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ments. Consignments of coffee having been thus made, and the factors having accepted bills against them, the factors pledged the coffee, together with certain securities of their own, with one T., to secure a debt due from them to him. The factors became bankrupt, and T. sold the coffee (which produced more than enough to cover the bills drawn against it), and enough of the other securities to satisfy his debt. Held, that A. was entitled as against the factors estate to have the remaining securities in T.'s hands marshalled, and to have a lien thereon for the balance due him on account of the coffee. - Ex parte Alston Law Rep. 4 Ch. 168. MASTER. — See BOTTOMRY BOND; COLLISION, 3 ; FREIGHT, 1, 2.
MASTER AND SERVANT. To an action for breach of an indenture of apprenticeship, the defendant, the apprentice's father, pleaded that the apprentice “was and is prevented by act of God, to wit, by permanent illness, happening and arising after the making of the indenture, from remaining with or serving the plaintiff during all said term." Held, on demurrer, a good plea in excuse of performance, without any averment that the plaintiff had notice of the illness before the commencement of the action. - Boast v. Firth, Law Rep. 4 C. P. 1.
See CONTRACT; SEDUCTION.
MESNE PROFITS. 1. In an action of trespass for mesne profits the plaintiff proved that the defendant had had a lease of the premises (which was not produced), and that he had paid a certain yearly rent; but when or for how long did not appear. He also gave in evidence a judgment by default in a previous action of ejectment for the same premises. By the writ in ejectment, which was dated Feb. 5, 1868, the plaintiff had claimed title from March 28, 1867. Held, that on all this evidence it sufficiently appeared that the defendant was in possession of the premises at the date of the writ of ejectment, and that the plaintiff was entitled to mesne profits from that time.
Per KELLY, C.B. The judgment by default taken alone is no evidence of the defendant's possession at any time. Per CHANNELL and CLEASBY, BB., such judgment is prima facie evidence that the defendant was in possession at the date of the writ, but not for the period during which the plaintiff claims title in his writ. - Pearse v. Coaker, Law Rep. 4 Ex. 92.
2. In an action for mesne profits the declaration alleged that the plaintiff'“ had incurred great expense in recovering possession of his land.” Held, that under these words he was entitled to recover the costs of a previous action of ejectment.- 1b. MISREPRESENTATION. - See HUSBAND AND WIFE, 2 ; INJUNCTION, 5;
VENDOR AND PURCHASER OF REAL ESTATE, 3.
MONEY HAD AND RECEIVED. Where a person transfers to a creditor on account of a debt, whether due or not, a fund actually existing or accruing in the hands of a third person, and noti
fies the transfer to the holder of the fund, and the holder promises to pay the transferee, an action for money had and received lies at the suit of the transferee against the holder. — Griffin v. Weatherby, Law Rep. 3 Q. B. 753.
MORTGAGE. 1. A debenture purporting to be an assignment of the undertaking and of all the real and personal estate of a company, to secure the repayment of a sum of money at a future date, creates a valid charge on all personal estate existing at the date of the debenture, but not on subsequently acquired personal estate. — In re New Clydach Sheet and Bar Iron Co., Law Rep. 6 Eq. 514.
2. A. mortgaged the lease of the house in which he lived, together with two policies of insurance, to the defendant, to secure the repayment of £250 and interest, and also the premiums. The mortgage deed contained a clause by which the mortgagor attorned tenant from year to year to the mortgagee in respect to the house at the yearly rent of £175. The mortgagor having become bankrupt, the mortgagee distrained for a year's rent under the attornment clause, though at that time the landlord's rent of £115, the interest on the money advanced, and the premiums, had all been paid. Held, on demurrer, that the attornment clause was not intended to enable the mortgagee to repay himself any of the capital advanced, but only to secure the payment of rent, interest, and premiums. Hampson v. Fellows, Law Rep. 6 Eq. 575.
3. A mortgage deed contained a power to the mortgagee, on default, to sell and dispose of the premises by public sale or private contract for such price as could reasonably be gotten for the same. Default having been made, the mortgagee sold the premises and credited the mortgagor with the whole of the purchase-money; but in fact received only a part, and allowed the remainder to remain on mortgage given by the purchaser. Held, that the transaction being bona fide, the execution of the power was valid, and the original mortgagor had no equity of redemption. — Thurlow v. Mackeson, Law Rep. 4 Q. B. 97.
See DEMAND; DEVISE, 2; EXECUTOR AND ADMINISTRATOR, 2; FRIENDLY SOCIETY ; HUSBAND AND WIFE, 2; LANDLORD AND TENANT, 1, 3; PRIORITY.
MORTMAIN. A legacy payable out of both personalty and the proceeds of the sale of realty is, while unpaid, within the statute of mortmain; and it cannot be bequeathed by the legatee to a charity, nor can it be apportioned so as to give the charity that part of the legacy which would be paid out of personalty. — Brook v. Badley, Law Rep. 3 Ch. 672. See WILL, 5.
NAVIGABLE WATER. A claim for anchorage dues on a navigable arm of the sea cannot be supported in respect of the mere ownership of the soil; but such ownership, together with the maintenance of buoys from time out of mind, and the benefit to the public therefrom, are a sufficient consideration to support the claim, if the dues have been paid time out of mind. (Exch. Ch.) – Free Fishers of Whitstable v. Foreman, Law Rep. 3 C. P. 578.
NECESSARIES. The plaintiff sold to the defendant, a minor, a pair of jewelled solitaires, which might be used as sleeve-buttons, worth £25, and an antique silver goblet, worth £15, which last the plaintiff knew the defendant intended for a present. The defendant was the younger son of a deceased baronet, with no establishment of his own, and an allowance of £500 a year. In an action for the price of these articles, the question whether they were necessaries was left to the jury, sło found that they were. Held (Exch. Ch.), that the question whether they were necessaries was one of fact, but like other questions of fact should not be left to the jury unless there was evidence on which they could reasonably find that they were ;
that there was no such evidence in this case, and that a nonsuit ought to have been ordered.
Whether evidence th the defendant was sufficiently provided with such articles, though the plaintiff did not know it, was admissible, quære. — Ryder v. Wombwell, Law Rep. 4 Ex. 32.
NEGLIGENCE. 1. The defendant, under a contract with the Metropolitan Board of Works, opened a public highway for the purpose of constructing a sewer; some months afterwards, the plaintiff's horse was injured by stumbling in a hole in the road. The defendant had properly filled up the road, and the hole was owing to the natural sụbsidence which sometimes takes place, sooner or later, after such an excavation. Held, that the defendant was not liable for the damage, for that there was no obligation on him to do more than properly reinstate the road. (Exch. Ch.) - Hyams v. Webster, Law Rep. 4 Q. B. 138.
2. The plaintiff, while travelling by the defendant's railway, was injured by the fall of a girder, which workmen, not under the defendant's control, were employed in placing across the walls of the railway. It was proved that the work was very dangerous, though none of the witnesses had ever known of a girder falling; that it was the practice when such work was going on over a railway, for the company to place a man to signal to the workmen the approach of a train; and that this precaution was not taken; but there was no evidence that the company's servants knew that the girder was being moved at the time the train was passing, or knew the means used for moving it. On a case in which the court were at liberty to draw inferences of fact: Held (in the Exchequer Chamber, reversing the judgment of the Court of Common Pleas), that though the evidence of negligence was such that it could not have been withdrawn from a jury, yet, that as a fact, the defendants were not guilty of negligence. - Daniel v. Meropolitan Railway Co., Law Rep. 3 C. P. 591. See BILL OF LADING; COLLISION, 2, 3; DAMAGES, 1; RAILWAY, 2; SHIP, 2. NEGOTIABLE INSTRUMENTS. See BILLS AND NOTES.
NEW TRIAL. – See SLANDER,
NEXT OF KIx. 1. A legacy was given on trust for F., a married woman, for life, then to her husband for life, and after the death of the survivor, for such persons “related by blood” to F. as she should appoint, and, in default of appointment, for those who would be “the personal representatives” of F. in case she had died sole and unmarried. A codicil referred to the above trusts as being for the benefit of the “relations and next of kin” of the testator's daughter. F. died during the testator's life. Held, that “personal representatives” meant statutory next of kin. - In re Gryll's Trusts, Law Rep. 6 Eq. 589.
2. Personal property was settled by a marriage settlement, after other trusts, in trust for such person or persons as at the wife's death should be her next of kin “under and according to" the Statute of Distributions. Held, that the next of kin took as tenants in common, and not as joint-tenants. — In re Ranking's Settlement Trusts, Law Rep. 6 Eq. 601.
See WILL, 6. NOTICE. See COVENANT, 1; EXECUTOR AND ADMINISTRATOR, 2; HUSBAND
AND WIFE, 2; MASTER AND SERVANT; PRIORITY.
NOVATION. — See SALE, 5.
NULLITY OF MARRIAGE. Impotence does not render a marriage void, but only voidable, and the validity of a marriage cannot be impeached on that ground after the death of one of the parties. Therefore the right of a husband to administer his wife's estate cannot be disputed on the ground of the nullity of the marriage by reason of his impotence. — A. v. B., Law Rep. 1 P. & D. 559.
OFFICER. — See ESCAPE; STAMPS.
PARLIAMENT. - See LIBEL.
PARTNERSHIP. 1. A court of equity will not decree specific performance of a contract for partnership, where the plaintiff has a remedy at law, where there are no legal difficulties in the way, which the court can remove, and where there has been no part performance. — Scott v. Raymond, Law Rep. 7 Eq. 112.
2. B. and H. owned a newspaper in equal shares. B. assigned his share to W., who had the assignment registered under the Copyright Act. W. knew at the time of the purchase that there was a suit between B. and H. as to the ownership of the newspaper, and after the purchase he allowed B. and H. to carry on the newspaper as partners. Held, (1) that W. could only take B.'s share, subject to the equities between the partners; and (2) that the registration was futile, as there was nothing analogous to copyright in the name of a newspaper. — Kelly v. Hutton, Law Rep. 3 Ch. 703. See TENANCY IN COMMON, 1.
PENALTY. See BOND, 2; BROKER.
PERPETUITY. 1. Gift by will to a woman for life, remainder to her children for life, and a gift over to the grandchildren. Held, that evidence that at the date of the will,
the woman was past child-bearing was not admissible to show that children then living were meant, so as to make valid the gift over, which otherwise was vaid for remoteness. — In re Sayer's Trusts, Law Rep. 6 Eq. 319.
2. A testator directed trustees to apply so much as was necessary of the income of his residuary personal estate for the maintenance of A., a lunatic, and to invest any surplus, and treat it as part of the testator's personal estate, which was given over after A.'s death. Held, that under the Thelluson Act, the dino tion to invest the surplus was void beyond the period of twenty-one years, and that the testator's next of kin were entitled to the accumulations. — Matheus 1. Keble, Law Rep. 3 Ch. 691.
Pilot. - See COLLISION, 1-3; SHIP, 4. PLEADING. -See COLLISION, 5; EQUITY PLEADING AND PRACTICE; INDICT
MENT, 2; MASTER AND SERVANT; MESNE PROFITS, 2.
PLEDGE. - See Factor; MARSHALLING OF ASSETS.
POWER. 1. A., having power to appoint funds by deed or by her last will in writing or any writing purporting to be or being in the nature of her last will, to be signed in the presence of two witnesses, died intestate, but left in an envelope an unattested memorandum signed by herself " for my son and daughters. Not having made a will, I leave this memorandum, and hope my children will be guided by it, though it is not a legal document. The funds I wish divided" in a certain way. Held, that this memorandum showed no intention to execute the power, and that therefore the court could not give it validity as an appointment. — Garth v. Townsend, Law Rep. 7 Eq. 220.
2. By a marriage settlement, a fund was settled on such trusts as the wife should by will appoint, and, in default of appointment, in trust for such persons as should, at the death of the survivor of the husband and wife, be the next of kin of the wife. By her will, purporting to exercise the power, the wife gave
her property to her executors therein named, and gave several legacies which • did not exhaust the fund. She died in her husband's lifetime. Held, that the
fund was by the appointment all converted into the wife's general personal estate, and that the surplus, after paying legacies, belonged to her husband, and not to those entitled under the settlement in default of appointment. — Brickenden F. Williams, Law Rep. 7 Eq. 310.
3. A. devised his estate to B. for life, without impeachment of waste, and then to B.'s issue, and in default of issue over. The will gave B., or any person in possession under the limitations of the will, power to work or to lease the mines. B. was to pay over to trustees the rents and profits of the mines, and with them B. was to buy, with the consent of the trustees, other estates, of which she was to receive the rents during her life. While in possession, B. made a lease for sixty years. Held, that the lease was not warranted by the power, for that on the whole will it appeared that A. intended to restrict B. to making a lease for her life only. – Vivian v. Jegon, Law Rep. 3 H. L. 285.
4. A settlement contained, among other things, a power for B., in case of the death of his first wife and his marrying again, to charge the estates with portions for the younger children of his second marriage, the amounts to be greater or