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Digest of English LAW REPORTS.
to B. for a term; and B. covenanted to leave the land, at the end of the term, as well stocked with game as at the time of the demise. Held, that the right to sue on this covenant passed, by 32 Hen. VIII. c. 34, to the assignee of A.'s reversion.— Hooper v. Clark, Law Rep. 2 Q. B. 200.
4. A. covenanted that he, in his lifetime, or his heirs, executors or administrators, within three months after his death, would pay a certain sum.
He died, having devised real estate to trustees, who refused to accept the devise, and, under order of the court, conveyed the estate to new trustees. Held, that an action of debt would lie against the trustees under the will and the heir, by the statute against fraudulent devises, 3 W. & M. c. 14, $ 3; and execution would thus be obtained against the land, and the conveyance to new trustees was not such an alienation as would prevent the action. --Coope v. Creswell, Law Rep, 2 Ch. 112.
See ELECTION, 2; LEASE, 1-5.
A custom for inhabitants of a parish to exercise horses at all seasonable tirnes, in a place beyond the limits of the parish, is bad. --Sowerby v. Coleman, Law Rep. 2 Ex. 96.
See, FREIGHT, 1; PRINCIPAL AND AGENT, 1, 4, 5. DAMAGES.-Sec LEASE, 3 ; Ligut, 2; PATENT, 6;
SET-OFF; SPECIFIC PERFORMANCE, 4.
1. On a bill filed by the official liquidator of a company against its late directors, alleging that a transaction by them was ultra vires of the company, and had been concealed by false descriptions in the company's books, held, on demurrer, that whether the transaction was ultra vires or not, the charges as to concealment must be answered.---Joint Stock Discount Co. v. Brown, Law Rep. 3 Eq. 139.
2. The prescribed quorum of directors in a company being three, the secretary affixed the company's seal to a bond, after having obtained the written authority of two directors at a private interview, and at another private inter. view the verbal promise of a third to sign the authority. Held, that directors acting under 8 Vic. c. 16, must act together and as a board; that the seal was affixed without authority, and the company was not liable on the bond.D'Arcy v. Tamar, Kit Hill & (allington Railway Co., Lai Rep. 2 Ex. 158.
DOMICIL --See FOREIGN COURT,
1. A testator, after reciting that his two daughters, A. and B., would be entitled to property under a settlement, and that therefore he had pot devised them so large a share as he otherwise should have done, devised to A. and B. certain estates, and to his two other daughters, C. and D., estates of much more value. In fact, the four daughters were entitled equally under the settlement. Held, that as the will did not purport to dispose of the settled property, and was only made under a mistaken impression, C. and I). were not put to their election.--Box v. Barrett, Law Rep. 3 Eq. 244.
2. A father, on his son's marriage, covenanted that he would, by will or in his lifetime, give one-fifth of the estate, to which he might be entitled at his death (subject to the payment of one-fifth of his debts), to trustees, on trust to pay the income to the son, till some event should occur whereby the income would (if the same were payable to the son absolutely) become vested in some other person; and then on trust for the son's wife and children, with a discretionary trust for the benefit of the son after his wife's death, By will the father charged his estate with his debts, and gave his estate to all his children who should be living at his death. He died, leaving five children. Held, that the gift in the will was not a satisfaction of the covenant so far as the wife and children were concerned, but was a satisfaction of the son's interest thereunder; and that the son must therefore elect between his life interest under the settlement, and one-fifth of the residue which would remain after satisfaction of the covenant. And the son having elected to take under the will, he'd further, that his life interest under the settlement was determined, and the income was payable to his wife. -McCarogher v. Whieldon, Law Rep. 3 Eq. 236.
See LEASE, 7. Equity.
1. A tenant in tail contracted to sell his estates for value, and in order to convey them suffered a recovery, which turned out to be technically defective at law. Held, that a court of equity would not allow persons
claiming under him to take advantage of the flaw.Howard v. Earl of Shrewsbury, Law Rep. 3 Eq. 218.
2. G. let land to H., on a lease renewable for ever.
L. and N., and several other persons, held under H., on the same terms. L. charged his holding with a jointure in favor of his wife
DIGEST of English LAW REPORTS.
afterwards, L. owing money to N., N. obtained from him possession of his land, though on what terms did not appear, and then granted him a lease for a year of it.
H. was in arrear with G., and H.'s tenants were in arrear with him. N. purchased G.'s interest in all the lands, and gave notice to the tenants to pay arrears, and take out renewal leases: this not being done, N. brought ejectment, and recovered possession. Held, that the circumstances did not raise an equity in favor of L.'s widow to have her jointure declared a charge on the lands.--Hickson v, Lombard, Law Rep. 1 H. L. 324.
3. The court of chancery, and not a court of law, is the proper tribunal to determine a questian of title depending on the validity of its own orders.— Howard v. Earl of Shrewsbury, Law Rep. 3 Eq., 218.
3 Sec Company, 1. EQUITY PLEADING AND PRACTICE.
1. A bill to perpetuate testimony relating to a matter, the subject of an existing suit against the plaintiff, is demurrable, though the plaintiff could not himself have made such a matter the subject of present judicial investigation. Earl Spencer v. Peek, Law Rep. 3 Eq. 315.
2. In a case where, under the old practice, the court would have directed, at the hearing, an inquiry on a question of fact, it may now examine a party or a witness viva voce under 15 & 16 Vic. c. 86, § 39.—Ferguson v. Wilson, Law Rep 2 Ch. 77.
3. A plaintiff cannot open a settled account, unless his bill states specific errors in the account. — Parkinson v. Hanbury, Law Rep. 2 H. L. 1.
4. Under 15 & 16 Vic. c. 86, § 55, the court can order a sale before the hearing of a suit, if it is for the benefit of the property.---Tulloch v. . Tulloch, Law Rep. 3 Eq. 574.
5. The court of chancery will not set aside an order not appealed against, provided the facts were duly before the court when the order was made, except when there is such broad and palpable error that it is plain the court must have miscarried.-Howard v. Earl of Shrewsbury, Law Rep. 3 Eq. 218,
6. A defendant having several times obtained an extension of time to answer, filed at last a document stating that he could not answer in the absence of information, for which he had sent to the continent, but which he had been unable to obtain. On motion, the document was ordered to be taken off the file, and the defendant ordered to pay the costs of the motion, and all other costs occasioned by filing such
answer.---Financial Corporation v. Bristol and N. Somerset Ruilway Co., Law Rep. 3 Eq. 422.
7. In a foreclosure suit, a defendant, having been served with the bill and interrogatories, wrote to the plaintiff that he claimed no inte. rest in the subject matter of the suit, and that, if an answer was insisted on, he should apply for costs. The interrogatories not having been withdrawn, he put in an answer and disclaimer, and at the hearing applied for costs. Held, that as he had not simply disclaimed, but had answered and appeared for the purpose of claiming his costs, he was not entitled to any costs.- Maxwell v. Wightwick, Law Rep. 3 Eq. 210.
See APPEAL, 2, 3; INJUNCTION; New Teial;
TENANT FOR LIFE AND REMAINDER Max, 3.
AND PRACTICE, 1, 2; EXTRADITION;
WILL, 10; WITNESS, 1.
A sheriff's officer went to the defendant's premises to levy under a fi. fa., and, without doing or saying anything more, produced his warrant, and demanded the debt and costs, together with poundage and expenses of levy. The money was paid under protest. Held, that this was not a levy, so as to entitle the sheriff to poundage, or the officer to fees.- Nash v.
Dickenson, Law Rep. 2 C. P. 252.
1. In an action against the executor of A., the declaration alleged that the plaintiff had recovered judgment against A., executor of R., and that A. had been guilty of a devastavit. The defendant pleaded that R. appointed A. and B. his executors; that B. was still living; that A, at his death, and after his death B., had effects of R. sufficient to satisfy the judgment and that the defendant never had in his hands any effects of R. as executor. Held, that the plea was bad, as, by the 30 Car. II., c. 7, the defendant was responsible as executor for A.'s devo stavit, which the plea admitted.—Coward v. Gregory, Law Rep. 2 C. P. 153.
2. A. was entitled to a life income from her husband's estate, and died in 1861. A bill was filed by her executor, in 1862, against her hneband's executor, for an account of income due her estate. In 1863 accounts were directed. In 1866 a certificate was made, finding a large sum due from the husband's executor. Held,
DIGEST OF ENGLISH LAW REPORTS.
that he was not chargeable with interest before the date of the certificate.--Blogg v. Johnson, Law Rep. 2 Ch. 225.
3. An executor who has distributed his testator's assets under the Act 22 & 23 Vic. c. 35, will have the same protection as if he had administered the estate under a decree of the court of chancery; and a bill against him as executor will be dismissed, though he has retained legacies as trustee, after appropriating them for the benefit of his costuis que trust.Clegg v. Rowland, Law Rep. 3 Eq. 308.
See ADMINISTRATION, 1; CONVERSION; LIMITATIONS, STATUTE OF, 1. EXTRADITION.
In proceeding under the Extradition Acts, held (1), that original depositions taken before the Act 29 & 30 Vic. c. 121, if authenticated as that act requires, are admissible in evidence; (2) that the French warrant for the apprehension of an accused person need not be signed by a magistrate; and (3) that one condemned par contumace in France continues to be an accused
person, and liable to be given up to the French government.-In re Coppin, Law Rep.
2 Ch. 47. FALSE PRETENCES.
A conviction for obtaining a chattel by false pretences is good, though the chattel is not in existence when the pretence is made, if its subsequent delivery is directly connected with the false pretence; and whether there is such direct connection is for the jury.--The Queen
V. Mortin, Law Rep. 1 C. C. 56.
1. Trade fixtures affixed to freehold premises, after a mortgage, by the nortgagor and his partner, occupying the premises for the purposes of their trade, pass to the mortgagee.Cullwick v. Swindell, Law Rep. 3 Eq. 249.
2. A testator, who was tenant for life of an estate, on which he had built and furnished a house (an old one having fallen into decay), bequeathed all the tapestry, marbles, statues, pictures with their frames and glasses, which should be in or about the house at his death, and of which he had power to dispose, to A., the remainder-man, for life, and then to B. after A.'s death. Held, that tapestry, pictures in panels, frames filled with satin and attached to the walls, and also statues, vases, and stone garden seats, essentially part of the architectural design, however fastened, were fixtures, and could not be removed; but that glasses and pictures, not in panels, passed under the will to
B. Held, further, that articles bought by the testatur, but fixed by A. after his death, passed under the will.—D'Eyncourt v. Gregory, Law
Rep. 3 Eq. 382. FOREIGN COURT.
The court of a foreign country, in which a person died domiciled, decided that A. was entitled to inherit the deceased's personal property. Held, that the probate court was bound by this judgment as to the status of A., and therefore had rightly admitted him to contest a will, set up as made by the deceased, disposing of property in England.-Dogiioni v. Cris
pin, Law Rep. 1 II. L. 301. FORFEITURE.
A. was entitled to a life interest in an annui. ty, subject to forfeiture if he should compound with his creditors, or charge, assign, or by way of anticipation dispose of, the annuity, or till anything should happen whereby it should vest or become liable to be vested in another. A., being indebted to B., in pursuance of an agreement with B., gave a written order to the trus. tees to pay the annuity, as it should become due, to B., who was to apply it partly in payment of interest and of reduction of the debt. Held, that, though an agreement with B. that the order should be revokable'was alleged, yet that A.'s interest was forfeited.- Oldham v. Oldham, Law Rep. 3 Eq. 404.
See LEASE, 4. FRAUDS, STATUTE OF.
A written contract was made for the sale of goods, to be delivered within a specificd time. Before the time for delivery, the parties agreed orally to extend the time for delivery. Held, that the oral agreement was not good, under § 17 of the Statute of Frands, and could not operate as a rescission of the written contract, which mnight therefore be enforced.-Noble v.
Ward, Law Rep. 2 Ex. 135. FREIGHT.
By a charter party it was agreed that a ship should sail to B., load a cargo of cotton, proceed with it to L., and “deliver the same on being paid freight at "178. per ton of 50 cubic feet delivered, the freight to be paid on delivery." The ship took at B. a cargo of cotton, which, previously to being loaded, had, as usual, been subjected to high pressure. On being taken from the ship, the cotton naturally expanded considerably; and the shipper brought an action, claiming freight on the mea. surement of the cotton when delivered. At the trial, a custom of the B. trade was proved to pay freight for cotton under such a charter party on its measurement when shipped. There
DIGEST OF English Law Reports.
was no evidence that the plaintiff had actual notice of the custom. Held (1), that, apart from the custom, the freight was payable on the measurement when shipped; (2) that evi. dence of the custom was properly admitted.
Buckle v. Knoop, Law Rep. 2 Ex. 125. GENERAL AVERAGE.—See Ship, 5. GUARANTY.
A.'s son being indebted to B. & Co, for coals supplied on credit, and B. & Co. refusing to continue the supply unless guaranteed, A. gave this guaranty: “ In consideration of the credit given by B. & Co. to iny son, for coal supplied to him, I hereby hold myself responsible as a guarantee to them for the sum of 1001.; and in default of his payment of any accounts due, I bind myself by this note to pay to B. & Co. whatever
be owing, to an amount not exceeding the sum of 100l.” Held, a continuing guaranty (Mattin, B., dubitante). — Wood v.
Priestner, Law Rep. 2 Ex. 66, GUARDIAN.-See ADMINISTRATION, 3. HUSBAND AND WIFE.
1. If real estate is limited to the use of a woman, independently of her husband, and to be disposed of by deed or will as she may think fit, her husband cannot be tenant by the curtesy.-Moore v. Webster, Law Rep. 3 Eq. 267.
2. A married woman, sued as a feme sole, pleaded coverture; but, no evidence being given in support of the plea, a verdict was found against her, and she was arrested on a
Held, that she was not entitled to her discharge.--Poole v. Canning, Law Rep. 2 C. P. 241.
See ADMINISTRATION, 3; LIMITATIONS, STATUTE
See COPYRIGHT; Covenant, 1, 2; Light, 1, 2; New TRIAL, 3 ; NUISANCE, 2; Patent, 5; RAILWAY, 2; SPECIFIC PERFORMANCE, 3; WATERCOURSE,
1. To ascertain whether there is a constructive total loss of goods lying at a place of distress, the jury must determine whether to carry them on will cost more than their value; and, in determining this, they must not consider the whole cost of transit, but only the excess of cost over what wonld have been incurred had no peril intervened.-Farnworth v. Hyde, Law Rep. 2 C. P. 204,
2. A shareholder in the Atlantic Telegraph Company was insured by a policy, written on the common form of a marine policy, and containing the following words: “At and from I. to N., the risk to commence at the lading of the cable on board, and to continue until it be laid in one continuous length between I. and N., and until one hundred words shall have been transmitted each way. The ship, &c., yoods &c., shall be valued at 2001, on the Atlantic cable, value, say on twenty shares, at 101. per share;” and also, “it is agreed that this policy in addition to all perils and casualties herein specified, shall cover every risk and contingency attending the conveyance and successful laying of the cable.” The attempt to lay the cable failed, through its breaking while being hauled in to remedy a defect in insulation; but half the cable was saved. Held, that the policy was not on the cable, but on the insured's interest in the adventure; that such interest was insurable; that the loss was by perils insured against; and that the loss was total. - Wilson v. Jones, Law Rep. 2 Ex. 139.
3. In a policy issued by a mutual insurance society, the amount of premium paid and the rate per cent. were left blank; but in place of the latter, “ 20 pounds per centum" were added in a separate line. The rules of the society contained nothing limiting the liability of the insurers, but provided that they should make good all losses according to the proportion of their premiums. In an action by the managers for a call against the holder of the policy, held, that whatever the words “ 20 pounds per cen
might mean, they did not limit the amount for which each member was liable to 20 per cent. on the sum insured by him (BYLES, J., dubitante).-Gray v. Gibson, Law Rep. 2 C. P. 120.
INCOME.-See Will, 13.
1. A railway company agreed to buy land, and had a clause to that effect inserted in their act; whereupon the landowner withdrew his opposition to the act. They afterwards applied for an act to enable them to abandon the branch which affected the land, and to repeal that clause. Held, that though the court had power to restrain an application to parliament, it was difficult to conceive a case in which it would do so, and that it would not in the present case.— Steele v. North Metropolitan Railway Co., Law Rep. 2 Ch. 237.
2. Where, during the litigation, the defendant had continued the building complained of, a mandatory injunction was granted on motion. --Beadel v. Perry, Law Rep. 3 Eq. 435.
INTEREST.-- See ExeoUTOR, 2; LIMITATIONS, STATUTE
OF, 3; MORTGAGE, 3; PARTNERSIIIP.
Digest OF ENGLISH LAW REPORTS.
In a proceeding to recover possession of a house belonging to a parish under 59 Geo. III. C."12, § 24, the jurisdiction of justices is not ousted by a claim of title, as the question of title is necessarily involved in the matter to be determined. — Ex parte Vaughan, Law Rep. 2 Q. B. 114.
See EQUITY; INJUNCTION, 1; SERVICE OF ProCESS, JURY.
It is no ground for error, either in fact or law, that the whole of the special jurors struck were not summoned, or that the special jury panel was called over, a tales prayed, and two talesmen sworn on the jury before 10 A,M., the time for which the special jury was summoned. - Irwin v. Grey, Law Rep. 2 H. L. 20.
LACHES.-See Light, 2. LANDLORD AND TENANT, ----See LEASE. LARCENY,
An indictment under 24 & 25 Vic. c. 96, § 27, for stealing a valuable security, must particularize the kind of security, and any material vyriance is fatal.—The Queen v. Lowrie, Law
Rep. 1 C. C. 61, LEASE.
1. In an action by a lessee, on a covenant in the lease to put in repair, against the assignee of the reversion, the defendant pleaded, that, before the assignment, a reasonable time had elapsed, and all things had happened to entitle the lessee to have the covenant performed by the original lessor. Held, a good plea, as there could only be one breach of the covenant to put in repair, and that had occurred before the assignment.-Coward v. Gregory, Law Rep. 2 C. P. 153,
2. If a lease contain a covenant by a lessor to put in repair, and a covenant by a lessee to keep in repair, the performance of the former is a condition precedent to requiring the performance of the latter.-Ib.
3. In an action by a lessee on a covenant to keep in repair, the defendant pleaded that the plaintiff had recovered damages against him for a breach of the same covenant, and that the want of repair complained of was only a continuance of the want of repair for which damages were recovered, and further, that the plaintiff did not expend the damages recovered in putting the premises in repair, and that, had he done so, the want of repair nuw complained of would not have occurred. Held, that the plea was bad, as this was a continuing breach, and the former recovery was no bar, even on equitable grounds, but only went in mitigation of damages.-16.
4. A lease, with a clause for re-entry, contained a general covenant by the lessee to keep the premises in repair, and a further covenant that he would, within three months after notice given, repair all defects specified in the notice. The premises being out of repair, the landlord gave the lessee notice to repair, “in accordance with the covenants" of the lease. Before the three months were ended, the landlord brought ejectment. Neld, that the notice was not a waiver of the forfeiture incurred by the breach of the general covenant tu repair.–Few v. Perkins, Law Rep. 2 Ex. 92.
5. A. let a farm for a term of fourteen years, by a lease containing covenants by the lessees not to assign without license, with a proviso for re-entry, and by the lessor, at the end of the tenancy, to pay for certain things at a valuation. At the end of the term, the lessees continued tenants from year to year on the original terms. They afterwards, by deed, assigned their interest, with their right to be paid for the things at a valuation, to B. B. entered, but was never recognized by A. as tenant. A. gave the lessees notice to quit, and B. gave A. a similar notice. Held, that B. could not sue A. for the amount of the things at a valuation ; on the ground (per MELLER and Lush, JJ.), that, no new tenancy having been created between B. and A., the mere assignment of the parol tenancy did not pass a right of action on the special stipulation; on the ground (per SHEE, J.), that, as the lessees could not assign without license, they could not transfer any interest in the premises to B.-Elliott v. Johnson, Law Rep. 2 Q. B. 120.
6. By an act passed in 1720), certain estates were limited to successive Earls of Shrewsbury, with power for each succeeding tenant in tail to grant leases of certain length. By another act, in 1803, parts of the estates were conveyed to trustees, freed from all the uses, powers, &c. created by the act of 1720 (except leases there. tofore granted), on trust to sell, and invest the purchase money in other lands. The lands thus conveyed were not sold; but, in 1838, the then Earl granted a lease of them. Held, that this lease did not bind a tenant in tail in remainder.- Earl of Shrewsbury v. Keighlley, Law Rep. 2 C. P. 130.
7. The owner of a long term agreed to let land for three years, and, when called on by the tenant, to grant him a lease for three years, seven years, or the whole term. The tenant held over the three years, and became bank. rupt. His assignee sold bis interest in the leasehold. Held, that the option to take a lease was not gone at the end of the three