Lainson v. Lainson. Notes.

devisee. Yeaton v. Roberts, 28 New Hampshire, 459; Adams v. Gillespie, 2 Jones Equity (No. Carolina), 244; Macknet v. Macknet, 9 C. E. Green (New Jersey), 277.

See note on Acceleration, 19 Abbott's New Cases (New York), 331.

A legacy payable at a future time, and not charged on land, becomes payable presently on the legatee's death before the day of payment, if the postponement was intended for his benefit; otherwise if it was intended for the benefit of others. Jacobs v. Bull, 1 Watts (Penn.), 370; 26 Am. Dec. 72. This was the case of a legacy to an infant payable in instalments, with interest, and the court said: the protraction of the payment was intended to prevent him from the temptation to squander, incident to the possession of large sums of ready money."

66

In Macknet v. Macknet, supra, the Chancellor said: "It is perfectly settled that if an estate is devised, charged with legacies, and the legacies fail, no matter how, the devisee shall have the benefit of it and take the estate. Lord Alvanley, M. R., in Kennell v. Abbott, 4 Vesey, 802, 811. See also King v. Denison, 1 Vesey & Bea. 260. . . . The early cases in which it was held that an estate in reversion vests immediately upon the determination of the lifeestate upon which it is limited, by the death of the tenant for life, or by the surrender or forfeiture of his estate, or his disqualification to take it, 1 Jarman on Wills, 513; Sheppard's Touchstone, 435, have been followed in this country in such cases as the present."

In Yeaton v. Roberts, supra, were cited Goodright v. Opie, 8 Mod. 126; Fuller v. Fuller, Cro. Eliz. 422; Cranmer's Case, Dyer, 309, b.

The English doctrine of acceleration of a devise is recognized in Hinkley v. House of Refuge, 40 Maryland, 461; 17 Am. Rep. 617, where it is said: "It is certainly true that at law, if a party devise to A. for life, with remainder to B., and A. renounce the devise, or the first devise be void, the remainder is good, and will take effect immediately." Citing Shelley's Case, 1 Co. 101 a: Rector of Chedington's Case, id. 154; Brett v. Rigden, Plowd. 344; Hodgson v. Ambrose, 1 Doug. 337. In this case a testator devised his property in trust for his wife for life, and after her death to pay certain legacies to charities, and to hold the residue for the use of certain of his relatives. The widow elected to waive the provisions of the will and take as in case of intestacy. Held, that the time for the payment of the legacies to the charities was not thereby hastened, and that such charities were not entitled to take until the decease of the wife. The court observed:

66

But while this is the general rule, it is modified under certain circumstances by the application of the principles of equity, where it is apparent that the event producing the acceleration of the time for vesting the remainder in possession is not contemplated by the will, and the result produced would contravene the intention of the testator. In this case, it is manifest that it was never contemplated by the testator that the legacies now claimed as payable presently should be paid before the death of his widow. The renunciation by the widow is an event not provided for by the will; and as by that event a certain portion of the principal or corpus of the estate is withdrawn from the trust intended for the benefit of the children of the daughter and sister of the testator, it is but equitable that they should be indemnified or

Lainson v. Lainson. —Notes.

compensated as far as can be, by the appropriation of the benefit renounced by the widow. This is not an application to compel an election, but to have declared the effect of an election already made; and in such case, the general and well-established principle applies, that a court of equity will assume jurisdiction to sequester the benefit intended for the refractory donee, in order to secure compensation to those disappointed by the election. 2 Story, Eq. Jur., Sec. 1083." The court distinguished Clark v. Tennison, 33 Maryland, 85, where property having been bestowed on the wife during widowhood, with a limitation over to the children after her death, it was held that the limitation took effect on her remarriage.

Where a legacy is to be paid at twenty-one, and interest is given during minority, if the legatee dies under age, his representatives are entitled immediately; but if interest is not given, they must wait until the legatee if living would have become twenty-one. Merritt v. Richardson, 14 Allen (Mass.), 239.

When a division is delayed during minority, not on account of the minor, but for purposes independent of him, the minority being used only as a measure of time, the division will not be accelerated by the minor's death under age. Robinson v. Greene, 14 Rhode Island, 181, citing Coates v. Needham, 2 Vern. 65; Carter v. Church, 1 Ch. Cas. 113; Boraston's Case, 3 Rep. 19 a. The same is held in Titus v. Weeks, 37 Barbour (New York), 136.

In Dale v. Bartley, 58 Indiana, 101, the will devised certain lands to the wife for life, to be sold on her death and the proceeds divided among certain legatees, and in case of the death of any of them, their portion was to go to certain others. She elected to take under the statute instead of the will. It was held that the sale and division could not be had until her death, because "until that time it could not be told what legatees would survive, and therefore be entitled to the legacy."

A PERSON engaged in a lawful act is not responsible for damage arising from a pure accident in the doing of it.

Davis v. Saunders.

2 Chitty, 639.

This was an action of trespass. The first count of the declaration set forth that the defendants, with force and arms, took and carried away goods and chattels of the plaintiff's (consisting of casks of brandy, &c.), and converted them to their own use. The second count set forth that the defendants, with force and arms, broke and damaged a certain sloop of the plaintiff's, whereby, &c. At the assizes a verdict had been found for the defendant on the first count and for the plaintiffs on the second count, subject to the opinion of the court on the following case. That the plaintiff was owner of the sloop, and the defendants owners of two other sloops. That having reason to believe there was a raft of brandy left in the sea by the smugglers at Torbay, several vessels went out in search of it. That John Descent was the first discoverer of the raft, and laid hold of it with his boat-hook; but not being able to hold it, he left his boat-hook sticking in the cable, and which boat-hook remained visible above water. That Descent still continued there, and was about to return, but before he got up, Davis, the plaintiff, fixed his anchor to the cable to which the raft of casks was fastened, and drew them up to the bow of the vessel. That whilst Davis was getting in some of the casks, the defendants, Saunders and Full in one boat, and Cookes and Bartlett in the other, came up, and each got hold of another part of the raft. That whilst they had so hold, by the rolling of the sea and blowing of the wind their ships drove against the plaintiff's vessel, and did him damage to the amount of

No. 1. Davis v. Saunders. Notes.

the verdict. That the casks which Cookes and Saunders took from the raft were immediately taken to the customs and condemned in the Exchequer, no one laying a claim thereto. Whether the plaintiff is entitled to recover in this action for the damage done to his ship.

Burland, Serjeant, for plaintiff. Plaintiff was the actual possessor of the raft. If, in the prosecution of an unlawful attempt to dispossess a man of goods in his possession, a damage is done, trespass may be maintained. Even a person having an illegal possession, may support this action against any person but the legal owner. Cro. Eliz. 819; 5 Co. 24 (b); Stra. 777; 1 Salk. 290; 2 Saund. 47, c. Nor is the intent or design of the wrong-doer to be much considered. 3 Wils. 309; 2 Bla. R. 832; 3 East, 599, 601. Where a soldier, exercising, discharges his musket, and hurts another; or a person in shooting at one but hits another, trespass will lie. Hob. 134; Stra. 596. The question here is, whether it was not an unlawful attempt to dispossess plaintiff, who was in the actual possession of the raft. Bro. Abr. 358.

Mansfield, for defendant. The jury have found the fact of possession of the brandy against the plaintiff, and therefore they have found, on the first count, against him; this is decisive as to the second count; if he had no possession, defendant would not be guilty of wrongful act. Ld. Raym. 1399. Here the injury was merely accidental. It is true, that even if it had been through negligence, it must have been an action of trespass.

Burland, in reply. When the first act was unlawful, though the injury had been intended to a third person, if an injury ensues to me, trespass lies. It is even so in the case of felony. If in prosecution of an unlawful act, a man is killed, it is murder.

The court decided generally for the defendants upon the whole declaration, being of opinion that the original act of the defendants was not unlawful. Judgment for defendants.

ENGLISH NOTES.

The above has been chosen as a short case embodying a general principle which has been frequently applied under varying circumstances of detail in later cases. Of these Hammack v. White (1862), 11 C. B. N. s. 588, has been frequently cited as a leading case. It was an action by a widow and administratrix, under Lord Campbell's Act (9 & 10 Vict. c. 93), against the defendant for having by his negli

gence caused the death of the intestate. The defendant had bought a horse at Tattersall's, and the next day took him out to try him in Finsbury Circus, a much frequented thoroughfare. According to the evidence, as stated by ERLE, C. J. (p., 595), the defendant was seen riding at a slow pace, the horse seemed restless, and the defendant was holding the reins tightly, omitting nothing that he could do to avoid the accident; but the horse swerved from the roadway on to the pavement where the deceased was walking, knocked him down and injured him fatally. On trial of the cause in the Lord Mayor's Court, the recorder, being of opinion that there was nothing in the evidence to warrant a jury in finding that the defendant had been guilty of negli gence, directed a nonsuit. This ruling was unanimously upheld after argument, by the Court of Common Pleas, consisting of ERLE, C. J., WILLIAMS, J., WILLES, J., and KEATING, J.

The judgment of the Court of Exchequer in Holmes v. Mather (1875), L. R. 10 Ex. 261; 44 L. J. Exch. 176, embodies the same principle. The defendant, who had two horses kept in a livery stable, wishing to try them for the first time in double harness, had them harnessed together in his carriage. At his request a groom drove, the defendant sitting on the box beside him. After driving for a short time the horses, startled by a dog which suddenly rushed out and barked at them, ran away and became so unmanageable that the groom could not stop them, though he could to some extent guide them. After guiding them safely round several corners, the carriage was arriving at the end of a street faced by a shop in another street lying at right angles. The groom tried to guide the horses through this cross street to the right, but, not entirely succeeding, the carriage struck against the palisades in front of the shop, and knocked down a woman (the plaintiff), who was on the pavement. There was a verdict for the defendant, leave being reserved to the plaintiff to move. The case was argued partly on the question whether the defendant was responsible for the groom's driving; but the court, BRAMWELL, B., CLEASBY, B., and POLLOCK, B., came to the conclusion that, even on the assumption that the whole acts of the groom were to be considered as done by the defendant, the defendant was not liable. The driver had done nothing wrong, but endeavoured to do what was best under the circumstances. The misfortune happened through the horses being so startled by the dog that they ran away, with the groom and the defendant sitting beside him. "For the convenience of mankind," says Mr. Baron BRAMWELL (p. 267)," in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid."

In Mangone v. Douglas (1880), 6 Q. B. D. 145; 50 L. J. Q. B. 289,