charged upon Thomas Dewell's real estate, equal to the dividends on such a sum of consols as 6967. 19s. 8d. would have purchased on the day of the memorandum. Minute, as subsequently settled by the VICECHANCELLOR.-Declare that the payment to Philip Howe Daniel, in the pleadings named, of the sum of 6961. 19s. 8d., in the pleadings mentioned, by Thomas Dewell the testator in the pleadings named, was a breach of trust, in respect of which the estate of the plaintiff Harriette Daniel is entitled to be indemnified out of the estate of the said Thomas Dewell, and that as tenant for life under the indenture of settlement, dated the 5th of January, 1831, in the pleadings mentioned, she is entitled to have what is due to her in respect of her life estate paid and secured out of the real estate of the said testator, which, by the indenture of the 25th of July, 1859, in the pleadings mentioned, was conveyed to the defendant. And it is ordered that the following account be taken-that is to say, an account of what is due to the plaintiff in respect of her life estate under the above declaration. And the Chief Clerk is to inquire and certify what sum ought to be invested in Bank Three Pounds per Cent. Annuities to secure to the plaintiff the future payment of the dividends and interest to which she is entitled in respect of her life estate. And it is ordered that it be referred to the Taxing Master to tax the plaintiffs their costs of this suit. And it is ordered that such costs, when taxed, be paid by the defendant, Charles Goddard Dewell, to the plaintiffs, Thomas Estcourt Cresswell and Harriette Daniel, within after the date of the Taxing Master's certificate, or in default thereof, it is ordered that the same be paid or raised out of the said real estate, together with the amount which shall be certified to be due to the plaintiff under the above account. And it is ordered that the money that shall be certified to be due to the plaintiff be invested in Bank Three Pounds per Cent. Annuities, as hereinbefore-mentioned, and it is ordered that the plaintiff's be at liberty to apply to the Judge at Chambers as to the raising the said sums by sale or mortgage of the said real estate, as to the payment and investment of the sum hereinbefore-mentioned when so raised, and as to the payment of costs of the suit out of the moneys to be raised by such sale or mortgage, and any of the parties are to be at liberty to apply as there shall be occasion. Form of decree directing special inquiry as to damages under 21 & 22 Vict. c. 27, s. 2. The defendant agreed to let a public-house to the plaintiff for ten years, from July 1st, 1862, on which day possession was to be delivered, upon the conditions expressed in a written memorandum, one of which was in the following words :-"The lessor to make certain alterations now suggested, and—to make and form a spirit vault, and put in plate-glass windows, and do everything therewith necessary at his own expense, and paint new the outside of all the woodwork, as well as put the slates, chimney-pots, and roofing in thorough repair." The defendant took no steps to complete this agreement, and refused to come to any arrangement with the plaintiff as to the alterations and repairs to be made, and he alleged that as some of the alterations were not specifically pointed out by the agreement, he could not be compelled to perform it. The plaintiff, by his bill, offered to waive the performance of the agreement so far as regarded any alterations not specifically mentioned therein, and prayed specific performance of the agreement, except so far as the performance thereof was waived, and for damages in addition to or substitution for specific performance. Freeling (Rolt, Q.C., with him), for the plaintiff, referred to, Soames v. Edge, John. 673; Norris v. Jackson, 3 Giff. 396; and distinguished Norris v. Jackson, 1 J. & H. 319, where the plaintiff asked for specific performance without waiving a condition which had become incapable of specific performance. Daniel, Q.C., and Little, for the defendant. WOOD, V.-C., made a decree according to the following minutę : Minute. Decree specific performance, with costs, and refer it to Chambers to settle the lease. Inquire under what circumstances delivery of possession was delayed beyond the 1st of July, 1862, and what damages ought to be paid to the plaintiff in respect of the non-performance of the agreement, either as regards the non-delivery of possession, or as regards the making the spirit vault, &c. [as in agreement], in case the same shall not be done by the defendant." The Court has full discretion under the Bankrupt Law Consolidation Act, 1849, to order the release of a bankrupt, who has been arrested under a writ of capias to hold to bail, in a case where the action had not been proceeded with, and the debt had not been admitted to proof. And the ground on which the Court will exercise such discretion is the greater facility with which discovery may be obtained from the bankrupt by his release from custody. justified in keeping the bankrupt an hour longer in prison. Sargood, for the bankrupt, said, that, besides the applications mentioned by His Honour to the Court of Queen's Bench and the Court of Chancery, there was a third, namely, to the Court of Appeal, and suggested that such an order should be made here as would enable the bankrupt to avail himself of that last remedy. Bagley, for the official managers of the London and Eastern Bank, opposed the bankrupt's release altogether. HIS HONOUR said that the withdrawal of all opposition by the assignees had so altered the aspect of the case that he would again postpone judgment until the 25th of November, on which day he would state the order which he should be prepared to make. 25 Nov. 1863. Accordingly, on this day, His Honour gave his final judgment in the case. An entirely new character, he said, had been given to the case by the withdrawal of opposition by the assignees, and he had to consider what the effect would be. To show that it had varied the case it would be necessary to refer to the 112th section of the Consolidation Act of 1849, and the primary object for which that Act had been passed. Since the passing of the Act of 1861 the object of the former Act seemed to have been altogether forgotten. It had been taken to be a mere gaol delivery statute, under which any one might present his petition and at once claim his discharge. As the law then stood petitions in bankruptcy were, as a rule, for the most In this case the bankrupt had been arrested in the month of March last on a writ of capias to hold to bail, issued pursuant to a Judge's order at the suit of the official managers of the London and Eastern Bank, for a sum of 50,000l., secured by his promissory note, and alleged to be due by him to them as such official managers. Not being able to find the bail required, he had been consigned to custody at Whitecross Street Prison, in which prison he had ever since remained: no steps had in the meantime been taken at law by the official managers for the recovery of the alleged debt, which had not even been admitted to proof in this Court. On the 20th of November, he applied for release from custody, when his Honour postponed judgment. On the 23rd of November his Honour, in giving judgment, said that when this matter first came before him the question arose, whether in a case where a bankrupt was in custody on a writ of capias to hold to bail, this Court had jurisdiction to order his release, and thus vary the order of the Common Law Judge. The writ had been issued under the 1 & 2 Vict. c. 110, the Act for the abolition of arrest and imprisonment on mesne process, on an affidavit that the defendant was about to leave the country. An application for such a writ was, of course, made exparte, and sometimes no doubt the practice operated hardly and unjustly on the debtor. By the 6th section, however, of the last-mentioned Act, the Court was empowered at any time after arrest, upon the application of the defendant, to vary or discharge the writ. Now no steps whatever had been taken since the issue of the writ in respect of such debt, alleged to be due from the bankrupt, by the creditors detaining him in prison. He thought that the course for the bankrupt pursue would be to apply for his release to a Judge of the Court out of which the writ had issued, bring-realisation of the bankrupt's estate. Since the law had ing that important fact to his notice. His brother Commissioner (Holroyd) was of opinion that an application might be made to the Court of Chancery, under the 60th section of the 11 & 12 Vict. c. 45, which might stay the proceedings of the official managers. He would now ask the assignees whether, -it having been admitted that that claim could not be sustained, a claim which indeed they themselves were disputing, they were acting rightly in even indirectly lending themselves to the detention of the bankrupt in to custody. Linklater, (solicitor), for the assignees, said that, acceding to his Honour's opinion, he would not feel part, filed by creditors,-for, to obtain adjudication available assets; and the object of the section he against himself, the debtor must have possessed 1507. had mentioned was-inasmuch as a debtor as long as he was in prison could not give that assistance and make that discovery to his creditors which was necessary to enable the debtor to obtain his release, and thereby be placed in a position to prepare his accounts, and thus be enabled the more fully to inform his creditors concerning his acts and his property. The release was, in fact, ordered with a view to the been changed by the Act of 1861, that section had been continually resorted to by debtors in difficulties, or in prison, with or without assets, to obtain their release. In all cases of what he might call bankruptcy proper he had never given a bankrupt release until the assignees were chosen, who were the persons to say if any and what discovery was required of the bankrupt. In the present case, the assignees had consented to the bankrupt's release, and he thought they had done right, inasmuch as they stood a chance, by the course they had thus taken, of gaining more information from the bankrupt as to his accounts than they otherwise could have done. He had before him an affidavit of an accountant who was assisting the bankrupt in prison, which would show that even his (the accountant's) services could not be as well rendered as if the bankrupt were at liberty; for it could hardly be supposed that the accountant could be all day at the prison or continually be wasting his time in going to and fro. Even in the matter of the 50,000l., which the bankrupt was supposed to owe, there were no hopes of anything being done as long as he remained in prison. That consideration would form a main ingredient in the exercise of the discretion which, under the 112th section of the Consolidation Act of 1849, the Court most certainly possessed. In saying, as had been said, that the Court had no jurisdiction in this case, because otherwise there might be a conflict between it and the Court of Queen's Bench, there was a mistake in terms. There was abundant jurisdiction in the Court, as was plain from the words of the section mentioned,-viz., "when any person who has been adjudged bankrupt, and has surrendered and obtained his protection from arrest, is in prison or in custody for debt at the time of his obtaining such protection, the Court may, except in the cases hereinafter mentioned, order his immediate release, either absolutely or upon such conditions as it shall think fit." Now, here, all the conditions required by the section had been performed, and the only question was,— whether the Court would be exercising their discretion rightly in the present case, for more absolute discretion there could not be. It was a question of bankruptcy between a trader and his assignees. That the debtor was kept in prison formed an element, though not a principal one, in his consideration of the matter. He thought that the bankrupt was wrongfully detained in prison. He was detained on a capias ad respondendum, which was a very different thing from a capias ad satisfaciendum. As to the debt itself, though an attempt to prove it had been made, that attempt had failed, nor had any one appealed in the matter. The debt would clearly have been barred by the Statute of Limitations, had the bankrupt remained in England. Under what circumstances was he arrested? He was arrested upon an affidavit made behind his back by one of the official managers, that "the defendant was truly and justly indebted to them." When, on the alteration of the law, it was asked what security you would henceforth have on the arrest on mesne process? the answer was, that you had the oath of the creditor; but here, at least, that security had failed, for the creditor could not be indicted for perjury. As to bail, too, would it not be absurd to suppose that the bankrupt could find two securities for 50,000l. each; and if he could not, the case differed in no way from one of perpetual imprisonment. Moreover, in the action for that debt, no one single step had been taken since the bankrupt's arrest by the plaintiffs, his creditors. It might be said, that it was the duty of the debtor to force such creditors to go on with their prosecution; but he by no means thought that the debtor was in any way bound to assume the initiative. That, he held, lay entirely with the creditor; and here the conduct of the creditor, in his opinion, rendered the case the same as if a stet processus had been entered. The single answer to that was, that the debtor might apply to the Court of Queen's Bench, or perhaps to the Court of Chancery, but that he (his Honour) thought he could not be called on to do. The main ingredient, however, in the opinion which he had formed in this case, was the fact that the assignees, who had acted most wisely and properly, would, if the bankrupt were released, have an opportunity of obtaining a more full discovery from him. Therefore, under all those circumstances, and in the exercise of that discretion which he had mentioned, he should order the release of the bankrupt. But inasmuch as (and on this head he expressed no opinion) the detaining creditor might be advised that he had a right of appeal, he would give an opportunity of appealing, by directing the order of release to remain with the registrar for fourteen days; and at the expi ration of those fourteen days, if no appeal were made, the order would take effect. Q. B. 23 Nov. 1863. COMMON LAW. REGINA v. GURDON. Replevin-County Court-Jurisdiction-Question of Title to an Incorporeal Hereditament. The Judge of a County Court has jurisdiction to try all actions of replevin commenced in such Court, even though a question of title to a corporeal or incorporeal hereditament should arise in the course of the trial; subject only to the right of the defendant to remove the action into a Superior Court by writ of certiorari in the manner prescribed by 19 & 20 Vict. c. 108, s. 67. Philbrick had obtained a rule calling on the County Court Judge for Essex to show cause why a writ in the nature of a mandamus should not issue to compel him. to hear the suit of Fordham v. Acres then pending in his Court. From the affidavits it appeared that the abovenamed suit was an action of replevin, brought under the following circumstances: The defendant's land adjoined certain Lammas land over which the plaintiff claimed a right of common of pasturage. Some cattle of the plaintiff's, which had been placed by him upon the Lammas land, in the exercise of his alleged right of common, strayed on to the defendant's land through a gap in the defendant's fence. The defendant thereupon distrained the cattle damage feasant upon his land, and it was in respect of such distress that the plaintiff brought his action of replevin. When the suit came on for trial before the County Court Judge, the defendant stated that he disputed the plaintiff's right to put his cattle upon the Lammas land, and he declined to give his consent in writing (under 19 & 20 Vict. c. 108, s. 25), that the County Court Judge should, notwithstanding such dispute of title, proceed to try the cause. The Judge thereupon refused to try the cause, on the ground that the plaintiff's title to an incorporeal hereditament, namely, a right of common, was denied by the defendant. Bulwer now showed cause. Previously to the establishment of the modern County Courts, all actions of replevin were commenced in the sheriff's County Court, and if any question there arose concerning the title to a freehold the sheriff was at once ousted from his jurisdiction, 3 Blackstone's Com. 149. By section 58 of 9 & 10 Vict. c. 95, it is provided that the County Court "shall not have cognisance of any action of ejectment, or in which the title to any corporeal or incorporeal hereditaments shall be in question." Then section 119 enacts "that all actions of replevin in cases of distress for rent or damage feasant which shall be brought in the County Court shall be brought without writ in a Court held under this Act"; and by section 121 it is provided that, "in case either party to any such action of replevin shall declare to the Court in which such action shall be brought, that the title to any corporeal or incorporeal hereditament is in question, and shall become bound with two sufficient sureties to prosecute," &c., "and to prove," &c., "then, and not otherwise, the action may be removed before any Court competent to try the same in such manner as hath been accustomed." The decision given by this Court in Regina v. Raines, 1 El. & Bl. 855, shows, no doubt, that section 119 gave jurisdiction to the County Court to entertain all actions of replevin, whether title came in question or not, subject only to removal into a superior Court in the manner and form required by section 121. But section 2 of 19 & 20 Vict. c. 108, repeals section 121 of the first Act; and by section 25 of the later Act, power is given to the Judge of the County Court only on consent in writing of the parties, to try "any action in which the title to corporeal or incorporeal heredita ments shall incidentally come in question." Section 65 enables the replevisor to commence his action in a superior Court upon giving certain securities. Section 66 prescribes the nature of the security to be given when the action of replevin is commenced in the County Court; and lastly, by section 67, it is provided that "any action of replevin brought in a County Court shall be removed into any superior Court by writ of certiorari, if the defendant shall apply to such superior Court or to a Judge thereof for such writ, and shall give security to be approved," &c., "conditioned to defend such action with effect, and, unless the replevisor shall discontinue or shall not prosecute such action, or become nonsuit therein, to prove before such superior Court that the defendant had good ground for believing, either that the title to some corporeal or incorporeal hereditament, &c., was in question, or that the rent or damage in respect of which the distress shall have been taken, exceeded twenty pounds; and every such superior Court shall have power to determine the same action." It is submitted that these sections leave section 58 of the first Act in force, and that the Judge had therefore no jurisdiction to proceed. Philbrick, in support of the rule, cited, and contended that section 58 of 9 & 10 Vict. c. 95, does Tummons v. Ogle, 6 El. & Bl. 582, not apply to action of replevin, and that sections 65, 66, 67 of the 19 & 20 Vict. c. 108, are a separate and com plete legislation upon the proceedings in that action. COCKBURN, C.J.-The rule must be made absolute. The 58th section of the first Act applies to one set of actions, and there is a distinct series of sections relating to replevin. The last Act contains provisions on the one hand enabling the replevisor to bring his action in the superior Courts upon certain terms, and, on the other hand, enabling the defendant to remove the action into a superior Court upon complying with certain conditions there set out. Here the question of jurisdiction did not really arise. WIGHTMAN and MELLOR, JJ., concurred. Q. B. 11, 25 Nov. 1863. Rule absolute. THE QUEEN ON THE PROSECU Pauper-Settlement-Yearly Hiring of a Tenement-6 Geo. 4, c. 57, s. 2. In March, 1858, W hired a house, situate in the parish of O, from Lady-Day 1858, at the monthly rent of 11. 16s. 8d., the tenancy to be determined by one month's notice, expiring on any one of the four usual quarter-days. W occupied the house, and paid the stipulated rent during a period of more than a year:— Held, that he had rented the house for the term of one whole year, within the meaning of the statute, 6 Geo. 4, c. 57, s. 2, and had thereby gained a settlement in O. In an appeal by the parish of St. Olave, Silver Street, in the city of London, to the Court of Quarter Sessions, held by the Recorder of London, at Guildhall, against an order, dated 24th January, 1863, and made by two Justices of the city of London, for the removal of Thomas Wiltshire, his wife, and five chil Sessions was to be quashed, and the order of removal confirmed; if in the negative, then the order of the Sessions was to be confirmed. By section 2 of 6 Geo. 4, c. 57, it is enacted, "that no person shall acquire a settlement by, or by reason of settling upon, renting or paying parochial rates for any tenement, not being his or her own property, unless such tenement shall consist of a separate and distinct dwelling-house or building, or of land, or of both, bona fide rented by such person in such parish or township at and for the sum of 107. a-year at the least for the term of one whole year, nor unless such house, or building, or land, shall be occupied under such yearly hiring," &c. dren, from the parish of St. Giles, Cripplegate, to the parish of St. Olave; the Court of Quarter Sessions quashed the said order, subject to the opinion of the Court of Queen's Bench, upon the following case :The only ground of removal was, that in March, 1858, the said T. Wiltshire hired for the term of one whole year, a separate and distinct dwelling, situate at No. 6, Windsor Court, in the parish of St. Olave, at a yearly rent of 227.; and he immediately entered into the occupation thereof, and continued to rent and occupy the same thenceforward, for one year and Regina v. Recorder of Pontefract, 2 Q. B. 548; upwards, viz., for about 2 years, and he actually Regina v. Bathwick, 4 D. & Ryl. 335. paid upwards of 107. rent for the same in respect of Here there was only the contemplation of the possi one whole year. The said T. Wiltshire entered upon,bility of an occupation for a year, and not an actual and always occupied the said premises, under the fol- agreement for a year. In the absence of any express lowing agreement : "Memorandum of agreement entered into 20th day of March, 1858, between H. Piper, as agent for the trustees of Mrs. Henley, and T. Wiltshire of Dobie Court. H. Piper agrees to let, and T. Wiltshire agrees to take the house, No. 6, Windsor Court, from 25th of March, 1858, at the monthly rent of 17. 16s. 8d. H. Piper agrees to pay all landlord's rates, and taxes, and T. Wiltshire agrees to pay all tenant's rates and taxes, to keep the house in quiet and tenantable order, and to amend all squares of glass broken during his occupation. "It is, lastly, agreed, that one month's notice, to expire at either the 25th day of March, 25th June, 25th September, or 25th December, shall be a good and sufficient notice on either side for T. Wiltshire to quit and deliver up possession of the house to H. Piper or other agent for the time being of Mrs. Henley's trustees. "As witness our hands the day and year abovementioned, " HENRY PIPER, It was conceded by the appellants that all other conditions of obtaining a settlement had been fulfilled by the said T. Wiltshire, and that he had gained a settlement in the said appellants' parish, if the above written agreement constituted a yearly hiring or renting for the term of one whole year of the said dwelling-house, within statute 6 Geo. 4, c. 57. The question for the opinion of the Court was, whether such written agreement constituted such yearly hiring or renting for the term of one whole year of the said dwelling-house. If the answer of the Court was in the affirmative, then the order of the Giffard and G. Tayler, in support of the order of Quarter Sessions.-In order to create a settlement by the yearly hiring of a tenement, the tenant must be actually seised of an estate for one whole year at least, stipulation, the term of the tenancy is ascertained by Kemp v. Derrett, 3 Campb. 508; W. Payne, in support of the order of removal.-The agreement created an estate for a year, subject to certain conditions. These conditions never having come into operation, there has been a bona fide yearly hiring, Regina v. Herstmonceaux, 7 B. & C. 551; Paddington v. Willesden, 32 L. J. M. C. 109. [MELLOR, J.-In that case the words "at the yearly rent of 187." were decisive.] The cases of a yearly hiring for service are analogous to the present case, and show that there has been a yearly hiring of the tenement, Regina v. Byker, 2 B. & C. 114; 25 Nov. 1863. MELLOR, J., delivered the judgment of the Court (Cockburn, C.J., Wightman and Mellor, JJ.) If we had been required for the first time to put a construction upon the 6 Geo. 4, c. 57, s. 2, and the previous statute 59 Geo. 3, c. 50, we might have hesitated to decide that, in the present case, a settlement had been gained. In other words, we should have doubted whether the pauper had bona fide rented a tenement for one whole year, or occupied under such yearly hiring. The case of Regina v. Herstmonceaux (7 B. & C. 551) is, however, a decisive authority that these statutes do not require any other hiring or rent |