vative title created. payable if no such alienation had been made or deri- to admit a receipt, and the plaintiff refused to do so, and at the trial the jury found that the receipt was a genuine one, but that a promissory note mentioned therein to have been given had not been so given, and the Judge who tried the cause having certified, for the first time, four months after the trial, that the refusal to admit was reasonable, the Court refused to interfere and set aside the certificate. Property was devised by JC to his wife EC for life; remainder to his son R WR in fee. RWR died during the life of the tenant for life, and his son, the defendant, took the property in right of his father:Held, that this was a devolution and succession from the testator, and that the defendant was liable for the 101. per cent. duty. This was an information on the revenue side of the Exchequer, to obtain payment of succession duty on the succession of the defendant to the real property, devised under the will of Joseph Claridge, to his wife E. Claridge for life, remainder to the use of his stepson R. W. Rushton, otherwise Claridge, in fee. The testator died in 1832, and his son, the said R. W. Rushton, died intestate in 1844, and the interest thereupon vested in the defendant, the son of the said R. W. Rushton. The widow died in 1859, subsequent to the passing of the above Act. The Attorney-General, Solicitor-General, Locke, Q. C., and Hanson, for the Crown, contended that this was a devolution within the 15th section of the 16 & 17 Vict. c. 51, from the testator. Lush, Q. C., and Alfred Hensman, for the defendant. The defendant here succeeds his father as heir. This is a devolution within the 2nd section of the Act, and he is only liable to the 17. per cent. duty. They cited, Attorney-General v. Gardner, 1 N. R. 364; and 32 L. J. Ex. 84. T. K. Kingdon, moved for a rule calling on the plaintiff to show cause why a certain certificate granted by Erle, C.J., in the above cause should not be rescinded. The action was brought to recover money alleged to be due to the plaintiff as administrator of one Sarah Frost, in respect of moneys lent by her in her lifetime to the defendant. The real amount sought to be recovered was 150l. The defence was, that the defendant had paid to the said Sarah Frost 100%., and for the balance had given a promissory note; but these facts were denied by the plaintiff. The defendant, to prove his case, relied upon a receipt, of which the following is a copy : "Received of Mr. Vinson 1007., also a promissory note (to self or order) payable six months after notice fifty pounds, being balance of account. "1501." "SARAH FROST. Due notice to admit this receipt was given by the defendant's attorney to the plaintiff's attorney, under the 117th section of the Common Law Procedure Act, 1852, but the plaintiff's attorney refused to admit the same. The cause was tried before Erle, C.J., and a special jury, at the last Summer Assizes for Devon, POLLOCK, C. B.-We are all of opinion that the when the jury found that the said receipt was a genuine Crown is entitled to duty at the higher rate. The son takes the father's place, and clearly has to do what he would have done. one, and that the said 1007. had been paid; but they were not satisfied with respect to the giving of the note, and on that ground found a verdict for the plaintiff for 50%. No application was made to the learned Judge at the trial, nor did he then certify that the refusal on the part of the plaintiff to admit the said receipt was reasonable. Upon taxing the costs before the Master, the defendant's attorney claimed the costs of proving the above receipt, and the Master decided this question in his favour, on the ground that the Judge had not certified at the trial that the refusal to admit was reasonable. After several adjournments, the parties attended before the Master on the 11th of December last, when the plaintiff's attorney produced a certificate, signed by Erle, C.J., on the back of the defendant's said notice to admit, certifying that the Judgment for the Crown. refusal to admit was reasonable. The plaintiff's MARTIN, B.-This is a clear case. The argument for the defendant diverts the 2nd section from its real object, namely, to define the words successor and devolution. The case falls exactly within the 15th section. The heir becomes entitled to the property by the death of his father. In whom then was the property vested? Why, in a person other than the one originally entitled thereto, and the Act says, that such persons shall be charged as the persons originally entitled would be chargeable. CHANNELL and PIGOTT, BB., concurred. attorney declined to state when and under what circumstances the said certificate had been granted, but it may be taken to have been made ex parte. The Master then adjourned the matter, to enable the defendant to apply to the Court to have the said certificate rescinded. On a prior motion for a similar rule, the Court ordered an application, in the first instance, to be made to Erle, C.J., to set the certificate aside. This was accordingly done, and the learned Judge having refused the application, Kingdon again applied to the full Court. The learned Judge has certified that the receipt was proved in part only. The certificate is granted four months after the trial, and section 117 of the Common Law Procedure Act, 1852, says that the Judge at the trial shall certify that the refusal to admit was reasonable. POLLOCK, C. B.-We think we ought not to interfere with what the Chief Justice has done. The certificate cannot therefore be set aside. MARTIN, B.-The Chief Justice appears to have a very strong opinion on the point. BRAMWELL and CHANNELL, BB., concurred. The The plaintiff brought his action for a sum which could not be recovered in the County Court. He also resided more than twenty miles from the defendant. defendant paid 26s. into Court, which the plaintiff accepted in satisfaction of his claim : Held, that the plaintiff was entitled to his costs, under he 4th section of the 15 & 16 Vict. c. 54. This was an action brought to recover 2087. 10s. 6d. for jewellery supplied to the defendant's wife. The defendant paid 26s. into Court, and pleaded never indebted as to the residue. The plaintiff, having learned deprive the plaintiff of his costs under that Act as a Judge would have had before whom the cause might have been tried. He cited, Rg. v. The Inhabitants of Haslemere, 32 L. J. [MARTIN, B., mentioned Richards v. Black, 6 C. D. 443.] [POLLOCK, C.B.-The 13th section of the 13 & 14 Vict. c. 61, is repealed.] Holl, in support of the rule, then referred to the County Courts Act, 15 & 16 Vict. c. 54, s. 4. He contended that the statute 43 Eliz. did not apply where money was paid into Court. [Gray, Q.C. (amicus curia), referred to cases not reported in which plaintiffs under similar circumstances, were held entitled to their costs.] that the defendant intended to set up that the bulk of Indictment for Felony-24 & 25 Vict. c. 97, the goods had been supplied while the defendant's wife was living in adultery apart from him, took the money out of Court, and proceeded no further with the action. At the commencement of the action the plaintiff resided and carried on business in London, and the defendant resided in the county of Norfolk. This application was made to Keating, J., at Chambers, and he referred it to the Court. Holl now moved for a rule absolute, in the first instance, for the recovery of the plaintiff's costs in the action, and that the same might be referred to the Masters for taxation, on the ground that the case was not within the County Courts Act. He relied on 13 & 14 Vict. c. 61, s. 13. and cited, Asplin v. Blackman, 21 L. J. Ex. 78; Oppenheim showed cause in the first instance, and submitted that the statute 43 Eliz. c. 6, s. 2, applied to this case, the plaintiff having recovered less than 408., and that the Court had the same discretion to s. 15" Malicious Injuries to Property Act-Omission of word "feloniously." ment charging a felony is fatal, and voids the indictThe omission of the word "feloniously" in an indictment, though there are special words in the Act to show the intention. The prisoner was indicted at the Essex Quarter Sessions, 30th of October last, under 24 & 25 Vict. c. 97, s. 15, for unlawfully and maliciously damaging, with intent to destroy, certain machines, then and there being and used for ploughing and performing other agricultural operations; to wit, two ploughs and one scarifier. His counsel objected to the validity of the indictment, and urged that the word "feloniously" was not inserted, and, secondly, that as the ploughs which he was charged with damaging were, one of them, a patent plough of Bentall, and the other an ordinary plough, both in common use in agriculture, and worked by horses, and the scarifier also one commonly in use; the damaging them was not an offence within the 24 & 25 Vict. c. 97, s. 15 The chairman reserved these two points, and the prisoner was found guilty on the facts. J. P. Murphy, for the prisoner. The omission of the word "feloniously" is fatal. A felony cannot be charged without the word occurs in the indictment. The prosecution elected to charge a felony, and the omission of the word feloniously in the charge is fatal. Philbrick, in support of the conviction. In all felonies it is laid down, that you must allege the act to have been done "feloniously;" but in those cases it is necessary, as it shows a felonious intent. Here the Act speaks of the intent separately, Comyn, Indictment, G. 6; Regina v. Johnson, 3 M. & S. 539. When the case came on for trial, and before plea, the counsel for the prisoner moved to strike out the second count, on the ground that the prisoner had only been committed on the charge mentioned in the first count, and that the provisions of the Vexatious Indictment Act (22 & 23 Vict. c. 17,) had not been complied with, The Recorder overruled the objection, and the prisoner declined to plead, whereupon the point of whether the second count was bad having been reserved, a plea of not guilty was entered by order of the Court. On the trial, evidence of the second obtaining goods by false pretences was objected to, on the ground that the evidence in support of the second count was no evidence on the first count, and that if the objection to the second count was good, the record ought to be taken as if the count was quashed. The prisoner was [CROMPTON, J.-The old indictment for murder found guilty on both counts. contained the word murdravit.] The word "murdravit " imputed the intent, Regina v. Crichton, R. & R. C. C. 62. [COCKBURN, C.J.-In Dyer, the omission of the word "murdravit," vitiated the indictment. So long as there is the distinction between felony and misdemeanor, it is fair you should give a man information of what you are charging him with.] [WILLES, J.-In Holford v. Bailey, 13 Q. B. 426, Lord Wensleydale said, That where the terms are terms of art, such as 'felony,' 'murder,' or 'burglary,' equivalent expressions cannot be used."] That would be so, if this were a felony at Common Law. COCKBURN, C.J.-It is a general proposition in all text-books for indictments for statutory as well as Common Law felonies, that the word "feloniously " should be used, and it is a sound and wholesome rule that there should be on the face of the indictment an intimation of what a man is to be tried for. Yonge for the prisoner. If the second count had been absent, the evidence adduced could not have been adduced in support of the first count, and the prisoner was entitled to be put in the same position as he would have been if the second count had been quashed, as I submit it ought to have been: Regina v. Bray, 9 Cox, C. C. 215. COCKBURN, C.J.-We are clearly of opinion that the second count ought to have been quashed, and that therefore the evidence relating to that count was inadmissible to the first count; and having been so, the conviction cannot be upheld. Before the Right Honourable Dr. LUSHINGTON. Conviction quashed. Repeal of Statute by Implication.-7 Geo. 1, C. C. R. REGINA v. W. FUidge. Indictment-Evidence in Support of Count An indictment contained two counts. The prisoner declined to plead to the second, on the ground that it ought to be quashed. The point was reserved, and a plea recorded by order of the Court. Evidence affecting the first count was adduced on the second count, which was afterwards quashed : Held, that such evidence was inadmissible, and that the prisoner ought to have been acquitted. The prisoner was indicted at Southampton Quarter Sessions, for obtaining, on the 29th of September, a shawl, by false pretences. A second count charged him with obtaining another shawl of the same person, on a subsequent day, by a similar false pretence. c. 21, s. 2. No statute can lose its force by non-user alone. Presumption is against repeal of a statute by implication: but a subsequent statute, though not expressly referring to it, will be taken to have repealed a prior one, if the provisions of the two statutes are incompatible with each other, or would lead to absurd consequences. The 7 Geo. 1, c. 21, s. 2, prohibiting loans of bottomry by British subjects upon foreign ships engaged in the East India Trade, is repealed. The question at issue was whether the 2nd section of Geo. 1, c. 21, is still in force. This was a cause of bottomry instituted against the "India," a Monte Video vessel. In January, 1859, the "India" left Monte Video, bound for Calcutta, with a cargo of horses: in February, 1859, being at Table Bay in the course of his voyage, the master was obliged to borrow money on bottomry, and the lender was a British subject. In order to pay off this bond, the master, after his arrival in Calcutta, gave another bottomry bond, in favour likewise of British subjects, payable at the Mauritius, to which place the "India" was about to sail. The defendant, the owner of the "India," in his answer alleged that both the bonds were void by virtue of 7 Geo. 1, c. 21, s. 2, which is as follows: "All contracts and agreements whatsoever at any time from and after the said 24th day of June, 1721, made or entered into by any of his Majesty's subjects, or any persons in trust for them, for or upon the loan of any moneys by way of bottomry on any ship in the service of foreigners, and bound or designed to trade in the East Indies or parts aforesaid, shall be and are hereby declared to be void." Dr. Deane, Q.C., and Clarkson for the plaintiffs, now moved the Court that the answer might be amended so far as its contents referred to the statute. Lushington for the defendant. thereto," &c. The 2nd section contains several provisions for preventing any foreign trade, and, amongst others, it prohibits all contracts of bottomry by British subjects on ships in the service of foreigners. It is manifest that the sole object for this prohibition is the protection of the monopoly. The relaxation of this monopoly was a gradual process, both as to place and person. The monopoly continued longer as to China than as to the East Indies, and excluded foreigners longer than British subjects other than servants of the Company. The abolition, so far as concerns British subjects, was effected by the 2nd section of 3 & 4 Will. 4, c. xciii. (An Act to regulate the Trade to China and India), which declares that, notwithstanding any provision made for the purpose tofore enjoyed by the Company in any Act of Parof protecting the exclusive rights of the trade thereliament contained, it should be lawful for any of his Majesty's subjects to carry on trade with any countries beyond the Cape of Good Hope to the Straits of Magellan. Then with regard to foreigners,-in 1797 the statute 37 Geo. 3, c. 117, was passed, reciting the Navigation Act, and empowering the Directors of the East India Company to admit foreign ships to trade to the East Indies notwithstanding the statute. The Court of Directors exercised this power by issuing a regulation, to be found in Hertslet, vol. vi. p. 535. The regulation provides "that foreign ships belonging to every state or DR. LUSHINGTON.-No doubt exists that a British Act of Parliament does not become inoperative by mere non-user, however long the time may have been since it was known to have been actually put in force; but the fact of non-user may be extremely important, when the question is, whether there has been a repeal by implication. What words will establish a repeal by implication it is impossible to say from authority or decided cases. If, on the one hand, the general pre-country in Europe or in America, so long as such states sumption must be against such a repeal, on the ground or countries respectively remain in amity with her that the intention to repeal, if any had existed, would Majesty, may freely enter the British seaports and be declared in express terms; so, on the other, it is harbours in the East Indies, whether they come not necessary that any express reference be made to directly from their own country or from any other the statute which is to be repealed. The prior statute place, and shall there be hospitably received, and would, I conceive, be repealed by implication, if its shall have liberty to trade there in imports and exports provisions were wholly incompatible with a subsequent conformably to the regulations established, or to be one, or if the two statutes together would lead to wholly established, in such sea-ports ;" and then follows a absurd consequences, or if the entire subject matter were proviso that they shall not engage in the coastingtaken away by the subsequent statute. Perhaps the trade. Since that period various other measures have most difficult case for consideration is, where the sub-been adopted to put the foreign trade with India on ject matter has been so dealt with in subsequent the same footing as the trade carried on in British statutes that, according to all ordinary reasoning, the vessels and by British subjects. By an Act of the particular provision in the prior statute would not Government of India, No. 6, 1848, the duties on have been intended to subsist, and, yet if it were left goods imported or exported in foreign and British subsisting, no palpable absurdity would be occasioned. vessels were equalised; and by No. 5 of 1850, the Previous to this statute of 7 Geo. 1, c. 21, the coasting-trade of India was thrown open to foreign whole of the East India trade was a strict monopoly in vessels on the same terms as to British vessels. the hands of the East India Company. Not only had there been a series of Parliamentary Charters, but foreign ships were further excluded from trading to British possessions in India by virtue of the Navigation Act, 13 Car. 2, c. 18. This statute of 7 Geo. 1, confirms the monopoly: the title being "an Act for the further preventing his Majesty's subjects from trading to the East Indies under foreign commissions, and for encouraging and further securing the lawful trade The trade therefore to India is now as open to foreign as to British vessels. If this be so, not only has all possible reason for the prohibition contained in sect. 2 of 7 Geo. 1, c. 21 of bottomry on foreign vessels engaged in the India trade ceased to exist, but the continuance of that statute would be inconsistent with the state of trade as established by subsequent statute. I therefore am of opinion that the statute 7 Geo. 1, c. 21, sect. 2 is repealed by implication. EQUITY. Privy Council. DILL, Appellant, v. MURPHY | powers of the said Legislative Assembly were the same and PALMER, Respondents. as those which were held, exercised, and enjoyed by 2 FEB. 1864. Present- LORD CRANWORTH, LORD CHELMSFORD, LORD JUSTICE KNIGHT-BRUCE, LORD JUSTICE TURNER. Privilege of Colonial Parliament-18 & 19 Vict. c. 55-Legislature of Victoria-Colonial Act, 20 Vict. No. 1-Meaning of the term "Define." The Legislature of Victoria was empowered by an Act of the British Parliament to define the privileges, immunities, and powers the Legislative Council and Assembly should enjoy, provided they should not exceed such as were then held, enjoyed, and exercised by the Commons House of Parliament. The Colonial Legislature, in exercise of this power, enacted that the privileges, &c., of the Council and Assembly, should be those held, &c., by the British Commons House of Parliament at the date of the above Act:Held, that this enactment had properly defined these privileges, &c., and sufficiently exercised the power delegated to the Colonial Legislature, and that the privilege of arresting persons for contempt could be rightly enforced by the Legislative Assembly. This was an appeal from the judgment of the Supreme Court of Victoria in a suit by the plaintiff (the now appellant) against the defendants (now the respondents), to recover damages for an assault and false imprisonment alleged to have been committed by the respondents under the following cir cumstances. The appellant was the printer and publisher of a newspaper at Melbourne, called "The Argus." The respondents were the Speaker and the Serjeant-atArms of the Legislative Assembly of the Colony. The declaration was in the usual form for an assault and false imprisonment by the defendants. The defendants pleaded three pleas of justification. The first of these stated in substance, that by virtue of "the Constitution Statute" and of the Statute of the Colonial Legislature, 20 Vict. No. 1, a Parliament of Victoria was sitting at the Parliament House in Melbourne, and a select committee of the Legislative Assembly, duly appointed to inquire into certain matters, was also sitting, and that the defendant, Sir F. Murphy, was a member and the Speaker of the said Assembly, and that the defendant, William George Palmer, was the Serjeant-at-Arms, and that by force of the statutes aforesaid, the privileges and the Commons House of the Imperial Parliament at the time of the passing of the said Constitution Statute, and that one of those privileges and powers was that of ordering the attendance at the bar of the said House of any person, and, in the event of his wilful disobedience and contempt of such order after due notice, of sending for such person and bringing him before the House, under the warrant of the Speaker, and that while the said Assembly and select committee were so sitting, the appellant published in "The Argus" House, and was thereupon duly arrested by the Sernewspaper a libel upon one of the members of the jeant-at-Arms. The appellant demurred, upon the ground that the Colonial Legislature possessed no such powers as appeared to have been exercised, and that the powers, privileges, and immunities of the Legislative the meaning of the Constitution Statute. Council and Assembly had not been "defined" within The Constitution Statute, upon which the above pleas were founded, was an Act passed in the year 1854 by the Colonial Council of Victoria, and confirmed by and set out in the 1st Schedule to the Statute of the Imperial Parliament, 18 & 19 Vict. c. 55, and the 35th section thereof as so set out is as follows "Section 35. It shall be lawful for the Legislature of Victoria by an Act or Acts to define the privileges, immunities, and powers to be held, enjoyed, and exercised by the Council and Assembly, and by the members thereof respectively provided that no such privileges, immunities, or powers shall exceed those now held, enjoyed, and exercised by the Commons House of Parliament, or the members thereof." In exercise of this power the Colonial Legislature passed an Act (20 Vict. No. 1,) the title, preamble, and first section of which are as follows: "No. 1. "An Act for defining the privileges, immunities, and powers of the Legislative Council and Legislative Assembly of Victoria respectively. [25th February, 1857.] "Whereas by an Act, intituled 'An Act to enable her Majesty to assent to a bill as amended of the Legislative Council of Victoria,' it was, amongst other things, enacted that there should be established in Victoria, instead of the Legislative Council then subsisting, one Legislative Council and one Legislative Assembly, to be severally constituted, as therein pro |