was liquidated damages and not a penalty. Atkyns v. Kinnier,

DEED.

Joint-stock Company. See PARTIES TO ACTION.

DEVISE.

(1). Construction of.

776

A testator devised as follows:-"I give to B. and S., their heirs, executors, &c. my freehold and leasehold estates at Reading, and I give full power and authority to B. and S., and their heirs, to accept surrenders of all present and future leases, and grant new leases. I give to B. and S. all my other real estate, in trust, out of the rents and profits thereof, to pay my wife the jointure of 7007. settled by me on her; and also to pay out of the rents and profits of my freehold estates unto F. B., during her life, an annuity of 1007.; and thereout also to pay C., during the joint lives of her and F. B., an annuity of 300l.; and, after the decease of F. B., if C. should survive her, to pay C. an annuity of 4007.; and, after the decease of C., in case she shall have only one child, then in trust to pay out of the rents and profits of my said estates the yearly sum of 2007. for the maintenance of such child, until he or she shall attain the and after of twenty-five years, age that, in trust to raise the sum of 10007. to to him or her at that age. And pay my will is, that so much as my residuary personal estate shall fall short of paying my debts and legacies hereby given, shall be by my trustees raised and paid out of the rents and profits of my several estates, and by mortgage of all or any part thereof; and after payment of the interest of the money so to be borrowed, and the expenses of keeping my estates in repair, and all such costs as my trustees shall expend by means of the trusts, in

trust to pay out of the overplus rents and profits thereof, 60%. yearly, for the maintenance of the eldest son of B., until he shall have attained the age of twenty-three years; and I hereby give full power to my said trustees, and I do order and direct that they shall settle a jointure on any woman such eldest son shall marry, of 60l. per annum; and in trust to apply the overplus rents and profits of my estates in paying off the money so to be borrowed on mortgage; and, after payment thereof, to pay the rents and profits of my said estates to B., during his life, to his own use; and after his decease, then my trustees shall stand seised of my real estates to, for, and upon the uses following: (that is to say), to the use of J. B., the eldest son of B., during his life, and after the determination of that estate, to the use of M. and his heirs during the life of J. B., upon trust to preserve contingent remainders; and, after his decease, to the use of the first son of J. B., and the heirs male of his body; and, in default of such issue, to the use of the second, third, fourth, and all other sons of J. B., successively in remainder, and the several heirs male of the bodies of such sons." There were similar limitations over in default of issue, each life estate being followed by a gift to trustees to support contingent remainders:- Held, that the trustees took an estate in fee sim550 Blagrave v. Blagrave,

ple.

(2). Description of Lands. A testator bequeathed his freehold farm in Headington, called the Wick Farm, to certain persons, in moities. Two parcels of land, which had formerly belonged to that farm, had been conveyed by the then owner to the president and scholars of Magdalen College, who demised the same to the testator by way of renewed lease. The testator further devised" all my

leasehold farm-house, homestead, lands, and tenements at Headington, containing about 170 acres, held under Magdalen College, Oxford, and now in the occupation of B., as tenant to me." B. occupied a farm at Headington, which was leased to the testator by Magdalen College, but he had never occupied the above-mentioned two parcels of land:-Held, that the description of the lands being in the possession of B. could not be rejected as a false demonstration, and consequently that the two parcels of land did not pass under the latter devise. Morrell v. Fisher, 591

(3). Cross-remainders.

By deeds of lease and release, being the settlement made on the marriage of E. M. H. and W. B., by which deeds, and a fine levied in pursuance of the covenants contained in the release, certain lands of which E., the wife of W. H., and mother of E. M. H., was then seised in fee, a settlement was made after the solemnisation of the said marriage, to the use of the said W. H. for his life, with remainder to the use of the said E., the wife of the said W. H. for her life, and then with remainder for the use of the said W. B. for his life; and then for the use of the said E. M. his intended wife for her life, with remainder to the use of all and every the children of the body of the said W. B. on the body of the said E. M. H. his intended wife to be begotten, to be equally divided among them, share and share alike, to take as tenants in common and not as joint tenants, and of the several and respective heirs of the bodies of all and every such children lawfully issuing; and in case one or more of such children should happen to die without issue of his or their body or bodies, then as to the share or shares of him or them so dying without issue, to the use of the survivors or others of them, share and

share alike, to take as tenants in common and not as joint tenants, and the several and respective heirs of their bodies lawfully issuing; and in case all such children but one should happen to die without issue, or if there should be but one such child, then to the use of such surviving or only child, and of the heirs of his or her body lawfully issuing, and for default of such issue, then to the use of the said E. M. H., the wife of the said W. H., and of their heirs and assigns for ever. The marriage was duly solemnised. There was issue of it eight children, three of whom died infants, unmarried, and in the lifetime of their parents. E. M., the wife of W. B., survived her husband as well as the said W. H., and at the time of her death, the limitation in favour of the issue of the marriage came into operation: Held, that cross-remainders were here created by apt words in the deed, and that the word "share" must be understood as embracing accruing as well as original shares. Doe d. Clift v. Birkhead, 110

DOMICILE-ELECTED. See JUDGMENT, (2).

EVIDENCE. Returns to Stamp-office, in Banking Company, when admissible to shew that Party was a Member at the time. See BANKING COPARTNERSHIP, (1).

(1). Publication of Libel.

In an action for a libel contained in a pamphlet, a witness stated that she had received a copy from the defendant, and that she had read certain portions of it; that she had lent it to A. B., and that he had afterwards given her a copy back, which she believed to be the same she had lent to him, but that she would not swear that it was the same, yet that she had no reason to doubt it:-Held, that there was

(2). "Act done."

In an action of trover by the assignees of a bankrupt, it appeared that the goods had been assigned by the bankrupt to one B., who assigned them to C., to whom the purchasemoney, as was contended, was advanced by the plaintiff, to whom C. subsequently transferred the goods by bill of sale. In order to shew that these transactions were fictitious, certain evidence was adduced; and a question was asked, "whether C. had not made a claim to these goods after the bankruptcy:"-Held, that the question could properly be asked, as the claim was an act done by one of the parties to the alleged fraud. Ford v. Elliott, 78

EXCISE.

See INFORMATION.

EXECUTION.

See COUNTY COURT.

Discharge of Wife when taken in Exe

cution.

Where judgment had been recovered in an action against husband and wife for an assault committed by the wife, who alone was in custody under a writ of ca. sa., the husband having obtained his discharge as a bankrupt, the Court refused to interfere by ordering the wife's discharge, although she had no separate property. Larkin v. Marshall, 804

EXECUTOR.

Of deceased Partner in Banking Company.

See BANKING COPARTNERSHIP, (1). Liability of Executor of deceased Shareholder for Calls-Extraordinary Meeting-Pleading-Notice.

A declaration by the public officer

of a Joint-stock Company against the executrix of a shareholder for calls, stated that, by the deed of settlement, it was provided that the shareholders, while holding shares, should be partners in the Company; and that, in addition to 51. required to be paid by each shareholder before the execution of the deed, the directors should have power to call for the further payment by each shareholder or his executors of 451. on every share held by him. It then averred, that, after the testator's death, and whilst the defendant was a shareholder as such executrix, the directors made a call. Breach, non-payment by the defendant as such executrix. Pleas, non est factum, and a denial that the call was made whilst the defendant was a shareholder as executrix:-Held, first, that the covenant by the shareholders to pay calls bound their executors, in case a call was made on them, although the covenant did not contain the words " or their executors," and consequently, there was no variance in the statement of the contract; secondly, that the plaintiff was entitled to succeed on the other issue, inasmuch as the defendant was in one sense a shareholder as executrix, notwithstanding the deed provided that no executor should become a shareholder without the consent of the directors, and until he had done certain specified acts, which requisites were not in this case complied with.

The deed of settlement further provided, that the directors should meet weekly, on a day to be named by them, and on such other days as they should think fit; but that the secretary, or any director, might call an extraordinary board, by sending a notice at least one clear day before the time of meeting, and specifying the day and hour fixed for the meeting, and the purpose thereof; and that the business transacted by the directors, being at least five in number, should bind the

Company. The directors appointed Wednesday as their ordinary day of meeting; and a board having been held on Wednesday, the 7th of March, was adjourned. A letter was afterwards sent to the directors by the secretary, stating that he was directed to inform them that a special board was summoned for Tuesday, the 11th, on special business. At this meeting the call in question was made:-Held, that the call was duly made; for this was not an extraordinary board, and therefore did not require notice of its special purposes.

The statute enabling the Company to sue and be sued by their public officer required a memorial to be inrolled of the names, residences, and descriptions of the shareholders, and declared that, until such memorial was inrolled, no action should be commenced under the authority of that Act. One of the shareholders was described thus: “A. R., Director of the Honourable East India Company, and Major-General in the East India Company's Service, shareholder:"-Held sufficient, within the meaning of the Act of Parliament, as it corresponded with the register. Wills v. Murray,

FEIGNED ISSUE. See JUDGMENT, (1).

FIAT.

"Date and Issuing of." See BANKRUPT, (5).

843

FIXED AND MOVEABLE PROPERTY.

In case of Accidents in respect thereto. See MASTER AND SERVANT.

FIXTURES.

See AGREEMENT.

FOREIGN JUDGMENT. See JUDGMENT, (2).

FORFEITURE OF SHARES. Declaration of.

GIFT.

Of Chattel.

A mere verbal gift of a chattel to a person in whose possession it is, does not pass any property to the donee. Shower v. Pilck, 478

GUARANTIE.
See BANKRUPT, (2).

In Partnership Name-Statute of
Frauds-Account stated.

The defendants, who were in partnership as railway contractors, under the name of W., A., & Co., contracted with a Railway Company to do certain works. U. & R. made a sub-contract with the defendants to do part of the work; and for that purpose requiring coals to make bricks, A., without the knowledge or assent of his copartners, signed, in the name of the firm, and delivered to the plaintiffs, a guarantie, not addressed to any person, for payment of coals to be supplied to U. & R. The plaintiffs having pointed out the omission, a clerk of W., A., & Co. by the direction of A. wrote to the plaintiffs, stating that the guarantie was intended for them. The clerk, also, without the knowledge of the other partners, wrote to the plaintiffs certain letters, amounting to evidence of an account stated in respect of the amount due on the guarantie:-Held, first, that the guarantie and subsequent letter constituted a sufficient notice in writing within the Statute of Frauds.

Secondly, that the guarantie did not bind the firm, there being no evidence that it was necessary for carrying into

INFORMATION.

Costs-Crown Solicitor.

In an information under the 2 & 3 Will. 4, c. 120, s. 101, which gives "full costs of suit and all other reasonable charges and expenses," the Crown, in case of success, is entitled to the ordinary costs as between subject and subject, although the Crown solicitor, who conducts the prosecution, receives a certain fixed yearly salary from the Crown for his services.

In a count of an information by the Excise, for twenty penalties, the Crown recovered a verdict for one penalty only:-Held, that the Crown was only entitled to the costs of the witnesses necessary to prove the single penalty.

In another count, the defendant was charged with the wilful omission of an entry, and the Crown had a verdict: -Held, that the Crown was entitled to the costs of all such witnesses as were reasonably necessary to prove that the omission was wilful. The Attorney-General v. Shillibeer, 606

A declaration stated, that the defendant and B., S., & O., and 500 persons, were united in partnership, by the name of the General Maritime Assurance Company, "for carrying on the business of insurers of ships." That the Company had a capital of 1,000,000l., in 10,000 shares of 100%. each; that the defendant was proprietor of 100 shares, in respect of which only 51. per share had been paid up, and 951. per share remained due; that the plaintiffs made with the Company a policy of insurance on the body, tackle, &c. of the ship "Elizabeth," and it was agreed that the capital stock of the Company should be alone liable to make good all claims under the policy; and that no proprietor should be liable to any claim by reason of that policy, beyond the amount of his shares, in witness whereof, and that the Company were content with that insurance for 1500., B., S., & O., for and on behalf of the Company, did then thereunto set their hands; that, in consideration that the plaintiffs, at the request of the defendant, being such shareholder, paid to the Company 947. as a premium for the insurance, the