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codicil, reciting that he had given all he was possessed of by his will, and ratifying the same, and then gave the other purchased lands to his wife for life, with devises over to trusts had in law held, that the ratification at the commencement of the codicil extended the will to all he was possessed of at the time of the ratification, and that the after purchased lands were included in the residuary clause. Com. Rep. 381; 1 Ves. Jun. 486; 7 T. R. 482. Williams v. Goodtitle, 10 B. & C. 895. (Revocation.) If a clause in a will be clear, the intention to revoke must be equally clear, to make a valid revocation. If there be only a reasonable doubt whether the clause of revocation was intended to include the particular devise, the devise ought to stand. Doe d. Hearle v. Hicks, 8 Bing. 475.
A person who injures a dog that barked at him by an unnecessary blow, was held guilty of a wilful injury to property within 7 and 8 Geo. 4, c. 30, s. 24. A constable was sent after the offender, and took him in a public house within a mile of the place where the blow was struck. Held that this was an immediate apprehension within the act. Hanway v. Boltby, 2 M. & M. 15. WITNESS. (Commission to examine.) A doubt was raised as to whether pregnancy was a case within 1 W. 4, c. 22, but at any rate it must be shown by affidavit that there is fair ground for believing that the delivery will happen so as to prevent the witness from attending at the trial. Abraham v. Newton, 8 Bing. 274. (Interested.) In an action on the warranty of a horse, the person who sold the horse to the defendant with a similar warranty, was held a competent witness for the defendant. Baldwin v. Dickson, 2 M. & M. 59.
(Interested.) Case for injury to a carriage: held that the plaintiff's coachman, who was driving at the time, was inadmissible as a witness for the plaintiff. Tindall, C. J. who decided the point, was of a different opinion until Morris v. Foot, 8 Taunt. 854, was referred to. Sheerman v. Barnes, 2 M. & M. 69. (Interested.) B. sent the defendant, his servant, to the plaintiff for a flute to look at, to be purchased if approved. The flute was delivered to the defendant, who kept it: Held that B. was admissible to prove these facts in an action of trover by the owner against the servant. 8 T. & R. 186; 4 M. & S. 259; 1 C. & J. 90. Grylls v. Davies, 2 B. & Adol. 514. A witness in support of a prosecution for a libel, objected to answer a question on the ground that he had been threatened with a
prosecution in respect of the same publication: Held that the prosecutor's counsel could not be heard in support of the objection. The King v. Adey, 2 M. & M. 94.
(Married woman.) A woman who had lived with the defendant as her husband, under a second marriage, during the life of her former husband, was held a competent witness as to the declarations of the defendant. Wells v. Fisher, 2 M. & M. 99. (Expenses allowed.) In an assurance cause the subsistence of the captain subpoenaed as a witness was allowed from the time he was subpoenaed to the time of the trial, although he was in England when subpoenaed, was an officer on the half pay of the royal navy, and did not show the permission of the admiralty to engage in the merchant service, and had not been examined at the trial. 7 Bing. 725; 1 B. & C. 276. Mount v. Larkins, 8 Bing. 195.
(Allowance to.) The plaintiff applied to the defendant to have the witness (a captain of a vessel) examined on interrogatories, which the defendant refused, saying that he would rather risk the expense than forego the advantage of close examination: Held, that 87. a month was properly allowed the witness for loss of time on taxation, on the ground that the offer and refusal made it a matter of bargain between the parties. Temperley v. Scott, 8 Bing. 392.
(Allowance in slander.) The plaintiff, who succeeds in an action of slander, is entitled to the expense of witnesses subpoenaed to prove an inducement necessary to explain the slander. And per Tindal, C. J. 'we ought not to be too nice in cutting down the plaintiff's proof to the exact amount at which, under bare poles, he may conduct his vessel into port.' Andrews v. Thornton, 8 Bing. 433.
1 Russ. & Mylne, Parts 2 & 3; 3 Simons, Part 3; 2 Dow & Clark, Part 4; Younge, Part 3.
Interest at £4 per cent. was directed to be made on advances made by a father to his children, from the time when the father's property was divisible amongst them. Andrews v. George, Sim.
(Simony.) On a bill for tithes, the defendant objected to the plaintiff's title, on the ground of a simoniacal contract between
him and other parties. The occupier then filed a cross bill to establish a modus, and for a discovery relative to the alleged simoniacal contract. The rector, in his answer, stated, that the matters charged by the occupier's bill would, if confessed, furnish evidence or lead to evidence, in support of the charge of simony, and he refused to answer them: Held, on exception taken, that the rector was not bound to answer any question which had either a direct tendency to establish the contract, or to form a link in the chain of evidence in support of it. Parkhurst v. Loutern, 1 Mer. 391. Southall v. APPLICATION OF FUND.
Quare, whether the salary of an assistant parliamentary counsel is assignable? The court refused to appoint a receiver of the salary before the hearing. 2 Sim. 560. Cooper v. Reilly, R. & M. 560.
Where an obligor has, by vexatious proceedings delayed the obligee from recovering the debt while under the amount of the penalty, the court will decree a full account of principal and interest, although it exceeds the penalty. Pultney v. Warren, 6 Ves. 79; Clarke v. Lord Abingdon, 17 Ves. 106. Grant v. Grant,
In a suit, instituted in 1814, to administer the personal estate of
an intestate, who died in 1807, the master reported that no debts had been proved; and by the decree on further directions in 1817, the whole of the residue was apportioned and distributed, but as the plaintiff was then an infant, his share, amounting to four-ninths of the fund, was retained and carried to his separate account. In 1825, a foreign prince, claiming to be a creditor of the intestate, petitioned for leave to prove his debt against the sum remaining in court, and the plaintiff, coming of age soon after, applied to have that sum paid out: Held, that the creditor was entitled to prove against the fund in court to the extent of four-ninths of his debt, subject to every defence which could have been set up if a bill had been filed; and that the plaintiff should be at liberty to take out the whole fund, with the exception of a sum equal to four-ninths of the amount of the then claim. Gillespie v. Alexander, 3 Russ. 130. Grey v. Somerville, R. & M. 333.
DISTRIBUTION OF ESTATE. See CREDITOR'S SUIT. EXECUTORS AND ADMINISTRATORS. See CREDITOR'S SUIT.
An heir is not put to his election between an estate and benefits given by the will, by the force of mere general expressions. Johnson v. Telford, R. & M. 244. Where a testator directed that if any hereditaments purchased by him at any time should happen to be conveyed after the date of his will, his heir at law, or other real representatives, and every other person in whom the same should be vested, should forthwith, upon his decease, convey and assure the same to his trustees upon the trusts of the will, and he purchased other estates afterwards: Held, that no case of election was raised as against his heir, the language being confined to estates which should happen to be conveyed after the date of the will. S. C. Where a testator devised and bequeathed all and singular his estate and effects, both real and personal, which he should die possessed of,' and afterwards purchased lands; his heir was put to his election. Back v. Kent, Jac. 534; Thellusson v. Woodford, 13 Ves. 209; 1 Dow, 249. Churchman v. Ireland, R. & M. 250.
FRAUD. Se UNDUE INFLuence.
A foot race is within the stat. 9 Anne, c. 14, entitled 'An act for the better preventing of excessive and deceitful gaming.' A having engaged to run a foot race for £1000, prevails on B and C to advance the money required for making good their stakes; and it is agreed by the three that bets shall be made by B and C on A, and that the winnings and losses shall be borne by all three. A loses the race, and B and C pay, on account of themselves and A, the bets lost. A executes to B and C a mortgage for the amount of his share of the money so paid by them, and subsequently sells the estate to them for a consideration, of which the money so due to them forms part. On a bill by the son of A, who would have been entitled to the estates at the time of the execution of the mortgage if the father had then been dead, praying a declaration that he was entitled to the benefit of the conveyances, or of the mortgage, and the money thereby secured, and for general relief; a demurrer for want of equity was overruled. Gray v. Moore, 2 Wills. 67; Pulteney v. Warren, 6 Ves. 73. Parker v. Alcock, Y. 361. HEIRS. See CREDITOR'S SUIT. HERITABLE PROPERTY.
A portion of an entailed estate in Scotland was sold by the heir for redemption of the land tax, and the surplus vested in trustees
in the terms of the statute. The next heir of entail assigned his reversionary and contingent right to the interest of this fund, by deed in the English form, executed in London, where the parties were domiciled, but not according to the solemnities required by the Scotch law: Held, that though the principal of the fund was heritable, the interest was substantially moveable, and was therefore well assigned by the English deed. Scott v. Alnutt, D. & C. 404.
HUSBAND AND WIFE.
A married woman was entitled to an annuity, charged upon an estate belonging to A the rents of which were received by her husband under a power of attorney given to him by A. She made no demand for the annuity for several years; the husband being indebted to A, in respect of the receipts, became bankrupt. Held, that as the wife knew the annuity to be due, and was living with her husband upon the profits of it, she had no claim upon A's estate for arrears. Carter vs. Anderson, Sim. 370. INFANT. (Maintenance.) Where a father had deserted his children, and was not of ability to maintain them, the court made an order, upon petition, referring it to the Master to appoint a proper person to act in the nature of a guardian, and to inquire whether it would be for their benefit that a certain sum should be raised out of property to which they were absolutely entitled, under a will; the executors consenting. Exp. Myerscough, 1 J. & W. 151. In the matter of the estate of Mary England, R. & M. 499. (Maintenance.) A testator charged an estate with trifling legacies to his children, to be paid at twenty-one, with interest until they became payable, and directed the interest to be applied towards their maintenance and education. He also gave a discretionary power to his trustees and executors to advance sums out of the principal for the advancement of the legatees; ordered, upon petition, that the executors might be at liberty to pay certain small sums out of the capital towards the maintenance, education, and advancement of the infants. Barlow v. Grant, Exp. Chambers,
1 Vern. 255; Exp. Green. 1 J. & W. 255. R. & M. 577.
(Injury.) A railway company, under the powers given by the act incorporating them, were proceeding to erect an arch over a mill race, and which, if of the proposed dimensions, would injure the mill, but if larger would not be injurious.