U. S. Rep.]

the obvious purpose is not to take place till after the death of the person making it, shall operate as a will. The cases for that are both at law, and in equity; and in one of them there were express words of immediate grant, and a consideration to support it as a will."

To the same effect were the other opinions in this case. The cases to which Justice Buller alluded as cited by the Attorney General (Sir John Scott), were West's case, Moore 177, where it is laid down that if there is a letter expressing the disposition as to land it is sufficient :-Green v. Proude 1 Mod. 117, where, though the instrument was sealed and delivered as a deed it was held to be a will. Maltham v. The Duke of Devonshire, 1 P. Will. 529 where a will directed the executors to pay £3,000 as the testator should afterwards appoint. He afterwards made a deed of appointment which was taken as part of the will.

I refer also to cases cited in note Q of 1 Williams on Evidence, p. 61; Rowan's Appeal, 1 C.

293.

But it is supposed the covenant of general warranty in the deed estops the plaintiffs. Undoubtedly the covenant of general warranty protects the consideration, and as that was in the form of services to be rendered, John W. Scott will be entitled to his action for damages if he rendered those services. This question has not been investigated in the present action; but if the old man turned the son out of possession of the premises, and took exclusive possession to himself and died in such exclusive possession, it is not very likely that a breach of covenant will be enforced against his personal representatives, which was not thought worth asserting against the old man himself.

But, however this may be, we see nothing in the covenant of warranty to change our construction of the operative words of the grant. As these words were expressly limited to take effect only after the death of the grantor, they were necessarily revocable words. The doctrine of the cases is that, whatever the form of the instrument, if it vest no present interest but only appoints what is to be done after the death of the maker, it is a testamentary instrument. It signifies nothing that the parties meant to make a deed instead of a will. If they have used language which the law holds to be testamentary, their intention is to be gathered from the legal import of the words they have employed;-for all parties must be judged by the legal meaning of their words.

7

The revocable words of the first instrument having been revoked by the subsequent will, the estate must go to the devisees, and John W. Scott if entitled to any redress, must seek it by a personal action against the legal representatives of the decedent.

The judgment is reversed, and a venire facias de novo is awarded. AGNEW, J.

I dissent from the opinion just read.

The late Chief Justice Gibson, in dealing with the principle which rules this case, said in Hileman v. Bowsbaugh 1 Harris, 344,-"it is decisive against the testamentary character of the instrument that it is not absolutely a will. It must be

[U. S. Rep.

exclusively so or it is a deed; for there is no middle ground.

Then, what have we? A deed in form-in all its parts and circumstances without the slightest cast of a will. Form, it is true, will not prevail against actual intent; but it is the evidence of intention, and casts the proof of actual intent on those who oppose it. But here both form and intention coincide, as the instrument clearly shows. The writing is not only styled an indenture, grants, bargains and sells an estate for a valuable as well as a good consideration; was sealed and delivered in the presence of witnesses, and was duly recorded as a deed in two months from its date, but the valuable portion of the consideration was an immediate agreement of the grantee to live with the grantor in his lifetime, and to labor for and assist him in working his farm (the granted premises), and also to maintain the grantor's wife during her lifetime, in case she survived him. How can this portion of the deed be construed as a will? and how can revocability be affirmed of such an instrument? which according to the English decisions, by its acceptance, made this agreement a covenant on part of the grantee on which the action of covenant will lie, and in our state according to the decisions only varies the liability to assumpsit instead of covenant, when the instrument is not sealed by the grantee. It is no answer to say that the grantee did not perform the present service to which the deed bound him. That may be a good defence in equity to the covenant to stand seized, created by the deed, and therefore allow ground for a recision but it does not alter the nature of the writing. As a test of its true character let us suppose John W. Scott had lived with and labored for his father as stipulated in the consideration of the deed, will any one say that the instrument under which the services was performed though in form an indenture could be revoked as a will? Clearly not. It undoubtedly had the force of a power of attorney coupled with an interest, which though revocable as an instrument becomes irrevocable by the interest coupled with it. Indeed, it was more, -for it contained a covenant for title. On the performance of the stipulated serviee it took effect, and would be no longer within the grantor's control. Having received the consideration, or being in its continued receipt, his covenants in the instrument bound him, one of which was the express covenant to warrant and defend the estate and premises granted to John W. Scott and his heirs and assigns, against the grantor and his heirs, and all others, subject to (and this is the only exception in the covenant), the life estate reserved to the grantor. This is a clear covenant as to the remainder after the particular estate of the vendor had expired, and it was for a present and a valuable consideration in the labor and service to be performed. The language of the granting part of the deed is also a present conveyance of the land, and carries all within its terms, which, according to the established rule of interpretation, must be taken most strongly against the grantor.

The exception which follows the grant is thereore all that can avail him and what is it?

It is simply a reservation of the use and possession to the grantor and his assigns during his natural lifetime, and this exactly coincides with

U. S. Rep.]

The

the subsequent covenant of warranty. words "and this conveyance in no way to take effect until after the decease of the said John Scott, the grantor," follow the exception, and acadded to it, and it is supposed they give charare teer to the instrument. But, while they limit th time when the deed is to take effect and raise a new question-whether the deed is a common law feoffment, or a covenant to stand seized to use, they in no wise impress upon the instrument the character of a will, or make it revocable by the act of the grantor alone. They do not release or discharge the grantee from his obligation to perform an immediate service, as the present consideration of the indenture; nor do they release the grantor from his covenant for title on the grantee's performance. But these are the very elements of contract, and not of voluntary devise. They take from the paper its title to be an absolute will, and draw it directly within the principle stated by the late C. J. Gibson.

The true point of the case is that the paper is a contract for acts to be done in the lifetime of the grantor, and is wholly inconsistent with the idea of mere testacy. The language of the late Chief Justice illustrates the point, and is therefore cited, and not because it contains a rule applicable to every case that can arise.

What, then was the true design of the instrument?

Clearly, it was on one side, to enable the father to have the labor and services of his son on his farm at home while he lived, retaining the right to its use and possession during his own lifetime, and to secure the maintenance of his wife after his death, if she survived him; and on the other hand, to secure the title to the son after his death, as a compensation for his labor and service. Did the son intend to perform his part of the indenture, and leave it optional with his father to retract and revoke his? Did the father intend to take the service of his son, and yet retain the power to disappoint him? No such design appears in the whole instrument; yet this is the burden of proof of an actual intent which the form of the instrument imports.

Certainly there was a bargain between these parties, as the intent of the writing clearly shows. It was for a valuable consideration, and though the writing may not operate as a common law feoffment because of the reserved life estate, yet it will operate as a covenant to stand to the use of the son, on his performing the services stipulated as the consideration. If he failed to perform it, equity may relieve the covenator because of the failure of the consideration; but it cannot alter that which clearly was a bargain in terms and intent, and thus change the writing from a deed into a mere will.

I would therefore affirm the judgment of the court below. Pittsburgh Legal Journal.

1. A. obtained a patent for improvements in the construction of ships. By his specification, he claimed as his invention (amongst others) 1, the construction of ships "with an iron frame combined with an external covering of timber;" "6, the consruction of iron frames adapted to an external covering of timber, as described." Held, that the term "iron frame" in the first claim was not confined to such an iron frame as that specified in the sixth claim; and that inasmuch as the use of iron and timber in the construction of ships was already known and used, and as the claim was only for the application of the same old invention, viz., planking with timber, which was formerly done on a wooden frame, to the same purpose on an iron frame, the patent could not be sustained. -Jordan v. Moore, Law Rep. 1 C. P. 624.

2. Time for applying for letters patent was extended where the delay was small and accidental.-In re Hersee, Law Rep. 1 Ch. 518. PENALTY. See MORTGAGE, 2.

PERJURY.

False swearing before a local marine board, acting under 17 & 18 Vic. c. 104, is perjury.— The Queen v. Tomlinson, Law Rep. 1 C. C. 49. PLEADING.-See EQUITY PLEADING AND PRACTICE; PRACTICE, 1, 3; SOLICITOR, 2. PLEDGE.-See BILL OF LADING. POWER.

1. Testatrix had, by her marriage settlement, power to appoint certain funds, but it did not appear that she had any other property. By will, made before the Wills Act, not referring in terms to the power, she gave all her property and estate, of what nature, kind, quality soever the same might be, to her husband

absolutely. Held, an execution of the power.

After

2. Property was given by will on trust to A. for life; remainder to all or such one or more of the children or issue of the testator's deceased brother B., in such shares and in such manner as A. should appoint; and, in default of appointment to B.'s children equally. C., one of B.'s children, assigned "all his estate and effects" by deed under the Bankruptcy Act. 1861, but never obtained a discharge. this, A. appointed the fund by will to B.'s children equally; and, as all B's children survived A., C. took the same share he would have taken in default of appointment. Held, that the deed did not pass after-acquired property; and that C.'s interest in default of appointment was de. feated by the appointment, which gave him a new interest, liable to be defeated by lapse, and that therefore C.'s share did not pass under the deed.- Vizard's Trusts, Law Rep. 1 Ch. 588. See ELECTION, 3; MARSHALLING of Assets, 1. PRACTICE.

1. If an action is begun in the name of a dead man, his representatives cannot be substituted as plaintiffs.- Clay v. Oxford, Law Rep. 2 Ex. 54.

2. To an action on a bill of exchange, the defendant pleaded that he did not accept, and proved that the bill was accepted by his partner in the firm's name, and included a private debt of the partner, for which he had given his partner no authority to accept. The court amended the declaration by adding a count for the consideration, and ordered a verdict to be entered for the sum really due from the firm on terms. Whether the plea was proved, quære. Ellston v. Deacon, Law Rep. 2 C. P. 20.

3. An affidavit made in order to hold a defendant to bail, which states that the defendant "is indebted" to the plaintiff" for money lent and goods sold and delivered,” without averring that the money was lent or the goods sold and delivered by the plaintiff to the defendant, is insufficient.-Handley v. Franchi, Law Rep. 2 Ex. 34.

4. A creditor may have a scire facias against a shareholder in a railway company, under 8 & 9 Vic. c. 16, sec. 36, though the sheriff's returns to abortive writs issued against the company have not been actually filed at the time of the motion; and, though notice to the party sought to be charged must be served personally, the rule nisi for the scire facias may be served on an attorney authorized to accept service for him. - Ilfracombe Railway Co. v. Devon and Somerset Railway Co., Law Rep. 2 C. P. 15.

5. A plaintiff who recovers a debt not exceeding £20, though deprived of costs, is yet

entitled to poundage fees and expenses of execution under 15 & 16 Vic. c. 76, sec. 123.Armitage v. Jessop, Law Rep. 2 C. P. 12. See DIFFERENT TITLES.

PRINCIPAL AND AGENT.

The defendant employed an architect to prepare plans and a specification for a house, and to procure a builder to erect it. The architect took out the quantities, and represented to the plaintiff, a builder, that they were correct; the plaintiff thereon made a tender, which was accepted. The quanities proved incorrect, and the plaintiff expended much more material than he contemplated. Held, that there was no evidence that the architect acted as the defendant's agent in taking out the quantities, or that the defendant guaranteed their accuracy, and that, therefore, the plaintiff could recover only his contract price. Scrivener v. Pask,

2. The rule which protects one opposing a will against costs, if he gives notice that he merely insists on the will being proved in solemn form, and only intends to cross-examine the witness produced in support, does not apply to a case in which undue influence is pleaded. -Ireland v. Rendall, Law Rep. 1 P. & D. 194. 3. A next of kin, who had unsuccessfully pleaded undue influence, was yet not condemned in costs, the plea under the circumstances not being unreasonable. Smith v. Smith, Law Rep. 1 P. & D. 239.

See ADMINISTRATION. PRODUCTION OF DOCUMENTS,

1. A case and opinion of counsel stated about a separate litigation on the same subject-matter as the present dispute, and, after it had arisen, is privileged from production, as is also a letter written between co-defendants about a matter in suit, with direction to forward it to their joint solicitor.-Jenkins v. Bushby, Law Rep. 2 Eq. 547.

2. If a defendant, after answer, has obtained an affidavit as to documents in the common

form, he may file a concise statement of specific matters of which he seeks discovery with interrogatories; and it will be no answer for the plaintiff to say, that some of such matters were comprised in or that they were all referred to in the answer, and that the first affidavit was sufficient; but a summons, taken out by the defendant for an affidavit of documents in the same form in which he has interrogated, will be dismissed as unnecessary. Newall v. Telegraph Construction Co., Law Rep. 2 Eq. 756.

3. To entitle to discovery under the Common Law Procedure Act, 1854, sec. 50, a party must show by affidavit that his adversary has some one document to the production of which he is entitled. Evans v. Louis, Law Rep. 1 C. P. 656.

PROMISSORY NOTE.-See BILLS AND NOTES. RAILWAY.-See DoG, 2; MORTGAGE, 4; ULTRA VIRES; VENDOR AND PURCHASER, 3.

RELEASE.

If a release given by A. to B. extends in terms to money which B. has openly, but without justification, taken from A., A. cannot file a bill to compel B. to pay this money, though, when the release was given, A. was ignorant of B.'s fraud. A.'s remedy is to have the release set aside, and if, in consequence of dealings subsequent to the release, that cannot be done, A. is without relief in equity.-Skilbeck v. Hilton, Law Rep. 2 Eq. 587.

RES ADJUDICATA.-See JUDGMENT.
SALE.-See CONTRACT, 3; VENDOR AND PURCHASER.
SEPARATE EState.

Testator gave real and personal estate to trustees in trust for his wife for life, and after her death for his daughter absolutely, and directed that the principal moneys, rents, issues, profits, interest, dividends, and proceeds which his wife and daughter, or either, should be entitled to, should be paid into their own hands as the same became due, and not by way of anticipation, and should be for their separate use and benefit; and for which moneys, rents, issues, profits, interest, dividends, or proceeds, the receipt alone of his wife and daughter, whether covert or sole, should be a discharge. Held, that the corpus of the real estate was not given to the separate use of the daughter.Troutbeck v. Boughey, Law Rep. 2 Eq. 534. SERVANT.-See MASTER AND SERVANT. SERVICE OF PROCESS.-See PRACTICE, 4. SET-OFF.-See ASSIGNMENT. SETTLED ESTATE.

Four persons, entitled each to a fifth of a fund, became entitled in individual shares to

the estate on which the fund was charged; the entire estate being subject to a mortgage. Held, that no one of the four could claim the right of having the whole fund divided, and thrown in fourths on the respective shares; so that, by paying the difference between what was chargeable on his share of the estate and what was due him in respect of his portion, his share might be cleared; but held, that such a proposal was a proper subject for arrangement in Chambers.-Otway-Cave v. Otway, Law Rep. 2 Eq. 725.

SHELLEY'S CASE, RULE IN.-See WILL, 14.

SHIP.

1. The charterers put a cargo, consisting of casks of oil, wool, and rags, on board the vessel, and personally superintended the stowage of the cargo. The bill of lading of the oil contained this memorandum, "not accountable for leakage." On the voyage, the oil casks became heated by the action and contiguity of the wool and rags, and a very large portion of the oil was lost. In a suit by persons to whom the bill of lading had been transferred, held, that the memorandum covered not only ordinary leakage, but all leakage, in the absence of negligence, Held, further, that the ignorance of the shipowners as to the latent effect of heat in storing the oil with wool and rags, did not, in the circumstances of the shippers superin tending the stowage, amount to such negligence as to make them liable-Ohrloff v. Briscall, Law Rep. 1 C. P. 231,

2. Goods were shipped under a bill of lading describing them as of certain weight, and making them deliverable to the consignees on payment of freight at a certain rate on the net weight delivered. On arrival, the agent appointed by the managing owner refused to deliver the goods, unless the consignees would pay according to the weight mentioned in the bill of lading, or (under an alleged custom) incur the expense of weighing at the ship's side or at a legal quay. The consignees paid under protest, and sued the defendant, a part owner, to recover back the excess. The jury having negatived the custom, held, that the defendant was liable, though he had neither interfered with nor assented to the appointment of the agent, and though none of the money had come to his hands.-Coulthurst v. Sweet, Law Rep. 1 C. P. 649.

See AWARD, 3; BILL OF LADING; CHARTER PARTY; FREIGHT.

SOLICITOR.

1. One of a firm of solicitors received from a client money, for which a receipt was given

in the firm's name, stating that part was in payment of costs due the firm, and the rest to make arrangements with the client's creditors. The solicitor misappropriated the money. Held, that the transaction with the client was within the scope of the partnership business; and that the partners were jointly and severally liable to make good the amount, but that all the partners were necessary parties to a suit in equity for that purpose.—Atkinson v. Mackreth, Law Rep. 2 Eq. 570.

2. If the defendant does not plead no signed bill delivered, an attorney may rely on a contract for a specific sum for business to be done, without producing a bill, or showing charges amounting to the sum.-Scarth v. Rutland, Law Rep. 1 C. P. 642.

3. The attorney of a married woman retained in a divorce suit has a lien for his costs on her alimony in his hands.-Ex parte Bremner, Law Rep. 1 P. & D. 254.

See PRODUCTION OF DOCUMENTS, 1; TRUSTEE, 2. SPECIFIC PERFORMANCE. See DISCOVERY; EASE

MENT.

STOPPAGE IN TRANSITU.

A French firm, M. & D., sold goods through their agent in England to S. & T., payable by bill at three months, and shipped the same. A bill of lading was delivered to S. & T., in exchange for their acceptance at three months. Afterwards, the bill of lading was redelivered to M. & D.'s agent to hold as security against the acceptance. T., a member of the firm of S. & T., subsequently obtained the bill of lading from M. & D.'s agent by a fraudulent misrepresentation, and indorsed and delivered it to P. for value, without notice of the fraud. Held, that M. & D.'s right of stoppage in transitu was gone.-Pease v. Gloahec, Law Rep. 1 P. C. 219.

THREAT.

At the trial, before justices, of an information against A. & B., under 6 Geo. IV., c. 129, sec. 3, for unlawfully, by threats, endeavoring to force C. to limit the number of his apprentices, it appeared that C. was a master-builder, and A. and B. president and secretary of a bricklayers' association. C.'s men having left him, he wrote, three weeks after, to B., as secretary, asking why the men were taken from him, and what they required him to do. At a meeting of the association, at which A.. & B. were present, a reply was sent stating a resotion, passed some time before, that no society bricklayer would work for B. till he parted with some of his apprentices. The justices convicted A. & B. Held, on a case stated, that as the

justices had not stated that they had drawn the inference that sending the resolution was a threat, the court ought not to draw such inference from the evidence, and that the convic. tion ought not to stand. Quære, whether the combination of the men was illegal.- Wood v. Bowron, Law Rep. 2 Q. B. 21.

TRUSTEE

1. A trustee cannot exact any bonus in respect of great advantages accrued to the cestuis que trustent from services incident to the per formance of duties imposed by the trust deed, and a settled account by a cestui que trust, allowing such bonus was set aside.-Barrett v. Hartley, Law Rep. 2 Eq. 789.

2. A solicitor, holding the deeds of an estate mortgaged to his client, deposited them with a banker, as security for money with which he bought an estate for himself. When the mortgage was paid, he used the mortgage money in repaying the banker's loan, but told his client that he had re-invested it in other good security. His client thereupon executed a reassignment of the mortgage; but the solicitor never re-invested the money, though he paid interest thereon till his death. Held, that the client had a lien on the estate bought by the solicitor. -Hopper v. Conyers, Law Rep. 2 Eq. 549.

3. A marriage settlement declared that money, then in the hands of the wife's brother, should be held by three trustees (one being the brother) on trust, to pay her, at her written request, the whole or any part absolutely, and, till such request, on trust, when and as the same should come into the trustees' hands, to invest the same, and pay the interest to the wife for life, for her separate use, and, after her death, as she should by will appoint; and, in default of appointment, to the husband. The money was allowed to remain thirteen years in the hands of the brother, who paid the husband the interest and part of the principal, with the wife's knowledge. On bill by the wife, after death of the husband and insolvency of the brother, against the three trustees, held, that the trustees were guilty of a breach of trust, but that the wife was debarred by acquiescence from claiming as against the two trustees who had neglected to call in the money.Jones v. Higgins, Law Rep. 2 Eq. 538. See WILL, 4, 6; MORTGAGE, 3.