up the

mortgagees for value without notice were ordered to deliver title deeds: Re Cooper, Cooper v. Vesey, 51 L. J. Ch. 862.) As to constructive notice, see Conveyancing Act, 1882 (45 & 46 Vict. c. 39.)

278. State cases in which a purchaser would be responsible to see to the application of the purchase-money, and cases in which he would not be responsible, explaining in each case why the responsibility arises or why the purchaser is exempt from responsibility.

Owing to sect. 36 of the Conveyancing Act, 1881 (which is general and retrospective), and sect. 40 of the Settled Land Act, 1882, a purchaser from a trustee or trustees is in no case responsible to see to the application of the purchase-money. The reason is because such purchaser is indemnified by the provisions of the abovementioned Acts. The only exception is where the purchaser is cognisant of or party to a fraud being practised by the selling trustee.

In the case of executors, a purchaser from them is under no such responsibility, unless (1) the estate sold is to the purchaser's knowledge clothed with such a particular trust that the purchaser is in the position of an implied trustee to see to the application of the purchase-money; or (2) the purchaser is party to or cognisant of a fraud being perpetrated by the executors in selling; or (3) in any case where more than twenty years have elapsed since the testator's death, and the executors are attempting to exercise their implied power of sale for the alleged purpose of paying the debts of the deceased, and no debts are proved to the purchaser's satisfaction to be in existence. (See Tanqueray, Willaume and another to Landau, (C. A.) 51 L. J. Ch. 434.)

The only remaining cases that can arise (except in the case of purchases from mortgagees under statutory power of sale, as to which see sect. 22 of 44 & 45 Vict. c. 41) would be where the vendor is a beneficial devisee or legatee of freeholds, copyholds or leaseholds charged by the will with certain legacies or annuities, or the vendor of any such property (not acquired by will) charged with payment of any sum or sums by way of mortgage or otherwise; in all such cases the purchaser is responsible if he does not, as he ought, obtain a release of the property to be conveyed from the person or persons in whose favour the legacies, annuities, or other sum subsists.

The above question was asked in June, 1880, when the law on the subject was governed by the case of Elliott v. Merryman, 1 Wh. & Tud. L. C. Eq. 64; Haynes's Student's L. C. 271, as altered by 22 & 23 Vict. c. 35, and 23 & 24 Vict. c. 145, which latter statute is repealed by the Conveyancing Act, 1881, and the Settled Land Act, 1882. (For fuller information see H. A.

Smith's Equity, 293 et seq.)

279. Can the seller of goods which he has stolen under any, and, if any, what circumstances confer a good title upon a bonâ fide purchaser; and is there any, and, if any, what case in which the true owner may recover them from such bonâ fide purchaser? Refer to any statute on the subject.

Yes, he may make a valid sale if between sunrise and sunset in market overt to a bona fide purchaser who does not know that the goods are not the seller's property.

If they are stolen or obtained from the true owner by false and fraudulent pretences, and the offender is convicted, they re-vest in the owner on conviction, and the true owner may recover them from any person, even a purchaser for valuable consideration,

without notice who has them in his hands or under his control at the time they are demanded by the true owner. But persons who buy them bona fide in market overt, and sell them again before the conviction, even with notice that they were stolen, cannot be sued for the value of them. (Smith's Man. Com. Law, 8th ed., 219.) See also 7 & 8 Geo. IV. c. 29, s. 57; but the statute referred to in the question is probably the Larceny, &c., Act, 24 & 25 Vict. c. 96, s. 100, which gives the Court before whom the felon is tried power to award summarily a writ of restitution to the owner except under special circumstances. (See Haynes's Student's Statutes, 2nd. ed., 377, 378.)

280. Sale of specific goods by sample. What does such a sale imply? On delivery of the bulk it is found not to be equal to sample. What remedy has the purchaser? and what is the measure

of damages?

Such a sale implies a warranty on the part of the vendor that

the sample is a fair specimen of the bulk, and that the bulk shall reasonably correspond in nature and quality with the sample.

If the bulk is not found to reasonably correspond with the sample, the purchaser can (1) refuse to receive the bulk, or, having received it, he can decline to keep the bulk if he has done no more than give the goods a fair trial. If he has adopted the latter course the purchaser need only give the vendor notice that he rejects them for the above reason, and that the goods will henceforth remain on the purchaser's premises at the vendor's risk and disposition, and that the purchaser abnegates all liability and responsibility in respect of the bulk, or to that effect. Then the purchaser is not bound to return the bulk or offer to do so. (Grimoldby v. Wells, 44 L. J. C. P. 203; L. R. 10 C. P. 391; and see Heilbutt v. Hickson, 42 L. J. C. P. 59; L. R. 8 C. P. 131); or (2) the purchaser can receive the bulk and either set up the breach of the above implied warranty in mitigation of the plaintiff's claim for the price, or, if he has paid the vendor the price, he can sue him by an independent action for the damages for breach of the implied warranty. If he adopts this course the purchaser need not give the vendor notice of the breach of warranty nor offer to return the goods, although it is always advisable to do so, because the purchaser, by giving the notice or making the offer above mentioned, prevents any possible presumption being raised, by his neglect to do so, that the goods had not the defect complained of at the time of sale. In an action for breach of warranty the measure of damages is the difference between the contract price and the sum proved to be the true market value of the bulk. The true market value is usually shown by proving the price obtained on a resale by the purchaser within a reasonable time. If there is no difference in the contract and market prices, or the purchaser made a profit on the resale, he is entitled to nominal damages on proving the breach. (Chitty on Contracts, 10th ed., 414, 419, 420, 425.)

281. Contract for sale of a parcel of starch (weight unascertained) at, say, £5 per cwt. The seller directed his warehouseman to weigh and deliver it. Part is weighed and delivered, and then the buyer becomes bankrupt. Seller stops the weighing and delivery of the remainder, whereupon buyer's trustee in bankruptcy brings an action

R

of trover for the undelivered portion. Can such an action be maintained? Give reasons for your answer.

Assuming that all the purchase money had not been paid or tendered by either the purchaser or his trustee at the time of the seller stopping the weighing and delivery of the goods, the seller was within his rights in so acting, and is not now bound to weigh and deliver any further goods to the trustee without payment of the price of the starch already weighed and delivered, together with the price of the starch to be weighed and delivered by the vendor in order to complete his part of the contract. (Re Phoenix Steel Co., Ex parte Carnforth Iron Co., 46 L. J. Ch. 115; L. R. 4 Ch. 108. Baldwin's Bankruptcy, 60.)

Upon the same assumption, the trustee cannot bring an action of trover, for such an action requires the right to present possession to support it. (Bloxam v. Sanders, 4 B. & C. 941; Bradley v. Copley, 1 C. B. 685; 14 L. J. C. P. 222; Gordon v. Harper, 7 Term Rep. 9.) And the right to the present possession the trustee cannot have until he has paid or tendered the price, as above stated, and thus determined the vendor's lien. (Lord v. Price, 43 L. J. Exch. 49.) If the vendor has been fully paid, the trustee's only remedy will be an action for damages for breach of contract against the seller.

WILLS.

282. What were the principal changes in the law relating to wills effected by the Wills Act, 1 Vict. c. 26 ?

(1.) As to execution and attestation.

Prior to 32 Hen. VIII. c. 1, a will of personal property was good though not in writing, such a will being called nuncupative, and if it was in writing it did not require to be signed or attested, nor need it even be in the testator's handwriting. It was necessary that he should publish it, that is, declare it to be his will, and that was all. Such continued to be the law as to personal property until the Wills Act, with the exception of some provisions in the Statute of Frauds, which placed nuncupative wills under certain severe restrictions. 32 Hen. VIII. and 34 Hen.

VIII. required a will of realty to be in writing, but there were no provisions about signature or attestation. The Statute of Frauds, however, required a will of realty to be in writing, signed by the testator or some other person in his presence and by his direction, and attested in his presence by at least three competent witnesses. But a person who got a legacy, and a creditor where there was a charge of debts or legacies on real property, were held not to be credible, and a will attested by such was invalid, until it was provided by a statute of Geo. II. that creditors should be competent witnesses and that legatees should be so too, but that the latter should not obtain their legacy; but this Act did not extend to a gift to the wife or husband of a witness, and a gift to either of them still rendered the will void. The Wills Act now provides (and it applies to testaments of every description of property, placing them all on the same footing) that no will shall be valid (with the exception of nuncupative wills of personal estate made by sailors at sea and soldiers on active service) unless in writing, and signed at the foot or end thereof by the testator or by some other person in his presence and by his direction (the Statute of Frauds allowed the signature to be anywhere), and unless such signature shall be made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time (the Statute of Frauds required them to sign in the testator's presence, but was content if they themselves signed at different times), and unless such witnesses attest or subscribe the will in his presence. The Wills Act also provides that the incompetency of any attesting witness shall not invalidate the instrument, but that any beneficial gift to an attesting witness or to the husband or wife of one (except a charge for the payment of debts, when, if one of the witnesses is a creditor, or the husband or wife of a creditor, he or she can take the benefit of such charge) shall be void, and the evidence of the witness admissible; and, lastly, that an executor can be a witness.

(2.) As to revocation.

(a.) Under the Statute of Frauds any new modification of interest achieved a revocation; but by the Wills Act a will does not become invalid by any alteration of circumstances, except

(b.) By marriage. In this respect the former law has been changed, for the Statute of Frauds, though it allowed a revocation