Where possession is referable to either of two incon-
sistent rights, the acts of a party bound to elect in
order to constitute election, must imply a knowledge
of the rights and an intention to elect.-Dillon v.
Parker
Page 325

EQUITY. See LACHES.
D., upon the marriage of S., his niece, executed a bond
with a penalty to N. and G. The condition of the bond
recited the intended marriage, and that, in consideration
thereof, and of natural love and affection to his niece,
he had agreed to make some provision for her, and the
issue of the marriage; and that "in case S., or any
issue of the marriage, should survive D., or he should
die unmarried, that he, his heirs, &c., should pay to
N. and G., their executors, &c., 2000l. &c.: but if D.
should die, leaving a wife or issue living, &c., then the
sum of 1000l. &c. upon trust to lay out the 2000l. or
1000l. &c., in public or government securities, upon
trust, for the separate use of S. for life, and at her de-
cease for the issue of the marriage living, &c. &c.; and
also if S., or any issue of the marriage, should be living
at the death of D., he being unmarried and without
issue, that, exclusive of the before-mentioned provision,
he should either by his last will and testament give and
bequeath, or by some ways and means give or leave
unto or in trust for S., or the issue of the marriage, so
much in money or valuable effects as he should by such
will give or bequeath to any one of his next of kin or
nearest relations, or any other person or persons; or if
he should make no such bequest, &c., or if such be-
quest should fall short of the greatest bequest in such
will to any of his next of kin, &c., then if the executors,
&c., of D. should pay to N. and G., &c., or make good
any deficiency that the same should fall short of, &c.,
in trust for S., and the issue, &c., in manner as before
mentioned respecting the 2000l. or 1000l. &c., then the
obligation to be void, otherwise to remain in force."
The marriage took effect, and there were issue who
attained twenty-one. S. and her husband died in the
lifetime of D., who, after the date of the bond, had a
natural daughter, S. B., who intermarried with D. B.
the nephew of D. In April, 1804, D. employed soli-
citors to state cases, and took opinions as to the mode
in which he might dispose of his property, so as not to
be affected by the provisions of the bond.

In May, 1804, D. conveyed freehold lands, &c., at H.,
&c., in trust for himself for life, remainder in trust for
S. B. for her separate use, remainder to D. B. for life,
remainder to such uses as the survivor should appoint,
remainder in default of appointment to his own right
heirs. By another indenture of the same date, D. con-
veyed estates at C., &c., in trust for himself for life, with
contingent remainders successively to two of the sons
of D. B., remainder to D. B. in fee. In 1814, he
executed two other conveyances, in both of which,
reserving estates to himself for life, he limited re-
mainders in the lands conveyed in trust for the sons,
with the ultimate remainders in fee to D. B. All these
lands were purchased by D. after the date of the bond,
by application, and proportionate diminution of his per-
sonal estate, and the conveyances were made without
consideration.

In 1811, D. assigned to D. B. a bond for 16,000l. The
assignment was made without consideration, and D.
continued to receive the interest for life under the
security of a bond from D. B. In 1817, he assigned a
mortgage for 2000l. in trust for himself for life, and, at
his death, for the benefit of S. B. In February 1817,
he transferred 20,000l. navy 5 per cents., and 35,000l.
3 per cent. consols, to D. B. and S. B., his wife, under an
agreement, or with the understanding, that he was to
receive the dividends upon the stock transferred during
his life. By his will, dated in 1814, D., after giving to
the children of S. an option to take 6000l. in satisfaction
of the bond, and various legacies to D. B. and other
persons, devised and bequeathed all the residue of his
estate and effects to D. B. D. died in March 1817.
Held, that the condition of the bond was to be construed
in equity as an agreement made upon consideration
of marriage, which might extend beyond the penalty;
that the gifts of the lands purchased by D., with per-
sonal estate after the date of the bond, and conveyed
to D. B. in reversion, subject to a life interest reserved
to D., and also the gifts of the bond for 16,000l., and all
other beneficial interests given to D. B., were to be
considered as testamentary within the terms of the
agreement; and that as to the gifts of the stock of
20,000l. and 35,000l. to D. B. and S. B., his wife, and
other partial or contingent interests, the value of the
interest of D. B. in such funds was to be estimated as
VOL. VII.

K K

they stood at the death of D., with a view to ascertain
what amount of benefit D. B. took under the will and
testamentary gifts of D., in order to estimate the pro-
portion to which the parties claiming under the bond
were entitled; and that, assuming D. B. to take the
largest legacy or interest under the will or gifts held
to be testamentary, that the parties claiming under
the bond should receive out of the residue given by
the will of D. a sum equal to such legacy or gifts; and
if the residue should be insufficient, then that the
legacies and gifts to D. B. and S. B. should abate in pro-
portion, so as to effect such equality; and after such
application of the general residue, if sufficient, &c.
that the clear residue should be divided between D.
and the parties claiming under the bond. - Logan v.
Wienholt
Page 1

EVIDENCE. See ELECTION. LACHES.

TRIAL.

EXCHANGE. See REMITTANCE.

EXECUTION. See PLEADING.

EXECUTORY DEVISE.

PLEADING. NEW

A will devising land, &c. to trustees upon trusts for
accumulation during twenty-one years, without refer-
ence to the minority of any described person or any
of the purposes of marriage, and also creating a term
in the trustees for 120 years, if twenty-eight persons
named, or any or either of them, should so long live,
many of the persons named being unconnected with, and
taking no benefit under, the trusts, with a term in gross
of twenty years, upon trust after the expiration of the
terms of 120 and twenty years, determinable as before
provided, that the trust estates should be conveyed by
the trustees to such person as would be entitled to the
same by purchase or descent, for the first or immediate
estate for life, in tail or in fee, in the same trust estates
as if they had by the will been devised, &c. to the use
of G. B. (a nephew of the testator) for life, remainder
to his sons successively in tail male, with similar re-
mainders to other nephews and nieces, upon the like
limitations, with a declaration that the person to whom
the conveyances should be made should have such
estates as he, &c. would be entitled to take under
the limitations if they had been made by the will, with
the like remainders over, &c.; and that no person should
be entitled to a vested estate, or any other than a con-
tingent interest, until the expiration or other sooner

determination of the 120 years determinable, &c., and
twenty years.

Held, that the will was valid by way of executory devise,
both as to the trust for accumulation under the 39 & 40
Geo. 3.; and also as to the limitation to take effect at
the expiration of the lives named, and twenty-one years
absolute as a term in possession, without reference to
infancy or minority. Cadell v. Palmer

FOREIGN SOVEREIGN.

-

ISSUE. See PARTNERSHIP.

LACHES.

See PRACTICE.

TRUST.

Page 202

Under a decree for the administration of assets, N., as a
creditor, made a claim upon a bond for 12,000l., upon
which issues were directed to be tried by the court,
whether as to any and what part the bond was given
for services, or as a loan, or whether it was a bond of in-
demnity to the extent of 10,000l., or a gift. The House
of Lords, on appeal, reversed the order, directing the
issues, and remitted the cause to be decided upon the
facts in evidence before the court below: whereupon
the court declared that the bond as to 10,000l. was a
counter-security, &c. This decree having also been
reversed, upon appeal, an order was made in the court
below, on the petition of parties in the cause interested
in the assets, that they might be at liberty to file a bill
to impeach the validity of the bond as a gift. Upon
appeal against this order, it was reversed, chiefly on
the ground that the parties had opportunities to raise
the same question in the former proceedings, which
they had neglected, and that no other or further evi-
dence was to be expected than that which was already
before the court. Nicol v. Vaughan
- 395

LANDLORD AND TENANT (Scotland).

Corn purchased in open market may, by the law of Scot-
land, be recovered from the buyer to satisfy rent in
arrear for the current year, the corn being part of the
produce of that year of the land rented.

Dalhousie

-

Dunlop v.

LAPSE OR LENGTH OF TIME. See ELECTION.

MARRIAGE CONSIDERATION.

MESNE PROFITS (Scotland).

See EQUITY.

422

Where a lessee of lands is in possession under the judg
ment of a court of law in Scotland, which judgment,
upon appeal to the House of Lords, was held to be
erroneous, the possession is bona fide: and the lessee,
by the law of Scotland, is not accountable to the

person upon the appeal adjudged to be owner for the
profits of the lands during the possession. - Carnegy
v. Scott

Page 462

In a suit in the Court of Session (Scotland) upon a con-
tract for the sale and purchase of a wood, in which the
vendor reserved a power to retain a certain number of
acres to be taken out of the belt of the wood, evi-
dence was admitted by the court respecting the price
or value of the part selected to be reserved, which
evidence ought to have been rejected; and judgment
in the suit was given for the vendor, the purchaser not
having asked of the court to direct an issue to the Jury
Court. Upon appeal against this decision, the House
of Lords being of opinion that the judgment was sup-
ported by the other evidence in the cause, and ought
to have been the same if the evidence improperly
admitted had been rejected, and that the court was
judge of the law as well as the fact, held that the judg-
ment was right, and that an issue as to the value ought
not to be directed.-N. B. That the same exception
to the general rule as to new trials prevails in English
courts of law, where, although the effect produced upon
the jury by the improperly admitted evidence cannot
be ascertained, the courts, in some instances, refuse to
direct a new trial. Pentland v. Willoughby 453
NEXT PRESENTATION. See PREBENDARY.
NOTICE.

See TRUST.

PARTNERSHIP.

-

By articles of partnership made in 1802, between R. and
A., it was agreed that a mercantile house should be
established and carried on for the sale of West India
produce on commission, and the supply of stores to
planters, &c.; that R. should be interested for profit
and loss in three fourths; and A. in one fourth; and
that the partnership should not advance money on loan
to any person without the previous particular consent
of all the partners.

B. was privy to this deed; and by other articles of even
date it was agreed that B. should be a partner in the
concern under R., and should be interested for one
fourth, to be deducted out of the share of R.; and it
was provided, in case of the death of A., that his share
should be divided, so as to give to R. two thirds, and
to B. one third of the whole business.