though the plaintiff had failed to prosecute this attachment, it was still pending, and the said sum of 36567. still remained attached in the hands of the said bankers. After the service of the declaration in this action, the defendants called upon the plaintiff to withdraw the said attachment, but he refused to do so. Lush now moved, upon an affidavit of these facts, for a rule calling upon the plaintiff to shew cause why the proceedings in this action should not be staid, unless he would withdraw the attachment which had been sued out of the Lord Mayor's Court. He contended that the double proceedings were oppressive and vexatious, especially as there was no means of pleading in this action the pendency of the attachment in the Lord Mayor's Court; and cited the case of Miles v. The Inhabitants of Bristol (3 B. & Adol. 945) in support of his motion. Maynard shewed cause in the first instance. It is submitted, that this court cannot take notice of the proceedings in the Lord Mayor's Court, which is not in the nature of an ordinary inferior court; but even if they can, this is not a case for their interference, as the proceedings in the two cases are of an essentially different character, those in the Lord Mayor's Court being against the garnishee. Moreover, in that court the proceedings are against the company as a company, whilst here they are against certain individuals only as provisional committee-men of the said company. Nor, indeed, according to the affidavit upon which this rule is moved, could they be against the company, as it appears thereby that they are as yet only provisionally registered; and if this be so, the plaintiff cannot recover in the Lord Mayor's Court, and the defendants therefore cannot be at all prejudiced by the proceedings in that court. Now, this court cannot deal with the case in the Lord Mayor's Court,-it can only stay the proceedings here; and, under these circumstances, there can be no ground for calling upon them to do this. Sowter v. Dunston (1 Man. & Ry. 508) is an authority to shew that the court will not do so except in a case of oppression and vexation. The marginal note of that case is as follows:-"The Court of Queen's Bench will not stay the proceedings on the ground of the pendency of another action for the same cause against the defendant jointly with another person, except in a case of oppression and vexation. But if such a case is made out, they will interfere in a summary manner, or allow the party to plead in abatement, notwithstanding the four days have expired." Miles v. The Inhabitants of Bristol (3 B. & Adol. 945) is very different from this case: that was a case of oppression and vexation, because there one action would have answered every purpose. But that is not the case here. In the Lord Mayor's Court, the plaintiff has attached money in the hands of a banker, which he could not get here, even if he were to proceed to judgment and issue execution. Besides, the garnishee may claim the money; and it by no means follows that it will ever be paid over to the plaintiff. This is clear from the course adopted in the case of Magrath v. Hardy, (4 Bing. N. C. 782; 6 Scott, 627; 6 Dowl. P. C. 749; 1 Arn. 352; 2 Jur. 594), where the plaintiff gave security to refund the money if the defendant should come in within a year and a day to dissolve the attachment. Indeed, this very point has been recently decided at chambers by Cresswell, J., in a case of Garbeth v. Adams, argued by Dowdeswell. There, that learned judge refused to stay the proceedings in the Common Pleas, on the ground that an action for the same subject-matter was pending in an inferior court. Smidt v. Ogle (6 Taunt. 74) is also an authority to shew that the pendency of a suit in an inferior court is no cause for staying proceedings in the superior court. So, Mr. Dowdeswell, who was in court, furnished a note of the case amicus curiæ. again, the case of Covington v. Hogarth (2 D. & L. 619) is, in principle, an authority in support of the plaintiff's right to proceed with this action. There it was held, that a creditor may proceed contemporaneously against his debtor, under the 11th section of 5 & 6 Vict. c. 122, and by action for the recovery of his debt. But it is said that this rule ought to be granted, because there are no means of pleading the pendency of the attachment in the Lord Mayor's Court; but it would seem, from Sowter v. Dunston, (1 Man. & Ry. 508), that that is a reason why the court should not interfere, the ground of such interference being to prevent the necessity of a plea in abatement. Lush, contra.-It is submitted that this rule ought to be granted. Covington v. Hogarth (2 D. & L. 619) does not touch the question. That turned upon the construction of the new Bankruptcy Act; and it was held, that that statute contemplated the proceedings being contemporaneous, as it did not contain a provision similar to that contained in the previous Bankruptcy Act, 6 Geo. 4, c. 16, for the purpose of compelling the creditor to elect which proceedings he would adopt. Then, with regard to the case of Smidt v. Ogle, (6 Taunt. 74), that case is just the converse of this, because the parties in the two causes were essentially different; but it is an authority to shew that the proceedings may be stayed where the parties in each case are virtually the same. The question really is, are the double proceeding, oppressive and vexatious. If they are, this court will interfere to protect the defendants. All the authorities shew that the court will interpose in such cases. Sowter v. Dunston, (1 Man. & Ry. 506), cited on the other side, established this. Upon the same principle, the court would not allow two arrests for debt, even though the first arrest were void and inoperative. So, if an action heretofore was commenced by latitat, and the plaintiff afterwards sued out a bailable writ, the court would set aside the proceedings under the first writ, with costs. Now, this principle being clearly established, can it be said that these proceedings are not oppressive and vexatious? Both are taken in respect of the same demand, and are substantially and virtually against the same defendants; for although the banking account is no doubt made out with the company, the fund attached belongs to the individuals who are made defendants in this action. The proceedings are, therefore, evidently calculated unnecessarily to harass the defendants, and also to operate most prejudicially against them, the funds in the bankers' hands being unjustly tied up, under circumstances which can be of no benefit to the plaintiff, who cannot bring the attachment to a successful issue, as it is taken against the defendants in their corporate name, whilst yet they have no existence as a corporation. This rule therefore ought to be made absolute, for there is no other means of protecting the defendants from this oppression. They have no means of pleading the pendency of the proceedings in the Lord Mayor's Court, nor ought they to be driven to the expense, and subjected to the delay, of taking the necessary steps in the Lord Mayor's Court for dissolving the attachment, especially when it is considered that they might have a difficulty in doing so, without being estopped from denying that they have been rightly proceeded against in their corporate name. WILLIAMS, J.-It appears to me that the strongest case cited by Mr. Lush in favour of this application is that of Miles v. The Inhabitants of Bristol, (3 B. & Adol. 945), where Lord Tenterden stayed the proceedings, because there was another action for the same subjectmatter pending in the Exchequer. Of course, I cannot interfere with the proceedings of another court; nor, indeed, am I asked to do so. What I am asked to do is, to stay the action in this court, unless the plaintiff will withdraw this attachment in the Lord Mayor's Court; and no doubt the case of Miles v. The Inhabitants of Bristol is an authority to shew that I may stay proceedings in this court, if I can see clearly that such proceedings are unnecessary, oppressive, and vexatious; but I am unable to see that that is the case here. The analogy is not complete between this case and that of Miles v. The Inhabitants of Bristol. This is not the case of an action being brought in this court by the same plaintiff against the same defendants, and for the same cause of action as that in the other court. In the Lord Mayor's Court, the plaintiff does not sue the same parties; nor are his proceedings there of the same kind, such proceedings being by attachment against the property, and not by action against the person. The proceedings are altogether different, both in principle and in fact; and I cannot see that any ground of vexation has been made out. As, therefore, no authority has been cited on behalf of the defendants, which goes as far as this case, I do not think that I ought to interfere by staying the action, and this rule must be refused.-Rule refused. MICHAELMAS TERM. ALEXANDER v. ROLAND.-Nov. 24. shortly before the time it was expected to come on, it was agreed that the plaintiff should have judgment in his favour, and that the defendant should pay him all costs already incurred in preparing for the second trial, and all costs to which he would have been entitled if he had gone on and obtained a verdict. On the costs being taxed, Montague Smith obtained a rule nisi for the Master to review his taxation, on the ground that he had allowed the costs of the briefs, and the fees upon them, and the costs of the subpoenas. F. N. Rogers shewed cause.-The objections had been heard by the Master, and overruled by him-and correctly overruled; for the plaintiff was exactly in the same position as if he had obtained a verdict on a second trial. Now, the sound principle of taxation was, that whatever were costs in the cause must be allowed, and only what were strictly costs of the first trial disallowed; and, as the costs of preparing the briefs, and the fees upon them, and the costs connected with the subpoenas, were all costs of the cause, the party ultimately successful was entitled to them. (Lord v. Wardle, 6 Dowl. P. C. 194). The principle is exemplified in the distinction taken between fees on briefs and refreshers, and between the original costs of subpoenas and the resealing of them: the latter were taxed off by the Master, on the ground of their being costs of the trial. If the construction suggested by the defendant was adopted, the words of the agreement would not, in fact, be sensible. An Under-sheriff cannot amend the Record by substituting the Word" Issues" for "Issue" in the Writ of Trial. Ball had obtained a rule nisi to set aside the verdict in this case, on the ground that the under-sheriff had exceeded his authority in amending the record, by sub- Montague Smith, contra.-The Master was not wrong stituting the word "issues" for "issue." in the principle he laid down, but had erred in applying Wilde shewed cause.. - This was a discretionary the principle to the facts before him. He had allowed amendment; the insertion of the word "issue," in the costs which were strictly costs of the trial. For instance, singular number, when, in fact, two issues were to be though he may have been right in allowing the costs of tried, was a mere mistake, and the under-sheriff saw the briefs, yet he was clearly wrong as to counsel's fees, that the defendant could not possibly be prejudiced by which, at a second trial, would be fresh fees and not the alteration. It might be well held to be a variance; refreshers; and the fees paid at the first trial were, the objection, however, ought not to have been taken therefore, wrongly allowed. The same may be said of after the jury was sworn. If the court should think consultation fees and attendances of the attorney on the rule ought to be made absolute, it would at least counsel, and of the services of the subpoenas for the first impose conditions; for a defendant ought not to lie by trial. The taxation must therefore be reviewed. Cur, adv. vult. and take the chance of a verdict, and, after making a defence and calling witnesses, then come here and seek to take advantage of a mere technicality. It was not alleged that the defendant had been taken by surprise; that would, of course, have made a difference. (Hill v. Salt, 2 Cr. & M. 420; Blissett v. Tennant, 6 Dowl. P. C. 436; 4 M. & S. 467). Ball, contra.-The rule must be made absolute, as the under-sheriff had no right whatever to make an amendment of the kind under the 3 & 4 Will. 4, c. 42, s. 23, which was the only authority he could fall back upon; even one of the superior judges would not have done it: the section applied only to cases of a variance between the record and the proof. The under-sheriff himself had refused to amend the judge's order, and permitted the amendment in the writ of trial only. The objection was taken before the case was heard. PATTESON, J.-The rule must be made absolute, on the ground that the act does not empower the undersheriff to do more than amend in the case of a variance; a judge might have made the amendment, but that would have been under his general power, and not by virtue of the act.-Rule absolute. LAMPERT v. LYDDON.-Nov. 23 and 25. Fees of Counsel on a first Trial, Consultation Fees, and In this cause the defendant had obtained a verdict in the first instance; but a new trial having been granted, PATTESON, J.-In this case I think the Master was right in allowing the costs of the briefs delivered at the first trial, because it was not necessary to prepare fresh ones for the second trial, and the costs of such would not be allowed; for a similar reason the costs of the subpoenas were, I think, properly allowed, as they would have been available for the second trial, and the costs of resealing them would not be considered costs in the cause. Perhaps the same may be said of the copies, because they would also be available for the second occasion by merely altering the date. On the other hand, I think the Master was wrong in allowing so much of the charges for serving the subpoenas as related to the service of the original ones; that was not available on the second occasion; that was wholly lost. Then, again, as to the fees of counsel; as far as I can learn, the fees on a second trial would not be refreshers, but fresh fees; the former are paid only when there has been no trial at all; when there is a new trial, the former fees are altogether lost-in consequence they cannot be costs in the cause; the same may be said of consultation fees. The principle is clear; nothing is available for a second trial which can be considered costs in the cause.-Rule absolute. STONES V. BACON.-Nov. 25. An Attorney, who has acted as Advocate in the Sheriff's Court, cannot be heard as a Witness in the same Cause. Udall had obtained a rule nisi for a new trial in this case, which was tried by the under-sheriff, on this, among other grounds: that the plaintiff's attorney had given evidence as a witness, though he acted as advocate in the same cause, and addressed the jury on the case set up by the defendant. Petersdorff shewed cause.-There was nothing improper in the plaintiff's attorney being a witness, and he was obliged to act as advocate, because the Master, on taxation, would not have allowed fees to counsel, as the case was tried before the under-sheriff; and, being obliged so to act, it was impossible to contend that therefore his mouth should be shut, and he was to be precluded from proving facts which he alone might be cognisant of, and which might be decisive of the case. No authority could be cited for maintaining such a proposition. the case: the practice always has been, since the tenant in possession in country causes has the whole term to appear in, that the notice should so state. Maule, J.— The tenant might be misled by the terms of your notice. It may well be that he was not prepared to come in and appear on the first day of term; and he may have thought, from the terms of your notice, that an appearance after the first day would be fruitless.] C. Clark then applied for a rule nisi; cause to be shewn at chambers. [Wilde, C. J.-When a party does not choose to follow the well-known practice of the court, I do not think we ought to allow expenses to be accumulated by granting such an application.] PER CURIAM.-Rule refused. APPEALS TO COURT OF COMMON PLEAS UNDER REGISTRATION OF VOTERS ACT. (County of WESTMORELAND). Nov. 19. Udall, contra. It was a highly indecent practice for an attorney to cross-examine the defendant's witnesses and address the jury, and then to give evidence himself to contradict those witnesses, particularly in this case, as the witnesses had been directed to leave the court, and the under-sheriff had distinctly stated that no one who remained should be heard. It was impossible for the jury to separate in their minds what had been given BUSHER, Appellant, and THOMPSON, Respondent.in evidence, and what had been merely related by the same party in the course of his speech as advocate. Even if such a practice had sprung up in the sheriffs' courts, this court would not tolerate it, but would immediately put it down. Lord Tenterden held, and his judgment was confirmed by the full court, that no prosecutor should he allowed to address the jury. Now, if that rule existed in criminal cases à fortiori, would it apply to civil? Lord Campbell, a high legal authority, in his account of Sir Thomas More's trial*, expressed a strong opinion, though not exactly in a legal work, on the impropriety of the practice. PATTESON, J.-In deciding this case, I shall take the general ground, that, where an attorney acting as advocate, cross-examines the witnesses and addresses the jury, it is not fit he should be heard as a witness. In this case he was heard, and therefore I think the rule for a new trial must be made absolute.-Rule absolute. COURT OF COMMON PLEAS.-MICH. TERM. County Franchise-Freehold Estate. Where A. was in Possession of Lands situate in an ancient Borough, in respect of which Parties had voted as Freeholders at several Elections, and nothing appeared in the Case from which it could be inferred that such Lands were holden at the Will of any Lord; but it appeared that the Modes of Alienation were not by way of Feoffment and Livery of Seisin, but by Grant, as also that the Customs with reference to Femes Covert and to Dower were different from those prevailing at Common Law with respect to Freehold Estates,-Held, that there was not sufficient to rebut the Presumption that A. was seised in Fee of such Lands; and, therefore, (such Lands being of the Value of 40s. by the Year), that he had a Right to be registered in respect thereof. This was an appeal against the decision of Harden, the Revising Barrister for the county of Westmoreland. The statement of facts was as follows:-" At the revision of the list of voters for the township of Kendal and Park and Castle Lands, the claim of Thomas Busher to have his name inserted in the list of voters for the said township was objected to. The claim was as follows: Thomas Busher. Highgate, Nature of One-third share of burgage-house and garden. Street, House, &c., where qualifying Property situate. Head of Captain C. Clark moved for judgment against the casual ejector. The notice at the foot of the declaration required the tenant to appear on the first day of Michaelmas Term; but the cause was a country cause, and the "Thomas Busher is one of the owners of certain houses Master refused to receive the motion-paper, on the situate within the township, and within the limits of ground that such notice was insufficient in a country the ancient borough of Kirkby in Kendal. The houses cause, the tenant in such case having the full term to are of what is called burgage tenure, and Thomas appear in. He submitted, that the notice was sufficient. Busher's interest in the annual value of the said houses No hardship is inflicted on the tenant, for this is the last exceeds 40s., but is less than 107. Besides the teneday of term, and he has not yet appeared. The founda- ments held by burgage tenure, of which there are many, tion of the practice in rules of this kind is to be found there are other tenements within the township, which in the Rule of Court, Easter Term, 2 Geo. 4, which is are of the ordinary tenure of free socage, and which as follows: "That, in all country ejectments which are conveyed by the mode of assurance adapted to the hereafter shall be served before the essoign-day of any passing of freehold estates, and descend according to Michaelmas or Easter Term, the time for the appear- the rules of common law. The burgage tenure within ance of the tenant in possession shall be within four the township differs from the ordinary freehold tenure days after the end of such Michaelmas or Easter Term, in this, that burgage tenements have always been conand shall not be postponed till the fourth day after the veyed by deed of grant or bargain and sale, without end of Hilary or Trinity Terms respectively follow-livery of seisin and without a lease for a year, or any ing." [Wilde, C. J.-That rule has nothing to do with * See Lives of the Chancellors, by Lord Campbell. inrolment; no surrender or admittance is, however, required, nor is any fine paid upon descent or alienation. There is no record of courts baron or customary courts having ever been held within the township, though a tradition exists that such courts were formerly held, and that, upon every change of tenant of a burgage tenement, a God's penny' only was paid, but no fine. The mode of descent of such burgage tenements follows the common-law mode of descent, excepting that where by the common law several females would inherit as coparceners by the custom of burgage tenure, the eldest inherits to the exclusion of the rest. The custom with regard to femes covert has always been, that husband and wife have conveyed the burgage tenements of the wife by such deed of grant, or bargain and sale, as before mentioned, and without any separate execution by the wife; and that, upon the death of a person dying seised of a burgage tenement, and leaving a widow, such widow, instead of dower, by the common law, has had the whole of the burgage tenements of which her husband died seised during her chaste viduity; but such widow has had no dower or freebench out of any tenements conveyed by the husband during coverture, her title to such dower or freebench being confined to the tenements or estate of which the husband dies seised. In the township of Kirkland, which adjoins the township of Kendal, but is without the limits of the ancient borough of Kirkby in Kendal, there are burgage tenements, the custom with respect to which, both as to alienation, descent, and in all other respects, are the same as apply to burgage tenements in Kendal, except that upon alienation the deed of alienation is presented at the manor court, but no admittance takes place. There are copyhold tenements within the manor of Kirkland. Burgage tenements have always been devisable in the same manner as ordinary freehold estates. They are held subject only to the payment of certain fines and annual rents, some of which are payable to the lords of the manor, and others to private individuals, who have an undoubted right to enforce payment of these fixed annual rents by entry and distress. No other services have been performed or payments made in respect of these burgage tenements. The owners of these tenements voted in the election of knights of the shire for the county of Westmoreland, in respect of their burgage tenements, at the elections in 1818, 1820, 1826, and 1832, but whether they did so in the exercise of an admitted right, or by mutual consent, was not shewn. There are within the barony of Kendal (within which the borough of Kirkby in Kendal is situate) divers customary tenements, which are conveyed by deed of grant, or bargain and sale, without surrender, but with regard to which, upon every change of tenant by alienation, descent, or devise, as well as well upon the death of the lord, admittance at the manor court is necessary, and fines, (some arbitrary, but for the most part certain), and in some instances heriots, are payable. The owners of these customary tenements also perform suit and service at the customary courts, which are regularly held within the said In other respects, the customs as to descent, and as to a widow's estate in her deceased husband's lands, and as to the power of disposition by will, are the same, both with regard to burgage tenements and to the customary tenements alluded to. Upon the foregoing facts it was contended, on behalf of Thomas Busher, that the houses were of freehold tenure, and that an interest to the extent of 40s. by the year was sufficient to support his claim. I decided that the houses were not of freehold tenure, and that, as their clear yearly value to Thomas Busher did not amount to 107., they were insufficient to support his claim, which I thereupon rejected." manors. Cockburn, for the appellant.-The decision of the revising barrister was clearly wrong. The tenure in this case was of a freehold nature. The distinction which prevails between the two tenures is this: that whereas in the case of freeholds the party who is so seised may dispose of it as he pleases, in the case of lands of a base tenant the party holds at the will of the lord, and the intervention of the lord is necessary to effectuate the alienation of the estate. In Heywood on County Elections, (pp. 20 and 69), the law upon this subject is explained at length. There is nothing in the present case which can be relied upon as shewing that the tenement in question was held under any base tenure. As to the peculiar modes of conveyance which are stated, there may well be a custom prevailing in this barony so as to convey freehold estates of this nature. Arnold, contra.-It is submitted that the modes of conveyance stated in this case shew conclusively that these tenements are not to be considered as being of a freehold nature. What is tenure in burgage is stated in Littleton, ss. 162, 163: "Tenure in burgage is where an ancient burrough is of which the king is lord, and they that have tenements within the burrough hold of the king their tenements; that every tenant for his tenement ought to pay a certain rent by year. And such tenant is but tenant in socage. And the same manner is, where another lord, spiritual or temporal, is lord of such a burrough, and the tenants of the tenements in such a burrough hold of their lord, to pay each of them yearly an annual rent." So, Blackstone, in his Commentaries, (vol. 2, p. 82), describes it as "a kind of town socage; as common socage, by which other lands are holden, is usually of a rural nature. Tenure in burgage, therefore, or burgage tenure, is where houses, or lands which were formerly the site of houses, in an ancient borough, are held of some lord in common socage, by a certain established rent." In those cases the fee is in the tenant, subject only to the payment of rent; but here it is submitted that the fee is not in the tenant. The modes of conveyance shew conclusively that it is not. There is no mode by which freehold estates can be alienated inter vivos at common law, except by feoffment and livery of seisin. Treating of feoffments, Blackstone (vol. 2, p. 311) says, "This was for ages the only conveyance whereby our ancestors were wont to create an estate in fee-simple, by giving the land to the feoffee, to hold to him and his heirs for ever. But by the mere words of the deed, the feoffment is by no means forfeited. There remains a very material ceremony to be performed, called 'livery of seisin,' without which the feoffee has but a mere estate at will." [He referred also to Stephen's Com., vol. 1, p. 217.] [Maule, J.-The question is, whether there may not be a valid custom to pass a freehold in the way in which the estates mentioned in this case are conveyed. I cannot help thinking, that, in estates of burgage tenure in boroughs, the conveyance is often made by deed.] The statement in the case relative to a widow taking no dower in these estates is also important, as shewing that they cannot be considered as being of a freehold nature. Littleton, in sect. 37, says, "By the common law, the wife shall have for her dower but the third part of her tenements, which were her husband's during the espousals; but by the custom of some county she shall have the halfe, and by the custom in some town or borough she shall have the whole; and in all these cases she shall be called tenant in dower."" The case in this respect, as in the modes of conveyances, shews incidents more likely to appertain to a customary estate than an estate of freehold. (1 Scriven on Copyholds, 59, 89; Watk. c. 3; Doe d. Clemett v. Briggs, 16 East, 406: Doe d. Reay v. Huntington, 4 East, 271; Stephenson v. Hill, 3 Burr. 1278). Cockburn, in reply.-It is not necessary to inquire into the reasons of the customs which appear to prevail with reference to the estates in question; for the fact of their being conveyed independently of the will of any lord shews that they cannot be customary estates. It appears, that, within the same barony, there are other estates which are customary; and in respect of those, it is found, that, upon alienation, admittance at the manor court is necessary. able is only an incident of socage tenure; and the case finds that such rent is payable in some instances to the lord of the manor, but in other instances to other individuals. It is not, therefore, an estate of copyhold. No authority has been shewn in the course of the argument for saying that there may not be a good custom to pass these estates without livery of seisin. It may well have been considered that the occupation of a burgage tenement, particularly in boroughs, was of itself sufficient evidence of the notoriety of the transfer. VAUGHAN WILLIAMS, J., concurred.- Decision reversed. COURT OF EXCHEQUER.-HILARY TERM. WILSON V. LORD CURZON.-Jan. 14. An Action will not lie by the Secretary of a projected Railway Company who is one of the registered Promoters of it, against the Provisional Committee by whom he was appointed Secretary, for his Salary as such Secretary; unless it be shewn that the Defendants have contracted with him in their individual Capacities and not as Projectors of the Company. WILDE, C. J.-The question in this case is, whether the nature of the qualification of this party, whose claim to be registered the revising barrister disallowed, was freehold or not. If freehold, the value was sufficient; if of any other tenure, the value was insufficient. Let us see, then, whether, from the facts stated in the case, it follows, as a conclusion of law, that this person was seised of a freehold estate. The case finds that he was the owner of a burgage tenement, subject only to the payment of a fixed rent; that the property is situated in a district where there is no manor, nor any lord of the manor; and that the payment of such rent is made to an ordinary individual. Now, where a person is in the possession of property, the legal presumption is that he is seised of the fee thereof, and the onus is upon the adverse party to cut down the presumption arising from such possession. What is there in the present case to have that effect? The incidents I have already mentioned are those belonging to an estate of a freehold nature, and are altogether inapplicable to one of a base nature. As matter of reputation, it is found that, at several elections, the owners of these tenements voted in respect thereof; and the only arguments re-fendant pleaded the general issue. At the trial before lied upon for the purpose of cutting down the estate are, that these tenements have always been conveyed by bargain and sale, and that where such estates have been the property of the wife, the husband and wife have conveyed the same by such bargain and sale, without any separate execution of the wife. But, with respect to this, it is to be observed, that, whatever may be the effect of such conveyance, it is not for us to determine; it may not be sufficient to pass the fee; but that is not the question here. In this case the party is in possession, and for all that appears has a perfectly good title; and, if his estate be not a freehold, where, it may be asked, is the fee? To my mind, it is clear that the voter's estate was one of freehold; and it may well be, that, although the mode of conveyance generally adopted throughout this district be insufficient at common law to pass the fee, yet that, by reason of some local custom, it is sufficient. COLTMAN, J.-I am of the same opinion, for the reason already stated by the Lord Chief Justice, that there is nothing in the case which authorises us to say that the freehold estate, which the law presumes a party in possession to have, was in any way cut down. The payment of the rent is not to any one claiming any relation to the land, nor is there any other matter stated which can be considered incident to an estate of a base nature. With respect to the conveyance, if the question before us was, whether such a conveyance was sufficient to pass the fee, I might have had some doubt; but we are not at present trying the question whether the conveyance is good, but whether the party is the possessor of an estate of sufficient tenure. And, upon this point, I think that the revising barrister came to a wrong decision when he decided that he was not. MAULE, J.-It is found in this case that the claimant was possessed of an estate of sufficient value to confer a vote if the estate was of a freehold tenure. What is said as to the mode of conveying burgage tenements within the township does not apply to the present one; upon this case we must take it for granted that what ever was sufficient to give the entire quantity of this estate to the claimant has been done, so that he has it for himself and his heirs, for ever. The only question is, whether it was shewn at the registration that the estate was of a tenure other than freehold. Now, it may be observed, that in cases of base tenure we generally find some badge or symbol existing of the service which, in former times, was required to be done by the occupier of such estate at the will of his lord. In this case I can discover none. The fixed rent which is pay This was an action of assumpsit; to which the dePollock, C. B., it appeared that the action was brought to recover 1251., the amount of six months' salary from September 1845 to March 1846, in respect of the plaintiff's services as secretary to a projected company called the "Canterbury and Herne Bay Railway Company." The defendant was member both of the provisional committee and the managing committee of this company; which had been provisionally registered under the 7 & 8 Vict. c. 110, with the names of the plaintiff and Daniel Keene as its promoters. In order to prove the plaintiff's case two extracts from the books of the company were put in evidence:— "At a meeting at the Guildhall Coffee-house, Oct. 15, 1845. "Present. sional committee, not including that of the defendant.] [Here followed the names of several of the provi"The following resolutions were proposed by and seconded by and agreed to unanimously:[The three first of these resolutions are immaterial to the present case.] "4. That Daniel Keene, Esq. be appointed solicitor to the company. "5. That James Wilson, Esq. be appointed secretary to the company. "6. That be engineers and surveyors to the company, and be instructed to proceed in the survey. "That the following gentlemen be appointed as an acting or managing committee or directory [Here followed several names, including that of the defendant]: with power to add to their number." [Signed by the members present, and by the plaintiff as secretary.] The other extract purported to be the minutes of a meeting held at the same place on the 17th October, 1845, at which the defendant was in the chair, and several other members of the provisional committee were present. It stated that the minutes of the last meeting were read over by the secretary and confirmed, and also that several resolutions were moved and agreed to: and it was signed by the members present, including the defendant; and also by the plaintiff as secretary. It also appeared that the plaintiff's salary had been audited and passed at a meeting of the company. On this state of facts Pollock, C. B., nonsuited the plaintiff; on the ground that as registered promoter of the company he could not bring an action against the provisional committee of it for services in doing things incidental to its formation. Leave was however |