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An executor of a testator cannot renounce the executorship of other persons of whom his testator may have been executor. — Brooke v. Haymes, Law Rep. 6 Eq. 25. See COLLISION; COMPANY, 2; SPECIFIC PERFORMANCE, 2.
EXECUTION. By 8 & 9 Vict. c. 16, $ 36, “If there cannot be found sufficient whereon to levy” an execution against a company, then such execution may be issued against any of the shareholders, up to a certain limit. Where there was property of the company which had not been taken on execution, but which was not sufficient to satisfy the plaintiffs' debt, held, that the latter were entitled to execution against a shareholder. — Ilfracombe Railway Co. v. Lord Poltimore, Law Rep. 3 C. P. 288. EXECUTOR AND ADMINISTRATOR. - See ADMINISTRATION; WILL, 6.
EXONERATION. In the will of one dying before 30 & 31 Vict. c. 69 came into operation, a direction, that all his debts should be paid “out of his estate," does not entitle a devisee of mortgaged land to have the mortgage debt discharged out of the residuary real estate, under Locke King's Act (17 & 18 Vict. c. 113).
But a specific devise of one of two estates comprised in the same mortgage, the other being left to pass by a residuary clause, will make the latter first liable in exoneration of the former. — Brownson v. Lawrance, Law Rep. 6 Eq. 1.
FACTOR. By the Factors' Act, 5 & 6 Vict. c. 39, § 1, " Any agent who shall thereafter be intrusted with the possession of goods” may make a valid pledge of the same, although the pledgee know of the agency. A party, to whom the plaintiffs had sent wine for sale, pledged the same to the defendants after his authority had been revoked and the wine demanded of him by the plaintiffs, but wrongfully detained by him. The bona fides of the defendants was not questioned. Held, that the pledgor was not "an agent, nor intrusted, within the meaning of the Fuentes v. Montis, Law Rep. 3 C. P. 268.
FALSE IMPRISONMENT. Defendant, upon whose premises a felony had been committed, acting on information given him by his own coachman, the most material part of which was derived from R., a neighbor's coachman, gave the plaintiff into custody on the charge, without making any personal inquiry of R. The plaintiff was living openly in the neighborhood, and it was not suggested that he was likely to run away. In an action of false imprisonment, the judge instructed the jury, that, under the circumstances, there was no probable cause; and the verdict being for the plaintiff, the Court of Exchequer Chamber refused to disturb it. — Perryman v. Lister (Exch. Ch.), Law Rep. 3 Exch. 197.
FOREIGN ATTACHMENT. See ATTACHMENT.
FRAUD. — See MORTGAGE, 1.
GAMING. Surrounding the inclosure of the grand stand for the Doncaster races was a strip of land, itself inclosed by a paling. Within this strip were placed temporary wooden structures with desks, at which were clerks. A man outside conducted the business of betting, and the clerks recorded the bets. Held, that such a structure was an “office" and a “place,” within 16 & 17 Vict. c. 119, $ 3, making penal the keeping of such. – Shaw v. Morley, Law Rep. 3 Exch. 137.
HIGHWAY. - See WAY.
ILLEGITIMATE CHILDREN. A testator, who had none but illegitimate children, left his property in trust, to divide the residue into four parts, and to hold one share each, on certain trusts, for each of his four children; and if the trusts should fail as to the share of either child, then the same was to be held for such persons as would be the next of kin of said child at his decease, under the Statute of Distributions. There were further trusts as to moneys to which a child should become entitled, “ by virtue of the provisions hereinbefore contained, as next of kin of the others, or other, of them." The trusts failed as to one child. Held, that there was an intestacy as to that share. The words “next of kin” could not be read as designating the surviving illegitimate children of the testator. - In re Standley's Estate, Law Rep. 5 Eq. 303.
INCOME. — See VESTED INTEREST.
INFANT. - See CONTRIBUTORY, 2.
AND PURCHASER OF REAL ESTATE.
INSANITY. See LUNATIC.
INSURANCE. A ship then at Calcutta was insured for three months from and after thirty days after her arrival there, and valued at £8,000. At the time the policy was made, bat unknown to the parties, the ship had been injured in a storm, so that the expense of the repairs would have exceeded its value when repaired. During the continuance of the risk, the ship was totally lost. Held, that the policy attached, notwithstanding the previous injury to the ship, and that, there being no fraud, the valuation of the ship in the policy was conclusive between the parties. - Barker v. Janson, Law Rep. 3 C. P. 303. INTEREST. See ACCOUNT; VESTED INTEREST.
JUDGE. Plea to a declaration for slander, that the defendant was a county court judge, and the words complained of were spoken by him in his capacity as such judge, while sitting in his court, and trying a cause in which the present plaintiff was defendant. Replication, that the said words were spoken falsely and maliciously, and without any reasonable, probable, or justifiable cause, and without any foundation whatever, and not bona fide in the discharge of the defendant's duty as judge, and were wholly irrelevant in reference to the matter before him. Held, that the action could not be maintained. — Scott v. Stansfield, Law Rep. 3 Exch. 220. JURISDICTION. — See ADMIRALTY; VENDOR AND PURCHASER OF REAL ESTATE. LACHES. — See SPECIFIC PERFORMANCE, 4.
LARCENY. 1. The prisoner, having paid a florin to the prosecutrix for purchases, asked her afterwards to give him a shilling for change, which he put upon the counter. She put a shilling down, when the prisoner said to her, “You may as well give me the two-shilling piece and take it all.” She then put down the florin, and the prisoner took it up. She took up her shilling, and the change for it put down by the prisoner, and was putting them into the drawer, when she saw she bad but one shilling of the prisoner's money. But as she was about to speak, the prisoner's confederate drew her attention, and both left the shop. Held, that the prisoner was guilty of larceny. - The Queen v. McKale, Law Rep. 1 C. C. 125.
2. The prisoner found a sovereign on a highway; believing it to have been accidentally lost, and with a knowledge that he was doing wrong, he at once determined to keep it, notwithstanding the owner should afterwards become known to him, but not expecting that the owner would. Held, on the authority of Reg. v. Thurborn (1 Den. C. C. 387; 18 L. J. m.c. 140), that the prisoner was not guilty of larceny. – The Queen v. Glyde, Law Rep. 1 C. C. 739.
LEASE. — See WINDING UP, 1.
LEGACY. Bequest of personal estate to unborn issue for life, with an ultimate limitation to the executors, administrators, and assigns of the survivor of the said unborn issue, gives an absolute interest to the survivor, and is not too remote. — Avern v. Lloyd, Law Rep. 5 Ch. 383.
See ADEMPTION; ILLEGITIMATE CHILDREN; MARSHALLING OF Assets; SatISFACTION; VESTED INTEREST; Will.
LICENSE. “We do grant to W. liberty and license to fasten” a coal hulk to certain moorings, until one month's notice be given. W." to pay towards the expenses of placing and maintaining and repairing the moorings,” £30 per annum. Held, to be a license, not a demise, and hence that W. was not liable to be rated as occupier. - Watkins v. Overseers of Milton-next-Gravesend, Law Rep. 3 Q. B. 350.
LIEN. - See VENDOR AND PURCHASER OF REAL ESTATE.
LIMITATIONS, STATUTE OF. 1. Trustees, under an act of Parliament, made a road fifty years before this suit, separated from a field by a hedge, a bank, and a ditch three feet wide, adjoining the field. This ditch became filled up, and was never re-opened; but a ditch a foot wide had been made since by the tenant of the field, and it had also become obliterated. The hedge had always been included in the lease of the field, and the tenants had always trimmed the same at their own expense, and testified that they had “held and used” the land within the same for more than twenty years (though apparently only by allowing their cattle to drink out of the ditch when open, and graze over its site when filled up), without the interference of the trustees. Held, there was no such adverse user as to give the owners of the land a title to the site of the ditch by the Statute of Limitations. — Searby v. Tottenham Railway Co., Law Rep. 5 Eq. 409.
2. A cheque is not an advance until it has heen paid, and the Statute of Limitations only runs from that time. — Garden v. Bruce, Law Rep. 3 C. P. 300.
3. The analogy of the Statute of Limitations cannot be set up by an executor, in answer to a claim founded on a breach of trust by his testator. — Brittlebank 1. Goodwin, Law Rep. 5 Eq. 545. See Trust, 2, 3.
Locus PENITENTIÆ. - See COMPANY, 1.
LUNATIC. A committee of the person of a lunatic had received an allowance of a certain sum a year for the maintenance of the lunatic, and another sum for the maintenance of her children, and swore that, after properly maintaining the lunatic, be had spent the remainder of her allowance on the maintenance of her children. Held, that he would not be ordered to account on the petition of the children. — In re French, Law Rep. 3 Ch. 317. See ADEMPTION. MARRIAGE. See CONFLICT OF Laws, 1; NULLITY OF MARRIAGE.
MARSHALLING OF ASSETS. A testator left £2,000 to plaintiff, and devised the residue of his real estate to the defendant. The personal estate was insufficient to pay debts and legacies. Hdd (reversing the decision of KINDERSLEY, V.C.), that the plaintiff had not a right of marshalling as against defendant, in consequence of the Wills Act, but that both should contribute ratably. - Heusman v. Fryer, Law Rep. 3 Ch. 420; &.c. Law Rep. 2 Eq. 627 (ante, 1 Am. Law Rev. 516). See POWER.
MASTER AND SERVANT. 1. It is no answer to a suit against directors of a company, for infringement of a patent, that the acts were done by workmen employed by defendants, but contrary to their orders; the infringement having taken place in defendants' works, and in the course of the proper duties of the workmen. - Betts v. De Vitre, Law Rep. 3 Ch. 429, 441.
2. W., the defendants' servant, was killed in consequence of the negligent construction of a platform by N., also in their employ. N.'s fitness for his place was not denied. The jury were instructed, that, if the platform was completed before W. was engaged, and if the defendants had delegated to N. their whole power and duty, without control on their part, W. and N. were not fellow-workmen, and the defendants would not be discharged on that ground. Held, erroneous. N.'s duty was a continuing one. A master is not made liable to a ser
vant for an injury caused by the negligence of a fellow-servant, by the simple fact that the latter is of a higher grade, as a superintendent. — Wilson v. Merry, Law Rep. 1 H. L. Sc. 326.
MISDEMEANOR. - See OBSCENE PUBLICATION.
MISTAKE. - See ESTOPPEL.
MORTGAGE. 1. A mortgage was made, by one of the defendants to the plaintiffs, of a certain number of branded sheep, with their “issue, increase, and produce.” A second mortgage was made to the other defendants, which included other sheep. While the mortgagor was in possession, he mingled the latter sheep with the former ; but fraud was not alleged in the bill. Held, that the first mortgage did not cover sheep afterwards brought upon the run; and that on the pleadings the plaintiffs had no claim against such sheep outside the mortgage. Fraud must be specifically charged. — Webster v. Power, Law Rep. 2 P. C. 69.
2. A., B., C., and D. gave a mortgage to the defendant, who covenanted to reconvey, on payment of the mortgage debt, to the mortgagors, as tenants in common, their heirs and assigns, or otherwise, as they should direct. Some changes were made in the respective interests of the mortgagors. A. died, and the debt was paid. A draft of a reconveyance to C. and D. was objected to, as containing false recitals. A deed, with no recitals, executed by B., C., and D., and the heir and executor of A., was thereupon tendered to the defendant, who refused to execute it, demanding that the agreements affecting the interests of the mortgagors should be recited. Held, that, although defendant was not bound to execute a deed with false recitals, he could not object to one concurred in by all parties in interest because it contained none. – Hartley v. Burton, Law Rep. 3 Ch. 365. See EQUITY PLEADING AND PRACTICE, 2; EXONERATE.
NEGLIGENCE. 1. The defendants provided gangways from the shore to ships lying in their dock, the gangways being made of materials belonging to the defendants, and managed by their servants. The plaintiff went on board a ship in said dock on business, at the invitation of one of the ship's officers; and, while he was there, defendants' servants moved the gangway, and negligently left it insecure, so that it gave way, and the plaintiff was injured on his return, without negligence on his part. Held (by Bovill, C.J., and BYLES, J.; KEATING, J., dubitante), that there was a duty on the defendants toward the plaintiff not to let the gangway be insecure without warning him, and that he could recover damages for his injuries. — Smith v. London & Saint Katharine Dock Co., Law Rep. 3 C. P. 326.
2. The plaintiff, while travelling by the defendants' railway, was injured by the fall of an iron girder, which workmen, not under the defendants' control, were employed in placing across the walls of the railway. It was proved that the work was very dangerous; that the defendants knew of the danger; that it was usual, when such work was going on, for the company to place a man to signal to the workmen the approach of a train ; and that this precaution was not adopted. Held, sufficient evidence to warrant a jury in finding that the defend