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as a lender of ordinary prudence would have ventured to act upon. It disclosed the fact that there were only ten acres of land, and that a not inconsiderable portion of the subjects consisted of buildings and fixed machinery used for brickmaking. But it did not state either the aggregate value of the subjects or the separate values of the land, the buildings, and the machinery. It did, no doubt, contain the statement that the valuer thought the land, premises, and freehold fixtures would afford good security for £3,500; but trustees who chose to act upon such an opinion must take the risk of the security proving insufficient."

The result of the decision is that to the three rules laid down by Mr. Justice Kay in Fry v. Tapson-viz., (1) that the valuer employed by trustees must be a surveyor having local knowledge; (2) that he must be selected by the trustees and not by their solicitor; and (3) that he must not be recommended or employed by the other side in the transaction-there must be added a fourth-viz., (4) that the valuer must not content himself with stating that the property is a good security for the sum proposed to be advanced, Lut must state all details bearing on its value as a security; and the trustees must exercise such an independent judgment on the report as an ordinarily prudent man of business would exercise when lending his own money.

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Ir is unfortunate that Garnett v. Bradley should apparently have been the only authority brought to the attention of the courts in Stokes v. Stokes. There are several other cases which, we think, might have been cited with advantage, which, if cited, would, we believe, have led to a different result. Thus, in Parsons v. Tinling (2 C. P. D. 119) a divisional court (Lord Coleridge, CJ., and Grove, J.) anticipated the view of Lord Blackburn that section 67 restricts the operation of the county court provisions to actions in which the relief sought could have been originally granted in the county court. A somewhat similar view is involved in the recent case of Saywood v. Cross (33 W. R. 135, 14 Q. B. D. 53), where it was held by Mathew and Smith, JJ., that a plaintiff who claimed £200 but only recovered £20 damages in an action for breach of promise of marriage was entitled to costs on the High Court scale, on the ground that R. S. C., 1883, ord. 65, r. 12, only restricts costs to the county court scale where action of contract could have been originally commenced in the county court. None of the foregoing cases deal directly with section 10 of the County Court Act. It is otherwise with Chatfield v. Sedgwick (27 W. R. 790, 4 C. P. D. 459), to which we may next refer. In that case an action was brought to recover £57 10s., balance for work done and money lent. The defendant set up a counter-claim for certain moneys due from the plaintiff. The action was referred to the certificate of a master, costs to abide the event. The master certified that £16 1s. 5d. was due on the claim and £23 on the counter-claim; and that there was thus a balance of £6 18s. 7d. due to the defendant from the plaintiff, whom he directed to pay the costs. The master having taxed the defendant's costs of the action, the plaintiff contended that he was entitled to the costs of the action, as he could not have sued for the amount claimed in the county court. In giving judgment dismissing the plaintiff's appeal, Jessel, M. R., said: -"The argument of the appellant is, that if a plaintiff, by his writ, claims a sum exceeding £50, the 67th section of the Judicature Act, 1873, does not apply. That section provides that the provisions contained in the 5th, 7th, 8th, and 10th sections of the County Court Act, 1867, shall apply to all actions commenced or pending in the said High Court of Justice in which any relief is sought which can be given in a county court.' In my opinion this means where relief is sought of a kind which can be given by the county court, and does not mean where relief is sought only of such an amount as could be given by a county court." From this passage it is evident that the late Master of the Rolls understood section 67 in a limiting sense, and it is very much to be regretted that this case should not have been brought before the courts in Stokes v. Stokes. No doubt it may be argued that Sir George Jessel does not interpret section 67 section 67 in an

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absolutely limiting sense, and it may, therefore, be asked whether his interpretation is not on that very account open to cavil. It appears to us that an adequate answer may be given to such an objection. In the case of an action where the amount claimed is alone beyond the jurisdiction, some of the relief sought may originally be granted in the county court; in the case of an action where the claim is in its nature beyond the jurisdiction, no part of the relief sought can originally be granted in the county court: the former case does, the latter does not, fall within the wording any relief" in section 67. In Stooke v. Taylor (29 W. R. 49, 5 Q. B. D. 577) it was contended that section 67 had the effect of extending section 5 of the County Court Act, 1867, so as to deprive a plaintiff of costs in an action of contract in which the amount recovered was between £20 and £50. In refusing to accept this contention, Cockburn, C.J., made the following comments on section 67: The purpose and effect of the enactment had reference to the nature and character of the relief sought. The intention and effect of the enactment was to establish a uniform rule as to all cases in which a concurrent jurisdiction was exercised by the county court" (29 W. R. 54, 5 Q. B. D. 578). This last expression is significant; in Sampson v. Mackay (17 W. R. 883, 4 Q. B. 643) it had been held, before the Judicature Acts came into force, that section 5 of the County Court Act, 1867, deprived a plaintiff of costs who recovered less than £10 in an action of slander; it would seem as if the late Chief Justice had such a case in contemplation on the above occasion.

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From the foregoing inquiry, we submit that the true interpretation of section 67 of the Judicature Act, 1873, is to limit, not-as decided in Stokes v. Stokes-to amplify, the operation of the provisions of the County Court Act, 1867. We submit that, prior to the Judicature Acts, the application of those provisions to cases in which the county court had no original jurisdiction involved a number of gross anomalies, of which it was the object of section 67 to get rid. Finally, we submit that any reason the Legislature may have had for excluding actions for malicious prosecution, libel, slander, breach of promise of marriage, or seduction in section 58 of the County Court Act, 1846, from the original cognizance of a county court, obtains with equal force for excluding such actions from being made the subject of transfer to such court; and on all these grounds we submit that the decisions in Stokes v. Stokes are unsound in law.

REGISTRATION UNDER THE LAND TRANSFER BILL. THIS Bill is to be withdrawn, but the subject will, no doubt, be revived next year. The following remarks on the latest edition (as brought from the House of Lords) may not be superfluous. I have endeavoured to restrict them to points not dealt with in the many previous able criticisms which have appeared.

I.-COMPULSION.

The form of compulsion proposed in clause 2 does not seem to be happily chosen. An unregistered conveyance is to operate only as a contract, and is to confer no right "except the right of enforcing the contract." The question arises, What sort of a contract is it to operate as? Is it intended that it shall operate as a contract to convey according to its tenor? If so, why is it not so declared? Such a clause must have led to considerable litigation to ascertain its meaning. The addition "and the costs of such a conveyance shall not be allowed on taxation seems to shew that the draftsman of the Bill had no confidence in the previous part of the clause, as he condescends now to the triviality of the bill of costs. If a solicitor honestly advise a client to convey without registering, and the advice be good, why is he not to be paid for his work? An Act of Parliament cannot force people to be dishonest, and, doubtless, an honest client would pay notwithstanding.

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II. COMPENSATION.

The Bill adopts the principle of a guaranteed title with compensation to persons injured by its operation. It is certain that something of this kind must be done if dormant rights are not to be confiscated wholesale or enormous expense to be thrown on the registering landowner. Should compensation be paid to him whose rights have been ignored or overridden, or to him whose title has been guaranteed ? The Bill, following the conclusions of the Bar Committee, leans in favour of restoring the land or right to the original owner and paying the money to the guaranteed proprietor; but a difficulty arises where land has been built upon and the value multiplied, perhaps, ten or twenty fold. The true principle seems to be to distinguish

between urban and rural property, and, in the latter case, to restore
the land. The argument for this course is strengthened by the con-
sideration that it is to the latter, for the most part, that the owner
attaches a fancy value from its amenities or ancestral or historical
associations, whereas urban sites are principally valued for their
pecuniary eligibility. Where property is of a mixed character a
discretion should be given to the tribunal.
Compensation is to be given in cases of fraud or forgery, or the
error of the Land Transfer Board. Such an error could not arise, it
is apprehended, if the board conforms to the Act and the rules pre-
scribed. A loss might, however, occur from the working of the Act
itself, especially having regard to Part III. relating to confirmations
of title, simply from a dormant claim having been overlooked. Such
a loss should be a subject of compensation.

III.-INSURANCE.

Whether a premium of insurance should be charged to cover claims for compensation has not, I think, been discussed in connection with the present heavy ad valorem duties on conveyances, mortgages, &c. If it be intended to free registered dealings from these imposts, the proposed premiums of insurance would be small in comparison, but, if otherwise, those duties should be deemed to cover insurance.

IV.-CONFIRMATION OF TITLE.

might have been cited with advantage. We can hardly blame the
editor for this omission, as it is the custom, more honoured in the
breach than the observance, for writers of text-books to neglect black-
letter cases.
The editor has grasped the principle, too often forgotten even by
judges, that "a judgment only binds the beneficial interest of the
debtor in the lands over which he has a bona fide disposing power,
the judgment is only made a charge on what was at the time really
the property of the debtor" (p. 226). "It must therefore be taken
as settled that a judgment creditor is not a purchaser within the
meaning of the statute 27 Eliz. c. 4, and that the statutes 1 & 2 Vict.
c. 110, s. 13, and 27 & 28 Vict. c. 112 have not altered his position in
this respect" (p. 227).

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We are particularly pleased with the discussion of the Bills of Sales Acts (p. 135, et seq.), which is a valuable addition to the literature on this intricate subject. In discussing what is "in accordance with the form in the schedule annexed to the Act," the editor says:"The bill of sale may diverge substantially from that form in either of the two following ways, and in each such case is void. It may thereby have a legal consequence or effect either greater or smaller than that which would attach to it in the prescribed form. may also thereby depart from that form in a manner calculated to mislead the borrower. Whatever form the bill of sale takes, the form adopted by it, in order to be valid, must produce not merely the like effect, but the same effect-that is to say, the legal effect, the whole legal effect, and nothing but the legal effect, which it would produce if cast in the exact mould of the schedule" (p. 139). been reported after the book was printed, decides that an attornHall v. Comfort (35 W. R. 48, 18 Q B. D. 11), which must have ment clause contained in a mortgage by demise is not rendered void by the Bills of Sule Acts, and ought to be noted up at p. 140. We think it is only right to state, however, that the general opinion of the profession is that the decision in Hall v. Comfort is of very doubtful authority, and that, if the reasons given in the judgment are correct, it will not be very difficult to evade the Bills of Sale Acts. We agree, however, in the conclusion of our author at page 140, advanced by him with pardonable hesitation," that if the true intention of the mort

These provisions, fortunately optional, were singularly ill-conceived. The proprietor desiring to have a possessory title confirmed as absolute, was to advertise once a year in the " prescribed newspapers for no less than five years, and to serve notice on all incumbrancers, and every person who had lodged a caution, or whom the board might direct; and this twice over, first immediately after his application, and again after the expiration of the five years, and any of these persons was to be enabled to come forward and litigate. What an opportunity for bogus claimants and blackmailers! No landowner with a sound title would dream of availing himself of this part of the Act, but one with a shaky title might do so as he might thereby clear it. These proposals combine a maximum of inconvenience and expense with a minimum of safety. The object desired would be secured far more safely and economi-gage is not to create a bill of sale, the whole deed will not be avoided cally by enabling the board to guarantee any title which, under the present practice, a willing purchaser would be advised to accept as a safe holding title.

V.-ADVERSE POSSESSION.

Section 21 of the Act of 1875 is not proposed to be repealed. A registered proprietor, therefore, is to have a title from which no length of adverse possession can derogate, and this after the minister responsible for the Bill, some few months since, assured the public that his scheme was to be based on the policy of shortening the period of limitation. This period, no doubt, is proposed to be shortened as against a claimant for compensation, whose rights have been ignored or overridden, yet abolished altogether in favour of a registered owner. This partiality is as strange as it is unjustifiable.

It would be well that those upon whose advice and experience Parliament must necessarily rely would make up their minds decisively whether there is to be a term of limitation in respect of land adversely held at all; and, if so, what the period should be if different terms are to be fixed in reference either to the character of the property, right, or clain, or to the nature of the ownership; that they should be able to give intelligible reasons for such differences and for giving privileges to one set of owners which they decline to offer to a less favoured category.

REVIEWS.

GREGORY W. BYRNE.

VOLUNTARY DISPOSITIONS OF PROPERTY.

A TREATISE ON THE STATUTES OF ELIZABETH AGAINST FRAUDULENT
CONVEYANCES; THE BILLS OF SALE ACTS, 1878 AND 1882, AND
THE LAW OF VOLUNTARY DISPOSITIONS OF PROPERTY.
By the
late H. W. MAY, B.A. SECOND EDITION. By S. W. WORTHING-
TON, M.A., Barrister-at-Law. Stevens & Haynes.
In this second edition of a useful book the editor says:-"No pains
have been spared to make the revision of this book as perfect as
possible, and to include every case which may appear to bear upon
its subject-matter, so as to make it a complete and trustworthy book
upon the subjects of which it treats." After a careful perusal of the
book we think that this statement is nearly correct, as the only cases
which are omitted occur in the early reports. For example, in dis-
cussing the question as to how far a donor has a locus poenitentiæ in
the case of an incomplete gift, Lyte v. Perry (Dy. 49a); and in dis-
cussing gifts of chattels made by actual delivery to the donee, the
case of The Wardens of the Minor Brothers of London (11 H. 4 31)

simply because, quá a particular clause in it not being part of its real
purport and intention, the mortgage deed required registration."
The treatment of "marriage consideration "and of the intricate
questions that occur in " gifts inter vivos" deserves much praise.
We are not aware of any treatise containing so full a discussion of the
latter questions as is contained in this book.

In conclusion, we can heartily recommend this book to our readers, not only to those who are in large practice, and who merely want a classified list of cases, but to those who have both the desire and the leisure to enter upon a systematic study of our law.

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The first edition of this book, which appeared in 1881, has well stood the test of time, and has come to be accepted as a full, accurate, and satisfactory guide upon its subject, and, inasmuch as the author adopted the comparatively new and bold form of "stating the law on each point in the form of an abstract proposition, citing the decided cases in smaller type merely as illustrations of that abstract proposition," he may be considered to have achieved a more than ordinary success.

Since the appearance of the first edition the statute law has been altered by the Newspaper Act of 1881; the Rules of 1883 have much modified the practice, and the case law has been supplemented by any decisions, of which those bearing on blas phemy, the rights of married women (see, e.g., Seroka v. Kattenburg, 34 W. R. 542), criminal informations (see, e.g., Yates v. Reg., 33 W. R. 482), and the liability for libelling the dead (see, e.g., Reg. v. Labouchere, 32 W. R. 861) are the best known. In these and other points Mr. Odgers has fully (sometimes perhaps too fully) brought his book up to date, referring, for instance, to a case so recent as Spokes v. Spokes, decided only on the 2nd of June. His comments on the Newspaper Act, however, though very good in substance, do not quite satisfy us in point of form, as he prints the Act section by section twice over, once with notes in the text and once without them in the Appendix. The chapter on blasphemy has, of course, been very much expanded, and Mr. Odgers commits himself to the proposition (see p. 442) that “honest error is no crime in this country, so long as its advocacy be rational and dispassionate," and although he distinguishes very properly between apostacy and blasphemy, and half shelters himself under the robe of Lord Coleridge (see p. 467), we cannot but think that, looking to the terms of the Blasphemy Act (9 Will. 3, c. 35), this expression goes too far, and that, though it may be a right exposi

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tion of the common law, it is incorrect as expressing the law generally, inasmuch as the statute punishes heretical writing or "advised speaking" on the part of an apostate with deprivation of all offices upon a first conviction, and with three years' imprisonment upon a second conviction. In connection with this branch of the subject the summing up of Lord Coleridge in Reg. v. Ramsay and Foote is printed at length, and some very good suggestions are given as to how far an amendment of the law should go.

With regard to libelling the dead, we should have been glad to have been told more about Reg. v. Ensor, in which Mr. Justice Stephen ruled at Cardiff in February last that a libel on the dead is not criminal unless it can be proved to have caused injury or annoyance to the living, and laid it down, according to the Times report, "broadly, that to libel the dead is not an offence known to our law." This case is three times referred to by Mr. Odgers, but

nowhere does he state the effect of it.

Both the Rules of the Supreme Court and the County Court Rules bearing on the subject are very properly inserted; but we think the author has gone too far in noticing points of general practice, such as motion for new trial (seep. 581) and the like. It is a pity to weaken a good book by the introduction of extraneous matter. In this and other directions, as considerable enlargement was a matter of necessity, it would have been well to exercise a little self-restraint, but, speaking generally, the book continues a very good one, indeed, perhaps, one of the best in the hands of the profession upon any subject. We are glad to find that references are still supplied to all the current reports, and that the index and table of cases appear to have had as much labour in proportion spent upon them as the text.

CHIEF RENTS.

THE LAW OF RENTS, WITH SPECIAL REFERENCE TO THE SALE OF LAND IN CONSIDERATION OF A RENT-CHARGE OR CHIEF RENT. By W. A. COPINGER, Barrister at-Law, and J. E. CRAWFORD MUNRO, LL.M., Barrister-at-Law. William Clowes & Sons (Limited).

CASES OF THE WEEK.
WATSON v. STRICKLAND & SONS-C. A. No. 1, 1st August.
BILL OF SALE-PAYMENT OF INTEREST ON MORTGAGES ON PREMISES
WHERE THE GOODS ARE-MORTGAGE DEED TO BE THE PROPERTY OF THE
MORTGAGEE ON DEBT BEING PAID OFF-VALIDITY OF-BILLS OF SALE
ACT, 1882, s. 9-FORM IN SCHEDULE.

Interpleader issue, in which the plaintiff claimed, under a bill of sale from the execution debtor, certain goods seized in execution by the defendants. The bill of sale, which was given as security for a loan, contained a covenant by the mortgagor to pay all rents, rates, taxes, and interest on mortgages (if any) payable in respect of the messuage and premises where the goods then were or might be removed to; and there was a declaration that when the money was paid off the mortgagee would give the mortgagor a receipt in full of all demands under or in respect of the premises document signed by the mortgagor or any other person in relation to the and indorse a copy thereof upon the indenture, but the indenture, and any loan, should remain in the custody and be the property of the mortgagee. Mathew, J., held the bill of sale bad as not being in accordance with the form. The plaintiff appealed.

This is a very copious and elaborate treatise on the law relating to the so-called chief rents which prevail so extensively in Lancashire. The principles relating to the alienation of land in consideration of a rent-charge are carefully stated, and the cases and authorities are collected with great industry. The precedents given at the close of the book embrace a very extensive collection of forms of agreements, conveyances, mortgages, releases, and other dealings with chief rents. As regards its special subject, indeed, the book is exhaustive in design and treatment, and should prove of great and constant value to Lancashire practitioners, and of considerable assistance to conveyancers elsewhere who occasionally come across chief-rent property. The statements of cases we have checked we have found accurate, though occasionally somewhat too diffuse. It is to be remembered, however, that the book is no doubt intended for the use, among others, of practitioners who have no extensive law libraries at hand. There is, we think, throughout the book a lack cf terseness; some want of proportion between the space allotted and the importance of the subjects, and too much tendency to travel into collateral subjects. We quite appreciate the difficulty of drawing the line as to how far the law relating to rent services should be treated, but we cannot agree in the advisability of going so fully into it as the authors have done. We think that there are here the materials for an excellent book on chief rents, but they seem to us to want "boiling down," with a considerable proportion of the present contents left out.

It is stated that at the Taunton Police-court on Wednesday a case was called on in which the mayor, who presided, was a witness, and the prosecuting solicitor declined to proceed unless his worship withdrew from the bench. The mayor refused, and the case was ultimately adjourned to enable the Home Secretary to be communicated with.

At the Stafford Assizes a dispute which had arisen between a coroner and his jury came before Mr. Justice Grantham for decision. At an inquest held at Tunstall to inquire into the death of a man who had been killed in the Clanway Colliery the jury gave a verdict that the occurrence was accidental, expressing at the same time their opinion that a stricter supervision by the manager of the mine was required. The coroner refused to incorporate this rider in the inquisition, and as the jury, on the other hand, declining to sign the inquisition unless the rider was included, the coroner bound them over to appear at the assizes and explain their conduct. The learned judge expressed his opinion that, strictly speaking, the coroner was right in the view he took that the verdict should be precise. At the same time, riders to a verdict were often very valuable, and there seemed no reason why this rider should not have been added. The best course would be for the jury to find the verdict itself and sign it, and then on the same paper, lower down, to add their rider and sign that too.

THE COURT (Lord ESHER, M.R., LINDLEY and LOPES, L.JJ.) dismissed the appeal. They said that the stipulation as to the retention of the indenture by the mortgagee was clearly not contained in or authorized by the form, and was not a mere futile stipulation, as it gave to the mortgagee a greater legal right than was given to him by the statutory form. A mortgagor on paying off the mortgage debt had a right to have the and so the legal effect of the bill of sale was different from what it would documents given up to him, but this stipulation deprived him of that right, be if drawn in the statutory form. The bill of sale was also void on the other ground, for by the covenant to pay interest on mortgages the mortgagor would have to pay interest not only on mortgages which gave a power of distress for the interest as rent (which perhaps might be for the maintenance of the security) but also on mortgages which contained no such power of distress, and where therefore the goods could not be seized. This covenant therefore could not be for the maintenance of the security. The bill of sale was therefore void.-COUNSEL, Lyon; E. Tindal Atkinson and C. Lacy Smith. SOLICITORS, Marsden & Son; Dod, Longstaffe, & Co.

REYNOLDS v. COLEMAN-C. A. No. 2, 30th July.

R. S. C., 1883, XI., 1 (E.)-SERVICE OUT OF JURISDICTION-BREACH OF

CONTRACT TO BE PERFORMED WITHIN THE JURISDICTION.

A question arose in this case as to the validity of the service of a notice of the writ on the defendant out of the jurisdiction. Rule 1 of order 11 provides that "service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the court or a judge wherever (inter alia) (e.) The action is founded on any breach or alleged breach within the jurisdiction of any contract, wherever made, which, according to the terms thereof, ought to be performed within the jurisdiction, unless the defendant is domiciled or ordinarily resident in Scotland or Ireland." The plaintiff in the present case was resident in England; the defendant was a domiciled American resident in the United States. The action was brought to enforce the specific performance of a contract by the defendant to transfer to the plaintiff some fully paid-up shares in a company whose registered office was in England. The contract was made in England, but it did not contain any express statement that it was to be performed in England. A notice of the writ was, by leave of the court, served on the defendant in America. He did not enter an appearance, and the plaintiff obtained judgment for specific performance by default. The defendant afterwards moved to discharge the order for service out of the that rule 1 (e) of order 11 did not justify the former order. Kay, J., rejurisdiction, and to set aside the judgment founded on it, on the ground fused the application. On behalf of the defendant it was contended that the rule required that the contract in question should contain an express statement that it was to be performed within the jurisdiction, and that, at any rate, the contract in the present case was not necessarily to be performed within the jurisdiction, because a transfer of the shares might be executed by the defendant anywhere.

THE COURT OF APPEAL (COTTON and BOWEN, L.JJ.) affirmed the decision. They held that it was not necessary that the contract should expressly state that it was to be performed within the jurisdiction. It was sufficient if it appeared from the contract, taken in connection with the surrounding circumstances, that it was to be performed within the jurisdiction. In the present case the contract would not be performed until the transfer of the shares had been delivered to the plaintiff, and that would have to be done in England. Therefore, the contract "ought, according to its terms, to be performed within the jurisdiction." Conequently, the rule applied, and the service was good.-COUNSEL, Ince, QC., and S. Dickinson; Marten, Q.C., and Bramwell Davis. SOLICITORS, Francis & Johnson; Slade Munk.

Re ARDEN-C. A. No. 2, 1st August.

APPOINTMENT OF NEW TRUSTEES-EVIDENCE OF FITNESS-COSTS. This was a petition (in lunacy) for the appointment of a new trustee. Two affidavits of the fitness of the proposed new trustee were filed.

THE COURT (COTTON and FRY, L.JJ.) allowed the costs of the affidavits. But COTTON, L.J., said that he had often already stated that one affidavit made by a credible witness of the fitness of a person proposed to be appointed a trustee was sufficient. The court might have to consider in future whether it should allow the costs of a second affidavit.-Counsel, C. Browne. SOLICITORS, S. W. Johnson & Son.

Re CLARKE, COOMBE v. CARTER-C. A. No. 2, 3rd August. MORTGAGE ASSIGNMENT OF AFTER-ACQUIRED CHATTELS-UNCERTAINTY SPECIFIC PERFORMANCE-DIVISIBLE CONTRACT.

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This was an appeal from a decision of Kay, J. (35 Ch. D. 109, ante, p. 302). The question was whether a mortgage contained a valid charge upon a legacy which came to the mortgagor several years after the execution of the mortgage deed. By a deed dated the 18th of January, 1876, H., in consideration of £800 then lent to him, assigned to the mortgagees "all the household goods, and also all the live and dead farming stock, tenant's rights and interests of the mortgagor of, in, or upon any farm now held, or which during this security may be held, by the mortgagor; also all real and personal estate to which the mortgagor shall become entitled under the will of his father; also all moneys of or to which he now is, or may during this security become, entitled under any settlement, will, or other document, either in his own right, or as the devisee, legatee, or next of kin of his father, or any other person or persons." In April, 1881, H. filed a liquidation petition, and all his property became vested in a trustee appointed by his creditors. On September 13, 1884, a testator, not the mortgagor's father, died, under whose will H. became entitled to a share of his residuary property. The question was whether this share was bound by the mortgage. Kay, J., held that it was. THE COURT OF APPEAL (COTTON, Bowen, and FRY, L.JJ.) affirmed the decision. COTTON, L.J., said it was clear that at law the assignment would not pass any future property of the assignor, though it might be enforced in equity as a contract to assign future property when that property should fall into possession. The principle on which assignments of non-existent property were made effectual in equity must be this-that there was a contract of which a court of equity would enforce specific performance, and this was so laid down by Lord Westbury in Holroyd v. Marshall (10 H. L. Cas. 191). As a general rule a court of equity would not specifically enforce a purely executory contract for the purchase and sale of goods, because damages would be a sufficient compensation for any loss arising from a breach of the contract. It was different in the case of a contract for the sale of real estate. But in the present case the money had been already paid by the mortgagee, and the mortgagor, who had got the money, had got it on the faith of an assignment which went further then the law would allow. The contract must be one of such a nature that a court of equity would enforce the specific performance of it. There might be cases in which it would be impossible for the court to identify the particular property, and then the contract would be open to the objection of vagueness. Some vagueness was necessarily incident to a contract to assign future chattels. But this would be no objection if the property was capable of being sufficiently identified at the time when the contract was to be performed. There might be a contract to assign future property expressed in such wide terms that it would be wrong to enforce it against the assignor, because it would deprive him of the means of paying his creditors, and would be open to the objection established by the law of bankruptcy to assignments of the whole of a man's property to one creditor. That was so in Re D'Epineul (20 Ch. D. 758). The contract in the present case was a divisible one. There might be some general words in the deed so wide that the court would not enforce them. But the court had now to deal with the clause which related to moneys coming to the mortgagor as a legatee. In his lordship's opinion that clause was not too general in its terms; it did not deal with the whole of the mortgagor's property, but only with that which might come to him in a particular way. Was the clause too vague? The vagueness must be one which was not capable of being removed at the time when the contract was to be performed. In the present case the property was as capable of being identified as almost any kind of property. The decisions as to covenants in marriage settlements to settle future property of the wife were in point. Such covenants, no doubt, were not open to the objection that they included all the property of the wife, but it would be impossible to say that words which would not be too vague if they were contained in a covenant in a marriage settlement would be too vague if they occurred in a covenant in a mortgage. The present case was very like Bennett v. Cooper (9 Beav. 252), in which a similar contract was enforced. In his lordship's opinion, the Court of Exchequer Chamber, in Belding v. Read ( 3 H. & C. 955), were wrong in their construction of the covenant then in question, and he had expressed this opinion in Clements v. Matthews (11 Q. B. D. 808). The Official Receiver v. Tailby (18 Q. B. D. 25) was different from the present case. There the assignment was of future book debts. Here the assignment was of property which was capable of being identified. Whatever might have been the ground of the decision in that case, which was not very apparent from the judgments, it did not cover the present case. BOWEN and FRY, L.JJ., concurred.-COUNSEL, Begg Byrne; Yate Lee. SOLICITORS, Duffield & Bruty; Paterson, Snow, & Co.; Storey & Cowland.

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ARNOTT v. HAYES-C. A. No. 2, 29th July. BANKER'S BOOKS-INSPECTION-PARTY TO PROCEEDINGS-EX PARTE ORDER -BANKERS BOOKS EVIDENCE ACT, 1879 (42 & 43 VICT. c. 11), s. 7. A question arose in this case as to the effect of section 7 of the Bankers' Books Evidence Act, 1879, which provides that, on the application of any party to a legal proceeding, a court or judge may order that such party be at liberty to inspect and take copies of any entries in a banker's book for any of the purposes of such proceedings." The action was brought for the rescission of a contract to take shares in a company, and the plaintiff alleged that sums paid by him had, in fact, been appropriated by the defendant B., who had an account at the Royal Exchange Bank, where the company also had an account. The plaintiff obtained an order

at chambers, ex parte and without filing any affidavits, for liberty to in.
spect the accounts of B. and of the company. B. and the company moved
to rescind the order, on the grounds that section 7 did not apply when
the person whose account it was desired to inspect was a party to the pro-
ceedings, and that the order should not have been made ex parte and
without affidavits. Kekewich, J., refused the motion, but limited the
inspection to the period beginning with the formation of the company.
THE COURT OF APPEAL (COTTON, BOWEN, and FRY, L.JJ.) affirmed the
decision. COTTON, L.J., said that it would, no doubt, be better in general
that such orders should only be made on notice; but it was clear that the
Act allowed the order to be made ex parte. The word "party" was not
limited to a party to an action, but it included it, and could not be re-
stricted to a third person. In some cases an affidavit ought to be required
to shew that the inspection would be material, but it appeared from the
pleadings in the present case that the inspection would be material. If
there were any allegation that the inspection was sought not honestly,
but for some indirect object, the court should require an affidavit. The
issue in the action was whether the defendant B. did or did not appro-
priate money which ought to have gone to the company, and his banking
account was clearly most material to the plaintiff directly for the purposes
of the action. The primary object of the Act was to enable evidence to
be given at the trial of material matters, though it might be applied to
other cases. It took away the power of summoning a banker to produce
his books at a trial, and in that respect it was for the relief of bankers.
The Act enabled copies of entries in bankers' books to be taken and given
in evidence. Obviously a suitor could not tell what entries to copy
without inspecting the books. The Act, therefore, clearly gave to suitors
an enlarged power of investigation, a right of inspection which they
would not previously have had until the books had been produced and put
in evidence. It had been urged that this would, in effect, give the suito.
a greater right of discovery, but discovery was the getting something in
aid of a suitor's case from his opponent. The Act enabled a suitor to
examine bankers' books that he might see what entries should be given in
evidence. The power should be used only for the purpose of proceedings,
and the judge should be careful not to give too large a power of inspec
tion, and should limit it to that period of the account which was material
in the proceedings. In the present case the court had come to the con-
clusion that they could not, without defeating the object of the Act and
without doing injustice, fix any further limit than Kekewich, J., had
done. BowEN, L.J., said that, before the Eankers' Books Evidence Act,
1876 (for which the Act of 1879 was substituted), there was no power of
discovery from a bank, except by an order to examine the persons who had
made the entries in the books of the bank, and to produce the books.
That could be done under the Common Law Procedure Act before the
trial; but it was a cumbrous process, and was not in practice resorted to.
The practice was to subpoena at the trial the person who had made the
entries, and then he produced the books and referred to them to refresh his
memory. The primary object of the Act was to facilitate evidence at the
trial. It was not necessary to say whether it might be used to obtain
inspection where a right to discovery would have existed if the books had
been in the defendant's possession; the primary object was to save bankers
trouble. In order to get copies of the entries it was necessary that the
suitor should look at the books and see what he wanted, and, therefore, it
was necessary to give an extended power of inspection. The judge ought,
therefore, to be careful to limit as closely as possible the extent of the power
of inspection. It was impossible to say that the order of Kekewich, J., had
given more than was necessary for the purposes of the issue at the
trial, which was whether or not there had been fraud during the period
to which the inspection was limited. FRY, L.J., concurred. The word
"party" included a party to the action, although the argument had been
that the word meant every person who was not a party. It was to be
observed that the second recital in the preamble to the Act of 1876 said
that it was expedient to facilitate the proof of the transactions recorded in
bankers' ledgers and account books. The same motives existed when the
Act of 1879 was passed, and it was clearly one of its objects to give an
increased power of inspection.-COUNSEL, Herbert Reed and G. E. Hum-
phreys; Warmington, Q.C., and Swinfen Eady. SOLICITORS, Blair § Girling ;
Beall & Co.

PATENT

CHALLENDER v. ROYLE-C. A. No. 2, 22nd July.

THREATS BY PATENTEE OF LEGAL PROCEEDINGS INJUNCTION—
PATENTS, DESIGNS, AND TRADE-MARKS ACT, 1883, s. 32.

A question arose in this case as to the construction of section 32 of the Patents Act of 1883, which provides that:-"Where any person claiming to be the patentee of an invention, by circular, advertisement, or otherwise, threatens any other person with any legal proceedings or liability in respect of any alleged manufacture, use, sale, or purchase of the inven tion, any person or persons aggrieved thereby may bring an action against him, and may obtain an injunction against the continuance of such threats, and may recover such damage (if any) as may have been sustained threats related was not in fact an infringement of any legal rights of the thereby, if the alleged manufacture, use, sale, or purchase to which the person making such threats. Provided that this section shall not apply if the person making such threats with due diligence commences and prosecutes an action for infringement of his patent.' The defendant, Royle, was the owner of a patent, granted in 1879, for a "tap union," and ever since 1879 he had manufactured and sold the patented article, and until recently, as he alleged, he had not been aware of any infringement of his patent. In March, 1887, he discovered that a number of tap unions not made by himself were being sold, and he considered that those articles were infringements of his patent. These articles were manufactured by Challender, the plaintiff, who had taken out a patent in 1886. Royle,

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thereupon, in March, 1887, issued the following circular:-"Royle's Patents. It having come to our knowledge that certain of our patents are being infringed-notably, Royle's Patent Tap Union and Patent Archimedean Egg Beater-we hereby caution our numerous friends against purchasing those imitation goods. It cannot be too generally known that all parties who handle a patented article, from the maker to the user, including also importers, are liable to the patentee. Our patent solicitor has instructions to take proceedings against all infringers." This circular was aimed at the tap union made by Challender, and was circulated among customers of his. In April he wrote to Royle challenging him to take legal proceedings to restrain the alleged infringement of his patent. On the 24th of May a person employed by Royle purchased from a company called the Manchester Plumbing Co. a tap union manufactured by Challender, and warned the company that it was an infringement of Royle's patent, and that Royle would proceed against them if they continued to sell it. On the 15th of June Royle served the company with a writ in an action to restrain them from infringing his patent. The writ in the present action was issued on the 11th of June, but not served till the 16th. By it the plaintiff claimed an injunction to restrain Royle from threatening by circulars or otherwise any person with legal proceedings or liability in respect of the manufacture, use, sale, or purchase of the plaintiff's tap union. Bristowe, V.C., granted an interlocutory injunction. Royle appealed, and it was argued on his behalf that the above circular was not a "threat" within the meaning of section 32; it was only a warning to the public. Section 32 was aimed at a definite threat of legal proceedings addressed to an individual in respect of an alleged past infringement of a patent. It was not necessary that the "action for infringement" mentioned in the proviso at the end of section 32 should be brought against the "person aggrieved" mentioned in the former part of the section; it was sufficient if it was brought against some other alleged infringer, if it raised the same question which would be raised against the person aggrieved" if he were the defendant. The action against the Manchester Plumbing Co. was therefore sufficient to exclude section 32, and that action had been commenced with "due diligence."

66

THE COURT OF APPEAL (COTTON and BOWEN, L.JJ.) reversed the decision and dissolved the injunction. COTTON, L.J., said that Halsey v. Brotherhood (15 Ch. D. 514) shewed that, but for the Patents Act, the plaintiff would have no reasonable ground for his action. The two inventions in their mode of appliance and construction were almost alike. Section 32 contemplated final judgment, and did not refer directly to interlocutory proceedings, because it spoke of recovering damages. It was doubtful whether the circular was a "threat" within the section, but there had been a threat against the Manchester Co., and it was clear that the plaintiff was a person aggrieved." The court must be satisfied that the article complained of was not an infringement of any legal right of the person who made the threat. It was not necessary to say on whom was the burden of proof; prima facie it would be on the plaintiff, but he might rebut the presumption and shift the burden to the defendant. The question whether the patent of the person who had made the threat was valid might come into consideration; for if the patent was invalid there could not be an infringement of a legal right. His lordship differed from the opinion to the contrary which Chitty, J., had intimated in Kurtz v. Spence (33 Ch. D. 579). Bristowe, V.C., acting on a judgment of Kay, J., in Walker v. Clarke (4 Rep. Pat. Cas. 111), had said that it was not necessary to enter into the question whether there had been any infringement, but that it was only necessary to consider the balance of convenience. His lordship dissented from that view. It was true that in all applications for interlocutory injunctions it was right to consider the balance of convenience, but the question was whether the plaintiff had made out a prima facie case, and whether it was probable that he would succeed at the hearing. If it were necessary to decide, the point in the present case, it seemed that the plaintiff had made out a prima facie case, but it was not necessary to decide that question, because section 32 did not apply by reason of the proviso at the end. Just after the plaintiff had issued his writ, but before notice of it had come to the defendant, an action had been commenced by him against the Manchester Co., and with due diligence after the threat. The proviso said that the action should be duly prosecuted, but that was a matter in futuro. The Manchester Co. were actually selling the articles, and, though the plaintiff had a patent, it did not appear that he was actually making and selling them. There was no evidence that the action was collusive. If it should not be duly prosecuted application could be made to the court. To bring the case within the proviso there must be an honest action as to the validity or infringement of the patent, whichever might be in question, and there was no evidence that the action against the Manchester Co. was not honest or that itwould not be duly prosecuted and honestly defended. It was not necessary that the action should be brought against the " person aggrieved." A rival patentee was a "person aggrieved," but if he only granted licences, and did not make and sell the patented article, an action could not be brought against him in which damages could be obtained. The action must be founded on some act done; it must be honestly brought to test the validity or infringement of the patent, and following up a threat against some person to whom it was made. BowEN, L.J., said that the threat must not be a mere warning, but a threat of legal proceedings or liability in respect of an alleged, not merely a proposed, manufacture of the patented article. Of course a general warning might be issued, and it was important that it should be understood that it did not follow that because on the simple grammatical construction of the warning it applied only to the future, it might not be applicable to an already done. The court was not expressing any final opinion as to the validity of the patent or as to the fact of infringement.-COUNSEL, Moulton, QC.. and 8. Hall; Finlay, Q.C., and Bousfield. SOLICITORS, Shaw & Tremellen; Bolton, Robbins, Busk, & Co.

act

Re GIRBONS' TRUSTS-Chitty, J., 3rd August. PRACTICE-COSTS-LEGACY-PAYMENT INTO COURT.

In this case, a testator having bequeathed a sum of £10,000 to the children living at his death of nine persons named, the executors paid the legacy into court under the Trustee Relief Act, and, an inquiry being taken, it was certified that the persons entitled were thirty in number. made payable out of the £10,000, and should not be borne by the residue. Upon petition for payment out, it was submitted that the costs should be Jennings v. Newman (10 Ves. 219): Boycott v. Newman (4 W. R. 707); Re Trick's Trusts (18 W. R. 123, 5 Ch. 170); and Re Birkett (27 W. R. 164, 9 Ch. D. 576), were referred to.

of the residue as part of the ordinary costs of administration. In his CHITTY, J., said that the view he took was that the costs must come out opinion the balance of authority was in favour of that view. It was the duty of an executor to ascertain who were the persons entitled to a legacy, and upon principle there was no distinction between the costs of ascertaining a question of construction and those of ascertaining the members of a class of legatees. It could not be said that executors, by payment into court or any severance of a legacy, were acting so as to relieve the residue from bearing costs. He held that the costs were payable out of the residue.-COUNSEL, Romer, Q.C., and Stokes; Whitehorne, Q.C., and Chester; Chester & Co., for Kent, McKenna, & Kent, Liverpool; C. D. Parke; Methold. SOLICITORS, Bowlings, Foyer, & Hordern, for Moss & Sharp, Woolley.

Re POWELL BENNETT (DECEASED)—Chitty, J., 3rd August. PRACTICE-COSTS-ADMINISTRATION-FUND IN COURT-PETITION FOR PAYMENT BEFORE FURTHER CONSIDERATION. This was an administration action in which, the usual administration judgment having been made, one of the parties interested in a fund in court presented, before further consideration, a petition for division of the the other parties to separate accounts. fund, proposing payment out to himself and carrying over of the shares of

CHITTY, J., in making an order as prayed, said that it was the settled practice that under such circumstances the petitioner who had come before the proper time must pay his own costs and the costs of those he had brought before the court-that was, must pay the costs of all parties. He, therefore, directed that the costs of the petition be paid by the petitioner. COUNSEL, Whitehorne, Q.C., and Chas. Mitchell; Fooks, Q.C., and W. C. Fooks; Romer, Q C., and Grosvenor Woods. SOLICITORS, Mead & Daubeny ; Radcliffes, Cator, & Martineau.

UNION BANK OF LONDON v. KENT AND OTHERS-Chitty, J., 3rd August.

MORTGAGE-BUILDING AGREEMENT-LEGAL ESTATE-PRIORITY.

In this case the plaintiffs were mortgagees of a building agreement, and it was provided by the mortgage that the mortgagors should obtain leases and mortgage them to the plaintiffs by way of demise. The mortgagors, however, in fraud of the mortgage, mortgaged the leases which were obtained in their own names to certain of the defendants. The question arose whether the defendants, being holders of the legal estate without notice, were entitled to priority over the plaintiffs. The case of Layard v. Maud (15 W R. 897, 4 Eq. 397) was relied on by the defendants.

CHITTY, J., said that he should not adopt the ruling in Layard v. Maud. The plaintiffs' agreement was, not that they, but that their mortgagors, should obtain the legal estate, the object being that a mortgage by underlease or demise should follow, and not a mortgage by assignment, in order that there should be no liability on the part of the plaintiffs to the lessors. Under such circumstances it would have been idle for the plaintiffs to have given notice of their charge to the lessors, who would have been entitled to have disregarded the notice. The case was similar to Mumford v. Stohwasser (22 W. R 833, 18 Eq 556), and, in accordance with that case, he should hold that the legal estate was no protection against the plaintiffs' prior equity. In regard to charges upon land, priority of security did not depend upon notice, although in some cases of contract it might be necessary to give notice to the holder of the legal estate in order that it might not be conveyed away, but such a doctrine could not apply to the case before him, where the prior incumbrancer had no right to intercept the legal estate.-COUNSEL, Maclean, Q.C., and Ingpen; Romer, Q.C., and R. C. Dobbs; Solomon; Swan; Byrne. SOLICI. TORS, Bolton & Co.; Newman, Hays, & Schmettan; Thomas Bowker.

Re RHODES, RHODES. RHODES-North, J., 2nd August. PRESUMPTION OF DEATH-PERSON NOT HEARD OF FOR SEVEN YEARS

ONUS OF PROVING TIME OF DEATH.

In this case a question arose as to the proof of the time at which a person had died who had not been heard of for seven years, and who was therefore to be presumed to be dead. R. emigrated to Australia in 1850, and was last heard of by his family in 1873. In 1885 administration to his estate was granted on the assumption that he was dead. There was in the hands of the administrator a sum of money, to which R. was entitled under the will of his father, and the administrator took out an originating summons with the view of determining who was entitled to the fund. Upon the hearing of the summons inquiries were directed when R. died, and who were his next of kin living at the time of his death, whether any of them had since died, and, if so, who were their personal representatives. In answer to these inquiries the chief clerk had found that R. was last heard of in 1873. and that he was dead in 1880, but that there was no evidence to shew that he had died at any date before

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