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for relief.

the second point, it seems strange that advice alone should be removed if we notice that the trial of noblemen by their peers was sufficient, the donor being so much under the undue influence as not first introduced by Magna Charta. Lord Coke states that the to be sure to neglect it. Yet this appears to have been the words legale judicium are simply declaratory of existing rights opinion of the court, although the donor has hardly been restored, (Inst. II., 48), and it is not improbable that such rights referred as sound principle' requires, to the position of a free person. only to trials for treasons and felonies. At any rate the peers Perhaps we may overcome the difficulty by observing that she claimed special jurisdiction in these cases and were accustomed to must be capable of exercising her judgment. Although this was exercise it even over persons who were not peers. In order to not expressly laid down, it is clearly implied by the manner in check this a statute of 4 Ed. 3 was passed (Coke's Inst. II., which the latter part of the judgment was devoted to proving it. 50) enacting that no peers should be driven to give judgment on We are thus probably left in as satisfactory a position as possible. any others than on their peers according to the law. But in Undue influence cannot be exactly measured ; such a complete whatever way treasons and felonies came to be separated from subjection of the donor as would leave her without any power of other crimes, there is no doubt as to the existence of the distincrational judgment must be regarded as due to extreme mental tion, and, when a rule of law has been so long established, it weakness, and then the court would interfere. But provided she would be very dangerous to upset it by a literal interpretation of is of fair intelligence and able to make a decision, and provided she an ancient statute, without regard to existing usages by which has independent advice, these are enough to balance any ordinary the statute was at the time interpreted or which were suffered amount of undue influence; and if the donor chooses to yield to afterwards to grow up. We might as well go back to the Statute it rather than follow the advice, she does so freely, and there is of Frauds and begin over again the costly process of ascertaining no room for repentance afterwards. Such at least appears to be its meaning. the outcome of the case in question, but a different decision might be arrived at either if the undue influence were shewn to have been

IN A CASE upon the construction of a will, which came on before exerted with special force, or if the donor had no sufficient intelligence of the transaction to which advice could usefully be Mr. Justice Chitty this week upon an originating summons, it addressed. The mere fact of her yielding deliberately to the appeared that some of the counsel engaged had not been furnished influence and peremptorily disregarding the advice is no ground tained in the agreed statement of facts, which recital was in the third

with a copy of the will, but had to read from a recital of the will conperson. Mr. Justice CHITTY observed that, in cases on the con

struction of wills, it was very important for counsel to have a copy of LORD COLERIDGE frankly admitted in the House of Lords on the ipsissima verba of the will.

the will itself, so that they might be in a position to state to the court Monday the error he had made in allowing Lord Graves to waive his privilege of trial by his peers on the authority of Earl Ferrers' case (Foster's Crown Law, 138). Earl FERKERS was in fact tried by the Lords, and by them condemned to death. The points decided by the judges were of quite a different nature, the

"A WARNING TO MORTGAGEES." chief one being the applicability to his case of a then recent Act Tue decision in Newbould v. Smith (33 W. R. 690, 29 Ch. D. 882 ; “for better preventing the horrid crime of murder” (25 Geo. 2, c. on app., 34 W. R. 690, 33 Ch. D. 127) has occasioned much alarm 37), which regulated the management of the prisoner after among mortgagees and their advisers, and in a paper, entitled “. A sentence, and, amongst other things, limited his diet to bread and Warning to Mortgagees," read before the last annual provincial water. But when Lord COLERIDGE went on to justify his decision meeting of the Incorporated Law Society, the decision was described on general grounds of law, he met with no sympathy from the as imperilling “millions of money belonging to thousands of House, questioning, as he did, the authorities upon which the law mortgagees.” It is considered, and we shall endeavour to shew, is founded in a manner which he would hardly have allowed in an that there is no ground for this alarm. No doubt the decision is argument before himself. It may be illogical to reason from the one that will be followed, but all that it really amounts to is, that words of Magna Charta, as the courts have done, that a peer in a it is impossible for a stranger to the contract to keep alive a mortsuit by the Crown can only be tried by his peers, and then to gage by making payments—i.e., gifts—to the mortgagee, and that, limit this, as the courts have also done, to treason and felony and if the mortgagee is paid his interest by a person who states that misprision of the same; but the limitation is well established, and he is the agent for the mortgagor, the mortgagee must ascertain for all lesser crimes a peer is tried by jury. This, however, is that this statement is true, for, if it is not, no payment by the quite separate from the general question of a peer's right to waive person pretending to be agent will prejudice the mortgagor by his privilege, whatever it may be, which is settled by Lord Dacre's keeping the debt alive against him. case (Sir J. Kelyng, p. 56). This is reported by SPELMAN, from The first point in Newbould v. Smith arose on an equitable mortgage whose manuscript Chief Justice KELYNG took it.' Lord DACRE of made by C. E. Smith to Newbouldin 1866 by deposit of deeds of houses the North was indicted for treason at the assizes in Cumberland in Montague-streeet. The debt was therefore a simple contract debt. for adhering to the Scots, and was tried by his peers in 1535. In July, 1878, C. E. Smith assigned the equity of redemption to “The day before, all the judges assembled to resolve certain B. Smith and's. Smith, “subject to the mortgages and charges questions which might arise upon the said trial, so that if any thereon.” question should be asked them they might resolve una voce; and February, 1866, to September, 1878, in which month there was

No entries or evidence of payments were found from one question was whether the prisoner might waive his trial by an entry by Newbould in his books of a receipt by him from C.E. his peers and be tried by the country, and they all agreed he could Smith, which entry was objected to as not being evidence. But not, for the statute of Magna Charta is in the negative : nec super assuming, as the learned judges did, that this entry was evidence eum ibimus, nisi per legale judicium parium suorum ; this is at of a payment by C. E. Smith of interest to Newbould, still, long the King's 'suit." This decision has passed into the text-books, before this entry--namely, in 1872—the personal debt from C E and has been settled law ever since (Coke's Inst. II., 48; III, Smith by simple contract had been barred, and there only remained 30 ; Hawkins' Pleas of the Crown, 11., 584). Lord COLÉRIDGE, a debt secured on the land by deposit of deeds, and the land however, doubted it, because the words of Magna Charta just having ceased to be C. E. Smith's, no payment by him could keep quoted are perfectly general, and would include trial for all on foot the mortgage against it. crimes. But nothing is clearer than the fact that they have been restricted to treason and felony. Mr. Justice Stephen, in his ceased to be liable for the debt. Lord Justice Lindley, in his

The decision turned entirely on the fact that C. E. Smith had History of the Criminal Law, recognizes this without a doubt, but judgment, expressly mentions that the simple contract debt was says that he is unable to give the history of the limitation (1., barred, and that there was no evidence to shew that C. E. Smith 162). It would seem, however, he remarks, to be as old as 1442, made the payment as the agent of the owner of the land. for a statute of that year, after reciting that Magna Charta provides that no free man shall be punished except by judgment of 1863 by C. E. Smith to Alderson of houses in Franklin-street. 10

The second point in the case arose on a legal mortgage made in his peers, while it says nothing of ladies of great estate, enacts terest was paid up to 1866 by Newbould, who up to that time like other peers of the realm. The difficulty may perhaps be that time, but the Court of Appeal expressly decided (see 33 Ch.


D., at foot of p. 131, and the last paragraphs of the judgments was originally incident. Hence, if this reversion was destroyed, of Lindley and Lopes, L.JJ.) that there was no evidence to shew the benefit of the covenants was destroyed with it. This was in that Newbould was the agent of C. E. Smith in making these practice a serious inconvenience affecting all cases of sub-letting. payments, so that for all purposes of the Statute of Limitations Thus, out of a lease by A. to B. for one hundred years, B. grants the payments were never, in fact, made. The case was exactly an underlease of twenty years to C. If now B. surrenders that put by the Lord Chancellor in Chinnery v. Evans (11 H. L. his lease to A., the reversion to which Co's covenants are Cas. 115), that money paid by a stranger to the contract under incident is gone, and though A. is clearly an assignee from B., which it is paid would not have the characteristics and legal he has no remedy upon them. In an early case in Moor of this quality of payment.

kind A. granted his reversion in fee to D., and D. purchased B.'s It follows that the decision in Newbould v. Smith does not con- reversion upon the underlease. This was merged as above in the flict with Chinnery v. Evans, or touch the ordinary case of mort- reversion in fee, and D. was left helpless (Moor, 94). The incongagor and mortgagee when the mortgagor assigns the equity of venience was chiefly felt when the mesne lessee wished to surredemption and afterwards continues to pay interest. He render his lease in order to obtain a new one, and a remedy was remains liable to pay notwithstanding assignment, and the pay- applied to this case by 4 Geo. 2, c. 28, s. 6. This, however, was ment by any person liable keeps alive the debt and security only partial, and the Legislature failed to see that, if the covenants against the land and all other persons liable. This is distinctly were to run with the reversion at all, they must run with it decided in Chinnery v. Evans (a decision of the House of Lords, universally, whatever form it may assume; in other words, the and not to be overruled), besides other cases. But where the pay- benefit must be available for anyone who has, in fact, the next ment purports to be made through an agent, the mortgages must estate expectant upon the lease in whatever way he has obtained take care to see that the professed agent has authority to make the it. Till this point is reached the covenants are not properly payment.

incident to the reversion. It is necessary to divide the The warning to be drawn is one that we have already given whole interest in the land simply into the interest in pos(30 SOLICITORS' JOURNAL, 665)-viz., that a mortgagee who receives session and the interest in reversion, and to attach the his interest, according to the common practice, through a solicitor, covenants always to such reversion. Of course this is the simplest must take care that the latter is the agent of the person who case ; there may be several successive interests in reversion one beought to pay the interest. It can happen but rarely that a hind the other; we are only concerned with the one immediately solicitor continues to make payments of interest after his client expectant on the estate or interest of the covenantee in question. has parted with the equity of redemption, and therefore the risk Such a general change was effected by 8 & 9 Vict. c. 106, s. 9, of a mortgagee's losing his money under the doctrine of Newbould but in an artificiel and perplexing manner. It was left for the V. Smith is not very great.

Conveyancing Act, 1881, to go to the root of the matter and make the covenant incident to the reversionary estate simply, however it has arisen. Thus section 10 (1) enacts, in effect, that

the benefit of a covenant in a lease, having reference to the COVENANTS RUNNING WITH THE LAND.

subject-matter thereof, and which is binding upon the lessee,

shall be annexed to the reversionary estate in the land imme(1.) COVENANTS IN LEASES (continued).

diately expectant on the term granted by the lease. An important (6.) Benefit of covenants by the lessee. It is curious that, while inroad is made, too, upon the old doctrine of privity of estate as the common law allowed the assign of the lessee to be substituted between lessor and lessee. According to this the covenant must for him in bearing the burden of the covenant, it was otherwise be made between two parties, each having a legal interest in the when the benefit was sought to be enjoyed by the assign of the land—the owner of the legal reversion, and the person taking am lessor. It is doubtful, at least, whether such a transfer was per- actual lease. This was a stumbling-block in the way of mortmitted, and, if it was, it was probably only allowed in the case of gagors, who, in making leases with the concurrence of the mortcovenants connected with payment of rent or other services of a gagee, found it impossible to gain the benefit of the covenants for similar nature, such as doing suit to the mill of the lessor (Divyan their assigns. Such was the case in Webb v. Russell (1789, 3 v: Arthur, 1823, 1 B. & C. 410). As, however, the necessity T. R. 393). There a mortgagor and mortgagee leased to A., who of the transfer is obvious, an opening occurred for the statute covenanted for the rent and to repair with the mortgagor and his law, and by this the matter is regulated. The question first assigns. The mortgagor assigned his equity of redemption, and it became pressing at the time of the dissolution of the monasteries. was held that the assign could not sue on the covenants because The reversions upon leases granted by the monks fell into the they were collateral to his interest. Lord Kenyon, C.J., said :King's hands, and were by him regranted, but the regrant did not " It is not sufficient that a covenant is concerning the land, but in carry with it the benefit of the covenants entered into by the order to make it run with the land there must be a privity of lessees. To remedy this the statute 32 Hen. 8, c. 34, was passed. estate between the covenanting parties.So, too, in Pargeter v. By this provision was made for the case just mentioned, as well as Harris (1845, 7 Q. B. 708), where the lease disclosed that the for that of any other assignment of a reversion by the King. But lessor had only an equitable title. the important point is that the same favour was extended to Some deviation from the strictness of this doctrine was, indeed, grantees of reversions generally, whether the grant was made by allowed in Wakefield v. Brown (1846, 9 Q. B. 209). There the the King or any other person. "In such case the grantee stands in lessee covenanted with three persons, of whom only one was the the shoes of the original lessor, and has the same remedy against legal owner. One having died, the other two—the legal owner the lessees and their assigns that he had. For the time, doubtless, and another-were allowed to sue the lessee's assign on the this was found to be a very beneficial change, but it was far from covenant to repair. Lord Denman, C.J., remarked that there was complete. In order to profit by it the new reversioner must have privity of estate between the defendant and one of the plaintiffs been the assign of the old one, and he must also hold the very at any rate. Accordingly, in Magnay v. Edwards (1853, 13 C. B. same reversion.

479), this decision was followed, though with reluctance, and a The first difficulty arose in regard to settlements, where it is mortgagor and mortgagee of one half of land on lease, and the often hard to see how the successive owners of the reversion are legal owner of the other half, were allowed to sue the lessee's assigns from each other. But the courts had subtleties to assign on a covenant to pay the rent. But the question is now remedy this. Thus, where lands were devised to A. for life, set at rest, as regards leases made since 1881, by the section of remainder to B. for life, with power to A. to make leases, and A. the Conveyancing Act just quoted. The person entitled to the made a lease in favour of c. and then died, the question arose income that is, the beneficial owner—is to be at liberty to sue whether B. could sue upon the covenants in the lease. It was held upon the covenants as well as the legal reversioner. Thus, upon the authority of Lord Coke in Whitlock's case (8 Rep. 70) that although the clear rule which required privity of estate is gone, the lease was really granted by the author of the power, and as B. the more intelligible principle has been established that the person took directly under him, he was an assign within the statute : Isher: who really requires the benefit of the covenants is entitled to sue wood v. Oláknow (1815, 3 M. & S. 382). But the other difficulty upon them. was more formidable. The covenant only ran with the reversion It is to be noticed, too, that the words in italics in the 80 long as it continued to be the same reversion as that to which it (quotation of the section shew that collateral covenants are ex

TT cluded, a matter which the statute of Hen. 8 had left for judicial construction,

CORRESPONDENCE. (c.) Burden of covenants by the lessor.-It is probable that the

THE REMUNERATION ORDER. assignee of the reversion had to take it with the burden of any covenants incident thereto. Indeed, had the law been otherwise,

[To the Editor of the Solicitors' Journal.] it would have been easy for a lessor to have got rid of covenants Sir, — Referring to the cases of Re Wilson and Ře Sykes and your which proved to be too onerous. But, however that may be, the comments thereon, I shall be much obliged if you, or your readers, statutes that have decided when the benefit of the lessee's covenants will kindly enlighten me as to my position in the following circum

stances :shall run with the reversion have done the same for the burden of

In an administration action in the Palatine Court an order was the lessor's. Thus the statute 32 Hen. 8, c. 34, s. 2, gives the made (inter alia) for the sale of the testator's real and leasehold lessee and his assigns the same remedy against grantees of the re-estate. A proposal was carried in by the trustees for the sale of the version as he or they would have had against the original lessor. testator's estate, situate at Penrith, and the registrar, in pursuance In the same way the Conveyancing Act, 1881, deals with the thereof, ordered the estates to be put up for sale by auction at an subject, though in terms suited to the extended powers of limited hotel there, and, in the meantime, directed that the conditions of sale owners. Thus a limited owner can, in strictness, only enter into (which were long and complicated) should be settled by counsel. contracts which will bind his own limited reversion, but by various as solicitor for the trustees, I attended the sale at Penrith, but, unmodern statutes he is able to do more than this and bind the re- of all the lots to one purchaser for £3,600.

fortunately, none of the lots sold. I have since negotiated a sale version of those who succeed him. Hence it is enacted (Con

To what remuneration am I entitled (the trustees paying the veyancing Act, 1881, s. 11 (1)) that the burden of a lessor's auctioneer's charges), in respect of the abortive sale by auction ? covenant, made with reference to the subject matter of the lease, Clearly I am not entitled to charge the scale fee for conducting the shall be annexed to the reversionary estate immediately expectant sale by auction. Can I, then, make out my charges under schedule IL, on the term granted by the lease, so far, that is, as the lessor has or am I to receive nothing for the preparation of the conditions of power to bind such reversionary estate. And to make the matter sale and attendance at the sale, not having elected to charge under

JUVENIS. clearer, it is provided that the covenant may be enforced against schedule II. before undertaking the business ?

Manchester. any person for the time being entitled to the reversionary estate. Thus the same person who takes the benefit of the lessee's coven- under clause 2 (c) of the order.-ED. S. J.]

[Clearly under schedule II., for business not, in fact, completed, ants has to bear the burden of the original lessor's.

(d.) Benefit of covenants by the lessor.— It appears that the benefit of the lessor's covenants runs with the land in favour of the PRODUCTION OF RECEIPT FOR PREMIUM ON INSURANCE. assigns of the lessee. This may be gathered from the fourth and

[To the Editor of the Solicitors' Journal.] sixth resolutions in Spencer's case. The fourth resolution speaks Sir,- We should like some of your readers to give us their opinion of the covenant for title implied in the words concessi or demisi and on the following point :-A client of ours is the owner of freehold states that as the assign of the lessee takes the fruits of the land ground rents; there is a covenant in the ground lease on the part in return for the labour and money he expends on it, so, if evicted, of the lessee to insure and to produce the policy of insurance to the he ought to have the same remedy against the lessor, as the collecting the rents of the property; in our notices there is always

We have for some time been original lessee ; and that the lessor has no reason to complain since a foot-note requesting the lessee to produce the last receipt for sixth resolution speaks of a covenant to repair being binding upon performed. This the lessee has for many years neglected to produce, assigns of the lessee, and puts it on the ground that the assigns and he has consequently put us to the trouble of writing him reveral take the benefit of such a covenant when made by the lessor and 80 letters requesting him to do so. In consequence of the lessee's should bear the burden of it when made by the lessee. But the persistent inattention to our letters, we at last informed him that we matter is made clear by the section of the Conveyancing Act just should be compelled to take stronger measures unless he produced quoted. It is there enacted that the benefit of a covenant by the the receipt at once; this having no effect, we prepared and served Lessor, having reference to the subject-matter of the lease, 'shall of covenant he had committed, and requiring him to remedy the belong to the person in whom the term is from time to time vested same and to make compensation for the breach. The notice had the by conveyance, devolution in law, or otherwise.

effect of making the lessee produce the policy and last receipt, but It will thus be seen that the Conveyancing Act now governs he declined to make any compensation. We thereupon prepared three out of the above four points—viz., both the burden and the a statement of compensation" claimed by our client, which was benefit of a lessor's covenants and the benefit of a lessee's coven- made up of the costs of the notice and of the letters we had ants. But as to the burden of a lessee's covenant, that is still written and sent it to him, but without producing any effect beyond governed by the common law. While many the recommenda- several letters from his solicitors, and ultimately one stating that they tions of the Real Property Commissioners have been adopted, the to us is to commence an action in the High Court for ejectment, as

accept service of any process. Our only remedy now it seems one which proposed to simplify these covenants has not found the property is too large for the county court to have jurisdiction, favour, and the distinctions of Spencer's case still survive to but we are unwilling that our client should commence expensi ve startle lessees and promote litigation. This is the more curious litigation for so small an amount, and yet, at the same time, we as the progress of the law on the other points has been steady in not feel at all disposed to sit down calmly and take no more notice the right direction, and the Conveyancing Act seems to have placed of the matter. It seems monstrous that the lessee should put us them on a sound basis. It has been recognized that the covenants and our client to this expense and trouble, and we are likely to have affecting the reversion, whether by way of benefit or of burden, continual difficulty in making him keep his covenant in future, and are attached, not to any particular person or to any particular course by which we could bring the lessee to book without our client estate, but to the reversion as such. They are, properly speaking, incurring the expense of instituting an action for ejectment; real covenants. They may be entered into by any person who has power to bind the reversion, and they may be enforced by or

January 27. enforced against any person who holds such reversion, and that whether he be entitled to it at law 'or in equity. The first of these The general meeting of the Irish Solicitors' Benevolent Association was provisions prevents a covenant from being in gross because not held on Monday. The report aunounced an increase of annual income entered into with a person having a legal estate in the land, and fire members had been obtained, and that the capital consisted of this mode the second puts the beneficial owner in the position he ought to railway debenture stock. occupy, while not exempting the legal owner from the duties, or depriving him of the benefits ,of his legal estate. In the suc- English Benevolent Association stating that only one-fifth

course of his remarks, said that : "They found the chairman of the ceeding articles we shall treat of covenants other than those wires tiene eliciosociations peuvent a better record than that, forme parede contained in leases.

that in Ulster, out of 314 practising solicitors, 72, or nearly one-fourth; Tuesday's Gazette contains an Order in Council, entitled “The Rabies this passociations licuerol the intentanster there were 52, or nearly mome:

590 practising solicitors there were 281, or nearly a-halt," belonging to Order of 1987," laying down fresh regulations in tegard to animals found ith, and in Connaught, the poorest province of all, there were 15 mem. to be affected with rabies-more especially dogs.

bers out of 68 solicitors, that is nearly one-fourth.”

P. & V.

of the

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DAWES v. FOUNTAINE-C. A. No. 1, 1st February, The following is a list of some of the more important Bills affecting the Power To Refer MATTERS TO A JUDICIAL REFERBR—JUDICATURE Act, 1873 profession which will be brought to the notice of Parliament during the

(36 & 37 Vict. c. 66), s. 57-R. 8. O., 1883, APPENDIX K., FORM 33. present session :

This was an appeal by the plaintiff from an order of Grove, J., in the A Bill for the repeal of the solicitor's annual certificate duty.—Mr. action to the following effect :-"That all questions in this action be O'HBA.

tried by an official referee, who shall have all the powers of certifying A Bill to provide for the appointment of a public trustee.-Mr. HOWARD and amending of a judge of the High Court of Justice, and shall direct VINCENT.

judgment to be entered and otherwise deal with the whole action pursuant A Bill to amend the law in matters relating to real estate.—Mr. to ord. 36, r. 50.” It was admitted that the order had been made under STAVELEY HILL.

section 57 of the Judicature Act, 1873, and that the plaintiff had not A Bill to amend the Settled Land Acts.-Mr. ELTON.

consented to the making of the order. Several questions of law were A Bill to regulate the imposition of mining royalties in the United raised by the defence and rejoinder. The plaintiff now contended that Kingdom.-Mr. CoNYBEARE.

the order was bad, since it referred questions of law to the decision of the A Bill to facilitate the creation of allotments of land.-Mr. JESSE official referee. COLLINGS.

The Court (Lord Esher, M.R., and Fry, L.J.) allowed the appeal. Another Bill by Mr. Collings to facilitate the creation of small holdings The Master of the Rolls said that the case no doubt involved complicated in land.

questions of accounts which could be better tried before an official A Bill to enable certain · leaseholders to acquire the freehold of their referee than before a jury, but the judge had no power to refer the cause property by paying compensation or (at the option of the freeholder) a

to him for trial. The questions of fact alone should have been referred. perpetual rent.--Mr. Lawson.

The judge had exceeded his jurisdiction in giving the official referee, by A Bill for the same purpose by Colonel HUGHES.

this order, power to hear and determine questions of law. Fry, L.J., in A Bill to facilitate, on equitable conditions, the conversion of long concurring, said that, in his opinion, the error arose from the form in leasehold tenures of houses in towns into freehold.—Sir JOSEPH which the order of reference had been drawn up. A proper form for such MCKENNA.

an order was provided by R. S. C., Appendix K. (No. 33). He regretted A Bill to amend the Commons Inclosure Acts.-Mr. JAMES.

to say that the forms given by the rules were habitually disregarded, to A Bill to alter the law relating to the descent of land by the custom of

the serious loss of litigants and to the great inconvenience of the Court primogeniture.-Mr. COURTNEY KENNY.

of Appeal. The form given provided either for all the questions in the A Bill to amend the law relating to accumulations.—Mr. Cozens. action (when they were all questions of fact) or for the questions of fact HARDY.

in the action being referred, and the proper course in the present case A Bill to amend the system of private Bill legislation.—Mr. CRAIG would be for an order to be drawn up in accordance with that form, SELLAR.

referring the questions of fact for the report of the official refereee. That A Bill to consolidate, simplify, and amend the law relating to Parlia

course was the one contemplated both by the section and the form where mentary elections and for other purposes.- Mr. HOWELL.

there were mixed questions of law and fact. --Counsel, Blake Odgers ; A Bill to amend the Parliamentary Elections (Corrupt Practices) Acts. Murphy, Q.C., and Laing. SOLICITORS, Sharpe, Parkers, g Co.; Field, -Mr. De LISLE.

Roscoe, f Co. A Bill to exempt (to a limited amount) personal property of householders from seizure and sale under legal process.—Mr. EDMUND ROBERT•

Re CROSBY, MUNNS v. BURN-C. A. No. 2, 2nd February.

R. S. C., 1883, LVIII., 3, 15-LEAVE TO APPEAL_AFTER EXPIRATION OF A Bill to amend the Employers' Liability Act, 1880.—Mr. Burt.

TIME-ERROR AS TO LENGTH OF NOTICE-FINAL ORDER. Another Bill for the same purpose by Mr. W. McDONALD. A Bill to grant more extensive powers to county court judges in cases of action was brought for the administration of an estate on the 5th of

This was an original motion for leave to amend a notice of appeal. The bankruptcy.-Mr. MULHOLLAND.

A Bill to amend the law relating to agricultural holdings in England. November, 1886. Bacon, V.C., made an order admitting a claim against -Mr. CHANNING.

the estate. On the 23rd of November a notice of appeal from this order HUBBARD. A Bill to amend the administration of the law of income tax.-Mr. was served, which stated that the Court of Appeal would be moved on

the 27th of November to reverse the order. On the 17th of Jannary, 1887 (the appeal not having come on for hearing), the solicitors of the respondent wrote to the solicitors of the appellant, stating that they had been advised by counsel that the notice of motion was bad, because it

ought to have been a fourteen days' notice, and adding, “We presume CASES OF THE WEEK.

you will not prosecute the appeal.' On the 29th of January the appel.

lant served notice of an original motion in the Court of Appeal for leave HOCKEY . EVANS AND ANOTHER.-C. A. No. 1, 27th January. to amend (if necessary, his notice of appeal by substituting the date PRACTICE-INTERPLEADER SUMMONS-CLAIMANTS TO

7th December" for the date “ 27th November" as the date on or


after which the court would be moved. Rule 3 of order 58 provides that CLAIM”-R. S. O., 1883, LVII. 5.

“potice of appeal from any judgment, whether final or interlocutory,

or from a final order, shall be a fourteen days' notice; notice of appeal This was an action against the defendants, as Sheriff of Middlesex, to from any interlocutory order shall be a four days' notice.". recover the sum of £23 78. 8d. The sheriff seized in execution certain THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) granted an goods which were claimed by the present plaintiff under a bill of sale. extension of the time for appealing. COTTON, L.J., was of opinion that The sheriff took out an interpleader summons under ord 57, r. 5, “calling the order appealed from was a final order which required a fourteen days' on the claimants to appear and state the nature and particulars of their notice of appeal. In his lordship’s opinion the potice could not be claims,” and the claimant (the present plaintiff) made an affidavit in amended as asked when the day had passed for which it ought to have which he stated that the goods belonged to him under the bill of sale, and been given. It would have been a different matter if the application to that there was due and owing to him, under the said bill of sale, the sum amend had been made before that day had passed. But his lordship of £750 and interest thereon. The master thereupon made an order that thought that leave ought to be given to the appellant to give a fresh the sheriff should sell the goods, and out of the procecds of the sale notice of appeal, notwithstanding the expiration of the twenty-one days (after deducting the expenses and rent), should pay to the claimant the allowed for appealing. The court had, no doubt, been very strict as to amount of his claim, and the balance to the execution creditor. The giving leave to appeal after the expiration of the time. But in the present sheriff sold the goods, and the claimant sent him in a further claim for case there was a notice on which the court might have acted if the re$23.78. 8d. for costs, charges, and expenses incurred by the claimant in spondent had appeared to it. The appellant must give his fresh notice at relation to the bill of sale, and which was secured by the bill of sale. once, and he must pay all the costs incurred by the respondent by reason The sheriff refused to pay him this sum in addition to the $750 and of the informal notice. LINDLEY and Lopes, L.JJ., concurred. --MOUNSEL, interest, on the ground that it was not claimed in the affidavit, and that A. Young ; Ince, Q.C., and St. John Clerke. SOLICITORS, John Holmes g the master's order did not warrant him in paying it. The claimant Son; Leathley & Phipson. thereupon brought this action to recover that sam, and Lord Esher, M.R., who tried the case without a jury, held, after an inquiry as to the practice

BRAY v. GARDNER-C. A. No. 2, 2nd February. in chambers, that the claim was 'not limited by the affidavit, and gave Patent-AMENDMENT OF SPECIFICATION PENDING ACTION FOR INFRINGEjudgment for the plaintiff. Tue COURT OF APPEAL reversed this judgment. SIR JAMES HANNEN

MENT-LEAVE OF COURT TO APPLY TO PATENT OFFICE_TERMS TO BE said that such a practice in chambers was plainly inconsistent with the

IMPOSED-PATENTS, DESIGNS, AND TRADE-MARKS Act, 1883, s. 19. rules. Ord. 57, 5. 5, did not mean that there should be a vague statement The question in this case was, what terms ought to be imposed on a plain. of the" claim,” but one giving the necessary information upon which the tift who has brought an action for the infringement of a patent, on giving master might proceed. The information contained in the affidavit was him liberty, pending the action, to apply for leave to amend' by way of the conly information before the master as to the claim. He thereupon dieclaimer the specification of his patent Section 19 of the Patents Act

of 1883 provides that " in an action for infringement of a patent and in a amount of his "claim.” That meant the claim put forward before the proceeding for revocation of a patent the court or a judge may at any accordingly not bound to pay the claimant the €235778. d. for costs and otherwise as the court or a judge may impose, be at liberty to apply at expenses, and so the action failed. Bowen and FRY; L.JJ., concurred. the Patent Office for leave to amend his specification by way of dis

COUNSEL, Winch, Cock, Q.C., and Xose - Innes." A SOLICITORS, Collinsclaimer, and may direct that in the meantime the trial or hearing of the Wilkinson ; w. W. Burchell.

action shall be postponed.” In the present case Stirling, J., had given



the plaintiff liberty to apply for leave to amend his specification by way the original petition amended in pursuance of the leave girea by North, of disclaimer, provided that the specification as amended should not be J., by entitling it in lunacy. receivable in evidence in the action, and that the costs of, and occasioned THE COURT (Cotton, L.J.) took the same view of the case as North, by, the application should be the defendant's costs in any event. The J., had done, holding that a person whose state of mind was such as the costs of the motion to be costs in the action. On behalf of the plaintiff evidence in the present case shewed it to be was a “person of unsound it was urged that these terms were too onerous, and that he was placed in mind” within section 2 of the Trustee Act, and that the jurisdiction to a worse position than if he had discontinued his action, and had com make a vesting order was in the Court of Lunacy. Corrux, L.J., said menced a new one after amending his specification.

that he had consulted with Lindley, L.J., who said that, upon conThe Court of APPEAL (COTTON, Lindley, and Lopes, L.JJ.) affirmed sideration, he thought he had mide to refined a distinctiin ia R the decision. COTTON, L.J., said that the terms to be imposed were in the Phelps' Settlement Trusts (31 Ch. D. 351).-Counsel, A. Bellall; Micklem. discretion of the judge, and no special ground had been shewn for not SOLICITORS, F. J. Mann; J. L. G. Powell. imposing these terms. Section 19 apparently assumed that there might be cases in which it would be right that the amended specification should

Re HUME-C. A. No. 2, 31st January. be received in evidence in the action, and his lordship did not intend to decide that in no case ought it to be receivable, or that the leave must in LUNACY — EVIDENCE - USING Evidence Filed on Oxe Petition UPJN

ANOTHER. every case be given only on these terms. Each case must depend on its own circumstances. But, as a general rule, and under ordinary circumstances, There were two petitions in this luntcy relating to two different trust these were the proper terms to impose. The plaintiff who made such an estates, of both of which the lunatic was a trustee. Leave was asked to application admitted that he had not complied with one of the conditions use an affidavit which had been filed on one of the petitions upon the on which the patent was granted, and that, if the action went on, the other. defendant might be able to raise the defence that there was no patent on The Court (COTTON, LINDLEY, and Lopes, L.JJ.) said that the proper which the action could be maintained. It would be wrong to allow the course was to make a short affidavit on the second petition verifying the plaintiff to get rid of that disadvantage as against the defendant. It affidavit filed on the first. — Counsel, Farwell. SOLICITORS, Bird $ might be asked, What benefit would the plaintiff gain by amending his Eldri.lge. specification if he could not use the amended specification in the action ? But there might well be other persons than the defendant as against whom it might be most material for the plaintiff to obtain an amendment

WALKER v. CLARKE.-Kay, J., 21st January. of his specification, so that he might be able to sue them. It was very PATENT--ACTION TO Restrain Threats—Right To InterlocUTORY Ix. desirable to make patentees more careful in framing their specifications, JUNCTION-QUESTION OF INFRINGEMENT or DefexDANT'S PATENT BY which were often very carelessly drawn. LINDLEY, L.J., said that the PLAINTIFF-PATENTS, &c., Act, 1883 (46 & 47 Vict. c. 57) s. 32. appeal had been argued on general principles, and the court did not know what the special circumstances of the case were.

This case raised the question whether in an action brought to restrain a

But he inferred from what the plaintiff's counsel had said that, if the proposed amendment patentee from threatening legal proceedings for infringement the plaintiff were not made, the action must fail. That would not always be the case

can obtain an interlocutory injunction without satisfying the court that when a plaintiff desired to amend his specification by a disclaimer. The patent. Section 32 of the Patents, Desigas, and Trade-Marks Act, 1883,

his manufacture does not constitute an infringement of the defendant's court was not laying down the rule that these terms were to be invariably enacts that an injunction may be obtained against the continuance of imposed in every application under section 19. taken that injustice was not done to the defendant, though the mode of such threats." if the alleged manufacturer to which the threats related protecting him might vary in different cases.

was not, in fact, an infringement of the legal rights of the person making fordship could not say that the terms which had been imposed were too manufacturer of candle-lamps called “Fairy” lamps, and early in 1886

In the present case his such threats." 'The defendant, under a patent taken out in 1885, was a hard. LOPES, LJ., concurred.—Counsel, Moulton, Q.O., and 4. A. Terrell ; Aston, Q.C., and Carpmael. Solicitors, T. & H. R. Gill; Wilson, of obtaining a licence to use the patent, in the course of which he in:

the plaintiff entered into negotiation with the defendant for the purpose Bristows, Carpmacl.

formed the defendant that he could, under an old and expired patent, Re THE NEW CITY CONSTITUTIONAL CLUB-C. A. No. 2,

make lamps very similar to the defendant's without infringing his 29th January.

patent, and that, if they failed to come to terms, he should do so. The COMPANY_WINDING UP-LANDLORD-DISTRESS For Rent-LEAVE OF

Iicence was not obtained, and the plaintiff, who traced under the name of

John Walsh Walsh, subsequently manufactured and sold lamps called Court-COMPANIES Act, 1862, s. 163.

“Glow-worm" lamps, which were very similar to the “Fairy" lamps. This was an appeal from the refusal by Kay, J., of an application made On the 17th of November, 1886, the defendant wrote to Mr. Stephenson, by a landlord for liberty to distrain for rent on goods in premises occu.

a customer of the plaintiff, this letter :-“Dear Sir.-Caution.- Walsh's pied by the company notwithstanding an order for the winding up of Glow-worm lamps are an infringement of my patent, and agents are now the company: Section 163 of the Companies Act, 1862, provides that going though the country to get all the evidence they can to take legal when there is a winding up by the court or under supervision any proceedings against the vendors–that being the course decided on by my attachment, sequestration, distress, or execution put in force against the solicitors.” Upon this letter being brought to the notice of the plaintiff, estate or effects of the company, after the commencement of the winding he brought this action, under section 32 of the above Act, to restrain the up shall be void to all intents.” The applicant had granted a lease of defendant from threatening legal proceedings in respect of the Clow.worm certain premises at a rent of £4,000 a year to a club, called the City Con- lamps, and he now moved for an interlocutory injunction under section 32 stitutional Club, and the lease contained a covenant not to assign with

of the Act. On behalf of the defendant it was contended, in opposition to out the consent of the landlord. That club was wound up, and its

the motion, that, assuming the letter to Stephenson amounted to a undertaking and effects, including the lease of the premises, was taken

threat of legal proceedings within section 32, still the plaintiff could not over by the company. The landlord, though he did not formally consent obtain the injunction unless he shewed that his lamps were not an into an assignment of the lease, was party to an arrangement by which he fringement of the defendant's patent. That was the sole question to be recognized the purchase which had taken place, and the new company considered, for both before and since the Act of 1883 the validity of the accruing due under the lease in manner therein provided." It has been injunction; the only change made by the Act was that now the question held that section 163 does not apply to cases of distress by a mere

of the bona fides of the person making the threats was immaterial, but stranger to the company, who has no right to prove for rent in the wind the rule which existed before the Act was passed remained-viz., that in; up, and in Ex parte Clemence (23 Ch. D. 154) Fry, J., held that this the plaintiff was bound to shew that he had not infringed the defend; rule applied in a case in which the landlord had taken from the company ant's patent. In support of this contention the cases of Wren v. Field who occupied his premises a promissory note for the rent, and who, there. (4 Q. B. 730), Halsey v. Brotherhood (30 W. R 386, 19 Ch. D. 386), fore, had a right of proof in the winding up on that note, though he had and Kurtz v. Spence (35 W. R. 26, 33 Ch. D. 579) were referred to: no right to prove for the rent as such. In the present case the goods in Further, that it was apparent here that the plaintiff's lamps were an inte question were pledged to debenture-holders of the company for more fringement of the defendant's patent which he was entitled to protect. than their value. Kay, J., considered that the case was governed by the It was open to the plaintiff either to establish that his lamps were no inparte Clemence, though he expressed his dissent from that decision. fringement, or to take proceeding to get the defendant's patent revoked.

The Court of APPEAL (Cotton, LINDLEY, and LOPES, L.JJ.) affirmed KAY, J., in the course of his judgment, said that he declined to accede the decision, on the ground that the goods in question could not at the time the notice of motion was given by the landlord be considered as part interlocutory injunction in a case like this, unless it were proved at the of the estate or effects of the company, and that they were not protected time the injunction was applied for that there had been actually man in from distress by section 163. COTTON, L.J., declined to give any opinien fringement. In his view in an action like this, where at the tridered as to the correctness of the decision in Ex parte Clemence. Li snier, in..., injunction and damages might be granted, the question to be considered thought that it was somewhat difficult to reconcile e parte-Clemence with upon an interlocutory motion was, not whether there had or had the some of the other cases, but he would not express' any opinion on Wihle been an infringement, but whether, looking at the circumstances, the Pearson, Q.C., Buckley, Q.o., and Hatfield"Green. Solicitozson Pealed acts complained of ought to be restrained until the trial. If the rule Chamberlain ; May, Sykes, & Batten ; Davidson f Morriss. Re MARTIN ; LAND, BUILDING, INVESTMENT, AND COTTAGE and rang injunction then granted would be rendered useless and futilet

business might be completely destroyed before the trial of the action, IMPROVEMENT CO. v. MARTIN-C. A. No. 2, 24th January. APPOINTMENT OF New_TRUSTEE-VESTING ORDER—" Person of UNSOUND

one to be decided on interlocutory motion, unless upon evidence which MIND”—JURISDICTION-TRUSTEE Act, 1850, s. 2.

was practically overwhelming, and there was no such evidence in the This case (noted ante, p. 217) was brought before the Court of Lunacy on

present case. The point on which he decided the case was that on which the court was always bound to decide applications of this sort—viz.

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