When, however, the answer sets up affirmative allegations in opposition to, or in avoidance of the plaintiff's demand, the answer is no proof of the facts stated, and the defendant is bound to establish them by independent testimony.

Where a plaintiff filed his bill to reform a deed given by him, alleging that by the deed one hundred feet were conveyed on a certain street, whereas it should have conveyed thirty feet only, and the defendant in his answer admitted that there was a mistake in the deed, but affirmed that the deed should have been for thirtytwo feet-it would seem that the defendant would be bound to establish his allegation by independent evidence.

Equity will reform a mistake made in drawing a deed; and may order a party holding land by a conveyance covering by mistake more than was purchased or intended to be conveyed, to release all claim to that which is unjustly held.

BARTLETT v. HOYT.

Depositions used on former trial— Objections to caption adverse party- Conversion in trover.

Objections of a formal character to a deposition which has been used at a former trial without objection, are to be considered as waived.

Upon the second trial a deposition will not be rejected for want or defect of the caption, when it appears that the party objecting attended at the taking, and made no objection to its use at the former trial.

It is not necessary to be set forth in the caption that the taking commenced at the hour designated in the notice. It is sufficient if it be certified that it was taken at that hour.

It is no ground of objection to the use of a deposition at the second trial that it was filed with the clerk prior to the first, was withdrawn from the files at that trial, not then used, and has never been restored to the files.

When a statement of the adverse party is offered in evidence, and objected to on the ground that it was an offer or proposition for the settlement of a controversy, the preliminary question whether the statement was intended by the party making it as an admission of a fact, and not merely an offer to compromise, may be determined by the court, or in their discretion it may be submitted to the jury, with proper instructions to disregard it, if they find it to have been merely such offer or proposition, and to weigh it as evidence, if intended as such admission.

The plaintiff's hay in the freight-house of a railroad company, in charge of a servant employed to attend to the receipt and delivery of goods there, was taken, through the mistake of the servant, by him and the defendant from the freight-house, and sent away as

the defendant's. Held, that the servant was a competent witness for the plaintiff in an action of trover for the hay thus taken.

Held also, that the action could be maintained without proof of a demand upon the defendant for the hay, although it appeared that the defendant supposed the hay to be his own, and that this was known to the plaintiff.

AUSTIN v. WALKER.

Organization of juries by presiding judge-Questions for jury.

Affidavits cannot be received by this court to show what were the proceedings of the judge who presided at the trial of a cause in empanelling the jury from the list of jurors returned, though the case sent to this court provides, that testimony of that nature may be taken by the parties in relation to his proceedings in that respect, and laid before this court for such purposes as may be deemed legitimate. The statement contained in the case, or in the bill of exceptions allowed, is the only evidence to be considered of the facts involved in the inquiry whether the proceedings of the judge were legal.

Matters within the discretion of the court, in which the cause was tried, will not ordinarily be revised upon a case made for this court for the purpose of determining whether the discretion has been properly exercised.

It is within the discretion of the court to organize the traverse juries from the list of jurors returned, in any manner which the court may deem proper, and to re-arrange and organize them anew at any time, either with or without reference to the trial of a particular cause, there being no statute provisions upon the subject; and this may be done by removing a certain number of the jurors from one jury, and substituting others from the other jury, without motion therefor by either party, and when no cause of challenge exists against the jurors so removed.

It is not the right of either party to have a cause tried by a particular jury, as they may happen to be organized when the cause is called up for trial, although the practice may be to try the causes in their order upon the trial list by the two juries alternately, and, according to that practice, the cause would come in order before that particular jury.

The defendants having invented a stocking loom, and secured the right to the invention by letters patent of the United States, sold to the plaintiffs, for the consideration of $1000, half the right thereto, for all territory without the United States. It was at the same time covenanted between the parties that the plaintiffs should, as soon as practicable, send an agent to Europe for the purpose of exhibiting the invention and selling the looms, and the right to make, use, and vend the same, without the United States; that the

plaintiffs and their agent should make all suitable and proper efforts to dispose of said looms and right, to the best advantage; that if, upon using all proper and reasonable efforts, the plaintiffs and their agent should be unable to sell rights to the amount of $1000, and all the expenses of the agency, then the defendants would repay to the plaintiff's said $1000, and all the reasonable expenses of the agency, or convey to them one half of the right within the United States. The plaintiffs sent one Reynolds to Europe as their agent, who entered into a contract with Brettle & Co. in London, agreeing "to proceed forthwith to Scotland, for the purpose of consulting engineers or men of science, skilled in the construction of machinery of a similar kind, and by all needful experiments, additions, and alterations, so alter and improve the machine, as to enable it, by means of steam-power applied thereto, to manufacture and produce a perfect and entire stocking; and as soon as the machine was so perfected, to deliver it to Brettle & Co., and leave it in their possession two calendar months; that, during said two months, said Brettle & Co. should have the option to become the purchasers of the invention for the sum of fifteen thousand pounds." The plaintiff's brought their action of covenant to recover the $1000, and the expenses of the agency. Upon the pleadings an issue of fact was raised, whether the plaintiff's had given notice to the defendants of their failure to make sales to the amount of $1000, and the expenses of the agency, within a reasonable time after the execution of the covenant. The court instructed the jury that the Brettle contract was not warranted by the covenant entered into between the parties to the suit, and that consequently nothing which Reynolds had done under it could be deemed to have been done in the performance of his agency, so far as the defendants were concerned, unless the Brettle contract was made known to the defendants, and they assented that Reynolds might go on under it, and try to make the alterations required by it.

Held, that the instructions were erroneous, and that the question should have been submitted to the jury to determine, whether, under the circumstances, in the making of that contract, and in the efforts made in pursuance of it to improve the machine, the agent was or not using reasonable and proper efforts to effect sales of the machines and right, as contemplated by the covenant.

Notes of Recent English Cases.

House of Lords. June 16, 1856.

CALEDONIAN RAILWAY Co. v. SPROT.

Railway-Conveyance of land-Reserving of minerals-Right of support.

A Railway Act empowered any proprietor in conveying his land to the company to reserve the minerals, but if he should afterwards work them, he must give security to the company that the railway should not be endangered or interrupted. S. bargained with the company, and conveyed to them a tract of land, reserving the minerals with full liberty to work them, &c., subject to the provisions of the Act. In his claim for compensation, he did not include any estimate of loss, by reason of not being able to work his mines, near or under the railway. Several years after, he discovered a valuable mine under the railway, and finding that he could not work it, without danger to the latter, called upon the company for compensation.

Held, reversing the decision of the Court of Session, that S. could not now claim compensation for loss in not being able to work the mine.

By the Lord Chancellor. The conveyance of the surface of land for a particular purpose, as for a house or railway, gives to the grantor an implied right of support, sufficient for the object contemplated, from the soil of the grantor adjacent as well as subjacent. If no purpose is stated, then such support as is reasonable for the land as it existed at the time of the grant.

June 19.

CALEDONIAN AND DUMBARTONSHIRE JUNCTION RAILWAY COMPANY V. HELENSBURGH HARBOR TRUSTEES.

Act of incorporation — Agreement by promoters not sanctioned by Act.

The magistrates of H. agreed with the provisional committee of a projected railway company to allow the company certain privileges of taking land in the town, and laying rails for a side track to the harbor of H., the company to pay all the expenses of enlarging the harbor, and of obtaining an Act of Parliament for that purpose. The Harbor Act was obtained, and also the Railway Act; in the latter there was no provision authorizing or referring to the previous agreement; and the railway company refused to perform their part, and did not claim performance of the other part.

On a bill for specific performance, brought by the harbor

trustees, held, reversing the decision of the Court of Session, that specific performance could not be decreed, because the railway company had no power to make a harbor, which would be entirely beside the object of their incorporation.

It seems, that Edwards v Grand Junction Railway Company, 1 Rail. Cas. 173; Lord Petre v. Eastern Counties R. R. Co., Ibid. 462, and other similar cases which have followed them, are unsupported in principle; but these cases are distinguished from the present by the nature of the contracts sought to be enforced, which were matters within the scope of the respective charters. (Per the Lord Chancellor and Lord Brougham.)

The custom sometimes adopted by committees of Parliament of omitting special clauses from acts of incorporation on the agreements of the promoters that the objects proposed to be attained by those clauses should in fact be carried out, appears to be illegal and improper.

Evidence

Crown Cases Reserved.

July 2. REG. v. SCOTT.

- Examination of bankrupt — Admissible against him. The Bankrupt Act, 12 & 13 Vict. c. 106, s. 117, enacts that the bankrupt may be examined by the court" touching all matters relating to his trade dealings or estate, or which may tend to disclose any secret grant, conveyance, or concealment of his lands, tenements, goods, money, or debts." And the Act makes it a crime for a trader to mutilate his books under certain circumstances. The defendant was tried for mutilating his books; the evidence against him consisted principally of his own examination in the Court of Bankruptcy; the question of the admissibility of this evidence being reserved. The case was argued before Lord Campbell, C. J., and Alderson and Bramwell, B. B., and Coleridge and Willes, J.J.

Held, that the evidence was admissible; that the act, while creating the offence, also authorized the examination, and compelled the bankrupt to answer; it therefore overruled the general maxim, that no one shall be compelled to criminate himself; and when the answers have been made, they must have all the effect of any other admission or statement of the party, lawfully obtained, and of course, be evidence against him in other courts. If Parliament had intended to protect the party from the consequences of giving his evidence, they would have so enacted, as in several instances cited.

Coleridge, J. dissented, and gave it as his opinion that the examination was only allowed for a specific purpose and in a certain mode, and that it could not be given in evidence upon another occasion upon which a similiar mode of inquiry was not lawful; that an important and long established rule of the common law ought not to be given up unless expressly repealed.