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DIGEST OF THE ENGLISH LAW REPORTS.

were entitled to share with D., E., and F. 7 Eq. 80.

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Corneck v. Wadman, Law Rep.

2. A testator gave his real and personal estate to trustees, on trust, to invest the annual proceeds of the real and personal estate during the time that any person beneficially interested in these estates should be under twenty-one, in order to accumulate the personal estate, and further to hold the whole property in trust for the first or eldest son then living of his daughter C., during his life, and after his death for his first and other sons in tail, with remainders over to C.'s other children. The will contained a proviso that such person as should be entitled to an estate tail in possession in the real estate should not be absolutely entitled to the personal estate till he should attain twenty-one; that the personal estate should absolutely belong only to such person as should first attain twentyone, and become entitled to an estate tail in possession in the real estate, and that in the mean time the personal estate should remain subject to the trusts declared. In 1816, Lord Eldon declared the direction to accumulate void for remoteness. At that time C. had several children. H., the eldest son, was, under the decree, entitled to, and had been in possession of, the rents and proceeds of the real and personal estate, and was still alive. His eldest son had died under twenty-one, leaving two brothers surviving, the elder of whom, E., had attained twenty-one. Held, that E., who was in possession of the first estate of inheritance, was, subject to his father's life-interest, absolutely entitled to the personal estate. - Holloway v. Webber, Law Rep. 6 Eq. 523.

See BOND, 1.

VOLUNTARY CONVEYANCE.

A creditor under a voluntary post obit bond is as much entitled to the benefit of the statute of the 13 Eliz. c. 5, against fraudulent conveyances, as any other creditor. Adames v. Hallett, Law Rep. 6 Eq. 468.

See FRAUDULENT CONVEYANCE.

VOTER.

1. At the election of town councillors there were four vacancies and five candidates. B., one of the four who had a majority of votes, was returning officer, and therefore ineligible. Held, that mere knowledge by the electors who voted for B. that he was returning officer, did not amount to knowledge that he was disqualified in law as a candidate, and that therefore the votes were not thrown away, so as to make the election fall on the fifth candidate. Queen v. Mayor of Tewkesbury, Law Rep. 3 Q. B. 629.

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2. A man cannot be convicted of personating "a person entitled to vote," if the person personated be dead at the time. - Whiteley v. Chappell, Law Rep. 4 Q. B. 147.

WARRANTY.

A., a manufacturer, agreed to supply to B. a quantity of shirtings according to sample, each piece to weigh seven pounds. The shirtings were delivered and accepted, but it was afterwards found that the weight was made up by introducing into the fabric fifteen per cent of clay, which rendered the goods unmerchantable. The presence of the clay could not be discovered by an ordinary examination of the sample. Held, that, had there been no sample, a warranty of merchant

able quality would have been implied, that the sale by sample excluded such warranty only with respect to matters discoverable by the sample, and that an action on the implied warranty could therefore be maintained. — Mody v. Gregson, Law Rep. 4 Ex. 49.

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WAY.-See INJUNCTION, 1, 2; LANDLORD AND TENANT, 4; NEGLIGENCE, 1.

WIFE'S EQUITY.

A married woman is not entitled to any equity to a settlement, till her debts incurred before her marriage have been provided for.- Barnard v. Ford, Law Rep. 4 Ch. 247.

WILL.

1. A will made by a seaman serving on board a naval ship, whilst she was permanently stationed in Portsmouth harbor, is the will of a seaman “being at sea,” within 1 Vict. c. 26, § 11.- Goods of M'Murdo, Law Rep. 1 P. & D. 540.

2. A. wrote out a will in the presence of M., read it aloud to him, and gave him a paper enclosed in an envelope, saying it was a copy of the will. On the same evening, A. wrote to M., that he had executed the will and appointed him executor. It was proved that A. executed a will about that time. The will could not be found at A.'s death. Held, that A.'s declarations at the time he made the will, and his letter to M., were admissible to prove its contents. — Johnson v. Lyford, Law Rep. 1 P. & D. 546.

3. A will contained several unattested interlineations, most of them single words, each of which was required to complete the sentence to which it belonged. They were apparently written with the same ink and at the same time as the rest of the will; but at the time of execution the body of the will was covered up by the testatrix, so that the witnesses could not see it. The court held that it was not bound to presume that these interlineations were made after execution, and it included them in the probate. - Goods of Cadge, Law Rep. 1 P. & D. 543. 4. The words in a will, “What is left, my books, and furniture, and all other things, I wish to be divided" among A., B., and C., are sufficient to carry the residue. - Ib.

5. A testator directed that all the charitable legacies given by him should be paid out of his pure personal estate, and he gave the residue of his real and personal estate to A. The only real estate was land in Madeira, which was sold under order of the court. Held, that the proceeds of the Madeira estate must be considered pure personalty, and that the pure personalty was exempted from contribution towards the payment of debts, of funeral expenses, and of costs of the administration suit. - Beaumont v. Oliveira, Law Rep. 6 Eq. 534.

6. Testator gave the income of a fund to his wife for life, on her death the fund to be divided among his "children then living or their heirs." Held, that the "heirs" of the children who predeceased the wife (including two who were dead at the date of the will) were entitled to share along with children who survived her; (2) that by "heirs" were meant statutory next of kin; (3) that such next of kin were to be ascertained, in the case of children, who survived the testator, at the time of the death of each child, but in the case of children

who predeceased the testator, at the time of the testator's death. — In re Philps's Will, Law Rep, 7 Eq. 151.

7. Testator gave his real and personal estate to his son D. (a lunatic), and to D.'s mother; "she to hold all in trust for him, with power to appropriate such sums as may not be necessary for her support and his, to her other son and daughter, J. and A., but so that they are employed for their support, and not to be risked in any way that would involve the destruction of the capital. And I direct that whatever may be preserved till the death of my wife be so placed in trust that D. may always be provided for, and J. and A., both of which I appoint trustees to this my will, together with my wife, that they may have a voice in such arrangements as may be needful; but in case of bankruptcy or insolvency, they to have no power over the property beyond its legal vestment for conveyance, &c., but to depend on their mother during her life to do for them what may be proper, and after her decease to receive its income, and after their decease their heirs." The wife died before the testator. Held, that (subject to making a due provision for D.), J. and A. were jointly entitled to the real estate in fee and to the personal estate for life. As to who was entitled to the personal estate after the death of J. and A., quære. Herrick v. Franklin, Law Rep. 6 Eq. 593.

See BOND; CHARITY; CONVERSION; CROSS REMAINDERS; DEVISE; ELECTION; EXECUTOR AND ADMINISTRATOR; EXECUTORY TRUST; HUSBAND AND WIFE, 3, 4; ILLEGITIMATE CHILDREN; LEGACY; MORTMAIN; NEXT OF KIN, 1; PERPETUITY; POWER, 1-3; PRINCIPAL AND SURETY, 1; REVOCATION OF WILL; TRUST, 1; VESTED INTEREST.

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SELECTED DIGEST OF STATE REPORTS.

[FOR the present number of the Digest, selections have been made from the following volumes of State Reports: 14 Allen (Massachusetts); 51 Barbour (New York); 3 Bush (Kentucky); 34 California; 34 Connecticut; 15 Gray (Massachusetts); 4 Kansas; 25 and 27 Maryland; 42 Missouri; 47 New Hampshire; 39 New York.]

ACCEPTANCE.-See FREIGHT; SALE, 1.

ACKNOWLEDGMENT. -See REGISTRY OF DEEDS.

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1. An agreement to make "a good and sufficient general warranty deed” of lands is an agreement to convey a good title to such lands. - Wellman v. Dismukes, 42 Mo. 101. .

2. The owner of the equity of redemption of land took an assignment of the mortgage to himself, "trustee, and his heirs and assigns." After his death, defendant agreed to buy the land of his heirs upon the delivery of a good and sufficient deed free from all incumbrances. Held, that, without a discharge of the mortgage or proof that the land was not subject to a trust, the heirs could not compel specific performance. Sturtevant v. Jaques, 14 All. 523.

3. If one who has agreed to convey land with release of dower is unable to procure a release of dower, the purchaser is entitled to a conveyance without such release of dower, with an abatement from the purchase-money of the value of the wife's interest at the time of the conveyance. — Davis v. Parker, 14 All. 94. See Hawralty v. Warren, 3 C. E. Green, 124; ante, 3 Am. Law Rev. 483. See ASSUMPSIT, 2; CONTRACT.

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ASSESSMENT. - See CONSTRUCTION OF INSTRUMENTS AND STATUTES, 1. -See BANKRUPT LAW, 1; CONFLICT OF LAWS, 2; MORTGAGE, 2.

ASSIGNMENT.

ASSUMPSIT.

1. A party whose property has been wrongfully taken, may waive the tort, and sue in assumpsit. - Eversole v. Moore, 3 Bush, 49. Contra, Ladd v. Rogers, 11 All. 209.

2. If a party enters upon land which he has contracted to purchase, with the

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SELECTED DIGEST OF STATE REPORTS.

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consent of the vendor, and the contract falls through, because the purchaser fails to pay as agreed, the vendor may treat him as a tenant at will, and bring assumpsit for use and occupation (or, it seems, he may maintain trespass).- Woodbury v. Woodbury, 47 N. H. 11.

See BET; TAX, 2.

ATTORNEY.-See BOUNTY.

-See BURDEN OF PROOF; CARRIER; INNKEEPER; PLEDGE.

BAILMENT.

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1. A voluntary assignment by debtors for the benefit of their creditors, which would have been good at common law, and was permitted by the State Insolvency Law, was held valid, although the United States Bankrupt Law was in force and applicable at the time of the assignment. - Hawkins's Appeal, 34 Conn. 548; Sedgwick v. Place, ib. 552 n.

2. A debt resulting from the neglect of an attorney-at-law to pay over to his client money which he has collected for him, is not a debt contracted, while acting in a fiduciary capacity, and was not as such excepted from being discharged by a certificate under the United States Bankrupt Act of 1841.- Wolcott v. Hodge, 15 Gray, 547.

See INSOLVENT LAW.

BET.

Money placed in the hands of a stakeholder on an illegal bet on elections, may be recovered by the depositor on demand at any time before it is paid over to the winning party.-Reynolds v. McKinney, 4 Kansas, 94; Jennings v. Reynolds, ib. 110.

BILLS AND NOTES.

1. Defendant signed a negotiable note as surety, and delivered it to his principal, on the condition that it should not be delivered to the payee or negotiated, until another party should have signed the same as co-surety. It was so delivered without such other signature; but the payee did not know or said condition, and there was nothing on the face of the note to put him on inquiry. Held, that defendant was liable. - Merriam v. Rockwood, 47 N. H. 81. See Hoboken City Bank v. Phelps, 34 Conn. 92. See BOND.

2. "I hereby waive demand, notice of non-payment an 1 protest, Z. R.," indorsed on a note by a third party before it is delivered by the maker, is a guaranty, and not within the Statute of Frauds. - Ford v. Hendricks, 34 Cal. 673. 3. The bona fide indorsee of a negotiable instrument who has received it in part payment of an antecedent debt, takes it discharged of antecedent equities of which he had not notice; Swift v. Tyson, 16 Peters, 1, approved. (BARTOL and COCHRAN, JJ., dissenting.) - Cecil Bank v. Heald, 25 Md. 562; May v. Quimby, 3 Bush, 96.

See CONSTRUCTION OF INSTRUMENTS AND STATUTES, 4-6; FORGED NOTE; ORDER, 2; STAMP, 4; SURETY.

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