Rhodes v. Smethurst,

to probate) an executor of his will was not appointed until after the expiration of the six years, and that the plaintiff sued such executor within a reasonable time after probate granted. (2 Vern. 694; 10 Ves. 93; 1 Myl. & K. 114; 4 Bing. 686; 4 T. R. 300; 1 Lev. 31; 5 B. & Ald. 204.) 4 M. & W. 42. MANSLAUGHTER. (By surgeon.) If a medical man, though lawfully qualified to practise as such, cause the death of a patient by the grossly unskilful or grossly incautious use of a dangerous instrument, he is guilty of manslaughter. Reg v. Spilling, 2 M. & Rob. 107. MASTER AND SERVANT.

(Liability of owner of goods

for misfeasance of persons employed by him upon them.) The defendants, who were occupiers of a bonded warehouse, engaged a master porter to lower and convey a barrel of flour from the warehouse. The master porter engaged a master carter, and both of them attended with their men. During the process of lowering the barrel, owing to the defectiveness of a rope furnished by the master porter, it fell and injured the plaintiff: Held, that the defendants were liable for the injury. (1 Bos. & P. 404; 5 B. & Cr. 547.) Randleson v. Murray, 3 N. & P. 239.

MONEY HAD AND RECEIVED. Where an action was brought in the name of A against B on a bill of exchange, but it appeared that C, the drawer of the bill, was the real plaintiff, and that A only lent his name because C was unwilling that his should appear, and that A gave no instructions to and had no communication with the attorney; and the attorney received a sum of money from B on the settlement of that action: Held, in an action for money had and received by A against the attorney, to recover such sum, the jury having found that it was received for C and not for A, that the plaintiff could not recover, Clark v. Dignam, 3 M. & W. 478. PARTNERSHIP. (Actions between partners.) Where a member of a joint stock company advanced money to a director of the company, knowing that it was to be applied in taking up a

bill, which the director had become a party to, for the purposes of the company: Held, that it was a question for the jury, whether the plaintiff advanced the money on the credit of the company at large, or on that of the director individually. Colley v. Smith, 2 M. & Rob. 96. PRACTICE. (Right to begin.) Where the judge at nisi prius has decided clearly and manifestly wrong on the question whether the plaintiff or the defendant had the right to begin, the court will grant a new trial. Huckman v. Fernie, 3 M. & W. 505.

2. (Same.) Declaration on a policy of insurance on life averred, that the person insured was at the time in good health. Plea, that he was in bad health; with a verification. Replication, that he was in good health, as in the declaration alleged; concluding to the country: Held, that the plaintiff had the right to begin.

Only one counsel on a side is to be heard on the claim of right to begin; and the counsel for the party claiming it has the right to reply. Rawlins v. Desborough, 2 M. & Rob. 70. PRINCIPAL AND ACCESSARY. A prisoner, who employed another person to harbor the principal felon, may be convicted as accessary after the fact, though he himself did no act of relieving, &c.; and the prisoner may be convicted on the uncorroborated testimony of the person who actually harbored, &c. Rex v. Jarvis, 2 M. & Rob. 40.

SALE BY AUCTION. (Rescission of, on ground of misdescription in particulars.) By the particulars of sale of certain houses and land, lot 13 was described as building ground, and an adjoining lot, 12, as a villa, subject to liberty for the purchaser of lot 1 to come on the premises to repair drains, &c, as reserved in lot 7. The reservation in lot 7 referred to a lease, which gave the occupier of that and several adjoining lots, composing a row of houses, a carriage-way in common, in front of the lots, and a foot-way at the back, and also a foot-way over lot 13. The particulars also contained plans, which showed the carriage-way in front, and the footway at the back of the houses,

but not the footway over lot 13; but the particulars stated that the lease of lot 7 might be seen at the vendor's office, and would be produced at the sale. The plaintiff purchased lots 12 and 13, in ignorance of the foot-way over lot 13, and signed one contract for both: Held, that the misdescription was such as to entitle him to rescind the contract as to both. Dykes v. Blake, 4 Bing. N. C. 463.

2. (Same.) A condition of sale," that if any mistake shall be made in the description of the premises, or any other error whatever shall appear in the particulars of the property, such mistake or error shall not annul the sale, but a compensation shall be given or taken," &c. does not apply where any substantial part of the property turns out to have no existence, or cannot be found; or where the vendor has malâ fide given a very exaggerated description of the property. The purchaser may in such case rescind the contract in toto. Robinson v.

Musgrove, 2 M. & Rob. 92. SLANDER. (Actionable words.) An action will lie for saying

of the plaintiff "he is a returned convict," although the words import that the punishment has been suffered. Fowler v. Dowdney, 2 M. & Rob. 119.

STATUTE. (Effect of repeal of.) Where an act of parliament directs a proceeding to be adopted, as contained in a former act, the repeal of such former act does not operate as a repeal of the proceeding so directed, which is to be considered as incorporated in the latter act. Reg v. Stock, 3 N. & P. 420. TRESPASS. (Evidence of provocation.) In trespass for a battery, the provocation, although not arising at the time of the battery, may be given in evidence under not guilty, in mitigation of damages. Fraser v. Berkeley, 2 M. & Rob. 3. WARRANTY. (Of horse-what is unsoundness.) A slight disorder on a horse at the time of sale, not calculated permanently to diminish his usefulness, such as with ordinary care may soon be cured, and from which he has in fact recovered, is not an unsoundness constituting a breach of a general warranty of soundness. Bolden v. Brogden, 2 M. & Rob. 113.

2. (Of horse-parol evidence, when admissible in proof of.) The defendant gave a verbal warranty of a horse, which the plaintiff thereupon bought and paid for, and the defendant afterwards gave him the following memorandum :-" Bought of G. P., a horse for the sum of 71.-G. P." Held, that parol evidence might, notwithstanding, be given of the warranty. Allen v. Pink, 4 M. & W. 140.

WATERCOURSE. A right to a watercourse is not destroyed by the owner's altering the course of the stream. And in an action for the obstruction of a watercourse, it was held, that an interruption twenty-two years before action brought, whereby the stream did not flow in its accustomed channel until nineteen years before action brought, did not affect the plaintiff's right to Hall v. Swift, 4 Bing. N. C. 381.

recover.

WAY. (Dedication.) A road had been used by the public without interruption for thirty years, but it appeared that twenty-two years ago an agreement was made between the owner of the soil on the one part, and a colliery company and the surveyor of highways of the hamlet on the other part, whereby the former agreed to let them use the road on the company paying 5s. a year and finding cinders for repairs, and the hamlet drawing and spreading them :-Held, that although the evidence of user, per se, would show a dedication by the owner of the soil, it was explained by the agreement, which amounted only to a license to use the road during such times as the conditions of it should be observed.

Semble, there cannot be a conditional dedication of a right of way to the public. Barraclough v. Johnson, 3 N. & P. 233. 2. (Right of reversioner to sue for obstruction of.) A reversioner cannot sue for the obstruction of a right of way, unless the obstruction be such as either permanently injures the estate, or operates in denial of the right. (1 M. & Selw. 234; 10 B. & Cr. 145.) Hopwood v. Schofield, 2 M. & Rob. 34. WILL. (Signature.) A will of lands is sufficiently signed, within the statute of frauds, by the mark of the testator, although he can write. Taylor v. Dening, 3 N. & P. 229.

WITNESS. (Right of party to discredit his own witness.) The counsel calling a witness, who has given unfavorable evidence on cross-examination, may, on re-examination, ask him questions to show inducements to betray the party who has called him. Dunn v. Aslett, 2 M. & Rob. 122.

EQUITY.

Selections from 2 Keen, Part 2; 3 Younge & Collier, Part 1; and 8 Sim. Part 2.

ADEMPTION OF LEGACY. (Intended change of fund.) A testator resident abroad bequeathed to A B, 20007., part of a sum of 70007. in the hands of his agents in England. Subsequently to that, his agents, acting under an order received from his general agent abroad, but sent without the special knowledge of the testator, to invest 50007. of the whole sum, had actually invested the whole in the 47. per cents, and seven days previous to his death the testator wrote to his agent abroad, desiring him to order the investment of all the moneys in the hands of his agents in England, which latter order could not have been carried into effect before the death of the testator: Held, that the legacy was not adeemed. Basan v. Brandon, 8 Sim. 171. ARREARS OF INTEREST. (Bequest of debt.) The bequest

of a bond debt owing to testator was held to carry with it the arrears of interest accrued due on such debt during the life-time of the testator. (Roberts v. Cuffin, 2 Atk. 115; Hawley v. Cutts, 2 Freem. 23.) Harcourt v. Morgan, 2 Keen, 274. BILL OF DISCOVERY. (Prayer for relief.) If to a bill of discovery in aid of a defence to an action at law, a prayer for equitable relief be added, the defendant is not bound to give. any discovery beyond what is incidental to such relief; accordingly, where such bill was filed by an insurance company in aid of a defence to an action of policy, on the ground of fraud and want of insurable interest, and the bill also prayed for the delivery up of the policy: it was held, that the defendant was not