sufficient to prevent the party from afterwards disclaiming the devise. Quare-Whether a devisee in trust can disclaim by deed after previous assent to the devise in words. Doe d. Chidgey v. Harris, 16 Law J. Rep. (N.S.) Exch. 190; 16 Mee. & W. 517. (E) CHARGES. A devise of an estate which was subject to a mortgage to A B, "he paying the mortgage thereon," amounts to a direction that he should pay the mortgage, or take the estate subject to it. Lockhart v. Hardy, 9 Beav. 379. Testator devised freeholds and copyholds to his son for life, and after his decease to his first and other sons, paying 101. a year to M C for life:Held, that this created a charge, and not a trust. Hodge v. Churchyard, 16 Sim. 71. A testator devised a copyhold estate to trustees upon trust for A for life, and after his death to sell and divide the proceeds among the children of A. He also gave his residuary estate to the trustees upon other trusts, but charged with debts and the costs and charges of proving and executing his will:-Held, that the fines payable on the admission of the devisees in trust to the copyhold estate were not "costs and charges of executing the will," and that such expenses ought to be borne by the copyhold estate so devised. Cole v. Jealous, 5 Hare, 51. A, as surety for his sons B and C, mortgaged real estate to M, to secure to M the payment of 2,5001. due from B and C; and B and C gave A a bond to indemnify him in respect of the mortgage. A, by will, devised the mortgaged estate to B, and gave the residue of his estate to trustees, on trust to pay his funeral and testamentary expenses and all his debts, and in particular all sums which might be charged upon the property devised to B: -Held, that the testator took the debt on himself, and that the 2,500l. was payable out of his estate so as to exonerate the principal debtors. Mushet or Musket v. Cliffe, 17 Law J. Rep. (N.S.) Chanc. 269; 2 De Gex & S. 243. A testator having mortgaged an estate for 1,500l., for payment of which his eldest son was surety to the mortgagee, devised the estate to his eldest son in tail, with remainders over, under which the plaintiff became tenant in tail. The testator devised another estate to trustees, upon trust to sell, and out of the proceeds to pay his mortgage and other debts, and gave the residue to his eldest son, whom he appointed executor and residuary legatee. The trustees did not act, but the son entered into possession of all the testator's estates and property. The mortgage was transferred, the son entering into a new covenant for payment of the 1,5001. and interest at a different rate, with a new proviso for redemption, and he covenanted for payment of the 1,5007. and interest accordingly:-Held, that the plaintiff was entitled to have the entailed estate exonerated from the mortgage out of the son's personal estate. Bruce v. Morice, 2 De Gex & S. 389. By a marriage settlement an estate was settled on the husband for life, with remainder to his wife, for life. This estate was sold under a power, and the purchase-money lent to the husband on mort gage of estates in M, belonging to him. By his will, he devised his estates in M to trustees, on trust, to pay the wife 6007. a year, until his son attained twenty-five, and then to pay her 2001. a year for her life. By a codicil, he directed that the interest of the mortgage debt should form a part of the annuities of 6001. and 2007.; and by another codicil directed that, when his wife should be entitled to the 2001. a year, a part of his personal estate, which he had given to her by his will, should go to the possessor of his estates in M:Held, that during the life of the wife the estates at M ought to bear the mortgage debt; but that, after her death, the devisees had a right to have it paid out of the general personal estate of the testator. Sargent v. Roberts, 17 Law J. Rep. (N.S.) Chanc. 117. [See Estate for Life. Doe d. Sams v. Garlick.] (F) DEVISE FOR Payment of Debts. Testator gave all his real property to trustees, upon trust (subject to payment of debts and the annuities and legacies thereinafter bequeathed), to his son for life. After giving certain annuities and legacies, and an annuity out of his real and personal estate, he gave his son all his personal property after his mother's decease, except some plate:-Held, that the personal estate was not exonerated from the payment of debts, &c. Ouseley V. Anstruther, 10 Beav. 453. The testator in the cause having, under a power in his marriage settlement, granted a lease for lives of real estate comprised therein, with a covenant for quiet enjoyment, made his will, whereby he devised all his real estates, subject to the payment of his debts. The lessee being evicted after the death of the lessor, which took place in 1825, brought an action on the covenant against his executors, and recovered damages. The personal estate being insolvent, it was held that the damages constituted a debt of the testator within the meaning of the charge in the will, and that such damages and costs were recoverable against the real estate in the hands of the devisees, with interest thereon from the time of the judgment. Morse v. Tucker, 15 Law J. Rep. (N.S.) Chanc. 162; 5 Hare, 79. A testator directed payment of his debts, in the first place, out of his personal estate, exclusive of leaseholds; and if not sufficient, he charged his real estates with the payment; he then gave divers specific articles to his son :-Held, that the specific legacies were liable for payment of the testator's debts before the real estates. Bateman v. Hotchkin, 16 Law J. Rep. (N.s.) Chanc. 514; 10 Beav. 426. A testator gave certain portions of his real and personal estate to trustees, for payment of his debts; and he specifically gave several portions of his real and personal estate to different parties "freed from his debts;" and also bequeathed his residuary personal estate "freed from his debts." One of the devised estates was subject to a mortgage. The funds primarily applicable being insufficient to discharge all the debts, the property which passed under the residuary clause was held to be the next fund which ought to be resorted to for that purpose; and the devisee of the mortgaged estate was declared to be entitled to have the mortgage paid off out of the residuary estate. Brooke (Lord) v. Warwick (Earl,) 18 Law J. Rep. (N.s.) Chanc. 137; 2 De Gex & S. 425; 1 Hall & Tw. 142. (G) TRUST FOR SALE. [See CONVERSION AND RECONVERSION.] (a) Power of Executors to sell. A testator, by his will, gave to his wife 2,000%. Bank stock to give by will among any of his cousins most agreeable to her, but, if not disposed of, it was to be added to the general fund, and as residue go, share and share alike, between all his first cousins. The testator then gave to his wife for her life all the rest and remainder of his "property," real and personal, and all the money he had in the public funds, &c. with power to vary the same; and he gave his wife and executors power to renew or grant leases to the best advantage for herself and his heirs ; and he gave his executors power to sell any of his estates, and fund the money, with power to give receipts. The testator then gave to "each" of his twelve first cousins 1007. stock; he named eleven, and said " as my cousin W A B has departed this life, I desire the same legacy may be transferred or paid between his children, share and share alike; hence I have allotted 1,2001. stock from my 51. per cents. to be paid to my twelve first cousins." The testator then gave several other legacies, and after the death of his wife, said, "I give full power to my executors, their heirs or assigns, to collect all my property together, and sell the houses and other estates, and to convert into money all my funded property," and then to pay some legacies to several persons named. "Then the whole of the remainder of my property is to be divided share and share alike to my aforesaid twelve first cousins and their children." The testator appointed his wife and C and M executors of his will. He afterwards made a codicil to his will, and revoked the legacy given to Mrs. B, one of the first cousins, if she did not comply with a request he had made, but he declared that he did not thereby mean to exclude her children from the benefit she might thereafter possess in the final division of his property after the decease of his wife. At the decease of the tenant for life all the first cou sins were dead, some had left children and others had died without having disposed of their interests:-Held, that the executors had power to sell the real estates, and that it was a conversion of the whole into personalty; that the interest of the twelve first cousins, including the first cousin who had died, vested immediately on the death of the testator as if all had been named; that the division was postponed till the death of the tenant for life; that the interest of each first cousin who died in the lifetime of the tenant for life, leaving children, was divested, and the children of such first cousin, including the children of the first cousin who had died in the lifetime of the testator, took their parent's share by way of substitution. Burrell v. Baskerfeild, 18 Law J. Rep. (N.s.) Chanc. 422; 11 Beav. 525. (b) Application of Proceeds. A testator devised all his real estate to trustees in trust to sell; and directed them to stand possessed of the purchase monies, in the first place, to pay all debts due from him at his decease, and then to retain all costs, charges, and expenses attending the execution of the trusts, and then to pay a legacy of 500l. to a daughter of his heir-atlaw, and to invest 500l. for the benefit of C for life, and after her decease for D. And as to all his ready money and securities for money, and all other his personal estate, he gave the same to D. He declared that the trustees should be allowed to retain to themselves all charges and expenses they might be put unto in the execution of his will, or in relation thereto; and appointed his trustees to be his executors. He did not give any legacy to his heir: -Held, first, that the produce of the real estate, after paying the charges which ought to be imposed on it, was undisposed of and went to the heir :and, secondly, that the testator's debts were not thrown on the real estate in exoneration of the personal estate. Collis v. Robins, 16 Law J. Rep. (N.S.) Chanc. 251; 1 De Gex & S. 131. A testatrix by will gave real estate to trustees in trust to sell, and to stand possessed of the proceeds as a fund of personal and not real estate, and declared that such proceeds, or any part thereof, should not in any event lapse for the benefit of her heir-atlaw. After giving several legacies out of such proceeds, the testatrix declared that the trustees should pay and apply the residue to such persons and for such uses as she should by any codicil direct. The testatrix died without making any codicil to her will:-Held, in an administration suit by the nextof-kin, that the declaration that such proceeds should be personal estate, and the exclusion of the heir-at-law, raised no gift by implication in favour of the next-of-kin; and, consequently, that the heirat-law was entitled to the surplus proceeds as undisposed of by the will. Fitch v. Weber, 17 Law J. Rep. (N.S.) Chanc. 361; 6 Hare, 145. A testator gave all his real and personal estate to trustees, upon trust, to permit his wife to have the enjoyment of the rents, issues, and profits thereof, for her life, or otherwise, with her consent and approbation in writing, to sell the real and personal estate, and invest the monies to arise from the sale of his real and personal estate on government or real security, and pay the interest to her for her life, and after her decease to pay two legacies of 50%. each, and divide the residue of the monies to arise from his real and personal estate between his nephews and nieces living at the death of his wife. The real estate was not sold during the life of the widow -Held, that the nephews and nieces were entitled to the produce of the real estate. Waddington v. Yates, 15 Law J. Rep. (N.S.) Chanc. 223. (H) VOID DEvise. [See THELLUSSON ACT.] (a) Remoteness. [Walker v. Petchell, 5 Law J. Dig. 257; 1 Com. B. Rep. 652.] Devise of lands to P M, testator's brother, for life, remainder to use of the first son of PM for life; remainder to use of the first son of the said first son and his heirs male; and in default of such issue, to the use of all and every other the son and sons of P M severally and successively for the like interests and limitations as he had before directed with respect to the first son of P M and his issue; and in default of issue of P M, or in case of his not leaving any at his decease, then over. P M never had issue :-Held, that all the limitations subsequent to that to the use of the first son of P M were void for remoteness; and that if P M had had sons they would not by the application of the doctrine of cy-pres have taken an estate tail, inasmuch as by such a construction the estate would devolve in a line of succession different from that expressly designated by the testator. Monypenny v. Dering, 17 Law J. Rep. (N.s.) Exch. 81; 16 Mee. & W. 418. Devise of real estate to trustees, upon trust, to pay the rents and profits to the testator's daughter for life, and after her decease to convey the property unto and equally between and among all and every her children "who should live to attain twentythree years of age," and to their heirs and assigns for ever; and if there should be but one such child, then to such only child, &c.; and in case there should be no such child or children, or being such, all of them should die under twenty-three, without lawful issue, then over; with power to the trustees to apply the interest of each child's share for his maintenance, notwithstanding such share should not then be absolutely vested:-Held, that the attainment of the age of twenty-three years was part of the description of the devisees; and the devise being to a class, after a life in being, the limitations over were too remote. Bull v. Pritchard, 16 Law J. Rep. (N.S.) Chanc. 185; 5 Hare, 567. A testator devised his real estate to his executors, upon trust, to pay the rents for the support of his wife, and his present or future grandchildren during the life of his wife, and upon her decease on trust to convey the property to his present or future grandchildren, as they should attain the age of twenty-five, to hold the same unto his said grandchildren, their heirs and assigns for ever, as tenants in common:-Held, that the devise was void for remoteness. Blagrove v. Hancock, 18 Law J. Rep. (N.S.) Chanc. 20; 16 Sim. 371. A testator gave his real and personal estate to trustees, on trust to pay the proceeds to his eldest grandson for life, with remainder to his children who should attain twenty-five, but if he should die without having any children, then to his other grandchildren. The eldest grandson died without issue: -Held, that although the gift to the children of the eldest grandson was void for remoteness, the subsequent limitation to the younger grandchildren was good. Goring v. Howard, 18 Law J. Rep. (N.S.) Chanc. 105; 16 Sim. 395. (b) Failure of Object. Testator devised all his houses to trustees, upon trust, after his wife's death to convey one of them whichever she might think proper, to M, and to convey all the others to C. M died in the testator's lifetime, but C survived him :-Held, that no choice having been made by M, the gift to C failed, and a general demurrer to a bill by the heir to have all the houses conveyed to him was overruled. Boyce v. Boyce, 16 Sim. 476. DISSENTERS. Penalties and disabilities in regard to religious opinions removed by 9 & 10 Vict. c. 59; 24 Law J. Stat. 161. DISTRESS. [See DOCK COMPANY-FRIENDly and Benefit SOCIETIES LANDLORD AND TENANT-RATERENT-STAMP, Agreement-TRESPASS-TROVER.] (A) WHO MAY DISTRAIN. (B) WHAT MAY BE DISTRAINED. (A) WHO MAY DISTRAIN. A tenant by elegit has a right to distrain without attornment. Lloyd v. Davies, 18 Law J. Rep. (N.S.) Exch. 80; 2 Exch. Rep. 103. (B) WHAT MAY BE DISTRAINED. Perishable commodities, such as the flesh of animals, which are incapable of being restored in the same condition within a reasonable time, are not distrainable for rent at common law. Morley v. Pincombe, 18 Law J. Rep. (N.S.) Exch. 272. (C) EXCESSIVE Distress. In an action for an excessive distress for taking the goods of the plaintiff, it appeared that of the goods taken part belonged to the plaintiff and part to a third party :-Held, that the declaration might be amended by stating the illegal distress to have taken place with respect to the goods of the plaintiff and of the third party, and that the plaintiff would be entitled to recover some amount of damages, and that the other party whose goods were taken would also be entitled to maintain an action and recover damages. Semble-that no joint action for excessive distress could be brought by the plaintiff and the third party. Bail v. Mellor, 19 Law J. Rep. (N.S.) Exch. 279. (D) DAMAGE FEASANT. To a declaration in trespass for seizing seven horses and selling two of them, the defendant pleaded that he distrained the seven horses damage feasant, and impounded them, that he supplied the seven horses so impounded with food, and that he sold the two horses under the authority of the statute 5 & 6 Will. 4. c. 59, and applied the produce of the sale in discharge of the value of the food so supplied, and of the expenses attending the sale: Held, after verdict for the defendant, that as the statute authorizes the party to sell only so many as may be necessary to indemnify himself, the plea was bad for not shewing that it was necessary to sell more than one horse. Layton v. Hurry, 15 Law J. Rep. (N.s.) Q.B. 244; 8 Q.B. Rep. 811. Extreme familiarities of a wife with an articled pupil of the husband, inconsistent with the relative position of each, coupled with confessions of the wife of her criminality,-Held, sufficient to found a sentence of divorce by reason of adultery. Noverre v. Noverre, 1 Robert. 428. An allegation was admitted on behalf of a wife, responsive to a libel for a restitution of conjugal rights, pleading, in bar thereto, cruelty, and praying a divorce :-Held, reversing the decision of the Court of London, that the facts, as detailed in evidence on that allegation, did warrant the conclusion "that she could not return home with safety and without a reasonable apprehension of a repetition of the violence deposed to." In consequence, a sentence of divorce in favour of the wife was pronounced. Dysart v. Dysart, 1 Robert. 470. Answers to an allegation pleading in general terms a denial of acts of cruelty charged in a libel must, like the allegation, be general and not specific. Spitting in a wife's face, accompanied with pushing and dragging her about a room, and the admission by the husband that he had once slapped her face, -Held, to be sufficient for a divorce by reason of cruelty. Affectionate letters from a wife to her husband are not necessarily inconsistent with cruelty on his part. Saunders v. Saunders, 1 Robert. 549. An allegation "in part responsive" to a wife's libel for a divorce, by reason of the husband's adultery, pleading some contradictions to the libel, but not denying the adultery charged, was rejected, on the ground that it in substance admitted so much of the charge as, if proved by the wife, would entitle her to a divorce, and that nothing was pleaded which in law amounted to connivance or condonation on her part. Angle v. Angle, 1 Robert. 634. (B) WHEN BARRED. (a) In general. A petitioner for a divorce bill held excused for not having brought an action for damages against the adulterer, upon the statement of his witnesses, that they did not find him until three years after the discovery of the adultery, and that the petitioner was not able to pay the expenses of an action. A lapse of sixteen years from the adultery not made an objection to the application for divorce at the end of that time. In re Martin's Divorce Bill, 1 H.L. Cas. 79. The wife's general bad conduct was admitted as an excuse for the husband omitting to bring an action against the adulterer. A lapse of eight years from the discovery of the wife's adultery till the petition for a divorce was presented, was held to be sufficiently accounted for by the husband's inability to bear the expenses of a divorce bill. In re Brook's Divorce Bill, 1 H.L. Cas. 159. The acceptance, by the petitioner in a divorce bill, of an offer of a certain sum upon a writ of inquiry to assess the damages, after judgment by default in an action of crim. con. against the wife's paramour,-Held, under the circumstances, not to be a bar to the bill. In re Heneage's Divorce Bill, 1 H.L. Cas. 496. (b) Condonation. Husband and wife separated by mutual consent, in consequence of the conduct of the husband towards the wife, which in itself amounted to legal cruelty. The wife afterwards sued in the Arches Court for restitution of conjugal rights, and by virtue of a decree of that Court, the parties again cohabited, when the husband renewed his acts of cruelty towards the wife, who continued to cohabit with him notwithstanding for six months. Upon a suit brought by the wife for a divorce, by reason of cruelty, such divorce decreed; the Judicial Committee, in affirming the sentence of the Arches Court, holding that the former cruelty was revived by the subsequent acts, and was not condoned by the cohabitation enjoined by the sentence for restitution of conjugal rights. Wilson v. Wilson, 6 Moore P.C. 484. (C) PLEADING, Evidence, anD PRACTICE. The enforcement of the standing order of the House, requiring the petitioner in a divorce bill to present himself for examination at the bar, may be dispensed with on account of the state of his health. In re Heneage's Divorce Bill, 1 H.L. Cas. 496. In a suit for a divorce a menså et thoro, a decree of confrontation was issued for the wife, who had eloped to America, to appear to be identified, when her proctor tendered a defensive allegation. The Arches Court of Canterbury rejected the allegation, as she was in contempt by reason of her nonappearance to the decree of confrontation. Such rejection affirmed, on appeal, by the Judicial Committee of the Privy Council. A divorce a mensa et thoro, on the ground of adultery, pronounced for, upon the evidence of a single witness as to the cohabitation of the wife after her elopement, there being corroborating circumstances. Curtis v. Curtis, 5 Moore P.C. 252. An interlocutory sentence of divorce was pronounced before the bond required by the 107th Canon was given, and there was an appeal from that sentence asserted apud acta; but subsequently the bond was given. Before the inhibition was served, the Court was moved to sign the sentence in writing to remove the nullity by the 108th Canon of the former sentence; after argument, the Court, holding that it has power before the service of an inhibition to correct an error, signed the sentence. Dysart v. Dysart, 1 Robert. 543. An attempt was made upon the suit of a wife for a divorce, to serve the husband with a citation taken out in October 1848, at his last known place of residence, which was within the jurisdiction of the Court. It subsequently appeared he had left that residence in March 1847. A decree by ways and means was, on the return of the citation, executed at that house, and at the parish church. On the 5th of February 1849, he was personally served in the the West Indies. The Court on motion pronounced husband in contempt "for the purpose of carrying on the proceedings, and placing the evidence on record." It was stated there was no jurisdiction in the West Indies to enable the wife to institute a suit; and eventually a sentence of divorce was pronounced. The proceedings throughout were in pœnam. Dasent v. Dasent, 1 Robert. 800. A party, in her personal answers to a libel, is not bound to answer to articles which, though not on the face of them criminatory, may, by possibility, furnish a link in the evidence against herself. King v. King, 2 Robert. 153. DOCK COMPANY. [See HARBOURS.] By the 6 Will. 4. c. xxxi. the St. Katharine's Dock Company are empowered to receive for all goods, &c. deposited on their premises, rates not exceeding those usually paid in the port of London for wharfage, &c. of such goods, &c., and in case default is made in payment of the said rates, or any part thereof, it shall be lawful to the collectors of the company to retain and sell all or any part of such goods, &c., and out of the monies thence arising to retain and pay the rates payable in respect of such goods, &c., returning the overplus, &c. to the party entitled ; and in case such goods, &c. shall be removed before the rates payable in respect of the same shall be fully paid, it shall be lawful for the said company to take and distrain or sell any goods, &c. of the owner, &c. thereof, in manner before mentioned. Certain rates payable in respect of goods belonging to A, which had previously been removed from the premises of the company, being unpaid, the company claimed to distrain certain other goods of A then on the premises until payment of the rates due in respect of both those sets of goods. A had applied to have the goods then on the premises delivered up to him, and was informed by the company that no more goods would be delivered to his order until his debt was paid or reduced-Held, that the statute enabled the company to distrain and sell any goods in their possession for the recovery of rates payable in respect of other goods of the same owner. Held, also, that the above facts amounted to a distraining and detaining within the act. Quare Whether evidence to prove a customary right of general lien in the company was inadmissible, by reason of the act having conferred a specific remedy for the recovery of rates. Green v. the St. Katharine's Dock Co., 19 Law J. Rep. (N.S.) Q.B. 53. DOMICILE. [See PRACTICE, IN EQUITY, Decrees and Orders.] Domicile must be de facto not de jure. Therefore the fact of a party resident in France, but represented by an attorney in England, will not create a constructive domicile, so as to entitle a party to set up as a discharge to a mortgage, a plea of prescription of ten years entre presens. Beaucé v. Muter, 5 Moore P.C. 69. DONATIO MORTIS CAUSA. F, about two years before his death, in the presence of J C, deposited in a box a wrapper, inclosing a written paper, and ten Dutch bonds. The wrapper was indorsed, "Private, to J C. This parcel to be delivered as above, unopened, and with care." This paper stated that F had given to J C and his sisters various gifts by a will then void, and contained a partition of the bonds between J C and his sisters. It also contained a note by F to JC that F had adopted that procedure to avoid legacy duty, and recommended perfect silence on the subject. After this deposit J C kept the key, and F the box; and the box was periodically opened, in order to cut off the coupons, for the payment of the dividends on the bonds, which were received by F. F, about a month before his death, sent the box to J C, with a message that the box and contents belonged to J C:-Held, that, under these circumstances, there was no effectual disposition of the bonds to JC and sisters during the life of the testator. Farquharson v. Cave, 15 Law J. Rep. (N.S.) Chanc. 137; 2 Coll. C.C. 356. DOWER. The number of acres mentioned in a count in dower is not material; and under a plea alleging the lands to be subject to a term it is enough to shew that all the defendant's lands in the parishes mentioned in the count are subject to the term, although such lands are not of the same extent as mentioned in the count. The surrender of a term assigned to attend the inheritance ought not to be presumed except there has been a dealing with the estate in such a manner as reasonable men of business would not have dealt with it, unless the term had been put an end to. The owner of an estate, a term in which has been assigned to a trustee to attend the inheritance, is, while in possession of the land, tenant at will to the trustee. It is only on the determination of a tenancy at will that there is such a vested right of entry as is contemplated by the 2nd section of the Statute of Limitations, 3 & 4 Will. 4. c. 27. The 3rd section of the statute does not apply to the case of a cestui que trust in possession under a trustee. Garrard v. Tuck, 18 Law J. Rep. (N.S.) C.P. 338; 8 Com. B. Rep. 231. To a bill for dower, the defendants in possession denied the widow's title, alleging that her husband had not been seised of an estate of inheritance in the premises; the allegation being founded on information as to the time of his death believed to be correct, but afterwards found to be erroneous,-The Court decreed the dower and arrears for six years before filing the bill, but without costs. Semble-If the defence to a bill for dower be groundless or founded on facts which the defendant knew, or with reasonable diligence might have known, to be untrue, the decree would be with costs. Bamford v. Bamford, 5 Hare, 203. |