which is all that the Tithe Commutation Act could give him; and, if the verdict of the jury is conclusive upon the Commissioner, the plaintiff suffers no prejudice or inconvenience. [Coleridge, J.—The Assistant Tithe Commissioner may not know what the verdict is; it is a verdict for the plaintiff, accompanied with a special indorsement. Wightman, J.-There is nothing in the issue to warrant the special finding. Patteson, J.-In Thorpe v. Plowden, (in error from the Common Pleas, Easter Vacation, 1848), the Court of Exchequer Chamber held, that, in an issue under the Tithe Commutation Act, no judgment could be entered up to ground a writ of error.] [He referred to Barker v. The Tithe Commissioners, (9 Mee. & W. 129, 150).] Manisty, T. Jones, and T. Taylor, contra, were not heard. BY THE COURT, Consisting of Lord Denman, C. J., Patteson, Coleridge, and Wightman, JJ.-Rule absolute. REG. v. THE HAMMERSMITH BRIDGE COMPANY.-Jan. 30. Where Works producing rateable Value are situate in several Districts, and can be divided into Two Parts, the first directly producing the Value, and the second indirectly conducing to such Production, such Division should be made. Then all the Expenses incidental to |