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as to cause them to be mistaken for the plaintiff's, his said by Lord Hatherley in Churton v. Douglas (7 W. R. brother's, pills and ointment, and his lordship observed 365, Johng. 174), (and see Levy v. Walker, L. R. 10 —“The defendant's name being Holloway, he has a Ch. D. 436). In Churton v. Douglas, the principal right to constitute himself a vendor of Holloway's pills partner in the firm of "John Douglas & Co." sold his and ointment, and I do not intend to say anything interest in the business and good will to his partners, and tending to abridge any such right. But he bas no right then set up in the neighbourhood as “ John Douglas & to do so with such additions to his own name as to Co.” In other ways, also, he represented himself to be deceive the public, and make them believe that he is carrying on the old business, and an injunction was selling the plaintiff's pills and ointment.” So, in Taylor granted to restrain him from so doing. It will be v. Taylor" Taylor's thread”; Clark v. Clark (25 observed that the fact that the defendant added “ & Co." Barb. s. C. 76)—" Clark's thread”-the injunction after his own name in commencing his new business being limited to such user of the name as should be cal weighed heavily against him as evidence of fraudulent culated to produce deception : Stonebraker v Stonebraker intention, and the unnecessary adoption of these words (33 Md. 252)—“Stonebraker's medicines”; James v. will always form an element in the case adverse to the James (20 W. R. 434, L. R. 13 Eq. 421)—“James' horse defendant's assertion of bona fides. In Fullwood v. blisters"-where the defendant was restrained from signa Fullwood (1) (W. N. 1873, pp. 93, 185), where an injuncing his name “Robert James," and compelled to use his tion was granted, this addition had been made to the full name, Robert Joseph James, “Robert James," name; so in Fullwood v. Fullwood (2) (26 W. R. 435, L. R. having been the name of the original inventor of the 9 Ch. D. 176); and in Devlin v. Devlin (69 N. Y. 212). article under whom the plaintiffs claimed: Holmes, | In Bond v. Milbourn (20 W. R. 197) no relief appears Booth, & Hayden v. Holmes, Booth, & Atwood Manu to have been prayed in this respect, and in Comstock v. facturing Company (9 Amer. Rep. 324), where the two White (18 How. Pr. 421) there were several defendants leading members of the plaintiffs' firm had left it and used trading as "A. J. White & Co.," and as one of them their name again in the formation of a rival concern; and in was named A. J. White, the name of the firm was not Gouraud v. Trust (10 N. Y. Sup. Ct. 627), the defendants | interfered with. were restrained from making use of a name which their Where the sale of a business and goodwill was effected, father had assumed (they not having themselves changed not by the proprietor himself, but by his assignee or their original name), in such a way as to profit by the trustee in bankruptcy, it was thought by a judge of the reputation which the father had acquired under his new Supreme Court of New York, in Helmbold v. Helmbold.
Moreover, the fraudulent use of a man's own Manufacturing Company (53 How. Pr. 453), that the name has been held to render the person using it crimi- result was different from what it would have been had nally responsible for obtaining money by false pretences. the sale been by the owner of the name himself, and (R. v. Dundas, 6 Cox. 380—“Everett's blacking"). that the assignee or trustee in bankruptcy could not de
On the other hand, the court has refused to restrain | prive the owner of the right to use his own name so as persons from the use of their own names in Burgess v. Bur. to entitle the purchaser from the representative in gess (3 De G. M. & G. 896)—"Burgess' anchovy sauce”; bankruptcy to restrain the man by injunction from using Comstock v. White (18 How. Pr. 421)—"A. J. White & his own name in connection with a new business. Co.'s pills”; Ainsworth v. Walmsley (14 W. R. 353, L. R. 1 Having regard, however, to the case of Bury v. Bedford Eq. 518)—“Ainsworth's thread”; Faber v. Faber (49 | (12 W. R. 726, 4 De G. J. & S. 352), it hardly seems Barb. S. C. 357)—"Faber's lead pencils”; Meneely v. Me. that this decision can be supported, and there does neely (62 N. Y. 427)—“Meneely's bells"; Decker v. Decker not, indeed, seem to be any adequate reason for the (52 How. Pr. 218)—"Decker pianos”; Gillman v. Hunne. distinction. well (122 Mass. 139)—"Hunnewell's medicine”; Prince Sometimes it is a company which has used as a Metallic Paint Company v. Carbon Metallic Paint principal feature in its trade-name the name of which Company (N. Y. Sup. Ct. 1877)—" Prince's paint"; complaint is made, and which the company has derived and in Dence v. Mason (Jan. 25, 1877), Vice-Chancel- from one of its principal members; but it seems clear lor Malins held that, during the continuance of a part, that the company can at all events assert no better right nership between two persons named Mason and Brand, it in the name than could have been asserted therein by was impossible to prohibit the use of the latter's name the person from whom they derived it, and even that in the business, which was carried on as " Mason and the company's rights therein may be inferior to his, for Brand," but that after he had quitted the firm, the re there was no natural necessity for the company to be maining partner had not the right to use his, Brand's, originated under that particular name: Massam v. name so as to deceive. And see McLean v. Fleming (96 Thorley's Cattle Food Company (ante, p. 505); McGowan U.S. Rep. 246), and Binninger v. Wattles (28 How. Pr. Brothers' Pump Machine Company v. McGowan (2 Cinc. 206).
313); Holmes, Booth, & Haydens v. Holmes, Booth, & The question is, of course, much simplified when the | Atwood Manufacturing Company (9 Amer. Rep. 324). defendant has contracted not to use the name, and the injunction will be granted with much less difficulty, as in Ainsworth v. Bentley (14 W. R. 630), where the We are requested to state that Mr. Quinn's examinadefendant had covenanted not to publish another peri- tion of the equity classes at the Law Institution will be odical of like nature with Bentley's Miscellany, which he held in the Examination Hall on Monday, the 5th of had sold, and then published a new magazine with his July next. Subscribers to the equity classes are at name on the cover, and Gillis v. Hall (7 Phila. 422), liberty to attend. The examination will commence at where a person who had sold his interest in the firm of eleven a.m, and close at two o'clock p.m. “R. P. Hall & Co.," and in a secret preparation known It was stated recently, says the Times, in the Lewiston as “Hall's Vegetable Sicilian Hair Renewer,” covenant. Journal, that Mr. A. Gibbs, a lawyer at Rochester, New ing not to use his name in a similar business, began York, ninety-three years old, is still in practice. A reader to do so, and was restrained by injunction, which he
of that journal cut out the paragraph and sent it in a letter afterwards disregarded, and was thereupon attached for
of inquiry directed to Mr. Gibbs, and received an answer, contempt (8 Phila. 231). It is not, indeed, necessary
dated the 19th of May, in which the writer says :-"I am for there to be an express covenant not to use the name
the person named in the printed slip.' I never sought
notoriety, but it seems my longevity is likely to give me when a business is being sold with the goodwill, for
more than my good deeds. My health is as sound as at any "when you are parting with the goodwill of a business
time of my life, for aught I know. I was slender until you mean to part with all that good disposition which thirty. I have been a close student and kept up with the customers entertain towards the house of business identi decisions of our courts, done a good amount of business, fied by the particular name or firm, which may induce never was rich. My present patronage is select. From my them to continue giving their custom to it, as youth I bave entertained a foudoess for the profession."
FRENCH COMMERCIAL LAT.
THE FRENCH CODE OF COMMERCE AND Most USTAL (Smee v. Smee, Prob.D., 28 W. R. 703.)
COMMERCIAL Laws, &c. By LEOPOLD GOIRAND, Licencié In his summing up to the jury in this case Sir James
en Droit, Avoué au Tribunal Civil du Department de Hannen purported to adopt the rule which he took part
la Seine. Stevens & Sons. in laying down in the judgment in Banks v. Goodfellow M. Goirand's object is to afford to English lawyers (L. R. 5 Q. B. 549), that delusions and hallucinations and commercial men a practical treatise on French comnot connected with the subject-matter of a will do not mercial law. He deals with the subject in a commentary, invalidate it. The same rule was laid down by Sir J. followed by a literal translation of the Code of ComNicholl in Dew v. Clark (3 Addams, 79), but was subse merce and the subsequent commercial laws. Prefixed quently dissented from by the Privy Council in Waring v. to the commentary is an interesting account of judicial Waring (6 Moore P. C. 349) ; and in Smith v. Tebbit organization in France, and the practice before the (15 W. R. 562, L. R. 1 P. & D. 398), Lord Penzance Tribunals of Commerce. These courts, which have exheld that mental disease invalidated a will, although" the clusive jurisdiction in commercial suits, are composed of particular subjects upon which the disease is manifested judges nominated by “a meeting of electors chosen from have no connection whatever with the testamentary dis- amongst traders, directors of Sociétés Anonymus, position before the court.”
financial and industrial companies, and stock brokers," It has always appeared to us that neither of these and these judges adjudicate finally and without appeal views can be accepted without reservation. On the one
in all cases where the amount in dispute is less than hand it seems absurd to hold (as was held in a case
£60. The subjects of bankruptcy, companies, and bills before the Prerogative Court) that a delusion which took
of exchange are very fully treated of in the commentary, the form of keeping fourteen dogs in kennels in a draw. which also includes the heads of Stockbrokers, Chegnes, ing-room destroyed the testamentary capacity of a Loans and Pledges, Maritime Law, Common Carriers, testatrix; and on the other hand it is impossible to deny Trade-marks, Patents, and several other subjects conthat delusions are often indications of insanity nected with commercial law. The chapter on the extending beyond the particular subjects on which execution in France of judgments rendered by foreign they have manifested themselves. The fact is, as tribunals contains, within a short compass, a useful was admitted in the judgment in Banks v. Good- summary of the proceedings to be taken in order to fellow, that, 'where delusions exist which have no
render executory by the medium of the French courts & foundation in reality, and spring only from a disa judgment recovered abroad. eased and morbid condition of the mind, to that extent the mind must necessarily be taken to be unsound"; and the question in these cases appears to be not merely
COMMON LAW. did the delusions relate to the subject-matter of the will, but was the testator so far under the influence of mental | PRINCIPLES OF THE COMMON LAW. AN ELEMENTARY disease as to be "incapable of considering the matters
WORK INTENDED FOR THE USE OF STUDENTS AND which should be weighed and taken into account in
PROFESSION. By John LNDERMAUR, Solicitor. making a will ?"
bis book now constitutes a very readable and practical
Second EDITION. Stevens & Haynes. In the recent case Sir James Hannen, while, as we Mr. Indermaur has added to this new edition of his have said, purporting to re-affirm the rule in Banks v. useful elementary treatise many recent cases and enactGood fellow, appears to have adopted the above view. ments. With regard to the cases the difficulty in a book “If the delusions,” he said, “could not reasonably be of this kind always lies in including all the important conceived to have had anything to do with the testator's decisions, while not overloading the work. Mr. power of considering the claims of his relations upon Indermaur has avoided the latter fault and has not him, and the manner in which he should dispose of his very often lost sight of new points of importance. With property, the presence of a particular delusion would not reference to Bovill's Act, however (p. 116), a statement incapacitate him from making a will.” The dispositions should have been given of the principles laid down in in one of the wil before the court were, in the opinion the judgments in the cases of Pooley v. Driver (25 W. R. of the court, unconnected with the testator's delusions ; 164) and Ex parte Delhasse (26 W. R. 341), as pointing and as to this will, the learned judge remarked that attention to the meaning of the words in the Act “ the " the capacity required in a testator is that he should be advance of money by way of loan.” The index to the able rationally to consider the claims of all who are book has been enlarged and now constitutes almost an related to him, and who, according to the ordinary analysis of the different heads. feelings of mankind, are supposed to have some claim to his consideration when dealing with his property as it is to be disposed of after his death. It is not sufficient
PROCEEDINGS IN AN ACTION. that the will might, on the face of it, be considered a rational will; you must go below the surface and con
THE PROCEEDINGS IN AN ACTION IN THE QUEEN'S BENCH, sider whether the testator was in such a state of mind
COMMON PLEAS, AND EXCHEQUER DIVISIONS OF THE Hres that he could rationally take into consideration, not
COURT OF JUSTICE. By SAMUEL PRENTICE, Esq., Q.Co merely the amount and nature of his property, but also
SECOND EDITION. Stevens & Sons. the interests of those who had claims upon him by Mr. Prentice has carefully noted up the cases which personal relationship or otherwise.” It will be seen have been decided since his first edition appeared, and that this is not very difficult from the doctrine laid down by Lord Penzance in Smith v. Tebbit.
manual of the practice relating to the Common Law Divisions. We do not know, for instance, where the stu
dent will find a better concise introduction to the action The Lord Chancellor bas appointed Mr. Thomas Lovell for the recovery of land than in chapter 30. (chamber clerk to Mr. Justice Lindley) one of the permanent officers in the Central Office (Summons and Order Department) of the Royal Courts of Justice ; and Mr. William Stewart has been appointed by Mr. Justice Lindley to succeed Mr. Lovell as chamber clerk.
provio or stipulation in any lease for the breach of any General Correspondence.
covenant ir condition in the lease, or within two calendar montií after any actual re-entry made without action
brougat, the lessee may, in the lessor's action, if any, or THE LEASES BILL.
in any action brought by himself, apply to the court for [To the Editor of the Solicitors' Journal.]
relief, and the court may grant or refuse relief as the Sir,-As I have taken part in the discussion of the court having regard to the proceedings and conduct of Leases Bill, I wish to make one or two remarks on your
the parties, and to all the other circumstances, thinks fit, article of last week.
and in case of relief may grant it on such terms, if any, First, I entirely concur with you that Mr. Warton's as to costs, expenses, damages, compensation, penalty, Bill should be amended, and several of the provisions of or other matters relative to the breach, or to any subLord Cairns' Bill be adopted. I consider it distinctly sequent like or other breach, as the court in the circum
stances of each case thinks fit. wrong that the lessor, having a right, should bear the burden of an application for leave to enforce it, as in
Here follow sub-sections 3, 4, 5, 7, 8, and 9 of section Mr. Warton's Bill ; the lessee seeking relief should apply 18 of Lord Cairns' Bill. for it, and get it if entitled.
Here follow sections 4 and 6 of Mr. Warton's Bill.] There are cases where summary enforcement of rights is so important to a lessor that I do not like Lord Cairns' clause requiring previous notice. Suppose the
ARTICLED CLERKS. case of a mine where workings are neglected, or a [To the Editor of the Solicitors' Journal.) tavern where a licence may be forfeited (and many other
Sir, -As Mr. Dodd has sought the support of your cases may be suggested), and you will, I think, agree
readers for the proposals he is about to make, having with me that the clause might do harm. I had a case
for their end the establishment of scholarships and two months ago where possession at the earliest possible date was essential to secure a crop from a large mediate examinations of the Incorporated Law Society,
prizes to be competed for at the preliminary and inter. farm.
I hope you will permit me to protest against the adopThe truth is the proposed measure will not work any
tion of any such scheme. violent alteration; the vast majority of lessees and
The indifference to intellectual training which prelessors fairly fulfil their engagements, and when need. ful make mutual concessions; and for them nothing is by a reaction which is tending to carry us in a wrong
vailed half a century and more ago has been succeeded necessary : for others, short and sharp powers of enforc
direction. England is examination mad, and no pursuit ing rights or obtaining relief are desirable, and the sooner
or study is considered of much value unless it lead to they get their disputes disposed of by the court the
results capable of being tested by examination. Ilabits better for the one in the right.
of careful observation and thought, the formation of a With regard to leases at a rack rent there is much to
decided character, knowledge of men and of the world, be said, but I venture to differ from you, and, on the
are all subordinated in the training of youth to a whole, am of opinion that power to relieve would be
cram of matter in order to produce marks or honours at beneficial, Apart from other considerations, often,
an examination. In fact, for the ills which may afflict owing to change in value or outlay by the tenant, a lease
every sort and condition of men, for the peer as well as originally granted at a rack rent becomes valuable; and
for the peasant, for men whose future is to be the in any case, substantial, not literal, fulfilment of the
senate, as for those who are destined for the counter or bargain is the real intention of the parties, and this the
counting-house, for such as are to adorn the pulpit, court can secure, or refuse relief.
and for those who will follow the plough, there is one I notice that Lord Cairns' Bill excludes from its
universal panacea-Examine, examine, examine. operation clauses prohibiting assignment without licence.
And, Sir, I am afraid that the duties of the IncorThis is the very clause I want the court to deal with, porated Law Society in reference to the examinations of for it is used the most oppressively.
articled clerks may be lost sight of in these days. Has I for a lessee always fight against it and, if I can't get the preliminary examination any other object than to it omitted, qualify it as much as possible. I have known
ascertain that articled clerks have been so instructed as many fines demanded for licence. For instance, a
to be on a level, so far as education is concerned, with lessor who had approved a sub-tenant for å part of
middle-class youth of average education ? house in the City (both lessee and sub-tenant being part of the business of the society to compete with the Wealthy and desirable tenants) on the sub-tenancy being universities, or to supersede the local examinations concontinued for a short period, extorted a large payment, ducted under the general supervision of the university and is about to repeat the process on a further exten
The object of the intermediate examination again is, Such demands are a great abuse of the clause. The
as I have always understood, to induce articled clerks to excuse alleged for insisting on its insertion is that the acquire a certain amount of knowledge, and to get lessor only wants to secure satisfactory occupants of his through a certain amount of reading, during the first premises ; but when change of plans, death, or other portion of their articles, and not to encourage them to circumstances, render necessary the transfer or under
cram themselves to the neglect of everything else. detting of the premises, bad landlords (and I have
I am quite willing to admit that the balance of adnothing to say as regards others) use their powers most
vantage may be in favour of a searching final examinaunjustly, and for far different purposes to what were
tion, and, as part of it, of special honour papers and originally supposed. I think the court should have prizes; but the system is not without its drawbacks. power to prevent their doing so.
Important as it doubtless is that members of our branch I enclose for your consideration a sketch uniting parts of the profession should have a knowledge of the prinof the two Bills with alterations, which seems to me
ciples and technicalities of the law, yet this is by no preferable to either separately.
means all that a practising solicitor requires : I doubt, 7, Walbrook, E.C., June 28. Joseph ADDISON.
indeed, if it be the most important part of professional [The following is the Bill referred to by our corres
training. pondent :
Thorough habits of business, knowledge of men, a
power of calculating probabilities and weighing evidence A BILL TO AMEND THE LAW RELATING TO LEASES. which is best included in the term judgment-method, (Adapted from Lord Cairns' Bill).
resource, and many other qualities, are of even more Where a lessor is proceeding by action or otherwise importance. In the days when I served my articles, to enforce a right of re-entry or forfeiture under any articled clerks really did much of the work of an office,
Is it any
and were clerks rather than pupils; and I believe that | GALLAY, L.J., said that attornment clauses were originally they learnt more of the practice of the profession, that introduced into mortgage deeds in cases when the mortthey acquired habits of thought and reliance, that they gagor was in the occupation of the mortgaged property, the were, in short, better trained than they can be under a intention being to give the mortgagee the same benefit as he system which results in the whole efforts of an articled | wonld have had if the property had been in the occupation clerk being concentrated upon reading for his examina. |
of a third party-.e., the benefit of a fair and reasonable tion, and three-fourths of his time being wasted in cram.
rent for the property. And his lordship thought that that ming, with the aid of an advertising professional coach,
was what a fair and proper attornmont clause should proa mass of case law which he cannot digest or assimilate,
vide for-not necessarily the exact value of the property, much less apply or turn to any practical use. A man may
but what a willing tepant might be ready to pay for it.
If the som reserved as rent was excessive and unreasoncontinue his reading after he is in practice, but seldom
able, it was not really rent. The Chief Judge was very or never after the days of his pupilage will he acquire
much influenced by the decision of the Court of Appeal in those habits of mind which are of so much importance In re The Stockton Iron Furnace Company. But in that case to him.
the judges came to the conclusion that the rent reserved by I am very far from objecting to proper examinations : the attornment clause was not excessive or onreasonable. no one is more conscious than I am of the importance of If they had been of opinion that it was, his lordship some test being insisted on to insure the exclusion from thought it was clear that their decision would have been the profession of ignorant and incompetent persons : but the other way. He thought that the principle of Ex parte what I do urge is that the Incorporated Law Society Williams (26 W. R. 274, L. R. 7 Ch. D. 138) should carefully avoid a system that may result in all exactly applied to the present case. In Norton the rewards and honours being obtained by men who v. Woods (17 W. R. 414, L. R. 4 Q. B. 293) have a great capacity for cram and nothing else. What there was no suggestion that the rent reserved was is wanted in a practising solicitor is not the erudition of
not a reasonable and proper one, and the decision was a university don, but rather the parts of a man of the
nothing more than that effect would be given to a proper
attornment clause as against the trustee in bankruptoy of world.
the mortgagor. Cotton, L.J., said that a mortgagor and mortgagee bad undoubtedly a right to insert such a clause
in their mortgage deed, and thus to constitute be relation Cases of the U eek.
of tenant and landlord between themselves, and when it
was a real tenancy, not a mere sham, a distress could be MORTGAGE-ATTORNMENT CLAUSE-EXCESSIVE RENT levied for the rent. A mortgagee had a right to turn his BANKRUPTCY OF MORTGAGOR-FRAUD ON BANKRUPT LAW mortgagor out of possession of the property, whether he -BANKRUPTCY ACT, 1869, s. 34.In a case of Ex parte was in possession bimself or by his tenant. There was Jackson, before the Court of Appeal on the 25th ult., the nothing approaching to a frand on the bankrapt law in question arose whether an attornment clause in a mort. making such a stipulation in a mortgage deed, and the court gage deed was valia as against the trustee in the liquida would not isquire too strictly whether the rent reserved was tion of the mortgagor. The mortgage was given by a | too large. But when the question was whether the contract trader to his bankers to secure the balance of his current to create the relation of landlord and tenant was real or account. It contained a clause by which the mortgagor | fictitious, the amount of the rent reserved was a very material attorned tenant to the mortgagees of that part of matter. If the rent was more than enough to cover the the mortgaged property which was in his possession interest on the mortgage debt, the mortgagee, if he received as tenant from year to year, at an annual rect of it, must apply it in reduction of the principal, and a stipnla. £8,000, payable in advance, the tenancy to be deter- tion that the rent should be applied in payment of principal mined by the mortgagees at one week's notice, unless the as well as interest would not avoid a contract for a real rent for the current year should be fully paid before the rent. In the present case the rent reserved was so large giving of such notice. All rent which might be paid or that, if the power of distress was exercised for a year's rent, recovered under or by virtue of the attornment was to be the relation of mortgagor and mortgagee between the parties applicable in or towards payment or satisfaction of the
would be brought entirely to an end by payment of the principal and interest secured by the mortgage, and any | whole amount secured by the deed,
whole amount secured by the deed. Could it be sup surplus was to be accounted for to the mortgagor. The
posed that the clause was really intended to provide that the deed also contained an assignment by the mortgagor to
mortgagor should remain in possession of the proporty, girthe mortgagees of the stock.in-trade and other chattelg 1 ing the mortgagee a fair return for it? Moreover, but for belonging to him either then or at any time during the
the Bills of Sale Act, the assignment of the chattels would continuance of the security. The deed was cot registered
have been a valid security ; must it not be concluded that as a bill of sale. It was stamped to cover an advance of
the attornment clause was intended to make good the delect £8,000. It was executed in February, 1877. On the 30th
in the security caused by the non-registration of the deed? of May, 1879, the badkers distrained opon the property
Uoder such circumstances his lordsbip could only conclude wbich was in the occupation of the mortgagor for £6,530,
that no rent was really reserved, but tbat a sum was merely as for part of one year's rent due under the attornment,
stipulated for under the name of rent, and that no legal that being the amount of the balance which was then due
incident of distress arose out of it. A distress must be for a to them from the mortgagor. On the 3rd of Jane he filed
real rent, to which the law annexed a power of distress. a liquidation petition. The trustee in the liquidation
When it was not a real rent, but something called rent that claimed the chattels wbich had been seized under the disa
was not rent-an attempt to give to a mortgages as tiess, on the ground that the attornment clause was
mortgagee a right which he could only have as a landlordinvalid against him. There was evidence that that part of
it was a fraud on the bankrupt law. THESIGER, L.J., said the mortgaged property wbion was in the mortgagor's
that there could be no doubt that such a clause was valid, possession was assessed for the poor rate at the gross
and that it created the relation of landlord and tenant, and annual value of £140. Bacon, C.J., was of opinion that
that the ordinary right of distress which was by law attached
to that relation was attached to it. Nor could it be doubted the case was governed by the decision of the Court of Appeal in In re The Stockton Iron Furnace Company
that the clause would be valid, althongh the rent reserved (27 W. R. 433, L. R. 10 Ch. D. 335), and held that the
was considerably greater than the sum required to keep down
the interest on the mortgage money. Indeed, he could bankers were entitled to retain their distress (28 W. R. 523).
imagine a case where the rent reserved might be large enough The Court of Appeal (BAGGALLAY, COTTON, and THESIGER,
to cover both principal and interest. But it must be adL.JJ.) reversed the decision of the Chief Judge, and
mitted that the object of the clause was to place the beld that the amount of the rent fixed was so excessive as mortgagee in the same position when the mortgagor was to show that it could not have been intended to create a occupying the property as if it had been leased to a third real tenancy or to provide for the payment of a real rent,
party, and though it was open to the parties to bargain as to but that the whole thing was a mere device to evade the
the amount of the rent, and the court would not lightly Bills of Sale Act, and to enable the mortgagees when the interfere with their bargain, the amount of the rent was occasion should arise to lay their hands upon cbattels of very important to be considered in determining whether 1 much more value than the rest of their security. BAG. | was a real rent, and whether a tenancy was really created.
If from the terms of the deed, or from the amount of the rent favour of the Crown, and if the plaintiff's counsel coold fixed, it could be collected that the rent was not a real rent, not give the usual undertaking in damages he should not and the tenancy not a real tenancy, but a mere sbam, and grant the interim injunction. On this the piaintiff's connthat the clause was only a device to give the mortgagee in sel gave the usual undertaking.-SOLICITORS, Solicitor to the event of the mortgagor's bankruptcy a security upon the Treasury ; Chubb g. Co. chattels which would otherwise be distributed among his creditors, then the clause was void as a fraud on the bank. rupt law. That was the principle of the decision in Ex TRUSTEE AND CESTUI QUE TRUST—REMUNERATION — parte Williams. In In re Stockton Iron Furnace Company STIPULATION IN TRUST INSTRUMENT.-In a case of Henthe court came to the conclusion that the rent was a fair derson v. Ray, before the Master of the Rolls on the one, that there was a real rent and a real tenancy. In Ex 25th ult., a question arose whether on the construotion of parte Williams, on the other hand, it was admitted that the a document under which certain bonds were deposited property was worth only about one-seventh of the rent with a committee for the purposes of litigation, and to reserved, and this was so disproportionate to the real value
enforce payment of the bonds out of a fund in the hands that the court held that they might infer from it that
of the trustees, the committee were entitled to retain a there was not a real tenancy. In the present case the
sum to secure remuneration for their services. The con-rent was about fifty-seven times as much as the fair
ditions of deposit ander which the bonds were deposited letting value of the property, and it was equal to the whole
with a bank, authorized the committee of the bondholders. amount which the stamp on the deed would allow to be
and the corporation of foreign bondholders to represent the secured by it. It was open, therefore, to the mortgagees to
depositor, and to take the necessary proceedings to obtain fold their hands, and allow their debtor to go on acquiring
a rateable distribution among the bondholders of the pro.. credit on the faith of his possession of the chattels which were
ceeds of the loan, “after making such deductions thereon the property, and then upon his bankruptcy to come for.
from as the committee and corporation may authorize." ward and sweep away the whole of those chattels by a distress for a year's rent.
The bonds and coupons deposited were to be subjeot to and In this respect there was a great distinction between the mischief which would be done by an
charged with a sum of ten per cent., to be paid to the unregistered bill of sale and by such an attornment clause.
joint order of the committee and corporation “ip contri. No doubt, if the grantee of a bill of sale could seize the chat
bution towards their past and future expenditure in contels comprised in it before the bankruptcy of the grantor,
nection with the representation of the bondhulders' he could hold them as against his trustee. But it was
interests, bat repayable, if possible, in whole or in part by always a great chance whether he would be able to seize
deductions from the fund if the same shall become distri. them in time. Under an attornment clause, however, it was
butable." By a deoree of the House of Lords the committee not necessary to take possession before the bankruptcy, for
had recently secured the distribution of the funds repreby section 34 of the Bankruptcy Act, 1869, a landlord was
senting the loan, and they had given notice that they entitled to distrain for a year's rent after the bankruptcy.
proposed to distribute a portion of this sum, retaining a If, however, you could arrive at the conclusion that the
sum of £2 per cent. as security for a sum claimed by tbom whole thing was a sham, there never could be any right to
for their remuneration, contending that under the words levy a distress, and it was immaterial whether it was levied
of the conditions they were entitled to do so. The plaintiff before or after the bankruptcy. The appeal was accordingly
brought this action seeking to restrain the committee from allowed. The bankers' counsel asked for leave to appeal to
deducting anything from the bonds, and for delivery of the House of Lords, but the court declined to give it. his bonds, he offering to pay the committee the percenSOLICITORS, Helder, Roberts, f Gillett ; Johnston & Harrison.
tage according to the conditions of deposit. The committee claimed to be allowed their remuneration as part of the
expenses under the House of Lords' decree, but antil that DIVORCE-LUNACY OF HUSBAND-PETITION BY COM
time they desired to retain a sum as security for their
remuneration. JESSEL, M.R., was of opinion that the MITTEE.-In the Probate, Divorce, and Admiralty Division, on the 22nd ult., the appeal of Baker v. Baker, Wheeler, and
| above words as to “deductions” were too ambiguons to Owen was heard before the full court, consisting of Lord
entitle the committee who were in the position of trustees. COLERIDGE, C.J., HANNEN, P., and PHILLIMORE, J. The
to retain any som for their remuneration. To entitle any petition was filed by the committee of the estate of a lunatic
such body to remuneration he considered that clear words husband, under the direction of the Lords Justices of
| anthorizing the same should be inserted in the document Appeal sitting in lanacy, for the dissolution of his marriage | creating the trust, and that such right should be com-on the ground of his wife's adultery. The respondent municated to the cestuis que trust before the deposit was demurred to the petition, on the ground that it did not allege
made or the trust entered upon. After this expression of that the husband was permanently insane, and that it was
his lordship's opinion, the defendants abandoned their connot competent for the committee of a lunatic to present a
tention, and consented to an order giving the plaintiff his petition for a divorce. The President of the Division orer bonds on payment of the amount according to the deposit ruled the demurrer, holding that the principle of the decision note. -SOLICITORS, Dawes & Sons ; Wilson, Bristows, of the House of Lords in Mordaunt v. Moncreiffe (24 W. R. Carpmael. 12, L. R. 2 P. & D. 374) applied to the case of a lunatic petitioner as well as to that of a lunatic respondent. Lord
TRADE-NAME-SIMILARITY_INTENTION TO TAKE TPADE COLERIDGE now delivered the judgment of the full court.
COSTS.-In a case of the Guardian Fire and Life Assurance Con He observed that, if the question was an open one, he should
pany v. Guardian and General Insurance Company (Limited) be inclined to hold that the petition must be dismissed, and
before the Master of the Rolls on the 25th ult., a motion wae to approve the view taken by Lord Penzance when Mordaunt
made to restrain the defendants from carrying on business, V. Moncreiffe was before the Court of Divorce, but the judg
under the above name, on the ground that it was calculated ment of the House of Lords in that case was binding, and
to deceive. The defendants had acquired the business of following that decision it was impossible to distinguish the
another company known as the “Guardian Horse and cases of a lunatic petitioner and a lunatic respondent. The
Vehicle Insurance Company," formed to assure horses and judgment in favour of the petitioner was therefore affirmed,
vehicles from accidents, and they had then changed their but leave to appeal was given.-SOLICITORS, White & Son ;
name to the above, as they alleged in consequence of their Surr, Gribble, f Bunton.
intention also to undertake the insurance of persons against
accidents and also general fire insurance business. The defend PRACTICE-ACTION BY THE CROWN-INJUNCTION-UNDER ants carried on their business a few doors from the plaintiffs TAKING IN DAMAGES.-In a case of The Secretary of State and it was proved that letters addressed to the latter comfor War v. Chubb, before the Master of the Rolls on the pany had been delivered to the former, and vice versa. After 25th ult., a motion was made by the plaintiff to restrain the motion was opened the defendants offered to give an the defendants from constraoting certain tramways in undertaking to carry on their business in future under the alleged contravention of their statatory powere, and a name of the “Guardian Horse, Vehicle, and General Insurquestion arose whether, on an interim injunction for a ance Company," and the only question then argued was os week being granted, any undertaking in damages could to the costs of the action. JESSEL, M.R., was of opinion be required on the part of her Majesty's Govern- that the name of the defendants was calculated to deceive, ment. JESSEL, M.R., said he could make no exception in l but that the name they offered now to use would not deceive