846 COVENANT, DEBT ON. although twelve calendar months from the date of such notice and service thereof elapsed before the commencement of the suit, and although six months from the expiration of the said twelve months had also elapsed, and although two instalments had become due, yet the defendant had not paid the same. On demurrer, held, (Platt, B., dissentiente), that, after the expiration of the first year, the notice to pay off the principal might be given at any period of the year, and that the time for payment of the instalment was to be calculated from the date of the notice, not from the day of the year corresponding with the date of the agreement. Brown v. Hartill, (3). Construction. 434 A declaration stated, that, by an indenture between the plaintiff and the defendants, the plaintiff sold the defendants certain letters patent, and the defendants covenanted to pay the plaintiff 8407. by instalments; provided, that, if at the expiration of twelve months from the date of the indenture the defendants should not approve of the patent, and of such their disapprobation, and intention to sell the patent, should give notice in writing to the plaintiff, the payment of the first instalment should be suspended; and if, having given such notice, the defendants should, within six months, sell the patent for the best price that could be obtained for the same, and, retaining to themselves 2407. and certain costs, pay over to the plaintiff the surplus (if any), the covenant for payment of the 8407. should cease; but if the defendants, having given such notice, should neglect or refuse to observe all the other matters and things in the proviso, the covenant for payment of the 840%. should stand. Averment, that the defendants gave due notice of their DEED. disapprobation of the patent, and of their intention to sell the same; that six months from the date of the notice had elapsed, and the defendants had not sold the patent. Breach, nonpayment of the 8407. Plea, that the defendants were ready and willing, and endeavoured to sell the patent, but that no sale could be effected, and the same remained unsold, without any default, and against the will of the defendants:-Held, that the defendants, not having sold the patent, were liable to pay the 840., and therefore the plea was bad. Cherry v. Heming, 557 DATE OF LETTER. DEBT. See PLEADING, (1), (2). DEED. See BANKRUPT, (5). Construction of. To a declaration on an indenture made between the plaintiff and the defendants, provisional directors of a projected Railway Company, called The Direct Northern, after reciting that plaintiff was owner of certain lands through which that railway and another, called The Great Northern, were intended to pass, and that the plaintiff would support the former, and oppose the latter line, it was covenanted, that, if the Direct Northern's bill should pass before six months from the date of the deed, the Company should pay the plaintiff certain large sums of money, in certain specified cases, for the injury done to and for the purchase of his land; that if the Great Northern's bill should pass within eighteen months from the same date, The Direct Northern was to pay the plaintiff, within three months after that event, certain sums of money, in certain specified cases, for compensation, &c.: provided, that, if no act authorising the Direct Northern to make their line should be passed within six months from the date of the indenture, either party might put an end to the agreement by giving notice in writing; and that, after the giving of such notice, the agreement, and everything contained in it, should be absolutely null and void, except the proviso and a covenant as to certain costs to be paid to the plaintiff; and lastly, that if the Companies should be amalgamated, that then, three months after such event, the amalgamated Companies should pay certain sums of money, in certain events: one of these being, the sum of 60007. if the line followed the course of the Direct line without a branch to Stamford; and that in such case all the covenants applicable were to be performed by the amalgamated Companies. The declaration, after alleging that the Companies were amalgamated, that the line took the course of the Direct Northern without a branch to Stamford, and that the period of three months had elapsed, concluded with laying as a breach the non-payment of the 60007. The defendants pleaded, that no act of Parliament authorising The Direct Northern to make their intended line was passed within six calendar months; and that the defendants gave the plaintiff notice that they were desirous to put an end to the agreement, and that no part of the line had passed through plaintiff's estate, or that it had been injured under the act:-Held, on error in the Exchequer Chamber (reversing the judgment of the Court of Exchequer), that the plea was bad in substance, and afforded no answer to the action. The Earl of Lindsey v. Capper, DEMAND. 801 See MONEY HAD AND RECEIVED. DEMURRER, SPECIAL. See PRACTICE, (3). DEVISE. (1). Estate in Fee-simple. A testator, by his will, dated the 26th July, 1825, devised as follows: "I give and devise unto my wife E., to W. H. and J. C., their heirs, executors, and administrators, all my real and personal estates whatsoever, upon trust to pay the rents, interest, and produce thereof unto my said wife during her lifetime, and after her decease to pay and apply the rents, issues, and profits thereof for and towards the maintenance of my children during their lives, with benefit of survivorship; and, after their several deceases, I give and devise the share of her so dying unto her children and unto his or their heirs, as tenants in common. I give, direct, ordain, and appoint unto my said wife E., to W. H., and J. C., their heirs, executors, and administrators, power and authority to sell, dispose of, mortgage, lease, and otherwise in all manners manage my estate, both real and personal, as if I were living. I appoint my wife E., and W. H. and J. C., the executors of this my will, and also guardians of my children." The testator died in 1825, leaving his widow E. (one of the plaintiffs) and three infant daughters unmarried, the youngest of whom died in 1844; and the eldest in 1832 married, and had several children living at the date of the hereinafter-mentioned contract of sale. J. C. never acted under the will, and, in 1833, executed a deed disclaiming all interest under the will. The other party, W. H., died in 1840. In 1845, E., the testator's widow, entered into a contract to sell certain land of which the testator was seised in fee simple at the time of his death:-Held, in an action by E. against the vendee for the recovery of the purchase money, that she took an estate in fee simple in the land in question, and could therefore give a good title. Watson v. Pearson, 581 (2). Meaning of Term "Estate." Held, in the Exchequer Chamber, affirming the judgment of the Court of Exchequer, that though the word "estate," in the operative part of a will, passes not only the corpus of the property, but all the interest of the testator in it, unless controlled by the context, yet, where the word is not used in the operative clause of the devise itself, but is introduced into another part of the will referring to it, such word cannot be construed as having the effect of extending the meaning of the operative clause, whether prior or subsequent. Doe d. Burton v. White, DIRECTOR. See ALLOTMENT. JOINT-STOCK COMPANY. DISCHARGE. See PLEADING, I. (1). DISTRESS. 797 EJECTMENT. See PLEADING, III. (2). ESCAPE. Recaption by Crown. A party in custody under a writ of extent, at the suit of the Crown, was allowed voluntarily to escape, but was retaken and restored into the same custody, and under the same writ :-Held, that he was rightly in custody, and was not entitled to his discharge. Writs of extent are returnable in vacation, under the stat. 5 & 6 Vict. c. 86, 216 s. 8. Regina v. Renton, ESTATE. See DEVISE. ESTOPPEL. See BANKRUPT (6). CARRIERS' ACT. EVIDENCE. PLEADING. In pais. In trover by the assignees of a bankrupt against a sheriff, for the conversion of the bankrupt's goods, seized under a fi. fa. against C. and D., it appeared, that, immediately before the seizure, the bankrupt told the officer that the goods were the property of C.; and, immediately afterwards, he contradicted that statement, and said they were the goods of D. The jury found, that the goods were in reality the bankrupt's; but also, that he represented the goods to the officer as the goods of C., so as to induce the officer, by that false representation, to seize them:Held, that, under the plea of not possessed, this finding did not estop the bankrupt, and the plaintiffs as assignees, from complaining of the seizure of the goods as their own. The rule laid down by the Court of Queen's Bench, that, "where one, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time;" and, again, "a party who negligently or culpably stands by, and allows another to contract on the faith of a fact which he can contradict, cannot afterwards dispute that fact in an action against the party whom he has himself assisted in deceiving," is to be taken with this explanation, that, by the term "wilfully," must be understood, if not that the party represents that to be true which he knows to be untrue, at least, that he means his representation to be acted upon, and that it is acted upon accordingly; and if, whatever a man's real meaning may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth; and that conduct, by negligence or omission, when there is a duty cast upon a person, by usage of trade or otherwise, to disclose the truth, may often have the same effect. Freeman v. Cooke, 654 (4). Marriage Register. In support of a plea of coverture, an examined copy of a register of marriage between the defendant and one J. G. was given in evidence. A witness deposed, that he knew one J. G. and his handwriting; and that the handwriting of the J. G. in the register was that of the person whom he knew:-Held, that the evidence was admissible without the production of the original register. Sayer v. Glossop, 409 (5). Bill in Chancery. A bill in Chancery is not evidence of the truth of the facts stated in it, as against the party in whose name it is filed, even though his privity be shewn, but is only admissible to prove that a suit was instituted, and the subject-matter of it. Semble, that pleadings in equity as well as at common law are not to be treated as positive allegations of the truth of the facts therein, for all purposes, but only as statements of the case of the party, to be admitted or denied by the opposite side, and if denied, to be proved and ultimately submitted for judicial decision. The facts actually decided by an issue in any suit, cannot be again litigated between the same parties, and are conclusive evidence between them; so are the material facts alleged by one party which are directly ad (6). Where Secondary Evidence not permitted. Privilege of Attorney. In an action on a covenant by lessee against lessor, where the lease had been executed by defendant's agent, under a power of attorney, upon whom a subpoena duces tecum had been served, but not in proper time:Held, that secondary evidence of the contents of the power of attorney ought not to be admitted. An attorney cannot be compelled by the Court to disclose the contents of a client's deed in his possession, but if he do so willingly the evidence may be received. Hibberd v. Knight, EXECUTOR. See PLEADING, III. (1). Renunciation 11 A testator appointed two executors, one of whom formally renounced, the other proved the will and died, leaving effects unadministered:- Held, that the renunciation was absolute, the executor not having retracted it, and that it was not necessary to cite him before granting administration de bonis non to another person. Venables v. The East India Company, 633 EXEMPTION FROM TITHES. See TITHES. EXTENT IN CHIEF. See BANKER. FERRY. FALSE STATEMENT. See MONEY HAD AND RECEIVED. FEIGNED ISSUE. See TITHES. FERRY. In an action for the disturbance of a ferry, the first count of the declaration stated, that the plaintiffs were possessed of a ferry across the river Tyne, between North Shields and South Shields, for the conveyance of carriages, &c., and passengers, and that the defendant disturbed this ferry by carrying passengers. The second count stated a right to an ancient ferry. The defendants pleaded (inter alia) not guilty, not possessed, and also that the boat used by the defendants was of less than four tons burthen. The Company was incorporated by the 10 Geo. 4, c. xcviii, for establishing a ferry across the river Tyne, within the limits of Tynemonth and the township of South Shields and Westoe. Section 85 enaets, that, after the ferry shall be established, no other ferry shall be set up and used by any person across the river Tyne, within the said limits; and if any person (except the Company, or persons acting under their authority) shall use any boat or other vessel of the burthen of four tons or upwards, in ferrying for hire across the river within the limits aforesaid, every person so offending shall forfeit 57. At the time the above statute passed, there was an ancient ferry across the river within the same limits, which the Company, under the powers of their act, purchased of the owners:- Held, first, that the word "burthen" in the 85th section, did not mean "register admeasurement,” but capacity of carrying. Secondly, that the latter part of the 85th section did not limit the general right of ferry, but only added a cumulative re |