T. P. to have, use, and enjoy the estate acquired by the testator in same during his life, and after his exchange passed to the devisees as decease, then “in trust for the per- part of the purchased estates desons who should succeed to or inherit scribed in the will. Doe d. Meyhis the testator's real estates by vir- rick v. Meyrick, T. 1833. 916 tue of that his will."

The words of a will were these : “I T. P. tenant for life died without

give all my personal, leasehold, issue, and without having executed mortgages and freehold estates, the power given by the will, to goods, ready money, chattels, adopt a male relation of the testa- wheresoever and whatsoever, to tor. The next or nearest relations, my brother T. D. in trust for my or nearest of kin of the testator, nephew and nieces J. D., A.D., of the name of Pearce, being males, M. A. D. and Emmy D., when the at the time of his death, were his younger (Emmy) 'shall come of three first cousins; 1st, the tenant age; also if my brother T. D. for life T. P.; 2dly, R. P. the should have children, then his chilplaintiff; and 3dly, W. P. his bro- dren to have equal share with my ther. Testator had had a brother four before-mentioned nephew and Zachary, who if then alive, or his nieces; he my brother T. D. to pay son, had he left one, would at the for their education and maintain testator's death have been the testa- them if any is wanted, he paying tor's next and nearest relation, &c. himself for any trouble he may be but Zachary had gone to sea, and at, and he living at free cost in the had not been heard of for many house I now occupy, keeping Sarah years, nor was any male issue of

my servant, if they can agree, and his known to have existed. Held, if not, to give her one shilling a that if Zachary, the testator's bro- week for life :"-Held, that under ther, died without issue in the life- these words the nephew and nieces time of the testator, T. P. took named by the testator were entitled under the ultimate limitation of the to the rents and profits of his eswill an estate in fee simple in the tate, when the younger, Emmy, testator's real property, and an ab- came of age, subject to the right solute interest in his personalty. of


child or children born to Pearce v. Vincent, T. 1833. 663 T. D., to share equally with them Cases as to propounding instructions in the rents and profits accruing for will, as a testamentary paper. after the time of his, her, or their

276 n. births, and to be educated and A. died possessed of family estates, maintained under the clause in the

as well as of land bought by him- will :-Held also, that the testator self, and other land acquired by did not mean the house to be given exchange of some of the family up by T. D. when Emmy attained property for it. Among the land twenty-one. Darker v. Darker acquired by such exchange was and others, T. 1833.

941 that in question. He devised all his lands &c. and real estates

WITNESS, whatsoever which he had hereto- The original subpæna ad testificanfore from time to time purchased dum should be shown to the party from the different persons in the subpoenaed at the time the copy

of several deeds and conveyances

it is served, or an attachment will thereof named &c. to his sisters, not lie against him for disobedience. A. M. and E. M. Held, that the Wadsworth v. Marshall.


Expenses of bringing over witnesses pearing that he requested to see

from abroad, of subsisting them it. S. C. here, and of their return, may The plaintiff in an action for use and be allowed, at the discretion of occupation had two witnesses to the master, subject to the review speak to the occupation. One of of the court, as well since 1 W. 4. them could also have rebutted the c. 22. as before. Macalpine, ad- defendant's expected set-off, but ministratrix, v. Powles and another, did not appear upon his subpæna. T. 1833.

871 The cause was called on in the abAn action on the case lies against a sence of counsel on both sides, and

witness for not attending a trial in the record withdrawn by the plainpursuance of a subpæna, though tiff's attorney, who swore that he the plaintiff withdrew the record in withdrew the record solely on acconsequence of his absence without count of the absence of the witness. the jury being sworn.

Mullett v. Held, that the witness was liable to Hunt, T. 1833.

875 be sued accordingly. S. C. In such an action it is necessary to

As to one defendant, bankrupt, being allege distinctly in the declaration witness for another.

201 that there was a good cause of action in the original suit ; but an allegation that the defendant could

WRIT. have given material evidence for the plaintiff, without which the A court will not set aside a return of plaintiff could not safely proceed non est inventus to a capias on afto trial, and that by reason of his fidavits of collusion between the non-attendance, and because the sheriff and defendant. If the replaintiff could not safely proceed to turn be good on the face of it, it trial without his testimony, he was can only be impugned in an action forced to, and did, withdraw the for a false return. Goubot v. De nisi prius record, was held suffi. Crouy, T. 1833.

906 cient after verdict. S. C.

It is sufficient, within 2 W. 4. c. 39. An allegation that the subpoena was to describe a defendant in a capias

made known to and shown to the (Form No. 4,) as of Kent Street, defendant was held to be supported in the county of Surrey. A capias by evidence that the subpoena was is good if indorsed “Bail for 401. made known to, and conduct money and upwards.” No date is retaken by him, though the original quired to the indorsement. Webb subpoena was not shown, it not ap- v. Lawrence, T. 1833.





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