company with the former; it was stated that B had first made a proposal to another company to insure the same life, and that in consequence of such proposal the actuary of such last-mentioned company had called upon the agent of company B, and showed to him an unfavorable medical report which had been made on the life, on account of which the insurance was refused by the last-mentioned company. At this interview the then solicitor of company B was present, which he admitted in his answer, but refused to state what passed, alleging that he was present as the professional and confidential adviser of company B: Held, that this answer was not sufficient to bring the case within the benefit of the rule as to privileged communications. Bramwell v. Lucas, 2 B. & C. 745; and Greenough v. Gaskell, 1 M. & K. 98, commented on. Desborough v. Rawlins, M. & C. 507. SURETY. (Release of co-surety.) Where, for considerations that appeared sufficient to the court, A executed a deed for the purpose of indemnifying B, one of two co-sureties, against any payments he might have to make in respect of the sum for which he was jointly liable; and B afterwards, without the concurrence of A, released his co-surety: Held, that as A was thereby deprived of the benefit of contribution from the cosurety, the indemnity given to B was restricted to one moiety of the payments which he might have to make as surety. Hodgson v. Hodgson, Keen, 704. TRUSTEES. (Liability of, after notice.) Where a party having a claim, which he afterwards established by suit, against the separate estate of a married woman, had given notice to her trustee to retain so much out of the proceeds of the separate estate as would answer his claim; and the trustee had nevertheless paid over the whole to the married woman, who disputed the validity of the claim: Held, that he was personally liable for the amount which he was required by the notice to retain. Hodgson v. Hodgson, Keen, 704.

WILL. (Construction-Continuance of power.) Where a power of sale was given to trustees, to be exercised during the con

tinuance of the trusts of the will, and owing to the omission of the trustees to convey the estates to the cestui que trusts at the time appointed by the will, such trusts were still subsisting: Held, that the power expired at the time at which the trusts of the will would have ceased if the directions in the will had been complied with. Wood v. White, Keen, 664. 2. (Construction-Death under twenty-one.)

Words conferring

an absolute interest were followed by a limitation over, in the event of any of the legatees dying without issue in the lifetime of the testator or afterwards, and then by a declaration that none of the legatees should be entitled to any bequest until twenty-one Held, that the limitation over did not take effect except in case of death (without issue) under twenty-one. Monteith v. Nicholson, Keen, 719.

3. (Construction-Executory devise and bequest.) Testator gave real and personal estate to trustees in trust for his daughter A absolutely, provided that if she should marry and have no children, the lands and money should go to his son B, or if he was dead in the lifetime of A, to his children. B died in the lifetime of A, without children: Held, that as the executory limitation was to have taken effect only for the benefit of B and his children, A's interest on his death became indefeasible. Jackson v. Noble, Keen, 597.

4. (Construction-Substitution.) Where there was a gift of chattels to two daughters, to be divided between them equally, but if either should die without lawful issue, her share to go to her sister, and one daughter died, without issue, in the testator's lifetime: Held, that the gift over to the survivor took effect. Mackinnon v. Peach, Keen, 555. 5. (Construction-Surplus maintenance.) Where there was a bequest to an infant of certain shares of a residue, in terms clearly sufficient to carry a vested interest, with a direction that the interest of such shares should be applied to the maintenance and education of the infant till he attained twenty-one, and there was a gift over of "the property bequeathed" in the event of the infant dying under twenty-one, and the infant did die under

that age: Held, that such part of the interest on his share as had not been applied to his maintenance and education belonged to his personal representative. Barber v. Barber, 3 M. & C. 688. (See Macdonald v. Bryce, 2 Keen, 517, infra.)

II. DIGEST OF AMERICAN CASES.

Selections from 21 Pickering's (Massachusetts) Reports, 3 and 4 Wharton's (Pennsylvania) Reports, and 9 and 10 Vermont Reports.

ACTION. (When commenced.) In an action upon a promissory note, it appeared, that the real estate of the defendant was attached before the note was signed, but that it was not intended that the writ should be used for the attachment of personal estate until afterwards; and personal eŝtate was in fact attached after the note was signed. It was held, that the attachment of the real estate must be deemed the commencement of the action; and that, as the plaintiff had then no cause of action, the attachment, as well of the personal as of the real estate, was void. Swift v. Crocker, 21 Pick. 241.

2. (Same.) Where a writ is filled up provisionally and delivered

to an officer with instructions not to serve it until after a certain time or the happening of a certain event, the action will not be deemed to have been commenced until the service of the writ. Seaver v. Lincoln, 21 Pick. 267.

ACTION ON THE CASE. (Duties of master of vessel.) The master of a vessel is not required by any positive law or general usage, always, in the night-time, to exhibit a light on his vessel while at anchor in a harbor; and whether the omission to exhibit one will amount to negligence, so as to bar a claim for an injury received from another vessel's running foul of her, must depend on the particular circumstances of the case. Carsley

v. White, 21 Pick. 254.

2. (Amount of damages.) In an action on the case against the

defendant for carelessly and negligently setting a fire on his own land whereby the plaintiffs' property on adjoining land was consumed, it is not material whether the proof shows gross negligence or only want of ordinary care, for in either case the plaintiffs would be entitled to recover damages to the amount of the actual loss sustained by them, and no more, in the form of vindictive damages or otherwise. Barnard v. Poor, 21 Pick. 378.

ADVERSE POSSESSION. Where P. claimed a life estate in land, and S. claimed the fee adversely to P., and both claimed under the same devise, and P. by deed leased the land to H. while S. was in possession, and afterwards S. conveyed the land by deed to W. subject to P.'s life estate;-Held, that the deed from P. to H. was not void, by reason of S. being in possession, claiming adversely to P. at the time of the execution of P.'s deed to H. and that the assignee of W. could not avoid it. Hibbard v. Hurlburt, 10 Vermont, 170. 2. (Landlord and tenant.) An assignment of a mortgage, when a third person is in possession of the mortgaged premises, claiming adversely, is not within the statute of 1807, "to prevent fraudulent speculations," &c. Converse v. Searls, 10 Vermont, 578.

AGENT. (Usury.) Where an agent, authorized to settle a debt due the estate, takes a note to the administrator for the principal sum due, and one to himself for usurious interest, the first note is not void, unless the administrator knew of the usury and assented to it. Baxter, Adm'x. v. Buck, 10 Vermont, 548. ARBITRATION. (How sum awarded may be recovered.) If a matter in dispute is submitted by parol to arbitration, and the arbitrators award merely that a sum of money is due from one party to the other, the sum so awarded may be recovered under a count in indebitatus assumpsit or a count on an insimul computassent, it not being necessary to declare specially on the award. Bates v. Curtis, 21 Pick. 247. ARBITRATION AND AWARD. (Defective award.) An award in favor of the plaintiff of a certain sum of money, or that the

defendant carry out and strictly fulfil his part of the contract," is bad. Henness v. Myer, 4 Wharton, 358. ASSIGNMENT. (Where a period is fixed for signing.) In the case of a general assignment by an insolvent debtor in trust for the benefit of his creditors, purporting to be made by and between the debtor, the trustees, and those of the creditors who shall execute the instrument within a fixed period from its date, and containing a release to the debtor, a creditor who executes the instrument after such period has elapsed, is not a party to it, and his claim is not affected by the release. Battles v. Fobes, 21 Pick. 239.

2. (Of notes secured by mortgage.) When all the notes, secured by a mortgage, are assigned, the mortgage passes with them, but when a part only are assigned, whether the whole mortgage, or a proportionate part, or any interest therein, is assigned, depends on the real contract and actual agreement of the parties. Langdon and another v. Keith, 9 Vermont, 299. ATTACHMENT. (Lien of factor.) A manufacturer of goods

put them into the hands of a common carrier, at Providence, to be carried to Boston and left at the tavern where the carrier's wagon usually stopped, and then went to Boston and presented an invoice of the goods to his factor, stating that they were on the way, and obtained an advance upon them. The manufacturer had previously consigned divers goods to the same factor for sale, and had received advances upon them, and his practice was to deliver the goods at the warehouse of the carrier in Providence, and the expenses of transportation were usually paid by the factor. Afterward, and while the goods in question were on the way, they were attached at the suit of a creditor of the manufacturer. It was held, that the factor had no lien, and that the attachment was valid. Baker v. Fuller, 21 Pick. 318.

ATTORNEY. (Responsible personally for money borrowed.) Where an attorney procures money to be advanced, by a third person, in the prosecution of an action, without attempting to pledge the credit of his client therefor, the attorney alone is