mal which has done damage to the freehold, but which has ceased doing so, and it be not necessary to detain the animal to prevent further damage, and the owner of the freehold detain the animal and feed it for several days, and then sell it for its full value, the owner of the animal is entitled in trover to recover the full value of the animal, without any deduction for the feeding, as the owner of the freehold seized the animal in his own wrong. Wormer v. Biggs,

31

2. Where the defendants meddled with and took an inventory of the plaintiff's goods, and gave him notice they had distrained them :-Held, that there was sufficient evidence to go to the jury of a conversion of the goods to the defendant's own use. Neilau v. Hanny, 710

DISTRESS WARRANT.

See CHURCH-RATE, 7.

DISOBEDIENCE OF ORDER OF FILIATION.

See FILIATION (Order of).

DOCUMENTS (IMPOUNDING).
See IMPOUNDING DOCUMENTS.

EASEMENT.

See FOUNDATION.

EJECTMENT.

See COSTS, 2.

1. Several brothers and sisters divided certain property between them at their mother's death, supposing it to have been hers, and verbally allotted a house to a sister. The property really had been their deceased father's: -Held, in ejectment by the father's devisee (one of those brothers), that he could not recover without a demand of possession; and the demand of possession being after the day of the demise, the judge would not allow an amendment by altering the day of the demise, as the arrangement was equita448 ble. Doe d. Loscombe v. Clifford, 2. In ejectment, evidence that the shutters of the house claimed were repaired, and a washhouse built on the premises, and that this was paid for by W. L., is evidence to go to the Ibid. jury of the seisin of W. L.

EMBEZZLEMENT.

1. Under an order of the Poor Law commissioners, founded on the 46th section of the stat. 4 & 5 Will. 4, c. 76, the board of guardians of the P. Union appointed A. an assistant overseer of a district in the union of which the township of F. formed a part, and his duty was to assist the overseers of each of the townships of the district. A. was paid

a salary by the guardians. A. received sums for poor-rate from rate-payers of the township of F., which he ought to have paid over to the bankers of the overseers of that township, instead of which he embezzled them: -Held, that A. was not indictable for embezzling this money as the money of the overseers, as he was not their servant; and that he was not indictable for this embezzlement as the servant of the guardians, because (if he was their servant) it was not their money. Reg. v. Townsend,

168

The treasurer to the guardians of the poor of Birmingham, appointed under the stat. 1 & 2 Will. 4, c. lxvii, (local and personal), is a servant of the guardians, and as such is indictable for embezzlement. Reg. v. Welch,

296

3. The appointment in writing of a person to be such treasurer at a yearly salary requires a stamp. Ibid. 4. But if such appointment be not receivable in evidence for want of a stamp, a recital in a bond executed by him is sufficient evidence of his appointment, and his duties may be shown from the clauses of the local act of Parliament Ibid. under which he is appointed.

5. A., a brewer, sent his drayman B. out with porter, with authority to sell it at fixed prices only. B. sold some of it to C. at an underprice, and did not receive the money at the time. A. heard of this, and, unknown to B., told C. to pay B. the amount, which C. did, and B., when asked for it by A., denied the receipt of the money:-Held, to be sufficient evidence of embezzlement. Reg. v. Aston,

JUDGE'S ORDER.-EXAMINATION BEFORE MAGISTRATES. MALICIOUS PROSECUTION.-MURDER, 6.-NEW ASSIGNMENT, 1.-PARDON.PARISH REGISTER. PERJURY, 1, 2, 4, 6.— SEDUCTION. SHIPPING, 1, 2.

1. Mr. S., the managing clerk of the plaintiff's attorney, wrote a letter to the defendant, addressed to him at his residence, which letter was proved to have been put into the post. Mr. S. proved that he received an answer to his letter:-Held, that the letter thus received in answer was admissible in evidence without proof of the defendant's handwriting. Ovenston v. Wilson,

2. It was proved by Mr. S. that he received a letter of earlier date, and in the same handwriting as the letter last before mentioned: -Held, that this letter was also admissible in evidence without proof of the defendant's handwriting: and held, also, that a copy of a letter written by Mr. S. of still earlier date, to which the last-mentioned letter was answer, might be given in evidence (the original not having been produced after a notice to produce) without any proof that the original had been put into the post or had reached the defendant. Ibid.

an

5. In the year 1845, and before ejectment brought, Mr. N. applied to Mr. W., who was afterwards attorney for the defendant in the ejectment, to demand possession of the property, and they had a conversation:-Held, that, on the trial of the ejectment, evidence of this conversation was not receivable; and semble, that it being further proved by Mr. S., who received the rents of the property for the defendant, that Mr. W. had been the attorney for the defendant ever since the year 1841, did not render the evidence admissible. Doe d. Hulin v. Paterson,

216

was also on fire on the 28th of March, and that the prisoner was then close to it, having a gun in his hand, is receivable to show that the fire on the 29th was not accidental. Ibid. 8. By an agreement between an African merchant and an African captain, the latter was to have a commission of "£6 per cent. on the net proceeds of the homeward cargo, after deducting the usual charges:"-Held, that parol evidence was not admissible to show, that, under this kind of contract, according to the course of dealing between African captains and African merchants, the captain was entitled to his commission on the whole amount for which the cargo had been sold, and not merely on the net sum that had come to the hands of the merchant as the result of that sale. Caine v. Horsefall,

349

9. The proper proof that a prisoner was in law. ful custody under a sentence of imprisonment passed at the assizes, is by the proof of the record of his conviction; and neither the production of the calendar of the sentences. signed by the clerk of assize, and by him delivered to the governor of the prison, nor the evidence of a person who heard sentence passed, is sufficient for this purpose. Reg. v. Bourdon,

366

10. If a deed be in the possession of a third person as mortgagee, and he having the deed in Court, though not subpoenaed in the cause, decline to produce it, secondary evidence may be given of its contents; but if the deed is not in Court, and he has not been subpoenaed to produce it, it is otherwise. Doe d. Loscombe v. Clifford,

448

Ibid.

11. The person thus declining to produce a deed must not state the contents, but he must state the date of the deed and the names of the parties, in order to identify it. 12. An examined copy of a memorial of a purchase-deed registered in Middlesex under the stat. 7 Anne, c. 20, is only receivable as secondary evidence of the deed against the parties to the deed and all persons claiming under them; and the fact that A. mortgaged the property to B., and delivered this deed to B. as mortgagee, is not sufficient to make Ibid. it secondary evidence against A. 13. On the trial of an indictment against a person for being at large without lawful cause before the expiration of his term of transportation, a certificate of his former conviction and sentence was put in; it purported to be that of J. G., "deputy clerk of the peace" for the county of L., "and clerk of the courts of general quarter sessions of the peace holde in and for the said county, and having the custody of the records of the courts of general quarter sessions of the peace holden in and for the said county." It was proved that Mr. H. was clerk of the peace of L., and that

he had three deputies, partners, of whom J. G., who had signed the certificate, was one, and that each of them acted as clerk of the peace, and that for forty years they had kept the sessions records at their office:-Held sufficient proof of the conviction and sentence under the stat. 5 Geo. 4, c. 84, s. 24. Reg. v. Jones, 524

14. The answer in Chancery of one who has been a partner in a firm, but who had retired from the firm, and ceased to have any interest in it before the commencement of that suit, is not admissible in evidence against the continuing partners of the firm, although it relates to transactions which occurred with the firm at the time when the retired partner was a member of it. Parker v. Morrell, 599 15. Where the legitimacy of a party was the question in dispute, and a witness deposed to certain expressions of the mother, tending to bastardize the child :-Held, that the evidence was admissible. Hargrave v. Hargrave, 701 16. A statement made in the plaintiff's hearing, although not in her presence, is evidence against her. Neile v. Jakle,

709

17. Where the defendant was in the habit of employing his son to write letters in his name, and a letter without signature, but in the son's handwriting, and bearing a post-mark, was tendered in evidence:-Held, that it was inadmissible. Barton v. Hutchinson, 712 3. Where a book was kept privately by the defendant, and was made up from certain slips of paper, on which the daily transactions of his business were entered, and there was no proof that these were accurately copied by him:-Held, that the book was not admissible as evidence for the defendant. Ellis v. Cowne,

20. A letter signed by procuration is admissible, if unexplained, to prove an admission of the authorship of a former letter, Ibid.

21. In an action by the payee against the maker of a promissory note for 4857., in which the defendant had pleaded that he did not make the note, it was proposed, in addition to proof of defendant's handwriting of the signature of the note, to put in an unstamped agreement between the same parties, of the same date as the note, in which it was recited, that the one had bought of the other the lease of a public-house for 485l., and had given a note for that sum as a security for the purchase-money, and by which it was agreed, that the vendor should hold the lease of the house till the

purchase-money was paid:-Held, that, as the agreement was one that ought to have borne a stamp, it was not receivable in evidence, even for the purpose of proving the admission contained in the recital. Keane v. Janes, 725 22. Evidence, that a week before the trial, the parents of an attesting witness to a deed were asked where he was, and stated, that he was in America, is reasonable evidence that he is without the jurisdiction of the Court, so as to let in proof of his handwriting to the attestation of the deed. Austin v. Rumsey, 736 23. To prove the handwriting of a defendant, named F. W., to a letter, a clerk of a banker stated that a person of that name kept an account with the banker, and had signed his name in a book, and drawn checks, which the witness had paid, and that he believed the letter to be of the handwriting of that person. The defendant's attorney proved that the defendant had desired him to address him at No. 12, Tower-street; and another witness proved that had written two letters to "Mr. F. W., 12, Tower-street," and had received answers, and that he believed the letter of fered in evidence to be of the same handwriting as the answers he had received to his letters-Held, sufficient proof that the letter offered in evidence was in the defendant's handwriting. Murieta v. Wolfhagen, 744 24. In an action against S. it was proved, that a witness went to a tavern and asked a waiter if S. was there; and on a person coming out to the witness, the latter asked him who he was, and he said his name was S. The witness had not known the defendant before, and had never seen him since:-Held, that this was some proof that this person was S., and that the conversation between the witness and this person was receivable in evidence. Reynolds v. Staines,

745

25. A., a plaintiff in a cause in the county court, was indicted for perjury there, in respect of a paper which was produced on the trial there. Mr. M., his then attorney, was subpoenaed to produce this paper on the present trial; he stated that he had received it from A., for the purpose of conducting that cause as A.'s attorney, but that he claimed a lien on it :— Held, that he ought not to produce it, and that his possession of it was the possession of A. Reg. v. Hankins,

823

26. In an action on a bond, the defendant pleaded that he was induced to execute it by the fraud, covin, and misrepresentation of A., one of the plaintiffs, and D. It appeared that the money for which the bond was given was part of the property included in the marriagesettlement of the defendant's brother, which was advanced to him by the two plaintiffs, who were the trustees. For the defendant it was proposed to put in the answer of A. in Chan

cery, to show that D. had committed a breach of trust with respect to some other trustmoney:-Held, that the answer could not be given in evidence for this purpose. Lord Courtenay v. Haworth,

1018 27. Where certain parts only of a book containing proceedings in bankruptcy are put in by one party, the opposite counsel have no right to refer to other parts of it. Whitfield v. Aland, 1015 28. A witness cannot refresh his memory by depositions which he did not make immediately after the facts he deposed to. Ibid. 29. Parties are not entitled to put in, as part of their case, documents handed to a witness on cross-examination 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. Collier v. Nokes, 1012 30. It is primâ facie proof of identity if a name is written up in an auction-room, and the auctioneer is addressed by the by-standers by that name.

Ibid.

31. The Court will not take judicial notice of the hours of the day in the calendar. Ibid. 32. 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. Ibid. 33. Whether a notary may be asked as to the general course of business among notaries in London. Lysaght v. Bryant, 1016

EVIDENCE IN REPLY. Where A. was called by the defendant to prove conversations between the plaintiff and the agents of the defendant; and after the defendant's case had closed, it was proposed to call B. on the part of the plaintiff, to contradict A.:-Held, that, notwithstanding the course of cross-examination pursued by the defendant's counsel had been such as to give notice of the defendant's case, B. might be called upon to contradict A. as to what took place between the plaintiff and the agents of the defendant, on any occasion on which A. had admitted in his evidence that B. was present. Cope v. Thames Haven Dock Company, EXAMINATION BEFORE MAGISTRATES. See CROSS-EXAMINATION, 3.

757

1. In a case of felony the committing magistrate is not bound to hind over all the witnesses who have been examined before him in support of the charge, but only those whose evidence is material to the charge; but it is very desirable that all that has been given in evidence before the magistrate should be transmitted to the Judge. Reg. v. Smith, 207 2 If a person in whose possession stolen pro

perty is found give a reasonable account of how he came by it, and refer to some known person as the person from whom he received it, the examining magistrate should have that person before him, as his evidence may either entirely exonerate the accused, or may prove, that, in addition to his possession of the goods, the accused has been giving a false account of how he came by them.

Ibid. 3. Everything that occurs before a magistrate on the examination of a person on a charge of felony should be taken down in the depositions, if it is material to the case. Reg. v. Weller,

223

4. Where, during the examination of a witness before a magistrate, in support of a charge of felony, the prisoner interposes an observation which is material to the case, such observation should be taken down in the depositions; and if it be not, the Judge at the trial will not allow any evidence of it to be given.

Ibid. 5. It would be always desirable, when a person of weak intellect is examined before a magistrate in a case of felony, that the magis trate's clerk should take down in the depositions the questions put by the magistrate, and the answers given by the witness as to the witness's capacity to take an oath. Reg. v. Painter,

319

6. On a charge of felony, the witnesses who make the depositions on which the prisoner is committed should be examined in the prisoner's presence, and he should hear all the questions put and answered; and if the magistrates' clerk, before the arrival of the magistrates and of the prisoner, examine the witnesses and take down what they state, and when the magistrates and prisoner arrive the depositions so taken are read over to the witnesses in the presence of the magistrates and the prisoner, and the latter be asked whether he has any question to put to any of them, this is wrong. Reg. v. Johnson, 394 Where a prisoner, charged with felony, has

7.

witnesses in attendance at the time of the examination before the magistrate, Lord Denman, C. J., recommended that they should be then examined if the prisoner wishes it; and if their evidence is believed, and answers the charge, no further proceedings need be taken. But if these witnesses contradict those for the prosecution in material points, the case should be sent to a jury, and the depositions of the prisoner's witnesses should be taken and signed by them, and transmitted to the judge, together with the depositions in support of the charge. Examination of Prisoner's Wit845 nesses before Magistrates,

EXPENSES. See ASSAULT, 6.

EXPOSURE (INDECENT).

See INDECENT EXPOSURE.

FALSE ANSWER.

1. An indictment on the Municipal Corporativa Act, 5 & 6 Will. 4, c. 76, s. 34, for giving a false answer on voting for a town councillor, is bad, if it do not allege that the defendant "wilfully" gave the false answer. Charging that he gave the answer "falsely and fraudulently" is not sufficient. Reg. v. Bent, 179 2. A count in an indictment, which charges that the defendant, at an election of a town coun

cillor, falsely, fraudulently, deceitfully, and in fraud of the provisions of the stat. 5 & 6 Will. 4, c. 76, did personate J. H., whose name was on the burgess-roll, and gave a vote in the name of J. H. at such election, is bad, because it charges no offence either against the common law or against the stat. 5 & 6 Will. 4, c. 76.

3. Form of indictment.

FALSE IMPRISONMENT.

Ibid. Ibid.

1. In an action for false imprisonment, the defendant pleaded that his goods had been stolen, and having cause to suspect the plaintiff of the felony, he gave her into custody, the plea stating several grounds of suspicion. The plaintiff called a policeman to prove that the defendant directed him to take the plain

tiff into custody; and in his cross-examination the policeman said, that, at the same time, and in the presence of the plaintiff, the defendant stated that the goods had been stolen, and also stated some of the grounds of suspicion mentioned in the plea:-Held, that this was evidence for the jury to consider, and from which they might find, that the felony had been committed; and that the defendant had good cause to suspect the plaintiff, if this evidence satisfied them that the facts really were so.

Held also, that, although in this plea the defendant ought to set out his grounds of suspicion, yet that he would be entitled to a verdict without proof of the whole of them, if he proved that a felony was in fact committed, and proved so much of the grounds of suspicion as satisfied the jury that he had reasonable cause to suspect the plaintiff. Williams v. Crosswell, 422 Ibid.

2. Form of plea.

FALSE OATH.

See FALSE ANSWER.

1. The wilful taking of a false oath before a surrogate, to obtain a marriage license, is a misdemeanor; and it is not essential to this offence that any marriage should have taken

In one

1. A., the servant of B., rendered an account to B. of 147. 18. 2d. as due from A. to his workmen, and B. gave A. a check for the amount. All that sum was so due except 78., which A. kept when he got the check cashed, and paid the workmen the residue. count of an indictment for false pretences, it was charged that, by this false pretence, A. obtained the check from B., with intent to defraud him of the same. It was objected that the intent was only to defraud B. of a part of the proceeds of the check. A. was convicted, and the fifteen judges held the con viction right, and that the evidence supported the count. Reg. v. Leonard,

514

2. A. bought cheese of B. at a fair, and paid for it. Before he bought it, B., who was offering cheese for sale there, bored two of the cheeses with an iron scoop, and produced a piece of cheese called a taster at the end of the scoop for A. to taste: he did so, believing it to have been taken from the cheese, but it had not, and was of a superior kind of cheese, and fraudulently put by B. into the scoop, the cheese bought by A. being very inferior to it: -Held, that B. was indictable for obtaining the price of the cheese from A. by false pretences. Reg. v. Abbott,

630 Ibid.

A railway ticket is a "chattel," and the obtaining of it by false pretences from a servant of the company, so as to enable the holder to travel on the line, is an obtaining a chattel by false pretence within the stat. 7 & 8 Geo. 4, c. 29, s. 53. Reg. v. Boulton, 5. Form of indictment.

FALSE REPRESENTATION.

917 Ibid

1. Where the plaintiff made a purchase under the influence of the misrepresentations of the defendant, although a considerable time had elapsed between the misrepresentations and the sale-Held, that the plaintiff was entitled to recover from the defendant, and that it