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Murphy v. O'Sullivan (11 Ir. Jar. N. s. 111,) distinguished. Ib.

(b.) Agreements relating to land.
Where a letter was written in the name of a firm

of land-agents by the sub-agent to a tenant stating that a revision of the rents had been made, and taat they were desired to make a general change in the rents by raising them 20 per cent., and that leases at the increased rents would be granted, and that a notice to the effect would be sent him; and a few days afterwards the sub-agent sent a bailiff to the tenant with a written agreement to pay the increased rent and to take out a lease, and the tenant signed the agreement, but it was not signed by or on behalf of the landlord. Held, that there was no agreement binding on the landlord at law within the Statute of Frauds. Archbold v. Earl of Howth, 11 Ir. Jur. N. s. 88, C. P.

Where one count in the plaint sought to recover damages for breach of a contract which turned out to be void under the Statute of Frauds, and another count sought to recover damages for the loss of plaintiff's equitable remedy caused by defendant's wilful and fraudulent concealment of a contract which was by express reference the contract declared on in the former count; and but one traverse was pleaded to both counts: as the former count has failed so must the latter. Ib.

Where the damages are assessed in the gross upon two counts, and one of them fails (there being no evidence to support it), the other must fail also. Ib.

Where under the above circumstances the tenant

remained in possession, and several times paid rent at the increased rate the Court were of opinion that this was no part performance sufficient to entitle plaintiff to an equitable remedy, his conduct not being incontrovertibly referable to that object. Ib.

Where under the above circumstances the subagent laid by the agreement in the office and frequently received rent at the increased rate from the tenant without saying anything about the agreement -Held, that this was no wilful or fraudulent concealment to ground an action for deceit. 1b.

Evidence of the above facts, and that plaintiff did not read the agreement he signed, nor was it read to him although he was informed of its contents, and that he forgot the particulars (although he admitted never having forgotten that he had signed a paper and been told at the time that it was an agreement for a lease) was held no evidence that plaintiff was ignorant of the existence in fact of the contract to defendant's knowledge. Ib.

Et per Monahan, C.J. (Christian and O'Hagan, JJ, dubitantibus), that a principal, innocent at the time, is not liable in damages for the fraud of his agent though he afterwards obtains the benefit of it; the judgment in Udell v. Atherton (7 H. & N. 172) being conclusive upon a Court of concurrent jurisdic

tion. Ib.

4. Yearly hiring.

An indefinite hiring is a yearly hiring, but this general rule may be varied by a usage existing in the trade with respect to which the parties are contracting. Dowling v. Adams, 11 Ir. Jur. N. S. Excl.

5. Privity of contract.

pay

The first count of the summons and plaint stated that under an assignment in bankruptcy, the plaintiffs were the assignees of the estate and effects of E. M., J. M., and P. M., railway contractors; that the defendant was the engineer of the F. V. railway company; that before the arrangement in bankruptcy, and whilst the defendant was acting as such engineer, by an indenture between E. M., J. M., and P. M., and the company, it was agreed that E. M., J. M., and P. M. should make the said railway; that during the progress of the works, not later than fourteen days after the termination of each calendar month, when the engineer for the time being should have certified that any part of the works had been executed to his satisfaction, the company should ninetenths of the value of such works, such value being also certified by the engineer; that E. M., &c., and the plaintiffs as their assignees had fulfilled all the terms of the contract; that the defendant having been appointed engineer, accepted the appointment and did act as engineer, but that he had not given certificates of the amount or value of the works, and had wrongfully, improperly, and without any just cause, refused and neglected to estimate the value of said works, and to certify, &c., by means of which plaintiffs had been unable to obtain payment, &c. The second count complained that the defendant had, with intent to injure the plaintiffs, wrongfully and fraudulently refused to certify, &c. The third count complained that the defendant had wrongfully and injuriously, and without just cause, and in collusion with the railway company, refused, &c. Held, upon general demurrer, that the action against the defendant was not maintainable. Murphy v. Bower, 11 Ir. Jur. N. s. 392, C. P.

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3. Priority of.

A head landlord cannot obtain costs incurred in ejectment out of a fund in Court standing to the credit of a cause in which his immediate lessee is respondent, his claims being opposed by an unpaid incumbrancer. Haines v. Purcell, 11 Ir. Jur. N. s. 250, R.

II. LAW.

1. Full costs and half costs.

taxation, that the award was good, but that the verdict should be reduced as above. M'Lees v. M'Curdy, 11 Ir. Jur. N. s., 290, Exch.

A case was referred to a Master for arbitration. He made his award in favour of A. but gave him no costs, though thinking him entitled to costs, because he did not know if he had jurisdiction to give costs. Upon motion to send back the case to the Master to certify in respect of the costs, Held that the matter

2. Costs where jury discharged without consent should be sent back to him for that purpose.

from finding on certain issues.

3. Costs of arbitrations and references.

4. Costs of Habeas Corpus.

5. Furnishing of bill before action.

1. Full costs and half costs.

In an action for assault and battery, with a second count for disturbance of a right of way, defendant paid £5 into Court (which was accepted by plaintiff) on the second count, and traversed the first, upon which count plaintiff obtained a verdict with £1 damages, the judge not certifying. The Master gave plaintiff his full costs. Held, on motion to send back the case to the Master to review his taxation, that the Master was wrong, and that the taxation must be reviewed. Walsh v. Walsh, 11 Ir. Jur. N. S.,

378, Exch.

Action for negligence. The summons and plaint alleged retainer of the defendant by plaintiff as her attorney: a duty of the defendant, and the violation thereof. Plaintiff recovered a verdict for £10 and costs. The Taxing Master refused to allow more than half costs, holding the action one "connected with contract." On appeal against this ruling-Held, affirming the ruling, that the action was an action of contract. Quane v. Frazer, 16 Ir. C. L. R. App. xiii. Q. B.; s. c. 9 Ir. Jur. N. s., 268.

patrick v. Moylan, 11 Ir. Jur. N. s. 292, Exch. 4. Costs of Habeas Corpus.

Fitz

The Court will not give costs in a Habeas Corpus motion. In re Mowlds, 11 Ir. Jur. N. s. 157, Exch. 5. Furnishing of bill before action.

The bill of costs to be served on a defendant by an attorney under 12 & 13 Vic. c. 53, s. 2, must show on the face of it an intention to charge the defendant, or else his intention must appear on a writing served on defendant contemporaneously. Kernan v. Brereton, 11 Ir. Jur. N. s. 417, Exch.

COVENANT TO REPAIR.

Obligation to rebuild under.

To an action for breach of a covenant to repair and keep in repair certain premises, the defendant pleaded performance of the covenant. The jury on the trial found, first, that the premises were not in repaair at the commencement of the action, and, secondly, that having regard to the state of the premises when demised to the defendant, they could not have been repaired and kep in repair without having been rebuilt. Held, that the covenant could not be held to impose an obligation to rebuild upon the defendant, and therefore, that on these finding he was entitled to have a verdict entered for him. Chaloner v.

2. Costs where jury discharged without consent Broughton, 11 Ir. Jur. N. s. 84, Q. B. rom finding on certain issues.

Where the judge, without the consent of the plain. tif, discharged the jury from finding upon certain of the issues as immaterial, Held, that the plaintiff was entitled to the costs properly and necessarily incurred by him in respect to them. Smyth v. Galbraith, 11 Ir. Jur. N. S., 359, C. P.

3. Costs of arbitrations and references.

A. brought an action for trespass qu. cl. fr. against B. who traversed plaintiff's possession of the close. The case was submitted to arbitration, and it was agreed that "it shall not be necessary for the arbitrators to find specifically on each of the several issues, but that they shall be at liberty to make an award generally either for plaintiff or defendant." It was agreed also that the costs should follow the event of the award. The arbitrators found that the close was plaintiff's, and therefore found for him, but made no mention of damages. Defendant refused to pay the costs, £45 14s. 5d., alleging that the award was not final as it did not give damages, whereupon plaintiff brought an action against defendant for the costs. The jury, by the direction of his Lordship, found for plaintiff. Held, (Fitzgerald, B., dissentiente) on motion to set aside the verdict, or for a new trial, or to reduce it to £35 13s. 1d., the sum found to be due on

CRIMINAL INFORMATION.

Where certain parties were charged with treason felony, and pending the preliminary investigation at the police office, certain publications appeared in a newspaper commenting upon the conduct of the prisoners, and calculated to prejudice the public mind against them-Held (per totam Curiam), that a conditional order for a criminal information against the proprietor of the newspaper should be granted on account of those articles The Queen v. Gray, 11 Ir. Jur. N. s. 1, Q. B.

The same newspaper published a report of the proceedings against the prisoners at the preliminary investigation at the police-office, which investigation terminated in the committal of the prisoners. Part of these proceedings consisted of statements of counsel which were calculated to prejudice the public mind against the prisoners. There was no suggestion that this publication was more than a fair and bona fide report of what actually took place. Held (Hayes, J. dissentiente), that such publication was privileged, and did not form a ground for granting a conditional order for a criminal information. Ib.

1. Bigamy.

CRIMINAL LAW.

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F. a Protestant, was legally married. While his wife was still living he was married by a Roman | Catholic clergyman to a Roman Catholic woman. At the time of the second marriage he represented himself to the woman and the officiating clergyman as a Roman Catholic. He was indicted for bigamy. The above facts were proved, and also that F. was a professing Protestant within twelve months prior to the time of the second marriage. The jury convicted him. Held (dissentientibus, Monahan, Č.J., Pigot, C.B., Keogh, J., and O'Hagan, J.)-that the conviction was wrong, and should be reversed. The Queen v. Fanning, 11 Ir. Jur. N. s. 251, Cr. App.

2. Larceny.

K., the treasurer of a county, drew a cheque in favour of H. S., a road contractor. Another H. S. (the prisoner) also a road contractor, coming to the office to be paid for work done by him, the treasurer said he had a cheque for him, and produced it; and, believing him to be the H. S. who was entitled to it, gave it to him, and he cashed it. H. S. (the prisoner) was indicted for larceny of the cheque. The jury were of opinion that he received the cheque knowing he was not the person entitled to it, and fraudulently intending to appropriate the proceeds to his own use, and they found him guilty of larceny. Held, that the offence amounted to larceny. The Queen v. Stines, 11 Ir. Jur. N. s. 267, Cr. App.

Held also, that the property in the cheque was rightly laid in K. Ib.

The prisoner was indicted for the larceny of £2 4s. the property of H. N. Upon the trial H. N. deposed that on the 30th January, 1866, he bought a load of hay at Smithfield through the clerk to a factor there; that the prisoner brought the hay to his place the same day, and delivered it; that he did not demand any money from him, but handed him the weigh-note; that H. N. put his name on it, and being ignorant of the practice of the market, handed the prisoner £2 2s. 8d., and returned the weigh note to him; that the prisoner shortly afterwards returned, and said that the amount was 1s. 4d. short, and asked for the 15. 4d., which H. N. gave to him. J. G., to whom the hay had belonged before it was sold, deposed that he gave the prisoner the load to deliver, but did not authorise him to get any money, and that the prisoner paid him no money. The prisoner was convicted. The question of the sufficiency of the evidence to sustain the indictment having been reserved for the Court of Criminal Appeal-Held, that the prisoner was not guilty of larceny, either at common law or under 24 & 25 Vict. c. 26, s. 3. (Lefroy, C. J., dissentiente). The Queen v. Wheeler, 11 Ir. Jur. N. s. 278, Cr. App.

3. Uttering forged orders for payment of money.

V. was indicted for uttering certain forged orders for the payment of money, and convicted. He had fraudulently obtained certain forms of post-office orders from the office at N., and also some with the N. stamp affixed. These orders being filled up and sigued G. J., "pro-postmaster," there being no one of the name of G. J. at N., were uttered by V. în payment for goods at D. No letters of advice were forwarded to D. Held (dubitante Pigot, C.B.) that V. was rightly convicted. The Queen v. Vanderstein, 16 Ir. C. L. R. 474, Cr. App.; s.c. 10 Ir. Jur. N.s. 314. H. and S. were joined in the same inictment, and convicted. They had gone to the shop where V. uttered the orders, remaining outside in a cab, so situated that they could not see or be seen by the people in the shop. They had previously accompa nied V. to another shop where he failed to get change for the orders, and they assisted V. in taking away the goods obtained at the second shop. Held, that though they were not in the cab for the purpose of taking part in aiding or assisting in the actual act of uttering, they were rightly convicted. Ib.

4. Offences committed on boundaries of counties.

Venue. Indictment contained the marginal venue "King's Co." No venue was stated in the body of the indictment. By 14 & 15 Vict. c. 100, s. 23," the jurisdiction named in the margin was to be taken to be the venue for all the facts stated in the body of the indictment." On the trial, it appeared that the offence was committed in the County of T., but within 500 yards of K.'s Co. The prisoner was convicted. Held (dissentiente Hayes, J.) that the conviction was good. Regina v. Laurence King, 16 Ir. C. L R. 50, Cr. App.; s. c. 10 Ir. Jur. N. s. 308.

5. Evidence.

(a.) Admissions and confessions.

A police-constable having come to the prisoner's premises, and the prisoner having made to him a statement with reference to the Fenian conspiracy, in which he implicated himself, the policeman asked him if he was willing to state to his superintendent what he had stated to him. The prisoner accompanied the policeman, and made a statement to the superintendent. The superintendent, who knew from the pri soner's statement that he had been implicated in the conspiracy, asked him if he was willing to make that statement to the magistrate. The prisoner agreed to do this, and went before the magistrate, by whom he was sworn, and by whom his information was taken in reply to questions put by the magistrate, the answers to which questions the prisoner, in some instances, followed up with statements of his own. The magistrate did not give him any caution. The magistrate subsequently deposed that on that occasion he did not look on the prisoner as an informer, but treated him as a Crown witness in the ordinary sense, but that a few days afterwards, when the information was re-sworn, he did consider him in the nature of an approver. The prisoner, moreover, on the second occasion, in answer to questions put to him by the counsel for other Fenian prisoners, deposed as follows"Two of the detectives dragged me here. I swear I

expect nothing I came to save myself." The prisoner having subsequently refused to give evidence against the persons implicated in his informations, was himself indicted, and on his trial the two informations, together with the statement of the prisoner to the policeman, were put in evidence against him. The jury convicted the prisoner. The question of the admissibility of the two informations having been reserved for the Court of Criminal Appeal-Held, that they were both inadmissible as being given under the influence of hope held out by a person in authority (Monahan, C. J., Keogh, J., and Fitzgerald, B., dissentientibus). The Queen v. Gillis, 11 Ir. Jur. N. 8. 270, Cr. App.

And (per Fitzgerald B.) that the first information was admissible, but the second was inadmissible. Ib.

(b.) Admissibility of depositions.

A., B., C. and D. were brought before a J.P. in custody, and E. being sworn by the Petty Sessions Clerk, was examined by him in the presence of the prisoners, and the presence of the justice, as to certain alleged acts of the said A., B., C., and D. The Petty Sessions Clerk took down the statement of E. in writing; read it over to E. in the presence and hearing of the prisoners, of whom A. and B. crossexamined E. To the written statement so read, E. affixed his mark. E. having died before the trial, this statement was tendered in evidence against the prisoners, under the 14 & 15 Vict. c. 93, s. 14. It began- "The information of E. of, &c. Informant being duly sworn on his oath deposed as follows." It was signed by the J.P. before whom it was taken. Prisoner's counsel objected to the admission of the document in evidence; and the point being reserved on the following objections-First, that the deposition ought to be taken by the J.P. himself; secondly, that it had no caption; thirdly, that there was nothing to shew on its face that the prisoner had been made aware of the charge on which he was in custody,-parol eyidence was given that the document had been read over to the prisoners previous to the cross-examination. Held (dissentientibus O'Hagan, J., Hughes, B., Hayes and Christian, JJ.) that the document was not admissible, as it was not preceded by a statement of the charge to which it had reference. The Queen v. Galvin, 16 Ir. C. L. R. 452, Cr. App.; s. c. 10 Ir. Jur. N. s. 325.

Held (per Christian and Hayes, JJ., Hughes, B., and O'Hagan, J.), that all that the statute requires is, that the charge should be made to the magistrate before he proceeds to take the deposition. Ib.

Semble, that the justice need not take down the deposition himself, but it is sufficient if he is present and attending to the work of the clerk. 1b.

(c.) Dublin Gazette as evidence of proclamation. Upon the trial of an indictment for unlawfully carrying arms within a proclaimed district, the Crown, as evidence of the proclamation, and that the district was proclaimed, gave in a printed paper (which contained what purported to be a proclamation), purporting to be "The Dublin Gazette," and purporting to be "printed and published at the Dublin Gazette office by A. T." Under the title of the paper were

the words "Published by authority," but the paper did not in any other way purport to be printed and published by the Queen's authority, or to be printed by the Queen's printer. The prisoner having been convicted, it was held that this paper was not sufficient evidence, under st. 11 Vict. c. 2, s. 21, and 28 & 29 Vict. c. 118, s. 3, of the proclamation, and of the district having been proclaimed, and the conviction was quashed. The Queen v. Wallace, 11 Ir. Jur.

N. s. 68, Cr. Ap.

Quare-Might parol evidence have been given to shew that the paper was printed by the Queen's printer, or printed and published by the Queen's authority? Ib.

6. Bail.

Application to admit to bail a prisoner charged with harbouring a party connected with the Fenian conspiracy, refused, though it was sworn that the prisoner's health was suffering from confinement, that his affairs were going to ruin, and that he had no sympathy with the conspiracy, and though he offered bail to the amount of £1,000 (O'Brien, J. dissenting). The Queen v. Nolan, 11 Ir. Jur. N. s. 372, Q. B.

On a bail motion the Court will look at an information that has been taken in the prisoner's absence. Regina v. Cleary, 16 Ir. C. L. R. App. ii. Q.B.

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It is a good custom in trade, and one which may be established by parol evidence, that where there is a sale by sample of a particular article, such being generally sold by sample, the parties may introduce into the contract a condition to that effect. Syers v. Jonas (2 Ex. 111) followed. O'Neill v. Bell, 11 Ir. Jur. N. s. 357.

A custom to cut a sod in a remote part of a churchyard, for the purpose of covering a newly opened grave, is illegal and bad, and a claim under the custom is not such a reasonable claim of title as will oust the jurisdiction of magistrates at Petty Sessions proceeding summarily for trespass on the complaint of the rector of the parish in whom the freehold of the churchyard is vested. The Queen v. The Justices of Westmeath, 11 Ir. Jur. N. s. 405, Q. B.

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provide with board and lodging, the jury cannot take into consideration the damage to plaintiff's character resulting from the mode and circumstances of the refusal. Parker v. Cathcart, 11 Ir. Jur. N. s. 49, C.P. But the breach is a continuing one, and successive actions may be brought upon it. But in each action the jury can only take into consideration the damages that have been sustained previously to the commencement of the action. b.

2. Damages in action under Lord Campbell's Act, 9 & 10 Vict. c. 93.

In an action under Lord Campbell's Act (9 & 10 Vic. c. 93) by a widow, for damages upon the death of her son, aged fourteen, who had never earned any wages, but whose capabilities were valued at sixpence per day, the probability that he would have enabled his mother to earn more, or would have devoted part of his earnings to her support, is evidence to go to the jury upon the question of damages. The probability is increased by the past filial conduct of the ceased. Condon v. The great Southern and Western Railway Company, 16 Ir. C. L. R. 415, Exch. There is no analogy between the nature and amount of the services whose loss will sustain an action for reduction, and one under Lord Campbell's Act. Ib. 3. Damages in action for trespass on lands not held excessive.

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Domestic Water Rate, though not not chargeable on the premises, is chargeable on the occupiers in respect of his occupation, and so within the proviso. Ib. Held also (per O'Brien, J., dissentiente Fitzgerald, J.) that the Domestic Water Rate was a continuance of certain rates existing at the time of the lease. Ib. A bill of sale recited an agreement to sell certain goods; in the operative part it omitted to name the articles, but they were set out in a schedule. There issue between the claimant under the deed, and an was a delivery of the goods. Upon an interpleader execution creditor of the grantor, the judge withdrew the question as to the property in the goods from the jury, and directed a verdict for the creditor. Held, that this was a misdirection, and that there should be a new trial. Lennon v. Binks, 11 Ir. Jur. N. s. 372, Q. B.

Lands held under a lease for lives renewable for ever were conveyed by deed to a trustee. By a subsequent deed the trustee declared that the previous de-assignment had been accepted by him "to the uses and for the trusts following-upon trust, to permit A. and B., his wife, to hold one-third of the lands during their joint lives, and the survivor, for the life of such survivor; and after the death of the survivor to permit the said one-third to be held by such children or child of A. & B. as should be living at the death of the survivor, in such shares and proportions as A. in his lifetime, or B., if she survived A., should appoint (if only one child, such child to take the entire); and as to one other third of the interest in the said lands, upon trust for C., his heirs and assigns for ever, and as to the remaining third of the interest of the said lands, upon trust for D., his heirs and assigns for ever; and upon trust for D., his heirs and assigns for ever; and to no other use, intent, or purpose whatsoever.' Held (by both the Lord Chancellor and the Lord Justice of Appeal, that as it was manifestly intended to dispose of the entire interest in the lands by the deed, the absence of words of inheritance in the trust to the children of A. and B. did not prevent A. from appointing to one of the children the quasi fee of the lands. In re Bayley's estate, 16 Ir. Ch. Rep. 215, Ch. App.; s.c. 9 Ir. Jur. N.s. 398.

In an action for trespass committed by sheep of the defendant upon mountain land belonging to the plaintiff, the judge directed the jury that they should only give damages for the actual amount of injury done. The jury gave £10. The Court, although the sum was greater than the injury done could possibly have amounted to, refused to set aside the verdict on the ground of the damages being excessive. Chesney v. O'Neill, 11 Ir. Jur. N. s. 124, Q. B.

1. Construction.

DEED.

2. Interpolations in, presumption when made. 3. Voluntary deed.

1. Construction.

were

2. Interpolations in, presumption when made.

In 1848, defendants, on behalf of the Crown, demised certain premises in D. to plaintiffs for twenty- An absolute order, dated 21st November, 1863, one years. The lease recited that the plaintiffs being made in the Landed Estates Court for the sale in the actual possession of the said pre- of certain land's in the County Longford, M. R. and mises, and provided that the plaintiffs were "not to J. R. (lessees of a portion of said lands) claimed to be liable for, or to pay any rates or taxes what-hold under a lease of 1st of January, 1802, for lives ever, charged or chargeable upon the said demised premises, or any part thereof, save and except their legal proportion of the poor-rate." The D. Corporation Waterworks Act, 1861, authorised the corporation of D. to levy in place of certain rates theretofore levied, a rate to be called the "Domestic Water Rate" upon and from the occupiers of all houses within the borough of D. This rate defendants refused to pay. Held, that as between the lessor and lessee, the defendants were liable for the rate. Scovell v. Gardiner, 16 Ir. C. R. 318, Q. B.; s.c. 8 Ir. Jur. N.S. 361. Held (per Lefroy, C, J., and O'Brien, J., that "chargeable" has a future meaning. Ib.

Held (per O'Brien and Fitzgerall, JJ.) that the

"renewable every thirty-one years after demise of said lives at three grains of pepper-corn." A notice of motion having been served on said M. R. and J. R., that it was intended to impeach in said Landed Estates Court said leases, which motion was grounded, among others, on the affidavits of two experts, who gave it as their opinions that said above-mentioned clauses of "renewable every thirty-one years," &c. had been interpolated after the execution of said lease; and said motion having been brought on before Judge Hargreave, his Lordship, while declining to grant an issue to try the question, declared that the said lease did not at the time of the execution thereof, contain such clause, which now appears therein in a nonsensi

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