plication to an equally clear declaration that the money secured by mortgage, that is, the principal, need not be deducted. If the principal of the mortgage debt were to be deducted in estimating the yearly value of the land, few mortgagors in the year when the principal fell due, or in any future year whilst it remained due, would be entitled to vote, for the principal would in almost all cases exceed the yearly value of the estate. It is clear that this was not the intention of Parliament, for, as I have already observed, it would be opposed to the express enactment of 6 Vict. c. 18, s. 73, that a mortgagor in possession may vote, notwithstanding the mortgage, which, of course, assumes the existence of the mortgage debt. Then can it make a substantial difference that the principal money is to be repaid by periodical instalments, biennial, annual, monthly, or otherwise? It is equally the principal money, and so far from this distinction creating a difference adverse to the right to vote, it surely is in favour of the mortgagor that he is not liable to pay the whole principal at once. If the question had been res integra, I confess I should have felt little hesitation in coming to a conclusion in favour of the claimant, but former decisions of this court undoubtedly occasion some difficulty. In Copland v. Bartlett there was a monthly payment of 158., but the case did not contain any finding to distinguish principal from interest, as the present case does, and the court likened the whole payment to a payment of interest on a mortgage, and so gave judgment against the right to vote. The next case (Lee v. Hutchinson) is not an authority against the respondent. It decided no more than that the interest on the mortgage-money must he deducted from the annual value. The observations made by Jervis, C. J., and Maule, J., on the statute 28 Geo. 3, c. 36, are consistent with a decision in favour of the present claimant. In the case of Beamish v. Stoke, the mortgage-deed provided for a weekly contribution of 4s. 6d., which, when paid, was appropriated by the secretary to three objects, viz.: first, to payment of interest; secondly, to the mortgagor's share of the incidental expenses of the security; and thirdly, the remainder to reduce the principal. The court, although so much of the payment as was appropriated to interest did not reduce the value below 408., held that, inasmuch as the whole payment did so reduce it, the claimant was not entitled to vote. The judges there said, "that the case was governed by Lee v. Hutchinson, which only followed Copland v. Bartlett." Now, certainly in Lee v. Hutchinson, in which the interest alone exceeded the annual value, the point assumed to have been decided by it did not arise. It may be observed also, that in Beamish v. Stoke, the value of the equity of redemption was not found. In the course of the argument of that case, Jervis, C.J. said, p. 37, "The case does not find that that which the party has already paid towards the purchase money is worth 408. a year in perpetuity. In the present case the facts are found from which it distinctly appears that what the claimant has so paid is worth much more than 40s. a year. But whatever may be the true effect of the cases on which I have now commented, I think that the later case of Robinson v. Dunkley has shaken, and in my opinion overthrown, their authority, supposing they are to be construed as the respondent seeks to do. In Robinson v. Dunkley, the society had advanced to the claimant

[C. P.

731., and by his mortgage to the society he was to repay the amount by monthly sums amounting to 41. a year. The deed did not apportion the pay. ment between principal and interest. It appeared that the value of the land was only 31. per annum, and that in the qualifying year the monthly sums were payable. so that if the full amount of them was deducted from such value, a clear 40s. did not remain to the voter for that year-but as it also appeared that 711. of the principal had been paid off on Jan. 31, the court held that the revising barrister was right in finding that the claimant had a freehold of the value of 40s. per annum, and in retaining his name on the list of voters; inasmuch as, notwithstanding that the annual payment exceeded the annual value for that year, the claimant had a clear beneficial interest in the land, beyond the encumbrance, of more than 40s. by the year. It being plain that the monthly payments in the case of Robinson v. Dunkley, would if deducted have reduced the value in the particular year below 40s.; it follows that if the case of Copland v. Bartlett was decided on the ground that the whole of these payments are to be deducted from the annual value, whatever may be the value of the equity of redemption, then the decision in the latter case is opposed to that ratio decidendi and overrules it, and if that was not the ratio decidendi in Copland v. Bartlett, then that case is not necessarily in opposition to the rights of the claimant in the present appeal, where the revising barrister has found that after deducting the charge for interest there is an annual value accruing to the mortgagor of more than 40s. I own that I can interpret Robinson v. Dunkley in no other way than as a decision that so much of the monthly payment as represents a repayment of principal money did not form a charge on the annual value. It is true that in that case a large amount of the principal money had been paid off, but so long as the whole mortgage debt remaining due does not reduce the value of the equity of redemption below 40s. by the year, and the interest does not absorb it, the largeness or smallness of the amount paid off cannot make an essential difference. Treating the question on principle, I confess I can see no distinction between a mortgagor who has to repay the mortgage debt in a single sum, and one who has to repay it by periodical payments, except one in favour of the latter. In substance the latter would be from the nature of things in a sounder position, for he would on payment of each instalment relieve his land of its burden and increase the beneficial value of it, whilst the former was suffering the whole burden to remain upon it, and this anomaly would occur from a contrary view, viz., that a man who had borrowed 1007. on his land, payable by instalments, and had paid off 901., would have no vote, whilst the man who borrowed 1001., payable in one sum, and had paid off nothing, would be entitled to vote. But in neither case, as it seems to me, can the principal debt be properly deemed a charge on the annual value. It is a charge on the corpus of the estate, and every payment of an instalment of it is so much added to the beneficial interest of the mortgagor. If, indeed, the whole mortgage-debt is so large in proportion to the estate that it would cover the full value of it, or so nearly as not to leave a beneficial interest of the yearly value of 40s. to the mortgagor, then there would be an entire failure of such an interest

C. P.]

in the freehold as would entitle the mortgagor to a vote. In the present case, the principal debt does not produce this consequence, and, for the reasons above referred to, I think the decision of the revising barrister should be reversed.

BRETT, J.-I agree entirely and absolutely in the judgment given by my brother Willes. I can see no answer to the argument used in that judgment. The only doubt I have had in this case, and I must confess it was a very strong one, was whether the court could be allowed to come to that decision after the cases of Copland v. Bartlett, and Beamish v. Stoke had been accepted for so many years as treating the principal as a necessary part of the case, and after the rights of so many persons had been decided on the faith of that interpretation. Judgment for appellant. Attorney for appellant, T. A. Tibbits, for Harvey, Leicester.

Feb. 13 and April 29, 1871.

....

VESTRY OF BERMONDSEY (apps.) v. RAMSAY (resp.) Metropolis Local Management Acts Amendment Act 1862 (25 & 26 Vict. c. 102, ss. 77, 96)-"Present or any future owner"-Res judicata. Sect. 77 of the Metropolis Local Management Act 1862 (25 & 26 Vict. c. 102) makes certain expenses recoverable by a vestry "from the present or any future owner of the property. either by action at law or in a summary manner before a justice of the peace at the option of the vestry." Sect. 96 of the same Act empowers the vestry to require the payment "either from the owner or from any person who then, or at any time thereafter, occupies the premises," and provides "that such owner or occupier shall be liable to pay the same, and the same shall be recovered in manner authorised by the Act":

Held, that the obligations imposed by the Act, and the remedies given by the Act to enforce them, are independent and cumulative, and the remedies may be resorted to in succession until the charge is satisfied by payment, subject when necessary to the equitable jurisdiction of the court to restrain

vexatious actions.

In 1866 the vestry of B., having paved a street, recovered under sect. 77 judgment against S., who at that time was the owner of certain premises abutting on the street, for his proportion of the expenses of such paving. Nothing, however, was ever realised under the judgment, and the vestry never took any steps to enforce it, nor had they issued execution, or registered the judgment in order to charge the premises as against a mortgagee or purchaser. The premises were subsequently bought by H., and the respondent became occupier of them as tenant to H.

Held, that the judgment recovered by the vestry against S. was no bar to an action by the vestry against the respondent in respect of the same proportion of the expenses of such paving,

CASE stated by the judge of the Southwark County Court.

1. This is an action brought in the Southwark County Court of Surrey by plaint issued on the 1st Oct. 1869, to recover the sum of 381. 58. 4d., being the proportion of the expense of paving a thoroughfare lately known as St. James-street, but now called Layard-road, in the parish of Bermondsey, under the provisions of the 18 & 19 Vict. c. 120, and the 25 & 26 Vict. e. 102, and was heard

[C. P.

before Charles S. Whitmore, Esq., the judge of the

said Southwark County Court of Surrey, on the 11th Nov. 1869, when the following state of facts was found:

2. The plaintiffs are the vestry of the parish of Bermondsey, in the county of Surrey, and the defendant is the occupier of the premises 7, Layardroad, aforesaid.

3. A notice of the intention of the plaintiffs to pave the said street was served upon John Richardson Soper on the 10th March 1866, he then being the owner of the said premises; and he was required to pay the amount of the estimated proportion of the cost of the work on the 10th April following.

4. The said John Richardson Soper having made default in the payment of his proportion as aforesaid, an action was commenced against him in the Court of Common Pleas for the recovery of the said amount, and judgment was signed in the said action on the 6th Nov. 1866, for the sum of 381. 58. 4d. for debt, and 251. 28. 2d. costs, but no execution was issued or other proceedings taken thereon. Such judgment was consented to by the said John Richardson Soper on the understanding that it should not be enforced for a certain period, and immediately afterwards the said John Richardson Soper executed a deed of arrangement which was duly registered, but nothing has ever been paid to the plaintiffs under the said deed.

5. Subsequently to the execution of the said deed of arrangement the premises came into the possession of the Rev. John Milner, who was the mortgagee of the said premises.

6. On or about the 24th Oct. 1866, the said Mr. Milner, the mortgagee, sold the said premises to Mr. Thomas Herbert, who is the present owner thereof, and subsequently application was made by the said vestry to Messrs. Morris, Stone, Townson, and Morris, the solicitors for the said J. Herbert, for the payment of the said estimated proportion, but the said vestry were never paid the same, or any part thereof.

7. The said John Milner still retains in his hands a sum of money due and owing to the said John Richardson Soper, greater in amount than the said estimated proportion for which such judgment as aforesaid was recovered against the said J. R. Soper by the said vestry, but the said vestry, as such judgment-creditors have not taken any steps in exercise of the powers vested in them by the Common Law Procedure Act 1854, to attach such debt due to the said judgmentdebtor in the hands of the said John Milner.

8. The said vestry never received any notice that the said John Milner retained such sum of money as in paragraph 7 mentioned, nor were the said vestry at any time, before the action commenced against the present defendants, informed thereof by the said John Milner or any person on his behalf, neither did the said facts in any other manner come to the knowledge of the said vestry, previously to the commencement of the said action.

9. The said vestry have never issued any writ of execution under the said judgment against the said premises.

10. On the 15th April 1869, a notice was served on the said Thomas Herbert, the then owner of the premises, requiring him to pay the said sum of 381. 58. 4d., but nothing was ever paid by him, or on his behalf.

C. P.]

11. On the 16th July 1869, a notice was served on the defendant, who was the then occupier of the said premises, pursuant to the 96th section of the 25 & 26 Vict. c. 102, requiring her to pay the said amount of 381. 58. 4d., and further giving her notice not to pay any rent to her landlord without first deducting the said sum of 381. 58. 4d.

12. Application was made to the defendant by the plaintiffs to disclose the amount of the rent payable by her in respect of the said premises, but she wholly refused to disclose the same.

Upon the above state of facts judgment was given for the defendant, but on the application of counsel for the plaintiffs the judge of the said Southwark County Court reserved for the opinion of this court the following question: Whether the plaintiffs having proceeded and obtained judgment against a former owner of the said premises for the amount of the proportion of the expenses of paving the said street, and the said judgment being still unsatisfied, and the plaintiffs having taken no proceedings to to enforce the same against the said judgment - debtor, and not having issued execution and registered the same in order to charge the said premises as against a mortgagee or purchaser in manner provided by the statues 23 & 24 Vict. c. 38, and 27 & 28 Vict. c. 112, the said plaintiffs are entitled to proceed against a subsequent owner or occupier under the provisions of the said before mentioned Act or Acts for the recovery of the said amount of the proportion of expenses of paving the said street. If the Court of Common Pleas shall be of opinion that the obtaining of the said judgment against the said John Richardson Soper does preclude the plaintiffs from proceeding as above mentioned, then the judgment in favour of the defendant to stand with costs of suit. But it otherwise then the judgment to be entered for the plaintiff's for 381. 58. 4d. with costs of suit.

Wills (E. Thomas with him), for the appellants, cited Woodfall's Landlord and Tenant, 1867, edited by Cole, pp. 204, 209.

Poynter for respondent, cited Vestry of St. Pancras v. Batterbury (26 L. J. 243, C. P.)

Cur. adv. vult. April 29.-M. SMITH, J., delivered the judgment of the court (Willes, M. Smith, and Brett, JJ.).— In this appeal from the judge of the Southwark County Court, which was argued before my brothers Willes and Brett and myself, the question is whether an unsatisfied judgment recovered by the vestry for 381. 58. 4d., in respect of the expense of paving a street under the Metropolis Local Management Acts, against a former owner of the tenements occupied by the respondent, as tenant under a succeeding owner, is a bar to an action against the respondent as such occupier. The 25 & 26 Vict. c. 102, s. 77, makes such expenses recoverable" from the present or any future owner of the property" "either by action at law or in a summary manner before a justice of the peace, at the option of the vestry." The 96th section empowers the vestry to require the payment" either from the owner or from any person who then or at any time thereafter occupies the premises," and enacts "that such owner or occupier shall be liable to pay the same, and the same shall be recovered in the manner authorised by the Act." The occupier is only liable under the provisions of the Act to the extent of rent actually due or accruing due after

66

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In

notice, and he is empowered to deduct the payments from his rent. The charge of 381. 58. 4d. became payable in 1866, when Soper was owner, and a judgment was obtained in this court against him in an action for that amount on the 6th Nov. 1866. Herbert subsequently became owner, and the respondent occupied the premises as his tenant. It is not contended that under the circumstances stated in the case, the respondent would not as the present occupier be liable to pay the unpaid proportion of the paving rate, unless the judgment recovered against Soper is a bar to an action. The statute 25 & 26 Vict. c. 102, for the first time gives a remedy by action to recover those charges. The question therefore to be decided, viz., whether the judgment obtained against the former owner is a bar to the remedy by action against the occupier, is one of the first impression, and it is necessary to ascertain the nature of the obligation imposed by the above-mentioned statute. the first instance the statute creates a personal obligation on the owner “present or future," and further, to secure the payment, imposes a kind of indirect charge on the land. The 96th section imposes the obligation to pay, and gives the remedy against either the owner or any person who then, or at any time thereafter, occupies the premises." These obligations, and the remedies given to enforce them, appear to us to be independent and cumulative, and, as a consequence of so holding, we think the remedies may be resorted to in succession until the charge is satisfied by payment, subject when necessary to the equitable jurisdiction exercised by the court to restrain vexatious actions. The obligation is clearly not a joint obligation, and the owner and Occupier could not be sued together. And this being so, there is no objection of a technical kind arising from a change of remedy to prevent the occupier being sued after a judgment against the owner. And we see no substantial ground arising from the nature of the obligation according to our interpretation of the statute, to render the judgment alone without satisfaction a good answer. No doubt in the case of a joint liability giving a joint cause of action against several, the recovery of judgment against one of the obligees is a bar to an action against the other: (King v. Hoare 13 M. & W. 494.) But this is not so where the liability is joint and several, or where several parties are independently and collaterally bound by the same obligation. The principle is well expressed by Lord Ellenborough, C. J. in Drake v. Mitchell (3 East, 251). In that case one of these joint covenantors had given a bill of exchange for the debt secured by the covenant, on which bill judgment was recovered, and it was held that this judgment was no bar to an action of covenant against the three. Lord Ellenborough said, "I have always understood the principle of transit in rem judicatam to relate only to the particular cause of action in which the judgment is recovered operating as a change of remedy from its being of a higher nature than before. But a judgment recovered in any form of action is still but a security for the original cause of action, until it be made productive in satisfaction to the party, and, therefore, till then it cannot operate to change any other collateral concurrent remedy which the party may have." In the present case, the judgment recovered against the owner has created a change of remedy quoad him;

but we think it does not operate to affect the collateral concurrent remedy against the occupier. The principle is illustrated by the familiar instance of actions against the several parties to a bill of exchange, and by the cases, which have a close analogy to the present, of principals and sureties in which the recovery of judgment against one party is no bar to actions against the other. For these reasons, we think the appellants are entitled to maintain the action, and, consequently, that the judgment given for the defendant must be reversed, and the judgment entered for the plaintiffs, with costs.

Judgment for appellants. Attorneys for plaintiffs, Drew and Wilkinson. Attorneys for defendants, Morris, Stone, Townson, and Morris.

CROWN CASES RESERVED. Reported by JOHN THOMPSON, Esq., Barrister-at-Law.

Saturday, April 22, 1871.

(Before BOVILL, C. J., MARTIN and BRAMWELL, BB., BYLES and BLACKBURN, JJ.)

REG. v. THOMAN.

IndictmentIn an indictment under 24 & 25 Vict. c. 97, s. 51, for maliciously damaging personal property, the damage exceeding 5l., it is not necessary to allege the value of the articles injured, but only that the amount of the damage done to the several articles exceeded 51. in the aggregate.

-Malicious injury-Statement of the amount of damage done.

CASE reserved for the decision of this court.

At the general quarter sessions of the peace holden by adjournment at St. Mary, Newington, in and for the county of Surrey, on Monday, the 6th Feb. 1871, Margareth Thoman was tried and convicted upon the following indictment :

Surrey.-The jurors for our lady the Queen, upon their oath present, that Margareth Thoman, on the 30th Jan. 1871, in and upon three frocks, six petticoats, one flannel petticoat, one flannel vest, one pinafore, one jacket, one pair of knickerbockers, one flannel night gown, one woollen cape, one sash, one table cloth, one sheet, three hats, and one brooch of the value of twenty pounds, and of the property of Gilbert Alder, unlawfully and maliciously did commit certain damage, injury, and spoil to an amount exceeding five pounds, by unlawfully and maliciously cutting and destroying the same against the form of the statute in such case made and provided.

At the trial the prisoner's counsel objected that the indictment was bad, because the value of the articles damaged was ascribed to them collectively and not individually, and he contended that the value of each class of article ought to have been stated separately.

The court overruled the objection, but reserved the point for the decision of the court for consideration of Crown Cases Reserved.

Judgment upon the prisoner was respited until the decision of such court should be known, and the prisoner was committed to the custody of the governor of the common gaol at Newington, in the said county.

WM. FREDK. HARRISON, Chairman. Morgan Thomas (Poulter with him) for the prisoner. By the 24 & 25 Vict. c. 97.s. 51," whosoever shall unlawfully and maliciously commit any damage, injury, or spoil upon any real or personal

[C. CAS. R.

property, &c., to an amount exceeding 5l., shall be guilty of a misdemeanor." Value, therefore, is of the essence of the offence, and a value should be put on each article alleged to be injured in the indictment. In Rex v. Forsyth (Rus. & Ry. 274), the prisoner (a bankrupt) was indicted under the Bankruptcy Act for concealing property to the amount of 201., and the value was ascribed to all the articles collectively, and it was held necessary to make out the offence as to every one of the articles. [MARTIN, B., referred to the 14 & 15 Vict. c. 100, s. 23, which enacts (inter alia) that no indictment shall be insufficient for want of the statement of the value or price of any matter or thing, or the amount of damage, injury, or spoil in any case where the value or price, or the amount of damage, injury, or spoil is not of the essence of the offence.] That does not apply where value is of the essence of the offence, as in this case. [BOVILL, C.J.-The amount of damage is of the essence of the offence here, and not the value of the several articles damaged.] In Reg. v. Williams, (9 Cox Crim. Cas. 338), it was held that damage committed at several times in the aggregate, but not at any one time exceeding 5l., will not sustain an indictment under 24 & 25 Vict. c. 97, s. 51.

Royles, for the prosecution.-The value of the articles damaged is not the essence of the offence, but the amount of the damage done is.

BOVILL, C.J.-We are all of opinion that it was not material to allege the value of the several articles in the indictment, but only to allege that the amount of the damage exceeded 51. The conviction must therefore be affirmed.

Conviction affirmed.

REG. v. BAILEY.

Embezzlement-Clerk and servant--Traveller and collector.

The prisoner was employed as traveller to solicit orders, and collect the moneys due on the execution of the orders, and to pay over moneys on the evening of the day when collected, or the day following. The prisoner had no salary, but was paid by commission. The prisoner might get orders when and where he pleased within his district. He was to be exclusively in the employ of the prosecutors, and to give the whole of his time-the whole of every day, to their service:

Held, that the prisoner was a clerk and servant within the Embezzlement Clause, sect. 68 of 24 & 25 Vict. c. 96.

CASE reserved for the decision of this court.

The prisoner was tried before me at the Michaelmas Quarter Sessions of the peace, holden by adjournment at Sheffield, in and for the West Riding of the county of York, on the 28th Nov. 1870, upon an indictment which charged him with having feloniously embezzled several sums of money, the property of Joseph Hall, and another, his masters.

The prosecutors, the said Joseph Hall and Charles Haslehurst Greaves, who carried on business in partnership in Sheffield as brewers and wine and spirit dealers, under the firm of William Greaves and Company, employed the prisoner from 1861 to 1866 as traveller and bookkeeper, at a weekly wage of 158. The prisoner then left the prosecutors' service and took other employment.

About three years after this the prisoner was again engaged by Messrs. Greaves and Company on a fresh agreement. The terms (which were not in writing) are stated in the evidence of Joseph Hall to have been as follows:

The prisoner was employed as traveller to solicit orders for, and to collect the moneys due on the execution of such orders by the firm, and to pay over to the said Joseph Hall, or to Charles Haslehurst Greaves, or to the clerk at the brewery in Sheffield, the total net amount of the moneys so collected by the prisoner on the evening of the day when such moneys were so received by him, or on the day following, in case the prisoner should then be travelling at a distance from the brewery. In case the prisoner had neither received money nor obtained orders, he was not expected to go to the brewery that day, but when he came there it was his duty to enter in the cash book of the firm the name and address of the customer from whom he had received any money, the amount, the date of the receipt, and the discount allowed (if any) to the customer, and to pay over to the firm the net amount of the money received by him, the discount being deducted. Every three months the prisoner had an account given to him of the various sums then owing by the customers to the firm, and it was the prisoner's duty to deliver these accounts, and apply for payment from the customers on presenting them. In case such accounts were not paid, the firm enforced payment thereof. The prisoner had no authority to retain in his hands moneys belonging to the firm. He had to travel in the town of Sheffield and neighbourhood. His district comprised about six miles round Sheffield, and included the town of Rotherham. He was to be exclusively in the employment of the firm, to whom he was to give the whole of his time-the whole of every day. The prisoner had no salary, but was paid by a commission of 5 per cent. on all orders for goods he obtained for the firm, and an additional 5 per cent. on the amount of cash collected by him on payment by the customers for the goods supplied by the firm on such orders. The firm were to pay to the prisoner his commission every week, but this was not always done with regularity, and the prisoner was not always regular in his attendance at the brewery, and, although the firm complained of his irregularity, they did not discharge him.

It was further stated by Joseph Hall on crossexamination, that the prisoner could get orders when and where he pleased within his district, and that he had to collect money as soon as he could, and as he chose. His duty was to go to both old and new customers of the firm, and to collect money when and where he thought proper; he was not bound by particular orders, he was at liberty to dispose of his time as he pleased, but he was to employ the whole of it in the service of the firm.

It was proved and admitted by the prisoner on 21st Oct. that he had retained in his hands, and had not accounted for, several sums of money which he had received from the firm by virtue of the before-mentioned employment; the three sums charged in the indictment had been received by the prisoner on the 26th May, the 1st June, and 26th Aug. respectively.

During the course of the case the counsel for the prisoner called my attention to Reg. v. Bowers (L. Rep. 1 Cr. Cas. Res. 45; 10 Cox C. C. 250), and at the close of the case for the prosecution it

[C. CAS. R.

was contended that the prisoner was not a clerk or servant to the prosecutors within the meaning of the statute 24 & 25 Vict. c. 96.

I declined to stop the case, and directed the jury to decide whether the prisoner had been proved by the evidence of Joseph Hall to be a servant to the prosecutors or not. The jury found the prisoner guilty, judgment being respited until the opinion of the Court of Criminal Appeal is pronounced upon the above objection, and defendant is on bail.

The question for the opinion of this honourable court is, whether the prisoner, under the circumstances herein stated, was a clerk or servant to the prosecutors, so as to be liable to be convicted of the crime of embezzlement.

WALTER SPENCER STANHOPE, Chairman. No counsel appeared to argue for the prisoner. Forbes, for the prosecution.-The conviction was right. This case is distinguishable from Reg. v. Bowers, where the prisoner was paid by commission, and was at liberty to get orders or not, as he pleased, for in the present case the prisoner was bound to devote the whole of his time to the prosecutors' service. In Reg. v. Turner (22 L. T. Rep. N. S. 278) it was held by Lush, J., that a traveller who was bound to 66 diligently employ himself in going from town to town in England, Ireland, and Scotland, and soliciting orders for the prosecutor, and who was not without the prosecutor's written consent to take or execute any order for vending or disposing of similar goods to the prosecutors for or on account of himself

or any other person, and who was to be paid by commission, and to render weekly accounts, was a clerk or servant within the 24 & 25 Vict. c. 96, s. 68. [BRAMWELL, B.-The effect of the agreement here is that the prisoner was not to be told how he was to work, but still he was to do it. BLACKBURN, J.-He was a servant to do this kind of work, but might use his own discretion as to the way of doing it.] In Bower's case it was optional with the prisoner whether he got any orders at all. [BOVILL, C.J., referred to Reg. v. Tite (L. & C. 13; 8 Cox Crim. Cas. 458.) A traveller paid by commission and employed to get orders and to receive payments was held to be a clerk or servant, although he was at liberty to receive orders for other persons also. In this case the prisoner was bound to devote the whole of his time to the prosecutors.]

BOVILL, C.J.-The evidence in this case clearly showed that the prisoner was a clerk or servant within the statute. There is nothing in the evidence inconsistent with that relation. Reg. v. Tite conclusively shows that the prisoner was a clerk or servant. The conviction will be affirmed. Conviction affirmed.