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the outbreak of the war, but the plaintiffs' right to sue accrued before the proclamation of the 8th Oct. There was a clause in the policy giving jurisdiction to the English courts in the same manner as if the defendant company had been actually incorporated in England. The policy also authorised the service of process upon the agents of the company in England. The case came before the learned judge on a summons for transfer of the action to the Commercial List. The defendants objected that because of the war the obligation to pay and the plaintiffs' right of suit were suspended, and consequently that an order for transfer would be useless, and therefore ought not to be made. The learned judge, however, made the order. Incidentally his Lordship held that the proclamation of the 8th Oct. was not retrospective.

4. MISCELLANEOUS DECISIONS.

(a) Taxi-cab driver shot by sentry-Workmen's compensation.-In Thorn v. Humm and Co. (noted ante, p. 85) an application was made for compensation under the Workmen's Compensation Act, and His Honour Judge Lush-Wilson awarded compensation under the following circumstances: The applicant was employed as a chauffeur of taxi-cabs let to the public in and about Plymouth. The applicant one night was engaged to drive an officer to a fort some four or five miles from Plymouth. He was warned by the officer that he should be careful because of sentries. While proceeding at a reasonably slow pace he was in fact shot by one of the sentries on duty, not having heard the latter's challenge. The learned judge found as a fact that the applicant was on the look-out for sentries, and that the reason why he did not hear the challenge was that, owing to the wind and rain, the noise of his engine, and the presence of the glass screen, he was unable to do so.

(b) Trawler blown up by mine-Workmen's compensation.-In the case of Risdale v. Owners of Ship Kilmarnock (noted ante, p. 161) the Court of Appeal held that the chief engineer on a steam trawler owned by his employers was entitled to compensation under sect. 1 of the Workmen's Compensation Act 1906. The circumstances of that case were briefly as follows: The applicant had just come off his watch when the vessel struck a floating mine. He was thrown into the sea and sustained certain injuries. The floating mine had been submerged in the North Sea by the Germans. While passing near a part of the sea, dangerous because so strewn with floating mines, the master diverted his course in order to give voluntary information of the proximity of floating mines to a British warship some miles distant. By thus altering the course the vessel had come into a part of the sea which the master had been instructed by the Admiralty could not be safely navigated.

Finally, we may mention the following cases as worthy of note as decisions connected with the war: C. Groom Limited v. Barber (noted ante, p. 109; (1914) W. N. 440), a case of a commercial contract; Wetherman v. London and Liverpool Bank of Commerce Limited (31 Times L. Rep. 3), a case on the position of a bailee; The Chile (1914) W. N. 355), a case on the right of an alien enemy to enter an appearance in a Prize Court; and The Tommi; The Rothersand (137 L. T. Jour. 572), where the question arose whether an English company consisting entirely of aliens can own a British ship.

DONATIO MORTIS CAUSÂ.

OUR columns contained some weeks ago a note on a case raising once again some important questions upon the subject-matter of our heading. It seems an extraordinary thing that, when the Legislature saw fit to pass the Wills Act, it did not do something towards abolishing the exceedingly lax system of disposition which runs parallel with the strict provisions ordained by the statute, but it is clear enough that there is something attractive to the community in this happy-go-lucky method of benefiting friends, and during the last few years there have been quite a number of decisions arising out of various aspects of the circumstances attending these gifts. It is not easy to spell out of the whole mass of old and new cases any precise principles, but, if selection is confined to the more modern instances, it

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would appear as if the courts had been attempting to lay down, at any rate, some general limitations.

Re Wasserberg; Union of London and Smiths Bank v. Wasserberg (noted ante, p. 82) is a recent addition to the long chain of authorities. A reference to the note on that case will reveal the fact that it lays down again the important principle that an imperfect delivery can nevertheless effectuate a gift. There the donor left a sealed packet containing bonds in a bank. The packet was addressed to the donee although it was not handed over to her, but the key of the box in which the packet lay was given to her. The death occurred within a few hours. Mr. Justice Sargant has held that the donatio was good, and that there was no authority which nega tived the proposition that an imperfect delivery was sufficient to effectuate a gift. Here it will be seen that we have an additional case to add to the many where the key to a box has been strongly relied upon as a medium of a disposition. It has been laid down that delivery cannot be made by a symbol, but what is a symbol? It would seem as though a key were essentially symbolic of that which its use laid open to the owner of it, and that such a view would be in line with the transfer of a bunch of heather as symbolic of the transfer of a Scottish moor, or a bottle of water as representing a trout stream. It is, however, too late to draw meticulous distinctions, for there are now many cases open to research where the key is treated not as a symbol, but as a means of getting at that which is locked up.

One of the leading cases on the subject of a donatio mortis causâ is Re Weston; Bartholomew v. Menzies (86 L. T. Rep. 551; (1902) 1 Ch. 680). That case is interesting in various ways. It throws light upon the words "mortis causâ," for the governing idea is that the donor should be obsessed with a sense of impending dissolution. In the Wasserberg case (ubi sup.) that fear was present, for the donor was on the morrow of his gift to undergo a very serious operation, and it was justified by the result, for he died under it. In Re Weston we have a very different set of facts. The expectation of death was less oppressive, and the donor lived for many weeks after the delivery of the key. The valuables in Re Weston were in the house, whereas in the more recent case they were kept at a bank. Again, Re Weston is interesting because it went on lines of thought contrary to those laid down in a somewhat obscure Irish case which it first brought to prominent notice in this country. McGonnell v. Murray (3 I. R. Eq. 460) negatived the argument that a savings bank book could be a good subject-matter for a donatio mortis causâ, whereas in Re Weston Mr. Justice Byrne held that a Post Office Savings Bank book was a valid subject-matter. There are, however, one or two things to be said on this. It seems that in the Irish case the bank was a trustee savings bank, and in the case before Mr. Justice Byrne it would seem as though the text of the regulations governing the Post Office book was not entirely the same as that which obtains to-day. The wording of the regulations may quite conceivably effect distinctions as to the value of the book itself. In Re Weston it seemed as though all the terms of the contract between the State and the depositor were found within its covers, and there were no phrases, such as are often to be found, which negatived the proposition that the book was a security for the money it purported to evidence. Another savings bank book case may possibly be worthy of note as food for argument. It is an American case, Tillinghast v. Wheaton (8 Rhode I. Rep. 536), where it was held that the book was a good subject-matter for delivery. It may be freely conceded that there is a wide gulf between the circumstances of a Post Office book and the ordinary banker's pass book. The latter is in general acceptance a mere item of record, and it is not surprising to find a decision that such a book does not constitute a satisfactory subject-matter for a donatio mortis causâ : (Re Beak's Estate; Beak v. Beak, 13 Eq., at p. 489).

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It might be convenient to summarise some of the chief item, which have been judicially held to pass as a donatio mortis causâ. Coins, bank notes, promissory notes, and bonds from their nature might naturally be expected to rank as fit subjects. In addition, we find bills of exchange and cheques have passed when payable to the

donor's order although not indorsed. We comment below on the subject of cheques in regard to which difficulties arise. So also there have passed deposit receipts although not transferable. These perhaps are rather surprising items, as are also a policy on the donor's life and a mortgage deed.

On the other hand, it has been decided that share certificates in a box handed over to the donee did not pass the property when the key was retained by the donor, this retention being regarded as symptomatic of a retention of the property in the dominion of the donor: (Re Johnson, 92 L. T. Rep. 357). Again, no valid donatio took place where it was a case of a deposit invested by a savings bank in Government stock, even though the certificate of investment was also given. This case of Re Andrews; Andrews v. Andrews (87 L. T. Rep. 20; (1902) 2 Ch. 394) repays careful consideration, for it is a modern authority and one always referred to. It has been held in Ireland-Duckworth v. Lee (1899, 1 I. R. 405)-by the Court of Appeal that an IOU would not pass.

In special regard to cheques some note has to be made as to their nature and circumstances. Thus, if the cheque is handed to the donee, but does not result in payment, either actual or constructive, during the donor's life, it is shown by Re Beaumont ; Beaumont v. Ewbank (86 L. T. Rep. 410; (1902) 1 Ch. 889) that it would not satisfy the courts as a valid donatio mortis causâ, and it would, therefore, behove all legal advisers aware of a client holding such a document to urge that it should be perfected forthwith. It will be noted in this case that the donor's account was overdrawn. Notice also Re Beak's Estate; Beak v. Beak (ubi sup.) on this subject. Again, if delivery of a cheque be made to a third party, with a request, written by a friend, that the third party should keep it in case of the death of the donor and should then hand it over to the donee, such a delivery would be regarded as unsatisfactory, and consequently we are not surprised to find that an executor was ordered not to honour such a cheque (see Re Davis; Griffiths v. Davis, 86 L. T. Rep. 889.)

The next case introduces another point relating to delivery, and that is the person to whom the delivery is made. Re Kirkley; Cort v. Watson (25 Times L. Rep. 522) is a useful case to note in many ways. First, the donor had apparently no immediate contemplation of death. He was eighty-six years of age and feeble, but not seriously ill. The subject-matter was a packet containing a promissory note. On the cover of the packet there appeared the date and a statement that it was a present to X., care of Z. Z. was a maidservant of the donor, and to her the packet so indorsed was handed by the donor. After the donor's death it was held by Mr. Justice Joyce that no donatio mortis causâ had been shown-first, because there was no evidence of an expectation of death; and, secondly, because there had been no delivery to the donee or an agent for him. A Scottish case on somewhat similar lines may be mentioned-viz., Hutchieson's Executrix v. Shearer (1909, S. C. 15), where it was laid down as a principle that to effect a donatio mortis causâ it is not necessary that the delivery should be personal to the donee, but it might be effected by a delivery to a third person on the donee's behalf. There is still left a rather undefined zone in which argument can be raised as to the status of the person to whom delivery is made, and as to the ingredients necessary to that third person being a qualified agent. Again, there are no satisfactory clues as to the quantum of the expectation of death. Right away from 1793 there have been cases, of which Tate v. Hilbert (2 Ves. Jun. 1117) is typical, which show that the contemplation of death is essential, and that if the donor recovers the gift is revoked. It is not, however, clear how imminent the expectation must be or what circumstances justify it. Could it be said that a neurotic person about to receive gas for a dental operation could contemplate death except in that sense in which all human beings recognise their precarious daily hold on life? Nor is there any period placed as to the time within which the death may occur. In Re Weston (ubi sup.) we have noted that some nine weeks elapsed, whereas in Re Wasserberg (ubi sup.) it was a matter of a few hours Although, again, it is easy enough to say that the subject. matter of delivery must be something the title or evidence of title of which passes by delivery, the cases themselves seem somewhat at times to overpass the frontier. The mortgage deed case-Dufield v. Elwes (1 Bli. N. S. 497)—affords much Second Sheet

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room for argument. Nor are things made easier by the fact that the donee's uncorroborated evidence is often regarded as sufficient despite the misapprehension or even fraud which can result Note the last four lines of p. 681 and lines 8 to 11, p. 684, in the report of Re Weston (1902) 1 Ch. 680) as to evidence. Nowadays, however, the courts may call for a stricter proof than was once expected. There is some doubt, in addition, whether these gifts are property of which a deceased is competent to dispose at his death within the Finance Act 1894: (see Re Hudson, 103 L. T. Rep. 718).

Whichever way these cases are treated they cannot be regarded as satisfactory methods whereby gifts pass from one to another under the special circumstances, and, although that may have to be something between the normal donatio inter vivos and a testamentary bequest, it would be convenient if some simple rules could be formulated-if such be possible-to regularise them in some way, and to mould them into greater harmony with the precautions which Parliament called for in the case of wills.

EQUITABLE FRAUD.

THE recent case of Nocton v. Lord Ashburton (111 L. T. Rep. 641 (1914) A. C. 932) is a fresh reminder that our law still recognises two species of fraud, one of substance and another of pleading. The former, which involves mens rea or actual dishonesty, is recognised by both the common law and equity. Equity, however, remembering that it was a court of conscience, and that it had to enforce the proper performance of duties arising out of fiduciary relationships, held every breach of such a duty to be a breach of confidence, and therefore a constructive "fraud." To apply the term "fraud " indiscriminately to a breach of a special duty, where there was no dishonest intention, was, as the Lord Chancellor observed, unfortunate.

When Derry v. Peek (61 L. T. Rep. 265; 14 App. Cas. 337) came and a definition of fraud rang out so emphatically in the ears of the legal world, the notional "fraud" created by equity seemed to have met its doom. Even Parliament assisted in propagating the assumption, for by the Directors' Liability Act of 1890 those who issued prospectuses were specifically rendered liable for breaches of obligation which fell short of conscious dishonesty. In the case of Lord Ashburton v. Nocton the plaintiff claimed against the defendant, who was his solicitor, damages for fraud, for advising the plaintiff in the first instance to accept an inadequate security as an investment and for advising him, later on, to release a part of the mortgaged property whereby the rest was insufficient to secure the money still remaining on mortgage. Mr. Justice Neville held that there was no fraud within the meaning of the Derry v. Peek definition, and that the plaintiff, having made no alternative claim for negligence, could not recover. The Court of Appeal admitted that the claim must stand or fall by the charge of actual fraud, but their Lordships took upon themselves to decide that the evidence showed such fraud. They therefore held that the defendant had acted fraudulently and awarded heavy damages. The case then came before the House of Lords, when the Lord Chancellor resuscitated the moribund doctrine of equitable fraud, the calling into existence whereof, in the first place, his Lordship so deprecated.

In Bourne v. Swan and Edgar Limited (87 L. T. Rep. 589 (1903) 1 Ch., at p. 223) Mr. Justice Farwell observed that it certainly is not now, and, since Lord Cottenham's decision in Millington v. Fox (1838) 3 My. and Cr. 338), never was in the old Court of Chancery or in the Chancery Division, necessary to prove actual fraud in order to restrain the unauthorised use of a trade mark or to entitle its owner to damages. It has been recognised by many judges since those early days that the injury to the plaintiff is the same whatever the intentions of the defendant may have been, and, as it is always within the jurisdiction of equity to lend all necessary assistance to the injured party without proof of actual fraud, it is hard to perceive the necessity for resuscitating the term "fraud" where no dishonesty exists. As the term "fraud" has been used only to indicate dishonesty since the year 1889, there was surely no pressing reason for

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reviving the use of the term where the word "negligence" would have been more correct and equally useful.

In Nocton v. Lord Ashburton two out of the three tribunal before whom the case came considered that the defendant had caused loss to the plaintiff by an act of negligence, and there would be a natural desire to help the plaintiff to get compensation for his loss, which he seemed likely to miss through the form of his pleading. But for some such urgency as this it is conceivable that the decision might have gone the other way, and then would the doctrine of notional fraud have been buried for ever. There are two reasons for holding that the decision was an unfortunate one, one peculiar to the case in question and the other of general importance. The first is this, that if the client has deliberately hurled a charge of fraud against his solicitor, and as deliberately abstained from treating his grievance as negligence, he ought not to be assisted by the court to recover damages should it turn out that the charge of fraud was unfounded. The solicitor's credit is as dear to him as is his money to the client. As to the defendant's conduct, the Lord Chancellor declared (p. 945) that the evidence left on his mind the impression that the solicitor did not consciously intend to defraud his client, but, largely owing to a confused state of mind, believed that he was properly joining with him and guiding him in a good speculation. The second reason is readily deducible from the first-namely, that persons who wish to charge fraud against those who stand towards them in special relationships should be compelled to do so, and should not on so grave a charge be allowed to recover all the material benefits they desire if they can only establish negligence after having refused to be just enough to plead it.

The action for actual fraud or deceit was evolved by the judges at the end of the eighteenth century (according to Mr. Justice Grose in Pasley v. Freeman, 1789, 3 T. R. 51). In that case relief was sought in respect of a false affirmation made with intent to defraud, and Mr. Justice Grose (who dissented from his brethren Chief Justice Kenyon and Justices Putler and Ashurst) (p. 53) controverted the proposition that the law would give redress wherever deceit or falsehood was practised to the detriment of another, and his Lordship endeavoured to show that his contention was well founded. Up to that time no action lay, it would appear, in the absence of a special duty. It was only appropriate that the decision in Derry v. Peek which defined fraud—i.e. the real thing-with so much accuracy should have forbidden negligence any longer to masquerade under the ugly name of fraud. What purpose has been served by reviving the anomaly it is hard to discover. It simply enables one man to charge another with fraud who has not committed it.

However, the doctrine of notional fraud is with us once more and we must bear it in mind. In Buckley v. Wilford (1834, 2 Cl. & F. 102) a solicitor had advised his client to levy a fine of the whole of his estate without telling him the effect of so doing. The fine was duly levied, with the result that the solicitor became heir-at-law to his client's property upon the death of the latter, which occurred shortly afterwards. The widow to whom the deceased had, prior to the fine, devised the whole of his estate, filed a bill in Chancery for relief, and the House of Lords held that the solicitor had been guilty of professional negligence, and, apart from actual fraud, must hold the property he had inherited as a trustee for the widow. Where a solicitor is wanting in his duty, and, in consequence, derives some benefit by his neglect, he will become a trustee of the property for the benefit of the person who would have been entitled if he had known what as an attorney he ought to have known.

Want of knowledge may seem to be a slight infraction of duty, but when it is negligent ignorance it represents negligent inaction which in law is equivalent to negligent action. In some respects, however, the liability for negligence in word has been developed differently from negligence for act. Another curious fact came to light in this case of Nocton v. Lord Ashburton. The appellant had actually been engaged in the particular speculation with his client, and the effect of the release, executed under his advice, of a portion of the mortgaged property was to enhance

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his own chance of securing a sum of money due to himself. Mr. Justice Neville held that this prospect of a benefit to himself probably influenced the solicitor's judgment when he was called upon to advise his client, but that as there was no conscious design to deceive the client for his own personal ends, his action in giving the advice was not fraudulent within the rule laid down in Derry v. Peek.

The Court of Chancery has gradually extended its jurisdiction to scrutinise actions carefully where a fiduciary relationship exists and the House of Lords has now declared that there is no reason to suppose that it has reached its limits. The conscientious principles which have been applied in the past may be applied in the future to fresh relationships and new circumstances: (1914) A. C., at p. 948). The general rule may be stated as follows, that equity will intervene on conscientious grounds to punish the breach of any of those duties which a court of equity imposes upon one individual between whom and the person injured there is a "special relationship" recognised by equity. And such a special duty may arise either by virtue of a formal relationship or simply from circumstances.

The ancient jurisdiction of the Court of Chancery provided another special advantage to a client against his solicitor, a cestui que trust against his trustee, a ward against his guardian, or a principal against his agent, which did not exist in the case of ordinary business relationship, but which arose under its special action in treating breaches of fiduciary relationship as fraudulent in that it excluded and still excludes the application of the Statute of Limitations. Burdick v. Garrick (5 Ch. App. 233) was a case of principal and agent, and the claim, which was for an account, was put forward by the widow of the deceased principal. It was held that the agent must furnish an account although nine years had elapsed since the principal's death and the termination of the dealings between the agent and his principal. This concession to the injured party would not have been allowed at common law, but the Chancery decisions since the year 1889 show that it has been granted to plaintiffs without charging fraud in a notional sense.

In Nocton v. Lord Ashburton the client had been warned by the solicitor's own partners against making the original loan. This warning was held to be equivalent to notice of all the risks that he ran in lending, and it relieved the solicitor from a claim on the ground of deceit, Lord Dunedin holding that the Statute of Limitations applied so as to bar that claim.

As the law now stands, it is clear (1) that if fraud be charged and the facts alleged to constitute it are not established, the plaintiff may still win if other matters be set forth in the pleadings upon which the court can found a decree of notional fraud (cf. Archbold v. Commissioners of Charitable Bequests in Ireland, 2 H. L. Cas. 440, at p. 460); and (2) although fraud be specifically alleged, the plaintiff may win his action, though the fact of the fraud be not established, provided the plaintiff can establish other facts (pleaded) upon which the action for notional or constructive fraud can be maintained: (Swinfen v. Lord Chelmsford, 5 H. & N. 890, at p. 920).

COMMENTS ON CASES.

"Casual" Workman's " Average Weekly Earnings." ONE of the obviously essential features of the employment of a workman which is of a "casual nature," within the meaning of the Workmen's Compensation Act 1906 (6 Edw. 7, c. 58), is that he should be engaged to work for several different employers, if his labour is to be of any substantially productive value to him. He can scarcely be employed by one person or firm only, and yet, in the ordinary course of events, succeed in earning a living wage out of his employment. Consequently, the decision of the Court of Appeal in the recent case of Cue v. Port of London Authority (111 L. T. Rep. 736) cannot fail to have a very far-reaching application. It is fortunate, therefore, that the court have seen their way to spell out of the bewildering provisions of sect. 2 of the first schedule to that Act an intelligible rule for computing the "average weekly earnings" of such a

workman as the basis upon which to assess the compensation payable to him when he has been injured by "accident arising out of and in the course of his employment." And this, despite the criticism of the Master of the Rolls (Lord Cozens-Hardy) regarding that "strange piece of drafting," as his Lordship did not forbear to style it. "A word of commendation uttered by anybody" was lacking when the section was being pondered; as, indeed, it is at all times when the statutory schedules come before the courts for consideration. No meed of praise could ever then be aptly bestowed. Starting with the postulate stated in the headnote to our report, that "it is inconsistent with the nature of casual employment that a workman employed therein should be employed under 'concurrent contracts of service,'" a preliminary difficulty that would otherwise have presented itself was forthwith disposed of. The learned County Court judge had permitted himself to fall into the error of complicating the problem to which the case gave rise by treating the various casual employments of the deceased workman as contracts of that description. And small wonder that His Honour did so, seeing how intricate are the terms of the enactment. But when once that cause of perplexity was removed there was less occasion for dubiosity. It is readily apparent how inappropriate the doctrine of "concurrent contracts of service" is to several employments of a casual nature from what was laid down by the learned judges of the Court of Appeal. In fine, any contention in support of the award on that footing was forced to be abandoned in the argument on behalf of the dependants of the deceased workman. And the rule that was ultimately held to be the true one-after a searching study of the language, obscure though it be, of the section-was formulated in the way that the headnote to our report succinctly expresses. In thus elucidating a question of novelty that must nevertheless be of common occurrence, the Court of Appeal have furnished the County. Courts with an invaluable guide in the decision of all future cases of a similar character.

Lump Sum Freight Charter-parties.

FOR an accurate and compendious statement of the meaning of "lump sum freight" one cannot do better than refer to tha of Lord Lindley when giving his opinion in the House of Lords in Williams v. Canton Insurance Office (85 L. T. Rep. 317, at p. 321; (1901) A. C. 462, at p. 473): "A definite sum agreed to be paid for the hire of a ship for a specified voyage; and although only payable on the right and true delivery of the cargo,' those words are not taken literally, but are understood to mean right and true delivery having regard to and excluding the excepted perils." So, likewise, Lord Ellenborough, C.J. laid stress on the contingency," unless prevented by dangers of the seas or other inevitable casualty," in Hunter v. Prinsep (10 East, 378). The charter-party in the recent case of Thomas and Sons v. Harrowing Steamship Company Limited (111 L. T. Rep. 653) contained the usual exception as to "perils of the seas." And from the facts of that case, as set forth in our report, it will be seen that, by those excepted perils, the ship there was wrecked outside the named port to which she was bound. Owing to heavy weather she was driven ashore, foundered, and became a total loss. Part of the cargo was never recovered. The decision of the Court of Appeal, affirming that of Mr. Justice Pickford (as he then was), has since been upheld by the House of Lords. The shipowners were decided to be entitled to payment of the lump sum freight agreed to be paid to them by the charterers of the ship, as they had performed their contract, save in so far as they had been prevented by excepted perils. Such was the unanimous answer of each of the three tribunals to the novel question that was propounded: Is it essential that a ship should actually arrive at her port of destination, thus completing the agreed voyage, in order to justify the shipowners in claiming the "stipulated gross sum to be paid for the use of the whole ship for the whole voyage"? (See per Mr. Justice Brett in Robinson v. Knights, 28 L. T. Rep. 820; L. Rep. 8 C. P. 465). The contention of the shipowners that they had substantially performed their contract by making a delivery of so much of the cargo-consisting, as it did, of pit props that

were washed out of the ship-as they were not excused by excepted perils from delivering was given effect to by the decision in the case. "If the ship be disabled from completing her voyage, the shipowner may still entitle himself to the whole freight by forwarding the goods by some other means to the place of destination." That was the view of Lord Ellenborough, C.J. in Hunter v. Prinsep (ubi sup.). And that was practically what was done in the present case.

THE CONVEYANCER.

Identity of Parcels.

PERHAPS few things give the conveyancing practitioner more trouble in advising on title than the identity of parcels. Vendors usually try to protect themselves by some such condition as that the purchaser shall admit the identity of the property sold upon the evidence afforded by a comparison of the description in the contract and the muniments, and that no further evidence of identity shall be required. Such a condition, however, will not always protect the vendor. Thus in Curling v. Austin (2 Dr. & Sm. 129) the facts were shortly as follows: The contract was for the sale of (among other property) certain houses, Nos. 32 and 33, Preston-street, Brighton. By the sixth condition of sale it was provided that "the purchaser is not to require any further proof of the identity of the property than is furnished by the title deeds themselves." The purchaser objected "that the property now numbered 33, Preston-street, is not shown to be Nos. 32 and 33"— some of the deeds not speaking of No. 32. Vice-Chancellor Kindersley held that under the sixth condition of sale, if the deeds did show identity, the purchaser could not call for any other evidence; but that, on the other hand, the contract was in effect that the deeds should show identity, so that, if they did not, a good title was not made; and he came to the conclusion that they did not In Flower v. Hartopp (6 Beav. 476), which was a sale of a water cornmill under the decree of the court, the sixth condition of sale was as follows: " That no further evidence of identity of the parcels shall be required than what is afforded by the abstract or the deeds, instruments, or other documents therein abstracted." The descriptions in the documents differed among themselves, and from the description in the particulars of sale (as is frequently the case). Held, by Lord Langdale, M.R., that the purchaser was entitled to have further proof of identity. In the course of his judgment his Lordship said: "Upon looking back to the other descriptions contained in the three or four previous instruments, it is found that they vary more than the last instrument from the description contained in the particulars. This, therefore, does not aid the vendor, but rather makes the identity more difficult. The lapse of seventy years would well justify a change in the state of the property, and a variation in the description, but the instant you have a variation in the deeds, the description in the deeds cannot of itself be evidence of the description contained in the particulars; something else must be introduced to correct them, and therefore, although the purchaser may not be entitled to require any further evidence of the identity of the parcels than what is afforded by the deeds, yet he is entitled to have what he has bought distinguished, and without that it cannot be said by the vendor that he has proved by the instruments the parcels described in the particulars. It is very possible that a short affidavit might remove the difficulty." In Robinson v. Musgrove (2 Mood. & R. 92) there was a condition that "the plot of land marked A on the plan cannot be properly identified by the vendor by reason of the death of the party who sold to the grantor of the annuity; but it is fairly presumed that the purchaser, by inquiry in the vicinity, will be able to ascertain the true situation, and he is to accept this plot by the description contained in the conveyance deed of it." Objection was taken by the purchaser that the plot of land marked A on the plan could not be found anywhere. Held, that that circumstance entitled the purchaser to rescind the contract in toto. Identity is generally most easily established by comparison of plans. It not infrequently happens that the first abstracted deed will

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refer to the numbers on a plan, without annexing it to the deed or even defining it. I often proves to be the tithe plan, and an . inspection of it may clear up the identity. Whether a purchaser in such a case could insist upon having an extract from the tithe plan at the vendor's expense is doubtful. But if the parcels in the first abstracted deed refer to a specific plan, such as one upon a prior conveyance, and if they are described by reference to it, it is submitted that the purchaser is entitled, at the vendor's expense, to a copy of such plan, so far as material, as forming an integral portion of the abstract which the vendor is bound to deliver at his own expense: (see Re Johnson and Tustin, 53 L. T. Rep. 281; 30 Ch. Div. 42).

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WHEREAS by an indenture dated the 1906 and made between the company (which was duly incorporated under the Companies Acts 1862 to 1900 as a company limited by shares) of the one part and the Society Limited (hereinafter called "the said society ") of the other part after reciting that the company had determined to issue first mortgage debenture stock to be secured in manner thereinafter provided it was witnessed that the expressions following should have the meanings thereinafter mentioned that was to say "the trustees meant the said society or other the trustees or trustee for the time being of the said indenture and "the specifically mortgaged premises" meant the hereditaments specified in the second and third schedules thereto (which second schedule included the hereditaments hereby assured) and that the company thereby acknowledged that it was indebted to the trustees in the sum of La carrying interest at £4 per cent. per annum and that the company should forthwith cause or procure the freehold hereditaments specified in the said second schedule thereto to be assured to the trustees upon the trusts thereof free from incumbrances in manner following that was to say the freeholds specified in the first part of the said schedule (which included the hereditaments hereby assured) to be conveyed to the trustees in fee simple and that as regards the specifically mortgaged premises the trustees should have full power at the request and expense of the company to do or concur in doing all or any of the things following (that is to say) (1) to sell any parts or part of the specifically mortgaged premises by public auction or private contract (2) to execute all conveyances in relation to the specifically mortgaged premises and that the statutory power for appointing new trustees should apply to the indenture now being recited and be vested in the company but that a trustee so appointed must in the first place be approved by a resolution of stockholders passed in the manner therein specified.

AND WHEREAS by an indenture dated the

day of 1908 and made between E. F. of the first part the company of the second part I. J. of the third part and the said society of the fourth part the hereditaments hereby assured were (among other hereditaments) conveyed by the direction of the company unto and to the use of the said society in fee simple upon the trusts and subject to the powers and provisions contained in the said indenture of the day 1906 and subject to such equity of redemption as the company was entitled to by virtue thereof.

of

AND WHEREAS by an indenture dated the

day of 1911 and made between the company of the first part the said society (by its then name of the and Society Limited) of the second part and K. L. and M. N. of the third part after reciting that the said society was desirous of being discharged from the trusts of the said indenture of the day of 1906 and that the company were desirous of appointing the said K. L. and M. N. to be trustees of the same indenture in the place of the said society and that such appointment had been duly approved by resolution of the holders of the said debenture stock passed at a meeting held on the day of 1911 it was witnessed that the company thereby appointed the said K. L. and M. N. to be trustees of the said indenture of the day of 1906 in the place of the said society and the company thereby declared that the estate and interest of the said society in any land subject to the trusts of the said indenture of the day of 1906 and the

right to recover and to receive any debt or other thing in action so subject and capable of being vested by that declaration should vest in the said K. L. and M. N. upon the trusts and subject to the powers and provisions by and in the same indenture declared and contained concerning the same.

AND WHEREAS by an indenture dated the

day of

1914 and made between the said company of the first part the said K. L. and M. N. of the second part and the vendors of the third part after reciting that the said K. L. and M. N. were desirous of being discharged from the trusts of the said indenture of the day of 1906 and that the company were desirous of appointing the vendors to be trustees of the same indenture in the place of the said K. L. and M. N. and that the vendors had been approved as new trustees of the same indenture by a resolution of the holders of the said debenture stock duly passed on the day of 191 it was witnessed that the company thereby appointed the vendors to be trustees of the said indenture of the

day of 1906 in the place of the said K. L. and M. N. and the company thereby declared that the estate and interest of the said K. L. and M. N. in any land subject to the trusts of the said indenture of the day of 1906 and the right to recover and to receive any debts or other thing in action so subject and capable of being vested by that declaration should be vested in the vendors upon the trusts and with and subject to the powers and provisions by and in the same indenture declared and contained concerning the same.

AND WHEREAS the vendors as trustees of the said indenture of the day of 1906 at the request (hereby testified) of the company and in exercise of the power of sale contained in the said indenture and of every or any other power enabling them in this behalf have agreed with the purchaser for the sale to him for the sum of £ of the hereditaments hereby assured in fee simple in possession free from incumbrances.

NOW THIS INDENTURE WITNESSETH as follows:

1. In pursuance of the said agreement and in consideration of the sum of £ now paid by the purchaser to the vendors (the receipt whereof the vendors do hereby acknowledge) the vendors AS SUCH TRUSTEES as aforesaid at the request (hereby testified) of the company AS BENEFICIAL OWNERS do hereby convey and confirm unto the purchaser and his heirs ALL that &c. TO HOLD the same unto and to the use of the purchaser his heirs and assigns discharged from all the trusts powers and provisions of the said indenture of the day of 1906 and from all principal moneys and interest secured thereby and from all claims and demands thereunder.

2. The trustees hereby acknowledge the right of the purchaser to the production of the documents mentioned in the schedule hereto (the possession of which is retained by the trustees) and to delivery of copies thereof.

IN WITNESS &c.

[The Schedule above referred to.]

NOTES OF RECENT DECISIONS NOT YET REPORTED.

BY OUR REPORTERS IN THE SEVERAL COURTS.

HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Administration-Will-Legacies for Life-Annuities-Capital to fall into Residue-Estate deficient-Mode of Abatement.

The testator, C. N. R, whose will was dated in 1911 and duly proved on the 7th April 1913, after appointing executors and trustees and giving various pecuniary and other legacies which had priority, gave all the residue of his property upon trust, in the first place, to pay his debts, and upon trust as to eight sums, amounting in the aggregate to the sum of £10,500, to pay legacies divisible into two classes: (a) As to four of such sums, upon trust to pay the income to a named person during his or her life, and on death to pay the capital sum to named objects, including the incorporated L. M. Guild; (b) as to four other sums of £600, £800, £2500, and £1500, to pay the income to four persons respectively during their lives, and on their deaths " upon the trust hereinafter declared concerning the residue of my trust estate." All the residue of the testator's trust estate was given to three persons absolutely. The remainder of the testator's estate was not enough to satisfy these eight legacies, and the trustees' summons asked the question in what manner they should bear the deficiency of about £2000. For those whose legacies would fall into residue Arnold v. Arnold (2 My. & K. 365) was referred to, and on behalf of the residuary legatees it was said that those legacies were not annuities: (Croly v. Weld, 3 De G. M. & G. 993).

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