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1. The record of a conviction for a capital felony showed, that, on the trial, the jury being unable to agree were discharged by the judge, and that the prisoner was again put on trial and convicted. Held, that the judge had a discretion to discharge the jury, which could not be reviewed on writ of error; and that there was no error on the record.— Winsor v. The Queen, Law Rep. 1 Q. B. 289. Confirmed on appeal. Law Rep. 1 Q. B. 390.
2. 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 and that a tales prayed before 10, A. m., the time for which the special jurors were summoned.— Irwin v. Grey, Law
Rep. 1 C. P. 171. LANDLORD AND TENANT.
1. One who occupies as his own another's land, and before the end of twenty years becomes tenant to that other of land adjacent to the land so occupied, can, while he remains tenant, acquire against the landlord a prescriptive title to the land first occupied. —Dixon v. Baty, Law Rep. 1 Ex. 259.
2. To raise the presumption that an encroachment on waste land by a tenant was made for the benefit of his landlord, the land encroached on need not be contiguous, in the sense of being coterminous with the land held by him as tenant.-- Earl of Lisburne v. Davies, Law Rep. 1 C. P. 259.
3. If a servant occupies premises of his master, rent free, as part remuneration, if the occupation is subservient to the services, the occupation is that of the master: if it is not so subservient, the occupation is that of a tenant, and the servant is “ substantial householder" within 43 Eliz. c. 2, and therefore eligible as overseer of the poor.- The Queen v. Spurrell, Law Rep. 1 Q. B. 72. See LEASE; TENANT FOR LIFE AND REMAINDER
MAN, 5. LEASE.
1. A., in 1861, underlet to B. for twenty-one years from Michaelmas, 186). In 1864, he underlet the same premises to C. for twenty-one years from Michaelmas, 1863, at the same rent. B. never attorned to C. Held, that the demise to C. did not pass the reversion, but only an interesse termini.- Edwards v. Wickwar, Law Rep. 1 Eq. 403.
2. An agreement by A., tenant from year to year, to let to B. "all his right, title, and interest” in the premises, provided that, if B. should not be accepted as a tenant by F. and
H.. the landlords, subject to the terms mentioned in the margin (which were,—“F. and H. agree to grant B. a lease of thirty-five years, at £200 rent, &c.), the agreement should be void, is not well declared on as a contract by A., that F. and H. should grant the lease, and make good title.- Tweed v. Mills, Law Rep. 1 C. P. 39.
3. A lessee of a house, which he knew had been used inany years as a brothel, assigned the lease absolutely, knowing that the assignee intended to use the house in the same way. The original lease contained covenants to deliver up in good repair, and not to use as a brothel, and the assignment contained a covenant to indemnify the lessee from the covenants in the lease. The lessee had to pay for repairs at the end of the lease. Held, that he could not recover the amount so paid from the assignee, everything arising out of the assignment being so tainted with the immoral purpose.-Smith v. White, Law Rep. 1 Eq. 626.
4. The underlessee of a person, who has covenanted not to carry on a certain trade, will be restrained from carrying it, though such covenant is not in the original lease, but only in an assignment, and though the underlessee had no actual notice of it. So also an assignee of the under lessee.— Clements v. Welles, Law Rep. 1 Eq. 200.
5. Under a stipulation in an agreement to release to A. without adding “or his assigns,” that the lease should contain all usual covenants for the lessor's protection, held, that the lease need not contain a covenant against alienation. Buckland v. Papillon, Law Rep. 1 Eq. 477.
6. In August, 1856, the plaintiff agreed to let a house to the defendant for seven, fourteen, or twenty-one years; the defendant to repair, paint, and paper; and the defendant was let into possession. In 1859, the parties agreed that W. should be accepted as tenant in room of the defendant, upon the same terms, the defendant guaranteeing the rent. W. had just before this been let into possession by the defendant, and paid rent till 1863, when the defendant gave a notice to determine his tenancy at the end of the first seven years. W. and the defendant both denied their liability to paint and paper according to the original agreement. Held, on bill filed in November, 1864, that the defendant could not be compelled to accept a Jease.—Moore v. Marrable, Law Rep. 1 Ch. 217.
7. Under an agreement to let a house for three years at a yearly rent, by which the landlord agreed, at the tenant's request, to grant a lease for a term from the expiration of the three years' occupancy at the same rent, the tenant
DIGEST OF ENGLISH REPORTS.
to keep the house in repair, --held, that the tenant was entitled, four years after the expiration of the three years, to have the agreement specifically performed; and that neither application by him two years before for a lease at a reduced rent (which was refused), nor an application for repayment of money spent on repairs (which was allowed), was a waiver, but that he was bound to refund the cost of the repairs.-Moss v. Barton, Law Rep. 1 Eq. 474.
8. If lands are limited in fee defeasible, but if all persons who would be entitled in any event are before the court, leases may be granted under 1 Wm. IV. c. 68, which enacts, that, if any infant is seised of land in fee or tail, the court may grant leases.— In re Clark, Law Rep. 1 Ch. 292.
9. Leases granted by the governor of New Australia, of crown lands, scaled with the public seal of the province, but not enrolled or recorded in any court, are not records, and cannot be annulled or quashed by a writ of scire facias.— The Queen v. Hughes, Law Rep. 1 P. C. 81. See FRAUDS, STATUTE OF, 2; LANDLORD AND
TENANT; PARTIES, 2; POWER, 3 ; RENT; SPE-
AND REMAINDER MAX, 4, 5.
1. A testatrix gave to A. for life the interest of £300, or thereabouts, invested by her in a certain company, and the interest of £200; and, after A.'s death, she gave the “
said principal sum of £500" to A's. children, and directed, if her personal estate proved insufficient for the payment of legacies, the deficiency should be made up out of her real estate. By a codicil, she gave "all her personal estate” to B. Held, that the whole personal estate passed by the codicil; that the legacy of £300 was specific and was revoked, but that the legacy of £200 remained charged on the real estate.-Kermode v. Macdonald, Law Rep. 1 Eq. 457.
2. A bequest, after the death of J. (to whom an annnity was given out of the fund), to E. for life, but in case of E.'s death during J.'s life, then to M. for life, and after the decease of both E. and M., over: J. died, and afterwards E. Held, that H. bad a life estate.-Smith's Trusts, Law Rep. 1 Eq. 79.
3. A testator, having five sons, gave an an. nuity to one (a lunatic), and a legacy “to each of my sons,” naming only the other four, and directed that his residuary personal estate should be invested in stock, “the interest therefrom to be divided half-yearly between my four sons above-named, and, at the decease
of either without lawful issue, such share to revert to the remainder then living, their child, or children.” Held, 1st. That the four sons only were entitled; and 2nd. That they took only for life, with an estate by implication to their issue, living at their death, as joint tenants.- Dowling v. Douling, Law Rep. 1 Eq. 442.
4. Bequests of stock to A. for life, remainder to any wife he might thereafter marry for life or widowhood; remainder to A.'s children absolutely; and if A. should die unmarried and without issue, then, from and after his decease. to B., C., and D., in equal shares; or to such of them as should be living at A.'s death, his, her, or their executors, administrators, and assigns absolutely. A. survived B., C., and D.; and died a widower, without ever having had a child. Held, that “issue" meant “children;" that “unmarried” meant “without leaving a widow;" and that the representatives of B., C., and D. took the legacy in equal shares.-Sanders's Trusts, Law Reg. 1 Eq. 675.
5. In a gift to daughters for life, with remainder to the child or children of such daughters, as they should appoint; in default of appointment equally, and, on the death of such of said daughters after twenty-one as should die without issue, her share to be paid to her personal representative,-held, that “issue” means children; and “personal representative.” administrator or executor.- Wyndham's Trusts, Law Rep. 1 Eq. 290.
6. Bequests by will, made in 1857, of “my shares in the Great Western Railway.” At the date of the will, testatrix had no shares, strictly speaking, in any railway company; but she had Wilts and Somerset stock of the Great Western Railway, and also preference and other stock of the Great Western Railway, which was increased by further purchase of stock in same company after the date of the will. Held, that all the Great Western and Wilts and Somerset stock, held by the testatrix at her death, passed by the bequest.- Trinder v. Trinder, Law Rep. 1 Ex. 695.
7. Bequest of thirty-three shares in a company among four children, and bequest of “the remaining shares” to a godchild. The testatrix held seventy-four shares, of which thirty-seven were original paid-up shares of £25; and thirtyseven, new £25 shares, on which £15 was paid, and which had been allotted to the holders of original shares by way of bonus. Parol evi. dence to show that the testatrix was in the habit of treating, and intended to treat, the the shares as double shares (so as to pass to
DIGEST OF ENGLISH REPORTS.
her godchild four double and not forty-one single shares), held inadmissible ; but the specific legatees were allowed to take their bequests out of the original shares.- Millard v. Bailey, Law Rep. 1 Eq. 378.
8. A testator bequeathed as follows,—“The pink coupons are for £3,666 : send those to I. & S. [brokers]; and he is to pay to E. T. £2,500, the rest to G for B and E.," and died, Sept. 13, 1864. Pink certificates for £3,666 13s. 4d. railway stock, were found. On Nov. 2, 1864, an administrator was appointed: but the stock was not sold till Nov. 22, 1865; and, meanwhile, a dividend had accrued. Held, that the gift to E. T. was a specific legacy; and that E. T. was entitled to a share of dividend accruing on that portion of the stock, which, at the testator's death, would have been needed to realize £2,500.—Jeffery's Trusts, Law Rep. 2 Eq. 68. See ACCRUER, 2; HUSBAND AND WIFE, 3;
LEGATEE; MAINTENANCE; SEPARATE USE;
VESTED INTEREST, 2; WILL. LEGATEE.
1. Pecuniary legatees are entitled to stand in the place of the vendor against an estate purchased and devised by the testator, the purchase-money for which, paid after the testator's death, exhausts his personal estate. - Lord Lil. ford v. Keck, Law Rep. 1 Eq. 347.
2. Legatees are entitled to costs out of a residuary fund in court, which is insufficient to pay the legacies charged thereon.- Jarman's Trusts, Law Rep. 1 Eq. 71.
3. In an administration suit by a residuary legatee, other residuary legatees, having liberty to attend the proceedings, were allowed between them one set of the costs of attending the taking of the accounts, as the plaintiff and the accounting defendant employed the same solicitor.Daubney v. Leake, Law Rep. 1 Eq. 495.
See RELEASE. Ligur.
1. The erection of a building will not be restrained as obstructing an ancient light, unless the obstruction is such as to materially interfere with the ordinary occupations of life.-Clarke v. Clarke, Law Rep. 1 Ch. 16.
2. In a suit for obstruction of ancient lights, the court below decreed that the plaintiff was entitled to sufficient light for his business, with. out any material diminution of his former use; and directed an inquiry whether any alteration in the defendant's building-design was proper, to prevent the interference with the plaintiff's right; and, in the mean time, restrained the defendant from building above a given height.
Held, on appeal, that the defendant should have been enjoined from erecting any building so as to obstruct the plaintiff's lights, as the same were enjoyed previously to the defendant's acts.
— Yales v. Jack, Law Rep. 1 Ch. 295. LIMITATIONS, STATUTE OF.
1. Payment, by an executor, of interest on a specialty debt will prevent the statute of limitations (3 & 4 Wm. IV. c. 42, $ 5) running in favour of a devisee of realty.- Coope v. Cresswell, Law Rep. 2 Eq. 106.
2. The 31 Eliz. c. 5, § 5, limiting actions on penalties to a year, applies to a suit by one for himself alone, as well as though he sued as an informer qui tam.-Dyer v. Best, Law Rep. 1 Ex. 152.
See MORTGAGE, 4, 5 ; Solicitor, 5. MAINTENANCE.
Testator bequeathed to his son a legacy of £6,000, contingently on his attaining twenty. one. He also bequeathed his residuary estate on trust till said son should attain, or if living would have attained, fifteen, for the maintenance of all his children, and subject thereto for accumulation at compound interest; the aggregate fund to be for all his children contingently on their attaining twenty-one. Held, that the son was entitled to maintenance between fifteen and twenty-one; and therefore interest was declared payable on the £6,000.- Martin v. Martin, Law
Rep. 1 Eq. 369. Malicious MISCHIEF.
A prisoner who plugged the feed-pipe and displayed other parts of an engine, so that it was made temporarily useless, and would have exploded unless the obstruction had been discovered and with some labour removed, was properly found guilty of damaging the engine with intent to render i: useless.--The Queen v.
Fisher, Law Rep. 1 C. C. 7. Marriage.
1. A marriage contracted in a country where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a marriage as understood in Christendom; and, though valid by the lex loci, and though both parties were single and competent to contract marriage, the English matrimonial court will not recognize it as a valid marriage, in a suit by one of the parties for dissolution of marriage on the ground of the other's adultery. --Hyde v. Woodmansee, Law Rep. 1 P. & D. 130.
2. On a suit by a man for dissolution of marriage, evidence that the man and his alleged wife, residing at S., had left S. together, saying that they intended to get married at G.; that,
Digest OF ENGLISA REPORTS.
they returned to S., saying they had been mar- MISTAKE. - See TENANT FOR LIFE AND REMAINDER ried at G.; that, on the day they left S., there Man, 3. was an entry of the marriage in a book at G., MORTGAGE, signed by the man; and that, after their return
1. A mortgagee, who, holding promissory to S., they lived there many years as hus
notes of the mortgagor as collateral security, band and wife,--he!d, in the absence of better has transferred the mortgage without the notes, evidence, sufficient proof of the marriage.-
will be enjoined against suing at law on the Patrickson v. Patrickson, Law Rep. 1 P. & D. notes, pending a suit by the mortgagor to re86.
deem and settle the equities of the parties.-See CONFLICT OF Laws, 1 ; HUSBAND AND WIFE. Walker v. Jones, Law Rep. I P. C. 50. MARRIAGE SETTLEMENT.-See DEED, 3; FRAUDS, 2. A mortgagor and his two incumbrancers
STATUTE OF; HUSBAND AND WIFE; POWER, by deed conveyed the mortgaged estates to 4, 5, 6.
trustees, to keep down the interest, and to ac
cumulate the surplus rent, and apply them in MASTER AND SERVANT.
payment of the principal, with a final trust for 1. The plaintiff was employed by a railway
the mortgagor, and declared that nothing in company to do any carpenter's work for its
the deed should derogate from the rights of the general purposes. He was on a scaffolding at
encumbrancers, and that, after they were paid work on a shed close to the railway, when some
off, the trusts of the deed should cease. Held, porters, in the company's service, carelessly
that a subsequent judgment creditor of the shifted an engine on a turn table, so that it
mortgagor could maintain a bill against all parstruck the scaffold, and the plaintiff was thrown
ties to the deed, and have the accounts taken down and injured. Held, that the company under the deed from the time of filing the bill, was not liable.—Morgan v. Vale of Health Rail,
without offering to redeem.---Jefferys v. Dickwny Co., Law Rep. 1 Q. B. 149.
Law Rep. 1 Ch. 183. 2. The plaintiff was employed by a railway 3. When a mortgagee on hearing that his company as a labourer in loading “a pick-up son-in-law, the mortgagor, is about to sell the train” with materials left by plate-layers on mortgaged property (a house occupied by the the line. It was part of his engagement that mortgagor) to pay the debt, wrote that he he should be carried by the train from B. might continue to live there without paying (where he resided, and whence the train started) any rent, the mortgagor may redeem, on payto the spot at which his work for the day was ment of the principal with interest from the to be done, and be brought back to B. at the last day on which interest fell due, before the end of each day. While he was returning to mortgagee's death.--Yeomans v. Williams, Law B., after his day's work, the train on which he
Rep. 1 Eq. 184. was, by the negligence of the guard in charge,
4. A sum of money, settled on members of a came into collision with another train; and the family, was invested on a mortgage of a trust plaintiff was injured. Held, that the company term of the family estates. In 1829, on a rewas not liable.--Tunney v. Midland Railway Co., settlement of the estates, the subsistence of the Law Rep. 1 C. P. 291
term and charge was acknowledged. No inte3. A workman, who had contracted to serve rest having in the mean time been paid, an a master for two years, absented himself from arrangement was executed in 1851, by which service, was convicted under 4 Geo. IV. c. 34, the tenant for life, under the re-settlement of $ 2, and committed. The imprisonment expired 1829, acknowledged the term and charge, and before the end of the two years; but he refused paid interest thereon. The tenant in tail, an to return to service. Held, that he had com- infant, was not a party. Held, that as against mitted a fresh offence, and could be again com- the tenant in tail, the term and charge were mitted, although he bond fide thought that he subsisting, and the statute of limitations did could not be compelled to return after impri- not apply.-Lawton v. Ford, Law Rep. 2 Eq. 97. sonment.-- Unwin v. Clarke, Law Rep. 1 Q. B. See PRODUCTION OF DOCUMENTS, 2, 3; SOLICI417.
4. To an action of covenant for not teaching | MORTMAIN.-Ste DEED, 2, 5. ap apprentice, it is a good plea, that the ap- NEGLIGENCE. prentice would not be taught, and by his wil- 1. A railway was crossed by a public footway ful acts prevented the master from teaching
on a level, protected by gates on each side. him.-Raymond v. Minton, Law Rep. 1 Ex. 244.
There was no watchman, and the view of the See EMBEZZLEMENT; LANDLORD AND TENANT, 3. line was obstructed from one of the gates; but,
Digest OF ENGLISH REPORTS.
on the level of the line, it could be seen three hundred yards. A woman, approaching the line through that gate, was detained by a lug. gage train; and, immediately on its passing, crossed the line, and was run down by a train coining on the further line of rails. Held, that there was no evidence of negligence on the part of the company, and that a verdict against them should be set aside.--Stubley v. London & N. W. Railway Co., Law Rep. 1 Ex, 13.
2. At the crossing of a railway on a level by a public way, at which there were gates across the carriage way, and a style for passengers, a foot passenger, while crossing the railway diagonally, with head bent down, was run over by a train. The gates on one side of the line were partly open, contrary to the provi. sions of statutes and the railway rules for the safety of carriage traffic. No gatekeeper was present, though no traffic was passing across, and a train was over due. The court refused to set aside a verdict against the railway company for the injury.--Stapley v. London, Brighton, and S. Coast Railway Co., Law Rep. 1 Ex. 21.
3. A railway was crossed by a public road diagonally, and also at the same spot nearly at right angles by a private way. There was a gate across both the public and private ways, under the control of the railway company. The plaintiff with his cart, one evening about dark, being on the private way, the gate being nearly closed, hailed the company's gatekeeper from the opposite side of the railway, to know if the line was clear; and the gatekeeper answered, “Yes; come on.” The plaintiff proceeded, and was run into by a train. Held, that thongh 8 Vic. c. 20, $ 47, in terms merely imposed the duty on the company to keep the gates closed across a public road, except when carriages, &c., shall have to cross, yet the duty was im. plied of using proper caution in opening them; and that, as the plaintiff could not get across the railway without passing i hrough the public gate, the gatekeeper should either have opened or refused to open the gate; that what he said was equivalent to opening the gate; and that the defendants were liable.- Lunt v. London & N. W. Railway Co. Law Rep. 1 Q. B. 277.
4. The staircase, leading from a railway station, was about six feet wide, had a wall on each side, but no hand-rail; and had, on the edge of each step, a strip of brass, originally roughened, but now, from constant use, worn and slippery. The plaintiff, a frequent passenger by the rail. way, while ascending the stairs, slipped, fell, and was injured. In an action against the company for negligence in not providing a reason
ably safe staircase, two witnesses gave as their opinion, that the staircase was unsafe ; and one of them (a builder) suggested that brass nosings were improper; that lead would have been better, as less slippery; and that there should have been a hand-rail. Held, no evidence of negligence for the jury. — Crafter v. Metropo. litan Railway Co., Law Rep. 1 C. P. 300.
5. On the premises of the defendant, a sugar refiner, was a hole on a level with the floor, used for raising sugar to the different stories, and necessary to the defendant's business. When in use, it was necessary that the hole should be upfenced; when not in use, it might, without injury to the business, have been fenced, Whether it was usual to fence similar places, when not in actual use, did not appear. The plaintiff being on the premises on lawful business, in the course of fulfilling a contract in which his employer and the defendant both had an interest, without negligence on his part, fell through the hole, and was injured. Held, that the defendant was liable.--Indermaur v. Dames, Law Rep. I C. P. 274.
6. The plaintiff, in passing along a highway at night, was injured by falling into a “ hoist hole,” within fourteen inches of the way and unfenced. The hole formed part of an unfinished warehouse, one floor of which the defendants were permitted to occupy while a lease was preparing, and was used by them in raising goods. Held, that the defendants were liable.Hadley v. Taylor, Law Rep. 1 C. P. 63.
7. The defendant exposed in a public place for sale, unfenced and without superintendence, a machine which could be set in motion by any passer-by. A boy, four years old, by direction of his brother, seven years old, placed bis fingers in the machine, while another boy was turning the handle, and his fingers were crushed. Held, that no action could be maintained for the injury.-Mangan v. Atterton, Law Rep. 1 Ex. 239.
See CARRIER, 7; MASTER AND SERVANT, 1, 2. New TRIAL.-See Damages, 2 ; JURISDICTION, 3. NUISANCE.
1. A prescriptive right of draining into a stream, to the injury of the plaintiff, can be acquired, if at all, only by the continuance of a perceptible amount of injury for twenty years. - Goldsmid v. Tunbridge Wells Improvement Commissioners, Law Rep. 1 Ch. 349.
2. Injunction granted to restrain the discharge of sewage of a town into a stream, when the sewage injuriously affected the water, and had done so for many years; and the pollution of the water perceptibly increased as new