certain height, but neglected to do so; owing to an extraordinary tide the river overflowed the wall and caused damage to plaintiff's property: Held that, even if, ás contended by the company, the wall was sufficient to keep out ordinary tides, yet as it was not of the height required by the Act, the company were liable.-Nitro-Phosphate, &c., Co., v. London and St. Katherine's Dock Co., 37 L.T. 330.

Will:

(xl.) Ch. Div. V. C. M.-Ambiguity-Parol Evidence.-Where a testator bequeathed a fund in trust for his daughter for life with remainder for her children by any husband other than Thomas F., evidence was admitted of testators' repugnance to his daughters courtship by Henry Thomas F., whom she afterwards married, in order to show that he must have been the person intended to be described in the will, and not Thomas F., who was aged fifty, and married.-Re Surplus moneys of Wolverton and Roade, 37 L.T. 573; 26 W.R. 138.

(xli.) C. A.-Annuity-Alienation-Forfeiture-Bankruptcy.-Devise in realty charged with annuity in favour of A., but if he should " do or permit

anything whereby it should be aliened, then it should cease: A. failed to comply with a debtor's summons and was adjudicated bankrupt: Held that the annuity thereupon ceased.-Ex parte Eyston Re Throgmorton, 37 L.T. 447; 26 W.R. 181.

(xlii.) Ch. Div. V. C. H.-Charitable Bequest-Mortmain Act.-Debenture stock regulated by Companies Clauses Act, 1863, is an interest in land within Mortmain Act.-Attree v. Hawe, 37 L.T. 399.

(xliii.) Ch. Div. V. C. B.-Charitable Bequest-Mortmain-Building.—A bequest of money to a charity to be expended on building is void, unless it is expressly stated in the will that no part is to be expended in purchase of land, or that the buildings are to be on land already in Mortmain. Cox v. Davie, 47 L.J. Ch. 72; 37 L.T. 457; 26 W.R. 74. (xliv.) Ch. Div. M. R.-Charitable Bequest-Marshalling.-Testatrix gave residue of her estate and effects, after conversion into money, to trustees of a charity, and declared that legacies savouring of charitable gifts should be paid out of such parts of her personalty as should be lawfully applicable to the purpose, "in which event my real estate, if any, shall be first charged with and be liable to the payment of my debts and legacies not savouring of charitable gifts": testatrix died possessed only of leaseholds and pure personalty: Held that there was a sufficient direction to marshall the assets in favour of the charity.-Re Fitzgerald, Adolph v. Dolman, 26 W.R. 53.

(xlv.) Ch. Div. V. C. M.-Construction-Die without leaving Issue.-Devise to A. for life, remainder to A.'s husband for life, remainder to A.'s children living at death of testatrix equally, provided that shares of A.'s children dying without leaving issue should go over to survivors leaving issue: Held that dying without leaving issue meant so dying during lifetime of tenants for life.-Besant v. Cox, L.R. 6 Ch. D. 604; 25 W.R. 789. (xlvi.) Ch. Div. V. C. M.-Construction-Die without leaving Issue.Bequest equally among testator's children "with benefit of survivorship in case of death without leaving issue": testator had six children at date of will, one of whom died leaving issue in testator's lifetime: Held that the five children of testator who survived him took the fund absolutely on his death.-Johnson v. Smaling, 37 L.T. 392.

(xlvii.) C. A.-Construction-Executory Trust.-Direction that realty should "be limited and devolve" upon A. for life, remainder to A.'s eldest son for life, remainder to his issue male, with remainders over: Held that the trusts were not executory, but that on A.'s death her eldest son was entitled in tail male.-Re Nelley's Trusts, 26 W.R. 88.

(xlviii.) C. A.-Construction-Gift to Class-Period of Vesting.-Bequest of fund in trust as to one moiety for daughter J. for life, and as to the other moiety for daughter A. for life, with remainders over for the benefit of their respective children: Held, on the construction of the will, that the interests of the children did not vest till the death of the tenant for life.-Selby v. Whittaker, 37 L.T. 514; 26 W.R. 117.

(xlix.) C.

A.—Construction-Inconsistency-Absolute Gift—Gift over.—Where an absolute gift to J. was followed by a gift over of the property, if J. should not dispose of it, and J. died in testator's lifetime: Held, upon the construction of the whole will, that the gift to J. was intended to be for life, with power of appointment, and that the gift over was intended to to take effect if J. should die before testator, or surviving, should not exercise the power.-Re Stringer's Estate, Shaw v. Jones-Ford, L.R. 6, Ch. D. 1.

(1.) C.

A.-Construction-Misdescription.-Devise of six specified meadows to testator's son for life, remainder as he should appoint: son, by his will, appointed "all that part or parts of the property comprised in and devised by the hereinbefore-recited will of my late father as is and are therein described as," &c. : the description omitted two of the meadows : Held that the omitted meadows passed.-Travers v. Blundell, L.R. 6 Ch. D. 436; 36 L.T. 341.

(li.) C. A.-Construction-Next of Kin-When Class to be Ascertained.Decision of V.C.B. (see Will, xxiii., p. 38) reversed, and Held that the next of kin were to be ascertained at the death of the testator.-Mortimore v. Slater, 37 L.T. 520; 26 W.R. 134.

(lii.) Ch. Div. V. C. B.-Construction-Omission-Inference.-Testator bequeathed his residue to A., B., C., D., and E., equally during their respective lives, and the shares of A., B., and C., after their respective deaths, to their respective children, and the share of D., after her death, to the children of E., making no further direction as to the share of E. : Held an accidental mistake and omission, and that a gift of D.'s share to D.'s children, and of E.'s share to E.'s children, must be supplied.-Re Redfern, Redfern v. Bryning, L.R. 6 Ch. D. 133; 47 L.J. Ch. 17. (liii.) Ch. Div. V.C. H.-Construction-Power-Illegitimate

Child.-Gift to testator's widow for life, “and to be distributed to the testator's family at her decease as she might think proper :" Held that the power was exercisable by will or deed, and in favour of an illegitimate child of testator. -Humble v. Bowman, 47 L.J. Ch. 62.

(liv.) Ch. Div. M. R.-Construction-Precatory Trust.-Bequest of residue to A. and B., "my desire being that they shall distribute such residue as they think will be most agreeable to my wishes:" Held that A. and B. were beneficially entitled.-Stead v. Mellor, L.R. 5 Ch. D. 225; 46 L.J. Ch. 880; 36 L.T. 498; 25 W.R. 508.

(lv.) C. A.-Construction-Residuary Legatee-Realty.-Testator commenced will" as to my estate," and after specific devises and bequests appointed A. and B. his "residuary legatees: " Held that realty not specifically disposed of passed to A. and B. by the will.-Hughes v. Pritchard, L.R. 6 Ch. D. 24; 46 L.J. Ch. 840; 37 L.T. 259; 25 W.R. 761.

(lvi.) Ch. Div. F. J.-Construction-Specific Legacy-Ademption.-A testator subsequently to date of his will invested part of money therein bequeathed as a specific legacy, in purchase of stock of which he died possessed: Held that the stock so purchased passed by the specific legacy. -Morgan v. Thomas, L.R. 6 Ch. D. 176; 46 L.J. Ch. 775; 36 L.T. 689; 25 W.R. 750.

(lvii.) C. A.-Construction-" Survivor."-Bequest of a fund for the equal benefit of testator's children, the daughters' shares being settled on them for their separate use, with remainder to their children: the will con

tained a gift over of share of children who should die before the period of distribution to the "surviving" children: Heid that "surviving" must be read "other."-Lucena v. Lucena, 37 L.T. 420.

(lviii.) Ch. Div. M. R.—Construction-Technical words—“Seised.”—Devise of realty "of which I may be seised:" testatrix at her death was entitled to freeholds of which A. had taken wrongful possession: Held that these freeholds did not pass by the will.-Leach v. Gay, L.R. 6 Ch. D. 496; 46 L.J. Ch. 499; 25 W.R. 574.

(lix.) Ch. Div. M. R.-Conversion

- Re-conversion

Election.-Testator

gave all his realty to A. and B. on trust for sale, the proceeds to become personal estate, and he gave all his personal estate to C. absolutely. A. died in testator's lifetime; B. renounced probate; testator died, seised of, inter alia, a farm partly freehold, partly copyhold; C. was never admitted, but received rents through an agent: Held that the legal estate in testator's realty passed to C. who was his heir-at-law, and that C. had by his conduct elected to take the farm as realty.-Re Gordon's Estate, 46 L.J. Ch. 794; 37 L.T. 627.

(lx.) Ch. Div. V. C. M.-Shelley's Case-Outstanding Legal Estate.-Land, the legal estate in which was vested in mortgagees, was devised to trustees and their heirs upon trust, to pay the rents to W. during her life, and after her death to her husband during his life, and on death of the survivor to E. if then living, but if E. should be then dead then the estate to go to the use of such person as W. should appoint by will, and in default of appointment to the uses of the heirs of W.: Held that the rule in Shelley's Case applied, and that the estates of W. coalesced.Re White and Hindle's Contract, 37 L.T. 574; 26 W.R. 124.

(lxi.) Ch. Div. M. R.-Trust-Division-Separate use.-A will purporting to execute a trust to divide a fund, made a proper division, but directed that the shares of married women should be to their separate use: Held a valid direction.-Willis v. Kymer, 26 W.R. 161.

Quarterly Digest

OF

ALL REPORTED CASES,

IN THE

Law Reports, Law Journal Reports, Law Times Reports, and Weekly Reporter.

By L. G. GORDON ROBBINS and HENRY M. KEARY, Barristers-at-Law.

FOR FEBRUARY, MARCH, AND APRIL, 1878.*

Administration:

(xvii.) Ch. Div. M. R.-Costs-Higher and Lower Scale-Additional Rules, August, 1875, Ord. 6, r. 1.—In administration actions the higher scale of costs applies where the gross value of the estate amounts at the time of the institution of the action to £1,000 in estimating this value, the actual value of an equity of redemption, or the proceeds of its sale, is to be regarded, and not the value of the entire mortgaged estate.-Re Sanderson, L.R. 7 Ch. D. 176; 26 W.R. 309.

(xviii.) Ch. Div. M. R.-Creditor's Action--Payments by Executor after Notice-Judicature Act, 1873, s. 25, sub-s. 11.-Where an executor or administrator pays any creditor in full after the commencement of a creditor's administration action, of which he has notice, but before judgment, he will be allowed such payment on passing his accounts.— European Assurance Society v. Radcliffe, 26 W.R. 417.

(xix.) Ch. Div. V. C. B.-Foreign Domicil-Lex fori-Interest.-In the administration of assets in this country of a testator who had a foreign domicil, though the property will be distributed according to the law of the place of domicil, the payment of interest will be governed by the practice of this Court.-Hamilton v. Dallas, 26 W.R. 326.

(xx.) Ch. Div. V. C. H.-Mortgage of Realty and Personalty-17 & 18 Vict., c. 113.-When real and personal property are comprised in one mortgage, the mortgage debt must, as between devisees of the realty and legatees of the personalty, be borne rateably by the real and personal estate subject to the mortgage.-Trestrail v. Mason, L.R. 7 Ch. D. 655; 47 L.J. Ch. 249; 26 W.R. 260.

(xxi.) P. D. A. Div.-Next-of-kin a Married Woman-Husband Abroad.The sole next-of-kin of an intestate was a married woman living apart from her husband, who was abroad and his address unknown: she took, under her marriage settlement, the first life interest in her after-acquired property administration was, with her consent, granted to the trustees of her marriage settlement.-In the goods of Maychell, 47 L.J. P.D.A. 31; 26 W.R. 439.

(xxii.) P. D. A. Div.-Next-of-Kin a Lunatic-Grant to Stranger.—The sole next-of-kin of an intestate being a lunatic, administration was granted, *Cases reported only in the Law Times Reports and Weekly Reporter for April 27th are postponed till next Quarter's Digest.

H

with the consent of the committee and the next-of-kin of the lunatic, to a stranger in blood to the intestate.-In the goods of Hastings, 47 L.J. P.D.A. 30.

Agreements and Contracts:

(xvi.) Q. B. Div.-Breach-Damages-Remoteness.-In an action for breach of contract in improperly repairing a seagoing vessel, the plaintiffs were held entitled to damages for loss sustained by the detention of the vessel by reason of the improper repairs.-Wilson v. General Iron Screw Colliery Co., 47 L.J. Q.B. 239; 37 L.T. 789.

(xvii.) H. L.-Fraud-Trover.-Blenkarn was convicted of obtaining goods under false pretences from plaintiffs by means of orders signed so as to look like "Blenkiron & Co.," a well-known firm: the defendants had bona fide purchased the goods from Blenkarn and resold them: Held (affirming the Court of Appeal, L.R. 2 Q.B.D. 96; 46. L.J. Q.B. 233; 25 W.R. 417) that the property in the goods never passed from the plaintiffs, and they were entitled to recover.--Cundy v. Lindsay, 6 W.R. 406. (xviii.) C. P. Div.-Letters of Credit-Bill of Exchange.-Letters of credit promising to accept a bill of exchange do not create a contract with the person advancing money on the faith of them, unless an intention that they should be used for that purpose can be proved or is to be presumed from the conduct of the giver of the letters.-Union Bank of Canada v. Cole, 47 L.J. C.P. 100.

Banker :

(ii.) Ch. Div. V. C. M.-Bill of Exchange--Discount and Transfer-Notice. -Plaintiffs, bankers at Lima, agreed with G. & Co., bankers in London, that plaintiffs should be at liberty to draw bills on G. & Co. at 90 days to £100,000, and to cover their drafts within 90 days from acceptance with bills on other persons: on February 13th, plaintiffs remitted to G. & Co. bills for £5,000, and the bill of lading of some gold eagles, sending the gold at the same time: on March 3rd, G. & Co. being in difficulties, arranged with defendants for an advance of £30,000 on the security of (inter alia) remittances from plaintiffs not yet received: on March 16th, on receipt of plaintiffs' remittances, they, at defendants' request, gave them one of the bills remitted and the bill of lading of the gold in repayment of the advance: Held that though G. & Co. had, as between themselves and plaintiffs, improperly dealt with the securities, the defendants had acquired a good title for value to the gold and the bill of exchange: not affected by the fact that the defendants' manager was a former manager of G & Co. and knew of their agreement with plaintiffs.-Banco di Lima v. Anglo-Peruvian Bank, 38 L.T. 130; 26 W.R. 233.

(iii.) P. C.-Branches of Bank-Transfer and Entries between.-Plaintiff paid into a branch of the defendants' bank at S., a promissory note drawn by H., and payable at their branch at M.: it was in due course transmitted to M., and a transfer draft in favour of plaintiff sent to the branch at S.: but before plaintiff was informed of this, the manager at M. requested the manager at S. to cancel the transfer draft, and returned the note dishonoured, and he thereupon informed the plaintiff : the note had H.'s name struck through and was marked paid, but had also a memorandum "cancelled in error": Held that the bank could not be charged with the receipt of the money.-Prince v. Oriental Bank Corporation, L.R. 3 App. 325; 38 L.T. 41.

Bankruptcy :

(lviii.) Ch. Div. F. J.-Abatement—Ord. 50, r. 1.-After notice of trial, the sole plaintiff filed a petition for liquidation, under which a trustee was appointed on the action coming on for trial no one appeared for the