17. TENNANT v. HEATHFIELD.

21 Beav. 256.

Will-Construction-Ulterior Bequest on Failure of Prior Gift.

As a general rule, when a bequest is to take effect after the failure of a prior gift, the total failure of that gift will not prevent the ulterior bequest taking effect. Thus, where there was a bequest by a testator to his daughter for her separate use for life, and after her decease to her children, and in case of their deaths before the vesting of their shares, in trust for her next of kin, and the daughter never had any children, it was held by Sir J. Romilly, M.R., that her next of kin were nevertheless entitled. "The case of Jones v. Westcomb (Prec. Ch. 316; 1 Eq. Ca. Ab. 245, pl. 10), and Doe d. Watson v. Shepphard (1 Doug. 75), to which I was referred, appear to me to apply to this case. In the latter case the question was, whether you could imply an estate; that is not the case here.

"Underwood v. Wing (19 Beav. 459; and 4 De G. M. & G. 633) no doubt might seem to have a bearing on this case, but, in my opinion, it has not, and it is perfectly distinct. I adhere to the decision I came to in that case, which is perfectly distinguishable from the present. In Underwood v. Wing, the testator, Mr. Underwood, gave the whole of his property to his wife, and in case she died in his lifetime, then to his children; and on failure of the gift to the children, he gave the property to Mr. Wing. All those gifts, no doubt, failed; but they failed for this reason because it was not proved that the wife died in the testator's lifetime, and consequently it was not proved that the event had occurred on which the gift was to take place. In that case, the whole series of limitations depended on a contingency, which was not proved to have happened. That case was different from the present, where each limitation is to take effect on the failure of that preceding it.

"I am of opinion in this case, that the plain intention of the testator was, that his daughter should take an estate for life, and on her death, if she had no children who took a vested interest, the property should go to her next of kin; and that, on the authority of Jones v. Westcomb, and several other cases, I must hold that the next of kin of the daughter, at her death, took the fund, and that there was no intestacy."

II.-POINTS DETERMINED IN THE COURTS OF COMMON LAW.

By ALEXANDER PULLING, Esq., Barrister-at-Law.

1. Attachment for Disobedience of a Rule of Court-Demand of Performance. 2. Attorney-Negligence-What amounts to Crassa Negligentia. 3. Bankrupt-Fraudulent Preference-Surrender of Claims by Defaulter on Stock Exchange, under Rules of that Association, for the exclusive Benefit of particular Class of Creditors. 4. Chattel in course of Manufacture-Vesting of Property-Contract to Build a Ship. 5. Costs where a Debt exceeding 201. is reduced by Set-off to less than 207. 6. Custom of London-Ancient Lights-Prescription Act, 2 & 3 Will. 4, c. 71, s. 3. 7. Husband and Wife-Liability of Husband for Law Expenses of Wife in Proceedings for Divorce. 8. Joint-Stock Company - Forfeiture of Shares-Measure of Damages in Action for withholding Shares alleged to have been Forfeited. 9. Landlord and Tenant-Estoppel-Lease by Mortgagor-Surrender of Possession to Mortgagee. 10. PartnershipWhat constitutes a Partnership quoad third Persons - Trust-Deed for Benefit of Creditors. 11. Practice Attachment against an Attorney for not appearing to answer Charge supported by Affidavit. 12. PracticeInterrogatories-Under Common Law Procedure Act, 1854. 13. Practice -New Trial-Damages under 201.-Perverse Verdict-14. Principal and Agent-Liability of Agent-Purser of Mining Company. 15. Railway Company - Power of Directors to amalgamate with another Company. 16. Right of Way-Unity of Possession-Injury to Reversion-Measure of Damages. 17. Wager-Statute 8 & 9 Vict. c. 109, s. 18-What is a Contract by way of Wager. 18. Water Company-What amounts to Negligence.

1. SWINFEN v. SWINFEN. 18 Com. B. 485.

Attachment for Disobedience of a Rule of Court-Demand of Performance.

This was an application for an attachment for disobedience of a rule of Court requiring the party to execute a conveyance, to carry out certain terms agreed to on the trial of this action. The plaintiff, against whom the application was made, had been merely served with a copy of the rule, and shown the original rule; there was, however, no express demand upon her to do the act which the rule commanded her to do. The Court VOL. II. NO. III. 2 D

of Common Pleas, under the circumstances, refused the rule for an attachment. In the course of the discussion, however, it was understood that the Court may issue an attachment for disobedience of a rule drawn up on an order of nisi prius made at the trial of an issue directed by the Court of Chancery; and that the Court will not inquire into the authority of counsel to agree to a compromise of the cause at nisi prius.

2. LONG V. ORSI. 18 Com. B. 610.

Attorney-Negligence-What amounts to Crassa Negligentia.

This was an action brought by the plaintiff, an attorney, to recover the amount of his bill of costs incurred on behalf of the defendants in prosecuting two actions of Cusin v. Simpson, and Orsi v. Simpson, on behalf of the defendants. The defendants, who were the London agents of Cusin, Legendre, & Co., of Paris, gave the plaintiff instructions to sue the acceptors upon five foreign bills of exchange, which the defendants alleged to be "unpaid, and duly protested in their hands." A copy of one of the bills was sent to the plaintiff, with a note stating them to be all indorsed to Cusin, Legendre, & Co. The plaintiff thereupon brought the action in the names of Orsi & Co., and discovering afterwards, when the bills were for the first time shown to him, that there was no special indorsement to Orsi & Co., as required by the law of France, he discontinued, and brought another action in the names of Cusin & Co., and succeeded. A verdict having been given in the first action for the full amount of the plaintiff's costs, the Court of Common Pleas, on a motion to reduce the damages, held that the suing in the names of Orsi & Co. without having first ascertained that they were in a position to maintain an action on the bills, was such gross negligence as to disable the attorney from recovering the costs of the abortive action, and the verdict was reduced accordingly.

3. NICHOLSON V. GOOCH. 5 Ellis & Bl. 999.

Bankrupt-Fraudulent Preference-Surrender of Claims by Defaulter on Stock Exchange, under Rules of that Association, for exclusive Benefit of particular Class of Creditors.

This was an action for money had and received, the plaintiffs being assignees of a bankrupt member of the Stock Exchange, named Lodge, and the defendant official assignee of Lodge under the rules of the Stock Exchange, which rules are subscribed to by every member on admission, and provide,

amongst other things, that every member omitting to fulfil his engagements shall be declared a defaulter, and that members under any engagements to pay money to such defaulter, should pay the same to the official assignees of the Stock Exchange.

Lodge having speculated extensively in stock-jobbing transactions, announced himself a defaulter on the 11th November, 1853, and on the same day committed an act of bankruptcy. The state of his Stock Exchange engagements then was, that he had to pay about 22,500l., and to receive about 12,000l. in differences. The defendant proceeded strictly according to the rules of the Stock Exchange with regard to these sums. He collected what was due to Lodge, and divided the amount rateably among the claimants on the Stock Exchange, except a sum of 1381. 68. 9d., the balance remaining in his hands, which he paid to the treasurer of the fund for decayed members, in pursuance of the same rules. After this was done, and without any notice to the defendant of there being any other claims on Lodge, the latter was adjudicated a bankrupt on his own petition.

The Court of Queen's Bench held that the action could not be maintained; for that, assuming that Lodge's conduct in declaring himself a defaulter, and consenting to the defendant's receiving the differences, amounted to a fraudulent preference, yet the money, having been, bond fide, paid over by the defendant without notice of any act of bankruptcy, could be recovered back only from the creditors; and with regard to the claim for the balance not so paid over by the defendant, the same could not be sustained, inasmuch as the money was received by the defendant not for the use of Lodge or his assignees, but for the express purpose of distribution under the rules of the Stock Exchange.

4. WOOD V. BELL. 5 Ellis & Bl. 772.

Chattel in Course of Manufacture-Vesting of Property-Contract to

Build a Ship.

A special case raised, inter alia, a question for the opinion of the Court of Queen's Bench, whether the plaintiff or the defendants, the assignees of Joyce, a bankrupt shipbuilder, were entitled to the property in a certain unfinished iron screw steam-vessel, called the Britannia, contracted to be built by Joyce for the plaintiff.

This Britannia was, at the time of the bankruptcy, being built under the terms of a contract dated the 3rd November, 1853. In July of that year, Joyce, who had built several other steam

ships, contracted to sell one of them, the Peninsula, then in course of construction at his shipbuilding-yard, to the plaintiff. This vessel was completed and paid for, accepted under the contract, and duly registered in the plaintiff's name.

On the 10th September, 1853, the bankrupt, by letter, agreed to build a new steamer according to specifications to be furnished by the plaintiff's agent, for 16,000l., payable as follows: 1,000l. on 12th September, 1,000l. on 12th November, 1,000l. on 12th December, and 1,000l. on 12th January, 1854; the remaining 12,000l. by instalments of 3,000l. each; the first on 10th March, provided the vessel was plated and decks laid; the second 3,0007. on 10th May, providing the vessel was ready for trial; third 3,000l. on 10th August, providing the vessel was according to contract, and properly completed; the fourth and last 3,000l. on the 10th October.

In pursuance of this contract the bankrupt built and completed for the plaintiff a second vessel, afterwards called the Gibraltar; and on the 3rd November, 1853, whilst this second vessel was in progress, he offered by letter to build for the plaintiff two or more other vessels of the same size and power as the one then in hand, and at the same price, 16,000l. This offer was at once accepted by the plaintiff, and an order given for a new vessel, and the vessel now in dispute was at once commenced; nothing was then agreed as to the mode or time of payment. In March, 1854, however, the bankrupt obtained an advance from the plaintiff of 7,000l., which advance the bankrupt acknowledged by letter, as an advance partly upon the new vessel contracted for, and partly on any other vessel to be thereafter ordered. The letter stipulated for interest being calculated up to such periods as might be agreed on for the instalments becoming payable, and the plaintiff continued up to the time of the bankruptcy, which happened December, 1854, to make advances to the bankrupt to a greater amount than the whole value of the vessels in progress of building for him. The bankrupt giving receipts as for advances on the said vessels. The Gibraltar was completely and duly registered in the plaintiff's name; and the vessel now in dispute was treated by the bankrupt throughout as the plaintiff's. She was, at the date of the bankruptcy, plated, or the decks laid, as stipulated for in the case of the Gibraltar, but the name of the new vessel, Britannia, and the plaintiff's name as owner, were branded upon her.

The Court of Queen's Bench held, on the authority of Woods v. Russell (5 Barnwell & Alderson, 942), and Clarke v. Spence (4 Ad. & E. 468), that the vessel passed to the plain