ON THE MODES OF BARRING THE RIGHT OF ness t. ment in such cases, the safety of the trustees, for the reasons stated by Mr. Lewin and Mr. Jacob, can be ensured only by setting the absolute and irresponsible power of the court between them and the surviving wife, under the plan of proceeding suggested by the writer, which is to assign the life interest to a trustee, upon such trusts as the feme covert reversioner shall appoint, and then for the feme covert to appoint in fayour of herself. There would not be the same occasion for the trustees to seek to shield themselves under the irresponsibility of the court; they would be enabled to ground their defence against the surviving wife on the legal operation of the res gesta, and on the iniquity or want of equity of the wife's claim, inasmuch as it might, consistently with the established doctrines of equity, be contended, on the part of the trustees, and could not be disputed on the part of the surviving wife, that she had acted in the matter as a free agent, and had, by her own act while so acting, brought the reversion into possession, and put the fund into such a state as enabled the trustees, upon the clearest principles of equity, to transfer it without committing any breach of trust." Now, it appears to us, that whatever arguments are of weight against the effect of a surrender of the life interest directly to the wife, are of equal weight against a surrender to a trustee, to such person as she shall appoint, completed by an appointment to herself contemporaneous with, or immediately following, the assignment. In a paper, contained in a former Number of THE JURIST, (vol. 9, p. 514), the authorities bearing upon the question, whether a married woman's equitable reversionary interest in personalty, expectant upon the termination of a preceding life interest, can be barred, were collected and discussed; and it was urged, that, upon principle, admitting the authorities to leave the question in a doubful state, the release of the preceding life interest, either to the wife or to the husband, could not have, either technically or consistently with the doctrines of equity, the effect of rendering the wife's right by survivorship capable of reduction into possession. A pamphlet has recently been published by a learned writer, in which it is suggested that the object in question may be attained by the circuitous method of the prior tenant for life assigning his interest to a trustee, upon such trusts as the wife shall appoint, and then the wife appointing to herself. By this proceeding, it is contended, the wife would acquire an immediate absolute interest in the fund, which would thus be brought within the disposition of the husband; and if the fund were then transferred to the husband, a reduction into possession would be effected, which would bar the claim of the wife surviving. This we take to be the substance of the doctrine contained in the opinion given by Mr. Swinburne, and printed in his pamphlet, (page 7); and we shall proceed to discuss its soundAccording to the view that we take on this subject, the grounds of objection to the plan suggested by Mr. Jacob, which was the foundation of Oldham v. Lewis, (Lewin on Trusts, 296), are two: first, the purely technical that there can be no merger by a surrender of the prior life interest either to the wife or to the husband; and, secondly, the purely equitable one, that a court of equity will not assist a married woman to deprive herself of any right which she would have by law, if equity did not interfere; or, to adopt Mr. Jacob's mode of expressing it, that the court might think the assignment of the prior life interest to the wife a contrivance to defeat her right by survivorship, and might, perhaps, not hold her bound by it. We do not understand Mr. Swinburne, in his pamphlet, to dispute the validity of these objections, when the surrender is directly to the wife herself. We do not mean to say that he admits their validity; but he offers no observations against it. He appears, however, to conceive, that On the second, or equitable ground, the argument his suggested plan is intrinsically different, and effect- against Mr. Swinburne's proposed plan for destroying a ive, whatever may be the fate of Mr. Jacob's; and married woman's right by survivorship, appears to us we collect, that he grounds the efficacy of his plan on still stronger. If the court would not, in the case of the amalgamation of the life interest and the rever-surrender directly to the wife, hold her consent to the sionary interest, being the result of the wife's own act, where, as he recommends, a power of appointment is incorporated. At least, this appears to be the spirit of the following passage, in p. 29 of Mr. Swinburne's pamphlet: a Mr. one, "On the cases of Bean v. Sykes and Wilson v. Oldham, the writer would observe, that, under the mode of proceeding hitherto adopted to effect the dis-settle* "The Means of dis-settling and dealing with Personal Funds," &c. By T. Swinburne, M.A., Barrister. Blenkarn. + The learned writer has also printed the opinion contrà of whom he designates as of great eminence; and his own reply to such opinion, against which he argues, not without acuteness, but not without acrimony. With this feud we shall not meddle. It is not for us, as the Lord Chancellor expresses it in The Duke of Leeds v. Amherst, (9 Jur. 359), "tantas componere lites"--to bring ourselves within the wind of such a commotion. We shall, therefore, satisfy ourselves with discussing the dry question, whether Mr. Swinburne's dissettling machinery will produce its intended effect. is the stated ground of the decision in Lachton v. Adams, Firstly, upon the technical ground of merger, which (5 Law Journ., N. S., C., 382). The objection to the notion of merger of the life interest in the wife's reversionary interest where there is a surrender to her, is, that the wife cannot irrevocably assent to the gift to herself of an estate, but, by reason of her incapacity of coverture, can accept it only sub modo, viz. subject to her right of disclaiming it on becoming discoverte. Now, a general power of appointment, which can be exercised in favour of the donee absolutely, is in the nature of an estate; and it might, we think, be successfully contended, that a married woman can no more be conclusively bound by her acceptance of such a power, than she could by her acceptance of an actual estate. Hence, if this view be correct, the exercise by the married woman of the power of appointment, which is the formal acceptance of the estate coupled with the power, cannot be binding upon her, and, therefore, would not produce the required merger. transfer of the fund binding upon her, on the ground of the transaction being a contrivance to defeat her right, in other words, a fraud upon the settlement, why should it suffer itself to be drawn aside from this broad equity, by the mere technical contrivance of interposing a power? If the legal right of the husband is not apparent,-if the assistance or interference of equity is at all requisite,would a court of equity, on a question of the purest equity, tolerate the argument, that a married woman acts as a free agent, merely because she acts as the donee of a power to appoint to herself, instead of being the direct donee of an interest, when the whole transaction upon the face of it purports to be a mere contrivance to make her the instrument of defeating her equity? Could one be heard in equity to say that the gift to a married woman of a power given for the express purpose of enabling her to defeat her equitable right, and the exercise of the power by a deed contemporaneous with the gift of it, do not form together as complete an intended fraud upon the settlement, as a surrender of the life estate directly to her? There is no distinction between the two transactions, unless it be technical. If there be such a technical distinction, its efficacy, if any, must be upon the rights of property that the law casts upon the parties. If the effect of it be to create a bonâ fide merger of the life interest, and an acceleration of the wife's reversion, stripped of its ingredient the contingent right of survivorship, then, of course, cadit questio; but if there is no such technical efficacy in the introduction of the proposed power of appointment, as affecting the common-law rights of the parties in the sort of case discussed, and we contend there is none, then we contend also, that, in equity, what will be looked at is, whether the transaction, taken as a whole, is not a fraudulent contrivance to destroy the wife's right by survivorship; and the court will not trouble itself, whether the wife be apparently a free agent, or not. The broad doctrine of equity, as between husband and wife, is this: if the husband has a legal right of property, equity will not in general take it from him; if he has not, the court will neither aid him in obtaining from the wife, nor suffer her by any act of her own to deprive herself of her legal rights of property. Friday 29 After Term. May 29 June 5 Saturday.. ............................ June 13 | Monday .......... June 15 The court will sit at ten o'clock in the forenoon on each of the days in term, and at half-past nine precisely on each of the days after term. The causes in the list for each of the above sitting days in term, if not disposed of on those days, will be tried by adjourn ment on the days following each of such sitting days. On Monday, the 15th June, in London, no causes will be tried, but the court will adjourn to a future day. Exchequer of Pleas. MIDDLESEX. In Term. 1st sitting, Monday.. May 25 2nd sitting, Monday.. June 1 3rd sitting, Monday.. June 8 Saturday .......... LONDON. 1st sitting, Friday....May 29 2nd sitting, Friday....June 5 By adjournment, if necessary, Saturday.... June 6 After Term. June 13 Monday June 15 (To adjourn only). The court will sit in Middlesex, at Nisi Prius, in term, by adjournment, from day to day, until the causes entered for the respective Middlesex Sittings are disposed of. The court will sit, during and after term, at ten o'clock. GENTLEMEN CALLED TO THE BAR. The following Gentlemen have been admitted to the Pleas, Demurrers, Causes, Further Di- degree of Barrister at Law:rections, and Exceptions. 4 Motions. 6 8 9 10 LINCOLN'S INN, May 1.- Frank Kyffin Lenthall, Esq.; John Coppin, Esq.; Thomas Sampson Darnbrough, Esq.; William Austin, Esq.; Henry T. Cusack, Esq.; Montague Bernard, Esq.; Reginald Robert Pleas, Demurrers, Causes, Further Di- Walpole, Esq. May 6.-Francis Henry Deane, Esq.; rections, and Exceptions. 11 Petitions.-The unopposed first. 12 Motions. Short Causes, Consent Causes, and Consent Petitions every Saturday at the Sitting of the Court. Notice.-Consent Petitions must be presented, and copies left with the Secretary, on or before the Thursday preceding the Saturday on which it is intended they shall be heard. After Term.-Saturday, June 13. A list of such remanets as appear fit to be tried in term will be printed immediately; but on the statement of either side that a cause is too long to be tried in term, it will be withdrawn from such list, provided the other side have two days' notice of the application at the Marshal's to postpone, and do not oppose the application on good grounds. The usual number of completed and new causes will be put into the list day by day in their usual order. Berdmore Compton, Esq.; Charles Cardwell, Esq.; Edward Kent Karslake, Esq.; Charles Watkin Williams Wynn, Esq.; Henry Cust Burges, Esq. MIDDLE TEMPLE, April 17.-Charles Newton, Esq., Charles Frederick Stovin, Esq. May 8.-James Cove of Caius College, Cambridge; Edward Morris, Esq.; Jones, Esq.; William Henry Doyle, Esq.; Evelyn Boscawen, Esq., of Christ Church, Oxford; Gerard Roope, Esq.; Archer Gurney, Esq.; William Horton Claridge, Esq.; William Frederick Browne Staples, Esq.; John Godfrey Bellinger Hudson, Esq.; Donald Malcolm Logie, Esq.; John Harry Lee Wingfield, Esq., B.A.; Henry William Morris, Esq.; Delabere Roberton Blaine, Esq.; Fielding Nalder, Esq., B.A.; John Bower, Esq., of Magdalene Hall, Oxford; Edgar Kedington Rodwell, Esq. Inner Temple.-R. S. Eastwood, Esq.; R. M. Heron, Esq.; John Sheehan, Esq.; T. L. Yeoman, Esq.; William Everett, Esq.; John Riley, Esq.; John Darling, Esq. GRAY'S INN, April 29.-James John Wilkinson, Esq.; Benjamin Way, Esq. COURT OF QUEEN'S BENCH. May 11.-Lord Denman, C. J., delivered the judgment of the court in Doe d. Merigan v. Daley-Rule discharged. Designed to combine the Advantages of an Abridgment of, and an Index to, the recent Cases, and of an original Statement of the Points established thereby. A REPOSITORY OF POINTS IN EQUITY AND confine the Repository to the leading cases. But he CONVEYANCING, conceives that this would be unsatisfactory: for, what one might consider to be a leading case, another might not; and what might be a very unimportant decision to most persons, might to some one be of the utmost moment, as being peculiarly applicable to his own particular case; and cases which may never be followed by others of the same kind, may, nevertheless, be of great indirect value, in deciding other cases to which they bear some analogy. BY JOSIAH W. SMITH, B.C.L., OF LINCOLN'S INN, BARRISTER AT LAW. PREFACE. This Repository comprises the points in equity jurisprudence (as distinguished from equity pleadings and practice) and in conveyancing, which occur in THE JURIST, from the beginning of the Tenth Volume to the end of March; in the Law Journal, New Series, from January to March, inclusive; and in the other Reports published during the same period, namely, 12 Clark & Finnelly, part 2; 2 Collyer, part 1; 4 Hare, part 3; 5 Adolphus & Ellis, part 5; 6 Adolphus & Ellis, part 1; 14 Meeson & Welsby, parts 2 and 3; and 7 Manning & Granger, part 3. And it has been written with the hope that it will be considered to relieve the Profession from the arduous labour of reading and making notes of the cases in equity and conveyancing; although, of course, nothing can remove the expediency of possessing the reports themselves, for the purpose of quotation and reference; and, if possible, it will be succeeded by another part every three or four months, comprising the cases in all the reports published within the intervening period. The reporters' marginal abstracts of the cases are very accurate and ably written, and are doubtless framed in the best mode for assisting the practitioner in referring to the cases. But, on that very account, they are necessarily ill calculated for conveying to the mind, and enabling it to retain, the points and principles involved in those cases, because those abstracts are, and were designed to be, merely abridged statements of the particular cases reported, and not propositions, rules, or placita so framed as to exhibit with brevity and perspicuity the precise points of law and equity which the decisions in those cases have established, divested of the names, dates, sums, quantities, and other particulars which are of no use to the student, and have no connexion with the cases with reference to which such decisions are consulted by the practitioner. In the present attempt, which entirely differs from the existing periodical digests, the aim of the writer has been to accomplish the difficult design of moulding the essential parts of the cases into precise placita, in such a way as to exhibit the points of law and equity which the decisions in those cases serve to establish, with the grounds and reasons for those decisions. He has not worded these placita in more general terms, because it would be unsafe to deduce a general rule from a single case, especially as the decisions are so frequently grounded upon the particular circumstances, and because, if worded less specifically, the placita would not answer the purpose of a Digest of the Cases, by acquainting the practitioner, as they will when framed as above, with the degree of resemblance or material difference between the cases from which they are derived, and the cases occurring in practice with reference to which such placita may be consulted. As these placita are designed not only for reference, but for regular perusal, to acquaint the practitioner and student with the newly decided points of law and equity as early as possible, it seems highly desirable to publish them quarterly, or as nearly so as opportunity will permit. At the same time, the advantages for reference of an annual index will be easily and completely secured, by embodying, at the end of the year, the principal and subordinate titles of the several placita in the General Index to the miscellaneous portion of THE JURIST. It has been suggested to the writer, that he should AGREEMENT. Usurious Contract.]-Where a builder, to whom a person has agreed to grant a lease for a long term of years for building purposes, receives advances of money to enable him to carry on the building, and thereupon it is agreed that the lease shall be made or assigned to the lender, and that the borrower shall pay rent to the lender at the rate of 81. per cent. from the date of each payment, and take a lease from him, but that the borrower is to have the option of selling the houses, provided he pays the lender the amount advanced, and all rent due, such an agreement is usurious and void. Belcher v. Vardon, 2 Čoll. 162. Usurious Contract entered into by one who afterwards becomes Bankrupt.]—Assignees of a bankrupt who seek relief against one of his creditors in respect of an usurious contract entered into by the bankrupt, are not required to pay the whole amount fairly due to such creditor, but are entitled to relief upon the terms of allowing a proof under the fiat for that amount, and interest at 51. per cent. 16. Part of an Agreement enforced by Injunction.-Agreement not to engage in a Business.]-Where an agreement consists of two parts, and one of them cannot be enforced, the Court of Chancery will nevertheless enforce the other part, where it is quite distinct, and mainly founded on a distinct valuable consideration, although the part which cannot be enforced may have formed part of the inducement to enter into the other part which is enforced. So that, where one person, in consideration of a sum of money, agrees not to engage in a certain business within a certain locality, and the other party agrees to employ him in that business at a salary so long as that business shall be carried on, or the latter shall diligently and faithfully attend to it, the first part of the agreement will be enforced by injunction, although the second part may not be capable of being enforced. Rolfe v. Rolfe, 10 Jur. 61— V. C. E. If a person agrees not to carry on, practise, or engage in a certain business within a particular locality, he violates his agreement if he acts as foreman to another person in that business. Ib. See "Specific Performance." ANNUITIES. Whether perpetual, or for Life only.]-Where a testator wills that his property "produce" to his wife and another relative certain "annuities," and to two of his children, for whom he makes no other provision, certain "annuities" for themselves and their children, (who are not then in esse), the said annuities, after the decease of his wife and the other relative, to be equally divided between his children, such annuities are not mere life annuities, but are perpetual annuities, that is, gifts of so much property as will produce an annual income to the amount specified; for it is clear that the duration of the annuities given to the wife and the other relative are not to be measured by the lives of the first takers, since the very same annuities are limited over on the death of the first takers, as annuities continuing to subsist beyond that period; and it is obvious, that, by the annuities given to the two children, a benefit was intended for their unborn children as much as for themselves; and yet it would be very inconvenient that the children of the testator's children should take as cestuis que trust simultaneously with their parents: and the testator's children might die shortly after the birth of the grandchildren; and, in that case, if the annuities then dropped, the grandchildren would be deprived of all benefit from the testator's bounty in the very event in which they would most need it. So that the best way of effectuating the plain intention of the testator, to benefit the grandchildren, is to give to their parents the absolute interest in such an amount as will produce the annuities; for, although there is no certainty, even in this case, that the grandchildren will take any part of the property in which the children have the absolute interest, since the children may otherwise dispose of it in their lifetime, or render it liable to the claims of creditors, yet, by giving the absolute interest to the children, the grandchildren may, and, but for the fault of the children, will, take derivatively through them, by deed or will, or under the Statute of Distributions. Stokes v. Heron, 12 Cl. & Fin. 161. 66 Construction of a Codicil, with reference to the question whether it cuts down an Annuity given by Will to a Life Annuity.]-Where a testator wills that his property produce an annuity to his daughter for herself and her children, and it is held that this disposition, viewed by itself, gives a perpetual annuity to the daughter; and, by a codicil, the testator makes a declaration, beginning with the copulative conjunction and," stating, that in case the residuary devisee and legatee named in his will shall die without leaving issue male, his will is, that, after the decease of his wife (who is also an annuitant) and his daughter, his "remaining property shall then be equally divided between" certain collateral relatives and their children: this subsequent disposition does not cut down the daughter's annuity to a life annuity, or in any way affect it, but is a mere substitution of other residuary devisees and legatees for the one named in the will, in case of the death of the latter without leaving issue male; for the words my remaining property" mean that which has not been before disposed of, and exactly correspond to, and are simply descriptive of, the "rest and residue" mentioned in the will, and consequently have no effect upon the preceding particular dispositions. Ib. ASSIGNMENT. Good except as against Creditors.]—Although an assignment be fraudulent as against creditors, it operates to pass the goods as against the party himself and strangers. Bessey v. Windham, 6 Adol. & Ell. 166. Whether a Deed be a present bonâ Fide Assignment, and whether it passes things subsequently to be brought on the premises mentioned therein.]-Where a deed purports to assign household goods and furniture, and other things (including some perishable articles) which at the date thereof are, or at any time during the continuance of the security thereby created shall be, in, about, and belonging to certain houses and lands; subject to be avoided on repayment of a sum of money on a given day, or at such earlier time as the assignee shall appoint by notice ten days before such time, with interest in the meantime; and the deed contains a declaration, that, after default in payment of the said sum and interest, the assignee may take possession of, and hold and enjoy the said goods, &c., and also sell and dispose of the same for payment of such sum, and interest and expenses; and, further, that, until such default, the assignee may hold, make use of, and possess the said goods, &c.: the deed is a present assignment, bonà fide intended to pass the property at all events, and not a fraudulent assignment, intended to defeat another creditor, or an assignment which will not pass the ownership until default in payment. But the deed cannot operate as an assignment of goods thereafter to be brought upon the premises. Gale v. Burrell, 10 Jur. 198-Q. B. Incomplete voluntary Assignment of Turnpike-bonds and Shares in a Company.1-Where a person, by a voluntary deed, assigns turnpike-bonds and shares in a company to a trustee, in trust for himself for life, and, after his death, for a relative, and delivers to the trus tee the bonds and share certificates, but such steps as are required by the General Turnpike Act, 3 Geo. 4, c. 126, s. 81, and by the rules of the company, in order to effect an assignment, are not taken, nothing passes by the deed. Searle v. Law, 10 Jur. 191-V. Č.E. CHARGE-See "Debts." CHOSE IN ACTION. interest in a partnership, (such as a railway share), Interest in a Partnership.- Railway Share.]-An being a chose in action, is not assignable at law, so as to enable the assignee to sue as a partner; but it is a thing of value, and may be made the subject of a valid contract. Tempest v. Kilner, 15 Law J. 10-C. P. CONSTRUCTION. Meaning of the Words "Mines," "Minerals," and "Fossils." Where waste lands, to the soil of which, including everything beneath the surface, the lord of the manor is entitled, are allotted under an Inclosure Act, which takes away from the lord all right to and interest in the soil, except that it reserves to him all mines and minerals of what nature or kind soever, with the liberty of digging for and carrying away the lead ore, lead, coals, ironstone, and fossils to be gotten thereout; with a proviso that he shall keep the first layer or stratum of earth separate, without mixing the cludes quarries out of which anything is dug; and the same with the lower strata; the word "mines" inword "minerals" includes stone, as also does the word "fossils." This construction derives support from a consideration of the object of the Act, which is simply to give the surface for cultivation to the commoners; and it is greatly favoured by the proviso against mixing the upper and lower strata. The Earl of Rosse v. Wainman, 15 Law J. 67-Exch. CONTRACT.-See "Agreement," "Specific Performance." DEBTS. Annuity included in the word "Debts."]—Where it appears, from certain letters and from parol evidence, that a testator, for valuable consideration, contracted to grant an annuity, and he devises estates upon trust to pay, satisfy, and discharge all debts, whether by bond or mortgage, or due on simple contract, in exoneration of his personal estate, the annuity is charged as a debt on the real estate. Moneypenny v. Mascal, 2 Coll. 213. Damages for a Breach of Covenant after the Cove nantor's Death, recoverable as a Debt under a Charge for Payment of Debts.Where a lessor covenants for quiet enjoyment, and devises his real estates, subject to, and charged with, the payment of his debts, and after the lessor's death the lessee is evicted, and mesne profits are recovered from him, and he subsequently recovers damages against the lessor's executors, but the lessor's personal estate is insufficient to pay such damages, the lessee is entitled to have the loss sustained by him from the breach of the covenant for quiet enjoyment made good as a debt out of the real estate devised, under the charge for payment of the testator's debts, including, as constituent parts of such loss, the costs of the action of ejectment, and the action for mesne profits, and the action of covenant, and the action for ascertaining the value of the lease and of the crops on the ground, and the value so ascertained, together with interest at 41. per cent on the same from the time when the same was so ascertained, and on such costs. Morse v. Tucker, 10 Jur. 173-V. C. W. DEBTOR AND CREDITOR. was prepared, that the debt due to the latter should be paid in full. Watts v. Hyde, 10 Jur. 127-V. C. B. DEVISE. "Heir or Heirs," a Designatio Persona.]-Where a testator, by a will made before the stat. 1 Vict. c. 26, after devising particular estates in real property, has devised the same to such person or persons as, at the time of his decease, should be the heir or heirs at law of a particular individual; the words "heir or heirs at law" are simply a designatio persona; the words "such person or persons as at the time of my decease shall be" depriving the former of the force and effect of words of limitation, which, but for the words last quoted, they would have possessed, in addition to the sense of a designatio persona: and hence the person answering the description of heir of the individual named takes only a life estate, although the testator recites that the estate came to him from that individual, and although it would seem most probable that he intended to give back the ultimate fee to the family of that individual, on failure of his own family. Doe d. Sams v. Garlick, 15 Law J. 54-Exch. Effect of a Charge in passing the Fee.]-A devise of real estate, before the stat. 1 Vict. c. 26, subject to and charged with an annuity, will not pass a fee, without words of limitation, by force of the words "subject to and charged with the annuity," because, in this case, the annuity is not charged upon the person of the devisee, but only upon the estate; and, therefore, no argument can be drawn from the charge, that a fee was intended to be given. Ib. DONATIO INTER VIVOS-DONATIO MORTIS CAUSA. Superiority of the Title of Cestuis que Trust and of a Title by Set-off over an equitable Title of the Indorsee of Promissory Note.]-Where a trustee allows a sum of money, to a part of which he is beneficially entitled, to remain on a promissory note payable to himself only, and not to him or his order, and he afterwards, as a security for advances, indorses the note to a person who is both his own banker and the banker of the maker of the note, and who had no notice of the trust, and subsequently the maker of the note becomes a creditor of the trustee for goods sold, without notice of the indorsement of the note; in such case, as to the trust portion of the money secured by the note, the trust prevails What will constitute such a Donation.]-It would against the banker's security, because the banker acseem that a gift which was intended to take effect at quired only an equitable title, and therefore no better the same time and in the same way as a will cannot be title to the note, or the money secured by it, than the a donatio inter vivos; and it would seem, that, to conindorser could rightfully confer, and, consequently, no stitute an act a donatio mortis causâ, the subject-matter title as against those for whom he is a trustee. And, as must be delivered, either in terms, or unequivocally in to the portion to which the indorser of the note is bene-effect, as a donatio mortis causâ. Hence, where a perficially entitled, the set-off of the maker of the note pre-son, a considerable time (two years, for instance) before vails against the banker's title, as regards the amount his death, incloses certain securities, and a writing menof such set-off prior to the time of the former receiving tioning the persons for whom they were intended, in a notice of that title; but, subject to the trust and the wrapper directed to those persons, and places them in set-off, the banker has a lien or specific claim in equity a tin box in the presence of another person, whose name to the money secured by the note, and lying as a ba- is on the box, and gives the key to him, and, in his last lance in his hands. Moore v. Jervis, 2 Coll. 60. sickness, sends the box and contents to that person, but in the writing has made it clearly appear that he did not intend the objects of his bounty to take any interest in his lifetime, and has accordingly dealt with the property as his own in the intermediate time: in such case, the person to whom the box was delivered is deemed to have had possession in the character of an DEBTOR AND CREDITOR, AND SOLICITOR AND CLIENT. agent only; and the transaction is not a donatio inter Composition-deed.]-Where a debtor and his cre- vivos, because it was clearly intended as a testamentary ditors, among whom is his solicitor, execute a composi- act; and it is not a donatio mortis causâ, because there tion-deed, whereby the debtor covenants to pay a certain is nothing to shew that the delivery was any other than sum annually for a certain period, and to insure his life a delivery to a mere agent, as such. Farquarson ̧v. forthwith for the aggregate amount so agreed to be paid Cave, 10 Jur. 63-V. C. B. In this case, the box also to secure the payment of such amount, and the deed contained title-deeds of property, part of which was decontains a proviso, that if the debtor shall fail in pay-vised to other persons; but it was not necessary to lay ing any of such sums, or in effecting or keeping on foot any stress on that circumstance. such insurance, the deed shall be void; and the solicitor neglects to explain to his client, the debtor, or to ascertain whether the debtor understands, the obligation imposed on him by the deed, which it was the duty of the solicitor to do, and the debtor does not insure his life until after the payment of the first instalment, and only for the amount then remaining due, the solicitor cannot insist on the proviso for avoiding the deed, and may be restrained from prosecuting an action for his entire debt, even though there was a private agreement between the debtor and the solicitor, when the deed Displacing Set-off]-Where the debtor gives a promissory note, and, as a collateral security, deposits a policy of assurance, and afterwards obtains the policy back, he does not thereby displace a right of set-off which he had before the delivery back of the policy. Ib. ELECTION. As to a Scotch heritable Bond.]—Where a testator, by a will made before the stat. 1 Vict. c. 26, devised all the residue of his real, personal, and mixed estate and effects, whatsoever and wheresoever, which he might be seised or possessed of or entitled to at the time of his decease, upon trust, as to a part, for his heir-at-law; and, after the date of the will, a Scotch heritable bond, which, according to the law of Scotland, belongs to the eldest son, as heir-at-law, was executed to the testator, |