ELECTION-A husband invested a sum of money in the joint names of himself and his wife; he afterwards made his will and gave her an estate for life in certain freehold and leasehold estates, with remainder to other persons, and he made her his residuary legatee. She treated the stock as her own, and enjoyed the estates during her life. In a suit, instituted after her decease, it was held that she was cognizant of her rights, and was bound to elect between the stock and the benefits given to her by the testator, and that her acts shewed she had elected to take under the will. Worthington v. Wigington, 773

See Will.

EQUITABLE DEFENCE AT LAW-An auctioneer was employed to sell property of a lunatic by agent of committee. Action afterwards brought by personal representative of lunatic against auctioneer, for produce of sale. Defendant pleaded equitable pleas of set-off, and plaintiff at law replied. Defendant at law filed bill for injunction, setting up the same case as in defence at law, and alleging complicated accounts. Injunction refused. Farebrother v. Welchman, 410

Plaintiff held premises as tenant of defendants. Defendants brought an action against plaintiff in respect of rent and dilapidations. Plaintiff applied to the common law Court for leave to plead an equitable plea. Permission refused, and plaintiff then filed his bill and moved for injunction to restrain the action upon same grounds as those contained in his plea, namely, that there was an agreement for the surrender of the lease. Injunction granted, but upon terms of plaintiff paying into court amount for which action brought. Magnay v. the Mines Royal Co., 413 EVIDENCE-Presumption of survivorship; and construction of will. Underwood v. Wing, 293

Upon motion under 15 & 16 Vict. c. 86. s. 54. that books of certain stockbrokers might be produced as prima facie evidence of the truth of what they contained, it was held, that the above section of the act was retrospective; and that entries in the books, although made by a deceased clerk, in pursuance of instruction given him by his principal without any personal knowledge of the transactions, might be produced. The Court inspected the books to ascertain that they had been kept with regularity. Ewart v. Williams, 366

It is open to either party in a suit to produce fresh evidence until time fixed for closing evidence; and where a plaintiff having closed his case, and stated that he had no further evidence to produce, proposed, after hearing witnesses for defendant, to adduce fresh evidence, the Court allowed him to Wood v. Scarth, 392

do so.

Section 54. of 15 & 16 Vict. c. 86. is retrospective. The power given by this section is not to be exercised until the Court is satisfied that the means of obtaining the ordinary legal evidence has been substantially exhausted. Where such means had not been exhausted, an order of the Vice Chancellor making certain entries in books of account prima facie evidence of their contents was discharged without prejudice. Ewart v. Williams,

leave to prove his case by affidavit. Application refused. Musgrove v. Smith, 439

Right to cross-examine witnesses; and to have copy of the evidence. Lord v. Colvin, 517

A witness who was examined for plaintiff to prove a contract was cross-examined for defendant upon a subject irrelevant to the matter in dispute between the parties. Defendant then examined witnesses to contradict the statement made by plaintiff's witness with regard to such irrelevant matter. It was held, that it was not competent for a party to call witnesses to contradict evidence which was immaterial to the question at issue. Affidavits of defendant's witnesses ordered to be taken off the file for containing scandalous and irrelevant matter. Goddard v. Parr, 783

Persons making affidavits to be used in a suit are, at the request of the parties, subject to be cross-examined upon them. Kay v. Smith, 788

See Deed. Lunacy. Lien. Voluntary Settlement. Will. EXECUTION-An execution creditor (where the judgment has not been registered) is entitled, through the medium of a Court of equity, under section 13. of 1 & 2 Vict. c. 110, to an equitable term belonging to his debtor. Gore v. Bowser, 440 EXECUTOR A. and B. were partners. A, by his will, gave C. and D. 5,000l. each, and sums to others who as well as D. were infants, and directed the same should remain in the business, and interest be paid thereon. A, by his will, appointed B. and three others his executors, and died. B. continued the business, and transferred into his books the amount at which he estimated the estate, to an account called "The account of the executors of A," and in the same books opened accounts with C. and with D, in which he accredited them respectively with their legacies, and interest thereon from time to time. B. paid the legacy duty on C.'s and D.'s legacies, and paid legacy duty on the estimated value of A.'s residuary estate. B. died, and a suit was instituted to administer his estate, and C. and D. claimed to be creditors thereon in respect of their legacies. These transactions of B. not an admission of assets of A; and as the suit was for administration of executors', and not testator's, estate, all the Court would do was to direct the reservation of such dividends as are reserved in cases of claims, leaving C. and D. to take any steps in respect of administration of estate of A, and in respect of the dealings of B. therewith. Hutton v. Rosseter, 106

At death of testator a sum of 4,000l. was due to the estate by a person whose life was insured for 2,500l. After testator's decease his executor, finding that the debtor was quite incapable of paying either the debt or premiums, effected a further insurance on his life for 2,500. for seven years. After paying three premiums the executor, of his own accord, allowed the policy to drop, on the ground that the assets of the testator were insufficient to meet the debts and legacies. Upon bill filed to render the executor liable for the full amount of the second policy, it was held that the executor, having effected the policy, had made himself a trustee of it for the testator's estate, and was not justified in allowing it to drop without the consent of the cestuis que trust or the sanction of the Court. The defendant was ordered to pay the amount of the policy, less the premiums he had actually paid. Garner v. Moore, 687

If testatrix has taken a doubtful security for money advanced, her executor, if he thinks it expedient after inquiries which induce him to suppose that it may be advantageous, will be justified

in making further advances, to render it, if possible, available. But executor not justified in borrowing money when no previous inquiries have been made, and when, had they been made, no apparent advantage could have been derived. Collinson v. Lister, 762

Right to retain assets. See Administration of Estate. And see Specific Performance.

FINES AND RECOVERIES ACT. See Acknowledgment by Married Women. FORECLOSURE-A foreclosure bill was filed, by a mortgagee of real estate, against A. and other incumbrancers, stating that defendants claimed an interest in the property, with the usual prayer. A. put in an answer to the bill, and therein stated the deed under which he claimed, which was impeachable on the ground of usury. No objection was taken to this deed on the pleadings. By a decree made at the hearing of the cause, it was referred to the Master to take an account of the incumbrances. In proceedings before the Master, plaintiff and co-defendants of A. were at liberty to object to A.'s deed on ground of usury. Mansfield v. Ogle, 450

See Parties.

FOREIGN DEED. See Marriage Settlement.
FORFEITURE. See Legacy.

FREE BENCH. See Copyhold.

GUARDIAN-Deed appointing a guardian of person and estate of an infant is well executed within 12 Car. 2. c. 24. s. 8, although guardian one of attesting witnesses. -Guardian attesting deed by which she is appointed is a credible witness to support the appointment. -No declaration of rights can be made upon a cause adjourned from chambers, but the Judge may certify the law. Morgan v. Hatchell, 135

HARBOUR-Powers were conferred by act of parliament on a harbour company, to execute certain works, with authority to raise money by mortgage of the same; but the act required that all mortgages and transfers of them should be indorsed by the clerk of the company, or otherwise should be void. The company borrowed money, but the mortgages and the subsequent transfers were not indorsed. The interest fell into arrear. The company borrowed money of the Exchequer Loan Commissioners; and by an agreement, executed at the same time, the prior mortgagees agreed that the Commissioners should, as to interest, have priority over the interest on the prior mortgages, and as to principal over the principal of these prior mortgages. The Commissioners, on the interest becoming in arrear, entered into possession and took the tolls, &c.; and, acting under the powers of several public acts of parliament, under some or one of which they had powers of sale over property mortgaged to them in default of payment of interest on the money advanced by them, sold the mortgaged property to a railway company. Interest on prior mortgages fell into arrear in 1818; and in 1831 the treasurer of the company wrote to the holder of prior mortgage securities, treating him as holder thereof, and expressing regret at the non-payment of interest. The owner of some of the original mortgages, who was also transferee of others, bequeathed the same, and the legatee filed a bill to enforce the agreement as to priority, and one of the Vice Chancellors made a decree accordingly in the plaintiff's favour. Commissioners had no power to sell discharged from the prior mortgages; railway company purchased with notice of the

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want of their indorsement, and had treated them as valid; the letter sufficient acknowledgment to take the case out of the operation of the Statute of Limitations, 3 & 4 Will. 4. c. 27; and plaintiff entitled to an account of the tolls, &c., while the Commissioners and their purchasers had been in possession. Jortin v. South-Eastern Rail. Co., 343 IMPERTINENCE-On hearing of a petition for dispo sition of a sum of money paid into court under the Lands Clauses Act, an objection was made that an affidavit was oppressively long. The Court considered the question, and, being of opinion that it was so, made a direction to the taxing Master in the terms of the 122nd Order of May 8, 1845. Re Skidmore's Estate, 711

INCLOSURE-Authority of Commissioners under General Inclosure Acts to sanction exchanges of estates in separate and distinct counties, and to shift the title, though not the tenure, of the one estate to the other.Tenants for life or for other partial interests may, notwithstanding the settlement under which they hold, initiate such exchanges, so as when complete to bind those in remainder.Purchaser bound to complete his purchase of an exchanged estate, though, until the exchange, it was subject to limitations in strict settlement, under which the vendor had only a life interest. Minet v. Leman, 545

INFANT-If an infant on attaining his majority repudiates, before the hearing, a suit instituted on his behalf by his next friend, the repudiation has relation to the commencement of the suit, and deeds deposited in court by an order therein will be ordered to be returned to the party by whom they were deposited, notwithstanding a claim of lien for costs incurred for the infant plaintiff in the suit set up by the next friend and his solicitor. Dunn v. Dunn, 581

The Court, knowing the facts of a cause recently heard, will make an order that an infant born pending the suit shall be bound by the decree, though it was made in her absence, as a party to the suit. Jebb v. Tugwell, 670

See Partition. INJUNCTION-The Court will restrain the imitation for the purposes of sale of a trade mark where such imitation may be used for fraudulent purposes, notwithstanding that there may be no proof of any actual injury suffered by the plaintiff.It is not necessary to shew that the imitation of the trade mark was made or sold with the intention of committing fraud, or that any fraudulent use has been made of it. If the defendant puts it in the power of other persons to commit a fraud, that alone is a sufficient ground for restraining him, without waiting till the whole fraud has been brought to a completion. Farina v. Silverlock, 632

See Company. Copyright. Equitable Defence at Law. Lands Clauses Consolidation Act. Receiver. INSOLVENT-An insolvent, upon obtaining his discharge, assigned all the property to which he should become entitled, to his assignees, and executed a warrant of attorney to confess judgment, in pursuance of the provisions of 7 Geo. 4. c. 57. Judgment was never entered up during the life of the insolvent, who before his death became entitled to leasehold property. The personal representative, and not the assignees, entitled to the afteracquired property. Holsgrove v. Hedges, 456

A vesting order having been made under 1 & 2 Vict. c. 110, vesting the property of an insolvent in the provisional assignee, the suspension of all

property had not been sold, some of the leases
would have been renewable, the precentor was en-
titled to be paid out of the fund in court a sum of
money as an equivalent for the fine which he would
have received on renewal; and it was referred to
chambers to ascertain amount to be paid. Ex
parte the Precentor of St. Paul's, 395
LANDS CLAUSES CONSOLIDATION ACT (continued) —
Construction of sections 18, 21, 23. and 92. as to
compulsory powers of purchase and effect of notice,
counter-notice and assent. Schwinge v. London
and Blackwall Rail. Co., 405

Upon notice by railway company to treat, effect
of counter-notice, under section 92. of the Lands
Clauses Act, requiring the company to purchase
the whole premises.--Semble, an easement is not
"land" within the meaning of the Lands Clauses
Act. Pinchin v. London and Blackwall Rail. Co.,
417

Compulsory clauses in public acts of parliament
will authorize the taking of lands, although the
same are inalienably settled upon a family by act
of parliament, and the person having the present
interest may sell and convey such lands. But no
interest in the Crown can be affected without its
being specially named in the particular act. In re
Cuckfield Burial Board, 585

Where land was taken for a gaol by Justices of
a borough whose powers were afterwards taken
away by the legislature, and together with new
powers given to other bodies, the corporation of the
borough represented the Justices, and must pay
the costs of obtaining the money out of court.-
Service of petition upon a material party does not
necessarily ensure him his costs. In re Justices of
Coventry, 586

LAND-TAX-Equitable tenant in fee contracted to
purchase rent-charge in lieu of land-tax redeemed,
which was charged upon estates of which he was
so tenant in fee, and rent-charge was conveyed to
trustees of estates. Subsequently, he contracted
to sell the estates free from any incumbrances.
First, land-tax entirely extinguished; and, second-
ly, rent-charge in lieu thereof merged in the in-
heritance, and, consequently, purchaser entitled to
hold estates free from such charge. Bulkeley v.
Hope, 356

LEGACY-Testator bequeathed 3,000l. to trustees,
upon trust to pay the income for maintenance of
S. S. and C. S, and when the youngest should have
been born twenty-one years to divide the principal
equally between them, if they should then both be
living, but if either of them should be then dead,
testator gave his moiety to the children of M. B.
C. S. died an infant. S. S. attained twenty-one, but
died before C. S, the youngest, would have been
born twenty-one years. The interest of S. S. vested
in one moiety of the fund, and passed by his will.
In re Smith's Will, 466

Testator directed his trustees to pay an annuity
to a single woman, by whom he had had an illegi-
timate child, during her life, provided that she
should continue single, and that she should neither
cohabit nor have connexion with any man; his
reason being that if she were to marry her child
would be neglected; and for a further reason, that
no man should have the spending of his hard-
earned money. The annuitant having married, it
was held, that the proviso against marriage was
valid, the condition being incorporated with the
gift, and the object being to protect the child.
Potter v. Richards, 488

Testator gave certain shares in his property to
his nephews and nieces, and revoked all legacies
and bequests which any of his legatees should en-

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deavour to sell, mortgage, or in any way antici
pate; and in case any of his nephews or nieces
should at any time before their respective legacies
became due and payable, become bankrupt or com-
pound with his or their creditors, then he revoked
the legacy to such person. One of the nephews,
before his share became payable, executed a deed
assigning all his stock-in-trade, &c., and all his
property and estate, both real and personal, of
which he was possessed, or to which he was en-
titled, to trustees, to make an inventory thereof,
and to proceed to sell the same for benefit of his
creditors. Deed not a composition with creditors;
no forfeiture of the legacy; legacy did not pass
under the assignment, but went to representatives
of the nephew. In re Waley's Trust, 499

Upon bequest to trustees upon trust to pay in-
come of trust property to testator's daughter for
life, and after her decease to divide the capital
equally amongst all her children then living, pro-
vided all had attained twenty-one; but, if not, to
apply the income towards the maintenance of all
such children until the majority of the youngest,
and when that should happen, to divide the capital
among the children then living and the issue of
such as should be dead, the legacies vest at death
of the daughter, though a doubt may be created
by a subsequent part of the will. Brocklebank v.
Johnson, 505

Lapsed. See Devise.

LIEN-A solicitor has no lien for his costs upon
real estate recovered in an action of ejectment;
such costs are not similar to costs due to solicitor
for recovering a fund which is in court.-Under
1 & 2 Vict. c. 110, 2 & 3 Vict. c. 11, and 3 & 4 Viet.
c. 82, registration of Master's allocatur does not
create a lien for costs taxed.--Orders of Court,
&c. can alone be registered to create a lien; but
registration every five years is necessary to prevent
other securities from obtaining priority. Shaw v.
Neale, 563

A solicitor had prepared a deed for a client
upon which he had a lien for his costs of preparing
it. In a suit between other parties the solicitor
was served with a subpona duces tecum to produce
this deed. It was held, that his lien did not pro-
tect the solicitor from producing the deed as evi-
dence on the issue raised between the parties to
suit; but this order was without prejudice to the
question, whether the deed could be produced with-
out notice to the parties to whom, subject to the
lien, the same belonged. Hope v. Liddell, 691

A firm of solicitors prepared and engrossed a
re-conveyance from a mortgagee to their client,
the mortgagors, in consideration, stated in the
deed, of 3987. This deed was sent to the mortga
gee's solicitors with a letter desiring that it might
be held by them on the account of the senders, who
had a lien upon it for costs. The 3981. was not
paid, and the mortgagee's solicitors retained the
deed. The firm of solicitors received a promissory
note, upon which part of the costs were paid. The
land was sold, subject to the mortgage. The firm
of solicitors filed a bill against the mortgagee and
the purchaser for the delivery up of the deed. It
was held, that the lien was not lost by the deliver-
ing over of the deed; that they were entitled to
redeem the mortgage of 3981.; that they were en-
titled to hold the deed against the mortgagor; and
that the taking of the promissory note for part of
the debt due to them did not affect their lien for
the money not covered by it. Watson v. Lyon, 754
See Infant. Solicitor.

LIMITATIONS, STATUTE OF-By virtue of a settlement
an estate stood limited to A. in tail, with remainder

to his three sisters as tenants in tail, with cross-
remainders in tail between them. A. sold the
estate, and the purchaser had been in possession
more than twenty years since the death of A, but
no conveyance was ever executed. On death of A,
one of his sisters, who was a married woman,
became entitled to one third, another sister, un-
married, became entitled to another third, but she
lived for one year only, and her share then de-
volved upon the married sister. A. died three
years before the 3 & 4 Will. 4. c. 27. was passed.
The 21st and 22nd sections of that act were held to
be retrospective; and the married sister of A, as
to her own share, was not barred by the statute,
she having been under disability, and her rights
being saved by section 16: but she was barred as
to the share which devolved upon her after the
death of her unmarried sister, by reason that
the statute having commenced running against a
tenant in tail, it would continue to run against the
remainderman, although he might be under dis-
ability. Goodall v. Skerratt, 323

Real estate was settled to the use that A. should
take an annuity of 4001. during the lives of A. and
B, with remainder to trustees for a term of 1,000
years to secure it, with remainder to the use of B.
for life, with remainder to the use of A. in fee. By
a deed, dated in 1828, A. granted an annuity of 457.
to C, for certain uses, and charged it on the an-
nuity of 400l. and the settled estate, and demised the
settled estate to D, as trustee for a term of 1,000
years, upon trust for better securing it. The deed
The last
contained the usual proviso for cesser.
payment of the annuity of 451. was made in 1833.
B. died in 1844. In a foreclosure suit, instituted
by a mortgagee of the settled estate, a reference
was made to the Master to inquire and state in-
cumbrances, and their priorities. C. claimed before
the Master to be entitled to the arrears and future
payments of the annuity of 451. C. not barred by
the Statute of Limitations, and entitled to arrears
and future payments. Mansfield v. Ogle, 700

See Account. Administration of Estate. Har-
bour.
LUNACY--A curator bonis of a lunatic's estate ap-
pointed by a Scotch Court may sue in England for
debts due to the lunatic. Scott v. Bentley, 214

P, confiding in the carefulness and secresy of
C, entrusted her from time to time (beginning
in 1806) with money to invest in the funds on P.'s
behalf. In 1839 P. and C. had a dispute about the
amount belonging to P, which was terminated by
S, the nephew of C. (who, on account of C.'s grow-
ing age and infirmities, had for some time been
accustomed to go with her to the Bank when she
received her dividends), who drew up a paper in
which it was stated that it was "agreed" that the
sum belonging to P. amounted to 4,300l. This
paper was left in S.'s custody. For some few years
afterwards S, on returning with C. from the Bank,
regularly paid to P. dividends calculated on that

sum.

In 1845 S. took out a commission of lunacy
against his aunt, and managed the commission.
The verdict returned was, that C. had been a luna-
tic since 1842. S. was appointed committee of the
lunatic. In 1847 S. refused to give up to P. the
paper signed in 1839. P. filed a bill against the
lunatic and S, and an answer was put in. C. died,
and on a bill of revivor and supplement, S, who
was her personal representative, put in a further
Under the circum-
answer referring to his first.

stances, first answer admissible in evidence against
S. in the second suit.- Quare-Whether, as a
general rule, the answer of the committee of a
lunatic is admissible in a suit against the lunatic's

personal representative to bind the lunatic's estate.
Stanton v. Percival, 369

A. advanced money to B. on mortgage. At the
date of the mortgage deed B. was a lunatic; but A.
paid the money to B. or his account, had no know-
ledge or notice of his lunacy, and did not take any
advantage of B. in the transaction. A. filed a bill
of foreclosure against the persons entitled to the
equity of redemption under B, who was dead. Not-
withstanding the lunacy of B, A. entitled to the
usual foreclosure decree. Campbell v. Hooper, 644.
MAINTENANCE. See Will.

MARRIAGE SETTLEMENT This Court will put a con-
struction upon foreign marriage articles requiring
a settlement to be executed, even though such con-
struction involves the removal of the entire fund
from the settlement. Byam v. Byam, 209

A husband and wife who have made a marriage
settlement of personal estate in a foreign form
must be taken to have contracted not only for such
powers of disposition over the property as are ex-
pressly reserved, but also for all such as by the
law according to which the settlement is to be con-
strued, are incident to the estates created by it, and
such powers are not lost by the parties afterwards
becoming domiciled in a country by the law of
which those powers are not incident to the estates.
Duncan v. Cannan, 460

By marriage settlement made between A. (in-
tended husband) of the first part, B. (intended
wife) of the second part, and C. and D. (trustees)
of the third part, certain property therein men-
tioned was settled on the usual trusts. The settle-
ment then contained thefollowing clause:-And it
is hereby declared and agreed by and between
the parties hereto, and A. doth hereby for him-
self, &c. covenant with C. and D, that, if B, or A.
in her own right, shall at the said intended mar-
riage or any time thereafter become entitled to any
personal estate, the same shall be and remain, and
A. will permit the same to remain, on the same
trusts, &c. And for the better effecting this pur-
pose, A, his heirs, &c. will pay, &c., and join with
B. in paying, &c., such sums, &c., to C. and D.
This clause applied to property only to which
marital right attached, and property to which B.
became entitled after death of A. was not bound
by it. Reid v. Kenrick, 503
MARSHALLING. See Mortgage.

MINE-There is no custom in mines worked on the
cost-book system to forfeit shares for non-payment
of calls without a special stipulation.---Partner-
nership not determined by declaration of forfeiture,
and on bill for dissolution of partnership plaintiff
entitled to an account and to appointment of mana-
ger and receiver; and plaintiff having a legal inter-
est in the mine, it could not be affected by acts of
his partners. Hart v. Clarke, 137

Upon partition of certain lands the mines of
lead and coal, and other mines and minerals, were
excepted. The term "minerals" included only such
substances as should be dug out of the earth by
means of a mine, that is, by means of a pit or tunnel
having a roof overhead, and did not include lime-
stone rock worked by means of an open quarry
having no roof. Davell v. Roper, 779
MORTGAGE-A corporation in order to complete a
canal raised money by mortgage of the canal and
of other property. They obtained an act, enabling
them to borrow money, to complete the canal, by
mortgage of the canal and tolls. They applied
part of the money raised under the act in paying
off the former mortgages. Corporation no autho-
rity to pay off former mortgages out of money