that she kept a cockatoo; and the Scottish Lunacy Commissioners mention a certificate which alleged, as a fact tending to show the existence of lunacy, that "the patient has a great desire to appear conspicuous as a musician." We agree with Lord Coleridge and the jury that some alteration is needed in the mode of giving these certificates, but it may be suggested that a few verdicts against certifying doctors for heavy damages would probably work more amendment in their practice than any new legislative provision on the old lines.

THE INCIDENT mentioned in our last issue as having occurred at the sittings at Nisi Prius at Westminster before Denman, J., happened very opportunely by way of illustration of our remarks on Mr. Erle's pamphlet on the present Nisi Prius arrangements. It appears that two cases were fixed for trial in the same court, on the ground that the same leading and junior counsel were engaged in them. This seemed a very proper and judicious arrangement, but while the first case was being

tried an announcement came in that Mr. Justice Field, in an adjoining court, had gone through his list, and wanted a cause sent over. There was no case to go over but the second of the two cases above referred to. Counsel naturally remonstrated. Mr. Justice Denman, in connection with this incident, expressed himself strongly on the fact that counsel undertake cases and leave them. We should agree with Mr. Justice Denman's remarks if we believed that counsel had as much choice in the matter as is generally supposed by outsiders. But if there is laxity in this respect in some quarters, it naturally arises from the arrangements for the conduct of judicial business, which render it impossible for any man, even with the best intentions, always to meet his engagements by personal attendance. The common law system keeps a great variety of courts sitting simultaneously, and no one who has not experienced it can have any idea of the difficulty of forecasting with regard to the possible clashing of engage. ments under this system. Two cases may be in constant danger of clashing for a week, and the actual hearing of them may be divided by an interval of six months. The courts too, are constantly varying the order of business, and indeed must necessarily do so according to the changing circumstances of the cases. The state of things that has long existed is not calculated to foster a high degree of conscientious strictness in this respect at the common law bar. At assizes, the young member of the profession finds his engagements in the Crown Court, in which he has already got a good business, clash with those in the Civil Court, in which he is beginning to get some business, and is anxious to get more. Again, when the Civil Court finishes before the Criminal, or vice versa, two courts often sit for the same sort of business, civil or criminal as it may happen, simultaneously, the result necessarily being that counsel are to some extent separated from their cases. The same thing goes on all through the life of a common law barrister. And it being impossible for the most conscientious man entirely to prevent it, the result is that the moral tone of the profession is altogether lowered, and its members are not awake to the serious grievance to suitors that is involved. We say that no system can be considered satisfactory under which the evils we speak of happen. These evils were made the subject of serious comment some time ago in Parliament and elsewhere. But neither the bench nor the common law bar are sensitive in the matter. Custom has rendered them callous. Their moral inertia on the subject is the more difficult to stir, because it is admittedly so hard to find a remedy. Perhaps it may be impossible to find a complete remedy; even the Chancery system does not altogether preclude the occasional occurrence of the evil; but something might be done to improve the present condition of matters

THE SECRETARY of the United Kingdom Alliance, perturbed, we presume, by the comfortable dining saloon carriages which certain railway companies have recently provided, has written to Mr. Cross to ask "whether the sale of intoxicating liquor in railway carriages is legal, and under what statute licences for this sale are procured," and Mr. Cross has cautiously declined to deliver a legal opinion. The answer appears to be that the railway traveller is not uncared for by the Licensing Acts, but it is in the railway refreshment room that the Legislature intends intoxicating liquor to be sold to him. Thus, by the 45th section of the Licensing Act, 1872, the railway refreshment room is exempted from the provisions which require other licensed premises to be of a certain annual value, and by the 10th section of the Licensing Act, 1874, "nothing in this Act contained as to hours of closing shall preclude the sale at any time, at a railway station, of intoxicating liquors to persons arriving at or departing from such station by railroad.” It seems clear that these saving words will not include the case of a sale by a seller accompanying the traveller however, arise if the sale takes place on the railway in the railway carriage itself. A nicer question might,

platform, and in order to ascertain whether this sale is or is not illegal, the licence of the keeper of the refreshment room would have to be inspected. If that licence contained large general words as to the place of sale, probably the sale on the platform by the refreshment room holder would be protected, but not otherwise.

FARM LEASES.

11.

We endeavoured last week to trace the gradual growth of provisions in farm leases relating to cultivation down to the commencement of the present century. It will be observed that, notwithstanding the protection afforded by the law of waste, provisions restricting the ploughing up of meadow land have been in constant use from an early period. The permanent employment of land for the production of hay has always been a main point in English farming; and it is not a little remarkable that a system of agriculture by which, as compared with the other system of rotation of crops, it has been estimated that only about half the produce of human food can be obtained from the same acreage, should have prevailed throughout England during the time of protective duties. It is also worthy of observation that, while the early Continental leases are stated to have carefully prescribed the mode of cultivation, the early English lease left the farmer to crop the land as he thought best. The framers of these ancient instruments were more concerned about the stubbing of thorns and the protection of the trees on the farm than about the rotation of crops; and for many generations after provisions relating to this subject were inserted in leases, they usually took the lax form of only restricting more than two or three white crops in succession from the same land.

It may, perhaps, be suggested that in early times the lack of express provisions as to cultivation in leases was supplied by what has been termed the common law as to cultivation-the custom of the country impliedly incorporated in leases. But it is not till the close of the last century that any allusion occurs in the law reports to customs relating to the mode of cultivation, although in 1769, when the case of Trumper v. Cardwardine was tried at Hereford, before Yates, J. (see Dougl. 202), a custom was set up for the tenant to reap his away-going crop. In this case, however, the judge held that the custom could not extend to lessees who held by deed, although it might apply to parol agreements. Nine years afterwards, in Wigglesworth v. Dallison, Lord Mansfield reversed this doctrine and allowed a tenant holding under a lease by deed, which contained no stipulation on the subject, to take an away-going crop under the custom of the

We

country. But it was not until 1793 that it was expressly laid down (Powley v. Walker, 5 T. R. 373), that the mere relation of landlord and tenant was a sufficient consideration to support an implied obligation on the part of the tenant to cultivate a farm in a husbandlike manner according to the custom of the country. may conclude, therefore, that up to nearly the close of the last century the only obligations as to cultivation by which the agricultural tenant was bound were the express covenants on this subject contained in leases, and there seems to be no reason to suppose that even on the subject of allowances to out-going tenants any incident was then annexed by custom to leases other than the rude expedient of the away-going crop, whereby the outgoing tenant was compelled to carry on business in two places at the same time.

But when once the doctrine of the incorporation of agricultural customs into written leases had obtained a foothold, the customs grew with remarkable rapidity; and in order to understand the changes which have occurred during the present century in the provisions of the farm lease, it is necessary to trace the development of the unwritten law as to cultivation and allowances on quitting. In 1828, when Kennedy and Grainger wrote their book on the Tenancy of Land, there were several counties in which there was no customary restriction on cropping and no rotation of crops-for instance, Derbyshire, Lancashire, Bedfordshire, and Berkshire; and these authors remark that there was then "but a small proportion of the country where a complete system of husbandry was regularly practised." It is curious, however, to observe how common, even at that time, customs intended to secure to the outgoing tenant the benefit of his expenditure during the last year of his tenancy in the ordinary operations of husbandry, had become. Some interesting information as to the way in which customs grew up about this time is afforded by the evidence given before the Parliamentary Committee on Agricultural Customs in 1848. One witness states that customs relating to the compensation of the outgoing tenant became general in Leicestershire soon after 1826; and an opinion was expressed by some of the witnesses that twenty years' practice was sufficient to establish an agricultural custom. With the progress of farming even in the first half of this century, new customs sprang up, conferring a right on an outgoing tenant to be reimbursed expenses incurred in cultivation beyond those of ordinary husbandry. Thus the outgoing tenant in some places had, before 1848, acquired a customary right to compensation in respect of food purchased for his cattle; for certain kinds of artificial manure, and for draining and marling land. And after 1848 this process of addition to existing agricultural customs went on with increased rapidity. Nothing, in fact, is more curious than the contrast between the slowly changing express provisions of leases and the rapidly changing implied provisions dependent on custom. No better proof of these changes can be afforded than a comparison of the customs set forth in the report of the Parliamentary Committee in 1848 with those mentioned in the reports published by the Central Chamber of Agriculture in 1875. In the course of little more than a quarter of a century a new set of customs had become firmly established in many counties. For instance, in Lincolnshire, in 1848, no allowances were given for guano or other highly concentrated manures, which in 1875 were universally allowed for in that county. Compensation for draining was then only partially introduced, though it is now a general custom in Lincolnshire. In Staffordshire, in 1848, there was no allowance for purchased oilcake, feeding stuffs, and artificial manure, or for marling, boning, liming, planting quickset hedges, or draining, all which are now subjects of compensation in, at any rate, the southern division of that county. In parts of Cambridgeshire, South Wiltshire, and Gloucestershire allowance for artificial manures is new since 1848. The

list might be largely extended, but the instances we have given will show the rapidity with which an agricultural custom may be established. The custom is in reality, as Lord Ellenborough said, nothing more than the expression of the approved and prevalent habit of husbandry in a particular district, and as these habits change from time to time with improvements in farming, so the custom varies. As might be expected, the result is that the customary law as to cultivation and allowances on quitting presents a curious medley of provisions, resting on no general or uniform principle. For instance, a tenant quitting his farm in one district can claim an allowance for guano when applied to corn crops, while in another district he is only entitled to allowance for guano when applied to root or green crops, and many similar cases are given in the reports last mentioned.

We propose in a future article to consider the influence of the growth of agricultural customs on the form of the farm lease.

CAN THERE BE A CONTRACT OF THE EXISTENCE OF WHICH ONE OF THE SUPPOSED CONTRACTING PARTIES NEITHER KNOWS NOR IS BOUND TO KNOW?

II.

WE resume the discussion of the case of The Household Fire Insurance Company v. Grant (27 W. R. 858, L. R. 4 Ex. D. 216), on which we made some observations last week.

It was held by the majority of the court in that case that they were concluded by authority. We wish to make a few remarks on the authorities. The great anthority relied upon was the case of Dunlop v. Higgins (1 H. L. 381). Before discussing that case we should wish to deal with some of the authorities upon which the judgment professes to be based. We have already incidentally given reasons why the authorities on notice of dishonour of a negotiable instrument are not really in pari materia. The case of Adams v. Lindsell (1 B. & A. 681) was relied on. When that case comes to be looked at, it is clearly a right decision, but it turns on grounds which make it no authority on the subject we are discussing. The offer there was misdirected, and consequently the answer accepting the offer did not arrive until two days after the offer was sent. The defendant not receiving an answer so soon as he expected, sold the goods elsewhere. It seems to us clear that a party who has sent an offer, though he may withdraw it before there has been aggregatio mentium, cannot treat it as withdrawn without intimation to the person to whom it is sent until the time within which it ought to be accepted has passed. It was, in Adams v. Lindsell, the offeror's own fault that the offer reached the party to whom it was sent later than he expected, and therefore the answer was delayed. Unless he retracts the offer the offeror must be considered as continually making it for a reasonable time-i.e., if the answer accepting arrives in reasonable time the offer must be considered as continued up to that time. What is a reasonable time would depend on the circumstances. Even if a letter went astray through the laches of the offeror, it would not be reasonable, if it was delivered six months afterwards, for the offeree to treat it as a subsisting offer, but if a slight delay occurred through the laches of the offeror or any person for whom he was responsible, then it might be reasonable that the offeree should treat it as a subsisting offer. The dicta of the Queen's Bench in Adams v. Lindsell, on which such reliance has been placed, seem to be directed only be meeting the argument that because there could be no agreement binding on the offeror until he received an answer to his offer, therefore he might act as if no offer had been made, and, without any withdrawal of the offer, sell the wool to a third party.

There may be a reasonable time during which the offeror is bound to wait for an answer, otherwise transactions by letter never could take place. If the answer comes in such time he is bound by the contract. That, surely, is an entirely different thing from saying that if by no fault of his no answer can reach him, he is bound. By making the offer and leaving it unwithdrawn he has laid himself open to a contingent liability in the event of the other party accepting during a reasonable period for the acceptance of such offer. If, during such period, the offer not being withdrawn, the other party accepts it, the offeror will be bound on receipt of the answer accepting the offer.

Some of the expressions in Adams v. Lindsell may seem to point to the contract being complete before the arrival of the answer, but it is obvious that the court was not dealing with such niceties as prove to arise in the subsequent cases. All they appear to mean is that the acceptance by the person to whom the offer was made bound the offeror in the sense that he could not then withdraw the offer. We do not believe there is anything in the judgment (which, it should be noticed, is merely a summary or "per curiam") which amounts to saying that the contract, so far as it was to bind the offeror, was complete when the letter was posted. On the points that may arise with regard to the right to withdraw the offer, we shall say a few words farther on.

With regard to Dunlop v. Higgins, there, again, it was a question of delay in the receipt of the answer. There the answer, though posted in due time, did not arrive in the ordinary course of post through delays in the post. It seems to us that the judgment rather goes on the assumption that there was a trade usage that if a letter were duly posted the same day that was all that was required of the party to whom the offer was made. What does this, when analyzed, come to but that, in estimating the reasonable time within which the acceptor has to accept, and notify his acceptance of, the contract, it is to be considered that he does so in reasonable time if he posts the letter on the same day, whatever delays may take place in the post? We admit that the case goes very near to establishing the proposition that the post-office is the agent of the offeror, but when strictly looked at, we think it falls short of quite laying this down, even as an obiter dictum. The proposition being that the acceptor is to communicate his acceptance within a reasonable time, the judgment answers that such time as the post may take to deliver the answer posted on the same day is a reasonable time. This is obviously quite a different thing from saying that if no communication of acceptance is ever in fact made at all, the offeror is bound.

Another case which was relied on as an authority in the case we are discussing is Harris' case (20 W. R. 690, L. R. 7 Ch. 587). Here, again, the answer was received allotting the shares, but while it was on the way the applicant had written a letter declining to take shares. This, again, does not seem to us to be an authority for the decision in the case now under discussion. Mellish, L.J., in giving judgment, certainly used expressions tending to show that the contract was complete on the posting of the letter of acceptance, and gives various illustrations of the difficulties there would be if it was not so. But we think that all these suggested difficulties really are consequences that would arise from holding that the offeror can withdraw the offer in the interval between the posting of the letter and its receipt by him. We think he cannot so withdraw it, but that does not seem to us to necessitate holding that there is a complete contract on its posting.

If we are right in this, a merchant can, in general, safely act on the offer when he has accepted it, because the post generally, in fact almost always, goes right. The decision in Dunlop v. Higgins makes him the more secure in this respect. But to say that business must come to a standstill because in very exceptional cases the letter may miscarry altogether seems to us going too

far. It is sufficient protection that directly the letter is posted the offeror cannot withdraw. We do not believe the contract is complete until the letter is received by the offeror, but the process of completion may be going on without his power to stop it. To put it in another way, it seems to us that "acceptance of the offer" for this purpose consists of a process involving two elementsthe assent in one party's mind, and the communication of it to the other party. As soon as the process begins the right to withdraw the offer ceases, for the process must be regarded in law as, for this purpose, indivisible. This is obvious justice. There can be no difficulty, as far as we see, in saying that if the process is completed the contract must be considered to exist from its commencement; that is quite different from saying that commencement is equivalent to completion.

The

But then the difficulty is raised that the rights of the parties are in effect fixed at the date of the acceptance, and not of the communication of it; and it is asked, Can a contract have a relation back, as in the case of relation to an act of bankruptcy? We do not think men should be frightened by vague phrases. It is really no question of relation back in the same sense as in bankruptcy. The contract may not arise until the communication of the acceptance, in the sense of a binding legal obligation, but the agreement as to what the rights of the parties are to be may be antecedent. sort of case suggested is, for instance, if the company made calls while the letter of allotment was on its way. It would only be in extraordinary cases that such a thing could occur; but we should say that the reasonable construction would be that the contract, when it became of legal obligation, was that the party should be a shareholder as from a certain date. No cause of action on the contract can arise until the legal obligation is complete; but why is there anything absurd in the supposition that parties may contract as from a period antecedent to the arising of the legal obligation? If you will allot me shares, and so entitle me to the profits of the company as from the date of allotment, I will share its liabilities from that date. Why, because the contract to this effect does not arise until a date after the allotment, is there any relation back such as in bankruptcy? The suggestion lurking in the comparison to bankruptcy is that people's vested rights may be overridden by ex post facto matters; but there is no analogy between the two things.

It seems to us, summing up the whole case, that the question is, of two innocent parties, one of whom must suffer loss or inconvenience, which is to suffer? We think the one who trusted the post-office. And who trusted the post office? We should say, plainly, the sender of the letter.

SOLICITORS' CASES OF THE YEAR.
III.

Whiteman v. Hawkins (27 W. R. 262, L. R. 4 C. P. D. 13) is an important decision as to what constitutes negligence on the part of a solicitor. The plaintiff had advanced £4,600 on mortgage, and agreed to advance a further sum of £400 to the same mortgagor, on a small piece of land being added to the former security. The advance was made, the mortgage deed being prepared by the defendant, who acted as solicitor for both parties. The defendant omitted to get from the mortgagor the deeds of the additional piece of land, and a year afterwards, upon the plaintiff's instructions, he called in the mortgage, and put up the property for sale. It was then discovered that the mortgagor had previously deposited the title deeds of the land in question with another person as security for an advance of £46, and the plaintiff had to pay this sum in order to get possession of the deeds. The judge of the Thrapston County Court gave judgment for the defendant, on the ground that he had not been guilty of any gross negligence, but the Common

agents or to the Court of Bankruptcy to inquire whether the order had really been made, but it would be the height of injustice to hold him criminally responsible for the omission of his subordinate to do this. JAMES, L.J., added that he thought the proper course for a solicitor who had obtained such an injunction would be to telegraph the order to some solicitor as his agent at the place in the country, asking him to give notice of it to the persons affected. There would then be the responsibility of an officer of the court.

PRACTICE-APPEAL-SECURITY FOR COSTS-INSOLVENCY OF DEFENDANT-PLAINTIFF A FOREIGN CORPORATIONORD. 58, R. 15.-In a case of Jewett v. McHenry, before the Court of Appeal, on the 12th inst., the plaintiffs applied for an order that the defendant might give security for the costs of his appeal, on the ground that, since the judgment in the court below, he had filed a liquidation petition. The plaintiffs were an American railway company and their officer, the company having no property in England. The judgment had ordered them to deliver some shares to the defendant, and it was argued on his behalf that there were no means of enforcing this part of the judgment against the plaintiffs, and that it would be reasonable, if the defendant was called upon to give security, that the plaintiff also should give security for the costs of the appeal. The COURT (JAMES and THESIGER, L.JJ.) acceded to this view, and said that, as a condtiion of the defendants giving security for the costs, the plaintiffs must give security to the same amount.

EVIDENCE ON APPEAL-SHORTHAND NOTES OF EVIDENCE -JUDGE'S NOTES-ORD. 58, R. 15-APPEAL-ABATEMENT -BANKRUPTCY OF APPELLANT-INJUNCTION.-In a case of Dence v. Mason, application was made ex parte to the Court of Appeal, on the 13th inst., to postpone the hearing of the defendant's appeal, which was in the paper for the following day. The defendant's counsel stated that the defendant was a poor man, and had been unable to afford to have shorthand notes taken of the oral evidence before the Vice-Chancellor. Shorthand notes had been taken on behalf of the plaintiffs. Application had been made to the Vice-Chancellor's clerk for a copy of his lordship's notes, to which the reply given was that, as shorthand notes had been taken, the judges of the Court of Appeal would make use of them, and no copy need be furnished. The defendant's solicitor had written to the plaintiffs' solicitor asking for the loan of a copy of the notes taken for the plaintiffs. The only answer as yet received to this letter was that the clerk who had charge of the case was away. If the defendant's appeal had to be opened without any notes of the evidence he would be placed at a great disadvantage. The court (JAMES, BAGGALLAY, and THESIGER, L.JJ.) declined to grant the application ex parte. THESIGER, L.J., said that the practice in the common law divisions is this, that the judge who has tried the action always, as a matter of course, furnishes a copy of his notes of the evidence to the judges of the Court of Appeal on their application for them. If the parties desired to have the notes brought before the Court of Appeal they applied to that court, one of the judges of which then applied to the judge who took the notes. But copies of the notes were never furnished to the parties. When the appeal came on for hearing on the 15th inst., the matter was again mentioned, and it was stated that it is the practice in the Chancery Division to supply copies of the judge's notes to the parties. BAGGALLAY, L.J., said it would be very unfortunate that, if one party by reason of his poverty could not take shorthand notes of the evidence, he should be deprived of the benefit of the judge's notes, because his opponent had taken shorthand notes. His lordship added that before a copy of a judge's notes of evidence could be properly used it must be stamped. This, he said, was a matter not unfrequently neglected in practice. Ultimately, the court sent a request in writing to the Vice-Chancellor for a copy of his notes. When the appeal was opened it appeared that, after the date of the judgment appealed from, the appellant had become a bankrupt, and the question was raised whether under such circumstances he had any right to appeal. His trustee had not been made a party to the proceedings. The judgment appealed from had granted a perpetual injunction against the defendant, restraining him from using the trade name of the plaintiffs, and had ordered him to pay the costs of the action. After some

discussion the court (JAMES, BAGGALLAY, and THESIGER, L.JJ.) held that, notwithstanding the bankruptcy, the defendant was entitled to appeal from the judgment, inasmuch as the injunction imposed a personal liability upon him. Notwithstanding that he had no interest in the order as to costs, for that affected his estate, which was now vested in the trustee.

WILL-CONDITION PRECEDENT-TIME FOR VALUATIONENLARGING TIME.-In a case of In re Smith, before the Master of the Rolls on the 14th inst., a motion was made on behalf of a beneficiary entitled under a will that the time for a valuation according to which he was to take a certain business might be enlarged, on the ground that the valuation was extremely long and complicated, and that it was feared the gentleman appointed would not have time to complete it within the time named in the will. JESSEL, M.R., was of opinion that the time named was a condition precedent which he had no power to waive or enlarge. The best advice he could give the beneficiary would be to get the valuation completed as soon as possible.

PRACTICE

WRIT OF NE EXEAT- EQUITABLE DEBTDEBTORS ACT, 1869, s. 6-JUDICATURE ACTS, 1873 AND 1875.-In a case of Drover v. Beyer, before the Master of the Rolls, also on the 14th inst., an application was made ex parte for a writ of ne exeat under the following circumstances. The action was by a mortgagee of a ship belong. ing to the defendant claiming payment of his mortgage debt and a charge on certain insurances alleged to have been effected by the defendant on the ship which had been lost. It was alleged that the defendant was about to quit England, and, therefore, that the plaintiff would not be able to obtain payment of his mortgage debt. JESSEL M.R., refused the application. He said that no doubt under the old practice the Court of Chancery did give relief in respect of equitable debts in cases not coming within the 1 & 2 Vict. c. 110, by which arrest on mesno process was allowed at law. The Debtors Act of 1869, by section 6, limited the right of arrest at law to those cases where the absence of the defendant would materially prejudice the plaintiff in the prosecution of his action. As soon as the Judicature Acts were passed and there was only one jurisdiction, he said it could not be supposed that any practice of the conrt of equity was to supersede the 6th section of the Debtors Act, because that really would restore the arrest on mesne process in every case where it was not abolished by the 1 & 2 Vict. c. 110, the rules of equity wherever they conflicted being declared to prevail. He therefore considered that to entitle a person at present to the issue of the writ in the Chancery Division he must bring himself within the 6th section of the Debtors Act, and this the present applicant had not been able to

do.

WILL HEIRLOOMS - PROVISION FOR NON-REMOVAL — VALIDITY. In the case of Baker v. Sebright, before the Master of the Rolls on the 17th inst., a question arosewhether a provision in a will that certain furniture, plate, and jewels should not be removed from a mansion-house given to a tenant for life, "except in case of urgent necessity, and then only while such necessity should require," was valid and binding on the tenant for life. The mansionhouse had been let by the tenant for life, and he had removed to his town house the plate and jewels, and it was now argued that a case of urgent necessity—namely, the letting of the house-had arisen, and that the tenant for life was entitled to retain and use them away from the mansion-house. JESSEL, M.R., was of opinion that the will must be strictly followed, and that no case of urgent necessity had arisen, inasmuch as the necessity had been created by the tenant for life's own act. He did not consider that it would be of any use requiring the articles to be sent back to the mansion-house while it was let, and all he considered that he was required to do on behalf of the infant entitled in remainder was to see that the property was properly secured. What he should require, therefore, would be that the tenant for life should give proper security for the value of the property removed.