Imágenes de páginas

lay out the money in the mean
time on security, with consent, of
the husband. The husband pur-
chases a leasehold interest, and
takes the assignment to himself
alone, and the trustees advance the
money out of the trust fund to pay
for it, and take a mortgage on the
estate as a security for the pur-
chase money and other sums ad-
vanced out of the trust fund, the
security being considerably less
than the money so advanced. The
husband leases part of the lease-
hold property to the attorney who
managed the purchase for him.
Held by the Lords, reversing a de-
cree of the Irish Exchequer, that
the first son of the marriage was
entitled to follow that part of the
trust fund which had thus been
misapplied, and to have the benefit
of the purchase discharged of the
lease to the attorney, whose equity
against the son, as personal repre-
sentative of the father, was barred
by notice of the settlement and
breach of trust. (Phayre v. Peree,
(Irish,) 116.)

Trustees must not deal with a trust

fund of their own benefit. (ib. 128.)
If stock is purchased with trust
money, and the funds rise, in what-
ever name the stock stands the
advantage belongs to the trust
fund. (ib. 128.)

A person who has notice cannot
avail himself of an act of trustees
in breach of their trust. (ib. 129.)
Where road trustees do not in their
operations comply exactly with the
terms of the act of parliament, the
damages, except by consent of the
party injured, are not to be ascer-
tained by the particular jurisdic-
tion created under the act for that
purpose, but are to be ascertained
and settled by the ordinary tribu-
nals; and it seems that, in case of
an illegal entry upon a person's
grounds by the trustees, if the
ground has been improved between
the time of such illegal entry, and
the time of ascertaining the da-
mages as above, the trustees are
liable in damages according to
such improved value. (Bernet v.
Knowles, (Scotch,) 280.)




THE statute 1701, c. 6. does not
require that a copy should be given
to the party of a Magistrate's war-
rant, merely to bring that party
before him. (Arbuckle, v. Taylor,
(Scotch,) 169.)

It seems that the warrant of commit-
ment need be lodged with the
gaoler, that a double may be fur-
nished to the party, according to
stat. 1701, c. 6. only in those
cases where the commitment is for
custody in order to trial. (ib. 174.)


Macmorran, (Scotch,) 255, 262,

But it seems that even in a case of
warranty, it would be a good
answer that the mistake or mis-
representation was attributable
solely to the insurers themselves,
or their agent. (ib. 263.)




Ir a ship is sea-worthy at the time
of her sailing, however soon after
she may become otherwise, the
warranty is complied with. Parker
v. Potts, (Scotch,) 31.)
Under the implied warranty as to
sea-worthiness, not only must the
hull of the vessel be sound, but
she must also be provided with
ground tackling, sufficient to en-
counter the ordinary perils of the
sea. (Wilkie v. Geddes, (Scotch,)
57, 58, 59.)

It is a first principle of the law of
insurance that, in case of a war-
ranty, the thing or circumstance
warranted must be exactly such as
it is represented to be, and ques-
tions of materiality or immateriality
and greater or less risk, are there
out of the case, the only question
being whether the fact exactly
corresponds with the warranty.
(Newcastle Fire Insurance Co. v.


DEVISE and bequest by testator of
the residue of his estates and pro-
perty of every kind, which he
should be seized or possessed of,
or entitled to, at the time of his
death, to his son and two daughters,
and all their younger children, their
heirs, executors, and assigns, for
ever; but nevertheless that his in-
tentions were that each of his
three children should take for life
the interest of such part as he the
testator intended for the younger
children of such child. Held that
at the time of the testator's death,
the fund intended for the younger
children was to be divided into
three equal parts, and the interest
of one of these three parts to be
paid to each of testator's children
for life, and then the principal of
such third part to be distributed
among the younger children of
such child; and that the younger

children took per stirpes and not
per capita; and that the younger
children who came in esse after
testator's death were included, and
entitled to share along with those
living at the time of testator's death.
(O'Dell v. Crone, (Irish,) 61.)
In construing the words of a will the
intention of the testator, and not
the technical import, is to be at-
tended to. (ib. 69.)

The words "in case any of my said
"children shall die,” in a will, may
be construed when they shall die.
(ib. 73.)

In construing a will the state of the
testator's family, at the time of
making his will, may be considered.
(ib. 68.)

In construing a will the inclination of
the Court is to include as many
objects as, by a fair construction of
it, can be brought within it. (ib.)
Under the words in a will, "to pay

"to each of my said (younger) chil-
"dren (three daughters) as and for
"their respective portions, a sum
equal to one-fourth of what shall

[ocr errors]

"remain to my said (eldest) son
"William, payable to my said

daughters respectively, at her or
"their respective ages of 21, or
"marriage, &c.:" held that all the
daughters together were only en-
titled to a sum equal to a fourth of
what remained to the eldest son, or
each of them to one-seventh; and
that the time of the testator's death
was that at which the amount of
his property, and the proportions
of the shares, were to be computed
and estimated. (Colclough v. Gaven,
(Irish) 267.)


PLAINTIFF examining a defendant
as a witness can have no decree
against him. (Bernal v. Marquis
Donegal, (Irish,) 150.)


THE words "in case any of my said
"children shall die," construed
when any, &c. shall die. (O'Dell v.
Crone, (Irish,) 73.)

C. Baldwin, Printer,

New Bridge-street, London.


« AnteriorContinuar »