2. The plaintiffs were merchants at Val-
paraiso, being a branch house of a firm
carrying on business under a different
style at Liverpool. The defendants, a
telegraph company, with its chief office
in London, bad agencies at Liverpool
and elsewhere, including Monte Video,
but not at Valparaiso. The defendants
had a system of forwarding the mes-
sages of several senders in one "packed
telegram," each message being distin-
guished by a cipher known to the de-
fendants and their agents and to the
senders, which messages on the receipt
of the packed telegrams by the defen-
dants' agents were transmitted to their
proper recipients. In December, 1874,
the plaintiffs, at Valparaiso, received a
message transmitted by the defendants
from Monte Video, purporting to be
an order, which the plaintiffs executed,
from the plaintiffs' Liverpool house for
a large quantity of barley. No such
message was in fact sent by the Liver.
pool firm, nor was the message intended
for the plaintiffs. The misdelivery of
the message was caused by the negli-
gence of an agent of the defendants,
and resulted in serious loss to the plain-
tiffs, in consequence of the fall in the
market:

Held, on demurrer, that, there being
no contract between the plaintiffs and
the defendants, and no duty owing by
the latter to the former, there was no
cause of action. Dickson v. Reuters'
Telegraph Co.

313

had purchased some of the goods bona
fide of Blenkarn without notice of the
fraud, and resold them to other per-
sons. The plaintiffs having brought an
action for the conversion of the goods:

Held, reversing the decision of the
Queen's Bench Division, that the plain-
tiffs intended to deal with Blenkiron
& Sons, and therefore there was no con-
tract with Blenkarn; that the property
of the goods never passed from the
plaintiffs; and that they were accord-
ingly entitled to recover in the action.
Lindsay v. Cundy. 237, 242 note.

TITLE.

1. A. Blenkarn took premises at 37 Wood
Street, and wrote to the plaintiffs at
Belfast ordering goods of them. The
letters were dated 37 Wood Street, and
signed "A. Blenkarn & Co." in such a
way as to look like "A. Blenkiron &
Co.," there being an old established
firm of Blenkiron & Sons at 123 Wood
Street. One of the plaintiffs knew
something of that firm, and the plaintiffs
entered into a correspondence with
Blenkarn, and ultimately supplied the
goods ordered, addressing them to "A.
Blenkiron & Co., 37 Wood Street."
The fraud having been discovered,
Blenkarn was indicted and convicted
for obtaining goods by falsely pretend-
ing that he was Blenkiron & Sons.
Before the conviction the defendants i

TRUST AND TRUSTEES.

1. When power of, as to disposition of
property exclusive. Matter of Veale's
Trust.
669

2. C., a trustee, employed a broker, who
had notice of the trust, to sell out con-
sols and invest the proceeds in railway
stock. The broker sold the consols
for cash, bought railway stock to the
same amount for the settling day, and
received the price of the consols in a
check, which he paid into his account
at his bankers. He stopped payment
before the settling day, and went into
liquidation. C. claimed so much of the
broker's balance at his bankers as was
attributable to the price of the consols.
The Registrar disallowed the claim,
holding that the relation between bro-

VENDOR AND VENDEE.

1. Trustees for sale of a freehold mes-
suage and hereditaments, who sell un-
der a condition that "the property is
sold and will be conveyed subject to
all free rents, quit rents, and incidents
of tenure, and to all rights of way,
water, and other easements, if any," are
entitled to have the words "subject to
all free rents, quit rents, and incidents
of tenure, and to all rights of way,
water, and other easements, if any," in-
serted in the habendum of the convey-
ance, although it is not shown, nor
asserted, that the property is subject
to any of the liabilities so specified.
Gale v. Squier.

See AGREEMENT, 253, 341.
SALE, 701.

WARRANTY, 243, 252 note.

VESSELS.

See JURISDICTION, 366, 538 note.

W.

777

U.

ULTRA VIRES.

See CORPORATIONS, 158, 833.

UNDUE INFLUENCE.
See FRAUD, 43.

WAGERS.

1. The plaintiff was a "tipster,” i.e., gave
information as to the probable winners
of horse races. Upon his giving the
name of a horse to the defendant as the
probable winner of a certain race, it
was agreed between them that the
plaintiff should have £2 on the horse
at 25 to 1, that is to say, that, if the
defendant backed the horse and won,
the plaintiff should have £50 out of his
winnings, but if the horse lost, the
plaintiff should pay the defendant £2.

The defendant did back the horse,
and it won, and the plaintiff thereupon
claimed £50 out of the defendant's
winnings:

Held, that the agreement was void
within 8 & 9 Vict. c. 109, s. 18, and
that the £50 could not be recovered.
Higginson v. Simpson.

320

V.

VARIANCE.

See CRIMINAL LAW, 610, 621.

WAIVER.

See PROTEST, 291, 293 note.

WARRANTY.

1. On the sale of an article for a specific
purpose there is a warranty by the
vendor that it is reasonably fit for the
purpose, and there is no exception as
to latent undiscoverable defects.

The limitation as to latent defects in-
troduced by Readhead v. Midland Ry.
Co. (Law Rep., 4 Q. B., 379) does not
apply to the sale of a chattel.

2. The plaintiff ordered and bought of
the defendant, a coach builder, a pole
for the plaintiff's carriage. The pole
broke in use and the horses became
frightened and, were injured. In an
action for the damage, the jury found
that the pole was not reasonably fit for
the carriage, but that the defendant
had been guilty of no negligence:

Held, that the plaintiff was entitled
to recover the value of the pole, and
also for damage to the horses, if the
jury, on a second trial, should be of
opinion that the
was the natural
defect in the pole.

injury to the horses
consequence of the
Randall v. Newson,
243, 252 note.

5. One who stores water on his own land,
and uses all reasonable care to keep
it safely there, is not liable for damage
effected by an escape of the water, if
the escape be caused by the act of God,
or vis major; e.g., by an extraordinary
rainfall, which could not reasonably
have been anticipated, although, if it
had been anticipated, the effect might
have been prevented.

6. On the defendant's land were orna-
mental pools containing large quantities
of water. These pools had been formed
by damming up with artificial banks a
natural stream which rose above the
defendant's land and flowed through it,
and which was allowed to escape from
the pools successively by weirs into its
original course. An extraordinary rain-
fall caused the stream and the water in
the pools to swell so that the artificial
banks were carried away by the pres-
sure, and the water in the pools, being
thus suddenly let loose, rushed down
the course of the stream and injured
the plaintiff's adjoining property. The
plaintiff having brought an action
against the defendant for damages, the
jury found that there was no negligence
in the maintenance or construction of
the pools, and that the flood was so
great that it could not reasonably have
been anticipated, though if it had been
anticipated the effect might have been
prevented:

Held, affirming the judgment of the
Court of Exchequer, that this was in
substance a finding that the escape of
the water was caused by the act of
God, or vis major, and that the defen-
dant was not liable for the damage.
Nichols v. Marsland. 335, 340 note.

WILL.

1. A testator devised his real estate to his
grandsons for life, with remainders to
their sons in tail successively, and upon
the death of the grandsons without issue
he devised the estate to his three
granddaughters in tail with benefit of
survivorship, and in case the grand-
daughters should die without issue,
leaving their father and mother, or
either of them, surviving, then he de-
vised the estate to the father and
mother, and the survivor of them, for

life, and after their death to T. M., J. A.,
and T. G. in fee. The grandsons sur-
vived the testator, but died without
issue. One of them also survived the
granddaughters, and one of the grånd.
daughters survived both her father and
mother:

Held, that the devise of the estate
for life to the father and mother of
the granddaughters was not a contin-
gent remainder, and that the ulterior
limitations took effect, notwithstanding
the death of both father and mother,
in the lifetime of the tenants in tail.
Leadbeater v. Cross.
191

2. In the case of a testamentary gift to
children describing them as consisting
of a specified number which is less than
the number in existence at the date of
the will, the court rejects the specified
number on the presumption of mistake,
and all the children in existence at the
date of the will are held entitled, unless
it can be inferred who are the particu-
lar children intended, in which case
the court holds those children entitled
to the exclusion of the others.

Testatrix, by will made in 1873, be-
queathed "to each of the three children
of Mrs. W., widow of W. W., one hun-
dred pounds." W. W., brother of the
testatrix, died in 1857, leaving a widow
and three children, of whom one died
in 1870, and two survived. Mrs. W.
married again in 1858, and had six
children by that marriage living at
the date of the will. The evidence
showed that the testatrix knew of the
second marriage, and that there were
children of that marriage, but that she
did not know their number; also that
she had not seen Mrs. W. for six years
before the date of her will:

Held, that the two children by W.
W. were alone entitled, and not the
children of the second marriage. New-
man v. Piercey.
651, 658 note.
3. A testatrix gave £100 to the execu-
tors or executrix" of C. C. left an ex-
ecutor and two executrixes, who all
predeceased the testatrix:

Held, a gift to C.'s legal personal
representatives as part of his estate.

4. A testatrix bequeathed her residuary
personal estate to four persons.

One

of the shares lapsed through the death
of the legatee in the testatrix's life-
time :

Held, that the costs of a suit for the
administration of the testatrix's estate

were payable out of the residue gen-
erally, and not primarily out of the
lapsed share.

5. Dictum of Malins, V.C., in Gowan v.
Broughton dissented from.

6. "Residue" of personal estate means
the personal estate which remains after
payment of the testator's debts, funeral
and testamentary expenses, and the
costs of the administration of his
estate, including the costs of an admin-
istration suit. Trethewy v. Helyar. 662

7.

8.

A testatrix bequeathed a fund to her
daughter for life, and after her death
"to and amongst my other children or
their issue in such parts, shares, and
proportions, manner and form, as my
said daughter shall by deed or will
appoint":

Held, that the daughter's power was
exclusive. Matter of Veale's Trust. 669

A testator, who was mortgagee in fee
of an estate to secure a sum of money
of which he was trustee, devised and
bequeathed his residuary real and per-
sonal estate unto and to the use of his
wife, her heirs, executors, administra-
tors and assigns, in trust, either to
leave the same in existing investments,
or sell and convert the same, and out
of the proceeds to pay his debts, fu-
neral and testamentary expenses, and
certain legacies, and invest the resi-
due and retain the income thereof for
her life; and subject as aforesaid, such
residue to remain in trust for C. There
was no express devise of trust or mort-
gaged estates:

Held, that the legal estate in the mort-
gaged property did not pass under the
will.

living at my decease or who shall have
died in my lifetime leaving issue living
at my death in equal shares." By a
codicil, after reciting that some of the
children of his late brother J. C. had
lately died without issue, the testator
revoked his previous devise, and de-
vised one of the houses to A., and the
remaining four in the same terms as
the original devise.

Four children of J. C. were living at
the testator's death, and one other child
died in the testator's lifetime leaving
children living at the testator's death:

Held, that the four children who sur-
vived the testator took the whole prop
erty.

12. Where there is a gift by a testator
to a class, the rule is that those mem-
bers of the class who are at his death
capable of taking, take the whole, the
gift being construed as showing an in-
tention on the part of the testator that
the class shall take so far as the law
allows. Matter of Coleman. 747

13. A testator gave a fund of £66,666
13s. 4d. consols to trustees, upon trust
to pay £1,000 a year to each of his
two daughters for their lives, and after
the death of each daughter he gave the
sum of £33,333 6s. 8d. consols, which
he described as the share of each daugh-
ter, unto and among all and every such
child or children she might happen to
leave at her decease, to be equally
divided between them when and as
they should respectively attain the age
of twenty-one years, and if but one
child, then to such only child; and in
case either of his daughters should die
without issue, he directed that the
£33,333 68. 8d. consols, being the share
of her so dying, should be transferred
by his trustee to such person or per-
sons, and in such manner as she by her
will and testament in writing duly
executed might direct and appoint.
There was a general residuary gift.

One of the daughters executed the
power and died, having had one child,
who died in her lifetime, leaving chil-
dren who survived their grandmother.

Held, that the words die without
issue" meant such issue as were pre-
viously mentioned, and that the power
was validly exercised. Davies V.
Merceron.

759

for life, and after his death the capital
to be divided amongst the children of
testator's late daughter B., or their de-
scendants, but should there be none of
them surviving, then the capital to be
equally divided amongst such other
grandchildren as he might then have
living, or in default thereof to his legal
representative. B. had seven children,
three of whom died without children in
the lifetime of the testator; of the re-
maining four one alone survived, A.,
the tenant for life; three died before
A., and only one of these three left
issue :

Held, that the words "should there
be none of them surviving" referred
to the testator's death, and that the
children of B. who survived the tes-
tator took vested interests. Matter of
Dawes Trust.

775

15. Testator gave his property to trustees
on trust during the life of his son to
pay, apply, and dispose of the annual
produce of a certain portion of it for
the maintenance and support of his son
and his present or any future wife, and
the maintenance, education, and sup-
port of their children, or any or either
of them his son and his wife and chil-
dren, in such manner and such pro-
portions as the trustees should in their
discretion think fit and proper, with-
out being answerable or accountable
to any person for the way in which
they should apply the same; and, after
the decease of his son, to pay and ap-
ply the annual proceeds in like man-
ner unto and for the benefit of any
widow for life, and any children until
they should attain twenty-one or mar-
ry, and subject to those trusts in trust
for the children. The son died in 1849,
leaving a wife and six children, the
youngest of whom attained twenty-one
in 1870. In 1851 the widow married
again. The settlement made on the
marriage did not comprise the above
annual proceeds, and the trustees con-
tinued to pay them to the wife as part
of her separate estate and on her sepa-
rate receipt. The second husband, who
was living apart from his wife, claimed
to be entitled to the income during her

life:

Held, that the trustees had a discre-
tion to pay the wife the income for her
separate use. Austin v. Austin. 780

16. E. by his will, dated in 1814, devised
real estate to R., the second son of Sir