5. Where the indictment in such a case states the child to have been born a bastard, the proof that it was so, lies on the prosecutor; but evidence that the prisoner told a person that she had only mentioned her being with child to the father of it, who had lately got married, was held to be suf ficient proof of the allegation. Ibid.

6. If a child has breathed before it is born, this is not sufficiently life to make the killing of the child murder. There must be an independent circulation in the child, or the child cannot be considered as alive for this purpose. Rex v. Enoch,

NEGLECT OF DUTY. See MAGISTRATE.

NEGLIGENCE.

539

5. In an action of trespass for injury done to a horse by a pony and chaise running against it, it was sworn, on the part of the defendant, that his wife was holding the pony by the bridle, and a showman came by and frightened the pony, who ran off with the chaise-Held, that, if true, this was a good defence on a plea of not guilty. Goodman v. Taylor, 410

6. In an action against the captain of a steam vessel for swamping a loaded wherry on the river by a swell produced by a too rapid rate of passage, the jury, to find for the plaintiff, must be satisfied that the mischief was occasioned by the swell alone: and if they think it doubtful whether it was or not, or think that the plaintiff contributed to the injury he sustained, by his own improper conduct, either in mismanaging or overloading the boat, they must find their verdict for the defendant. Luxford v. Large, 421 7. In an action for the negligent driving the defendant's carriage against that of the plaintiff, the plaintiff cannot examine his servant who drove his carriage, without releasing him. Wake v. Lock, 454

NEW ASSIGNMENT. A replication of de injuria in trespass, with a new assignment that the defendant committed the trespasses with more violence and in a greater degree than was necessary for the purposes in the plea mentioned, is demurrable. Thomas v. Marsh, 596

NOTICE TO PRODUCE.

See ARSON, 2.

1. A cause came on to be tried at the Assizes on a Wednesday morning; on the previous Monday evening, the defendant's attorney, being at the assize town, was served with a notice to produce a book, which would probably be at his office, which was nineteen miles from the assize town:-Held,

A building had been built for an oven to bake bricks, but afterwards was roofed, and a door put to it. In this place, the prosecutor kept a cow; adjoining to it, but not under the same roof, was a lean-to, in which another person kept a horse. Neither the prosecutor, nor the person of whom he rented this building, bad any house or farm-yard near it, nor did any wall connect it with any dwelling-house, the nearest dwelling being one hundred yards off, and not belonging to either the prosecutor or his landlord:-Held, that the building was neither a stable nor an outhouse, and that, if a person set it on fire (the lean-to not being burnt) he was not indictable for arson. Rex v. Haughton,

PALACE COURT.

See ATTORNEY, 5.

555

clerk was in the rector and parishioners. In the year 1881, the parishioners of the united parishes in vestry assembled elected a parish clerk, but the rector at first refused to sanction the appointment, and himself appointed another person: afterwards, however, he appointed the person elected by the assent of the parishioners. But the person whom he had previously appointed, one Sunday morning placed himself in the clerk's desk in the church of the united parishes, and, refusing to retire upon request, was laid hold of by one of the churchwardens and the vestry clerk, and an attempt was made to remove him by force, but which was not successful. For the purpose of trying the right to the office, he brought an action of assault against these officers, who pleaded specially two sets of justifications; one set alleging the legal appointment of the person elected by the parishioners, to place whom in the desk they sought to remove the plaintiff; and the other set treating the plaintiff himself as an intruder. The jury were of opinion that the custom was for the rector to appoint, with the assent of the parishioners, and found a verdict for the defendants. A rule was afterwards obtained for a new trial, which, after argument and time taken to consider, was discharged, the Court being of opinion that the plaintiff was not lawful parish clerk, as he was appointed by the rector alone, without the concurrence of either of the parishes; but they did not decide whether the election by the united vestries was right or not, though they said that it appeared to be the natural mode. In the course of the trial, it was ruled that old entries in the vestry books of the parishes were not evidence to show the right of election, as it did not appear whether the incumbent was present at the meetings they re lated to. But extracts from the r

1. "A certain cover in the parish of A." is too general a description to sustain an indictment for poaching, under the stat. 9 Geo. 4, c. 69. Rex v. Crick, 508

2. A count in an indictment for night-poaching stated, that the prisoners were in a field called A., for the purpose of then and there taking game:-Held, that the prisoners could not be convicted on that count, unless the Jury were satisfied that the prisoners had an intention of taking game in that particular field. Rex v. Capewell,

549

3. A count for night poaching may be joined with a count in sect. 2 of the stat. 9 Geo. 4, c.69, for assaulting a game-keeper authorized to apprehend, and with counts for assaulting a game keeper in the execution of his duty, and for a common assault. Rex v. Finacane,

POSSESSION.

See SHIRE HALL.

551

POST OFFICE.

1. S. was employed by a post-mis. tress to carry letters from Dursley to Berkeley, at a weekly salary paid him by the post-mistress, but which was repaid to her by the post-office: Held, that S. was a person employed by the post-office, within the stat. 52 Geo. 3, c. 143, s. 2. But a letter

sent from Cardiff to Dudley, and which, it was alleged, was mis-sent to Dursley, if stolen by S., would not be a letter which came to his hands "in consequence of his employment." Rex v. Salisbury,

155

witness whom he intends to call; but, in correct practice, the statement ought to be confined to the general effect of the conversation. Rex v. Deering,

165

3. A person indicted with others for an offence, but against whom the bill has been thrown out, may, if he be in custody at the time of the trial of the others, be placed at the bar to be identified as one who was in their company. Ibid.

4. If a letter be shewn to a witness for the defendant, on the voire dire, to make out that he has an interest, and the witness be released and examined, the Judge will not prevent the plaintiff's counsel from observing on this letter in his reply. Paul v. 237 White,

5. A counsel, to whom a retainer in a cause has been given, no brief having been delivered, cannot withdraw the record. Doe d. Crake v. Brown, 315

6. Observations made by a wife to her husband upon a subject, which afterwards becomes matter of criminal charge against him, and to which he gave no direct reply, may be opened to the jury by the counsel for the prosecution. Rex v. Smithies, 332 7. Rule as to remanets in C. P. 440 PRINCIPAL AND ACCESSARY. See ACCESSARY.

PRINCIPAL AND AGENT.

See BRIBERY.-DETINUE.

A memorandum indorsed on a ship's policy of insurance for a change of voyage, was signed by an agent of the insurance company. It was proved that the agent had signed similar memorandums on many other policies, and that his habit was to do so, and advise the company of it; though, when a new policy was required, he always sent the proposals to the com

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