trustee, now has a fee-simple in the freehold estates, and an absolute interest in the leasehold. Secondly, that the testator's three nieces took no legal estate under the will. Thirdly, that G. B. took no estate under the will. Fourthly, supposing that the will had commenced with the words "all the rents," &c., and the passage before those words had been omitted, the three nieces would have taken estates tail in the freehold, and absolute interests in the leasehold. Fifthly, that G. B. would have no estate in the freehold or leasehold tenements; but should he survive the three nieces, and neither of them should have any other child, he would be tenant in tail of the 3. freehold, but have no interest in the leasehold estates. Should he die in the lifetime of the three nieces, he would die seised of no freehold, nor possessed of any leasehold estate. Murthwaite and Others v. Jenkinson and Others, M. 4 G.4. Page: 357 2. A being seised in fee of an estate called H., subject to a mortgage for years, by his will (in which there was a statement in figures of the amount of the estimated value of his entire property, of the sum which his wife had brought him on his marriage, and of the sum which he himself had settled upon his marriage, and of the estimated value of the estate at H.) directed that his daughter C. M. should have the disposal of the sum which he himself had settled on his wife, and in case she did not dispose of it, that it was to go to certain persons therein named. He then desired that H. should go to his daughter C. M. as follows: in case she married and had a son, to go to that son; in case she had 4. more than one daughter at her husband's or her death, and no son, to go to the eldest daughter; but in case she had but one daugh. ter or no child at that time, he desired it might go to his brother W. M. He then gave specific legacies nearly to the amount of the sum which remained, after deducting the money settled on his marriage and the value of the estate at H. And he directed that his daughter should pay an annuity to a person therein named for life; and then he made his brother W. M. his sole legatee: Held, that C. M. took an estate in tail male in H., with a reversion in fee, subject to the other estates created by the will. Mellish v. Mellish, M. 4 G. 4. Page 500 Devise "to my daughter M. G. all the houses, out-houses, garden, and other property, which I now hold under the trustees of the poor of the township of A. for the term of 999 years. I also gite one half part of my books to my daughter M. G. aforesaid; the other half part to my widow S. G., to be equally divided by T. S. If my daughter M. G. should happen to die unmarried, it is my will then that her part aforesaid shall be equally divided amongst all my brothers and sisters, share and share alike by lot:" Held, that the latter clause applied to all that had before been given to M. G., and not merely to her half part of the testator's books. Doe, dem. Gibson and Others, v. Gell, E. 5 G. 4. 680 Devise "to testator's son G. for life, and from and after his decease unto all and every the child and children of G. lawfully to be begotten and their heirs for ever, to hold as tenants in common and not as joint tenants: but if my son G. should die without issue, or or leaving issue, and such child or children should die before attaining the age of 21 years or without lawful issue, then I give and devise the same estates unto my son T., my daughter A. S., and my son-in-law W. D., and to their heirs for ever as tenants in common and not as joint tenants." After testator's death G. suffered a recovery, and died unmarried and without issue: Held, that in that event the devise over must take effect if at all as a contingent remainder, and was therefore defeated by the destruction of the particular estate by the recovery. Doe, dem. Herbert and Others, v. Selby, E. 5 G. 4. Page 926 DISTRESS. 1. The plaintiff's goods were distrained for poor rates, and upon the sale produced 41. 7s. more than was necessary to satisfy the levy. The defendants tendered to him 31. 14s. which he refused to accept, saying that it was too late, but did not then or at any other time demand a settlement of the account and the payment of the overplus: Held that the 27 G. 2. c. 20. prevented the plaintiff from recovering without making a demand before the commencement of the action, and that the tender did not make such demand unnecessary. Simpson v. Routh and Others. E. 5 G. 4. 682 2. Where a landlord has been guilty of an excessive distress. the tenant does not waive his right of action by entering into an arrangement land of which she is dowable as to be irremovable from the parish in which the land lies. Rex v. Inhabitants of North Weald Basset. E. 5 G. 4. Page 724 DYING DECLARATIONS. See EVIDENCE, 15. EJECTMENT. 1. Where a lease contained a proviso that if the rent was in arrear for twenty-one days, the lessor might re-enter," although no legal or formal demand should be made :" Held, that the rent having been in arrear for the time specified, an ejectment might be maintained without actual re-entry, and without any demand of the rent. After trial the court will not relieve the tenant by staying proceedings in the ejectment upon payment of the arrears of rent and costs. Doe, dem. Harris, v. Masters, M. 4 G. 4. 4.90 with him respecting the sale of the A subscribing witness to a bond stated goods seized. Willoughby v. Backhouse and Marshall, E. 5 G.4. DOWER. 821 A widow before assignment of dower has not such an interest in the that it was delivered by the obligor as his deed, but that before and at the time of the execution it was agreed that it should remain in his (the subscribing witness's) hands until the death of A. B., and until certain securities were given up, and and that the bond was given up to him upon that condition: Held, that it was then a question of fact for the jury, upon the whole evidence, whether the bond was delivered as a deed to take effect from the moment of delivery, or whether it was delivered upon the express condition that it was not to operate as a deed until the death of A. B., and until the notes were delivered up. Semble, that it is not essential in order that an instrument should operate as an escrow only, that it should be expressly declared at the time when it is executed, that it was not to operate as a deed until a given event happened. Murray, Administrator, v. The Earl of Stair, T. 4 G. 4. Page 82 EVIDENCE. 5. 1. Where a declaration against a 2 54 A subscribing witness to a bond stated that it was delivered by the obligor as his deed, but that before and at the time of the execution it was agreed that it should remain in his (the subscribing witness's) hands until the death of A. B. and until certain securities were given up, and that the bond was given up to him upon that condition: Held, that it was then a question of fact for the jury upon the whole evidence, whether the bond was delivered as a deed to take effect from the moment of delivery, or whether it was delivered the upon express condition that it was not Murray, Adminis 62 Where A. who held premises under a lease which expired at Midrun mer refused to give up the posses sion at that time, and insisted upon notice to quit, and afterwards con tinued in possession till Christma and paid rent at Michaelmas and Christmas: Held, that this was conclusive evidence of a tenancy, and that the landlord was entitled to recover a quarter's rent due at Lady-day. Bishop v. Howard, T. 4 G. 4. Page 100 7. A libel imputed that his majesty laboured under mental insanity; and it stated that the writer communicated the fact from authority. Upon the trial of the information, the publication of the libel was proved. It was admitted by the defendants that the statement in the libel was untrue, and they did not offer any evidence to shew that they had any authority for making it; and the Judge in his charge to the jury having stated that it was a criminal act to assert falsely of his majesty or of any other person that he was insane, and it being admitted by the defendants themselves that the fact stated in the publication was false, in his opinion. it was a libel: Held, that this direction was correct in point of law, and that the Judge was warranted in saying that the defendants had admitted the charge contained in the libel to be FALSE; for assuming that there might be a distinction between a mere untruth and a criminal untruth, and that the term "false" applied only to the latter, still as the defendants had stated that they communicated the fact from authority, and had not proved that they had any such authority, they must have been guilty of a criminal untruth or falsehood by stating as a fact the knowledge of which they had derived from authority that which was untrue, and for which they had no authority. The jury having retired for a considerable time, returned into court, and desired to know whether it was necessary that there should be a malicious intention in order to constitute a libel; to which the Judge answered, "The man who publishes slanderous matter calcu lated to defame another, must be presumed to have intended to do that which the publication is calculated to bring about, unless he can shew the contrary; and it is for him to shew the contrary:" Held, that this answer was correct in point of law, and that the Judge was not bound to answer in the affirmative or negative the abstract question put to him; and assuming that a malicious intention is necessary to constitute a libel, that intention is to be inferred from the mischievous tendency of the publication itself, unless the defendant shews something to rebut such inference, and therefore that the publication of a libel of mischievous tendency having been proved, and the defendant not having shewn that he published it from authority, the jury were bound to find that he published it with a malicious intention. The King v. Harvey and Chapman, M. 4 G. 4. Page 257 8. In an action by the indorsee against an acceptor of a bill of exchange, whereof E. S. was the payee, the plaintiff proved that a person calling himself E. S. came to C., having in his possession the bill in question, and also a letter of introduction (proved to be genuine), which was expressed to be given to a person introduced to the writer as E. S., and also another bill of exchange, drawn by the writer of that letter. The bearer of these documents, after remaining ten days at C., during which time he daily visited the plaintiff, indorsed to him the bill in question, and received value for it, and also a letter of credit: Held, that this was evidence of the identity of this person with E. S. the payee of the bill, &c. in the absence of any evidence in answer, sufficient to justify a verdict for for the plaintiff. Bulkeley and Others v. Butler, in Error, M. 4 G. 4. Page 434 9. Where in case for slander of title it appeared by the declaration that the plaintiff had a certain interest in the premises, and that by an agreement between himself and the defendant (from whom he derived that interest), he had a clear right to dispose of the whole of that interest, but only a doubtful right to dispose of any portion of it, and the plaintiff averred that he put up his said interest to auction, and that defendant published a libel of and concerning his right to sell the said interest; the evidence being that he offered for sale a portion of that interest only: Held, that this was a fatal variance. Millman v. Pratt, M. 4 G. 4. 486 10. In an action for maliciously, and without probable cause, charging plaintiff with an assault before a magistrate, the magistrate proved that the depositions taken before him were reduced into writing, and that he delivered them at the court of quarter sessions to the clerk of the peace or his deputy. The clerk of the peace stated that a bill of indictment for the assault was preferred, and that the grand jury returned ignoramus, that it was usual in such case to throw away or destroy the depositions; that he had searched among his papers, and could not find them: Held, that parol evidence of the contents was admissible; and that it was not necessary to call the deputy-clerk of the peace to shew that the original depositions were not in his possession, inasmuch as it was his duty, if he had received them, to have delivered them to his principal, and not being in his custody, it was to be presumed that they were lost or destroyed. Freeman v. Arkell, M. 4 G.4. Page 494 11. By the conditions of a sale by auction, the purchaser was to pay 30 per cent. upon the price, upon being declared the highest bidder, and the residue before the goods were removed. A lot was knocked down to A., as the highest bidder, and delivered to him immediately. After it had remained in his hands three or four minutes, he stated that he had been mistaken in the price, and refused to keep it. No part of the price had been paid: Held, that it was a question of fact for the jury, whether there had been a delivery by the seller, and an actual acceptance by the buyer, intended by both parties to have the effect of transferring the right of possession from one to the other Phillips v. Bistolli, M. 4 G. 4. 511 12. A. and B. having been in partnership, dissolved it on the 14th July: the dissolution was advertised on the 17th: on the 16th, a bill was drawn in the names of A. and B., which was accepted and paid by C. without consider ation. C. afterwards sued A. and B. for money lent; A. pleaded bankruptcy and certificate. B. nonassumpsit: nol. pros. as to 4: Held, that he was a competent witness for B., to prove that C. accepted the bill for bis (A's) ac commodation, and not for that of B., for that B. was only a surety, and might have proved under A.'s commission. Moody v. King and Porter, H. 4 & 5 G. 4. 13. In an action for goods sold and delivered, brought by the assig nees of A., against whom a com mission of bankrupty issued, on the petition of certain persons, who alleged that a debt was due to 558 them |