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STATUTE OF FRAUDS.

A plaint in the County Court stated that the plaintiff had assigned to the defendant the agreement for a lease of certain premises, but it was alleged that there was a parol agreement that part of the premises were to be held by the defendant in trust for the plaintiff. Evidence was given on both sides, but the Judge, being of opinion that actual fraud had not been proved against the defendant, and their being no resulting trust in the assignment, decided that the Statute of Frauds was applicable, and dismissed the plaint, without coming to any distinct decision upon the evidence:

Held, upon appeal, that the Judge ought to have decided that the Statute of Frauds had no application; and the court, upon a consideration of the evidence, decided that the plaintiff was entitled to relief, and reversed the decree: Booth v. Turle, V.C. M., vol. xvi, 182, (Eq. cases.)

TESTAMENTARY PAPER.

In order to give validity to a declaration of trust of property, it is necessary that the donor or grantor should have absolutely parted with his interest in the property, and has effectually put such interest beyond his own reach.

An unmarried lady, possessed of large property, being under obligations to the plaintiff, a servant, called him one day into her room and showed him a box which, having opened it and put a note inside, she locked and handed to him, telling him to take it into his possession, that it would be of service to him some day, but that he must not open it till after her death. She herself kept the key. She afterwards made her will, whereby she gave the residue of her real and personal estate to the defendant, a stranger in blood. After her death the box was opened and found to contain a paper writing, dated and signed by the testatrix, and addressed to the plaintiff, to the effect that the contents of the box were a deed of gift to the plaintiff of certain real and personal estate therein specified and described. In the box were also found title deeds relating to an estate, M., not mentioned in the paper writing, and some other papers, but nothing answering the description of a deed of gift. After the testatrix's death, there was found by the plaintiff, in an outhouse, to which the testatrix and he alone had access, another paper writing, dated the day after the date of the former paper, and also signed by the testatrix, and addressed to the plaintiff, to the effect that the title deeds of the real property mentioned in the former paper were to be found in a particular repository, to be handed over to him "free, and all expenses to be paid out of the bulk, and writings of M.":

Held, that these papers were of a testamentary character, and did not amount to a valid declaration of trust in favor of the plaintiff.

Richardson v. Richardson (Law Rep. 3 Eq., 686) and Morgan v. Malleson (Law Rep. 10 Eq., 475), observed upon. Warriner v. Rogers, V.-C. B., (Equity Cases) vol. xvi, 340.

TESTAMENTARY SUIT.

Verdict-New Trial refused-Material Witness convicted of Perjury-Second Application for New Trial-Practice. In a testamentary suit, the jury, being unable to agree, were discharged without giving a verdict. The question in dispute, the capacity of the deceased, was afterwards referred to a second jury, who found in the affirmative and for the plaintiff. Application was made for a new trial on the ground of the verdict being against the weight of evidence, but it was refused.

Subsequently the plaintiff was convicted of perjury in reference to the evidence he gave in this court in the above suit:

Held, that that circumstance was not in itself sufficient to justify the court in allowing a new trial after an application with that object had been rejected: Davies v. Brecknell, Probate and Divorce, vol. iii, 88.

THEATRICAL ENGAGEMENT.

Any actor who enters into a contract to perform for a certain period at a particular theatre may be restrained by injunction from performing at any other theatre during the pendency of his engagement, notwithstanding that the contract contains no negative clause restricting the actor from performing elsewhere.

Observations on Lumley v. Wagner, (1 D. M. & G., 604); Montaque v. Flockton, V.C. M., vol. xvi, 189, (Eq. cases.)

WILL.

1. Capacity-Delusions in Reference to the Conduct of Children-Will pronounced against -Executor's Costs-Practice. A man, moved by capricious, frivolous, mean, or even bad motives, may disinherit wholly or partially his children, and leave his property to strangers. He may take an unduly harsh view of the character and conduct of his children, but there is a limit beyond which it will cease to be a question of harsh unreasonable judgment, and then the repulsion which a parent exhibits to his child must be held to proceed from some mental defect. If such repulsion, amounting to a delusion as to character, is shown to have existed previous to the execution of his will, it will be for the party setting up that document to establish that it was inoperative when the will was made, and the jury, in determining whether or not the delusion was operative, will have regard to the contents of the will and the circumstances surrounding the execution of it. Prima facie, an exccutor is justified in propounding his testator's will, and if the facts within his knowledge at the time he does so tend to show eccentricity merely on the part of the testator, and he is totally ignorant at the time of the circumstances and conduct which afterwards induce a jury to find that the testator was insane at the date of the will, he will, on the principle that the testator's conduct was the cause of litigation, be entitled to receive his costs out of the estate, although the will be pronounced against: Boughton v. Knight, Probate and Divorce, vol. iii, 64.

2. Execution-Attestation and Subscription. The deceased executed his will in the presence of two witnesses, one of whom also made a mark in attestation of the signature of the deceased. The second witness then wrote the names of the deceased and the witness opposite their respective marks and also the word witness, but he did not subscribe his own name:

Held, that he did not by any word he wrote attest the signature of the deceased, and that the execution was invalid: In the Goods of Eynon, Probate and Divorce, vol. iii, 92.

3. Revocation. The testator, having executed a will and codicil, signed a second codicil, in which he expressed a desire to cancel his will, and that a document which he described as a will of earlier date, and the first and second codicils, should together stand as his last will and testament. The only document executed at the earlier date was a settlement on his marriage, which was not of a testamentary character:

Held, that the revocation of the will was absolute, and not dependent on the incorporation of the settlement in the papers admitted to probate: In the Goods of Gentry, Probate and Divorce, vol. iii, 80.

4. Revocation, total, partial, or contingent-Dependent relative Revocation. The testatrix, having her will in her hand, dictated the alterations she desired to be made in the first part of it to a friend, who wrote them down. Testatrix, feeling unwell, desired her friend to stop there, and then tore off and burnt so much of her will as had been covered by the memorandum written at her dictation. This memorandum, together with the rest of the will, which contained the residuary clause and the signatures of the testatrix and witnesses and the attestation clause intact, was placed in a desk by the testatrix and locked up, and she believed when she did so that these papers constituted a new will, and were not merely instructions for such a will:

Held, that it was a case of dependent relative revocation, a revocation dependent on the papers locked up constituting a new will, and probate was granted of the original will as contained in the portion which remained and the draft of the part which was destroyed: Dancer v. Crabb, Probate and Divorce, vol. iii, 98.

5. Revocation on Erasure-Words erased not apparent-Dependent relative Revocation-Parol Evidence. The principle of dependent relative revocation applies to the case where a testator has so entirely erased the name of a legatee that it is no longer apparent, and has substituted another name for it. The court will receive evidence to show what the original name was, and restore it to the probate if satisfied that the testator only revoked the first bequest on the supposition that he had effectually substituted a new legatee: In the Goods of McCabe, Probate and Divorce, vol. iii, 94.

SELECTED DIGEST OF STATE REPORTS.

[For this number of the REVIEW, selections have been made from the following State Reports: 46 Georgia; 4 Heiskell (Tennessee); 38 Indiana; 9 Kansas; 60 Maine; 51 Missouri; 49 New York (Court of Appeals); 51 New York (Commission of Appeals); 9 Rhode Island; 5 West Virginia; 31 Wisconsin.]

ACCEPTANCE.

When a disaster happens to a cargo in consequence of a peril or accident not within the exceptions in the bill of lading, a mere acceptance of the goods by the owner at the place of the disaster, or an intermediate port, will not preclude him from his remedy. It must appear that the acceptance was intended as a discharge of the vessel and her owner from any further responsibility: Home Ins. Co. v. W.T. Co., 51 New York, 93.

ACCORD AND SATISFACTION.

1. In a suit upon an instrument, by which the defendant promised to pay a certain sum to A., B., and C., in trust, to be expended within a county named, in constructing a railroad within certain limits, the persons named to select the corporation which should have the benefit of the subscription, an answer that when the instrument was executed by the defendant, it was agreed that if the railroad was located through the farm of the defendant, he should have the choice of paying the five hundred dollars or giving the right of way to the corporation, and that he had given such right of way, which had been accepted by the company, was held a sufficient defense, as an accord and satisfaction. It was also held good on the ground that A., B., and C., held a power not coupled with an interest, and the power could be revoked before execution and the acceptance thereof by the corporation: The E. T. H. & C. R. R. Co. v. Wright, 38 Indiana, 64.

2. A note received in full satisfaction and absolute payment of a debt has the same effect in extinguishing the interest as if payment had been made in cash: Black v. Dorman, 51 Mo., 31.

3. Plaintiff made a stipulation stating that he consented to, and the suit was thereby discontinued, and the cause of action released in consideration of the payment of the costs, and seventy dollars to plaintiff's attorney. Defendant paid the seventy dollars, and tendered the costs and set up an accord and satisfaction:

Held, that this was, at most, a simple unexecuted accord, and not a satisfaction: Noe v. Christie, 51 New York, 270.

ACCOUNT STATED.

1. As a general rule, in an action upon an account stated, the defendant's promise to pay, or acknowledgment of indebtedness, must be shown to have had reference to a legal liability then existing, or to a moral obligation founded on an extinguished legal liability: Frey v. Fond du Lac, 24 Wis., 204; Melchoir v. McCarty, 31 Wis., 252. 2. This rule applies to an account stated for intoxicating liquors sold without license, in violation of law; and no recovery can be had in such a case: Ib.

3. But the rule is not applied to an account stated, or subsequent promise to pay, VOL. III.-NO. I.-6.

for goods sold and delivered on Sunday; and a recovery may be had on a promise to pay for liquors sold on that day-such promise being made on a day other than Sunday, and the sale not being unlawful for any other reason: Ib.

ACTION.

1. An action to foreclose a mortgage, given to secure a bond, wherein judgment is asked against the obligor for any deficiency, is as to the latter an action arising on contract, and one wherein a several judgment may be had, and hence is subject to a counter claim of any other cause of action on contract which such obligor had against plaintiff at the time of the commencement of the action: Hunt v. Chapman, 51 New York, 555.

2. Where it is a custom among commission flour merchants that a vendee may rescind the sale and return the flour within ten days, if it proves unsound or damaged, the commission merchant to whom the flour is returned in accordance with the custom, and who afterwards sells it as unsound at its full real value, without laches on his part, may recovor from his consignor the amount of the actual loss by such sale: Randall v. Keelor, 60 Maine, 37.

3. On November 27, 1860, the plaintiff conveyed with covenants of warrants, certain real estate to one J., but some doubt having been thrown upon the title by a levy of a creditor of the plaintiff's husband, the plaintiff in accordance with a written agreement with her grantee, deposited with the defendant the consideration money, to remain with him as collateral to said warranty for a reasonable and satisfactory time. On June 27, 1870, the grantee having deceased and the premises passed to his devisee, the plaintiff demanded the money of the defendant, and upon refusal to deliver it up, sued him in an action for money had and received:

Held, the action was not maintainable; but that a suit in equity was the proper remedy: Randall v. Butler, Ib., 216.

4. The abandonment of an attachment of property in a suit against one surety on a note, constitutes no bar to the maintenance of a subsequent suit against the cosurety: Chipman v. Todd, Ib., 282.

5. The city of Providence has an implied power, arising from and incident to its duties in relation to the streets and highways within its limits, not only to construct drains upon the surface of the streets, to carry off the water coming upon them in any way, but also to construct drains or sewers beneath the surface when necessary for a similar purpose. But the city is liable for injuries resulting from the making of such drains or sewers, if, by making them to prevent a nuisance, it creates a nuisance in another place, and merely transfers it from one locality to another: Clark v. Peckham, City Treasurer, 9 Rhode Island, 455.

6. No action for such nuisance can be maintained in favor of an individual simply because the city might be indicted. An individual is only entitled to sue when he has suffered some special damage above that arising to the public generally. Only the owner of land can sue for an injury caused by building a drain upon it: Ib.

7. A corporation is liable for an act which would give a right of action against an individual, if done by authority of the corporation, or of a branch of the government authorized to act for it, or if the act be ratified by the corporation or by its officers: 1b.

8. In an action of debt on a judgment obtained in the State of New York against two joint debtors, in which the only evidence of service of the process is the written acknowledgment of legal service thereof signed by one of them, the plaintiff can not maintain his action in the State of Rhode Island upon such a judgment, against

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