Nov. 26, 1859-REPORTS.] Re SANDERS . PENLEASE. [Q. B. by consent of counsel it was referred to the master to he had the power, he had not given any directions on The first question submitted to the court was, whether the expense of these dinners, in addition to the 57 per cent. could be charged upon the living, or whether, if the sequestrator thought proper to give the dinners, he ought not to pay the expense out of the 57. per cent. which was allowed him for the discharge of his duties as sequestrator. Mr. Penlease made no objection to them till April 1856, when he wrote to the bishop; but in answer to that letter Mr. Barnes on the 15th May wrote to Mr. Penlease explaining the reasons why the dinners were given. He reminded Mr. Penlease that it was his own practice-adopted, because it was the most To that letter convenient way of obtaining payment, and that he himself presided at some of those dinners. there was no answer; and therefore the sequestrator There were 104 might well assume that Mr. Penlease was satisfied with the explanation and acquiesced. The second question submitted to the court was, payers of rentcharge, and if the dinners were not whether the sequestrator was justified in paying the given it would be necessary to institute legal proceedpoor and highway rates for the curate appointed by the ings, the expense of which, in many instances, would bishop to serve the cure, and to whom the bishop had fall upon the living, for the law inade no proor vision for the payment of the expense of notices. The assigned the parsonage-house as his residence; whether he should not have left the curate to pay his sequestrator had not departed from what was shown to be the invariable practice. [COCKBURN, C.J.-The owner of the estate might in his discretion incur such expenses, but when the estate was taken out of his hands to be administered for the benefit of creditors, he had a right to say he would not incur the expense. HILL, J.-If Mr. Penlease had come to the court A fourth objection was, that the registrar had made immediately after the sequestrator persisted in the excessive charges for his trouble in issuing and pub-expense, the court would have made a rule that he lishing the various writs of sequestration. own rates. A third objection was, that the sequestrator had improperly kept money in hand instead of paying it over to the creditors; but this objection was decided by the master in favour of the sequestrator, who the master thought had acted bond fide. should account for whatever he had expended beyond A fifth objection was, that the sequestrator had neg- such a reasonable sum as a solvent person could manage lected his duty in not taking care that the assessments the estate for.] The sequestrator's accounts had been on the living should be from time to time reduced as regularly passed, and by passing the sequestrator's the value of the glebe and tithe rentcharge as ascer-accounts the bishop had in effect sanctioned the paytained by the averages fell. ment of the rates, and as that was an ecclesiastical matter the court would not interfere with the bishop's discretion: (Dawson v. Simmons, 12 Q.B. 830.) Collier and Cook Evans in support of the case of the incumbent Mr. Penlease.-If the sequestrator thought COCKBURN, C.J.-The object of the rule is to inproper to give dinners to the glebe tenants and payers of the tithe commutation rentcharge, he ought to have duce the court to disallow certain items in the sequesIt is admitted that the items objected paid far them out of his own pocket. The object of trator's accounts, which extend from 1846 down to giving the dinners was to save the sequestrator trouble, the last year. and it was hard that the incumbent should be called to have been bonâ fide expended, and as to the andit upon to pay those expenses. [COCKBURN, C.J.-It dinners it appears that they were adopted by Mr. Penappears that Mr. Penlease knew that such dinners were lease himself as the most convenient mode of getting given, and acquiesced.] Mr. Penlease went abroad in in the tithe, as well as of keer ing up harmony between 1847, and did not return until 1856, and on the the rector and the tithepayers During the whole of 19th April 1856 he wrote to the bishop, saying, the period from 1846 down to the year 1856 Mr. Pen"When I left England I objected to this (the dinners), lease was perfectly silent, and took no objection to and most strongly protest against the allowance of any those expenses, though he had an opportunity during The affidavits do not show anything to such sums, and shall, before the closing of the seques- the whole of that period of ascertaining the state of trator's accounts, refer them to the Queen's Court, the accounts. excuse what the court must consider as laches on his whence the writ issued." The usual practice was to appoint the creditor as sequestrator, and an application part, and it must therefore be taken that by lying by was made by Mr. Penlease to the Bishop of Exeter, in he acquiesced in the expenditure. Mr. Penlease then 1851, to appoint Mr. Price, a respectable solicitor and says that in 1856 he did object to one of the items (the principal creditor, as sequestrator; but the application expense of the dinners), and brought his objection prowas refused, upon the ground that it was the bishop's minently to the attention of the bishop, in his letter of rule to appoint his own sequestrator. Mr. Sanders the 19th April 1856, and therefore that he is entitled It is necessary for the court to decide whether was appointed as sequestrator for all the livings to the assistance of this court to get rid of those exin the diocese under sequestration. The learned penses. counsel contended that the allowance of dinners would or not those expenses have been properly incurred. But be open to great abuse, but that, if that item of expense I am bound to say that, when a sequestrator is put in were allowed, then 5 per cent. was too much, and ought to be reduced; also, that the sequestrator had no authority to pay the rates, nor had the bishop any power in this case to order them to be paid, and if possession of a living for the benefit of creditors, the incumbent has a right to say to him, "I deny you the exercise of the discretion which I, as owner, was entitled to exercise as to the expenditure, and you must limit WILLIAMS . LAKE. [Q. B. subject to a special case for the opinion of this court, on the legal effect, under the Statute of Frauds, of a written guarantee produced before the said judge. The facts proved at the hearing under the said reference were, that one William Owen and one John Thomas, of Cap Coch, agreed together to have built for themselves, fourteen cottages (seven for each separately), the site of which was chosen by them and the defendant Thomas Lake, and that the defendant was to advance money on the security and mortgage of, the proposed buildings. The said William Owen and John Thomas, of Cap Coch, first offered the contract of building to one John Thomas, of Cwmbach, but he was only willing to undertake the carpenters' work, and not the whole building. The said William Owen and John Thomas, of Cap Coch, then offered the contract to one Thomas Jones, who refused to undertake the work without the signature or some undertaking of the defendant Thomas Lake. A guarantee was given by the defendant to John Thomas in these words : "April 27th, 1857. "Sir,-I beg to inform you that I shall see you paid, the sum of 8007. for the ensuing building, which you undertake to build for Messrs. Thomas and Owen, of Cap Coch. I am, Sir, yours, &c. Q. B.] yourself to those means of getting in the assets which the law allows;" and it is not for the sequestrator to give dinners, on the speculative notion that that is the best mode of getting in the estate. In the present case Mr. Penlease had taken objection to the dinners; but he received from Mr. Barnes a full explanation of the reason for the item, and to that explanation, so far as it appears, he made no answer. It must, therefore, be taken that he acquiesced in those reasons, and it is not open to him to come to this court two years after he received that full and explicit explanation, to have the money reimbursed after it had been bona fide expended. As to the allowance of 51. per cent. made to the sequestrator, that is the usual and customary allowance. It was said that another gentleman would have undertaken the duty at a cheaper rate, that Mr. Price would have undertaken the duty gratuitously; but I am bound to say that Mr. Penlease's communications to the bishop on this subject were of the vaguest description; and, besides, the bishop might have had reasons for preferring to appoint Mr. Sanders as sequestrator in each case, and for objecting to Mr. Price. There is no ground for sup-to posing that any abuse has been committed by investing Mr. Sanders with a monopoly, so as to enable him to make more money out of the estate than was reaTHOMAS LAKE." sonable and fair. With respect to the payment of the Thomas Jones, to whom this guarantee was intended rates on the parsonage, appears that while Mr. Pen- to be given, when it was delivered by the said Thomas lease for two years was acting as curate, and received a Lake to John Thomas, refused to undertake the buildings, stipend as officiating minister, he was quite content and refused to accept the guarantee. It was, in fact, that the rates should be charged on the estate, instead first offered to Thomas Jones; he took it away in the of paying them out of the 1501. a-year which he evening and brought it back the next morning, and said received as his salary. The question, however, is, whether he would have nothing to do with the building. He that is a reasonable item of expenditure. It is to be ob- brought the guarantee back to William Owen. After served, that the allowance to the curate was a matter for this refusal, and before seeing Thomas Lake again, the exercise of the bishop's discretion, and that if the John Thomas and William Owen agreed with the plaintiff bishop had added the amount of the rates on to the to build the houses, and when they so agreed with the amount of the stipend of the curate, there would plaintiff, William Owen offered to him the abovehave been no objection. His Lordship intimated mentioned guarantee of Thomas Lake, without the his opinion that this was a reasonable item of expendi-authority of the said Thomas Lake, and it was accepted ture; or at all events that, as the incumbent had for a by the plaintiff, but the said guarantee was not long series of years acquiesced in it, it did not lie in his delivered to the plaintiff until a few days after signing mouth to say he was not acquainted with the accounts the agreement. when they were open to his inspection. With respect to the last question, viz., that of improperly keeping balances in his hands, I think it is the duty of a sequestrator at the earliest possible moment to make payments to the creditors, and perhaps in this case there has been a little delay in not paying the creditors as soon as should have been done. But the objection was not made until the last moment, and that is not accounted for by saying that till the vouchers were seen the incumbent was not aware of the state of the facts. I cannot help saying that both Mr. Penlease and the creditors have been negligent as to their own interests in not seeing that the payments were made as soon as possible. Under all the circumstances of the case, although it is possible that, if Mr. Penlease had been more prompt in his objection and application to this court, one or two of the items might have been open to objection, yet, as no imputation rests on the good faith of Mr. Sanders, and Mr. Penlease has been guilty of great laches, I do not think the case is made out. HILL and BLACKBURN, JJ. were of the same opinion. Friday, Nov. 18. The contract for the building was duly made and signed the 9th May 1857, between the plaintiff and the said John Thomas and William Owen, and was duly stamped. When the guarantee was given by Thomas Lake, the plaintiff had not been named to him as the intended contractor for the work, nor was the guarantee intended for him; it was given to the plaintiff about a week after the building contract was signed. During the progress of the building money was advanced by Thomas Lake to John Thomas and William Owen, and Thomas Lake knew that the plaintiff held the guarantee, and that the money paid by him into the hands of John Thomas was paid over with his knowledge and assent by John Thomas to the plaintiff. During the progress of the buildings, they were visited and inspected by Thomas Lake. When the building was proceeding William Owen remonstrated with the defendant respecting the nonpayment of a portion of money payable on account of the building to the plaintiff, when the defendant gave him a writing in these words : "June 9, 1857. "Sir,-I beg leave to inform you, concerning William Owen's houses, that you have no need to be in no suspense about it, as I assure you that anything with [sic] required of [sic] you to have your money is all right. I am, &c., THOMAS LAKE." It is necessary, to satisfy the 4th section of the Statute This written paper was delivered by Thos. Lake to of Frauds, that the name of the person to be William Owen, with the knowledge that the plaintiff guaranteed should appear on the note or memorandum was at the time the contractor, and with the knowledge to be signed by the party to be charged therewith. that he held the guarantee signed by Thos. Lake the This was an action referred to the judge of the defendant. This writing of the 9th June was also County Court of Glamorganshire, who made his award | given by the defendant to William Owen, in order to be Q. B.] FOULGER v. TAYLOR. [Q. B delivered by William Owen to the plaintiff, though the | ties contracting, and be then signed by the party to be defendant did not, when he delivered the guarantee of charged. Nothing could make this guarantee complete the 27th April to John Thomas, authorise him to give without parol evidence. Here the name of the party it to the plaintiff. The arbitrator found that, after it was to whom the guarantee is given in no way appears. delivered to the plaintiff, the defendant ratified and sanctioned the delivery of the guarantee to him. The name of the plaintiff is not written on either of the two writings. BLACKBURN, J.-I must also give my judgment for the defendant. I am sorry it is so in the present case, because here it works an injury; but our judgments in so important a point must be consistent, without reference to individual cases. This case well illustrates the injury that might arise, for it appears that the writing that was originally intended to mean "I guarantee Thomas Jones," now means "I guarantee Thomas Williams." Then comes the ratification, which. might be sufficient, but that no more contains the name than the original. In Champion v. Plumer, 5 Esp. 240, there is an express decision stating that view. I think there is no note in writing sufficient to satisfy the statute. Judgment for defendant. FOULGER v. TAYLOR. Bill of sale-17 & 18 Vict. c. 36-Description of grantor in bill of sale and affidavit. The question for the opinion of the court is, Whether there was a sufficient agreement, memorandum or note, within the 4th section of the Statute of Frauds. Norman for the plaintiff. To make a valid agreement of this nature binding as between the parties, if one man makes an offer in writing and it is accepted by parol, that is sufficient. [HILL, J.-To make a valid agreement there must be two contracting parties and a subject-matter; if either of those be wanting, your writing is insufficient. It is not necessary that it should be signed by both, but it must be signed by the one to be bound thereby.] To satisfy the 4th section of the Statute of Frauds, it is not necessary that the whole memorandum should be in writing; the acceptance may be by parol. [CoCKBURN, C.J.-One chief object of the statute was to prevent false evidence; now, if this were allowed, the memorandum might get into other hands, and be used with respect to other property which the person who signed it never meant to be bound to pay for.] Until Smith v. Neale, 26 L.J. 143, C.P., it was always supposed that the agreement must be completed. [COCKBURN, C.J.-How can The case came before the County Court on an interthere be an agreement without two parties?] There pleader suinmons and issue, the question being whether is a distinction between the 4th and the 17th sections certain property seized by the high bailiff of the said of the statute. [HILL, J.-Lord Abinger said there County Court on the 20th June 1859 was the prowas no difference in the language of the two sections.]perty of the said claimant George Searby, as against M'Lane v. Dunn, 4 Bing. 722, is an authority as to the subsequent ratification. (Coleman v. Upton, 5 Vin. Abr. 528, was referred to.) Milward, contra, was not called on. There is nothing in the Bill of Sale Act which requires a son bearing the same name as his father, and being the grantor of a bill of sale, to describe himself as "A. B. the younger" in the bill of sale and affidavit. This was an appeal from the decision of a County Court judge. Robert Foulger, the execution-creditor, who had theretofore obtained judgment as against the said defendant, and issued execution under which the said high bailiff had seized the property claimed. The goods seized were formerly the property of the defendant William Taylor the younger, but had by deed by way of mortgage, dated the 15th March 1859, been assigned by him to the said George Searby, the claimant. At the time of the seizure the said goods were in the possession of the said William Taylor the younger. COCKBURN, C.J.-I am of opinion that our judg ment should be for the defendant. The action was brought on a guarantee signed by the defendant, and it turns out that the guarantee is in blank so far as the name of the party who is to be guaranteed is concerned -and the objection is, that this is no memorandum to satisfy the 4th section of the statute; and that, I think, is a good objection and must prevail, on the ground that The question is, whether or not the deed and affito satisfy the requirements of the Act it is absolutely davit filed under the statute 17 & 18 Vict. c. 36, essential that the names of the parties to the agree-sufficiently comply with the requirement of that stament should appear; it is not necessary that both tute, the said William Taylor being described therein should sign, but both names must appear on the memo- as William Taylor only, and not as William Taylor the randum or note. It is admitted that an agreement is younger. necessary between two parties, and the names of both must appear on it, but it is said a memorandum or note may be otherwise satisfied. The only difference between an agreement and a note or memorandum is, that the one is a formal instrument, and the other not so formal, but the latter must contain all the essentials of the former, and, amongst other things, the names of the parties. That is not only a fair and reasonable construction, but when we look at the intention of the statute it is clear that, to avoid the evil the statute was meant to remedy,tion he ought to have been described in one or other of it must be so. It is clear, if such writings were left in blank, fraud and abuse might be perpetrated. In this case the person guaranteed might build more than the defendant intended to guarantee, or the guarantee might have been put in the hands of another person; you would then have a conflict of parol evidence, in which sometimes fraud might succeed, which it was the object and intention of the statute to prevent. HILL, J.-I am of the same opinion. Mr. Norman referred to a class of cases which say that it shall not be necessary that the person who seeks to enforce the guarantee should sign, the statute only requiring that the memorandum should be signed by the person to be charged. Now, in my opinion, it is not a good memorandum unless it indicates the names of both the par At the hearing of the interpleader summons it appeared that the only witness called had known the said William Taylor the younger for six or seven years, and always as William Taylor the younger. It was then contended that the statute before referred to had not been complied with, inasmuch as the name and description of the assignor were not sufficiently set forth, either in the bill of sale or in the affidavit of execution, and that for the purposes of identity and distinc such documents as William Taylor the younger. The judge decided that the description was insufficient; that the assignment was therefore void as against the execution-creditor, and without calling upon the execution-creditor to go into evidence for the defence, adjudged the claim of the said George Searby to the said goods so seized as aforesaid to be barred. The question for the court was, whether or not the description of the said William Taylor the younger contained in the said deed and affidavit was a sufficient compliance with the statute. Needham for the appellant. COCKBURN, C.J.-The word "younger" is not a part of the name of the grantor, and there is nothing New trial granted. Saturday, Nov. 19. ASHMORE (appellant) 2. HORTON (respondent). Under the 4 Geo. 4. c. 34, s. 3, it is a lawful excuse for a servant not entering into the service of his master, that he was at the time in the service of another master whom he could not leave without being guilty of an offence under the Act. [Q. B. in the statute which requires such an addition. Sup- | the respondent, and contended that the conviction was pose two persons of the same name lived in a short good. Here was a hiring for five years from the 15th street or place in which there were no numbers, we Oct. under a valid agreement, and every incident could not hold in such a case that the word "younger" exists to bring the appellant within the statute. would be necessary; neither is it here. [COCKBURN, C.J.-Your civil rights are no doubt untouched, but here he is charged with a criminal offence. He could not go into the employment, for he was under a binding engagement with another person. Had he left that person he would have been liable to have been proceeded against at his instance. BLACKBURN, J.-He could not have entered into Horton's service without violating his contract with Pigott.] This would be enabling a person to take advantage of his own wrong. [COCKBURN, C.J.-I think he has a A. in October contracted with B., in writing, to enter his lawful excuse when he says he cannot enter into the service and serve him for five years. He was at service without committing an offence. WIGHTMAN, J. that time in the service of C. under a written en,age--That is to say, I have a lawful excuse, inasmuch as ment entered into in the July previously for five I must commit an unlawful act if I go into the seryears' service. Being convicted under the above vice.] Every word of the statute is satisfied. enactment for not entering into the service of B. pur- action for the breach of contract woull be no remedy suant to his written contract: in such a case; the statute intended a criminal proceeding in such a case as a substitute for a civil one. [BLACKBURN, J.-If the statute had said, "We impose a penalty upon a man for entering into a contract which he cannot fulfil," that would have been another thing; but that is not so. COCKBURN, C.J.-If he had left Pigott, and had entered into the service of Horton, then he would have been liable for leaving Pigott's employment.] Held, that his being at the time in such service of C. as aforesaid was an answer, and that the conviction was wrong. This was a case stated under the 20 & 21 Viet. c. 43, upon a conviction by justices of the appellant, under the 4 Geo. 4, c. 34, s. 3, for not entering into his service according to his written agreement, whereupon he was sentenced to be imprisoned and kept to hard labour for fourteen days. It appeared that, on the 15th May 1858 the appellant entered into the following written agree "JOSHUA and WILLIAM HORTON." This agreement not having been signed by Joshua and William Horton at the time, was not then acted upon, but on the 15th Oct. in the same year a second memorandum in writing was signed by all parties, being written on the face of the first agreement, and the appellant (Ashmore) thereupon received from Joshua Horton the sum of 97. for the purpose of defraying his travelling expenses to Dundee, where his services were required by Joshua and William Horton. This money was on the following day repaid by the appellant, who then stated, as a reason for it, that one Thomas Pigott, by whom the appellant was then employed, insisted on his continuing in his service. The second agreement with the Hortons was in these words: "We the undersigned, Joshua and William Horton, agree with the undersigned William Ashmore to hire him from this day for five years on the terms and conditions of the written document. And I, William Ashmore, also agree to the same. Dated this 15th day of Oct. 1858. "JOSHUA and WILLIAM HORTON, It further appeared that the said appellant did not enter into the service pursuant to the last agreement, but continued in the service of the said Thomas Pigott, by whom he had been theretofore employed for many years, being at the time of entering into the agreement of the 15th Oct. 1858 in such employment, under a written agreement dated the 5th July 1858, for the term of five years. Lush, Q.C. (O'Brien with him) now appeared for An Wills, for the appellant, contended that the conviction was bad. In Re Turner, 9 Q. B. 80, it was held that it must appear that the act of the servant must be without lawful excuse. So also Re Geswood, 2 Ell. & Bl. 952. Here his excuse is, he cannot lawfully enter into the service-it is the same as though he were in prison. If he is liable under the Act, he will be liable to be imprisoned for the whole five years, since the contract will endure for that period, and so, were he to have entered the service, his master Pigott might proceed against him under this statute; so that, whichever service he should be in, he could never escape imprisonment under the Act. [BLACKBURN, J.—And, indeed, if Horton had taken him into his service, he might probably have been himself sued for harbouring Pigott's servant.] (Ex parte Baker, 2 Hur. & Nor. 219.) Lush in reply.-The object of the statute is to panish by imprisonment persons who cannot pay dainages-it makes it a criminal act to violate a civil contract. COCKBURN, C.J.-This conviction must be reversed. It appears that this man having entered into a binding contract with a master which is still subsisting, he enters into another with another person. Now this second contract is a valid one upon its face, and it is for a breach in not entering into the service in pursuance of it that these proceedings are taken. But I think that he is not within the Act, and for this reason. The Act does not make it an offence to make a contract which he is not in a situation to perform. It seems to me that, when it is impossible for him to full the contract, except by the breach of another contract, the penalty of the Act does not attach. The penalty is incurred where he omits to enter the service without lawful excuse. The question here is-is there a lawful excuse? I think that there is a lawful excuse when he says, "I cannot enter into the service without doing a criminal act." It may be that this is no excuse against a civil action. Suppose a man were to enter into a contract to do some work prohibited by the Legislature. That would be an answer under this statute. might say, "My first duty is to obey the law." Here he could not enter into the second contract without break.ing his first contract. I think, therefore, that the conviction cannot be sustained. He Nov. 26, 1859-REPORTS.] Q. B.] WALKER v. EVANS-WOODHOUSE v. WOOD AND ANOTHER. WIGHTMAN, J.-I at first entertained some doubt, as the appellant is clearly within the words of the 4 Geo. 4. The words, taken as they stand, certainly But it has from bring the appellant within the Act. an early period after the statute been held that the mere act of not entering into the service is not sufficient-it must be not entering into the service withexcuse; and indeed this must out some lawful obviously be so, for he might be bodily disabled from Then, how stands the case entering into the service. with the appellant? Has he a lawful excuse? Now it seems he had proposed to enter into a contract in May, but before he entered into a valid one, in October, he had entered into a contract and served with Mr. Pigott. It seems to me that the statute did not contemplate such a case as this, for the consequence might be that he would be liable to each inaster. His excuse is, that he could not enter into the contract, as he would subject himself to penal consequences at the instance of Mr. Pigott. Is this a It is not the question lawful excuse? I think it is. whether Mr. Horton has any remedy, but whether the I think he had appellant is liable under this Act. lawful grounds for not entering into the service. BLACKBURN, J.-I am of the same opinion. The appellant certainly comes within the literal meaning of the words of the statute; but then the statute means, not entering into the service without lawful excuse. The appellant says, True, I have entered into the contract, but I had previously entered into another contract, and if I violate that, I shall be liable to criminal consequences." The Legislature has not made it an offence to enter into a contract which he is not in a situation to fulfil. Judgment for the appellant. WALKER (appellant) v. EVANS (respondent). Steam-tug plying between London-bridge and the Norelight not consuming its own smoke-Conviction-16 17 Vict. c. 128-19 & 20 Vict. c. 107. A steam-tug which plies on the river Thames, and in towing vessels up and down the river between London-bridge and the Nore-light, is within the meaning of sect. 1 of the 19 & 20 Vict. c. 107, which applies to "steam-vessels plying to and fro between Londonbridge and any place on the river Thames to the westward of the Nore-light," and should therefore be constructed so as to consume its own smoke. This was a case stated upon a conviction of the appellant for using a steam-tug on the river Thames between London-bridge and the Nore-light, which is not constructed so as to consume its own smoke. By the 16 & 17 Vict. c. 128, s. 2, it is enacted, that every steam-engine used in the working of any steamvessel on the river Thames above London-bridge shall be constructed so as to consume the smoke arising from such engine and furnace, under a penalty of 51. And by the 19 & 20 Viet. c. 107, s 1, it is enacted that all steam-vessels plying to and fro between London-bridge and any place on the river Thames to the westward of the Nore-light, shall be subject to the provisions of the first-mentioned Act relating to steain-vessels above London-bridge. [Q. B. COCKBURN, C.J.-We are all agreed that the case WIGHTMAN, J.-The Act is not limited to a vessel plying between two definite places. HILL, J.-The case finds that the vessel, for the most part, is employed on the river Thames westward of the Nore-light. It cannot be successfully contended that the vessel must actually start from and go to some particular place on the river Thames; for, if so, if a The real construction of the vessel did not actually come to London-bridge, it would not be within the statute. statute is, every vessel plying between the limits of London-bridge and the Nore-light. Judgment for the respondent. Monday, Nov. 21. WOODHOUSE v. WOOD AND ANOTHER. c. 45, s. 2. The A. was convicted by certain justices on 23rd Aug., ber: Held, that the provision in the above section, that the appellant shall within three days after receiving the case, transmit the same to the court, first giving notice in writing of such appeal, with a copy of the case, to the other party, is a condition precedent to the right of appeal, and that where such provision is not complied with the court has no jurisdiction. Major Cooke showed canse against a rule calling on the appellant Joseph Woodhouse to show cause why this appeal should not be struck out of the Crown paper, on the ground that the provisions of the statute 20 & 21 Vict. c. 43, s. 2, had not been complied with. It appeared from the affidavits that on the 23rd Aug. last the appellant was convicted by certain jusIt appeared that the vessel in question was a steam-tices for the county of Flint for absenting himself from tug called the Tam O'Shanter, and plied on the river Thames below London-bridge and the Nore-light, but not plying to any place in particular on the river, its engagement being to tow up or down the river such vessels as might require its services. Hosack appeared in support of the conviction, but the Court called upon the appellants to support their appeal. Sir F. Kelly, Q.C. (Sleigh with him) argued that the vessel in question was not within the terms of the Act, which applies only to vessels plying to and fro" to certain places between London-bridge and the Nore the service of the respondents without leave, or without giving them notice, and the appellant gave notice to the said justices of his intention to appeal, and required them to state and sign a case pursuant to the above-named statute. That the clerk of the justices subsequently forwarded to respondents' attorneys the draft of the case, and that it was returned by them on the 5th Sept. The appeal was set down for hearing, and the clerk of the justices forwarded the case, signed by the justices, to the attorney for the appellant on the 7th Sept. Respondents' attorneys had received no notice or the appeal from appellant, or his attorney, until |