titled to so much of the proceeds of the sale of the bonds as remained at the bankers. The Master of the Rolls said that until the decision in in Ex parte Dale it had never been suggested that there was any difference in respect of the well-established rules of equity as regards following trust property between an express trustee and any other person standing in a fiduciary position. Mr. Justice Fry, he thought, had misapprehended the effect of the decisions on which he relied. They were founded, not on any supposed distinction between a factor or bailee and a trustee properly so-called, but on the notion that in equity money could not be earmarked. It was now, however, well settled that money could be earmarked, and, therefore, the foundation of these decisions was gone. And, if other decisions were in any way inconsistent with the modern authorities in equity, such as Pennell v. Deffell (4 D. M. & G. 372), the latter ought to prevail, especially since the Judicature Act. Lord Justice Thesiger opportunely pointed out that the only exception to the general rule was apparent, not real. In all the cases where it had been held that money could not be followed, although there had been a trust as to the disposition of the particular thing from which it arose, there had been no duty in regard to the money itself, except the ordinary duty of a man to pay his debts; in other words, the relation of debtor and creditor had been constituted, and not that of trustee and cestui que trust.

THE LEARNED MASTER OF THE ROLLS will in course of time have supplied a complete commentary on the ordinary covenant in leases of houses, "not to use the premises or any part thereof, or permit the same or any part thereof to be used in the exercise or carrying on of any art, trade, or business, occupation or calling whatsoever." It will be remembered that in Bramwell v. Lacy (27 W. R, 463), his lordship expressed an opinion that carrying on a hospital really maintained by voluntary contributions, although some patients made small pay. ments according to their means, was carrying on a "business within a similar covenant-a doctrine from which, with great respect, we ventured strongly to dissent (23 SOLICITORS' JOURNAL, 618). He has now given the profession his views as to the meaning of several other words in the covenant. In Viscount Portman v. House Hospitals Association, which was before his lordship on Monday, the question was whether the covenant above quoted was broken by the use of the premises as a hospital for patients who were able and willing to pay for their treatment. It is to be observed that the learned judge does not appear to have relied in any way upon his dictum in Bramwell v. Lacy, and he seems to have carefully avoided noticing the word "business." But upon the other words of the covenant he is reported to have remarked that the words "use or permit to be used," meant that the house itself was not to be used for the purpose of regularly carrying on any "art," but that would not apply to the accidental user of the house for such purposes. For instance, a physician might be called upon to visit a patient at the patient's house; such a user by the patient could not be said to be a breach of this covenant, such user being a mere accident. On the other hand when, it was intended to have some thirty or forty patients in one house, and to call in the physician to attend the patients, he was of opinion that the physician must be said to exercise his "art" there, and therefore it would be a breach of the covenant. It would be in fact a user of the house for the very purpose of the physician exercising there his "art." He thought, also, that "the user by the defendants would come within the words 'occupation or calling.' It had been argued that those words must be associated with the idea of profit or gain which the defendants did not intend, but in his opinion it was not necessary that a person should acquire profit or gain to carry on an 'occupation or calling.'" Query, would

constant visits of a physician to a large family, in pur suance of an arrangement, be an "accidental" OLA "regular" use of the house for the purposes of his "art"?

THE FORM OF THE NOTICE OF OBJECTIONTM UNDER THE PARLIAMENTARY AND MUNICIPAL REGISTRATION ACT, 1878.

A POINT of some nicety was determined recently by the Common Pleas Division, sitting to hear registration appeals, with regard to the form of notices of objection under the Parliamentary and Municipal Registration Act, 1878. In our humble opinion, and with very great respect for the learned judges who heard the case, their judgment was wrong. It is not, perhaps, of very great importance which way the case was decided, so long as the point was settled; but, on the whole, the decision is inconvenient, and we think, if there is to be any more legislation on the subject, a clause obviating the results of the decision may as well be inserted in any Bill that is brought forward.

The point turned on the construction of the note to Form I. in the schedule of the Parliamentary and Municipal Registration Act, 1878. That form is the form of notice of objection. It gives form No. 1 (parliamentary) notice of objection to the overseers, and form No. 2 (parliamentary) notice of objection to the party, and there is a note to the form, as follows: "If there is more than one list of parliamentary voters, the notice of objection. in each of the above two cases (Nos. 1 and 2) should specify the list to which the objection refers; and, if the list referred to is made out in divisions, the notice of objection should specify the division to which the objection refers." The form likewise contains forms Nos. 3. and 4 (municipal), which relate to burgess-list objections, and the corresponding note to them says: "If there be more than one burgess list, the notice of objection in each of the above two cases (Nos. 3 and 4) should specify the list to which the objection refers, and, if the list is made out in divisions, the notice of objection should specify the division to which the objection refers."

In the cases in question, there being several parishes in a borough, the notices of objection to the party did not specify upon the list for what parish the party objected to appeared. They merely specified whether he appeared on the occupiers' list, or reserved rights' list, or the lodgers' list, as the case might be. The court held that the notices were sufficient. There was a great deal of force in their judgment, but we cannot help thinking that they were led in the wrong direction by the current of authority that existed with regard to the meaning of a similar note to the form under the former Registration Acts. Under the law as it existed previously to the recent Act of 1878, the note to the form of notice only required the list to be specified in the notice of objection given to the overseers. Now the overseers could require no information as to the parish in the body of the notice, because it was addressed to them as the overseers of a particular parish. Accordingly it was held that all that was meant was that the notice should specify whether the occupiers' list or the reserved rights' list was intended. The word "list" under that state of the law clearly was used as meaning list for the whole borough, not for the particular parish. But now comes the changed state of the law, and a specification of the list is required in the notice of objection to the party. Our views of the construction must be adapted to the convenience of such party, no longer as formerly to that of the overseers. Now a party may have several qualifications in different parishes, and he cannot, unless the parish is specified, tell what the objection is which he has to meet without going round to the church doors of the various parishes to see in which list of persons objected to he is included. The court did not seem to think this much trouble, but

that may depend on the number of parishes. It is, at any rate, quite as much trouble as the Legislature may reasonably have intended to spare the party objected to by the requirements they made as to particulars to be given in the notice.

But we do not put this argument in the forefront. It may be that the arguments used by the court (which we will hereafter refer to) balanced it. The main ground of our view is this: It does not seem to us that the court can have sufficiently considered the exact words used in the note they had to construe. It will be remembered by our readers that the Act of 1878, section 15, sub-section 2, says that "where the parish is situate wholly or partly, both in the parliamentary borough and in the municipal borough, the list for the parish shall be made out in three divisions." Division 1 is that which contains the names of those entitled to both franchises, divisions 2 and 3 contain respectively the names of those entitled only to one of them. Read this provision in connection with the words of the note. If there is more than one list of parliamentary voters, the list is to be specified. So far the words are ambiguous, and perhaps the natural construction would be in accordance with the view of the court. But if the list referred to is made out in divisions, then the divisions are to be specified. Clearly the unit, of which the divisions are the fractional parts, is the parish list. There may be parishes without any divisions, consequently the unit, of which the divisions are fractional parts, is not the list for the whole borough. The term "list," we should have thought, as plainly as language can indicate, is used as meaning the parish list. This construction is largely assisted by the terms of the note to the municipal form of objection. The form says, "If there be more than one burgess list." Now, there can only be more than one burgess list on the supposition that the list of each parish is regarded as a separate list, for there is only one sort of qualification for the municipal franchise. The court allowed the force of this, but ultimately overruled this argument, admitting, however, that to do so involved that no reasonable construction could be given to the words "if there be more than one burgess list."

The argument that appears to have weighed most with the court was this. It was said that the words apply to both the notice to the overseers and that to the party. The provision is identical with that under the old law which, it was clear, both by authority and reason, did not contemplate the list for the parish as a separate list. It would be still absurd, with regard to overseers, to make the body of the notice specify the parish, and it cannot have been intended to alter the old law with regard to that notice; but then the note refers to both forms, and if the law necessitates the specification of the parish as to one it must as to the other. We see a great deal of force in the argument, but the difficulty seems to us, after all, to relate more to the niceties of language than the substance of the thing. In substance the notice to the overseers necessarily specifies the parish, because it is addressed to the overseers of the parish, and so far the provisions of the Act must always be complied with. A loose draftsman wishing to make one note do service for both notices might not think that the effect of the words, if construed with the greatest stringency, would be to enforce a specification of the parish in the body of both notices, it being in the one case absurd and unnecessary, or else that only part of the provision would be applicable to one of the notices. But, looking at the thing broadly, why should not the meaning be that the provision applies to both notices in the sense that both notices are intended to give certain information enabling the parties to whom the notice is given to identify the entry objected to without trouble? In the case of one notice, it is unnecessary to specify the parish in the body of the notice, as the notice is to the overseers of the parish. In the other it is necessary. We admit that this is a clumsy and inaccurate mode of verbal expression, but there is nothing absurd in the substance of the thing.

THE case of Parry v. Smith (27 W. R. 801, L. R. 4 C. P. D. 325), belongs to a class of cases involving great difficulty, and we confess that it seems to us very doubtful whether any satisfactory formula with regard to such cases can at present be evolved from the decisions. The question that arises really amounts to this, viz., what persons, under what circumstances apart from obligations of a contractual nature, can bring an action when injured by the negligence of others-or, to put it in other words, towards whom is there a duty, in such cases, to use due care and diligence? The facts of the case of Parry v. Smith were as follows:-The defendant, a gas-fitter, was employed by the plaintiff's master to repair a gasmeter upon his premises, and, for the purpose of doing so, took away the meter, and, in lieu of it, made a temporary connection by means of a flexible tube between the inlet pipe and the pipe communicating with the house. The plaintiff having gone, in the ordinary performance of his duty, with a light into the cellar where the meter had been, gas which had escaped by reason of the insufficiency of the connecting tube exploded and injured him. The jury found that the work had been negligently done, and that the injury to the plaintiff proceeded entirely from such negligence. It was held by Lopes, J., on further consideration, that the defendant was liable.

Various well-known cases will doubtless occur to the reader's mind in connection with the above decision, such as Longmead v. Holliday (6 Exch. 761), Langridge v. Levy (2 M. & W. 519, 4 M. & W. 337), and Winterbottom v. Wright (10 M. & W. 109). In Langridge v. Levy and Longmead v. Holliday the vendor of an article was sued by a person other than the vendee in respect of injuries occasioned by the defective and dangerous character of the article sold. In the former case the vendor was held liable, on the ground that he had made a fraudulent representation concerning the article (a gun), knowing when he did so that the gun was purchased for the use of the person injured, and that the person injured had used the gun on the faith of such representation. The court say, "We do not decide whether this action would have been maintainable if the plaintiff had not known of and acted upon the false representation, nor whether the defendant would have been responsible to a person not within the defendant's contemplation at the time of the sale to whom the gun might have been sold or handed over; we decide that he is responsible in this case for the consequences of his fraud whilst the instrument was in the possession of a person to whom his representation was either directly or indirectly communicated, and for whose use he knew it was purchased." In the case of Longmead v. Holliday, an attempt was made. to render a vendor responsible in damages for breach of warranty to a person not the vendee, but a person whose use of the article was contemplated by the vendor at the time of the sale. The court refused so to extend the doctrine of Langridge v. Levy. In George v. Skivington (L. R. 5 Ex. 1) the court extended the doctrine of Langridge v. Levy to cases where there is not fraud on the part of the vendor, but negligence. There a man bought hair-wash to be used by his wife as the defendant knew, and the defendant had been guilty of negliger co in compounding the wash, which proved deleterious. The court held the defendant liable at the suit of husband and wife jointly. We cannot see very clearly why the

defendant's knowledge that the hair-wash was to be used by the wife was material, because hair-wash is always presumably intended to be used by somebody for the hair, and we cannot see if there is a duty to anybody beyond the vendee why it should make a difference that the defendant contemplated a particular person. We cannot help thinking that the analogy between this case and Langridge v. Levy, which the Court of Exchequer insisted on, is misleading. Surely Langridge v. Levy turned on the point that the defendant was to be treated as having made the false representation indirectly to the plaintiff, at any rate that his false representation was the cause of plaintiff's using the gun. This principle is wholly inapplicable to George v. Skivington. It seems to us doubtful whether, logically, George v. Skivington must not turn on the principle that a person is responsible in damages for his negligence to any person whom he knew that his negligence might injure, except when contributory negligence comes in question. Then, can it make any difference that the particular person is designated and known to the defendant? If a man goes and buys a bottle of hair-wash, and tells the seller it is for his wife, his wife can recover; otherwise not, if he does not mention whom it is for. Surely that seems absurd. But if the principle of George v. Skivington is as broad as we suggest, undoubtedly it may lead to some rather sweeping and startling consequences. To take the case put in Winterbottom v. Wright, a man negligently constructs some article which he sells to another. Can every person who may ultimately be injuriously affected by the defectiveness of the article have an action for damages against the vendor? Take the cases suggested by Byles, J., in arguing Winterbottom v. Wright. "For example, every one of the sufferers by such an accident as that which recently happened on the Versailles Railway, might have his action against the manufacturer of the defective axle. So, if the chain cable of an East Indiaman were to break, and the vessel went aground, every person affected, either in person or property, by the accident might have an action against the manufacturer."

The case which seems to have been thought nearest to Parry v. Smith is Collis v. Selden (L. R. 3 C. P. 495), and we must confess we have some difficulty in drawing the distinction that was drawn between them. Collis v. Selden is not a very satisfactory case, in that the question arose on demurrer to a declaration, and a decision under these circumstances is never so satisfactory as when it is based upon actual facts. The declaration alleged that the defendant wrongfully, negligently, and improperly hung a chandelier in a public-house knowing that the plaintiff and others were likely to be therein and under the chandelier, and that the chandelier, unless properly hung, was likely to fall and injure them; and that the plaintiff being lawfully in the public-house, the chandelier fell upon and injured him. It was held that the declaration was bad as it did not disclose any duty by the defendant towards the plaintiff, for the breach of which an action could be maintained. This decision was much pressed on the court in Parry v. Smith, but it was held to be distinguishable. The framer of the declaration seems to have gone on the general principle that we suggest may be the consequence of George v. Skivington, viz., that a person in doing any act is under a duty to use due care towards any person whom he may reasonably contemplate as likely to be injured if he does not. It is very difficult to say what the precise result of Collis v. Selden is, because the court were not dealing with actual facts proved; but it is to be noticed that both Bovill, C.J., and Willes, J., construed the declaration as not necessarily alleging personal negligence by the defendant in the hanging of the chandelier. They both say that negligence by a servant would satisfy the allegations of the declaration. But assuming that this was so, we have considerable doubt as to whether that circumstance was material, and whether in this respect a false issue was not raised.

According to the general rules that govern a master's liability for the act of his servant, we doubt whether it would make any difference whether the negligence was that of the servant or the master. Willes, J., however, goes further, and his observations seem to us to be, in their general tendency, somewhat antagonistic to the decisions in George v. Skivington and Parry v. Smith. He says, "There would be no end of actions if we were to hold that a person having once done a piece of work carelessly should, independently of honesty of purpose, be fixed with liability in this way by reason of bad materials or insufficient fastening." He then instances the case of a man building a house. Five or six years afterwards a chimney stack falls down and injures a person with whom the builder has no contract, to whom he owes no duty, and as against whom he cannot have been guilty of any fraud. In giving judgment in Parry v. Smith, Lopes, J., distinguished the decision in Collis v. Selden on the ground that gas was a highly dangerous agent, and imposed a duty on all persons meddling with gas fittings to be very careful. This distinction he founded on the following remark of Willes, J., in Collis v. Selden :-" The declaration should have shown that it (the chandelier) was a thing dangerous in itself, and likely to do damage, or that it was so hung as to be dangerous to persons frequenting the house." We should have thought the declaration did by necessary intendment what the learned judge said it ought to have done. We have great difficulty in apprehending this distinction between things of a dangerous nature and of a more dangerous nature. As Bramwell, L.J., said in some case, the name of which we forget, a brick wall may, under some circumstances, be as dangerous as a tiger. All depends on the surrounding circumstances. A chandelier, suspended by a very weak fastening, is as dangerous as gas, as far as we can see. Perhaps more dangerous, as gas announces the danger by its smell. Again, we are somewhat in doubt as to the soundness of the argument that is derived from the sweeping nature of the consequences per se. It does not seem to us that because the consequences of a piece of negligence may be very sweeping and ruinous that it logically results that there is no duty to use due care towards the persons who may be injured.

We are, we confess, somewhat puzzled to deduce any definite principle from the decisions on this class of cases. There is a class of cases somewhat similar to Parry v. Smith, but which seem to turn on a somewhat different principle, as, for instance, where the article which does the mischief is placed by the defendant in a public highway or other public place. But even here difficulty arises. What is a public place for the purposes of this doctrine? Would a theatre be a public place for this purpose? If a theatre would, why not a public-house? In Clark v. Chambers (3 Q. B. D. 327) the defendant was held liable in respect of injuries occasioned to the plaintiff by a dangerous implement placed by him in a private road of which neither plaintiff nor defendant was owner, but upon which the defendant lawfully was when injured. We cannot distinguish between a private road and a private house for this purpose.

There are many cases cited in the arguments and judgment in Clark v. Chambers which show the difficulty that arises in cases where the duty, if any, is to the general public, such as Dixon v. Bell (5 M. & S. 198), and Ilott v. Wilks (3 B. & A. 301), the case where a trespasser was injured by spring guns; but in some of those cases the distinction arises between acts which must be contemplated by the doer as necessarily dangerous however done, and acts only dangerous through negligence in the doing, but not necessarily contemplated by the doer as dangerous. This, as it appears to us, may be a very important distinction in all cases of negligence not arising from contractual relations. It is obvious that the moral responsibility of a man who does what he knows to be a dangerous act is very different from that of a man who is negligent, but not knowingly so. This

distinction is so obvious as to seem a truism, but many of the cases seem to overlock it. Again, in some of the cases the danger was necessarily incurred by the party injured, not in doing some lawful act, but through the voluntary use of the article which did the mischief. Again, there are the cases which may be called "trap" cases, in which it was held that the defendant was liable because there was an invitation, and the negligence of the defendant constituted a trap for the plaintiff. Again, in some of the cases the defendant was the owner of the premises on which the dangerous thing was, in others he was not; the number of distinctions that may be suggested is very great. It would be impossible to discuss these distinctions in detail, but it is undeniable that our law on the subject of negligence apart from contract is very unsystematic and very difficult to reduce to general principles. We doubt whether it would be possible to reduce all the decisions in the kind of question we have touched upon to sound general propositions, but it is very much to be wished that it could be done.

General Correspondence.

THE BILLS OF SALE ACT, 1878.

[To the Editor of the Solicitors' Journal.] Sir,-Will you give me space for a few words of comment on the recent case of Davies v. Goodman, in the Common Pleas Division, which is reported in the Times of Saturday last. The point there decided by Coleridge, C.J., and Lindley, J. (by the latter with much hesitation), was simply this, that formal attestation of a bill of sale, in the manner described in the Bills of Sale Act, 1878, is essential to the validity of the instrument, not merely as against trustees in bankruptcy or liquidation, assignees under creditors' deeds and execution creditors, but as against all the world, including the giver of the bill of sale himself. This is surely a novel doctrine. It is represented as resting on two grounds the language and the intention of the Act.

With

Now, first, with respect to the language. the exception of the 9th section, which deals with certain duplicate bills of sale, there is only one section containing an express sentence of avoidanceviz., the 8th, which declares that "every bill of sale to which this Act applies shall be duly attested, and shall be registered under this Act within seven days after the making or giving thereof, and shall set forth the consideration for which such bill of sale was given, otherwise" the bill of sale is to be void as against certain specified classes of persons, under certain specified conditions. It is needless to say that the giver of the bill of sale is not included in any of the specified classes. There being, then, no express declaration of avoidance of an unattested bill of sale as against all persons inI have differently, is there an implied avoidance? cited in inverted commas the opening words of the 8th section. Now, from the Times report, the court seems to have dealt with these words thus: they put a semicolon after the word "attested," and read the sentence down to and inclusive of that word as mandatory and of universal application, and they confine the limited avoidance, which forms the principal part of the section, to the case of omission to duly register. This construction of the section is supported by reference to the repetition of the auxiliary verb. Every bill of sale, &c., shall be duly attested, and shall be registered. But the court do not seem to have adverted to the fact that the auxiliary verb is repeated a third time, "shall set forth the consideration, &c." May it not be suggested that the reasoning which supports a prolonged pause at the first comma, supports equally a similar pause at the second, and that there is the same ground for making registration mandatory and of universal application as for making attestation so ?

The 10th section of the Act, by its first sub-section, requires that "the execution of every bill of sale shall be attested by a solicitor of the Supreme Court, and the attestation shall state that before the execution of the bill of sale the effect thereof has been explained to the grantor by the attesting solicitor." This, no doubt, is a strong affirmative direction. But the sub-section follows immediately on the introductory words of the section, which are, "A bill of sale shall be attested and registered under this Act in the following manner," and the sub-section is immediately followed by a second subsection providing for the registration of "such bill "i.e., every bill of sale. It is, therefore, again difficult to see why the direction as to attestation and registration respectively should receive different constructions-why the one should be essential in all cases alike, the other only as against particular classes and under particular circumstances.

But, secondly, it is said that the Act exhibits an intention to protect the giver of the bill of sale, and that unless the construction contended for is put upon the direction as to attestation, this intention is defeated. I venture, with extreme respect, to submit that the only colour, if any, for this alleged intention of the Act is to be found in the first sub-section of the 10th section already referred to. The Act is entitled, "An Act to consolidate and amend the law for preventing frauds upon creditors by secret bills of sale of personal chattels "; and, with the exception of this sub-section (if it is an exception) and of the 20th section, which is in favour of the grantee of the bill of sale, every section of the Act is in favour of some or all of the creditors of the grantor, and of no other person. Surely if the Legislature had intended to protect the improvident borrower from the oppression of the unscrupulous lender, it would not have introduced that protection so modestly in a sub-section of a section expressed to be for another purpose of an Act also expressed to have quite different objects. It would appear that general principles of construction point rather in the opposite direction. Witness the construction of the Acts of Elizabeth, which declared all but certain specified leases by ecclesiastical corporations to be null and void to all intents, constructions, and purposes whatsoever, and which, nevertheless, were held not to apply as against the grantors of the prohibited leases, because they were not within the remedy. Lincoln's-inn, Dec. 2. H. M. R. P.

UNDERLEASES.

days'

[To the Editor of the Solicitors' Journal.] Sir,-Referring to your remarks at page 81, and to a conveyancer's letter at page 84, I would suggest the addition, in future, to underleases of some such covenant as the following by the underlessee-namely, "That the landlord, his executors, &c., may from time to time, with or without workmen or others [after giving previous notice], enter upon the said premises and do all such acts and things as may be necessary for preventing the commission or repairing the breach of any covenant contained in the lease under which the landlord now holds the said premises, to the intent that the landlord, his executors, &c., may thereby be enabled to prevent a right of absolute re-entry or determination of such lease accruing to the superior landlord of the said premises. And that the expenses incurred by the landlord, his executors, &c., under the last preceding covenant [if occasioned by anything done, permitted, or omitted by the tenant, his executors, &c., contrary to any covenant herein contained] shall be recoverable by the landlord, his executors, &c., by distress or otherwise, as if the same had been rent in arrear reserved by these presents."

Now that the subject of leases is before your readers, may I be allowed to inquire (1) what is usually understood to be the effect of the words "ordinary wear and

tear," often added by lessees' solicitors as an exception to the repairing covenant? and (2) where neither party covenants to insure, how should the repairing covenant be qualified as to fire, &c., and in what events the rent should be suspended ? On the latter point the forms in the books do not at all agree, most of them having evidently been prepared in the landlord's interest.

A SOLICITOR.

Cases of the Week.

WINDING UP

COMPANY-WINDING UP-APPEAL FROM ORDER AFTER APPOINTMENT OF LIQUIDATOR Locus STANDI-APPEAL-SECURITY FOR COSTS.-In a case of In re The Diamond Fuel Company, before the Court of Appeal on the 24th inst., an order had been made to wind up a company, and an official liquidator had been appointed. After this an appeal was presented in the name of the company against the winding-up order. The preliminary objection was raised to the appeal that, after the appointment of the liquidator, no one but he had any right to use the name of the company or to assume to act on its behalf. The court (JAMES, BAGGALLAY, and THESIGER, L.JJ.) did not decide the point, as they were of opinion on the merits of the case that the order had been rightly made. But they said that in future, if, under such circumstances, an appeal from a winding-up order is brought in the name of a company, and no one else is responsible for the costs, they shall always be ready to entertain an application for security for the costs of the appeal.

UNDERTAKING BY COUNSEL NOT TO APPEAL-UNDERTAKING NOT EMBODIED IN ORDER-RIGHT TO APPEAL.— In a case of In re The Hull and County Bank, before the Court of Appeal on the 24th inst., a claim to prove against the estate of a company in liquidation was disallowed by the Master of the Rolls, and, on the counsel for the claimant undertaking not to appeal, the counsel for the liquidator said that he would not press for costs against the claimant. The claim was accordingly disallowed without costs, but the undertaking not to appeal was not inserted in the order. Under these circumstances it was objected that the appeal could not be entertained. The court (JAMES, BAGGALLAY, and THESIGER, L.JJ.), however, held the appellant was not deprived of his legal right to appeal, but that the respondent would be at liberty to object to the order as to costs. And, in the result, the appeal was dismissed with costs, and the appellant was ordered to pay the costs at the Rolls. JAMES, L.J., said that such arrangements made between solicitors in court ought to be carried out bona fide.

TRADE NAME-INJUNCTION-PROVISO LIMITING EFFECT. -In the case of Dence v. Mason, before the Court of Appeal on the 17th inst., Malins, V.C., had awarded a perpetual injunction to restrain the defendant from selling certain goods in boxes having thereon a label containing the name of Brand & Co. (the trade name of the plaintiffs), and from using the name of Brand, either alone or in combination with that of Mason, in connection with the goods manufactured by the plaintiffs. It was urged on

the

appeal that this would prevent the defendant, if he should happen (as it was suggested there was a probability of his doing), to enter into partnership with a person of the name of Brand, from using the real name of his partnership in connection with goods similar to those of the plaintiffs. The court (JAMES, BAG. GALLAY, and THESIGER, L.JJ.) acceded to this view, and added the following proviso to the order :-" Provided always that the injunction is not to restrain the defendant from using the names Mason & Brand bona fide, if and when there shall be a real partnership properly designated by that name."

STATUTE OF LIMITATIONS-PRESUMPTION.-In a case of In re Rainforth, before the Court of Appeal on the 19th inst., the question was whether there had been a payment on account of a debt, which was otherwise barred by the Statute of Limitations, such as to prevent the application

of the statute, and it was argued that the court would presume against the barring of a debt by the statute. The court (JESSEL, M.R., and JAMES and BAGGALLAY, L.JJ.) held on the evidence that there had been no payment on account of the debt, and that it was barred. And JESSEL,. M.R., said that there was no presumption either way as to the statute. It was the duty of the court, as in any other case, to ascertain what the facts were, and then to see whether the statute applied. The court ought to hold an even hand, and not to presume either for or against the statute.

COMPANY WINDING UP— - DIRECTOR - MISFEASANCE FULLY PAID-UP SHARES GIVEN BY PROMOTER-ESTIMATE OF VALUE-COMPANIES ACT, 1862, s. 165.-On the 26th ult. the Court of Appeal (JESSEL, M.R., and BAGGALLAY and THESIGER, L.JJ.) affirmed the decision of Fry, J., in the case of In re The Diamond Fuel Company (23 SOLICITORS JOURNAL, 780). The liquidator of the company sought to make one of the directors liable, under section 165 of the Companies Act, 1862, to contribute to the assets of the company the full nominal value of a number of shares which had been transferred to him for a nominal consideration by a promoter of the company, they being shares which were allotted to the promoter, as fully paid up, in part payment of the purchase-money of property sold by him to the company. Of the shares so transferred to the director, some remained standing in his name at the commencement of the winding up, others had been transferred by him for value, and the remainder had been transferred for a merely nominal consideration. Before Fry, J., it was urged that the director could not be compelled to pay anything in respect of the shares which he had transferred for a nominal consideration, inasmuch as he had made no profit by them. Fry, J., however, held that these shares must be treated in the same way as the others, and paid for at their par value, because it appeared that when they were transferred to the director the public were subscrib ing for shares at par, and there was nothing to show that they would not have taken the shares in question at par if they had not been given to the director. Upon the appeal it was not disputed that all the shares must be paid for. The only question argued was whether the director ought to be charged with the par value for the whole of them. By the terms of the agreement between the company and the promoter the certificates of some of the shares which were allotted to him as fully paid up were to be retained by the company for two years. And it was contended that, if any of the shares given by the promoter to the director formed part of those the certificates of which were to be thus retained by the company, the director, though the shares were transferred to him by the promoter, would not have had full dominion over them till the end of the two years, by which time the shares of the company had become worthless. If, therefore, the director had received any of those shares the cer tificates of which were to be retained, he ought not to be charged anything for such shares; and there ought to be an inquiry whether any of such shares were included among those which were given to him. The court, however, held that the company, by assenting to the transfer of the shares to the director, had waived the condition which applied as between them and the promoter, and that consequently the director had the full dominion over the shares, even if they were originally subject to the condi tion. The appeal was accordingly dismissed.

LIQUIDATION-Debt incurred by FRAUD-PROOF-DIS. CHARGE OF DEBTOR-ACTION AGAINST DEBTOR BEFORE CLOSE OF LIQUIDATION-BANKRUPTCY ACT, 1869, s. 49DEBTORS ACT, 1869, s. 15.-In a case of Ex parte Hemming, before the Court of Appeal on the 27th ult., the question was whether, when a liquidating debtor had obtained from his creditors an order of discharge, but the liquidation had not been closed, a creditor who had proved a debt in the liquidation, but who alleged that the debt had been incurred by means of fraud on the part of the debtor, was entitled to prosecute an action against the debtor for the full amount of the debt. The question depended upon the construction of section 49 of the Bankruptcy Act, 1869, and section 15 of the Debtors Act, 1869. Section 49 provides that an order