less, according to the number of children of the first marriage. The deed provided that if the brothers of B. should, respectively, come into possession of the estates, " "either before or after their marriage with any woman or women," they might charge the estate with "the like sum or sums of money for the portion or portions of their child or children (other than an eldest son), as B. is entitled to do before or after his marriage with any woman or women after the death of his first wife." Held (Lord CRANWORTH, dubitante), that this was an absolute power which, with reference to a younger brother of B. succeeding to the estates, was not subject to the restrictions and contingencies which applied to B. — Earl of Harrington v. Countess (Dowager) of Harrington, Law Rep. 3 H. L. 295. See CONVERSION; ELECTION, 1; HUSBAND AND WIFE, 4; Mortgage, 3. PRACTICE. -See COSTS; EQUITY PLEADING AND PRACTICE; INTERROGATORIES. PRESCRIPTION.

The owner of a several fishery in a navigable and tidal river claimed a right to use stop-nets to catch fish. The nets had been in use for forty-five years up to 1862; there was no evidence of previous user, nor was there any evidence to the contrary. Held, that the user for forty-five years did not raise a conclusive presumption of law that the nets had been used from time immemorial. — Holford v. George, Law Rep. 3 Q. B. 639.

See LANDLORD AND TENANT, 4; LIGHT; NAVIGABLE WATERS.

PRESUMPTION.

By an indenture dated 1598, a farm was demised for 1,000 years, with a covenant by the lessor to convey the fee to the lessee within five years if required. The farm was assigned as leasehold in 1777, since which time it had been three times devised as freehold, and on the court rolls of the manor, of which the farm formed part, the land was called freehold. Held (reversing the decision of the Master of the Rolls), that the farm remained leasehold as between the heir and administrator of an intestate owner. - Pickett v. Packham, Law Rep. 4 Ch. 190.

See PRESCRIPTION; WILL, 3.

PRINCIPAL AND AGENT.-See BILLS AND NOTES, 2; FACTOR; Sale, 1.

PRINCIPAL AND SURETY.

1. A surety on a bond to secure a debt was secured by another bond of indemnity against all sums he might be called on to pay as such surety. This second bond was given by one A., who had died, having by will devised certain property specifically on trust to pay the debt. The creditor having applied to the surety, the surety had recourse to A.'s executors, who said that they had no funds, and were unable, under the will, to raise money by sale of A.'s estate without a decree of the court. Held, that though the surety had paid nothing, yet he could maintain a bill against the executors for administration, payment of the debt, and indemnity; and also that the bill need not be filed on behalf of all the creditors of A. — Wooldridge v. Norris, Law Rep. 6 Eq. 410.

2. A third party joined in a mortgage as surety, but for the payment of interest only, and the principal and surety covenanted jointly and severally with the creditor to pay the interest. Afterwards the debtor executed a deed whereby

he assigned all his property in trust for his creditors, and the creditors released him from all debts, with a proviso that nothing contained in the deed should affect any mortgage held by any creditor, or any right or remedy which any creditor might have against any other person in respect of any debt due by the debtor either alone or jointly with any other person. Held, that the deed gave only a qualified release, and did not extinguish the debt, and that the remedy of the creditor against the surety for interest was not barred. - - Green v. Wynn, Law Rep. 7 Eq. 28; s. c. Law Rep. 4 Ch. 204.

See GUARANTY.

PRIORITY.

1. Where a prior equitable title is established by the court against one who took an equitable mortgage by deposit of the title deeds: Semble, the court will order him to deliver up the deeds, though he acquired them for value and without notice from the legal owner. — Newton v. Newton, Law Rep. 4 Ch. 143.

2. The owner of a ship mortgaged her to G., who transferred the mortgage to A. Both mortgage and transfer were registered. Subsequently G. paid off A., and an entry discharging the mortgage was made in the registry. After a year A. retransferred to G. this mortgage, and the registrar wrote in the margin of the register, that a re-transfer only had been intended. G. then transferred the mortgage to W. by way of security, and the transfer was registered. In March, 1865, G. paid off W., but no re-transfer was executed. In May, 1865, the shipowner gave G. another mortgage, which was registered. In November, 1865, this mortgage was transferred to B., but was not registered till July, 1866. In March, 1866, G. agreed with W. that G.'s original mortgage should be a security for the balance due from G. to W. Held, that the first mortgage was discharged by the entry of discharge, and could not be revived, and that the new agreement between G. and W., not being registered, was of no avail against B. — Bell v. Blyth, Law Rep. 4 Ch. 136.

See CONFLICT OF LAWS; HUSBAND AND WIFE, 2; PARTNERSHIP, 2.

PRIVILEGE. - See ARREST; LIBEL.

PRODUCTION OF DOCUMENTS. See ATTORNEY, 3, 4.

PROHIBITION.
1.— - See JURISDICTION.

PROMISSORY NOTE.-See BILLS AND NOTES, 2, 3; INTEREST, 1, 2.

PUBLIC OFFICER. See STAMPS.

QUIA TIMET. -See PRINCIPAL AND SURETY, 1.

RAILWAY.

1. A company were empowered by a statute, passed in 1832, to make and use a railway for the passage of wagons, engines, and other carriages. The company ran passenger trains drawn by locomotive steam-engines, having taken all reasonable precautions to prevent the emission of sparks. The plaintiff's haystack having been fired by sparks from an engine, held, that, as the company had not express powers by statute to use locomotive steam-engines, they were liable at common law for the damage. -Jones v. Festiniog Railway Co., Law Rep, 3 Q. B. 733.

DIGEST OF THE ENGLISH LAW REPORTS.

713

2. A railway carriage in which the plaintiffs (husband and wife) were passengers to R., on reaching R. overshot the platform on account of the length of the train. The passengers were not warned to keep their seats, nor was any offer made to back the carriage to the platform. After several persons had got out, the husband did so without any communication with the railway's servants, and the wife, standing on the steps of the carriage, took his hands and jumped down, and in so doing strained her knee. There was a foot-board between the steps and the ground which she did not use, but there was no evidence of carelessness on her part in the manner of descent. It was daylight. In an action against the railway company for the injury: Held (Exch. Ch. per BYLES, MELLOR, MONTAGUE, SMITH, and HANNEN, JJ.; KEATING, J., dissentiente), that there was no evidence for the jury of negligence in the defendants, and that the plaintiffs' negligence contributed to the accident. - Siner v. Great W. Railway Co., Law Rep. 4 Ex. 117.

See NEGLIGENCE, 2; VENDOR'S LIEN.

RAPE.

A woman permitted the prisoner to have connection with her, under the impression that it was her husband. Held, that in the absence of evidence that she was unconscious at the time the act of connection commenced, it must be taken that her consent was obtained, though by fraud, and that therefore the prisoner was not guilty of rape. - The Queen v. Barrow, Law Rep. 1 C. C. 156.

REMAINDER.-See CROSS REMAINDERS; TENANT FOR LIFE AND REMAINDER

The 1 Vict. c. 26, § 22, enacts that no will which shall be in any manner revoked shall be revived by a codicil, unless the codicil "shows an intention to revive the same." Where a testator made a will, and then made a second will revoking the first, held, that the first will was not revived from the mere fact that a codicil subsequent to both wills imported to be a codicil "to the last will and testament of me (the testator) which bears date" the date of the first will, if there is no other evidence of intention to revive the first will. — Goods of Steele, Law Rep. 1 P. & D. 575.

SALE.

1. The plaintiff, in England, sent an order to P., in Brazil, to buy cotton for him. P. bought cotton, and shipped it in the defendant's vessel; the invoice was made out as shipped on account and risk of the plaintiff, but the bill of lading was made deliverable to P.'s order or assigns. P. wrote a letter to the plaintiff, advising the shipment, saying that P. had drawn on the plaintiff for the amount in

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favor of P.'s agent, "to which we beg your protection." The letter purported to enclose the invoice and the bill of lading. The invoice was enclosed, but the bill of lading, indorsed in blank by P., was sent with the bill of exchange to P.'s agents in England. The agents sent the two documents to the plaintiff, who retained the bill of lading, but returned the bill of exchange unaccepted, on the ground that P. had not complied with his order. The plaintiff presented the bill of lading to the defendant, but he, being advised by P.'s agents, refused to deliver it to him, and said that he should deliver it to P.'s agents on a duplicate bill of lading. On a case stated, the court having power to draw inferences of fact: Held, that P.'s intention was that the property should not pass till the bill of exchange was paid, and that therefore the defendant was justified in his refusal. - Shepherd v. Harrison, Law Rep. 4 Q. B. 196.

2. On the 9th of May, the plaintiff, through his brokers, contracted to sell shares in a company to the defendants, stock jobbers, the settling day being the 15th of May. Before the settling day the defendants, on a day called the nameday, in accordance with the custom of the stock exchange, gave to the plaintiff's broker the names of seventeen persons as ultimate purchasers. The plaintiff executed accordingly seventeen deeds of transfer, and on the settling day by his broker handed them and the share certificates to the defendants, who thereupon paid the agreed price. The company had, in the mean time, stopped payment, and was ordered wound up. The seventeen transferees had paid their purchasemoney to the defendants and had received the deeds of transfer, but had not executed them, and the plaintiff was obliged to pay calls on the shares. On a bill by the plaintiff against the defendants, claiming indemnity against the calls; Held (reversing the decree of MALINS, V.C.), that the contract must be interpreted according to the rules of the stock exchange, and that after the defendants had paid the purchase-money, and given the names of transferees to whom the vendor executed transfers, and after these transferees had received the transfers and paid the purchase-money, the liability of the defendants ceased, and that the bill should be dismissed. — Coles v. Bristowe, Law Rep. 4 Ch. 3; s. r. Grissell v. Bristowe. (Exch. Ch., reversing judgment of the Common Pleas) Law Rep. 4 C. P. 36. See also Hawkins v. Maltby, Law Rep. 4 Ch. 200.

3. But the liability of the jobber does not cease, if the person named by him as ultimate purchaser is not a person who is bound to take the shares. - Maxted v. Paine, Law Rep. 4 Ex. 81.

4. When persons contract to buy or sell shares through brokers and jobbers on the stock exchange, they contract according to the custom of the exchange, by which the buyer or seller of shares undertakes to buy or sell from or to the person whose name is given to him on name-day. - Hodgkinson v. Kelly, Law Rep. 6 Eq. 496.

5. Plaintiff, on Nov. 2, through his brokers, sold one hundred shares to the defendants, stock-jobbers. The sale-note expressed that the sale was “subject to the rules of the stock exchange, and with registration guaranteed," also that payment was to be made on Nov. 15; shortly before this date defendants sent to the plaintiff's brokers the name of H. as transferee with the purchase-money, and the transfers were executed by the plaintiff to H. The transfers not having been executed by H., the defendants obtained a decree for specific performance by H. of the contract with them and for indemnity. Meanwhile the company had

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DIGEST OF THE ENGLISH LAW REPORTS.

been wound up, and the plaintiff was placed on the list of contributories. He then filed this bill against the defendants for a decree for specific performance and indemnity. The plaintiff having died, his executor, having been placed on the list, revived the suit. The estate was insufficient: Held, (1) that the stockjobbers were principals; (2) that the facts did not show a novation of the original contract, and that the plaintiff was entitled to the decree prayed for; (3) that the right to indemnity was not limited to the amount of dividend which the estate could pay, but that the executor had all the rights which his testator, if living, would have had. - Cruse v. Paine, Law Rep. 6 Eq. 641.

6. The plaintiff sold twenty shares on May 10, on the stock exchange to one P., a jobber for the settling-day, May 15. The defendant, on May 2, bought of P. twenty shares in the same company for the same day; and on May 14, having learned that the plaintiff was to supply the shares, instructed P. to give the name of C. as transferee. The transfer was made accordingly, and executed by the plaintiff and C. C. neither paid nor agreed to pay the defendant any sum in respect to the shares, and the defendant had authority to give the name of C. as transferee. The company being wound up, the plaintiff was obliged to pay calls, the liquidators refusing to register the transfer. Held, that the plaintiff was not entitled to be indemnified by the defendant against the calls. Torrington v. Lowe, Law Rep. 4 C. P. 26.

See CUSTOM; ESTOPPEL; MORTGAGE, 3; SPECIFIC PERFORMANCE; STOPPAGE IN TRANSITU; TRUST, 3; VENDOR AND PURCHASER OF REAL ESTATE; WARRANTY.

SEDUCTION.

The plaintiff's daughter, a minor, left his house and went into service. Her master dismissed her at a day's notice, and the next day, on her way home, the defendant seduced her. Held, that as soon as the service was put an end to by the master, whether rightfully or not, the girl intending to return home, the right to her services revived, and the plaintiff could maintain the action. - Terry v. Hutchinson, Law Rep. 3 Q. B. 599.

1. A charter-party provided that the ship should proceed to a certain port, and there, or as near thereto as she could safely get, deliver the cargo in the customary manner, but said nothing as to the time to be occupied in the discharge. While the ship was unloading, the authorities, owing to a threatened bombardment, refused for several days to allow any of the cargo to be unloaded. Held, that the contract implied by law was that each party would use reasonable diligence in performing that part of the duty of unloading which fell on him, and was not that the discharge should be completed within the time usual at the port; and that therefore the ship-owner could not recover damages from the charterer for the delay. Ford v. Cotesworth, Law Rep. 4 Q. B. 127.

2. A shipper can sue in admiralty the owners of the vessel for damage to his