is now contractual liability was originally based on tort, or (which appears to me more likely, for the principle is by no means confined to contractual liability) to the fact that, as Mr. Ashburner points out (Principles of Equity, p. 87), Equity "originally disclaimed all right of affecting a legal title except in cases of trust, fraud and accident."

Nocton v. Lord Ashburton (supra) is an admirable example of equitable as compared with actual or Common-law fraud. There, shortly, a solicitor advised his client to release part of a mortgage security in which the solicitor himself was interested. The result of following this advice was that the security became insufficient and part of the mortgage money was lost. The client sued the solicitor for the loss, and alleged fraud as the ground of relief. Neville, J., while holding that the solicitor stated what was not true, and, in advising as he did, fell far short of his duty as a solicitor, found that there was no actual fraud proved and dismissed the action. The Court of Appeal reversed the finding on the ground that actual fraud was proved. The House of Lords agreed with Neville, J., that there was no actual fraud, but affirmed the decision of the Court of Appeal on the ground that there was equitable fraud, the solicitor having negligently failed to ascertain the truth of the representations which he made to the client when in equity it was his duty, in view of the fiduciary relation between solicitor and client, to ascertain this before advising his client.

"fraud" in equity, the Clapton (L. R. [1914], There Sargant, J., laid

Talking of the use of the term case of In re Holland, Holland v. 2 Ch. 595), is very much in point. it down that where an appointment under a special power was not really for the benefit of the appointee but for the benefit of someone not an object of the power, the appointment was void as a "fraud" on the power; but where

the appointment was substantially for the benefit of the appointee, with conditions benefiting someone not an object of the power, the appointment was not a "fraud” on the power and was good, but the conditions were void.

Is Neville, J., right in holding, as he did, in E. W. Savory Ltd. v. The World of Golf Ltd. (L. R. [1914], 2 Ch. 566), that where a person has inadvertently infringed another's copyright, and the infringer on being made aware of the infringement has undertaken not to repeat it, the owner of the copyright in action brought is entitled to an injunction? It has hitherto been thought by us that injunctions are granted only where there is a threatening or a likelihood that the offence will be repeated, especially when the defendant when he did the act was not aware that he was invading the plaintiff's right. How can you enjoin a defendant from doing what he is not doing and has undertaken never to do? Perhaps his lordship might have come to a different decision had his attention been called to Behrens v. Richards (L. R. [1905], 2 Ch. 614), and Tunnicliffe & Hampson v. West Leigh Coal Co. (L. R. [1908], A. C. 27).

A large part of the law as to the administration of assets is, as everyone knows, in a state of chaos; but, even so, it is amazing to find how much uncertainty still prevails as to the extent of an executor's right to retain, remembering that this right has existed for centuries. The latest decision on the point is In re Mary Caroline, Dowager Duchess of Sutherland, Michell v. Burna (Countess) (L. R. [1914], 2 Ch. 720). In it, it has been decided by Joyce, J., that where an executor is a beneficiary under a trust, he cannot retain a debt owed by the testator to his trustees. This is the view lawyers have long been inclined to take, but it was difficult to maintain it in the face of some of the earlier decisions.

We have several times referred to the beauties of drafting as displayed in our Acts of Parliament. Two cases reported this quarter show these in the finest light. The first is Lumsden v. Commissioners of Inland Revenue (L. R. [1914], A. C. 877), where the House of Lords has held that sects. 1, 2, and 25 of the Finance (1909-10) Act 1910 mean what the Chancellor of the Exchequer admits they were never intended to mean. The second is Bodega Company Ltd. v. Read (L. R. [1914], 2 Ch. 757), where the Court of Appeal has held that sect. 2 of the Finance Act 1912 is drafted in such a way as to render it in most cases absolutely abortive.

J. A. S.

The case of R. Leslie (Ld.) v. Sheill (L. R. [1914], 3 K. B. 607) decides that an infant borrower who fraudulently represents to the lender that he is of full age may keep the money so obtained by fraud. The decision is probably correct, as it is the result of a considered judgment of the Court of Appeal, consisting of Lord Sumner, Kennedy, L.J., and A. T. Lawrence, J. Still it is unpleasant reading, and gives rise, at least, to the doubt whether protection to infants is not being carried too far, when such protection enables them to practise fraud with immunity from legal or equitable claim, and so to keep the plunder. The Infants' Relief Act 1874 makes all contracts entered into by infants for the repayment of money lent or to be lent absolutely void. Therefore, no action could be brought on a contract for repayment. And “so long ago as Johnson v. Pye (1 Sid. 258) it was decided that, although an infant may be liable in tort generally, he is not answerable for a tort directly connected with a contract which, as an infant, he would be entitled to avoid" (per Lord Sumner, p. 611). But Horridge, J., in the Court below, decided in favour of the lender, giving effect to the rule which has up to now been supposed to exist in equity, that "where an infant has induced persons to deal

with him by falsely representing himself as of full age, he incurs an obligation in equity which however, in the case of a contract, is not an obligation to perform the contract and must be carefully distinguished from it" (Pollock on Contracts, 8th Ed., p. 79). Lord Sumner, in his judgment, says that "this rule in equity has been so stated at times by textwriters, both remote and recent," but he adds, that "of authority for it, there is very little." There are certainly numerous authorities for the proposition which has, at least, a sound ring that "infants are no more entitled than adults to gain benefit to themselves by fraud" (per Turner, L.J., Nelson v. Stocker, 4 D. G. & J., at p. 464). As Lord Sumner remarks, in the judgment now under consideration, "the infant succeeded in deceiving some money-lenders by telling them a lie about his age, and so got them to lend him £400 on the faith of his being adult," and he adds, "perhaps they were simpler than money-lenders usually are, perhaps the infant looked unusually mature."

At any rate, as a

result, the Court of Appeal has held that an infant is entitled to gain a benefit which he has secured by telling a lie. The rule, however, that an infant cannot retain an advantage obtained by his own fraud, has been laid down in several cases cited and dealt with in the case now under consideration, in Pollock on Contracts, and in other text-books. This rule has also been acted on in bankruptcy, where it has been held that "persons who had been defrauded by the bankrupt when under age, and thereby induced to lend him money, had a claim on his assets, not against him personally, which was available in competition with creditors in the full sense of the word." (Lord Sumner, p. 616, commenting on In re King, 3 D. G. & J. 63.) Lord Sumner says that In re King "does not govern the present case, but it must be admitted that the language of the Lords Justices is hardly consistent with any other view than that the bankrupt was in equity personally

liable to pay the debt." He further says that, "Jessel, M.R., thought the decision anomalous and one not to be extended, see ex-parte Jones" (L. R. [1881], 18 Ch. D., pp. 120, 121). But Jessel, M.R., in this case expressly stated that he did not wish to be supposed to "over-rule the decisions in Courts of Equity where an infant has committed a fraud, by representing that he was not an infant and so obtained money or goods" (pp. 120, 121). Assuming that this decision of the Court of Appeal is correct (as must, of course, for this purpose be assumed), the supposed doctrine in equity by which restitution was secured, and fraud defeated, is negatived, and both there, and at Common law, a lying infant may, by his false representations as to his age, obtain money or goods and keep them, and, moreover, will probably (as in this case) recover the costs of an action (less the costs of the issue of fraud) brought against him, in the endeavour to obtain from the rogue the money or goods he has fraudulently obtained. The case is worthy of careful perusal as well as the numerous cases cited in it.

The Court of Appeal gave an important judgment in the cases of Ryan v. Oceanic Steam Navigation Company (Ld.), O'Connell v. Same, Scanlon v. Same, O'Brien v. Same (L. R. [1914], 3 K. B. 731). These cases arose out of the loss of the Titanic on a voyage from Queenstown to New York, when she collided with an iceberg and sank. The jury, before whom the cases were tried, found that this casualty was the result of negligence on the part of the defendants' servants. The defendants relied on a condition on the back of the "Steerage Passengers' Contract Tickets," exempting the defendants from the consequences of neglect or default of the ship-owners' servants. This condition had not been approved by the Board of Trade. By sub-sect. (2) of sect. 320 of the Merchant Shipping Act 1894, such a contract ticket is required to "be in a form approved by the