MOOT POINTS.

NOTICES TO CORRESPONDENTS.

No. 32.-Action for Breach of Contract to sell Ice on a Pond-Interest in Land-License.

A., the tenant of a mill, agreed with B. and C. to sell to them the ice which the season should produce on his mill pond for £3. The land on which the pond is situate is occupied by A.'s landlord. A. has a right of way to his mill running along the bank of the pond. B. and C. paid A. 5s. by way of earnest, and subsequently paid £2 15s. the balance of the purchase money, on which a receipt was given in these words:"A. agreed with B. and C. for a pond of ice at for the winter season. No person allowed to take a cart except these persons. Received £2 15s. as per agreement."

B. and C. came to the pond several times with carts, and took away altogether between 200 and 300 loads of ice. On the last occasion of their coming, A.'s landlord seeing that considerable damage was being done to the banks of the pond by the cart-wheels, prevented B. and C. taking away more ice, and ordered them off the land. Thereupon B. and C. brought their action in the county court against A. to recover damages for a breach of contract of sale of the ice, and also claimed the £3 as money had and received to the plaintiff's use. A. thought proper to return the £3, and paid it into court.

Quare: Can the plaintiffs recover.

The points to which the writer would direct attention are: whether the subject-matter of the contract is an interest in land, and therefore required to be in writing according to the 4th section of the Statute of Frauds; whether the receipt is a sufficient contract or memorandum to take the casc out of the statute, and more especially, whether what took place did or did not amount to more than a mere license to take away the ice, and if so, ought to have been under seal, and was, therefore, revocable because it was not (vide Wood v. Ledbitter, 13 M. & W. 840). J. M.

ANSWERS TO MOOT POINTS.

No. 39.-Administration Bord-Witness (ante, p. 392). In answer to "Themis," I beg to state, that a Commissioner to administer Oaths in Chancery in England is one of the proper persons to attest the execution of an administration bond in the principal registry of her Majesty's Court of Probate; and I give this answer without hesitation, because I had an administration the other day, when I followed this course, and no objection was made to it.

R. G.

A SUBSCRIBER.-An articled clerk may safely engage in an agency to a company, if he does the work entirely out of office hours.

A. B. C.-The latest and best edition of Sheppard's Touchstone is that by Mr. Preston. The latest of Coke is that by Butler. They can both be bought second-hand, there being no very recent edition.

MOOT POINT No. 38, ante, p. 392, for "imperative" read "inoperative."

Lunatic Pauper. Validity of order of adjudication. The 16 & 17 Vic. c. 97, s. 68, provides for bringing lunatics wandering at large in any parish before a justice, and the justices before whom such person shall be brought are to examine him, and if satisfied that he is a lunatic, and wandering at large, and is a proper person to be taken care of, they may direct such person to be taken care of-they may direct such person to be received into an asylum; and, by s. 72, the justices are to send the lunatic to the asylum of the county or borough in which the parish from whence the pauper is sent is situated, unless there be no such asylum, or there be a deficiency of room, or some special circumstances, which want of room or special circumstances are to be stated in the order. It has been decided that an order of maintenance made under the above act may be made upon the clerk to the guardians of the parish in which the order is made. Where an order of adjudication recited an order of two justices for a city sending a lunatic found within their jurisdiction to county asylum, the court will presume that such two justices had jurisdiction, and that their order was valid, although it did not show directly at what time the Innatic became chargeable, nor that the person sent was a pauper. Reg. v. Crediton, 6 Week. Rep. 517.

Pawning medals of discharged soldiers.—At Marlborough-street, Mr. Beadon delivered an opinion as to the legality of receiving in pawn the medals of soldiers even after the discharge of their owners from the army. Mr. Beadon's opinion was, that the Mutiny Act actually prohibits the "detaining, buying, or receiving" such articles from any person whomsoever, an opinion which is in strict accordance with the words of the act. It should, therefore, be generally known, that not only can such medals not be legally pawned, but that they are not in any way whatever to be considered as commodities of sale or purchase.

CRIMINAL LAW.

APPEAL.-Order of removal-11 & 12 Vic. c. 31, s. 9-Sufficiency of notice of appeal—Mandamus, time for applying for.-A writ of mandamus, calling upon justices to enter continuances and hear an appeal, must be moved for in the term following the decision at the sessions. Where notice of chargeability and grounds of removal were posted by the respondents on the 28th of September, and received by the appellants on the 29th, and copies of deposition were applied for by post on the 19th of October, which application was received on the 20th, and notice of appeal sent within fourteen days from the receipt of such copy deposition: Held, that the notice of appeal was in time. Reg. v. Recorder of Richmond, 6 Week. Rep. 521.

APPEAL.-Case-Computation of time-Sunday -20 & 21 Vic. c. 43, s. 2.-By s. 2 of 20 & 21 Vic. c. 43, it is provided, that after the hearing and determination by justices of any information or complaint which they have power to determine in a summary way, either party may, if dissatisfied with the determination, as being erroneous in point of law, apply in writing within three days after the same to the said justices, to state and sign a case, &c., and, by s. 6, the superior court to which the case is transmitted is to hear and determine the question or questions of law arising thereon, &c.: Held, that where Sunday is one of the next three days after such a determination, the Sunday is to be counted as one of them, under the second section, and that where the last of such three days fell on a Sunday, and application was not made to the justices to state and sign a case until the following Monday, the application was too late, and the superior court had no jurisdiction to entertain the appeal. Peacock v. Reg., 6 Week. Rep. 517.

CHARGE UPON RATES.-6 & 7 Will. 4, c. 96, s. 3-Repayment-Negligence by lender-Mandamus. -A bond charging a sum of money upon the security of the poor-rate, under 6 & 7 Will. 4, c. 96, s. 3, is a general charge upon the rate, and not a specific charge upon each of the next five years. At the expiration of the five years what part of the advance remains due may be paid out of the poor-rate. But the lender must not, after the expiration of the five years, be guilty of negligence in seeking to enforce his claims. Heath v. Churchwardens of Hurstborne Tarrent, 6 Week. Rep. 521.

FALSE PRETENCE.- Misrepresentation of a matter of fact accompanied by a promise.-Upon an indictment for obtaining money by false pretences, it appeared that the prisoner told the prosecutrix that she kept a shop at a particular place, and that she might go home with her until she got a situation. She then borrowed 10s. of her, and promised to repay

it when they got home; but having got the money she left the prosecutrix altogether. It was untrue that she kept a shop at the place named; and the prosecutrix stated that it was on the faith of that representation that she parted with the money. The jury found the prisoner guilty of fraudulently obtaining the half-sovereign, the prosecutrix parting with it under the belief that the prisoner kept a shop at the place mentioned, and that she would have the money when she went home with the prisoner : Held, that the conviction was right. Reg. v. Fry, 30 Law Tim Rep. 293.

FALSE PRETENCES.-Passing a £1 Irish bank note as a £5 note.-A person who fraudulently offers £1 bank note as a note for £5, and gets it changed upon that representation, may be convicted under the statute for obtaining money by false pretences, although the party to whom it was passed could read, and the note upon the face of it afforded clearly the means of detecting the fraud. Reg. v. Jessop, 30 Law Tim. Rep. 293.

HAWKERS.-Vagrant Act, 3 Geo. 4, c. 83Hawkers Act, 50 Geo. 3, c. 41.-A man who hawks about goods from house to house, and barters them for other goods, though he takes no payment in money, is, if he have no license as a hawker under the 50 Geo. 3, c. 41, s. 6, a petty chapman or pedlar under s. 3 of the 5 Geo. 4, c. 83 (the Vagrant Act), and is liable to be convicted as a vagrant under that section. Druce v. Gabb, 31 Law Tim. Rep. 98.

LARCENY.-Fraudulent Trustees Act.-To constitute larceny there must be an intention on the part of the thief completely to appropriate the property to his own use; and if at the time of the asportation his intention is to make a mere temporary use of the chattels taken, so that the dominus should again have the use of them afterwards, that is a trespass, but not a felony (Reg v. Holloway, 3 Cox Crim. Cas. 241, confirmed in Reg. v. Poole, 7 Id. 373). On an indictment for larceny the jury found the prisoner guilty, but recommended him to mercy on the ground that "they believed that he intended ultimately to return the property to the prosecutrix:" Held, that, although to constitute larceny it is necessary that the prisoner should have intended to deprive the prosecutor permanently of the property, this form of finding by the jury did not so qualify the verdict as to raise the question. The principle in Reg. v. Holloway (3 Cox Crim. Cas. 241) affirmed, that to constitute larceny there must be an intention permanently to deprive the owner of the property. Semble, that if not a larceny at common law, it would not have been a larceny by the bailee clause of the Fraudulent Trustees Act (20 & 21 Vic. c. 54, s. 4). Reg v: Trebilcock, 30 Law Tim. Rep. 293.

PERJURY.-Evidence-Parol statements by prisoner at variance with ruth of statement on oathConfirmatory circumstances.-Where three witnesses proved that the prisoner had made parol statements contradictory to the truth of the statement upon which perjury was assigned, and the evidence of several witnesses went to confirm the truth of such parol statements, but there was no direct evidence that they were true, a conviction for perjury was supported. The prisoner, having laid an information against a publican for keeping open after lawful hours, swore at the hearing that he knew nothing of the matter except what he had been told, and that he did not see any person leave the house after eleven o'clock; and perjury having been assigned on this allegation, he was convicted. To prove that it was false, the magistrate's clerk's clerk proved a statement by the prisoner, when laying the information, that he had seen four men leave after eleven o'clock, and that he could swear to one W., and two other witnesses proved that the prisoner had made a statement to the same effect to them. It was further proved that W. did leave after eleven o'clock; that at the hearing, the prisoner had acknowledged that he had offered to smash the case for 30s.; and that he had talked of making the publican pay to settle it. A third witness proved that he had heard the prisoner offer to settle it for £1, and a fourth witness proved t! at the prisoner owned he had received 10s. to smash the case, and was to receive 10s. more: Held, that this evidence was sufficient to establish the falsehood of the prisoner's statement made on oath; and that he was properly convicted of the perjury alleged. Reg. v. Walter Hook, 6 Week. Rep. 518.

VESTRY.-Right to vote-Occupiers and owners of small tenements-58 Geo. 3, c. 69, s. 3—13 & 14 Vic. c. 99, s. 6.—By s. 3 of 58 Geo. 3, c. 69 (Sturges Bourne's Act), for the regulation of parish vestries, it is enacted, that "in all such vestries, every inhabitant present, who shall, by the last rate which shall have been made for the relief of the poor, have been assessed and charged upon or in respect of any annual rent, &c., not amounting to £50, shall have and be entitled to give one vote, and no more; and every inhabitant there present who shall in such last rate have been assessed, &c., in respect of any annual rent, &c., amounting to £50 or upwards, whether in one or in more than one sum or charge, shall have and be entitled to give one vote for every £25 of annual rent, &c., so, nevertheless, that no inhabitant shall be entitled to give more than six votes." By the 13 & 14 Vic. c. 99 (for the better assessing and collecting the poor rates and highway rates in re

spect of small tenements), after empowering vestries to decide that the owners of tenements below the value of £6 may be rated for the relief of the poor instead of the occupiers, it is provided by s. 6, that "every such owner so rated as aforesaid shall have the same right to vote in vestry as if he were an occupier duly rated in respect of the same tenement." It has been decided, that since Sturges Bourne's Act, 58 Geo. 3, c. 69, s. 3, no inhabitants of a parish, except those "ated to the relief of the poor, are entitled to vote at a vestry for any purpose; and, therefore, since 13 & 14 Vic. c. 99, s. 6, the occupiers of small tenements, not being so rated, cannot vote at a vestry in reference to a church rate. The owners of such small tenements, assessed to the poor rate in respect of them, are not entitled in any case to more than six votes, as limited by the former statute. Richardson v. Gladwin, 31 Law Tim. Rep. 97.

WATER COMPANY.-Using for domestic purposes, what is. By a local act a water company were directed to supply the occupier of any house with water for domestic use, at certain annual rents, according to the poor-rate assessment of such house, and they were empowered to charge a different rate fo the supply of water for other than domestic purposes. The appellant was the occupier of a house and a stable adjoining, and was supplied by the company with water according to the rate of assessment of his house. He made use of this water, not only for the domestic purposes of his house, but also for the purpose of cleaning his horse and carriage, and being convicted upon an information for using the water for other than domestic purposes in so using it for his horse and carriage: Held, that such use was a use for domestic purposes within the meaning of the act. Busby v. The Chesterfield Waterworks and Gas Company, 31 Law Tim. Rep.

98.

COUNTY COURTS.

APPEAL.-From taxation of costs-13 & 14,Vic. c. 61, s. 14. By the 13 & 14 Vic. c. 61, s. 14, an appeal given where either party is dissatisfied with the determination or direction of the court in point of law, or upon the admission or rejection of any evidence, it has been held that there is no appeal to a superior court from an improper taxation of costs on the higher scale in a county court. The court, however, intimated their opinion that when a plaintiff in a county court claims more, but recovers less, than £20, the costs ought to be taxed, not on the higher, but on the lower scale. Carr v. Stringer, 31 Law Tim. Rep, 96.