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REVIEWS.

PROLONGATION OF PATENTS.

THE LAW AND PRACTICE RELATING TO THE PROLONGATION OF THE TERM OF LETTERS PATENT FOR INVENTIONS. By JOHN FRANCIS WAGGETT, Barrister-at-Law. Butterworths.

At first sight the subject-matter of this treatise may appear to be hardly sufficiently extensive to justify its being treated separately. Hitherto information on the subject has had to be derived from the few pages which authors of works on patents generally have been able to spare for it. Now we have before us a work of some seventy octavo pages, with a number of appendices, entirely devoted to the subject of prolongation. We think that if this is an innovation it is a good one. The number of persons interested in the working of the patent law, whether as inventors, as patentees, as patent agents, or as patent lawyers, is rapidly increasing from year to year, and one of the most important topics which can possibly have to be considered by them is the question whether an extension of the term of a patent can or cannot be obtained. Moreover, this question stands on a distinctly different footing from any others arising out of the law of patents.

Ever since the first Act of Parliament by which provision was made for extension of the terms of patents that of 1835 - the application for extension has had to be submitted to a tribunal distinct from those before which ordinary actions for infringement and other questions relating to patents have had to be brought; and, in the course of the fifty years which have since elapsed, a whole system of judicial committee practice and procedure has grown up. The object of the present treatise is to set forth this system of practice and procedure. It is written in a clear and attractive style; it gives all the information which an inquirer can reasonably expect to find; and we can have no doubt that it will be regarded as a very acceptable, and withal inexpensive, addition to the already somewhat long list of works on patents. The work is divided into seven chapters, of which the first contains a general introduction to the subject, and those which follow deal with the case for extension, the petition, the accounts, practice and costs, opposition, and the new grant and conditions. Some useful forms are given in an appendix; and we would draw special attention to the very valuable specimen set of accounts, which, if duly studied by intending applicants for extension, together with the excellent remarks on the same subject in the body of the work, may save them from falling into the insidious pitfalls which have already proved fatal to so many.

The table of cases contains a useful epitome of the date, subject, and result of each application recorded, with a list of references, which, however, does not appear in all cases to be quite complete. For instance, the recent case of Re Brandon is cited only from the Patent Office Reports. On the other hand, references are given to such works as Iron and the Engineer, in which alone, indeed, some of the cases are to be found. We are inclined to think that, for facility of reference, it would have been more convenient if the earlier statutes and the Privy Council Rules had been placed in an appendix instead of in the introduction, which need only have contained a brief summary of their provisions; but this may, perhaps, be regarded as a matter of taste, and, in any case, it does not interfere with the value of the work, which must be considerable to all who have to deal with patents.

CORRESPONDENCE.

THE LORDS' ACT (?)

[To the Editor of the Solicitors' Journal.] Sir,--In the case of Burton and others v. Issitt (5 B. & Ald. 267), mention is made of a note delivered to the defendant "for the payment of the sixpences under the Lords' Act." It appears that judgment had been previously obtained against the defendant, and he was in custody, and had obtained a rule nisi for his discharge, on the ground of an informality in the note mentioned. The date of the case is 1821. Can anyone tell me what Act is here referred to as "The Lords' Act?" PRUDENS.

[The Act is apparently 32 Geo. 2, c. 28. See Statute Index, tit. Lords' Act.-ED. S. J.]

On the 11th inst. Mr. Justice Stirling stated, that with reference to the presentation of petitions for the payment of moneys out of court, he should adopt the rule which had been laid down and followed in other branches of the court; and require that the precise words of the will or settlement or other instrument under which the moneys were derived should be set out in inverted commas, so that the attention of the court might be drawn to them, and that this rule would take effect from the commencement of the Hilary Sittings.

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the custody of the defendants from London to Newcastle. fendants paid £2 into court. The plaintiff's servant, at the time of required by the defendants to be signed by all persons sending dogs, delivering the dog to the defendants, signed a printed ticket in the form containing the following condition :-"Notice is hereby given that the company are not and will not be common carriers of dogs, nor will they receive dogs for conveyance, except on the terms that they shall not be responsible for any amount of damages for the loss thereof, or for injury thereto, beyond the sum of £2, unless a higher value be declared at the time of delivery to the company, and a percentage of £5 per cent. paid upon the excess of value beyond the £2 so declared." The sum of 68., the ordinary rate of carriage for a dog from London to Newcastle, was paid, and no declaration of value made. The dog was of the value of £60. The dog was injured at Newcastle, before being delivered to the owner, by a porter negligently running a loaded barrow over its tail. The judge of the Newcastle County Court held that the ticket did not afford a bona fide option to send dogs at reasonable alternative rates; and that, even if there was such option, the charge of £5 per cent. on the excess of value over £2, irrespective of distance, was excessive; and on these grounds he held that the terms of the ticket were unreasonable and bad in law, and gave judgment for the plaintiff for £25. The Divisional Court having reversed this judgment (34 W. R. 457), the plaintiff appealed. The Court of Appeal, having taken time to consider, now delivered judgment, reversing the judgment of the Divisional Court. railway companies were not common carriers of dogs; but that, under THE COURT (Lord ESHER, M.R., LINDLEY and LOPES, L.JJ.) held that section 2 of the Railway and Canal Traffic Act, 1854, they were bound to afford reasonable facilities for the receiving, forwarding, and delivery of traffic (which included animals) upon their railways; and that, under section 7, the companies might make reasonable conditions as to receiving, forwarding, and delivering animals. The condition here did not afford a real alternative to the plaintiff sending the dog at his own risk beyond £2. The condition must be looked at with reference to the public generally, and for all distances, and not with reference to this particular case only; and, when so looked at, the charge appeared so exorbitant that no one would submit to it. The charge was altogether impracticable, and the condition was therefore unreasonable. The plaintiff was entitled to judg ment for the £25.-COUNSEL, J. Lawson Walton and A. A. Baker; Cyril Nelson, Barr, & Nelson. Dodd, SOLICITORS, W. J. Tibley, for Dix & Warlow, Newcastle-upon-Tyne ;

This was an action to recover damages for injuries to a dog whilst in The de

THE INDUS.-C. A. No. 1., 14th December.
COLLISION-COMPULSORY PILOTAGE-BURDEN OF Proof.

This was an appeal from a decision of the President of the Probate, Divorce, and Admiralty Division. It appeared that about midnight on the 20th of June, 1884, the lightship Girdler was lying at anchor with her lights in proper order in the Thames, when she was run down and sunk by the steamship Indus. The Corporation of Trinity House, to whom the lightship belonged, brought an action against the owners of The Indus for the collision, and the defence of compulsory pilotage was set up. The evidence shewed that The Indus was proceeding down stream on the night in question and was under the directions of a Trinity House pilot. The lightship was duly reported, but The Indus kept on her course, heading straight for the lightship, until about half a mile from her, when the pilot gave the order to put the helm hard-a-starboard. The master and second officer were called to prove that this order was obeyed, but admitted that the vessel's course remained unchanged until it was on the point of colliding with The Girdler. It was also proved that two of the crew had in the course of the same evening, while at the helm, not obeyed the pilot's orders, being ignorant and unable to steer. The steering machinery of The Indus was apparently in perfect order, and and the man who was actually steering at the time the collision took had never failed either before or since the accident. The look-out man place were not called. The learned president held that the plaintiffs had failed to make out their case, and without saying whether he considered the pilot in fault, or whether he thought the steering machinery had failed to act, gave judgment for the defendants, with costs.

THE COURT (Lord ESHER, M.R., LINDLEY and LOPES, L.JJ.), now reversed this decision and allowed the appeal. They said that the fact that a ship lying at anchor and with the proper lights was run down by a ship in motion raised a prima facie case of negligence against the latter. That case could be rebutted in two ways, either by shewing that the collision was brought about by inevitable accident, as for instance that some unforeseen accident had happened which had prevented the machinery from acting properly, or by proving that the vessel was at the time under compulsory pilotage. There had been no evidence of any such accident to the machinery, and, in order to set up the defence of compulsory pilotage, it was necessary to shew, not only that the vessel was under the orders of a compulsory pilot, but that the orders given by him were obeyed. They considered that the fact that the vessel's course was not altered after the order to put the helm hard-a-starboard was given was conclusive proof, in the absence of any evidence of defective machinery,

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The plaintiff, Madame Philippe, a milliner in Bond-street, London, during the year 1884 supplied goods to the defendant, Mrs. Ricketts, to the value of £142. The defendant lived in Suffolk, and, on the 28th of March, 1895, the plaintiff wrote to the defendant in Suffolk, saying, "The favour of a cheque within a week will oblige." The defendant, accordingly, on the 6th of April, sent the plaintiff a cheque for the amount by post. The cheque was an open one, payable to the order of the plaintiff. The cheque was stolen in the transit, and the plaintiff never received it, but the defendant's bankers paid it to the thief. In an action to recover the £142 for goods sold and delivered the defendant pleaded payment; and Huddleston, B., who tried the case without a jury, held that the sending the cheque amounted to payment, and gave judgment for the defendant.

THE COURT OF APPEAL affirmed this decision. Lord ESHER, M.R., said that the question was whether the plaintiff's letter was, in effect, a request to the defendant to send the money through the post. An express request was not necessary. The plaintiff in London wrote to the defendant in Suffolk asking for a cheque. Did that letter lead the defendant to suppose, and did she suppose, that she might send the cheque by post She could not be expected to send a messenger with it or to come with it herself. Whatever the plaintiff intended by it, the only reasonable meaning to be attached to it was that she was invited to send the cheque by post. The defendant believed that she was so invited, and, therefore, the posting the letter with the cheque was payment. LINDLEY and LOPES, L.JJ., concurred.-COUNSEL, Addison, Q.C., and C. E. E. Jenkins; Lumley Smith, Q.C., and Percy Gye. SOLICITORS, G. B. B. Norman; G. S. & H. Brandon.

SWINDELL AND ANOTHER v. BULKELEY AND ANOTHERC. A. No. 1, 9th December.

STATUTE OF LIMITATIONS (21 JAC. 1, c. 16), ss. 3, 4-ACTION OF DEBTACTION COMMENCED WITHIN SIX YEARS-DEATH OF DEFENDANT AFTER THE SIX YEARS-RIGHT OF PLAINTIFF TO COMMENCE A NEW ACTION. Sir Richard Bulkeley accepted a bill of exchange for £2,000 dated the 19th of April, 1877, payable six months after date to the order of one Swindell. The bill accordingly fell due on the 22nd of October, 1877, when £1,800 of it was paid. On the 17th of October, 1883, Swindell issued a writ against Sir R. Bulkeley for the balance, £200, and interest, but this writ was never served, nor was any effort made to serve it. On the 27th of January, 1884, Sir R. Bulkeley died, and on the 21st of May, 1884, his will was proved. On the 9th of June Swindell sent in his claim to the executors, the present defendants, but the claim was rejected, and on the 27th of November, 1884, he issued a new writ against them. The defendants pleaded the Statute of Limitations, the cause of action having accrued on the 22nd of October, 1877, and the action not having been commenced until the 27th of November, 1884. In May, 1885, Swindell died, and an order was made allowing Swindell's_executors, the present plaintiffs, to carry on the proceedings. Day, J., who tried the case without a jury, gave judgment for the plaintiffs on the authority of Curlewis v. Lord Mornington (5 W. R. 266, 7 E. & B. 283; in Exchequer Chamber, 6 W. R. 682, 27 L. J. Q. B. 439), holding that, as Swindell had brought an action against Sir R. Bulkeley within the six years, and as Sir R. Bulkeley had died, Swindell could bring a new action against his executors within a reasonable time-that is, within one year from the probate of the will.

THE COURT OF APPEAL affirmed this decision. Lord ESHER, M. R., said that the courts, nearly 200 years ago, in the case of Kinsey v. Heyward (1 Ld. Raym. 432), had decided, by an equitable construction of section 4 of 21 Jac. 1, c. 16, that where a creditor commenced an action against his debtor within the six years, and then the debtor died, the plaintiff might commence a new action against the personal representatives within a reasonable time, and the claim would not be barred, though the second action was not commenced until after the six years had elapsed. That construction having been placed upon the section, it must be taken as if that case were written into the section. That decision had been followed by the courts in many cases-Curlewis v. Lord Mornington (supra); Surgis v. Darrell (7 W. R. 694, 4 H. & N. 622; in Exchequer Chamber, 8 W. R. 653, 6 H. & N. 120). The courts could not now alter that old construction of the statute. Nor had the Common Law Procedure Act, 1852, s. 135, or ord. 17, r. 1 of the Rules of Court, 1883, which provided that an action should not abate by the death of a party if the cause of action survived, taken away that construction, there being now two courses open-either to bring a new action or to continue the proceedings in the former action under ord. 17, r. 4. Further, the writ in the first action not having been served made no difference, because by the issue of the writ the action was commenced. LINDLEY, LJ., concurred. LOPES, L.J., also said that, where an action was commenced within the six years, but failed by the death of the plaintiff, his representative might cor mence a new action within a reasonable time of his death; and, if the defendant died, the plaintiff might commence a new action within a reasonable time of the probate of the will or the grant of administration. This was an alternative

remedy to that provided by ord. 17, r. 4.-COUNSEL, Lumley Smith, Q.C., and Muir Mackenzie; Channell, Q.C., and Jason Smith. SOLICITORS, Oliver | Richards; R. S. Taylor, Son, & Humbert.

Re SHEARWOOD-C. A. No. 2, 15th December, ORDER FOR PRODUCTION OF DOCUMENTS IN LUNACY AT TRIAL OF ACTION. This was an ex parte application for an order for the production, at the trial of an action in the Probate Division, of the original petition and other documents in a lunacy matter, which were at the Lunacy Office.

THE COURT (COTTON, BOWEN, and FRY, L.JJ.), following the precedent of Re Wood (12 W. R. 293, 4 De G. J. & S. 134), made an order that the proper officer should attend at the trial with the documents, and that the applicants should be at liberty to inspect them at the Lunacy Office previously.-COUNSEL, Bargrave Deane. SOLICITORS, Prior, Church, & Co. THE NORTH CENTRAL WAGON CO. . THE MANCHESTER, SHEFFIELD, AND LINCOLNSHIRE RAILWAY CO.-C. A. No. 2, 15th December.

BILL OF SALE-VALIDITY-HIRING AGREEMENT-INVOICE-RECEIPT FOR PURCHASE-MONEYS oF Goons-BILLS OF SALE ACT, 1878, s. 4-BILLS OF SALE ACT, 1882, s. 7.

This was an appeal from a decision of Bacon, V.C. (32 Ch. D. 477, 34 W. R. 430, 30 SOLICITORS' JOURNAL, 337), and an important question was raised with reference to the interpretation section (section 4) of the Bills of Sale Act, 1878, which provides that the expression "bill of sale' shall include (inter alia) "inventories of goods with receipt thereto attached, or receipts for purchase-moneys of goods, and other assurances of personal chattels, and also powers of attorney, authorities or licences to take possession of personal chattels as security for any debt." In the present case the B. Colliery Co. desired to raise £1,000, and they agreed to sell 100 railway wagons to the plaintiff company for £1,000, it being also agreed that the plaintiffs should let the wagons to the B. Co. on a hiring agreement. The hiring agreement was dated the 18th of February, 1884, and by it the B. Co. agreed to hire from the plaintiffs 100 railway coal wagons for three years, at a yearly rental of £372 10s., payable quar terly, and to deliver up the wagons at the end of the term unless purchased by them as thereinafter provided; and it was agreed that, when. ever the rent should be in arrear for seven days, it should be lawful for the plaintiffs immediately thereupon to distrain upon and seize the wagons; that if the tenants should not exercise the option of purchasing at the end of the three years, or should part with the possession of the wagons without the plaintiffs' consent, or should suffer the plaintiffs' name plates to be removed, or should become bankrupt, the plaintiffs might seize and remove the wagons, and put an end to the agreement; and that, on payment of all the sums payable for the three years according to the agreement, the tenants should have the option of purchasing the wagons at 1s. per wagon. The wagons had originally belonged to the S. Wagon Co. to whom the B. Co. still owed £257 for the purchase of them. On the 19th of February the plaintiffs, at the request of the B. Co., posted a cheque for £257 to the S. Company, and also a cheque for £743, the balance of the £1,000, to the B. Co. The B. Co. handed to the plaintiffs an invoice, dated the 18th of February, headed with the plaintiffs' name as debtors, "To 100 wagons, Nos. 1 to 100, £1,000; Creditor, February 19, by cheque payable to S. Wagon Co., £257-£743." The S. Co. sent to the plaintiffs a receipt for the £257, which was expressed to be "for redemption of 100 wagons leased to the B. Co." The B. Co sent to the plaintiffs a receipt for the £743, dated the 20th of February, as follows:-"Received of the North Central Wagon Co., cheque, value £743, which is placed to your credit, with thanks." The B. Co. having made default in payment of the quarterly payments of rent, the plaintiffs claimed the wagons as their absolute property. Nine of them were in the possession of the defendant company, who claimed a lien on them for tolls under section 97 of the Railways Clauses Act, 1845, and refused to deliver them up, except on payment of the tolls. The plaintiffs brought this action to compel the defendants to deliver up the wagons. The defendants raised the defence that the plaintiffs had no legal title to the wagons, because the above-stated documents constituted a bill of sale within the meaning of section 4 of the Act of 1878, and that they were void under section 9 of the Act of 1882, as not being expressed in the statutory form. Bacon, V.C., held that the transaction was in substance a loan, and that the hiring agreement, the invoice, and the receipt together constituted a bill of sale, which was void as not being in the statutory form; and alɛo that the defendants were entitled to the lien which they claimed.

THE COURT OF APPEAL (COTTON, BOWEN, and FRY, L JJ.) reversed the decision on the question arising under the Bills of Sale Acts. COTTON, L.J, said that the hiring agreement could not of itself be a bill of sale, but it might be looked at in connection with the other documents to shew the nature of the transaction. The evidence shewed that, on the 18th of February, a meeting took place between the persons who represented the plaintiff company and those who represented the B. Co. and an agreement was then made between the plaintiffs and the B. Co. for the purchase by the former of 100 wagons for £1,000, and this agreement was afterwards recognized by the sending of the two cheques which made up the £1,000. If this had stood alone, there would have been a complete contract between the two companies for the sale and purchase of the wagons. There was nothing to shew that the sending of the invoice was a condition precedent, so that there should be no contract of sale without it. It in no way purported to be a contract of sale. The documents did not, as a matter of construction, purport to be a contract of purchase ard sale. It was not necessary in order that a document should be a bill of sale

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Sons. In September, 1879, the partnership was dissolved by F. S. and
W. S. retiring, and the business was carried on by S. and L. S. Under
the partnership articles S. became bound to purchase the shares of the
retiring partners as they stood in September, 1878, but F. S. and W. S.
having, subsequently to the notice of retirement, acquired further shares in
the capital, it was held in the actions that S. was not bound to purchase
such further shares. Nothing was paid to F. S. and W. S. in respect of
the further shares, but the capital representing them remained in and
formed part of the assets of the business carried on by S. and L. S. In
May, 1881, S. died, and actions were commenced for the administration
of his estate and also for the winding up of the firm of S. & Sons. In
the partnership action the amounts due to F. S. and W. S. in respect of
their shares not included in the purchase by their father at the date of
their retirement from the firm of S. & Sons was ascertained to be £4,500 in
the case of F. S., and £7,200 in the case of W. S. The question was
whether these sums carried interest from the date of the retirement of
F. S. and W. S.
CHITTY, J., said that the rule was laid down by Lord Selborne in
Barfield v. Loughborough (21 W. R. 86, 8 Ch. 1) that în taking the
accounts of a partnership interest after the dissolution will not, in general,
be allowed to the partners on their respective capitals. Such rule, how-
ever, was not applicable to the present case, which fell within the
exceptions stated by Lord Selborne in his judgment. The sums were, in
point of law, due in 1879 to the two retiring partners, and were, there-
fore, improperly retained and used in the business. The result was that
they were used for the purposes, not of the original partnership, but of
a new partnership, and it was right that the new partnership should pay
for their use. The claim was, therefore, allowed.-COUNSEL, Sir Horace
Davey, Q.C., Macnaghten, Q.C., Whitehorne, Q.C., Rigby, Q.C., Romer,
Q.C., Maclean, Q.C., Seward Brice, Q.C., J. G. Laing, Ingham, and Chris-
topher James. SOLICITORS, J. J. Keily; Whites & Co.; James Curtis; Van
Sandau & Co.; Field, Roscoe, & Co.

Re THE HOLLINGWOOD ESTATE CO. (LIM.)-Chitty, J., 15th

December.

RESTORATION ORDER.

that it should pass the legal title to goods; it was sufficient if it passed an equitable interest in them. But, in his lordship's opinion, there was, under the circumstances, no bill of sale as between the plaintiffs and the B. Co. In order that either an invoice or a receipt should constitute a bill of sale it must be "an assurance of personal chattels," unless it came within the subsequent words "authorities or licences to take possession of personal chattels,' as to which there was no question in the present case. If, without the invoice and the receipt, there had been no contract which effectually bound the two parties to the transaction, it would have been an entirely different matter. But the evidence shewed that there was a perfect contract for the purchase and sale of the wagons before either of these two documents was asked for. In Ex parte Odell (10 Ch. D. 76) and Ex parte Cooper (Ib., 313) the Court of Appeal came to the conclusion that, without the documents which they held to be bills of sale, there would have been no transaction at all; and, in Woodgate v. Godfrey (5 Ex. D. 24), Thesiger, L.J., who took part in the decision of Ex parte Cooper, explained that this was the ground of that decision. And, in Woodgate v. Godfrey, Jessel, M.R., said that the principle of the decision in Ex parte Cooper was "that, independently of the document, there was no sale of the goods." And Woodgate v. Godfrey itself decided that, when there was a perfect transaction without the document, it could not be held that it was a bill of sale within the Act. The Act only invalidated bills of sale, and could not affect a title acquired antecedently to the document which was in question. The same view was adopted by the Court of Appeal in Marsden v. Meadows (7 G. B. D. 80), and his lordship adhered to the opinion which he then expressed. It was unnecessary to go into the question whether the transaction was one of loan. BowEN, L.J., said that the Act did not avoid transactions; it only avoided documents as defined in it. If, independently of the document, the rights of the parties to it had been effectually altered or dealt with, at law or in equity, the avoidance of the document could not affect that which stood proprio vigore independently of the document. A long series of cases under the Act of 1854, before Cochrane v. Mathews (10 Ch. D. 80), had decided that receipts, commonly so-called, were not within the Act, on the ground that they were not 66 assurances." In the three cases, Cochrane v. Mathews, Ex parte Odell, and Ex parte Cooper, the courts seemed to have been impressed with the danger of allowing the COMPANIES ACT, 1880, s. 7-COMPANY STRUCK OFF REGISTER AS DefunctBills of Sale Act to be, he would not say evaded, but escaped from, in cases more complicated than an ordinary sale of goods. But in all those cases the ratio decidendi was that certain documents ought to be read together, and that, when they were read together, they amounted to an "assurance" of chattels, and that there was no transaction outside the documents which affected the rights of the parties at law or in equity or amounted to an 66 assurance." The Act of 1878 expressly mentioned "invoices" and "receipts." The draftsman seemed to have set about mending the hole which was supposed to exist in the meshes of the law in a most inefficacious way. In order to sweep in "receipts" he put them into the interpretation clause, before the words, "other assurances of personal chattels" instead of after. If a "receipt" was an 66 assurance of personal chattels," it was struck at by the old Act, and, if it was not, it was not struck at by the new Act. But the words of the Act must be construed in the ordinary way, and it seemed to his lordship that, under the Act of 1878, a "receipt" was not a "bill of sale," unless it was an 66 assurance of personal chattels," or unless it could be brought within the subsequent words as an "authority or licence to take possession of chattels as security for a debt." FRY, L.J., said that he was unable to agree with the view of Bacon, V.C., that the transaction in the present case was a loan. He thought the true nature of the transaction was that which was expressed in the documents, and no other. It was not necessary to decide whether section 9 of the Act of 1882 applied only to transactions relating to the repayment of money lent by the grantor to the grantee. Under the Bills of Sale Act of 1854 the inquiry always was whether the instrument in question was, or was not, an assurance of personal chattels "-i.e., of either the legal title to, or an equitable interest in, the chattels. The Act of 1854 and the later Acts were drawn on the same lines. The Legislature did not say that every transaction relating to any interest in goods should be reduced to writing and should be void if it was not expressed in a particular form, but they confined themselves to dealing with written documents. In all the cases which were decided before the Act of 1878 was passed (except Cochrane v. Mathews), it was held that a receipt for purchase-money was not a bill of sale. Ex parte Odell and Ex parte Cooper, though decided under the Act of 1854, were decided after the passing of the Act of 1878. By that Act the Legislature might have enacted that every receipt for the purchase-money of goods should be a bill of sale, or they might have adopted the decision in Cochrane v. Mathews. They took the latter course, and, by section 4, provided that, where a receipt for purchase-money was an assurance of personal chattels, it should be within the scope of the Act; but otherwise it should not be. The Act of 1878 had no wider scope with regard to receipts for purchase-money than the Act of 1854, though it made the definition clearer.

The question whether the defendant company were entitled to the lien which they claimed under section 97 of the Railways Clauses Act, 1845, was adjourned for further argument.-COUNSEL, Rigby, Q.C., and Phipson Beale; Henn Collins, Q.C., and C. A. Russell. SOLICITORS, Ridsdale & Son; Cunliffes & Davenport.

KEILY v. STEVENS-Chitty, J., 13th December.
PARTNERSHIP-INTEREST AFTER DISSOLUTION.

This was a case raising the question as to the liability of continuing partners to pay interest on the capital of retiring partners which has been left in the business. It appeared that S. and his three sons, F. S., L. S., and W. S., carried on business in partnership under the style of S. &

In this case a petition was presented by contributories under the Com. panies Act, 1880, s. 7, sub-section 5, for the restoration of the company's name to the register of joint stock companies. It appeared that the company was registered in 1875, and in July, 1885, was struck off the register, having failed to reply to notices sent by the registrar pursuant to section 7, sub-sections 1, 2, 3.

CHITTY, J., said that, at the date of the registrar's striking the company off the register, he was of opinion that the company was carrying on business and in operation within section 7 of the Act. He should, therefore, make an order for its restoration, upon the undertaking of the petitioners that the company make proper returns to the registrar. The order would follow the form in Re Financial Corporation (Chadwyck Healey on the Law and Practice of Companies, 2nd ed., p. 665).-COUNSEL, F. B. Palmer; Ingle Joyce. SOLICITORS, Johnson & Weatherall; Solicitor to the Board of Trade.

Re LAMBERT (DECEASED)-Chitty, J., 14th December. EVIDENCE-ADMISSIBILITY - PEDIGREE CASE - DECLARATION IN UNSIGNED

DOCUMENT.

The question in this case was whether the grandfather and grandmother of certain claimants to a fund were or were not married. It appeared that both the parties to the alleged marriage were dead. The grandfather, in 1881, made and duly executed a will, in which he described the claimants' grandmother as his wife. He subsequently made a draft will, which was never signed nor attested, but was admitted to be in his handwriting. In this document he described the claimants' grandmother by her maiden name and as passing as his wife. It was objected that this document could not be received in evidence, the ground of the objection being that there was no instance of a declaration being received as evidence in a pedigree case, if contained in a document which was incomplete for the purposes for which the document was made.

CHITTY, J., said that, in questions of pedigree, any declarations by members of the family were admissible in evidence for what they were worth. The form of the evidence affected, not its admissibility, but its weight. It might be that the question now raised had never been raised before, but, if that were so, it was because no one had thought such a question could be usefully raised. However, in the Sussex Peerage case (11 Cl. & F. 85, at p. 98), an entry of the writer's marriage in a Prayer-book belonging to the writer was held to be admissible, although such entry was unsigned. He, too, held that the draft will in question in the present case was admissible.-COUNSEL, Eastwick; Richard Nevill. SOLICITOR, W. H. Lammin. Re THE NORTH BRAZILIAN SUGAR FACTORIES (LIM.) — Chitty, J., 14th December. COMPANY-WINDING UP-DISMISSAL OF PETITION ON APPLICATION OF PETITIONER-COSTS OF SHAREHOLDERS AND CREDITORS APPEARING.

In this case a shareholder, having presented a petition for winding up the company, applied at the hearing for an order that the petition be dismissed, with costs. Shareholders who appeared separately asked for separate sets of costs, and creditors appearing separately also asked for separate sets of costs.

CHITTY, J., said that he should allow separate sets of costs as he knew nothing of the merits. All that he knew was that the shareholders and

creditors had appeared, as they had a right to do, in response to the statutory advertisements of the presentation of the petition. It was, therefore, wholly immaterial whether they appeared for the sake of supporting or for the sake of opposing the petition. Of that he knew nothing. The rule that there should be one set of costs only applied to cases where the costs came out of the assets of the company.COUNSEL, Macnaghten, Q.C.; Romer, Q.C.; E. Ford; Grosvenor Woods; The Hon. R. C. Grosvenor; A. N. Cumming; C. C. M. Dale, and G. T. Millar. SOLICITORS, G. B. Bathurst Norman; Ashurst, Morris, Crisp, & Co; Markby, Stewart, & Co.; Clarence Harcourt; Jackson & Co.

SHEPHEARD v. SMITH-Chitty, J., 10th December.
PRACTICE-FORECLOSURE ABSOLUTE-DISCHARGE OF RECEIVER.

In this case the plaintiffs moved for foreclosure absolute and discharge of a receiver of the mortgaged property without passing his accounts. It appeared that the receiver was one of the plaintiffs, and had been appointed by consent of the plaintiffs and defendant, and without salary or remuneration, and that he had received some £464 from the property and expended on it some £600, leaving a balance due to himn.

CHITTY, J., made an order as asked.-COUNSEL, W. E. Lemon. SOLICITORS, Shepheards.

Ex parte THE HABERDASHER'S CO.-Chitty, J., 11th December. PRACTICE-PAYMENT OUT-LANDS CLAUSES ACT, 1845-PERSONS ABSOLUTELY ENTITLED.

In this case a petition was presented by the governors of the Haberdasher's Co. for payment out to them of £1,000 paid into court by a railway company for land belonging to the Haberdasher's Co. taken under the Lands Clauses Act, 1845. It appeared that the governors had expended £1,000 out of the income of their company in aid of the development of a building estate of which the lands taken formed part. Such expenditure had been sanctioned by the Charity Commissioners as payment out of capital, but, whilst approving of the present petition, they declined to give any express assent, on the ground that the money was under the control of the court. CHITTY, J., said that under the circumstances he held that the petitioners were entitled to have the money paid out to them as persons absolutely entitled," and made the order as payed.-COUNSEL, Whitaker. SOLICITOR, O. C. T. Eagleton.

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Re BLAINE'S TRUST-North, J., 11th December. TRUSTEE OF STOCK OUT OF JURISDICTION-VESTING RIGHT TO TRANSFER"PERSON WHOM COURT MAY APPOINT"-TRUSTEE ACT, 1850, s. 22. In this case a question arose as to the construction of section 22 of the Trustee Act, 1850, which provides that, "when any person or persons shall be jointly entitled with any person out of the jurisdiction of the Court of Chancery to any stock upon any trust, it shall be lawful for the said court to make an order vesting the right to either in such person or persons so jointly entitled as aforesaid, or in such last-mentioned person or persons together with any person or persons the said court may appoint." In the present case there were two trustees of a sum of stock. One of them absconded, and was, in 1881, adjudicated a bankrupt, and he had ever since remained abroad. A new trustee was appointed in his place by the person who was entitled under the provisions of the trust deed to make the appointment, and the cestuis que trustent presented a petition, asking that the right to transfer the stock might be ordered to vest in the continuing trustee, in order that he might then transfer the stock into the joint names of himself and the new trustee. NORTH, J., thought that the words-" any person or persons the said court may appoint"-in section 22 meant appoint, not as trustee or trustees, but for the purpose of vesting the right to transfer, and that the proper course was to vest the right to transfer the stock in the continuing trustee and the new trustee.

The petition had been served only on the continuing trustee, but NORTH, J., said that it must be served also on the new trustee.-COUNSEL, A. Young; Tremlett. SOLICITORS, Kearsey, Hawes, & Walsh.

Re PILSEN JOEL AND GENERAL ELECTRIC LIGHT CO.-North, J., 11th December.

of a company's assets, and the company were allowed to reduce their paidup capital by the amount of the depreciation, they would be able, when the assets recovered their value, to divide the amount of the improvement among the shareholders as profit, and thus indirectly affect the rights of the creditors. The petition was ordered to stand over for a week, and a further affidavit by the chairman was then produced, in which he said that a valuation of the company's assets had been made for the purposes of their last report, and this valuation shewed that the sum of £22,878 had been lost, a large part of which was attributable to depreciation of the value of the company's patents, and since the date of that valuation a further sum, amounting to at least the balance of the £28,175, had been lost, or was unrepresented by available assets, owing to further deprecia. tion in the value of some of the company's patents, by reason of the company being forced to discontinue the manufacture of incandescent lamps under those patents. firming the resolution, though he said that he should have felt great NORTH, J., considered this evidence sufficient to justify him in con difficulty in doing so without that evidence.

The company's counsel then asked that the use of the word "reduced," directed that the word "reduced "should be used for one month. He as part of the name of the company, might be dispensed with. NORTH, J., said that, though the court had power to dispense with the use of the word, it ought not to do so unless some good reason was shewn.COUNSEL, Napier Higgins, Q.C., and Rawson. SOLICITORS, Parker, Garrett, & Parker.

Re HARRISON, PARRY v. SPENCER-North, J., 9th December. REAL ESTATE-CONVERSION-CONTRACT FOR SALE OF LAND BY TESTATOR IN HIS LIFETIME-ADOPTION BY RESIDUARY DEVISEE AFTER TESTATOR'S DEATH.

The question in this case was whether a piece of land, which a testator had in his lifetime contracted by parol to sell to P., was, after his death, to be treated as real estate, and therefore as passing under a residuary devise, or was to be treated as converted into personal estate, by virtue of the testator's parol contract, though it was not a contract which could have been enforced by reason of the Statute of Frauds. The plaintiff was the residuary devisee and the administrator with the will annexed. After the testator's death the plaintiff sold and conveyed the plot of land in question to P. by a contract in writing, which provided that the purchase-money was to be paid as follows-"namely, the sum of £50 having been paid to the vendor's devisor by way of deposit on the 5th of August, whether the plaintiff had adopted the testator's contract, and there had, 1880, and the residue on the 12th of April next." The question was therefore, been a conversion in the testator's lifetime. In Frayne v. Taylor (12 W. R. 287), where an heir had adopted a parol contract for the sale of land made by his ancestor, and in the conveyance by him there was a recital that he had adopted that contract, Kindersley, V.C., held that there had been a conversion of the land into personal estate during the intestate's lifetime.

NORTH, J., held that there was no evidence in the plaintiff's contract of any intention on his part to adopt the testator's parol contract. His lordship thought that the plaintiff's contract was expressed exactly in the way it would have been if it had been intended that there should be a new contract, when no contract had been entered into before the testator's death. It was true that there was a reference to the £50 paid to the testator as a deposit. But there was nothing on the face of the contract to shew what deposit was paid, or what the purchase-money was, or, on the construction of the instrument, who the parties were. His lordship thought that, if it had been intended to carry out the old contract, it would have been referred to in a different way. He thought that there was a new contract and a conversion of the land into personalty only after the death of the testator.-COUNSEL, Cozens-Hardy, Q.C., and Swinfen Eady; Cookson, Q.C., and Dauney; Eve; Buckmaster. SOLICITORS, Field, Roscoe, & Co.; Kingsford, Dorman, & Co.; Saxelby & Faulkner.

BREWSTER v. PRIOR-Kekewich, J., 13th December. EXECUTOR-ADMISSION OF ASSETS-ITEM IN RESIDUARY ACCOUNTDECLARATION OF TRUST.

COMPANY-REDUCTION OF CAPITAL-CANCELLATION OF PAID-UP CAPITAL"CAPITAL LOST OR UNREPRESENTED BY AVAILABLE ASSETS "CONFIRMA- bility of evidence to shew the incorrectness of the account in question. "REDUCED"-COMPANIES

TION BY COURT-EVIDENCE-USE OF WORD
ACT, 1877, ss. 3, 4.

A question arose in this case as to the evidence which should be adduced to justify the court in confirming resolutions passed by a company for the reduction of its capital by the cancellation of paid-up capital, on the ground that the capital which it was proposed to cancel has been lost or was 66 unrepresented by available assets." The company had passed a resolution to reduce its capital, by cancelling paid-up capital to the amount of £28,175. The petition for the confirmation of the reduction by the court stated that capital to that extent had, previously to the passing of the resolution, been lost or was unrepresented by available assets. The only evidence adduced in the first instance was an affidavit by the chairman of the company, to the effect that the statements in the petition were true. North, J., thought that this evidence was not sufficient proof of the loss of capital. It was urged that the interests of the creditors of the company could not be affected by the reduction, because the liability of the shareholders in respect of unpaid calls would not be altered. But North, J., said that, if there were only a temporary depreciation of the value

This case raised the question of the legal effect, as regards the liability of an executor, of a statement in a residuary account that a certain sum had been retained to pay an outstanding legacy, and of the admissiOne T. G. died in April, 1863, having by his will bequeathed to the plaintiff, William Glover, after the death of his widow, a legacy of £500. He appointed his wife, the plaintiff, W. Glover, and the defendant, James Prior, executrix and executors thereof. They all proved. W. Glover married the plaintiff, Fanny Glover, in 1869, on which occasion a settlement was executed, dated June 15, 1869, by which the legacy of £500 was assigned to the defendant and the other plaintiff, Sidney Brewster, upon trust to pay the income to Fanny Glover, with divers other trusts over. James Prior, the defendant, was a solicitor, and was the acting executor under the will, and acted for all parties in the preparation of the settlement. The testator's widow died in 1875, when the legacy became payable; and on July 10, 1875, a residuary account of the testator's estate was prepared by James Prior, and signed by him and William Glover. Under the heading "Deductions from Residue" occurred this item, "Retained to pay outstanding legacies-to William Glover, £500." The defendant from the widow's death till Christmas, 1884, regularly paid the plaintiff, Fanny Glover, interest on the sum of £500 at the rate of £5 per cent. until August 12, 1885, when he wrote to her alleging that the testator did not leave sufficient assets to

pay the legacy. A declaration was claimed that the defendant was liable to pay the sum of £500, with interest thereon. It was urged for the plaintiff that there had been admissions on the part of the defendant such as to render him liable, and that, whether there had been a mistake in the residuary account or not, he ought not to be allowed to explain it, and should be declared a trustee for the plaintiff. For the defendant it was urged that au admission of assets always is susceptible of explanation, and that evidence ought to be admitted to shew that an error had been made in the accounts.

authority had omitted to proceed to recover the expenses before the magis trates: Corporation of Sunderland v. Alcock (30 W. R. 655), Tottenham Local Board v. Rowell (29 W. R. 36, 15 Ch. D. 378), Corporation of Birmingham v. Baker (17 Ch. D. 782). The corporation, after the decision of the magistrates, had recognized that the apportionment was invalid, and directed a new apportionment, omitting the charge for the sewer. It was argued that this could not properly be done, as new plans, sections, and estimates had not been deposited. But Cook v. Ipswich Board (19 W. R. 1079, 6 Q. B. 451) shewed that these matters were not conditions precedent. That case and Shanklin Local Board v. Millar (29 W. R. 63, 5 C. P. D. 272) and Wake v. Corporation of Sheffield (12 Q. B. D. 142), shewed that the plaintiffs were justified in making the second apportionment. MANISTY, J., said the substance of the case was that the original notice, though erroneous, amount on the first apportionment. They had, however, treated that as was not void. The corporation might have proceeded for the smaller void, and it was clear that they had power to make a second apportionment; and section 257 enacted that until recovery the amount should be a charge upon the premises. He differed however from Huddleston, B., in thinking that the provisions as to depositing plans, sections, and estimates were merely directory; they were conditions precedent.-COUNSEL, Ambrose, Q.C., and Heywood; Taylor, Q.C., and Sutton. SOLICITORS, R. Freer Austin, for Talbot, Manchester; Gregory, Rowcliffes, & Co.

Q. B. Div., 14th December.

ATTACHMENT OF DEBTS-RIGHT OF ASSIGNEE OF JUDGMENT DEBT TO
GARNISHEE ORDER.

KEKEWICH, J., said in this case one of the two trustees of the marriage settlement of June 15, 1869, together with one of the beneficiaries, sued the other trustee, who was the executor of the will of T. G., deceased, for £500, without asking for any account of the testator's estate. The case was put on the ground that the defendant was bound by an admission that he held the £500, and that, therefore, no account was necessary. The case was apparently based on an admission of assets The doctrine of admission of assets came to this, that the executor, having paid interest on a legacy or done other acts from which the reasonable and inevitable inference was that he had money sufficient to pay the legacy, could not be heard to deny assets unless strong explanation was brought forward that he had not the money. It might be a matter of evidence or of inference, and where the executor could shew shat the whole case was not before the court and that the inference was not the true inference, he was allowed to bring forward evidence and his admission was susceptible of explanation. GOODMAN v. ROBINSON; BROWN, JANSON, & CO. (Garnishees)— It would, however, require cogent evidence in this case to bring the court to the conclusion that a mistake had been made. Besides the original residuary account on the testator's death there had been a settlement, and the executor has paid interest as from an investment, and he had over and over again alluded to the legacy as paid. Therefore it would require very cogent evidence that there was a satisfactory explanation. The case went further than that; the residuary account was passed twice, the second time being on the death of the widow, and the two surviving executors carried in a final residuary account, in which they stated :"Retained to pay outstanding legacies-to William Glover, £500." It was urged this was a mere statement of account, and that if the items were wrong there was no reason why the executor should be held liable; the contention, in fact, was that the word "retained" did not mean "retained" to meet any particular legacy. It would be very dangerous to allow executors to say this. The case of a specific legacy in which the property passed on the executor's assent had been put as an illustration. If once the property passed in equity the executor could not get it back. When the executor says, "I have retained £500," it would be dangerous to allow him to go behind that and say otherwise. He could not be allowed to go behind it by giving evidence now; it was, in fact, a declaration of trust. [His lordship then adverted to the correspondence. coming to the conclusion that the other executor was not jointly liable.] The defendant must pay the £500, with interest at £4 per cent., and the costs of the action.-COUNSEL, Barber, Q.C., and Underhill; Warmington, Q C., and W. D. Rawlins. SOLICITORS, Wainwright & Baillie, for Gould & Elcock; J. & W. Maude

In this case the question arose whether the assignee of a judgment debt is entitled to a garnishee order. Pollock, B., at chambers, discharged the order nisi, holding that R. S. C., 1883, XLV., 1, did not apply to such a case, but only to that of a person who, in the words of the rule, has "obtained" the judgment. The assignee of the debt appealed.

THE COURT (HUDDLESTON, B., and MANISTY, J.), allowed the appeal. HUDDLESTON, B., said that it was necessary to read the Judicature Act, 1873, s. 25, sub-section 6, in connection with the rules. That section gave and the rules had been framed to carry out that provision. There was no the same rights and remedies to the assignee of a debt as his assignor had, necessity in the case of this order to construe the words strictly as if it belonged to the assignee of a judgment debt, the discovery in aid of were a penal enactment. Unless the right to issue garnishee proceedings execution to which he was undoubtedly entitled would be of little use, MANISTY, J., concurred.-COUNSEL, Dickens; A. T. Lawrance. SOLICITORS

Spyer & Son; P. G. Robinson.

EDWARDS v. STEPHENS-Q: B. Div., 10th December. MORTGAGOR AND MORTGAGEE-RIGHT TO POSSESSION-INTERIM INJUNCTION. This was an application for an interim injunction to restrain the defendant from taking possession or remaining in possession of a house and

CORPORATION OF MANCHESTER v. HAMPSON-Q. B. Div., 9th premises which he had mortgaged to the plaintiff. The mortgagor had

December.

PUBLIC HEALTH ACT, 1875, s. 150-IRREGULAR NOTICE-SECOND APPORTION-
MENT-RES JUDICATA.

In this case the local board of a district, since incorporated in the city of Manchester, served notices on the defendant and others, the owners of land adjoining a new street, under section 150 of the Public Health Act, 1875; which notices included certain work-viz., a sewer- for which the owners could not properly be charged under that section. A summons against the defendant for the recovery of £650, the amount apportioned upon him, was dismissed by the magistrates, though it was not clear on what ground they decided. The local board then made a second ap: portionment, deducting the expense of the sewer, in which the amount charged to the defendant was £579. The plaintiffs brought this action under section 257, to establish a charge on the defendant's property for £579, or, in the alternative, for £650. Grantham, J., nonsuited the plaintiffs on the ground that the matter had been decided by the magistrates, and that the local board had no power to make a second apportionment (30 SOLICITORS' JOURNAL, 504). The plaintiffs appealed. It was argued in support of the appeal, that the board had a right to make a second apportionment; or, if they had not, they could fall back on the first, and though as to that it was res judicata, so far as the summary remedy was concerned, the plaintiffs were entitled to ask that the property be charged with the amount. On behalf of the defendant it was argued that the plaintiffs were not entitled to proceed by action after a summary proceeding had been dismissed. Section 257 only gave a charge where the owner was liable; and here it had been decided that the defendant was not liable. There was no power to make a second apportionment.

THE COURT allowed the appeal, setting aside the nonsuit, and giving judgment in favour of the plaintiffs for a charge upon the premises for the sum of £579. HUDDLESTON, B., said that the question whether the previous adjudication of the magistrates was a defence to the action depended on the identity of the subject-matter of the demand. If the magistrates had decided on the ground that the street was a highway repairable by the inhabitants at large, Reg. v. Hutchings (27 W. R 724, 6 Q. B. D. 300) showed that they had gone beyond their jurisdiction. But even if the ground of their decision was the irregularity in the apportionment, it would not operate as an estoppel to this action. It had been decided that a charge might be established under section 257, even although the local

become bankrupt, but had been allowed by the mortgagee to remain in possession. The mortgagee, being desirous of entering on the premises for the purpose of doing some repairs, gave notice to the mortgagor to vacate. The mortgagor refusing to do so, on the 22nd of September, the use of force, turned the mortgagor out of possession and removed the 1886, the mortgagee, with nine other men, went to the premises, and, by furniture. On the 29th of September, some builders engaged by the mortgagee having taken possession of the premises for the purpose of doing the repairs, the mortgagor effected an entrance and resumed possession. The mortgagee then brought this action for damages and an injunction. The plaintiff obtained an interim injunction ex parte; and dissolve it. The defendant obeyed the order of Grantham, J., by going Grantham, J., refused an application on the part of the defendant to out of possession, and appealed. It was argued in support of the appeal cedent for granting an injunction to quiet a man in a possession obtained that the plaintiff had made a forcible entry, and that there was no preby an illegal act. The defendant was in rightful possession on the 22nd of September, if not by virtue of his own title, at any rate by the leave and license of the plaintiff, and he ought to be allowed to retain possession till the trial of the action. At least, after the defendant had remedy of an injur ction. Edwick v. Hawkes (29 W. R. 913, 18 Ch. D. gone out of possession, the plaintiff was not entitled to the special 199) and Beddall v. Maitland (29 W. R. 484, 17 Ch. D. 174) were referred

to.

THE COURT (CAVE and WILLS, JJ.) dismissed the appeal. The general rule was that where there was a bona fide dispute the party in possession should be kept in possession till the dispute was settled by legal means; and if the other party sought to take possession by force he ought to be restrained. But here the defendant had no right whatever to be in possession, and he could not and did not deny that the plaintiff was entitled to possession. All he could urge was that the plaintiff ought to have obtained possession by peaceable means, and that, as the plaintiff had now got all he sought for, this application ought to be dismissed as vexatious. But if the court were to dissolve the injunction it would be encouraging the defendant to try to resume possession. And it would be monstrous to say that, though he admitted he had no right to possession, and though he admittedly had given up possession, yet he was to be retained in possession till the trial of the action. The order appealed from was right and must be upheld.-COUNSEL, Oswald; Clay. SOLICITORS, George Johnson; Mason & Edwards.

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