defendant.) Where the defendant, in working his coal mine, broke through the barrier, and worked the coal under the land adjoining, belonging to the plaintiff, and raised it for purposes of sale: Held, in trespass for such working, that the proper estimate of damages was the value of the coal so raised, without deducting the expenses of getting it. Martin v. Porter, 5 M. & W. 352.

2. (Measure of, in action for non-acceptance of goods.) Where A contracted for the purchase of wheat, "to be delivered at Birmingham as soon as vessels could be obtained for the carriage thereof;" and subsequently (the market having fallen) gave the seller notice that he would not accept it if it were delivered, the wheat being then on its transit to Birmingham; Held, in an action against A for not accepting the wheat, that the proper measure of damages was the difference between the contract price and the market price on the day when the wheat was tendered to him for acceptance at Birmingham and refused; and not on the day when the notice was received by the seller. (2 Moore, 388.) Phillpotts v. Evans, 5 M. & W. 475. DEVISE. (Vesting of remainders.) A testator, having three

different estates, left one to G. A. for life, remainder to the first son of G. A. for life, and then to the issue of such first son in strict settlement; remainder in like manner to the second and other sons of G. A., and their issue; the second estate to G. A. for life, and to his child or children other than and except an eldest or only son, in fee; the third, to E. L. for life, and her children in strict settlement. At the time of the testator's death, the plaintiff was the second son of G. A.; at the death of G. A. he was the only child, the first son having died in the interval: Held, that the plaintiff was entitled, on the death of G. A., to take the second estate in fee. (1 Ves. sen. 294; 4 Bing. N. C. 478.) Adams v. Bush, 6 Bing. N. C. 164.

ESTOPPEL. The plaintiff, the owner of the goodwill and fixtures of a public house, permitted A to represent himself as such to the landlord, who thereupon let the house to A, and A sold the lease and fixtures to the defendant, who was informed

by the landlord that A was his tenant: Held, that the plaintiff was estopped by his own representation from recovering the fixtures from the defendant, who had purchased them bona fide. (6 Ad. & E. 469.) Gregg v. Wells, 2 P. & D. 296. 2. S. being possessed of chambers in Lincoln's Inn, to which he had been admitted by the benchers, who were the owners of the fee-simple, by a deed, reciting that he was seised of them for life, conveyed them to plaintiff to hold during the life of S. S. continued in possession, and afterwards surrendered the chambers to defendant, who was admitted by the benchers: Held, that defendant was not estopped to deny that S. was seised for life. Doe d. Marchant v. Errington, 6 Bing. N. C. 79. EVIDENCE. (In action by assignees of bankrupt.) Plaintiff, at the recommendation of B., sent goods to a dyer, who was told by plaintiff's son that B. would give directions about them: B. called and gave directions; and afterwards became bankrupt; in trover for these goods, brought by the plaintiff against B.'s assignees, held, that the directions given by B. were admissible in evidence for the assignees. (4 M. & W. 267. Sharp v. Newsholme, 5 Bing. N. C. 713; 8 Scott, 21.

2. (Admission.) In covenant on an indenture of lease, which purported to be granted by J. S., in exercise of a power given by the will of P. S. : Held, that the defendant, by holding under the lease, and executing a counterpart, admitted the due execution of the will of P. S. Bringloe v. Goodson, 5 Bing. N. - C. 738; 8 Scott, 71. 3. (Secondary evidence-Account stated.) On a settlement of accounts between a plaintiff and defendant, both parties being present, the plaintiff's clerk made entries of the items in a book, which were copied by the defendant into another book. The defendant did not, by any act, acknowledge the plaintiff's book to be a correct statement of the items of the account, though he admitted the balance against him, as stated by the clerk, to be correct, saying at the same time, that when he had done certain things for the plaintiff, there would not be much, if any thing, between them: Held, that the plaintiff's book was not

primary evidence for the plaintiff, so as to require its production, or its non-production to be accounted for; and that the defendant's acknowledgment was evidence to support a count on an account stated. Rigby v. Jeffrys, 7 D. P. C. 561. EXECUTOR AND ADMINISTRATOR. (What contracts of testator binding on.) A contract to supply A with from 500 to 100 tons of blocks of slates of certain dimensions, monthly, and any further quantity that he might require, not exceeding 200 tons per month; the contract to be in force till 1st of January, 1838, unless previously cancelled by mutual consent: Held to be a contract binding on A's administrator, he having died before that day. Wentworth v. Cock, 2 P. & D. 251. FALSE PRETENCES. (Indictment.) An indictment on the 7 & 8 Geo. 4, c. 29, s. 53, stated that the defendant, contriving, &c. to cheat A B of his moneys, falsely pretended to A B that he was a captain in the East India Company's service, and that a certain promissory note, which he then delivered to A B, was a valuable security for 217.; by means of which false pretences he fraudulently obtained from A B the sum of 81. 15s; whereas the prisoner was not a captain, &c., and the note was not a valuable security, &c.: Held, that as it did not appear but that the note was the prisoner's own promissory note, or that he knew it to be worthless, there was no sufficient false pretence in this respect and as the two pretences must be taken together, that the indictment was bad on error. (6 T. R. 565.) Wickham v. The Queen, 2 P. & D. 333.

FRAUDS, STATUTE OF. (Acceptance of goods.) The plaintiff sold the defendant a mare for 201., on condition that if she should prove with foal, the defendant should re-deliver her on payment by the plaintiff of 127. The defendant accepted the mare; but on her proving with foal refused to re-deliver her for 127. In an action for not so re-delivering her, held, that the transaction did not amount to two contracts, one of sale and the other of re-sale, but was one conditional contract, as the same thing was to be re-delivered which had been accepted by the defendant and that such acceptance was sufficient to take

:

the case out of the statute of frauds.

P. & D. 422.

Williams v. Burgess, 2

2. (Promise to answer for debt of another.) The defendant, an attorney, requested the plaintiff to execute a bail-bond to the sheriff for a client of the defendant, and promised to indemnify him: Held, that this was a promise to answer for the debt or default of another, within the 4th section of the statute. (Questioning Thomas v. Cook, 8 B. & Cr. 728. 1 Saund. 211, c.) Green v. Cresswell, 2 P. & D. 430.

3. (Waiver of written contract by parol.) In a written contract within the 17th section of the statute of frauds, to deliver on a certain day goods of a fluctuating value, to be paid for by bill at three months from delivery, the time of delivery is of the essence of the contract, and any agreement to substitute another day must be in writing. (5 B. & Adol. 58. Overruling Cuff v. Penn, 1 M. & Selw. 21.) Stead v. Dawber, 2 P. & D. 447. 4. (What sufficient note in writing under s. 17.) A buyer of goods requested D., the agent of the seller, to write a note of the contract in the buyer's book. D. did so, and signed the note with his own name: Held, that such note was not a sufficient memorandum under the statute of frauds, to bind the buyer. (1 N. R. 252; 3 Taunt. 169; 4 East, 577, n.) Graham v. Musson, 5 Bing. N. C. 603. 5. (Representation as to credit of another.) A representation made by the defendant as to the credit of a firm in which he was partner, held to be a representation as to the credit of another person within the meaning of the 9 Geo. 4, c. 14, s. 6. Devaux v. Steinkeller, 6 Bing. N. C. 84.

FRAUDULENT REPRESENTATION. A contract for the sale of fixtures and fittings of a public house was held to be avoided by a false representation as to the amount of business attached to the house, although the agreement expressly excluded good will. Hutchinson v. Morley, 7 Scott, 341. FREIGHT. (Liability of consignee for.) Goods were shipped at Bombay on board a ship of the plaintiff, a shipowner in Liverpool, and by the bill of lading were to be delivered "unto

order, or to his and their assigns, on paying freight for the same." The bill of lading was indorsed by the shipper, and forwarded to the defendants, East India agents in London, who indorsed it in blank to C. and Co., their factors in Liverpool. On the arrival of the goods at Liverpool, C. and Co. presented the bill of lading to the plaintiff, and received the goods: the plaintiff debited C. and Co. with the freight. C. and Co. became bankrupt without having paid the freight, whereupon the defendants claimed from them and took possession of the goods: Held, that the defendants were not liable to the plaintiff for the unpaid freight. (5 B. & Ad. 521.) Tobin v. Crawford, 5 M. & W.

235.

2. (Liability of consignee for.) The consignee of goods, where there is no bill of lading, is not in general liable for the freight; but prior dealings with him, and payments by him of the freight on former occasions of the same kind, are evidence to show that in the particular case he contracted, on the receipt of the goods, to pay the freight. (1 M. & Sel. 157.) Coleman v. Lambert, 5 M. W. 502 GUARANTEE. (Continuance of.) The defendant gave the following guarantee:-"Messrs. M. & D.-My son, G. D., is desirous of commencing business in your way, and wants the usual credit of four months. If you supply him, I will be answerable for the amount of 1007. :" Held, that this guarantee was not binding on the defendant after a change in the firm of M. & D. (1 C. & M. 48.) Dry v. Davy, 2 P. & D. 249. 2. (Consideration.) The plaintiff having pressed W. for payment of a debt, the defendants, W.'s attorney, sent the plaintiff an acceptance of W., inclosed in a letter, in which the defendant wrote "W., being disappointed in receiving remittances, and you expressing yourself inconvenienced for money, I send you his acceptance at two months; you may safely pay it away." The plaintiff refusing to take the bill unless the defendant put his name to it, the defendant wrote on the back of the letter, "I will see the bill paid for W.:" Held, that the consideration for this guarantee sufficiently appeared, and that the defendant was