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the funds should be held for the benefit of her two sons and her two daughters, in equal fourths; the daughters for life, remainder to their “ children." In 1863, the advances had been more than £15,000; and the wife undertook by a third deed, also containing no power of revocation, to revoke the appointment of 1851, appointed the trust fund of 1848, and £20,000 more advanced to the firm by her, after the death of herself and her husband, to her children as before. The husband died in 1865. Subsequently, in 1865 and 1866, the wife undertook to make alterations in the appointments of 1843, also by deeds without power of revocation. In 1867, she made a will, undertaking to revoke all her appointments; gave her real estate to her son J., subject to a payment of £10,000 to her son W. She gave and appointed all her interest as it stood on the books of the firm of P. & Son, and certain railroad stock specified, and all the residue of her personal estate, in trust to her two daughters for life, remainder to their children or remoter issue." She had at this time a balance on the firm books in her favor; and the railroad stock, amounting to £10,000, had been purchased by the firm, by her direction, from a portion of the balance to her credit on said books. In 1873, the son J. died, leaving children and a will dated 1867, by which he left all the real estate to which he was or should be in any way entitled at his death to his oldest son. In 1874, the wife died, possessed of real estate of greater value than the amount she had appointed to her son J., in 1851, and of personal estate exceeding the £35,000 appointed in 1848 and 1863, as aforesaid; but she had only £10,000 in railroad stock. After her death, the £10,000 mentioned in her will was paid to W. The two daughters above named both had children. The action was begun to obtain a declaration of the rights of the various parties under the deeds and the will. Held, that all persons claiming under the will were bound to elect between the benefits conferred by the deeds and those conferred by the will; that J.'s estate must elect and make good to the disappointed legatees what was meant for them in the will; and that the real estate left to J. by his mother was liable for this amount, exclusively. As to the rights created under the deed of 1863, if any, no decision would be made, as it might prejudice the interests of the children of the daughters thereunder. — Pickersgill v. Rodgers, 5 Ch. D. 163.
EsTATE FOR LIFE. — See CONSTRUCTION, 2.
ESTATE TAIL. — See CONSTRUCTION, 2.
EVIDENCE. 1. Action for possession of real estate. Plaintiff proved that W., the purchaser, died in 1868 seised in fee, without issue and intestate; that the descendants of W.'s paternal grandfather were all dead, and that plaintiff was heir-at-law of W.'s paternal grandmother. He put in evidence wills and other documents, in which no mention was made of anybody of nearer kin than plaintiff, except those proved to be dead. On W.'s death, an advertisement was put in the newspapers for his heir-at-law; but nobody able to prove any thing came forward, except the coheiresses of the mother of W., to whom the defendants had attorned. The defendants showed, by wills and other documents, that the father of W.'s paternal grandfather was J. W.; that he had another son, N., alive in 1755; and he had a sister, Mrs. M., a widow, and alive in 1755; and that the wife of J. W. was S. B. The defendants claimed that the plaintiff should give some evidence as to the extinction of these lines of descent which were preferable to his own. Held, that there was evidence for the jury to find for the plaintiff. — Greaves v. Greenwood et al., 2 Ex. D. 289.
2. By 32 & 33 Vict. c. 68, § 2, the parties to a suit for breach of promise of marriage may give evidence; but no plaintiff shall recover, “unless his or her testimony shall be corroborated by some other material evidence in support of such promise." Plaintiff swore that the defendant, by whom she was with child, had promised to marry her, and he denied it. Her sister testified that she upbraided him for his conduct; and he said “he would marry her, and give her any thing,” but he must not be exposed. After plaintiff was brought to bed, the sister said she overheard him offer her money to go away, and the plaintiff said to him, “ You always promised to marry me, and you don't keep your word.” The jury found for the plaintiff for £100. Held, that there was not sufficient evidence, according to the statute, to support the plaintiff's case. — Bessela v. Stern, 2 C. P. D. 265.
3. Indictment for obtaining money under false pretences. The prisoner was time-keeper, and C. was paying clerk, to a colliery company. Every fortnight the prisoner gave C. a list of the days worked by each man; and C. entered them in a time-book, together with the amount due each one. On pay-day, the prisoner had to read from the time-book the number of days so entered, and C. paid them off. While the prisoner read, C. looked on the book also. Held, that C. might refresh his memory as to the sums paid by him to the workmen, by referring to the entries in the time-book. — The Queen v. Langton, 2 Q. B. D. 296.
4. Gift of residue in trust to A. for life, remainder for all or any of her children who should attain twenty-one or marry. A. died in 1876, having had four children. One child, a minor, petitioned to have herself declared the only person entitled, on the ground that the other children of A. were illegitimate. The evidence of A.'s husband that, after the birth of the petitioner, A. left him, and that they had never since been or lived together as husband and wife, but that A. had lived with another man, was admitted; and the petitioner was declared solely entitled. — In re Yearwood's Trusts, 5 Ch. D. 545. See NEGLIGENCE, 2; Will, 5, 7.
EXECUTORS AND ADMINISTRATORS. — See WILL, 1.
FACTOR. H., a commission merchant and tobacco dealer, sold, through his agent K., to the plaintiff, a lot of tobacco lying in bond at the dock. The tobacco, according to the usage practised between the parties, remained at the dock uncleared in the name of H.; but the transaction was entered in H.'s books as a sale; and Dec. 3, 1875, an invoice of sale by H. to the plaintiff was sent to the latter, and, Dec. 31, he paid for the tobacco in full. The usage had been in such cases for the plaintiff to receive the tobacco in instalments, as he wished it to manufacture, in which case he would send dock dues and charges for the portion he wanted, and that portion would be discharged and forwarded by H.; but in this case none of the lot had been sent, and March 9, 1876, H. absconded, and, March 15, was adjudged bankrupt. Meantime, Jan. 26, 1876, he had pledged the tobacco to the defendants, and given them the dock warrants, and transferred the tobacco into their name. He represented it to be his property, and they had no knowledge that the plaintiff claimed it. The court had power to draw inferences of fact. Held, that the plaintiff was entitled to the tobacco; and that H. had no authority to sell or pledge the tobacco while lying in the dock in his name, but only to clear and forward it to the plaintiff. - Johnson v. The Crédit Lyonnais, 2 C. P. D. 224.
FALSE PRETENCES. Indictment for obtaining money under false pretences. Prisoner was a pedler, and induced a woman to buy some packages, which he called good tea, but which turned out to be three-quarters foreign and deleterious substances. The jury found that he knew the character of the stuff, and that he falsely pretended it was good, with intent to defraud. Held, that the conviction must stand. — The Queen v. Foster, 2 Q. B. D. 301.
FERRY. A ferry cannot maintain an action for damage to its traffic against a railroad or bridge company which has provided a foot or other bridge, and thus drawn off travel from the ferry. Reg. v. Cambrian Railway Co. (L. R. 6 Q. B. 422) overruled. - Hopkins et al. v. The Great Northern Railway Co., 2 Q. B. D. 224.
FIDUCIARY RELATION. — See COMPANY, 8.
FRAUD. — See COMPANY, 5, 7, 8.
Freight. Charter-party by the defendants to convey a cargo of railway iron from England to Taganrog, Sea of Azof, or “ so near thereto as the ship could safely get," consigned to a Russian railway company. The ship arrived, Dec. 17, at Kertch, a port three hundred miles by sea and seven hundred by land from Taganrog, where the captain, the plaintiff, found the sea blocked up with ice, and unnavigable till April. Against the orders of the charterers, who notified him that they would hold him responsible, he proceeded to unload the cargo; and, there being nobody to receive it, he put it in charge of the custom-house authorities there. The consignees claimed it; and, on their producing the bill of lading and charter-party, it was delivered to them, against the captain's claim that it should be retained for the freight. A receipt was given to the effect that the cargo was received “ on the power of the charterparty and the bill of lading." Held, affirming the judgment of the Queen's Bench Division, that the captain was entitled to no freight, not even pro rata.
– Metcalfe v. The Britannia Iron Works Co., 2 Q. B. D. 423 ; s. c. 1 Q. B. D. 613 ; 11 Am. Law Rev. 282.
GENERAL AVERAGE. A captain burnt some spars and a part of the cargo, to keep the donkey engine running to pump the ship in bad weather, and thus saved her. The ship sailed properly equipped with coals; but they ran short, owing to unexpected bad weather. Held, a case for general average. — Robinson v. Price, 2 Q. B. D. 295; s. C. 2 Q. B. D. 91, 11 Am. Law Rev. 695.
GIFT TO EXECUTOR. — See BEQUEST, 1.
HUSBAND AND WIFE. 1. A wife cannot commit larceny from her husband, no matter whether she has been guilty of adultery or not. — The Queen v. Kenny, 2 Q. B. D. 307.
2. The wife of G. received a legacy, given her for her separate use, in the form of a banker's draft, to her order for the amount. She indorsed it to her husband; he indorsed it in blank, and deposited it to his own account. He died a few days after. Held, that the wife was entitled to the amount of the draft. — Green v. Carlill, 4 Ch. D. 882.
3. W. sold to T. a claim, which he had by right of his wife, to certain engravings, once the property of Turner, the artist, who died intestate in respect of them. W., T., and W.'s wife died in the order named, and W.'s executor's brought suit against T.'s representatives to set aside the sale. Held, on the preliminary objection that the wife's representative was the party who should have sued, that the suit was properly brought by W.'s executors. — Widgery v. Tepper, 5 Ch. D. 516. See EVIDENCE, 4.
ILLEGITIMACY. - See EVIDENCE, 4.
INSURANCE. The ship F. was insured while lying in the docks under repair, for " the space of twelve calendar months,” from Jan. 24, 1872, to Jan. 23, 1873. The clause as to time was written in upon a printed blank, designed for a voyage policy; and some of the words, such as “present voyage,” inconsistent with the tenor of a time policy, had not been erased. The vessel was found to have been unseaworthy by the jury, though without the knowledge of the owner. Held, that the policy was a pure time policy, notwithstanding the printed words not erased; and the court reiterated the rule laid down in Gibson v. Small (4 H. L. C. 353), and repeated in subsequent cases, that in time policies there is no implied warranty of seaworthiness. The insured fails to recover, only when he had knowingly sent the ship to sea in an unseaworthy condition. — Dudgeon v. Pembroke, 2 App. Cas. 284.
INTEREST. — See Bonds; Trust, 1.
Joint WILL. — See Will, 6.
LANDLORD AND TENANT. Defendant hired plaintiff's furnished house from May 7. She went to the house on that day, and had her horses put in the stable; but she perceived a bad smell, left the house, and removed her horses at once. The house was found to be untenantable from bad drainage, and the plaintiff put it in order, and tendered it to defendant, May 20. She refused to accept it. Held, that she was not liable. When a furnished house is let, there is an implied condition that it is tenantable at the beginning of the term. If it prove otherwise, the tenant may throw up the bargain. - Wilson v. Finch Hatton, 2 Ex. D. 336. See LEASE, 1, 2.
LARCENY. — See HUSBAND AND WIFE, 1.
LEASE. 1. Lease not under seal for three years, with right in the tenant to remain on three and a half years more at the same rate, held to be within the Statute of Frauds, and of 8 & 9 Vict. c. 106, & 3. - Hand v. Hall, 2 Ex. D. 318.
2. B. conveyed an eating-house in lease, and covenanted that he would not let any house in that street “ for the purpose of an eating-house;" but it was provided that the covenant should not bind B.'s heirs or assigns. He then let another house in the street, and the lessee covenanted with him that he would not carry on any business there without a license from B. Both leases were assigned, and the assignee of the first brought action against the assignee of the second and B., to restrain them, respectively, from carrying on and allowing to be carried on the business of an eating-house. Held, that the covenant was not broken. – Kemp v. Bird, 5 Ch. D. 549.
See LANDLORD AND TENANT; STATUTE OF LIMITATIONS, 2.
LEGACY. — See DEVISE, 1.
LIBEL AND SLANDER. Defendant was agent for C. & Co. and M. & Co., proprietors of certain musical and dramatic copyrights, and received the fees for their representation in theatres and concert-rooms. The plaintiffs were singers, and put the following advertisement in the Era newspaper: “ The Sisters Hartridge have great pleasure in thanking Messrs. Chappell & Co., Messrs. Metzler & Co., and others, for their kind, unhesitating permission to sing any morceaux from their musical publications." Seeing this, defendant wrote to two concerthall proprietors, where the plaintiffs were singing, to the effect that the said advertisement was calculated to mislead them into incurring penalties under the Copyright Act, as the said C. & Co. and M. & Co. were not authorized to grant such permission; and he had been assured by them that they had not given such permission, and that the said proprietors had a poor opinion of concert-hall performances; and he added that he knew the lady advertisers had no such intention of so misleading them. Held, on a motion to set aside a non