Semble, that the refusal by one of the arbitrators-1. That the order of reference and consent to refer to act, after having heard a portion of the case, were spent and expired before the plaintiff obtained constituted such a disagreement as devolved on the the extension of the time from the Court. 2. That umpire the duty of making an award. the seven days referred to in the notice served by the plaintiff on the defendant were not days within which the defendant could do any legal act, as at the time of serving the notice the time for making the award had expired, and that the plaintiff should have served the notice on the defendant after he had obtained an order enlarging the time. 3. That what occurred in the case was equivalent to a disagreement by the arbitrators, upon which the decision devolved on the umpire. 4. That the award as to costs was excessive, and beyond the power of the arbitrator.

under the 75th section of 23 & 24 Vist. e. 154, that
the defoudaut should within six days enter into a re-
cuguizance conditioned to pay the costs damages, and
mose profits which storld be recovered in the action.
Lynch, for the defendant objected that the terms
of the 75th section had not bee coupled with, as the
notist was on a separate piece of paper, which had
be pinued to the enamus and past The notice
is not at the foot of the writ of samsons and plaint
Visus the meating of the At The constraction
put upon 1 Wi 4 and 7 Vist. e 26, s. 75, shows the
eating of the word
Tea Cor

refused the motion with costs.

Court of Exchequer.

Biomed by s A burgut Eng Barrister-at-Law.

[BEE BARS FITZGERALD AND DEASY.] WKAB. COXE AND OTHERS.-Nov. 13, 1865. Acvault-Replication ambigums- Right of burial 23 & 24 Vict. c. 32.

Plaintiff was a churchwarden. Defendant sought to Defendant sought to bury a corpse in part of a churchyard where he was not authorized. Plaintiff quietly tried to prevent him, whereupon defendant assaulted him. Plaintiff replied to defendant's pleas, alleging the abone facts in extenso, and this replication w13 (after argument on a motion to have it set aside) ordered, on consent, to be amended, on the grounds that it did not sufficiently appear on the face of the replication whether plaintiff relied on his character of churchwarden for preventing defendant from burying the corpse where he was not authorized, or on authority given to him so to do by the incumbent.

Plain

THE summons and plaint was for an assault.
tiff was churchwarden of the parish of Clontaskert in
the County of Galway. Defendant wished to bury a
corpse in part of the graveyard where he had no right,
and plaintiff quietly sought to prevent him, whereupon
defendant assaulted him.

parish, or by any other person entitled to give him such antborily, and for the purpose of so burying said corpse in said part of said burying ground, he, the said George Cooke, so alded as aforesaid in a violent, indecent, and irreverent manner, commenced to open a grave in sail part of said churchyard in which he was not authorised to open same, and in so doing irreverently and wrongly disturbed the place of interment, and exposed a portion of the grave of a certain other person, who was theretofore interred, whereapo piatti so being churchwarden, and in the discharge of his duty as such churchwarden warned and required defendants to desist from so digging said grave, and from such violent, indecent, and irreverent coolact therein, and plaintiff required said George Cooke to dig said grave in another portion of said churchyard where defendant had been so authorised to bary said corpse, but which said defendant refused to do, bat persisted in digging said grave, whereupon, and for the purpose of so preventing defendant from so digging said grave, and so disturbing said other grave as aforesaid, plaintiff did then peaceably and gently, and as he lawfully might for the cause aforesaid, lay hands on the said George Cooke, doing no more than was necessary for such purpose, whereupon said defendant, with force and violence, and in an indecent, riotous, turbulent, and irreverent manner committed the alleged trespasses, and in so doing did greatly violate and disturb the decency, reverence, and decorum, due and appertaining to such burying ground as aforesaid."

Counsel contended that as the freehold of a graveyard is in the incumbent, the plaintiff in this replication should aver that the alleged acts were done by plaintiff under the authority of the incumbent, and not as churchwarden Counsel also objected to the word “indecently,” and insisted that the particular acts alleged to have been indecent should have been set out. He then contended that the words “exposed a grave” were ambiguous, and that you cannot allege the committal of an indictable offence in a replication as you would not in a summons and plaint.

that the churchwarden has rights in him independent Sidney, Q.C. contra, (with him Blake) contended of the incumbent with regard to burials. The soil of the graveyard is in the incumbent; he is to protect the soil, but the duty of the churchwarden is to see that nothing be done irregularly or indecently in the dant violating the law in two respects, quietly laid The churchwarden then, finding defenThere is an ambiguity as to whether you mean to rely hands on him to remove him. [Fitzgerald, B.— character of churchwarden.] I mean to rely on both. on the authority given by the incumbent, or in your [Fitzgerald, B.-You may then be depriving defen. dant of an opportunity of demurring to your replication.]

M'Mahon, for defendant, moved to set aside plain-churchyard. tiff's third replication to defendant's second defence 4one of son assault demesne). The replication, so far as need be stated here, was as follows:-"Plaintiff says that before and at the said times when and so forth be the plaintiff was a duly elected churchwarden of the parish of Clontaskert in the County of Galway, within which parish plaintiff avers there was a certain ancient parish burial ground under the control and management of the incumbent of said parish, aided by the plaintiff as such churchwarden, and that just before and at the said times when and soforth he, the said George Cooke, assisted by the other defendants, was unlawfully, violently, indecently, and in an irreverent and unbecoming manner, endeavouring to bury a corpse in a part of said churchyard, in which he was not authorized so to do by the incumbent of said

the replication be amended.
After some further discussion, it was agreed that

Cunningham v. Withers and Quinn v. Murray, both

[BEFORE THE LORD CHIEF BARON AND FITZGERALD in 8 Ir. Jur. N. S. 382. 27 & 28 Vict. c. 35, was

AND DEASY, BB.]

MOLLOY, APPELLANT; CUNNINGHAM, RESPONDENT.

Nov. 22, 1865.

passed in consequence of the decision in Cunningham v. Withers.-Queen v. Guardians of Mallow Union (12 Ir. C. L. R. 41); Stephens v. Strangman (1 Ir. Jur. 159); Duggan v. Ahearne (5 Ir. Jur. N.S. 398);

Licence to sell beer, &c.—Conviction quashed-17 & Cross v. Watts (13 C. B. N. S. 239).

18 Vict. c. 89.

Where A. got a licence to sell beer, &c. in premises described as "4 & 5 Gregg's lane," and wishing to enlarge his establishment, took down the partition wall, and added another house to the above, without taking out a fresh licence-Held, on appeal from a conviction by magistrate for having beer on sale in his house, that the conviction must be quashed.

This was an appeal from the decision of Mr. Stronge, divisional magistrate. The appellant had taken out a

licence for premises described as "4 & 5 Gregg'slane," and wishing after some time to enlarge his business, he took down the partition wall, and added the next house, “25 Sackville-street," to his original establishment without getting a new licence. The respondent, a police constable, summoned him for having beer, &c. for sale in the house 25 Sackvillestreet, an unlicensed house. From this conviction there was an appeal, and a special case stated by Mr. Stronge for the opinion of this Court.

Sidney, Q.C. (ow.ng to the indisposition of Curran, who, with Butt, Q.C., was with him) for the appellant. The summons was issued under 17 & 18 Vict. c. 89. Molloy got a licence from the Recorder under 3 & 4 W. 4, c. 68, to sell upon the premises 4 & 5 Gregg's-lane. The duties of the licensee are set out by 4 & 5 W. 4, c. 51, 6 Geo. 4, c. 81, s. 10. The appellant made one large house of the premises 4 and 5 Gregg's-lane and 25 Sackville-street, and there is nothing to prevent a man from altering or re-modelling his licensed premises so long as he keeps to the same premises. [Deasy, B.-What is the use of a notice specifying the premises if you may add to them without getting a new licence?] In practice it is found that very many houses have been added to, and the licence remains the same as at first notwithstanding the original notice. [Pigot, C.B.-Suppose the licensee annexes a brothel ?] Then he comes under the provisions of 17 & 18 Vict. c. 89, s. 11, and must show that his character and premises are good. Can it be contended that a man is to be so circumscribed with regard to his property that he cannot enlarge it.-18 & 19 Vict. c. 92. [Fitzgerald, B. Take this test. Was the licence which you got for one or for two houses? For you say the licence is available for more houses joined to the original one.] That is the very point on which we want a decision in this case. Another question in the case is thisIf we have not power to throw in the adjoining premises, then the offence we are charged with is not an offence within the 17 & 18 Vict. c. 89, but comes under 6 Geo. 4. c. 81, s. 26, and we should have been indicted under that Act. 17 & 18 Vict. c. 89, is directed against those who have no licence at all.

It being the rule that the junior, in cases like the present, should begin.

Mills (with him Barry, Q.C.) contra, in support of the conviction. We say the licensee must enlarge his premises, if so minded, upon premises referred to in his license; for instance, if he had a yard attached to 4 & 5 Gregg's-lane, however large, he might build on it to any extent without taking out a fresh licence.55 Geo. 3, c. 19, ss. 6, 10, 29, 30, 31; 6 Geo. 4, c. 81; 3 & 4 W, 4, c. 68, ss. 2, 4, 10; 17 & 18 Vict. c. 89, ss. 4, 9, 12; 23 & 24 Vict. c. 107, s. 13; 24 & 25 Vict. c. 91. In the last two Acts we have the

analogy of the wine licences.

Barry, Q.C. on same side.-The notice to be served

by persons seeking for a licence must contain a descrip-
tion of the situation of the premises for which the per-
son seeks a licence.—3 & 4 W. 4, c. 68, ss. 1, 2, 4. Can
it be said that if Molloy had a public house in Balbriggan
unlicensed, he might rely on his having 4 & 5 Gregg's-
lane in Dublin licensed. The argument of the other
side, if pushed, goes to this extent.
"Duly licensed"
Vict. c. 35, s. 7. With regard to the alleged defect
has respect to the particular place licensed-27 & 28
in the summons, this is not a certiorari; if it were, we

should stand or fall by the record, but t.is is a case
stated by the magistrate, and no question was raised
below as to the sufficiency of the summons. On the

true construction of a case stated, I contend that the Court is limited to the questions raised below.—23 &

warranty of a horse-Held, that the motion must be refused, but without costs.

THIS was an action brought by plaintiff, a horsedealer, having no fixed residence in Ireland, but only temporary lodgings in Anne-street, in the city of Dublin, against defendant, on an alleged warranty given by defendant on the sale of a horse by defendant to plaintiff.

Sidney, Q.C., (with him Coates) applied that plaintiff be obliged to give security for the costs of the action. The motion was grounded on an affidavit by defendant, setting out that plaintiff resides for the most part in England, out of the jurisdictior. of this Court, having merely temporary lodgings at No. 12 South Anne-street in the city of Dublin.

Seeds contra, for plaintiff, relied on Allain v. Chambers (8 Ir. C. L. R. Ap. 7) Redmond v. Mooney (14 Ir. C. L. R. Ap. 17; s.c. 7 Ir. Jur. N. s. Q. B. 277); Sisson v. Cooper (4 Ir. C. L. R. 401, C.P.) When the summons and plaint was issued, plaintiff was within the jurisdiction of the Court. In the summons and plaint plaintiff was described as having a residence at Drumcondra, which was afterwards found to be a mistake, as he was only on a visit to a friend

there.

ness.

which came from Ballinasloe, which was proved to be the main train. Plaintiff refused to give up his ticket on the arrival of the train in Dublin, whereupon the fare from Ballinasloe was demanded from him in accordance with the bye-law- Every passenger not producing his ticket will be required to pay the fare from the place whence the train originally started." On plaintiff's refusal to pay the fare or give his ticket, he was brought to the police office. He then brought an action for false imprisonment against the company. The material issue at the trial was, where did the train start from? and the jury, by the direction of the judge, found that it started from Ballinasloe. Held, on motion for a new trial in pursuance of leave reserved on the grounds of misdirection, that the conditional order must be discharged, and that the judge was right in so directing the jury.

was stated in evidence at the trial that the fare from

Cavan, third class, was 7s. 1d., from Crossdoney, 6s. 7d, and from Mullingar, 4s. 2d. The company demanded the above fare of 7s. 7d. in accordance with one of their bye laws, which was as follows:

THIS was an action for false imprisonment. Plaintiff was a third class passenger by the train from Crossdoney, on the Cavan line, to Dublin. When this train reached Mullingar it joined a train that started from Ballinasloe, the composite train then coming on to Dublin. On the arrival of the train in Dublin, plaintiff, though having his ticket, refused to give it up when deCoates in reply. The false address given to plain-manded. Thereupon 7s. 7d., the third class fare from tiff in the plaint vitiates the writ.-C. L. P. Act, Ballinasloe, was demanded from him, and refused. It sect. 9. Curry v. Johnson (2 Ir. C. L. R. 641). PIGOT, C. B.-The plaintiff in this case is a dealer in horses. He is obliged to go to England on busiIt is a mistake to imagine that a person having a residence elsewhere, and coming to this country to maintain an action, should be liable to give secuEvery passenger not producing or delivering up his rity for costs. Tambisco v. Pacifico (7 Exch. 816) es- ticket when required so to do by the servant of the tablishes the contrary. Plaintiff here was in the country company duly authorised to collect tickets, will be when the writ was issued, and living at Drumcondra; required to pay the fare from the place whence the he left the country three days after, which defendant train originally started, or in default of payment Plaintiff could give no other residence thereof shall forfeit and pay a sum not exceeding 40s. than what he has given in the summons and plaint, On plaintiff's refusal to give up his ticket, or to pay and though he has now only lodgings which he may the 7s. 7d., he was arrested and brought to the police give up at any time, yet we cannot grant this ap office, and this was the imprisonment complained of. plication. As to the costs, plaintiff has misled defen- The case was tried before the Lord Chief Baron at dant, and obliged him to bring this motion; plaintiff's the sittings after Michaelmas Term, 1865. The only attorney knew that defendant was under the impres-issue material to the present motion at the trial was, sion that plaintiff was not in this country, he oughtDid the train originally start from Ballinasloe?" and then in fairness to have apprized defendant of his his Lordship directed the jury to find that it did, and mistake. Therefore the motion must be refused, but reserved leave to plaintiff to move to have the ver

was aware of.

without costs.

66

dict entered for plaintiff or for a new trial, on the ground of misdirection.

Carleton, Q.C., (with him Exham, Q.C.,) for defendants, now showed cause against the conditional order, obtained in pursuance of the leave reserved. The short question in the case is, what is the meaning

[BEFORE THE LORD CHIEF BARON AND FITZGERALD AND of the words "the train" in the bye-law-" the place

DEASY, BB.]

BARRY V. THE MIDLAND GREAT WESTERN RAILWAY
COMPANY OF IRELAND.-Jan. 23.

New trial motion—Merning in company's bye-law of
words, "place where train originally started from."
A was a third class passenger by the train from
Crossdoney, on the Cavan line, to Dublin. On the
arrival of the train at Mullingar, it joined a train

where the train originally started from." This is a case of first impression, and the meaning of the words cannot be arrived at by any authority, but we contend that the words mean the train which arrives at

the terminus at which the passenger leaves the train. It was proved at the trial that there were two trains which met at Mullingar, which then united and came on thus to Dublin. We say that "the train" started originally from Ballinasloe-plaintiff, that it originally started from Cavan, or else from Mullingar, the junc