THE LAW OF PAWNS OR PLEDGES. A PLEDGE is defined by Sir William Jones, in his Essay on the Law of Bailments, to be "a bailment of goods by a debtor to his creditor to be kept until the debt is discharged;" and Lord Holt, in Coggs v. Bernard (2 Lord Raym. 903), defines it as "the delivery of goods and chattels to another as a pawn, to be security for money borrowed of him by the bailor." In our language, the term pawn or pledge is ordinarily confined to personal property; and where real or personal property is transferred by the conveyance of the title as a security, it is commonly called a mortgage. A mortgage of goods is distinguishable from a mere pawn. By a grant or conveyance of goods in mortgage the whole legal title passes conditionally to the mortgagee; and if the goods are not redeemed at the time stipulated, the title becomes absolute at law, although equity will interfere to compel a redemption. But in a pledge, special property only passes to the pledgee; the general property remaining in the pledger. Besides, possession is of the essence of a pledge, whereas in the case of a mortgage the property passes by the con veyance. A pledge is ordinarily of goods and chattels, but it may also be of money, debts, negotiable instruments, choses in action, and, indeed, any other valuable things of a personal nature, such as patent rights, inanuscripts and other existing rights: (Kemp v. Westbrook, 1 Ves. 278.) By the pledge of a thing its accessories also become liable for the debt; as if a flock of sheep are pledged, the young afterwards born are also pledged. But in order to make a valid pledge at law, the principal subject matter must at the time be in existence. of the thing itself or for damages at his elec- pass as money: (Truetell v. Barenden, 8 Taunt. The rights of the pledgee are co-extensive with the contract of the parties, and not beyond. And the existence of a former debt due to the pledgee will not authorize him to retain the pledge until that debt is paid, when it was put into his hands expressly as a security for another and distinct debt: (Green v. Farmer, 4 Burr. 2,214.) And the same rule applies to a subsequent debt or loan, contracted by the pledger; for in such a case, the new debt or loan will not be deemed to attach to the pledge, so that the pledgee may retain it for such debt, unless there be some evidence that the new debt was contracted upon the credit of the pledge. But, on the other hand, if several things be pledged for the same debt, and one of them be lost The right of the pawnee to use the pledge without default in the pawnee, the residue are seems to be governed by the following rules :liable to be detained for the whole debt: (Bac. 1st. If the pawn is of such a nature that the Abr. Bailment B.) And interest due in re- due preservation of it requires some use, there spect of the debt secured is chargeable upon such use is not only justifiable,, but it is indisthe pledge, though there be no express agree-pensable to the faithful discharge of his duties. ment to that effect. 2ndly. If the pledge is of such a nature that it will be worse for the use, as clothes deposited, or the like, there the use is prohibited: (Coggs v. Bernard, 2 Ld. Raym. 909.) 3rdly. If the pledge is of such a nature that the keeping of it is a charge upon the pawnee, as in the case of a cow or a horse, there the pledgee inay milk the cow or ride the horse, by way of recompense for the keeping: (ib.) 4thly. If the use be indifferent, and will do the pledge no harm, such use will be allowed: (Jones on Bail. 81.) 5thly. Though the use be without injury to the pledge, yet, if thereby it is exposed to extraor dinary perils, the pledgee uses it at Lis peril, and will be liable for any loss or damage that may happen to it: (Story on Bail. 330), and the better opinion seems to be that in such a case the use is altogether interdicted. The right to sell the pledge depends upon the contract of the parties; but, in the absence of any express agreement on that point, the law gives to the pledgee a right to sell upon default in payment by the pawner according to his engagement. If there is no stipulated time for the payment of the debt, but the pledge is for an indefinite period, the pawnee has a right, upon request, to insist upon a prompt fulfilment of his engagement; and if the pawner If the pledger has only a limited time to the neglects or refuses to comply, the pawnee may, thing, as for life, or for years, he may still upon demand and notice to the pawner, require pawn it to the extent of his title; but when the pledge to be sold, unless in the meantime that expires, the pledgee must surrender it to the latter exercise his right to redeem, which the person who succeeds to the ownership: continues until actual sale: (Story, 308; (Hoare v. Parker, 2 T. R. 376.) And the same Polhonier v. Dawson, Holt, N. P. 383), or he rule applies to any other special, interest or may sue for his debt, retaining the pledge as a property in a thing; such, for example, as a security: (Bac. Abr., Bailment B.) And if the lien or a right by a former pledge, which may things pledged are insufficient to pay the whole be again pledged to the extent of such right debt, the surplus constitutes a personal charge or lien, although not beyond it: (Story, Bail.on the debtor, or other contracting party, and Until the thing is delivered there is no pledge, and the whole rests in executory contract, however strong may be the engagement to deliver it; and the pledgee acquires no right of property in the thing. But the delivery may be either actual or constructive. There need not be an actual manual delivery of the thing. It is sufficient if there are any of those acts or circumstances which, in construction of law, are deemed sufficient to pass the possession of the property. Thus, goods at sea may be passed in pledge by the transfer of the muniments of title, as by the transfer of the bill of lading, or by a written assignment, which, however, would be more in the nature of a mortgage. So goods in a warehouse may be transferred by the symbolical delivery of the key: (Atkinson v. Maling, 2 T. R. 462.) And so also, if the pledgee has the thing already in his possession, the mere contract makes the pledge complete. Possession being of the essense of a pledge, it follows, that if the pledgee delivers back the thing pledged to the pawnor, the lien upon it is at an end. However, if the thing is delivered back for a temporary purpose only, and upon the understanding that it is to be re-delivered back to the pledger after such purpose is accomplished, the real possession continues in the pledgee, and the pledge continues good: (Roberts v. Wyatt, 2 Taunt. 268.) The pawnee by virtue of his pledge acquires a special property in the thing pledged, and is entitled to the exclusive possession of it during the time, and for the objects for which it is pledged: (Jones on Bail. So.) If the owner wrongfully repossess himself of the pawn, the pawnee may maintain a suit for the restitution may be recovered accordingly: (South Sea The pawn is only a collateral security, and The right of the pledgee is, however, strictly confined to a sale; and he cannot appropriate the property to his own use upon the default of the pledger, even if there be an express agreement to that effect: (2 Story Eq. Jur. 1,008.) And upon a sale he cannot himself become a purchaser, as that would be against public policy. | The contract of pledge being for the benefit of both parties, the law requires that the pledgee shall use ordirary diligence in the care of the pledge, and he will be answerable for ordinary neglect: (Coggs v. Bernard, 2 Ld. Raym. 909.) And the true criterion of his Tiability seems to be, whether the loss, whether by theft or otherwise, might have been prevented by ordinary care and diligence on the part of the bailee. If the pawnee does any act inconsistent with his duty, he thereby makes himself responsible for all losses and accidents., If, therefore, the pawner makes a tender of the full amount of the debt for which the pawn is given, and the pawnce refuses to receive it, or to redeliver the pledge, the special property which he has in it is determined, and he is henceforth treated as a wrongdoer, and the pledge is at his sole risk: (Coggs v. Bernard.) The liability of the pledgee ceases as soon as he delivers the pledge back to the owner; and if the party who pledges the goods was not the | real owner, and has no right to the pledge, a On the other hand the pledgee cannot, ex- delivery to the real owner will protect the cept on the default of the debtor, sell or other-pawnee: (Story on Bail. 340.) wise alienate the property absolutely, nor beyond the title actually possessed by him: (Pickering v. Bush, 15 East, 38.) But if the pledge is of mere current coin, or of a negotiable security, capable in its own nature of passing by delivery, then if the pledgee sells it to a bona fide purchaser without notice, the latter acquires an absolute property in the pledge. For in a concurrence of equal rights, he who has trusted the party, and enabled him to impose upon another, shall be bound by his acts: (Collins v. Martin, 1 Bos. & Pul. 143; Peacock v. Rhodes, Doug. 633.) But if a negotiable note, or other security, contains on it any intimation that it belongs to another person, or that it is for his use on account, the holder cannot effectually pledge it for his own use; and the rule itself only applies to cases of securities which The limits of the present article will not allow us to enter upon the consideration of the statutable enactments regarding the right of factors to pledge, or the peculiar provisions relating to pawnbrokers, and we therefore defer the discussion of those branches of the subject for the present. SHOULD A PARTY BE BOTH ADVO- Ir has been decided by the Court of Queen's opinion that such was the law, they expressed a strong opinion as to the propriety of the practice it sanctioned. The rule and the practice are new, and require consideration; and perhaps the intervention of the Legislature to reconcile expediency and propriety with the law as altered by recent legislation. Until the recent changes in the law of evidence, a party to any cause was not a competent witness, and the objection of his acting as advocate could not, therefore, arise. Professional advocates rarely have any personal knowledge of the facts of the ease, and therefore the question in their case cannot be of much practical importance. But now that all objection to the competency of a witness, on the ground of interest, has been removed, there is often great temptation for a party to an action to be both advocate and witness, and thus save as much as he can of the expenses of litigation. It becomes, therefore, material to consider whether such a practice be consistent with the due administration of justice or not. And we do not hesitate to express an adverse opinion. In the County Courts the practice may, in many instances, be comparatively innocuous, since the cases are simple, and the judge decides all questions, whether of law or fact. But, in the Superior Courts, and in jury cases before inferior tribunals, the practice appears to us to be pregnant of most mischievous consequences. Let us suppose a plaintiff appears in person, tells his story as an advocate, and comments upon the facts, having necessarily the same latitude as any other advocate. He then is sworn, and states, as awitness, as many of the facts already detailed to the jury as he can prove, or may suit his own case. The defendant then appears by counsel or attorney, who addresses the jury and calls witnesses. Upon this the plaintiff has a right to reply. But he is.now sworn as a witness in the cause, and the jury will necessarily give credit to what he says as af said upon oath. He is, nevertheless, free from its restraints, and can plead the rights of an advocate if indicted for perjury. He may give hearsay evidence, and who is to stop him? He has a right to comment upon the defendant's case, and the objectionable evidence is already before the jury, and the mischief done before the opponent has sufficient grounds of objection. And even when a party-advocate appears strictly in his character of a witness, rules of evidence are useless, as the proof takes the form of a narrative, and not that of question and answer. In an ordinary examination the question foreshadows the answer, and the objection is taken to the question itself; so that the answer, if not proper evidence, is excluded from the jury. If there are no questions, evidence is heard by the jury before its character is known, and the opportunity given to exclude it. In this manner injustice may be done, and all the rules of evidence practically abolished. The remedy is simple, and it consists in a simple enactment that no person acting as advocate in any cause shall be admissible as a witness in such case in his own behalf, or in behalf of the party for whom he appears. LATE CASES ON THE LAW AND PRACTICE OF THE COUNTY COURTS. (a) 20. Cases on Questions respecting New Trial. BEFORE referring to the special provisions contained in the statutes expressly relating to the County Courts, and to the rules of practice made in pursuance of them, for regulating the practice as regards granting new trials in cases which have been tried before a County Court, it will be desirable to inquire into the leading principle which has guided the Superior Courts in granting new trials in general cases. As regards this subject, it may be laid down that whenever it satisfactorily appears to the court that complete justice has not been done between the parties at Nisi Prius, whether owing to the mistake of the judge, or the mistake or (a) By GEORGE HARRIS, Esq., Barrister-at-Law. proceed, or the document to be read, from whatever cause, he cannot afterwards claim a new trial on this ground: (Melin v. Taylor 2 Hodg. 3.) And it is the same, where having taken the objection, he declines to insist upon it: (Shirley v. Matthews, 1 Jur. 57.) So if by any inadvertence or want of attention on behalf of the counsel, a document improperly stamped has been read, the objection cannot be taken, nor where by the rules of evidence, a written instrument ought to have been produced, and was not, but no objection was made at the trial: (Jones v. Howell, 4 D. P. C. 176.) That the evidence given goes beyond the particulars of demand or set-off, is an objection which must in like manner be made at the time, and comes too late after the witness has left the box, though before the verdict is given: (Abbot v. Parsons, 7 Bing. 563.) And it is an inflexible rule that no new trial will be granted on an objection of this kind which might have been, but was not, taken at the trial, or on a point not raised there (Webb v. Fairmaner, 6 D. P. C. 549), because, if it had been taken, the opposite party might have been satisfied or explained it: (Doe v. Needs, 2 M. & W. 129.) misconduct of the jury, sheriff, or other offic of the court, or by means of any stratagem or ill practice of the successful party, or in consequence of the party defeated being taken by surprise as to the point intended to be raised, or the evidence adduced, or from any other cause, not being the result of negligence or misconduct on the part of him who has failed, the verdict so obtained will be set aside, and the cause submitted to a second trial: (Lush. Pract. 530.) The practice of granting a new rule was substituted for the bill of exceptions, and therefore a new trial will not be granted where a bill of exceptions has been tendered on the same point, unless the party undertakes to waive the exceptions: (Fabrigas v. Mostyn, 2 W. B. 929.) But while the latter is a proceeding of right, and is limited to the rejection or admission of evidence, or to misdirection, | or other mistake of the judge, the former is addressed to the discretion of the court, to be exercised upon a review of all that has taken place, and to be governed by sound and equitable principles; and hence a motion for a new trial has been denominated a direct appeal to the justice and laws of the country: (Calcraft v. Gibbs, 5 T. R. 19.) In granting it, the In general, a conviction of the witness for courts have no limitation other than that which perjury, founded on the evidence he gave, will is prescribed by public policy, as defined by the entitle the party to a new trial, but nothing established practice of the court. Nor will short of a conviction, not even the finding a they hesitate to grant a second or a third trial, bill by the grand jury, unless it appears that if it appears that the purposes of justice will the whole story was a fiction, and that the witbe thereby promoted; but where the objection nesses were suborned: (Fabrilius v. Cock, is to the conclusion the jury have come to, and 3 Burr. 1771.) Much less will the court grant a second verdict has been given the same way, a new trial upon affidavits showing that the neither being perverse, the courts are unwilling testimony given was false: (Proctor v. Simto send the cause down again: (Foster v. Al-mons, 9 Moore, 581; Feize v. Parkinson, lenby, 5 D. C. P. 619; Swinnerton v. Marquis 4 Taunt. 640.) But proof by the witness that of Stafford, 3 Taunt. 232.) On the other hand, he had been mistaken in a material point, has however valid the objection may be, a new trial been holden sufficient: (De Gion v. Doren, will not be granted, if the court is satisfied 2 Ans. 517.) In asking for a new trial on the that on the whole justice has been done : (Ed-ground of surprise, it is not sufficient to state mondson v. Machell, 2 T. R. 4. The most common and ordinary ground on which new trials are applied for and granted, is the improper rejection of evidence. Nor is it any argument against a new trial on this ground that the evidence, if received, might have been explained away, or should have had no weight against the preponderating proofs on the other side. The principle thus laid down in Doe v. Tyler, 6 Bing. 561, has, however, been declared much too general, and it is settled that the court cannot so far assume the functions of the jury, as to determine what weight the evidence rejected would or ought to have had upon them. In some cases, no doubt, the court may refuse a new trial, when the witness has been improperly rejected, as where the fact which such evidence was to establish was proved by another witness and not disputed, or where, assuming the rejected evidence to have been received, a verdict in favour of the party for whom it was offered, would have been clearly and manifestly against the weight of evidence, and certainly set aside, upon application to the court, as an improper verdict. We cannot say, however strong our opinion may be on the propriety of the present verdict, that if the case had been received, it would have no effect upon the jury; nor that it is clear beyond all doubt, if the verdict had been for the defendant, that it therefore there must be a new trial: (per would have been set aside as improper, and Parke, B., in Crease v. Barrett, 1 C. M. & R. 919.) It is only where the evidence is deemed admissible for the purpose for which it was tendered, that the objection forms a valid ground for relief; the courts will not grant a new trial in order that it may be given for a purpose not stated at Nisi Prius, for in such case the fault lay with the party, and not with the judge: (Rex v. Grant, 5 B. & Ad. 1081.) Another ground for granting a new trial is the improper reception of evidence in the first. This supposes that the evidence so admitted was objected to at the proper time, for it is an unexceptionable rule that if the party against whom it is offered suffers the examination to that charges of perjury and forgery were for the first time imputed to the defendant at the trial, and that, being thus taken by surprise, he had not an opportunity of rebutting those charges, and establishing his case, but the party applying must show affirmatively that he has additional evidence to offer, with which he was not prepared at the trial: (Volant v. Soyer & Symonds, 20 L. T. 208.) Where it is clear that one side or the other has committed perjury, the court will not disturb the finding of the jury: (Soloman v. Todd, 22 L. T. 135, C. P.) As regards the value of the evidence received, the rule is the same as that just stated as to the rejection. Where some parts of the evidence received are inadmissible, and others admissible, the court has not the means of referring the verdict to those parts only which were properly admitted: (Rex v. Sutton, 4 M. & S. 544.) And therefore, unless it is clear beyond a doubt that such evidence did not weigh with the jury in forcing their opinion, or that the verdict, if given for the opposite party, must have been set aside as against evidence, a new trial will be granted: (Baron de Rutzen v. Farr, 4 Ad. & Ell. 53.) If the jury have been misdirected as to the law, this entitles the party who has suffered thereby, to a new trial. Misdirection consists in the misstatement to the jury of some legal principle involved in the case, or submitting as irrelevant, or not warranted by the evidence; the basis of their verdict, questions immaterial, and as the juries are bound to take their law from the court, the presumption is that they have done so, and unless it be quite clear that the result must have been the same, if the proper questions had been put, or the law rightly stated, a new trial will be granted: (Lush's Prac. 534.) But the observations of the judge in summing up, on different parts of the evidence, whether too strong or too weak, do not constitute a misdirection, provided the whole case was fairly left to the jury: (Attorney-General v. Good, M'C. & Y. 286.) Nor the omission of any part of the evidence, for that should have been pointed out to him at the time: (Robinson v. Gladone, 2 B. N. C. 156.) If a judge at a trial leaves as a fact for the jury to determine any matter which he should decide as a point of law, the counsel should interpose and tender a bill of exceptions, otherwise, if in the opinion of the court the jury decide the question left to them correctly in point of law, the judge's misdirection is no ground for a new trial: (Doe dem. Strickland v. Strickland, L. J. C. B. 89.) Where a judge in summing up to the jury, mistakes the law upon a collateral point, upon which a bill of exceptions would not lie, a new trial will not be granted as of right, but the court will exercise its discretion according to its opinion of the result being in accordance with the justice of the case: (Black v. Jones, 20 L. J. 152, Ex.) In an action upon the case. for maliciously prosecuting the plaintiff for stealing timber, at the close of the plaintiff's case, the defendant called upon the judge without any other alternative either to nonsuit the plaintiff, or to tell the jury that the defendant had probable cause for instituting the prosecution, and to direct them to find for the defendant. The judge declined to do so, but left it to the jury to say, if on the whole evidence they believed that the defendant had not probable cause for the prosecution. The jury having found a verdict for the plaintiff, it was held, that, although according to Paxton v. Williams (2 Q. B. Rep. 169), the judge was wrong in leaving the question of probable cause to the jury, yet that the defendant having required him to withdraw from the jury all consideration of the facts, and himself to determine upon the evidence, and upon the inference of fact to be drawn from it, was not entitled to set the verdict aside aside on the ground of misdirection: (Mothersall v. Neale, 13 Ir. Com. Law Rep. 182, Ex. Ir.) The discharging the jury on a material issue without consent, is another ground for a new trial, arising from a mistake of the judge. And if the jury have been improperly selected, or convened by a party interested, as if the under-sheriff were the attorney of the opposite party, and the other were not aware of the fact at the time of trial, this will be a ground for setting aside the verdict: (Baylis v. Lucas, Cowp. 112.) If the jury, being divided, determine their verdict by lots, even though it be in accordance with the evidence and the opinion of the judge (Hale v. Cove, 1 Str. 642), or if they accept refreshment from the successful party or be found, one or more of them, to have procured himself to be summoned on the trial, or to have expressed a purpose to favour the party succeeding, or be guilty of any other act of misconduct or partiality, which casts a suspicion on the verdict, the court will grant a new trial. Where the judge, while summing up in favour of the one party, was stopped by the jury, who declared themselves satisfied, and immediately found a verdict for the other, the court set it aside: (Gainsford v. Blachford, 6 Price, 36.) for its satisfaction: (Johnston v. Todd, 5 B. 597). Where there has been a great mass of evidence left to a jury, and it has been left in a manner not to be complained of, and there is no reason to suppose any desire on the part of the jury but an anxious one to discharge their duty, it is a matter of nice discretion to grant a new trial on the ground of the verdict being against evidence, unless the court think that the jury committed an error in that which is, ordinarily their exclusive duty. Although such discretionary power has been established by the practice of the judges within a very recent time, yet it is one that will be carefully exercised upon great deliberation: (Kincaid v. Willis, 14 L. T. 505, Q. B.) Where either party has been taken by surprise, as where the plaintiff has set up a line of case, or the defendant a line of defence which the other has not, and could not be supposed to have come prepared to meet, or where his own witnesses have deceived him, the courts will grant a new trial on terms: (Hartley v. Badham, 11 Price, 383); a rule for a new trial on the ground of surprise, in consequence of the absence of a material witness, was refused where there was no affidavit of surprise: (Hoare v. Silverlock, 39 L. T. 245, C. P.) If the cause has been called on out of its turn and improperly, and tried in the absence of the defendant, or on a record which is materially defective, or which differs materially from the pleadings; or where the particulars annexed have been varied, and the demand could not, without such variation, have been proved; where a material witness was absent when the cause was called on, without any fault of the party who subpoenaed him, or some material documentary evidence wanting; where, in short, the merits have not been tried, and no blame is imputable to the suffering party, his attorney or counsel, either in getting up the case, or in the management thereof, the court will, to further the ends of justice, allow a new trial. The discovery of new evidence subsequently to the trial, is allowed, under particular circumstances, to be a sufficient ground for sending the case back, as where the defendant was an executor, and the trial was hurried on while he was out of the kingdom: (Broadhead v. Marshall, 2 W. B. 955); or where in ejectment the lessor would have to enter to avoid a fine before he could bring a new action: (Weak v. Callaway, 7 Price, 677.) It was held, however, in the recent case of Hamber v. Roberts (7 C. B. 861), that it is no ground for a new trial of an action before the secondary or under-sheriff, that the particulars of demand are not annexed to the writ of trial. A rule was made absolute for a new trial where the jury delivered their verdict for 150l. for the plaintiff, and one of them said to the plaintiff's son, that if he was an honest man he would allow a deduction he had previously offered of 40%., on the ground that it was uncertain whether or not they had given their verdict upon this understanding: (Higginbotham v. Waters, L. O. 369, Ex.) Where the jury give damages to such an amount, either too small or too great, as would satisfy any reasonable mind that they must have acted from improper motives or mistake, this will be a ground for a new trial: (C. Lambus v. Caulfield, 6 Ex. 244.) In the following case In another case a rule was made absolute to the court refused a new trial on the ground of re-open a rule for a new trial, which had been one shilling damages only being given, in an discharged on the ground of the ronattendaction for personal injury sustained from negli-ance of the plaintiff in support, upon payment, gence, where it appeared that the jury were not influenced by improper motives, and that the plaintiff was not permanently injured, but quite recovered, and was not liable for any medical expenses, the medical man being the plaintiff's son-in-law: (Howard v. Barnard, 18 L. T. 63 C. B.) That the verdict is contrary to the weight of evidence, is another ground for a new trial. This also supposes corruption or mistake on the part of the jury. Where, on an issue the evidence is fairly before the jury, and the judge is satisfied, there is great difficulty in supporting a motion for a new trial on the ground that the verdict is not supported by the evidence; but the court will, nevertheless, entertain the motion, and attend to the course of the trial, the issue having been directed however, of the costs of the plaintiff's attorney: (Job v. Hudson, 39 L. O. 348, Q. B.) Where à case has been regularly tried as undefended, and a verdict taken for the plaintiff, in the negligent absence of the defendant's attorney, the court will grant a new trial on an affidavit of merit, but only on payment of costs: (Third v. Goodier, 1 Pr. Rep. 717, Ex.) Where, at a trial in Bengal, the judge received certain documentary evidence, the Supreme Court, on an application for a new trial on the ground of such evidence being improperly received, should consider the importance of the evidence so received. Certain salt which A. had contracted to sell to B. having been destroyed in November, 1831, B. demanded its delivery. Negotiations took place as to whether B. was entitled to compensation, and continued till 1838, when A. finally refused compensation; soon after which B. brought his action against A. It was held that the action was barred by the lapse of time: (East India Company v. Paul, 14 Jur. 253, P. C.) In an action against a provisional committeeman of a proposed railway company for goods, &c., supplied in the course of the formation of the company, and which resulted in a verdict for the defendant; the foreman of the special jury was himself a provisional committeman of the same company. He did not make any affidavit that he was unaware of the question to be tried when he entered the jury box. It was held that this was a ground for a new trial; but it was granted only on payment of costs by the plaintiff, as it appeared that his attorney had been aware of the juryman's interest: (Bailey v. Macaulay, 19 L. J. 73.) It has been held that the affidavit of jurors cannot be received on motion for a new trial, as to what passed among them relative to the verdict, and a rule for a new trial on the ground of miscarriage of the jury was accordingly refused: (Trumble and others v. Mason and others, 41 L. O. 48, C. B.) And the court will not disturb the verdict of a jury, on the ground that the damages awarded are alleged to be excessive, unless it be very manifest that the jury have been actuated by some improper motive, or have adopted some wrong principle: (Creed v. Fisher, 22 L. T. 307, Ex.) Where a verdict is obtained by any misrepresentation affecting a material part of the case, it will be set aside, even though the misrepresentation was inadvertent: (Weldy v. O'Farrell, 1 Ir. Com. L. Rep. Ex. Ir. 667.) A new trial will not be granted because the judge before whom the case was tried has allowed the wrong party to begin, unless injustice is shown to have resulted from it: (Lee v. The Gresham Life Insurance Society, 15 Jur. Ex. 1161.) Where a rule for a new trial granted on affidavits is pending in the new trial paper, the court will not allow affidavits of fresh facts to be filed after the time has elapsed within which the notice for a new trial must have been made, even though it be sworn that these facts came to the knowledge of the party after the rule was granted: (Albem v. Boulibee, 23 L, T. Ex. 59.) Thus much as regards the leading principles which have guided the Superior Courts in granting new trials generally. We have now to consider more particularly the rules especially applicable to the County Courts. By the statute 9 & 10 Vict. c. 95, the original County Courts Act, s. 80, it is enacted that if on the day named in the summons, or at any continuation or adjournment of the court or cause in which the summons was issued, the defendant shall not appear, or sufficiently excuse his absence, or shall neglect to answer when called in court, the judge, upon due proof of service of the summons, may proceed to the hearing on trial of the cause on the part of the plaintiff only, and the judg ment thereupon shall be as valid as if both parties had attended. Provided always that the judge in any such case, at the same or any subsequent court, may set aside any judgment so given in the absence of the defendant, and the execution thereupon, and may grant a new trial of the cause, upon such terms, if any, as to payment of costs, giving security for debt or costs, or such other terms as he may think fit, on sufficient cause shown to him for that purpose. An application for a new trial, or to set aside proceedings, may be made and determined on the day of the hearing, if both parties are present, or may be made at the first court held next after the expiration of twelve clear days from such day of hearing. The party intending to make the application, must, seven clear days before the holding of such court, give to the clerk at his office, a notice in writing signed by himself, his attorney, or agent, of such intention, stating the grounds of the application, or give a similar notice to the opposite party, by serving the same personally on him, or leaving it at his place of abode or business. This notice does not, however, operate as a stay of proceeding unless the judge otherwise orders. If money is paid into court under any execution or order in the suit, the clerk will retain it to abide the event of the application; and if no application is made, the money, if required, will be paid to the party in whose favour the order is made, unless the judge otherwise orders. If the application is not made at the court mentioned in the notice, no subsequent application for a new trial, or to set aside proceedings may be made, unless by leave of the judge, on such terms as he thinks fit: (Rule 141.) The fee must be paid by the party when he gives notice: (Rule 142.) It was doubted, previous to the present rules of practice, whether, where there had been atrial before a judge alone, he could order a new trial with a jury, but a plaintiff having accepted costs under such an order, it was held that he could not afterwards take the objection: (Sparrow v. Reed, 1 Cox & Mac. & Herts. 166.) This point can now no longer arise, since by rule 143 it is expressly declared that in all cases where a new trial is granted, the judge may make it a condition of granting it that it shall take place before a jury, although the former trial did not take place before a jury. held in the case already referred to of Sparrowe jurisdiction imposed upon them in respect of the A plaint for breach of covenant was tried by a jury in a County Court, and a verdict found for the plaintiff. An appeal was brought upon the ground that the judge had improperly received certain evidence. The court, expressing an opinion that the evidence had been improperly received, application was made on the part of the defendant to have judgment entered for him. The court held that under the statute 13 & 14 Vict. c. 61, s. 14, they had no power to set aside the verdict of the jury, and to direct judgment to be entered for the defendant, and that they could do no more than direct a new trial: (Jones, app., Adams, resp., 20 L. T. 397, Q. B.) A plaint was tried in the County Court before the judge above, who gave judgment for the defendant. Subsequently a new trial was granted in general terms. Upon this the plaintiff gave notice of his intention of having a jury, and at the trial appeared, when the judge refused to try the cause by such jury, as he had given no leave for a jury, and the case was accordingly struck out. Upon an application to the Court of Queen's Bench for a mandamus to compel the judge to try the case by a jury; it was held, first, that if the amount of debt was under 57. (whereby the judge would have a discretion in granting a jury), it was for the party opposing the rule to show it, as the fact was within his knowledge. Secondly, that under the 79th rule of the new County Court Rules, a party has an absolute right to a jury, notwithstanding a former trial without a jury. Thirdly, that it was no answer to this application, that no legal jury could be obtained : (Nutting v. Nutting, 20 L. T. 239.) We do not suggest that the courts will have much more to do with the greater part of those charities than to file and index the annual balance sheets and accounts, which must be delilivered by the trustees to the respective clerks of the courts; still, out of this multitude of trusts, there must occur many cases where the intervention of the Courts of Law-now that it is rendered inexpensive-will be highly useful. charity does not exceed 10., and it is brought into court for any of the purposes contemplated by the "Charitable Trusts Act, 1853," "no fees of court shall be payable out of the funds of the charity; nor shall any fees be paid by any party to the proceeding unless the judge shall, in his discretion, order any of the parties to the proceeding before him, to pay such fees of court as To this order of the Chanhe shall think fit" cellor we shall refer hereafter. But our readers would probably wish to know what is the proportion in number which the charities of 10/. and the jurisdiction of the local courts. It would upwards bear to the whole number of those within seem that out of the 24,000 (speaking in round numbers) nearly 21,000 (that is about seveneighths) have incomes under 107. per annum! It will be noticed that where the income of a We gather these facts from an Appendix to Mr. Francis's "Law of Charities," (a) to which book we must refer those of our readers who are concerned in the management of charities, or interested in the late changes made in the law with respect to them. It is remarkable to observe the immense proportion of small charities which will local courts; and we find, the lower we descend come gratuitously within the jurisdiction of the in income, the more numerous are the charities; for example, out of the 21,000 charities with incomes of not less than 10%, no less than 13,000 were of incomes under 51. By rule 144, should the judge require a bond to be given by either party, the expense of it must be borne by the party giving it. The proceedings on it will be the same as those directed by the 9 & 10 Vict. 95, s. 127, on a bond to stay a warrant of possession, which enacts that every bond given on the removal of any action out of the County Court, or upon staying the execution of any such warrant of possession as aforesaid, or on moving for a new trial, or to set aside a verdict, judgment, or nonsuit, shall be made to the other party to the action at the costs of such other party, and shall be approved by the judge, and attested under the seal of the court; and if the bond so taken be forfeited, or if upon the proceeding for securing which such bond was given, the judge before whom such proceeding shall be held, shall not certify upon the record in court that the condition of the bond hath been fulfilled, the party to whom the bond shall have been so made may bring an action of debt, and recover thereon. Provided always that the court in which such action as last aforesaid shall be brought, may by a rule of court give such relief to the parties liable upon CHARITY ESTATES IN THE COUNTY persed throughout the different districts, will be such bond as may be agreeable to justice and reason, and such rule shall have the nature and effect of a defeasance to such bond. By 13 & 14 Viet. c. 61, s. 14, the Court of Appeal having heard the case argued, may order a new trial on such terms as it thinks fit, or may order judgment to be entered for either party as the case may be, and may make such order with respect to the costs of the appeal as it thinks proper, which orders are final. When the Court of Appeal has pronounced judgment, either party may deposit the original order of the Court of Appeal, or an office copy thereof, with the clerk of the County Court, and within forty-eight hours from the time of such deposit, give notice thereof in writing to the other party by prepaid post letter, or otherwise: (Rule 165.) If the order of the Court of Appeal is that judgment shall be entered for either party, then such judgment must be entered accordingly, and the successful party is at liberty to proceed thereupon, as if upon an original judgment of the County Court: (Rule 167.) A new trial, in pursuance of the order of the Court of Appeal, must be entered for trial at the court which is held next after twelve clear days from the time when the order or office copy has been deposited with the clerk, unless the parties agree that it shall take place sooner, or the judge otherwise orders, and must be conducted in the same manner as any new trial granted by the County Court itself: (Rule 166.) We have now to consider the decisions which have been made by the Superior Courts upon these statutes and rules of practice. It was Where, on an appeal from the County Court a new trial only was granted, the court allowed the appellant the costs of the appeal: (Gibbon v. Gibbon, 17 Jur. 416.) It may be inferred from this case that the court cannot make a conditional order under the 13 & 14 Vict. c. 61, s. 14, that the costs of the appeal abide the event of the new trial in the County Court. COURTS. AN extensive jurisdiction over charity estates To make this department of our Journal still JURISDICTION OF COUNTY COURTS OVER CHARITABLE TRUSTS. It is not probable that the management of these minute charities will be much interfered with, or that more than a simple application will be made occasionally to the courts, by the lay trustees, who will be obliged even then to dispense, for the most part, with professional assistance, unless they choose for their own ease and comfort to provide it themselves. The Legisla ture has determined anyhow that the funds of charities shall not be spent in litigation. Our readers will remember that the information-which probably is accurate in most respects-with regard to the various charities dis found in the voluminous reports of the former charity commissioners. They reported on 28,880 charities, and the history of each of these and the various endowments, can easily be found by referring to the Index to the Reports, which are arranged under the heads of the counties respec tively reported on. The jurisdiction which the County Courts and the District Courts of Bankruptcy will be called on to exercise over the charities now committed to their care, will be as to the appointment or removal of trustees, and the determining on all questions where any relief, orders and directions might have been sought under the ordinary, special or statutory jurisdiction of Chancery, or in other words, there is now vested in these courts the following powers of adjudication which the Court of Chancery has hitherto had. Independent of all statutory and special jurisdiction, Courts in Equity have inherent in them a perfect jurisdiction in matters of charities (see passim, Incorporated Society of Dublin v. Richards, 1 Con. & Law, 99), and this jurisdiction is now, in the large number of charities we have alluded to, transferred to the local courts. As Lord Redesdale expressed it, the king, as parens patriae, has a right to call on the several courts of justice according to their several jurisdictions, "to see that right is done to his subjects who are incompetent to act for themselves, as in the case of charities." There is, however, an important condition now annexed to the exercise of jurisdiction over these charities by local courts, as well as by the superior courts. We refer to the provision (s 17 of (a) The Law of Charities," comprising the Practice under the "Charitable Trusts Act, 1853," by Philip Francis, Esq., of the Middle Temple, Barrister-at-Law. the Charitable Trusts Act), that courts are not to tioned, and then of the yearly value therein mentioned, Another important point in connection with the jurisdiction and powers of the local court (and when they differ from those exercised of yore in equity), is that all orders and decrees are henceforth to be reviewed by the Board, and must be approved and confirmed before they are to become valid or take effect. The necessity for this is obvious in order to preserve uniformity in the practice throughout the country. In our next number we shall refer further to some other points in respect of the jurisdiction and matters of practice in Charitable Trusts. REPORTS. Superior Courts of Law and Equity. COURT OF APPEAL IN Feb. 14, 16. the parish of St. Nicholas out of their own premises and estates towards the relief of the poor of said parish, to ease themselves and the rest of the inhabitants; whereby they and said inhabitants were the only partakers of the benefit of said charitable use, and not the poor of said city; and the charitable purpose of the donor was wholly frustrated: and reciting that said mayor and citizens had put in their answer; and that on the hearing of the cause on the 18th Feb. in the 27th year of the reign of his said Majesty King Charles II., this honourable Court, on reading the herein before-mentioned will of said Richard Watts, and the hereinbefore-mentioned indenture, which extended the charity to the poor of the city of Rochester and the liberties and precincts thereof, was clearly of opinion that those parts of St. Margaret's and Strood that were within the limits or privileges of the said city ought to have a share, as well of the works as of the surplus of the charity; and it was therefore referred to Twisden, J. and three other persons therein named, to set out such share as should, besides serving the other charitable uses, be annually paid to said parishes of St. Margaret's and Strood, towards the relief of the poor inhabitants of such parishes residing within the liberties and precincts of said city; and reciting that said referees had made their award, bearing date the 19th June 1680, the substance of which was, that six parts out of thirty of the yearly rents should be paid to the churchwardens and overseers of the parish of St. of the poor inhabitants of the said parish residing within said city; four parts, in like manner, to the churchwardens and overseers of the parish of Strood, and the other twenty parts to said mayor and citizens, and their successors, to be employed as well mentioned, viz.:-He (in substance) directed that, after the decease of his wife, the Mayor of Rochester, with four principal citizens, should sell his principal house, called Satis, with the appurtenances and the household furniture there, and that the produce thereof should be apportioned as thereinafter expressed; that is to say, that said mayor and citizens should put forth the same, and employ the yearly profits towards the perpetual relief and sustentation of the almshouse already erected beside the Market-cross within the city of Rochester, which almshouse he directed should be re-edified and provided with six several rooms with chimneys, and six good mattresses or flock beds, and other suflicient furniture, to lodge poor travellers or wayfaring men, being no common rogues or proctors, such persons to lodge therein no longer than one night, unless sickness should be 'the cause thereof; and that the poor folks there dwelling should keep the house sweet, make the beds, see to the furniture, &c., courteously treat said poor travellers; and that each of such travellers should, at their first coming in, have fourpence, which charges for the poor travellers he directed should be maintained out of the yearly profits of said stock. And he willed that said mayor and other parties should have power to cut down such timber and other wood as should be growing on any of his lands in Chatham and other places, every twenty years, for the perpetual mainte-Margaret, to be by them employed towards the relief nance of said almshouse, and the furniture thereof. And he devised to the mayor and citizens of Rochester, and their successors, all his lands and tenements, except what he had directed to be sold, the yearly profits and rents to be applied to the building and reedifying and increasing of said almshouse, and for a provision for flax, hemp, and other necessary stuff to set the poor of said city at work, according to the statute of the 18th year of the reign of Queen Eliz., which yearly profits he valued at 367. 168. 8d.: in St. Margaret's, 5.; in Hoston, 2l. 10s.; in Cruxton, 27.; his windmill at Shorne, 67.; and his tenements at Long-lane-end, 8l. And he directed that said corporation should give bond for the performance of these trusts to his heirs, and that they should account to his heirs every four years; and that, if they should refuse so to be bound or to account, his heirs should take said stock, giving bond to the said corporation; and that, if they should refuse to do so, the Archbishop of Canterbury and the Bishop of Rochester should have the government of said stock; and that said stock should not be lent to any other than the citizens of the city of Rochester, nor to any person above two years at the most; and that good bonds should be taken for the repayment thereof; and that said corporation should not let the premises for above twenty-one years, nor except at such rent as they should be reasonably worth, the old farmers not to be removed as long as they would yearly pay what the same was worth; and that if Held, affirming the decree of the court below, that a any doubt should arise in any clause in that his will, scheme ought to be directed having regard to the the same should be expounded by the Archbishop will and deed, and the decree of 1674, and that the of Canterbury and Bishop of Rochester, whose deterappeal ought to be dismissed with costs. mination should be final. It further appeared that, If an instrument be doubtful in its terms, it is to be by a decree of the High Court of Chancery made in a interpreted by contemporaneous usage; and if there certain suit instituted by his then Majesty's Attorneyhas been a long usage in the application of funds to General against the mayor and citizens of Rochester, purposes which may be warranted upon one construc-bearing date the 3rd Nov. in the 32nd year of the tion of the instrument, but which may not be warranted upon another, the Court will lean to that construction, provided it be doubtful which will best correspond with the mode in which the funds have been for so long a period applied; but no usage for a length of time will warrant the Court in making a decree in contradiction to a clear and express trust. This was an appeal from the decision of the M. R. directing a scheme for the management of Watts's Charity, at Rochester. The facts of the case were as follows: ATTORNEY-GENERAL . THE MAYOR AND CORPORATION OF ROCHESTER. Charity-Fund's employed in aid of poor-rate-Scheme. A testator, before the Mortmain Act, devised property upon trust for sale, and one portion thereof to be applied by the mayor, &c. of R. for the perpetual relief, comfort, and sustentation of an almshouse, &c.; and convenient places were to be made for lodging poor travellers or wayfaring men, "being no common rogues or proctors," for one night only, unless sickness be the further cause, who were to be maintained and to have 4d. a night given to them. There were then trusts for applying the income of the charity, in re-edifying and increasing the almshouses, and for the provision of flax, hemp, &c., to set the poor at work, according to the purview of 18 Eliz., and for the furhter relief of such as be poor and impotent, as the statutes of the realm would permit. By a decree made in 1674, and by a deed of arrangement, the application of the funds was extended to two other parishes within the precincts of the city of R., though no question was raised, or declaration asked, as to the mode in which the funds were to be applied; nor did it appear that they were at that time improperly applied in payment of parochial or other rates. Afterwards the income of the charity greatly increased, but no additional sums were expended on the almshouses, or additional assistance given to poor travellers; but the surplus was handed over to the overseers, and employed in payment of parish and borough rates: It appeared that Richard Watts, formerly of Rochester, in the county of Kent, being seised and possessed of a capital house called Satis, and the household furniture therein, and also seised of other lands in the parishes and places in said will men reign of his Majesty King Charles II., after reciting for the relief of travellers and other the charitable uses in said indenture mentioned, as for the relief of the poor of the said parish of St. Nicholas: it was by said decree ordered that said award should be confirmed, and that, according to the hereinbefore-mentioned decree of the 18th Feb., in the twenty-seventh year of King Charles II., the poor of those parts of the parishes of St. Margaret's and Strood that were within said city should be entitled to the share of the rents in the proportions appointed by said award, and that said mayor and citizens should yearly account before the wardens and commonalty of Rochester-bridge, according to the provisions of the hereinbefore-stated indenture. In the year 1808 an information was filed by his then Majesty's Attorney-General, at the relation of William Jefferys, a parishioner of Chatham, in the county of Kent, against said mayor and citizens of Rochester; and by the decree made on the hearing of the last-mentioned cause, it was declared that such part of the parish of Chatham as lies within the liberty of said city of Rochester was entitled to participate in said charity, and it was referred to the Master to ascertain in what proportion the income thereof should be divided. The Master to whom said cause was referred, by his report made therein, certified that he had approved of a scheme for appropriating the income of said charity, and that the same should be divided into thirty-two parts, instead of thirty as theretofore; and that to said parish of St. Nicholas twenty parts should be appropriated, to said parish of St. Margaret six parts, to said parish of Strood four parts, and to said parish of Chatham two parts; and which said report was afterwards confirmed, and by an order on further directions in said cause it was ordered accordingly. The income of the property had greatly increased, but no additional sums were spent on the almshouse, or any additional assistance given to poor travellers; but the surplus was employed in payment of parish and borough rates, and was paid over to the overseers for that purpose. The order of the M. R. was as follows: "His Honour doth order that proposals for a scheme be laid before the judge of this court to whom this cause is attached, for the application of the rents and profits of the charity estates in the pleadings mentioned, regard being had to the will of Richard Watts, the testator in the pleadings named, to the indenture |