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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 mortgagor had expressly stated that there was no written agreement with reference to the tenancy. It was, however, contended that the solicitor ought to have made inquiry of the tenant as to the terms of the tenancy. At the trial the jury found that the solicitor had not made reasonable inquiries as to the terms of the tenancy; that if such inquiries had been made the valuer's estimate would 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 STEPHEN, "with some degree of doubt, and not without considerable regret," gave judgment for the plaintiffs. We presume that the case will be appealed, and we shall not, on the information contained in the report which we reproduce elsewhere, predict the result; but we may point out that, according to Fry v. Tapson (33 W. R. 113), it is not properly within the to Fry v. Tapson (33 W. R. 113), it is not properly within the scope of the employment of solicitors for trustees to select a valuer. In that case eminent solicitors gave evidence that, if asked to name a valuer, the ordinary course was to submit a name or names to the trustees and to tell them everything which the solicitor knew 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 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 from the tenant the amount of his rent and the terms of his tenancy?

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 HEASMAN's in 1868, where a 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 usually supposed.

wills for their domestic pets. Mr. Justice CHITTY the other day IT IS NOT UNUSUAL for spinster testatrixes to provide by their 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 to 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 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 elephant's life is far longer than the life of a man?

THE LAW OF GIFTS INTER VIVOS.

I.

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, it to the transferee or to create a trust for the transferor; and it will may be a matter of doubt whether it was intended to make a gift be found that, in the absence of any other circumstances, the to create a trust depends upon whether the transferor was bound to answer to the question whether it was intended to make a gift or provide for the transferee.

ferring the legal ownership, the question may arise whether that Secondly, where it is clearly intended to make a gift by transintention was carried into effect.

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

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 Knatchbull's Settled Estate (33 W. R. 569, 27 Ch. D. 349, 29 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 a kind 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 Fourthly, the legal estate may be outstanding in a trustee, created in pursuance of any Act of Parliament, with the object of and the intention may be to transfer the beneficial interest only. paying off any moneys advanced for the purpose of defraying the The question here arises, Is the transfer effectual? expenses of such improvement, any capital money expended in redeeming such rent charge, or otherwise providing for the pay-make a gift by transferring the legal interest to one person in trust Fifthly, the donor may have the legal interest and intend to 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 66 any transfer of the legal interest effectual? (2) Has the donor effecimprovement in payment for which capital money is applied or deemed to be applied under the provisions of the preceding section tually declared the trusts of the beneficial interest? We intend to discuss all these questions. We do not, however, shall be deemed to be an improvement within the meaning of intend to discuss the questions that often present themselves-viz., section 28 of the principal Act, and the provisions of such under what circumstances a transfer of property by way of gift is 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? The questions that arise under these statutes are not what constitutes a gift, but, assuming that a gift was effectually made, under what circumstances can it be set aside by a creditor or mortgagee?

AN INTERESTING 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 SOLICITORS' 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 identified a prisoner as a man who had been formerly convicted, but admitted his mistake on the man formerly convicted being produced in court. It appeared, however, that the resemblance between the two men was most extraordinary, extending not merely to general appearance, features and height, but also to

Every declaration of trust inter vivos of "land, tenements, and hereditaments" must be in "writing, signed by the person who is by law entitled to declare such trust." (See the Statute of Frauds, 29 Car. 2, c. 3, s. 7.) We do not intend to discuss the questions that arise under this section; but we may mention that it is not necessary that the trust should have been created in writing: it is sufficient if it be proved by a writing duly signed (Forster v. Hale, 3 Ves. 696); but it must be signed by the person beneficially en

titled (Tierney v. Wood, 19 Beav. 330; Kronheim v. Johnson, 7 Ch. D. 60; Leman v. Whitley, 4 Russ. 423); and the nature of the trust must be proved by the writing (Smith v. Matthews, 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 be voluntary on the part of the donor.-In a curious case, 42 Edw. 3, 4, pl. 16, where the sheriff attempted to prescribe that the inhabitants of a certain hundred ought to give him a demi-mark or a horse 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 there 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 cases post. It should, perhaps, be observed that a promise to make a gift in the future does not amount to an immediate gift: Re Ridgeway (15 Q. B. D., at p. 449).

Where there is a patent ambiguity as to the subject matter of the gift it may be made good by 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 a good gift": Mervyn v. Lyds (Dyer, at p. 91a. (11)).

The donee must be ascertained.-"If one gives a thing to J. S. or N. T., it is bad for the uncertainty" (11 Hen. 7, 12, pl. 4). "G. said to J. that he gave goods to one of the sons of J., and that J. might take them;" held bad (Paston & Genney's case, 11 Edw. 4, 2, pl. 2, Br. Done, 31). See Roberts v. Roberts (11 Jur. N. S. 992); Hughes v. Stubbs (11 Jur. N. S. 913) for instances of the donee not being properly ascertained.

The donee must be capable of taking.-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's 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 give 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 donee. 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, S., London and Brighton Railway Co. v. Fairclough (2 Man. & Gr. 691); on the other hand, where it is made by deed, it 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. Eastland (10 Eq. 20).

Infant.-It appears that an infant can accept a gift, though he may repudiate it on coming of age (see Co. Lit. 2b.). We apprehend, however, that, owing to the personal incapacity of the infant, the acceptance must be made by or with the consent of his guardian, though probably the consent of the guardian might readily be inferred from circumstances.

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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. the judges thought that the acts of stripping the boy and putting new clothes on him amounted to a gift to him. In the same case one of the judges 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."

One of

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 against 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 the parents, especially while the children are of tender age; but it is good either way. At the Old Bailey, 1701, Tracy and Turton, JJ., and Lovell, Recorder, doubted whether the property of a gold chain which was taken from the neck of a child who had worn it for four years ought not to be laid in the father. But 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 judge (2 East Pleas of the Crown, ch. xvi. s. 91). See, to same effect, note to Forsgate's case (1 East C. C. 464).

Gifts by husband to wife.-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 attempted assignment by a husband to his wife operated as a declaration of trust by him in her favour: Grant v. Grant (34 Beav. 623); Mews v. Mews (15 Beav. 529); Baddeley v. Baddeley (9 Ch. D. 113); Fox v. Hawkes (13 Ch. D. 822); but these decisions are of questionable authority: Re Breton (17 Ch. D. 416).

Before 1883, the mere fact of a husband allowing his wife to open a banking account did not operate as a gift to her of the moneys paid in to her account: Lloyd v. Pughe (8 Ch. 88), or of his allowing her to carry on business did not render the proceeds her separate estate Re Whittaker (21 Ch. D. 657); but on the latter point see the Married Women's Property Act, 1870.

See as to the effect of a purchase by a husband in the name of his wife, or in the joint names of himself and his wife, post, Purchase in the name of a person whom the purchaser is bound to support.

Gift by married woman.-In cases not falling within the Married Woman's Property Act, 1882, a gift of chattels made by a wife to a stranger with her husband's consent is effectual: Lucas v. Lucas (1 Atk. 270).

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 ou the 5th of March, Perry, the huntsman, rode with the pack through a sheepfold on the plaintiff's farm, frightening the sheep, some of which were directly injured, and that as the result thirteen animals either died or had to be slaughtered. It was further alleged that the sheep sustained such fright that their condition became seriously deteriorated, and that altogether the plaintiff had sustained a loss of nearly £200, but only sought to recover £50. The evidence of the veterinary surgeons called A well-known example of the right of an infant to repudiate a was against the allegation that fright caused the deterioration of the flock, gift on his coming of age is afforded by the transfer to, or purchase and the huntsman proved that a man working on the farm lifted a hurdle in the name of, an infant of shares in a company. to allow him and the hounds to pass through the fold, without any protest He can, on atfrom the shepherd, who was standing near. It was denied that the taining twenty-one, if the transfer or purchase was made by a per- hounds chased the sheep. The judge is stated to have held that there son in loco parentis, claim to keep them as an advancement, or may was no trespass, the plaintiff 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 the part of the huntsman. He was unable to hold that any of the sheep suffered direct injury by the hounds passing through the fold or that the note); Curtis's case (6 Eq. 455). deterioration of the flock resulted therefrom. He therefore gave judgment for the defendant.

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

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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 five years. We have tested the book in connection with cases great and small, and, with the exception of the comparatively unimportant Difiori v. Adams (53 L. J. Q. B. 437), have not been able to discover a 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 Co. (11 App. Cas. 573), together with some comment upon its effect, 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, Inglis v. Stock (10 App. Čas. 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 deision was arrived at. We are glad to observe, too, that Mr. Maclachlan 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."

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We rather regret to notice that the lengthy comments on Lohre v. Aitchison 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 would suggest, too, that the time has come when the facts of the earlier cases might be either omitted or condensed with great advantage.

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In the way of addition it would have been well to have given the whole of the Act 34 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 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 regret to observe that in the great majority of cases a reference to only one set of reports is given.

BANKRUPTCY.

A TREATISE ON THE LAW OF BANKRUPTCY, CONTAINING A FULL EXPOSITION OF THE PRINCIPLES AND PRACTICE OF THE LAW, INCLUDING THE LAW UNDER THE BANKRUPTCY ACT, 1883, THE BILLS OF SALE ACTS, 1878 AND 1882, AND SECTION 10 OF THE

JUDICATURE ACT, 1875, ALSO THE LAW RELATING TO PRIVATE ARRANGEMENTS WITH CREDITORS. SIXTH EDITION. BY GEORGE YOUNG ROBSON, Esq., Barrister-at-Law. Reeves & Turner. The present edition of Mr. Robson's well-known work appears as a stately volume, with all the advantages which excellent type and a large page afford. As regards the decisions on the Bankruptcy Act and the Bills of Sale Acts since the last edition, we may say that the characteristic of former editions is preserved; the cases are digested not merely strung together in foot-notes or the head-notes copied in the text. There are few books which have passed through so many editions and yet read so much like a new book written in view of the latest, as well as the earlier cases. A new chapter on private arrangements with creditors has been added, in which the subject is very fully considered under the heads of compositions, assignments, and the effect of these on the remedies of creditors and on sureties and secured creditors; and forms relating to statutory arrangements with creditors have been added to the appendix.

SUMMARY JUDGMENT.

THE LAW AND PROCEDURE OF SUMMARY JUDGMENT ON SPECIALLYINDORSED WRITS UNDER ORDER 14. By C. CAVANAGH, B.A., LL B., Barrister-at-Law. Waterlow & Sons (Limited). Mr. Cavanagh has produced a very valuable and complete little treatise on order 14. He cites and discusses all the cases on the subject (so far as we have been able to discover) with much acumen. His references to cases have dates, and though only one set of reports is referred to in the text, all the others are to be found in the table of cases. We observe that Mr. Cavanagh predicts the reversal of Daubuz v. Lavington (13 Q. B. D. 347), and we are inclined to agree with him. We doubt the propriety of citing the Times Reports at such length as is done in the Lascelles case (see p. 128), but a

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

EQUITY INDEX.

CHITTY'S INDEX TO ALL THE REPORTED CASES DECIDED IN THE SEVERAL COURTS OF EQUITY IN ENGLAND, THE PRIVY COUNCIL, AND THE HOUSE OF LORDS, WITH A SELECTION OF IRISH CASES, ON OR RELATING TO THE PRINCIPLES, PLEADING, AND PRACTICE OF EQUITY AND BANKRUPTCY; FROM THE EARLIEST PERIOD. FOURTH EDITION. BY HENRY EDWARD HIRST, B.C.L., M.A., Barrister-at-Law. Vol. 4. Stevens & Sons; H. Sweet & Sons; W. Maxwell & Son.

This volume brings the Index up to the end of the letter O, and "" "Inincludes the important headings of "Statute of Limitations,' surance," "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, find his way with little difficulty to the matter he is in search of. The arrangement of matter in the different divisions appears to be careful and convenient.

PETITION OF RIGHT.

THE LAW AND PRACTICE OF PETITION OF RIGHT UNDER THE PETITIONS OF RIGHT ACT, 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 subjectmatter and result, and an appendix of the laws of the subject in Ireland, Scotland, and "certain colonies and dependencies." Very 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.

CHARTER-PARTIES.

THE CONTRACT OF AFFREIGHTMENT AS EXPRESSED IN CHARTERPARTIES AND BILLS OF LADING. By T. E. SCRUTTON, M.A., LL.B., Barrister-at-Law. William Clowes & Sons (Limited).

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

The Home Secretary stated in the House of Commons last week that there are about 34,000 photographs of criminals registered in the Criminal Investigation Department.

At the Bristol Assizes, on the 8th inst., before Mr. Justice Cave, without a jury, the case of The Guardians of the Thornbury Union v. Greenfield and Others was heard, which raised an important question as to the appointment and salary of an assistant overseer, and the consequences to his sureties of an alteration in the latter. Greenfield was appointed an assistant overseer for the township of Hinton and Berkeley, and entered into a bond with two sureties for the due performance of his duties, under 59 Geo. 3, c. 12. In 1879 the vestry agreed to raise his salary from £10 to £15 a year. In 1886 Greenfield resigned, and by the auditor's certificate was found to be a defaulter to the extent of £186 for Hinton and £44 for Berkeley. The sureties were now being sued on the bond, but Greenfield's salary, had thereby created a new office, and that the they contested their liability on the ground that the vestry, by raising sureties were only liable for defaults committed during the former office at the first salary. No such default was proved. For the plaintiffs the case of Frank v. Edwards (8 Ex. 214), in which the reduction of an assistant overseer's salary was held not to discharge the sureties, was 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 Iles (3 Ex. 380), Holland v. Lea (9 Ex. 430), London and North-Western Railwere cited: -Liverpool Waterworks v. Atkinson (6 East. 507), Bamford v. way v. Whinray (10 Ex. 77). After considerable argument on other points arising in the case, Cave, J., decided that the case of Frank v. Edwards ought to prevail, and, consequently, judgment was given for the plaintiffs for an agreed sum of £136 odd, with costs.

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the defendants were ignorant of the plaintiff's patent, nor that the plaintiff 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 the defendants of infringement, he had represented to them that there was none. There was no estoppel against the plaintiff by means of any representation upon which the defendants were entitled to rely. BOWEN and FRY, LJJ., concurred.-Counsel, Sır R. E. Webster, A.G., Moulton, Q.C., and Maberly; Aston, Q.C., and W. R. Bousfield; Rigby, Q.C., and Bather; O. L. Clare. SOLICITORS, A. Macdonald Blair, Manchester; Stringer, Manchester; Johnston, Harrison, & Powell; Chester, Mayhew, & Co.

ADMISSIBILITY.

On the 1st of September, 1883, the plaintiff, Mrs. Weldon, 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 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 barred by the Statute of Limitations. The Divisional Court (Field and Wills, JJ.) ordered those paragraphs to be struck out. The plaintiff appealed. Clarapede ▼. Commercial Union Association (32 W. R. 262), Steward v. North Metropolitan Tramways Co. (34 W. R. 317, 16 Q. B. D. 556), and Doyle v. Kaufman (26 W. R. 98, 3 Q B. D. 340) were referred to. THE COURT (Lord ESHER, M. R., LINDLEY and LOPES, L.JJ.), dismissing the appeal, said that where an amendment was allowed it was subject 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 a defence, whereas he would be deprived of that defence if the amendment were allowed. The court would thereby deprive the defendant of a right, and would be allowing the plaintiff 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 out.-COUNSEL, Wood Hill. SOLICITOR, J. Neal.

MAPLE & CO. v. EARL OF SHREWSBURY-C. A. No. 1, 9th August. PRACTICE-PAYMENT INTO COURT-DENIAL OF LIABILITY-JURISDICTION TO ORDER PAYMENT OUT-R. S. C., 1883, XXII., 6 (c.).

In an action for £21,000, the price of goods sold and delivered, the plaintiffs applied for judgment under order 14. 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 apply. The defendant then delivered a defence in which he denied liability and alternatively paid £3,000 into court as sufficient with the £15,000 in the bank to satisfy the plaintiffs' claim. The plaintiffs applied for an order that the £18,000 be paid out to them, at the same time wishing to continue the action. The Divisional Court (Grove, J., and Huddleston, B.) made the order. The defendant appealed.

THE COURT allowed the appeal. Lord ESHER, M.R., said that the defendant had been allowed to defend the action upon certain terms. After the defence denying liability and alternatively paying money into court, 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. Under that clause, if a plaintiff did not accept in satisfaction the sum paid in, and 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. LINDLEY and LOPES, L.JJ., concurred.-COUNSEL, J. G. Witt; Cock, Q.C., (Sir R. E. Webster, A.G., with him). SOLICITORS, Lumley & Lumley; Hadden, Woodward, & Co.

PROCTOR v. BENNIS-C. A. No. 2, 4th August. PATENT-INFRINGEMENT ACQUIESCENCE BY PLAINTIFF. This action was brought to restrain the infringement of the plaintiff's patent by the defendants. One of the defences raised was acquiescence 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 defence. COTTON, 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 was said that when the defendants were selling their machines the plaintiff 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 enough for his particular purpose. Then it was said that the plaintiff had acquiesced in what the defendants had done by not giving them notice that they were infringing his patent. But the rights of a patentee did not depend on his giving notice to infringers, and the fact that the defendants had acted bond fide would not protect them from an injunction. In Ramsden v. Dyson (1 H. L. 140) Lord Cranworth said: :- If a stranger begins to build on my land, supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave 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 on 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 to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by 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 legatees objected that the court could not go beyond the terms of the will. Bristowe, V.C., held that the evidence was admissible. The legatees appealed, and it was contended on their behalf 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.

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THE COURT (COTTON, BOWEN, and FRY, L JJ.) affirmed 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 a 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 got a promise from them, that would not necessarily prevent the court from hearing 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 enable the court to fasten on the legatees an obligation or trust. In Russell v. Jackson (10 Ha. 204) a gift was expressed as for the personal benefit of the legaters, and parol evidence was admitted to shew that circumstances existed which enabled the court to impose on the legatees an obligation to use the gift for certain purposes. The court was bound to admit parol evidence to shew whether the testator had communicated wishes to the legatees which would impose upon them an obligation to 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.* MARRIED WOMAN-REMOVAL OF RESTRAINT ON ANTICIPATION-SERVICE OF APPLICATION ON TRUSTEES OF SETTLEMENT-CONVEYANCING ACT, 1881, s. 39.

In this case an application was made, by originating summons, by a 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 pointed out by counsel that the trust fund would not be affected,

THE COURT (COTTON, LINDLEY, and LOPES, L.JJ.) did not require the presence of the trustees, and they granted the application to the extent of £300.-COUNSEL, Whateley. SOLICITORS, Mear & Fowler.

DAVIES BROTHERS & CO. v. DAVIES-C. A. No. 2, 9th August. COVENANT IN RESTRAINT OF TRADE-VALIDITY-REASONABLENESS. This was an appeal from a decision of Kekewich, J. (ante, p. 331), the question being as to the validity of a covenant in restraint of trade. The plaintiff E. A. Davies and the defendant James Davies were brothers, and they had formerly carried on business in partnership with their father, who was since dead, in London and Wolverhampton, as galvanizers and galvanized iron manufacturers. The partnership was dissolved, and

We report this case, although out of date, as settling a pit of or not infrequent eccurre

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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 be a 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 injunction 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.

THE COURT OF APPEAL (COTTON, BOWEN, and FRY, L.JJ.) reversed the decision and dismissed the action. COTTON, 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 difficulty 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. Was, 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 policy and the interest of the public, was no longer the law of the court. No 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 sufficiency 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 carry on the business, it was still one which the court ought not to enforce. Parties to such a covenant ought to fix the 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 the 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 a 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 E. 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 could sue upon it. BowEN, 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 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 rule was too engrained in the history of this country to be altered, except 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 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 what they wanted, and were asking the court to make a contract for them. If 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 the covenant. FRY, L.J., also declined to decide whether the old rule, that an unlimited covenant in restraint of trade was bad, still existed, though the inclination of his opinion was in the same direction as when he decided Rousillon v. Rousillon (28 W. R. 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 covenant too vague, and that the latter part applied so long as the father and brother were associated together in business. It did not pass with the goodwill of the business, and could not be broken after the death of the father. COUNSEL, Barber, Q.C., Cock, Q.C., and Russell Roberts; Warmington, Q.C., and C. Walker. SOLICITORS, Brooks, Jenkins, & Co.; R. Chapman.

KURTZ v. SPENCE-C. A. No. 2, 5th August. PATENT-ACTION TO RESTRAIN THREATS BY PATENTEE-RIGHT TO RAISE ISSUE OF VALIDITY OF PATENT-PATENTS, DESIGNS, AND TRADE MARKS ACT, 1883, s. 32-AMENDMENT OF PLEADINGS-R. S. C., 1883, XXVIII.,

1.

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 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 invention, 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 thereby, if the alleged manufacture, use, sale, or purchase to which the threats related was not, in fact, an infringement of any legal rights of 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 The present action was brought to restrain threats made by a patent." patentee, and the statement of claim contained an allegation that the 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 (33 Ch. D. 579, 30 SOLICITORS' JOURNAL, 703) that in such an action the validity of the defendant's patent could not be put in issue, and that the plaintiff's proper course, if he desired to question the validity 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 Challender v. Royle, on the 22nd ult., the Court of Appeal (Cotton and Bowen, L.JJ.) (ante, p. 676) expressed an opinion that in such an action the validity of the defendant's patent could be put in issue. 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. Kekewich, J., thought that he 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 motion for leave to appeal from the order of Chitty, J., notwithstanding the expiration of the time limited for so doing.

In

THE COURT (COTTON and FRY, L JJ.) refused the application for leave to appeal.

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

THE COURT (COTTON, BOWEN, and FRY, L.JJ.) gave the leave to amend on certain terms. COTTON, L.J., said that he adhered to the opinion he had expressed in Challender v. Royle-that the question of validity could be raised in an action under section 32, and, being of opinion that it was 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, 1873, which required the court to give every possible remedy, so that as far as possible all matters in controversy between the parties might be completely 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 bring a fresh one. But the court must take care that the defendant did not suffer any loss, and was not prejudiced in trying the question of validity. Particulars of objections to the patent should therefore be given by the plaintiff, and the defendant should have the right to begin and reply as if he had been plaintiff in an action for violation of his patent. The plaintiff must pay the costs of the application as between solicitor and client, and all costs thrown away, and the amendment must be made on or before the 9th inst. If these terms were not accepted the motion would be refused with costs as between party and party. BowEN, L.J., concurred. FRY, L J., differed. He thought that the other members of the court were too indulgent. The question whether the validity of the patent could be raised had been decided a year ago, and that decision could not be appealed from. No new matter of fact had arisen, but only a new view of the law, and the amendment was inconsistent with an existing order. It would be quite enough to allow the plaintiff to bring a fresh action. The Judicature Act required that all proper amendments should be allowed, but it was still possible for a plaintiff, by want of care, delay, or negligence, to deprive himself of the right of further harassing the defendant. The plaintiff accepted the terms proposed. COUNSEL, Moulton, Q.C., and W. N. Lawson; Aston, Q C., and Chadwyck Healey. SOLICITORS, Pritchard & Marshall; Jaques & Co.

Re ADAMS' TRUSTS-Kay, J., 6th August. TRUSTEE-VESTING ORDER-INFANT HEIR OF LAST SURVIVING TRUSTEESERVICE OF PETITION-TRUSTEE Acr, 1850 (13 & 14 VICT. c. 60), s. 7. A petition for a vesting order of real estate, the legal estate in which had descended upon the infant heir of the last surviving trustee, had not been served upon the infant.

KAY, J., directed that it should be so served, and that the petition should stand over for that purpose. On its coming on again counsel appeared for the infant and consented, and his lordship made the order.COUNSEL, George Henderson; Blakesley. SOLICITORS, Albert Batchelor, for Gisby & Son, Ware.

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