statute related to the church rates and tithes of quakers; and by the 4th section the payment is to be enforced by distress and sale of the person's goods, nothing being said as to keeping the goods any number of days. The stat. 27 G. 2, c. 20, excepts these distresses from its operation, these being the only distresses for church rates which could then be made. The stat. 53 Geo. 3, c. 127, under which this warrant was issued, extends the power of distraining for church rates to those of all persons where the validity of the rate is not disputed. Statutes in pari materia are to be taken together.

MAULE, J.-The question is, whether the materia here is the church rate or the quaker. I think it is the quaker: he is a peculiar person. Keeping a man in possession four days in a quaker's house, would be showing the quaker no favour. The best thing you can do for him is, to take his goods, and tell him you will sell them directly if he does not pay. The stat. 7 & 8 Will. 3, c. 34, proceeds on the peculiar tenets of quakers; the stat. 53 Geo. 3, c. 127, is founded on no such peculiarity. Pashley. I do not see how church rate is payable in respect of "any Act or Acts of Parliament;" which is essential under the stat. 7 Geo. 2, c. 20. MAULE, J.-The duty is an ecclesiastical duty, originally enforced in the ecclesiastical courts. The stat. 53 Geo. 3, c. 127, s. 7, orders payment of it by civil process; and the question then is, whether this does not bring it within the *words "any sum of money directed to be paid by, or in consequence of, such Act or Acts" of Parliament. Pashley. The words of the stat. 27 Geo. 2, c. 20, are "it shall and may be lawful." I presume that your Lordships would hold them to be imperative.

MAULE, J.-Certainly.

[*1007

Pashley. In the case of Russell v. Ledsam, 14 M. & W. 574,(a) it was laid down that the legislative explanation of Acts of Parliament by declaratory Acts was binding on the Courts, but not where the explanation was to be drawn from other Acts of the ordinary kinds. It is the province of the Judges, and not of the legislature, to construe Acts of Parliament; and the proviso as to quakers may have been inserted ex abundanti cautela.

MAULE, J.-To suppose that would be to go a great way. The proviso is contained in the same statute, and it is, that the statute shall not extend to quakers; which would lead to the inference, that, but for the proviso, it would do so; and, if we were not to allow one part of a statute to explain its meaning in another part, there would be an end of interpretation clauses, and, perhaps, no great harm. The warrant in the present case is taken from the form in Burn's Justice, which is bad. It is not the first form in Burn that has been found to be so.

WILDE, C. J.-As there is no exception applying to this case, it is within the stat. 27 Geo. 2, c. 20, and the conviction cannot be sustained. Conviction wrong.

(a) In which the case of Dore v. Gray, 2 T. R. 365, is cited.

*1008]

*COURT OF QUEEN'S BENCH.

(Sittings in London after Michaelmas Term, 1849.)

BEFORE MR. JUSTICE COLERIDGE.

(Who sat for the Lord Chief Justice.)

VARICAS v. FRENCH. Dec. 12.

To render a deposition taken before the Master under a Judge's order, admissible on the ground that the witness is abroad, evidence must be given to satisfy the Judge that the witness is out of the jurisdiction of the Court; and proof by a person that he had prepared the witness's outfit for Australia, and had seen him start by the Blackwall Railway to go on board the "Asia," which lay at Gravesend, bound for Australia, and that he had received a letter from the witness from Sheerness, and another from Plymouth, at both of which places the "Asia," had put in, was held sufficient for this purpose, as being evidence, that his voyage had been commenced.

ASSUMPSIT for goods sold.-Pleas, first, non assumpsit; and, second, that the goods were sold to the defendant by George Busan, the agent of the plaintiff, who sold them in his own name to the defendant, by the plaintiff's consent; and that the defendant had no knowledge, or means of knowledge, that the goods were the plaintiff's, and that George Busan was an agent; and that George Busan then was, and still is, indebted to the defendant in a greater amount; and that the defendant is willing to set off so much of that debt against the plaintiff's claim. Replication to the second plea, that the goods were not, with the consent of the plaintiff, sold by George Busan to the defendant in his own name.

On the part of the plaintiff, to let in the evidence of Mr. George Busan, taken before Sir F. Dwarris, under a Judge's order, on the ground that Mr. G. Busan was abroad, Mr. Abraham Garner, a clerk of Messrs. Silver & Co., outfitters, was called; he said that his employers had sold Mr. G. Busan an outfit for Australia, and that he was to sail by the "Asia," a ship bound for South Australia. This witness further stated, that he went with him to the London terminus on the Blackwell Railway, and saw him *pay his fare to Gravesend, where the "Asia" *1009] then lay. The witness further said, "The Asia' sailed in October, 1848, and was to touch at Plymouth. I produce two letters received from Mr. G. Busan, the one from Sheerness, and the other from Plymouth."

COLERIDGE, J.-I think this is reasonable evidence to satisfy me that .he witness is abroad.

Humfrey, for the defendant.-This is all in England.

COLERIDGE, J.-It shows the beginning of the voyage.

Shee, Serjt.-We can prove letters received from him after he left England.

COLERIDGE, J.-It is quite unnecessary.

The deposition of Mr. George Busan was read in evidence.(a)

Shee, Serjt., and Ogle, for the plaintiff.

Humfrey and Lush, for the defendant.

Verdict for the plaintiff.

[Attorneys-Sampson Samuel, and E. T. Phillips.]

(a) See the cases of Bartlett v. Smith, Painter v. Hill, cited ante, pp. 923, 924, n.

*COURT OF COMMON PLEAS.

[*1010

'Sittings at Westminster after Michaelmas Term, 1849.)

BEFORE LORD CHIEF JUSTICE WILDE.

LEADER v. STRANGE. Nov. 28.

In an action for the infringement of copyright, by merely publishing a work printed or caused to be printed by others, knowledge of the copyright so infringed on must be proved. CASE for infringement of copyright.—The plaintiff had published certain airs taken from a German Opera by Flotow, with certain modifications to suit the taste of the English public. The declaration alleged that the defendant had printed and published the same airs, with most of these alterations, without the consent of the plaintiff; but it did not allege, nor was it proved in evidence, that the defendant knew he was infringing the plaintiff's copyright.

Byles, Serjt., for the defendant, submitted, that, with respect to the allegation of publishing, the Court, looking to the 15th section of the Copyright Act, would direct the jury to find for the defendant, unless they were satisfied that the defendant had acted with guilty knowledge. Channell, Serjt., contrà.

WILDE, C. J., was of opinion, that, although the 15th section of the act presumed guilty knowledge in some cases, it did not presume it from the mere fact of selling printed works. As the declaration, in this instance, did not allege guilty knowledge on the part of the defendant, if there were not evidence of it, the jury must, as to the publishing, find for the defendant.

*Leave was given to Channell, Serjt., to move the Court above upon the point.

Verdict for the plaintiff. [*1011

Channell, Serjt., and Petersdorff, for the plaintiff.

Byles Serjt., for the defendant.

[Attorneys-Crew, and Sheard.]

COLYER v. MAYNE. Nov. 28.

Evidence. In an action for the seduction of the plaintiff's daughter, to prove that her connexion with the defendant (which happened but once) was against her consent, the daughter can be asked only as to circumstances occurring immediately after the event.

CASE for seduction of the plaintiff's daughter.-The daughter having deposed to the fact of criminal connexion on one occasion with the defendant, against her consent, but which she had for some months kept concealed, was asked by Byles, Serjt., for the plaintiff, as to her refusal, some weeks after the occurrence, to go to the defendant's house on her father's direction so to do on some errand.

Bramwell, for the defendant objected.-To show absence of consent on her part, those circumstances only could be deposed to which occurred immediately after the event.

WILDE, C. J., was of opinion that the question could not be put. What occurred after any considerable lapse of time might be all acting. Verdict for the plaintiff-Damages, 1507.

Byles, Serjt., and Willes, for the plaintiff.

Bramwell, for the defendant.

[Attorneys-Buchanan, and W. D. Kent.]

*1012]

*COLLIER v. NOKES and Another.

Dec. 1.

Parties are not entitled to put in, as part of their case, documents handed to a witness on crossexamination by the opposite party to depose to their nature. Semble, counsel are not entitled to see letters handed to a witness under like circumstances, to depose to the handwriting.

It is primâ facie proof of identity if a name is written up in an auction-room, and the auctioneer is addressed by the bystanders by that name.

The Court will not take judicial notice of the hours of the day in the calendar.

A letter from one of the parties, proposing a compromise, is not a privileged communication, if tendered as evidence that a compromise had actually been effected.

TRESPASS and trover.-The action was brought for excessive and illegal distress against the landlord of certain premises occupied by the plaintiff, and the auctioneer, who sold the goods distrained. In the course of the cause,

Bovill, for the defendants, on cross-examination put into a witness's hands certain documents, and was told that one was an inventory of goods belonging to the plaintiff, and the other a lease executed by certain parties. He subsequently handed some letters to the witness, and was informed in whose handwriting they were written.

Byles, Serjt., for the plaintiff, then proposed to put in the above-mentioned documents as part of his case, and also claimed the right of seeing the letters.

Bovill objected.-As to the right of seeing the letters, Parke, B., had ruled, after consideration, that the opposite counsel had no right to see any documents under such circumstances. If any question arose as to

handwriting, the opposite counsel could only recall the witness, if necessary, and examine him with respect to that.

WILDE, C. J.-As to the inventory and the lease, I think those documents are in the defendant's possession, and that the opposite party has no right to them. As to the letters, my own opinion is, that, if the handwriting, or any of the contents of any paper shown to a witness, is deposed to, the opposite counsel is entitled to see it, otherwise he perhaps would not be able to shape his line of conduct. He would not be so entitled if the witness merely deposed to the nature of the paper, or to its having been produced on a given occasion, or any similar thing. As the contrary, however, has been ruled, I will abide by that ruling. *To fix one of the defendants, Robinson the auctioneer, it was [*1013 put in evidence, that, in the room in which the plaintiff's goods were sold, the name of Robinson was written up, and that the bystanders addressed the person who was selling by the name of Robinson.

Bovill objected, that the evidence was insufficient to establish identity. WILDE, C. J., overruled the objection.-It had been held, that, if a man's name appear over a door, and a person within answers to the name, it is primâ facie evidence that he is the man so named.

To prove that the distress was put in after sunset, evidence was given that it took place at ten minutes past four o'clock in the month of November.

Byles, Serjt., submitted, that the Court, taking judicial notice of the almanac, knew that that hour, in the month of November, would be after

sunset.

WILDE, C. J., held that the evidence was insufficient. The Court took judicial notice of the days in the calendar, but not of the hours. In a case like this, if the time was material, it must be proved.

Bovill, for the defendants, tendered in evidence a letter written by the plaintiff's attorney, as relevant to prove that an amicable arrangement of the points in dispute had taken place.

Byles, Serjt., objected.-The letter was written for the purpose of effecting a settlement, and was therefore privileged.

[*1014

WILDE, C. J., overruled the objection.-This differed from the ordinary case. To prove that an amicable settlement did take place, it was competent to the defendants to put in a letter proposing such. Verdict for the plaintiff-Damages, 251.

Byles, Serjt., for the plaintiff.

Bovill, for the defendants.

[Attorneys-Crawley, and Nokes & Johnson.]

A 251. stamp not necessary for a mortgage-deed to secure an indefinite sum, where a subsequent proviso limits the principal sum to be secured. 3 I

VOL. II.-82