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Giblin v. M'Mallen. - Notes.

diverted, and the pocket-book slipped out and was lost. The inference of embezzlement being excluded, it was held that he was not grossly negligent.

On the other hand, in Burk v. Dempster, supra, the plaintiff having by permission left a stove in a building which he had sold, and the defendant having leased the building, and consented to the stove's remaining where it was, the defendant, afterward needing the room, put the stove out doors on the lot in rear of the building, exposed to the elements, whereby it was injured. Held, that the defendant was liable therefor, and the plaintiff recovered five dollars. “It was gross negligence to remove the stove to a vacant lot, and leave it there unprotected.”

In Davis v. Gay, supra, the plaintiff, tenant of a suite of rooms in an apartment house, obtained leave from the defendant, the proprietor, to store some trunks in a general store-room provided for the tenants, informing him that he had a janitor who slept there, and he thought they would be safe. Afterward the janitor disappeared and the contents of the trunks with him. Held, that defendant was not guilty of gross negligence, and therefore not liable.

The bailee however may render himself liable for loss or injury if he uses the property, contrary to the implied agreement, or he may render himself liable as for a conversion. This principle however is limited to a use for the benefit of the bailee, and does not extend to a use for the benefit of the property, which indeed he is sometimes bound to make, as for example, to exercise a horse, or milk a cow. Hartop v. Hoare, 2 Strange, 1187; De Fonclear v. Shottenkirk, 3 Johns. (N. Y.) 170. And so if the use would not injure or endanger the property; for example, he may justifiably read a book so deposited. But if the use subjects the property to risk of loss or injury, like the wearing of jewels, he is liable for loss or injury therein. The use however must have that natural tendency in order to render him liable. So where S., a guest of N., deposited with him for safe-keeping government bonds of the value of $4500, and N. with the consent of S. put them in a box with his own valuables, which he locked and placed in a drawer in a bureau in his bedroom, which drawer he also locked; and afterwards N., without the consent or knowledge of S., took one of the bonds and pledged it as security for his own debt; and thereafter a thief entered the house, broke both locks and stole the other bonds and N.'s papers, it was held that N. was not liable to S. for the bonds taken by the thief. Schermer v. Neurath, 54 Maryland, 491; 39 Am. Rep. 397; the conversion of the one not working a conversion of the others. So when plaintiff deposited with a merchant a sum of money for gratuitous safe-keeping, with permission to use it, of which he never availed himself, but his bookkeeper, with the acquiescence of both parties, occasionally took small amounts from it temporarily to make change, and the deposit was kept separate, and stolen without the defendant's fault, he was held not to be liable. Caldwell v. Hall, 60 Mississippi, 330 ; 45 Am. Rep. 410.

The bailee without reward is responsible for the gross negligence of his servants in keeping the deposit to the same degree as for his own, provided it is within the course or line of his employment, but if the servant steps out No. 1. — Birtwhistle v. Vardill, 7 Cl. & Fin. 895.-— Rule.

of his way to do a wrong, either fraudulently or feloniously, the master is not answerable. Foster v. Essex Bank, 16 Massachusetts, 245; 8 Am. Dec. 135. But a bailee without a lien is not liable for bailment of money taken out of his safe by a clerk whom he allowed to open the safe, Glover v. Burbidge, 27 South Carolina, 305; unless the master's gross negligence affords the opportunity.

If the bailee without reward specially agrees to keep safely, he is bound to a higher degree of care. It was early held that such an undertaking would render him liable for loss by robbery. But to render him thus liable there must be a distinct undertaking to keep safely. Mere loose talk, or the mere understanding of the bailor, would not effect it. Foster v. Essex Bank, supra, where it was held that the cashier's receipt “ for safe-keeping" did not imply an agreement to keep safely. “It contains no promise, and assumes no risks other than would be derived from the mere delivery without any writing." It was also held that the weighing of the gold in presence of the president and cashier did not imply any special undertaking to keep safely.

DESCENT.

No. 1. — BIRTWHISTLE V. VARDILL.

(H. L. 1840.)

RULE.

In order to inherit lands situate in England, a person must be legitimate according to the law of England.

A child born in Scotland of domiciled Scotch parents, who were not married at the time of his birth, but afterwards intermarried in Scotland (there being no lawful impediment to their marriage, either at the time of birth or afterwards), though legitimate by the law of Scotland, cannot succeed to lands in England as heir of his father.

Birtwhistle v. Vardill.

7 Cl. & Fin. 895; 9 Bli. (n. 8.) 32, West, 500; 4 Jur. 1076.

This case is fully set forth as No. 5 of “Conflict of Laws,” 5 R. C. 748 et seq. And see Notes thereto.

No. 1. — Birtwhistle v. Vardill. — Notes.

ENGLISH NOTES. The reader is referred to the report of this case and the notes in 5 R. C. 748 et seq. The following cases, which are also reproduced in 5 R. C., and the notes to them, also deal with questions affecting legitimacy. Brook v. Brook ; Sottomayor v. De Barros ; Sottomayor v. De Barros (Queen's Proctor intervening); Hyde v. Hyde, 5 R. C. 833; and Brinkley v. Attorney General ; Conflict of Laws, Nos. 7–10; 5 R. C. 783-847.

The title of an alien to take property by descent was discussed in Calvin's Case, &c., 2 R. C. 575, and Notes, p. 645 et seq.

The rule of descent of an equitable estate in lands follows the legal rule. Cowper v. Lord Cowper (1734), 2 P. Wms. 736.

In former times there would have been no escheat of an equitable fee. The trustee was the person who would have been responsible for the performance of the feudal services. The right of the trustee to hold the land for his own benefit was taken away by the Intestates Estates Act, 1884 (47 & 48 Vict. c. 71) s. 4. The subject of escheat was discussed in Nos. 1 & 2 of “ Crown,” 8 R. C. 150. And see " Escheat," post.

AMERICAN NOTES.

In Long v. Hess, 154 Illinois, 482; 27 Lawyers' Rep. Annotated, 791, it was held that an ante-nuptial contract made in a foreign country, by which children of a former marriage of the wife were adopted as heirs of the husband, will not prevent his disposition of real property subsequently acquired in Illinois after his emigration thither, although the children were infants at the time of the emigration, incapable of consenting to a change of domicil or waiving any rights, because if they acquire the status of heirs, their inheritance must be in accordance with the laws of Illinois, by which the husband has an absolute right to dispose of his property by will to the exclusion of natural or adopted children. The Court relied on Story on Conflict of Laws, sect. 143; Fuss v. Fuss, 24 Wisconsin, 256; 1 Am. Rep. 180; Castro v. Illies, 22 Texas, 479; 73 Am. Dec. 277; Besse v. Pellochoux, 73 Ilinois, 285; 24 Am. Rep. 242; Lyon v. Knott, 26 Mississippi, 548; Kneeland v. Ensley, Meigs (Tennessee), 620; 33 Am. Dec. 168; Saul v. His Creditors, 5 Martin (Louisiana), N. S. 569 ; 10 Am. Dec. 212; Le Breton v. Miles, 8 Paige (New York Chancery), 261; Gale v. Davis' Heirs, 4 Martin O. S. (Louisiana), 645; and distinguished Decouche v. Savetier, 3 Johnson Chancery (New York), 190; Scherferling v. Huffman, 4 Ohio State, 241 ; 62 Am. Dec. 281, on the ground that the matter was there covered by express stipulation in the contracts.

No. 2. — Right d. Mitchell v. Sidebotham, 2 Doug. 759. — Rule.

No. 2. — RIGHT d. MITCHELL V. SIDEBOTHAM.

(K. B. 1781.)

RULE.

An heir can only be disinherited by the express words of a will, or by necessary implication of the intention to give the estate away from him. Where, therefore, a testator dies seized in fee of lands, but does not dispose of his entire interest therein, the heir will take whatever is not effectively devised, even in a case in which the testator has expressed a wish that the heir shall take nothing.

Right d. Mitchell v. Sidebotham.

2 Douglas 759-764.

Devise. Partial Intestacy. - Heir. By the following devise, viz. "I give and demise to A. her heirs and [759] assigns for ever, all lands at B., and I give and bequeath to A. aforesaid all my lands at C.," A. only takes an estate for life in the lands at C., and the reversion thereof shall descend, although the will begin with these introductory words, “For these worldly goods and estates wherewith it has pleased God to bless me,” and contained a legacy of 18. to the heir-at-law.

On an ejectment, tried at the last Spring Assizes for the County of Oxford, before HEATH, J., a special verdict was found, which stated : That one William Sparrowhawk, being seised in fee-simple of the premises in question, on the 10th of February, 1758, made and duly executed his will, and, thereby devised as follows: “For those worldly goods and estates wherewith it has pleased Almighty God to bless me, I give and dispose in manner following. Imprimis, I give and bequeath to my sister, Susannah Mitchell, one shilling. Item, I give and bequeath to John Mitchell, son of Susannah Mitchell, one shilling, to be paid by my executrix hereinafter named, within three months after my decease. Item, I give and bequeath to my loving wife, Susannah Sparrowhawk, all the rest of my goods and chattels, and personal estate whatsoever. Also, I do give and demise unto Susannah Sparrowhawk, my said wife, her heirs and assigns forever, all my lands lying in the parish of Bampton in the Bush, in the county

VOL. IX. - 19

No. 2. — Right d. Mitchell v. Sidebotham, 2 Doug. 759, 760.

of Oxford, and now in the occupation of Mary Sparrowhawk of Aston, in the parish aforesaid. And I give and bequeath to my loving wife aforesaid, all my lands, tenements, and houses, lying in the parish of Chipping Norton (to wit) the house I now live in, the Sign of the Plough, standing between the houses of W. W. and T. A. and now in my occupation, with the yard, garden, and out-houses, and all other appurtenants thereto belonging. Lastly, I do make and constitute Susannah Sparrowhawk, my said wife, full and sole executrix of this my last will and testament." That the testator died seised in fee, on the 20th of September, 1766, leaving the said Susannah Mitchell, one of the lessors of the plaintiff, his only sister and heir-at-law; and that the testator's widow married the defendant, Side botham, and died on the 1st of November, 1777.

The question upon this special verdict was, whether the lastmentioned premises in the will were, by the true construction thereof, devised to the widow in fee, or only for life?

Caldecott, for the plaintiff, insisted that only a life estate in those premises was given by the will, and that the reversion expectant on the death of the widow had descended to Susan.

nah Mitchell, the testator's sister and heir-at-law. He [* 760] * said, it was clear, that, by the words of the devise, taken

by themselves, nothing was given but an estate for life, and the Court would hold themselves bound by the legal operation of the words, and not indulge uncertain conjectures about the intent of the testator. The circumstances from which an intent to give an estate in fee might be attempted to be inferred, on the part of the defendants, were, first, the general introductory word at the beginning of the will, viz., “ For those worldly goods and estates, &c.,” and, secondly, the legacy of one shilling to the heir-at-law. The first, it might be said, indicated a determination to dispose of the complete interest in everything the testator had in the world, and the other a resolution to disinherit bis heir. But, as to the introductory words, they are almost, of course, in wills, and are merely descriptive and not meant to relate to the quantity of interest given in the things devised; and, as to the supposed disinheriting clause to the heir-at-law, it must be considered that the

1 In Maundy v. Maundy, B. R. T. 8 worldly estate wherewith it hath pleased Geo. II. Lord HARDWICKE laid great stress God to bless me." Cas. Temp. Lord on similar words, viz., “In respect to my Hard., 142, 143, 2 Str. 1020, 1021.

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