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Eng. Rep. 1 Lawton v. PRICE-BELFAST BANKISG Co. v. STANLEY. [Irish Rep. terious. In rags produced from vegetable sub- the subpoena was not served on the defendant tance the properties of the fibrous matter might until July 8, several dnys after the time fised by be very different; in some, as in linen and cot- the orders. The subpcan also stated that the ton rags, the fibre being elaborately treated in defendant was to be cross-examined on accounts the course of manufacture; in others as in the as well as on the whole of the evidence. This coarse sacking or bagging, especially of hemp or was cootrary to the practice : (Re Lord's Estute, jute, the fibre retaining much more of its origi

L. Rep

Eq. 605.) Although the defendant nal character,

had gone to the examiner's office, his attendance I am therefore of opinion that it is not suffi- was voluntary, he had not been sword, and could cient for the plaintiff to show that the defendant not be considered to have attended in form, or to uses in the manufacture of paper a raw mate- have waived bis right to object to the irregularrial different from that formerly employed; be ities in the subpoena. must show, further, a greater amount of pollu

The Vice-CHANCELLOR. —It is shown by the tion, and injury arising from the use of this new

examiner's certificate that the defendant attenmaterial; and the onus, of conrse, of showing

ded at the examiner's office. It is stated that he this lies on the plaintiff. His Lordship then discussed the evidence and came to the conclusion

ret'used to be examined on account of the insuffi

It

ciency of the sum offered for his expenses. that the plaintiff had not made out his case. The bill must therefore be dismissed with costs, but

was certainly open both to him and the plaintiff there would be no costs of appeal

to have suggested that the taxing master should

certify wbat was the proper sun to be paid, but Rolt, L. J., expressed his formal coucurrence. that was not done. There has been an attempt

to show that his refusal to be sworn arose out of

certain irregularities in the subpoena, and not LAWTON V. PRICE.

merely on account of the insufficient offer for Praclice- Altendance before examiner- Expenses-Refusal to

expenses That, however, does not appear to be sworn,

be the case, and, even if it were, the fact of the The defendant attended before the examiner for cross-ex- defendant having attended has put an end to

amination on his affidavit made in the suit, but refused to be sworn until a sufficient sum for his expenses had

any question as to irregularity, and it cannot been offered by the plaintiff.

now be raised There must be an order that tbe The Court, on motion by the plaintiff, ordered him to attend

defendant attend at bis own expense, and pay again at his own expense.

the costs af this application. The plaintiff must [V. C. S. Nov. 14, 1867--17 L. T., N. S., 163,)

undertake to pay the amount certified by the This was a motion that a defendant should be taxing inaster for the former attendance. ordered to attend before the examiner at bis cwn expenses, to be cross-examined on an affidavit made in the above cause. The facts were:

IRISH REPORTS, In June, 1867, the defendant made the affidavit in question for the purpose of verifying bis

QUEEN'S BENCH. accounts as to the matters in dispute in the suit. Subsequently be was subpoenaed and attended at

BELFAST BANKING COMPANY Y. STANLEY. the office of the examiner for cross-examination, on the affidavit, but wben there, refused to be Demurrer-Surely as miker of joint promissory note-Reason

able time-Equitable plea. sworn, in consequence, as was alleged, of a disagreement as to the sum to be paid for his

To an action on a joint promissory note of three persons expenses.

payable one month after demand, one of the makers

pleaded on equitable grounds that he made the note as The plaintiff now moved as above, and further surety for another of the makers without consideration, tbat the defendant might be ordered to bring

of which the holders had notice, and that the holders did with him and produce certain letters, and copies

not make any demand from any of the joint inakers of

the note within a reasonable time, bat delayed for an of letters, and also bis letter-book or books, and unreasonable time, to wit, ten years. all memoranda and accounts referred to in the Held, a bad plea. subpoena obtained in the suit.

(Q. B. (Ir.) April 25, 30—15 W. R. 989.) On the part of the defendant, it was objected This was an action on a promissory note. Tbe that the subpoena was irregular in form, and that

plaintiffs complained that the defendant, on the he had not been properly served with it.

5th July, 1855, by his promissory note vow due, Bacon, QC, and Dumer que appeared in sup- promised to pay the Belfast Banking Company port of the motion.

on order at their office in Armagh £200 one Dickinson, Q C., and Norris, for the defendant,

month after demand, and the plaintiffs Åverred contended that he was right in objecting to be

that afterwards, to wit, on 1st March, 1866. paysword until an adequate amount had been offered

ment of said note was duly demanded of the for his expeneses. He was perfectly willing and

defendant, and that more than one month had ready to be cross-examined as soon as a proper

eiapsed since the making of the said demand, sum had been arranged. It did not devolve on

but the defendant did not pay the said pote, the plaintiff to fix the amount, but was a matter

although the same was duly presented for paywhich ought to have been referred by him to the

ment at the office of the defendants in Armagh taxing master. Independently of the question

on the 19th November, 1866. of expenses there were irregularities in the sub- The defendant by his fourth plea said, upon jana which justified the defendant in the course equitable grounds, that he made the said note die had inken. By the orders of the court notice with one Jervais Winder and one Benjamin to cross-exinine must be given within fourteen Peebles Davidson, and as the joint and several duys. Now the affidavit was filed June 18, and note of said three persons, he, the said Winder, Belfast BankING Co. v. STANLEY. Mahony v. RAILROAD-Digest of English Law REPORTS.

Irish Rep.)

[Irish Rep.

and defendant making and signing same for the accommodation of said Benjamin P. Davidson, and as his sureties only, to secure a debt due to tbe plaintiffs by the said Davidson, and not otherwise, and that when the said note was made and delivered by defendant to plaintiffs it was agreed between plaintiffs and the several makers thereof that defendapt and Winder should be liable to plaintiffs as sureties for said Davidson only, and except as aforesaid there never was any value or consideration for the making of the said note by the defendant; and the defendant said that although from the time of the making of the said note bitherto the plaintiffs were always the holders of the snid vote, the said plaintiffs did not within a reasonable time after the making of said nole, after the making and delivering thereof to them as aforesaid, make any demand for the payment of the same according to the tenor thereof, either from the'said Davidson, the principal debtor, or from the said J. Winder, or this defendant; but on the contrary, they the plaintiffz delayed to make any such demand for an unreasonable time, to wit, for the period of ten years from the making of said note and the delivery thereof to the plaintiffs.

To this defence the plaintiffs demurred, because it showed no obligation on the part of the plaintiffs to demand the payment of the said, note within any particular time from any of the parties in snid Jefence mentioned, and because the forbearance of the plaintiffs to demand the payment of the said note within a reasonable time does not either at law or equity discharge the defendant from his liability to pay the said note.

George Foley, (with bim McDonnell, Q. C) in support of the demurrer. The plea only shows forbe i ranice No agreement to proceed within a reasonable time is alleged, and there is no obligation by law 'to proceed within any given time. Nero laches on the part of the creditor would not discharge a surety He cited Madden v. McMullen, 13 Ir. C. L. 503; Mors v. Hall, 5 Ex. 47; Frizer v. Jordon, 8 E. & B. 305; Gorng v. Edmonds, 6 Bing. 91; Wright v. Simpson, 6 Ves. 714, 733 ; Tucker v. Laing, 2 K. & Johns. 749.

Monroe, (with him Ilarrison, QC and Falkiner, QC.) iu support of the plea This is rightly pleaded as an equitable defence : Pooley v. llarradine, 5 W. R. 405; 7 E. & B 431; 3 Jur. N.S. 488; Davies v. Stainbank, 6 De G. M. & G. 679. The defendant does not lose his rights as a surety because he is prima facie a principal. The tenor of the note may be departed from in order to recognize and give effect to those rights. Greenough v. McClelland, 30 L. J. Q. B. 15; 8 W. R. 612; Lawrence v. Walmsley, 31 L.J. C.P. 143; 10 W. R. 344. As against the person secondarily liable the holder must show that he bas used due diligence in performing all the duties imposed upon him as against the person primarily liable: see Mutual Loan Fund Associalion v. Sudlow, 5 C. B. N. S. 451, where the surety was held discharged (though primarily liable by the tenor of the note) because the creditor had wasted the assets of the principal debtor. This, being the case of a negotiable instrument, is distinguishable from the cases cited on the other side. The ordinary case of a person secondarily liable on a negotiable insiru

ment is that of drawer or indorser, and once it is shown that the defendant is a person secondarily liable on this note, ho is then in the same position as if he appeared as an iodorser, 1qdorsers are entitled to notice of dishonour, and to have proceedings taken against the principal within a reasonable time, else there is a presumption that the bill is paid, in favour of the person secondarily liable. See Story on Bills, 409, section 322.

It would be inequitable to make any distinction between a surety in the position of the defendant and an indorser. The Statute of Limitations would not begin to run till demand was made; and in such a case it has been held that demand must be made within a reasonable time. Codman v. Rogers, 10 Pick 112.

McDonnell, Q.C., in reply.

O'BRIEN, J.-The defence here does not attempt to set up any special agreement between the parties, which would impose upon the plaintiff's the duty of making the demand for payment within any certain time. It does not aver that there was any application made to the plaintifî's to proceed pon the note. It does not even aver that the delay was not without the full concurrence of the defendant, or that any damage accrued to the defendant by reason of such delay; it is quite consistent with the plea that the defendant is as well able to pay the vote as ever. Now, although all the parties are on the face of the note equally liable at law, still if the defendant signed the note for the accommodation of a third person without consideration, and that the plaintiffs had notice of this, he will be considered as a surety, and entitled to plead on equitable grounds any circumstances which would entitle a surety to be discharged in a court of equity. Here it is relied upon as a discharge tbit an areasonable time elapsed before demand was made by the plaintiffs, but it is not alleged that they were ever called upon to present the pote by the defendant or any one else. And in Mudden v. McMullen (supra) and Wriyht v. Simp. son (supra) it is laid down that mere non-fensauce of the creditor will not discharge the surety. if the creditor has not been required to take proceedings to recover the debt from the principal. It was arzued on the part of the defendant that this is an analogous case to the liability of 10 indorser of a bill or note, which ceases after , rea-onable rinne bus elapsed without any proceedings by the bolder against the parties primarily liable. But tbere the respective liabilities of tije parties nppear in the face of the note; th; position of the indorsee as & surety is clear and unmistakable; but no case has decided that mere lapse of a time can discharge a surety who sets up his rights of suretyship only by aitering the prima facie liability of the parties as they appear on the face of the note. The distinction between securities payable at a certain date, viz., ordinary bills, cheques, &c., which are intended to be used immediately, and such instruments as this promissory note, payable on demand, and intended to be a continuing security, is clarly pointed out in Brook v. Hilchell, 9 M. & W, 18. I am therefore of opinion that the demarrer should be allowed.

GEORGE, J , concurred.

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U. S. Rep.1

UNITED STATES REPORTS.

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DISTRICT COURT, PHILADELPINA,

MAHONEY v. RAILROAD, The negligence of a person having a child in charge, but without authority of its parents, is not a defence to an action by the child. New trial. Opinion by Sharswood, P. J.

We think there was evidence of negligeace in the servants of the defendants sufficient to justify the verlict. It is not necessary here to say whether a mere scintilla is enough. On that point the finding of the jury is approved by the judge before whom the trial was bad.

The question then reserved is simply tbis, ahsuming negligence on the part of th:defendents, whether the vegligence of a person who, without express autbority from the parents, but ns an act of kindness, takes cbarge of an infant cbild, contributing to the injury, is any defence in an action by the child ? in this instince the unfor. tunate woman who laid hold of the child to carry it across the track of the railroad, and who lost her own life in the attempt, was the aunt of the plaintiff. The plaintiff did not reside with the aunt, and no evidence was offered to show any authority in her. If, however this was an action hy the father to recover damages for the death of the child, a very different question would be presented It would most probably be held that it wns negligence to suffer such an infant to be on the streets without a caretaker. and he could not hold the defendants responsible, whether he hal appointed a care taker who was negligent or left the child to roam at large without one. To a child of plaintiff's years no contributory negligence can be impoted. Neither is the plaintiff precluded from recovery against one joint tort fensor, by showing that others have borne a share in it. All tort: by several persons are joint or sereral at the election of the injured party, but one satisfaction can be recovered, and there is no contribution among tort fensors. Hence springs the right of a plaintiff, who has recovered several verilicis against different defendants, 10 elect de melioribus damnis. There is nothing in the case to show that plaintiff could not have included her aunt as defendant with the company or their officers, or maintained a separate action against her. The English case cited ard relied on by the counsel of defendants, Waile v. North-Eastern Railway Company, 7 W. R. 311, was the case of the negligence of the person in charge of a child, who had taken and paid for his passage with efendants, 4 railroad company, and while waiting in the depôt to get on board, the child was injured by the approach of another train, of which the defendunts bad given no notice. The defendants might well have said we would not have receivel the child as a passenger without a cure luker, or if we had we would bave put him in charge of a servant, or in a place where no harm could come to him till the train was ready to start. The decisions of the New York and Massachuseris courts are certainly entitled to very high respect, but they are not authority binding on us, and the precise point was not made or met

1. A will was written on one page of a sheet, and the testator's signature was at the end of that page, with the words, • Witness, W. Hatton;" and the names of three persons were written, under a memorandum not testamentary, at the top of the second page. Held, that. from the position of the three names, and the circumstances of the case, the names were not placed there for the purpose of attesting the will, and probate was refused. -- Goods of Wilson, Law Rep. 1 P. & D. 269.

2. A. made a will in 1837, appointing B. an executor and residuary legatee. In 1861 she delivered the will and her deeds to B. for safe custody, first sending for C., and asking him to witness the delivery. Before the delivery, she wrote her name at the foot of the will, and C. and B. theirs, the latter with the prefix, "exe. cutor.” A. gave no reason for signing, and said nothing to B. and C. about being witnesses to her will. He'd, that this was not a re-execution of the will, and that the will was entitled to probate by virtue of the original execution. -Dunn v. Dunn, Law Rep. 1 P. & D. 277.

3. By letters-patent, the barony of B. was conferred on E. for life, remainder to R., E.'s second son, in tail male, remainder to E.'s younger sons in tail male successively. The patent contained a shifting clause, that, in cer tain events, the barony should go over. Subsequently, a testator gave her freeholds, leaseholds and chattels to trustees on trust, to vey, settle and assure" the same "in a course of entail to correspond, as nearly as might be," with the barony, in such manner and form as the trustees should consider proper, or their counsel should advise. Held, that the freeholds ought not to be settled in strict settlement, but must follow the limitations of the barony, so that R. would be tenant, not for life, but in tail male; that the leaseholds and chattels must go with the real estate as far as practicable; and

con

Digest OF ENGLISH LAW REPORTS.

that the shifting clause in the settlement must follow that in the letters-patent.

Viscount Holmosdlule v. West, Law Rep. 3 Eq. 474.

4. Testator, after giving all his property on trust for the maintenance of his sons (naming them) and his daughter H., till H., who was the youngest child, should attain twenty-one, devised particular lands to each of his sons in tail male. He then directed, that, if any of his sons should die during the minority of H., as aforesaid; or, if any of them should die without having such issue, as aforesaid, and either before or after their or his share should be divisible according to the will, the share or shares of him or them so dying should go “to my next surviving son, according to the seniority of age," in like manner as the original shares. J., a son, died during H.'s life, leaving children. Held, that J.'s estate tail was divested by his death, and went over; held, further, that as the testator had arranged his sons' names in the descending order of birth, " next surviving” meant "next younger" son.- Eastwood v. Lockwood, Law Rep. 3 Eq. 487.

5. Gift of an annuity, to be equally divided between A. and B. for and during their joint lives, or the life of the survivor or longer liver of them respectively. Held, that A. and B. took as tenants in common, and that the share of one dying went to his representative. — Bryan v. Trigg, Law Rep. 3 Eq. 433.

6. Testator gave property on trust to accumulate till his eldest daughter should attain twenty-one, and then a third to be paid to her; the other two-thirds to continue accumulating till his second daughter should attain twentyone, and then a third to her; the other third to be paid to his youngest daughter on her attaining twenty-one. If one or more of his daughters should die under twenty-one without issue, then the share or shares of such one or more so dying, to be paid to his surviving daughters or daughter. He directed his trustees, when each daughter should attain twentyone, or marry, to convey to her one-third of the property for life, remainder to her children in fee. In default of issue of any one or more of his daughters, he directed the share or shares of such one or more dying without issue to be limited so as to go to her surviving sisters and their issue, in like manner as the original thirds were directed to be conveyed to each of them, And if all the daughters should die without issue in their mother's life ne, he gave the property to his wife for life, remainder over. He also directed that, in the conveyances to bis daughters, all necessary provisions should be

inserted to protect the entail and succession designed to be effected on his daughters, and the issue of them. Held, that the children of a daughter first dying should participate in the share of a daughter afterwards dying under twenty-one without issue, and that " surviving" must be read “other.”Hurry v. Morgan, Law Rep. 3 Eq. 152.

7. One who had bought a leasehold interest which was assigned to bim, and afterwards the reversion in fee, which was conveyed to a trustee for himself, subject to the lease, gave to his wife by will “the whole of my personal property, estate and effects, of every and whatsoever kind they may be.” Held, that the term passed under the will as a term in gross, and not attendant on the inheritance, but that the reversion did not pass.—Belaney v. Belaney Law Rep. 2 Ch, 138.

8. Testatrix directed the interest of stock to be paid to D. for life, and at his death to be transferred to his personal representatives. Held, that D. took an absolute interest.- Alger v. Parrott, Law Rep. 3 Eq. 328.

9. A., by a will purporting to dispose of "all his worldly estate and effects in manner following," directed his debts paid out of his personal estate, and that his executors should sell all his stocks and such other part of his personal estate as was in its nature saleable, and collect and get in all money due and owing to him, and all other his estate, and convert the samo into money, and hold the proceeds on trust to pay debts, and invest the residue thereof on certain trusts. After making his will, A. bought a house. Held, on a bill for specific performance by A.'s executrix against a purchaser of the house, that she had power under the will to sell the house, and specific performance was decreed. --Hamilton v. Buckmaster, Law Rep. 3 Eq. 323.

10. The presumption that a will which cannot be found was destroyed by the testator with the intention of revoking it, and not with the intention of setting up an earlier will, can be rebutted only by clear and satisfactory eri. dence.-Eckersley v. Platt, Law Rep. 1 P. & D. 281.

11. A., otvning with others rights of pasture over certain lands, by will, before the Wills Act, devised the estate in respect of which these rights of his were held. Afterwards A., joining with his co-owners of these rights, and with the owners of the lands over which they extended, granted the rights and lands to trustees on trust to allot and convey the lands among the grantors, and to make roads, &c.

Digest OF ENGLISH LAW REPORTS.

The trustees reconveyed to A. a portion of the lands, in lieu of his rights, by a deed to which A. was party. A. died before the deed was executed. Held, that the conveyance to the trustees revoked the devise.- Grant v. Bridger, Law Rep. 3 liq. 347.

12. A testator gave his estates to trustees, to stand possessed of the real estate for the use of his nephew, for life, with remainder to the first and other sons of the nephew in tail, and to stand possessed of the personal estate, on the same trusts as his real estate, “or as near thereto as the rules of law and equity will permit,” provided that the personal estate should not vest absolutely in any tenant in tail, unless such person should attain twenty-one. After the testator's death, the nephew died, leaving a son. Held (Lord St. Leonards dissentiente), that the gift of personalty was not void for remoteness as a gift to such tenant in tail as should attain twenty-one, but was a gift to the first tenant in tail of the real estate by purchase; and that, therefore, the son took an absolute interest in the personalty, liable to be divested on his dying before twenty-one. Christie v. Gosling, Law Rep. 1 H. L. 279.

13. Legacy to trustees, in trust so long as A. should not become bankrupt, to pay him the interest till he should attain twenty-five, so that he might not deprive himself thereof by anticipation, in which events A. should lose all benefit of the provision, “my object being for A.'s personal wants till any of such events should bappen, and then for the good of his family.” On the happening of any such event, the fund to be in trust for A.'s children; but if A. should then have no children, the fund was to fall into the residue, subject to a power in the trustees to pay A. any sum they may deem fit in their discretion. The fund was to be paid tu A, at twenty-five; if he died under twentyfive, leaving children, the fund was to be in trust for them. There was also a power of advancement for A.'s benefit, died under twenty-one, unmarried. Held, that A, had a vested interest in the money, subject to be divested in the event of bankruptcy, or alienation, or death without children under twentyfive, and that, as none of these had happened, his estate was absolute.- Pearson v. Dolman, Law Rep. 3 Eq. 315.

14. A testator devised certain land on trust for his son, and then to be divided among such of his daughters as should be living at the son's death, and the children, grandchildren, and issue of such of his daughters as should then be dead; such children, grandchildren

and issue respectively to take equally among them the shares to which their parents would have been entitled had they been living. M., one of the daughters, died before the son, hay. ing had ten children; six of those had died in lier lifetime (five childless, and one leaving children who were alive at the son's death); one other of M.'s children died before the son, leaving a child who also died before the son; three of M.'s children survived the son. Held, that the gift to M.'s children was not substitutional, but original, and that it was not necessary that they should survive the period of distri. bution in order to take; held, further, that M.'s grandchildren took only the shares to which their parents would have been entitled if living, and not equally with the children. – In re Orton's Trust, Law Rep. 3 Eq. 377. See ADMINISTRATION; ELECTION; EXECUTOR;

FOREIGN COURT; PROBATE PRACTICE; RE

VOCATION OF WILL; VESTED INTEREST. WITNESS.

1. An action of ejectment was brought by A.'s son, claiming as A.'s heir, supposing that A. was dead. Another action of ejectment was afterwards brought by A. for the same premises. Held, that there was no privity of estate between A, and his son, and therefore that evidence of what had been said by a witness at the trial of the former action, who had since died, not being admissible against A., was not admissible for him.— Morgan v. Nicholl, Law Rep. 2 C. P. 117.

2. A company resolved that its seal should be affixed to documents only in the presence of two directors, who were to attest it by their signatures. A bill of sale was sealed with the seal of the company, and adjoining the seal were the words, “Seal of the said company affixed in the presence of A. B. and C. D.” Held (Byles, J., dubitante), that A. B. and C. D. were not attesting witnesses, within the meaning of 17 & 18 Vic. c. 36, § 1, and therefore their addresses need not be stated in the affidavit accompanying the bill of sale.--Dej'ell v. White, Law Rep. 2 C. P. 144. See Equity PLEADING AND PRACTICE, 2; WILL,

1, 2.

FOR THE MONTIIS OF MAY, JUNE AND JULY, 1867

ACCOUNT.-Ser. INTEREST, 1.
ADEMPTION.-See WILL, 5.
ADMINISTRATION.

1. Administration, with the will annexed, granted to one as creditor for funeral expenses, who had undertaken the funeral at the request of the residuary legatee named in the will.Newcombe v. Beloe, Law Rep. 1 P. & D. 314.

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