what he did. The magistrates, in fact, find that he had no guilty intention of any kind. The wife of the voter had actual authority to sign the voting paper for him, and thought that she was acting according to law in what she did. It is said, however, that in attesting the wife's signature and putting the voter's initials in the margin, the defendant "did fabricate a voting paper," within the meaning of the Act. But when we come to consider what the Legislature intended to constitute an offence under the Act, it is clear that what was in their contemplation was the case of a man doing what he knows is not right. The magistrates have found the contrary of that here, and their finding on the fact is binding on us. If the facts of the case are stated correctly, the respondent was guilty of no offence within the meaning of this Act of Parliament, for I think he did not fabricate, in whole or in part, a voting paper within the meaning of the Act. The section of the Act is this: "If any person fabricates, in whole or in part, alters, defaces, destroys, abstracts, or purloins any voting paper, or personates any person entitled to vote in pursuance of the Public Health Act 1848, or this Act, or falsely assumes to act in the name or on the behalf of any person so entitled to vote, &c., he shall for every such offence be liable, on conviction before two justices, to be imprisoned, &c." All the words used there import a criminal intention, a mens rea, and without a mens rea you cannot make out that there is an offence under the statute. The magistrates were therefore quite right in their decision.

LUSI, J.-I am of the same opinion. We are not called on to determine whether this was such a vote as ought under the circumstances to have been received, but whether the respondent was guilty of fabricating the voting paper; and I am clearly of opinion that fabricating imports the knowingly doing a wrongful act, and that the respondent was not guilty of that act here.

QUAIN, J.-I am of the same opinion. I think that fabricating means something false and fraudulent, and that, unless the facts show that the person knew that he was doing wrong, there is no offence within the Act of Parliament.

Judgment for the respondent. Attorneys for appellants, Rickards and Walker, for Gery, Aberdare.

Attorneys for respondent, Purkis and Perry, for Phillips, Aberdare.

Saturday, Jan. 23.

REG. V. FISHER.

Metropolitan magistrates-Jurisdiction-Having or conveying suspected property-Arrest in a house -2 & 3 Vict. chapters 47 & 71.

The defendant was seen in a metropolitan street to stealthily produce an empty bag from under his jacket, place it under the legs of the coachman of a brougham, and with his assistance take instead a bag full of oats, which he carried off on his shoulder. The coachman immediately drove rapidly off. A police constable was told of what had occurred, and his attention was called to the defendant and his burden. He followed, but came up only after the defendant had entered his own house, when the constable arrested him. Held, that the conviction of the defendant by a magistrate under the Metropolitan Police Courts

LQ. B.

Act, 1830, s. 24, for having in his possession these oats which were then and there suspected of being unlawfully obtained, was under the circumstances right.

ON an appeal made by the defendant, Edward Fisher, under 2 & 3 Vict. c. 71, s. 50, against a conviction for misdemeanour by one of the magistrates of the police courts of the metropolis, dated the 27th Nov. 1872, which came on to be heard by the General Quarter Sessions of the Peace holden in and for the county of Middlesex on the 25th Jan. 1873, the court affirmed the said conviction subject to the opinion of the Queen's Bench on the following case:

The conviction took place under the Police Act, 2 & 3 Vict. c. 71, s. 24, for having on the 20th day of Nov. 1872, at the parish of St. George, Hanover-square, in the county of Middlesex, in his possession thirty pounds weight of oats, which oats were then and there suspected of being unlawfully obtained, and the said Edward Fisher not giving a satisfactory account how he came by the said oats, the said magistrate, pursuant to the said statute in such case made and provided, deemed the said Edward Fisher guilty of a misdemeanor, and adjudged him for the said offence imprisoned in the House of Correction at Cold Bath Fields in the said county and district, and there kept to hard labour for the space of thirtytwo days.

On the morning of the 20th Nov. 1872, a brougham was driven into Churton-street, Pimlico, in the metropolitan police district, and there drew up. The said Edward Fisher went up to it, unbuttoned his jacket, and produced an empty bag, which he placed under the legs of the coachman, who was sitting on the box of the said brougham, and had raised the leather apron in front of him to facilitate the act of Fisher. He then walked to the end of the street, looked up and down, and returned to the said brougham and took from under the said coachman's legs a bag full of oats, weighing 30lb. He took the bag of oats on his shoulder, and went off as quickly as he could. The coachman then drove the brougham away at a very rapid pace.

The attention of Henry Whittingham, a police constable of the Metropolitan Police, was called to the fact by a person who had seen what took place between Fisher and the coachman At that time Fisher was carrying the bag along a street leading out of Churton-street. The constable was about 150 yards away from him, and having followed him for about 200 yards, and reduced the distance between them to a dozen yards, he saw him enter his (Fisher's) own shop, which was a grocer's shop, with dwelling house, in which Fisher lived. The police constable followed to the door of the said shop of the said Edward Fisher who came forward; the constable asked him whether a man had entered with a parcel? Fisher at once replied, "Yes, I'm the man; that's all right, sir, I received it from a coachman;" and he further said, in answer to the constable, "that he didn't know the coachman's name."

The constable took possession of the bag which Fisher, before the constable entered, had put down in a corner at the back of the said shop. The constable then took Fisher into custody.

Fisher was subsequently brought before the said magistrate, and was charged under the said 24th settion with having in his possession the said oats,

which were reasonably suspected of being unlawfully obtained.

The foregoing facts were proved before the magistrate, and Fisher was then called upon to give an account of how he came by the said oats, and he thereupon said, "I received them from a friend of mine; I don't know his name; he says, I have a bit of corn if you like it; he says, you can give me a little tea or coffee for it. I've given him things before for corn, and lent him a little money."

The magistrate deemed this to be an unsatisfactory account and committed Fisher, and ordered him to be imprisoned and kept to hard labour for 32 days.

On the hearing of the appeal at the sessions, the same facts were proved.

It was contended on behalf of Fisher that the magistrate had no jurisdiction to commit him under sect. 24 of 2 & 3 Vict. c. 71, because he was arrested with the oats in his possession in his own house, and was not arrested under 2 & 3 Vict. c. 47, s. 66. It was also contended that as the mode in which the oats came into his possession was known and proved, he could not be convicted under sect. 24, and that such section did not apply to a case like the present, where the oats were actually stolen; and that the magistrate ought not to have summarily convicted Fisher, but have sent him to the sessions to be tried by a jury.

The magistrate and Court of General Quarter Sessions were of opinion that the case was within the provisions of the Act, and confirmed the conviction with costs.

The question for the opinion of this court is, whether the Court of Quarter Sessions was right in law in affirming the said conviction. If the court shall answer this question in the affirmative, the order of the sessions is to be affirmed with costs; if in the negative, such order and conviction are to be quashed.

Tickell argued in'support of the conviction. The section upon which the magistrate acted is 2 & 3 Vict. c. 71, s. 24: "That every person who shall be brought before any of the said magistrates, charged with having in his possession, or conveying in any manner anything which may be reasonably suspected of being stolen or unlawfully obtained, and who shall not give an account to the satisfaction of such magistrate how he came by the same, shall be deemed guilty of a misdemeanor." By Hadley v. Parks (14 L. T. Rep. N. S. 325; L. Rep. 1 Q. B. 444), the case upon which the defendant's objection was based, it was held that this section was supplemental only to sect. 66 of 2 & 3 Vict. c. 47, "That any person found committing any offence punishable either upon indictment or as a misdemeanor, upon summary conviction, by virtue of this Act, may be taken into custody without a warrant by any constable, or may be apprehended by the owner of the property on or with respect to which the offence shall be committed, or by his servant, or by any person authorised by him, and may be detained until he can be delivered into the custody of a constable to be dealt with according to law; and every such constable may also stop, search, and detain any vessel, boat, cart, or carriage, in or upon which there shall be reason to suspect that anything stolen or unlawfully obtained may be found, and also any person who may be reasonably suspected of having or conveying in any manner any

thing stolen or unlawfully obtained; and any per. son to whom any property shall be offered to be sold, pawned, or delivered, if he shall have reasonable cause to suspect that any such offence has been committed with respect to such property, or that the same or any part thereof has been stolen or otherwise unlawfully obtained, is hereby authorised, and, if in his power, is required to apprehend and detain, and as soon as may be to deliver such offender into the custody of a constable, together with such property, to be dealt with according to law." Hadley v. Parks also decided that those two sections apply only to possession in the streets, and not to possession in a house; but in that case the defendants were never seen to be in possession of the suspected goods in the street at all, as the defendant here was seen, but in a house only. This defendant was reasonably suspected of conveying goods unlawfully obtained in the very words of both the sections, and therefore the authority does not apply. [Stopped by the Court.]

Poland (with him Mead) for the defendant.— A constable has no authority under these two sections to enter a house and arrest a man there on suspicion of unlawful possession; and if he exceeds his authority by doing so, Hadley v. Parks decides that the magistrate has no jurisdiction. The 25th section of the 2 & 3 Vict, c. 71, is that which applies to the circumstances of this case, “That if information shall be given on oath to any of the said magistrates that there is reasonable cause for suspecting that anything stolen or unlawfully obtained is concealed or lodged in any dwelling-house or any other place, it shall be lawful for such magistrate, by special warrant under his hand directed to any constable, to cause every such dwelling-house or other place to be entered and searched at any time of the day, or by night if power for that purpose be given by such warrant; and the said magistrate, if it shall appear to him necessary, may empower such constable with such assistance as may be found necessary, such constable having previously made known such his authority, to use force for the effecting of such entry, whether by bursting open doors or otherwise, and if upon search thereupon made any such thing shall be found, then to convey the same before a magistrate, or to guard the same on the spot until the offenders are taken before a magistrate or otherwise dispose thereof in some place of safety, and moreover to take into custody and carry before the said magistrate every person found in such house or place who shall appear to have been privy to the deposit of any such thing, knowing or having reasonable Cause to suspect the same to have been stolen or otherwise unlawfully obtained." By the following section the magistrate may then convict of a misdemeanour, but that can only be when the defendant has been arrested in a house upon a special warrant. [BLACKBURN, J.-The defendant's case would be admittedly within sect. 24, if the constable had arrested him outside his door; how can the magistrate's jurisdiction be affeeted by the constable's trespass?] It has been laid down in Hadley v. Parks, that a magistrate has jurisdiction under sect. 24 of the Act, c. 71, only when the person charged is arrested under sect. 66 of the Act, c. 47. Another question is whether a magistrate can convict on this charge when the mode by which the defendant obtained possession of

the goods is known. It then becomes a matter for a jury to decide, and the magistrate could only commit for trial.

BLACKBURN, J.-The defendant's contention seems to me to be quite untenable. He has done what by the very words of the 24th section is made a misdemeanour.

LUSH, J.-I am of the same opinion. Conviction affirmed. Attorneys for prosecution, Allen and Son. Attorney for defence, W. D. Smyth.

Tuesday Jan. 26.

RAMSDEN V. BREARLEY.

Married woman-Protection order-Action of tort— Divorce and Matrimonial Causes' Act 1857 (20 & 21 Vict. c. 85) ss. 21 and 26. A married woman deserted by her husband, who has obtained a protection order under sect. 21 of 20 & 21 Vict. c. 85 can, like a married woman who has obtained a decree of judicial separation under sect. 26, sue and be sued by herself in actions of tort as well as in actions of contract. THIS was a demurrer to a replication.

The declaration set out defamation by the defendant, and alleged that the plaintiff, who was a woman, was injured in her trade or business, claiming special damage.

The defendant pleaded in abatement that the plaintiff was a married woman, and had a husband alive.

The plaintiff replied that she, being a wife deserted by her husband did, in pursuance of the provisions of the statutes in that case made and provided, obtain an order of protection, which order was before the accruing of the causes of action and still is of full force.

The defendant demurred to this replication on the ground that the statutes do not enable a married woman who has obtained an order for protection of money or property to be acquired by lawful industry, to sue for defamation, and that a woman with such an order is differently circumstanced from a woman who is judicially separated, and whose person, as well as her property, is during such separation, protected.

The defendant did not appear.

Herschell Q.C., for the plaintiff, argued in support of the replication. The plaintiff's protection order was obtained under the Divorce and Matrimonial Causes Act 1857 (20 & 21 Vict. c. 85), s. 21, by which : "A wife, deserted by her husband, may, at any time after such desertion, if resident within the metropolitan district, apply to a police magis trate, or if resident in the country, the justices in petty sessions, or in either case to the court, for an order to protect any money or property she may acquire by her own lawful industry, and property which she may become possessed of after such desertion, against her husband or his creditors, or any person claiming under him; and such magistrates, or justices, or court, if satisfied of the fact of such desertion, and that the same was without reasonable cause, and that the wife is maintaining herself by her own industry or property, may make and give to the wife an order protecting her earnings and property acquired since the commencement of such desertion, from her husband and all creditors and persons claiming

[Q. B.

under him, and such earnings and property shall belong to the wife as if she were a feme sole, provided always that every such order, if made by a police magistrate, or justices at petty sessions, shall, within ten days after the making thereof, be entered with the Registrar of the County Court within whose jurisdiction the wife is resident; and that it shall be lawful for the husband, and any creditor or other person claiming under him, to apply to the court, or to the magistrates or justices by whom such order was made for the discharge thereof. Provided also, that if the husband or any creditor of a person claiming under the husband, shall seize or continue to hold any property of the wife after notice of any such order, he shall be liable at the suit of the wife (which she is hereby empowered to bring), to restore the specific property, and also for a sum equal to double the value of the property so seized or held after such notice as aforesaid. If any such order of protection be made, the wife shall during the continuance thereof be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts, and suing and being sued, as she would be under this Act if she obtained a decree of judicial sepation." The effect of such a decree appears from sect. 26." In every case cf a judicial separation, the wife shall, while so separated, be considered as a feme sole for the purposes of contract, and wrongs and injuries, and suing and being sued in any civil proceeding; and her husband shall not be liable in respect, of any engagement or contract she may have entered into, or for any wrongful act or omission by her, or for any costs she may incur as plaintiff or defendant." By the Divorce and Matrimonial Causes Act Amendment Act of the following year (21 & 22 Vict. c. 108) the powers previously given to the court are vested in the Judge Ordinary, and section 8, which protects persons from the effects of dealing with women whose decree of judicial separation or protection order may be discharged or varied, uses these words: "no discharge, variation, or reversal of such order or decree shall prejudice or affect any rights or remedies which any person would have had in case the same had not been so reversed, varied, or discharged in respect of any debts, contracts, or acts of the wife, incurred, entered into, or done between the times of the making such order or decree, and of the discharge, variation, or reversal thereof." Although sect. 21 of the Act of 1857 seems to refer to a deserted wife's suing and being sued upon contracts only, the incorporation of the powers given by section 26 shows that she has the same right with respect to torts. And the section quoted from the Act of 1858, by applying the words debts, contracts, and acts of the wife equally to an order or decree, shows that the Legislature intended a wife deserted by her husband to have the same privileges as if she had obtained a formal decree. The policy of these Acts, too, is clearly to enable a deserted wife to protect her person or her character, as well as her property. Indeed, the power to do the former is essential for the latter. The Court of Common Pleas has held, in Summers v. The City Bank (L. Rep. 9 C.P. 580), under the Married Women's Property Act 1870 which by sect. 11 gives a married woman the same remedies for the protection and security of the property provided for as if she were single, that these remedies must ex

tend to the protection of her personal credit, which is essential for her further earnings.

COCKBURN, C.J.-I think in this case our judgment should be for the plaintiff. The action is brought by a married woman, who in the replication claims a right to sue in her own name, without joining her husband's, by reason of a protection order which she has obtained under the 21st section of 20 & 21 Vict. c. 85. The action is for a tort which it is alleged has caused the plaintiff special damage, and the question for us is whether the effect of this protection order is to enable her to sue as a feme sole in the same way for a wrong as she can without doubt sue upon a contract. The 21st section alone seems to refer throughout to property and contracts only, but looking at the object of the Legislature, even that section would seem to imply a power to sue for wrongs also. If a married woman be given power to acquire property, and to protect it by suits upon contracts she may enter into, it must be inferred that she should also be able to protect her reputation and character by an action of this kind. But further than that, she is to be in all respects with regard to suing and being sued as if she had obtained a judicial separation; and by sect. 26, a wife whilst so separated is to "be considered a feme sole for the purposes of contract, and wrongs, and injuries, and suing, and being sued in any civil proceeding." These words are wide enough to cover the plaintiff's right to sue in this case, and there is nothing else in the Act to limit the right. An observation has been made by my brother Lush that the effect of making the husband join would be to give him the damages for injury to his wife's earnings. This certainly would not be in accordance with the object of the Legislature, and we shall be furthering that object by holding that the plaintiff may sue by herself. We ought, therefore, to hold that the power given to a deserted wife by sect. 21, to sue upon contract, and in protection of her property, extends also to actions for torts. The plaintiff, therefore, is entitled to maintain this action, and the demurrer must fail.

MELLOR, J.-I am of the same opinion. Sections 21 & 26 show that the object of the Act was to protect the property of deserted and separated wives in the same way as if they were unmarried. The powers of suing and being sued seem to be limited in sect. 21, which relates to a deserted

wife, to actions of contract only, the words being "with regard to property and contracts." But taking the words following, it may fairly be said that the powers of suing and being sued are to be the same in her case as in that of a wife who has obtained a decree of judicial separation. They are by section 26 to include the powers to become parties to actions either in tort or on contract, and I think we must hold that this general power is by reference given to a wife with a protection

order under sect. 21.

LUSH, J.-I am of the same opinion. The object of this statute seems to be to enable a woman who earns property herself, when deserted by or separated from her husband, to protect herself not only from her husband and his creditors, but from other persons. There seems to be no reason why the wife in either case should not have the same remedies.

ARCHIBALD, J.-I am of the same opinion. It would be inconsistent if a married woman thus situated could not sue for a wrong as well as Vol. XXXII., N. S., 799.*

[Q. B.

for breach of contract; and the words of these two sections taken together do not justify any such limitation to the powers of a deserted wife. Judgment for plaintiff. Attorney for plaintiff, Alfred Howard.

Tuesday, Jan. 26. ANGELL V. DUKE.

Agreement to repair and furnish a house-Tenancy commenced- Consideration · Collateral to an agreement concerning land-4th section of the Statute of Frauds.

The plaintiff sued upon an agreement, before the making of which, he and the defendant had been negotiating concerning his tenancy of the defendant's house furnished. The plaintiff had objected to become tenant on the terms proposed on the ground that the house wanted repairs and the furniture was insufficient; the defendant then in order to induce, as he in fact thereby did induce, the plaintiff to become forthwith tenant upon the said terms without requiring the plaintiff to do any repairs or add any furniture previously to the_commencement and creation of such tenancy, verbally promised the plaintiff within a reasonable time after the tenancy commenced to do the repairs and add the furniture required: and thereupon afterwards, in consideration that the plaintiff at the request of the defendant had so forthwith as aforesaid become tenant to the defendant, the defendant promised that he would within a reasonable time do the repairs and add the furniture required. The plaintiff averred the performance of all conditions precedent, and that the plaintiff would not at all perform his last mentioned promise.

Held, upon demurrer to the declaration, that the agreement sued upon was collateral to that concerning the tenancy; that the consideration was good, and the agreement not being within the 4th section of the Statute of Frauds, need not be in writing.

THIS was a demurrer to the second count of a declaration. Although referred to, the first count is not material. The second count stated that before the making of the agreement hereinafter mentioned, the plaintiff and the defendant had been negotiating with each other for the letting by the defendant to the plaintiff upon certain terms proposed by the defendant of the messuage and premises in the first count mentioned, together with the use of the furniture and effects then being therein and thereon, as and for a furnished house, and the plaintiff had then objected to becoming tenant to the defendant of the said messuage and premises upon the said terms on the ground that the said messuage and premises were then in imperfect order and repair, and insufficiently furnished for the purposes of convenient and comfortable use, occupation and enjoyment thereof by the plaintiff and his family, and the defendant then, in order thereby to induce, as he in fact thereby did induce, the plaintiff to become forthwith tenant to him of the said messuage and premises upon the said terms, without requiring the defendant to do any works or repairs, or send any additional furniture or effects on to or into the same previously to the commencement and creation of such tenancy, verbally promised the plaintiff that he, the defendant, would within a reasonable time after such creation and

commencement of such tenancy as aforesaid, do such works and repairs and send such additional furniture and effects on to and into the said messuage and premises as might and should be found to be necessary for completing the condition and furnishing of the same for the purposes of such convenient use, occupation and enjoyment of the same as aforesaid; and thereupon afterwards in consideration that the plaintiff, at the request of the defendant, had so forthwith, as aforesaid, become tenant to the defendant of the said messuage and premises upon the terms aforesaid, without requiring the defendant, previously to the plaintiff so becoming such tenant, to do any such works or repairs, or send into the said messuage and premises such additional furniture or effects as respectively aforesaid, the defendant promised the plaintiff that he would, within a reasonable time in that behalf, do such works and repairs, and send such additional furniture and effects on to, and into the said messuage and premises as might and should be found to be necessary for completing the condition and furnishing of the same for the purposes of the convenient use, occupation, and enjoyment of the same by the plaintiff and his family, and the plaintiff avers that although he did all things, and all things and conditions happened and were performed and all times elapsed necesssary to entitle the plaintiff to have the defendant perform his said last-mentioned promise, and to recover in respect of the breaches thereof hereinafter complained of, yet the defendant did not, nor would at all perform his said last-mentioned promise, but wholly and absolutely refused so to do, and therein wholly made default, whereby such results and consequences happened and ensued, and the plaintiff sustained damage under such circumstances, in such manner, and to such extent, as in the said first count respectively mentioned and specified.

Maurice Powell argued for the defendants. This declaration is bad for two reasons. First, the promise, which is recited by way of inducement, and is stated to be the consideration for the con. tract sued upon, is required by the 4th section of the Statute of Frauds to be in writing, and cannot be made verbally, as is alleged. And secondly, the alleged consideration, even if it need not be in writing, consists of an executed promise, and there is, therefore, nothing to support the contract by the defendant. The word "verbally" must be taken to mean "orally;" that is Dr. Johnson's definition of it, and that was the effect given to it by the Court of Common Pleas, in the case of Mann v. Nunn (43 L. J., 241, C. P.). The use of the words "become tenant" is sufficient to show that the alleged consideration is in respect of an interest in land. The 4th section of the Statute of Frauds is that no action shall be brought whereby to charge (inter alia) any person upon any contract for sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing signed by the parties to be charged therewith, or some other person thereunto by him lawfully authorised. In Mechelin v. Wallace (7 A. & E. 49), the contract alleged in the declaration was almost exactly the same as this, with the exception that the consideration was an executory, and not an executed promise; it was in consideration that plaintiff would take possession

[Q. B.

of a certain house, partly furnished, and would, if complete furniture were sent into the house by defendant, in a reasonable time, become tenant to defendant of the said house, with all the said furniture, at certain rent, and pay the same; defendant promised plaintiff to send into the said house within a reasonable time after plaintiff's taking possession, all the furniture necessary. It was held that the defendant's agreement to send in furniture was an inseparable part of a contract for an interest in lands, and, therefore, came within the 4th section of the Statute of Frauds. That whether the consideration be executed or executory, a contract for an interest in or concerning lands, must be in writing, is clear from Cocking v. Ward (1 C. B. 858). There the plaintiff, tenant of a farm, agreed to relinquish possession, and obtain the landlord's consent to the defendant's taking on his tenancy for 1001. The defendant became tenant in pursuance of the agreement, and was sued for the 1001.; the action failed for want of a memorandum in writing. The Court of Common Pleas came to a similar conclusion in Kelly v. Webster (12 C. B. 283); and Maule J. said at p. 290: "Where anything is done which substantially amounts to a sale or parting with an interest in land the contract is " within the 4th section of the Statute of Frauds. [COCKBURN, C. J. It seems to me that the transaction here, so far as it relates to an interest in lands, was all completed.] Then there is no consideration to support the contract sued upon. [LUSH, J. The consideration may be the agreement or the performance. Can you distinguish this case from Morgan v. Griffiths (23 L. T. Rep. N. S. 783; L. Rep. 6 Ex. 70) P] That was an appeal from a County Court, and, therefore, the Exchequer being the court of ultimate jurisdiction, the decision is not here conclusive. Moreover, the judgment was based upon the verbal agreement being collateral to the lease. Kelly, C. B. said this agreement was founded on a good consideration, but he did not say, and it does not appear, what the consideration was. Here there is but one contract alleged, and there is no suggestion of two collateral agreements; as Lord Campbell said in Hodgson v. Johnson (E. B. & E. 685; at p. 689), one contract founded upon one consideration cannot be bisected so as to make a new contract and a new consideration out of one half." The ground stated by Erle J. for holding the contract in that case to be within the Statute of Frauds, was merely that "the promise relied on here is implicated with the promise which relates to the sale of an interest in lands."

66

Hollings for plaintiff.-The decision in Mechelen v. Wallace was based entirely on the agreement to let the house. That is no part of the contract sued upon here. The promise here to do repairs and send in furniture is subsequent and collateral to the agreement for a tenancy, and has nothing to do with an interest in land. On the authority therefore of Morgan v. Griffith and Mann v. Nunn, this count of the declaration is good in law. Powell in reply.

COCKBURN, Č.J.-I think our judgment must be for the plaintiff. In the first place it seems to me that this case is not distinguishable from Morgan v. Griffith; and although that may be a decision not absolutely binding upon us, yet it is to be treated with respect, and followed, unless there be strong reason to the contrary. But independently of the authority of that case, I think the agree