a

sons who were alleged to have made offers were called, and contradicted the evidence which was given on the part of the petitioners. With respect to those cases in which the persons who were alleged to have made offers were not called, there is not any proof that the persons so charged were agents. If there had been a single person standing in the position of an agent of the sitting members, or either of them, who had not been called to contradict the allegation, the case would have been relied upon by the counsel for the petitioners, and brought to the attention of the court. I have carefully gone through the cases, and that which he had failed to discover, I, as was likely, had also failed to discover. Those cases have been answered where they required an answer, and where the agents were incriminated; and they have been answered in other cases, where no answer was required, of course for the purpose of showing that this class of evidence had not been required. There is no case in which the agent was incriminated in which the agent has not been called for the purpose of either contradicting or explaining. This, I think, is a summary of the facts as they have presented themselves to my mind, and of the law, as I understand it, upon the various subjects upon which decision has been claimed. It remains that I should deal with a question which is certainly more difficult than those upon which I have had hitherto to pronounce, and it is so because it is a question of discretion, a question upon which minds will differ, upon which the judge can in the end, for the most part only say, "I think so;" "I think upon the whole that it is so, and I so decide," upon which it is not usual to hear argument, one upon which judges are seldom able to give all the reasons that occur to their minds. If I should be asked to do so, I will state my reasons, because I have a desire that in everything I do, in which any advantage, as it appears to me, should follow, my whole mind should be exposed to view and criticism, which I do not invite, and which I certainly do not fear. The question which remains is that of costs. As a rule costs ought to follow the event, and, in ordinary actions in the courts to which I have been accustomed, they almost invariably follow it, the exceptions being rare. When I set off upon this circuit, I certainly did so with the intention of acting upon my old notions, and of dealing with these cases as if they were ordinary suits between party and party. I have, however, become deeply impressed with the feeling that there is a third party, no less interested than those who are immediately engaged in the petition, and that I ought in each case to consider, not merely whether the petition has failed or has succeeded, but whether, upon the whole, I think there are grounds, not founded merely upon the belief of such witnesses as many of those who have been called before the court upon this occasion have displayed themselves to be, but founded upon the very character and history of the transaction, upon which it was for the public benefit that the petition should be presented, and upon which I think that the petitioners have had reasonable and probable cause for instituting this inquiry, which I am satisfied that if I had been in their place I should, without anger and without prejudice, have thought it right should be instituted. I say no more upon that point unless it is desired that I should do o. I think this is a case in which a petition has, been most reasonably presented and prosecuted and therefore I say nothing about the costs, although the petition has, in the end, in my mind, altogether failed of arriving at the result of unseating the members. I deem and determine that Henry William Eaton, whose return was complained of by the petition, was duly elected and returned; that Alexander Staveley Hill,

whose return was complained of by the petition, was duly elected and returned; that no corrupt practice has been proved to have been committed by or with the knowledge or consent of any candidate at such election; that no evidence is before me that corrupt practices have, nor that there is reason to believe that corrupt practices have extensively prevailed at the election. I shall certify to the Speaker of the House of Commons accordingly.

INCE'S CASE.

Telegraph companies-Privilege-Evidence. Telegraph companies cannot refuse to answer questions as to messages transmitted by them, and they must, if called upon, produce such messages.

A telegram will be admitted as evidence, although not signed.

Mr. James Ince, examined by James, said he was a telegraph clerk in charge at Coventry.

Q. Do you produce any telegram to London from Mr. Seymour? First, give any from Mr. Seymour whether to Leicester or London. A. I have one or two from Mr. Seymour, but I have instructions from our secretary not to let those papers leave my hands.

James.-You must address yourself to his Lordship.

Witness (addressing his Lordship).—I have instructions not to let those papers leave my hands, and to answer no questions unless I am authorised by you.

WILLES, J.-The secretary has no such power. The only persons who can refuse to answer questions are attorneys, and of course counsel, who would do not enter into any question whether another stand on the same footing for a stronger reason. I class is or is not privileged. I do not choose to introduce matter that is doubtful; but with the exception perhaps of people in Government offices as to matters of State, and counsel and attorneys,

I do not know of any class that is privileged. On another class a question might arise, but I do not mention it here. It is quite clear that telegraph companies are not privileged.

Witness. Then I am authorised by you to produce these papers to counsel ?

WILLES, J.-From what you have stated has passed with the secretary, it is quite clear that his attention has been called to the subject, and he has sent you to represent him, and I must address you exactly as I would address the secretary. If you did not produce these papers every body connected with the telegraph company who could lay his hand on them would be subject to be brought here, and to be punished for not producing them.

A telegram was then read from Freeman, of Leicester, to Eaves, of Coventry, to which Huddleston objected as not being signed.

WILLES, J. decided that the telegram might be admitted as one of the circumstances of the case.

Agents for the petitioners, E. De Gex for Troughton, Lea and Kirby.

Agents for the respondents, Sharp and Ullithorne.

C. P.]

COURT OF COMMON PLEAS. Reported by W. GRAHAM and M. W. McKELLAR, Esqrs., Barristers-at-Law.

REGISTRATION APPEAL.

Friday, April 23, 1869.

TRENFIELD, app., v. Lowe, resp.

Vote for a county-Equitable freehold—Actual and bona fide occupation-2 Will. 4, c. 45, s. 1830 & 31 Vict. c. 102, s. 5.

The appellant, who claimed to vote for a county, had been formally invested with the possession of a piece of land in the town of Chipping Sodbury, the value of which was between 31. and 51. annually, by the presentation of a turf and a twig, on behalf of the bailiff burgesses of the town, who held the legal estate, to hold the said piece of land for his life and that of his lawful wife, so long as he and his wife should reside in the said town, subject, and chargeable with all manner of waste, and subject to the rules and orders of the said bailiff burgesses. The after-grass of this land was, by immemorial custom, let out for five weeks in the year to other persons, and the inhabitants generally had a right of pasture for two months:

Held (reversing the decision of the revising barrister), that the appellant held an equitable freehold estate in, and was in actual and bona fide occupation of the land, and was, therefore, entitled to a vote for the county.

At a court holden by one of the barristers appointed to revise the lists at Chipping Sodbury, on the 19th Sept. 1868, for the revision of the list of voters for the county of Gloucester, John Lowe duly objected to the name of John Trenfield being retained in the list of voters for the western division of the said county.

The following facts were established by the evidence:

The bailiff and bailiff burgesses of the town or borough of Chipping Sodbury, is a body of very ancient origin, and existed, as appears by the records of the town and court roils of the manor of Chipping Sodbury, long previously to the year 1681, but no charter of incorporation is at present known to have existed. The said bailiff and bailiff burgesses are appointed as hereinafter mentioned.

In the year 1681 a charter was granted by Charles II. A translation of this charter is given in Sir Robert Atkyns's History of Gloucestershire, and is referred to as a part of this case.

Shortly after the granting of this charter the inhabitants became anxious for its repeal, and according to a statement in Rudder's History of Gloucestershire, published in 1779, which is also referred to as a part of this case, the charter was annulled by proclamation at the request of the inhabitants themselves in 1668. Whether the charter of Charles II. was formally annulled or not it fell into complete disuse, and from the year 1668 or 1669 down to the present time the borough or town has been under the government of the bailiff and bailiff burgesses as prior to the last-mentioned charter.

The vacancies of the bailiff and bailiff burgesses are filled up from time to time at the annual court of the lord of the manor, the bailiff being appointed by the lord of the manor or his steward out of three persons presented to serve the office for the ensuing year by the jury of the court leet, and the bailiff burgesses being elected in case of vacancies by the same jury. The bailiff and bailiff burgesses upon their respective elections take the customary oaths of office, which are administered to them in

|

[C. P. court by the steward. The bailiff's oath is as follows: "You shall swear that you will well and truly serve our sovereign lady the Queen and the lord of this leet in the office of bailiff of and for this borough and manor until you be thereof lawfully discharged according to due course of law. You shall well and truly do and execute all things belonging to your office according to the best of your knowledge. So help you God." The oath of a bailiff burgess is as follows, viz.: "You shall swear to observe the lord of the manor in the place of a burgess, shall be assistant to the bailiff and the rest of the burgesses there for the well ordering of the borough and all things belonging, and shall be subject to the wages and customs there. So help you God.”

The bailiff and bailiff burgess, among other property, are entitled to a piece of enclosed pasture land, situate in the adjoining parish of Old Sodbury called "The Mead Riding," and containing by admeasurement ninety acres. The origin of the title of the bailiff and bailiff burgesses to this piece of land is not shown, but they have held it for centuries; and in Rudder's History of Gloucestershire, this and other property is referred to as derived from ancient grants made in the reign of King John and King Henry the Second. The piece of land called the Mead Riding is divided by metes and bounds and trenches into eighty-one allotments, none less than an acre in extent, and many of them from an acre to an acre and-a-half, but all are called "acres." The bailiff and bailiff burgesses have from time immemorial given these acres to the inhabitants in the following manner:-On an acre falling vacant, a meeting of the bailiff and bailiff burgesses is convened, and held at the usual place of meeting in the Town Hall, of the town of Chipping Sodbury, and such meeting decides by majority of votes to whom, being an inhabitant of the town or borough of Chipping Sodbury, such vacant acre shall be given; after such decision has been made, one or more of the bailiff burgesses and the inhabitant to whom the acre has been given enter upon the acre in question, and a sod or turf is then cut from the acre by the hayward of the riding (an officer appointed in court leet of the manor) and a twig stuck in it, and thereupon one of the bailiff burgesses, acting on behalf of the bailiff and bailiff burgesses, gives possession of the acre by delivering rhe twig and turf to the donee, at the same time teading the following formula, which is called the investiture:

"The piece of land on which we are now standing (commonly called an acre) has lately fallen into the possession of the bailiff and bailiff burgesses of Chipping Sodbury, and in pursuance of their direction invest you therewith by delivering to you this twig and turf: To hold the said piece of land for your life and the life of any woman that may be your lawful wife, and survive you so long as you and your wife shall reside in this town, and subject and chargeable with all manner of waste, particularly waste in felling or cutting any tree or trees whatsoever growing or that may hereafter grow on the said piece of land. And also subject to all the present rules and orders of the said bailiff and bailiff burgesses respecting the grounds called The Ridings,' as well as those that may be from time to time made relating thereto."

This completes the ceremony, and a minute is usually recorded in the minute book of the bailiff and bailiff burgesses to the effect that the acre which fell in on the death of A. was given to B.

The acre thus obtained is held by the donee according to the terms of the investiture, and is drained, manured, and mown, by the holder, who at spring and fall pays to the bailiff in respect thereof for what are called dues the sum of 2s. which go to

C. P.]

TRENFIELD (app.) the bailiff in aid of his expenses of office, which are considrable.

With regard to the Mead Ridling aforesaid, the following custom has prevailed from time immemorial. After the crop of grass has been mown and taken off by the several parties, who, for the time being, are the holders of acres as aforesaid, the bailiff and bailiff burgessess convene a meeting of themselves and grant out the after grass in what are called stems to such of the inhabitants of Chipping Sodbury as they think fit, to the number of eighty-two, this being the number of acres of which the riding is considered to consist, each such stem confers the right to depasture a cow in the riding for five weeks from the 10th Sept. the expiration of such five weeks, the riding is thrown open by bailiff and bailiff burgesses according to custom to all the inhabitants of Chipping Sodbury, to depasture sheep and cattle therein until the 15th Dec., when it is closed; but manure may be taken out on the acres after the grass is cut and carried until the 1st Aug., and also from the 5th Jan. to the 14th Feb. in each year.

At

Each holder of an acre is separately rated to, and pays the poor and church rates of Old Sodbury, and is also separately assessed to the income-tax for that parish in respect of such acre, and no instance has been known of a person once elected as the holder of an acre being dispossessed or ceasing to hold such acre, except upon his death, or his ceasing to reside in the town of Chipping Sodbury. In no case is the clear annual value of an acre in the said Mead Riding less than 34, but in no case does it

amount to 5l.

The said John Trenfield, being an inhabitant of the said town of Chipping Sodbury, was in the year 1847 duly elected by the said bailiff and bailiff burgesses to an acre in the said Mead Riding, and was thereupon duly invested with the possession of the same acre according to the form of investiture in manner aforesaid. The said John Trenfield has ever since been, and now is, such inhabitant as aforesaid, and in the enjoyment and possession of such acre. The clear annual value of the acre of the said John Trenfield is more than 3., but less than 57.

The said John Trenfield duly claimed to have his name placed and retained on the list of voters for the parish of Old Sodbury in the Western division of the county of Gloucester, in respect of the acre so held by him as aforesaid, but his vote was objected to on the ground that his interest in the land in respect of which he claimed to vote is not such an estate of freehold as would confer a county

vote.

The barrister decided that the said John Trenfield had not, under the circumstances, stated such an estate of freehold in the land in question as would confer a vote for the county, and disallowed the claim of the said John Trentield, and struck his name out of the said list of claimants.

there described as equitable freeholds. The only other question to be considered is whether the facts mentioned in the case with regard to the custom of the Mead Riding are sufficient to contradict the "actual and bona fide occupation required for a county voter by the 18th section of 2 Will. 4, c. 45; this restriction still applies under 30 & 31 Vict. c. 102, s. 5, when the clear yearly value of the freehold is less than 57. A grant of grass does not pass the land (Co. Litt. 4 B), and where other people have rights of pasture the beneficial owner does not cease to occupy, provided that he is not ousted of his rights. Here the appellant was rated to the poorrates, and he must be held to have been in occupation.

Joshua Williams, Q. C., for the respondent.-This is not an estate, either legal or equitable, of which the appellant was in actual and bona fide occupation. It was not an estate in lands at all, but a mere franchise, and differs from the interests described in Roberts v. Percival and cases of that description. At all events it cannot be more than an equitable interest; the investiture did not amount to a feoffment, which requires a deed. The bailiff burgesses must be taken, upon the authority of

Rexv. Tewkesbury, 13 East. 155; Suckerman v. Warner, 2 Bul. 248, to be the occupiers of the land. It is not sufficient to have an occupation which would make a man liable for poor-rates.

Pickering, in reply, distinguished this case from that of Reg. v. St. Nicholas, Rochester, 5 B. & Ad. 219, where the occupation was altogether ousted.

KEATING, J.-In this case the question has been argued somewhat faintly as to whether the claimant took an estate of freehold for life. Mr. Williams did not lay much stress on that point, and there can be no doubt that the intention was to put the holders of the acres into possession of the land for life, subject to the rules of the bailiffs and burgesses relating to other people and their rights to pasture, and to go upon the land and take the after grass. The claimant had been in 1847 admitted into possession having been solemnly invested by the delivery of a sod and twig on behalf of the bailiff burgesses into whose possession it had fallen. The words of investiture were "To hold the said piece of land for your life and the life of any woman that may be your lawful wife and survive you, so long as you and your wife shall reside in this town, subject and chargeable with all manner of waste, particularly waste in felling or cutting any tree or trees whatsoever growing, or that may hereafter grow on the said piece of land. And also subject to all the present rules and orders of the said baliliff and bailiff burgesses respecting the grounds called the

Ridings,' as well as those that may be from time to time made relating thereto." And so far as possession goes, the case finds that "the said John

Trenfield has ever since been and now is such inhabitant as aforesaid, and in the enjoyment and

to be clear that the claimant did take an equitable estate of freehold. But the other point upon which Mr. Williams relied was that under the 18th section of the old Reform Act the claimant was disqualified because he could not be considered to be in the actual and bonâ fide occupation of the land. It was

in all of which the votes were held to be good, notwithstanding the conditions or restrictions annexed to estates for life. It appears also from the note to Davis v. Waddington, 7 M. & G. 45, where passages are cited from Co. Litt, 42a, and Preston, "Estates," 405, that this exactly corresponds with the interests

the exclusive occupation, which he had not here, in consequence of the right of other people to go upon it for five weeks in the year. I must say I have doubted whether an occupation of this nature was contemplated by the statute, but as it is found as a fact that the claimant had been rated for the land, and it appears that no other person could be rated;

C. CAS. R.]

and as it is not shown that he had no right to go upon the land during the period that others had a right of common upon it, subject to which right he occupied, I have come to the conclusion that he was in actual and bona fide occupation. I now entertain some doubt whether it was the intention of the revising barrister to raise this latter question; but as both the points argued are, in my opinion, favourable to the appellant, the decision must be reversed.

SMITH, J.-I am of the same opinion. I think Mr. Pickering is right upon both grounds. The corporation hold the legal, and the claimant the equitable, freehold of the land. I doubt, with my brother Keating, whether any other question was intended to be raised. Mr. Williams has, however, argued that the restriction of section 18 of the Act of 1832 has not been complied with; but, on these facts, I think there was an actual and bona fide occupation. Trenfield had a beneficial occupation during the whole year, and there was no more than. a right of common belonging to other people during part of that time. There was nothing to prevent the owners from doing anything on the land not inconsistent with the rights of pasture. The words of investiture show that the claimant was chargeable with waste, and he was clearly treated as the possessor of the freehold. The decision will be reversed.

66

[C. CAS. R. exhausted condition. She continued very ill, and became, according to the medical evidence, in great danger. On the next day (the 17th) she said she did not think she should get over it, and desired that some one should be sent for to pray with her. A neighbour of the name of Axell accordingly visited her about eight o'clock p.m., he prayed with her, and, as her mother said, talked seriously to her.

At ten o'clock the same evening, the magistrates' clerk came. He found her in bed breathing with considerable difficulty, and moaning occasionally. He administered an oath, and she made her statement as hereinafter set forth. He asked her "If she felt she was in a dangerous state; whether she felt she was likely to die?" She said, "I think so." He said, "Why?" She replied, "From the shortness of my breath." Her breath was extremely short; the answers were disjointed from its shortness. Some intervals elapsed between her answers. The magistrates' clerk said, "Is it with the fear of death before you, that you make these statements?" and added, "Have you any present hope of your recovery?" She said, "None."

The counsel for the defendant pointed out that in the statement the words "at present" are interlined.

The magistrates' clerk was recalled. He said that after he had taken the deposition he read it over to her, and asked her to correct any mistake that he might have made. She then suggested the words "at present." She said no hope "at present" of my recovery. He then interlined the words "at present." She died about eleven o'clock the next morning.

Without the declaration of the deceased there was no evidence sufficient to convict, or even to leave to the jury, but the evidence for the prosecution was, so far as it went, confirmatory of the deceased woman's statement.

The case, therefore, rested on what was called the dying declaration of the deceased.

The counsel for the defendant, Mr. Collins, submitted that upon the evidence there was not such an impression of impending death on the mind of deceased as to render the declaration admissible.

I expressed no opinion, but thought it the safest course to reserve this question for the opinion of this court, and to let the case go to the jury.

The examination of Fanny Reeves, taken on oath the 17th Oct. 1868: The deponent saith:

He

I am a single woman and have two children, the one aged four years and the other aged about five months. The father of the first child, which is a boy, is Henry Jenkins. He lives in Ship-lane, Cathay, and is a ship carpenter. has been paying me, under order of magistrates, 28. per week for the support of that child, but he has not kept up the payments, and he now owes me 11. 78. Last night, the 16th inst., about half-past six o'clock, I met him by appointment on the New Cut, in the parish of Bedminster, in this city, and I asked him if he was going to give me some money to buy a pair of boots for myself. He said that he had'nt any money. I told him that I must sue him for my money, and then he asked me to walk with him to the Hot Wells and said that he would get some there. I accompanied him to the Hot Wells, and he went into a house at Cumberland-terrace. I waited for him outside, and he came out in a short time and said he could'nt get any money, and he asked me then to walk with him up Cumberlandroad, and we went along that road together until we got near Bedminster Bridge, and we stood on the New Cut near his residence, and we had a few angry words together about the money he owed me, and he told me I could have a warrant for him if I liked. After we had stood there about ten minutes he said, "here's a rat climbing up the bank," and he advanced to the edge of the bank, and I went too and looked, but could not see any rat, and directly I got on the edge of the bank he pushed me with both hands on the back, and at the same time said, "Take that you bugger," and he pushed me direct into the river Avon which runs along there. I screamed out and managed, by catching hold of the bank, to keep myself up until I was taken out of the water, and I believe it was by a policeman. After being so taken out I became insensible, and did not recover till I found myself in bed in this house. Since