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DIGEST OF ENGLISH REPORTS

DIGEST.

DIGEST OF ENGLISH LAW REPORTS.

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COMMENCING JANUARY, 1866.

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ACCOMPLICE.-See WITNESS, 3.
ACCRUER.

1. By a marriage settlement, funds were settled on the wife for life; remainder to the chil. dren equally, “to be a vested interest at their ages of 21,” with a gift over to the husband in case all the children died under 21, and a reversion to the settler, if no child was born; but no clause of survivorship and accruer as to shares of children dying under 21. Of five children, four only attained 21; Held, that the whole fund vested in the four.—Colley's Trusts, Law Rep. 1 Eq. 496.

2. On a gift to testator's daughters, “ the share or shares of such daughters to be for their separate use," followed by a contingent gift to survivors, the separate use attaches to accrued

shares.- Jarman's Trusts, Law Rep. 1 Eq. 71. ADMINISTRATION.

1. The executor being out of the jurisdiction, administration with the will annexed was granted to the guardian of infant legatees, limited to their interest. — Goods of Hampson, Law Rep. 1 P. & D. 1.

2. If, after an order on summons for the administration of a testator's estate, the sole executor and trustee has become bankrupt, a receiver ought to be appointed, though the assignees are not before the court.-In re Johnson, Law Rep. 1 Ch. 325.

3. If the estate of a deceased consists of his share in a business which he was carrying on in partnership at the time of his death, and which the surviving partner continues to carry on, an administrator pendente lite will not be appointed against the wishes of such partner, unless a strong case is made, that he is dealing improperly with the business. Howell v. Wilts, Law Rep. 1 P. & D. 103.

4. The administrator being the only person beneficially interested in an intestate's estate. and there being no creditors, a bond was allowed to be given with sureties resident in Scotland Goods of Houston, Law Rep. 1 P. & 1. 85.

5. Justifying sureties will not be dispensed with, though a receiver of the estate has been appointed in chancery, if chancery may not continue to have the control of the estate, after

administration granted. Jackson v. Jackson, Law Rep. 1 P. & D. 12.

6. The court will not discharge original sureties to an administration bond, or allow other sureties to be substituted. Goods of Stock, Law Rep 1 P. & D. 76. See Conflict of Laws, 3 ; EQUITY PLEADING,

1; EXECUTOR; HUSBAND AND WIFE, 4. AIDING TO ESCAPE.

The 28 & 26 Vic. c. 126, sec. 37, which forbids the conveyance into a prisen' with intent to aid an escape, of any mask, dress, or other disguise, or of any letter, or of any other article or thing, includes a crowbar. The Queen v.

Payne, Law Rep. 1 C. C. 27. Alien.— See Copyright, 2. ALIMONY.

In making an order as to settled property under 22 & 23 Vic. c. 61, sec. 5, the divorce court will consider the conduct of the parties, as well as their pecuniary position.-Chetroynd

v. Chetwynd, Law Rep. 1 P. & D. 39. APPEAL.

Execution of a decree, that the plaintiffshould be let into possession of real estate, the defendant being about to appeal, and the plaintiff declining to give security to refund the rents in case of a reversal of the decree, was stayed ; the defendant giving security for past rents, the future rents to be paid into court, with liberty to the plaintiff to apply as to maintenance, and for costs of the appeal.— Barrs v. Fawkes, Law Rep. 1 Eq. 392.

See Equity PRACTICE, 3, 7.
APPRENTICE. — See MASTER AND SERVANT, 4.
APPROPRIATION OF PAYMENTS.-See Contract, I.
ARBITRATION.

A master, to whom an action on a building contract has been referred, under the Common Law Procedure Act, may send a surveyor in whom he can confide, to view and report on the work done; but the parties may offer independent evidence.-Gray v. Wilson, Law Rep. I C. P. 50.

See AWARD.
ASSAULT.-- See ISDICTMENT.
ASSIGNMENT. --See PLEADING, 1.
ATTORNEY.-See SOLICITOR.
AUCTIONEER.

See PrincipAL AND AGENT, 2; VENDOR AND

PURCHASER, 3. AWARD).

1. It is no objection to an award, that the arbitrator has not found each matter referred to him separately, unless from the submission

* See page 32 ante for explanation as to the above. We are largely indebled in the construciion of this Digest to the valuable American Quarterly The American Luw Review,

DIGEST OF ENGLISH REPORTS.

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it is clear that the parties intended he should go find.- Whitworth v. Hulse, Law Rep. 1 Ex. 251.

2. To an action again a railway company on an award, whereby the arbitrator found that the plaintiff had been damaged by reason of his messuage being injuriously affected “ by the erection of an embankment and by the narrowing of a road” by the company, to the amount of £30, the company pleaded that the messuage was not injuriously affected by the narrowing of the road; and that the sum awarded included money of uncertain amount, which was awarded as compensation for damage sustained by reason of the messuage being, as the arbitrator erroneously supposed, injuriously affected by the narrowing of the road, by reason whereof the award was void. lleld on demurrer a good plea.-Beckett v. Midland Railway Co., Law Rep. 1 C. P. 241.

See Specific PERFORMANCE, 3. BANKRUPTCY.

1. A colonist, who had taken the benefit of a colonial insolvent act, alleged that a judgment had been recovered against him in a colonial court, from which he had unsuccessfully appealed; that the assignee, now in England, had assets from which, if the judgment were reversed, a large surplus would return to him ; that an appeal from the judgment would probably be successful, but that the assignee, colluding with the judgment creditor, refused to appeal; and prayed that the assignee might be decreed to prosecute the appeal, or that the plaintiff might be enabled to do so in the assignee's name. Held, that there was no suffi. cient averment, that the plaintiff had failed to obtain justice in the colonial courts.-Smith v. Moffatt, Law Rep. 1 Eq. 397.

2. A person having a vested reversionary interest in o trust-fund of personal property in England became insolvent in Australia ; and, after the property fell into possession, but before it was paid over, the insolvent died. Held, that if his domicile was Australian, his assignees were entitled to the fund; but that, if it was English, the executor, who had proved in England, was entitled; and the assignees, to obtain it, must sue such executor.-In re Blithman, Law Rep. 2 Eq. 23.

3. An assignment by a trader of all his property as security for an advance of money, which he afterwards applies in payment of existing debts, is not an act of bankruptcy, unless fraudulent; and is not fra ulent unless the lender knew that the borrower's object was to defeat or delay his creditors.-- In re Colemere, Law Rep. 1 Ch. 128.

4. A colonial insolvent act provided, that if a creditor held any security on any part of the insolvent estate, the amount of such security should be deducted from his debt. Held, that this provision did not change the English rule, that a creditor, holding a security on the separate estate of a partner, may prove the whole of his debt against the joint estate, without giving up his security.--Rolfe v. Flower, Law Rep. 1 P. C. 27.

5. It is no good equitable plea to an action, that the defendant has been adjudicated bankrupt, and that the plaintiff has proved his debt in bankruptcy:- Spencer v. Denimelt, Law Rep. I C. P. 123.

6. The word creditor,” in the Bankruptcy Act, 1861, means any one who could prove against the debtor's estate. - Wood v. De Mattos, Law Rep. 1 Ex. 91.

7. A protection order, under 12 & 13 Vic. c. 106, sec. 112, is good only against creditors who were such at the time of the bankruptcy, and had a right to prove their debts under it.

- Phillips v. Bland, Law Rep. 1 C. P. 204 ; In re Poland, Law Rep. 1 Ch. 356.

8. A protection from arrest, under 7 & 8 Vicc. 70, sec, 6, does not protect the debtor's goods from seizure.-- Davis v. Percy, Law Rep. 1 C.P. 256.

9. A bill accepted for the accommodation of another may constitute a debt contracted without any reasonable expectation of being able to pay the same, and therefore may be ground for refusal of a bankrupt's discharge.

Ex parte Mee. Law Rep. 1 Ch. 337.

10. The court cannot both imprison a bank. rupt, and suspend his order of discharge, under 24 & 25 Vic. c. 134, sec. 159.-In re Marks , Law Rep. 1 Ch. 334.

11. On an appeal in bankruptcy, evidence not before the commissioner cannot be used without leave, except to show what took place before him. - In re Lascelles, Law Rep. 1 Ch. 127.

12. A petitioning creditor is personally liable under 12 & 13 Vic. c. 106, sec. 114, for the fees of the messenger in bankruptcy, down to the choice of assignees; and the trade-assignee is liable for those incurred subsequently, if he has personally interfered by directing the manage ment of property in the messenger's possession. - Stubbs v. Horn, Law Rep. 1 C. P. 56.

13. If an order, made by a commissioner of bankruptcy his own instance, is discharged on appeal, the costs of the appeal may be given to the appellant.-In re Leighton, Law Rep. 1 Ch. 331.

DIGEST OF ENGLISH REPORTS.

See PartnerSHIP, 2; PRODUCTION OF Docu-'

MENTS, 5. BIGAMY.

On a trial for bigamy, of a man who had lived apart from his first wife, for the seven years preceding the second marriage, the prosecution must prove that during that time he was aware of her existence.The Queen v. Curgerwen, Law

Rep. 1 C. C. 1. BILL OF LADING.

1. A bill of lading on goods, making them deliverable "to order or assigns," was indorsed by the consignor in blank, and deposited with a banker as security for an advance; and, on repayment of the advance, was re-indorsed and delivered back to the assignor. Held, that the consignor could sue the ship-owners for a breach, whether occurring before or after the re-indorsement of the bill of lading. --Short v. Simpson, Law Rep. 1 C. P. 248.

2. If a bill of lading provides that, as soon as the ship is ready to unload the whole or any part of the goods (sixty-five pipes of lemon juice), the consignee is bound to be ready to receive the same from the ship; and, in default, the master may enter the goods, and land or lighter them at the consignee's risk and expense; the contract is divisible, and, if, after part of the goods have been landed by the shipowner, but not before, the consignee offers to receive the remainder, the ship-owner is bound to deliver them to him, unless he has been prejudiced in the delivery of the remainder by the consignee not being ready to receive the whole. - Wilson v. London, Italian and Adriatic Steam Navigation Co., Law Rep. 1 C. P. 61.

See STOPPAGE IN TRANSITU. BILL OF SALE.

In an affidavit annexed to a bill of sale, a description of the grantor's residence and occupation, to the “ best of the belief” of the deponent, is sufficient.-Roe v. Bradshaw, Law Rep. 1 Ex.

106. BILLS AND NOTES.

1. “On demand, I promise to pay to the trustees of W. Chapel, or their treasurer for the time being, £100,” is a good promissory note, as the trustees alone are to be taken as payees, and the treasurer, as their agent, only to re. ceive payment.-- Holmes v. Jacques, Law Rep. 1 Q. B. 376.

2. If a bill of exchange is indorsed, payable “in need” at a bank, the bank are agents of the indorsers for payment only, and not agents for notice of dishonor generally.--Leeds Banking Company, Law Rep. 1 Eq. 1.

3. The rule allowing a day for each step in presentation and notice, applies only as between the parties to a bill, and not as between the agent of the holder and the holder, who re. sides at a distance.--Leeds Banking Company, Law Rep. 1 Eq. 1.

4. Presentation of a bill for payment to an indorser is not per se notice of dishonor by the acceptor.Leeds Banking Company, Law Rep. 1 Eq. 1.

5. Notice of dishonor, good according to French law, on a bill indorsed in England, pay. able in France, is good against the indorser, either because the law of the place where the contract is to be executed governs, or because, in general, notice, good according to the law of the place where the note is payable, is such as can reasonably be required, and therefore to be deemed a good notice according to the law of England. Hirschfeld v. Smith, Law Rep. 1 C. P. 340.

6. A bill of exchange, indorsed in blank to E. S., was by him indorsed in blank, and delivered to H., who changed the blank indorsements to E. S., so that it read thus: “ Pay to the order of E. S., at the rate of 25 fr. 75 c. per £1, value received, the sum of 6,437 fr. 50 c. ut retro," and wrote the same words on the face of the bill, purporting to make them part of the acceptor's contract. Held, such a material alteration as to avoid the bill in the plaintiff's hands.—Hirsdfeld v. Smith, Law Rep. 1 C. P. 340. See MORTGAGE, 1; PRINCIPAL AND Agent, 1,

2; VARIANCE. BLOCKADE.

It is not a municipal offence, by the law of nations, for a neutral to trade with a blockaded

port.--The Helen, Law Rep. 1 Adm. & Ecc. l. BOTTOMRY BOND.

Fraud practised by an owner on a mortgagee of a vessel, which might render the voyage illegal, does not invalidate a bottomry bond to a bona fide lender. - The Mary Ann, Law Rep.

1 Adm, & Ecc 13. BREACH OF PROMISE. --- See DAMAGES, 1. Carrjen,

1. A by-law of the defendants provided, that no passenger should enter a carriage without obtaining a ticket, which would be furnished on payment of the fare, and was to be shown and delivered up on demand. The plaintiff took tickets for himself and servants by a particular train, which was afterwards cut in two, the plaintiff being in the first train with all the tickets. The defendants refused to carry the servants in the second train, they being unable to show tickets. Held, that the defendants, having contracted with the plaintiff, and deli. vered to him the tickets, could not justify their refusal under the by-law.-Jennings v. Great N. Railway Co., Law Rep. 1 Q. B. 7.

Digest OF ENGLISH REPORTS.

2. A by-law of a railway company, that no person shall enter a carriage without having paid his fare, and obtained a ticket, which he is to show and deliver upon demand; and that any one, not so showing or producing his ticket, shall pay the fare from the place whence the train originally started, or forfeit not exceeding forty shillings, does not apply to a passenger who has not paid for and obtained a ticket, if he has no intention to defraud the company; and, if it did apply, it would be void under 8 Vic. c. 20, 88 103, 109.-Dearden v. Townsend, Law Rep. 1 Q. B. 10.

3. The defendants, a railway company, carried on the business of common carriers off their line. They charged an equal rate for carriage on their line between their termini. They also collected at one terminus, carried on their line, and delivered at a place distinct from, and at some distance beyond, their other terminus; and for this they charged an equal through rate. Held, that the carriage beyond the second ter. minus was not auxiliary to their business as railway carriers, and that the plaintiffs could not deduct the cost of this càrringe, and of collection at the first terminus, from the through rate, and have their goods carried between the termini for the difference.- Baxendale v. London & S.W. Railway Co., Law Rep. 1 Ex. 137.

4. If a railway company is forbidden by statute to charge different rates to different persons, and is in the habit of charging on any consignment of goods made to one person, though consisting of distinct parcels, a tonnage weight on the aggregate weight of the whole, the fact that, of goods so consigned to one per. son, and distinctly addressed to him, some arti. cles had also written conspicuously upon them the names of the persons to whom the consignee intended to deliver them, does not entitle the railway to charge separately for those on which such names were different. - Bazendale v. London & S. W. Railway Co., Law Rep. 1 Ex. 137.

6. The plaintiff having obtained a verdict against the defendants for the amount charged to and paid by him for the carriage of goods more than was charged to others, but the defendants continuing to make the same charges, and receive the same sums as before, the plaintiff brought a new writ, to recover for money paid during a later period; and applied, under

the Common Law Procedure Act, $$ 79, 82, for an injunction to restrain the defendants from charging him otherwise than equally with others. Held, that the court would not exercise their statutory power to grant an injunction.-Sutton v. S. E. Railway Co., Law Rep. 1 Ex. 22.

6. If A. has arranged orally with a railway company to carry cattle for him to E. on their line, and thence, by a connecting line to K.; and has, at the same time, signed, without noticing its contents, a consignment note by which the cattle are directed to be taken to E., parol evidence is admissible to show an agreement to carry on to K., as it only supplements the contract.Malpas v. London & S.W. Railway Co., Law Rep. I C. P. 336.

7. The plaintiff sept goods from M., by the defendants' railway, to his traveller at C., the delivery of which, was, by the defendant's negligence, delayed till the traveller left C., and the profits which would have been derived from a sale at C. were lost. Held, that such profits could not be recovered as damages.Great W. Railway Co. v. Redmayne, Law Rep. 1 C. P. 329.

8. If a carrier parts with goods to a consignee, after notice of stoppage in transitu, damages can be recovered in equity under Sir H. Cairns's Act.-Schotsmans v. Lancashire & Yorkshire Railway Co., Law Rep. 1 Eq. 349.

9. An entire contract, to carry partly by land and partly by sea, is divisible; and, as to the land journey, the carrier is within the protection of 11 Geo. IV., & 1 Wm. IV. c. 63.Le Conteur v. London & S. W. Railway Co.,

Law Rep. 1 Q. B. 54.
CASES OVERRULED AND DOUBTED.

Goods of Alexander, 29 L. J. (P M & A.) 93. Goods of Hallyburton, Law Rep. 1 P. & D. 90. Marc v. Underhill, 4 B. & S. 566. Wood v. De Mattos, Law Rep. 1 Ex. 91. Willis v. Pluskett, 4 Beav. 208. Sanders's Trusts, Law Rep. 1 Eq. 678. Wythe v. Henniker, 2 My.& K. 635. Lord Lilford v. Keck, Law Rep. 1 Eq. 347.

1 CATTLE.

Driving a van with horses, in which calves are being conveyed to market, is not within a statute which forbids any drover, or other per. son, from “ conducting or driving” any cattle through the streets on Sunday. – Triggs v.

Lester, Law Rep. 1 Q. B. 259. CHAMPERTY.

A. having executed a conveyance of real estate to B., which was liable to be set aside on equitable grounds, afterwards made a voluntary settlement of the same on himself for life, re.

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DIGEST OF English Reports.

mainder to his children as he should appoint; and, in default of appointment, to all his chil. dren who should attain twenty-one or marry, in equal shares. Held, that the voluntary settlement was not void on the ground of champerty; that A.'s infant children could maintain a bill, making A. and the trustees of the settlement defendants, to set aside the conveyance to

B.—Dickinson v. Burrell, Law Rep. 1 Eq. 337. Children, CUSTODY OF.-See INFANT, 2. Codicil.–See Will. Common CARRIER.–See CARRIER, COMPANY.

1. If a compauy is formed for working a patented machine, it is not ultra vires to purchase the patent.—Liefchild's Case, Law Rep. 1 Eq. 231.

2. The promoters of a railway company contracted with a land-owner, a peer of Parliament, to pay him £20,000 personally for his countenance and support in obtaining their act, such sum to be independent of the ordinary payment for land and other usual compensation. After the passing of the act, and formation of the company, the directors ratified the contract. A separate agreement stipulated for the quantity of land to be taken and the amount paid. Held, that the original contract and the ratification by the directors were ultra vires of the company, and could not be enforced against them.-- Earl of Shrewsbury v. N. Staffordshire Railway Co., Law Rep. 1 Eq. 593.

3. The deed of settlement of a bank declared that no one should be a transferrer of a share, unless approved by the directors. Held, that the directors must use this power reasonably, and would be controlled in equity.--Robinson v. Chartered Bank, Law Rep. 1 Eq. 32.

4. The power of making contracts in writing, signed by their agents, conferred by 19 & 20 Vic. c. 47, 9 41, on companies registered thereunder, is a “right or privilege acquired under” that act, and so is not affected by its repeal by the 25 & 26 Vic. c. 89, which saves such rights or privileges.--Prince v. Prince, Law Rep. 1 Eq. 490.

See PRINCIPAL AND AGENT, 4, CONFIDENTIAL RELATION.

1. It is a principle of equity, that one standing in a confidential relation toward others cannot hold substantial benefits which they may have conferred on him, unless they had competent and independent advice in conferring them; and, in cases to which this principle applies, the age and capacity of the party conferring the benefit are of little importance.-Rhodes v. Bate, Law Rep. 1 Ch. 252.

2. A confidential relation once established will be presumed to continue, in the absence of evidence to the contrary.--Rhodes v. Bate, Law Rep. 1 Ch. 252.

3. A., a nephew of a former trustee of B., being sent by his uncle to advise B., who was twenty-three years old and of extravagant habits, on the settlement of his debts, and to advance him money for that purpose, offered to give him £7,000 for his estate, under wbich there were coal mines. Pending the negotiations, in which a separate solicitor was employed for B., A. obtained from C., a mining engineer, a valuation of the minerals under the estate at £10,000, which he did not communicate to B.; nor did he suggest to B, to consult a mineral surveyor. B! accepted A.'s offer, and died before conveyance. Held, in a bill by B.'s administrator that A.'s purchase could not be sustained.-- Tnte v. Williamson, Law Rep.

1 Eq 528. CONFLICT OF Laws.

1. An English testator devised and bequeathed real and personal estate to A., for life, with remainder, as to the personalty to her children; and, as to the realty, to her first and other sons, lawfully begotten. A., having married in 1830 in England, obtained in Scotland a decree of divorce a vinculo on the ground of her husband's adultery; he having been induced wih her connivance to go to Scotland, to bring her. self within the jurisdiction of the Scotch courts. A, afterwards married in Scotland, and had two daughters and a son, all born in Scotland during her first husband's lifetime. Held, on petition, that these children were not entitled to either real or personal property under the will.-- Wilson's Trusts, Law Rep. 1 Eq. 247.

2. By a settlement in the Scotch form on the marriage of his daughter with a Scotchman, A., an Englishman, covenanted to pay .£4,000 for the benefit of his daughter, her husband, and their younger children. The £4,000 was not paid; but, by will made after the daughter's death, A. gave £16,000 between the younger children. Held, that the English doctrine of presumption against double portions was appli. cable, and that the will operated as a satisfac. tion of the settlement --Campbell v. Campbell, Law Rep. 1 Eq. 383.

3. A testator, domiciled in England, and having real and personal estate both in England and Holland, gave by will to trustees all his property here and abroad. A decree was made in England for the administration of the estate. Afterwards, a child of the testator commenced proceedings in Holland for the administration

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