"mortuaries" is or is not comprised in the stat. 7 & 8 Will. 3, c. 6, within the term "obventions," which is the largest term used in the statute; for if it is, the words "other customary dues and payments," in the order, must mean something beyond mortuaries-as, for instance, a heriot due upon copyhold descent; and if it is not, then the term "mortuary" is not within the statute, and the order is bad, as being applicable to a payment for mortuaries. The warrant is bad: it directs a distress to be made of the goods and chattels of the estate and effects of J. Watson, deceased. But the words of the statute are, "that the distress shall be of the goods and chattels of the party refusing to pay after summons"—that is, of the executors. [Coleridge, J.-It must mean, that the payment is to be made out of the funds of the deceased in the hands of the executors.]

Edward James, for the defendants. The principal point is, whether the payment, as for a mortuary, is within the 3rd section of the stat. 7 & 8 Will. 3, c. 6. It is submitted, that, according to the definitions in all the text-writers and older statutes, of all the terms which have been mentioned, the term "mortuary" is contained in one of the others, "offerings," "oblations," or "obventions." In 2 Inst. 490, it is said, that "mortuarium is a gift, left by a man at his death, pro recompensatione subtractionis oblationium." So, in Watson's Clergyman's Law, 582, he speaks of "mortuaries, called also oblations." The definition of the term "mortuary," in Gibson's Codex, 709, brings it within the definition of the term "oblations." In Burn's Ecclesiastical Law, a mortuary, it is said, was originally an oblation made at the time of a person's death. Then the definition of the word "oblations," in 2 Inst. 489, is thus-"Oblationes dicuntur, quæcunque a piis offeruntur Deo et ecclesiæ." And the definition of "oblationes," in Gibson's Codex, 704, note, is equally large. In Burn's Ecclesiastical Law, offerings are said to be the payments made, among other occasions, on the occasion of the burial. In Com. Dig., "Prohibition," G. 11, it is said, that, by the Statute Circumspecte Agatis, "the Court Christian holds plea for oblations, obventions, mortuaries, and pensions;" and yet the statute, in the large edition, contains only the word "mortuaries." It is true, that Lord Coke, in his reading on the statute, sets it out with the addition of the word "oblationes:" that shews, that, in his judgment, the words are equivalent. Further, as to the Statute Circumspecte Agatis, it was said that the Legislature, by mentioning only the term "mortuaries" in it, had taken a distinction between it and the other terms; and therefore, when they used only the other terms in the stat. 7 & 8 Will. 3, c. 6, it must be taken that they intended to exclude mortuaries. But it is hardly a valid argument to say, that, because the Legislature in one statute regulates the lesser payment by the specific term applicable to it, it must be understood, when other regulations are made in another statute by the use of larger terms, that the greater terms do not include the less. The same answer must be given to the same argument arising on the stat. 21 Hen. 8, c. 6, regulating the amount of mortuaries. It may, on the contrary, be shewn, that in several statutes the Legislature, when they used the larger terms, must have intended to include the less. In the stat. 24 Hen. 8, c. 12, prohibiting appeals to Rome, the grievance is said to arise from appeals in respect of tithes, oblations, and obventions; and the prohibition, in sect. 3, is against appealing for the causes aforesaid. If, then, the term "mortuary" be not contained in that statute in one of the others, "oblations" or "obventions," an appeal lay, in the case of mortuaries, notwithstanding the statute. In 27 Hen. 8, c. 20, the preamble states the grievance to be the withholding the payment of tithes and oblations; and the enactment is, that all do pay their "tithes, offerings, and other duties of holy church," which seems

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to put the largest construction on the term "oblations." In 32 Hen. 8, c. 7, the grievance is the withholding payment of tithes and oblations from lay impropriators; and the enactment is, that, in the case of the withholding of the said tithes or offerings, the lay impropriator, as well as the spiritual, may convene the offender before the ordinary: and in sect. 4 the same payments are called "tithes" or "duties;" and in sect. 7 they are called "profits." The true solution of all these different wordings is, that there are no payments recognised in law, as due to the church, which are not either tithes or offerings. In Co. Litt. 159. a., these statutes of Hen. 8 are considered as applying to all customary payments due to the church. In Com. Dig., " Dismes," B., all the terms, "obventions," oblations," tuaries," and "pensions," are treated of under the title "Of Tithes." But then it is said, that even if the word "mortuaries" be within the stat. 7 & 8 Will. 3, c. 6, the order is, nevertheless, bad on the face of it. There are, however, matters mentioned in the order over which the justices had clearly jurisdiction; and then the addition of other matter is only surplusage, and may be rejected. (Rex v. Owen, 4 Burr. 2095). [Patteson, J.-There the commitment was for contempt of the ordinary in not appearing to answer a charge of subtraction of tithes and other ecclesiastical dues: if the defendant had subtracted tithes, he was clearly bound to appear; and he was committed for not appearing. But this is an adjudication that 10s. are due for oblations, obventions, and other customary dues and payments; that is, for all of them: then, if there be any matter, under any of the terms, into which the justices had no authority to inquire, have they not directed that a payment is to be made for something concerning which they had no authority to say anything was due?] General, after particular words, must be confined and taken to mean matters ejusdem generis. (Sandiman v. Breach, 7 B. & C. 96). [Erle, J.-Be it so; yet the latter words of the order mean something besides oblations and obventions; and, then, are not you beyond the statute?] No; the words in the statute are, "offerings, oblations, obventions, and compositions;" the words "other customary dues and payments," in the order, must be taken to mean those other payments mentioned in the statute besides oblations and obventions-that is, offerings or compositions; and if that be so, the order is good on the face of it. But then it is said, that evidence ought to have been admitted to shew, that, in point of fact, the justices ordered the payment in respect of a mortuary. No such evidence was admissible. The justices, on the face of the order, declare that they directed the payment to be made in respect of offerings, oblations, obventions, and compositions. The plaintiffs, at the trial, were concluded by that declaration. (Rex v. Bolton, 1 Q.B. 66). But if the evidence were admissible, and if all the argument for the plaintiffs as to the statutes be right, the case only comes to this, that, evidence being given before the justices of a debt due in respect of a mortuary, they have, by mistake, adjudicated, that that which was in law a mortuary, is an oblation, obvention, or offering. Well, that is matter of appeal in the way of error, not of objection for want of jurisdiction. (Mould v. Williams, 5 Q.B. 469; Brittain v. Kinnaird, 1 B. & B. 432).

Addison, in reply.-It was said, in Brittain v. Kinnaird, that, although the justices should have decided that a man-of-war was a bum-boat, their conviction, under the Bum-boat Act, was conclusive against the plaintiff in the action, that he had used a boat; but suppose the justices, in that conviction, had used the word "vessel," might not evidence have been given to shew what they intended by that term? No answer, then, has been given to the argument in favour of admitting evidence in the present case. None of the authori ties cited on the other side shew, that, in the stat. 7 & &

Will. 3, c. 6, the term "mortuary" is contained within any of the terms" offerings,' ‚""oblations," or "obventions." But if it be, yet the order is wrong on the face of it, for the reasons before given; and if so, the justices are liable. (Lindsay v. Leigh, 17 Law Journ., N. S., M. C., p. 50). Cur. adv. vult. PATIESON, J., now delivered the judgment of the Court.-The principal question in this case is, whether "mortuaries" are within the jurisdiction of justices of the peace, under the stat. 7 & 8 Will. 3, c. 6, s. 1. The preamble of the act mentions only "small tithes." The enacting part uses the words "small tithes, and compositions and agreements for the same, with all offerings, oblations, and obventions;" and, in case of their subtraction, gives a summary remedy before two justices. An appeal is given to the sessions, and the writ of certiorari is taken away, "unless the title of such tithes, oblations, or obventions shall be in question." It is also provided, by sect. 8, "that where any person, complained of for subtracting or withholding any small tithes, or other duties aforesaid, shall insist upon any prescription, composition or modus decimandi, agreement, or title, whereby he is or ought to be freed from the payment of the said tithes or other dues in question," on security given, the justices shall forbear, and the party complaining may sue in any other court, where he might have sued before the passing of

the act.

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The word "mortuary" is not used throughout the act; but the defendants contend, that it is comprehended in the words " offerings," "oblations," or "obventions." The origin of mortuaries is by no means clear, but they seem to have been in very early times voluntary, as a sort of offering to the church for any possible omissions of which the deceased person may have been guilty in respect of the dues of the church. Afterwards the second-best beast of the deceased seems to have been claimed as a mortuary of right. At any rate, so early as the reign of Edward I, the right to a mortuary had become matter of custom. The Statute Circumspecte Agatis, 13 Edw. 1, has these words "Item, si rector petat versus parochianos oblationes et decimas debitas vel consuetas," &c. "Item, si rector petat mortuarium in partibus ubi mortuarium dari consuevit," &c. "In omnibus prædictis casibus habet judex ecclesiasticus cognoscere regià prohibitione non obstante;" from which words it appears that a mortuary was, at that time, matter of custom, and also, that it was not considered as included in the word "oblatio," which is used in a distinct clause of the statute.

The same expressions are used in the Statute Articuli Cleri, 9 Edw. 2: Imprimis, laici impetrant prohibitiones in genere super decimis, obventionibus, oblationibas, mortuariis," &c. "Rex ad istum articulum respondit, quòd, in decimis, oblationibus, obventionibus, mortnaris, quando sub istis nominibus proponuntur, prohibitioni regiæ non est locus."

Then comes the stat. 21 Hen. 8, c. 6, which is confined to mortuaries only, and enacts, sect. 3, "that no mortuary shall be given, asked, or demanded, from henceforth, of any manner of person, but only in such places where, heretofore, mortuaries have been used to be paid and given, and, in those places, none otherwise but after the rate and form hereafter mentioned;" and then it limits the amount, and the highest is 10s. for any person, dying or dead, having, at the time of his death, of the value, in moveable goods, of 40%. or above, to any sum, whatsoever it be, clearly above his debts paid. And, by sect. 2, it is plain, that the mortuary Was to be sued for in the ecclesiastical court. In the same reign, acts were passed, viz. 27 Hen. 8, c. 20, for the better recovery of tithes, offerings, and other duties," and 32 Hen. 8, c. 7, for "tithes, oblations, and offerings;" but in neither of them is the word "mortary" used. Then, by 2 & 3 Edw. 6, c. 13, further

provisions are made as to tithes; and, by sect. 10, it is provided, that all persons shall pay their offerings yearly at such four offering-days as have been accustomed-a provision manifestly inapplicable to mortuaries; and, by sect. 13, if any person do subtract" any manner of tithes, obventions, profits, commodities, or other duties before mentioned, contrary to the true meaning of this act, or of any other act heretofore made," he shall be sued in the ecclesiastical court.

The word "mortuary" is not used in this latter act; neither is that word used in the stat. 24 Hen. 8, c. 12, for the restraint of appeals. In the 2nd section, prohibiting appeals to Rome, the words are, "all causes testamentary, causes of matrimony and divorce, rights of tithes, oblations, and obventions, the knowledge whereof, by the goodness of princes of this realm, and by the laws and customs of the same, appertaineth to the spiritual jurisdiction of this realm." Yet it seems most probable that causes of subtraction of mortuaries, which certainly appertained to the spiritual jurisdiction of this realm, were intended to be included in the prohibition of appeals to Rome, by the words "oblations or obventions;" although it is true, that, in the following year, in the stat. 25 Hen. 8, c. 19, s. 3, more general words are used respecting such appeals, and so far tend to weaken the probability of the supposed intention. We think it highly improbable that the Legislature, having regulated the payment for mortuaries, and reduced the amount to such very small sums in the 21st year of the reign of King Henry VIII, recognising that those sums should be recovered in the ecclesiastical courts, should have purposely omitted them in the subsequent statutes in the 24th, 27th, and 32nd years of the same reign, and in the 2nd and 3rd of Edward VI, and are therefore much disposed to think that they are included under the word "obventions," used in those statutes. If so, they would be equally included under the same word in the statute in question, 7 & 8 Will. 3, c. 6, unless there be anything in that act plainly repugnant to such a construction. Now, the argument against such construction, derived from the language of the act, is, that no provision is made for the case of a dispute respecting the existence of a custom to pay a mortuary. The 8th section, above stated, does not extend to such a case, for it manifestly applies to tithes and other ecclesiastical duties, which are due of common right, and from which an exemption is claimed by prescription, &c.; nor does the 7th section seem to extend to such a case, for that applies only where the title of such tithes, oblations, or obventions shall be in question, not where the existence of such obvention, which in the case of a mortuary must be by custom, is in question. This is a formidable objection, for we can hardly think that the Legislature intended to deprive the party from whom a mortuary is claimed, small as the amount is, of all opportunity of submitting the evidence of the existence of the custom to a jury, which opportunity is, in effect, preserved in the case of small tithes and other ecclesiastical dues, though amounting only to 40s., that being the amount to which the provisions of the act are limited. There is also weight in the argument, that the stat. 21 Hen, 8, c. 6, regulates the amount of the mortuary, according to the value of the deceased's moveable goods clearly above his debts paid; and it seems difficult to suppose, that an inquiry into the assets and debts of the deceased was intended, by the stat. 7 & 8 Will. 3, to be conducted before two justices.

Upon the whole, therefore, we are of opinion, that a mortuary is not within the act of Will. 3, and that the defendants had no jurisdiction. This opinion, however, is founded on the assumption, that evidence was properly admitted to shew that the demand was for a mortuary; whereas it was contended for the defendants, that the order or conviction of the justices, not stating anything about a mortuary, but adjudicating

only that 10s. were due from the plaintiffs, as executors, "for the said oblations, obventions, and other customary dues and payments," was conclusive on the plaintiffs, within the authority of the case of Brittain v. Kinnaird, (1 B. & B. 432). No doubt, if the justices had found certain facts, which were necessary to and would give them jurisdiction, the truth of those facts could not be disputed in this action; but here no specific facts are found. The plaintiffs also meet this objection by contending, that the order is bad on the face of it on account of the words "and other customary dues and payments," which words not being in the act 7 & 8 Will. 3, the order itself shews that the justices have exceeded their jurisdiction. On the other side, the case of Rex v. Owen (4 Burr. 2095) was relied on, where the words "tithes and other ecclesiastical dues" were used in the ecclesiastical court, and it was held, that the jurisdiction sufficiently appeared, though the statute on which it was founded had not the words "other ecclesiastical dues." That, however, was not a sentence or conviction, but a libel only, and the proceedings in the Court of King's Bench were in respect of a contempt of the ecclesiastical court, in not appearing. That Court had jurisdiction in respect of tithes, and if the party had appeared, non constat that any proceedings would have been had for any other matters. But here the order or conviction is in respect of all the matters stated in it, and the justices had no jurisdiction in respect of part, viz. "other customary dues and payments," unless they were such as were properly described as "oblations or obventions." This case, therefore, is more within the authority of Branwell v. Penneck, (7 B. & C. 536), and if the evidence of the complaint, being for a mortuary, be excluded, the verdict for the plaintiffs would be right, on account of the badness of the order on the face of it. If, on the other hand, it be admitted, then the verdict is right, on the ground of a mortuary not being within the act. We think, that, on account of the generality of the words of the order or conviction, the evidence was properly admitted, and the real question intended to be tried was properly raised.-Judgment for the plaintiffs.

DAY v. PAUPIERRE.-July 5, 1849. Process of Foreign Attachment, in the Court of the Lord Mayor of London, is not equivalent to an Arrest on Mesne Process; and therefore the Custom of London as to Foreign Attachment is not abolished by Sect. 1 of Stat. 1 & 2 Vict. c. 110. Process of Foreign Attachment having issued against the Defendant in a Suit in the Lord Mayor's Court, the Defendant removed the Cause, by Certiorari, into this Court:-Held, that Plaintiff was entitled to a Procedendo, unless Defendant put in good Bail.

Rule calling upon the plaintiff to shew cause why an order of Coleridge, J., dated the 19th April, 1849, should not be rescinded, or why the bail put in should not be deemed good bail, within the meaning of that order; and why the defendant should not be discharged from further compliance with the said order, and the plaintiff be restrained from issuing any writ of procedendo; and why it should not be ordered that no such writ shall issue, by reason of the defendant not further complying with the said order; or why the said defendant should not have a month's further time to put in special bail. It appeared from the affidavits, that, the defendant being indebted to the plaintiff in 1507. 14s. 3d., the plaintiff, on the 5th March last, caused a foreign attachment to be issued out of the Lord Mayor's Court, against the monies of the defendant in the hands of Robert Pike, carrying on business in the city of London. The attachment was served on Pike, but no summons was served on the defendant at the suit of the plaintiff. On the 16th March the defendant caused

the proceedings to be removed into this court by writ of certiorari, which was returned on the 16th April, and on the same day the defendant appeared and filed common bail in the court above. On the 19th April the plaintiff caused a rule for good bail to be served on the defendant's attorney, which was issued as of course. On the 21st April a summons was served upon the plaintiff, to shew cause why the rule of the 19th April should not be rescinded, the defendant having put in bail before the order was made; or why the bail already put in should not be deemed a compliance with the said rule; or why the defendant should not have eight days' further time to put in bail, without prejudice to the defendant's right to apply to the Court to rescind the above-mentioned order; and why, in the meantime, all further proceedings should not be stayed. The summons was heard, before Coleridge, J., on the 22nd April, who thought that the plaintiff was entitled to good bail, and made an order for the defendant to have eight days' further time to put in bail, without prejudice to his right to apply to the Court. On the 30th April the defendant obtained the rule in question. The affidavit of the registrar of the Lord Mayor's Court stated, that by the practice of the Lord Mayor's Court good bail must be given, or the defendant must render himself to prison before he can appear to the attachment, or get the same dissolved; and that he believed it to be the constant practice of the Courts at Westminster, in case of the removal of a cause out of the Lord Mayor's Court by certiorari, to require good bail to be put in in the court above. The return to the certiorari was in the usual form. (See Tidd's Prac., "Forms," 136, 138). In Trinity Term, 1849*,

Warren shewed cause.-The plaintiff is entitled to special bail. In Crosse v. Smith (12 Mod. 643, 648; 1 Salk. 148) it was said by Holt, C. J., " If the defendant do not put in such bail above as the action would require below, a procedendo should be granted; for if by the course below there ought to be special bail, though common bail would do if it had commenced above originally, yet special bail must be given above, or a procedendo shall go." [He also cited Castle v. Willer, (1 Lev. 268); Keat v. Goldstein, (7 B. & Cr. 525); Morgan v. Pebrer, (2 Scott, 853); Scarnett v. Rice, (1 Dowl., N. S., 333, 338); Tassie v. Kennedy, (5 Dowl. & L. 587); M'Kenzie v. Walker, (16th April, E. T., 1849), in which Coleridge, J., at chambers, rejected bail who attempted to justify in a similar case; and 1 Tidd's Prac. 407, 408, 9th ed.] Further, the practice of foreign attachment, which is stated in Blacquiere v. Hawkins, (1 Dougl. 378), and Turbill's case, (1 Wms. Saund. 67, note 1), is not affected by stat. 1 & 2 Vict. c. 110. Though, in order to prevent a procedendo, the party should put in good bail, he will not have been held to bail within stat. 1 & 2 Vict. c. 110. In Andrews v. Clerke (Carth. 25, 26) "it was agreed by all that a foreign attachment in London is to no other purpose but to compel appearance of the defendant in the action; for if he appear within a year and a day, and put in bail to the action, the garnishee is discharged, but without bail they will not accept an appearance." It is equivalent to a render, not to an arrest; the defendant might be arrested notwithstanding the cause had been removed into this court. (Wood v. Thompson, 5 Taunt. 851). [Patteson, J., referred to Bruce v. Waite, (1 Man. & G. 1; 1 Scott's N. C. 81).] The policy of stat. 1 & 2 Vict. c. 110, which gives a resort to the property of the debtor instead of his person, will be restrained by holding that foreign attachment is abolished. The return is good, though it does not state where the goods are, or that the garnishee resides in the city of London; (Horton v. Beckman, 6 T. R. 760); and the defendant cannot impeach it after having put in bail.

*May 22, before Lord Denman, C. J., Patteson, Coleridge, and Erle, JJ.

Prentice appeared for the garnishee, but was not heard, the garnishee not being a party to the rule.

Montagu Chambers and Hawkins, contra.-As soon as the proceeding is brought into this court by certiorari, it is within sect. 1 of stat. 1 & 2 Vict. c. 110, by which it is enacted, that no person shall be arrested on mesne process in any inferior court. The Courts have given to the words of that section an equitable and liberal construction. (Harrison v. Dickenson, 4 M. & W. 355; Bateman v. Dunn, 7 Dowl. 105). [Patteson, J.— In both those cases there had been a writ to arrest on mesne process. There is no writ by which a man can be arrested in the Lord Mayor's Court.] The original action in the Lord Mayor's Court requires the party to be arrested, though that process is not often resorted to, because it is more convenient to get the goods. (Bohua's Privileges of London; Com. Dig., "London," N.1). The Lord Mayor's Court may go on with the suit notwithstanding the foreign attachment: the attachment cannot be removed or tried in any other court. [They cited Bulmer v. Marshall, (5 B. & Al. 821; 1 D. & Ry. 537).] [Coleridge, J.-Can the party go on with the attachment while he is prosecuting the suit here?] Suppose less to be attached than would satisfy the claim. Erle, J.He might go on with the original suit; but is there any authority for saying that he may go on against the garnishee? Patteson, J.-We have no right to put the party in a worse situation in this court than he would be in the Lord Mayor's Court. Suppose no certiorari issued, and the defendant came in and appeared to the attachment suit, would he thereby dissolve the attachment? You must contend that he could not have bail in the Lord Mayor's Court.] [They cited Summary of Process, and Pulling's Laws and Customs of London, 188.] By stat. 1 & 2 Vict. c. 110, special bail is not to be required, unless, by sect. 3, the plaintiff makes an affidavit that the defendant is about to quit England; and the Court will modify the practice of foreign attachment, to carry out the provisions of the statute. [They cited Campbell v. Daley (3 Burr. 1920) and Keane v. White, (2 Dowl. & L. 525).] The writ of certiorari is granted as a matter of right, in order to prevent oppression in the inferior court, but the terms and conditions under which it is granted vary according to the state of the law. The return ought to set forth that there was a just and legal cause for attaching the goods, and a clear right to special bail. The plaintiff ought to surmise that the defendant is within the city. (Tamm v. Williams, 2 Chit. 438; 3 Dougl. 281; Crosby v. Hetherington, 4 Man. & G. 933; 5 Scott's N. R. 637). Those were cases of a plea of foreign attachment, but there is no difference in this respect between a plea and a return. [They also cited Bohun's Privileges of London, 253.] [Erle, J.-The certiorari was to remove the suit; and the object of it is to remove the foreign attachment. Is not the defendant precluded, therefore, from arguing that there was no proper attachment?] The suit of Day v. Paupierre is removed, not the attachment suit. Cur, adv. vult.

Lord DENMAN, C. J., now delivered the judgment of the Court.-In this case process of foreign attachment had issued in the court of the Lord Mayor of London: the cause was removed by certiorari, and the common order for better bail, or a procedendo, was made by Coleridge, J. A rule nisi was obtained to rescind that order, and, on its coming on to be heard, it was argued, in support of the rule, that stat. 1 & 2 Vict. c. 110, abolishing arrest on mesne process, had, in effect, aboFished the custom of London as to foreign attachment, because such attachment can only be dissolved by the defendant in the cause putting in bail or rendering; therefore that such attachment is equivalent to an arrest, which is prohibited by stat. 1 & 2 Vict. c. 110.

The answer is, that it is not equivalent to an arrest, though it may happen that the defendant may be in

custody under it. This was expressly decided in the case of Wood v. Thompson, (5 Taunt. 851), on the authority of Bromley v. Peck, stated in the note there; in both which cases the defendants were arrested on mesne process out of the courts at Westminster, after the dissolution of an attachment in the Lord Mayor's Court, in the one case by putting in bail, in the other by render. The stat. 1 & 2 Vict. c. 110, does, indeed, abolish arrest on mesne process, but it relates only to arrest of the defendant by the act of the plaintiff, in suing out a writ for that express purpose. The sta tute has no effect whatever as to the voluntary act of the defendant in the Lord Mayor's Court, either of putting in bail, or rendering himself, in order to get rid of the customary attachment against his property. The cases cited, as to the operation of the statute in cases of bail or arrest previous to the passing of the statute, have no sort of bearing upon this case. It was stated by counsel, that, since the statute, the appearance of a defendant in the Lord Mayor's Court is not by putting in bail; and that is true, when the suit is directly against the defendant in that court, without any process of foreign attachment. A defendant can no more be arrested there by direct process than in any other court; but it is not pretended, that, since the statute, such attachment can be dissolved by entering a common appearance. It is clear that the custom remains, and is wholly untouched by the statute in question.

An objection was made that the return to the certiorari is bad, because it does not state that the garnishee resided in the city of London. A plea stating the custom, and omitting that the garnishee must reside in the city, would no doubt be bad; and so was held in Crosby v. Hetherington, (4 Man. & G. 933). But upon this motion we have no question before us as to the custom: the return is in the usual form, and the custom must be taken to have been pursued.

The rule must be discharged, with costs.-Rule discharged, with costs.

Lunatic Pauper-Order of Maintenance of Criminal Lunatic-3 & 4 Vict. c. 54. Where an Order, made under the Stat. 3 & 4 Vict. c. 54, directed the Payment of a weekly Sum for the Maintenance of a Criminal Pauper Lunatic to be made by the Guardians of a Union comprising the Parish within which the Lunatic was adjudged to be settled, but did not, in Terms, direct the Payment to be made on Behalf of such Parish, it was held sufficient, the Order reciting all the Facts necessary to establish the Liability of such Parish.

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On a former day a certiorari was moved for to bring up the following order, made under the 3 & 4 Vict. c. 54, for the purpose of quashing the same :"Berkshire, Whereas, at the general quarter sesto wit. sions of the peace, holden in and for the county of Berks, at Abingdon, in the said county, on Monday, the 4th day of January, 1847, upon the trial of one John Smith, being then and there indicted for a certain felony by him alleged to have been committed, it was given in evidence that the said John Smith was insane at the time of the commission of such offence, and the said John Smith was thereupon acquitted of the said felony by the jurors sworn to try the