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as alender of ordinary prudence would have ventured to act upon.

It disclosed the fact that there were only ten acres of land, and that a not inconsiderable portion of the subjects consisted of buildings and fixed machinery used for brickmaking. But it did not state either the aggregate value of the subjects or the separate values of the land, the buildings, and the machinery. It did, no doubt, contain the statement that the valuer thought the lund, premises, and freehold fixtures would afford good security for £3,500; but trustees who chose to act upon such an opinion must take the risk of the security proving insnfiicient."

The result of the decision is that to the three rules laid down by Mr. Justice Kay in Fry v. Tapson—viz., (1) that the valuer employed by trustees must be a surveyor having local knowledge ; (2) that he must be selected by the trustees and not by their solicitor; and (3) that he must not be recommended or employed by the other side in the transaction—there must be added a foiirth—viz., (4) that the _valuer must not content himself with stating that the property is a good security for the sum proposed to be advanced, lut must state all details bearing on its value as a security; and 1he trustees must exercise such an independent judgment on the reportas an ordinarily prudent man of business would exercise when lending his own money.

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absolutely limiting sense, and it may, therefore, be asked whether his interpretation is not on that very account open to cavil. It appears to us that an adequate answer may be given to such an objection. In the case _of_an action where the amount claimed is alone beyond thejurisdiction, some of the relief sought may originally be granted in the county court ; in the case of an action where the claim is in its nature beyond the jurisdiction, no part of the relief sought can originally be granted in the county court: the former case does, the latter does not, fall within the wording “any relief ” in section 67. In Slooke v. .’l'a_i/Zor (29 W. R. 49, 5 Q. B, D. 577) it was contended that section 67 had the effect of extending section 5 of the County Court Act, 1867, so as to deprive a plaintiff of costs in an action of contract in which the amount recovered was between £20 and £50. In refusing to accept this contention, Cockburn, C.J., made the following comments on section 67 :—" The purpose and effect of the enactment . . . had reference to the nature and character of the relief sought. . . . The intention and eifect of the enactment was to establish a uniform rule as to all cases in which a concurrent jurisdiction was exercised by the county court " (29 W. R. 54, 5 Q. B. D. 578). This last expression is significant ; in Sampson v. Maclcay (17 W. R. 883, 4 Q. B. 643) it had been held, before the Judicature Acts came into force, that section 5 of the County Court Act, 1867, deprived a plaintifi of costs who recovered less than £10 in an action of slander; it would seem as if the late Chief Justice had such a case in contemplation on the above occasion.

From the foregoing inquiry, we submit that the true interpretation of section 67 of the Judicature Act, 1873, is to limit, not—as decided in Stokes v. S.’oI:es—to amplify, the operation of the provisions of the County Court Act, 1867. We submit that, prior to the Judicature Acts, the application of those provisions to cases in which the county court had no original jurisdiction involved a number of gross anomalies, of which it was the object of section 67 to get rid. Finally, we submit that any reason the Legislature may have had for excluding actions for malicious prosecution, libel, slander, breach of promise of marriage, or seduction in section 58 of the County Court Act, 1846, from the original cognizance of a county court, obtains with equal force for excluding such actions from being made the subject of transfer to such court ; and on all these grounds we submit that the decisions in Stokes v. Slokes are unsound in law.



THIS Bill is to be withdrawn, but the subject will, no doubt, _be revived next year. The following remarks on the latest edition (as brought from the House of Lords) may not be superfluous. I have endeavoured to restrict them to points not dealt with in the many previous able criticisms which have appeared.

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The forin of compulsion proposed in clause 2 does not seem to be happily chosen. An unregistered conveyance is_to operate only as is contract, and is to confer no right “ except the right of enforcing the contract.” The question arises, What sort of a contract is it to operate as ? Is it intended that it shall operate as a contract_to convey according to its tenor? If so, why is it not so declaredr _Su_ch a clause must have led to considerable litigation to ascertain its meaning. The addition “and the costs of such a. conveyance shall not be allowed on taxation ” seems to shew that the draftsman of the Bill had no confidence in the previous part of the clause, as he condescends now to the triviality of the bill of costs. If a solicitor honestly advise a client to convey without registering, B-lid the fldV_l°9 be good, why is he not to be paid for his work? An Act of Parliament cannot force people to be dishonest, and, doubtless, an honest client would pay notwithstanding.


The Bill adopts the principle of a_guarantecd title with compensation to persons injured by its operatioii._ It is certain that something of this kind must be done if dormant rights are not to be confiscated wholesale or enormous expense to be thrown on the registermg landowner. Should compensation be paid to him whose rig ts have been ignored or overridden, or to him whose title has been guaranteed ? The Bill, following the conclusions of the Ban Committee, 16811! 111 favour of restoring the land or right to the origmal owner and paying the money to the guarantee proprietm‘; but 5 _d1t_fi§\11ty'l*]"5e5 where land has been built upon and _the value multiplie , p_e!' upfl. ten or twenty fold. The true principle seems to be to distinguish

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between urban and rural property, and, in the latter case, to restore the land. The argument for this course is strengthened by the consideration that it is to the latter, for the most part, that the owner attaches a fancy value from its amenities or ancestral or historical associations, whereas urban sites are principally valued for their

ecuniary eligibility. Where property is of a mixed character a discretion should be given to the tribunal.

Compensation is to be given in cases of fraud or forgery, or the error of the Land Transfer Board. Such an error could not arise, it is apprehended, if the board conforms to the Act and the rules prescribed. A loss might, however, occur from the working of the Act itself, especially having regard to Part Ill. relating to confirmations of title, simply from a dormant claim having been overlooked. Such a loss should be a subject of compensation.


\Vhether a premium of insurance should be charged to cover olaims for compensation has not, I think, been discussed in connection with the present heavy ad valorem duties on conveyances, mortgages, &c. If it be intended to free registered dealings from these imposts, the proposed premiums of insurance would be small in comparison, but, if otherwise, those duties should be deemed to cover insurance.


These provisions, fortunately optional, were singularly ill-conceived. The proprietor desiring to have a possessory title confirmed as absolute, was to advertise once a year in the “prescribed ” newspapers for no less than five "years, and to serve notice on all incumbrancers, and every person who had lodged a caution, or whom the board might direct; and this twice over, first immediately after his application, and again after the expiration of the five years, and any of these persons was to be enabled to conie forward and litigate. What an opportunity for bogus claimants and blackmailers l No landowner with a sound title would dream of availing himself of this part of the Act, but one with a shaky title might do so as he might thereby clear it. These proposals combine a maximum of inconvenience and expense with a minimum of safety.

The object desired would be secured far more safely and economically by enabling the board to guarantee any title which, under the present practice, a wilhng purchaser would be advised to accept as a safe holding title.

V.-Anvsiisr: POSSESSION.

Section 21 of the Act of 1875 is not proposed to be repealed. A registered proprietor, therefore, is to have a title from which no length of adverse possession can derogate, and this after the minister responsible for the Bill, some few months since, assured the pubhc that _ issoheme was to be based on the licy of shortening the penod of hmitation. This period, no doubt, is proposed to be shortened as against 8: claimant for compensation, whose rights have been ignored or overridden, yet abolished altogether in favour of a registered owner. This partiality is as strange as it is unjustifiable.

It_would be well that those upon whose advice and experience Parliament must necessarily rely would make up their minds decisively whether there is to be a term of limitation in respect of land adversely held at all; and, if so, what the period should be if different terms_are to be fixed in reference either to the character of “I9 PF°P°"-Y, right, or claiiii, or to the nature of the ownership; that they should beable to give intelligible reasons for such differences and for giving privileges to one set of owners which they decline to offer to a less favoured category.

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might have been cited with advantage. We can hardly blame the editor for this omission, as it is the custom, more honoured in the breach than the observance, for writers of text-books to neglect blackletter cases.

The editor has grasped the principle, too often forgotten even by judges, that “a judgment only binds the beneficial interest of the debtorin the lands over which he has a brmdfide disposmtg power, . . . the judgment is only made a charge on what was at e time really the property of the debtor " (p. 226). “ It must therefore _taken as settled that a judgment creditor is not a purchaser within the meaning of the statute 27 Eliz. c. 4, and that the statutes 1 & Vict. c. 110, s. 13, and 27 & 28 Vict. c. 112 have not altered his position in this respect" (p. 227). _ _

We are particularly pleased with the discussion of the Bills of Sales Acts (p. 135, et a .), which is a valuable addition to the literature on this intricate saject. In discussing what is " in accordance with the form in the schedule annexed to the Act,” the editor-_ says :—“ The bill of sale may diverge substantially from that forin in either of the two followin ways, and in each such case is void. It may thereb have a legfi consequence or elfect either greater or smaller than that which would attach to it in the prescribed form. It may also thereby depart from that form in a manner calculated to mislead the borrower. Whatever form the bill of sale takes, the form adopted by it, in order to be valid, must produce not merely the like eifect, but the same efl'ect—-that is to say, the leg? effect, the whole legal effect, and nothing but the legal effect, w ch it would produce if cast in the exact mould of the schedule " (p: 139).

Hall v. Comfort (35 W. R. 48, 18 Q B. D. ll), which must have been reported after the book was printed, decides that an attornment clause contained in a mortgage by demise is not rendered void by the Bills of Sale Acts, and ought to be noted up st 13- _140- We think it is only right to state, however, that the general opmion of the profession is that the decision in Hall v. Comfort is of very doubtful authority, and that, if the reasons given in the gudgment are correct, it will not be very dificult to evade the Bills of ale Acts. We agree, however, in the conclusion of our author at page 140, advanced by him with pardonable hesitation, “ that if the true intention of the m_ortgage is not to create a bill of sale, the whole deed will not be avoided simply because, qufi a particular clause in it not being part of its real purport and intention, the mortgage deed required registration.’ _

T e treatment of “ marriage consideration ” and of the mtricate questions that occur in “ gifts inter vivos " deserves much praiseWs are not aware of any treatise containing so full a discussion of the latter questions as is contained in this book.

In conclusion, we can heartily recommend this book to our readers, not only to those who are in large practice, and who merely want 8 classified list of cases, but to those who have both the desire and l-119 leisure to enter upon a systematic study of our law.


A DIGEST or THE Law or LIBEL AND SLANDER. By W. BLAKE ODGERS, M.A., LL D., Barrister-at-Law. SECOND EDITIONStevens & Sons.

The first edition of this book, which appeared in 1881, has well stood the test of time, and has come to be accepted as a full, accurate. and satisfactory guide upon its subject, and, inasmuch as the author adopted the comparatively new and bold form of “ stating the 1"‘ on each point in the form of an abstract proposition, citing the decided cases in smaller type merely as illustrations of that abstrfl-Ct proposition,” he may be considered to have achieved a more than ordinary success. ,

Since the appearance of the first edition the statute law has been altered by the Newspaper Act of 1881; the Rifles of 1883 have much modified the practice, and the case law has been supplemented by any decisions, of which those bearing on blasphemy, the rights of married women (see, e.g., Seroka v. Kattmibury, 34 W. R. 542), criminal informations (see, e.g., Yum V- [i'!I~v '55 W. R. 482), and the liability for libelling the dead (see, e.g., Reg. vLubouchere, 32 W. R. 861) are the best known. In these and other points Mr. Odgers has fully (sometimes perhaps too fully) brought his book up to date, referring, for instance, to a case so recent BB 5P"]“" v. Spokes, decided only on the 2nd of June. His co_m!1i@fl'5 on the Newspaper Act, however, though very good IP 5b' stance, do not quite satisfy us in point of form, as he pfml/5he Act section by section twice over, once with notes in the W“ and once without them in the Appendix. The chapter on bla-spl18mY has, of course, been very much expanded, and Mr. Odgers conimits himself to the proposition (see p. 4-12) that “honest error 15 no crime in this country, so long as its advocacy be 1’“u°““l and dispassionate," and although he distinguishes very P1‘°P“]-7' between apostacy and blasphemy, and half shelters himself und"! the robe of Lord Coleridge (see p. 467), we cannot but think th&§. looking to the terms of the Blasphemy Act (9 Will. :1, c. as). this expression goes too far, and that, though it may be a right °X5"

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tion of the common law, it is incorrect as expressing the law
generally, inasmuch as the statute punishes heretical writing or
“advised speaking” on the part of an apostate with deprivation
of all otiices upon a first conviction, and with three years’ imprison-
ment upon a second _conviction. In connection with this branch of
the subject the summing up of Lord Colendge in Reg. v. Ramsay and
Iloote is printed at length, and some very good suggestions are given
as to_how far an amendment of the law should go.

With regard to libelling the dead, we should have been glad to

have been told more about Ifeg. v. Ensnr, in which Mr. Justice Ste hen gh

. . P ruled at Cardiff in February last that a libel on the dead is not

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Interplead er issue, in which the plaintiff claimed, under a bill of sale from e execution debtor, cei-tam goods seized in execution by the defendants.

The bill of sale, which was given as security for a loan, contained a

criminal unless it can be proved to have caused injury or annoyance covenant by the mortgagor to pay all rents, rates, taxes, and interest on

to the living, and laid it down, according to the Times report

mortgages (if any) payable in respect of the messusge and premises where

u b,.?,,d]y'-that to qlbel the dead ,5 not an ofl-ence known to om: the goods then were or might be removed to; and there was adeclaration law. ’ This case is three times referred to by Mn Odgers, but that when the monliyl was paid off the mortgagee would give the mort

nowhere does he state the efi'ect of it.

Both the'Rules of the Supreme Court and the County Court Rules bearing on the subject are very properly inserted; I but we think the author has gone foo far in noticing points

of general practice, such as motion for new trial (seep. 581) fa

gagor a receipt in f of al demands under or in respect of the premises
an . I .
0 - . .

indorse a codpy thereof upon the indenture but the indenture, and any

d cument signe by the mortgagor or any other person in relation to the gap‘; shoiéld li;ei1i(iiain in the_gi_i_stody and be the property of the mortgagee.

a ew, , e the bill of sale had as not being in accordance with the


and the like. It is a pity to weaken a good book by the in-
trodiiction of extraneous matter. In this and other directions, as
considerable enlargement was a matter of necessity, it would have
been well to exercise a little self-restraint, but, speaking generally,
the book continues a very pood one, indeed, perhaps, one of the best
in thehands of the profession upon any subject. We are glad to find
thatreferences are still supplied to all the current reports, and that
the index and table of cases appear to have had as much labour in
proportion spent_upon them as the text.



Tiis LAW or Rssrs, wrrn SPECIAL Bsrsanivcn TO THE BALE or
Bv W. A. COPINGER, Barrister at-Law, and J. E. CRAWFORD
MT_TNl_§0, LL.M., Barrister-at-Law. William Clowes & Sons

This is a very_ copious and elaborate treatise on the law relating to the so-called chief rents which prevail so extensively in Lancashire. The principles relating to the alienation of land in consideration of a rent-charge are carefully stated, and the cases and authorities are collected with great industry. The precedents 'ven at the close of the book embrace a very extensive collection of firms of agreements, °°“'eY9J1¢95, mortgages, releases, and other dealings with chief rents. _ As regards its special subject, indeed, the book is exhaustive In design an treatment, and should prove of great and constant value to Lancashire practitioners, and of considerable assistance to conveyance:-s elsewhere who occasionally come across chief-rent Property. The statements of cases we have checked we have found "curate, though occasionally somewhat too diffiise. It is to be remembered, however, that the book is no doubt intended for the ‘E59: Qmong others, of practitioners who have not extensive law libraries at hand. There is, we think, throughout the book a lack cf l'e"911§B!; some want of proportion between tho space allotted and th_e importance of the subjects, and too much tendency to travel Liito collateral subjects. We quite appreciate the difliculty Of drawing the line as to how far the law relating to rent services should b_e treated, but we cannot agree in the advisability of going 2° fully Into 1t_as the authors have done. We think that there are era the materials for an excellent book on chief rents, but they seem

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rm. The plaintiff appealed.

Tns COURT (Lord ESHBR, M.R., LINDLEY and Lorss, L.JJ.) dismissed the appeal. They said that the stipulation as to the retention of the indenture by the mortgagee was clearly not contained in or authorized by the form, and was not a mere futile stipulation, as it gave to the mortgagee a greater legal right than was given to him by the statutory form. A mortgagor on paying off the mortgage debt had a right to have the documents given up to him, but this stipulation deprived him of that right, and so the legal effect of the bill of sale was different from what it would be if drawn in the statutory form. The bill of sale was also void on the other ground, for by the covenant to pay interest on mortgages the mortgagor would have to pay interest not only on mortgages which gave a power of distress for the interest as rent (which perhaps might he for the maintenance of the security) but also on mortgages which contained no such power of distress, and where therefore the goods could not be seized. This covenant therefore could not be for the maintenance of the security. The bill of sale was therefore V0ld.—O0UNSlIL, Lyon ; E. Tindul At/rial-von and 0. Lacy Smith. Souurrous, Jllarsden g Son ; Dad, Lonyatafa, 4- Co.

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A question arose in this case as to the validity of the service of a notice of the writ on the defendant out of the jurisdiction. Rule 1 of order ll provides that “ service out of thejurisdiction of a writ of summons or noiice of a writ of summons may be allowed by the court or a judge wherever (mm aliu) (e.) The action is founded on any breach or alleged breach vithin the jurisdiction of any contract, wherever made, which, in-cording to the terms t/m'0of, ought to be performed within the jurisdiction, unless the defendant is domiciled or ordinarily resident in Scotland or Ireland." The plaintiff in the present case was resident in England ; the defendant was a domiciled American resident in the United States. The action was brought to enforce the specific performance of s. contract by the defendant to transfer to the plaintiff some fully paid-up shares in a company whose registered oflice was in England. The contract was made in England, but it did not contain any express statement that it was to be performed in England. A notice of the writ was, by leave of the court, served on the defendant in America. He did not enter an appearance, and the plaintiff obtained judgment for specific performance by default. The defendant afterwards moved to discharge the order for service out of the jurisdiction, and to set aside the j udgmcnt founded on it, on the ground that rule 1 (aj of order 11 did not justify the former order. Kay, J., refused the app lcation. On behalf of the defendant it was contended that the rule r uired that the contract in question should contain an express statementetliat it was to be performed within the jurisdiction, and that, at any rate, the contract in the present case was not necessarily be performed within the jurisdiction, because a transfer of the shares might be executed by the defendant anywhere.

Tris (loim-r or Arrizu. (Corrox and BOWEN, L.JJ.) aflirmed the decision. They held that it was not necessary that the contract should expressly state that it was to be ei-formed within the jurisdiction. It was suflicient if it appeared from the contract, taken in connection with the surrounding circumstances, that it was to be performed within the jurisdiction. In the resent case the contract would not be performed until the transfer of the shares had been delivered to the plaintiff, and that would have to be done in England. Therefore, the coritrcict Ought. according toits terms, to be performed within thejiirisdiction. Consequently, the rule applied, and the service was good.fCousssL, Ines, Q.C., and S. Dickinson; Marten, Q.C., and Bramwellllaius. Soniciroiw, Francis Q Jolmson ; Slade Hunk.

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This was an appeal from a decision of Kay, J. (35 Ch. D. 109, rmlz, p. 302). The question was whether a mortgage contained a valid charge upon a legacy which came to the mortgagor several years after the execution of the mortgage deed. By a deed dated the 18th of January, 1876, H., in consideration of £800 then lent to him, assigned to the mortgagees “ all the household goods, and also all the live and dead farming stock, tenant’s rights and interests of the mortgagor of, in, or iipou any farm now held, or which during this security may be held, by the mortgagor ; also all real and personal estate to which the mortgagor shall become entitled under thewill of his father; also all moneys of or to which he now is, or may during this security become, entitled under any settlement, will, or other document, either in his own right, or as the devises, legatee, or next of kin of his father, or any other person or persons." In April, 1881, H. filed a liquidation petition, and all his property became vested in ii trustee appointed by his creditors. On September 13, 1881, a testator, not the mortg-igor's father, died, under whose will H. became entitled to a share of his residuary property. The question was whether this share was bound by the mortgage. Kay, J . , held that it was.

Tiis COURT or AYPEAL (Corrorv, Bowssr, and Far, L.JJ.) afiirmed the decision. COTTON, L.J., said it was clear that at law the assignment would not pass any future property of the assignor, though it might be enforced in equity as a contract to assign future props-rtv when that property should fall into possession. The principle on which assignments of iion-existent property were made eflectual in equity must be this—tbat there was a contract of which a court of equity would enforce specific performance, and this was so laid down by Lord \‘Vestbury in Holrayd v. Alarsllall (10 H. L. Cas. 191). As a general rule a court of equity would not specifically enforce a purely executory contract for the purchase and sale of goods, because damages would be a suificient compensation for any loss arising from a breach of the contract. It was different in the casc of a contract for the sale of real estate. But in the present case the money had been already paid by the mortgagee, and the mortgagor, who had got the money, had got it on the faith of an assignment which went further then the law would allow. The contract must be one of such a nature that a court of equity would enforce the specific performance of it. There might be cases in which it would be impossible for the court to identify the particular property, and then the contract would be open to the objection of vagueness. Some vagueness was necessarily incident to a contract to assign future chattels. But this would be no objection if the property was capable of being sulficiently identified at the time when the contract was to be performed. There might be a contract to assign future property expressed in such wide terms that it would be wrong to enforce it against the assignor, because it would deprive him of the means of paying his creditors, and would be open to the objection established by the law of bankruptcy to assignments of the whole of a man’s property to one creditor. That was so in Re D'Epim::nI (20 Ch. D. 758). The coutract in the present case was a divisible one. There might be some ilcneral words in the deed so wide that the court would not enforce them lhit the court had now to deal with the clause which related to moneys <'-°ml"8 to the mortgagor as a legatee. In his lordship’s opinion that clause was not tio general in its terms - it did not deal with the whole of PM m°1"8"-8°1"5 Prflpefly, but only with that which might come to him 1n a particular way. \Vas the clause too vague? The vagueness must be one which was not capable of being removed at the time when the contract was to_bo_performed. In the present case the property was as

capable of being identified as almost an kind of ro ert . Th d

_ Y P P y e ecisions tent: rzpylenants in_ marriage settlements to settle future property of the

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at chambers, er part: and without filing any alfidavits, for liberty to in

spect the accounts of B. and of the company. B. and the company moved
to rescind the order, on the grounds that section 7 did not apply when
the person whose account it was desired to inspect was a party to the pro-
ceedings, and that the order should not have been made er parts and
without aifidavlts. Kekewich, J., refused the motion. but limited the
inspection to the period beginning with the formation of the company.
Tar: Gonna or APPBAL((.l01"l‘0N, BOWEN, and Fm, L.JJ.) afiirined the
decision. Oorrox, L.J., said that it would, no doubt, be better in general
that such orders should only be made on notice ; but it was clear that the
Act allowed the order to be made er parte. The word “party” was not
limited to a party to an action, but it included it, and could not be re-
stricted to a third person. In some cases an afliduvit ought to be re piired
to shew that the inspection would be material, but it appeared lroiu the
pleadings in the present case that the inspection would be material. If
there were any allegation that the inspection was sought not honestly,
but for some indirect object, the court should require an affidavit. The
issue in the action was whether the defendant B. did or did not appro-
priate money which ought to have gone to the company, and his banking
account was clearly most material to the plaintiff directly for the purposes
of the action. The primary object of the Act was to enable evidence to
be given at the trial of material matters, though it might be applied to
other cases. It took away the power of summoning a banker to produce
his books at a trial, and in that respect it was for the relief of bankers.
The Act enabled copies of entries in bankers’ books to be taken and given
in evidence. Obviously a suitor could not tell what entries to copy
without inspecting the books. The Act, therefore, clearly gave to suitors
an enlarged power of investigation, a right of inspection which iliey
would not previously have had until the books had been produced and put
in evidence. It had been urged that this would, in efiect, give the suito.
a greater right of discovery, but discovery was the getting something in
aid of a suitor‘s case from his opponent. The Act enabled a suitorto
examine bankers’ books that he might see what entries should be given in
evidence. The power should be used only for the purpose of proceedings,
and the judge should be careful not to give too large a power of inspec-
tion, aiid should limit it to that period of the account which was material
in the proceedings. In the present case the court had come to the con-
clusion that they could not, without defeating the object of the Act and
without doing injustice, fix any further limit than Kekewich, J ., had
done. Bowas, L.J., said that, before the Bankers’ Books Evidence Act,
1876 (for which the Act of 1879 was substituted), there was no power of
discovery from a bank, except by an order to examine the persons who had
made the entries in the books of the bank, and to produce the books.
That could be done under the Common Law Procedure Act before the
trial ; but it was a cumbrous process, and was not in practice resorted to.
The practice was to -9ltb}Z(E1ltl at the trial the person who had made the
entries, and then he produced the books and referred to them to refresh his
memory. The primary object of the Act was to facilitate evidence at the
trial. It was not necessary to say whether it might be used to obtain
inspection where a right to discovery would have existed if the books had
been in the defendauifs possession; the primary object was to save bankers
trouble. In order to get copies of the entries it was necessary that the
suitor should look at the books and see what he wanted, and, therefore, it
was necessary to give an extended power of inspection. The judge ought»
therefore, to be careful to limit as closely as possible the extent of the power
of inspection. It was impossible to say that the order of Kekewich, J., had
given more than was necessary for the purposes of the issue at the
trial, which was whether or not there had been fraud during the period
to which the inspection was limited. Fin-, L.J., concurred. The Word
“ party ” included a party to the action, although the argument had been
that the word meant every person who was not a party. lt was to he
observed that the second recital in the preamble to the Act of 1876 B8141
that it was expedient to facilitate the proof of the transactions recorded In
bankers’ ledgers and account books. The same motives existed when film
Act of 1879 was passed, and it was clearly one of its objects to give an
increased power of inspection.—Cou.\'ssi., Herbert Reed and G. E. [Inui-
]3h1'¢%s,- (/ZVarnii'n_q!on, Q.C., and Swinfm Early. Souci-roiis, Blair 4- Girlcng ;
ea rj- 0.

CHALLENDER v. ROYLE-O. A. No. 2, 22nd July.

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A question arose in this case as to the construction of section 32 of the Patents Act of 1883, which provides that :—“ \Vhere any person claimin8 to_ be the patentee of an invention, by circular, advertisement, or otherwise, threatens any other person with any legal proceedings or llllblllly in respect of any alleged manufacture, use, sale, or purchase of the inV_€l1' 51911» “BF PBISOI-1 Or persons aggrieved thereby may bring an action agamfii mm» “"1 ma!’ Obtain an injunction against the continuance of sllilh threat!» and may recover such damage (if any) as may have been sustained thereby, if the alleged manufacture use sale or purchase to which the threats related was not iii fact an infringement of any legal rights of the person making such threats. Provided that this section shall not appl)‘ ll the15°l1 Iflaklng such threats with due diligence commences and prosecutes an action for infringement of his patent." The defendant, B01161 was the owner of a patent, granted in 1879 for a “ tap union,” and 8"?! since 1879 he had manufactured and sold the patented article, and lmtll 1'e°°nu.Y: "-5 he alleged, he had not been aware of any infringement of his Patent In March, 1887, he discovered that a number of tap unions not made P7 himself were being sold, and he considered that those artifilffl were infringements of his patent These articles were mlD1li'a0tl1t€dl7Y


Challendefi the plaintiff, who had taken out a patent in 1886. Boiler


in March, 1887, issued the following cii-cular:—“Royle's it having come to our knowledge that certain of our patents are nged—notably, Royle’s Patent Tap Union and Patent Archigg Beate_r—we hereby caution our numerous friends against

those imitation goods. It cannot be too generally known that c

who_ handle a patented article, from the maker to the user, I l_so importers, are liable to the patentee. Our patent solicitor

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ln this_ case, a _testator having bequeathed a sum of £10,000 to the hildren living at his death of nine persons name d, the executors paid the egacy _into coui-t_ under the Trustee Relief Act, and, an inquiry being

nom; to take pmceedmg, against an mmnge,.s_n This circular taken, it was certified that the persons entitled were thirty in number.

it the tap union made by Challender, and was circulated among U if his. In April he wrote to Royle challenging him to take legal I?

|t0 restrain the alleged infringement of his patent. On the .y a person employed by Royle purchased from a company

T Manchester Plumbing Co. a tap union manufactured by 9

and warned the company that it was an infringement of

:n_t, and that R_oyle would proceed against them if they con- ° ll it. On the lath of June R_oyle served the company with a 3 ction restrain them from infringing his patent. The writ

pon petition for payment out. it was submitted that the costs should be
ade payable out of the £10,000, and should not be borne by the residue.
ninm_qs v. Newman (l0 Ves. 219); Boycott v. Newman (-1 W. R. 707); Re
rick’: Trusts (18 W. R. 123, 5 Ch. 170); and Rs Birketl (27 W. R. 164,
Ch. D. 576), were referred to.
Curr-rv, J ., said that the view he took was that the costs must come out
f the residue as part of the ordinary costs of administration. In his
pinion the balance of authority was in favour of that view. It was the
uty of an executor to ascertain who were the persons entitled to a legacy,

at mnon wassued on the 11¢}, of June but not sewed H" l1n_d_upon principle there was no distinction between the costs of ascer

ly it the plaintiff claimed an injunction to’ restrain Royle from t

by circulars or otherwise an erson with le al roceedin s °

Y P 8 P 8 i n respect of the manufacture, use, sale, or purchase of the p union. _ Bristowe, V.C., granted an interlocutory injunction. l; led, and it was argued on his behalf that the above circular

aining a question of construction and those of ascertaining the members f a class of legatees. It could not be said that executors, by payment nto court or any severance of a legacy, were acting so as to relieve the esidue from bearing cost-s. He held that the costs were payable out of he I'EBidl1G.—OOUNSEL, Rainer, Q.C., and Sta/l'ra,' Wlritehornc, Q.O., and

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ressed to an individual in respect of an alleged past infringe~ tent. It was not necessary that the “action for infringetioned in the proviso at the end of section 32 should be


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it was sufilcient if it was brought against. some other alleged
it raised the same question which would be raised against the
rieved_” if he were the defendant. The action against the j
?lumbing Co. was therefore sufilcient to exclude section 32, C
on had been commenced with “ due diligence." f
' or arr-ear. (Corrorv and Bowim, L.JJ.) reversed the decision t
[the injunction. (lorroiv, L.J., said that Halsey v. Brot.'ur-
D. 514) shewed that, but for the Patents Act, the plaintiff P
no reasonable ground for his action. The two inventions in f
E appliance and construction were almost alike. Section 32 ' b

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circular was a "threat" within the section, but there hazl ,
tagainst the Manchester Co., and it was clear that the
I-_“ person aggrieved.” The court must be satisfied that the
iined of was not an infringement of any legal right of the
iade the threat. It was not necessary to say on whom was
: proof; prime fncia it would be on the plaintiff, but he might
sumption and shift the burden to the defendant. The ques-
_the patent of the person who had made the threat was valid
mto consideration; for if the patent was invalid there
in infringement of a le l right. His lordship differed from
> the contrary which gliitty, J ., had intimated in Kurt: v.
D. 579). Bristowe, V.O., acting on a judgment of Kay, J.,
?!aM': (4 Rep. Pat. Oas. 111), had said that it was not neces-
mto the question whether there had been any infringement,
as only necessary to consider the balance of convenience.
lissented from that view. It was true that in all applica-
locutory injunctions it was right to consider the balance of
but the question was whether the plaintiff had made out a
re, and whether it was probable that he would succeed at the
twere necessary to decide,the point in the present case, it
he plaintiff had made out a primd facie case, but it was not
ecide that question, because section 32 did not apply by
proviso at the end. Just after the plaintiff had issued his
>re notice of it had come to the defendant, an action had J
:ed by him against the Manchester Co., and with due dili-
e threat. The proviso said that the action should be duly
it that was a matter in future. The Manchester Co. were
g the articles, and, though the plaintiff had a patent, it did
it he was actually making and selling them. There was no
the action was collusive. If it should not be duly prose-
tion could be made to the court. To bring the case within
are must be an honest action as to the validity or infringe-
atent, whichever might be in question, and there was no
;he action against the Manchester Co. was not honest or that ,
iduly prosecuted and honestly defended. It was not necessary
i should be brought against the “person aggrieved." A
> was a “person aggrieved,” but if he only granted
lid not make and sell the patented article, an action could
bagainst him in which damages could be obtained. The
ifounded on some act done; it must be honestly brought
ilidity or infringement of the patent, and following up a
1 some person to whom it was made. Bowers, L.J., said
imust not be a mere warning, but a threat of legal pro-
ability in respect of an alleged, not merely aproposed,
E the patented article. Of course a general warning might
it was important that it should be understood that it did not
ause on the simple grammatical construction of the warning
V to the future, it might not be ap licable to an act
The court was not expressing any final opinion as to the
le patent or as to the fact of infringement.—Coussizr.,
and E. Hall ; Finlay, Q.C., and Bouqficld. SOLICXTORR,

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In this case the plaintiffs were mortgsgees of a building agreement, and was provided by the mortgage that the mortgagors should obtuin leases and mortgage them to the plaintiffs by way of demise. The mortgagors, however, in fraud of the mortgage, mortgaged the leases which were obtained in their own names to certain of the defendants. The question arose whether the defendants, being holders of the legal estate without notice, were entitled to priority over the plaintiffs. The case of Luyard v. Maud (15 W R. 897, 4 Eq. 397) was relied on by the defendants.

0H1'l‘T\’, J ., said that he should not adopt the ruling in layarzl v. Maud. The laintiffs’ agreement was, not that they, but that their mortgagors, should obtain the legal estate, the object being that a mortgage by_ underlease or demise should follow, and not a mortgage by assignment. 111 011181‘ that there should be no liability on the part of the plaintiffs to the lessors. Under such circumstances it would have been idle for the plaintiffs to have given notice of their charge to the lessors, who would have been entitled to have disregarded the notice. The case was similar to iflurnflrzl V. Stohwim-er‘ (22 VV. R. S33, lS Eq 006), and, 111 accordance with that case, he should hold that the legal estate was no protection against the plaintiffs’ prior equity. In regard to charges upon land, priority of security did not depend upon notice, although in some cases of contract it might be necessary to give not-we t0 U16 1101381‘ °f the legal estate in order that it might not be_couveyed awny,_but such a doctrine could not apply to the case before him, where the prior incumbranceg had no right to intercept the legal estate.-—Ooui\'siii., illacleon, Q.C., an Ingpm; Romer, Q,.C., and It. C’. Dobbs; rSolomon; Swan; SomerTORS, Bolton d Co. ; 1\'ewmun, Hays, Q Sc/unettan; Tliomru Bowler.

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In this case a question arose as to the proof of the time at which a person had died who had not been heard of for seven years, and who was therefore to be presumed to he dead. R. emigrated to Australia in_1B50, and was last heard of by his family in 1873. In 1885 admmlflbrfi-$1011 W his estate was gmnged on the assumption that he was dead. There W118 in the hands of the administrator a sum of money, to which R. was entitled under the will of his father, and the administrator took out an ori inating summons with the view of determining W110 W9-B entitled $0 thee fund Upon the hearing of the summons inquiriflfl W016 direct/fid when R. died, and who were his next of kin living at the time of his death, whether any of them had smce died,_ and_, _if so, wh_0 were their

o al re resentatives. In answer to these inquiries the chief clerk had ?::;dn thatpR was last heard of in 1873. and that he was dead in 1880,

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but that there was i.o tvidente to shew that he had dud at mi) date before

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