the donor. If A., on his deathbed, desire B. to call at a certain place, and fetch away a watch, adding, "that he will then make her a present of it;" but no possession is resumed by A. and no delivery made to B. Quære, if this would be good as a donatio mortis causa. Spratley v. Sir H. Wilson, Knt. Page 10 2. To make a gift valid as a donatio mortis causâ, actual delivery of possession is necessary, and a symbolical delivery is not sufficient; therefore, where A., considering himself dying, takes certain property out of an iron chest, and writes the names of the plaintiffs upon an envelope containing it, declaring it to be his intention that they should have such property upon his death; and, after having superscribed the envelope with their names, returns it to the chest, and keeps the keys in his own possession, never making any actual delivery thereof to the plaintiff's themselves, or to trustees for them: Held, that such a gift, or designation of the property, was not good and effectual as a donatio mortis causâ. Bunn v. Markham. 352

DOCK WARRANT.

A. having some coffees in the West India Docks, employs a broker to sell them; the broker informs him that he has found a purchaser, and requires to be put in posses sion of the dock warrants. A. delivers them to the broker, indorsed in blank, upon receiving his (the broker's) check for the price of the coffee. The broker then sells the coffee to the plaintiffs, and receives immediate payment upon handing over the dock warrants. The broker's check, given to A., is dishonoured, and

ment he knows to have his genuine subscription, he has a right to recur to it for the purpose of refreshing his memory: a basis being first laid in his having once seen the defendant sign his name, though he had forgotten the character of his hand-writing. Burr v. Harper. Page 120 2. Upon a subpæna duces tecum, a witness is bound to produce a paper which he has in his actual custody, though the legal right and property in such paper belong to another. The Court, however, in all such cases will exercise their discretion, in deciding what papers shall be produced; and under what qualifications, as respects the interest of the witness. Such witness is bound to produce them, though there be a regular way prescribed by law for obtaining such documents. Corsen v. Dubois.

239

3. A book in which leases were enrolled, and which was kept in the office of the auditor of the Bishop of Durham, (such officer holding a patent office in the county palatine) held to be admissible evidence to sustain the claims of a lessee of the Bishop of Durham, the original and counterpart of the lease being lost. Humble v. Hunt. 601

4. In a trial for murder, the deposition of the deceased should be taken in the presence of the prisoner; but if such deposition be taken in the absence of the pri soner, and be afterwards read over to the deceased, in the presence of the prisoner; and the deceased cassents to the truth of it, this will make the deposition evidence against the prisoner. Rex v. Smith.

614

F.

FACTOR,

See PRINCIPAL AND AGENT. EVIDENCE.

FRAUDS, STATUTE OF.

1. A., an agent for some manufacturers, sells to B., who likewise acted as an agent, a quantity of shoes, and receives certain bills of exchange in payment. B. being pressed to indorse them, refuses; but writes a letter to A., in which he incloses the bills; and adds, "that should they not be honoured when due, he (B.) would see them paid.”—Held, that this was a sufficient agreement within the fourth section of the statute of frauds, to bind B. to pay for the goods, in default of his principal. Morris v. Stacey. Page 153

2. The delivery of a sample, which is no part of the thing sold, will not take a sale out of the statute of frauds; but if the sample be delivered as part of the bulk, it then binds the contract. Talver v. West. 178

FRAUDULENT ASSIGNMENT, See BANKRUPT, 11.

FREIGHT,

See INSURANCE.

1. A general ship took some silk on board to carry from Rotterdam to London on defendant's account. On the margin of the bill of lading was written, "the consignee

to clear the goods in fourteen running days after her arrival in port, or to pay 4l. per diem, for demurrage." The vessel was ready to deliver on the 3d of October. Defendant applied for, and was ready to receive his goods within the running days; but, being undermost in the vessel, delivery could not be made till the 22d.-Held, that the plaintiff was entitled to recover demurrage, though he did not deliver the goods within the time allowed, being prevented by other goods, belonging to other consignees, which overlaid them. Harman v. Gaudolphi. Page 35 2. Goods shipped from abroad, and consigned to a merchant in this country, are to be paid for (upon a demand for freight) according to their net weight, as ascertained a the King's landing scales, and not according to the weights expressed in the bill of lading, unless there be a special contract so to pay for them.

If the consignee, to get his goods delivered to him, pay more than the net weight amounts to, he may recover back the surplus in an action for money had and received. Geraldes v. Donison. 346 3. A. undertakes to smuggle certain goods, belonging to B., into Russia. A regular bill of lading is made out of the goods, in which the freight charged is the usual freight according to the bulk of the goods. But a second contract is made between the parties, by which B. undertakes to pay A. a large sum of money, if the goods should be safely landed in the foreign port. The goods are landed; B. pays the freight under the bill of lading, and likewise part of the money under the agreement, but refuses to pay the

1. Though the right of the soil in a public highway belongs to the owner of the adjoining closes (when no other proprietor appears) usque ad filum viæ; this is only a presumption of law in his favour, when the original dedication of the road cannot be shewn by positive evidence. And if there are circumstances in the case which bring this presumption of property in question, the plaintiff, who claims such road in an action of trespass, must give some other evidence of property beyond the mere presumption of law. Headlam v. Headley.

463

2. A right of way for agricultural purposes is a limited and qualified right of way, and does not, necessarily, confer a right to use such way for general and universal purposes. Therefore, where A. claimed and proved a right to carry corn and manure over the locus in quo,-Held, that he had not, therefore, a general and unlimited right to carry lime, or the produce of a quarry, over the locus in quo at all times, and for all purposes. Jackson v. Stacey. 455

1. A policy of insurance (against fire,) is effected on the stock and utensils of a sugar-house, the different stories of which were heated by a chimney running up to the top. By the negligence of the plaintiff's servants in omitting to open the register, the heat is considerably increased, by means of which large quantities of the sugar are spoiled; but no damage was occasioned to any thing but the sugar, and no greater fire existed than on ordinary occasions. Held. that this was not a loss within the policy. Austin v. Drew. 126

2. Where, in a policy of insurance on goods, the vessel is wrecked, part of the goods are lost and part got on shore; but, (whilst on shore,) are destroyed and plundered by the inhabitants of the

coast, so that no portion of them comes again into the possession of the assured. Held, that this is a loss by perils of the sea, and no abandonment was necessary. Bondrett v. Hentigg. Page 149

3. A vessel may deviate somewhat from the straight line of her track to seek for convoy; and the captain, unless expressly prohibited by the terms of the policy, may always do, when insured, whatever it would be expedient for the common security to do if uninsured.

Ships sailing from foreign ports are not within the convoy act, unless there are persons at those ports authorised to grant convoy or licences. And it is not sufficient to shew that convoys have been actually appointed from those ports, but proof must be given that there are persons stationed there legally authorised by the Admiralty to appoint them. D'Aguilar v. Tobin.

185 4. If a ship, by bad weather, be compelled to put back to her loading port, and, upon examination of her cargo, it is found not to be in a fit state to send forward to its original destination, and altogether unsuited to the market from sea damage, the insured is entitled to abandon. Afterwards held by the court, that he was entitled to a reasonable time for examining the state of the cargo before he made his election to abandon. Gernon v. Royal Exchange Assur

of an alien enemy. An insurance, therefore, on such vessel is void. Gregg v. Scott. Page 129 6. A vessel with liberty to chase and capture prizes, has some Spanish prisoners on board. By means, which did not appear, they break loose, rise upon, and imprison the crew, with the exception of one sailor, who is heard upon deck in conversation with them. The captain and crew, with the exception of this sailor, are put on shore ; and the Spaniards run away with the ship. Upon a loss, alleged to be by barratry of the mariners, this is evidence to be left to the jury that such barratry was committed. Where a vessel, engaged in the Southern whale and seal fishery, and with liberty to chase and capture prizes, is insured in August, 1807, with a retrospect to the 1st of August 1806, although, at the time of her insurance, she was not competent to pursue all the purposes of her voyage, her crew being reduced by death and casualties; if she had a competent force to pursue any part of her adventure, and could be safely navigated home, she is to be deemed sea-worthy. Hucks v. Thornton.

192

Therefore, the importation of cotton from Amelia island, in a Portuguese vessel, owned by a British subject, the captain and crew of which are Portuguese, is contrary to the navigation act. The 55th Geo. III. c. 8. is not an exposition of the 42d. Pearce v. Cowie. P. 69 9. A general ship is freighted by several merchants, and sails upon her voyage; she parts with her convoy in a gale of wind, and is afterwards attacked by an American privateer, which she engages and beats off, with the loss of one man killed and four wounded; her hull and rigging are likewise damaged in the conflict; but she reaches her port, and delivers her cargo safely. Held, that the repairs of the ship, and the expences of curing the wounded sailors, are not, under such circumstances, a subject of general average. Taylor v. Curtis. 10. A., a merchant, employs B. to effect some policies of insurance; B., unknown to A., employs C., who applies to the defendants, who are insurance brokers. C. gives the defendants no reason to suppose that he was not acting as a principal, and they effect the policies in their own names, as agents. At the time of this transaction, C. was indebted to the defendants on a balance of accounts. In an action brought by A. to recover the policies, on tendering the premium and expences, Held, that the defendants had a lien upon them until C.'s debt was, satisfied. Westwood v. Bell. 122 11. A vessel is driven into a port, where there is no dock to receive her; it appeared that she had suffered so much by sea perils, that, upon examination and survey, it was judged expedient to break her up, and to sell her for old timber.