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for the loan, inquired of the proposed mortgagor the nature of the

tenancy, and had been informed by him that the tenant was a yearly tenant at a rent of £80. And before the completion of the mortgage the mortgagplr hpd exprqsslyh stpged that ppeée sW!;l8°;1v0 written agreement wi re erence o e nancy. _ a ,_ ever, contended that the solicitor ought to have made inquiry of the tenant as to the terms of the tenancy. At the trial the ]ury found that the solicitor had not made reasonable inquiries as so plfie terms of the tenancy - that if such inquiries had been ma e e valuer’s estimate woulii have been reduced, if the agreement were 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 Srarnux, “with some degree of doubt, and not without considerable regret,” gave judgment for the plaintifis. We presume that the case will be appealed, and we shall not on the information contained in the report which we reproduce elseiwhere, predict the i€;u1t; but)we may point out tlhat, aplpordpplg toF .T 0 33 .R.113 it is not properywi in e scop?t>fvt;he‘ia1idplio§7ment qf solicitdrs for trustees select a valuer. In that case enliilnent solicitors gavp eV1d]:l.'l0: that, if asked to nanze a valuer the 0 inary course was o su mi a name o_r _names o the trustees and to tell them everything which the solicitor knew 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 selected by the trustees? In most cases no one else can_ do so with the same efficiency, but the lesson of the recent case is that the solicitor ought simply to lay before the trustees all the information he possesses as to the property, and leave them to frame the instructions to the valuer. ' It would appear that a solicitor who takes it upon himself to instruct the valuer is bound tlq verlify every statement of the proposed mortgagor bearing ont_ e'va ue of the property before he gives his instructions. Qu.: is it npt the duty of the valuer when he visits the premises to ascertain from the tenant the amount of his rent and the terms of his tenancy ?

THE BILL to amend the Settled Land Act, 1882, which is being rapidly passed through Parliament, embodies clause 57 of the Land Transfer Bill relating to the redemption of improvement charges. It will be remembered that in Re Knatchbulfs Settled Estate (33 W. R. 569, 27 Ch. D. 349, 20 Ch. D. 588) it was held that such charges could not be properly paid off (in the sense of being extinguished) out of capital moneys arising under the Settled Land Act, though the Lords Justices thought that probably the trustees might apply such capital moneys in buying up the rent charges. The present Bill provides that, “Where any improvement of akind authorized by the [Settled Land Act, 1882], has been or may be made either before or after the passing of this Act, and a rent charge, whether temporary or perpetual, has been or may be created in pursuance of any Act of Parliament, with the object of paying off any moneys advanced for the purpose of defraying the expenses of such improvement, any capital money expended in redeeming such rent charge, or otherwise providing for the payment thereof, shall be deemed to be applied in payment for an improvement authorized by the principal Act; ” and that “ any improvement in payment for which capital money is applied or deemed to be applied under the provisions of the preceding section shall be deemed to be an improvement within the meaning of section 28 of the principal Act, and the provisions of such last-mentioned section shall, so far as applicable, be deemed to apply to such improvement."

Air Inrsnssrnvo ILLUSTRATION of the fallibility of opinion evidence of identity was mentioned in the House of Commons last week. We took occasion some time ago (29 Soucirous’ JOURNAL, 750) to discuss the question of the weight to be attached to this evidence, and to point out the caution with which it should be received. In the case to which the attention of the Home Secretary was drawn last week, a City detective had identi. fied a prisoner as a man who had been formerly convicted, but admitted his mistake on the man formerly convicted being produced in co-irt. It appeared, however, that the resemblance between the two men was most ext;-no;-dim

deformities and marks which are usually considered to afford the strongest evidence of identity. Each of the men had two scars on the chin and a cast in one eye. The case reminds one of HEASAIAIWS in 1868, where o. woman swore, at a coroner’s inquest, that a dead body was that of her husband, on the ground both of general resemblance and of a wound upon a finger which her husband had, and which was also found on the body. The body was clearly proved to be that of a different man. _The fact appears to be that instances of persons almost absolutely similar in appearance are not so uncommon as is usuully supposed.

Ir Is nor UNUSUAL for spinster testatrixes to provide by their wills for their domestic pets. Mr. Justice Cuirrr the other day had a case before him where a lady had made provision for the maintenance of several dogs during their lives; and the learned judge remarked that the proper way of making such gifts was to give an annuity to a person, to cease at the death of the animal. He also said that doubts had often crossed _his mind as to whether such gifts might not violate the rule against perpetuities. There can be no doubt that the life contemplated in the rule against perpetuities is the life of a human being, and it apparently could not be a violation of the rule to make a gift a living dog or cat, as the duration of life of such animals is usually shorter than that of a human being. But take the case of an elephant. \Vould it be legal to give an 8.l1!l1l1bYt0 a Pen” to cease at the death of an elephant when, as is well known, an elephant's life is far longer than the life of a man ?

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Limits of the discussion in these articles.-—_Where a gift inter vivos is alleged to be made, several questions arise._ _

First, when the legal ownership of the property is transferred,_1t may be a matter of doubt whether it was intended to make_a gift to the transferee or to create a trust for the transferor ; and it will be found that, in the absence of any _other circumstances, the answer to the question whether it was intended to make a gift or to create a trust depends upon whether the transferor was bound to provide for the transferee. _

Secondly, where it is clearly intended to make a gift bytrv-118ferring the legal ownership, the question may arise whether that intention was carried into effect. _ _

Thirdly, the donor may make a gift of the equitable l!1i9T95ty only retaining the legal ownership in himself. In this case the question arises, Has he effectually constituted himself _a trustee?

Fourlhly, the legal estate may be outstanding _in a trustee, and the intention may be to transfer the beneficial interest onlyThe question here arises, Is the transfer effectual ? _

Fifthly, the donor may have the legal interet and intend U; make a gift by transferring the legal interest to one person in trus for another. Here two questions present themselves : (I) Is the transfer of the legal interest effectual? (2) Has the donor effectually declared the trusts of the beneficial interest?

We intend to discuss all these questions. We do not, however, intend to discuss the questions that often present themselves-—_viz_-, under what circumstances a transfer of property by way °f glitbls void as against creditors under 13 Eliz. c. 5, made p91‘Pet“"1 Y 29 Eliz. c. 5; or where a conveyance of “lands, tenements, OI other hereditaments ” is void as against a subsequent purchaser fog value under 27 Eliz. c. 4, made perpetual by 39 Eliz. c. 13 » The questions that arise under these statutes are not what 0%"stitutes a gift, but, assuming that a gift was effectual‘? mar? under what circumstances can it be set aside by a creditor or 1110 ' gagee ?

Every declaration of trust inter -vivos of “land, tenements, “lid hereditaments ” must be in “ writing, signed by the person whodls . by law entitled to declare such trust." (See the Statute of Frail 5» 29 Car. 2, c. 3, s. 7.) \Ve do not intend to discuss tho ¢1_11e§t‘°n; that arise under this section; but we may mention that it is"? necessary that the trust should have been created in writin8 5 It," suflicient if it be proved by a writing duly signed (Forster V- H" ‘Y


ry extending not merely to general appearance, features and height, but also to

p 3 Ves. 696); but it must be signed by the person beneficially 811

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Aug. 13, 1887- THE SOLICITORS’ JOURNAL. p 689 g

titled (Tierney v. Wood, 19 Beav. 330; Kronheim v. Johnson, 7
Oh. D. 60; Leman v. Whitley, 4 Russ. 423); and the nature
of the trust must be proved by the writing (Smith v. Matthezvs, 3
D. F. J. 139; Davies v. Otty, 33 Beav. 540).

We shall discuss only two of the points that arise under gifts
made by deed, or, as they are often called, voluntary deeds; as the
discussion of all the questions that arise under deeds of this nature
would almost require a treatise to itself.

We shall not discuss the law of shipping, and only touch incidentally on the law of real property.

A gift must bo voluntary on the part of the a7on0r.—In a curious case, 42 Edw. 3, 4, pl. 16, where the sherifi attempted to prescribe that the inhabitants of a certain hundred ought to give him a demi-mark or ahorse whenever he held his tourne there, Mowbray, J., said, in his judgment, “every gift is at the will of the donor.”

It should, perhaps, be remarked, once for all, that the word “done” in the year books, usually translated “gift,” does not necessarily imply that no consideration passed; compare the expressions “to give” in tail, “donee” in tail, where thcre is necessarily consideration, if the reversion is retained by the donor, owing to the tenancy created.

It is not necessary that the donor should express in words his intention to make the gift, it suffices if the intention is manifested by his acts: see the oases post. It should, perhaps, be observed that a promise to make a gift in the future does not amount to an immediate gift: Re Ridgeiuay (15 Q. B. D., at p. 449).

Whore there is a patent ambiguity; as to the subject matter of the gift it may be made qood b_1/ election.—“If I give to a man my cow or my horse, he can take either at his election; but if I promise to give him my cow or my horse at a future time, it is in my election to give him which I choose ” : per Rede, J., 21 Hen. 7, 18, Br. Done. 19. “If I give you one of my horses, although that be uncertain, yet by your election that may be made B good gift”: Meroyn v. Lyds (Dyer, at p. 91a. (11)).

The donee must be aacertai'ned.—“ If one gives a thing to J. S. or N. T., it is bad for the uncertainty” (ll Hem 7. 12. P1- 4)“G. said to J. that he gave goods to one of the sons of J., and that -T. might take them;” held bad (Paston (.9 Genne_y’s 01186. 11 Edw4, 2, pl. 2, Br. Done, 31). See Roberts v. Roberts (11 Jur. N. S. 992); Haqhes v. Stubbs (ll Jur. N. S. 913) for instances of the donee not being properly ascertained.

The donee must be capable of ta/cin_q.—Accordingly, a shroud put on a corpse remains the property of the person to whom it belonged at the time when it was put on, as a dead body is not capable of taking: Haynes’a case (12 Rep. 113; same case, 3rd Instit. 110). This is a point necessary to be remembered where a testator wishes to provide for a lapdog or a favourite horse; as a dog or a horse is incapable of taking, the proper course in such a case is to Elve the legacy to a person with a request, so framed as not to be a trust, that he will maintain the dog or horse.

The gift must be accepted by the doneo.—The donee is not forced to accept a gift: per Mellish, L.J., Hill v. Wilson (8 Ch., at p. 893); see 7 Edw. 4, 29, pl. 14. Where the gift is made by parol, it does not vest in the donee till acceptance (note by Manning. 5-, London and Brighton Railway Co. v. Faircloaoh 2 Man. Gr. 691); on the other hand, where it is made by deed, it V88ts_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 bi’ record; Townson v. Tit-hell (3 B. 8: A1. 31); Peat-och v. Eaxtlamt (10 Eq. 20).

-I"./‘"115-—It appears that an infant can accept a gift, though he ma)’ repudiate it on coming of age (see Co. Lit. 2b.). We _B-pp1‘9bend, however, that, owing to the personal incapacity of the infant, the acceptance must be made by or with the consent of his guardian, Ph°°811 Probably the consent of the guardian might readily J8 inferred from circumstances. _

_A well-known example of the right of an infant to repudiate 85157 on his coming of age is afiorded by the transfer to. or purchase "1_U_1c name of, an infant of shares in a company. He can, on att“"11_|18 tWe11ty~one, if the transfer or purchase was made by It P615°" "Q Z000 parentis, claim to keep them as an advancement, or may 1'ePlld-late them: Reed’s case (24 Beav. 318); Richardsar/s case (19 Eq. 588); We8ton’s case (5 Ch. 614); Manna’ case (3 Ch- 459tel; QHrlis's case (6 Eq. 455).

There is a very interesting case (The Wardens of the House of

the Minor Brothers of London, 11 H. 4, 31) which is often cited as shewing that merely putting clothes on an infant is a gift of them to him. But all that it proves is that where A. unlawfully takes an infant out of custody of his father, strips him of the clothes that he was wearing and puts other clothes on him, and the infant escapes and returns to his father, the latter is not liable in trespass for having taken the clothes in which the infant escaped. One_ of the judges thought that thedacts of ppripplipg thelbogl and putting new clothes on him amounts to a gi to 'm. n e same case one of the 'udges said: “ If an adulterer takes a man’s wife and puts new clothes on her, the husband may take his wife back with the clothes.”

This case is a most useful decision; it may be cited with advantage at the present day. It sometimes happens that where a young girl is taken out of her parents’ custody for an unlawful purpose, and is rescued, threats are made by the person who takes her out of her parents’ custody of taking criminal proceedings agamst her or the person rescuing her for stealing the clothes that she wears when she is rescued ; and this decision shews that such threats may be disregarded. _

In criminal cases clothes and other necessaries provided for children by their parents are often laid to be the property of tho parents, especially while the children are of tender age; but it is good either way. At the Oldl Bailey, 171(J1, Tracytand Turiiilll,-, and Lovell, Recorder, doubte w et ert e props yo ago 6 8-111 which was taken from the neck of a child who had worn it for four years ought not to be laid in the father. B_ut Tanner, who had been an ancient clerk of the court, said that it had always been used to lay it to be the goods of the child in such case, and that many indictments which had laid them to be the property of the father had been ordered to be altered by the ]udge (2 EastvPleas pf the Crown, ch. xvi. s. 91). See, to same effect, note to Iwrsgate s cass (1 East C. C. 464). _

Gifts by husband to wi'fe.—It should be observed_ that prior to 1883 a husband could not transfer the legal ownership of chattels to his wife, and that therefore the only manner in which he could give them to her was by constituting himself a trustee for her. In some cases it has been held that an attempzetd aisggnlpicnt bi Bhusband to his wife operated as a declaration 0 rus y im in er favour: Grant v. Grant (34 Beav. 623) ; Mews v. Mews (15 Beav529); Baddoley v. Baddeley (9 Ch. D. 113); Fox v. Hawhes (13 Ch. D. 822) ; but these decisions are of questionable authority : Re Breton 17 Ch. D. 416 . _ _

Befor(e 1883, the mefe fact of a husband allowing his wife to open a banking aciount did pot iilizeppte ii; a gifo gir ';f8)tlrmo*}ni§:

aid in to er accoun : 1/ v. ug is - 7 iillowing her to carry on business did not render the prorieedls tléol‘ separate estate: Re Wll2bt¢l]C0,7‘ (21 Ch. D. 657); but on t e a or point see the Married Women s Property Act, 1870._ h f

See as to the effect of a purchase by a husband int e nan; 0 his wife, or in the joint names of himself and his wife, poet, dug"chase in the name of ri person whom the purchaser ta boim 0 su ort. _ _ _ .

pgift by marrietl woman.—In cases not falling within the Mfirlid Woman’s Property Act, 1882, a gift of chattels made by a WL c 1; a stranger with her husband's consent is effectual : Lucas v- iwll (1 Atk. 210).

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Since the appearance of the last edition of this work in 1877, the cases upon its subject have been many and important, no less than eight, for instance, having been taken to the House of Lords during the last four or fivc years. We have tested the book iii connection with cases great and small, and, with the exception of the compare.tively unimportant Di/iori v. Adams (53 L. J. Q. B. 437), have not been able to discover ii single omission, and the only criticism we have to make on this branch of the editing is that a reference to the text ought to have been given at the single “ Addendum ” of Marine Insurance Co. v. China Transpacific Steamship O0. (ll App. Cas. 573), together with some comment upon its efi'ect, more especially as the editor draws special attention in the preface to the “ three per cent. memorandum.” As to the mode in which the new cases have been inserted, we have, as a rule, nothing but praise to bestow. Take, for instance, In_qIi's v. Stock (10 App. Gas. 263). The principle is first clearly stated, and then we have, what is necessary in cases of this kind, a full statement of the facts and of the mode in which the decision was arrived at. We are glad to observe, too, that Mr. Miiclachlan continues fearlessly to express his own opinion where he happens to differ from learned judges, as where he says that Burton 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), though it is going too far to speak, even in a note (page 103), of a “ grossly erroneous decision of the Lords.”

We rather regret to notice that the lengthy comments on Lohre v. .'l1tchi'son and on the meaning of “average” are still retained. These do great credit to the editor's learning and research, but we cannot think them of much assistance to the reader; and we would suggest, too, that the time has come when the facts of the earlier cases might be either omitted or condensed -with great advantage.

In the way of addition it would have been well to have given the whole of the Act 3i Vict. c. xxi., incorporating "Lloyds,” which, 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 ui the text (see page 150), stated to be printed in the appendix.

The index is remarkably good, both in quality and quantity, but we regret to observe that in the great majority of oases a reference to only one set of reports is given.

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hglgile present edition of Mr. Robson’s well-kiiowii work appears as a s 1 y volume, with all the advantages which excellent type and B gig? page afford. As regards the decisions on the Bankruptcy Act up t E: B_l.ll_S of Sale Acts since the last edition, we may say that the Q itrac eiiistic of former editions is preserved ; the cases are digestedgfie Te? Y étfillllg together in foot:notes or the head-notes copied in edmolfi - d (Iris aredfew books which have passed throiigh_ so many latest Egan 11$/9 £28 50 much like a new book written _in view of the men“. witige est e earlier cases. A new chapter on private arrangefun can _dcre dl ors has been added, in which _the subicct is very andYtbB 8&1 prof huuder the heads of compositions, assignments, scnured Cr act 0 ese on the remedies of creditors and on surcties and cdb If 1 °" ! and forms relating to_statutory arrangements with

re i rs ave been added to the appendix.

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little occasional prolixity is the only fault we have to find with the work.

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This volume brings the Index up to the end of the letter O, and includes the important headings of “Statute of Limitations,” “Insurance,” “Landlord and Tenant,” “Legacy,” and “Mortgage.” Taking the Statute of Limitations heading alone, the ten leading sub-headings under which the matter is arranged form an excellent guide to the various branches of the subject; and by the numerous sub-sub-headings and minuter divisions the reader can, from the table prefixed to the title, findhis way with little diificiilty to the matter he is in search of. The arrangement of matter in the different divisions appears to be careful and convenient.


THE LAW AND PRACTICE or PETITION or RIGHT UNDER "run PETITIONS or Rioiir Aer, 1860. By WALTER CLODE, Barrister-at-Law. William Clowes & Sons (Limited).

This is a very satisfactory book upon an entirely new subject. There is a very full statement of the cases and authorities in the first part, and the Act of 1860 is printed with copious notes in the second. There is also an appendix containing a title of all petitions of right presented between 1860 and 1876, shewing their sub]ectmatter and result, and an appendix of the laws of the subject in Ireland, Scotland, and “certain colonies and dependencies." Yery great research and pains have evidently been expended by the writer. and though the antiquarian portion of the subject is very fully dealt with, we are not prepared to say that the author has gone too far in this respect.


THE CONTRACT or Arraaionrniisr As EXPRESSED IN’ CHARTERPARTIES AXD BILLS or L.iDI.\'o. By T. E. SCRUTTON, M.A-, LL-B . Barrister-at-Law. William Clowes & Sons (Limited).

Mr. Scruttori has attempted the ditficult task of reducing the law of his subject “to a series of principles in the form of B digest,” and has added notes “ either discussing the numerous legal ditficulties which arise, or stating the present commercial practice." The notes are very good indeed, short and sensible, and Mr. Scruttoii has followed the example of Lord Blackburn in his “ Contract of Sale" in giving the dates of the decisions referred to. He is._t° our thinking, quite right in having omitted old authorities, which have become by change of time obsolete. The book is one which promises well.

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2 Aug. 13. I887. THE SULICITORS’ JOURNAL. 69. H! , ’ . _

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On the 1st of September, 1883, the plaintiff, Mrs. \Vcldon, brought an action for slander against the defendant. At the trial the plaintiff was nonsuited on the ground that she had not alleged special damage in her statement of claim, the judge refusing her leave to amend. Subsequently, the Court of Appeal granted a new trial, giving the plaintiff “leave to amend." On the 6th of April, 1887, the plaintiff amended her claim by adding paragraphs containing claims for assault and false imprisonment, which, if afres action were commenced in respect thereof, would be barred by the Statute of Limitations. The Divisional Court (Field and Wills, JJ.) ordered those paragraphs to be struck out. The plaintiff appealed. Olarapeds V. Commercial Union Association (32 W. R. 262), Steward v. North Hetropolitiin Trrvmu-rv_i/s /Jo. (34 \V. R. 317, 16 Q, B, D_ 556), and Doyle v. Kaufman (26 W. R. 9?, 3 Q B. D. 340) were referred to,

_Tiil Cornr (Lord Esnaii, M.R., Ll.\'DLE\' and Lovas, L.JJ.), dismissing the appeal, said that where an amendment was allowed it was fubject to this rule, that no amendment should be made which would injuriously alter the rights which the parties would have if there were no amendment. In this case, if a fresh action were brought in respect of these new claims, the defendant would have the Statute of Limitations as udefence, whereas he would bc deprived of that defenccif the arnendmi-nt were allowed. The court would thereby deprive the defendant of a right, and would be allowing the pluintifi to take advantage of the old action to get rid of the statute. Except under the most extreme circumstances the court would not sanction that. The paragraphs must, therefore, be struck our.—Coi".\'si:L, Wood Hill. Soniciroii, J. Neal.

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In an action for £21,000, the price of goods sold and delivered, the plaintiffs applied for judgment under order 1-1. The judge made an order giving the defendant liberty to defend on paying £15,000 into a bank for the benefit of those whom it might concern, with liberty to any party to "_PPly_- The defendant then delivered a defence in which he denied liability_and alternatively paid £3,000 into court as suflicient with the £1a,000 in the bank to satisfy the plaintiffs’ claim. The plaintiffs applied for an order that the £18,000 be aid out to them, at the same time wishing to continue the action. ‘The Divisional Court (Grove, J., and Hiiddleston, B.) made the order. The defendant appealed.

Tiia Couar allowed the appeal. Lord E51-IER. M.R., said that the defendant bad been allowed to defend the action upon certain terms. After the defence denying liability and altv rnatively paying money into °°_‘"h ord. 22, r. 6, became applicable. The plaintiffs under clause (a.) might have accepted the £18,000 in satisfaction of their claim, and taken it out of court. But the plaintiffs did not do so, and clause (c.) applied. llnder that clause, if a plaintiff did not accept in satisfaction the sum paid "1, find proceeded with the action, the money was to remain in court and be subject to the order of the court—that is, subject to the final order of the court after the case was tried or the defence withdrawn. As long, therefore, as there was a defence on the record undetermined, no order could be made for payment of the money out. LINDLBY and Lori-rs, L.JJ., co_ncur_red.—Oounsi:r., J. G. Witt ,- Cork, Q.0., (Sir R. E. Webster, A.G., "ml l1lIJJ)- Boi.ici'roiis, Lumley 4' Lumley; Haddm, Woozlioarrl, 5' Co.

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This action was brought to restrain the infringement of the plaintit?E‘s Patent by the defendants. One of the defences raised was acquiescence in the defendants’ infringement by re asoii of the plaintiff not having given them notice of infringement.

Tiin Couiir or APPEAL (Oorrozv, Bowen, and Flt)’, L JJ.) overruled this fltiehco. Cor-rox, L.J., said that it was not a question of granting an interlocutory injunction, in which case the court would not interfere if the plaintiff had not been prompt in coming for relief, but the question was whether the plaintiff's rights were barred at the trial of the action. It WM} said that when the defendants were selling their machines the Plsintufl went to purchasers and asked them to give his machine a trial, telling _them that they would find it a better one. Did that amount to an admission that the defendants were at liberty to infringe his patent? It meant rather that, whatever the plaintiff's rights might be, the practical matter of superiority was enoughior his particular purpose. Then it was Fflld that the plaintiff had acquiesced in what the defendants had done by “Pl 8"1118 them notice that they were infringing his patent. But the flglllfi Of 8 patentee did not depend on his giving notice to infringers, and

he fact that the defendants had acted bond fidc would not protect them from an injunction. In Ramadan v. Dyson (1 H. L. 140) Lord Cranworth “id !—“ If a stranger begins to build on my land, supposing it to be his ;“'n- mfd It Perceiving his mistake, abstain from setting him right, Bud eave him to persevere in his error, a court of equity will not allow me afterwards to assert my title to the land on which he had expended money °11 the supposition that the land was his own. It considers that. when I saw the mistake into which he had fallen, it was my duty to be active and P? state my adverse title; and that it would be dishonest in me to gemfllll wilfully passive on such an occasion, in order afterwards to profit Y the mistake which I might have prevented." It was not shewn that

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A testator bequeathed £500 to two persons, “relying, but not by way of trust, _on their applying the said sum in or towards the objects privately communicated to them by me.” The testator's executors objected to pay over the money to the legatees, on the ground that it was given upon a trust, and they tendered affidavits to shew that there was a trust. The leg_atees objected that the court could not go beyond the terms of the will. Bristowe, V.O._, held that the evidence was admissible. The legatees appealed, and it was contended on their beha‘f that, as the will said there was no trust, the court could not inquire further. Where the will contained nothing to shew whether there was a trust or not, the court might hear extrinsic evidence and engraft a trust; but the testator had placed himself in peril of having his wishes disregarded, and the court could not create a trust. The principle was the same whether the donor was alive or dead, and if a living man gave money to another, expressing at the same time his wish that he should apply it to an unlawful purpose, the court could not interfere to prevent the gift, though it could prevent the application of the money.

Ti-is Conn-r (Corrox, Bovv-xx, and FRY, L JJ.) aifirmed the decision. COTTON, L.J., said that the case came before the court in a very unsatisfactory way, for, before it was known what would be said by the witnesses, or whether they had anything to say, it was inconvenient that the court should be called on to say whether their evidence was admissible. If the gift had been simply to the legatees, and it was proposed to adduce evidence that it had been made on a promise by the legatees, it was not disputed that the court would hear the evidence, and if there had been ii promise by express words or by silence to perform the testator's wishes, the court would fasten on the legatees the obligation to carry out those wishes, though there had been no express trust, the testator having relied on the legatees' promise. Here the testator had not said that he had taken no promise from the legatees, but only that his use of the word “ relying " was not to be taken as imposing any trust on them by the will. But he did rely on them, and, even if he had said he had not gotapromise from them, that would not necessarily prevent the court from iearing evidence to shew whether there was a promise or trust, because otherwise testators would be able to defeat the Mortmain Act, or to give legacies for unlawful purposes. The court would not admit parol evidence to construe a will, but the question was whether parol evidence should be admitted to shew what circumstances induced the testator to make the bequest, and to onable the court to fasten on the legatees an obligation or trust. In Ifuarell v. Jackson (10 Ha. 204) a gift was expressed as for the personal benefit of the legatecs, and parol evidence was admitted to shew that circumstances existed which enabled the court to impose on the legatccs an obligation to use the gift for certain purposes. he court was bound to admit parol evidence to shew whcther the tostator had communicated wishes to the legatees which would impose upon them an obligation to employ the legacy accordingly. Bowen and Far, L.JJ., concurred.Couuszn, Pankliursl; Hopkinson. Soucirons, 1'. E. Jones, Manchester; W. B. zilinor, Manchester.

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In this case an application was made, by originating summons, bya married woman that she might be at liberty to bind her life interest under a will, and to charge her life interest for the purpose of raising £300, notwithstanding the restraint on anticipation contained in the will. The summons was served on the applicant's husband, but not on the trustees of the will. Kay, J ., granted the application to the extent Of £110. The applicant appealed, with the view of obtaining a larger sum. On the hearing of the appeal the court suggested that the trustees of the will ought to have been served, but, on its being polfikd out by counsel that the trust fund would not be affected, _

Tun Counr (Canon, LINDLEY, and Loras, L.JJ.)_did_ not require the presence of the trustees, and they granted the application to the extent of £300.—CoL'nsizL, Wlialeley. SOLICITORS, Jllerzr 4- Fowfsr.

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E. A. Davies and his father purchased the defendant’s interest in the business and the goodwill thereof, which he assigned to them by a deed dated the 11th of October, 1884. This deed contained the_following covenant by the defendant:—“The said James Davies to retire wholly

» and absolutely from the partnership, and, so far as the law allows, from

the trade or business thereof in all its branches, and not to trade, act, or deal in any way so as to either directly or indirectly affect the said E. Davies (the father) and E. A. Davies.” The business was afterwards purchased by the plaintiff company. In 1885 the defendant commenced business in Old-street, London, as a galvanized iron merchant and manufacturer, in partnership with one Codner, who had been a traveller for the old firm. This trading was alleged to bea breach of the covenant, and the company and E. A.Davies brought the action to restrain the defendant 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 unlimited restraint of trade. Kekewich, J ., thought that the covenant was not too vague, and that, without deciding what would be reasonable limits as regarded space in such a case, those reasonable limits would include the place where the defendant was carrying on his business. And his lordship granted an inj unctioii to restrain the defendant from carrying on business in Old-street, or otherwise trading, acting, or dealing so as directly or indirectly to affect the company in their business. On the appeal it was contended on behalf of the plaintiff that the old common law rule, that a covenant in general restraint of trade was void, no longer existed, but that the test of validity was whether the restriction was reasonably necessary for the protection of the covenantee.

Tun Covar OF Arrasi. (Cor-res, BOWEN, and FRY, L.JJ.) reversed the decision and dismissed the action. Co-rruiv, L.J., said that there was no objection to the first part of the covenant—-that the defendant should retire wholly and absolutely from the partnership ; the difliculty arose upon the latter part. The covenant, “ to retire, so far as the law allows, from the trade or business,” was expressed in a form which ought not to be followed. Parties ought to work out their own agreement, and not to leave it to the court to say how such an agreement was to be carried out. \Vas, then, the covenant such a one as the law would allow? If it was a covenant that the defendant would, so far as the law allowed, retire wholly from the trade or business, it was bad, because it absolutely restrained the defendant from carrying on business during his lifetime anywhere in England. Kekewich, J ., was of opinion that the old rule, that covenants in restraint of trade were bad, as being contrary to public olicy and the interest of the public, was no longer the law of the court. £10 doubt that rule had been modified to some extent, and it had been held that partial restraints might be good. The court would not consider the sutficiency of the consideration for the covenant, if there was valuable consideration. And, when there was a partial restraint, the court would consider whether the restriction was reasonably necessary for the protection of the covenantee. An absolute unlimited restraint was bad; and when the restraint was partial, either in time or space, it would be good, if it was reasonably _necessary for the protection of the covenantee. In his lordship’s opinion this rule still existed, and if it was to be altered it must be altered by the House of Lords. _ If the covenant in the present case meant that the defendant would, within such limits as the law might hold to be reasonable, not carryon the business, it was still one which the court ought not to enforce. Parties to such a covenant ought to fixthe limit for themselves at their own peril. There was no definite rule as to the limits of a covenant in restraint of trade. The limit must depend on the circumstances of each case. In the present case the parties had endeavoured to throw on the court, without risking the validity of tlie_covenant, the difficulty of determining in any particular case what the limit ought to_be. The covenant was so wide that neither a court of law nor :1 court of equity would enforce it. As to the latter part of the covenant, not to trade,act, or deal in any way so as either directly or indirectly to affect the said Davies and E. A. Davies,” in his lordship's opinion the benefit of it did not pass to the company as purchasers of the goodwill of the business. It was “personal to the father and brother of the defendant, and they only co d sue upon it. Bowax, L.J., agreed that the covenant was one which could not be enforced. It was not either for the benefit of the public or reasonably necessary for the protection of the covenantee. It was not, therefore, necessary to decide whether the old common law doctrnie ought to be altered by reason of the change in the conditions of modern life. The inclination of his opinion was that the old rule was too engrained in the history of this country to be altered, except by the House_0f_Lords. If the covenant meant that the restriction was ‘mt {'0 be unllmltedl but that the limit was to be found in the law, it ¥;u d be_too yague, even if it was contained in an executory contract. he parties, if that was the meaning, had not made up their minds pt at they wanted, and were asking the court to make a contract for them. _ the law would, allow _certain restrictions, there might be twenty inconsistent restrictions which would answer the purpose of the parties, and which the law would allow. How could the court say which of these was to be adopted when the parties had not made up their own minds? His lordship agreed as to the latter clause of tho covengm; FRY L J aim dmlifled 9° decide Whether the old rule that an unlimited ciiveiiaiit in restraint of trade was bad, still existed, thbugh the inclination of his O iuion

was in the same direction as when he decided Rousillon v Ifousillon (rsliv R 623, 14 Oh. 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 figaegigphizo vague, that the latter part applied so long as the fatherwere associated together in business. It did not 355 with the

goodwill of the business, and could not be broken after theizieagh of ti, f2itl1l§l".—Cl>L'.\'SKL, Bar/zzr, Q-C., Cork, (3.0-, and Ru,§.r¢[[ ];,,{,c,.,a _ Wnrminge 1 P . I ' €eZ|,W(”l';f'1_., and 1.. I! ril/.er. s0LlUl'l'0R.~', Brooks, Jm/_-,',,,,- ,5. g,,_ - R_

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This was an appeal by the plaintiff from the refusal of Kekewich, J ., to allow an amendment of the statement of claim. The action was brought under section 32 of tho 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 invention, any person or persons aggrieved thereby may bring an action against him, and may obtain an l.B]11llOii‘l0l1 against the continuance of such threats, and may recover such damage (it any) as may have been sustained thereby, if the alleged manufacture, nse,_ sale, or purchase to which the threats related was not, in fact, an infringement of any legal rights of the person making su_ch threats. Provided that this section shall not apply it the person_making_ such threats with due diligence commences and prosecutss an action for infrmgement of his patent.” The present action was brought restrain threats made by a patentee, and the statement of claim contan_ied_an alleglation that the defendant's patent was invalid. On an application by t a defendantto strike out this allegation Chitty, J., on the 12th o_f August, 188§, held (33 Ch. D. 579, 30 Souciroiis’ Jonnsan, 703) that _in_such an action the validity of the defendant’s patent could not be put in issue, and that the plaintif‘f’s proper course, if he desired to question the valioity of the patent, was to petition under section 26 for its revocation, and his lordship ordered the allegation of invalidity to be struck out. In the recent case of Oluzllender v. Boyle, on the 22nd ult., the Court of Appeal (C0301! and Bowen, L.JJ.) (ante, p. 676) expressed an opinion that in such an action the validity of the defendant's patent oouldlbeput in issue. Ill consequence of this expression of opinion the plaintiff in the present action applied to Kekewich, J., to whom the action had meanwhile been transferred for trial, for leave to amend the statement of claim by restoring the allegation of the invalidity of the patent. Kekewicli, J ., thought that lie was bound by the decision of his predecessor, which had not been appealed from, and refused the application. The plaintiff appealed from this refusal, and also applied to the Court of Appeal by _original_moti0l1 for leave to appeal from the order of Chitty, J ., notwithstanding the expiration of the time limited for so doing.

Tue Cociir (Cor-rozv and Far, L JJ.) refused the application for leave to appeal.

The appeal from Kekewich, J ., was then heard, and

T1-in Couar (Oorrox, Bowas, and Fair, L.JJ.) gave the leave to amend on certain terms. Corros, L.J., said that he adhered to the opinwll he had expressed in Clmllondar v. Rog/Ze—-that the question _of_ val.id1ty_00\11d be raised in an action under section 32, and, being of opinion that it W9! the real question to be tried in the action, he thought leave to amend should be given. The court had refused the motion for leave to appeal: no good ground having been shewn for it. But, as by amendment the substantial question could be raised, he thought it ought to be allowed. especially having regard to section 24 (7) of the Judicature Act, 1313. which required the court to give every possible remedy, so that as fill88 possible all matters in controversy between the parties might be com_pletely and finally determined. He thought it would be better, if injustice to the defendant could be avoided, to allow the amendment, rather than to dismiss the action, and give leave to the plaintiff to b_r1l1K B fresh one. But the court must take care that the defendant dld _1l°l" suffer any loss, and was not prejudiced in trying the question ‘of VBlldltY* Particulars of objections to the patent should therefore be glvfll bi 31° plaintiff, and the defendant should have the right to begin and rePl.Y i“ if he had been plaintiff in an action for violation of his_patent. _Tl1B plaintiff must pay the costs of the application as between sohcitor and client» and all costs thrown away, and the amendment must be made on or before the 9th inst. It these terms were not accepted the motion would be $iused with costs as between party and party. BO\\'BN| L'J'1 °°n°“" ' Far, L J ., differed. He thought that the other members of the cow: were too indulgent. The question whether the validity _o_f the Pamlt could be raised had been decided a year ago, and that decision could P° be appealed from. No new matter of fact had arisen, but only a_new new of the law, and the amendment was inconsistent with an existing 01'd°l'It would be quite enough to allow the plaintiff to bring a fresh l\Gt10:The Judicature Act required that all proper amendments slldllld e allowed, but it was still possible for a plaintiff, by want of care, dF1“Y I I?‘ negligence, to deprive himself of the right of further harassiI18__t ° defendant. The plaintiff accepted the terms proposed. - Coussiit, Jiloulton, Q.O., and W. N. Lawson; Aston, (10., and Chadwyak HenleySouciroris, Pri'tc/zar1lg- Mars/lull ; Jaques 4 0'0.

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