warp and weft. They were equal to the sample, but, unknown to either party, the same defect existed in it. Damages were claimed because the goods were not merchantable, and the claim was allowed. Lord Herschell said: “I think that upon such an order the merchant trusts to the skill of the manufacturer, and is entitled to trust to it, and that there is an implied warranty that the manufactured article shall not, by reason of the mode of manufacture, be unfit for use in the manner in which goods of the same of material, and the same general character and designation, ordinarily would be used. I think, too, that, where the article does not comply with such a warranty, it may properly be said to be unmerchantable in the sense in which that word is used in relation to transactions of this nature.” The Court held that this warranty was not excluded by the fact that the goods were sold by sample. Drummond v. Vangen, 12 App. Cas. 284.
Telegraph Company—Error in Message.—The plaintiff sent a telegram to a purchaser at a distance reading, “Will sell 800 M. laths, delivered at your wharf, two ten net cash.” The company, in sending the message, left out the word “ten.” The purchaser immediately accepted the offer. Before the goods were sent the error was discovered, but the purchaser demanded performance, and the plaintiff sent the goods. He now sues for the “ten” on a thousand. Held—That he did what he was bound to do in sending the goods, since the contract was complete and binding. The error was the error of his agent, and he may recover from the defendant as such. Ayer v. Western Union Tel. Co., 10 Atl. Rep. 495; 36 Alb. L. J. 311 (Me.). This seems in accord with the American authorities. English law is contra. Henkel v. Pape, L. R. 6 Ex. 7.
Trust, Secret—Parol Evidence.—A testator bequeathed £500 to A and B, “relying, but not by way of trust, on their applying the same sum for and toward the objects, privately communicated to them.” The executors objected to paying over the bequest, on the ground that there was a secret trust which appeared to be illegal. The legatees contended that as the will said there was no trust, the Court could not inquire further. But it was held that evidence is admissible in such cases as to whether there was a promise on the part of the legatees. For otherwise money might be left for illegal purposes, or legatees might keep for themselves what they really received in trust. Re Spencer’s Will, 83 L. T. 274.
Water Rights.—The defendant railroad built a dam across a stream, above the plaintiff’s mill, for the purpose of supplying their trains with water. Held—That is not such a use of the stream as will entitle the defendants to diminish the flow of water to the plaintiff’s injury. Anderson v. Cincinnati Southern Ry. Co., 24 Rep. 502 (Ky.).
Wills—Illegitimate Children born after the making of the Will.—The case of Occleston v. Fullalove, 9 Ch. Ap. 147, which allowed an after-born child to take property under a devise by her father to his children by his deceased wife’s sister, with whom he had gone through the ceremony of marriage, has just been followed in England. In Occleston v. Fullalove the controversy was in regard to a child that was en venire sa mère at the date of the will, but not so described. Vice-Chancellor Wickens held it contrary to public policy to allow such provision for the fruit of future illicit cohabitation. James and Mellish, L. JJ., reversed the decree on appeal, Selborne, L. C., dissenting. The Lords Justices proceeded largely on the ground that a will does not take effect till the testator’s death, and hence such a provision is not for illegitimate children to be begotten in the future. The case is followed as binding, but with apparent reluctance. In re Hastie's Trusts, 35 Ch. D. 728.
Considering the question as one of public policy, the ground of the decision seems a narrow one, and the difference of opinion among the judges will deprive the case of any great weight where it is not a precedent. In fact, Lord Stirling almost advises the parties against whom he decides to appeal; so it can scarcely be said to settle the law in England.
Witnesses—Exclusion at Trial.—The plaintiff called a person as witness who had been present during the whole trial, though the judge had ordered the witnesses out of the room. Neither the plaintiff nor the witness knew the latter was to be a witness till called. Held—That the witness is competent, and would be competent even if he had remained in the court-room after he was called, against the order of the judge. His conduct would be subject for observation only, and would not affect his competency. State v. Thomas, 13 N. E. Rep. 35 (Ind.).