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DIGEST OF ENGLISH LAW REPORTS.
later than she would had she gone there direct. The only injury to the freighters from this delay was a small loss in freight. In an action against the freighter, held, that the above clause was a stipulation, not a condition precedent; and that the delay did not justify the freighter for refusing to load a cargo, but that his remedy for any damage was]by cross-action.—McAn.
drev v. Chapple, Law Rep. 1 C. P. 643. CHILDREN, CUSTODY OF.-See GUARCIAN. CODICIL.—See WILL, 2. COMPANY.-See Contract, 1; Master AND SER
VANT, 3, 4; PRACTICE, 4; Ultra VIRES ;
VENDOR AND PURCHASER, 3. CONDITION.—See Party; CONTRACT, 2, 3. CONTRACT.
1. The defendants, members of an unregis. tered society, gave the following note for a debt of the society: “Twelve months after date, we the undersigned, being members of the executive committee, on behalf of the L. and S. W. Society, do jointly promise to pay," &c. Held, that they were personally liable.Gray v. Raper, Law Rep. 1 C. P. 694.
2. A court will not imply conditions not expressed in an agreement, if it appear, from such agreement, that the conditions were either not thought of, or else that they were intentionally excluded from the agreement.--Midland Railway Co. v. London and N. W. Railway Co., Law Rep. 2 Ex. 524.
3. A contract to sell cotton at a given price, to arrive at L. per ship from C., provided : “ The cotton to be taken from the quay; customary allowances of tare and draft; and the invoice to be dated from date of delivery of last bale.” Held, that the clause as to place of delivery was not a conditionsprecedent, but a stipulation in favor of the sellers; and that the contract was in effect one to deliver the cotton at a reasonable time and under reasonable circumstances, the cotton to be at the buyers risk and charge from the time of landing on the quay.--Neill v. Whitworth, Law Rep. 1 C.P. 684.
4. A. sold stock, and lent the proceeds for a term of years to B., who covenanted to repay the stock in kind at the end of the term, and to pay interest on the proceeds in the mean while. A, allowed the loan to continue after the term. Held, that B. could discharge the loan by repaying the stock in hand, with interest till repayment; and that A. was not entitled to the market price at the end of the term, which was higher than at the time of re-pay. ment.-Blyth v. Carpenter, Law Rep. 2 Eq. 501.
5. A son forged his father's name on notes, which he gave to bankers, who advanced him money on them. The banker showed the signatures to the father, who denied that they were his. Afterwards, in the presence of father and son, the bankers insisted on a settlement to which the father should be party: they made no distinct threat of prosecution, but said, “If the bills are yours [the father's] we are all right; if they are not, we have only one course to pursue, we cannot be parties to compounding a felony." The father consented to a settlement, and gave them an agreement to mortgage his property, on which the notes were given up to him, Held, that the agree. inent was invalid, and should be delivered up to be cancelled. - Williams v. Bayley, Law Rep. 1 H. L. 200. See CoreyanT; DISCOVERY; EASEMENT ;
FREIGHT, 3; LEASE; SHIP; VENDOR AND
Testator devised his real estate to S. for life, with remainder to her children in tail with re. mainders over, and bequeathed personal estate on corresponding trusts: he directed his trustee to sell a certain freehold estate, and invest the proceeds in lands in certain counties or in government securities, to be settled to the like trusts as his real and personal estate were settled. The trustees, in 1805, sold the freehold estate, and invested the purchase money in government securities, and allowed it to remain so invested till S.'s death in 1863. S. had only one child, who was born and died in 1810. Held, that the securities vested absolutely in S.'s child as personal estate.-Rich v. Whitfield,
Law Rep. 2 Eq. 583. CORPORATION.-See COMPANY, Costs.-See EQUITY PLEADING AND PRACTICE, 4, 5,
6; PROBATE PRACTICE; SOLicitor, 3. COVENANT.
The purchaser of land covenanted with the vendor not to use any building erected thereon " as a public-house for the sale of beer.” Held, that the sale of beer by retail, under a license “not to be drunk on the premises," was no
breach.--Pease v. Coats, Law Rep. 2 Eq. 688. CRIMINAL LAW.-See CONTRACT, 5; JURISDICTION;
Master & SERVANT, 5; PERJURY; THREAT. Damages.—See LIBEL, 2; Suip, 3. DEED.
1. In a lease, the boundary line was described “ as a line drawn from A's house to a bound-stone;" and, in the description of the premises, it was said, "which said premises are particularly described by the map on the
Digest OF ENGLISH LAW REPORTS.
back.” On this map, the boundary line was drawn from the north-east corner of the house. The position of the house itself was incorrectly laid down on the map. Held, that the judge was bound to tell the jury that the line was to be drawn as marked on the map. (Lord Westbury dissenting; it being ascertained that the house was incorrectly laid down, there was a latent ambiguity, to determine which evidence should have been allowed to be given to the jury.)-Lyle v. Richards, Law Rep. 1 H. L. 222.
2. A., being indebted to B. on simple contract, made a deed, by which, after reciting the debt, he charged property as security for its payment, and agreed to execute such mortgage of the property, with all covenants and clauses incidental thereto, as B. should require. Held, that the deed made the debt a specialty debt. -Saunders v. Milsome, Law Rep. 2 Eq. 573.
See Will, 4. DEPOSITION.
Under the 1 Wm. IV. c. 22, sec. 10, which makes a deposition taken under it inadmissible at nisi prius, unless it shall appear to the satis. faction of the judge that the deponent is unable froin permanent sickness, or other permanent infirmity, to attend, held, that the court out of which the record comes may review the judge's decision, but that it will not do so, unless it is shown that there was frand, or that injustice has resulted from the course parsued; held, further, that the word “permanent” does not mean that the sickness is incurable. Quære, whether an affidavit of the deponent's ordinary medical attendant is admissible to shew such permanent sickness. Semble, per Willes, J., that it is.—Duke of Beaufort v. Crawshay, Law Rep. 1 C. P. 699.
had evinced a savage disposition, by attempting to bite.— Worth v. Gilling, Law Rep. 2 C. P. 1.
2. The plaintiff was bitten by a stray dog at a railway station. It appeared that, at 9 p.m., the dog tore the dress of another woman on the platform, of which the company's servants had notice; that, at 10.30, he attacked a cat in the signal box near the station, when the porter kicked him out, and saw no more of him; and that he appeared again at 10.40 on the platform, and bit the plaintiff. Held, no evidence to charge the company with negligence. Smith v. Great Eastern Railway Co., Law Rep.
2 C. P. 4. EASEMENT,
A. and B. were tenants of adjoining premises under the same landlord. B. was sup. plied by a pipe with water from A.'s well. Both premises were sold at auction, with others, in lots; one of the conditions being that each lot was subject to all rights of water and other easements (if any) subsisting thereon. A. and B. each purchased the lot of which they had respectively been tenants. Held, on bill by A. against the vendor, that B. had no easement or right of water, but merely a license from the landlord during his tenancy; and that A. was entitled to specific performance of his contract, without any reservation of such easement.—Russell v. Harford, Law Rep. 2 Eq. 507.
See WATERCOURSE. ELECTION.
1. A female minor, having executed marriage articles, which contained a covenant by the husband to settle her interest in real and personal estate, including after-acquired property, on the nsial trusts, died without having confirmed the articles, leaving her husband surviving and an only child. Held, that the child could not both claim under the articles an interest in the personal estate, and also claim, as heir to his mother, t'ie real estate attempted to be settled, must elect whether to take under or against the settlement.-Brown v. Brown, Law Rep. 2 Eq. 481.
2. A will, attested by two witnesses, devised land in England to A., the testator's heir, for life, with remainder to trustees; and also devised to them land in St. Kitts on trust. to sell and hold the proceeds on the same trust. A. received the rents of the St. Kitts' estates during his life ; and the trustees made ineffectual efforts, with his concurrence, to sell them. A. died intestate. Held, that, if the will were not properly executed to pass land in St. Kitts, yet that A, had elected to take under the will;
On a bill for specific performance of a con. tract to sell to the plaintiff certain premises and machinery, alleging that the defendants had, since the contract, let the premises to third persons, who were using and injuring the machinery, the plaintiff is entitled to discovery to whom the property had been let, and for what term.—Dixon v. Fraser, Law Rep. 2 Eq. 497. See Equity PLEADING AND PRACTICE, 1 ; Pro
DUCTION OF DOCUMENTS. Dog.
1. In an action for negligently keeping a ferocious dog, it need not be shown that it had bitten another person before it bit the plaintiff; it is enough if the defendant knew that it
Digest Of English Law REPORTS.
DISCOVERY; PRODUCTION OF DOCUMENTS ;
WILL, 3. EXECUTION.
Land conveyed to a board of health for the purposes of the Public Health Acts, and used as a reservoir for supplying water to the district, can be taken under a writ of elegit on a judgment obtained against the board in the name of their clerk.- Worral Waterworks Co. v. Lloyd, Law Rep. I C. P. 719.
See JUDGMENT; PRACTICE, 5. EXECUTOR.-See ADMINISTRATION; WILL, 6. Falsa DEMONSTRATIO.— See Will, 15. FOREIGN STATE.-See EQUITY PLEADING AND PRAC
and that his infant heir was bound by his aets, and, under the Trustee Act of 1850, was trustee for the person claiming under the will.-- Dewar v. Maitland, Law Rep. 2 Eq. 834.
3. A., having power to appoint a fund, on the marriage of his daughter B. appointed oneseventh to her; and, on the marriage of his daughter C. appointed another one-seventh to her. Afterwards, by deed-poll, without noticing the previous appointments, he gave onesixth of the fund to B., another one-sixth to C., three other sixths to other children, leaving one sixth undisposed of. Held, that the appointments to B. and C., made by the deed. poll, were in substitution for those before made, and raised a case of election. England v.
Lavers, Law Rep. 3 Eq. 63. EQUITY PLEADING AND PRACTICE.
1. The United States, suing in an English Court, can only obtain relief subject to the control and pursuant to the rules of the court. Proceedings were therefore stayed in a suit by the United States till an answer should have been put into the defendant's cross-bill; but, held, that the President of the United States had been improperly made a defendant to the cross-bill, as the person to give discovery. Semble, that the bill of the United States should have been demurred to, because no public officer was put forward as representing their interests who could be called on to give discovery upon a cross-bill.
Prioleau v. United States, Law Rep. 2 Eq. 659.
2. When a large number of persons have similar legal claims, all depending on the same question, against one, he can, by a bill filed against some, restrain the proceedings of all, till the validity of the claims has been decided. - Sheffield Waterworks v. Yeomans, Law Rep. 2 Ch. 8.
3. Interrogatories to the plaintiff may be filed after notice of motion for decree, and filing of the plaintiff's affidavits, and proceedings will be stayed till the plaintiff answers, if there has been no excessive delay. Brancker v. Carne, Law Rep. 2 Eq. 610.
4. Charges for settling the minutes of orders are allowed, though no minutes are issued.Reece's Estate, Law Rep. 2 Eq. 609. 6. In administration suits, in which theg
gross value of the estate amounts to £1,000 when the suit is begun, the higher scale of costs applies.-- Reece's Estate, Law Rep. 2 Eq. 609: ·
6. If the defendant resists in toto a claim a little too large, he must pay the costs up to the hearing.–Jeffryes v. Agra & Masterman's Bank, Law Rep. 2 Eq. 764.
And see different tiiles throughout.
FORGERY --Sec CONTRACT, 5.
1. The consignee of goods, before their arrival, indorsed the bill of lading, but not so as to pass the property, to a wharfinger, in these words " Deliver to A. or order, looking to him for all freight, without recourse to us." The ship owners accepted the indorsement, and, in pursuance of it, delivered the goods to A. Held, that they could not sue the consignee for freight.—Lewis v. Mckee, Law Rep. 2 Ex 37.
2. A charter-party provided that the ship should have a lien on cargo for freight at £3 108. per ton, to be paid on delivery at L. The charterers shipped part of the cargo them. selves under a bill of lading from the ship. owners containing this clause: “Freight for the said goods payable in L., as per charterparty;" the charterers, for valuable considera. tion, indorsed this bill of lading to A., who did not know the contents of the charter-party, but understood that freight was £3 10s. per ton. Held, that, as against A., the shipowner had a lien only for the freight due for the goods included in the bill of lading at £3 108. a ton, and not for the whole chartered freight.-Fry v. Chartered Mercantile Bank of India, Law Rep. I C. P. 689.
3. The defendant chartered a vessel of three hundred tons for a voyage from a foreign port home, with a full cargo at 848. per ton; but, he not being able to furnish the
the owners agreed to cancel the charter-party, and to procure another cargo, on the defendant guaran. teeing “a sum of £900 gross freight home." The cargo shipped under this agreement fell shor: vf the guaranteed sum by £343. The vessel was lost. Held, that the contract was
broken at the moment of the shipment of the cargo, and therefore the owners could recover the £343, notwithstanding the loss of the vessel. - Carr v. Wallachian Petroleum Co., Law Rep. 1 C. P. 636.
4. The assignee of a particular freight has a claim prior to a registered mortgagee of the ship and of all freight to be earned by hier, who was prior in date, but who gave no notice, and took no steps to enforce his mortgage, till the assignee had notified the charterer, and the cargo had been partly discharged. --Brown v. Tanner, Law Rep. 2 Eq. 806.
See CHARTER PARTY; SHIP. GUARDIAN.
The court refused to interfere with the foreign guardian, duly appointed, of subjects of a foreign country, when he wished to remove his wards from England, where they had been sent to be educated, in order to complete their eaucation in their own country; the court refused to discharge an order appointing English guardians, but gave the foreign guardian exclusive control of the children. - Vugent v. Vetzera, Law Rep. 2 Eq. 704.
See ADMINISTRATION, 1. HUSBAND AND WIFE.
1. If a wife has an equity to a settlement out of a fund, the amount settled on her (which, semble, will, in the absence of special circum. stances, be half the fund) will be directed to be settled on her and her children, with remainder, in default of issue, to her husband.Spirett v. Willows, Law Rep. 1 Ch. 520.
2. A woman, by an ante-nuptial settlement, assigned all the personal estate to which she might at any time thereafter become entitled in any way whatsoever, on the trusts of the settlement; and her intended husband covenanted to settle any personal estate whatsoever that should devolve on or vest in her. After the marriage, a legacy was given to the wife, with a direction to the executors to pay such part thereof to the wife as she might require for her separate use, independent of her husband, and to be free in all respects from his debts and engagement. Held, that the settlement did not affect such part of the legacy as the wife required to be paid to her on her separate receipt. Mainwaring's Settlement, Law Rep. 2 Eq. 487. See ALIMONY; ELECTION, 1 ; SEPARATE Estate;
The court of equity will not refuse an injunction to restrain an action at law merely on the
ground that the plaintiff has pleaded an equitable plea to the action, if the court of law cannot give such relief on the plea as the court of equity can give.- Waterlow v. Bacon, Law Rep. 2 Eq. 514. See EQUITY PLEADING AND PRACTICE, 2; Ver
DOR AND PURCHASER. INTEREST.-See MorTGAGE, 3. INTERROGATORIES. See EQUITY PLEADING AND
PRACTICE, 3. JUDGMENT.
A. having sued B. for £28, B. paid A. £10 on account of the debt. A. afterwards signed judgment, for default of appearance, for £28 and costs, and issued execution for the amount, under which B. was arrested, and paid the sum demanded. B. having sued A. for maliciously, and without probable cause, signing judgment and issuing execution, held, that while the judgment stood for the full amount, B. was estopped to deny the correctness of the judgment or the execution. - Huffer v. Allen,
Law Rep. 2 Ex. 15. JURISDICTION.
It being only a question of law arising on a trial that can be stated for the opinion of the court for Crown cases reserved, that court has no jurisdiction if the prisoner has pleaded guilty; and the question is whether the prisoner's'act described in the depositions supports the indictment. The Queen v. Clark,
Law Rep. 1 C. C. 54. LEASE.
T. took land of R. from R.'s agent, by parol agreement, all parties knowing that the land was to be built on.
A ground-rent was fixed. T. laid out £1,800 in building. T., in a subsequent application for other land for building, declared himself willing to take such other land as “tenant at will.” This land also was allotted him at a fixed ground-rent. When buildings were erected on R.'s land, those who had so taken the land were entered on the books as tenants. All sides admitted, that, where such takings were made, the tenants would never be disturbed while the ground-rent was paid. When the tenant wished to transfer the land to another, the entry of the name in the ageni's book was altered. Often the land was surrendered, and the new tenant accepted, much as in the transfer of a copyhold. The tenancies were very numerous. T. alleged that there was believed to exist, and ihat R.'s agents had, by their words and conduct, encouraged such belief, a "tenant right tenure" on the estate, and that one who had so taken and built on R.'s land was entitled to demand the grant of
DIGEST OF ENGLISH LAW REPORTS.
lease for sixty years. Such leases had been granted, but there was no direct evidence of their having been granted on any such claim of right. A railway company, however, being desirous of obtaining some of R.'s land held under parol agreement, on the payment of a ground rent, had refused to purchase unless such leases were granted; they were granted, and then the tenonts received compensation, Held (Lord Kingsdown dissenting) that these circumstances did not show the existence of any thing more than a tenancy from year to year, and did not establish any title to compel the grant of a lease, and that, the landlord having brought ejectment against T., equity could neither compel the grant of a lease nor enjoin the ejectment.—Ramsden v. Dyson, Law
Rep. 1 H. L. 129. LEGACY.-See WILL. LIBEL.
1. A letter having been written by a churchwarden to the plaintiff, the incumbent, accusing him of allowing books to be sold in the church during service, and of turning the vestry into a cooking room, the correspondence was .published in the defendant's newspaper, with comments on the plaintiff's conduct. Held, that this was a fit matter for public discussion; and that the publication was not libellous, unless the jury thought the language was stronger than the occasion justified.—Kelly v. Tinling, Law Rep. 1 Q. B. 699.
2. The plaintiff sued the defendant for hav. ing published in his newspaper a series of gross libels on the plaintiff as incumbent of a church. It appeared, at the trial, that the first libel originated in the plaintiff having preached and published two sermons on the appointment of a Roman Catholic as chaplain to the jail, and the election of a Jew as mayor; that the plaintiff had, soon after the libels had commenced, alluded, in a letter to another newspaper, to the defendant's paper as the “dregs of provincial journalism;" and that he had also published a statement, that some of his opponents had been guilty of subornation of perjury in relation to a charge of assault against him. The verdict was for a farthing damages. Held (by Blackburn and Meller, JJ.; Shee, J., dissenting), that though, on account of the
grossness and repetition of the libels, the damages might well have been heavier, the court ought not to set aside the verdict.-Kelly v. Sherlock,
Law Rep. 1 Q. B. 686. LUNATIC.
The court found that a lunatic owned certain real estate in fee, and that certain persons were
his heirs. On his death intestate, Held, that the court, sitting in lunacy, would not order the committee of the person to deliver to the heirs the estate which he had taken possession of under an adverse claim, except that part of which he had been put in possession by the court; and that neither he, nor the committee of the estate, nor the latter's solicitor, were liable to account, in lunacy, for rents accrued since the lunatic's death.-In re Butler, Law
Rep. 1 Ch. 607.
1. A testator being entitled to real and personal estate absolutely, and having a power of appointment over settled personal estate in favor of his children, after giving certain specific and pecuniary legacies, gave certain pecuniary legacies to the children, and then appointed the settled property, charged with the latter legacies, to a grandchild. He also devised and bequeathed his residuary personal and his real estate, subject to the payment of the legacies given by his will. Held, that the legacies to the children were demonstrative, and to be paid primarily out of the settled property, whether the appointment to the grandchild was good or not.- Disney v. Crosse, Law Rep. 2 Eq. 592.
2. Since the Wills Act,'a general pecuniary legatee has a right of marshalling as against the residuary devisee of real estate.—Llensman v. Fryer, Law Rep. 2 Eq. 627.
3. Money borrowed by an intestate on his note, but secured by deposit of title-deeds of real estate, in terms as collateral security, is, by 17 and 18 Vic. c. 113, to be paid out of the real estate. ---Coleby v. Coleby, Law Rep. 2 Eq. 808.
4. The heir who has paid the debts and funeral expenses as inatter of bounty cannot afterward claim to be repaid out of the personal
estate.-Coleby v. Coleby, Law Rep. 2 Eq. 803. MASTER AND SERVANT.
1. The rule that a master is not liable to a servant for injuries caused by the negligence of a fellow-servant is not affected by the fact, that the servant guilty of negligence is a servant of superior authority, whose lawful orders the other is bound to obey.-Feltham v. Eng. land, Law Rep. 2 Q. B. 33.
2. The plaintiff was a porter at a station of the A. Railway Company. The B. Railway Company also used the station; and their servants, while there, were subject to the rules of the A. company, and to the control of their