of the writer should be expressed in as few words as is consistent with perfect clearness. The writer must, first of all, be sure that he has something to say, for this is pre-eminently a case in which, as Theophrastus Such has put it, "Blessed is the man who, having nothing to say, abstains from giving us wordy evidence of the fact." Having something to say, he must put it as shortly as he can. The difficulty is to be terse without being curt. It has often struck us that the young solicitor of the present day, accustomed as he is to telegrams, is inclined to fall into the error of rather rude curtness. This is not likely to lead to successful correspondence. A man who has written a letter explaining at some length his view of the course to be pursued, does not greatly appreciate a dry reply to the effect that the writer is unable to concur in the course suggested. A still more unwise mode of procedure is for the solicitor to assume a lofty air of superior knowledge in his communications with his professional brethren. There are certain members of the profession who are fond of the formula, "Do you really contend that," &c., or "Do I understand you really to mean that," &c., as though the writer were positively unable to credit the crass ignorance and stupidity of his correspondent. There are others who adopt what we have heard described as the "great coat and walking stick" style of address. They are always referring to what they are pleased to call the commonsense view of the matter"; common sense forbids them to believe"-what it is inconvenient for them to admit, and any view opposed to their own is condemned (in case arguments are lacking) as an exceedingly technical way of looking at the question. Now, an expert letter writer holds it to be a cardinal maxim to treat his professional correspondents with respect. It is not safe to sit down to write a letter to a brother solicitor with the idea that he knows less law, or is less acute, than yourself. Some of the best letter writers we know, like the greatest generals in history, invariably frame their tactics on the assumption that they are matched with an excessively clever, wily, and well-informed adversary.

So much for letters from one solicitor to another on ordinary business matters. There is, of course, another class of of letters passing between solicitors to which different considerations apply-we mean the letters which, though addressed to a solicitor, are really intended to influence his client or to be used before a court or jury. Here the difficult art of telling a story properly comes into exercise, and there is more scope for eloquence and indignation than in the dry and matter-of-fact communications to which we have hitherto referred. But it is needless to say that these should be sparingly employed, and the writer should be specially careful neither to overstate the case of his client, nor to lose sight of the case of the opposite side. It is a moot point how far it is desirable in these letters to anticipate the adversary's reply, and it is diffi cult to lay down a rule of general application. Our own impression, however, is that it is always wise, if practicable, to forestall an objection which may prevent the other side from coming in to terms. But, however this may be, it is essential so to frame your letter that you do not afford the opportunity for a crushing reply, and in order to this it is necessary always to have in mind the question, "What answer can be given to this?" There are some little pieces of delusion still attempted to be practised in these letters, which, as they take no one in, might as well be abandoned. One is the practice of saying that the writer will "state frankly the position of matters," or will "deal with the utmost frankness" with his correspondent. We all know what this means, and are instantly on the alert. Another is the practice of representing the client of the writer as a species of colourless jelly-fish, ready to take any shape at the will of the writer. "I really cannot advise my client to consent," &c.-"I should not be justified in asking my client to agree," &c.-such phrases as these are a very unnecessary waste of paper and ink.

THE OFFICIAL REFEREES. THE failure of the provisions of the Judicature Act with regard to the reference of matters unfit to be tried by a jury to official referees has ceased now to excite much comment, but is none the less worthy of serious consideration. These provisions were an attempt to fill up an obvious gap in our existing legal system and to abolish a somewhat scandalous anomaly. It is obviously a monstrous thing that actions should be brought to trial at the assizes, that big briefs should be delivered to leaders and juniors, and that witnesses should be subpœnaed, when everybody knows that after the case has proceeded a short time it will be referred. The judge has no power to compel a reference, but he puts great pressure on counsel, the counsel makes a decent show of protest and resistance, if his client is unwilling to refer, but finally yields, indorses his brief accordingly, and pockets a large fee, not for doing nothing, because he is supposed to have read his brief, but at any rate for doing nothing that has brought much good to his client. A counsel with some conscience may often feel that this mode of disposing of cases is not satisfactory, but he is not to blame; he knows that in most cases the judge is quite right and that the action cannot be satisfactorily tried before a jury. Some judges do undoubtedly insist on references on somewhat insufficient grounds, and we are not sure that it would not really be quite as likely in many cases that are referred that justice would be arrived at by the verdict of a jury as by the award of an arbitrator. There is frequently much talk about complication of accounts, and necessity for examination of plans, and so forth, as rendering a case a more proper subject for the accurate investigation of an arbitrator than the rough justice of the jury; but we believe that not unfrequently the arbitrator is ultimately reduced to just such a rule-of-thumb kind of view as a jury would take, and nothing much is really gained by withdrawing the case from the jury and thus throwing away all the expense of preparing for trial at assizes. Referring is often a tempting way of getting rid of an uninteresting and troublesome case. The pressure of business caused by the work at an assize town proving too much for the time allotted, the desire to clear a big list at the larger places, and such like causes, have frequently as much to do with the reference of cases from Nisi Prius as any inherent incapability of being tried in the cases themselves. It has been jocosely narrated how a judge at assizes, hearing counsel incautiously say that some point in his client's case was as clear as that two and two made four, immediately said that if the case involved figures it had better be referred.

But there are undoubtedly many cases that are unfit to be tried by a jury; and it is a scandal that the useless expense should be incurred of bringing these cases to be tried and afterwards referring them. It may be said that, if the cases cannot be tried by a jury, there is no reason why they should not be tried by a judge without a jury, and the Judicature Act does seem to contemplate a more extensive use of the system of trying by a judge without a jury. But in many cases the judges dislike this mode of trial. They naturally dislike protracted, uninteresting, and laborious inquiries into mere matters of detail involving figures, and the existing system of references which was ingrained into the commou law practice before the Judicature Act afforded a means of escaping such inquiries. Moreover, unless there were an increase in the number of judges, they really have not time for such inquiries. But, admitting some system of referring such matters to be a necessity-an unfortunate necessity, perhaps, but still a necessity-it was thought to be a great anomaly that a suitor should be driven for redress to a tribunal altogether private and outside of the judicial system of the country. The result was an attempt to create a class of officials who should act as referees in regard to such matters as the judges might refer to them for report, subject to a certain

Recent Decisions.

LIABILITY OF TRUSTEES FOR RETAINING HAZARDOUS SECURITIES.

W. R. 711.)

We think therefore, to speak plainly, that the failure of the system of official referees which the Judicature Act has endeavoured to create is largely attributable to jobbery. Jobbery does not prevail, we believe, with regard to legal matters so much as with regard to many other matters, but it prevails far too much. It has done, and is calculated to do, an inestimable amount of mischief in relation to attempts to create a satisfactory system of minor judicial tribunals. People have, by reason of jobbery, to submit to a great deal of injustice, even in England in the nineteenth century, without much possibility of redress. The county court system has now become of immense utility and importance, but how many appointments to county court judgeships have been little less than disgraceful? But there are, we think, other causes at work to throw difficulty in the way of the establishment of such a system of reference as was apparently contemplated by the Judicature Act. We doubt whether the option given of referring to a special referee is compatible with the successful working of the official referee system. We believe that as long as such an alternative exists, judges, counsel, and solicitors from various motives would, if there must be a reference, be generally disposed to prefer a special referee. The undertaking of references being a considerable part of the practice of men of considerable status at the bar, a special referee quite as likely to command the confidence of the parties as the official referee, and often much more so, can always be procured. This in itself must much lower the status of the official referee. He is practically a person whom no suitor need go before unless he likes. The official referee thus does not take the position of a minor judicial officer effectually. If a party is to be obliged to have a referee and pay for him, he naturally would rather choose his own referee than pay fees to the State for the services of the official referee. It does not seem to us that the official referee can ever take his proper status as long as he is only an alternative for the special referee to be selected by the parties. And, on the other hand, unless an official could be created of considerable status, and for whose competency there was something like a guarantee arising from that status, it would be a great hardship that parties should be subject to a compulsory reference to an official referee without alternative, and judges would feel great reluctance in acting on the power of compulsory reference. The question is one of considerable difficulty. It seems anomalous that a large number of cases should practically be denied access to public tribunals-for this is what the system of referring to private individuals substantially comes to. To pay official referees if no one will go before them seems absurd. We doubt whether it will not prove impossible to establish a system of official referees, unless it be made compulsory to go before them. If so, how is it to be secured that they shall be of such a status as that this can be safely done?

A curious notion has long prevailed, and was seriously urged upon the court in Wilkins v. Hogg (3 Giff. 116), that, whatever may be the language of the instrument creating the trust, the trustee will be liable for any act or omission which a prudent man would not have done or omitted. In other words, according to this view, the creator of a trust is powerless to define or limit the liability of his trustees. In Sculthorpe v. Tipper (20 W. R. 276, L. R. 13 Eq. 232) Vice-Chancellor Malins lent some sanction to this notion. He held the trustees of a will liable for the consequences of their omission, during two and a quarter years, to sell shares in an unlimited company which the testator directed them to sell "imme diately after my decease, or as soon thereafter as my trustees may see fit to do so," notwithstanding that, as the Vice-Chancellor "believed, the trustees had acted throughout as they thought best for the testator's estate, and with every intention to benefit it, as far as in their judgment was possible." Now, as the trustees would have had a year within which to sell the shares if the testator had only directed them to sell immediately after his death, it is difficult to see what operation was given to the words "or as soon thereafter," &c. They were in effect struck out of the will. In In re Norrington a testator left his real and the residue of his personal estate to trustees on trust, "if they shall think proper, to sell the same," &c. The estate included shares in an unlimited banking company and Egyptian bonds. The trustees did not sell the bonds till six years after the testator's death, when they had fallen considerably in value, and they held the bank shares until the company went into liquidation, and a heavy liability accrued in respect of them. Vice-Chancellor Bacon held that the trustees had an absolute discretion under the will to postpone the sale of the securities, and as that discretion had been exercised "honestly and intelligently," they were not liable for the results; and this decision was affirmed by the Court of Appeal. The points to be noticed are, first, that the retention by the trustees of foreign stock of a notoriously fluctuating description, and shares in an unlimited bank, was not considered incompatible with an "honest and intelligent" exercise of the discretion given them by the will; and next, that Lord Justice Baggallay distinguished Sculthorpe v. Tipper, on the ground that the words used by the testator in that case showed that he contemplated a sale within the ordinary period; and the other judges laid stress on the fact that in the case before them the discretion was unfettered. For the future, it would seem, a distinction must be drawn in these cases between a fettered and an unfettered discretion.

In Grocers' Bank v. Murphy, in the New York city Common Pleas, says the Albany Law Journal, Judge Van Hoesen has held that a seat in the Stock Exchange is not property that can be sold on execution. He said: "There is no doubt if a seat be sold the proceeds of the sale, after the payment of claims due to members of the board, may be reached by proper process. This is the view of every court which has had occasion to express an opinion on the subject. It by no means follows, however, that the seat itself may be seized by the sheriff or taken possession of by the receiver. It may well be doubted if a seat in the Exchange be property. It is true that Mr. Justice Miller, of the Supreme Court of the United States, in the case of Hyde v. Wood (4 Otto, 523), said that he thought it was property; but the Supreme Court of Pennsylvania, in two carefully considered decisions, in which the decision of Mr. Justice Miller was thoroughly reviewed, came to the opposite conclusion."

Reviews.

CHANCERY PRACTICE.

HAYNES' CHANCERY PRACTICE, By JOHN F. HAYNES, LL.D. Stevens & Sons.

Notwithstanding the number and variety of books of practice published within the last five years, Dr. Haynes has found a missing link between the old books of practice and the Judicature Acts and Rules of Court. He has condensed the whole practice of the Chancery Division in its most recent form into a single volume of moderate size. There are few text-books, especially relating to practice, which do not, more or less, proceed upon the assumption that the head-notes of reported cases are to be taken as accurate statements of the results of the various decisions cited, and the book under notice does not differ in this respect from its predecessors in pari materia. It is fair, however, to bear in mind that if the author of a book of practice were to attempt to give extracts from the judgments, or to retail the dicta which occur in the numerous reported cases, his book would attain inconvenient dimensions. Dr. Haynes reproduces such points of the old practice as are left untouched, giving for them references to Daniell's Chancery Practice and Forms, the Consolidated Orders, &c., and he adds concise statements as to the new procedure, with references to the rules and reported cases, and thus provides the chancery practitioner with a handbook which, if the subsequently published rules of April, 1880, are taken as addenda, is complete to the present time. Certain special matters, such as the Registration of Trade-Marks, are treated in a somewhat meagre way, and the procedure in the particular instance cited, known only to a small number of practitioners, is not stated with perfect accuracy. Upon the practice in chambers, and the important question of costs, however, the information given is very satisfactory.

BEER DEALERS' RETAIL LICENCES. THE BEER DEALERS' RETAIL LICENCES ACT, 1880, WITH

EXPLANATORY NOTES. BY GEORGE CRISPE WHITELEY, Barrister-at-Law. Knight & Co.

66

“The whole of the Licensing Statutes constitutes a labyrinth of chaotic legislation.-Cockburn, C.J. “It is difficult to find anything clear in the Licensing Acts." -Blackburn, J. Such are the mottoes which Mr. Whiteley prefixes to his little brochure, which, in an “introduction" of thirty-two pages, explains the Act of three sections which passed at the close of last session [see the Act noticed by us, ante, p. 436], and gives a general explanation of the existing law with regard to the sale of different kinds of intoxicating liquors for consumption off the premises where sold." This introduction is clearly and intelligently written, and no less than thirty-two cases are abstracted, amongst them those important ones to conveyancers, of which perhaps Jones v. Bone (18 W. R. 489, L. R. 9 Eq. 674) is the best known, which bear upon the construction of the familiar covenant in leases not to use the premises as a beer-shop, &c.

When wo

come to the "notes" upon the Act itself, we regret to find that upon the only legal question which appears to arise out of it, taken by itself-we mean the question whether the Act applies to renewals or not-Mr. Whiteley after stating the arguments on either side with a certain amount of looseness, gives no opinion one way or the other, but contents himself with remarking that "the fact that in the existing state of the law applications may still be made for the 'beer-off' licences without much chance of refusal, renders the point in question of less importance than it may ultimately become." We will ourselves rush in where Mr. Whiteley fears to tread, and express the opinion that the Act does not apply to renewals.

General Correspondence.

THE LEASES BILL.

[To the Editor of the Solicitors' Journal.] Sir,-With reference to the correspondence which is going on in your columns as to the Leases Bill, I should like to call the attention of those interested to the following fact, as showing the reason why it is important that some measure of relief on the subject should be passed as early as possible. An action has been commenced by a freeholder of certain property near London against seventy-eight defendants to recover fifty-nine different houses and certain plots of land originally leased by two leases upwards of sixty years ago, but now held under numerous underleases, on the ground that some of the houses are not in such a state of repair as is required by the original leases.

Now, Sir, I assume in this letter that the freeholder's allegation is correct, in which case the plaintiff is entitled to recover, but I cannot see the justice of the principle by which he is at liberty to confiscate the property of those sub-lessees whose houses are in proper condition (the rents of which amount altogether to many hundreds per annum), because it may turn out to be the fact that some one or more of their neighbours' houses are not in such a state of repair as a strict compliance with the terms of the original lease requires.

It is, I submit, a flagrant injustice for those sub-lessees, against whom no complaint can be made, to be put in peril of losing their property, even if the plaintiff's allegation is true that some of the houses are out of repair. F. M.

ARTICLED CLERKS.

[To the Editor of the Solicitors' Journal.] Sir,-Any one would suppose, from the remarks of your correspondent "H." that Mr. G. R. Dodd proposed to establish further examinations which would not meet with "H.'s" approval.

It seems to me that Mr. Dodd's resolutions extend ships as better rewards to those who have taken the best only to the establishment of scholarships and student

places in the examinations already required.

A gentleman who served his articles with me having not long since been a prizeman, I am in a position to speak on the subject, and I can say with confidence that he was not less efficient than others who were content with a simple "pass," and he had at least as good a practical knowledge of his profession as others.

I trust your readers will not be led away by "H.'s” arguments, but support Mr. Dodd's proposal. 55, New Broad-street, E.C., July 6.

W. ELEY.

[To the Editor of the Solicitors' Journal.] Sir,-Referring to the observations of your correspondent" H.," I am sure that many of your readers will not agree with him. Your correspondent's remarks appear to me mostly to apply to examinations generally, and not to the rewards to follow thom. I would remind him that the examination for honours is now an accomplished fact, and the proposal of Mr. G. R. Dodd, as I understand it, more particularly but not exclusively, refers to the final examinations, or rather to the honours examinations which would follow them. The studentships and scholarships are intended to be more substantial rewards than are at present given to the most successful candidates. Is "H." prepared to say that those who have taken the highest places in the final examinations, which now date back for several years, are not as good men of business, and have as sound a knowledge of men and things (which your correspondent summarizes as judgment), or, in short, that they have not as good practical knowledge

as other members of the profession? Or would he contend that the members of the bar who have succeeded in gaining studentships have less practical knowledge or have been less successful at the bar than others who are or were supposed to spend more time in work at chambers? It certainly will not be necessary for a man to waste three-fourths of his time in "cramming," as your correspondent puts it, in order to obtain the studentships or scholarships referred to. Of course there are many who wasted their time in various ways in the days that he refers to, as they also do now, but that is not a fair argument against Mr. Dodd's proposal.

I and others of your readers well know that Mr. Dodd has for several years advocated (and not altogether without some success) the raising of the general standard of the final and other examinations, and I trust (and in so saying I express the opinion of many) he will not relax his efforts. Certainly I shall give him my support at the general meeting, and I am convinced that others will do the same.

July, 1880.

VERITAS.

Rigbey, James Robinson, Alfd. Robinson, Geo.

Robinson, John

Maskell, W.

Mason, Henry, junr. Meek, J. H.

Symer, J. J.

Synge, F. J.

Taylor, C. F.

Taylor, H. B.

Dauncey, Charles

Moyle, F. B.

Davies, E.

Davison, C. J.
Day, Benj.

Dodd, Thos., junr.
Douglas, J.

Dransfield, G. R.

Dury, T. S., B.A.

Eagleton, C.
Eccles, Wm.
Edmonds, J. T.

Elkin, B. A., LL.B.
Ellis, A. G.
Ellis, R. S.

Eaglefield, F. W.
Fisher, R. E. H.

Flowerdew, F.

Fox, J. E.
Freeman, Jas.
Freeman, John.
Fuller, F., M.A.
Galloway, F.
Genn, J. H.
Gover, E. W.

Grace, T. W.
Green, H. W.
Green, W. A, junr.
Greenop, A. J.
Greenop, W. C., junr.
Hains, J. G.
Hall, W. D.
Hardman, C. R.
Hardy, B. E.
Harris, E. B.
Harrison, J. C.
Harvey, W. T.
Haviland, Jno.
Hayes, F. G.

Caunter, W. A.

Chapman, H. P.

Cheadle, A. J.

Chesterman, W. T.

Claxton, G. T.

Heath, Thos.

Murray, G. MacG. Naylor, Fk. C. T. Newton, C. E. Nicholson, J. C. Norman, Fk. Olding, A. N.

Orchard, F. H. H. Orchard, J. A.

Taylor, W. E. Tee, J. H.

Thompson,

H. B.

Thompson, H. Knowles

Thompson, S., B.A.

Thwaites, Chas.

Tinson, C. J.

Todd, R.

Turner, W. J.

Upward, E. F., LL.B.

Walch, J. W. H.
Ward, John

Ward, W. W., B.A.

Watson, R. G.
Wenden, J. G.
White, Jas., LL.B
White, J. C.

Wickham, E. E.
Willans, C. W.

Willis, A.

Winter, H. E.

Winter, H. S.

Wise, Frank

Wooler, E. 0. Wright, H. J.

The number of candidates examined was 287; of these 211 passed, and 76 were postponed. The result of the honours examination is not yet published.

LAW STUDENTS' DEBATING SOCIETY. The annual meeting of this society was held at the Law Institution, Chancery-lane, on the 6th inst., Mr. A. M. Ellis in the chair. The treasurer's accounts were laid before the meeting, and found to be in a highly satisfactory state, and the Finance Committee presented a report contain ing sundry suggestions as to using the funds at the disposal of the society. The committee presented their annual re port, for which we regret we have not space this week. The following gentlemen were elected officers of the society for the forthcoming session :-Treasurer, Mr. C. E. Barry; secre

tary, Mr. T. B. Napier; committee, Messrs. G. H. Bower, E. G. Spiers, G. Kirk, J. K. Wright, and W. Bartlett; auditors, Mr. A. M. Ellis and Mr. J. Van Sommer; and the following gentlemen were elected to represent the society at the Social Science Association: Messrs. C. E. Eady, T. B. Napier, and G. H. Bower. Votes of thanks were passed to the retiring members of the committee, namely, Messrs. Ellis, Neale, Lloyd-Jones, and Hemsley.

UNITED LAW STUDENTS' SOCIETY.

an

A meeting of this society was held on the 7th inst., at Clement's-inn Hall, Mr. D'A. B. Collyer in the chair. The subject for debate, "That this society disapproves of the action of the majority of the House of Commons in refusing to allow Mr. Bradlaugh to take the oath_or affirmation of allegiance," was opened by Mr. Owen. Messrs. Dowson, Renner, Maxwell, and Robinson supported, and Messrs. D'A. B. Collyer (who vacated the chair pro. tem.), Rundle-Levy, George, and Kains-Jackson opposed Mr. Owen, who replied at a late hour, after which a division was taken, and the motion was carried by six votes.

BIRMINGHAM LAW STUDENTS' SOCIETY. At a meeting of this society held on Tuesday, the 15th ult., in the Law Library, Mr. Thomas Horton in the chair, a debate took place on the following moot point: "A., the owner in fee, having made a mortgage to trustees of a building society of which he was a member, and a subsequent equitable charge in favour of B., mortgages the property a third time to C. to secure £50. C. has no notice of B.'s mortgage, but gives notice of his own security to the society. A. now goes to C.'s solicitors and informs them that he is desirous of paying off the mortgage to the society, which by fines, &c., amounts to £500. The solicitor obtains the £500 from C., pays off the building society, and takes up the deeds, the usual statutory receipt being indorsed on the mortgage. Several days later A. executes a mortgage in fee upon the property to secure this £500. 1. Can C. claim priority for the £500 over B.'s security? 2. If 80, can he also claim priority for the £50 which he had previously advanced?" - Prosser v. Rice (28 Beav. 74); Peace v. Jackson (L. R. 3 Ch. 576). See also Marsh v. Lee (White and Tudor's Eq. Cases, 5th ed. vol. 1, p. 659). The speakers in the affirmative were Messrs. Hooper, Robinson, and Barber, and the negative was supported by Mr. C. J. Edwards. After a careful summing up by the chairman, the question was put to the meeting and carried in the affirmative. A vote of thanks to the chairman concluded the meeting.

At a meeting of this society held in the Birmingham Law Library, on the 29th ult., Mr. F. W. Lowe in the chair, a debate took place upon the following moot point :-"That in actions by tradesmen to recover for 'necessaries' supplied to infants, the jurisdiction of the judge, in the determination of the questions whether the articles are or are not 'necessaries,' should be enlarged "-Ryder v. Wombwell (L. R. 3 Eq. 99); Simpson on the Law of Infants, p. 84; SOLICITORS JOURNAL, vol. 9, part 1, p. 260. The speakers in the affirmative were Messrs. Rogers, Cochrane, and Barrows, and on the negative Messrs. O'Connor, Phillips, Davis, and Blore. After a careful summing up by the chairman, the question was put to the meeting and decided in the affirmative by a majority of four. A vote of thanks to the chairman concluded the meeting.

A correspondent of the Albany Law Journal writes from Yokohama :-"One of those curiosities of procedure which crop up at times in the most unheard-of way, came under my notice recently and may interest you. It is that of a divorce of husband and wife on board The Bullion, one of our American ships, in the course of her voyage from New York to Japan, pronounced by her worthy captain, arrayed for the time with the authority of the Chancellor. The record of the proceeding as entered by the captain upon the 'log' of the ship is as follows: Feb. 6, at seven p.m., lat. 40° 30' S., long. 158° 32' E., Charles Brown, cook, and Harriet Brown, stewardess, separated as man and wife, with their own free will and accord, dividing their clothes, and signed clear of each other for ever as man and wife, each taking separate TOOMS.'"

Cases of the Week.

WILL-CONSTRUCTION-GIFT TO CHILDREN-ILLEGITIMATE CHILD.-In a case of Megson v. Hindle, before the Court of Appeal on the 1st inst., the question arose whether, under a gift by a testator in favour of the children of his daughter, an illegitimate child of the daughter could take. The testator bequeathed to the illegitimate child by name a sum of £500, describing him as his grandson, and us the son of his daughter. And he devised and bequeathed certain real and personal estate to trustees, on trust for the "children" of his daughter. It was contended that, as the testator had described the illegitimate child as his grandson, and as the son of his daughter, he must be taken to have used the word "children" in the other gift with the intention of including him. JESSEL, M.R., was of opinion that the separate provision for the illegitimate child was an indication of the testator's intention that he was not to take under the gift to “children,' and that that word must be confined to legitimate childThe Court of Appeal (JAMES, COTTON, and THesiger, L.JJ.) affirmed this decision.-SOLICITORS, Johnson & Weatheralls; Milne, Riddle, & Mellor.

ren.

TRADE-MARK REGISTRATION INFRINGEMENT - EVIDENCE-USAGE OF TRADE.-In a case of Mitchell v. Henry, before the Court of Appeal on the 28th ult., an important question arose with regard to the evidence on which the court ought to act in determining whether there has been an infringement of a trade-mark. The plaintiffs had registered a trade-mark for worsted stuffs. It was advertised in the Trade-Marks' Journal of the 13th of January, 1877, and was thus described:-" A white selvage on each side of the piece, having a red and white mottled thread interwoven the full length of the selvage, between the edge of the piece and the edge of the selvage." No representation of the trade-mark was printed in the journal, as is usually the case, but the following note was added to the description :-" A specimen of this mark is now on view at the Patent Office Museum, South Kensington." The specimen deposited at the museum was an undyed specimen of the goods to which the plaintiffs applied the mark. The goods were mohair goods, and were known in the market by the name of "Brilliantine." When sold they were dyed black, but the deposited specimen was undyed. The woof of the whole piece, as undyed, was white mohair. The warp of the body of the piece was black mohair. The warp of the selvage was composed entirely of white cotton, with this exception, that between the inside and outside edges of the selvage, and at a distance from the inside edge equal to about one-third of the whole width of the selvage, there ran the "red and white mottled thread" mentioned in the description in the journal. The appearance of the undyed fabric was light grey with a white border, a red and white line running through the border. When dyed the whole fabric (including the selvage) appeared to be black, but the selvage was not of so deep a black as the rest of the piece. The red and white thread became when dyed of a very dingy hue, but was perfectly distinguishable. The defendants manufactured goods of a similar description, using, however, in their selvage a mottled thread of three colours-red, yellow, and white-instead of two, and placing this thread along the inside edge of the selvage. When undyed, their goods were of a darker grey than those of the plaintiffs, and theselvage was rather grey than white. When dyed black there was scarcely any difference between the appearance of the plaintiffs' and the defendants' goods, except in the position of the mottled thread in the selvage, though the defendants' selvage was of a somewhat lighter hue than the plaintiffs'. The plaintiffs alleged that the defendants' selvage was an imitation of theirs, and by their writ they claimed an injunction to restrain the defendants from infringing it. The plaintiffs moved for an interim injunction until the trial of the action, and Jessel, M.R. (vide ante, p. 522), refused the application, holding that there had been no infringement. He said that the plaintiffs had registered a white selvage as their trade-mark, while they were actually using a black selvage. This was fatal to their claim. Moreover, the defendants were using a black selvage, and that could not be an imitation of what the plaintiffs had registered, which was a white selvage.