VENDOR AND VENDEE. Action on a promissory note. For the defence, an agreement of the same date as the note was produced, by which the plaintiffs, in consideration of 2007. to be then paid or secured by the defendant, and of a further sum to be paid at a future day, promised to convey a certain estate to the defendant. It was alleged that the note was given for the 2001. abovementioned, and that the plaintiff had refused to convey. Held that the defendant having expressly bound himself to pay the 2007. on a day certain, the conveyance and payment could not be regarded as concurrent acts, and the plaintiff recovered. Park J. concurred in the judgment on the ground that the plaintiff had not refused to convey, and seemed to think that a refusal would have constituted a sufficient defence. Spiller v. Westlake, 2 B. & Adol.

155.

WARRANTY.

Held that the following warranty: 'Received of B. 101. for a grey four year old colt, warranted sound in every respect,' was confined to the soundness, and did not extend to the age. (1 Bing. 344.)—Bubb v. Favincauer, 8 Bing. 48.

WATERCOURSE.

Running water passes by a sale of the land through which it runs, and the vendee having used the water, though for less than twenty years, gains a title to it by appropriation, and may maintain an action for the obstruction of it. (Williams v. Morland, 2 B. & C. 910; Bealey v. Shaw, 6 East, 298.)- Canham v. Fish, 2 C. & J. 126.

WITNESS.

(Interested.) Declarations in ejectment for the same premises were served on two tenants in possession. Their common landlord entered into a rule to defend. Held, that the one was not admissible to prove the adverse possession of the other, as the judgment would be evidence against both in an action for mesne profits. (6 Cowp. 621; 6 Bing. 394.)-Doe dem. Lewis v. Preece, 1 Tyr. 412; 1 C. & J. 515.

The statute 54 Geo. 3. c. 170. s. 9. does not render a person who pays highway rates within a parish a competent witness in support of a custom for all persons residing therein and liable to repair the highways, &c. to take shingle and stone from the sea-beach for that purpose. (Meredith v. Gilpin; 6 Price 146, on which some doubt was thrown.) Oxenden v. Palmer, 2 B. & Adol. 236.

EQUITY.

2 Dow & Clark, Part 3.

BILLS OF EXCHANGE. M. died indebted in 100,000l. leaving property available to his creditors amounting to only 50,000l. His widow entered into an engagement and bound herself to pay the whole of her deceased husband's debts. Held, that English creditors were entitled to interest on bills of exchange not paid when due; such debts carrying interest by the law of England, and the widow having, by her undertaking, placed herself with respect to the creditors, in the same situation as her husband would have been in if living. (Cameron v. Smith, 2 Barn. & Ald. 305.) Montgomery v. Bridge, D. & C. 297. ELECTION.

F. D., possessed of a freehold estate in England, and heritable and moveable property in Scotland, and domiciled there, died, having executed a deed of trust and settlement of his whole property in favor of trustees, upon trust to convert into money, and divide the produce equally among his four children. The deed was in the Scottish form, attested by two witnesses, and therefore inoperative as to the English estate. W. D., the eldest son, claimed the English estate as heir at law, and a fourth share of the Scotch property under the disposition. Held, that W. D. was put to his approbate or reprobate (election), and must either abide by the English estate, or let it be sold and take his fourth of the whole property of his father. The disposition was to be construed by the law of Scotland; and the courts there, although without authority over W. D. as heir to the English estates, might still refuse to allow him any benefit in the disposition, as legatee, unless he complied with the intent of the maker of the instrument as expressed in it. (Herle v. Greenbank, 1 Ves. 298; Brodie v. Barry, 2 V. & B. 127; Carey v. Askew, 2 Bro. C. C. 58; Ker v. Wauchope, 1 Bligh; Trotter v. Trotter, D. P. Dec. 5th, 1826.) Dundas v. Dundas, D. & C. 249.

WILL.

A testator bequeathed the residue of his personal estate to trustees, ' in trust for his five sons and their respective issue (if any), such issue to take per stirpes and not per capita, to be divided among them in equal shares and proportions, the shares of such of them as should have attained the age of 21 years to be paid to them respectively forthwith after his decease, and the shares

of such of them as should be under the age of 21 years, to be paid to them when and as they should respectively attain such age of 21 years.' Held, that this was an absolute gift of the property to the testator's sons living at his decease; but if any of the sons was at that time dead, then to go to the issue of that son, such issue to take as the stirpes would have taken, and not on a division per capita. (Butter v. Ommaney, 4 Russ. 70. ; Christopherson v. Naylor, 1 Mer. 320; Crook v. De Vandes, 9 Ves. 197.) Pearson, App., Stephen, Resp. D. & C. 328.

LEGISLATION.

VERMONT.

At the October session of the legislature of Vermont, in 1831, thirty-eight public acts, five resolutions, and seventy private acts, were passed.

Among the public acts we notice the following.

Ch. 5.-Set-offs. The statutes of limitations are not to apply to any claim, 'in off-set, which existed at the time, or subsequently to the making of the contract or contracts, in off-set to which said claims are pleaded.'

Ch. 7.-Partition of real estate. Where a married woman, in this or any other State or country, whose husband is under guardianship, is possessed in her right of any real estate in this State in common, she may join with the guardian of her husband in making partition thereof with the other tenants in common. Such married woman and guardian are authorized to execute and receive the deed, &c. necessary in making such partition.

Ch. 19.-Estates of deceased persons. Probate courts may, on the application of the widow and heirs, authorize the executors or administrators to sell the real estate of any person,. who shall have died seized of any real estate, in this State, for the purpose of paying the debts and legacies, in preference to selling the personal estate, if it shall appear to the court that the creditors will not be injured thereby. But this power is not to be so exercised as to defeat any devise of real estate, within this State, without the assent of the devisee.

Ch.20.-Banks. Every banking corporation hereafter created or rechartered is required, in every year, to pay to the treasurer of this State a sum equal to three fourths of one per cent. on its capital stock paid in, ' after excepting therefrom such part of said capital stock as is or may be held by this State, and at that rate for the time such corporation shall have been in operation, if less than one year,' until four and one half of one per cent. upon the capital stock shall have been paid into the treasury. The fund

thus created is to be called the bank fund, and to be 'inviolably appropriated' to the payment of such portion of the debts, exclusive of the capital stock of any such corporation which shall become insolvent, as shall remain unpaid after applying the property of such insolvent corporation.' The fund is to be invested in the same manner as the school fund, and the income, after deducting thereout the salaries of the bank commissioners, is to be paid annually to the several corporations by which the fund shall be created, in proportion to the amount of their contributions; but no corporation shall be entitled to such portion of the income after it shall become insolvent or shall be dissolved, or after its charter shall expire. Whenever the fund shall be reduced below the amount of four and one half per cent. abovementioned, the annual payments by such corporations are to be resumed. Whenever the charter of any such corporation shall expire, it shall be entitled to its proportionate share of the bank fund. Three bank commissioners are to be elected, whose duty, or the duty of one whom it shall be, at least once a year to visit every such corporation and to ascertain their actual condition; and if it appear that any such corporation is insolvent or has violated the provisions of any act binding upon it, the chancellor shall, if no sufficient cause be shown to the contrary upon a hearing, issue an injunction against it, and may thereupon appoint receivers to close its concerns. Of the three bank commissioners, one is to be elected by the joint ballot of both houses of the legislature, and the other two by the respective corporations subject to this act; but no stockholder of any bank shall be elected a commissioner. If any one such corporation shall issue, at any time, an amount of notes and bills exceeding three times its capital stock, then paid in, or shall not comply with the provisions of this act, in respect to the annual payments, for the space of three months, or shall have lost one half of its capital stock paid in, or shall have suspended the payment of its bills in specie for sixty days, or which shall refuse to allow its officers to be examined on oath by the commissioners in relation to its condition, it shall be proceeded against as insolvent. If any agent of such corporation make any false statements, &c. to deceive the commissioners, he shall be subject to imprisonment in the State Prison, for not less than two nor more than ten years. Every such corporation shall, before it makes any loans or discounts, have fifty per cent. of its capital stock paid in; and every monied corporation, whose charter shall be extended, shall within one year pay in all its capital. If any banking company hereafter incorporated or rechartered shall, by its act of incorporation, make

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