N. E. 578,-a case very like the present,liance upon his former observation; and it was said that "there was no danger which, when, further, it was the plaintiff's especial in view of the plaintiff's knowledge and ca- business to take charge of the machinery, pacity, must not have been well understood and therefore to inform himself of its conby and apparent to him, and there was, struction. therefore, no negligence on the part of the defendant in exposing him to it." See also Hale v. Cheney, 159 Mass. 268, 271, 272, 34 N. E. 255. In Rooney v. Sewall & D. Cordage Co. 161 Mass. 153, 36 N. E. 789, it was held that an employer did not need to warn an adult workman of the presence and dangers of a set screw when employing him. As has been said or implied in other cases, where the danger is obviously great, as in the case of a revolving shaft, it is not necessary to give warning of elements which merely enhance the risk. Carey v. Boston & M. R. Co. 158 Mass. 228, 231, 33 N. E. 512. See also Keats v. National Heeling Mach. Co. 21 U. S. App. 656, 65 Fed. Rep. 940, 13 C. C. A. 221. The same considerations apply to the subsequent introduction of a set screw, when, as here, there is no pretense that the plaintiff remembered the alleged previous condition of the shaft, and was acting in re The question "whether or not it is customary in factories to have a collar with a projecting set screw placed near a pulley where it is necessary for a person to go frequently to do something with reference to putting on a belt," etc., was properly excluded. See Rooney v. Sewall & D. Cordage Co. 161 Mass. 153, 161, 36 N. E. 789. The question in this highly specific form, supposing it to admit of an honest answer, must have been intended to furnish a pattern upon which the jury were to model the defendant's duty, and it was at least within the discretion of the judge to exclude evidence directed to that point. It would have been admissible, no doubt, to show that set screws were going out of use, and no longer were to be expected or looked out for without special warning. But that was not what the evidence meant. Judgment for defendant. NEW HAMPSHIRE SUPREME COURT. STATE of New Hampshire v. Louis L. WELLS. One who solicits orders for a firm hav Mr. F. M. Beckford, for the State: Chapter 76 of the Laws of 1897 was intended to protect local dealers in their locality, and also the public against the fraud too often imposed upon the people by hawkcrs and peddlers. Graffty v. Rushville, 107 Ind. 502, 57 Am. ing a permanent place of business in Rep. 131, 8 N. E. 609; 3 Jacob, Law Dict. 1st the state, without carrying any goods ex-Am. ed. 1811, p. 241; 10 Petersdorff, Abr. p. cept those which have been previously or 206; 1 Bouvier, Law Dict. p. 631; 2 Bouvier, dered by his customers, or exposing any goods Law Dict. p. 306. for sale, is not doing "business as a hawker or peddler," nor "exposing for sale or selling" goods, within the meaning of Laws 1897, chap. 76, requiring a license from peddlers. RE (March 17, 1899.) ESERVATION by the Belknap County Court for the opinion of the full bench of an indictment for selling goods without a license contrary to the provisions of the statute. Judgment for defendant. Going about taking orders constitutes a sale within the meaning of the law. Graffty v. Rushville, 107 Ind. 502, 57 Am. Rep. 131, 8 N. E. 609; 9 Am. & Eng. Ene. Law, p. 307; State v. Ascher, 54 Conn. 299, 7 Atl. 822. The question of where the goods were purchased by a hawker or peddler is of no consequence. Laws 1897, chap. 46; State v. Powell (N. H.) 41 Atl. 171. Messrs. Streeter, Walker, & Hollis, for defendant: A peddler is one who carries about small commodities on his back or in a cart or wagon, and sells them. Defendant resides in Laconia, and is employed to go from place to place within the county taking orders for certain kinds of groceries. The orders would be taken and filled from the employer's store in Concord, Pegues v. Ray, 50 La. Ann. 574, 23 So. 904; and delivered by defendant in about a week Kennedy v. People use of LaJunta, 9 Colo. from the time when taken. He neither car-App. 490, 49 Pac. 373; Com. v. Farnum, 114 ried nor exposed for sale any goods, but confined himself to taking orders and delivering the goods to fill them. Further facts appear in the opinion. NOTE. On the question, Who is a peddler?— see Com. v. Gardner (Pa.) 7 L. R. A. 666, and note; Wrought Iron Range Co. v. Johnson (Ga.) 8 L. R. A. 273, and note; Emmons v. Lewistown (III.) 8 L. R. A. 328; Re Wilson (D. C.) 12 L. R. A. 624; Stuart v. Cunningham (Iowa) 20 L. Mass. 270; Com. v. Ober, 12 Cush. 493; Davenport v. Rice, 75 Iowa, 74, 39 N. W. 191. Neither taking the order, nor delivering the goods, constitutes one a peddler. R. A. 430; Hewson v. Englewood (N. J.) 21 L. Rex v. M'Knight, 10 Barn. & C. 734. language of the statute makes it equally an The fundamental idea contained in the offense for a person to go about "from place definition of a peddler is that he is a person to place in the same town, exposing for sale carrying his stock in trade with him in a or selling any goods," or for one to "go about pack or cart, and having the capacity to then from town to town" doing the same thing. and there close a bargain and consummate It is plain that the legislature never intended the sale by immediate delivery. to include the usual taking of orders and deCom. v. Ober, 12 Cush. 493; Graffty v.livering of goods by the employee of a groRushvilie, 107 Ind. 502, 57 Am. Rep. 128, 8 N. E. 609. court: cery store in the town where it is located within the prohibition of the statute, and to compel that class of persons to procure a li Wallace, J., delivered the opinion of the cense. Such a construction would defeat one of the most important objects of the statute. The indictment is for a violation of chap--the protection of local traders. When the ter 76, Laws 1897, entitled "An Act in Rela- only construction of the statute under which tion to Hawkers and Peddlers." Section 1 the defendant can be held leads to so absurd provides that "no person shall do any busi-a result, it is evident the legislature never ness as a hawker or peddler, or go about intended that acts like those of the defendfrom town to town, or from place to place in ant should be included within the operation the same town, exposing for sale or selling of the statute. any goods, wares, or merchandise," except Case discharged. certain kinds of property therein named, without a license. It is apparent from the title of the act and from its terms that it was designed to affect hawkers and peddlers, Kimball and to regulate their business. The language used expresses the understanding of the legislature as to what acts constitute the business of a hawker or peddler. This definition is in accordance with the generally understood and accepted meaning of those terms. The only question presented is whether the defendant, in doing what he did without a license, was guilty of a violation of the statute. "The leading primary idea of a hawker and peddler is that of an itinerant or traveling trader, who carries goods about in order to sell them, and who actually sells them, to purchasers, in contradistinction to a trader, who has goods for sale, and sells them, in a fixed place of business." Com. v. Ober, 12 Cush. 493, 495. The defendant did not carry any goods about with him for sale; neither did he expose any for that purpose. licited orders for his employers, a firm having a permanent place of business in this state, and subsequently delivered the goods thus ordered. He made no sales on his own account. The sales were made by the firm through the defendant, as their agent. The defendant, in what he did, was not doing "business as a hawker or peddler," nor was he "exposing for sale or selling" goods, with He so in the meaning of the statute. Com. v. Ober, 12 Cush. 493; Com. v. Farnum, 114 Mass. 267; Davenport v. Rice, 75 Iowa, 74, 39 N. W. 191: Stuart v. Cunningham, 88 Iowa, 191, 20 L. R. A. 430, 55 N. W. 311; Rex v. M'Knight, 10 Barn. & C. 734. The acts of the defendant in taking the orders, and afterwards delivering the goods on those orders, for the company who employed him, were substantially the same as those of the employee of the ordinary retail grocery firm who takes orders and delivers goods. The only difference is that the grocer's clerk usually confines his operations to the town or city in which his firm is located, while the defendant extended his over a wider field. But no distinction can be made between the acts of the two on this ground, because the 1. 2. WEBSTER, Exr., etc., of James v. Mary SUGHROW et al. ... A will creating a trust for the saying of masses may be upheld as a "charitable use," since the saying of mass in open church, where all who choose may be present and participate therein, is a solemn and impressive ritual, from which many may draw spiritual solace, guidance, and Instruction, and the money expended therefor is of benedt to the clergy, thus accomplishing one of the cherished objects of religious uses. A separate fund for the care of a . burial lot and another for the saying of masses cannot be set aside by an executor under a will creating a trust "to pay the expense of keeping my burial lot in a proper and respectable condition and for having anniversary mass said annually," leaving it entirely to the executor's discretion to provide for the perpetuation of such services in any way he may deem proper, since the branches of the trust are to be administered together by the same trustee. (July 29, 1898.) RESERVATION by the Supreme Court for The property was given in trust, first to pay funeral expenses; "the remainder to be the income of which, and, if necessary, the held by said executor at his sole discretion, principal, to pay the expense of keeping my burial lot in a proper and respectable condition, and for having anniversary mass said annually from the date of my decease, for myself, my deceased wife, and for her de NOTE. As to validity of bequest for masses, see Festorazzi v. St. Joseph Roman Catholic Church (Ala.) 25 L. R. A. 360, and note; and Sherman v. Baker (R. I.) 40 L. R. A. 717, and note. ceased sister, Lizzie. And I hereby leave it | entirely at the discretion of my said executor to provide in any way that he may deem proper for the continuation or perpetuation of said services, without any authority or interference of the probate court or any person whomsoever, either in regard to this, or to the first, section of this will." The executor sought instructions upon two questions:ies from disease, suffering, or constraint, by (1) Does this provision of the will create a charitable trust in the matter of annual masses? (2) If it does, can he exercise his discretion in setting apart two certain sums, -one for the fund for the burial lot, the other for the saying of masses, and appoint trustees to carry into effect the provisions of the trust, and provide for securing perpetual succession thereof? Goodale v. Mooney, 60 N. H. 528, 533, 49 Am. Rep. 334, 335; Pub. Stat. chap. 205, § 1. A charity, "in the legal sense, may be defined as a gift to be applied, consistently with existing law, for the benefit of an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodassisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature." Jackson v. Phillips, 14 Allen, 556. No question arises as to the testator's right to create a trust for Mr. George B. French, for plaintiff: the purpose of keeping the "burial lot in a The plaintiff entertains doubts as to proper and respectable condition." The whether this will create a religious or chari-state approves of the creation of such trusts, table trust in the matter of annual masses, so as to constitute an exception to the law against perpetuities. The doctrine of superstitious uses does not prevail in this country, and perhaps a limited amount can be expended for present masses. Edgerly v. Barker, 66 N. H. 434, 28 L. R. A. 328, 31 Atl. 900. As to this being outside the exceptions to perpetuities, see Kent v. Dunham, 142 Mass. 216, 56 Am. Rep. 667, 7 N. E. 730; Rhymer's Appeal, 93 Pa. 142, 39 Am. Rep. 736, 738, and note; 2 Roper, Legacies, p. 138; Schnorr's Appeal, 67 Pa. 138, 5 Am. Rep. 415; 2 Perry, Tr. § 687; Schouler, Petitioner, 134 Mass. 426; Jackson v. Phillips, 14 Allen, 539; 3 Am. & Eng. Enc. Law, p. 130, note 4; Jarman, Wills, 205, 208; Old South Soc. v. Crocker, 119 Mass. 1, 20 Am. Rep. 299; Saltonstall v. Sanders, 11 Allen, 446; Lewin, Trusts, (*528) p. 715, Am. ed. chap. 21; Duke v. Fuller, 9 N. H. 536, 32 Am. Dec. 392; 2 Wms. Exrs. p. 1118, 1055, note. Mr. Jeremiah J. Doyle for defendants. and provides a way for the appointment of trustees therefor whenever a vacancy exists. Pub. Stat. chap. 40, § 5; Id. chap. 51, § S; Laws 1891, chap. 19, §§ 1, 2; Laws 1893, chap. 68, §§ 1, 2; Laws 1897, chap. 6, § 1. It is in relation to the creating of a trust for the saying of masses about which there is contention. "The doctrine of superstitious uses arising from the statute (1 Edw. VI., chap. 14) under which devises for procuring masses were held to be void, has never obtained in the United States. In this country there is absolute religious equa!ity, and no discrimination in law is made be tween different religious creeds or forms of worship." Hoeffer v. Clogan, 171 Ill. 462, 40 L. R. A. 730, 49 N. E. 527; U. S. Const. Amend. 1; Bill of Rights. art. 5; Holland v. Alcock, 108 N. Y. 312, 329, 16 N. E. 305; Gass v. Wilhite, 2 Dana, 170, 26 Am. Dec. 446; Methodist Church v. Remington, 1 Watts, 224, 26 Am. Rep. 61; McHugh v. McCole, 97 Wis. 166, 40 L. R. A. 724, 72 N. W. 631; Rhymer's Appeal, 93 Pa. 142, 39 Am. Rep. 736: Schouler, Petitioner, 134 Mass. 426. It remains to be considered whether the saying of masses can be upheld as a "charitable use. In Seda v. Huble, 75 Iowa, 429, 39 N. W. 685, a bequest in trust for the benefit of 1. The statute of 43 Eliz. chap. 4 (1601), a Catholic church, with directions to "invest was the culmination of all prior legislation said money safely for the benefit of said concerning charities. Since its passage, church, and that services should be held in those objects are considered charitable that said church for his soul yearly," was held to are named therein, and many others that are be valid as a bequest to a charitable use. "not named, and not within the strict letter Schouler, Petitioner, 134 Mass. 426, a beof the statute, but which come within its quest for "burial and funeral expenses, and spirit, equity, and analogy." 2 Perry, Tr. the residue for charitable purposes, masses," § 692. Although the general principles of etc., was held to be valid on the ground that charitable trusts have been repeatedly recog-"masses are religious ceremonials or observnized in this state (Duke v. Fuller, 9 N. H. 538, 32 Am. Dec. 392; Chapin v. School Dist. No. Tuo, 35 N. H. 454; Second Cong. Soc. v. First Cong. Soc. 14 N. H. 315; Brown v. Concord, 33 N. H. 285; Atty. Gen. ex rel. Abbot v. Dublin, 38 N. H. 459; New Market v. Smart, 45 N. H. 87), it "has not been judicially determined" whether this statute has been adopted. But concerning this it is not important to inquire, since "courts of equity have an original and an inherent jurisdiction over charities, independent of the statute." Pike, J., delivered the opinion of the court: In ances of the church of which she [the testatrix] was a member, and come within the religious, pious uses which are upheld as public charities." In Rhymer's Appeal, 93 Pa. 142, 39 Am. Rep. 736, the testator, after certain legacies, bequeathed all the residue of his estate "to St. Mary's Catholic Church, to be expended in masses for the benefit and repose of" his soul; and it was held to be a religious use, but failed because of a statute of that state requiring all such bequests to be executed with due formality at least one cal endar month before the decease of the testa- | in. It is a solemn and impressive ritual, tor. The court said: "The testator has from which many draw spiritual solace, guidclearly declared the use or purpose to which ance, and instruction. It is religious in its his bequest shall be applied. It is to be ex- form and in its teaching, and clearly comes pended in masses for the benefit and repose within that class of trusts or uses denomiof his soul. While this may not be regarded │nated in law as charitable. And, while the efas a charitable use, within the accepted fect of these services upon the members of this meaning of the word, it is certainly in every church is impressive and beneficial, the monproper sense of the term a reli- ey expended for the celebrations thereof is of gious use. In the denomination with which benefit to the clergy, and is upheld and the testator appears to have been identified, maintained for this reason, as one of the the mass is regarded as a prominent part of cherished objects of religious uses. Atty. the religious service and worship. Accord- Gen. ex rel. Abbot v. Dublin, 38 N. H. 459; ing to the Roman Catholic system of faith, Hoeffer v. Clogan, 171 Ill. 462, 40 L. R. A. there exists an intermediate state of the soul, 730, 49 N. E. 527. The upholding of such after death and before final judgment, during trusts is in harmony with the principles of which guilt incurred during life and una- our law. toned for must be expiated; and the tempor- 2. The executor is not empowered to set ary punishments to which the souls of the apart one sum for the care of the burial lot, penitent are thus subjected may be mitigated and another for the saying of masses. The or arrested through the efficacy of the mass branches of the trust are to be administered as a propitiatory sacrifice. Hence the prac- together, and by the same trustee. The distice of offering masses for the departed. It cretion with which the executor is invested cannot be doubted that in obeying the injunc-extends only to the methods to be adopted in tion of the testator, and offering masses for the performance of this duty. The whole the benefit and repose of his soul, the officiat- trust is to be administered by him (Brock v. ing priest would be performing a religious Sawyer, 39 N. H. 547), or by someone else service; and none the less so because inter-appointed in his place by the probate court. cession would be specially invoked in behalf Pub. Stat. chap. 198, § 6. of the testator alone. The service is just the Case discharged. same in kind whether it be designed to promote the spiritual welfare of one or many. Prayer for the conversion of a single impenitent is as purely a religious act as a petition for the salvation of thousands. The services intended to be performed in carrying out the trust created by the testator's will, as well as the objects designed to be attained, are all essentially religious in their character." In harmony with this last case is the recent decision of Hoeffer v. Clogan, 171 Ill. 462, 40 L. R. A. 730, 49 N. E. 527, where the testa-An tor left to the Holy Family Church, its successors and assigns, real estate in trust to sell and expend the proceeds in saying masses for the repose of his soul and the souls of his deceased wife, mother-in-law, and brother-in-law, and a legacy in trust to be expended in saying masses for the repose of the souls of his father, mother, and sister. The devise and legacy were held to be charitable, and were not allowed to fail by want of a competent trustee. It is said in the opinion that, "while the testator may have a belief that it All concur. STATE of New Hampshire V. Michael KEAN. (........N. H. ......................) indictable nuisance is created by bay window which extends 4 feet and 7 inches over a street, at a point 8 feet above the ground, although it does not interfere with travel on the highway, where the statute declares that a building, structure, or fence shall be deemed a public nuisance if "erected or continued upon or over any highway so as to obstruct the same or lessen the full breadth thereof." (March 12, 1897.) The case sufficiently appears in the opin ion. NOTE. For encroachment on street by awn will benefit his soul or the souls of others RESERVATION by the Supreme Court for Hillsboro County for the opinion of the doing penance for their sins, it is also a bene- full court of an indictment charging defendfit to all others who may attend or partici-ant with erecting a nuisance consisting of pate in it. An act of public worship would a bay window in a public highway. Judg. certainly not be deprived of that character ment against defendant. because it was also a special memorial of some person, or because special prayers should be included in the services for particular persons. Memorial services are often held in churches, but they are not less acts of worship because of their memorial character. . . The mere fact that the bequest was given with the intention of obtaining some benefit, or from some personal motive, does not rob it of its character as charitable." The saying of mass is a ceremonial celebrated For municipal power over buildings as nuisby the priest in open church, where all who ances in street, see note to Hagerstown v. Witchoose may be present and participate there-mer (Md.) 39 L. R. A., beginning on page 662. ings, bay windows, etc., see Augusta v. Burum (Ga.) 26 L. R. A. 340, and note; State V. Clarke (Conn.) 39 L. R. A. 670, with annotation commencing on page 667; and Hibbard v. Chicago (Ill.) 40 L. R. A. 621. For provision in deed limiting projection of bay window, see Atty. Gen. v. Algonquin Club (Mass.) 11 L. R. A. 500. Mr. James P. Tuttle, for the State: When this bay window was projected over the street and into the street 4 feet 7 inches, the condition of that street was changed. The ruling in the present case is correct. Hopkins v. Crombie, 4 N. H. 524. When land is taken for public use as a highway, the landowner is entitled to receive a sum in damages, which in theory of law is an indemnity for the use of the land taken. Winchester v. Capron, 63 N. H. 605, 56 Am. Rep. 554, 4 Atl. 795; Makepeace v. Worden, 1 N. H. 16. Mr. Oliver E. Branch, for defendant: It is not an indictable offense, to which there is no defense, to erect a building, strucure, or fence of any kind upon or over a highway. The rights of the public in a highway are in the nature of an easement or right of passage, and the soil and freehold belong to the owners of the land. Morrison's Digest, p. 468. § 148; Winship v. Enfield, 42 N. H. 197; Chamberlain v. Enfield, 43 N. H. 356; Cressey v. Northern R. Co. 59 N. H. 564, 47 Am. Rep. 227. Whether an obstruction of a highway constitutes a nuisance is a question of fact for the jury. Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536; State v. Hall, 22 N. H. 384. On petition for rehearing. In the decision the court did not consider that the defendant, being under an indictment, is entitled to a jury trial on all the facts alleged and not admitted. N. H. Const. pt. 1, art. 15. The court did not consider that the offense for which the respondent was indicted is by statute made a public nuisance (Pub. Stat. chap. 77, 88), and, being a public nuisance, the respondent has a constitutional right to a trial by jury. State ex rel. Rhodes v. Saunders, 66 N. H. 39, 18 L. R. A. 646, 25 Atl. 588. The court in the decision did not consider that upon the trial of the indictment the respondent would have been entitled, if no facts had been admitted, to instructions to the jury upon the following questions: (1) Is the bay window erected upon or over the highway? (2) If it is so erected, does it obstruct the same? (3) If it is so erected, does it lessen the full breadth of the highway? A purpresture is not necessarily a public nuisance. A public nuisance must be something which subjects the public to some degree of inconvenience or annoyance; but a purpresture may exist without putting the public to any inconvenience whatever. Sections 1-6 inclusive, chap. 77, Pub. Stat., cover cases of "actual obstruction," and furnish a remedy for their prompt and immediate removal. But they must not be confounded with the subject-matter contained in § 8, under which the respondent was indicted. Parsons, J., delivered the opinion of the court: "By the common law anyone may abate a Inuisance to a highway." 1 Hawk. P. C. chap. 75, § 12; Id. chap. 76, § 61; 3 Bl. Com. *5. To justify such action, it must appear that the object removed was an obstruction to the public travel,-an actual nuisance. In such case, "whether any object permanently placed, temporarily left, or slowly moving in a public highway" unnecessarily obstructs public travel, and therefore is a common nuisance, is a question of fact to be determined by the jury from all the circumstances of each particular case. Hopkins v. Crombie, 4 N. H. 520, 525; Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536. "If any timber, lumber, stone, or other thing is upon a highway, encumbering it," a prompt remedy for the immediate removal of the obstruction is provided. Pub. Stat. chap. 77, §§ 1-6. In proceedings under this statute, whether the object complained of is an encumbrance, and its removal necessary for the public convenience, are questions of fact to be determined upon competent evidence. Richardson v. Smith, 59 N. H. 517. The public, however, is entitled to the full and free use of all the territory embraced within the limits of a highway, not only for actual passage, but for all purposes that are legitimately incident thereto. Every actual encroachment upon a highway by the erection of a building or fence thereon, or any other permanent or habitual occupation thereof, is an invasion of the public right, even though it does not operate as an actual obstruction to public travel. Wood, Nuisances, §§ 81, 250. "Where there is a house erected, or an inclosure made, upon any part of the King's demesnes, or of a highway, or common street, or public water, or such like public things, it is properly called a purpresture." 4 Bl. Com. *167. "Pourpresture' cometh of the French word 'pourprise,' which signifieth a close, or enclosure; that is, where one encroacheth, or maketh several to himself that which ought to be common to many." Co. Litt. 2776; Co. Magna Charta, 38, 272. Any unauthorized erection over a highway is a purpresture. Wood, Nuisances, § 77; Knox v. New York, 55 Barb. 404; Atty. Gen. v. Evart Booming Co. 34 Mich. 462. Since the public right is coextensive with the limits of the highway, that the traveled part is not thereby impeded is no defense to an indictment charging the erection or maintenance of a building or other construction within the highway. Roscoe, Crim. Ev. 3d Am. ed. 567; Com. v. Wilkinson, 16 Pick. 175, 26 Am. Dec. 654; Com. v. King, 13 Met. 115; Com. v. Blaisdell, 107 Mass. 234; Harrower v. Ritson, 37 Barb. 303; Dickey v. Maine Teleg. Co. 46 Me. 483; Wright v. Saunders, 65 Barb. 214; Queen v. United Kingdom Electric Teleg. Co. 31 L. J. Q. B. N. S. 167; Rex v. Wright, 3 Barn. & Ad. 681; Reimer's Appeal, 100 Pa. 182, 45 Am. Rep. 373. This does not conflict with the adjoining owner's right to make any reasonable temporary use of the street which does not unnecessarily obstruct the public passage. 1 Hawk. P. C. chap. 76, § 49; Wood. Nuisances, §§ 256, 257; Rex v. Cross, 3 Campb. 224; Rex v. Jones, 3 Campb. 230; Winchester v. Capron, |