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author is referring to the personal remedy, by an action for deceit, against directors for a fraudulent prospectus. The only limit, short of acquiescence, is the Statute of Limitations." This implies that the right of action may be lost by acquiescence, which is not, we think, sound law according to the authorities. Thus Lord Justice Thesiger, in delivering the judgment of the court in De Bussche v. Alt (8 Ch. D. 286) says: Acquiescence may be defined as quiescence under such circumstances as that assent may be reasonably inferred from it, and is no more than an instance of the law of estoppel by words or conduct. But when once the act is completed without any knowledge or assent on the part of the person whose right is infringed, the matter is to be determined on very different legal considerations. A right of action has then vested in him which, at all events as a general rule, cannot be divested without accord and satisfaction, or release under seal. Mere submission to the injury for any time short of the period limited by statute for the enforcement of the right of action cannot take away such right." The confusion has probably arisen from the doctrine (now obsolete) that courts of equity were not bound by the Statutes of Limitation, but adopted them in cases where acquiescence endured for the statutory period: see Re Greaves, Bray v. Tofield (30 W. R. 55, 18 Ch. D. 551). We notice also an omission in the section "Directors and their Powers," where the cases of Ferguson v. Wilson (15 W. R. 80, 2 Ch. 77) and Wilson v. Lord Bury (5 Q. B. D. 518) ought to have been, but are not, cited.

CORRESPONDENCE.

SITTINGS OF THE COURTS.

[To the Editor of the Solicitors' Journal.] Sir,-Referring to the various discussions during the past twelve months, I have had many communications, and in the result I have made the following suggestions, on which I should be glad to have the view of some of your readers if you will permit the correspondence to appear in your columns.

First, as to the Chancery Division, I suggest :

1. That all witness and other causes should be separated from interlocutory business and be taken de die in diem by an independent judge.

2. That cases of an administrative character (if a judge so directs) should form the subject of an entirely separate list to be separately dealt with.

3. That all original motions and petitions, and every other application in cases wherein there has been no previous intervention of the court, should be put in a separate list, and be dealt with by one judge sitting for the time being for such purpose only, instead of several judges taking such work to the obstruction and uncertainty

of other business.

4. That some judge should sit in chambers for one or more entire days every week to hear adjourned summonses. The summonses adjourned into court to be heard as now.

Next, as to the Common Law Division, I suggest :5. That the cause lists should be more completely separated into (a.) special juries, (b.) common juries, (c.) causes without juries, (d.) causes standing over sine die.

6. That special jury causes should be heard in the order in which they are marked as such, and not be placed between other special juries already so marked.

Finally, as to both divisions, I suggest :

7. That every Friday evening the judge engaged on his particular list should announce that he will not go beyond such and such a case during the coming week. A good margin could be allowed for contingencies, and even if some unprecedented collapse happened it would be better for a judge to be idle for twenty-four hours for once than that hundreds of people should be kept needlessly anxious. 8. That no cause within the compass of the ensuing week's estimate be marked "postponed " without the judge's consent (much confusion and uncertainty arising from uncontrolled changes).

9. That at least one day before the conclusion of every sitting there should be an announcement of the intended programme of the following sitting (emergencies excepted), it being submitted that the dates of the assizes and other known work ought to be fixed with a fairly long notice to the profession. This remark applies particularly to the long vacation, nobody at present being able to form any idea of the Michaelmas plans till just on the eve of the sittings.

10. That, as far as possible, the plan, already adopted in the Probate and Divorce Division, of classifying the work and fixing dates beforehand should be applied to the other divisions, and especially that it should be stated whether it is expected that one or more courts will be devoted to a particular list. Any solicitor can make a rough calculation what a single judge can get through; but he can give his client

no idea whatever if he is kept in ignorance as to whether one or half a dozen judges will be engaged in a given class of work. FRANCIS K. MUNTON. 95A, Queen Victoria-street, E. C., December 6.

REMUNERATION ORDER-LEASES.

To the Editor of the Solicitors' Journal.} Sir,-In 1884 Master Skirrow, after consultation with other masters, decided, in a case in which we were concerned, that notice by the lessor's solicitor to the lessor, without notice to the lessee, did not make the lessee liable to more than scale charges for lease and S. counterpart. London, Dec. 6.

[See observations under head of "Current Topics."-Ed. S. J.]

CASES OF THE WEEK.

COX, PATTERSON, & CO. v. BRUCE & CO.-C. A. No 1, 6th December. SHIPPING-BILL OF LADING-AUTHORITY OF MASTER TO SIGN FOR PARTI

CULAR QUALITY OF GOODS-SPECIAL CLAUSE IN BILL OF LADING. Messrs. Steel & Co., of Calcutta, shipped on board the defendants' vessel, The Panmure, 500 bales of jute, 26 of them being marked RC 1, 192 R C 2, and 282 R C 3. Jute is shipped of various qualities, which are indicated on the bales by numbers, No. 1 indicating first quality, No. 2 second quality, and No. 3 third quality. These numbers are termed quality marks, R C being the leading mark. A bill of lading for the 500 bales was signed by the master, the bill of lading being in the customary form in the jute trade as used since 1881, and there was a clause in the margin:-"If quality marks are used they are to be of the same size as the leading marks and contiguous thereto, and if such quality marks are inserted in the shipping notes, and the goods are accepted by the mate, bills of lading in conformity therewith shall be signed by the captain, and the ship shall be responsible for the correct delivery of the goods.' The shipping notes (made out by the shippers, Steel & Co.) stated that the 500 bales were made up as follows:-26 bales of RC 1, 251 of R C 2, and 223 of RC 3; and these figures were inserted in the bill of lading, the bill of lading thus stating that there were 59 bales more of quality No. 2 and 59 less of quality No. 3 than were actually shipped. The bill of lading was indorsed to the plaintiffs for value without notice of any incorrectness in the description of the goods shipped. The 500 bales actually shipped were delivered to the plaintiffs in London; but the plaintiffs sought to recover from the defendants the difference in the value of the bales owing to the non-delivery of the bales of the quality, and bearing the quality marks, stated in the bill of lading. THE COURT OF APPEAL, affirming the judgment of the Queen's Bench were not liable; that the true Division, held that the defendants marks which were actually upon the bales shipped were inserted in the meaning of the marginal clause in the bill of lading was that if the quality shipping notes, and the mate accepted the goods, bills of lading in conformity therewith should be signed by the captain, and the ship should be responsible for the correct delivery of the goods; that in this case the quality marks on the goods differed from those in the shipping notes, and so the defendants were not liable under the clause. Nor were the defendants liable by reason of any general authority in the master to bind them; per Lord ESHER, M.R., and LOPES, L.J., upon the ground that the master had no general authority to sign bills of lading stating the mercantile quality of the goods so as to bind the shipowners; per LINDLEY, LJ., on the ground that the special and limited authority given to the master by the marginal clause ousted any general authority.-COUNSEL, Bigham, Q.C., and J. Gorell Barnes; R. T. Reid, Q.C., and F. W. Hollams. SOLICITORS, W. A. Crump & Son; Hollams, Son, & Coward.

REG. (ON THE PROSECUTION OF J. PRITCHARD) v. THE MAYOR AND CORPORATION OF BANGOR-C. A. No. 1, 7th and 8th December.

MUNICIPAL ELECTION-ELIGIBILITY OF ALDERMAN FOR OFFICE OF TOWN COUNCILLOR-DUTY OF RETURNING OFFICER.

This case raised a question as to the duties of the returning officer at municipal elections. It appeared that at the recent municipal election for the borough of Bangor two candidates offered themselves for the representation of the South Ward. Of these one was Mr. Pritchard, the other Mr. Meshach Roberts, who was at that time an alderman of the borough. The election took place on November 1, and the term of Mr. Roberts's office as alderman did not expire until November 9. An objection was taken to the nomination of Mr. Roberts on this ground, but it was overruled by the mayor, and the election proceeded. On the votes being counted it was found that 171 had been given for Mr. Roberts, and 151 for Mr. Pritchard. The returning declaration of the elected candidate. The mayor, however, proceeded to officer thereupon communicated the numbers to the mayor, but made no announce the result of the poll to the crowd outside the building in which the counting had taken place. Two days afterwards the returning officer, having considered the point, published a placard in which, after stating the numbers of the votes given for the two candidates, he declared Mr.

Roberts to be ineligible for the office of town councillor, by reason of his being an alderman for the borough, and announced that Mr. Pritchard was elected. Thereupon the town clerk sent notice to Mr. Pritchard that he was elected, and he accordingly qualified and took his seat. A few days afterwards Mr. Roberts also qualified, and took a seat as town councillor. The mayor and the majority of the council declined to receive Mr. Pritchard's vote, and he therefore applied to the Queen's Bench Division for a peremptory mandamus requiring them to receive and count his vote. That Court (Denman and Stephen, JJ.) having granted the mandamus, the corporation appealed, but in the meantime a meeting of the town council of Bangor was summoned, and Mr. Pritchard's vote being received in obedience to the mandamus, his party became in the majority on the council, and it was decided by such majority not to proceed with the appeal. The Court of Appeal thereupon granted Mr. Roberts leave to proceed with the appeal. It was now urged for the respondents that Mr. Roberts was ineligible as a candidate for the town councillorship by reason of his being already an alderman of the borough, and that his ineligibility was so notorious that votes given for him were thrown away and could not be counted. It was further contended that Mr. Pritchard had been properly elected by the declaration made by the returning officer, and that, even if he had not been properly elected, the office was filled by him until he was unseated on petition, and that, therefore, a mandamus would lie to the corporation to receive his vote. The corporation appeared, and desired to state that they did not prosecute the appeal. THE COURT OF APPEAL (Lord ESHER, M.R., LINDLEY and LOPES, L.JJ.), in allowing the appeal, said that the cases clearly laid it down that a person holding an incompatible office was not made ineligible for another office by reason of its incompatibility, but that if he was elected to and accepted the second office he thereby vacated the former office. The duty of a returning officer was clearly limited by the Ballot Act (35 & 36 Vict. c. 36), s. 2, and was, after receiving or rejecting ballot papers, to count them, and forthwith to declare the person having the majority of votes to be elected. The subsequent declaration by the returning officer here was, therefore, entirely ultrà vires and void. They considered Mr. Roberts to have been an eligible candidate and to have been duly elected, and, therefore, were of opinion that the mandamus must be quashed.-COUNSEL, Sir Charles Russell, Q.C., R. S. Wright, and Marchant Williams; Sir Henry James, Q.C., McIntyre, Q.C., and Douglas; Alexander Glen. SOLICITORS, Bloxam & Ellis, for J. B. Roberts & Roberts, Bangor; Belfrage & Co., for R. S. Chamberlain, Llandudno; Simpson, Hammond, & Co., for R. H. Pritchard, Bangor.

was bound to pay for it. It might be so, if the circumstances raised a presumption of ratification; but it was not shewn that F. had any knowledge of the circumstances. And the plaintiff was not taking advantage of any contract entered into by E., but of the contract effected by the policy. The ground of the Vice-Chancellor's decision was that the payment was made by E. with reference to the contract which he had entered into with D. With great respect to the Vice-Chancellor, his lordship must differ from him. There was no evidence that F. had authorized that contract. It was true that if a man who had the real title to property stood by, and saw a man who believed that the property was his laying out money on the property, equity would prevent him from insisting on his legal rights against the person who had so expended the money. But he must know that the title of the person who spent that money was a bad one. Here it was not shewn that F. knew anything. Did the fact that E. was the owner of the ultimate equity of redemption of the policy entitle him to a lien for the premium? It would be strange if an expenditure in respect of mortgaged property by the mortgagor could entitle him to a charge on the property in priority to his own mortgagee. It must be considered that E. made the payment, not with the view of obtaining any charge in priority to his mortgagee, but in order to protect his own interest in case the policy should produce more than enough to satisfy the charges on it. The owner of a mine could not have a charge as against his mortgagee for money expended by him to prevent the mine from being flooded. BOWEN, L.J., was of the same opinion. He said that the general principle was that work and labour done by one person to preserve the property of another, without his request, did not create any lien on the property preserved for the money expended in its preservation, or even create an obligation on the part of the owner to repay the money. A liability could not be forced upon a man behind his back. There was an exception in the case of maritime lien for salvage; in this respect the maritime law differed from the common law. For purposes of public policy and for the advantage of trade, the maritime law had imposed the obligation of a lien for salvage expenses. But that doctrine did not apply to goods lost on land. A lien in respect of labour expended on goods could only be admitted, if there were facts from which the law would imply a contract on the part of the owner to repay. If the owner of the property knew that the service was being performed, it was then a question of fact whether a contract by him to repay could be inferred. There was nothing to shew that F. had so acted as to justify any such inference by E. It was said, however, that his subsequent conduct in taking the benefit of the preserved policy made him liable to repay the money expended in preserving it, by virtue of some act of adoption or ratification. A man could not adopt or ratify that which purported to be be made for the benefit of F. If he had taken the benefit under circumstances which led to the inference of a fresh contract to pay, it would be a different case. But there was not a particle of evidence of that. With certain exceptions, the rule in equity was the same as that at law, and there was no equity in the present case. The mortgagor did not make the payment under any mistake as to his interest, and the mortgagee did It was not even a case in which the not stand by and allow him to pay. owner of the property required the assistance of a court of equity to get his property back. FRY, L.J., concurred.-COUNSEL, Jelf, Q C., and SOLICITORS, Longbourne & Bonsey; Marten, Q.C., and Oswald; Beddall. Stevens; Harper & Battcock; J. S. Merten. THE BIRMINGHAM AND DISTRICT LAND CO. v. THE LONDON AND NORTH-WESTERN RAILWAY CO.-C. A. No. 2, 8th December.

FALCKE . THE SCOTTISH IMPERIAL ASSURANCE CO.-C. A. done for someone else. The payment of the premium did not purport to No. 2, 1st December.

POLICY OF INSURANCE-PAYMENT OF PREMIUM BY STRANGER OR MORTGAGOR -LIEN ON POLICY.

year.

The question in this case was as to the right of a stranger, or of a mortgagor of a policy of insurance, who, without any request, pays a premium to keep alive the policy, to a lien on the policy or its proceeds for the amount so paid. In August, 1879, E. purchased a policy for £29.000, effected on the life of B., with the defendant company, and subject to the annual premium of £1,211 19s. 2d., payable on the 30th of August in each The policy was mortgaged by E. to the company to secure £1,950, and subsequently to F. for £6,000, and other incumbrances were created. In September, 1882, E. filed a liquidation petition, and in March, 1883, obtained his discharge, on the terms of paying a composition of 2s. in the pound to his creditors, other than those who had security on the policy. The money to pay the composition was found by some friends, to whom his property, other than the policy, was assigned as security. The composition was duly paid, and the equity of redemption of the policy revested in E. He afterwards entered into a contract with D., who professed to be acting as agent for F., for the purchase of F.'s mortgage for £50, and, on the 30th of August, 1883, he paid the premium then due, the other persons interested in the policy not being prepared to pay it. It afterwards turned out that the contract for purchase could not be carried out, as D. had not any authority to enter into it on behalf of F. This action was brought by F.'s executrix to enforce her security on the policy. In the action the policy was sold by order of the court, and, after payment of the amount due to the company as first mortgagees, a surplus of £1,722 remained. The plaintiff claimed the whole of this sum, which was not sufficient to discharge her mortgage debt, and E. claimed to be paid out of it the premium which he had paid, on the ground that his payment of the premium had kept the policy alive for the plaintiff's benefit. Bacon, V.C., held that E. was entitled to repayment of the premium out of the £1,722 on the ground that though, as it turned out, he was a mere stranger, yet, at the time when he made the payment, he had a bona fide belief that he had a valid contract for the purchase of F.'s mortgage. THE COURT OF APPEAL (COTTON, BOWEN, and FRY, L.JJ.) reversed the decision, holding that E. had no lien on the proceeds of the policy for the premium. COTTON, L J., said that when the composition was paid to the creditors of E. he became the ultimate owner of the policy subject to the charges on it. The general rule of law was that the payment by a stranger of the premium on a policy gave him no lien on the policy. A mere volunteer who made a payment in respect of the property of another, without any request by that other, gained no charge or lien on the property in respect of his payment. If the payment had been made at the request of F., E. would have had a right of action against him for repayment, though not necessarily a lien on the policy. On the evidence his lordship could not come to the conclusion that there was any request, express or implied, by F. to E. to make the payment. The argument for the appellant had been put on the broad ground that anyone who took the benefit of a contract

R. S. C., 1883, XVI., 48—THIRD PARTY NOTICE—“ INDEMNITY.” The question in this case was, What is the meaning of the word "in demnity" in rule 48 of order 16 of the Rules of the Supreme Court, 1883, which provides that, "where a defendant claims to be entitled to contri bution or indemnity over against any person not a party to the action, he may, by leave of the court or a judge, issue a notice to that effect," which is to be served on the third party? The corresponding rule (rule 17 of order 16) of the rules of 1875, contained the words, "where a defendant is or claims to be entitled to contribution or indemnity, or any other remedy or relief over against any other person," the words in italics being omitted from the present rule. The plaintiffs sought to enforce against the defendant company some building agreements relating to some land near Birmingham. The agreements had been entered into by the plaintiffs with some trustees, who were then the owners of the land. The trustees afterwards contracted to sell the land to the defendant company free from incumbrances, alleging that the agreements with the plaintiffs had become forfeited. The plaintiffs sought to restrain the defendant company from interfering with the land. The defendant company applied to Chitty, J., for leave to serve a third party notice on the trustees on the ground that, as they had contracted to sell the land to the defendant company free from incumbrances, there was an implied contract on their part to indemnify the defendant company in case they should fail in the present action. Chitty, J., held that there was no right to indemnity, and that the rule did not apply (ante, p. 64).

THE COURT OF APPEAL (COTTON, BOWEN, and FRY, L.JJ.) affirmed the decision. COTTON, L.J., was of opinion that the word "indemnity" in the rule must mean a right arising by contract, either express or implied. If the court came to the conclusion that the position of the parties was such that, either at law or in equity, the one was under an obligation to indemnify the other, as in the case of trustee and cestui que trust-for instance, if shares stood in the name of a trustee-there would be an implied contract by the cestui que trust to indemnify the trustee against liability on the shares. In the present case it could not be said that there was any such contract, express or implied. It was

not suggested that there was un express contract. It might well be that,
if the plaintiffs succeeded in this action, the railway company would be
able to recover damages against the trustees for breach of contract or
misrepresentation. No doubt, if one person requested another to do a
certain act, and, by reason of his doing it, he suffered loss, the law implied
a contract by the first person to indemnify him. In the present case his
lordship could not see what request could be said to have been made by
the trustees to the railway company, unless in every case of a sale of
goods there was an implied contract of indemnity on the part of the
vendor. That, however, was not the law. There was no contract for
indemnity in the present case, and, however convenient it might be to
bring in the trustees, there was no power under rule 48 to authorize
the serving of a third party notice on them. BOWEN, L.J, said
that the present rule was intended to cut down the old rule.
In the present case the defendants had no right except that which
arose out of the express contract of sale. The rule was limited to
claims to indemnity, as such, at law or in equity. In nine cases out of
ten such a right must be created either by express contract or by implied
contract. Such a contract might be implied either on the ground that the
parties intended it, though they did not say so expressly, or because there
was a legal duty or obligation which law or equity would assist the parties
to enforce. There might possibly be a tenth case where a statute gave a
right to indemnity, and possibly there might be some other direct right
in equity to indemnity not coming within the previous cases. But a right
to damages was clearly not a right to an indemnity as such. It was the
converse. It arose out of the breach of a contract, and was not a provision
of the contract. In cases of principal and agent the law implied an obli-
gation on the part of the principal to indemnify the agent who acted on
his request against loss, and this was not confined to cases of
principal and agent. But it would be idle to maintain that, in the
case of a contract for sale, there was any such request. FRY, L.J.,
concurred. He was of opinion that the rule intended a direct right
at law or
in equity to indemnity as such, which must not be
confounded with a right to damages for breach of contract or for tort.
There might be cases of a right to indemnity not founded on either con-
tract or statute, but in any case it must be a direct simple right to in-
demnity as such. In the present case the defendants had no right to
anything but damages for breach of an express contract.-COUNSEL,
Ince, Q C., and O. Leigh Clare; Romer, Q.C., and Woodroffe. SOLICITORS,
C. H. Mason; Robinson, Preston, & Stow.

SOUTH WALES MINERAL RAILWAY CO. v. DAVIES-C. A. No. 2,
8th December.
PRACTICE-MOTION TO VARY MINUTES OF ORDER-ALTERATION OF ORDER-
STRIKING OUT UNDERTAKING.

Aston, Q.C., and Chadwyck Healey. SOLICITORS, Salaman; Emmet, Son, &
Stubbs, for A. & G. W. Fox, Manchester.

HARGRAVE v. KETTLEWELL-Chitty, J., 4th December.
FUND IN COURT-PAYMENT OUT-CARRYING OVER SHARE OF BENEFICIARY TO
SEPARATE ACCOUNT-TITLE OF ACCOUNT.

This was a petition for payment out of part of a fund, and it was proposed to carry over the share of one of the beneficiaries to the account of such beneficiary "or his incumbrancers." It was stated that there were no incumbrancers of the beneficiary's share.

66

CHITTY, J., said that it would not be right to add the words, or his incumbrancers," and such words must be omitted. There were, in fact, no incumbrancers; and, if the words were added, when the beneficiary came to apply hereafter for payment out, he would be put to the brancers.-COUNSEL, Godefroi; Warrington. unnecessary expense and trouble in proving that there were no incum

MOORE v. MORTON-Chitty, J., 4th December. MORTGAGOR AND MORTGAGEE-FORECLOSURE ACTION AGAINST SUBSEQUENT INCUMBRANCERS AFTER JUDGMENT ALREADY OBTAINED AGAINST MORTGAGOR. This was an action by a first mortgagee for foreclosure against the second and third mortgagees. It appeared that the plaintiff, without knowledge of subsequent incumbrancers, had already obtained against the mortgagor a foreclosure judgment nisi, but that the chief clerk's certificate had not yet been made. The present action now coming on for motion for judgment, the plaintiff stated that, although it was possible that the second mortgagee might redeem, there was no probability of the mortgagor doing so.

CHITTY, J., said that, as the mortgagor was not a party to the present action, he could not make an order in it, and ordered the motion to stand over, with liberty to amend by adding the mortgagor as a defendant.COUNSEL, Gaselee; Farwell; Bunting. SOLICITORS, Paterson, Snow, & Bloxam; Mathews & Brown; Hickin & Graham.

Re COATES TO PARSONS-North, J., 7th December. POWER OF APPOINTING NEW TRUSTEES-TRUSTEE PERMANENTLY RESIDENT ABROAD "CONTINUING TRUSTEE"-CONVEYANCING ACT, 1881, s. 31. In this case a question arose as to the validity of an appointment of a new trustee, which purported to be made under the power conferred by section 31 of the Conveyancing Act, 1881. Sub-section 1 of section 31 provides that where a trustee (inter alia) "is dead, or remains out of the United Kingdom for more than twelve months,' "then "the person or persons nominated for this purpose by the instrument, if any, creating the trust, or, if there is no such person, or no such person able and This was a motion to vary the minutes of a previous order of the Court time being, or the personal representatives of the last surviving or conwilling to act, then the surviving or continuing trustees or trustee for the of Appeal. The appeal was from an injunction against the defendant, tinuing trustee, may, by writing, appoint another person or other persons and the order, as drawn up by the registrar, con ained an undertaking by to be a trustee or trustees in the place of the trustee dead, remaining the defendant to allow the plaintiff to enter on his land to remove some out of the United Kingdom," &c. And, by sub-section 6, "The proearth which he had been restrained from allowing to remain there. The visions of this section relative to a continuing trustee include a refusing defendant desired to have the undertaking struck out, on the ground or retiring trustee, if willing to act in the execution of the provisions of that his counsel were not authorized to give any undertaking on his behalf. this section." In the present case there were eleven trustees of a chapel. THE COURT OF APPEAL (COTTON, BOWEN, and FRY, L.JJ.) refused the The deed of trust contained a power of appointing new trustees, but that application. COTTON, L.J., said that the motion was only to vary the power did not extend to the case of a trustee remaining out of the United minutes, not to discharge the order as erroneous. On a motion to vary Kingdom for more than twelve months. One of the eleven trustees died, minutes the court ought not to go into any question but whether the and another remained abroad for more than twelve months, and the minutes correctly expressed the real decision of the court. In the present remaining nine trustees executed a deed by which, in exercise of the power case his lordship was of opinion that the minutes, as given out by the conferred by the Conveyancing Act, they appointed a new trustee in the registrar, accurately expressed the order which the court made. The place of the trustee who was abroad. The ten trustees entered into a contract for the sale of the chapel, and the purchaser took the objection his burden. If that were done, the whole order would go. Such a matter that the appointment of the new trustee was invalid, because the original could not properly be brought before the court on the present motion. trustee who was abroad did not concur in it. A summons was taken BOWEN, L.J., said that it was a very important rule of practice that the out by the vendors under the Vendor and Purchaser Act to determine the only question which could be discussed on a motion to vary minutes was validity of the objection. On behalf of the vendors it was contended whether the intention of the court had been correctly expressed. FRY, that the words "continuing trustee" in section 31 included only a trustee L.J., concurred.-COUNSEL, Pearson, Q.C., and J. Chester; Sargant. who was to continue to act in the trusts after the appointment of the new SOLICITORS, J. J. & C. J. Allen; Norton, Rose, & Norton. trustee should have been made. On behalf of the purchaser it was urged that those words included a trustee who was about to retire or to cease to be a trustee, but who was "continuing" up to the execution of the appoint

court was asked to treat the motion as one to relieve the defendant from

LEVER & CO. v. GOODWIN BROS.-Chitty, J., 2nd December. PATENTS, &C., ACT, 1883, s. 64-TRADE-MARK-FANCY WORDS-THE SELFWASHER SOAP.

This was an action between rival vendors of soap, in which the plaintiffs claimed an injunction to restrain infringement of their registered trade-mark, "The Self-Washer, as a mark for soap. Amongst the advantages described by the plaintiffs on their wrappers as belonging to their soap was that of doing its work when let alone. The defendant's soap was sold under the terms of "self-washing." The plaintiffs also claimed an injunction to restrain the defendants from selling the soap of the defendants in packets, wrappers, &c., similar to those used by the plaintiffs, to the deception of purchasers. CHITTY, J., said that the words claimed by the plaintiffs as a trademark were, notwithstanding their grammatical absurdity, not "fancy words not in common use" within the Patents, &c., Act, 1883, s. 64, so as to be within the protection of the Act. There was some evidence of common use, and also they were descriptive of the qualities of the soap. That such was the case was shewn in the description of their soap given by the plaintiffs themselves. The plaintiffs, therefore, could not set up the trade-mark. They were, however, entitled to an injunction in respect of the defendant's misrepresentation, for the defendants had made an unfair attempt to obtain the benefit of the plaintiffs extensive trade by means of misrepresentation.-COUNSEL, Romer, Q.C., Lockwood, Q.C., and J. Cutler;

ment.

NORTH, J., held that the concurrence of the outgoing trustee was unnecessary, and that the appointment was valid. He said that, if he had to decide the question with reference to a deed which contained a power of appointing new trustees expressed in the words of sub-section 1 of section 31, without anything more, he should follow the decisions of Kindersley, V.C., in Travis v. Illingworth (2 D. & S. 344), and Pearson, J., in Re Norris (27 Ch. D. 333), differing from the opinion expressed by Bacon, V.C., in Re Glenny and Hartley (25 Ch. D. 611) (though that opinion was not necessary to the decision of the actual case then before the Vice-Chancellor), and hold that the words "continuing trustee " applied only to a trustee who was to continue a trustee after the appointment of the new trustee, and that they did not include a trustee who was to cease to be a trustee on the execution of the appointment. But, when the appointment was made under the statutory power, the point was decided by sub-section 6. The provisions of the section as to a tinuing" trustee were to apply to a retiring trustee only, if he was "willing to act in the execution of the provisions of this section." the present case there was no evidence that the trustee who was absent abroad was willing or competent to act in making the appointment, or even that the other trustees knew where he was to be found. Consequently, the appointment must be held to be valid.-COUNSEL, Bunting ; E. Ford. SOLICITORS, Ingle, Cooper, & Holmes; Penley & Grubbe.

"con

In

Re CARLYON, CARLYON v. CARLYON-North, J., 1st December. R. S. C., 1883, LV., 3-ORIGINATING SUMMONS-JURISDICTION. A question arose in this case as to the jurisdiction to determine upon an originating summons the nature and extent of an interest in real estate given by a will. A testatrix, who died in 1863, by her will, made in 1861, devised real estate in such a way as left it doubtful whether T. was entitled in fee, or whether it went on the uses of a prior settlement of other estates. The testatrix did not appoint any trustees. T. died in 1884, having by his will devised his real estate to trustees on trust for sale. A., the tenant for life under the settlement, had executed a disentailing deed and a re-settlement of the other estates. The summons was issued by the trustees of the will of T. as plaintiffs, against A. and the trustees of his re-settlement as defendants. The executors of the testatrix were not served with the summons. The summons asked for the determination of the question whether the estate devised by the will of the testatrix passed by the will of T. to his trustees, or to whom, and for what interest, it passed by the will of the testatrix, and whether it was comprised in the re-settlement made by A. NORTH, J., held that there was no jurisdiction to decide the questions upon an originating summons. Rule 3 of order 55 gave jurisdiction to determine, without an administration of an estate or trust (inter alia), "any question arising in the administration of the estate or trust." The power extended only to matters which, before the rule, would have been determined under an administration judgment, and the questions now raised, relating, as they did, to a legal devise, would not then have been determined in an action for the administration of the estate of the testatrix. The rule would not apply even if the executors of the testatrix had been served with the summons.-COUNSEL, Napier Higgins, Q C., and S. Lecke; P. V. Smith; Chadwyck Healey. SOLICITORS, Bell, Stewards, & May; Rose, Johnson, & Co.; E. S. Alderson.

Re CUNNINGHAM-North, J., 3rd December.

R. S. C., 1883, XLI., 5; XLII., 7-COMMITTAL-PERSONAL SERVICE

WAIVER.

A question arose in this case as to waiver of personal service of an order, with reference to an application for a committal for disobedience to an order. An order had been made upon a solicitor to deliver a bill of costs. The order had not been served on him personally, but had been delivered to his clerk at his office. This was a motion to commit him for disobedience to the order. There had been some correspondence between him and the solicitors of the applicants in relation to the order, and in one of his letters he had said, "You shall have the bill of costs in a week," but he had not carried out this promise. It was argued that this amounted to a waiver of personal service of the order. NORTH, J., held that it did not, and refused to make an order for committal.-COUNSEL, Cozens-Hardy, Q.C., and A. A. Terrell; Cookson, Q.C., and Oswald. SOLICITORS, Cobbold & Woolley; Cunningham.

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VERNON v. HALLAM-Stirling, J., 2nd December. RESTRAINT OF TRADE-COVENANT NOT TO CARRY ON BUSINESS UNDER PARTICULAR NAME-GOODWILL-ASSIGNMENT-SOLICITING CUSTOMERS. In this case two questions arose (1) whether an unqualified covenant not to carry on a business under a particular name was void as being in restraint of trade, and (2) whether the assignor of the goodwill of a business can be restrained from soliciting the customers. The defendant had, by an indenture dated the 22nd of May, 1881, assigned to the late Jabez Vernon the goodwill of the business of a hackle, pin, and wire manufacturer carried on by him at the Butterthwaite Works, Ecclesfield. In that indenture was contained a covenant by the defendant with the said Jabez Vernon that he would not, for the space of five years, carry on the business of a manufacturer, either by himself, or jointly with any other person or persons, under the name or style of John Hallam or Hallam Brothers." The defendant was employed by Jabez Vernon during his life as manager of the business, and afterwards by the plaintiff who was the administratrix of Jabez Vernon. On the 8th of November the plaintiff learnt for the first time that the defendant was intending to carry on a similar business at Sheffield, and had sent to her customers a circular signed Hallam Brothers, informing them that orders and communications should in future be addressed to Hallam Brothers, hackle, pin, and wire manufacturers, 7, Westfield-terrace, Sheffield, and soliciting a continuance of their orders. The present action was for an injunction to restrain the defendant from, among other things, infringing the covenant contained in the assignment, and from soliciting customers of the late Jabez Vernon or of the plaintiff. The plaintiff now moved for an interim injunction. It was contended on behalf of the defendant that the covenant was a covenant in restraint of trade, and being unlimited in point of space was void. With regard to the soliciting of customers, it was argued on behalf of the plaintiff that the case of Labouchere v. Dawson (20 W. R. 309, 13 Eq. 322) had never been overruled, and that the dissent from it expressed in Pearson v. Pearson (32 W. R. 1006, 27 Ch. D. 145) amounted merely to dicta not necessary for the decision.

STIRLING, J., held, on the first point, that the words in the covenant "under the said name or style of John Hallam or Hallam Brothers" qualified the whole covenant. It was not a covenant against trade but against carrying on a trade under a particular name. No authority had been cited to shew that such a covenant came within the rule which applied to covenants in restraint of trade. The defendant was at perfect liberty to employ his talents, industry, or capital in any useful undertaking he aleased. He was only restrained from doing so under a particular name. The plaintiff was entitled to an injunction in this respect. With regard

to the second point his lordship said that Pearson v. Pearson distinctly overruled Labouchere v. Dawson. Cotton and Lindley, L.JJ., expressly founded their judgments upon this, that Labouchere v. Dawson was wrongly decided. That was binding upon him. He was further informed that in a recent case of Collier v. Chadwick (reported, but not on this point, ante, p. 27) the Court of Appeal had treated Labouchere v. Dawson as overruled. this respect, therefore, the injunction must be refused.-COUNSEL, J. G. Wood; Vernon R. Smith. SOLICITORS, Peacock & Goddard, for Vickers, Son, & Brown, Sheffield; Pritchard & Sons, for Webster & Styring, Sheffield.

In

HILL & CO. v. HILL-Kekewich, J., 3rd December. INJUNCTION-BREACH OF COVENANT NOT TO CARRY ON TRADE. This case raised the question of the meaning of the words "engage in, or be in any way concerned or interested in, any similar business." Shortly, the facts were these. The defendant Hill, while carrying on the business of a shipping and export butcher in the City of London, went into liquidation, in the course of which his trustee sold the business to one Tatham as trustee for the plaintiff company, then about to be, and which was, shortly afterwards, formed. By an agreement of the 8th of October, 1883, and made between the trustee in liquidation, the defendant, and Tatham, the defendant agreed with Tatham, both personally and on behalf of the company, that, so long as the company should carry on the business, the defendant would not "engage in, or be in any way concerned or interested in, any similar business within ten miles of the Royal Exchange, London." In 1885 the defendant entered, as an employé, the service of B. & Co., who carried on a similar business to that of the plaintiff company in the City. This action was brought to restrain the defendant from committing or continuing to commit any breach of the agreement in question. It was urged on behalf of the defendant that no breach had been committed, as the defendant could not, as an employé, be said to be concerned or interested in the business." The following, amongst other cases, were cited :-Baxter v. Lewis (30 SOLICITORS' JOURNAL, 754), Jones v. Heavens (25 W. R. 460, 4 Ch. D. 636), Ward v. Byrne (5 M. & W. 548) KEKEWICH, J. [after dealing with another part of the case], said: "Now as to the other point raised, the plaintiff company sue on a covenant in these terms:-[His lordship then read the covenant.] The defence is that the defendant is only a servant in, and is, therefore, not engaged or concerned or interested in a similar business. It is not necessary to say that he is "engaged" or "interested," "interested" meaning in commercial language entitled to profits. But I am of opinion that the word "concerned" was intended to cover this very case, aud I must regard it as meaning having something to do with a similar business, and if he has I think he is "concerned" in a similar business. I entirely follow the suggestion that these covenants ought not to be extended. If Mr. Justice Stirling bad not hesitated in the case of Baxter v. Lewis (30 SOLICITORS' JOURNAL, 754), I should not have felt any doubt. I am bound by the decided cases, not the less that they coincide with my own opinion.-Counsel, Hemming, Q.C., and Buckley, Q.C.; Farwell. SOLICITORS, Lawless, Nelson, Jones, & King; Nutt & Savery.

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Judgment was given in this case, which had been tried before the President of the Division without a jury. The plaintiffs propounded, as executors, the will and codicil of the Rev. Thomas Layard, who died on the 24th of November, 1885. The defendant, by her statement of defence and counter-claim, admitted the due execution of the will and codicil propounded by the plaintiffs, but propounded a later testamentary instrument, bearing date the 20th of November, 1885. At the time when the instrument propounded by the defendant was signed the testator was suffering from paralysis, which had almost prevented him from exercising his powers of speech, but he was able to make himself understood by means of signs. He communicated his wishes for a fresh testamentary disposition of his property to the medical men-Sir Peter Eade and Dr. Shepherd-who were in attendance upon him, and the former wrote on one side of a card the following words :- -"£30,000 to Miss Robinson, to be tied up to her for life, and after her death to come back to my family and to be divided fair and equally." The testator, in the presence of the two doctors made a mark on the card after the word "life" (although there was sufficient space for the mark at the end of the writing), and Sir P. Eade wrote the words, "Mr. Layard's mark," in a diagonal direction from the mark to the left-hand upper corner of the card. He then wrote on the back of the card the words "witnesses to mark," followed by his own initials and those of Dr. Shepherd (in the handwriting of the latter), and the date. Shortly afterwards Sir P. Eade, after an interview with the half brother of the testator, told the testator that he and Dr. Shepherd had taken too much responsibility on themselves, and without any opposition on the part of the testator he erased the initials from the back of the card. The testator put the card in a bag, and on the following day gave it to the defendant, Miss Robinson, to whom, at the time of the commencement of his illness, he was engaged to be married, and expressed his wish that she should keep it.

HANNEN, P., in delivering judgment, said that he was satisfied that the deceased had authorized the writing of the words which appeared upon the card, and had intended to give effect thereto as a testamentary instrument, and therefore, subject to the question which arose as to the position of the testator's mark, he held that there was a duly executed testamentary document. He also held that the writing of their initials by the witnesses

was a sufficient attestation, and that the subsequent erasure of those initials was ineffective, because a will or codicil can be revoked only in one of the ways mentioned in section 20 of the Wills Act, 1837-namely, by another will or codicil, or a duly executed writing declaring an intention to revoke, or by burning, tearing, or destroying, by or in the presence of the testator, with the intention of revoking. It remained for the court to consider the question, Whether the position of the testator's mark in the middle of the writing was consistent with an intention to give testamentary effect to it? That question depended upon the provisions of section 9 of the Wills Act, 1837, and of section 1 of Lord St. Leonards' Act. In this case, although there was room for the mark at the end of the writing, it was not "placed at or after or following or under or beside or opposite to the end of the will" within the latter enactment. He therefore held that the court would not be justified in admitting any part of the words written upon the card to probate, especially having regard to the authority of the case of Sweetland v. Sweetland (4 S. & T. 6), where Lord Penzance said: "The court would not be justified in fixing upon a signature in the midst of what the testator intended as his will, treating it as an execution of all that preceded it, and granting probate of so much of the will to the disregard of the remainder." He pronounced in favour of the will and the first codicil, but against the codicil propounded by the defendant, but he directed that the defendant should have her costs out of the estate.-COUNSEL, Bayford, Q.C., and Middleton; Lockwood, Q.C., and Searle. SOLICITORS, Saxton & Son; C. F. Martelli.

In the Goods of TURNER-P. D. & A. Div., 7th December. ADMINISTRATION-MARRIED WOMAN-BANKRUPTCY OF HUSBAND-GRANT TO TRUSTEE-SPECIAL CIRCUMSTANCES-BANKRUPTCY ACT, 1883 (46 & 47 VICT. c. 52), ss. 44, (ii.)-PROBATE ACT, 1857 (20 & 21 VICT. c. 77), s. 73. This was an application for a grant of administration to the trustee in bankruptcy of the husband of an intestate. The only asset of the deceased was a policy of insurance on her life for the sum of £20 with the Prudential Insurance Co. Shortly after her death her husband absconded, and he was afterwards adjudicated a bankrupt. In support of the application for a grant of administration to the husband's trustee in bankruptcy reliance was placed upon section 44 of the Bankruptcy Act, 1883, under which the property of a bankrupt divisible amongst his creditors is to include "the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised for his own benefit at the commencement of his bankruptcy or before his discharge," and on section 168 which defines "property including "obligations." It was also contended that, under section 73 of the Probate Act, 1857, a grant of administration could be made to the husband's trustee in bankruptcy without citing the husband himself. BUTT, J., held that the husband's right of administration was not such a property or capacity to exercise power over property as would pass to his trustee in bankruptcy under section 44 of the Bankruptcy Act, 1883, which section appeared to be limited in its terms to powers which the bankrupt could have exercised for his own benefit, but a right to a grant of administration was not necessarily so exerciseable. He thought, however, that the case was one for a grant under section 73 of the Probate Act, 1857. The only difficulty arose from the husband not having been cited, but, having regard to the small amount of the wife's estate, he should make the grant to the trustee in bankruptcy without citing the bankrupt himself.-COUNSEL, R. H. Pritchard. SOLICITORS, Doyle & Son, for Walmsley & Kay, Darwen.

19 as

or comes into the occupation. In Hare v. Churchwardens and Overseers of Putney (45 L. T. N. S. 337) the Court of Appeal, affirming Pollock, B., and Hawkins, J., held that it is a condition precedent to the liability of the incoming occupier for a proportion of the rate that his name be on the rate book, and that the outgoing occupier is liable for the whole rate until somebody else is substituted. It was admitted by the plaintiffs that neither the defendant's name nor Mr. George's name was on the rate book. If there be a vacant occupation, and no incoming occupier, Overseers of St. Werburg, Derby v. Hutchinson (42 L. T. N. S. 153), in 1880, decided that the outgoing occupier was liable for the whole of the rate, but 45 & 46 Vict. c. 20, s. 3 (1882), enacted that the outgoing occupier, where there is no incoming occupier, is liable only for the proportion of the rate up to the time of his delivering up possession. But this was not in point, as plaintiffs did not rest their claim on vacant occupation, but on occupation by defendant. As to the custom of the country, the custom could not override the statute. The plaintiffs' lease contained a covenant for payment by defendant of tithe rent-charge, land, and property tax only, and a covenant for payment by plaintiff of all rates, taxes, and other outgoings whatsoever, Parliamentary, parochial, or otherwise, now or hereafter to be taxed, rated, or charged upon the holding, or any part thereof, or on the defendant or plaintiff in respect thereof (excepting those covenanted to be paid by the defendant). These covenants, it was contended, conclusively relieved the defendant of any liability to pay the plaintiffs' claim.

Judge WHIGHAM delivered the following judgment: -I took time to consider the judgment to be given in this case, in hopes that in the interval to satisfy the executors of Mr. Green as to the £10 48. 4d. in repayment since last court day I might hear that some arrangement had been made of the unexpended proportion of poor rate. I intimated that it seemed to me clear that the executors should have the required return-not, indeed, from the Duke of Bedford as owner of the inheritance of the farm (the Warren Farm, Millbrook), but from the person or persons who might at law be held to have been the actual occupier, or occupiers, of the said farm to the 29th of September, 1885. At the outset of the inquiry (last court day) it was contended that the Duke of Bedford, having accepted a virtual surrender of the remaining interest or term of the executors in the farm, he, the duke, was remitted to his paramount estate as owner in fee, or otherwise, of the inheritance. It was not until the case had been more fully developed that it appeared that there had been an incoming tenant, designate, in Mr. George, who, in fact, had entered, as is customary in such cases on the fallows, in May, 1885, before the ultimate cr final end of the executors' holding the 29th of September, 1885; and immediately thereon Mr. George entered into full, entire, and actual possession of all that Mr. Green, the testator, or his executors, the present plaintiffs, ever held. That being so, there always had been an actual occupier of the farm-the outgoing, and then immediately the incoming, tenant. The Duke of Bedford was never actually or constructively the "terre-tenant," consequently was never liable as occupier. It is the occupier of the land, and no other, who is responsible for the rate assessed on the land for the poor rate. The cases which have been cited by the defendant's counsel are clear on the subject. The authorities on which he relied-viz., The Overseers of St. Werburg, Derby v Hutchinson; Hare v. Churchwardens and Overseers of Putney; and 32 & 33 Vict. c. 41, s. 16-are conclusive. I have now, therefore, to give judgment for the defendant, with taxed costs to the defendant, to be paid by plaintiffs in a fortnight.-COUNSEL, Rolland; Cooper- Wyld.

PURRETT AND GREEN v. THE DUKE OF BEDFORD-Leighton Buzzard County Court, Judge Whigham, 14th October, 11th November. 32 & 33 VICT. c. 41, s. 16-POOR RATE-LANDLORD AND TENANT-OCCUPIER. The plaintiffs, as executors of George Green, claimed £10 4s. 4d., the unexpended proportion of a poor rate made for the Parish of Millbrook, Amphill, Bedfordshire, in respect of the Warren Farm, in their occupation till the 29th of September, 1885, when possession was given to the defendant, who then succeeded them and came into occupation. Counsel for the plaintiffs said that on the 29th of September, 1885, when the plaintiffs gave up possession, the overseers bad then in hand an unexpended balance of £91 198. Warren Farm paid one-ninth part of the whole poor rate of the parish. The plaintiffs now claimed of the defendant, as incoming occupier, a proportionate return of the amount paid by them -viz., £104s. 4d. The plaintiffs contended that the defendant was liable, as he succeeded to the occupation. Secondly, it was the custom of the country that unexpended poor rate was always allowed to the outgoing tenant when the amount of the valuation was paid to him by the landlord; that such valuation was made and the amount thereof was paid by the defendant to the plaintiffs, but the unexpended poor rate now claimed was omitted by an oversight. Counsel for the defendant contended that the defendant never was the occupier-there was an incoming tenant, Mr. George, who worked the fallows from May, 1885, and he was constructively in occupation from May to 29th of September, when he took actual possession; there was no vacant occupancy. The rate was assessed upon the occupier, occupation was the test of liability to pay rate. All the Poor Rates Assessment Acts, from 43 Eliz. c. 2, s. 1, to 45 & 46 Vict. c. 20, fixed the liability upon the occupier; the owner of the fee could not be liable unless in occupation. If the defendant were held to have been in occupation by virtue of the surrender to him on the 29th of September of the remainder of the term by the plaintiffs, section 16 of 32 & 33 Vict. c 41 estopped the plaintiffs from recovering, since it enacted that the overseers shall enter in the rate book the name of the person who succeeds

LAW SOCIETIES.

SOLICITORS BENEVOLENT ASSOCIATION.

The usual monthly meeting of the board of directors of this associa tion was held at the Law Institution, Chancery-lane, London, on Wednesday, the 8th inst., Mr. Henry Roscoe in the chair. The other directors present were Messrs. W. Beriah Brook, Edwin Hedger, Grinham Keen, R. Pidcock (Woolwich), J. Anderson Rose, Sidney Smith, F. T. Veley (Chelmsford), W. M. Walters, F. T Woolbert, and J. T. Scott (secremembers were admitted to the association, and other general business was tary) A sum of £290 was distributed in grants of relief, five new

transacted.

GLOUCESTERSHIRE AND WILTSHIRE INCORPORATED LAW SOCIETY.

The following circular has been issued to the members of this society :CONDITIONS OF SALE-AUCTION FEES.

The committee desire to bring under your notice the following resolu tion which was passed at the last annual general meeting of the Society :"That this society recommends the discontinuance of the practice of charging purchasers with auctioneers' fees at auction sales."

This resolution was adopted after full discussion and atter the attention of the members generally had been called to the subject in the report of the committee issued prior to general meeting, in the following terms:

"The attention of the committee has again been called to the use of conditions of sale imposing on purchasers the payment of auctioneers' fees, and they have given a promise to members of the society to refer to the subject in this report with a view to taking the sense of the general meeting upon it.

"It will be remembered that the society has distinctly discountenanced the use of conditions charging contract fees to purchasers, and that in the reports of the committee adopted in the years 1882 and 1883, resolutions of the Incorporated Law Society and of the practitioners at Gloucester

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