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DIGEST OF ENGLISH REPORTS.

arising from her fiduciary capacity as donee of the power; that the lease was a good exercise of the power; and that, if some of the licenses granted were void, the lease was void pro tanto only. Held, by Byles and Montague Smith, J.J., that a mere working power was given to the daughter; and that the lease was void, or could not at all events extend beyond the daughter's life. Jegon v. Vivian, Law Rep. 1 C. P. 9.

4. Under a settlement of personalty containing a power to sell the trust funds, and invest in real estate to be held on such trusts as would best correspond with the subsisting trusts, and to be considered personal estate for the purposes of the settlement, the trustees have a power of sale over purchased real estate, though no such express power is contained in the settlement.-Tait v. Lathbury, Law Rep. 1 Eq.

174.

5. If a power, coupled with a duty, is given to trustees, to be executed at a fixed period, and after they have come to a judgment as to the conduct of the individual to be effected, who has married three years before the time for such execution; and if the trustees formally approved of the marriage, and were made aware of a provision out of the trust estate for the intended wife, contained in the marriage settlement, and though they gave no warning that they might be obliged to defeat such provision, -yet it is the duty of the trustees (the husband having, in their judgment, subsequently misconducted himself) to execute the power so as to restrict him to a life-interest, though the provision for the wife's and other claims founded on the marriage settlement, are thereby defeated.- Weller v. Ker, Law Rep. 1 H. L. Sc.

11.

6. By a marriage settlement, a wife had power to appoint a fund to "all and every the children, or child, or more remote issue of the marriage." She appointed the fund to new trustees on trust to pay the income to her only child for his life, or until he became bankrupt, or assigned the same; and then to the trustees for his life, for the benefit of her son, his wife, and children, or any of them, as the trustees should think expedient. Held, that the appointment was void in toto, and not merely for the excess.-Brown's Trust, Law Rep. 1 Eq. 74.

See WILL, 13.

PRACTICE (AT LAW).

1. An indorsement of a notice on a writ of summons, allowing less time for payment than the time limited for appearance, is an irregula rity not waived by admission of service.-Galli v. Mongruel, Law Rep. 1 C. P. 46.

2. The court will not interfere with the discretion of a judge at chambers in refusing leave to proceed without personal service, under 15 & 16 Vic. c. 76, § 17.—Tomlinson v. Goatly, Law Rep. 1 C. P. 230.

3. A writ having been issued for service out of the jurisdiction, the court, not being satisfied that the plaintiff did not intend to sue for matters not arising within the jurisdiction, ordered the writ to be set aside, unless the plaintiff would give an undertaking to prove, and confine himself to a cause of action arising within the jurisdiction.-Diamond v. Sutton, Law Rep. 1 Ex. 130.

See ARBITRATION; COSTS; DAMAGES, 2; EQUITY PRACTICE; INTERROGATORIES; JURY; PAR

TICULARS.

PRESCRIPTION.-See HIGHWAY, 3; LANDLORD AND TENANT, 1; NUISANCE, 1.

PRINCIPAL AND AGENT.

1. A. having employed B. to manage and carry on-in the name of "B. & Co."-his business, to which the drawing and accepting bills of exchange was incidental, although he forbade B. to accept or draw bills, was held liable on a bill accepted by B. in the name of "B. & Co.," in the hands of an endorsee, who took it without any knowledge of A. and B., or the business. -Edmunds v. Bushell, Law Rep. 1 Q. B. 97.

2. If an auctioneer, who is authorized to sell goods on condition that purchasers shall pay a deposit at once, and the remainder of the purchase money on or before delivery of the goods, receives payment by a bill of exchange, which falls due, and for which he receives cash, after his authority to sell is revoked, the purchaser is not discharged. — Williams v. Evans, Law Rep. 1 Q. B. 352.

3. A., a broker, sold some yarn to the defendant. Before its delivery, the defendant paid A. in advance £1,000 on his general account. Part of the yarn was sold by A., as agent for the plaintiff, on a del credere commission. The yarn being worth more than £1,000, the defendant paid the difference to A. in cash, and so balanced the accounts between them. A. did not pay over to the plaintiff the value of his yarn, and became bankrupt. Held, that the defendant was still liable to the plaintiff for the price of his yarn, except to the extent of the cash payment. Catterall v. Hindle, Law Rep. 1 C. P. 186.

4. The duties of the agent of a company being personal, and incapable of being enforced in equity, the court refused to restrain the directors from acting upon or enforcing the resignation of A., whose agency was made a condition

DIGEST OF ENGLISH REPorts.

in the prospectus of the company, and was expressly provided for by its articles; but put the directors on an undertaking not to take advantage-in proceedings at law, to recover the amount due on A's. shares-of his resignation, which he alleged to have been conditional on his being relieved from all liability on shares. -Mair v. Himalaya Tea Co., Law Rep. 1 Eq.

411.

See BILLS AND NOTES, 1, 2, 3; FRAUDS, STATUTE
OF, 4; INSURANCE, 5, 6; MASTER AND SER
VANT, PARTNERSHIP, 1.

PROBATE-See ADMINISTRATION; EXECUTOR, 2; LE-
GATEE; PRODUCTION OF DOCUMENTS, 1; WILL.

PRODUCTION OF DOCUMENTS.

1. A testator disposed of his residue, according to the trusts of a deed in which he had no concern or interest. The persons interested in and having the custody of the deed having refused to produce it, or allow a copy of any part to be made, the court directed probate of the will to issue, without the incorporation of the deed or any part thereof.-Goods of Sibthorp, Law Rep. 1 P. & D. 106.

2. A cestui que trust of an equity of redemption, in a suit for redemption of the mortgage and reconveyance of the property, can demand production of a conveyance of the equity to a mortgagee by the trustee, with notice of the trust.-Smith v. Barnes, Law Rep. 1 Eq. 65.

3. A mortgagee must always produce the mortgage deed for inspection by the mortgagor. -Patch v. Ward, Law Rep. 1 Eq. 436.

4. In an administration suit, it was ordered, on the application of the defendant trustees, that a contract for sale made before the suit should be carried into effect, the purchaser consenting to be bound "as if he were a party to the suit, and the contract was specially the subject thereof." The purchaser having applied for reduction of the purchase-money, on account of adverse claims, was held entitled to an affidavit by the trustees as to documents in their possession relating to matters in question between him and them.-Dent v. Dent, Law Rep. 1 Eq. 186.

5. A clerk of persons against whom adjudication of bankruptcy is prayed, who has stated that he has no possession of their books, is not bound to produce them on the hearing.-In re Leighton, Law Rep. 1 Ch. 331.

6. A subpœna duces tecum requiring a solici tor, not a party, to produce all papers, &c., relating to all dealings between his firm and a party, for thirty-three years, without specifying particular documents, is too vague; but, if the witness admits that he has the documents

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thereby required," he must produce them, without being first sworn.-Lee v. Angus, Law Rep. 2 Eq. 59.

7. An application for liberty to seal up documents, by a defendant who has not been required to answer as to documents need not be made on the original summons for production; but will be granted on summons by the defendant, after his filing an affidavit admitting possession of the documents, without his paying the costs of his summons.— -Talbot v. Marshfield, Law Rep. 1 Eq. 6.

PROMISSORY NOTE-See BILLS AND NOTES. RAILWAY.-See CARRIER; COMPANY, 1, 2; MASTER AND SERVANT, 1, 2; NEGLIGENCE, 1, 2, 3, 4; SPECIFIC PERFORMANCE, 2, 3.

RAPE.

1. On a trial for rape there must be some evidence that the act was without the woman's consent, even if she be an idiot; and if there are no appearances of force, and the only evidence of the connection is the prisoner's admission, coupled with the statement that it was done with her consent, there is no evidence for the jury. The Queen v. Fletcher, Law Rep.

1 C. C. 39.

2. The offence of attempting to have carnal knowledge of a girl under ten years of age may be committed, though she consent.-The Queen v. Beale, Law Rep. 1 C. C. 10. RECEIVER-See ADMINISTRATION, 2; TRUSTS, 2. RECEIVING STOLEN GOODS.

1. A thief stole goods from the custody of a railway company, and afterwards sent them in a parcel, by the same railway, addressed to the prisoner. The theft being discovered, a policeman in the company's employ opened the parcel on its arrival at the station for delivery; and then returned it to a porter, to be kept till further orders. On the next day the policeman directed the porter to take the parcel to its address, when the prisoner received it. Held, on an indictment laying the property in the company, that the prisoner was not guilty of receiving stolen goods, as the goods had got back into the possession of the owner.-The Queen v. Schmidt, Law Rep. 1 C. C. 15.

2. The 24 & 25 Vic. c. 96, § 94,-which enacts, that if one or more persons, of two or more indicted for jointly receiving property, are proved to have separately received any part or parts of such property, the jury may convict such of said persons as have received any part or parts of the property,-includes cases where the prisoners separately received the whole of the stolen property.-The Queen v Reardon, Law Rep. 1 C. C. 31.

REGISTRATION.

DIGEST OF ENGLISH REPORTS.

A registered title can be affected only by clear and distinct notice, amounting in fact to fraud.-Chadwick v. Turner, Law Rep. 1 Ch.

310.

RELEASE.

Residuary legatees having given up to a debtor of their testatrix a policy on his life, held by her as security for the debt, and having signified their intention of releasing the debt on his paying the probate and legacy duty on the debt, such payment is a good consideration for the release, and the debt is released.-Dubitante, KNIGHT BRUCE, L. J.; Taylor v. Manners, Law Rep. 1 Ch. 48.

RENT.

1. Under a condition in a sale of leaseholds, that all outgoings to the day of taking possession shall be paid by the vendor, an apportioned part of the current rent from the last quarterday to the day of taking possession is an outgoing.-Lawes v. Gibson, Law Rep. 1 Eq. 135.

2. A rent-charge, granted by a deed containing no power of distress, is within the 4 Geo. II. c. 28, § 5, and is therefore a "freehold tenement.-Dodds v. Thompson, Law Rep. 1 C. P.

133.

See APPEAL, 1; FRAUDS, STATUTE OF, 2; LEASE; TENANT FOR LIFE.

RES ADJUDICATA,

Demurrer will not lie to a bill on the ground of res adjudicata, unless it avers that everything in controversy, as the foundation of the suit, was in controversy in the former suit.— Moss v. Anglo-Egyptian Navigation Co., Law Rep. 1 Ch. 108.

RESIDENCE.-See DOMICIL.
SEDUCTION.-See DAMAGES, 1.
SEPARATE USE.

A bequest of a legacy to trustees on trust, to invest and pay the dividends to the testator's unmarried niece during her life, "for her own sole and separate use and benefit, free from the control of any husband she may marry," followed by a bequest of the residue of the testator's personal estate to the said niece, "for her own sole use and benefit absolutely,”—held, that there was a good gift of the residue to the wife's separate use.-Tarsey's Trust, Law Rep. 1 Eq. 561.

See ACCRUER, 2.

SERVICE.-See PRACTICE (at law); SUBSTITUTIONAL SERVICE.

SETTLED ESTATE,

Testator devised real estate to trustees on trust, at their discretion to sell, invest the pro

ceeds, and pay the income to his wife and children. Held, that, as the time of sale was discretionary, and as the rents until sale must by implication go as the income of the proceeds was directed to be applied, this was a settled estate, within 19 & 20 Vict. c. 120, § 1; and 21 and 22 Vict. c. 77, § 1.-Laing's Trusts, Law Rep. 1 Eq. 416. SOLICITOR.

1. A trustee is liable for loss caused by the fraud of his solicitor, although he may have used ordinary discretion in employing him.— Bostock v. Floyer, Law Rep. 1 Eq. 26.

2. Consent to the withdrawal of a juror, by counsel retained to conduct a cause, is binding on the client, notwithstanding he may have dissented, if this dissent was not known to the opposite party at the time.-Strauss v. Francis, Law Rep. 1 Q. B. 379.

3. Proceedings taken on behalf of a defendant by a solicitor, who had not at the time renewed his annual certificate, will not be set aside as irregular; the interest of the client not being affected by the want of proper qualification.— Sparling v. Brereton, Law Rep. 2 Eq. 64.

4. If a solicitor, acting for a vendor, receives the deposit on the sale of an estate as such agent, he does not receive it as a stockholder, but must pay it to the vendor on demand.Edgell v. Day, Law Rep. 1 C. P. 80.

5. A solicitor who pays off a mortgage due from his client must be taken to act as the agent of the client, and not on his own behalf; and, if he receives the rent of the mortgaged property, the possession is that of the client, and the Statute of Limitations does not run against the client. Ward v. Carttar, Law Rep. 1 Eq.

29.

See PRODUCTION OF DOCUMENTS, 6. SPECIAL CASE.

If a case is submitted on an agreed statement of fact, with power for the court to draw any reasonable inferences, the court cannot infer that the facts stated are a color to conceal something really different; at least, unless such inference is very clearly made out.-Bullen v. Sharp, Law Rep. 1 C. P. 86. SPECIFIC PERFORMANCE.

1. A title, under a construction of a will, will not be forced on a purchaser, if an opposite construction has been acted on for years, and if the judge whose opinion is appealed from held the title bad, unless such opinion is clearly erroneous.- Collier v. McBean, Law Rep. 1 Ch.

81.

2. The safety or convenience of the public is a ground for refusing specific performance of a

DIGEST OF ENGLISH REPORTS.

contract between a railway company and a land owner. Raphael v. Thames Valley Railway Co., Law Rep. 2 Eq. 37.

3. An award that the defendant should execute to the plaintiff a lease of a railway made by the plaintiff on the defendant's land, in words set out in the award, and that the plaintiff should furnish to the defendant certain privileges, such as keeping an engine on the railway, -which, however, were not mentioned in the lease, will not be ordered to be specifically peformed, because the provisions in favour of the defendant cannot be enforced at once.Blackett v. Bates, Law Rep. 1 Ch. 117.

4. Defendant purchaser in possession, who, by decree directing an inquiry as to title, has been ordered to pay into court the interest on the purchase-money,-which is also declared a lien on the estate,-is not entitled to dismiss the bill for specific performance, though the plaintiff cannot show good title; it appearing that the defendant has, since the purchase, by his own act, acquired the means of curing the defect; and leave will be granted to amend, or to file a supplemental bill.-Hume v. Pocock, Law Rep. 1 Eq. 662.

See LEASE, 6, 7; PARTNERSHIP, 4; VENDOR
AND PURCHASER, 3, 6, 8.

STATUTE OF FRAUDS.-See FRAUDS, STATUTE OF.
STATUTE OF LIMITATIONS.-See LIMITATIONS, STA-

TUTE OF.

STATUTE, REPEAL OF.

If a statute is impliedly modified by a later statute, and the later statute is afterwards repealed, the implied modification ceases.Glaholm v. Barker, Law Rep. 1 Ch. 223.

See COMPANY, 4.

STOPPAGE IN TRANSITU.

Goods were shipped by the vendor on a general ship, belonging to a firm of which the purchaser was a member; and registered in the purchaser's name. Three parts of the bill of lading, by which the goods, were deliverable at G. to the purchaser or assigns, were handed to the vendor, and the fourth retained by the master.-Held, that the goods might be stopped in transitu, before the delivery at G.-Schotsmans v. Lancashire and Yorkshire Railway Co., Law Rep. 1 Eq. 349: SUBSTITUTIONAL SERVICE.

Substituted service ordered on a solicitor who had acted for the defendants in transac. tions concerning the matter in suit; service to be also made at the defendant's foreign residece, personal service being impracticable.-Hope v. Carnegie, Law Rep. 1 Eq. 126.

SURVIVORSHIP.

If persons claim property as next of kin to an intestate, the burden lies on those claiming through a deceased nearer of kin to show that such deceased survived the intestate-Green's Settlement, Law Rep. 1 Eq. 288.

See ACCRUER, 1; VESTED INTEREST, 2. TENANT FOR LIFE AND REMAINDER MAN.

1. A remainder man can maintain a bill against the executor of the busband of tenant for life, for an account of rents improperly received by the testator after his wife's death, before the remainder man asserted his rights; and, if the executor does not admit assets, he can maintain a bill for an account of the testator's estate.-Caton v. Coles, Law Rep. 1 Eq. 581.

2. If a tenant for life, under a settlement of an estate pur autre vie, has renewed the lease for lives to himself and heirs, purchased the fees, made a parol demise for a year, but dies before the end of the current half-year, the rent must be apportioned, under 11 Geo. II. c. 19, § 15, between his executor and the remainder man. Mills v. Trumper, Law Rep. 1 Eq. 671

3. A written agreement by a tenant in tail expectant on the death of an insolvent tenant for life, with the agent of the assignee of the tenant for life, that the assignee should have the same right to the timber as if he had actually cut it on a past day named, and that the assignee should not cut it for a month, will not be enforced in equity, if the tenant for life was alive at the day named, but dead at the date of the agreement, though both the tenant in tail and the assignee's agent were ignorant of his death.-Cochrane v. Willis, Law Rep. 1 Ch. 58.

4. The receipt of rents under a lease, made by tenant for life under a supposed power, by a receiver appointed during the remainder man's minority, does not create a tenancy from year to year; nor does the acceptance by the remainder man from the receiver of the accumulated rents so received confirm the lease.Jegon v. Vivian, Law Rep. 1 C. P. 9.

5. If a demise is determined by the expiration of the landlord's estate, and the tenant continues to hold under the remainder but man, nothing passes between them, except the payment and receipt of the same rent as before, the new landlord is not bound by a stipulation in the former tenancy, which is not known to him in fact, nor according to the custo:n of the country.-Oakley v. Monck, Law Rep. 1 Ex.

159.

See POWER, 3.

THREATENING TO ACCUSE.

DIGEST OF ENGLISH REPORTS.

A prisoner who has threatened to accuse of an abominable crime with a mare, in order to force her purchase under terror of the charge is guilty of threatening to accuse with intent to extort money.-The Queen v. Redman, Law Rep. 1 C. C. 12. TRADE MARK.

1. No trader can adopt a trade-mark so resembling that of another trader that persons purchasing with ordinary caution are likely to be misled, though they would not be misled if they saw the two marks side by side; nor can a trader, even with some claim to the mark or name, adopt a trade mark which will cause his goods to bear the same name in the market as those of a rival trader.-Seixo v. Provezende, Law Rep. 1 Ch. 192.

2. On an enquiry whether any and what damage has accrued from the unlawful use of a trade-mark, the plaintiff must prove special damage; and it will not be presumed that the amount of goods sold under the fraudulent trade-mark would have been sold by the plaintiffs, but for the unlawful use of the mark.— Leather Cloth Co. v. Hirschfield, Law Rep. 1 Eq.

299.

3. The plaintiff being a thread-maker of repute, the defendant bought in the market wound thread, not made by the plaintiff, of inferior quality, and not bearing his name; but marked with the name of thread-winders known to be accustomed to buy of the plaintiff thread in the hank for winding. The defendant sold the goods to a wholesale customer, with the assurance (given, as alleged, without knowledge of any misrepresentation), that they were made by the plaintiff; and invoiced them to the customer under certain numbers, adopted and exclusively used by the plaintiff to mark his manufacture. The customer attached the plaintiff's name and numbers to the thread. Held, that the defendant had not been guilty of such wilful misrepresentation that an injunction would be granted; and the bill was dismissed, but without costs.-Ainsworth v. Walmsley, Law Rep. 1 Eq. 518.

TRUSTS.

1. A father put a check into the hands of his son of nine months old, saying, "I give this to baby for himself;" then took it back, and put it away. He also expressed his intention of giving the amount of the check to the son, but shortly afterwards died, and the check was found among his effects. Held, that there had been no valid declaration of trust.-Jones v. Lock, Law Rep. 1 Ch. 25.

2. A., by settlement on his son's marriage, covenanted for payment by himself, his heirs, executors, or administrators, during his life, or three months after his death, of £3,000 to trustees, with interest till paid. By will, he devised certain real estates for payment of debts, and other real estates to trustees, in trust for his grandson for life, with remainders over. The grandson mortgaged his equitable life-interest for value. The executors paid interest on the £3,000 till 1849; but the £3,000 not having been paid, and the personal estate and the estate devised for payment of debts being exhausted, the trustees, in 1863, brought a suit to have the £3,000 raised by sale of the devised estates.

Held, that the £3,000, though due on covenant and solvendum in futuro, was a debt within the statute against fraudulent devices, 3 Wm. & M. c. 14; that A.'s having ample assets at the date of covenant did not take it out of the statute, it not being necessary that the devise should be made to defraud creditors; and that the mortgage by the grandson did not affect the creditor's right, the devisees in trust and not the equitable tenant for life, being the devisee within the statute.

Held, further, that misapplication of assets in the hands of the trustees was no reason why the creditor should not be paid out of the devised estates; and the fact that one of the original covenantees, who had been a receiver of A.'s estate during his lunacy, had not paid the £3,000 out of the money so received, was no bar to the present claim, he having no right to apply such moneys otherwise than as directed by the court; and also that the mortgagee could not be regarded as a purchaser without notice.-Coope v. Creswell, Law Rep. 2 Eq. 106. See CONFIDENTIAL RELATION; EXECUTOR DE SON TORT, 2; MORTGAGE, 2, 4; PRODUCTION OF DOCUMENTS, 2; POWER, 4, 5; SOLICITOR, 1.

VARIANCE.

The plaintiff lent money to A. on B.'s pro mise to become surety for repayment; and, after the money was advanced, A. and B. signed and delivered this memorandum, " We jointly and severally owe you £60, Held, sufficient evidence for the jury, on a declaration against A. and B. for money lent, and on accounts stated.-Buck v. Hurst, Law Rep. 1 C. P. 297. VENDOR AND PURCHASER.

1. A purchaser for value cannot require a voluntary agreement affecting the land to be delivered up to be cancelled.-De Hoghton v. Money, Law Rep. 1 Eq. 154.

2. A condition of sale, that no objection should be made in respect of a specified lease, or any

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