But in the second point, it seems strange that advice alone should be removed if we notice that the trial of noblemen by their peers was sufficient, the donor being so much under the undue influence as not first introduced by Magna Charta. Lord COKE states that the to be sure to neglect it. Yet this appears to have been the words legale judicium are simply declaratory of existing rights opinion of the court, although the donor has hardly been restored, (Inst. II., 48), and it is not improbable that such rights referred as sound principle requires, to the position of a free person. only to trials for treasons and felonies. At any rate the peers Perhaps we may overcome the difficulty by observing that she claimed special jurisdiction in these cases and were accustomed to must be capable of exercising her judgment. Although this was exercise it even over persons who were not peers. In order to not expressly laid down, it is clearly implied by the manner in check this a statute of 4 Ed. 3 was passed (Coke's Inst. II., which the latter part of the judgment was devoted to proving it.50) enacting that no peers should be driven to give judgment on We are thus probably left in as satisfactory a position as possible. any others than on their peers according to the law. Undue influence cannot be exactly measured; such a complete whatever way treasons and felonies came to be separated from subjection of the donor as would leave her without any power of other crimes, there is no doubt as to the existence of the distincrational judgment must be regarded as due to extreme mental tion, and, when a rule of law has been so long established, it weakness, and then the court would interfere. But provided she would be very dangerous to upset it by a literal interpretation of is of fair intelligence and able to make a decision, and provided she an ancient statute, without regard to existing usages by which has independent advice, these are enough to balance any ordinary the statute was at the time interpreted or which were suffered amount of undue influence; and if the donor chooses to yield to afterwards to grow up. We might as well go back to the Statute it rather than follow the advice, she does so freely, and there is of Frauds and begin over again the costly process of ascertaining no room for repentance afterwards. Such at least appears to be its meaning. the outcome of the case in question, but a different decision might be arrived at either if the undue influence were shewn to have been exerted with special force, or if the donor had no sufficient intelligence of the transaction to which advice could usefully be addressed. The mere fact of her yielding deliberately to the influence and peremptorily disregarding the advice is no ground for relief. LORD COLERIDGE frankly admitted in the House of Lords on Monday the error he had made in allowing Lord GRAVES to waive his privilege of trial by his peers on the authority of Earl Ferrers' case (Foster's Crown Law, 138). Earl FERRERS was in fact tried by the Lords, and by them condemned to death. The points decided by the judges were of quite a different nature, the chief one being the applicability to his case of a then recent Act "for better preventing the horrid crime of murder" (25 Geo. 2, c. 37), which regulated the management of the prisoner after sentence, and, amongst other things, limited his diet to bread and water. But when Lord COLERIDGE went on to justify his decision on general grounds of law, he met with no sympathy from the House, questioning, as he did, the authorities upon which the law is founded in a manner which he would hardly have allowed in an argument before himself. It may be illogical to reason from the words of Magna Charta, as the courts have done, that a peer in a suit by the Crown can only be tried by his peers, and then to limit this, as the courts have also done, to treason and felony and misprision of the same; but the limitation is well established, and for all lesser crimes a peer is tried by jury. This, however, is quite separate from the general question of a peer's right to waive his privilege, whatever it may be, which is settled by Lord Dacre's case (Sir J. Kelyng, p. 56). This is reported by SPELMAN, from whose manuscript Chief Justice KELYNG took it. Lord DACRE of the North was indicted for treason at the assizes in Cumberland for adhering to the Scots, and was tried by his peers in 1535. "The day before, all the judges assembled to resolve certain questions which might arise upon the said trial, so that if any question should be asked them they might resolve una voce; and one question was whether the prisoner might waive his trial by his peers and be tried by the country, and they all agreed he could not, for the statute of Magna Charta is in the negative: nec super eum ibimus, nisi per legale judicium parium suorum; this is at the King's suit." This decision has passed into the text-books, and has been settled law ever since (Coke's Inst. II., 48; III, 30; Hawkins' Pleas of the Crown, II., 584). Lord COLERIDGE, however, doubted it, because the words of Magna Charta just quoted are perfectly general, and would include trial for all crimes. But nothing is clearer than the fact that they have been restricted to treason and felony. Mr. Justice STEPHEN, in his History of the Criminal Law, recognizes this without a doubt, but says that he is unable to give the history of the limitation (I., 162). It would seem, however, he remarks, to be as old as 1442, for a statute of that year, after reciting that Magna Charta provides that no free man shall be punished except by judgment of his peers, while it says nothing of ladies of great estate, enacts that in trials for treason and felony these latter are to be tried like other peers of the realm. The difficulty may perhaps be with a copy Mr. Justice CHITTY this week upon an originating summons, it IN A CASE upon the construction of a will, which came on before appeared that some of the counsel engaged had not been furnished tained in the agreed statement of facts, which recital was in the third of the will, but had to read from a recital of the will conperson. Mr. Justice CHITTY observed that, in cases on the construction of wills, it was very important for counsel to have a copy of the ipsissima verba of the will. the will itself, so that they might be in a position to state to the court "A WARNING TO MORTGAGEES." THE decision in Newbould v. Smith (33 W. R. 690, 29 Ch. D. 882; on app., 34 W. R. 690, 33 Ch. D. 127) has occasioned much alarm among mortgagees and their advisers, and in a paper, entitled "A Warning to Mortgagees," read before the last annual provincial meeting of the Incorporated Law Society, the decision was described as imperilling "millions of money belonging to thousands of mortgagees." It is considered, and we shall endeavour to shew, that there is no ground for this alarm. No doubt the decision is one that will be followed, but all that it really amounts to is, that it is impossible for a stranger to the contract to keep alive a mortgage by making payments-i.e., gifts to the mortgagee, and that, if the mortgagee is paid his interest by a person who states that he is the agent for the mortgagor, the mortgagee must ascertain that this statement is true, for, if it is not, no payment by the person pretending to be agent will prejudice the mortgagor by keeping the debt alive against him. The first point in Newbouldv. Smith arose on an equitable mortgage made by C. E. Smith to New bould in 1866 by deposit of deeds of houses in Montague-streeet. The debt was therefore a simple contract debt. In July, 1878, C. E. Smith assigned the equity of redemption to B. Smith and S. Smith, "subject to the mortgages and charges thereon." No entries or evidence of payments were found from February, 1866, to September, 1878, in which month there was an entry by Newbould in his books of a receipt by him from C. E. Smith, which entry was objected to as not being evidence. But assuming, as the learned judges did, that this entry was evidence of a payment by C. E. Smith of interest to Newbould, still, long before this entry-namely, in 1872-the personal debt from C. E. Smith by simple contract had been barred, and there only remained a debt secured on the land by deposit of deeds, and the land having ceased to be C. E. Smith's, no payment by him could keep on foot the mortgage against it. The decision turned entirely on the fact that C. E. Smith had ceased to be liable for the debt. Lord Justice Lindley, in his judgment, expressly mentions that the simple contract debt was barred, and that there was no evidence to shew that C. E. Smith made the payment as the agent of the owner of the land. The second point in the case arose on a legal mortgage made in 1863 by C. E. Smith to Alderson of houses in Franklin-street. Interest was paid up to 1866 by Newbould, who up to that time was C. E. Smith's solicitor. Newbould continued to pay the interest after that time, but the Court of Appeal expressly decided (see 33 Ch. D., at foot of p. 131, and the last paragraphs of the judgments of Lindley and Lopes, L.JJ.) that there was no evidence to shew that Newbould was the agent of C. E. Smith in making these payments, so that for all purposes of the Statute of Limitations the payments were never, in fact, made. The case was exactly that put by the Lord Chancellor in Chinnery v. Evans (11 H. L. Cas. 115), that money paid by a stranger to the contract under which it is paid would not have the characteristics and legal quality of payment. It follows that the decision in Newbould v. Smith does not conflict with Chinnery v. Evans, or touch the ordinary case of mort-reversion in fee, and D. was left helpless (Moor, 94). The incongagor and mortgagee when the mortgagor assigns the equity of redemption and afterwards continues to pay interest. He remains liable to pay notwithstanding assignment, and the payment by any person liable keeps alive the debt and security against the land and all other persons liable. This is distinctly decided in Chinnery v. Evans (a decision of the House of Lords, and not to be overruled), besides other cases. But where the payment purports to be made through an agent, the mortgages must take care to see that the professed agent has authority to make the payment. The warning to be drawn is one that we have already given (30 SOLICITORS' JOURNAL, 665)-viz., that a mortgagee who receives his interest, according to the common practice, through a solicitor, must take care that the latter is the agent of the person who ought to pay the interest. It can happen but rarely that a solicitor continues to make payments of interest after his client has parted with the equity of redemption, and therefore the risk of a mortgagee's losing his money under the doctrine of Newbould v. Smith is not very great. COVENANTS RUNNING WITH THE LAND. (I.) COVENANTS IN LEASES (continued). (b.) Benefit of covenants by the lessee. It is curious that, while the common law allowed the assign of the lessee to be substituted for him in bearing the burden of the covenant, it was otherwise when the benefit was sought to be enjoyed by the assign of the lessor. It is doubtful, at least, whether such a transfer was permitted, and, if it was, it was probably only allowed in the case of covenants connected with payment of rent or other services of a similar nature, such as doing suit to the mill of the lessor (Vivyan v. Arthur, 1823, 1 B. & C. 410). As, however, the necessity of the transfer is obvious, an opening occurred for the statute law, and by this the matter is regulated. The question first became pressing at the time of the dissolution of the monasteries. The reversions upon leases granted by the monks fell into the King's hands, and were by him regranted, but the regrant did not carry with it the benefit of the covenants entered into by the lessees. To remedy this the statute 32 Hen. 8, c. 34, was passed. By this provision was made for the case just mentioned, as well as for that of any other assignment of a reversion by the King. But the important point is that the same favour was extended to grantees of reversions generally, whether the grant was made by the King or any other person. In such case the grantee stands in the shoes of the original lessor, and has the same remedy against the lessees and their assigns that he had. For the time, doubtless, this was found to be a very beneficial change, but it was far from complete. In order to profit by it the new reversioner must have been the assign of the old one, and he must also hold the very same reversion. The first difficulty arose in regard to settlements, where it is often hard to see how the successive owners of the reversion are assigns from each other. But the courts had subtleties to remedy this. Thus, where lands were devised to A. for life, remainder to B. for life, with power to A. to make leases, and A. made a lease in favour of C. and then died, the question arose whether B. could sue upon the covenants in the lease. It was held upon the authority of Lord Coke in Whitlock's case (8 Rep. 70) that the lease was really granted by the author of the power, and as B. took directly under him, he was an assign within the statute: Isherwood v. Oldknow (1815, 3 M. & S. 382). But the other difficulty was more formidable. The covenant only ran with the reversion so long as it continued to be the same reversion as that to which it was originally incident. Hence, if this reversion was destroyed, the benefit of the covenants was destroyed with it. This was in practice a serious inconvenience affecting all cases of sub-letting. Thus, out of a lease by A. to B. for one hundred years, B. grants an underlease of twenty years to C. If now B. surrenders his lease to A., the reversion to which C.'s covenants are incident is gone, and though A. is clearly an assignee from B., he has no remedy upon them. In an early case in Moor of this kind A. granted his reversion in fee to D., and D. purchased B.'s reversion upon the underlease. This was merged as above in the venience was chiefly felt when the mesne lessee wished to surrender his lease in order to obtain a new one, and a remedy was applied to this case by 4 Geo. 2, c. 28, s. 6. This, however, was only partial, and the Legislature failed to see that, if the covenants were to run with the reversion at all, they must run with it universally, whatever form it may assume; in other words, the benefit must be available for anyone who has, in fact, the next estate expectant upon the lease in whatever way he has obtained it. Till this point is reached the covenants are not properly incident to the reversion. It is necessary to divide the whole interest in the land simply into the interest in possession and the interest in reversion, and to attach the covenants always to such reversion. Of course this is the simplest case; there may be several successive interests in reversion one behind the other; we are only concerned with the one immediately expectant on the estate or interest of the covenantee in question. Such a general change was effected by 8 & 9 Vict. c. 106, s. 9, but in an artificial and perplexing manner. It was left for the Conveyancing Act, 1881, to go to the root of the matter and make the covenant incident to the reversionary estate simply, however it has arisen. Thus section 10 (1) enacts, in effect, that the benefit of a covenant in a lease, having reference to the subject-matter thereof, and which is binding upon the lessee, shall be annexed to the reversionary estate in the land immediately expectant on the term granted by the lease. An important inroad is made, too, upon the old doctrine of privity of estate as between lessor and lessee. According to this the covenant must be made between two parties, each having a legal interest in the land-the owner of the legal reversion, and the person taking an actual lease. This was a stumbling-block in the way of mortgagors, who, in making leases with the concurrence of the mortgagee, found it impossible to gain the benefit of the covenants for their assigns. Such was the case in Webb v. Russell (1789, 3 T. R. 393). There a mortgagor and mortgagee leased to A., who covenanted for the rent and to repair with the mortgagor and his assigns. The mortgagor assigned his equity of redemption, and it was held that the assign could not sue on the covenants because they were collateral to his interest. Lord Kenyon, C.J., said:"It is not sufficient that a covenant is concerning the land, but in order to make it run with the land there must be a privity of estate between the covenanting parties." So, too, in Pargeter v. Harris (1845, 7 Q. B. 708), where the lease disclosed that the lessor had only an equitable title. Some deviation from the strictness of this doctrine was, indeed, allowed in Wakefield v. Brown (1846, 9 Q. B. 209). There the lessee covenanted with three persons, of whom only one was the legal owner. One having died, the other two-the legal owner and another-were allowed to sue the lessee's assign on the covenant to repair. Lord Denman, C.J., remarked that there was privity of estate between the defendant and one of the plaintiffs at any rate. Accordingly, in Magnay v. Edwards (1853, 13 C. B. 479), this decision was followed, though with reluctance, and a mortgagor and mortgagee of one half of land on lease, and the legal owner of the other half, were allowed to sue the lessee's assign on a covenant to pay the rent. But the question is now set at rest, as regards leases made since 1881, by the section of the Conveyancing Act just quoted. The person entitled to the income-that is, the beneficial owner-is to be at liberty to sue upon the covenants as well as the legal reversioner. Thus, although the clear rule which required privity of estate is gone, the more intelligible principle has been established that the person who really requires the benefit of the covenants is entitled to sue upon them. It is to be noticed, too, that the words in italics in the quotation of the section shew that collateral covenants are ex cluded, a matter which the statute of Hen. 8 had left for judicial construction. (c.) Burden of covenants by the lessor.-It is probable that the assignee of the reversion had to take it with the burden of any covenants incident thereto. Indeed, had the law been otherwise, it would have been easy for a lessor to have got rid of covenants which proved to be too onerous. But, however that may be, the statutes that have decided when the benefit of the lessee's covenants shall run with the reversion have done the same for the burden of the lessor's. Thus the statute 32 Hen. 8, c. 34, s. 2, gives the lessee and his assigns the same remedy against grantees of the reversion as he or they would have had against the original lessor. In the same way the Conveyancing Act, 1881, deals with the subject, though in terms suited to the extended powers of limited owners. Thus a limited owner can, in strictness, only enter into contracts which will bind his own limited reversion, but by various modern statutes he is able to do more than this and bind the reversion of those who succeed him. Hence it is enacted (Conveyancing Act, 1881, s. 11 (1)) that the burden of a lessor's covenant, made with reference to the subject-matter of the lease, shall be annexed to the reversionary estate immediately expectant on the term granted by the lease, so far, that is, as the lessor has power to bind such reversionary estate. And to make the matter clearer, it is provided that the covenant may be enforced against any person for the time being entitled to the reversionary estate. Thus the same person who takes the benefit of the lessee's covenants has to bear the burden of the original lessor's. (d.) Benefit of covenants by the lessor.-It appears that the benefit of the lessor's covenants runs with the land in favour of the assigns of the lessee. This may be gathered from the fourth and sixth resolutions in Spencer's case. The fourth resolution speaks of the covenant for title implied in the words concessi or demisi and states that as the assign of the lessee takes the fruits of the land in return for the labour and money he expends on it, so, if evicted, he ought to have the same remedy against the lessor as the original lessee; and that the lessor has no reason to complain since it is but holding him to the contract which he himself made. The sixth resolution speaks of a covenant to repair being binding upon assigns of the lessee, and puts it on the ground that the assigns take the benefit of such a covenant when made by the lessor and so should bear the burden of it when made by the lessee. But the matter is made clear by the section of the Conveyancing Act just quoted. It is there enacted that the benefit of a covenant by the lessor, having reference to the subject-matter of the lease, shall belong to the person in whom the term is from time to time vested by conveyance, devolution in law, or otherwise. It will thus be seen that the Conveyancing Act now governs three out of the above four points-viz., both the burden and the benefit of a lessor's covenants and the benefit of a lessee's covenants. But as to the burden of a lessee's covenant, that is still governed by the common law. While many of the recommendations of the Real Property Commissioners have been adopted, the one which proposed to simplify these covenants has not found favour, and the distinctions of Spencer's case still survive to startle lessees and promote litigation. This is the more curious as the progress of the law on the other points has been steady in the right direction, and the Conveyancing Act seems to have placed them on a sound basis. It has been recognized that the covenants affecting the reversion, whether by way of benefit or of burden, are attached, not to any particular person or to any particular estate, but to the reversion as such. They are, properly speaking, real covenants. They may be entered into by any person who has power to bind the reversion, and they may be enforced by or enforced against any person who holds such reversion, and that whether he be entitled to it at law or in equity. The first of these provisions prevents à covenant from being in gross because not entered into with a person having a legal estate in the land, and the second puts the beneficial owner in the position he ought to оссиру, while not exempting the legal owner from the duties, or depriving him of the benefits, of his legal estate. In the succeeding articles we shall treat of covenants other than those contained in leases. Tuesday's Gazette contains an Order in Council, entitled "The Rabies Order of 1887," laying down fresh regulations in regard to animals found to be affected with rabies-more especially dogs. stances: CORRESPONDENCE. THE REMUNERATION ORDER. To the Editor of the Solicitors' Journal.] Sir,-Referring to the cases of Re Wilson and Re Sykes and your comments thereon, I shall be much obliged if you, or your readers, will kindly enlighten me as to my position in the following circumIn an administration action in the Palatine Court an order was made (inter alia) for the sale of the testator's real and leasehold estate. A proposal was carried in by the trustees for the sale of the testator's estate, situate at Penrith, and the registrar, in pursuance thereof, ordered the estates to be put up for sale by auction at an hotel there, and, in the meantime, directed that the conditions of sale (which were long and complicated) should be settled by counsel. As solicitor for the trustees, I attended the sale at Penrith, but, unfortunately, none of the lots sold. I have since negotiated a sale of all the lots to one purchaser for £3,600. To what remuneration am I entitled (the trustees paying the auctioneer's charges), in respect of the abortive sale by auction? Clearly I am not entitled to charge the scale fee for conducting the sale by auction. Can I, then, make out my charges under schedule II., or am I to receive nothing for the preparation of the conditions of sale and attendance at the sale, not having elected to charge under JUVENIS. schedule II. before undertaking the business? Manchester. under clause 2 (c) of the order.-ED. S. J.] [Clearly under schedule II., for business not, in fact, completed, PRODUCTION OF RECEIPT FOR PREMIUM ON INSURANCE. [To the Editor of the Solicitors' Journal.] Sir,-We should like some of your readers to give us their opinion on the following point:-A client of ours is the owner of freehold ground rents; there is a covenant in the ground lease on the part of the lessee to insure and to produce the policy of insurance to the We have for some time been ground landlord when required. collecting the rents of the property; in our notices there is always a foot-note requesting the lessee to produce the last receipt for premium to enable us to see that the insurance covenant is duly performed. This the lessee has for many years neglected to produce, and he has consequently put us to the trouble of writing him several letters requesting him to do so. In consequence of the lessee's persistent inattention to our letters, we at last informed him that we the receipt at once; this having no effect, we prepared and served should be compelled to take stronger measures unless he produced him with a notice under the Conveyancing Act, stating the breaches of covenant he had committed, and requiring him to remedy the same and to make compensation for the breach. The notice had the effect of making the lessee produce the policy and last receipt, but he declined to make any compensation. We thereupon prepared a statement of compensation claimed by our client, which was made up of the costs of the notice and of the letters we had written, and sent it to him, but without producing any effect beyond several letters from his solicitors, and ultimately one stating that they to us is to commence an action in the High Court for ejectment, as would accept service of any process. Our only remedy now it seems the property is too large for the county court to have jurisdiction, but we are unwilling that our client should commence expensive litigation for so small an amount, and yet, at the same time, we do not feel at all disposed to sit down calmly and take no more notice of the matter. It seems monstrous that the lessee should put us and our client to this expense and trouble, and we are likely to have continual difficulty in making him keep his covenant in future, and we really should be glad if some of your readers could suggest any course by which we could bring the lessee to book without our client incurring the expense of instituting an action for ejectment. January 27. P. & V. The general meeting of the Irish Solicitors' Benevolent Association was held on Monday. The report announced an increase of annual income life members had been obtained, and that the capital consisted of £3,901 from £348 5s. to £402 3s., that forty new annual members and two new railway debenture stock. The chairman (Mr. William Findlater), in the course of his remarks, said that: "They found the chairman of the English Benevolent Association stating that only one-fifth of the practising solicitors of England were members of the association. But they (the Irish Association) shewed a better record than that, for he found that in Ulster, out of 314 practising solicitors, 72, or nearly one-fourth, were members of the association. Leinster carried the palm. Out of 590 practising solicitors there were 281, or nearly a-half, belonging to this association. Out of 279 in Munster there were 52, or nearly onefifth, and in Connaught, the poorest province of all, there were 15 members out of 68 solicitors, that is nearly one-fourth." BILLS IN PARLIAMENT AFFECTING THE PROFESSION. THE following is a list of some of the more important Bills affecting the profession which will be brought to the notice of Parliament during the present session :- O'HEA. A Bill for the repeal of the solicitor's annual certificate duty.-Mr. A Bill to amend the Settled Land Acts.-Mr. ELTON. A Bill to regulate the imposition of mining royalties in the United Another Bill by Mr. Collings to facilitate the creation of small holdings in land. A Bill to enable certain leaseholders to acquire the freehold of their property by paying compensation or (at the option of the freeholder) a perpetual rent.-Mr. LAWSON. A Bill for the same purpose by COLONEL HUGHES. A Bill to facilitate, on equitable conditions, the conversion of long leasehold tenures of houses in towns into freehold.-SIR JOSEPH MCKENNA. A Bill to amend the Commons Inclosure Acts.-Mr. JAMES. DAWES v. FOUNTAINE-C. A. No. 1, 1st February. POWER TO REFER MATTERS TO A JUDICIAL REFEREE-JUDicature Act, 1873 (36 & 37 VICT. c. 66), s. 57—R. S. C., 1883, APPENDIX K., FORM 33. This was an appeal by the plaintiff from an order of Grove, J., in the action to the following effect:-"That all questions in this action be tried by an official referee, who shall have all the powers of certifying and amending of a judge of the High Court of Justice, and shall direct judgment to be entered and otherwise deal with the whole action pursuant to ord. 36, r. 50." It was admitted that the order had been made under section 57 of the Judicature Act, 1873, and that the plaintiff had not consented to the making of the order. Several questions of law were raised by the defence and rejoinder. The plaintiff now contended that the order was bad, since it referred questions of law to the decision of the official referee. THE COURT (Lord ESHER, M.R., and FRY, L.J.) allowed the appeal. The Master of the Rolls said that the case no doubt involved complicated questions of accounts which could be better tried before an official referee than before a jury, but the judge had no power to refer the cause to him for trial. The questions of fact alone should have been referred. The judge had exceeded his jurisdiction in giving the official referee, by this order, power to hear and determine questions of law. FRY, L.J., in concurring, said that, in his opinion, the error arose from the form in which the order of reference had been drawn up. A proper form for such an order was provided by R. S. C., Appendix K. (No. 33). He regretted to say that the forms given by the rules were habitually disregarded, to of Appeal. The form given provided either for all the questions in the A Bill to alter the law relating to the descent of land by the custom of the serious loss of litigants and to the great inconvenience of the Court primogeniture.-Mr. COURTNEY KENNY. A Bill to amend the law relating to accumulations.-Mr. CozENS-action (when they were all questions of fact) or for the questions of fact HARDY. A Bill to amend the system of private Bill legislation.—Mr. CRAIG CASES OF THE WEEK. HOCKEY v. EVANS AND ANOTHER.-C. A. No. 1, 27th January. This was an action against the defendants, as Sheriff of Middlesex, to recover the sum of £23 7s. 8d. The sheriff seized in execution certain goods which were claimed by the present plaintiff under a bill of sale. The sheriff took out an interpleader summons under ord 57, r. 5, "calling on the claimants to appear and state the nature and particulars of their claims," and the claimant (the present plaintiff) made an affidavit in which he stated that the goods belonged to him under the bill of sale, and that there was due and owing to him, under the said bill of sale, the sum of £750 and interest thereon. The master thereupon made an order that the sheriff should sell the goods, and out of the proceeds of the sale (after deducting the expenses and rent), should pay to the claimant the amount of his claim, and the balance to the execution creditor. The sheriff sold the goods, and the claimant sent him in a further claim for £23 78. Sd. for costs, charges, and expenses incurred by the claimant in relation to the bill of sale, and which was secured by the bill of sale. The sheriff refused to pay him this sum in addition to the £750 and interest, on the ground that it was not claimed in the affidavit, and that the master's order did not warrant him in paying it. The claimant thereupon brought this action to recover that sum, and Lord Esher, M.R., who tried the case without a jury, held, after an inquiry as to the practice in chambers, that the claim was not limited by the affidavit, and gave judgment for the plaintiff. in the action being referred, and the proper course in the present case would be for an order to be drawn up in accordance with that form, referring the questions of fact for the report of the official refereee. That course was the one contemplated both by the section and the form where there were mixed questions of law and fact.-COUNSEL, Blake Odgers; Murphy, Q.C., and Laing. SOLICITORS, Sharpe, Parkers, & Co.; Field, Roscoe, & Co. Re CROSBY, MUNNS v. BURN-C. A. No. 2, 2nd February. action was brought for the administration of an estate on the 5th of THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) granted an extension of the time for appealing. COTTON, L.J., was of opinion that the order appealed from was a final order which required a fourteen days' notice of appeal. In his lordship's opinion the notice could not be amended as asked when the day had passed for which it ought to have been given. It would have been a different matter if the application to amend had been made before that day had passed. But his lordship thought that leave ought to be given to the appellant to give a fresh notice of appeal, notwithstanding the expiration of the twenty-one days allowed for appealing. The court had, no doubt, been very strict as to giving leave to appeal after the expiration of the time. But in the present case there was a notice on which the court might have acted if the respondent had appeared to it. The appellant must give his fresh notice at once, and he must pay all the costs incurred by the respondent by reason of the informal notice. LINDLEY and LOPES, L.JJ., concurred.-COUNSEL, 4. Young; Ince, Q.C., and St. John Clerke. SOLICITORS, John Holmes & Son; Leathley & Phipson. BRAY v. GARDNER-C. A. No. 2, 2nd February. PATENT-AMENDMENT OF SPECIFICATION PENDING ACTION FOR INFRINGEMENT-LEAVE OF COURT TO APPLY TO PATENT OFFICE-TERMS TO BE THE COURT OF APPEAL reversed this judgment. SIR JAMES HANNEN IMPOSED-PATENTS, DESIGNS, AND TRADE-MARKS ACT, 1883, s. 19. said that such a practice in chambers was plainly inconsistent with the rules. Ord. 57, r. 5, did not mean that there should be a vague statement The question in this case was, what terms ought to be imposed on a plainof the "claim," but one giving the necessary information upon which the tiff who has brought an action for the infringement of a patent, on giving master might proceed. The information contained in the affidavit was him liberty, pending the action, to apply for leave to amend by way of the only information before the master as to the claim. He thereupon disclaimer the specification of his patent. Section 19 of the Patents Act made an order directing the sheriff to sell and pay the claimant the of 1883 provides that "in an action for infringement of a patent and in a amount of his "claim." That meant the claim put forward before the proceeding for revocation of a patent the court or a judge may at any master, which only included £750 and interest. The sheriff was time order that the patentee shall, subject to such terms as to costs and accordingly not bound to pay the claimant the £23 7s. 8d. for costs and otherwise as the court or a judge may impose, be at liberty to apply at expenses, and so the action failed. BowEN and FRY, L.JJ., concurred. the Patent Office for leave to amend his specification by way of dis-COUNSEL, Winch; Cock, Q.C., and Rose-Innes. SOLICITORS, Collins &claimer, and may direct that in the meantime the trial or hearing of the Wilkinson; W. W. Burchell. action shall be postponed." In the present case Stirling, J., had given the original petition amended in pursuance of the leave girea by North, Re HUME-C. A. No. 2, 31st January. ANOTHER. There were two petitions in this lunacy relating to two different trust estates, of both of which the lunatic was a trustee. Leave was asked to use an affidavit which had been filed on one of the petitions upon the other. the plaintiff liberty to apply for leave to amend his specification by way of disclaimer, provided that the specification as amended should not be receivable in evidence in the action, and that the costs of, and occasioned by, the application should be the defendant's costs in any event. The costs of the motion to be costs in the action. On behalf of the plaintiff it was urged that these terms were too onerous, and that he was placed in a worse position than if he had discontinued his action, and had commenced a new one after amending his specification. THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed the decision. COTTON, L.J., said that the terms to be imposed were in the discretion of the judge, and no special ground had been shewn for not imposing these terms. Section 19 apparently assumed that there might be cases in which it would be right that the amended specification should be received in evidence in the action, and his lordship did not intend to decide that in no case ought it to be receivable, or that the leave must in LUNACY-EVIDENCE-USING EVIDENCE FILED ON ONE PETITION UPON every case be given only on these terms. Each case must depend on its own circumstances. But, as a general rule, and under ordinary circumstances, these were the proper terms to impose. The plaintiff who made such an application admitted that he had not complied with one of the conditions on which the patent was granted, and that, if the action went on, the defendant might be able to raise the defence that there was no patent on which the action could be maintained. It would be wrong to allow the plaintiff to get rid of that disadvantage as against the defendant. It might be asked, What benefit would the plaintiff gain by amending his specification if he could not use the amended specification in the action? But there might well be other persons than the defendant as against whom it might be most material for the plaintiff to obtain an amendment of his specification, so that he might be able to sue them. It was very desirable to make patentees more careful in framing their specifications, which were often very carelessly drawn. LINDLEY, L.J., said that the appeal had been argued on general principles, and the court did not know what the special circumstances of the case were. But he inferred from what the plaintiff's counsel had said that, if the proposed amendment were not made, the action must fail. That would not always be the case when a plaintiff desired to amend his specification by a disclaimer. The court was not laying down the rule that these terms were to be invariably imposed in every application under section 19. But care must always be taken that injustice was not done to the defendant, though the mode of protecting him might vary in different cases. In the present case his fordship could not say that the terms which had been imposed were too hard. LOPES, L J., concurred.-COUNSEL, Moulton, Q.C., and A. A. Terrell; Aston, Q.C., and Carpmael. SOLICITORS, T. & H. R. Gill; Wilson, Bristows, & Carpmael. Re THE NEW CITY CONSTITUTIONAL CLUB-C. A. No. 2, 29th January. COMPANY-WINDING UP-LANDLORD-DISTRESS FOR RENT-LEAVE OF COURT-COMPANIES ACT, 1862, s. 163. This was an appeal from the refusal by Kay, J., of an application made by a landlord for liberty to distrain for rent on goods in premises occupied by the company notwithstanding an order for the winding up of the company. Section 163 of the Companies Act, 1862, provides that when there is a winding up by the court or under supervision "any attachment, sequestration, distress, or execution put in force against the estate or effects of the company after the commencement of the winding up shall be void to all intents.' The applicant had granted a lease of certain premises at a rent of £4,000 a year to a club, called the City Constitutional Club, and the lease contained a covenant not to assign without the consent of the landlord. That club was wound up, and its undertaking and effects, including the lease of the premises, was taken over by the company. The landlord, though he did not formally consent to an assignment of the lease, was party to an arrangement by which he recognized the purchase which had taken place, and the new company agreed to pay him the rent then in arrear and all the subsequent rent accruing due under the lease in manner therein provided." It has been held that section 163 does not apply to cases of distress by a mere stranger to the company, who has no right to prove for rent in the winding up, and in Ex parte Clemence (23 Ch. D. 154) Fry, J., held that this rule applied in a case in which the landlord had taken from the company who occupied his premises a promissory note for the rent, and who, therefore, had a right of proof in the winding up on that note, though he had no right to prove for the rent as such. In the present case the goods in question were pledged to debenture-holders of the company for more than their value. Kay, J., considered that the case was governed by Ex parte Clemence, though he expressed his dissent from that decision. THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed the decision, on the ground that the goods in question could not at the time the notice of motion was given by the landlord be considered as part of the estate or effects of the company, and that they were not protected from distress by section 163. COTTON, L J., declined to give any opinion as to the correctness of the decision in Ex parte Clemence. LINDLEY, L.J., thought that it was somewhat difficult to reconcile Ex parte Clemence with some of the other cases, but he would not express any opinion on the point.-COUNSEL, Graham Hastings, Q.C., and Micklem; Phipson Beale; Pearson, Q.C., Buckley, Q.O.. and Hatfield Green. SOLICITORS, V. Ind Chamberlain; May, Sykes, & Batten; Davidson & Morriss. Re MARTIN: LAND, BUILDING, INVESTMENT, AND COTTAGE This case (noted ante, p. 217) was brought before the Court of Lunacy on THE COURT (COTTON, LINDLEY, and LOPES, L.JJ.) said that the proper course was to make a short affidavit on the second petition verifying the affidavit filed on the first.-COUNSEL, Farwell. SOLICITORS, Bird & Eldri.lge. WALKER v. CLARKE.-Kay, J., 21st January. PATENT-ACTION TO RESTRAIN THREATS-RIGHT TO INTERLOCUTORY INJUNCTION QUESTION OF INFRINGEMENT OF DEFENDANT'S PATENT BY PLAINTIFF-PATENTS, &C., ACT, 1883 (46 & 47 VICT. c. 57) s. 32. This case raised the question whether in an action brought to restrain a patentee from threatening legal proceedings for infringement the plaintiff can obtain an interlocutory injunction without satisfying the court that patent. Section 32 of the Patents, Desigas, and Trade-Marks Act, 1883, his manufacture does not constitute an infringement of the defendant's enacts that an injunction may be obtained against the continuance of such threats "if the alleged manufacturer to which the threats related such threats." was not, in fact, an infringement of the legal rights of the person making manufacturer of candle-lamps called "Fairy" lamps, and early in 1886 The defendant, under a patent taken out in 1885, was a of obtaining a licence to use the patent, in the course of which he inthe plaintiff entered into negotiation with the defendant for the purpose formed the defendant that he could, under an old and expired patent, make lamps very similar to the defendant's without infringing his patent, and that, if they failed to come to terms, he should do so. The licence was not obtained, and the plaintiff, who traded under the name of John Walsh Walsh, subsequently manufactured and sold lamps called "Glow-worm" lamps, which were very similar to the "Fairy" lamps. On the 17th of November, 1886, the defendant wrote to Mr. Stephenson, a customer of the plaintiff, this letter:-"Dear Sir.-Caution.-Walsh's Glow-worm lamps are an infringement of my patent, and agents are now going though the country to get all the evidence they can to take legal proceedings against the vendors-that being the course decided on by my solicitors." Upon this letter being brought to the notice of the plaintiff, he brought this action, under section 32 of the above Act, to restrain the defendant from threatening legal proceedings in respect of the "Glow-worm lamps, and he now moved for an interlocutory injunction under section 32 of the Act. On behalf of the defendant it was contended, in opposition to the motion, that, assuming the letter to Stephenson amounted to a threat of legal proceedings within section 32, still the plaintiff could not obtain the injunction unless he shewed that his lamps were not an infringement of the defendant's patent. That was the sole question to be considered, for both before and since the Act of 1883 the validity of the defendant's patent could not be called in question or motion for an injunction; the only change made by the Act was that now the question of the bona fides of the person making the threats was immaterial, but the rule which existed before the Act was passed remained-viz., that the plaintiff was bound to shew that he had not infringed the defendant's patent. In support of this contention the cases of Wren v. Wield (4 Q. B. 730), Halsey v. Brotherhood (30 W. R 386, 19 Ch. D. 386), and Kurtz v. Spence (35 W. R. 26, 33 Ch. D. 579) were referred to. Further, that it was apparent here that the plaintiff's lamps were an infringement of the defendant's patent which he was entitled to protect. It was open to the plaintiff either to establish that his lamps were no infringement, or to take proceeding to get the defendant's patent revoked. KAY, J., in the course of his judgment, said that he declined to accede to the argument that the court was absolutely powerless to grant an interlocutory injunction in a case like this, unless it were proved at the time the injunction was applied for that there had been actually no infringement. In his view in an action like this, where at the trial an injunction and damages might be granted, the question to be considered upon an interlocutory motion was, not whether there had or had not been an infringement, but whether, looking at the circumstances, the court thought that on the balance of convenience or inconvenience the acts complained of ought to be restrained until the trial. If the rule were as contended for, a case could easily be imagined where a trade or business might be completely destroyed before the trial of the action, and any injunction then granted would be rendered useless and futile. The question of whether or not there had been an infringement was not one to be decided on interlocutory motion, unless upon evidence which was practically_overwhelming, and there was no such evidence in the present case. The point on which he decided the case was that on which the court was always bound to decide applications of this sort-viz., |