6. Issues in Probate Proceedings to establish a Will. Due Execution; Sanity of Testator; Undue Influence.

And now comes said K. M. P., executrix, and says that the paper writing propounded for probate as and for the last will and testament [or as and for a codicil to the last will and testament] of T. P., deceased, was executed by said T. P. as such last will and testament [or as such codicil] in the presence of three competent subscribing witnesses, who subscribed their names thereto in his presence and at his request. (1) And this she is ready to verify.

By her attorney, J. C. P.

And the said S. F. G., appellant, comes and says that said paper writing propounded for probate as and for the last will and testament [or as and for a codicil to the last will and testament] of said T. P., deceased, was not executed by said T. P., deceased, as such last will and testament [or as such codicil], in the presence of three competent subscribing witnesses, who subscribed their names thereto at his request and in his presence. And of this she puts herself on the country. By her attorney, S. B. I., Jr.

2.

And the said K. M. P., executrix aforesaid, comes and says that said T. P., the said deceased, at the time of executing said paper writing propounded for probate as and for his last will and testament [or as and for a codicil to his last will and testament], was of sound and disposing mind and memory. (x2) And this she is ready to verify. By her attorney, J. C. P.

And the said S. F. G., appellant, comes and says that said T. P., deceased, at the time of executing said paper writing propounded for probate as and for his last will and testament [or as and for a codicil to his last will and testament], was not of sound and disposing mind and memory. And of this she puts herself on the country. By her attorney, S. B. I., Jr.

And the said K. M. P., executrix, doth the like.

3.

By her attorney, J. C. P.

And the said S. F. G., appellant, comes and says that said T. P., deceased, was induced to make and execute said paper writing propounded for probate as and for his last will and testament [or as a codicil to his last will and testament], by undue and unlawful influence. (x3) And this she is ready to verify. By her attorney, S. B. I., Jr.

(1) [As to this issue the burden of proof is on the proponent of the will.]

(22) [As to this issue the burden of proof is on the proponent of the will, notwithstanding the presumption in favor of sanity, which

VOL. II.

9

is a mere presumption of fact, liable to be controlled, and leaving the burden still with the proponent.]

(x3) [As to this issue the burden of proof is on the contestant.]

And the said K. M. P., executrix, comes and says that said T. P., deceased, was not induced to make and execute said paper writing propounded for probate as and for his last will and testament [or as and for a codicil to his last will and testament], by undue and unlawful influence. And of this she puts herself on the country. By her attorney, J. C. P.

And the said S. F. G., appellant, doth the like.

By her attorney, S. B. I., Jr.]

FISHERY.

Commencement as ante, 33.] For the defendant's use by the plaintiff's permission of a fishery of the plaintiff. (y)

Овв.

FIXTURES.

As to the law upon the subject of fixtures, and contracts respecting them, see Amos & F. on Fixtures; [1 Chitty Contr. (11th Am. ed.) 489 et seq., 491, and note (ƒ), and cases; 495 et seq. and notes and cases cited; Wadleigh v. Janvrin, 41 N. H. 503; Voorhies v. McGinnis, 46 Barb. 243; O'Dougherty v. Felt, 65 Barb. 220; Quinby v. Manhattan Cloth &c. Co. 9 C. E. Green, 260; Stockwell v. Campbell, 39 Conn. 362; Fifield v. Maine Central &c. R. R. Co. 62 Maine, 77, 80, and cases cited; Alvord Carriage Co. v. Gleason, 36 Conn. 86; Cromie. Hoover, 40 Ind. 49; Allen v. Kennedy, 40 Ind. 142;] Woodfall's Land. & Ten.; and see the authorities collected in Walmsley v. Milne, 7 C. B. N. S. 115. It seems a written contract is not necessary under the statute of frauds. Hallen v. Runder, 1 Cr., M. & R. 266, 273; Horsfall v. Kay, 17 L. J. Ex. 266; Hodgson v. Johnson, [El., Bl. & El. 685; Strong v. Doyle, 110 Mass. 92, 93; Bostwick v. Leach, 3 Day, 476.] The price of fixtures cannot be recovered upon a count for goods sold; Leer. Risdon, 7 Taunt. 188; Pitt v. Shew, 4 B. & Ald. 206; unless they have been severed before the sale. Dalton v. Whittem. 3 Q. B. 961; Wilde v. Walters, 16 C. B. 637. The acceptance of a demise of a house containing fixtures does not raise an implied contract to pay for such fixtures. Goff r. Harris, 5 M. & G. 573. Where a tenant agreed with his landlord that he should forbear removing his fixtures at the end of his tenancy, on condition that the landlord should take them at a valuation, and the valuation was made the day after the tenant quitted, it was held the tenant might recover on the common count. Hallen v. Runder, 1 Cr., M. & R. 266. In order to get an admission of part of the plaintiff's case, it may sometimes be advisable to declare specially. In such case the declaration should state that the plaintiff was possessed of, and entitled to remove or sell, certain fixtures and effects, &c. being in a certain house, and that it was agreed between plaintiff and defendant that plaintiff should bargain, sell, and relinquish said fixtures to defendant, and that he should buy same at a valuation to be made, &c. showing agreement for valuation, the valuation that plaintiff relinquished, &c. and non-payment of price. See Form 2, ante, 117. See form by outgoing against incoming tenant for fixtures left on premises by license of landlord: Roffey v. Henderson, 17 Q. B. 574. See other forms relating to fixtures as between landlord and tenant, post, "Landlord and Tenant."

Commencement as ante, 33, Form 1.] For fixtures and effects bargained and sold, and given up by the plaintiff to the defendant [add account stated. Salmon v. Watson, 4 Moore, 73].

(y) This form is given by the C. L. P. Act, 1852, sch B, 10. See Holford v. Bailey, 13 Q. B. 426. [Declaration for refusal to

grant license to fish, Mills v. Mayor of Colchester, L. R. 2 C. P. 476.]

FORBEARANCE TO DEFENDANT.

OBS.- An agreement to forbear absolutely; Mapes v. Sidney, Cro. Jac. 683; or for a given time; Semple v. Pink, 1 Ex. 74; to commence or to prosecute (Wade v. Simeon, 2 C. B. 548, 565, 567) proceedings at law or in equity for a well-founded legal or equitable demand; Jones v. Ashburnham, 4 East, 455; Edwards v. Baugh, 11 M. & W. 641; is a good consideration for a promise by the debtor or a third person; Maud v. Waterhouse, 2 C. & P. 579; Smith v. Algar, 1 B. & Ad. 603; to pay the debt or more, or do any other legal act; Wade v. Simeon, 2 C. B. 548; Llewellyn v. Llewellyn, 3 D. & L. 318; Bidwell v. Calton, Hob. 216; Parker v. Leigh, 2 Stark. R. 229; Poolley v. Gilberd, 2 Bulst. 41; [1 Chitty Contr. (11th Am. ed.) 35 et seq. There must be a bonâ fide claim. Cook v. Wright, 1 B. & S. 559; Callisher v. Bischoffsheim, L. R. 5 Q. B. 449; Wade . Simeon, 2 C. B. 548; Gould v. Armstrong, 2 Hall, 266; Palfrey v. Portland, Saco & Portsmouth R. R. Co. 4 Allen, 55, 57.] But forbearance of such claim is no consideration unless there be a person liable to be sued. Jones v. Ashburnham, supra; Bacher v. Fox, 2 Saund. 136; Hunt v. Swaine, 1 Lev. 165; [Nelson v. Searle, 4 M. & W. 795.] Forbearance by the assignee of a bond, or of a debt, or other chose in action, is a sufficient consideration, being as beneficial to the debtor as if the assignee had been the original creditor, and had forborne. Morton v. Burn, 7 Ad. & E. 19; 1 Saund. 210; Fish v. Richardson, Cro. Jac. 47; 1 Roll. Ab. 20, pl. 11. The abandonment of a doubtful claim or a suit to try a question upon which a reasonable doubt existed; Llewellyn v. Llewellyn, Edwards v. Baugh, supra; Longridge v. Dorville, 5 B. & Ald. 117; Walters v. Smith, 2 B. & Ad. 889; Stracy v. Bank of England, 6 Bing. 754; Bridgman v. Dean, 7 Ex. 199; Tempson v. Knowles, 7 C. B. 651; [Stewart v. Stewart, 6 Cl. & Fin. (Am. ed.) 911, and note (1), and cases cited; 1 Chitty Contr. (11th Am. ed.) 46, and note (m1) and cases cited ;] or an agreement to give up proceeding in a pending reference; Smyth v. Holmes, 10 Jur. 860; are sufficient considerations to support a promise. [The surrender or discharge of a claim which is utterly without foundation, and known to be so, is not a good consideration for a promise. Kidder v. Blake, 45 N. H. 330; Pitkin v. Noyes, 48 N. H. 304. Nor does a discharge from an oral contract inoperative under the statute of frauds. North r. Forest, 15 Conn. 400.] As to promises in consideration of forbearance, &c. to third persons, see post, "Guaranties."

1. On Defendant's Promise to pay Debt and Costs if the Plaintiff would suspend an Action against him.

For that an action had been commenced and was pending by and at the suit of the plaintiff against the defendant in the court of ["queen's bench"] at Westminster for the recovery of a certain sum of money, due and owing (2) from the defendant to the plaintiff, and thereupon, in consideration that the plaintiff would stay (a) all further proceedings in the said action until the day of then next, (b) he the defendant promised the plaintiff to pay

(z) It is not necessary to state the subjectmatter of the debt; Com. Dig. Action on the Case on Assumpsit; but there must in general be a legal or equitable claim. See Obs. supra.

(a) As to the mode of laying the promise, see Payne v. Wilson, 7 B. & C. 423; Tanner v. Moore, 9 Q. B. 1. If the defendant's promise be in consideration that plaintiff would not sue him, the declaration may be as follows: "For that in consideration that the plaintiff would forbear to sue the defendant for recovery of a certain debt of €, due and owing from the defendant to the plaintiff, until, &c."

(b) A suspension of proceedings for a given time, Semple v. Pink, 1 Ex. 74, or for a reasonable time, suffices to constitute a good consideration; [Sage v. Wilcox, 6 Conn. 81; Silvis v. Ely, 3 Watts & S. 420; Watson v. Randall, 20 Wend. 201; Jennison v. Stafford, 1 Cush. 168; Robinson ». Gould, 11 Cush. 55; Bixler v. Ream, 3 Penn. 282; Gilman v. Kibler, 5 Humph. 19; Colgin v. Henley, 6 Leigh, 85;] there need not be a total abandonment of the suit. Chit. Contr. ; Oldershaw v. King, 2 H. & N. 517. [The better opinion seems now to be, that an agreement to forbear, in which no time is mentioned, is good; and that, in declaring

him the said debt and the costs (c) of the plaintiff by him incurred in commencing and prosecuting the said action, on the day of then next; and the plaintiff says, that he ceased to prosecute, and hath hitherto stayed all proceedings in the said action, and that the plaintiff's costs of the said action amounted, to wit, to £ and that all conditions precedent have been performed, and all events have happened, and periods of time have elapsed to entitle the plaintiff to maintain this action; (d) yet the defendant hath not paid the said debt and costs or any part thereof. [Add account stated, &c. as ante, 34, 35.]

2. Against the Obligor of a Bond on the Forbearance by the Assignee to sue him; and Law.

Morton v. Burn, 7 Ad. & El. 19.

3. Similar Forms on the Forbearance by the Grantee of a Warrant of Attorney or Cognovit.

Twight v. Prescott, 2 Dowl. N. S. 4; Payne v. Wilson, 7 B. & C. 423.

4. Against an Executor on his Promise to pay a Legacy in Consideration of Forbearance.

See form, 2 Chit. Pl. (7th ed.) 179; and see Deeks v. Strutt, 5 T. R. 690; Jones v. Tanner, 7 B. & C. 542; Topham v. Morecraft, 8 El. & Bl. 972; Braithwaite v. Skinner, 5 M. & W. 313; ante, 124, note (p).

FRAUDULENT CONVEYANCES.

On the 13 Eliz. c. 5, to recover the Penalties for making a Fraudulent Conveyance. (e)

Butcher v. Harrison, 4 B. & Ad. 129.

on such an agreement, it may be treated as an agreement to forbear for a reasonable time. Oldershaw . King, 2 H. & N. 517; and per Bovill C. J. and Brett J. in Coles v. Pack, L. R. 5 C. P. 65, 71; King v. Upton, 4 Greenl. 552; Elting v. Vanderlyn, 4 John. 237; Hamaker v. Eberly, 2 Binn. 506. But it appears that a promise to forbear "for a little time," or for some time, is too indefinite to constitute a good consideration for a contract. Lonsdale v. Brown, 4 Wash. C. C. 148; 1 Roll. Abr. 23, pl. 25, 26.] If there be any doubt as to the time of forbearance agreed upon, the declaration may allege it to be "for a period of time which has long since elapsed." [See Mapes v. Sidney, Cro. Jac. 683; Lonsdale . Brown, 4 Wash. C. C. 148; Sidwell v. Evans, 1 Penn. 385; Downing v. Funk, 5 Rawle, 69; Hakes v. Hotchkiss, 23 Vt. 231.]

(c) If there was any agreement as to the costs being costs between attorney and client, or costs to be taxed, the declaration should be framed accordingly.

(d) Where in consideration of forbearance defendant promised payment on a particular day, the stay of proceedings until that day was held a condition precedent. Rolt Cozens, 18 C. B. 673.

(e) As to when conveyances are fraudu lent, see [1 Chitty Contr. (11th Am. ed.) 57 et seq.; Spirett v. Willows, 3 De G., J. & S. (Am. ed.) 293, and notes.] A bonâ fide sale is not fraudulent merely because it is made with the intention to defeat the expected execution of a judgment creditor. Wood v. Dixie, 7 Q. B. 892; and see Thompson v. Webster, 28 L. J. Ch. 700; Michael v. Gay, 1 F. & F. 409; [Darvill v. Terry, 6 H. & N. 807; 1 Chitty Contr. 575.]

1

FRAUDULENT REMOVAL.

By a Landlord on 11 Geo. 2, c. 19, 8. 3, for Penalties for assisting a Tenant in fraudulently removing his Goods to prevent a Distress. See a form and law, 2 Chit. Pl. 345; and see Dibble v. Bowater, 2 El. & Bl. 564.

FREIGHT. See ante, "Carriers.”

GARNISHEE. See ante, 16.

GENERAL AVERAGE.

1. By the Owner of a Ship against the Owner of Goods on Board for his Proportion of General Average Loss accruing from Injury done to the Ship by the loss of an Anchor, &c. cut away to preserve the Ship and Cargo, and Expenses incurred in putting back to preserve the Ship. (f)

For that the plaintiff was owner of a ship called the

towards

and of her tackle, anchors, masts, boats, and appurtenances, which ship was proceeding on a certain voyage, from with certain goods of the defendant on board thereof, to be carried therein on freight during the said voyage. And thereupon, during the said voyage, one of the anchors of the plaintiff, belonging to the said ship, was by storms and tempest forced and driven overboard, and became and was suspended on the side of the said ship, and entangled in the rigging thereof; and thereupon, in order to preserve the said ship and the goods on board thereof, it became and was expedient and necessary to cut away the said anchor and parts of the rigging belonging to the said ship, and the same were accordingly cut away, and were wholly lost to the plaintiff; and by means of the said damage and loss, and other damage to the said ship occasioned by the said storms and tempest, the said ship became and was so greatly damaged that it became and was necessary, in order to preserve the said ship and her cargo, for the said ship to put back again to aforesaid, and to repair the said damage; and the said ship with the said goods of the defendant so on board thereof, thereupon put and sailed back again to aforesaid, and the said damage was there repaired, and the necessary expenses incurred by the plaintiff in the premises amounted to the sum of £———; and whilst the said ship was so repairing as aforesaid, the plaintiff necessarily incurred expenses in the payment of the wages and the

-;

(f) See forms, 2 Chit. Pl. 7th ed. 159; Birkley v. Presgrave, 1 East, 220; Price v. Noble, 4 Taunt. 124; damage done to the ship by tempest falls on the owner. As to the law of "average," see Abbott on Shipping, Holt on Shipping, Marshall on Insurance, Arnould on Insurance, Stevens on Av

erage; Gould v. Oliver, 4 Bing. N. C. 134; Hallett v. Wigram, 9 C. B. 580; Hall v. Janson, 4 El. & Bl. 508; Job v. Langton, 6 El. & Bl. 779; Moran v. Jones, 7 El. & Bl. 523; and post, title "Insurance." [What is recoverable as general average, see Wilson v. Bank of Victoria, L. R. 2 Q. B. 203.]