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papers, or any document or written instrument, being, or containing, evidence of the title to any real estate, or any interest in lands, &c. Some other statutes also provide that the offences to which they relate shall not be tried at the session.

X. Depositions-Evidence.-The depositions of a witness taken before a magistrate in a case where he has authority to take them, are evidence in case of the death of the witness, provided the depositions have been duly taken; that is, taken in the presence of the defendant, on the oath of the accuser and witnesses, and reduced into writing, and signed by the witness and justice; in which case the depositions will be admissible, although the witness was not at the time apprehensive of approaching dissolution. And the information of an accomplice duly taken, may, in case of his death, be read in evidence against the prisoner, although it will not be conclusive, unless corroborated by other testimony (R. v. Paine, Salk. 281; 1 Hale's Pl. C. 586; 1 Leach, 502; Archb. Crim. Pl. and Evid. 130, 8th edit.; Reg v. Arnold, 8 Car. and Pay. 621; 11 & 12 Vic. c. 42, s. 17; 18 Jur. 1058; Reg. v. Walsh, 5 Cox's Crim. Cas. 115; Reg. v. Hyde, 3 Id. 90). There is a similar provision in case of the illness of a witness, or of his not being to be found (see Reg. v. Hendy, 4 Cox's Crim. Cas. 243; Reg. v. Scaife, 5 Cox's Crim. Cas. 243; S. C. 17 Law Tim. 152; Reg. v. Ulmer, 4 Cox's Crim. Cas. 442).

XI. Trustees- Fraudulent appropriation of trust moneys. A trustee fraudulently appropriating the trust moneys could not, at common law, be made criminally liable; by 7 & 8 Geo. 4, c. 29, he was rendered liable to punishment if there were a written direction to apply the money, but this not being practically of any utility, the 20 & 21 Vic. c. 54 (ante, pp. 154–156), was passed, by s. 1 of which, trustees fraudulently disposing of the trust property are guilty of a misdemeanor.

XII. Bill of exchange on fictitious person-Acceptance. Where a bill of exchange is drawn, accepted, or indorsed in the name of a fictitious person, this is deemed a forgery, and will support an indictment for forging the bill, acceptance, or indorsement respectively (R. v. Backler, 5 C. and P. 118; R. v. Brannan, 6 Id. 326; R. v. Rogers, 8 Id. 629; see R. v. Nesbitt, 6 Cox, C. C. 320).

XIII. Stealing and false pretences.-In order to convict a man on a charge of obtaining money or goods, &c., by false pretences, it must be proved that they were obtained under such circumstances that the prosecutor meant to part with his right to the property in the thing obtained, and not merely with the possession only; if the prosecutor part with the possession only, and not the right of property, the offence is stealing, i. c.. larceny, and not an obtaining

of goods by false pretences. In other words, where a right of property passes, the offence is not larceny, but a false pretence (R. v. Davenport, A. D. 1826, per Bayley J.; R. v. Savage, 6 C. and P. 143; see 7 & 8 Geo. 4, c. 29, s. 53).

XIV. Libel, remedies for.-A party libelled may proceed in a criminal way either by indictment or information against the author of a libel, or he may obtain redress by a civil action for the injury done to himself (4 Bacon's Abr. 458, 5th edit.; Skin. 123, 124; Com. Dig. tit. "Libel," C. 3; 3 Steph. Com. 448, 2nd edit.). The indictment and civil remedy may both be pursued; but not so the criminal information and an action: if the information is granted, the party is not allowed to bring his action; however, if it is refused, an action may be brought (Wakley v. Cook, 11 Jur. 377; S. C. 16 Law Journ. N. S. Exch. 225).

XV. Criminal informations.--Criminal informations are either against private individuals or magistrates. as to the former, it extends to misdemeanors, but not to treason or felony. Informations are not usually granted for every misdemeanor, but only for gross and notorious misdemeanors, as for libelling or obstructing magistrates in the discharge of their duty, for bribery, riots, batteries, libels, &c., and even for non-repair of a road (11 Jur. 306; 1 Abr. Crim. Cas. 49, 50). So there are many cases of misdemeanors in which the court will refuse a criminal information; as, because the defence does not deserve so severe a proceeding, or the party seeking the information being himself culpable, or because the consequences of such a proceeding would be peculiarly injurious. Informations against magistrates are subject to rules nearly the same as those against private individuals. They are granted for misconduct in discharge of their duties; but it must be shown that they have acted corruptly and illegally. For, where a magistrate appears to have acted with upright intentions, the court will not interfere by information, but will leave the party who thinks himself aggrieved to the more ordinary remedy (2 Burr. 719; 4 Black. Com. 409; Arch. Crim. Plead. and Evid. 71, 8th edit.; 4 Steph. Com. 409, 2nd edit.; 4 Bacon's Abr. 404 et seq., 7th edit.). The application is made to the Court of Queen's Bench. The principal advantage which a client, wishing to proceed for a libel, derives from proceeding by way of criminal information, is, that he can be placed in the witness box, and can deny on oath the truth of the statements in the libel, and can by that method clear his character from the aspersions cast on him.


(Hilary Term, 1858.)

As before stated (p. 222), at the examination in Michaelmas Term last there were twenty-four candidates out of 109 rejected; and we have now to report that at the succeeding examination in the last Hilary Term, out of 98 candidates, no less than twenty-nine were rejected. This completely verifies the prediction we ventured to make that the future candidates would not be less fortunate than their predecessors, especially if they went up in the old spirit of "taking their chance." Of course, some of these were among those rejected in Hilary Term, and their second rejection was doubtless intended as a rebuke to them. It would be better if articled clerks would look at the matter in a serious light, and not as a mere matter of chance. We had hoped to have been able to furnish the actual answers of a passed candidate, but at the last moment we are disappointed. In fact it is as before stated-namely, that after a clerk has passed, he feels no further interest in the examination, and will not take any, even the slightest, trouble in what cannot be any benefit to himself.

The following is the list of the candidates, being under 26 years of age, whom the examiners considered as deserving of honorary distinction of the first class, namely:

1. Matthew Folliott Blakiston, of St. Leonards, Sussex, aged 22, who served his clerkship to Messrs. Poole and Sons, of Kenilworth, and Messrs. Rickards and Walker, of Lincoln's-inn-fields.

2. Barnard Platts Broomhead, of Sheffield, aged 23, who served his clerkship to Mr. Henry Broomhead the elder, of Sheffield, and Mr. Charles Fiddey, of Harcourt-buildings, Temple.

3. Henry Wrigley, of Oldham, aged 23, who served his clerkship to Mr. Henry Radcliffe, of Oldham, and Mr. George James Murray, of Oldham.

4. Frederick Hall Robarts, of Stamford-hill; Middlesex, aged 22, who served his clerkship to Messrs. Cree, Law, and Comyn, of Bush-lane, City.

The Council of the Incorporated Law Society have accordingly awarded the following prizes of books:-To Mr. Blakiston, the prize of the Honourable Society of Clifford's-inn; to Mr.. Broomhead, one of the prizes of the Incorporated Law Society; to Mr. Wrigley, one of the prizes of the Incorporated Law Society; and to Mr. Robarts, one of the prizes of the Incorporated Law Society.

The examiners have also certified that the following candidates passed examinations nearly equal to those who have been reported for prizes:

1. Henry Laurence Baker, of Abergavenny, aged 24, who served his clerkship to Mr. Thomas Baker, of Abergavenny, and Messrs Fallows and Son, of Piccadilly, London.

2. Thomas Wildman Barker, of Kirkby Lonsdale, aged 24, who served his clerkship to Mr. Thomas Eastham, of Kirkby Lonsdale.

3. Frederic Thomas Hall, of 6, Crescent, Camdenroad, aged 22, who served his clerkship to Mr. Samuel Denton, of Gray's-inn-square.

4. Ralph Howard, of Stockport, aged 24, who served his clerkship to Messrs. Coppock and Oldham, of Stockport.

5. Henry Edward Mason, of Louth, aged 22, who served his clerkship to Messrs. Allison, of Louth. 6. Frederic William Thorowgood, of Totteridge, Herts, aged 21, who served his clerkship to Messrs. Whatley and Dryland, of Reading, and Messrs. Sudlow, Torr, Janeway, and Tagart, of Bedford-row, London.

By order of the Council,

ROBERT MAUGHAM, Secretary. Law Society's Hall, 28th Jan., 1858,

The following candidates have been informed by the direction of the examiners, that their answers to the questions were highly satisfactory, and would have entitled them either to a prize or a certificate of merit, in case they had been under the age of twenty-six

1. Charles Bean, articled to Mr. Thomas Oldman, of Gainsborough, and Robert Toynbee, of Lincoln. 2. William Emsley, jun., articled to Mr. Bertie Markland, of Leeds.

3. Edwin Howard, articled to Mr. Leonard Hicks, of Gray's-inn-square.

4. Archibald Scott Lawson, articled to Mr. G. L. P. Eyre, of John-street, Bedford-row.

5. Richard Henry Peacock, articled to Mr. W. H. Trinder, of John-street, Bedford-row.


Much comment has been made on the unlucky slip in two different sets of questions under the head of "Equity," in mentioning subpoenas to appear and answer they having been long since abolished. It certainly affords some show of argument for asking the examiners to be lenient to any candidate who may make a similar lapsus. It will also be seen that some of the questions are such as to try the memory to an extraordinary extent, especially those relating to the dates of many acts of Parliament, and the amount of fees payable on the various proceedings in bankruptcy. It shows how much is required from

candidates, and, if the latter were wise, they would exert themselves in earnest to meet the requirements of the examiners.



A Concise Treatise on the Principles of Equity Pleading: with Precedents. By C. Stewart DrewRY, Esq., of the Inner Temple, Barrister-at-Law. London: Butterworths.

We find that articled clerks have been warmly. disputing the question whether they ought or not to make a portion of their legal curriculum the not very simple matter of common law pleading; and if that branch of learning is thought indispensable, we think equity pleading may put in a similar claim. Indeed, there can be no doubt that pleading, like every other branch of the law, should be studied; but the question is, can this be really done by articled clerks without their neglecting other and more useful matters. If, however, a knowledge of equity pleading be desired by any of our readers, we can refer them to the above work for a very simple and concise outline. Indeed, it may be a question whether the author has not done himself injustice by making his work so very elementary as to render it useless for all but mere students. He states in his preface that a want has been felt among the younger members of the profession and students of a concise exposition of the principles and general rules of equity pleading, and he has accordingly endeavoured to supply this want.

The work contains ten chapters, treating (shortly): Of the parties to a suit; of the modes of instituting a suit in equity; of the defence to suits by demurrer ; of pleas; of answers; of amended bills; of revivor and supplement, and of supplemental bills; of interlocutory applications; of the proceedings in going into evidence; and of appeals. There is also an appendix containing precedents of bills, demurrers, pleas, answers, and petitions.

We now give a specimen of the work to enable our readers to form some idea of Mr. Drewry's labours :


"The most usual course of defence to a bill is by answer. An answer may be either voluntary or compulsory. It is voluntary, if no interrogatories being filed by the plaintiff, the defendant nevertheless is advised to put in a counter statement to the bill. It is compulsory, if interrogatories are filed by the plaintiff. As all the rules of pleading which apply to a voluntary answer, apply also to a compulsory answer; and as the latter is in addition regulated also by some special rules, it will be

sufficient to discuss the rules of pleading affecting a compulsory answer.

"The function of an answer is twofold; to give discovery by specific answers to all the questions put by the interrogatories filed in aid of the bill; and to aver all such original matter as the defendant may have to put forward for making a case, which, if true, destroys the equity of the plaintiff's case, even though all or some of the plaintiff's allegations may be true.

"The principal technical requisite of an answer is what is termed sufficiency; by which is meant, that it must distinctly answer every interrogatory. It may admit or deny, or it may ignore the facts alleged and interrogated to; or it may state a different state of facts (provided they are relevant to the interrogatory), wholly or partially destroying or qualifying the allegations of the bill; and subject to that statement of facts, the answer may admit, deny, or ignore the matters inquired after; but in one or other of these forms it must meet the interrogatories.

"By way of example: suppose a bill to allege that the plaintiff deposited £100 in the hands of B., as his agent, for the purpose of purchasing therewith a cargo of silk.' The interrogatory would be 'whether the plaintiff did not deposit £100, or some other and what sum with B., and whether or not as his agent, or in any other and what character; and whether or not for the purpose of purchasing a cargo of silk, or for some other and what purpose.'

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'Now, an answer to that interrogatory would be sufficient if it admitted the whole facts as alleged; or if it denied the whole of them; or if it averred that the defendant was wholly ignorant respecting every one of them; of course in each case repeating or traversing the very words of the interrogatory. So it would be sufficient if it admitted that the plaintiff did place in B.'s hands £100 for the purpose of purchasing a cargo of silk; and then went on to aver circumstances negativing agency, and concluded by saying that, save as aforesaid,' the defendant denied the placing in the hands of B. the sum of £100, or any other sum, as his agent; or, save as aforesaid, otherwise for the purpose of purchasing a cargo of silk, or for any other purpose.


So, referring to the most common subject of insufficiency in answers, viz., the answer to the charge of possessing books and papers. interrogatory usually is of this kind, whether the defendant has not in his possession divers or some and what deeds or a deed, maps or a map, letters or a letter, &c., going through a variety of other documents, or other documents or a document.' Now, suppose the defendant has deeds and a letter, but no maps; a sufficient answer would be, 'I have in my possession the deeds and the letter referred

to in the schedule; and, save as aforesaid, I deny that I have in my possession any deeds or a deed, maps or a map (and so on, traversing every word used in the interrogatory), or any documents or document.' But if the answer were 'I have the deeds and the letter referred to in the schedule, but, save as aforesaid, I deny that I have any maps, &c., omitting the general word documents, the answer would be insufficient; because to say that, save in so far as you have deeds, you have not maps, is not an answer whether you have or have not maps; for the word deeds does not necessarily cover or include maps. But a map is a document; and therefore, if you say you have no documents except deeds, you do say that you have no maps. "These examples will sufficiently make clear, I apprehend, what is meant by a sufficient answer.'

"When a bill mixes up, as it often does, in one paragraph, matter which the defendant can partially admit and partially deny, or admit or deny with qualifications, it is very difficult to answer the interrogatory specifically; and then the method of answering above referred to, by first stating the defendant's own account of the transaction, and subject thereto, admitting or denying the whole allegation, is convenient and usually adopted, but it requires care, because, as I have observed, if the matter stated as an original allegation of the answer, does not cover or include the matter inquired after, the traverse of the interrogatory' save as aforesaid,' is not an answer.

"The penalty for insufficiency in an answer is, that the plaintiff may except to it; that is, submit to the court that the questions are not answered; and if the plaintiff's suggestion is adopted by the court, the defendant then has to pay the costs he has occasioned by the contest, and to put in a further and better answer.

"It must be observed, however, that although the rules as to the sufficiency of an answer are exactly the same as they were before the 15 & 16 Vic. c. 86, the temper of the judges in dealing with them is very different; and the effect of certain powers given by that statute renders excepting to answers in most cases useless; consequently counsel of experience never except to answers upon merely technical insufficiency, and only do so in very exceptional cases of substantial insufficiency. Before the statute referred to, a defendant could not be examined orally at all, nor, before the cause was at issue, even upon nterrogatories; nor could any production of papers be obtained from him except upon the admissions in his answers. But the statute has made some important alterations in practice. One is, that a plaintiff may now either cross-examine the defendant on his answer, treating it as an affidavit, or may examine

him in chief. And it is obvious that a defendant, inclined to fence with the truth, can be much more readily compelled by oral examination to state the truth than he can upon written interrogatories, the answers to which, after he has settled them at leisure, are ultimately framed with all the skill of experienced and astute counsel. When, therefore, a defendant evades a question of substance, it is in general more advantageous, more expeditious, and less costly to the suitor to examine the defendant orally, than to except to his answer and obtain a further answer.

"With regard to exceptions on merely technical insufficiency, when the defendant has substantially answered, it is sufficient to say that the judges view them with great distaste and displeasure, as an abuse of the pleadings of the court, and that counsel of experience never take them."

On the whole, it appears to us that, keeping in view Mr. Drewry's design-namely, to produce a work on equity pleading for the information of students he has successfully accomplished his proposed object; and we have no doubt that a reader of ordinary intelligence may make himself completely master of the whole work in a very short space of time, and will thereby gain a good general notion of equity pleading, which is all we believe that the generality of articled clerks care about.


Regula Generalis-Hilary Term, 1858.-Whereas, by the rule of Michaelmas Term, 1855, with respect to indorsements on writs issued under the Bills of Exchange Act, 1855, it was, amongst other things, ordered, "that no other claim than a claim on a bill of exchange or promissory note should be included in writs under the Summary Procedure on Bills of Exchange Act, 1855:"

And whereas it is expedient that the said rule should be explained and amended :

It is hereby ordered, that where a defendant obtains leave to appear according to the said act, and enters appearance to any such writ, according to the said rule of Michaelmas Term, 1855, the plaintiff may include in his declaration, together with a count on the bill of exchange or promissory note (as the case may be) a count upon the consideration, if any, between the plaintiff and defendant, for the bill of exchange or promissory note, and deliver a particular of demand accordingly.

Alien-Devise to trustees, in trust for an alien, will (per M. R.) be enforced for the benefit of the Crown, and Rittson v. Stordy, 1 Jur. N. S. 771, not followed (Barrow v. Wadkin, 3 Jur. N. S. 679).


(Continued from p. 259).

Of the distinction between local and transitory actions-Privity of contract and of estate. It seems to be rather an indistinct criterion of the locality to refer it as Blackstone (3 Com. 294) does to the "plaintiff's suing for damages, &c., affecting land." For, if the lessor brings an action of debt for rent, or repairs, &c., against the lessee, or the assignee of the lessee, he equally sues for damages, &c., affect-. ing land, and yet they are not equally local actions. The distinction between transitory and local actions, is founded on the distinction which the law takes between privity of contract, which is personal, and therefore transitory, and privity of estate, which is not personal, but local. Thus, if an action of debt or covenant for rent, or repairs, &c., is brought by the lessor against the lessee, this is a transitory action, and may be brought in any county; but, if brought by the lessor against the assignee of the lessee, the action is then local, and must be brought in the county in which the land lies, and in no other. Why? Because between the lessor and the lessee there is privity of contract, which is always of a transitory nature. Debita et contracta sunt nullius loci. But, if the lessee assigns the term, and afterwards the lessor brings an action of debt for the rent arrear, against the assignee, the action is then brought in respect of the land, upon the privity of estate alone, and not of contract. For the privity of contract, which subsisted between the lessor and the lessee, was destroyed by the assignment. And so it is where the assignee of the reversion brings the action against the lessee, or the assignee of the lessee, for the same reason. For the statute 32 Hen. 8, only transfers the same privity to the assignee of the reversion, which the lessor himself had or might have had; and which, after assignment, is therefore privity of estate alone, and not of contract. And so, again, on the other hand, if an action of covenant is brought by the lessee against the lessor, it is founded in the personal privity between the parties, and is therefore transitory; but if brought by the assignee of the lessee, or against the assignee of the reversion, the privity of contract being determined by the assignment, the action is founded in the privity of estate alone, and is consequently local; and yet, in both cases, the plaintiff sues for damages, &c., affecting land.

Heriots and heriot-service.-Again, in treating of the recovery of heriots, Blackstone says, "As for that division of heriots, which is called heliot-service, and is only a species of rent, the lord may distrain for this as well as seise" (3 Com. 15). Now the heriot-service which is reserved by deed, is only a

species of rent, and, therefore, the law allows it to be recovered as such, by the usual remedies of distress, or action of debt, or covenant; but it does not follow, that it may be also seised as a heriot which is due by custom. On the contrary, the heriot-service, which may be either scised or distrained for, at the lord's discretion, is that which is due by ancient tenure (having been created before the statute of quia emptores), and not that which is due, like rent, upon a reservation in a grant or lease, &c. The distinction, in few words, is this: the heriot-service which is due by deed, and which is only a species of rent, lies in rendre alone; heriotcustom in prendre alone; and heriot-service, which is due "by tenure," in both rendre and prendre (see 2 Saunders, part 1, c. 59; First Book, 202).

Fee-farm rent.-Quære again, whether, in its present acceptation, the meaning of a "fee-farm rent," is not rather to be referred to the perpetuity of the rent than to the quantum (2 Conım. 43, and see the etymology of "farm," v. 2, p. 318). For is not every rent or service, whatever the quantum may be, which has been reserved upon a grant in fee, a feefarm rent (see the note 235 to Co. Litt. 144 a).

Rent, &c., pur autre vie.-Quære again, if a rent, or other incorporeal hereditament, is granted pur autre vie, and the grantee dies in the lifetime of the cestui que vie, whether such rent, or the like, will be thereupon determined, as Blackstone apprehends (2 Comm. 260); or whether, on the contrary, since the statutes 29 Car. 2, c. 3, and 14 Geo. 2, c. 20, it will not be held to continue in the grantee's representatives (see 3 P. Williams, 264, in the note; Barnardist. Rep. in Ch. 46; Kendal v. Miefield). Since Blackstone's time, it was decided, that when the grantee of a rent-charge pur autre vie dies during the life of the cestui que vie, it will go to his executors, although executors are not named in the grant (Bearpark v. Hutchinson, 7 Bing. 178; Tudor's R. P. 33; Burt. Comp. pl. 730, 1127; Doe v. Lewis, 9 M. and W. 662).

Prescription for what cannot be raised by grant.— Again, in treating of title by prescription, Blackstone says, "A prescription cannot be for a thing that cannot be raised by grant-as for a toll, for example: for as such claim could never have been good by any grant, it shall not be good by prescription (2 Com. 265). It is generally true; first, that every prescription presupposes a grant to have existed, however, it is to be remarked that the doctrine, that prescription presupposes a grant, is not to be understood in a literal sense, but only as a presumption of law; in the same manner as it is said non user presupposes a release. It is not, that the courts always really believe that such grant, or such release, were ever actually executed; but, for the sake of the

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