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Where the testator disposes of the same property to a daughter in remainder after a son, he uses those words of restriction : when we see, therefore, that he has omitted them when he devises the same property to the Defendant, we must infer that the omission was intentional, and that we should improperly interfere if we interpolated words from another portion of the will. As to our implying an estate tail, to prevent the devise over from being too remote, in case we adopt the construction contended for on the part of the Defendant, there is an end of that argument, if by such issue we are to understand son or daughter. And it is not easy to see to whom the estate is to go over. The proposition, therefore, for which the Defendant contends, not being satisfactorily established, I can only give the words their natural effect, that the estate is only to go over if the testator should die without leaving issue; and as that has not happened, our judgment must be for the Plaintiff.

Park J. I am of the same opinion. When we see words of restriction applied in the devise to the daughter, and omitted in the devise to the Defendant, we must suppose this was done advisedly, and the rather, as the testator appears by the will to have had professional assistance.

· GASELEE J. concurred.

ALDERSON J. I am of the same opinion. The word issue may sometimes be restrained to a particular class; but it is required here to add the further restriction, that that class should not have attained the age of twenty-one. No case will be found to have gone that length. video . i . Judgment for the Plaintiff.

1832.

May 9.

TEMPERLEY v. Scott.

Costs. A JN March 1831, the Plaintiff's agent proposed that a captain of a witness in this cause, Grewcock, the captain of a ship, ship, witness in a cause, is should

should be examined on interrogatories, apprising the allowed for Defendant that the witness could not be detained exhis subsistence cept at a considerable expense; the Defendant's agent, according to his station, for however, said he would rather incur the risk of expense the whole than forego the advantage of cross-examining the wittime during which he isness in open court. detained to give evidence.

The trial of the cause, which was twice postponed at the instance of the Defendant, took place in February last, when a verdict having been found for the plaintiff, the prothonotary allowed the witness, Grewcock, 8l. a month for his subsistence and loss of time during eleven months, upon affidavits that he had been detained during that time, had lost an opportunity of profitable employment, and had been paid 10l. a month by the Plaintiff.

Wilde Serjt. having obtained a rule nisi for the prothonotary to review his taxation on the ground that the allowance for loss of time was improper,

Taddy Serjt., who shewed cause, relied on Berry v. Pratt (a), where costs were allowed for the subsistence of a seafaring man during the period of his detention in order to give evidence; and on Lonergan v. Royal Exchange Assurance (6), where the captain of a ship was paid for his loss of time.

Wilde. The allowance in Lonergan v. Royal Exchange Assurance was for subsistence. No English wit(a) 1 B. &C. 276. (6) 7 Bingh. 725, 729.

ness

1832.

TEMPERLEY

Scott.

ness is entitled to any allowance for loss of time; a promise to pay him is void; Collins v. Godefroy (a); and it is doubtful, whether the allowance of subsistence to an English witness can be supported on principle. Every man is bound to give his attendance in a court of justice; it may have a dangerous effect on his testimony to allow him to be supported at the expense of the party who calls him, and will enable that party to entail overwhelming expense on his opponent.

Tindal C. J. It is unnecessary in this case to agitate the general principle as to the allowance of costs for loss of time; for, in the first place, the sum which has been allowed in this case for subsistence is not extravagant; — very little, if it all, more than was necessary for the board and lodging of a witness in Greucock's station ; and then an offer was made to the adverse party to examine the witness on interrogatories, and warning was given of the expense that would attend his refusal. Perhaps he made a prudent election ; but it reduces the case to a bargain between the two parties, which precludes the necessity of any interference on the part of the Court.

Rule discharged.

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1832.

Crisp v. Sir Henry EDWARD BUNBURY, Baronet,

and Others.

ben

Since , G. 4. THIS was an action of assumpsit against the Defendc. 92. an action * ants, as trustees of the Mildenhall bank for savings, does not lie

be for money had and received by them to the use of the trustee of a Plaintiff. At the trial before Tindal C. J., Middlesex In case of

Yo sittings 1830, a verdict was found for the Plaintiff for disputes, the 441., subject to the opinion of the Court on the follow, only mode of ing case: – proceeding is by arbitration.

In April 1818 a savings bank was established at Mildenhall, in the county of Suffolk, under the provisions of 57 G. 3. c. 130. Rules were drawn up which, in the same year, were duly enrolled with the clerk of the peace, and afterwards acted upon. The Defendants, with others since dead, were duly appointed trustees, and acted as such; but William Newton, who is still living, though not made a Defendant, was also a trustee, and acted. Sir Henry Edward Bunbury, one of the Defendants, who resided at Mildenhall, was also duly appointed, and acted as treasurer, and W. Bassett another of the Defendants, as manager. One William Gill was duly appointed clerk in the year 1818, and continued to act in that capacity until 1825, when it was discovered that he had embezzled a considerable sum of money, the amount of deposits which had been received by him. He absconded, and was prosecuted by the trustees to conviction, and transported. Bassett from time to time received deposits of the Plaintiff, and duly signed his book in which such deposits were regularly entered, but he never saw Crisp's account in the possession of the clerk, or attended at the clerk's office after March 1819; the clerk having told him 'that he

would

would give him notice when it was necessary for him to 1832, attend. On Gill's absconding, Bassett went to his

CRISP house, and there found two cash account books, one a false cand the other a true one; in each of which the BUNBURY. Plaintiff's account with the bank was entered, from which it appeared, that on the balance in the hands of the clerk, the Plaintiff's claim in June 1824 was 857.188.23d. The entry of the account in both books was precisely similar, except that in the false book the word "paid.”. was added at the end of the account, importing that the whole balance had been paid to the depositor. It was admitted that the receipts and payesi ments on account of deposits were as appeared by 2.99 the account; and that the Plaintiff had not received

-1937 the balance of the account. A letter was, on the 27th of June. 1829, sent by the Plaintiff's attorney to the Defendants, to W. Newton, and various others, which, after alluding to the embezzlement and conviction of the clerk, and expressing a hope that an amicable adjustment of the claims of the several depositors might be effected, gave notice to the Defendants and others, that the Plaintiff had appointed Mr. C. Austin, of the Temple, barrister, to be his referee, and called on the Defendants, within a month to appoint a referee on their behalf, both in the matter of Crisp, and the other depositors. Sir H. Bunbury was then abroad, and did not return to England till after the action was brought. No arbitrator had ever been appointed by the managers or trustees, they altogether denying their liability, and it being admitted that they had no funds in hand to satisfy the Plaintiff's claim. It was admitted that general meetings to receive the reports, and to examine and audit all the accounts of the establishment, were not held pursuant to the first rule of the institution. The Plaintiff wenty about the time Gill absconded, to his house for the purpose of making a formal demand, but bluesta D d 4

he

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