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prima facie binds the principal; but the warranty of a person commissioned merely to deliver the thing sold, does not, unless an express authority to warrant be shown. Where, therefore, a horse having been sold by A. to B., A.'3 servant, on delivering the horse to B., made certain statements, and signed a receipt for the price, containing a warranty: Held, that A. was not bound by s'uch statements and receipt, no express authority to the servant to give a warranty being shown.— Woodin v. Burford, 2 C. & M. 391.
i. (Right of incumbent to, for carrying away tithe.) A rector cannot claim a permanent right of way for the purpose of carrying away his tithe, unless by prescription or grant. And the owner or occupier of the Soil, provided he does it bona fide for the convenient management of the farm, has a right to vary and stop up a way by which tithe has been carried, although he thereby puts the tithe owner to great inconvenience by compelling him to use a more circuitous route for the purpose. (2 Eagle & Y. 310; 6 Esp. 103; 2 Phill. 391, 399.)—James v. Dods,<i C. & M. 266; 4 Tyr. 101.
2. (Title conferred by user—Prescription Act—Pleadings.) The assignee of a lease, granted for three lives by a bishop in right of his see, used for more than twenty years, without interruption, a way to and from his premises over a close called "The Acre." The defendant, who was in possession of the Acre under a similar lease, obstructed the way. In an action on the case for this obstruction, Held, that since the 3 & 4 Wm.4, c. 71, the plaintiff's user conferred no title as against the reversioner (the bishop), nor his lessee, or persons claiming under the lessee during the term. ,
A declaration claiming a right of way " by reason of the possession" of certain premises, is supported by proof of the reservation of the way in a conveyance of the premises from a tenant for life to the plaintiff,— Wright v. Walker, 4 Tyr. 502.
(Proof of execution.) A bill was filed in Chancery against several defendants, whereupon an issue of devisavit vel non was directed, in which the defendants in Chancery were plaintiffs, and the plaintiff in Chancery defendant, respecting a will of M., mentioned in the proceedings, devising real property. The issue was found in the affirmative, and the bill in Chancery was dismissed on the motion of the plaintiff in equity. At the trial of the issue, B., one of the three attesting witnesses to the will, swore to its execution. The plaintiff in Chancery afterwards brought ejectment on his own demise, as heir at law of M., against one of the defendants in Chancery, who claimed as devisee of M., for the property which had been the subject of the issue. B. was then dead. After this action was commenced, judgment was entered up on the issue from Chancery, in the court of law in which it had been tried. An order of court was made in the action of ejectment, that the shorthand writer's and judge's notes of the evidence of such witnesses on the trial of the issue as should be dead before the trial of the ejectment, should be read on the latter trial. On that trial the defendant gave evidence of these several proceedings, and proved B.'s former evidence from the shorthand writer's notes, and then produced a will, which was identified as the one produced on the first trial: Held, that (whether on general principles of law, or with reference to the order of court above mentioned), this was sufficient proof of the execution of the will, although another attesting witness was alive, and in court ready to be examined; but that the proceedings would not have been of themselves proof of the execution, without proof of the evidence of the deceased witness.— Wright v. Doe d. Talham, (in the Exchequer Chamber,) 1 Ad. & E. i; 3 N. & M. 268.
WRIT OF ERROR.
(Waiver of, by agreement.) The plaintiff and defendant, by their respective attornies, agreed that a question disputed between them should be raised by demurrer, in order to a more speedy adjustment of it; and that whatever the decision of the court on the argument might be, each party should pay his own costs, and such decision should bind the parties. Judgment having been given on the demurrer for the plaintiff: Held, that it was not competent for the defendant to sue out a writ of error thereon.—Brown v. Lord Granville, 4 Moo. & S. 333.
WRIT OF TRIAL ACT.
1. The writ of trial under the 3 & 4 Wm. 4, c.42, s. 17, is to be directed to the judge of the court of record in those places in which there is a court of record, and to the sheriff where there is no such court.
A writ of trial was directed to the mayor of C, and the cause was tried by his deputy. The Court refused to set aside the proceedings on a suggestion that the cause ought to have been tried by the mayor himself, it not being shown that he had no power to appoint a deputy.— Clark v. Marner, 3 Moo. & S. 171.
2. The sheriff or judge to whom a cause is sent under this act, has no power of certifying under the 43 Eliz. c. 6, to deprive a plaintiff of costs. — Wardroper v. Richardson, 1 Ad, & E. 75.
(Containing 5 Simons, Part 2; 5 Bligh, Part 5; and 1 Mylne & Keene, Part 3.) ANNUITY.
A testatrix gave to L., during his life, an annuity, to be paid and payable half-yearly out of real estate, clear of all taxes and outgoings: Held, that the annuitant took clear of the legacy duty.—Louch v. Petcrt, M. & K. 489.
A testator, by his will, devised his real estate to trustees, their heirs and assigns, on trust to sell, and declared that the money arising from the sale should sink into and become part of his personal estate, and he gave and bequeathed the same, and all his stock, crop, goods and effects whatsoever, to the trustees, their executors and administrators, on trust, after converting the same into money, and paying all his debts, funeral, and testamentary expenses, to pay certain legacies, and to dispose of the residue in manner therein mentioned: Held, that this was substantially a devise of the real estate for the payment of all debts, and within the fourth section of the Statute of Frauds; and, therefore, that the produce was equitable assets. (Silk v. Prince, 1 Bro. C. C. 138; Barker v. May, 9 B. & C. 489.)—Soames v. liobinson, M. & K. 500.
1. (Fraud.) A trader, on his marriage, received a fortune of 5,000/. with his wife, and settled a sum in stock in trust for himself for life, with limitations over for the benefit of his wife and children in the event of his becoming bankrupt or insolvent. And it was provided, that, if he should survive his wife, and the issue of the marriage should fail, and he should then be or should have been a bankrupt, fifteen sixty-sixths of the stock should belong to the wife's next of kin in blood. No part of the 5,000/. was settled; but the whole of the settled fund was the husband's property, and it did not appear, from any of the expressions in the settlement, what was the consideration for the provision as to fifteen sixty-sixths of the stock: Held, that the limitations over in the event of the bankruptcy of the husband were good as to fifteen sixty-sixths of the trust fund, that being the proportion of the trust fund which the wife's fortune would have purchased, but were void as to the remainder. (Higginson v. Kelly, 1 Ball & B. 252.)—Lester v. Garland, Sim. 205.
2. (Certificate.) M. granted an annuity to L. for the life of L., and covenanted to charge it upon all such properly as he, M., should, in the event of A.'s decease, become entitled to by will or otherwise. M. became a bankrupt, and obtained his certificate, and afterwards A. died, having bequeathed an annuity in trust for M.: Held, that L. was entitled to have the annuity bequeathed to M., charged with the payment of the annuity granted to L., notwithstanding the bankruptcy and certificate of M.—Lyde v. Wynn, M. & K. 683. 3. (Act of Bankruptcy.) A trader, who was greatly embarrassed, conveyed his freehold and leasehold estates to trustees, on trust to sell or mortgage, and to apply the proceeds as he should direct. It appeared that the deed was executed for the purpose of effecting an arrangement with the trader's creditors, for which he was himself considered to be incompetent from ill health: Held, that the deed, not having been executed with intent to defeat or delay creditors, was no act of bankruptcy. (Berney v. Davison, 1 Bro. & Bing. 408.)— Greenwood v. Churchill, M. & K, 546.
Where an information contains general sweeping charges, the Court will direct a reference to the attorney-general, to prevent the defendant's being unnecessarily harassed by any oppressive inquiry founded on those charges. (Attorney-General v. Corporation of Carlisle, 4 Sim. 275.)— Attorney-General v. Merchant Tailors' Company, Sim. 288.
A., having a leasehold estate, on which he had covenanted to erect buildings within a certain time, bequeathed it, and also his personal estate, subject as to the latter to the payment of his debts, to trustees, for B. for life, with several limitations over. A. died before the time expired, leaving the covenant unperformed in part: Held, that no fund having been provided by the testator for the performance of the covenant, it must be satisfied out of his general personal estate.—Marshall v. Hollozvay, S. 196.
EVIDENCE. See Tithes, 2.
If an executor or administrator, under an order in a cause, pays into Court money which he had received from the deceased's estate, his right to retain a debt, due to him from the deceased,is not prejudiced.—Langton v. Higgs, Sim. 228.
H., a widow, entitled to considerable funded property on the intestacy of an aunt, who was imbecile, induced M., a barrister, on a promise of onethird of the aunt's property, to assist her in obtaining a commission of lunacy against the aunt, and getting her appointed committee; and a deed, dated in 1818, assigning the third to M., was executed accordingly. M. effected their object, with the assistance of his brothers, and in doing so incurred considerable expense. M. was also instrumental in reclaiming a son of H., and procuring for him a commission in the army. On the death of the lunatic, H. paid half of the proceeds of the property to M., and, subsequently, the other half, and mutual releases were executed In 1822, H. filed a bill against M., stating that she had brought an action
against M. for the proceeds of two-thirds of the property, and praying that he might be restrained from setting up the release as a defence to the aption, and that it might be cancelled as fraudulent. M., in his answer, stated various promises made by H. to give him a moiety instead of a third of the property in consideration of his services; contending that he was entitled to one-half, but admitting that he was a trustee of the other half for the benefit of H. In 1823 H. filed an amended bill, making the brothers of M. parties, but still praying against himself only an account and relief as to two-thirds of the property. H. afterwards filed another bill, praying that the deed assigning one-third might be cancelled, and an account taken of all monies paid to M., without any allowance for services. It was on appeal decreed accordingly.—Maccabe v. Hussey, Bl. 716,
HUSBAND AND WIFE.
Where a lady, pending a treaty of marriage, made a voluntary assignment of part of her property to her sister, arid there was no evidence or allegation of concealment from the husband, or of his ignorance before marriage of the assignmept having been made; it was held, that he was not entitled to set aside the assignment on the ground of fraud on his marital right,— St. George v. Wake, M. & K. 610.
A., being entitled to a reversionary fund in Court, assigns it to B., and afterwards to C. C. obtains an order that the fund shall not be transferred without notice to him, and the order was entered at the Accountant-general's Office: Held, that, B. having taken no such steps, C. obtained a priority.— Greening v. Beckford, Sim. 195.
Where a father had absconded to America, taking with him his infant child, whom he would not suffer to return to this country, the Court permitted the guardian of the.infant to apply annually for an allowance for his maintenance and education in America, the guardian producing certificates, or other evidence, of the plan of education of the infant.actually adopted, and the sums expended for his maintenance and education during the year then last past. (Logan v. Fahlie, Jac. 193.)—Stephens v. Jumes, M. & K. 627.
In interpleading suits, it is not necessary for co-defendants to enter into evidence as against each other, the Court always directing an inquiry or an action upon the answers merely.—The Thames and Medway Canal Company v. Nash, Sim. 280.
G., on joining an existing firm, borrowed 10,000/. of N. & Co., bankers, who accepted bills to that amount, and G. executed four bonds of 2,500/. each, and warrants of attorney, on which judgment was entered up. Shortly afterwards N. & Co. called on the new firm to give security for