never be set up, to affect or vary an express agreement, nor to contradict a rule of law. Rankin & Rankin v. The Am. Ins. Co., 1 Hall, 619.

5. Therefore in an action upon a policy of insurance, where the claim was for damage sustained by the perils of the sea, and on the arrival of the goods at New York they were landed, before the wardens of the port had held a suvey upon them, the defendants were not allowed to prove, either as an objection to the preliminary proofs, or in bar of the action, that by the usage of trade in the port of New York, the master of the vessel is responsible for damages sustained by goods, delivered by him to the owner, or consignee, unless there has been an actual survey, on board the vessel, by the port wardens, by which it shall have been found, that the goods were properly stowed, and were damaged on the voyage by the perils of the sea; and that, by a similar usage, as between assurers and assured, the survey so made, is a document indispensable to be produced, in order to charge the underwriters, and that the preliminary proof is deemed insufficient, unless such a document is exhibited as a part of it.' 1b.

USE AND OCCUPATION.

1. To maintain the action for use and occupation, it is not necessary for the plaintiff to prove an express contract with the tenant, when he first takes possession, nor an express reservation of a certain rent, nor that the tenant has paid rent. It may be maintained on an implied undertaking where the permissive holding is established; and if it appears that a certain rent was reserved, the reservation may be used to regulate the damages. Stockett v. Watkins, 2 Gill & Johnson, 326.

2. If one enters as a trespasser, the action for use and occupation cannot be maintained. lb.

WAIVER. See MORTGAGE.

WILLS AND TESTAMENTS.

1. A testator, after reciting in his will (which was executed in Germany) his intention to depart in a few days for America, 'for the purpose of seeking his fortune,' devised as follows: 'He declares his deliberate will to be, that in case he should die unmarried in a foreign country, the small Opeman cottage, situate at D., should be retained as heritable property, by his near relation G., the eldest daughter of I., farmer, at D., whom he hereby constitutes his sole heiress. She and her father, however, shall be held to pay to the three daughters of W. and D.,' a certain sum, as a legacy. To his guardian C., he de

vises the turf moor at, &c.' After this the testator came to Baltimore, where he died unmarried, and without issue, leaving personal property. Held, that upon the true construction of this will, G. was entitled to the whole of the testator's personal estate; as it was his intention by the words' sole heiress,' to give her every thing he had, except the property specifically devised, in the event of his dying unmarried in a foreign country. Seimers' v. Seimer & Wife, 2 Gill & Johnson, 100.

2. A devise to A, and the heirs of his body, lawfully begotten,' since the act of 1786, constitutes an estate in fee simple. A remainder, limited to take effect upon the determination of such an estate, is inoperative. Wells v. Beall, 2 Gill & Johnson, 458. 3. A testator by his will, dated April, 1798, devised as follows: 'I give and bequeath to my wife Sarah, all my estate, real and personal, during her life: the house and lot No. 37, situate in Mulberry street, to my heirs, Maria and Eliza, in fee simple forever: if one of them should die, the property to descend on the other: in case both should die, the property to descend to my wife;' 'only she is to pay my brother, A. G. "one shilling if demanded."

The testator died in 1798. Maria died in her childhood, Eliza attained the age of 21 years, married, but died in the life time of her mother, without leaving, or even having had any, issue, and without making any distribution of her property. The widow, shortly after the testator's death, married and had issue, five children, who were her heirs at law; and continued in possession of the premises until her death in 1827. After her death, A. G., the brother of the testator and his heir at law, brought an action of ejectment, for the recovery of the house and lot, described in the will. Held, that he was not entitled

to recover.

That the words, ' if one of them should die,' and 'in case both should die,' should be taken to mean a dying without lawful issue; that the court were at liberty to supply the words, in order to carry the testator's intention into effect; and that upon the death of the daughter, without issue, the whole estate in the house and lot became vested in the mother. Jackson ex dem. Gatfield v. Strong, 1 Hall, 1.

WITNESS.

1. A witness cannot be asked, it seems, whether from his personal knowledge of an impeached witness he would believe him under oath. The true rule is to inquire of the impeaching witness his means of knowing the general character of the witness impeach

ed, and whether from such knowledge he would believe him, under oath. Fulton Bank v. Benedict, 1 Hall, 480. 2. If a witness' character is declared by an impeaching witness, to be bad from some particular cause, an inquiry may be made, it seems, into the origin of that opinion for the purpose of enabling the jury to estimate it properly. Ib.

3. A stevedore, employed by the master, to stow the cargo, is a competent witness to prove that it was properly stowed. Rankin & Rankin v. The American Ins. Co., 1 Hall, 619.

WRIT OF RIGHT.

1. The count in writ of right demands a certain tenement consisting of the one stone house with the appurtenances, &c.: Held, this is a demand of the land on which the house stands, and is certain enough. Snapp v. Spengler, 2 Leigh, 1.

2. To count in writ of right by husband and wife in right of wife, tenant files a plea in blank throughout, and tenders the mise to the demandant in the singular; replication filed by both demandants join the mise as for male demandant only: assize is charged to inquire whether the demandants have a right as they demand: Held, after verdict for demandants, the blanks, informalities and bad grammar of plea and replication, immaterial. lb.

RECENT ENGLISH CASES.

COMMON LAW.

Cases from 2 Barnewall & Adolphus, Part 1; 1 Tyrwhitt, Part 3; 1 Crompton & Jervis, Part 4; 2 Crompton & Jervis, Part 1; 8 Bingham; 4 Bligh ; and 2 Dow & Clark.

AGENT. (Commission.)

The plaintiff agreed to pay his agent a commission on all goods sold, or orders executed through the London markets, the plaintiff to be responsible for all bad debts contracted in his name. Held, that, though contrary to the custom of the trade, the agent was entitled to a commission on bad debts. Bower v. Jones, 8 Bing. 65.

The plaintiff, a salesman, remitted to the defendant the price of some hay sold for him before the money was paid by the purchaser. The servant whom the defendant sent with the hay, was defrauded of it on the way, and the purchaser refused to pay the price. Held, that the defendant was liable to refund. Gyngell v. Glascock, 8 Bing. 86.

AMENDMENT OF WRIT.

A subpœna ad resp. had been tested in the name of Sir W. Alexander instead of Lord Lyndhurst. Held amendable. Wakeling v. Watson, 1 Tyr. 377; 1 C. & J. 467.

AWARD.

(Uncertainty.) The cause and all matters in difference were referred to a surveyor, who awarded that the defendant had overpaid the plaintiff 341. The court refused an attachment on the ground of uncertainty. (2 B. & A. 537; 7 East, 81.) Thornton v. Hornby, 8 Bing. 13.

(Where an answer to an action.) Arbitrament without performance is no answer to an action for a debt, where the amount only of the debt is referred, and the award only ascertains the amount and directs it to be paid in money. (Bac. Abr. Accord (A.), Gascoyne v. Edwards, 1 S. & J. 19. Freeman v. Bernard, Salk. 69. Crofts v. Harris, Carth. 187.) Allen v. Milner, 2 C. & J. 47.

BILL OF EXCHANGE.

(Partners.) The bill was addressed to the firm of A. & Co., but

accepted in the name of A. & R. The firm was in fact composed of A. R. & S., but the name and style they had agreed to use were A. & R. No fraud was found, and a valid consideration had been given for the bill. Held, that the three (A R. & S.) were bound by the acceptance. Lloyd v. Ashby, 2 B. & Adol. 23.

CASE, FOR MALICIOUS PROSECUTION.

Case for maliciously and without probable cause indicting the plaintiff for sending a threatening letter with intent to extort money. It appeared that Messrs. B. had applied to the defendants to know if a proposed customer was what he described himself. The defendants replied that they believed him to be SO. Messrs. B. trusted him accordingly, but it afterwards turned out that the representation was false; upon which the plaintiff (an attorney) was employed by Messrs. B. to write at letter, demanding payment of the debt incurred by the impostor under a threat of immediate proceedings against them. The plaintiff, subsequently, by direction of Messrs. B., applied to the Lord Mayor for a warrant against the defendants for aiding in obtaining goods under false pretences, which charge was dismissed. The defendants subsequently indicted the plaintiff for writing the letter, with intent, &c.; he was tried and acquitted, and then brought the present action. Held, that it involved no question of fact for the jury; that probable cause was wholly a question of law; and that the judge who tried the cause (Lord Tenterden, C. J.) acted rightly in nonsuiting the plaintiff, on the ground that, as there was no plausible pretext for demanding money from the defendants, they had probable cause for the indictment against the plaintiff. (2 B. & C. 693; 4 B. & C. 21.) Blackford v. Dod, 2 B. & Adol. 179. COACH PROPRIETOR.

(Case for negligence.) The evidence was, that owing to the bad construction of the coach, and the mode in which the luggage was placed, the plaintiff was thrown off by a sudden jolt. The judge directed the jury to find for the plaintiff, if they thought the defendant chargeable with negligence, and the court held the direction to be right.

The accident occurred in the county of O. Before the plaintiff was perfectly cured she removed to the county of W. where additional medical assistance became necessary. this was material evidence in the county of W. meaning of the undertaking given to retain the venue. v. Drinkwater, 2 B. & Adol. 169.

Held, that within the

Curtis