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for the loan, inquired of the proposed mortgagor the nature of the deformities and marks which are usually considered to afford tenancy, and had been informed by him that the tenant was a the strongest evidence of identity. Each of the men had two scars yearly tenant at a rent of £80. And before the completion of the on the chin and a cast in one eye. The case reminds one of mortgage the mortgagor had expressly stated that there was no HEASMAN's in 1868, where a woman swore, at a coroner's inquest, written agreement with reference to the tenancy. It was, how that a dead body was that of her husband, on the ground both of ever, contended that the solicitor ought to have made inquiry of general resemblance and of a wound upon a finger which her the tenant as to the terms of the tenancy. At the trial the jury husband had, and which was also found on the body. The body was found that the solicitor had not made reasonable inquiries as to the clearly proved to be that of a different man. terms of the tenancy; that if such inquiries had been made the be that instances of persons almost absolutely similar in appearance valuer's estimate would have been reduced, if the agreement were are not so uncommon as is usually supposed. binding, to £350, and that the actual value of the premises, at the time the advance was made, was £300, and at present £200. Upon this finding Mr. Justice STEPHEN, “with some degree of doubt, and not without considerable regret,” gave judgment for the plain wills for their domestic pets. Mr. Justice Chirty the other day
It is NOT UNUSUAL for spinster testatrixes to provide by their tiffs. We presume that the case will be appealed, and we shall had a case before him where a lady had made provision for the not, on the information contained in the report which we reproduce maintenance of several dogs during their lives; and the learned elsewhere, predict the result; but we may point out that, according judge remarked that the proper way of making such gifts was to Fry v. Tapson (33 W. R. 113), it is not properly within the to give an annuity to a person, to cease at the death of the scope of the employment of solicitors for trustees to select a valuer.
animal. He also said that doubts had often crossed his In that case eminent solicitors gave evidence that, if asked to name mind as to whether such gifts might not violate the rule against a valuer, the ordinary course was to submit a name or names to perpetuities. There can be no doubt that the life contemplated in the trustees and to tell them everything which the solicitor knew the rule against perpetuities is the life of a human being, and it to guide their choice, but to leave the choice to them. Is it within the scope of the solicitor's employment to instruct the valuer when apparently could not be a violation of the rule to make a gift to selected by the trustees? In most cases no one else can do so with a living dog or cat, as the duration of life of such animals is the same efficiency, but the lesson of the recent case is that the usually shorter than that of a human being. But take the case of solicitor ought simply to lay before the trustees all the information to cease at the death of an elephant when, as is well known, an
an elephant. Would it be legal to give an annuity to a person he possesses as to the property, and leave them to frame the in- elephant's life is far longer than the life of a man? structions to the valuer. It would appear that a solicitor who takes it upon himself to instruct the valuer is bound to verify every statement of the proposed mortgagor bearing on the value of the property before he gives his instructions. Qu. : is it not the duty of the valuer when he visits the premises to ascertain
THE LAW OF GIFTS INTER VIVOS. from the tenant the amount of his rent and the terms of his
Limits of the discussion in these articles.- Where a gift inter
vivos is alleged to be made, several questions arise. The Bill to amend the Settled Land Act, 1882, which is may be a matter of doubt whether it was intended to make a gift
First, when the legal ownership of the property is transferred, it being rapidly passed through Parliament, embodies clause 57 of the to the transferee or to create a trust for the transferor ; and it will Land Transfer Bill relating to the redemption of improvement be found that, in the absence of any other circumstances, the charges. It will be remembered that in Re Knatchbull's Settled answer to the question whether it was intended to make a gift or Estate (33 W. R. 569, 27 Ch. D. 349, 29 Ch. D. 588) it was held to create a trust depends upon whether the transferor was bound to that such charges could not be properly paid off (in the sense of provide for the transferee. being extinguished) out of capital moneys arising under the Settled Land Act, though the Lords Justices thought that probably the ferring the legal ownership, the question may arise whether that
Secondly, where it is clearly intended to make a gift by transtrustees might apply such capital moneys in buying up the rent intention was carried into effect. charges. The present Bill provides that, “Where any improvement of a kind authorized by the [Settled Land Act, 1882], has been only retaining the legal ownership in himself. In this case the
Thirdly, the donor may make a gift of the equitable interest, or may be made either before or after the passing of this Act, and question arises, Has he effectually constituted himself a trustee? a rent charge, whether temporary or perpetual, has been or may be created in pursuance of any Act of Parliament, with the object of and the intention may be to transfer the beneficial interest only.
Fourthly, the legal estate may be outstanding in a trustee, paying off any moneys advanced for the purpose of defraying the The question here arises, Is the transfer effectual ?
in redeeming such rent charge, or otherwise providing for the pay- make a gift by transferring the legal interest to one person in truse ment thereof, shall be deemed to be applied in payment for an for another. improvement authorized by the principal Act;” and that “.
Here two questions present themselves : (1) Is the improvement in payment for which capital money is applied or
any transfer of the legal interest effectual ? (2) Has the donor effecdeemed to be applied under the provisions of the preceding section tually declared the trusts of the beneficial interest ? shall be deemed to be an improvement within the meaning of intend to discuss the questions that often present themselves-viz: last-mentioned section shall, so far as applicable, be deemed to void as against creditors under 13 Eliz. c. 5, made perpetual by apply to such improvement."
29 Eliz. c. 5; or where a conveyance of “lands, tenements, or other hereditaments” is void as against a subsequent purchaser for
value under 27 Eliz. c. 4, made perpetual by 39 Eliz. c. 18? AN INTERESTING ILLUSTRATION of the fallibility of opinion evidence The questions that arise under these statutes are not what conof identity was mentioned in the House of Commons last week. stitutes a gift, but, assuming that a gift was effectually made, We took occasion some time ago (29 SOLICITORS' JOURNAL, 750) under what circumstances can it be set aside by a creditor or mortto discuss the question of the weight to be attached to this gagee ? evidence, and to point out the caution with which it should be Every declaration of trust inter vivos of "land, tenements, and received. In the case to which the attention of the Home hereditaments" must be in " writing, signed by the person who is Secretary was drawn last week, a City detective had identi- by law entitled to declare such trust." (See the Statute of Frauds, but admitted his mistake on the man formerly convicted being that arise under this section; but we may mention that it is not produced in court. It appeared, however, that the resemblance necessary that the trust shoulá have been created in writing it is between the two men was most extraordinary, extending not sufficient if it be proved by a writing duly signed ( Forster . Hale: merely to general appearance, features and height, but also to 3 Ves. 696); but it must be signed by the person beneficially en
titled (Tierney v. Wood, 19 Beav. 330 ; Kronheim v. Johnson, 7 the Minor Brothers of London, 11 H. 4, 31), which is often cited as Ch. D. 60; Leman v. Whitley, 4 Russ. 423); and the nature shewing that merely putting clothes on an infant is a gift of them of the trust must be proved by the writing (Smith v. Matthews, 3 to him. But all that it proves is that where A. unlawfully takes D. F. J. 139; Davies v. Otty, 33 Beav. 540).
an infant out of custody of his father, strips him of the clothes that We shall discuss only two of the points that arise under gifts he was wearing and puts other clothes on him, and the infant made by deed, or, as they are often called, voluntary deeds; as the escapes and returns to his father, the latter is not liable in trespass discussion of all the questions that arise under deeds of this nature for having taken the clothes in which the infant escaped. One of would almost require a treatise to itself.
the judges thought that the acts of stripping the boy and putting We shall not discuss the law of shipping, and only touch inci- new clothes on him amounted to a gift to him. In the same case dentally on the law of real property.
one of the judges said : “If an adulterer takes a man's wife and A gift must be voluntary on the part of the donor.-In a curious puts new clothes on her, the husband may take his wife back with case, 42 Edw. 3, 4, pl. 16, where the sheriff attempted to prescribe the clothes.” that the inhabitants of a certain hundred ought to give him a This case is a most useful decision; it may be cited with advandemi-mark or a horse whenever he held his tourne there, Mow-tage at the present day. It sometimes happens that where a bray, J., said, in his judgment, “every gift is at the will of the young girl is taken out of her parents' custody for an unlawful
purpose, and is rescued, threats are made by the person who takes It should, perhaps, be remarked, once for all, that the her out of her parents' custody of taking criminal proceedings against word “done" in the year books, usually translated “gift,” does her or the person rescuing her for stealing the clothes that she not necessarily imply that no consideration passed ; compare the wears when she is rescued ; and this decision shews that such expressions "to give” in tail, “donee" in tail, where there is threats may be disregarded. necessarily consideration, if the reversion is retained by the donor, In criminal cases clothes and other necessaries provided for owing to the tenancy created.
children by their parents are often laid to be the property of the It is not necessary that the donor should express in words his parents, especially while the children are of_tender age ; but it is intention to make the gift, it suffices if the intention is manifested good either way. At the Old Bailey, 1701, Tracy and Turton, JJ., by his acts : see the cases post. It should, perhaps, be observed and Lovell, Recorder, doubted whether the property of a gold chain that a promise to make a gift in the future does not amount to an which was taken from the neck of a child who had worn it for four immediate gift : Re Ridgeway (15 Q. B. D., at p. 449).
years ought not to be laid in the father. But Tanner, who had Where there is a patent ambiguity as to the subject matter of the been an ancient clerk of the court, said that it had always been gift it may be made good by election.—“If I give to a man my used to lay it to be the goods of the child in such case, and that cow or my horse, he can take either at his election ; but if í many indictments which had laid them to be the property of the promise to give him my cow or my horse at a future time, it is father had been ordered to be altered by the judge (2 East Pleas of in my election to give him which I choose”: per Rede, J., 21 the Crown, ch. xvi. s. 91). See, to same effect, note to Forsgate's Hen. 7, 18, Br. Done. 19. “If I give you one my horses, case (1 East C. C. 464). although that be uncertain, yet by your election that may be made Gifts by husband to wife.—It should be observed that prior to a good gift”: Mervyn v. Lyds (Dyer, at p. 91a. (11)).
1883 a husband could not transfer the legal ownership of chattels The donee must be ascertained.—“ If one gives a thing to J. s. to his wife, and that therefore the only manner in which he could or N. T., it is bad for the uncertainty” (il Hen. 7, 12, pl. 4). give them to her was by constituting himself a trustee for her. In “G. said to J. that he gave goods to one of the sons of J., and that some cases it has been held that an attempted assignment by a J. might take them;" held bad (Paston f. Genney's case, 11 Edw. husband to his wife operated as a declaration of trust by him in her 4, 2, pl. 2, Br. Done, 31). See Roberts v. Roberts (11 Jur. N. S. favour : Grant v. Grant (34 Beav. 623); Mews v. Mews (15 Beav. 992); Hughes v. Stubbs (11 Jur. N. S. 913) for instances of the 529); Baddeley v. Baddeley. (9 Ch. D. 113); Fox v. Hawkes (13 donee not being properly ascertained.
Ch. D. 822); but these decisions are of questionable authority : Re The donee must be capable of taking.—Accordingly, a shroud put Breton (17 Ch. D. 416). on a corpse remains the property of the person to whom it belonged Before 1883, the mere fact of a husband allowing his wife to open at the time when it was put on, as a dead body is not capable of a banking account did not operate as a gift to her of the moneys taking : Haynes's case (12 Rep. 113; same case, 3rd Instit. 110). paid in to her account : Lloyd y. Pughe (8 Ch. 88), or of his This is a point necessary to be remembered where a testator wishes allowing her carry on business did not render the proceeds her to provide for a lapdog or a favourite horse ; as a dog or a horse separate estate : Re Whittaker (21 Ch. D. 657); but on the latter iş incapable of taking, the proper course 'in such a case is to point see the Married Women's Property Act, 1870. give the legacy to a person with a request, so framed as not to be See as to the effect of a purchase by a husband in the name of a trust, that he will maintain the dog or horse.
his wife, or in the joint names of himself and his wife, post, PurThe gift must be accepted by the donee.—The donee is not forced chase in the name of a person whom the purchaser is bound to to accept a gift: per Mellish, L.J., Hill v. Wilson (8 Ch., support. at p. 893); see 7 Edw. 4, 29, pl. 14. 'Where the gift is made by Gift by married woman.—In cases not falling within the Married parol, it does not vest in the donee till acceptance (note by Woman's Property Act, 1882, a gift of chattels made by a wife to Manning, S., London and Brighton Railway Co. v. Fairclough (ž a stranger with her husband's consent is effectual : Lucas v. Lucas Man. & Gr. 691); on the other hand, where it is made by deed, it (1 Atk. 270). vests in the donee till he disclaims (7 Edw. 4, 20, pl. 21), and, notwithstanding what is said in that case, the disclaimer need not be by record : Townson v. Tickell (3 B. & Al. 31); Peacock v.
At the Newbury County Court on Wednesday, Mr. Alfred Vince brought an action against Mr. Beach, M.P., Master of the Vine Foxhounds, to
recover £50 for trespass and damages. The case for the plaintiff was that Infant.--It appears that an infant can accept a gift, though he ou the 5th of March, Perry, the huntsman, rode with the pack through a may repudiate it on coming of age (see Co. Lit. 2b.). We appre-sheepfold on the plaintiff's farm, frightening the sheep, some of which bend, however, that, owing to the personal incapacity of the infant, were directly injured, and that as the result thirteen animals either died the teceptance must be made by or with the consent of his guardian, or had to be slaughtered. It was further alleged that the sheep sustained though probably the consent of the guardian might readily je altogether the plaintiff had sustained a loss of nearly £200, but only inferred from circumstances.
sought to recover £50. The evidence of the veterinary surgeons called
was against the allegation that fright caused the deterioration of the flock, erit on his coming of age is afforded by the transferte, or purchase and natatan an proved that an inte working on the same hureka
to allow him and the hounds to pass through the fold, without any protest
He can, on attaining twenty-one, if the transfer or purchase was made by a per- frounds chased the sheep. Wahe judge is stated to have held that there fon, in loco parentis, claim to keep them as an advancement, or may was no trespass, the plaintif having welcomed the hounds for many repudiate them : Reed's case (24 Beav. 318); Richardson's case
seasons, and, further, that there was no want of due and reasonable care on (19 Eq. 588); Weston's case (5 Ch. 614); Manns' case (3 Ch. 459 suferent direct injury by the hounds passing through the fold or that the
He was unable to hold that any of the sheep note); Curtis's case (6 Eq. 455).
deterioration of the flock resulted therefrom. He therefore gave judg. There is a very interesting case (The Wardens of the House of ment for the defendant.
Eastland (10 Eq. 20).
little occasional prolixity is the only fault we have to find with the REVIEWS.
SEVERAL COURTS OF EQUITY IN ENGLAND, THE PRIVY COUNCIL,
AND THE HOUSE OF LORDS, WITH A SELECTION OF IRISH CASES, Since the appearance of the last edition of this work in 1877, the
ON OR RELATING TO THE PRINCIPLES, PLEADING, AND PRACTICE cases upon its subject have been many and important, no less than
OF EQUITY AND BANKRUPTCY; FROM THE EARLIEST PERIOD. eight, for instance, having been taken to the House of Lords during
FOURTH EDITION. By HENRY EDWARD HIRST, B.C.L., M.A., the last four or five years. We have tested the book in connection
Barrister-at-Law. Vol. 4. Stevens & Sons; H. Sweet & Sons ; with cases great and small, and, with the exception of the compara W. Maxwell & Son. tively unimportant Difiori v. Adams (53 L. J. Q. B. 437), have not been able to discover a single omission, and the only criticism we
This volume brings the Index up to the end of the letter O, and have to make on this branch of the editing is that a reference to the includes the important headings of “Statute of Limitations,” “In
," “ Landlord and Tenant,” “Legacy,” and “ Mortgage." text ought to have been given at the single “Addendum” of Marine surance, Insurance Co. v. China Transpacific Steamship Co. (11 App. Cas. 573), Taking the Statute of Limitations heading alone, the ten leading together with some comment upon its effect, more especially as the sub-headings under which the matter is arranged form an excellent editor draws special attention in the preface to the "three per cent. guide to the various branches of the subject; and by the numerous memorandum.' As to the mode in which the new cases have been sub-sub-headings and minuter divisions the reader can, from the inserted, we have, as a rule, nothing but praise to bestow. Take, for table prefixed to the title, find his way with little difficulty to the instance, Inglis v. Stock (10 App. Cas. 263). The principle is first matter he is in search of. The arrangement of matter in the different clearly stated, and tben we have, what is necessary in cases of this divisions appears to be careful and convenient. kind, a full statement of the facts and of the mode in which the deeision was arrived at. We are glad to observe, too, that Mr.
PETITION OF RIGHT. Maclachlan contiuues fearlessly to express his own opinion where be THE LAW AND PRACTICE OF PETITION OF RIGHT UNDER THE PETITIONS happens to differ from learned judges, as where he says that Burton
OF RIGHT ACT, 1860. By WALTER CLODE, Barrister-at-Law. v. English (12 Q. B. D. 218) and Crooks v. Allan (5 Q. B. D. 38) “cannot be sustained before any court in England” (page 861),
William Clowes & Sons (Limited). though it is going too far to speak, even in a note (page 103), of a
This is a very satisfactory book upon an entirely new subject. There grossly erroneous decision of the Lords."
is a very full statement of the cases and authorities in the first We rather regret to notice that the lengthy comments on Lohre part, and the Act of 1860 is printed with copious notes in the v. Aitchison and on the meaning of “average are still retained. second. There is also an appendix containing a title of all petitions These do great credit to the editor's learning and research, but we
of right presented between 1860 and 1876, shewing their subjectcannot think them of much assistance to the reader; and we
matter and result, and an appendix of the laws of the subject in would suggest, too, that the time has come when the facts of the Ireland, Scotland, and “certain colonies and dependencies." Very earlier cases might be either omitted or condensed with great great research and pains have evidently been expended by the writer, advantage.
and though the antiquarian portion of the subject is very fully dealt In the way of addition it would have been well to have given the with, we are not prepared to say that the author has gone too far whole of the Act 34 Vict. c. xxi., incorporating, Lloyds," which, in this respect. being a local Act, is not easily accessible. Curiously enough it is not referred to in the index, nor are the “rules," where referred to
CHARTER.PARTIES. in the text (see page 150), stated to be printed in the appendix, The index is remarkably good, both in quality and quantity, but we
THE CONTRACT OF AFFREIGHTMENT AS EXPRESSED IN CHARTERregret to observe that in the great majority of cases a reference to
PARTIES AND BILLS OF LADING. By T. E. SCRUTTON, M.A., LL.B., only one set of reports is given.
Barrister-at-Law. William Clowes & Sons (Limited).
law of his subject “to a series of principles in the form of a
digest,” and has added notes “either discussing the numerous legal A TREATISE ON THE LAW OF BANKRUPTCY, CONTAINING A FULL The notes are very good indeed, short and sensible, and Mr. Scrutton
difficulties which arise, or stating the present commercial practice."
has followed the example of Lord Blackburn in his “Contract of
At the Bristol Assizes, on the 8th inst., before Mr. Justice Cave, with, latest, as well as the earlier cases. A new chapter on private arrangements with creditors has been added, in which the subject is very ment and salary of an assistant overseer, and the consequences to his
Others was heard, which raised an important question as to the appoint:
59 Geo. 3, c. 12. In 1879 the vestry agreed to raise his salary from £10
In 1886 Greenfield resigned, and by the auditor's cer,
tificate was found to be a defaulter to the extent of £186 for Hinton and SUMMARY JUDGMENT.
£44 for Berkeley. The sureties were now being sued on the bond, but TIE LAW AND PROCEDURE OF SUMMARY JUDGMENT ON SPECIALLY- Greenfield ise salary, had thereby created a new office, and that tice
they contested their liability on the ground that the vestry, by raising
at the first salary. No such default was proved. For the plaintiffs the
cited, and also Skillett v. Fletcher (2 C. P. 473). For the defendants it
was contended that the sureties were discharged, and the following cases is referred to in the text, all the others are to be found in the table lengte 380), tremand 'W. Lea 09 Ex: 430), London and North-Western Betries of cases. of Daubuz y. Lavington (13 Q. B. D. 347), and we are inclined to points arising in the case, Cave, J., decided that the case of Frar time agree with him.
We doubt the propriety of citing the Times Reports Edwardar sunt mi to prevali, and, consequently, judgment was given for the at such length as is done in the Lascelles case (see p. 128), but a plaintiffs for an agreed sum of £136 odd, with costs.
the defendants were ignorant of the plaintiff's patent, nor that the plaintiff CASES OF THE WEEK.
had reason to suppose that they were acting in ignorance. It would be
straining the plaintiff's silence too far to say that, by not giving notice to WELDON v. NEAL-C. A. No. 1, 4th August.
the defendants of infringement, he had represented to them that there was PRACTICE-AMENDMENT-ADDING Causes of ACTION BARRED BY THE STATUTE sentation upon which the defendants were entitled to rely.
There was no estoppel against the plaintiff by means of any repre OF LIMITATIONS.
and Fry, L JJ., concurred.-Counsel, Sir R. E. Webster, A.G., Moulton, On the 1st of September, 1883, the plaintiff, Mrs. Weldon, brought an Q.C., and Maberly; Aston, Q.C., and W. R. Bousfield; Rigby, Q.C., and action for slander against the defendant. At the trial the plaintiff was Bather; 0. L. Clare. SOLICITORS, 4. Macdonald Blair, Manchester; Stringer, nonsuited on the ground that she had not alleged special damage in her Manchester ; Johnston, Harrison, f: Powell ; Chester, Mayhew, & Co. statement of claim, the judge refusing her leave to amend. Subsequently, the Court of Appeal granted a new trial, giving the plaintiff “ leave to
Re SPENCER'S WILL-C. A. No. 2, 5th August. emend."
On the 6th of April, 1887, the plaintiff amended her claim by Will-CONSTRUCTION-ABSOLUTE BEQUEST—Secret Trust-Evidenceadding paragraphs containing claims for assault and false imprisonment, which, if a fresh action were commenced in respect thereof, would be
ADMISSIBILITY. barred by the Statute of Limitations. The Divisional Court (Field and A testator bequeathed £500 to two persons, “relying, but not by way Wills, JJ.) ordered those paragraphs to be struck out. The plaintiff of trust, on their applying the said sum in or towards the objects privately appealed. Clarapede v. Commercial Union Association (32 W. R. 262), communicated to them by me.” The testator's executors objected to pay Steward v. North Metropolitan Tramways Co. (34 W. R. 317, 16 Q. B. D. over the money to the legatees, on the ground that it was given upon a 556), and Doyle v. Kaufman (26 W. R. 98, 3 Q B. D. 340) were referred to trust, and they tendered affidavits to show that there was a trust. The
THE COURT (Lord Esher, M. R., Lindley and Lopes, L.JJ.), dis- legatees objected that the court could not go beyond the terms of the will. missing the appeal, said that where an amendment was allowed it was Bristowe, V.O., held that the evidence was admissible. The legatees subject to this rule, that po amendment should be made which would appealed, and it was contended on their beha'f that, as the will said there injuriously alter the rights which the parties would have if there were no was no trust, the court could not inquire further. Where the will conamendment. In this case, if a fresh action were bronght in respect of tained nothing to shew whether there was a trust or not, the court might these new claims, the defendant would have the Statute of Limitations as hear extrinsic evidence and engraft a trust; but the testator had placed a defence, whereas he would be deprived of that defence if the amendment himself in peril of having his wishes disregarded, and the court could not were allowed. The court would thereby deprive the defendant of a right, create a trust. The principle was the same whether the donor was alive and would be allowing the plaintiff to take advantage of the old action to or dead, and if a living man gave money to another, expressing at the get rid of the statute. Except under the most extreme circumstances the
same time bis wish that he should apply it to an unlawful purpose, the court would not sanction that. The paragraphs must, therefore, be court could not interfere to prevent the gift, though it could prevent the struck out.-COUNSEL, IVood Hill. SOLICITOR, J. Neal.
application of the money.
The Court (Cotton, Bowen, and Fry, LJJ.) affirmed the decision. MAPLE & CO. *. EARL OF SHREWSBURY-C. A. No. 1, 9th August. Cotton; L.J., said that the case came before the court in a very PRACTICE-PAYMENT INTO Court-DENIAL OF LIABILITY-JURISDICTION TO witnesses, or whether they had anything to say, it was inconvenient that
unsatisfactory way, for, before it was known what would be said by the ORDER PAYMENT OUT-R. S. C., 1883, XXII., 6 (c.).
the court should be called on to say whether their evidence was admissible. In an action for £21,000, the price of goods sold and delivered, the If the gift had been simply to the legatees, and it was proposed to adduce plaintiffs applied for judgment under order 14. The judge made an order evidence that it had been made on a promise by the legatees, it was not giving the defendant liberty to defend on paying £15,000 into a bank for disputed that the court would hear the evidence, and if there had been a the benefit of those whom it might concern, with liberty to any party to promise by express words or by silence to perform the testator's wishes, apply. The defendant then delivered a defence in which he denied the court would fasten on the legatees the obligation to carry out those liability and alternatively paid £3,000 into court as sufficient with the wishes, though there had been no express trust, the testator having relied £15,000 in the bank to satisfy the plaintiffs' claim. The plaintiffs applied on the legatees' promise. Here the testator had not said that he had for an order that the £18,000 be paid out to them, at the same time taken no promise from the legatees, but only that his use of the word wishing to continue the action. The Divisional Court (Grove, J., and * relying” was not to be taken as imposing any trust on them by the will. Huddleston, B.) made the order. The defendant appealed.
But he did rely on them, and, even if he had said he had not got a promise The Court allowed the appeal. Lord Esher, M.R., said that the from them, that would not necessarily prevent the court from hearing defendant had been allowed to defend the action upon certain terms.
evidence to shew whether there was a promise or trust, because otherwise After the defence denying liability and alternatively paying money into testators would be able to defeat the Mortmain Act, or to give legacies for court, ord. 22, r. 6, became applicable. The plaintiffs under clause (a.) unlawful purposes. The court would not admit parol evidence to construe might have accepted the £18,000 in satisfaction of their claim, and taken a will, but the question was whether parol evidence should be admitted to it out of court. But the plaintiffs did not do so, and clause (c.) applied. shew what circumstances induced the testator to make the bequest, and to
In Under that clause, if a plaintiff did not accept in satisfaction the sum paid enable the court to fasten on the legatees an obligation or trust. in, and proceeded with the action, the money was to remain in court and Russell v. Jackson (10 Ha. 204) a gift was expressed as for the personal be subject to the order of the court-that is, subject to the final order of benefit of the legatees, and parol evidence was admitted to shew that the court after the case was tried or the defence withdrawn. As long, circumstances existed which enabled the court to impose on the legatees therefore, as there was a defence on the record undetermined, no order an obligation to use the gift for certain purposes. The court was bound could be made for payment of the money out. Lindley and Lopes, L.JJ., to admit parol evidence to shew whether the testator had communicated concurred. --Counsel, J. G. Witt; Cock, Q.C., (Sir R. E. Webster, A.G., wishes to the legatees which would impose upon them an obligation to with him). Solicitors, Lumley & Lumley ; Hadden, Woodward, & Co. employ the legacy accordingly. Bowen and 'Fry, L.JJ., concurred.—
COUNSEL, Pankhurst; Hopkinson. SOLICITORS, T. E. Jones, Manchester ;
W. R. Minor, Manchester.
Re LITTLE-C. A. No. 2, 2nd February. * This action was brought to restrain the infringement of the plaintiff's Married Woman-Removal of RestrainT ON ANTICIPATION-Service OF patent by the defendants. One of the defences raised was acquiescence APPLICATION ON TRUSTEES OF SETTLEMENT-CONVEYANCING Act, 1881, in the defendants' infringement by reason of the plaintiff not having given them notice of infringement. The Court of Appeal (Cotton, Bowen, and Fry, L JJ.) overruled this
In this case an application was made, by originating summons, by a' defence. COTTON, L.J., said that it was not a question of granting an
married woman that she might be at liberty to bind her life interest interlocutory injunction, in which case the court would not interfere if the under a will, and to charge her life interest for the purpose of raising plaintiff had not been prompt in coming for relief, but the question was £300, notwithstanding the restraint on anticipation contained in the plaintiff went to purchasers and asked them to give his machine a trial, £110. The applicant appealed, with the view of obtaining a larger sum. plain taid that when the defendants were selling their machines the the trustees of the will. Kay, J., granted the application to the extent of admission that the defendants were at liberty to infringe his patento alt will ought to have been served, but, on its being pointed out by counsel meant rather that, whatever the plaintiff's rights might be, the practical that the trust fund would not be affected, maid that the plaintiff had acquiesced in what the defendants had done tos presence of the trustees, and they granted the application to the extent rights of a patentee did not depend on his giving notice to infringers, and higheiving them notice that they were infringing his patent. But the of £300.—Counsel, Whateley. Solicitors, Mear go Fowler. the fact that the defendants had acted bona fide would not protect them
DAVIES BROTHERS & Co. v. DAVIES-C. A. No. 2, 9th August. from an injunction. In Ramsden v. Dyson (1 H. L. 140) Lord Cranworth COVENANT IN RESTRAINT OF TRADE-VALIDITY-REASONABLENESS. said :-"If a stranger begins to build on my land, supposing it to be his own, and I, perceiving his mistake, abstain from setting bim right, and
This was an appeal from a decision of Kekewich, J. (ante, p. 331), the often ards to assert my title to the land on which he had wexpended owney plaintif E. A Davies and the defendant James Davies were brothers, and and the mistake into which he had fallen, it was my duty to be active who was since dead, in London and Wolverhampton, as galvanizers and remain wilfully passive on such an occasion, in order afterwards to profit mandato state my adverse title; and that it would mediante est bien active galvanized iron manufacturers. The partnership was dissolved, and
* We report this case, although out of date, au settling annt of by the mistake which I might have prevented.” It was not shewn that
not infr-quent couri
E. A. Davies and his father purchased the defendant's interest in tbe
KURTZ v. SPENCE-C. A. No. 2, 5th August. business and the good will thereof, which he assigned to them by a deed dated the 11th of October, 1884. This deed contained the following Patent-ACTION TO RESTRAIN THREATS BY PATENTEE-RIGHT TO RAISE covenant by the defendant:-“The said James Davies to retire wholly ISSUE OF VALIDITY OF L'ATENT-Patents, DESIGNS, AND TRADE MARKS and absolutely from the partnership, and, so far as the law allows, from Act, 1883, s. 32-AMENDMENT OF PLEADINGS—R. S. O., 1883, XXVIII., the trade or business thereof in all its branches, and not to trade, act, or 1. deal in any way so as to either directly or indirectly affect the said
This was an appeal by the plaintiff from the refusal of Kekewich, J., to E. Davies (the father) and E. A. Davies." The business was afterwards
allow an amendment of the statement of claim. The action was brought purchased by the plaintiff company. In 1885 the defendant commenced under section 32 of the Patents Act of 1883, which provides that where business in Old-street, London, as a galvanized iron merchant and manufacturer, in partnership with one Codner, who had been a traveller for the any person claiming to be the patentee of an invention, by circular, old firm. This trading was alleged to be a breach of the covenant, and the advertisement, or otherwise, threatens any other person with any legal company and E. A. Davies brought the action to restrain the defendant proceedings or liability in respect of any alleged manufacture, use, sale,
or purchase of the invention, any person or persons aggrieved thereby from so trading. On behalf of the defendant it was contended that the covenant was too vague to be eforced, and that it was void as being in
may bring an action against him, and may obtain an injunction against
the continuance of such threats, and may recover such damage (if any) unlimited restraint of trade. Kekewich, J., thought that the covenant was
as may have been sustained thereby, if the alleged manufacture, use, sale, not too vague, and that, without deciding what would be reasonable limits
or purchase to which the threats related was not, in fact, an infringeas regarded space in such a case, those reasonable limits would include the place where the defendant was carrying on his business. And his lord
ment of any legal rights of the person making such threats. Provided ship granted an injunction to restrain the defendant from carrying on
that this section shall not apply if the person making such threats with business in Old-street, or otherwise trading, acting, or dealing so as
due diligence commences and prosecutes an action for infringement of his directly or indirectly to affect the company in their business. On the
patent." The present action was brought to restrain threats made by a appeal it was contended on behalf of the plaintiff that the old common law patentee, and the statement of claim contained an allegation that the rule, that a covenant in general restraint of trade was void, no longer existed, strike out this allegation Chitty, J., on the 12th of August, 1886, held
defendant's patent was invalid. On an application by the defendant to but that the test of validity was whether the restriction was reasonably (33 Ch. D. 579, 30 SOLICITORS" JOURNAL, 703) that in such an action the necessary for the protection of the covenantee.
validity of the defendant's pateat could not be put in issue, and that the Tue Court of APPEAL (COTTON, Bowen, and Fry, L.JJ.) reversed the de- plaintiff's proper course, if he desired to question the valicity of the cision and dismissed the action. Cotton, L.J., said that there was no objec- patent, was to petition under section 26 for its revocation, and his lord; tion to the first part of the covenant—that the defendant should retire ship ordered the allegation of invalidity to be struck out. wholly and absolutely from the partnership; the difficulty arose upon the case of Challender v. Royle, on the 22nd ult., the Court of Appeal (Cotton latter part. The covenant, “ to retire, so far as the law allows, from the and Bowen, L.JJ.) (ante, p. 676) expressed an opinion that in such an trade or business," was expressed in a form which ought not to be fol. action the validity of the defendant's patent could be put in issue. In lowed. Parties ought to work out their own agreement, and not to leave consequence of this expression of opinion the plaintiff in the present it to the court to say how such an agreement was to be carried out. Was, action applied to Kekewich, J., to whom the action had meanwhile been then, the covenant such a one as the law would allow ? If it was a cove transferred for trial, for leave to amend the statement of claim by restoring pant that the defendant would, so far as the law allowed, retire whully the allegation of the invalidity of the patent. Kekewich, J., thought that from the trade or business, it was bad, because it absolutely restrained the he was bound by the decision of his predecessor, which had not been defendant from carrying on business during his lifetime anywhere in appealed from, and refused the application. The plaintiff appealed from England. Kekewich, J., was of opinion that the old rule, that covenants this refusal, and also applied to the Court of Appeal by original motion in restraint of trade were bad, as bemg contrary to public policy and the for leave to appeal from the order of Chitty, J., notwithstanding the interest of the public, was no longer the law of the court. No doubt that expiration of the time limited for so doing. rule had been modified to some extent, and it had been held that partial restraints might be good. The court would not consider the sufficiency of
The Court (COTTON and Fry, L JJ.) refused the application for leave the consideration for the covenant, if there was valuable consideration.
to appeal. And, when there was a partial restraint, the court would consider The appeal from Kekewich, J., was then heard, and whether the restriction was reasonably necessary for the protection of the The Court (COTTON, Bowen, and Fry, L.JJ.) gave the leave to amend covenantee. An absolute unlimited restraint was bad; and when the on certain terms. COTTON, L.J., said that he adhered to the opinion he restraint was partial, either in time or space, it would be good, if it was had expressed in Challender v. Royle—that the question of validity could reasonably necessary for the protection of the covenantee. In his lord- be raised in an action under section 32, and, being of opinion that it was ship’s opinion this rule still existed, and if it was to be altered it must be the real question to be tried in the action, he thought leave to amend altered by the House of Lords. If the covenant in the present case meant should be given. The court had refused the motion for leave to appeal, that the defendant would, within such limits as the law might hold to be no good ground having been shewn for it. But, as by amendment the reasonable, not carry on the business, it was still one which the court ought substantial question could be raised, he thought it ought to be allowed, not to enforce. Parties to such a covenant ought to fix the limit for them- especially having regard to section 24 (7) of the Judicature Act, 1873, selves at their own peril. There was no definite rule as to the limits of a which required the court to give every possible remedy, so that as far as covenant in restraint of trade. The
limit must depend on the possible all matters in controversy between the parties might be com: circumstances of each
In the present case the parties pletely and finally determined. He thought it would be better, if had endeavoured to throw on the court, without risking the validity of injustice to the defendant could be avoided, to allow the amendment, the covenant, the difficulty of determining in any particular case what the rather than to dismiss the action, and give leave to the plaintiff to bring a limit ought to be. The covenant was so wide that neither a court of law nor fresh one. But the court must take care that the defendant did not a court of equity would enforce it. “not to trade, act, or deal in any way so as either directly or indirectly Particulars of objections to the patent should therefore be given by the
As to the latter part of the covenant, suffer any loss, and was not prejudiced in trying the question of validity. to affect the said E. Davies and E. A. Davies,” in his lordship's opinion plaintiff, and the defendant should have the right to begin and replyas will of the business. It was personal to the father and brother of the plaintiff must pay the costs of the application as between solicitor and client, defendant, and they only could sue upon it. Bowen, L.J., agreed that and all costs thrown away, and the amendment must be made on or before the covenant was one which could not be enforced. It was not either for the 9th inst. the benefit of the public or reasonably necessary for the protection of the fused with costs as between party and party. Bowen, L.J., concurred:
If these terms were not accepted the motion would be recovenantee. It was not, therefore, necessary to decide whether the old Fry, L J., differed. He thought that the other members of the court common law doctrine ought to be altered by reason of the change in the conditions of modern life. The inclination of his opinion was that the old could be raised had been decided a year ago, and that decision could not rule was too engrained in the history of this country to be altered, except be appealed from. No new matter of fact had arisen, but only a new view by the House of Lords. If the covenant meant that the restriction was not to be unlimited, but that the limit was to be found in the law, it it would be quite enough to allow the plaintiff to bring a fresh action. would be too vague, even if it was contained in an executory contract. The parties, if that was the meaning, had not made up their minds allowed, but it was still possible for a plaintiff, by want of care, delay, of what they wanted, and were asking the court to make a contract for them. negligence, to deprive himself of the right' of further harassing the inconsistent restrictions which would answer the purpose of the parties, Moulton, Q.c., and w. N. Lawson ; Aston, Q C., and Chadwyck Healey.
The plaintiff accepted the terms proposed. – Counsel, and which the law would allow. How could the court say which of these SOLICITORS, Pritchard & Marshall; Jaques & Co. was to be adopted when the parties had not made up their own minds ? His lordship agreed as to the latter clarse of the covenant. Fry, L.J., also declined to decide whether the old rule, that an unlimited covenant in
Re ADAMS' TRUSTS-Kay, J., 6th August. restraint of trade was bad, still existed, though the inclination of his opinion Trustes—Vesting Order-Infant Heir or LAST SURVIVING Trusteswas in the same direction as when he decided Rousillon v. Rousillon (28 W.R.
Service of Petition --Trustee Acr, 1850 (13 & 14 Vict. c. 60), s. 7. 623, 14 Ch. D. 351). He was inclined to think that a reasonable covenant ought to be enforced. In the present case he thought the first part of the which had descended upon the infant heir of the last surviving trustee,
A petition for a vesting order of real estate, the legal estate in covenant too vague, and that the latter part applied so long as the father had not been served upou the infant. and brother were associated together in business. It did not pass with the Kay, J., directed that it should be so served, and that the petition father.- Counsel, Barber, Q.o., Cock, Q.C., and Russell Broberts, atharming appeared for the infant and consented, and his lordship made the order tor
On its coming on again counsel ton, Q.C., and C. Walker. Solicitors, Brooks, Jenkins, og "Co... Counsel, George Henderson ; Blakestenj, a Solicitons, Albert Batchelor, for Chapman.
Gisby & Son, Ware.