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The Solicitors' Journal and Reporter.

LONDON, SEPTEMBER 3, 1887.

CURRENT TOPICS.

MR. CAYLEY SHADWELL, whose death we announce this week, must have been almost the oldest surviving member of the bar, having been born in 1798, and called in 1825, during the Chancellorship of Lord ELDON. He constituted an additional link with an older professional generation, through having been secretary to his elder brother, Sir LANCELOT SHADWELL, when ViceChancellor. By a curious coincidence Mr. LOFTUS TOTTENHAM WIGRAM, QC., a younger brother of Vice-Chancellor Sir JAMES WIGRAM, who was for many years a colleague of Sir LANCELOT SHADWELL, is still alive. He is in his eighty-fourth year, was called to the bar in 1828, and is the oldest Queen's Counsel. Mr. CHARLES ROMILLY, whose death we also record, was the brother of another well known equity Judge of a somewhat later date.

CERTAIN METROPOLITAN RATEPAYERS, who entertain objections to expenditure out of the poor-rates in connection with the recent Jubilee celebrations, have endeavoured to avoid payment of their rates when summoned before a magistrate to show cause why payment of such rates should not be enforced, by impugning the validity of the rates on the ground of the illegal expenditure of the funds so raised, and have sought to summon and examine the rate collectors and other parochial officials. These champions of parochial economy have, however, found themselves to be too late in taking their objections to the validity of the rate, for it was decided in Reg. v. Justices of Kingston-upon-Thames (6 W. R. 551, E. B. & E. 256), that justices of the peace, when called upon to enforce a poor-rate by distress, cannot consider any objections to the validity of the rate which might have been raised in the ordinary way on an appeal. It was also held in Reg. v. Justices of Kent (16 L. T. N.S. 672) that an order for a distress warrant for non-payment of a poor-rate cannot be appealed against on grounds which would have been open to the appellant on the appeal against the rate itself.

ANOTHER CASE of contempt of court, consisting of alleged threatening gestures and abusive language used by one solicitor to another on leaving the room of one of the judges of the High Court, came before Mr. Justice KEKEWICH in the case of Jonas v. Long at the Chancery Vacation Sittings on Wednesday. It may be remembered that the same question came before Mr. Justice CHITTY about six weeks ago in Kirby v. Webb, where it was alleged in the affidavit that the defendant's solicitor had struck the plaintiff's solicitor "on leaving the taxing master's room;" but the learned judge adjourned the motion for committal on the ground that the affidavit was too vague, and that the exact place where the assault was committed ought to have been described. The case was, however, afterwards settled by an apology and the payment of costs by the defendant's solicitor. The question of contempt of court, so far as regards interference with a solicitor in an action, was fully considered in Republic of Costa Rica v. Erlanger (36 L. T. N. S. 332), where the Court of Appeal (reversing the decision of MALINS, V.C.) held that the defendants' solicitor had not been guilty of contempt of court in causing the plaintiffs' solicitor, who had called for a draft bond which he had left for approval as a security for costs, to be turned out of his office, after refusing to leave when requested to do so. JESSEL, M.R., observed that there was no attempt either to terrorise or to interfere with the administration of justice; and he added that the jurisdiction to commit in such cases being practically arbitrary and unlimited," ought to be most carefully watched; while MELLISH, L.J., ridiculed the idea that every solicitor who might lose his temper while in conversation

66

A CORRESPONDENT of a daily newspaper professes to be greatly perplexed by the mystic words, "without prejudice," which have recently come under his notice in a solicitor's letter. He wants to know what is the precise value and efficacy of this expression, and letters? There is no reason why lawyers should have a monopoly why, if it has any efficacy, its use should be confined to lawyers' of the phrase, except that they know its value and laymen do not, and that the occasions for its use occur more frequently in lawyers' letters than in laymen's letters. The expression, as we understand it, is merely a convenient substitute for a long formula. Instead of writing, "The proposal I am about to make is not to be taken or used in any way as implying any admission of your client's claim, or any waiver or abandonment of my client's rights or contention, and, if rejected, is to be considered as never having been made," the lawyer simply writes "without prejudice." He knows that the meaning of the expression in this respect is so well understood, so perfectly established by professional usage, as to render a proposal introduced by these two words harmless to his client in case of subsequent legal proceedings. Nothing has probably been so efficacious in preventing or settling litigation as the opportunity for compromise afforded by the general adoption by lawyers of this phrase. We are bound to admit, however, that in two respects the effect of the expression is not so well understood, offer introduced by the words "without prejudice" cannot be used even by lawyers, as it ought to be. It is perfectly clear that an in the course of subsequent litigation by the person to whom it was made; but is the person who made it at liberty to use the fact of the offer having been made and rejected, supposing the rejection of the offer is not expressly" without prejudice?" We should think he is not; but we do not know that there is any general understanding in the profession to this effect. The other point relates to a very prevalent delusion as to the efficacy of the phrase. It is ineffectual to prevent the consequences which the law attaches to acts. If, for instance (to take the commonest example), a landlord, in accepting rent due after he has become aware of a forfeiture, writes that he does so "without prejudice," this will not prevent the forfeiture from being waived (see Croft v. Lumley, 5 E. & B. 648, 6 H. L. Cas. 672).

THE NEWLY APPOINTED STIPENDIARY MAGISTRATE at West Ham has been called upon to decide a somewhat intricate question in connection with the unsavoury subject of knackers' and horse slaughterers' licences. The defendant was proved to have used his premises for the purpose of slaughtering horses, whose corpses were devoted, in some instances, to the sustenance of cats and dogs, but, in the majority of cases, were proved to have been sold to butchers and sausage makers in various parts of London, and he was summoned by the Corporation of West Ham, as the urban sanitary authority, for using and occupying his premises as a slaughterhouse without a licence. The Public Health Act, 1875 (38 & 39 Vict. c. 55), incorporates, by section, 169 the provisions of the Towns Improvement Clauses Act, 1847 (10 & 11 Vict. c. 34), with respect to slaughterhouses, and section 126 of the lastnamed Act provides that no place shall be used or occupied "as a slaughterhouse or knacker's yard" within a town or district subject to the Act which was not in such use or occupation at the time of the passing of the special Act adopting the provisions of the general Act, and has so continued ever since, without a licence for that purpose from the local authority; and that any person using as a slaughterhouse or knacker's yard without such licence any place within those limits not used as such at the passing of the special Act, and so continued to be used ever since, shall be liable to a penalty of £5; and the following sections contain other provisions, including a power of making bye-laws for the regulation of slaughterhouses and knackers' yards. It was admitted that the defendant was duly licensed to use his premises as a knacker's yard, and the main question was whether such a licence ex

tended to a place where horses were slaughtered for the purpose of human food. It did not appear that the defendant's present business had been carried on at the same place before the date of the passing of the Public Health Act, 1875, or continuously since that time; and the magistrate held that, since the sections of the Towns Improvement Clauses Act, 1874, which had been incorporated into the Public Health Act, 1875, drew a clear distinction between a knacker's yard and a slaughterhouse, a licence to carry on a knacker's yard did not include a licence to kill horses for human food, and he accordingly imposed a fine. certainly desirable, as a matter of public policy, that the preparation and sale of horseflesh for human food should be conducted with as much publicity as possible; but notice of appeal has been given, and the case will no doubt find its way to the Queen's Bench Division.

on the assignment of a naval officer's full-pay, it was as much protected as half-pay, since it was given in order to enable him to discharge his present duties, and that a fund which was not assignable could not be attached. Lord Justice BOWEN laid down that either an assignment or an attachment of such full-pay would be equally opposed to public policy.

THE EFFECT OF A JUDGMENT AGAINST A JOINT
CONTRACTOR.

THE recent case of Cambefort v. Chapman (35 W. R. 838, 19
Q. B. D. 229) raised a question which has on several occasions
given rise to controversy-namely, the effect of a judgment against
one of two joint contractors in a subsequent action against the
other. In King v. Hoare (13 M. & W. 494) the Court of
Exchequer held that the subsisting judgment was a bar to the
second action, Parke, B., observing that "the judgment of a court
of record changes the nature of that cause of action, and prevents
its being the subject of another suit; and the cause of action, being
single, cannot afterwards be divided into two." He also pointed
out that it was the same cause of action, whether against one per-
son or two. This decision was acted upon almost without ques-
tion for about thirty-five years, notwithstanding a doubt expressed
by Knight Bruce, V.C., in Ex parte Waterfall (4 De G. & S. 199);
but in Kendall v. Hamilton (28 W. R. 97, 4 App. Cas. 505)
an attempt was made to get it overruled by a decision of the
House of Lords. The case was twice argued, and all the authori-
ties were fully discussed; and it was urged that the technical
grounds upon which the judge in King v. Hoare had proceeded
could not be now acted upon, in view of the provision in section 25,
sub-section 11, of the Judicature Act, 1873, that the rules of
equity should always prevail when in conflict with the rules of the
common law. This view was accepted by Lord Penzance, who
also observed that King v. Hoare had never received the sanction of
a court of appeal, and that the Judicature Acts had removed the
right of a joint contractor, when sued upon a joint contract, to
have his co-contractor joined as a defendant. Six other law lords
were, however, of a different opinion. Lord Cairns expressed him-
self as satisfied with the grounds upon which King v. Hoare had
been decided, and did not think that the Judicature Acts, by
abolishing pleas in abatement, had changed a joint right of action
into a right to bring several separate actions. Lord Hatherley
thought that it would be difficult, after so many years had elapsed,
to shake the authority of King v. Hoare, and that the rule adopted
in that case was not a mere rule of procedure. Lord Selborne
remarked that the principle that an action cannot be maintained for
a cause which has passed in rem judicatam could not be affected by
any of the changes of procedure introduced by the Judicature Acts i
and Lord Blackburn, though admitting that the defence was not
"a meritorious one," held that King v. Hoare was rightly decided,
and that its authority was not affected by subsequent legislation.

THE QUESTION Whether the half-pay or full-pay of officers in the army and navy is liable to execution or attachment has been raised on two occasions during the past legal year. The Army Act, 1881 (44 & 45 Vict. c. 58), provides by section 141 that “ every assignment of, and every charge on, and every agreement to assign or charge, any deferred pay or military reward payable to any officer or soldier of any of her Majesty's forces, or any pension, allowance, or relief payable to any such officer or soldier, or to any person in respect of any military service, shall, except as far as the same is made in pursuance of a Royal warrant for the benefit of the family entitled thereto, or as may be authorised by any Act for the time being in force, be void." This section was discussed in Birch v. Birch (32 W. R. 96, 8 C. P. D. 163), which was a divorce suit in which the respondent had failed to comply with an order for the payment of costs and maintenance. The respondent was a retired officer of the Indian Army, and was in receipt of a pension for past services. A writ of sequestration was issued against his pension, but Sir JAMES HANNEN refused to restrain the respondent and his agents from receiving the pension, and to direct payment thereof to the sequestrators. He referred to the above-quoted section of the Army Act, 1881, and to a corresponding provision in an Indian Act (23 of 1871, s. 12), as indicating the intention of the Legislature that such a pension should be placed on the same footing as half-pay or an allowance for maintenance to a public civil officer. Lucas v. Harris (35 W. R. 112, 18 Q. B. D. 129) was a similar case, since the two defendants were also pensioned officers of the Indian Army, their pensions being expressly protected from assignment and execution by the Indian enactment to which we have already referred. The plaintiff having recovered judgment, an order had been made in chambers for the appointment of a receiver of the defendants' pensions, which order was upheld by a divisional court, but was reversed by the Court of Appeal. Lord ESHER expressed his concurrence with the decision in Birch v. Birch, and laid down that the pensions could not be the subject of an order for a receiver, although he declined to express an opinion as to what would be the effect upon the pensioner of an adjudication of bankruptcy against the defendants. Lord In Cambefort v. Chapman, the question arose in connection with Justice LINDLEY said that, although section 141 of the certain bills of exchange which had been accepted by a partner Army Act, 1881, did not expressly forbid an execution or after the dissolution of the firm of which he had been a member. an attachment, its intention would be defeated by the ap- The plaintiffs sold goods to a firm which consisted of W. and the pointment of a receiver. In Dent v. Dent (1 P. & D. 366) defendant. After the dissolution of the partnership, of which fact Lord PENZANCE had granted a writ of sequestration against the the plaintiffs were not aware, W. accepted in the name of the firm half-pay of an officer in the Indian Navy for past services; but in the bills which had been drawn by the plaintiffs for the price of that case there was no statutory prohibition of assignment or the goods. The plaintiffs, having recovered judgment on the bills attachment, and the Indian Navy had ceased to exist, so that the in default of appearance, but having been unable to obtain satisrespondent could not possibly be called on to serve again. Lord faction of the judgment, sued the defendant for the price of the Justice LOPES also pointed out that the words " ap- goods. The judgment against the firm on the bills having been peared sufficient to extend to the consequences of a judgment. Lucas pleaded in bar, Mr. Justice Mathew entered judgment for the v. Harris thus seems to establish that allowances in consideration of defendant, on the authority of King v. Hoare and Kendall v. future services cannot be transferred, but that retiring pensions for Hamilton. On an application to a divisional court to enter past services may be dealt with in any way, in the absence of some judgment for the plaintiff or for a new trial, reliance was placed statutory restriction. A similar question as to full-pay was raised by the plaintiffs' counsel on Drake v. Mitchell (3 East, 251), in Apthorpe v. Apthorpe (35 W. R. 728), which was a husband's where it was held that an unsatisfied judgment on a bill of exchange, suit for restitution of conjugal rights. The respondent was a given for a debt secured by the joint covenant of the defendant and surgeon of the Royal Navy on full pay and active service. The two other persons, was no bar to an action against all the petition having been dismissed, Mr. Justice BUTT had refused to three covenantors on their joint covenant. It was also contended order the petitioner's full-pay to be attached to meet the wife's that the judgment against the firm, being unsatisfied, could not costs, and this decision was upheld by the Court of Appeal. Lord be pleaded in bar in an action against a partner, and that the Justice COTTON said that, though there was no statutory restriction goods sold and the bills of exchange had given rise to separate and

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distinct causes of action. Mr. Justice Field expressed his regret at being compelled to decide in favour of the defendant, who had had the benefit of the contract between the plaintiffs and the firm but he could not escape from the authority of Kendall v. Hamilton, where King v. Hoare met with the approval of the majority of the law lords. The contract in the present case was one joint contract, and not a joint and several contract; and the maxim, Nemo debet bis vexari pro eâdem causâ, applied as much to actions upon the same contract as to the case of a person sued twice for the same cause of action. He distinguished Drake v. Mitchell as being a case where the giving of a bill of exchange could not suspend an existing remedy in respect of a covenant; and he held that for the plaintiffs to recover would be "not consistent with our legal system." Mr. Justice Manisty observed that in Drake v. Mitchell the bill of exchange was a collateral security, and that the same defences were open in an action on the bills as in an action for goods sold and delivered. He quoted a passage from "Byles on Bills" (14th ed., p. 313), where it was laid down that judgment on a bill of exchange is an extinguishment of the original debt; and he added, with reference to King v. Hoare, that he was "not at all sure that that rule of law is not in all respects equitable and satisfactory."

Having regard to the authority of Kendall v. Hamilton, it was hardly to be expected that an attempt to set aside the authority of King v. Hoare would now have much chance of success. The circumstance that one of the actions was brought upon bills of exchange was the only distinguishing feature in Cambefort v. Chapman; but to have held that there were two separate causes of action would have been to determine the case upon a ground as "technical" as those which have subjected the decision in King v. Hoare to so much hostile criticism.

THE LAW OF GIFTS INTER VIVOS.

IV.

Gifts of chattels.-There are two principal sources whence our unwritten law is derived-viz., Roman law, and customs prevalent all over England, which, being common to all places, have given rise to what is called common law. The civil, or Roman, law is founded on principles many of which are not recognized by the common law, and very great confusion has arisen from treating decisions on those branches of English law which are founded on the civil law as applicable to cases which depend on the common law. An example of the distinction between Roman and common law will be found in Blackburn on Sales, chap. 3, where the learned author, in discussing the doctrine of bargain and sale, points out that it is a principle of Roman law "that property cannot be transferred by any agreement unless there be an overt act of delivery of possession," and that "this principle is not recognized by English law."

This distinction must be carefully remembered in our present discussion; cases have often arisen where, even in judicial decisions, gifts inter vivos and donations mortis causâ have been confounded; and yet the validity of gifts inter vivos depends upon the common law, that of donations mortis causâ on the Roman law.

Gifts of both classes have this in common- -(1) that they must be made voluntarily by the donor; (2) that they must be accepted by the donee; the difference between them consists in this-viz., that, as donations mortis causâ are governed by Roman law, actual delivery of the chattels to the donee is essential to the validity of the gift; while, in the case of a gift inter vivos, the question whether actual delivery is essential has been a matter of animated controversy, though it now appears to be decided that this is not the case. There is a further difference, not necessary to be discussed for our present purpose, arising from the fact that a donatio mortis causâ is in its nature conditional, and is not intended to be effectual unless the donor dies of the illness during which it is given.

Delivery. The question whether a gift of personal chattels requires to be perfected by delivery to the donee is one of considerable difficulty, a difficulty that has been increased by confusing a gift inter vivos with a donatio mortis causa. For instance, the dictum of Lord Loughborough, in Tate v. Hilbert (2 Ves. jun. 120) that merely "saying 'I give,' without an act, does not transfer the property" and Miller v. Miller (3 P. Wms. 356), which are often

cited as being authorities as to gifts inter vivos, really relate to donations mortis causa. In Shepherd's Touchstone, p. 227 note, it is said: "By the civil law a gift of goods is not good without delivery. Yet in our law it is otherwise (per Coke, C.J., Wortes v. Clifton, 1 Roll Rep. 61)." Mr. Preston, citing this case, Shep. Touch. 227 (note), adds "when there is a deed." In Irons v. Smallpiece (2 B. & Ald., at 554), Abbott, C.J., considered that the dictum of Coke applies to a gift by deed as distinguished from a gift by parol. Jenkins Cent. 109, ca. ix., says: "A gift of anything without consideration is good; but it is revocable before the delivery to the donee of the thing given, Donatio perficitur possessione accipientis." The fact of the learned author making the quotation appears to shew that he had the civil law in his mind. The learned editors (Patteson, J., and Williams, J.) of Williams' Saunders say, in the note (d) to Wilbraham v. Snow (vol. 2, p. 47): "It may still be held that a donee, by a parol gift, acquires such a special property as to be able to maintain an action against a mere wrongdoer, though the donor may resume the thing given." So that they appear to agree with Jenkins.

There appears to be a further confusion between a gift of a personal chattel and of a chose in action. We shall discuss gifts of the latter nature separately, confining our remarks at present to personal chattels.

Notwithstanding the dicta, "Delivery of possession is the only admissible evidence of the gift of a personal chattel" (per Plunket, C., Patterson v. Williams, L. & Goo. Ca. Temp. Plunk., at p. 99), and "a gift at law or in equity supposes some act to pass the property; in donations inter vivos, if the subject is capable of delivery, delivery" (per Plumer, M.R., Hooper v. Goodwin, 1 Swans., at p. 491), Irons v. Smallpiece (2 B. & Ald. 551) is, we believe, the first case in which it was held that delivery is essential to a parol gift of personal chattels. "By the law of England, in order to transfer property by gifts, there must be either a deed or instrument of gift, or there must be an actual delivery of the thing to the donee. Here the gift is merely verbal, and differs from a donatio mortis causa only in this respect-that the latter is subject to a condition that Now it is a if the donor live the thing shall be restored to him. well-established rule at law that a donatio mortis causâ does not transfer the property without an actual delivery" (per Abbott, C.J., who cites Bunn v. Markham (2 Marsh. 532), a case on a donatio mortis causa). In the principal case Holroyd, J., says: "In order to change property by a gift of this nature there must be a change of possession.'

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The correctness of the statement in Irons v. Smallpiece, that a verbal gift of a chattel is incomplete till delivery, is denied by Parke, B., in Waud v. Audland (16 M. & W., at p. 870). See also the opinion of Maule, J. (Lunn v. Thornton, 1 C. B., atp. 381), which has been cited as opposed to the decision of Parke, B., as to delivery. It appears, however, that in the place in question Maule, J., only differs from Parke, B., on another point not being discussed in this place.

In Shower v. Pilck (4 Ex. 478) the plaintiff's testator said to the defendant, who had possession of his plate: "I will give you all the plate that is mine." Held, in an action of trover by the executor, that this did not amount to a gift, Alderson, B., saying: "To pass the property there must be both a gift and a delivery. Here there is hardly a gift, for the words are in the future tense"; Rolfe, B., saying, "There must be a delivery to make the gift valid. Here there is a mere statement that the goods which the defendant has in her possession the owner will give her." It should be observed that in the opinion of both the barons the words did not amount to an offer; so that their remarks as to delivery were mere obiter dicta (see post, Chattel not in the possession of the donor).

In Bourne v. Fosbrooke (18 C. B. N. S. 515), although it is stated by Erle, C.J., that it is "a rule of law that personal chattels cannot pass by parol gift without actual transfer of the possession," this was a mere obiter dictum, as the jury found that the goods had been delivered by the donor to the donee.

In Winter v. Winter (9 W. R. 747) the current of judicial opinion began to turn. There was no evidence of formal delivery of the chattel by the donor to the donee, but there was evidence that the latter had taken possession. The court decided that the gift was complete, Crompton, J., saying: "Actual delivery of a chattel is not necessary in a gift inter vivos. It is sufficient

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to complete a gift inter vivos that the conduct of the parties should shew that the ownership of the chattel has been changed."

66

Those

taking given by him before Chitty, J., on the 12th of August last. This was a motion for leave to issue a writ of attachment against George Sanger for breach of the undertaking, whereby he undertook not We now come to Re Harcourt, Danby v. Tucker (31 W. R. to use or permit to be used in any entertainment of his the name of 578), where it was laid down by Pollock, B. (at p. 580), that "The Buffalo Bill, so as to be calculated to induce the belief that Buffalo Bill question to be determined is not whether there has been an actual was Col. W. F. Cody, commonly known as Buffalo Bill, nor to use or handing over of property manually, but whether, looking at all the permit to be used in any entertainment of his the words "Wild West" in surrounding circumstances of the case, and looking particularly at any such manner as to induce the belief that the defendant's representation of the Wild West was the plaintiff's representation. The original the nature and character of the chattel which is proposed to be programme of the defendant had the words "This great equestrian given, there has or has not been a clear intention expressed on the scene has never been attempted in any other establishment." part of the donor to give, and a clear intention on the part of the words had been struck out, but, subsequently to the undertaking, Sanger recipient to receive and act upon such gift. Whenever such published photographs and programmes of his entertainment at Olympia in London, and in the provinces, and in particular a programme cona case should arise again I am confident that that would be taining the following notices: "Grand Olympia and Scenes from the Far the basis of the decision of a court of common law; and, of West," Royal Olympia Scenes from Buffalo Bill and the Far West." course, the same result would follow in a court of equity." "Part 3.-Scenes from the Wild West-Great trial of skill by the In this case Mrs. Harcourt was absolutely entitled to pictures Indians-Great equestrian exercises by the female Indians-The mail and plate. At her death labels in her handwriting were found-The arrival of Buffalo Bill and the cowboys-Great encounteron its perilous journey through the Wild West-Attacked by Indians placed on two of the pictures, to the effect that they belonged to The Indians driven off-Buffalo Bill and the cowboys' triumphant escort her sister, Mrs. Holwell. There was no evidence as to what were of the mail. Grand concluding tableau.-The halt of the cowboys in the the circumstances under which, or by whom, the labels were Far West-A night surprise by the Indians-Buffalo Bill to the rescueaffixed. But the court held that what had been done amounted to Total defeat of the Indians-Buffalo Bill and his noble steed carried upon a daïs by the cowboys." The plaintiff was informed that the defenda gift by Mrs. Harcourt to Mrs. Holwell. ant had committed breaches of the undertaking in photographs and programmes. On behalf of the defendant it was contended that the motion was grounded on a letter of the 19th of August, which was vulgar and offensive, but was not written by the defendant. The defendant was entitled to use the words "Buffalo Bill" and "Wild West," but not so as to deceive. He had pasted a slip across the programmes, "No connection with Buffalo Bill at the American Exhibition."

In the same case it was decided that the handing over by the donor to the donee of one of several articles intended to be comprised in a gift was sufficient delivery of the whole.

In Re Ridgway (15 Q. B. D.) Cave, J., says (at p. 449), after citing Re Harcourt, "I am of opinion that it is going too far to say that retention of possession by the donor is conclusive proof that there is no immediate present gift; although, undoubtedly, unless explained, or its effect destroyed by other circumstances, it is strong evidence against the existence of such an intention. The applicants must, however, prove circumstances from which it can fairly be inferred that the donor intended to make an immediate gift, so that the thing given then ceased to be the donor's, and became the property of the donee." Consider Jones v. Lock (L. R. 1 Ch. 25), where, notwithstanding actual words of gift and delivery of a cheque to a baby, it was held that no gift was

intended.

Reference should be made to Farington v. Parker (L. R. 4 Eq. 116), where jewels were assigned to a trustee upon trust for such person as G., a married woman, should appoint in writing, and in default of appointment upon trust for her during her life for her separate use, and to be at her absolute disposal, and her receipt, or that of the person to whom she should direct the jewels to be delivered, to be a good discharge. G. gave the jewels to V. without any direction in writing. It was held on the construction of the deed that G. had two powers, one to dispose of the jewels in writing, one to dispose of them as she pleased, and that the gift was valid under the second power.

The result of the authorities appears to be that a gift of personal chattels can be made without delivery to the donee or any person on his behalf; but that if no delivery is made a clear intention must be expressed by the donor to give, and by the donee to accept, the subject-matter of the gift.

KEKEWICH, J., said that when the case came on before Chitty, J., on the 12th of August, the defendant gave an undertaking not to use or permit to be used in any entertainment of his the name of Buffalo Bill so as to be calculated to induce the belief that Buffalo Bill was Colonel W. F. Cody (commonly known as Buffalo Bill), nor to use or permit to be used in any induce the belief the defendant's representation of the Wild West was the entertainment of his the words "Wild West" in any such manner as to plaintiff's representation. After that date the defendant issued a programme or advertisement, and his lordship understood that it was handed to persons visiting the entertainment. It differed slightly, but not substantially, from the documents used before. The following paragraphs

and "Grand Olympia

were inserted:
Scenes from the Far
West-Royal Olympia Scenes from Buffalo Bill and the Far
West." It would be a reasonable conclusion for anyone to come to that
the plaintiff, Col. W. F. Cody, was the person going to perform at the
defendant's entertainment. But in part 3 of the programme he found
"Scenes from the Wild West." That alone would not be sufficient to ground
the charge of infringing the undertaking; but on looking at the four items
under this head he found item 3, "The Mail on its Perilous Journey
through the Wild West-Attacked by Indians-The Arrival of Buffalo
Bill and the Cowboys-Great Encounter-The Indians driven off-
Buffalo Bill and the Cowboys' Triumphant Escort of the Mail." That
was a distinct infringement of the defendant's undertaking. His lordship
gave the defendant credit for not understanding the view of the court
with regard to colourable imitation, and should put down his breach of
the undertaking to ignorance; and if Mr. Marten did not insist upon
his strict rights he should make the order according to the notice of motion,
week, to enable the defendant to purge his contempt.-COUNSEL, Marten,
the defendant to pay the costs. The writ of attachment not to issue for a
Q.C., and Wood Hill; Latham, Q.C., and Bryan Farrer. SOLICITORS,
Janson, Cobb, & Pearson; Lewis & Lewis.

CASES BEFORE THE VACATION JUDGE. arose as to the right of a railway company to build a bridge over a private

COMPANY-INSOLVENT-CREDITOR'S PETITION-NO STATUTORY DEMAND-
ACTION AGAINST PETITIONER.

In the case of In re Wood's Ships' Woodite Protection Co., Limited, before Kekewich, J., on the 31st of August, a question arose as to whether a creditor, against whom an action had been commenced by the company for specific performance of an agreement, was entitled to an order to wind up the company. It was contended for the company that it was not insolvent, and there had been no statutory demand for payment of the debt. The company was in possession of a valuable patent, which they had not had time to test.

KEKEWICH, J., made the winding-up order, not to be delivered for a week, and on the question of the appointment of a liquidator referred it to the chief clerk with special directions.-COUNSEL, Millar, Q.C., and Boome; Kirby; Seddon. SOLICITORS, A. Pulbrook; Gedge, Kirby, & Millett.

ATTACHMENT-UNDERTAKING NOT TO USE NAME-BREACH.

In the case of Buffalo Bill's Wild West Co. v. Sanger, before Kekewich, J., on the 31st of August, a question arose as to whether the defendant had committed a breach of a certain under

RAILWAY-BRIDGE-DIMENSIONS-PRIVATE CARRIAGE ROAD-TRAMWAYRAILWAY CLAUSES CONSOLIDATION ACT, 1845 (8 VICT. c. 20), ss. 49, 51. In the case of The Forest Iron and Steel Company (Limited) v. The Barry Dock and Railway Co., before Kekewich, J., on the 31st of August, a question carriage road not in accordance with the provisions of section 49 of the Railway Clauses Consolidation Act, 1845. This was a motion on behalf of the plaintiffs to restrain the railway company from interfering with their tramway by means of the bridge. For the plaintiffs it was contended that the defendants were bound to make the bridge of certain dimensions. They cited Attorney-General v. Mid Kent Railway Co. (L. R. 3 Ch. 100). It Clauses Consolidation Act, 1845, had no application; the land belonged to was argued on behalf of the defendants that section 49 of the Railway the company, and the plaintiffs had only an easement, which was a subject of compensation. Section 51 of the Railway Clauses Consolidation Act gave the company power to block up or alter a road.

KEKEWICH, J., said that the plaintiffs were quite right to bring the motion to prevent the defendants saying that they had chosen to lie by. He should make no order except the costs be costs in the action.COUNSEL, E. Ford; Marten, Q.C., and Kenyon Parker. SOLICITORS, Torr, Janeways, & Co., for James A. Corbett, Cardiff; Downing & Handcock.

NUISANCE-RESTAURANT-KITCHEN-OFFENSIVE SMELLS-INJUNCTION.

In the case of Doré v. Pecorini, before Kekewich, J., on the 31st of August, a question arose as to the right of a plaintiff to restrain his neighbour from causing noxious vapours to injure his premises. The

motion was for an injunction to restrain the defendant, who kept a restaurant, from causing or continuing the nuisance arising from the noxious and offensive odours from the defendant's premises until further order. KEKEWICH, J., granted an injunction restraining the defendant, his servants and workmen, from using, or allowing to be used, No. 14, Parkside, or anything therein, so as to allow the escape of noxious vapours to the injury of the plaintiff. The plaintiff must have his costs.-COUNSEL, Ogle; Ingpen. SOLICITORS, F. H. Foster & Co.

PRACTICE-CONTEMPT OF COURT-ASSAULT-SERVICE-PRECINCTS OF THE

COURT-SOLICITOR.

In the case of Jonas v. Long, before Kekewich, J., on the 31st of August, a question arose as to an assault committed within the precincts of the court. It was a motion to commit George Johnson, of 16, Union-court, Old Broad-street, a solicitor, for assaulting a solicitor within the precincts of the court. The motion stood over from Wednesday, August 24-(see SOLICITORS' JOURNAL, Saturday, August 27, 1887)-to enable the applicant to post two registered letters to the respondent, addressed to his private and business address respectively, and containing the notice of motion and affidavits. Mr. Charles Robinson, solicitor, said that after a summons had been heard by the judge, the respondent, George Johnson, used abusive language to him in the passages of the Royal Courts, and put himself in a threatening attitude, and he had to call the police to his protection. It was contended that there were two kinds of contempt first, assault or improper conduct in the presence of the judge; secondly, conduct to intimidate and obstruct the course of justice within the precincts of the court. Reference was made to Kirby v. Webb (the Times, July 14, 1887); Republic of Costa Rica v. Erlanger (36 L. T. N. S. 333, 46 L. J. Ch. 375), Ex parte Wilton (1 Dowl. N. S. 805). Mr. Johnson did not appear.

KEKEWICH, J., said that the applicant was entitled to the order in the absence of the respondent. The respondent, if he had got anything to say, could move to discharge the order. The contempt should appear on the order. The order would recite the particular facts contained in Mr. Robinson's affidavit, and then it would go, the court being of opinion that that conduct was contempt of court.-COUNSEL, Johnston Watson. SOLICITORS, Robinson & Dees.

Mr. Costelloe is the only son of Mr. Martin Richard Costelloe, of Glasgow, and was born in 1854. He was educated at the University of Glas. gow, and at Balliol College, Oxford, where he graduated first class in classics in 1873. He was called to the bar at Lincoln's-inn in January, 1881, and he is a member of the Northern Circuit.

Mr. JAMES PATRICK O'GORMAN MAHON, barrister, who has been elected M.P. for the county of Carlow in the Home Rule interest, is the son of Mr. Patrick Mahon, of Mahonborough, Clare, and was born in 1803. He was educated at Trinity College, Dublin, and he was called to the bar in Ireland in 1803. He was M.P. for the county of Clare in 1830 and 1831, for the borough of Ennis from 1847 till 1852, and again for Clare from 1879 till 1885. He is a magistrate and deputy-lieutenant for the county of Clare. Sir SAMUEL WALKER GRIFFITHS, Q.C., K.C.M.G., who has been appointed Colonial Treasurer of Queensland, was born in 1845. He was called to the bar in Queensland in 1867, and he became a Queen's Counsel for the colony in 1876. He was Attorney-General of Queensland from 1874 till 1878, and Colonial Secretary from 1883 till 1886.

Mr. GEORGE ELLIOTT, barrister, has been appointed Lecturer in Mercantile Law to the Young Men's Christian Association. Mr. Elliott is the eldest son of Mr. George Elliott, and was born in 1861. He was called to the bar at the Inner Temple in January, 1882, and he is a member of the

South-Eastern Circuit.

PARTNERSHIPS DISSOLVED.

HIER JACOB and CHARLES EDWARD TAYLOR, solicitors (Jacob & Taylor), Cardiff and Abergavenny. June 24. All debts due to and owing by the said late firm will be received and paid by the said Hier Jacob. [Gazette, Aug. 26.] JOHN JAMES DALLAS and JOHN TOMLINSON, solicitors (Dallas & Tomlinson), 102, Fishergate, Preston. Aug. 27.

JOHN KNIGHT and ARTHUR GRANVILLE HANROTT, Solicitors (John Knight & Co.), 53, Moorgate-street, London. Aug. 26. All debts owing to or by the said firm will be received and paid by John Knight, who will continue to carry on the business under the style of John Knight & Co. EDWARD MACKEson, Wellington TAYLOR, and ALFRED HENRY ARNOULD, solicitors (Mackeson, Taylor, & Arnould), 59, Lincoln's-inn-fields, W.C. Aug. 29. [Gazette, Aug. 30.]

LEGAL NEWS.

OBITUARY.

Mr. MARTIN SCALE, solicitor, of Neath, died on the 23rd ult. Mr. Scale was the son of Mr. Richard Scale, and was born in 1834. He was admitted a solicitor in 1861, having served his articles with Mr. Johns, of Haverfordwest. He afterwards became managing clerk to Mr. David Randell, of Neath, to whose practice he ultimately succeeded. Mr. Scale was in partnership with his younger brother, Mr. Gilbert Francis Scale. He was a perpetual commissioner for Glamorganshire, and he had an extensive practice, being solicitor for many of the leading families in the county. He was clerk to the Neath and Kenfig Local Boards, and registrar of births and deaths for the Neath District. He had also been eight times appointed under-sheriff for Glamorganshire. Mr. Scale was unmarried. He was buried at Llantwrt Cemetery on the 26th ult.

Mr. CHARLES ROMILLY, late Clerk of the Crown in Chancery, died at his residence, 29, Wilton-crescent, on the 26th ult., in his eightieth year. Mr. Romilly was the fifth son of Sir Samuel Romilly, Q.C., M.P., and brother of the first Lord Romilly. He was born in 1808. He was called to the bar at the Inner Temple in Hilary Term, 1836. He was principal secretary to Lord Cottenham when Lord Chancellor, and he was Clerk of the Crown in Chancery from 1850 till 1880. Mr. Romilly was married in 1842 to Lady Georgiana Russell, eldest daughter of the sixth Duke of Bedford, but he had been a widower since 1867. He leaves five sons. His eldest son, Mr. John Romilly, was called to the bar at Gray's-inn in Michaelmas Term, 1865, and is now secretary to the Historical Manuscripts Commission. His fifth son, Mr. Alfred Romilly, was called to the bar at Lincoln's-inn in January, 1879.

Mr. CAYLEY SHADWELL, barrister, died at his residence, 25, Abercornplace, St. John's Wood, on the 26th ult., in his ninetieth year. Mr. Shadwell, who was almost the oldest surviving member of the bar, was the fourth son of Mr. Lancelot Shadwell, barrister, and brother of the late Vice-Chancellor Sir Lancelot Shadwell. He was born in 1798, and he was educated at Trinity College, Cambridge. He was called to the bar at Lincoln's-inn in Michaelmas Term, 1825, and he formerly practised in the Court of Chancery. Mr. Shadwell was secretary to his brother while ViceChancellor.

APPOINTMENTS.

Mr. JAMES HENRY PAWSON, solicitor, of Doncaster, Rotherham, and Thorne, has been appointed Clerk to the Don Drainage Commissioners. Mr. Pawson was admitted a solicitor in 1881.

Mr. ARTHUR WILLIAM GILLING, solicitor, of Harrogate and Knaresborough, has been appointed Clerk to the Knaresborough Improvement Commissioners. Mr. Gilling was admitted a solicitor in 1881.

Mr. BENJAMIN FRANCIS CONN COSTELLOE, barrister, has been appointed an Assistant Commissioner on the Markets and Tolls Rights Commission.

GENERAL.

The number of failures in England and Wales gazetted during the week ending Saturday, August 27, was 74. The number in the corresponding week of last year was 95, shewing a decrease of 21, being a net increase in 1887, to date, of 41. The number of bills of sale published in England and Wales for the week ending August 27, was 252. The number in the corresponding week of last year was 244, shewing an increase of 8, being a net increase in 1887, to date, of 140. The number published in Ireland for the same week was 9. The number in the corresponding week of last year was 17, shewing a decrease of 8, being a net decrease in 1887, to date, of 162.-From Kemp's Mercantile Gazette.

WINDING UP NOTICES. London Gazette.-FRIDAY, August 26. JOINT STOCK COMPANIES. LIMITED IN CHANCERY.

LEIPSIC HALLE AND DISTRICT ICE CO, LIMITED.-North, J., has, by an order dated Aug 3, appointed Baker Philip Daniels, 57, Moorgate st, to be official liquidator NIEMAN CORNISH & CO, LIMITED-By an order made by Kekewich, J., dated Aug 17, it was ordered that the company be wound up. Wolferstan & Avery, Ironmonger lane, Cheapside, solors for petnr

COUNTY PALATINE OF LANCASTER.

LIMITED IN CHANCERY

ALEXANDRA HOTEL, LIVERPOOL, HOTEL CO, LIMITED-Petition for winding up, presented Aug 19, directed to be heard at the Chancery Office, Winckley st, Preston, on Tuesday, Sept 6. Harris, Liverpool, solor for petnr

FRIENDLY SOCIETIES DISSOLVED.

BRITANNIA FEMALE AMICABLE FRIENDLY SOCIETY, Wesleyan Schoolroom, Ipsley st, Redditch, Worcester. Aug 24 BURNHAM NEW FRIENDLY SOCIETY, Burnham, Somerset. Aug 22

London Gazette.-TUESDAY, August 30. JOINT STOCK COMPANIES. LIMITED IN CHANCERY.

BRITISH, COLONIAL, AND GENERAL INVESTMENT TRUST, LIMITED-Pet for winding up, presented Aug 29, directed to be heard before Chitty, J., on Sept 14. Whitfield, Finsbury pavement, solor for petner COLCHESTER TRAMWAYS Co, LIMITED-Pet for winding up, presented Aug 24, directed to be heard before Kekewich, J., on Sept 7. Atkinson & Dresser, Circus pl, Finsbury circus, solors for petner

CONDENSED WORT AND BREWING MEAL CO. LIMITED -Pet for winding up, presented Aug 27, directed to be heard before the Vacation Judge on Wednesday, Sept 7. Philbrick & Free, New Bond st, solors for petners CUNARD CYCLE Co, LIMITED-Pet for winding up, presented Aug 23, directed to be heard before Kekewich, J, on Wednesday, Sept 7. Smith & Co, Bread st, Cheapside, for Stirk & Brewer, Wolverhampton, solors for petner HOME AND FOREIGN MINES TRUST, LIMITED-Pet for, winding up, pre

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