GUARANTY.

The defendant entered into the following guarantee with the plaintiff: "You will please to credit D.M K. to the extent of £30 monthly, from time to time, and in default of him not paying I will be accountable for the above amount." Held-That this was a continuing guaranty for goods supplied to the value of £30 in each month, and not a guaranty to the amount of £30 only. Tennant v. Orr, 9 Ir. Jur. N.S., 131.

C.P.

The true rule in construing a guaranty is not to construe it either strictly against the guarantor or in favour of him, but according to what the court can ascertain to be the intention of the parties to it. Ib. To an action on a guarantee in the above terms the defendant pleaded the guaranty, and paid into court £30, saying that was all that was due upon it. Upon a motion to make absolute a conditional order to reduce a verdict for £225 11s. 10d., obtained by the plaintiff, by the amount of a bill of exchange, taken on account of the amount due upon the guaranty, and from which the defendant had been discharged by the laches of the plaintiff. Held-That the case sought to be made being apparently inconsistent with the former one, and the parties having gone to trial on other questions, the defendant was not entitled to the reduction sought for, or to such an amendment of the pleadings as should raise the defence of the pass ing of the bill of exchange, and the laches of the plaintiff. Ib.

HIGHWAY.

The trackway along the Grand Canal, vested in the Grand Canal Company by stat. 11 & 12 Geo. 3 (Ir.), c. 31, is a public highway, and since the passing of the Rathmines Improvement Act is to be repaired by the Rathmines Improvement Commissioners, in whose district it is. So held by O'Brien, J., and Hayes, J., dissentientibus Lefroy, C.J., and Fitzgerald, J. The Queen v. The Rathmines and Rathgar Improvement Commissioners, 9 Ir. Jur. N.S. 301.

The proper remedy to compel the commissioners to repair is by mandamus. So held by O'Brien J., and Hayes, J., dubitante Lefroy, C.J., and dissentiente Fitzgerald, J. 1b.

HUSBAND AND WIFE.

In an action for necessaries provided by the plaintiff for the defendant's wife, the substantial question was as to the fact of a marriage having taken place between the defendant and his alleged wife. The plaintiff gave evidence for the purpose of showing that according to the law of Scotland a valid though irregular marriage had been celebrated. Professional witnesses called at either side gave conflicting evidence respecting the state of the marriage law of Scotland as bearing upon the facts of the case. Held That the judge was right in leaving it entirely to the jury, as a question of fact, to say whether the alleged Scotch marriage was a valid contract in accordance with the law of that country, and that he was not bound to have directed them as to what was the state

evidence. Thelwall v. Yelverton, 14 Ir. C. L. Rep. 188, C.P.; s. c. 7 Ir. Jur. N. S. 347.

Evidence was further given of a marriage having been subsequently celebrated in Ireland between the parties by a Roman Catholic priest in holy orders, according to the rites of that Church. It was proved on the part of the plaintiff that the defendant had, within twelve months, occasionally attended Roman Catholic worship; that he had expressed himself in private conversations in approval of the doctrines of the Church of Rome; and that he had declared himself to be of that persuasion to the officiating clergyman. It was on the other hand proved, on the part of the defendant, that he had been born and educated in the doctrines of the Church of England; that he had never publicly renounced that profession; and that he attended the episcopal service frequently during twelve months next before the ceremony. Held

per Monahan, C.J., and Ball, J., that there was evidence from which a jury might infer that the defendant had been a Roman Catholic throughout the entire period of twelve months before the marriage, so as to take the case out of the operation of the 19 G. 2, c. 13, (Ir.) the latter statute having reference to actual religious belief and not merely nominal profession. Ib.

Held contra, per Keogh, J., and Christian, J., that notwithstanding the evidence relied on by the plaintiff, the learned judge was bound to tell the jury that the defendant had not ceased, during the period in question, to profess the Protestant religion within the meaning of the statute, and that the marriage was void in law. Ib.

Wife's chose in action.] A feme covert entitled to a share in a legacy payable out of real estate, with the consent of her husband, agreed, together with the other parties beneficially interested, to accept the lands in lieu of the money. The lands were accordingly conveyed by the trustee of the will to a trustee; and by a subsequent deed declaring the trusts a portion of the land was limited to the husband and wife for their joint lives, and to the survivor of them for life, with remainder to such of their children as the husband in his lifetime, or the wife, if she survived him, should appoint. Held-by the Lord Chancellor (the Lord Justice of Appeal not expressing any opinion), that the assignment of the lands to the trustees did not operate as a reduction into possession of the wife's chose in action; and that the lands into which the money was thereby converted were subject to the same uses and trusts as the money. In re Bayley's estate, 9 Ir. Jur. N.S., 398. Ch. Ap.

Held also, by the Lord Chancellor (the Lord Justice of Appeal not expressing any opinion), that the modification of the prior rights and interests of the husband and wife in the lands formed a sufficient consideration in the deeds declaring the trusts to make it a deed for value. lb.

Effect of judicial separation.] Where a legacy was bequeathed to a lady prior to her judicial separation from her husband, held that, in the absence of an affidavit showing that the existence of this legacy was known to the judge of the Divorce Court, when considering the amount of the wife's alimony, the hus

band had no claim thereto. Re Wetherall's trusts, 9 Ir. Jur. N.S. 25. R.

Held also-That the principal should not be paid out to the wife, but should be settled on the wife and the children of the marriage. Ib.

INFANT.

Contract by.] A., while an infant, made a lease to B. of certain lands, reserving a rent; and during his minority commenced an action of ejectment by C., his next friend, against B., laying the demise on the 23rd January, 1861. A. attained full age on the 27th April, 1861, and on the 29th April, in the same year executed to C. a lease of all his estate of W. (including the lands demised to B.); and that lease contained a covenant to avoid all the leases on. the W. estate made by him during his minority. A on the 14th June, 1861, received from B. the halfyearly gale of rent due on the 1st May, 1861, in respect of the lands demised to him, and on the same day gave a receipt to B. for that gale of rent and executed a confirmation of B.'s lease. No step had been taken in the ejectment proceedings from the time when A. came of age until the execution of the confirmation. The ejectment having been afterwards proceeded with, and a verdict had for the plaintiff, on motion that that verdict should be set aside and a verdict entered for the defendant, held—that as A. was estopped by his receipt of rent from disputing B.'s title for the period between 1st November, 1860, and the 1st May, 1861, he could not maintain an action of ejectment against B., in which the demise was laid on a day within that period. Slator v. Trimble, 14 Ir. C. L. Rep. 342; s.c. 7 Ir. Jur. N.S. 255, Q.B. Held also-That by the execution of the confirmation A. was precluded from relying on the lease to C., either as an avoidance of the lease to B. or for the purpose of showing that at the date of the confirmation he had no estate sufficient to enable him to confirm that lease. Ib.

Held also-That the confirmation, although made subsequently to the commencement of the action, related back so as to set up the lease to B. from the day of its execution. Ib.

Held also-That the 204th section of the Common Law Procedure Act, 1853, does not apply to a case where the plaintiff takes title out of himself. Ib. Held, per O'Brien and Hayes, JJ., that where an infant makes a lease reserving a rent he cannot avoid it until of full age. Ib.

The case of Thornton v. Illingworth, observed on. Ib.

A lease made by an infant is not void, but voidable only, notwithstanding that the rent reserved is not the best obtainable. A lease made by an infant, so reserving a lease, is not avoided by a lease of the same lands made to a third party by the infant upon his attaining his full age. To avoid a lease made by an infant under which the lessee is in possession, upon the lessor attaining twenty-one years of age, some act of notoriety, viz., ejectment, entry, or demand of pos session, is requisite-mere execution of a second lease. Slator v. Brady, 14 Ir. C. L. Rep. 61. Ex. Both leases might stand together as a lease and a grant of the reversion therein. Ib.

Two tests as to what acts of an infant are void, and what voidable. Ib.

INFORMATION.

Case stated.] When after information filed, but before issue joined, a case is stated by consent of plaintiff and defendant for the opinion of the Court under the 50th section of the 3 & 4 Vic. c. 105, it was held, that that section has no reference to cases where issue is not joined. The 92nd section of the Common Law Procedure Amendment Act, 1853, which empowers to parties to state a case, does not deal with informations. The Attorney-General v. The Great Southern and Western Railway Company, 9 Ir. Jur. N.S. 85.

INJUNCTION.

Trade marks.] J. sold under a trade-mark a medicine known as J.'s ointment. O, without authority sold an ointment as J.'s ointment, under an imitation of J.'s label. J. having threatened proceedings against O. an agreement was made by which, after reciting that O. alleged that his invasion of the rights of J. was inadvertent, and that he had discontinued the same, and agreed not again to infringe on such rights, it was agreed that "all claims in respect of the said invasion, not only with respect to the said O., but to include all parties who may have purchased the said ointment from him, shall be settled and discharged by the payment of the sum of £1000," the receipt of which was acknowledged. This agreement also con. tained an undertaking to execute a formal release of all claims and demands in respect of the above infringement. J. having commenced suits against persons who had purchased the ointment from O. previously to the agreement but retailed it afterwards, O. filed a petition specifically to enforce the agreement, and to restrain J. from proceeding in the suits against the purchasers from O. Held-That the agreement did not authorize any sale after the date of it of ointment previously purchased from O. Secondly, that even if the terms of the agreement required the construction that J. was to permit ointment previously purchased from (). to be sold under the imitated trademark, the Court would not specifically enforce such an agreement, as it would be a fraud upon the public. Oldham v. James, 14 Ir. Ch. Rep. 81. Ch. Ap.

Costs in suis to restrain waste.] Where in an injunction suit in the nature of a writ of estrepement to restrain waste the case is forced to a hearing by the conduct of the respondent, the petitioner, if successful, is entitled to his costs of suit, although an account of the waste committed be waived. Dunsany v. Dunne, 9 Ir. Jur. N.S. 342. Ch.

Semble-When in such suits no account is sought, or the account is waived, the petitioner should serve a notice on the respondent to ascertain whether the right to continue the injunction is disputed. Ib.

JOINT. STOCK COMPANY. To sustain an action for money had and received against a person named as a director of a projected company by a proposed subscriber for his deposit, two things must be shown; first, that the money so paid came to the defendants hand or power for the pur

pose of being applied to the objects of the projected company; and secondly, that the project failed, by reason of no company, or company conformable to the prospectus, having been formed. Hayes v. Stirling, Shaw v. Stirling, Dudgeon v. M'Birnie, Madden v. Cusack, 14 Ir. C. L. Rep. 277. Exch.

To a summons and plaint which averred that the defendant represented himself to be a director, and required payment of a deposit by any applicant for shares to be made to persons named by him as the bankers of the company, and that the plaintiff, in reliance on the representation so made by the defendant, paid to the bankers of the company, who were his agents in that behalf, the amount of the deposit, the defendant demurred, as it was not shown that the money came to the defendant's hands. Demurrer disallowed. Ib.

The natural meaning of the averment, "that the scheme detailed in the prospectus wholly failed, and became abortive, and had been totally abandoned," is, that the consideration upon which the deposit was paid had wholly failed. Ib.

JOINT TENANTS.

Exclusive possession; Statute of Limitations.] Upon the trial of an ejectment brought by the surviving joint tenant under a freehold lease, it was proved that many years previously the plaintiff and the co-tenant had made a division of the lands, the subject of the lease, by parol. The co-tenant continued in exclusive possession of his portion until his death, when he devised it to his son, and the possession of the co-tenant, together with the possession of his son, extended over a longer period than twenty years. Held, that the defendant, who derived by assignment from the son of the co-tenant, was entitled to a direction for a verdict by virtue of the Statute of Limitations, 3 & 4 Wm. IV., c. 27, sec. 12. Murphy v. Murphy, 9 Ir. Jur. N.S. 290, C. P.

ISSUE.

Issue of devisavit vel non.] E, seized of lands subject to mortgages, devised them to P, in whom the mortgages became vested. Held, that the Court had jurisdiction in a suit instituted by the heir of E, praying the ordinary redemption relief and an issue devisavit vel non, to grant such an issue. Egmont v. Darrell, 14 Ir. Ch. Rep. 564, Ch.

JUDGMENT.

Execution of warrant to confess.] A defendant being in custody, under execution on foot of a judg-| ment, in consideration of his discharge, gave a bond and warrant to confess judgment for a larger amount, to a party who represented himself as the assignee of the former judgment. Judgment having been subsequently entered on foot of the bond and warrant, and registered as a mortgage against the defendant's lands, an application was, several years afterwards, made to set aside the bond and warrant as having been obtained from the defendant by fraudulent misrepresentation, and under pressure of duress. Held, on the ground that there had been some consideration for the original judgment; that a long period had elapsed during which both the judgment creditors

had left the country; and that the party in whose name the present application was made had ceased to have any personal interest in the matter; that the motion ought not to be granted. Nolan v. Gumley, 14 Ir. C. L. Rep. 301, C.P.; s.c. 8 Ir. Jur. N.S. 253.

Where the plaintiff dictated to the defendant, in custody, a letter, addressed to an attorney whom the defendant had never seen, requiring him to attend the next day, and witness the defendant's signature to a bond and warrant of attorney. Held, that the fact of the attorney not having been originally named by the defendant did not vitiate the execution of the in strument by the defendant, within the 93rd General Order, 1851. Ib.

Held, that an attestation clause, in this form, was valid: Signed, sealed, and delivered in the presence of Francis Carolan, attorney for the said P. G., 11 Talbot-street, Dublin, and subscribe my name as his attorney, and at his request." Ib.

Redocketing. Priority.] Where an unredocketed judgment is followed by a mortgage with a redocketed judgment intervening, the priority of the unredocketed judgment is not affected, if no claim be made on foot of the mortgage. Woodroofe v. Greene, 9 Ir. Jur. N.S. 379, Ch. App.

The rule in Huthwaite's case, 2 Ir. Ch. Rep. 54, that an unredocketed judgment is not only null and void as against a subsequent mortgage, but also null and void against an intervening redocketed judgment, is not applicable where the mortgagee makes no claim to the fund to be distributed. Woodroofe v. Greene, 14 Ir. Ch. Rep. 224, R.

Charge.] A judgment is not made a charge upon the ecclesiastical rectories of the Crown, by the 3 & 4 Vic. c. 105, s. 22. Sweeney v. Fleming, 14 Ir. Ch. 23, Ch. App.

Ib.

Winter v. Homan, 6 Ir. Eq. Rep. 479, overruled

JUDGMENT MORTGAGE. Sufficiency of affidavit.] A judgment was recovered by R. W. S. against T. B. in the Court of Queen's Bench for the sum of £1,200 debt, and £3 1s. 11d. for costs. The affidavit to register the said judgment as a mortgage against the estate of the said T. B., pursuant to statute 13 & 14 Vic. c. 29, stated that the said R. W. S. had obtained a judgment against T. B. for the sum of £1,200 debt, besides for costs. Held, that the affidavit did not comply with the requisites of the 6th section of the statute. In re Bennett's estate, 9 Ir. Jur. N. S. 119, L. E. C.

Held, also, that a payment to an incumbrancer on account of a judgment badly registered as a mortgage made by the Court in the presence of a subsequent incumbrancer does not in any way prejudice the right of the subsequent incumbrancer to impeach the prior statutable mortgage on the ground of defective registration. Ib.

In an affidavit, filed under the provisions of the 6th section of the 13 & 14 Vic. c. 29, for the purpose of converting a judgment into a mortgage, the lands intended to be comprised in the mortgage were described as "the lands of A, B, and C, situate in the baronies of D and E, and county of L." Held,

remain in possession of part of the premises as caretaker, Held, to operate as a surrender by act and operation of law, although no actual change of possession took place at the time. Lambert v. M'Donnell, 9 Ir. Jur. N.S. 871.

Per Pigot, C.B.-That without expressing any opinion as to whether fee-farm grants come within the scope of the statute, the latter does not contain sufficiently clear and unequivocal indications of the intentions of the Legislature that it should have a retrospective operation. Ib.

Security for mesne rates and costs, under statute 23 & 24 Vic, c. 154, s. 75.] An agreement to take a lease, signed by the tenant only, and not by the landlord, is not such an instrument regulating the terms of the tenancy as will entitle the landlord to require security for mesne rates and costs under statute 23 & 24 Vic., c. 154, s. 75, in an ejectment against the tenant overholding. Domvile v. Brack, 9 Ir. Jur. N.S. 266, Q.B.

Precept to restrain waste under statute 23 & 24 Vic., c. 154, s. 35.] Informations taken under the 35th section of the 23 & 24 Vic., c. 154, upon which it is sought by the landlord of any premises to obtain a precept from a justice of the peace to restrain a tenant or others from doing any acts of waste, in said section mentioned, must state, if present acts of waste are complained of, what those acts are; and, if future, what those future acts, the tenant intends to do, are. A precept, therefore, granted on an information, which informed merely of past acts of waste, and which averred that the tenant "persists in doing and committing acts of unlawful waste to the injury and damage of said premises, notwithstanding that I warned him to desist from the same," was held bad and quashed accordingly. In re Brady v. Slator, 9 Ir. Jur. N.S. 153, Exch.

66

LEASE.

F., tenant of C. for a term of years, in 1844 agrees to let unto G. the house and demesne of C. in as large a manner as the same is now held by F., at the rent of £48 per annum, for and during a term equal to the term which F. has of same, leaving him full power of ejectment and right of distraint in case of non payment of rent, G. to have a power of surrender by giving six month's notice in writing." Held an agreement for a sub lease, not an assignment. Palmer v. Spring, 14 Ir. Ch. Rep. 380. Ch.

In 1847 F. served a notice on G., calling on him to take out a lease; G. omitted to do so, but remained in possession, paying rent under the agree.

tors, upon trust, to pay certain annuities, and subject thereto devised her property to other persons. The will contained a power to the trustees and executors to sell or dispose of any portion of the property as they should think fit for the advantage of the parties interested. The testatrix died in 1819. H. alone proved the will, and obtained a renewal of the lands of N. in his own name as trustee; and in 1824 one of the persons beneficially entitled to these lands executed a renewed lease of this at an increased rent, in the preparation of which he acted as solicitor. The devised property having become deficient for the payment of the annuities, the annuitants, about 1844, went into possession and receipt of the rents and profits of all the devised property. On the ex. piry of the lease of 1762 the annuitants filed their cause petition against the lessees under the lease of 1824, claiming thereby to hold discharged of this lease. Held-That the receipt of the increased rent by the annuitants from 1844 did not operate as a confirmation of the lease by them, and that they were enti tled to hold discharged from the lease. Metcalfe v. Ryves, 14 Ir. Ch. Rep. 558, Ch.; s. c. 8 Ir. Jur. N. S. 405.

LEGACY.

A certain legacy, payable to the legatee at twentyone, was charged primarily on the testator's personalty, and on his realty, failing sufficient personal assets. At his death the personal assets were sufficient, but owing to a devastavit by the executors, became, at some subsequent unascertained time, inadequate. The legatee (the petitioner) attained twenty-one in 1849. The petition was filed on the 26th of January, 1863. Held, first, the mere non-enforcement of payment from the exccutor, no laches to estop the legatee. In re Massy's estate, 14 Ir. Ch. Rep. 355. L.E.C.

Secondly, the real estate of the testator is liable to the payment of the legacy. 1b.

Semble, there might have been laches if the executors had appropriated a fund for payment of the legacy, and that fund had been permitted to remain in the executor's hands. Ib.

Donatio mortis causa.] Where testator knew that he was in his last illness and delivered several articles into the possession of his sister as a gift in case he should die, and where also immediately before his death he told her that he gave her his gold repeating watch which was on the table in his bedroom, but which he did not deliver into her possession, and which she did not take possession of until after his death. Held-that the several gifts were good as donationes causa mortis. Lyster v. O'Sullivan, 9 Ir. Jur. N.S. 242. Master Litton.