turning out to be unfit, exchanged them for fit timber. He must at his own peril select and cut down only such as are fit. (Com. Dig. Waste (D.) 5; Co. Litt. 636; 2 Roll. Ab. 823. 1. 14. Simmons v. Norton, 7 Bing. 640.

WHARFINGER.

A wharfinger who has, in writing or orally, admitted goods in his possession to be the property of A., is estopped to dispute A's. title to recover them in trover. Gosling v. Birnie, 7 Bing. 339.

WITNESS.

An attachment against a witness for not attending on a subpœna will not be granted unless it be sworn that he was a necessary and material witness.

Per Cur. 'It is a doubtful point whether it be necessary to produce the original writ of subpoena at the time of service.' (Wakefield v. Gall, Holt's Rep. 526.) Taylor v. Willans, 4 M. & P. 59.

(Interested.) In an action for goods sold, the defendant cannot call a person to prove that he received the price from him, if the payment was obtained by a misrepresentation of a sort to render such person liable to the defendant for the consequences of such misrepresentation (i. e. for the costs of the action, as damages resulting from the deceit, as well as for the money paid), in case of the plaintiff succeeding. (Jones v. Brooke, 4 Taunt. 464.) Larbalestier v. Clark, 1 B. & Ad. 899. (Where Expenses and Loss of Time allowed.) The expenses of a material witness brought from abroad are to be allowed in taxed costs, though no subpoena could have been issued to compel his attendance. Such witness having refused to come without compensation, an allowance for loss of time is also to be made. (Moor v. Adam, 5 M. & S. 156; Severn v. Olive, 3 B. & B. 72.) Lonergan v. Roy. Exch. Ass. 7 Bing. 725, 729. WRECK.

་

Trespass for taking a cask of whiskey. One H. first seized the cask in question on the sea-shore, landed it, and gave notice of the fact. The defendant claimed and took possession of it for the corporation of S., and refused to deliver it to the plaintiffs, who were grantees from the crown, of wreck within the liberty where the cask was taken. The captain had escaped from the wreck of which the cask was a part, and the owners claimed the cask within a year and a day. Held, that the grantees had such a special property in the cask as entitled them to maintain the action. The Bailiffs, &c. of Dunwick v. Sterry, 1 B. &

Ad. 831.

EQUITY.

3 Simons, P. 1; 4 Simons, P. 4; 2 Dow & Clark, P. 1 and 2; 3 Bligh, P. 3.

AWARD.

By the law of Scotland an award is good as far as it goes, even if the arbitrator does not decide on the whole matter before him, provided it be unobjectionable in other respects. Maclellan App., Macleod, Resp., D. & C. 121.

CHARTER.

A charter from the crown must be accepted or rejected in toto unless there should appear an intention on the part of the crown that the body to whom the charter is given should have liberty to accept in part and reject in part. Lovell v. Westwood (in error), D. & C. 21.

INSURANCE.

The judgment of the Master of the Rolls in the case of Bolland v. Disney, 3 Russ. 383, was reversed in the House of Lords, on the ground that, as a condition in a policy saving the insurance in the event of the party effecting the insurance committing felony, would clearly be void, as affording encouragement to crime, and being contrary to public policy — so no effect could be given to a policy which in reality involved that condition. Amicable Society, App., Bollond, Resp., D. & C. 1. LIMITATIONS, STATUTE OF.

The assignee of an equitable tenant for life holds over, after the death of the tenant, against the trustee of both the assignee and remainderman: Held, that during the life of the assignor, the assignee stood precisely in his situation, and that the possession of the assignor did not become adverse until the death of the assignor, from which time only the statute of limitations began Faussett, App., Carpenter, Resp., D. & C. 232.

to run.

PRESCRIPTION.

Upon the trial of an issue, directed to try whether; for forty years and upwards, prior to 1822, there existed a public foot-path from G. to C.; it was proved, that the road was used, without interruption, from 1755 to 1789; there having been, during that period, stiles placed in the fences in order to facilitate the passage of persons using the way: from 1797, down to the trial, various interruptions had taken place, but in no instance had they proved successful; the fences erected having been

invariably pulled down. The judge at the trial directed the jury that the interruptions proved, were not sufficient to defeat the right of the public after forty years' enjoyment. Upon a bill of exceptions to this direction, it was held, that on thirtyfour years uninterrupted right, the jury ought to presume a previous enjoyment corresponding with the manner in which the road had been enjoyed during the 34 years; establishing according to the laws of Scotland a prescriptive right of way. Harvie, App., Rogers, Resp., Bligh, 440 PRINCIPAL AND AGENT.

B., a gentleman resident in the country, applies to R., a dealer in English and foreign funds, for his advice in dealing in foreign stock; and by his advice, and through his agency, effects various sales and purchases, which subsequently turned out to have been not bona fide transactions, but mere nominal transfers of the dealer's own stock, the difference being settled in account: Held, that the transaction must all be set aside, the parties not being on an equality; R. possessing a knowledge which B. could not possess; and R. being the agent for B., notwithstanding his advice might on all occasions have been honestly given, yet as the law will not permit a man to put himself in a situation in which he can exercise a power to take advantage of the weakness or ignorance of another reposing confidence in him; that R. was bound to show by clear evidence that B. knew at the time the real nature of the transactions, and with full knowledge of their nature assented to them. Rothschild, App., Brookman, Resp., D. & C. 188. PRESUMPTION.

In 1711, a mortgage for a term of years was made to A. In 1712, a mortgage in fee of the estate was made to B. in trust for A. In 1714 the term was assigned to C. in trust to attend the inheritance, and afterwards the equity of redemption in fee was conveyed to A. In 1817, A. after reciting that he was seised in fee, confirmed a lease for 99 years made by a former owner. Subsequent owners treated the estate as theirs absolutely. A re-conveyance of the legal fee was presumed.-Noel v. Benby,

3 Sim. 103.

SPECIFIC PERFORMANCE.

Where an estate, consisting of fen land, and so described in the particular of sale, was charged by a local but public act of parliament with drainage and embanking taxes, of which the purchaser had not notice, a specific performance was decreed,

without a compensation for those taxes. Sim. 433.

STATUTE OF LIMITATIONS.

Barraud v. Archer,

The statute may be pleaded to a bill of discovery in aid of an

action at law, where it has been pleaded to the action, notwithstanding it is a defence at law. M'Gregor v. The East India Company, Sim. 452.

A plea of the statute need not deny the usual allegation that the defendant has in his power books, documents, &c., unless it is alleged that such books, documents, &c. if produced, would show a promise given within six years. S. C. VENDER AND PURCHASER.

On a sale under a decree, the abstract represented N. C., the testator of the vender, as devisee of J. C., who purchased the estate afterwards it appeared that the conveyance to J. C. was executed subsequently to the date of his will, and consequently the heirship of N. C. to J. C. was required to be proved by certificates of the marriage of the parents, and of their own baptisms. The vender's solicitor replied, that he could not find the entry of the marriage, but the entries of baptism shewed J. C. to have been born in 1726, and N. C. in 1731; and added that N. C. was admitted as heir to J. C. to certain copyholds not surrendered by the former to the use of his will. Upon this evidence the Master reported in favor of the title. Before the conveyance could be executed, the purchaser discovered by the parish register that J. C. had a brother, born in 1727, whose son now set up an adverse claim, and that the vender's solicitor was aware of this fact, but concealed it. A motion for the purchaser to be discharged from his purchase was granted, although the son of the second brother had previously granted a release of his claim. Dalby v. Pullen, 3 Sim. 29. VOLUNTARY CONVEYANCE.

A conveyance by a debtor to a trustee, upon trust to sell and pay certain scheduled creditors, cannot be enforced by them, unless they have become parties to the deed by executing it; such a conveyance being merely a private arrangement by the debtor for his own convenience, and the grantee or trustee for him, and not for the creditors. Garrard v. Lord Lauderdale, 3 Sim. 1.

WILL.

A testator gave to his daughter and her children 50007.; 3000l. to be paid within one year after his decease, and 20007. within one year after the decease of his wife, and appointed trustees of those sums for his daughter and her children. Held, that the

legacy was in trust for his daughter for life, and after her decease, for all her children, whether born during the testator's life or afterwards. Morse v. Morse, Sim. 485.

A testator bequeathed the residue of his personal estate to H. D. for his own use and benefit; and in case he should die in the lifetime of the testator, or afterwards, without having any children, then the residue was to go over. H. D. survived the testator, and died without having had any children. Held, that the gift over took effect. Stone v. Maule, Sim. 490.

A testator, residing in India, gave a legacy to J. P., who resided at S., when I left England, or to his heirs, executors, administrators or assigns, for ever." J. P. died previously to the testator, leaving his father his only next of kin. Held, that the bequest over was totally void for uncertainty. Waite v. Templer, Sim. 524.

J. N., a sculptor, having bequeathed articles used in his business. by their technical names, many of which were very obscurely written; it was referred to the Master to inquire what was meant, he calling to his assistance persons skilled in the art of writing, and also persons having a competent knowledge of the tools and articles used in the business of a statuary: upon the evidence of three eminent sculptors, the word 'mod' was decided to mean models; and they were directed to be transferred accordingly. Goblet v. Beechy, 3 Sim. 24.

A bequest of a reversionary interest to an executor raises a presumption against his taking the residue; but parol evidence is admissible to rebut that presumption.

The statute 1 W. 4, c. 40, declares that an executor shall be a trustee for the testator's next of kin of the residue undisposed of, unless it appears by the will or codicil that he was intended to take beneficially.

PARTNERSHIP.

PRIVY COUNCIL.
Knapp, Part 3.

Where there were three partnerships, the first consisting of A. and B., the second of A. B. and C., and the third of B. and C., it was held, that the last could not charge commissions for collecting debts due to the two first; it being really a charge by a partner for collecting a partnership debt. Whittle, App., M'Farlane, Resp., p. 311.