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in the same position as he would be if the land was situated in any other part of England and the conveyance was executed before the order was made, so that the land is not affected by the order. This conclusion is somewhat startling, but it appears to be justified by the following considerations. We propose in this article to discuss the effect of such a conveyance.

Caveats. A caveat may, by the amending Act of 1885, s. 3, be registered with respect to any lands "by any person claiming to be entitled to any interest in such lands in favour of any person named therein," and any assurance made while the caveat remains in force by the person giving the caveat in favour of the person in whose favour the caveat is given, his heirs, executors, administrators, or assigns, and duly registered, shall have the same priority as if it was registered at the date on which the caveat was registered.

Lis pendens. It should be borne in mind that the doctrine of lis pendens merely states that, as it is necessary to the administration of justice that the decision of the court in an action should be binding, not only on the litigant parties, but upon those who derive title under them during the action, "pendente lite" every conveyance of the subject-matter of the action made by a litigant during the action is subject to the rights which are enforced in the action in favour of the other litigant. All that is effected by 2 & 3 Vict. c. 11 is to provide that where an action or other proceeding is not registered as a lis pendens a purchaser pendente lite without notice shall not be affected by the doctrine; it follows that a lis pendens does not fall within the definition of "assurance" in the Yorkshire Registries Act, 1883, and accordingly cannot be registered under that Act.

General remarks on registration of writs or orders. The memorial of a writ or order must contain (Yorkshire Registries Act, 1884, s. 6), inter alia, "So much of the order as affects any lands within the Riding, or describes or defines such lands," and it cannot be registered (section 8) "unless an office copy of such order is produced to the registrar at the time of such registration." Without discussing the somewhat obscure question in how short a time after an order is made or writ issued it is possible to obtain an office copy, it is evident that, between the making or issuing and the registration of the order or writ, an interval of time will necessarily elapse sufficient to allow a conveyance of the land affected by the order or writ to be executed and registered before it is possible to register the order or writ. The terms of the provisions as to caveats do not seem to be applicable to the case of orders or writs; but, even if they are, one litigant would hardly ever give a caveat in favour of another.

Three questions present themselves

(1) What is the effect of a conveyance executed after the making of the order or issue of the writ but registered before the order or writ is registered, and before it is carried into effect?

(2) What is the effect of a conveyance executed or registered after the order or writ has been carried into effect but not registered?

(3) What is the effect of an order made after a contract for sale but registered before the conveyance is registered?

The answer to these questions may depend upon the nature of

the order or writ.

In discussing them it is important to remember that the existing Yorkshire Registries Act is merely substituted for the old Acts, the object of which was to render purchasers and mortgagees secure, not to assist execution creditors or persons claiming under a bankruptcy. It must also be remembered that the word "priority" is generally used in legal documents to mean priority of effect not of date, though it may be used in the latter meaning; it is probable, therefore, that the words in the Yorkshire Registries Act of 1884, s. 14-"shall have priority according to the date of the registration thereof, and not according to the date of such assurances or of the execution thereof "-merely mean that, where registration is necessary, then, for the purposes of determining the priorities of effect inter se, assurances, if registered, must be taken to be executed at the date of registration; and that the Act does not defeat the operation of executions completed but not registered.

Orders made in an action for the recovery of land.-An order of this nature produces its effect as soon as it is pronounced, except, possibly, in a few cases where some further proceeding-such as registration pursuant to an Act of Parliament-is necessary. It is

probable that priority will be obtained by a subsequent purchaser from the defendant if such purchaser registers his assurance in Yorkshire before the order is registered. But the plaintiff would, in most cases, have registered the action as a lis pendens in the Central Office; and, if this be done, the purchaser appears to gain no priority by prior registration in Yorkshire.

It should be observed that even if, owing to the action not having been registered as a lis pendens, the purchaser obtains priority as against the order by the contract being made before the order is made or by the conveyance to him being registered before the order is registered, yet the person obtaining the order will generally be able to maintain a fresh action against the purchaser.

Probably most of the above remarks as to orders in actions for the recovery of land apply to orders made in all actions directly affecting specific property.

Judgment.-A judgment (since 27 & 28 Vict. c. 112, ante, p. 37) does not affect land till the land has been actually delivered in execution. As we shall point out, there are certain difficulties in the construction of the Yorkshire Registries Act as applied to writs of execution, and therefore it may still sometimes be desirable, when land has been actually delivered in execution, to register the judgment in Yorkshire. The charge under 1 & 2 Vict. c. 13 (ante, p. 21) cannot now arise till the land is delivered in execution; but there appears no reason against registering the judgment in Yorkshire before execution, and it is possible that, on delivery in execution being made, and on the writ being registered under 27 & 28 Vict. c. 112, the charge will have priority over the rights of a purchaser whose conveyance was made after the delivery in execution, but was registered before the registration of the writ in Yorkshire. It must, however, be remembered that, if the contract is made before the delivery in execution, the purchaser is safe, as the contract cannot be registered.

But, it may be asked, what is the effect of the existence of a contract entered into before the registration of a writ or order? We have seen (ante, pp. 9, 11, 23, 24, 33, 39) that the general principle of law is that a judgment creditor can take only that which belongs to his debtor, and that his right is subject to that of purchasers or incumbrancers who became such before the point of time at which, as against them, the judgment creditor's right accrued. The question, therefore, is, whether that principle is to be considered as applicable to cases within the Yorkshire Registries Act, 1884, or whether that Act overrides it and makes the rights as between the contract and the order depend entirely upon the priority of registration, although, as we have remarked, it seems impossible to register a contract. It will surely be repugnant to justice that the Act should expose purchasers, for whose protection it was framed, to a new danger without providing any means whereby they may guard themselves against it. It is very difficult to escape from the words of the Act which make the priorities depend upon registration; but it cannot be said that a purchaser under a contract is left defenceless because he cannot register the contract; for he may avail himself of the provision as to caveats. In practice, therefore, unless and until it is decided that after contract a purchaser of lands in Yorkshire is safe, as he would be in the case of other lands, the vendor should be required to give a caveat in favour of the purchaser, and in a private contract a stipulation binding him to do so should be inserted.

WANTED, THE LEGAL ESTATE. "EVERY conveyance of an equitable interest," said Lord Westbury in Phillips v. Phillips (8 Jur. N. S. 145), "is an innocent conveyance." The law is not always happy in its choice of words, and it is curious that it should apply a term like this, directly implying moral qualities, to a transaction which is so frequently attended by disaster to those who are really the innocent parties. It is curious, too, how the law strains every nerve to ascribe an equitable interest to one party who requires its protection and then immediately uses this as an engine to defeat another party equally deserving. We have indeed only to get the legal estate safely out of the way and there is left a clear field for equities to play hide and seek in, with results more favourable to litigation perhaps than to any other interest involved. An excellent.

example of this was afforded by the recent case of In re Vernon, Ewens, & Co. (35 W. R. 225), while the opposite effect produced by the timely appearance of the legal estate is illustrated by Easton v. London Joint Stock Bank (35 W. R. 220).

The

The former was a case arising out of the bankruptcy of Messrs. Parker, solicitors. A client had intrusted them with £11,000 to invest. This they did by crediting him with that amount in money already out on mortgage. mortgage was exchanged for a fresh one, and Messrs. Parker subsequently purchased the equity of redemption in this last. The result of this was that, although the client never had any mortgage directly to himself, yet Messrs. Parker became trustees for him of their first mortgage to the extent of the money advanced, and the equitable interest which he thus acquired was transferred to the new mortgage and survived the purchase of the equity of redemption. As the legal estate was outstanding, the Messrs. Parker thus had an equitable estate subject to the equity of their client. This estate they proceeded to transfer to a company which they themselves were instrumental in forming, and when, upon their bankruptcy, the client's administratrix sought to enforce his equity against the land, the claim was resisted by the company on the plea that they were purchasers for value without notice. Considering the manner in which the Messrs. Parker had been involved in bringing out the company it seems very doubtful whether the absence of notice could have been established; but as the legal estate had not been got in, the question did not really arise. It is curious that the importance attached to the legal estate should appear to be on the increase. In Penny v. Watts (2 De G. & Sm. 501) it was considered by Knight-Bruce, V.C., that purchase for valuable consideration without notice would be a good defence even in its absence, and Lord St. Leonards quotes this with approval while making a violent attack on Lord Westbury's judgment in Phillips v. Phillips referred to above (V. & P., 14th ed., p. 796). The matter, however, has now passed out of the stage of controversy, and in the case we are considering not a doubt was cast upon it. "The case of the claimant has been put upon another ground, which is a proper ground, that the company not having obtained the legal estate, the claim of 'purchasers for value without notice' cannot alone avail them." Such was the opinion of Lord Justice Lindley.

The

It

The only chance, then, for the company was to shew that the prior equity had been in some way forfeited, and at first sight there seemed to be something in favour of such a contention. client had simply handed over his money to the Messrs. Parker, and had then taken no further trouble, leaving it quite possible for them to deal with the resulting investment to the prejudice of third parties. This is not altogether unlike the cases in which a mortgagee parts with the deeds so as to enable the mortgagor to raise fresh money on them (Waldron v. Sloper, 1 Drew. 193), or a vendor with an equitable lien signs a receipt for the unpaid purchase-money and hands it over to someone who is thus enabled to make a good title (Rice v. Rice, 2 W. R. 139, 2 Drew. 73). But in such cases the mortgagee himself actually interferes in the business. In the one under consideration, on the other hand, the owner of the equity placed confidence from the beginning in the Messrs. Parker, who were in the position of trustees toward him, and he subsequently in no way took part in what they did. may be said, of course, that, if he reposes this confidence wrongly, and so puts it in the power of a dishonest man to defraud a third party, he is himself the one who ought to suffer, and on abstract grounds this is probably sound enough. But the system of trusts is fully established in this country and recognized by our law, and to apply such a doctrine would be to level a deadly blow at it. Thus it was said by Turner, L.J., in Cory v. Eyre (1 De G. J. & Sm. 169, 12 W. R. Ch. Dig. 61):-"The very first principle of trusts is, that the cestui que trust places confidence in his trustee, and, if it is to be held that a cestui que trust is to be postponed upon the mere ground that he did not inquire into the acts or conduct of his trustee, that principle would, as it seems to me, be in a great measure, if not wholly, destroyed." Very similar language was used by Lord Cairns in Shropshire Union Railways and Canal Co. v. The Queen (23 W. R. 709, L. R. 7 H. L. 496). It had been contended that, when the absolute beneficial interest was in the cestui que trust, he could no longer leave the conduc of affairs to his trustee, however this might be where the interests were partial, and that he was under an obligation to watch the trustee.

Lord Cairns said:-"My lords, that is a very serious proposition. It goes not merely to shares, but it goes to land, and to every other species of property; and it goes to say that, whereas there is a large, well-known, recognized, and admitted system of trusts in this country, that system of trusts is to be cut down and moulded and reduced to this, that it is to be a system applicable only to infants, married women, or persons with limited interests. I find no authority for such a proposition, and I feel satisfied that your lordships will not be disposed to introduce, for the first time, that as a rule of law." Upon the above principles it was clear, then, that the client's equity was superior to that of the subsequent purchaser's, and that in placing implicit confidence in the solicitors nothing had been done to forfeit it. This shews the course of matters in the absence of the legal estate. The other case to which we have referred is equally instrucA. wished to borrow money. To tive as to its presence.

enable him to do so B. executed and handed over to him, inter alia, transfers in blank of certain shares. These B. delivered to a money-lender, C., in exchange for the loan, and C., in his turn, deposited them with other securities with a bank as security for advances to himself. Clearly A.'s intention was that the shares should only be liable for the sums actually advanced to B., but the bank took them on the understanding that they should cover all sums due to them from C. The bank was wise enough to complete it legal title by obtaining a transfer of the shares into the names of trustees. They were thus at liberty to set up against A. the defence of purchasers for value without notice, and the only question was whether they had notice of the purpose for which A. had delivered the shares. Into this it is not necessary for us to go. It was held ultimately that, in the ordinary course of business, the money-lender C. had power to dispose of securities so as to raise loans to himself, although the whole of the loan on any particular security might not go to its owner, and that the bank had no notice of the special manner in which A. had been brought into the transaction.

But in this case, as in the last, the central fact is one inseparable from the present complexities of business. Property is placed by the owner in the hands of another for special purposes, but in such a manner that that other can dispose of it as his own. The injury which he can thus do to innocent parties is to be regarded as unavoidable, and the only means by which a person who has committed the first error of taking an equitable interest can retrieve his position is the old-fashioned tabula in naufragio, the legal estate.

INCOME TAX CASES.

(Blake v. Lord Mayor of London, 35 W. R. 212; Partridge v. Mallandaine, 35 W. R. 276; Pommery v. Apthorpe, 35 W. R. 307.) IN Blake v. Lord Mayor of London the question for decision was the meaning of the words "public school" in the Income Tax Act, 1845 (5 & 6 Vict. c. 35), and whether the City of London School was a "public school" within the meaning of the Act, so as to be exempt from income tax by virtue of section 61, rule 6. There was little to guide the court. The difficulty of putting a definite meaning upon the phrase "public school" may be seen in the attempt at a definition made by the learned judge -"The words 'public schools' are not to be construed here as words of art, but mean schools which are in their nature public." Yet some negative results were reached, which will narrow the issues in any future case of the kind. The expression "public school" in the Income Tax Acts is not limited to schools which are supported by charity funds or endowments; and a school does not cease to be a 66 public school" because the scholars recommended" for pay something or because they have to be " admission. And the City of London School itself may henceforth hold up its head amongst the public schools. The fact that the Commissioners of Income Tax had decided that the school was a "public school" seems to have assisted the learned judge in arriving at his decision of a question which he described as "perhaps rather one of law mixed with fact than of pure law"

We believe it has been the habit of the gentlemen who are known in the racing world as "bookmakers" to consider that their gains, though often large, could escape the meshes of that net of the five include every description of property. They seem to have been schedules which Martin, B., once described as large enough to under the impression that the law looked askance at their vocation, and would not permit the Treasury to lay hands upon their profits, lest it should seem to countenance the means by which they were

earned. The case of Partridge v. Mallandaine has vindicated the language of Martin, B., has dashed the hopes of the bookmakers, while at the same time it has afforded them the satisfaction of knowing that their calling is not an illegal one, and has put an end to the notion that disapproval of the means by which profits are earned will prevent the enforcement by the law of the Treasury's claim to tax those profits. The case is the stronger because we think we discern a difference in the views taken by the learned judges, who nevertheless concurred in their judgment. Denman, J., thought that bookmaking was a "vocation" within the meaning of the Income Tax Acts, and that, even if the vocation were an illegal one, profits derived from it would be taxable, as if a man "carried on a systematic business of receiving stolen goods and made by it £2,000 a year, the Income Tax Commissioners would be right in assessing him thereon." Hawkins, J., holding that the vocation or calling of a professional bookmaker was an honest calling, could not see why his profits In the result of the case of Pommery v. Apthorpe we see the failure of another attempt to evade payment of income tax upon profits made in England on the ground that the business was carried on abroad. The points by which it was attempted to distinguish the present case from Tischler v. Apthorpe (33 W. R. 548) were, that here the principal did not regularly spend some months of the year in this country and personally take orders, and that payments were made to the firm abroad. In other respects the circumstances were similar to those in Tischler v. Apthorpe, and the court held that the cases were practicably undistinguishable.

should not be taxed.

REVIEWS.

ALLOTMENTS.

THE LAW OF ALLOTMENTS. By T. HALL HALL, Barrister-at-Law. Longmans, Green, & Co.

This is a very careful work upon a subject which has grown much in importance of late years. The author gives the whole history of legislation and attempted legislation upon his subject from the tin e of Queen Elizabeth downwards, and points out that a statute of Elizabeth (31 Eliz. c. 7), enacting that no cottage in country districts should be built or maintained "without four acres of ground, at least, assigned to be continually occupied therewith," remained on the Statute Book till 1774, when an Act (15 Geo. 3, c. 32) was passed solely to repeal it. The Act of 1882 is carefully commented on, both in the text and appendix, where it is printed with full intersectional notes, not unsuccessfully attempting to solve its difficulties of construction. Other statutes printed are Sturges Bourne's Act," 59 Geo. 3, c. 12, "Weyland's Act," 2 Will. 4, c. 32, the Inclosure Act, 1845, and the Commons Act, 1876. There is a copious collection of rules for letting allotments, and other forms. There are frequent observations upon the general practice, not only of allotment trustees, but also of private owners and of the Charity Commissioners, in relation to allotments, and much sensible advice is offered to trustees. We are not surprised to read that "where compulsion has been tried against trustees, the whole machinery of the Act of 1882 has broken down." We can cordially recommend the book to all interested in its subject.

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THE LICENSING LAWS.

A MANUAL OF THE LAW CONCERNING THE RETAILING OF INTOXICATING DRINKS. By CHRISTOPHER PAGE DEANE, Solicitor. William Clowes & Sons (Limited).

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Mr. Deane's plan is 'first to marshal in sections all the units of legislation and of case law" upon the subject of licensing " which are susceptible of grouping, and to explain their general effect," and, after doing this, to leave "all the forty surviving Acts, or pieces of Acts, to speak for themselves, with the aid of such few footnotes as may be useful." The first part of the book, which constitutes the treatise, is very carefully written, though there is here and there, perhaps, too much popularity of style, as where we read of a "luckless applicant," and the cross references are too scanty. Mr. Deane, however, has frequently given sensible opinions upon points untouched by cases, and such case law as there is has been carefully collected (with references to all the current reports) and accurately stated. The appendix contains a collection of statutes, with footnotes, but the absence of cross references here also renders the book less useful than it would otherwise have been, especially to readers approaching the difficult subject of licensing for the first time. There is a good table of "offences and penalties." The index is too short, but, considering its brevity, very good.

EMDEN'S ANNUAL DIGEST.

THE COMPLETE ANNUAL DIGEST OF EVERY REPORTED CASE IN ALL

THE COURTS FOR THE YEAR 1886. Edited by ALFRED EMDEN, Esq., Barrister-at-Law. Compiled by HERBERT THOMPSON, ESQ., Barrister-at-Law. William Clowes & Sons (Limited).

The fourth annual issue of this digest calls for a few words of recognition of its value to the practitioner. It contains not merely the reported cases in all the English courts, but also the decisions of reports and a reference to cases of general interest in the American interest to the English lawyer reported in the Irish and Scotch reports and Davis's Supreme Court Reports. There is a table of court, with references to the names of cases upon them and the cases followed, overruled, or specially considered; a table of rules of column of the digest where those cases are to be found; and a similar table of statutes. The arrangement of matter under the principal headings is convenient, and the statements of cases we have examined are accurate. We can speak from frequent use of the preceding issues of this digest to its practical value, and we hope that its success will be commensurate to the labour which has evidently been bestowed upon it.

CORRESPONDENCE.

PRELIMINARY EXAMINATION-DISPENSING ORDERS. [To the Editor of the Solicitors' Journal.] Sir,-May I ask the reason for the existence of this dispensing power? Is it not essential in the interests of the profession and of the public that solicitors should be men of education and gentlemen?

If this is so, everyone seeking to become a solicitor should be obliged, before he enters into articles, to undergo some educational test. Most of us will admit that a man who is unable to pass the Preliminary Examination would be unfit to become a solicitor. Why should men of no social position-men who, not having received a good general education, never could have passed the preliminary or any similar examination-be allowed to avoid this most necessary educational test? Surely these are the cases where it is most obvious that the test should be applied.

H. OUGHTERSON HAYMEN.

CASES OF THE WEEK.

PICKER v. LONDON AND COUNTY BANKING CO. (LIM.)—C. A. No. 1, 7th March.

NEGOTIABLE INSTRUMENTS-BONDS OF FOREIGN STATE. In July, 1883, Zappert opened an account with the defendant company As security for the overdraft he depowhich he subsequently overdrew. sited with the defendants certain Prussian bonds. In 1884 he became been stolen from the plaintiff in the summer of 1883. At the time of the bankrupt and absconded, and on inquiry it was found that the bonds had theft, however, the coupons answering to the bonds had not been taken. but remained in the plaintiff's possession. In an action by the plaintiff for the recovery of the bonds, it was proved that by Prussian law such bonds, without the coupons, were negotiable in Prussia, but it was also in evidence that they were not negotiable, in fact, on either the Prussian or English Stock Exchange without the coupons. A. L. Smith, J., held that, inasmuch as by the custom of the English Stock Exchange such bonds without the coupons did not pass by delivery, they were not negotiable instruments.

way

THE COURT OF APPEAL (Lord ESHER, M. R., and BowEN, and FRY, L.JJ.) now upheld this decision. They said that, even assuming that these bonds were negotiable in Prussia in the fullest possible sense, that in no made them negotiable here. In order to make an instrument negotiable in this country it was necessary that it should either be expressly made negotiable by statute, or a custom must be proved by which it was always treated as a negotiable instrument. Neither of these requirements had been fulfilled, and the mere fact that it was a negotiable instrument in a foreign State created no negotiability in the contemplation of the English law.-COUNSEL, Charles, Q.C., and C. K. Francis; Bigham, Q C., and Herbert Reed. SOLICITORS, Harries, Wilkinson, & Raikes; Goldberg & Langdon.

HULL, BARNSLEY, AND WEST RIDING RAILWAY CO. v. YORKSHIRE AND DERBYSHIRE COAL CO.-C. A. No. 1, 2nd and 4th March.

CARRIERS-UNDUE PREFERENCE-AGREEMENT FOR THROUGH TRAFFIC. In this case the plaintiffs sued for unpaid tolls, and the defendants counter-claimed on the ground that the plaintiffs had exercised an undue preference in favour of certain traffic brought by the Midland Railway. There had been competition between the plaintiffs and the Midland Railway for the carriage of coals to Hull, and eventually rates were assimilated for a group of collieries in connection with the two railways at 2s. 10d. aton, and an agreement was come to, under section 87 of the Rail

way Clauses Consolidation Act, 1845, for the carriage of through traffic upou that basis. The plaintiffs, under that agreement, received less for the carriage of coals to Hull from a station adjoining the defendants' colliery, and in connection also with the Midland Railway system, than they demanded from the defendants for carriage from their colliery to Hull. THE COURT (Lord ESHER, M.R., BowEN and FRY, L.JJ.) held that, by the words of the statute, agreements for through traffic come to by railway companies under sections 87 and 88 of the Railway Clauses Act of 1845 were excluded from the provisions as to undue preference contained in section 90.-COUNSEL, Charles, Q C., Barker, and Gould; Forbes, Q.C., and Sutton. SOLICITORS, Geare, Son, & Pease, for Wake & Sons, Sheffield; A. R. Oldman, for Lowe, Moss, & Co., Kingston-upon-Hull.

lant intend to rely on now? He said that the limitations of which he complained were introduced into the deed by a fraud practised on Sir Charles Goring by the solicitor, in concert with Sir H. D. Goring's second wife, Sir Charles having been induced to execute the deed in the belief that he was thereby settling the estates to accompany the baronetcy. But for the omission of any limitations in his favour in the resettlement and the insertion of other limitations, the appellant would have got the estates with the title. In his lordship's opinion, the case made was not against the solicitor as principal, but it was that Lady Goring by his means induced Sir Charles to execute the settlement The allegations in the statement of claim in Goring v. Goring came to this-that Lady Goring, by fraud, and with the assistance of the solicitor, induced Sir Charles to execute the resettlement in ignorance of its effect. That was really the same thing as that which was alleged now. Any evidence in support of the present allegation would have been admissible in support of the claim made in Goring v. Goring. There was no allegation against the solicitor as a principal. If the question was one of estoppel or res judicata it would be wrong to allow the appellant now to institute any fresh proceeding to set aside the settlement of 1850. The rule stated by Lord Cairns in The Phosphate Sewage Co. v. Molleson (4 App. Cas. 801), applied-viz., that an unsuccessful party could not be allowed to reopen the litigation by merely saying that since the former litigation there was another fact going exactly in the same direction with the facts stated before, and leading up to the same relief which he had asked before. The only way in which that could be admitted would be if the litigant could shew that the new fact entirely changed the aspect of the case, and that it had not and could not by reasonable diligence have been ascertained by him before. But the present case did not rest there. The appellant had in the former action every opportunity of investigating the matter, and he then submitted not to prosecute his action, if the defendants would relieve him from the payment of costs, and by consent a judgment was taken as at the trial of the action. In his lordship's opinion a consent order stood on the same footing as a release. If, after executing a release, a person discovered matters which were entirely unknown to him before, he might be able to set up a fresh claim. But the appellant did not say that he had discovered any new fact since he consented to the judgment, and it might well be that all the facts were known to him then. He ought to satisfy the court, not only that he did not know the facts then, but that he could not by the use of reasonable diligence have discovered them. LINDLEY, L.J., said that the effect of the consent judgment was that the appellant consented to treat the deed of 1850 as unimpeachable. His case for upsetting that deed was now precisely the same as it was then, with a slight variation, and there was no ground for allowing him to reopen the matter. To do so would be contrary to all principle and to good faith. LOPES, L.J., said that in both the proceedings it was alleged that a fraud was committed by the same persons, upon the same persons, for the same purpose, and with the same result. The only difference was that the solicitor was now more pointedly indicated than in the former action, but this was only a fresh ingredient tending to prove the same fraud which was alleged in the former action. His lordship was satisfied to rest his judgment on the question of estoppel, without expressing an opinion on any other point.CoUNSEL, Sir E. Clarke, S.G., Cookson, Q.C., Dr. Tristram, and S. Hall; Sir H. Davey, Q.C., Horton Smith, Q.C., and Ingle Joyce. SOLICITORS, Brooks, Jenkins, & Co.; Gregory, Rowcliffes, & Co.

GORING v. LLOYD-C. A. No. 2, 9th March. ESTOPPEL-RES JUDICATA-JUDGMENT BY CONSENT IN FORMER ACTION. The question in this case was whether the appellant was, by reason of a judgment, to which he had consented, dismissing a former action brought by him to set aside a settlement of certain estates executed in February, 1850, estopped from bringing an action of ejectment to recover those estates. The appeal was against the refusal by Kay, J., of a motion by Sir Craven Goring that, notwithstanding an order made in this action appointing a receiver of the rents and profits of the estates comprised in the settlement, he might be at liberty to continue an action of ejectment in the Queen's Bench Division which he had commenced to recover the estates. The estates were in 1828 limited in strict settlement to Sir C. F. Goring for life, with remainder to his son H. D. Goring for life, with remainder to his first and other sons successively in tail male, with remainder to the Rev. Charles Goring (another son of Sir C. F. Goring) for life, with remainder to his first and other sons successively in tail male, with divers remainders over. Sir C. F. Goring died in 1844, and was succeeded in the baronetcy by his son H. D. Goring. Sir H. D. Goring had one son, Charles Goring, and on February 1, 1850, on the occasion of his marriage, they executed a disentailing deed, and on February 9 a resettlement, whereby the estates were limited to Sir H. D. Goring and his son Charles successively for life, with remainder to the first and other sons of Charles successively in tail male, with remainder to the daughters of Sir H. D. Goring and his son Charles equally in tail, with cross remainders between them in tail. Sir H. D. Goring died in 1859, and his son Charles then became Sir Charles Goring He died on November 3, 1884, without issue, and was succeeded in the title by Sir Craven Goring, the eldest son of the Rev. Charles Goring, who had died in August, 1859. On November 7, 1884, one of the five daughters of Sir H. D. Goring, three of them being by a second wife, brought an action against her four sisters for the execu tion of the provisions of the settlement of 1850, and on November 10, 1884, an order was made appointing a receiver. In February, 1885, Sir Craven Goring, who, by the resettlement in 1850, had lost the right, given to him by the settlement of 1828, of succession to the estates, brought an action (Goring v. Goring) against his cousins, the daughters of Sir H. D. Goring, and their trustees, to set aside the settlement of 1850, on the ground that Sir H. D. Goring was at the time of its execution in a feeble condition of mind, and that he and his son were induced to execute the deed through the undue influence of Sir H. D. Goring's second wife, whom he married in 1842. On January 30, 1886, an order was made in this action by consent, on a motion treated as the trial of the action, dismissing the action without costs. In December, 1886, Sir Craven Goring commenced the action of ejectment against the persons interested in the estates under the resettlement of 1850 and the tenants WILL-CONSTRUCTION-MARRIED WOMAN-RESTRAINT ON ANTICIPATION. of the estates. That action was brought in ignorance of the fact that a receiver had been appointed in Goring v. Lloyd. Afterwards Sir Craven Charles Goring moved in the latter action for leave to continue the eject ment action. Kay, J., refused the motion, upon the ground that the issues raised by the action of ejectment were identical with those raised by Goring v. Goring. After the hearing by Kay, J., Sir Craven Goring filed an affidavit, in which he said that the fraud on which he relied in the ejectment action was that the provisions in the resettlement of 1850, by which the estates were limited to the sisters and half-sisters of Sir Charles Goring were introduced into that deed by a fraud practised on him by the solicitor (since dead) who prepared it, in concert with the second wife by the solicitor to execute the deed in the belief that he was thereby (also since dead) of Sir H. D. Goring, Sir Charles having been induced settling the estates to accompany the baronetcy. In support of the appeal it was urged that Goring v. Goring was not founded on fraud, and that, if it was, the fraud alleged in the ejectment was not the same. Goring v. Goring the fraud alleged was one practised on Sir H. D. Goring by his second wife; in the ejectment the fraud alleged was practised by the solicitor upon Sir Charles Goring.

In

THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed the decision. COTTON, L.J., said that Goring v. Goring was brought on the footing that there had been no valid resettlement of the estates by the deed of 1850, and that that deed ought to be set aside wholly or in part. The object of the ejectment action was to set aside the settlement of 1850, or to get rid of some of its limitations. It was said that Goring v. Goring was not founded upon fraud. No doubt the word "fraud" was not used in the pleadings, but the case made was essentially one of fraud-that Lady Goring had induced her weak husband to execute the deed without knowing what it contained, and that Sir Charles, the tenant in tail, also executed it without knowing what it contained--i.e., not knowing that in a certain event it would carry the estates in a different way from the title. That action sought to set aside the deed as having been executed in such a way that, though a plea of non est factum could not be pleaded as to either the tenant for life or the tenant in tail, there were equitable grounds for setting it aside either wholly or in part. What did the appel

Re GREY, ACASON v. GREEN WOOD-C. A. No. 2, 8th March.

This was an appeal from the decision of North, J. (ante, p. 28, 34 Ch.
will to a married woman, which purported to be subject to a restraint
D. 85). The question was as to the construction of an appointment by
on anticipation. The testator had, under a settlement, a power to
He had four children.
appoint by will certain funds among his children.
By his will he, in exercise of the power, directed that £1,500, part of the
funds, should be paid to bis daugher F. absolutely, for her sole and
And he directed that £500, further part of the fund, should be paid to
separate use, and without power of anticipation during any coverture.
his daughter S., the wife of M., absolutely. And he directed that all and
F. absolutely, for her sole and separate use, and without power of antici-
every the residue of the funds should go and be held upon the following
trusts-viz., as to one-fourth share thereof upon trust for his daughter
pation during any coverture. The daughter F. afterwards married G.
The question was whether she was entitled to have the capital of the
the will, paid to her on her separate receipt. It was urged that the
one-fourth share of the residue, which was appointed in her favour by
words "without power of anticipation were repugnant to the trust for

F. "absolutely." North, J., was of opinion that there was no such re-
pugnancy, the direction being that the one-fourth share was to be held on
trust for the daughter, which, he said, meant that the trustees were to
the income to her as it accrued due for her separate use.
retain the share during the time she was under coverture, and only pay

decision. They said that the question was one of intention, and that the
THE COURT OF APPEAL (Cotton, LINDLEY, and LOPES, L.JJ.) affirmed the
testator had indicated an intention that only the income was to be paid
to F. during coverture. She would be able to dispose of the capital by
will.-COUNSEL, Sladen; Vaughan Hawkins; Bramley. SOLICITORS, S. Ě.
Langham; Wright & Pilley.

FENNESSY v. RABBITS & SONS-Kay, J., 4th March. PRACTICE-RIGHT TO TRIAL BY JURY-DISCRETION OF COURT-R. S. C., 1883, XXXVI., 4, 6.

This case raised a question as to the right of a plaintiff, who has

brought the action in the Chancery Division, to have it transferred to the Queen's Bench Division and tried with a jury. The action was brought to restrain the defendants, their servants and agents, from selling any articles, not made by the plaintiff, as if they were of the plaintiff's make, or holding out to the public that articles sold by them were the same article as Brown's Satin Polish," of which the plaintiff was manufacturer, and claimed an account of profits or damages at the option of the plaintiff. The defendants submitted to a perpetual injunction as claimed, and paid into court £100 by way of satisfaction of the claim for an account or damages. The plaintiff did not consider this sum sufficient, and he now moved for an order that the action should be tried by a jury, and that it might, for that purpose, be transferred to the Queen's Bench Division. His counsel waived at the bar the claim for an account. In opposition to the motion it was contended that the case did not come under ord. 36, r. 6, so as to give the plaintiff an absolute right to a trial by a jury, but that the court had a discretion, and that, under the circumstances of the case, the motion ought to be refused. Rule 6 began with the words, "In any other cause or matter," and in the case of The Temple Bar (34 W. R. 68, 11 P. D. 6) those words had been held to exclude from the operation of rule 6 the causes or matters referred to in rules 4 and 5. And the question of damages, which was all that remained to be tried in the present action, came within rule 4, for it was a question or issue of fact arising in a cause or matter which, previously to the passing of the Judicature Act could, without any consent of the parties, have been tried without a jury. That the present action could, previously to the Judicature Act, have been so tried, was shewn by the cases of West v. White (25 W. R. 342, 4 Ch. D. 631) and Bordier v. Burrell (25 W. R. 801, 5 Ch. D. 512). The damages could be easily assessed in the chambers of the Chancery Division. KAY, J., said he had no doubt in the matter. It was argued that the court had a discretion, the case being within rule 4, but he could not assent to that. The rule was merely a repetition of ord. 36, r. 26, of the Rules of 1875, under which it was decided, in the case of Re Martin, Hunt v. Chambers (30 W. R. 527, 20 Ch. D. 365), that, in a cause not specially assigned to the Chancery Division, a party has the right, without giving any reason, to have his case tried before a jury. It was said that the case of The Temple Bar decided otherwise. But that was an action in rem, and no doubt was within rule 4, as a case which it had been the practice of the Admiralty Court, without the consent of the parties, to try without a jury. It was now sought. by means of that decision, to bring within rule 4 any case in which there was an issue of fact or law which could, without the consent of the parties, have been tried before the Judicature Act without a jury. That would give the court a discretion in every imaginable case. His lordship did not so read rule 4. He read it, as he believed it had always been read, as applying to a case where there was an issue separately ordered to be tried in the action, in which case the court had power to direct how that issue should be tried. Therefore, as at present advised, he did not think that this was a case in which the court had a discretion. But if it had, he was equally of opinion, on the facts, that as it was a question of damages only, a jury was the better tribunal for deciding it, and he accordingly ordered the action to be transferred to the Queen's Bench Division.-COUNSEL, Moulton, Q.C., and Roger Wallace; Solomon (Murphy, Q.C., with him). SOLICITORS, Burn & Berridge; Turner & Low.

HAYWARD v. LELY-Kay, J., 8th March. COPYRIGHT PRACTICE-INFRINGEMENT-NOTICE BY DEFENDANT OF OBJECTION TO REGISTRATION-5 & 6 VICT. c. 45, s. 16.

In this case, which was an action to restrain the infringement of copyright in an illustrated catalogue registered at Stationers' Hall on the 13th of October, 1885, the question was raised as to what notice by the defendant of objections to the registration is sufficient, under section 16 of 5 & 6 Vict. c. 45, to enable him to rely thereon at the trial. The writ was issued on the 28th of April, 1886, and on the 14th of May the plaintiff moved for and obtained an interlocutory injunction. On this motion the defendant filed an affidavit in which he stated that, when preparing the manuscript copies of the catalogue complained of for the printers, he had before him an illustrated catalogue of the plaintiff's published in 1880, and another published in 1882, and he denied that his catalogue was an imitation of that of the plaintiff registered in 1885, but admitted that some of his illustrations and letterpress were similar to those contained in the catalogues of 1880 and 1882. The statement of claim, delivered on the 20th of May, alleged that the defendant had infringed the plaintiff's copyright in the plaintiff's illustrated catalogue, an entry of which was made in the book of registry of the Stationers' Co. on the 13th of October, 1885. The defence, delivered on the 29th of May, alleged (1) that the plaintiff was not the author of the illustrated catalogue referred to in the claim; and (2) that the defendant had not infringed the copyright therein. At the hearing of the action, after the plaintiff had proved the registration of his catalogue, the defendant proposed to shew by cross-examination that the plaintiff had published a catalogue earlier in date to that registered in 1885, and similar to it, so as to make the registration bad (Thomas v. Turner, 35 W. R. 177, 33 Ch. D. 292). This was objected to by the plaintiff on the ground that the defendant had given no notice of this objection under 5 & 6 Vict. c. 45, s. 16, which requires that, in any action against any person for infringement of copyright, the defendant, on pleading thereto, shall give the plaintiff notice in writing of any objection on which he intends to rely, and provides that otherwise the defendant shall not be allowed at the trial to give evidence to support his objection. The plaintiff had, since the commencement of the action, duly registered the earlier edition of his catalogue.

KAY, J., held that the defence, though commendably brief, did not in any way object to, or put in issue, the allegation in the statement of claim as to the registration. The meaning of section 16 was clear, and if he were to allow the defendant to rely on his objection the plaintiff might complain of having been surprised-but for this, that in the affidavit of the defendant, filed before the date of the statement of claim, the objection was suggested. Now the case of Finnegan v. James (23 W. R. 373, 19 Eq. 72) decided that, if the objection were stated in the defence, the notice in writing was unnecessary. So that, if it were not so stated, a notice given at about the same time would suffice. But he did not consider the affidavit as a sufficient notice under section 16. Still the case was one where the court ought to enable the defendant, by amending his defence, to raise the objection; but, as the effect of the amendent might be to make the plaintiff's case fail on technical grounds, the indulgence ought to be granted on the terms that the defendant was not to raise any objection to the plaintiff proving the registration of his copyright made since action brought, nor raise any objection on the ground that such registration was not made before action.-COUNSEL, Aston, Q C., and Carpmael; Marten, Q.C.. and Statham. SOLICITORS, Wilson, Bristowes, & Carpmael; J. C. F. Barfield.

Re COUNTESS OF DUDLEY'S AND LONDON AND NORTHWESTERN RAILWAY CO.'S CONTRACT-Chitty, J., 9th March.

SETTLED LAND ACT, 1882, s. 2, SUB-SECTION 8; s. 38; s. 45;

INFANT TENANT FOR LIFE-" TRUSTEES OF THE SETTLEMENT."

S.

60

In this case, being a summons under the Vendor and Purchaser Act, 1874, the question arose as to whether, in the case of an order by the court under the Settled Land Act, 1882, s. 60, appointing persons on behalf of an infant tenant for life to exercise the powers of a tenant for life under the Act, it is necessary that trustees for the purposes of the Act, under section 38, should also be appointed to receive notices, &c., under section 45, and the Amendment Act, 1884, s. 5. It appeared that the present Earl of Dudley, who was an infant, was tenant in tail in possession of certain settled estates, and that, under the settlement, in the events which had occurred, there were no trustees with power of sale. An order had been obtained, under section 60, appointing the guardians of the infant to exercise, on his behalf, the powers of a tenant for life under the Settled Land Acts, 1882-84, in relation to a sale of part of the settled land to the London and North-Western Railway Co. at a price specified in the order, and giving the guardians liberty to receive, in the first instance, the purchase-money; and the order proceeded to give the guardians generally powers of acting for the infant under the Act, subject to the sanction of the judge. It was admitted by the parties that the order was wrong in not directing the purchase-money to be paid into court; and it was also submitted that a sale could not be validly made under the order unless trustees under section 38 were also appointed. CHITTY, J., said that, in ordinary cases under the Act, the giving of notice to the trustees of the settlement was a condition precedent to the exercise of powers under the Act. That was so in the cases of the exercise of powers by a married woman tenant for life (section 61) or committee of a lunatic tenant for life (section 62). It was to be observed that section 60, which dealt with the case of an infant tenant for life, was incorporated in the same division of the Act (xiv.) as sections 61 and 62, dealing respectively with married women and lunatic tenants for life. Section 60 provided that in the case of a tenant for life an infant, the powers might be exercised on his behalf by the trustees of the settlement, and, if there were none, then by such person and in such manner as the court, on the application of the infant's guardian or next friend, either generally or in a particular instance, ordered. In his opinion the words in section 60, "trustees of the settlement," must be held to be larger than those con tained in the definition clause, section 2, sub-section 8, or, in other words, that they included "trustees for the purposes of the Act" mentioned in section 38. The result was that it was not necessary in the present case that any trustees should be appointed under section 38, and, having regard to the terms of the order conferring a power of sale as to the particular part of the settled estate, it was not necessary that any notice should be given. Indeed, he thought that there was good ground for saying that, if trustees were appointed under section 38, the powers of such trustees would, under the first part of section 60, override or supersede the powers conferred on the guardians by the order. That particular difficulty might be got over by appointing (as would probably be done in a case like the present) the same persons to be trustees, and to exercise the powers of sale in regard to the particular lands. He, however, held that no appointment of trustees was required.-COUNSEL, 4. Underhill; Romer, Q.C.; Willis Bund. SOLICITORS, C. H. Mason; Benbow, Saltwell, & Tryon.

Re PAYNE, REA v. ASHMEAD-North, J., 24th February. WILL-CONSTRUCTION-EFFECT OF RESIDUARY GIFT-CODICIL-REVOCATION -GIFT VOID FOR UNCERTAINTY.

A testatrix, by her will, after making some specific bequests and directing the sale of some leasehold houses, proceeded :-"At my death my executors will receive £900 from N., and then my executors can pay the following legacies." She then bequeathed legacies amounting to £1,375, and added, "All legacies free of duty, and the residue divided between the grandchildren of M." At the date of the will the testatrix was the owner in fee simple of a freehold house called L, and she had entered into an agreement with N. to let the house to him for a term of fourteen years. The agreement provided that he should purchase the fee simple of the house for £900 at the end of the term, or at her death, whichever should first happen. This agreement was not carried out, and after it had fallen through the testatrix made a codicil, in which she stated that, not

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