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reversing the judgment below, 40 Law J. Rep.
(N.s.) Ex., 137. Duncan v. Hill, and Same v.
Beeson (Ex. Ch.), Ex., 179

tion and report of the accountant to the arbitra-
tor was that much expense in the enquiry was
saved :—Held, that plaintiff, in whose favour
the award was made was not entitled to have
the costs of the accountant taxed against de-
fondant. Nolan v. Copeman, Q.B., 44

SUCCESSION DUTY alienation by remainderman

to body corporate: alienee liable as successor]–
Testatrix by will, made in 1839, devised real
property to one for life, and after his death to
a remainderman in fee, and died in 1841. The
remainderman, a cousin of testatrix, died in
1870, having previously sold his reversion in
fee to a corporation. The tenant for life died
in 1872:—Held, on an information against the
corporation, first, that the corporation, upon the
death of the tenant for life, were successors"
within ss. 2 and 27 of the Succession Duty Act,
1853, and were liable to pay succession duty
upon the full value. Secondly, that if neces-
sary the Court would have decided the death of
the remainderman to be immaterial, and the
rate of duty to be the same as would have been
payable by him if he had survived the tenant
for life without selling, but that at all events
the Crown had made out a prima facie case to
duty at that rate, since the Crown need not
prove the death of the remainderman, nor who
was his heir; and that if events had happened
by which the duty would be less, the corporation
must prove them. The Solicitor-General v. The
Law Reversionary Interest Society, Ex., 146

- plaintiff's costs: scale of taxation : action for
debt or demand]—If in an action of debt whore
the writ is endorsed with more than 501, the
plaintiff recovers less than 201., and the Judge
certifies, under 30 & 31 Vict. c. 142. s. 5, that
there was sufficient reason for bringing the
action in the Superior Court, the effect of the
seventh direction to the Masters, Hilary Term,
1853, is that the plaintiff's costs must be taxed
on the lower scale. Smith v. Hailey, Ex., 5

66

. action founded on contract or tort]-A de-
claration alleged that defendant at the time of
the promise and negligence therein alleged,
was the owner of a hackney cab at the time of
the promise conducted by his servant; that
plaintiff at his request hired it of him, and de-
fendant promised to convey plaintiff's luggage
safely, but not regarding his duty or promise
negligently lost the same:-Held, that the
action was founded on contract, and that as a
sum not exceeding 201. was recovered, plaintiff
was deprived of costs under 30 & 31 Vict. c. 142.
s. 5. Baylis v. Lintott, C.P., 119

SURGEON AND APOTHECARY—Right of surgeon to

TITHE-modus: conversion into tillage) - The

building a house upon land, subject to a modus
in lieu of tithe, and converting a part of it into
an orchard, is not a conversion into tillage or a
breach of the modus. Dudman v. Vigar (H.L.),

C.P., 297
The conversion of a small portion of land into a

sue for modicines. See Medical Act.

garden for the use and convenience of the house,
- Semble, not a conversion into tillage. Ibid.

Toll. See Railway Company.

TAXATION OF Costs-110w trial: costs to abide the

event]-By a rule for a new trial the costs were to
abide the event. On the first trial plaintiff had
obtained a verdict for 661. odd; as to 51. there
was no dispute, and dofendant had leave to
move for a new trial, on the ground that the
verdict was against the weight of evidence and
the damages excessive, unless plaintiff would
consent to reduce the damagos to 51. Defendant
obtained a rule nisi for a new trial on such
ground, which was subsequently made absolute,
the costs to abide the event, and afterwards and
before the second trial, defendant paid into
Court 51. 2s. 10d, under an order by consent.
At the second trial defendant had a verdict :-
Held, that plaintiff was not entitled to the costs
of the first trial, and that the “ event” referred
to in the rule meant the dispute as to the balance
betweon the 661. 195. 6d. and the 51. Jones v.
Williams, Q.B., 48

TOLL TRAVERSE-liability of railway company to

ancient toll)– The simple fact of a corporation
being entitled to an ancient drift toll on waggons
passing to, through or from a borough does not
support a claim (even if such a claim can be legal)
to take toll on railway waggons passing over a
railway made through the borough-affirming
the judgment below, 41 Law J. Rep. (N.s.) C.P.
257. The Brecon Markets Co. v. The Neath and
Brecon Rail. Co. (Ex. Ch.), C.P., 63

TRESPASS. See Easement. Highway.

arbitration : accountant appointed by arbi-
trator]-On a reference of a cause involving
an enquiry into a mass of accounts, an order
was made by a judge, on the application of
plaintiff, that an accountant, to be named by
the arbitrator, should inspect defendant's books
and take copies or extracts from them relating
to the matters in question in them. This was
done, and the charges of the accountant were
paid by plaintiff. The result of the investiga-

TROVER—sale of horse in market overt : 2 8 3 Ph.D.

M. c. 7; 31 Eliz. c. 12]-Defendant's mare,
which he had turned out in a public park, was
found out of the park, and was sold at public
auction by the “pinner.” After an interme-
diate sale she was sold in market overt to
plaintiff

, and was subsequently taken possession
of by defendant. There was no proof that the
title in vendor: recovery of deposit] - Land
was put up for sale by auction, subject to
conditions (among others) that “the vendors
should within seven days of the sale deliver
to the purchaser an abstract of their title,
all objections and requisitions not delivered
to the vendors within fourteen days after
the delivery of the abstract to be con-
sidered as waived, and in this respect time to be
of the essence of the contract;" that “the vendors
being trustees should not be required to obtain
the concurrence of any one interested in the
proceeds of the sale ;" and that “if the purchaser
should fail to comply with the conditions his
deposit should be forfeited.” An abstract was
delivered to the purchaser within seren days,
shewing that the property had been devised to
trustees (of whom the rendor was

USER. See Common.

formalities which the stat. 31 Eliz. c. 12 requires
upon the sale of horses at fairs and markets
had been observed :-Held, that in the absence
of such proof the Court would not infer that
such formalities had been observed, and that
plaintiff could not maintain an action for the
mare against defendant, the true owner. Moran
v. Pitt, Q.B., 47

set

Trover (continued)--waiver of tort : petitioning

court of bankruptcy and obtaining proceeds
of goods sold under bill of sale)-Defendant
sold the goods of D. under a bill of sale.
D. became bankrupt, and plaintiff, his trustee
petitioned the Court of Bankruptcy to
aside the sale as fraudulent or void, and
order payment of the proceeds (the amount
of which he knew) to him. The Court so
ordered, and the money was paid. Plaintiff
afterwards being dissatisfied with the amount
realised, and desiring to obtain the difference
between the value of the goods and proceeds of
the sale brought trover against defendant:-
Held, that he could not do so, as by his acts
he had waived the tort. Smith v. Baker, C.P.,
155

VENDOR AND PURCHASER — conditions : want of

the survivor)
upon trust to pay the income to F. S. for life,
and after his death to sell and divide the
proceeds among his children; and that F. S. was
still alive. The abstract did not state whether
he had children living, though there were in
fact eight all of age :-Held, that the vendor
having thus no title to sell the property, the
purchaser was entitled to recover back his de-
posit, although he had made no requisition
within the fourteen days—the Court being of
opinion that the conditions as to waiver and
forfeiture referred only to the waiver of re-
quisitions for further information or security in
the case of a defective title capable of being
made good on the defects being supplied, but
not to the case of a title wholly bad. Held
also, by KELLY, C.B., that the abstract delivered
was not a sufficient abstract. Want v. Stalli-

brass, Ex., 108
Semble, by MARTIN, B., and POLLOCK, B., that the

abstract, if a true abstract of such title as the
vendors had, sufficiently indicating points calling
on the purchaser to make further requisitions,
was an abstract of their title within the mean-
ing of the condition, although the title was not
such as the purchaser was bound to accept.
Ibid.

interference by assertion of right to posses-
sion : acquiescence in assertion of right] --The
grantee under a bill of sale of furniture eing
in possession in the house of the grantor and
intending to remove the goods from the pre-
mises, was told by the landlord (who was there
for the purpose of distraining) that he would
not allow them to be removed till his arrears
of rent were satisfied, and that he was prepared
to resist the removal by force.

The grantee
thereupon made ‘no further attempt to remove
the goods :-Held, by KELLY, C.B., BRAMWELL,
B., and POLLOCK, B. (dissentiente Martin,
B.), that such assertion of the intention not to
allow the removal of the goods did not, under
the circumstances, amount to a conversion by
the landlord. England v. Cowley, Ex., 80

Trust and TRUSTEE. See Company.

TURNPIKE Trust-Power to take tolls on particular

road on condition of keeping it in repair. Con-
tribution under 4 & 5 Vict. c. 59. 8. 1. Trustees
of Market Harborough and Brampton Turnpike
Trust v. Market Harborough Highway Board
(M.C., 139), Q.B., 237

Arrears of interest due to mortgagees. Ap-
plication of tolls. Contribution under 4 & 5
Vict. c. 59. Trustees of Market Harborough and
Brampton Turnpike Trust v. Kettering Highway
Board (M.C., 137), Q.B., 244

objections to and requisitions on title : delivery
of untrue abstract without fraud : rescission of
contract and damages for loss of bargain]
Real property was sold on the condition that
the vendors should deliver an abstract of the
title, and the purchaser should make his objec.
tions and requisitions in respect of the title
within twenty-one days from the delivery of
the abstract; and all objections and requisitions
which should not be made within the time
specified should be taken to be waived; and
in case any purchaser should make any objec-
tion to or requisition on the title which the
vendors should be unwilling or unable to answer
or comply with, the vendors reserved to them-
selves the option at any time to rescind the
contract. The vendor having delivered an

UNION ASSESSMENT COMMITTEE Act, 1862–Deposit

of Amended Valuation List. R. v. The Guar-
dians of the Chorlton Union (M.C., 34), Q.B., 40

mance.

a river had been supplied for more than twenty
years by water flowing from a stream through
an ancient divergent channel, and conducted
thence through a reservoir and tunnel con-
structed in his own land by a former proprietor
of the mill, who was also the owner of both
banks of the divergent channel. At the place
where the reservoir was constructed the diver-
gent stream had formerly, after filling and over-
flowing a cattle-trough, been allowed to waste
itself over the adjoining land, whence it found
its way by percolation to the river, into which
the stream itself also flowed:-Held, following
Nuttall v. Bracewell (36 Law J. Rep. (N.s.)
Exch. 1), that an action was maintainable by
the present owner of the mill, who had pur-
chased it with all existing water rights, against a
riparian proprietor above the point of divergence
in the original stream, for obstructing the flow
of water to the mill. Holker v. Porritt, Ex., 85

WEIGHTS AND MEASURES-selling on high wily by

incorrect spring balance. Booth v. Shadyett,
(M.C., 98), Q.B., 212

was an

abstract, the purchaser within the twenty-one
days made a frivolous objection to the title as
disclosed in the abstract, and as he insisted
on it the vendor filed a bill for specific perfor-

The purchaser having meanwhile dis-
covered the existence of certain deeds which
materially affected the title, and which were
omitted from the abstract, raised an objection
on this ground for the first time in his answer
to the bill. This omission was made inten-
tionally, but bona fide and under the advice
of counsel, as it was supposed that the deeds
did not affect the title. (The vendor, however,
had, under a previous contract to sell this pro-
perty, disclosed these deeds on the abstract
then delivered, and had abandoned such con-
tract when an objection founded on these deeds
was raised to the title.) Several months after
the filing of the answer, the vendor gave the
purchaser notice that he rescinded the con-
tract, and the bill was eventually dismissed on
the purchaser's motion without costs. The pur-
chaser having brought an action against the
vendor for breach of contract in not deducing
a good title,—Held, in the Exchequer Cham-
ber, per BLACKBURN, J., KEATING, J.

, BRETT, J.,
ARCHIBALD, J., and HONYMAN, J., that the ob-
jection founded on the omission of the deeds

objection to the title” within the mean-
ing of the condition, and entitled the vendor
to rescind, and that the action was not maintain-
able. Per GROVE, J. (agreeing with the de-
cision of BRAMWELL, B., in the Court below),
that the vendor was not entitled to rescind,
since the option reserved by the condition ap-
plied only to objections to the title as disclosed
in the abstract. Gray v. Fowler (Ex. Ch.), Ex.,

161
WARRANTY. See Charter-party.
WATER COMPANY — water-rate varying accord-

ing to "rent" of houses: rent meaning
annual valuedeductions]—Plaintiffs were
required by their special Act to furnish
water to every inhabitant occupying a house
within a certain district, at a rate which
varied according to the amount of the rent
per annum" of such house.

Defendant was
the owner of several houses, which he let to
tenants for various terms not exceeding three
months. In respect of some of the houses
defendant paid poor-rates, district rates and
water-rates, instead of the tenants, either be-
cause he had let the houses on those terms or
because the obligation was imposed on him by
statute :-Held (affirming the judgment of the
Court below, 41 Law J. Rep. (N.s.) Exch.
233), that in calculating the water-rate, the
payments made by the defendant in either
case must be deducted from the rents at which
the houses were let. The Company of Pro-
prietors of the Sheffield Water Works F. Bennett
(Ex. Ch.), Ex., 121

WILL—“80 specifically devised"]-A specific devise

or bequest is a devise or bequest by a de-
scription which identifies a particular subject
then existing as intended to pass to the donee
in specie either directly or indirectly. Giles v.

Melsom (H.L.) C.P., 122
A testator dovised three properties to his three

sons respectively for life, with remainder in
fee to their respective children, and in case of
the death of either of them without issue be.
tween the others “in the same manner as the
estates devised were limited to them respec-
tively,” subject to the proviso that if either
died leaving a widow, but no children, the
widow should have an estate for life in the
premises "so specifically devised” to her hus-
band :—Held, that the devise to such widow
attached, not only to the property originally
devised to her husband, but also to property
coming to him under the contingent limitations.
Ibid.

66

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general rules of construction: all and every
other the issue of my body: for default of such
issue]-Testator had issue living at the time of
his will, a son F. (who had then living two sons
F. and R. and three daughters E., I., and S.),
a daughter I. and four grandchildren issue of
a deceased daughter S. By his will he devised
his hereditaments to his son F. for life, with
remainder to his eldest grandson F. for life,
with remainder to the first and other sons of
the grandson successively in tail male; and for
default of such issue to R. the second son of
his son F. for life, with remainder to his first
and other sons successively in tail male, or
for default of such issue to the third, fourth and
other sons of his son F. thereafter to be born
successively in tail male; and in' default of
such issue, to the testator's daughter I. for
life, with remainder to her first and other sons

E

WATER COURSE-riparian rights : diverging stream

confined in artificial course]-A mill on the bank of
NEW SERIES, 42,—INDEX, Com. Law.

successively in tail male; and for default of
such issue, to his granddaughter E. for life, with
remainder to her first and other sons succes-
sively in tail male; and for default of such
issue, to his granddaughter I. for life, with
remainder to her first and other sons succes-
sively in tail male; and for default of such issue,
to his granddaughter S. for life, with remainder
to her first and other sons successively in tail
male; and for default of such issue, to all and
every the fourth, fifth and other daughter or
daughters of his son F. successively, and in
remainder, one after another, and the heirs
malo of their bodies; and “for default of
such issue, to the use and behoof of all and
every other the issue of my body; and for
default of such issue, to my right heirs for
ever.” And he expressed a desire “ to prevent
as far as might be the dispersion of his estates
among several persons" :--Held, that the words

“all and every other the issue" were not to be
read in the strict sense of intending to exclude
those coming within the class who were pro-
vided for before, and were supposed to have
failed, but rather to complete a provision for all
the issue, so as to make the estato go over by
force of the words in the limitation in default
of such issue” only upon failure of all the tes-
tator's issue ; and that thus a vested remainder
in tail general was created which descended to
the testator's grandson F.; and that, he having
executed a disentailing deed, and all the previous
estates having expired, his devisees were en-
titled to the property. Allgood v. Blake; Reed
F. Blake ; and Roach v. Blake (Ex. Ch.) Ex., 101

WITNESS. See Interrogatories.

WRIT OF SUMMONS. See Amendment.

ERRATA.

Court of Queen's Bench, page 57, line eight of the Head Note, for "consignors,
read “ consignees.”

Also, Court of Common Pleas, page 24, second column, fourth line, for conceded,
read “ contested."

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In this Table the letters M.C. denote that the case belongs to the MAGISTRATES' Cases,—the Head-note only

being given in the QUEEN'S BENCH, COMMON PLEAS, or EXCHEQUER respectively.]

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Edwards, In re, 99
Elbinger Actien-gesellschaft für Fabrication von

Macauley y. Furness Rail, Co., 4
Market Harborough, &c., Turnpiko Trust v.
Kettering Highway Board (M.C., 137), 244

eisenbahn-Materiel v. Claye, 151 Everingham v. Ivatt (Ex, Ch.), 203

v. Market Harborough Highway Board
(M.C., 139), 237
May v. Great Western Rail. Co. (Ex. Ch.), 6
Mersey Dock and Harbour Board v. Birkenhead,

Overseers of (M.C., 141), 236
Miles v. Furber, 41
Mills v. Scott, 234 -
Moore v. Metropolitan Rail. Co., 23
Moran v. Pitt, 47

Fisher v. Liverpool Marine Insur. Co., 224
Fitzpatrick v. Kelly (M.C., 132), 213
Fletcher v. Krell, 55
Foulger v. Steadman (M.C., 3), 16

Gas Light, &c., Co., F. Vestry of St. George,

Hanover Square (Ex. Ch.), 50
Gee v. Metropolitan Rail. Co. (Ex. Ch.), 105

Nolan v, Copeman, 41

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