V.C. W.] POSTLETHWAITE v. LEWTHWAITE. [V.C. W. an accidental cause, there was evidence beyond all question of a very considerable nuisance in October. There could be no doubt that if sewage was poured into the river without the precaution of filtering it through fields, &c., very great damage would result. This was established by the scientific evidence by the defts., to the effect that if care was taken in the combined preparation and filtration of the sewage matter, no damage would be occasioned to the river, which was, in other words, saying that unless there was great care and attention in the filtering process, evil consequences would result. His Honour then proceeded to coinment upon the evidence as to the nuisance occasioned in the early part of October, and said that a plain and distinct case was shown of sewage having sewer through Beddington-park, for which leave was obtained from the tenant of the park, Mr. Brydges. The river having become polluted and the fish destroyed by this sewer, Mr. Brydges, in March 1859, obtained an injunction, restraining the board from discharging any offensive matters into the river. After this injunction had been granted, the board dug a ditch, the effect of which was to divert the sewage from the Beddington-park channel and convey it through small tributary channels into the Wandle, where it flows through the plt.'s property. The sewage before its discharge into the river had been deodorised by M.Dougall's disinfecting fluid; but the bill stated that this fluid contained a large quantity of carbonic acid, which was highly injurious to animal life. After the sewage had been mixed with this fluid, it was trans-been poured into the river in an offensive state, and mitted through the sewers into tributary channels of the Wandle, or was spread upon the ground and allowed to percolate through the ground or run off into the river. In Dec. 1860 the plt. first discovered the pollution of the stream, and complained to the board of health. The nuisance was for some time diminished, but in May 1851 it again increased, and legal proceedings were threatened by the plt., and the stream was less perceptibly polluted during June and July. In August the nuisance was very great, and several dead and dying fish were found in the river. The nuisance from time to time varied very much in extent, but at the beginning of October had again become very serious. Under these circumstances the plt. had filed his bill to restrain the local board of health from discharging the sewage into the river to the injury of his property. For the defence it was contended that the particular nuisance complained of as having happened in August Jast, was occasioned by the accidental discharge of the refuse of some gasworks into the river, for which the board of health were in no way responsible, and that the mischief had been greatly exaggerated in the -evidence of the plt., while the defts. did everything in their power to purify and deodorise the sewage before its escape into the river. Rolt, Q.C., J. Pearson and Bidder in support of the application. Giffard, Q.C. and Miller for the board of health. The VICE-CHANCELLOR (without calling for a reply) said that the plt. was entitled to an injunction. As early as Dec. 1860 the plt. had complained of the state of the river. In the interval between December and May a considerable change had been introduced by the defts. They deodorised the sewage by means of M'Dougall's disinfecting fluid, and they had acquired an additional 200 acres of land for the purpose of absorbing the organic particles of the sewage. An improvement no doubt was effected, but there were fresh complaints in May, and again at the end of June. As the sewage water, after passing over the fields, came into the river one mile above the plt.'s property, he was bound to show some special injury as occasioned to the water running through his grounds. In August the nuisance beyond dispute became excessive. Even assuming that it arose from the accidental circumstance of the discharge of the refuse of the gasworks into the river, it was to be observed that the defts. had not in the first instance raised this case of the nuisance being accidental. The result of the accident was that a great number of fish were killed, and whether or not the fish had been killed above, and floated down to the plt.'s portion of the river, was really not material, as he was entitled to have the fish as they circulated from one part of the river to another. Complaint was immediately made by the plt.. and if the matter had rested there, there might have been a case to send to law before coming to any conclusion upon the particular instance complained of. Even assuming that the pollution in August was from so as to pollute the water and render it unfit for use. Solicitors: Moseley, Taylor and Co.; Tayloe. Feb. 28 and March 1. Rights of sub-lessee under a capitular lease-Re- c. 104-23 & 24 Vict. c. 124). The lessee in a capitular lease for lives, purchased the reversion in a rectory, the Ecclesiastical Commissioners having refused to renew on the death of one of the lives. The sub-lessee-who, however, had not a covenant for perpetual renewal, but only a covenant by the lessee of renewal upon the terms granted by the original lease from the dean and chapter-claimed to have a covenant for perpetual renewal or a purchase of the fee in the premises comprised in his sub-lease: Held, that he was entitled to a conveyance of the reversion on the terms of paying a due proportion of the consideration and expenses of the purchase by the lessee, regard being had to his existing interest and the extent of the property comprised in his sub-lease. This was a bill filed by the plt. to have his rights ascertained and declared in virtue of a sub-lease under the following circumstances : The plt. and his predecessors had been, since the year 1743, under-lessees of a portion of the rectory of Kirkby-Ireleth, in Yorkshire. The defts. and their predecessors in title had been since 1739 lessees for lives of the rectory under the dean and chapter of York. It had been the practice by them to renew the lives as they dropped, on payment of a fine. The amount of this fine was uncertain, but was the subject of negotiation at the time the vacancy occurred. There was no covenant by the dean and chapter for perpetual renewal. The under-lease of 1743 before mentioned recited an original lease for three lives. It also contained a recital to the following effect:-"That it was presumed and intended by the parties that, as usually was and theretofore had been done in the like case, they the said W. Lewthwaite and John Kirkbank (the lessees), their heirs and assigns, or some of them, at and upon the decease of any one or more of the persons V.C. W.] POSTLETHWAITE v. LEWTHWAITE. [V.C. W. Subsequently, after much negotiation, the dets agreed to purchase the reversion of the rectorypartly for a money consideration, and partly for de surrender of other interests of the defts. According by a deed of conveyance of the 27th Jan. 1859, tie rectory was conveyed to the defts. subject to ary equities (if any) affecting the same by virtue of any stipulations contained in any under-leases granted by them. before named, for the term of whose lives the said pre- | ever, offered to entertain proposals for the purchase of By another under-lease, granted in 1787 for the lives of the survivor of the original and two other persons, the rent of 5s. was reserved, and the lessors covenanted that if any of the lives should drop, "they, their heirs and assigns, should use and exert their utmost endeavours to renew or get other lives added to their own lease, and on every such renewal of or adding a new life to their own lease they would add the same life to the under-lease on the under-lessees paying a fine of 51. for every new life, and 15. if all three had dropped, the under-lessees to hold under the same rent, covenants and agreements as therein contained." The plt. now claimed to have a new life added a consequence of the recent death of Addison, tendering upon his application for same the fine of 8. 15. TEA however, was refused by the defts. The plt. now filed his bill, stating these ciremstances, and praying that his rights in respect of the estate acquired by the defts. by the purchase of the the defts. might be declared to be subject to and bound by the under-lease of 1845 and the covenants theres contained, in like manner as a renewed lease wood have been, with such variations and modifications a the nature of the property required, and that son variations and modifications might be declared; a otherwise that the defis. might be decreed to admit the plt. to such proportionate shares and benefits in spect of such estate, whether by way of converance, renewed lease, or otherwise, as the court should deem equitable and right; the plt. submitting to make such proportionate contribution (if any) to or in respect of the costs, payments, or consideration paid or given fr the interest so acquired by the defts. as the court should think proper. The defts. by their answer alleged (inter alia), that they had always been willing to sell to the plt. and other under-lessees the reversion of their leasehold interest on equitable terms. In consideration of the surrender of this last lease, a new under-lease was granted, dated the 14th May 1845, whereby said premises were demised for the lives of D. Walton, J. Walton and J. Addison, at the yearly rent of 10s. It contained the following covenant by the defts. :-"That they, their heirs and assigns, when and so often as they should take a new lease of the said demised premises, or procure a new life or new lives to be added thereto as aforesaid, should and would, at the request, costs and charges of the said Robert Postlethwaite, his heirs and assigns, also renew and add such life or lives to their lease of the said thereby demised premises unto the said Robert Postlethwaite, his heirs and assigns, he the said Robert Postlethwaite, his heirs or assigns, first paying or ten-give the like rights, so far as the nature of the prodering unto the said Robert Lewthwaite and John Kirkbank, their heirs and assigns, within the space of forty days next after such of the feast days thereinbefore mentioned as should first happen after such renewal, as and in the way of a fine for the renewal and adding of each and every single new life, the sum of 8. 15s., and for the renewal of every three new lives the sum of 261. 5s., and there being reserved and contained in every new lease to be granted to the said Robert Postlethwaite, his heirs or assigns, such or the like rents, covenants and provisoes as are reserved and contained in the present indenture, and no other." The evidence was not conflicting as to the main facts of the case. W. M. James, Q. C. and B. B. Rogers for the plt.The Act to facilitate the management and improve ment of episcopal and capitular estates in England (14 & 15 Vict. c. 104, s. 3), provides that the interest acquired by a lessee shall be deemed in equity to be acquired in respect of his interest under the lease, and be subject to the same interests, charges and incambrances as a renewed lease would be; that al covenants which would have entitled any sub-lessees ar others to derivative interests upon renewals upon costribution to fines and other payments on renewal, shall D. Walton died in 1847, and defts.. procured one Robert Towers to be added as a new life to their own lease, and in 1851, on receipt of the fine of 8. 15s., agreed to add the same life to the underlease. J. Addison died in 1852. perty will admit, to proportionate shares and benefits When this last event occurred, the estates of the J. Osborne and Wakefield for the defts.-The pit's Dean and Chapter of York had been transferred to covenant is not one for a perpetual renewal; and, is the Ecclesiastical Commissioners. The commissioners the defts. have not renewed in respect of the last le refused to grant a renewal of this life. They, how-that dropped, the plt. has no right to a new life. What LONDON AND WESTMINSTER LOAN, &C. COMPANY U. CHACE AND ANOTHER. ¿C. B. V.C. W.] The plt. is entitled to, under sect. 3, 14 & 15 Vict. . 104, the defts. have always been willing to give. The renewal was refused by the Ecclesiastical Commissioners (which they had the power to do); the defts. vere, therefore, compelled to purchase the reversion or bandon the property. James in reply.-After the purchase by the lessee of the reversion, his covenant became equivalent to a Covenant for perpetual renewal. Although the fine had been increased from 51. to 87. 15s., an inquiry as to the present value could be given. The VICE-CHANCELLOR, after recapitulating the principal facts of the case, said:-The rights flowing out of this state of things is just that described by Lord Redesdale in Evans v. Walshe. In that case Lord Redesdale granted an injunction restraining the deft. from proceeding in ejectment, "considering the deft. as bound to renew to the plt. on the old terms unless he chose to abandon the property, and allow the deft. to stand in his place for the renewal which he had obtained, which, as he had not covenanted to renew with the corporation, he might perhaps be at liberty to do. But if he thought fit to retain the benefit of the renewal which he had obtained, he was bound specifically to execute his covenant of renewal on the terms upon which he had covenanted to renew." Applying this doctrine to the present case, the plt. clearly has not an absolute right to say, "You must put in new lives for ever, because you hold the fee-simple, and are therefore in the same position as if you had renewed for ever." But the equity is this, that the lessee, having purchased the whole, and having been forced so to purchase, the under-lessee has a right to call for a conveyance of the fee of the particular property comprised in his under-lease upon the terms of satisfying his share of the expenses of acquiring it, having regard to the value of his covenants, which would have to be deducted from the valuation of the fee-simple of the property comprised in his lease. What I propose is, therefore, to make a decree in this form: That the defts. offering to convey the reversion in fee-simple of the premises comprised in the plt.'s lease, in preference to granting a new lease of the premises with a covenant for perpetual renewal and otherwise on the terms of the present lease, declare that the plt. is entitled to have such reversion conveyed to him on the terins of paying the defts. a due proportion of the consideration paid or given by them, and of the expenses incurred by them in purchasing the fee-simple of so much of the property comprised in their original lease as they did purchase, regard being had to the existing interest of the plt. under his lease, and to the extent of the property therein comprised. Then there must be an inquiry in chambers as to what that interest is worth. As to the costs, the defts. had not set up a case of denial of the plt.'s rights, but admitting a willingness to sell, avoided saying on what principle the valuation was to be made, but said they had put the matter in the hands of a gentleman who they believed would consider any advantages to which the plt. might be entitled. This appeared to him (the V.C.) to be somewhat vague, but it was not a refusal of the plt.'s right. It was not, however, a complete admission of the plt.'s right. If it had been, he would have given the defts. their costs as trustees. They are entitled to costs up to the hearing as between party and party. Decree accordingly. Solicitors: Messrs. Cardale and Co.; Thomas Johnston. Common Law Courts. COURT OF COMMON BENCH. Reported by DANIEL THOMAS EVANS and W. MAYD, Esqrs.,, Barristers-at-Law. May 29 and 30. THE LONDON AND WESTMINSTER LOAN AND DISCOUNT COMPANY v. CHACE AND ANOTHER. Bill of sale-Sufficiency of description of grantor in affidavit-" Mala grammatica non vitiut chartam"17 & 18 Vict. c. 36, ss. 1 and 3. A bill of sale was made by one J. D., and given to the plis. on the 29th June, in which the maker was described as a "gentleman." On the 3rd July the said J. D. commenced business as a house and general agent, and continued so engaged until and after the bill of sale was filed. On the 16th July the bill of sale was filed, and in the affidavit verifying the bill, bearing date the same day, and filed therewith, the maker was described as follows: "The said J. D., &c. is a gentleman.” Held, that this variance in the description of the maker of the bill of sale did not vitiate the bill: Held, also, that it is not necessary to state in the affidavit verifying a bill of sale the occupation of the maker at the time when the affidavit is filed; it is enough to state his occupation at the date when the bill was made. The making of the bill of sale, and the affidavit required to be made within twenty-one days, form one transaction within the meaning of the statute; and the occupation at the time when the bill was made is. that which ought to be mentioned in the affidavit. This was an interpleader issue, brought to try the right to certain goods seized in execution by the sheriff of Surrey. The following were the circumstances:One John Gladwin Dickinson executed a bill of sale of certain goods to plts. on the 29th June 1861, in which bill of sale he is described as "John Dickinson, of` Montague-lodge, Merton, in the county of Surrey,. gentleman." On the 16th July, being within twentyone days, the bill of sale was filed, and an affidavit verifying it was made by one Albert Davis, who therein. swears that he “ was present and did see John Dickinson in the said bill of sale mentioned, and whose name is signed thereto, sign and execute the same on the said 29th June in the year aforesaid, and that the said John Dickinson resides at Montague-lodge, Merton, and. is a gentleman." The defts. having obtained judgment against Dickinson, issued a fi. fu. and lodged it with the sheriff of Surrey. The only goods which thesheriff could seize were those assigned by the bill of sale. The sheriff went to Dickinson's house on the 27th Nov., but did not levy, because Dickinson having been permitted by pits. to remain in possession of the goods, had let the house furnished. The plts. took possession of the goods under the bill of sale on the 11th, and the sheriff levied on the 20th Dec. 1861. An interpleader order was made, and the case went down to trial. The jury The cause was tried before Williams, J., at the sittings in Middlesex, in Easter Term. found that Dickinson, the grantor of the bill of sale, was following no occupation at the time he made the bill of sale, but that he was following the occupation of a house and general agent at the time when the bill of sale and affidavit were filed. The learned judge thereupon ordered the verdict to be entered for the defts., reserving to the plts. leave to move to set it aside and enter a verdict for themselves. Parry, Serjt. having on a former day obtained a rule calling on the defts. to show cause why the verdict found for them at the trial should not be set aside, and instead thereof a verdict be entered for the plts. pursuant to leave reserved on the grounds, first, Petersdorff, Serjt. and Raymond now showed cause. They referred to Hogge v. Burgess, 3 H. & N. 293; and Hatton v. English, 7 E. & B. 94. C. B.] LONDON AND WESTMINSTER LOAN AND DISCOUNT COMPANY v. CHACE AND ANOTHER C that the description and addition of the vendor in the have borne at the time when the affidavit was fel bill of sale and in the affidavit of its execution were a It should be noticed the statute is by no means prece sufficient compliance with the stat. 17 & 18 Vict. c. in using that language; that is to say, it is not on 36; secondly, that at the time when the sheriff by a man who understood the use of legislative 'noexecuted the writ of fi. fa., the exigencies and require- guage, to use the same word for the same idea tinap ments of that statute did not apply. out the statute. I have no doubt that when, in wel the description and the residence and occupatica d the maker is required, and when, in sect. 3. the s trar is called upon to register the " names, aditi and description of the party making the same te "addition and description" in sect. 3, in the mini f the Legislature, was synonymous with occupation" in sect. 1. It seems to me that, blending the whole matter together, the making of t bill and the affidavit to be filed with the descripins the party making the same, this was one rus action, and the occupation at the time when te bill was made is that which the party agit a mention in the affidavit, and that which the gistrar ought to have to enter upon the file. We so far as that goes, the difficulty of calling maker of this bill "gentleman," when the aff was filed on the 16th July, when he had the comp tion of a commission agent, that would be gaten because he was not a commission agent at the tim when the bill of sale was made. But the pay making the affidavit has fallen into this further culty in giving at the time when the bill of sale us made the name of the maker, and there is added, s "gentleman," but "and is a gentleman." The sent tense would relate to the 16th July, at the time the affidavit is made, and so it is said it does not per port to contain the occupation at the time when the bill was made. I think "and is a gentleman,” thragh in the strictest sense it may be true, if the court wur desirous of defeating the intention of the parties a might say, "is a gentleman," on the 29th June, and ceased to be a gentleman and had become a commissa agent on the 16th July; and, applying the main mala grammatica non vitiat chartam, that is to s the words and ideas are there, though inaccurately expressed, and the court may give effect to them. In further of opinion, taking the affidavit of the 16th Ja referring to the bill, coupled with the making of the bill of sale, all as one transaction, it must mean at tür time this transaction, inchoate at the making of th bill, is completed, when the affidavit took place, and so "and is a gentleman' meant by relation back the time when the bill of sale was made. I am re strongly confirmed in this view by considering the facilities of frauds, and defeating these securities, that might be given if the party giving a bill of sale of the 29th June, at that time calling himself a commis agent, might, by changing himself into “coal mercan before the affidavit was filed, defeat the security, al so baffle the creditor; the creditor taking the bill of se with a description true at the time it was taken, if a affidavit was made the very same day, and if be → layed filing it for a few days, and the occspatinis changed in the meantime, that may open the door, is my opinion, to very dangerous frauds, and it migh defeat securities. I therefore hold it to be one trassaction, and that the requirements of the statate are been complied with. Parry, Serjt. and Prentice were not called on to support the rule. Cur, adv. vult. May 30.-ERLE, C. J. now delivered judgment.In this case the question has been, whether a bill of sale is void under the 17 & 18 Vict. c. 36. The bill of sale in question was made upon the 29th June; at the time when it was made the maker had no occupation, and therefore was, within the statute, properly described as a gentleman. Between the making of the bill of sale and the filing thereof, within twenty-one days after, namely, on the 3rd July, the maker of the bill had become a commission agent; then upon the 16th July, within twenty-one days, the party holding the bill filed an affidavit of the time of such bill of sale being made, namely, on the 29th June, and in that affidavit gave a description of the residence and occupation of the maker; and, in giving the residence and occupation at the time when the bill of sale was made, gave the proper residence. About that there is no dispute. It is contended that the parties are bound to give the occupation at the time when the affidavit is filed. As to that I am of a different opinion. Ithink the bill of sale intended to give notice to the creditors for that purpose, requiring that a registration of certain particulars should be made, among the rest requiring the name, residence and occupation, together with the requirements mentioned in the 3rd section that I shall presently advert to. The requirement of the occupation at the time when the bill of sale was made, is an important requirement. The party within twenty-one days might so change to different places as not to be recognised, and, as here happened, might change his occupation and create many questions; and I think the making of the bill of sale and the affidavit within twenty-one days to be filed, in the contemplation of the statute was one transaction, and that it is the name, residence and the occupation at the time of the making of the bill of sale. The words 66 are, an affidavit of the time of the making of the bill, and of the name and occupation." It might be taken to mean either the time the affidavit was filed, or the time when the bill of sale was made; but the 3rd section seems to me to point strongly to the time when the bill of sale was made. The only purpose of that is to enable the clerk of the judgments to keep a register of bills of sale, wherein the names and particulars shall be put in alphabetical order, and by an easy search be found by those who wish to know their liability. The 3rd section requires that the officer of the Q. B. shall cause a bill of sale to be numbered and kept in a book, in which he shall enter an alphabetical list of every bill of sale, containing the names, addition and description of the person making the same. The registrar must ascertain who made the bill of sale, and he must give the names, addition and description of the person making the same." I think the fair meaning of those words is, at the time when the bill of sale was made, he must get it from the document before him. The clerk of the Q. B. has no materials but the bill of sale to look to, and the schedules required by the statute to be filed therewith; but he is to make up the register according to sect. 3, and sect. 3 calls upon him to enter in his book the name of the maker and the "addition and description of the person making the same;" not the addition and description which the person making the same might 66 WILLIAMS, J.-I reserved this point at the trial; and, though my impression certainly was not the vier I have been constrained to take of the point at si Prius, my opinion certainly was in favour of the de and not in favour of the plt., for whom I am about ta give judgment. I was pressed by the counsel for the deft., on the argument, that, in accordance with opinion expressed by my brother Wightman, in the case cited on the argument yesterday, the true endstruction of the statute was, it meant that the affit to be filed in pursuance of the Act should describe the residence and occupation of the maker of the hi of C. B.] POOLE v. WHITCOMBE. [C. B. altogether repudiate that or ever shrinking from putting a strict construction upon the statute. The Act merely affects those vendees who choose to let the vendor continue in possession, or apparent possession of the goods which are the subject of the sale, and I think it affects those vendees in cases where the vendors, whom they have allowed to keep the goods, are insolvent. The Legislature has chosen to go the length of saying all bills of sale shall be void altogether where the vendee is allowed to obtain unfair possession, and they shall be void altogether as against creditors. I myself do not think the Legislature would have been much harsher than in the ordinary provisions that have been made in the bankrupt and insolvent laws with reference to analogous subjects. The Legislature have not gone so far as that, but they have fettered those transactions by imposing certain conditions on which, and upon which alone, bills of sale, under such circumstances, are allowed to be valid. We have noright to lighten those fetters, or diminish, by any means, the stringency of the conditions by any reference to the hardship of the particular case, or the difficulty of complying with those conditions which the Legislature chooses to impose. We have no more right to do that, than in the ordinary case where the real owner is deprived, in the case of bankruptcy or insolvency, of his rights, by allowing the apparent. possession to continue in the person from whom it is transferred. In that case, as in this, it often happens a man, who has acted honestly and generously, loses his rights by reason of the strict provisions of thosestatutes. WILLES, J.-I am of the same opinion. ERLE, C. J.-My brother Byles was of the opinion that the bill of sale was valid. Rule absolute. Head and Pattison, plt.'s attorneys; G. Dillon Webb, deft.'s attorney. le, as it existed at the time of the making of the fidavit, and not at the time of the making of the ill of sale. But it occurred to me, that it was not ecessary to decide that point, because it might well e that the statute gave an option, and that the party would comply with it, either by describing the resience and occupation of the maker of the ill of sale, at the time he made it, or the esidence and occupation at the time that the ffidavit was made, and if that were so, then it ppears to me, and did appear to me at the time, here was a difficulty in saying, even in that point of iew, the deft. had complied with the requirements of the statute in this case, because the affidavit does not propose to describe the occupation of the maker of che bill of sale at the time of the giving it. The words of the affidavit are, "that I was present and did see John Dickinson, in the said bill of sale mentioned, and whose name is signed thereto, sign and execute the saine on the 29th day of June, and that the said John Dickinson resides at Montague-lodge, Merton, in the county of Surrey, and is a gentleman." Well now, notwithstanding the view I took at the trial, that would have been a compliance with the statute if he had said, "I saw him sign it on that day, and he was then resident at Montague-lodge, and was a gentleman;" because the cases have clearly established, that though the statute requires the occupation to be stated, yet if a man has no occupation, and has no precise position in life, he is usually designated as a gentleman, and it is a sufficient compliance with the statute to say he is a gentleman, if not a sufficient description, though he is unquestionably a gentleman if he has no occupation at the time. It therefore appears to me the affidavit could not be made sufficient in that respect, inasmuch as it did not profess to describe what the residence and occupation were at the time when the bill was made, which purported to be a description of the then existing residence and occupation at the time, there having been a lapse of a good number of days between the 29th June and the 16th July, when the bill of sale was filed and the affidavit was made, and he had changed his condition in the interval and had become a person who had an occupation. Therefore, looking at the description of him, as he failed to comply with the statute as to giving the description and residence and occupation at the time the affidavit was made, it was decidedly a failure, because he had not described the occupation; he had an occupation at the time. For these reasons, I certainly at the time was inclined to doubt whether my brother Wightman was accurate, but taking a more liberal construction of the This was an action for assault and false imprisonment,. statute, as giving an option, it had not been duly tried before Crompton, J., at the spring assizes for complied with, and therefore no proper affidavit had Gloucester. The plt.'s counsel, in his reply, told the been made. I am of opinion with my Lord and jury that unless they gave a verdict for the plt. for my learned brothers, and I feel no difficulty in acced- more than 57. he would in all probability have to pay ing to the view my Lord Chief Justice has just ex- the costs; and, upon this representation, the jury pressed, that the better and more wholesome construc-found verdict for the plt. for 57. 58. tion of the statute, and therefore more in accordance A rule having been obtained, on a former day, callwith the general terms of it, is to say there is no option, ing on plt. to show cause why the verdict found for and that the affidavit must be taken to refer to the him should not be set aside and a new trial had, on the residence and occupation of the maker of the bill of ground that there had been a mistrial, and that the sale at the time he made it, and that being so there jury did not entertain an independent judgment in remains the difficulty-it does not profess to do that, finding their verdict for the plt. for 5l. 5s.; the but only says " is," and that must be construed to counsel for the plt. having told them that a verdict for mean in the sense that he was at the time when the 57., or less than 5., would throw the costs and exbill of sale was made. I think it might be reasonably penses of the trial upon the plt.; and because the held to say it was meant to comply with the statute, damages were excessive and contrary to the evidence, and when he says "is" he meant to refer to the jury being influenced by the said statement, that time that he was bound to refer to by the J. J. Powell (Griffits with him) now showed cause. statute. Therefore I think that the affidavit is-On the second point I contend that a counsel has a complete by giving a description in reference to the right to make the statement complained of: (Wakelin date. I am inclined to give up the opinion I formed v. Morris, 2 F. & Fin. 26.) In Kilmore v. Abdooat the trial and accede to the view taken by my Lord, lah, 27 L. J. 307, which was an action for false imnot giving way to the arguments urged upon us yes- prisonment, Pollock, C. B., during the argument, said terday, as to the hardship in this case-I must that, if the jury asked what amount of damages [This case goes into error.] Thursday, June 26. The counsel for the plt., in his reply, told the jury |