given as to how the gate had been opened. The County Court judge before whom the case was heard in the first instance held that there was evidence of negligence and gave judgment for the plaintiff. On appeal to the Divisional Court, the learned judges in that court, Justices Phillimore and Horridge, differed in opinion, and the judgment for the plaintiff was allowed to stand. The defendant appealed to the Court of Appeal, where Lords Justices Buckley and Kennedy, Lord Justice Vaughan Williams dissenting, held, agreeing with "Mr. Justice Phillimore, that there was no evidence of negligence on the part of the defendant.

We cannot rest satisfied with this decision. Let us suppose that Blackacre, occupied by A., and Whiteacre, occupied by B., are adjoining closes, and that Whiteacre is subject to a public highway where it adjoins Blackacre. If a stranger should dig a trench across the highway, no one disputes that he would be liable to B. in an action of trespass. If X., a member of the public lawfully using the highway, falls into the trench and is injured, the stranger is liable to X. in an action on the case: this law is as old as the Year Book 27 Hen, 8, f. 27, pl. 10. If, instead of a stranger, A. were to dig the trench, he would be liable to B. in trespass and to X, in an action on the case. Let us take a step further: A.'s rights in Blackacre are modified by the rights of persons having rights over Whiteacre. He must not use Blackacre so as to cause an obstruction to those rights: (Barnes v. Ward, 1850, 9 C. B. 392; Hadley v. Taylor, 13 L. T. Rep. 368; L. Rep. 1 C. P. 53). In other words, he owes some duty towards persons who have rights over the highway. If instead of digging a trench across it, he allows his cattle to stray upon it so as to be a nuisance and obstruction to it, has he not committed a breach of this duty? We think he has; and X., who is thrown down and trodden upon by the cattle, has a cause of action against A. in an action on the case none the less because B. has also a cause of action against him in an action of trespass. If so, Ellis v. Banyard (ubi sup.) was wrongly decided.

This brings us to the last case on the subject. In Jones v. Lee (106 L. T. Rep. 123) a young horse, which the defendant had placed in a field, escaped on to the highway owing to a defective hedge. The plaintiffs, who were riding a tandem bicycle along the highway, slowed down, but the horse turned round suddenly, and, running across the road, came in contact with the bicycle and one of the plaintiffs. The County Court judge held that the defendant was negligent in turning the horse into a field with defective hedges, but that the injury to the plaintiffs was not the direct result of the negligence. On appeal to the Divisional Court, Justices Hamilton and Bankes affirmed this judgment. We doubt whether this decision was right. We think the injury was a very direct result of the negligence. But Mr. Justice Bankes held further that there was no evidence of negligence, since "at common law the owner or occupier of land has no duty to keep his animals off the highway." With all respect, we think that this decision cannot be supported. The highway was originally dedicated by one or both of two adjoining owners; if by one, then he must after dedication regard the rights which he has created, while as to the other the duties which he formerly owed to his neighbour are now shared by his neighbour and the public and he must regard the rights thus created. It follows that each adjoining owner owes duties to passengers, and what applies to them applies to those who derive title under them. It follows that at common law the owner or occupier of land is under some duty to keep his animals off an adjoining highway. W. H. G.

CALCULATIONS IN RESPECT OF CONSTRUCTIVE TOTAL LOSS.

THE subject of constructive total loss is one which is constantly before the courts, and, although it has been defined and dealt with in the Marine Insurance Act 1906, the peculiarity and complexity of the subject renders it always a difficult topic to deal with. Evidence in the case of an actual total loss is usually of an uncompromising character, and such cases are easily dealt with; but in the case of constructive total loss where theoretical con

siderations arise the principles from time to time laid down by common law and statute require the most careful application. The definition given in sect. 60 of the Marine Insurance Act 1906 is as follows: "(1) Subject to any express provision in the policy, there is a constructive total loss where the subject-matter insured is reasonably abandoned on account of its actual total. loss appearing to be unavoidable, or because it could not be preserved from actual total loss without an expenditure which would exceed its value when the expenditure had been incurred. (2) In particular, there is a constructive total loss, (i.) where the assured is deprived of the possession of his ship or goods by a peril insured against and (a) it is unlikely that he can recover the ship or goods, as the case may be, or (b) the cost of recovering the ship or goods, as the case may be, would exceed their value when recovered; or (ii.) in the case of damage to a ship, where she is so damaged by a peril insured against, that the cost of repairing the damage would exceed the value of the ship when repaired. In estimating the cost of repairs, no deduction is to be made in respect of general average contributions to those repairs payable by other interests, but account is to be taken of the expense of future salvage operations and of any future general average contributions to which the ship would be liable if repaired. (iii.) In case of damage to goods, where the cost of repairing the damage and forwarding the goods to their destination would exceed their value on arrival.”

It will thus be seen that the main effect of these provisions is that there is a constructive total loss where it would cost the owner of the property a sum in excess of its value if he preserved it; or, as Mr. McArthur, the well-known authority on this branch of the law, stated in his book on the subject (2nd edit., p. 146), "When the subject insured, though existing in specie, is justifiably abandoned, on account of its destruction being highly probable, or because it cannot be preserved from actual total loss unless at a cost greater than its value would be if such expenditure were incurred."

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Such being the principle, the question always arising in such cases is whether under the circumstances the assured is entitled to treat the loss as a constructive total loss. For many years the test laid down was that the assured must do what a 'prudent uninsured owner" would do under like circumstances, but it is safe to say that this test after many years has gradually ceased to be of much importance, and the place of the "prudent uninsured owner knows him no more, having been taken by that favourite of the law "the reasonable and prudent man."

Between 1903 and 1908 a curious impasse occurred with regard to the principle which should guide the assured in making the necessary calculation which would enable him to decide whether there had been a constructive total loss or not. The difficulty arose on the question whether he was entitled, in making his calculation, to add the value of the wreck to the estimated cost of the repairs. The importance of this question may be measured by an illustration, and an apt illustration is given by the editors of Arnould on Marine Insurance (8th edit., sect. 1124): Suppose the value of the vessel in her damaged condition to be £2000, the cost of repairing her £10,000, and the repaired value £11,000, is the figure with which this £11,000 is to be compared £10,000, or is it £12,000 ? In the former case there is no constructive total loss, in the latter there is."

At the time when the Marine Insurance Act 1906 became law, the leading case on the subject, on which the particular section (60) in the Act was presumably based, was Angel v. Merchants' Marine Insurance Company (88 L. T. Rep. 717; (1903) 1 K. B. 811), That case decided that in determining whether there was a constructive total loss of the ship, the shipowner was not entitled to add the value of the wreck to the cost of repair. In 1906 the Marine Insurance Act by sect. 60, sub-sect. 2 (sup.) enacted specifically that when the cost of repairing the damage would exceed the value of the ship when repaired there was a constructive total loss, and there was no mention of the value of the wreck being taken into consideration. In 1908 the case of Macbeth v. Maritime Insurance Company (98 L. T. Rep. 594; (1908) A. C. 144) came before the House of Lords, and it was decided that in determining the question whether a ship seriously damaged by perils insured against can

be treated as a constructive total loss, the test is whether a prudent uninsured owner would repair her having regard to all the circumstances, and that in making the necessary calculation the assured was entitled to add the break-up value of the ship to the estimated cost of repairs. It will thus be seen that Angel v. Merchants' Marine Insurance Company (sup.) was overruled, but, as the incidents on which the case was based occurred before the passing of the Marine Insurance Act 1906, that statute was not taken into consideration, and the matter was dealt with on a purely common law basis.

The whole matter was, however, reopened in the case of Hall v. Hayman (106 L. T. Rep. 142). From the facts of this case it appears that there was a constructive total loss if the value of the wreck might be added to the estimated cost of repairs, and it was suggested by the assured that, as the Act was silent on the point, there would be no inconsistency in applying the common law rule as laid down in Macbeth v. Maritime Insurance Company (sup.). It was pointed out on behalf of the defendants that the common law rule laid down in Macbeth v. Maritime Insurance Company (sup.) did not apply because sect. 91 (2) of the Act provided that the common law rules only applied where they were consistent with the express provisions of the Act, and attention was called to the fact that Lord Herschell in Vagliano v. Bank of England (61 L. T. Rep. 419; (1891) A. C. 107, at pp. 144, 145) stated that in such cases it was necessary to examine the language of the statute and to ask what was its natural meaning uninfluenced by any considerations derived from the previous state of the law. If, therefore, there was nothing ambiguous in the section of the Act, and its provisions were inconsistent with Macbeth v. Maritime Insurance Company (sup.), the statutory provisions must prevail, and therefore the value of the wreck could not be taken into consideration. Mr. Justice Bray decided that the value of the wreck could not be taken into consideration. He considered that the meaning of the section was plain and inconsistent with the common law. The learned judge suggested that if shipowners and underwriters desired to do so, they could exclude the effect of sect. 60 when they came to draw up their policies.

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Somewhat different considerations arise in cases of constructive total loss of goods as there are many ways in which the destruction of the contemplated venture may occur. Constructive total loss of freight is, perhaps, the most difficult branch of the whole subject, and it cannot be dealt with within the scope of this article. It was originally intended by the framers of the Marine Insurance Act 1906 to deal with it specifically in a section of the Act, but the difficulty of doing so was such that the idea was abandoned, and the provisions of sect. 60, so far as they go, govern the matter.

COMMENTS ON CASES.

Extension of “Industrial Diseases.”

THE decision of the Court of Appeal in the recent case of Martin v. Mayor, &c., of Manchester, (132 L. T. Jour. 574)—a decision that was unavoidable by reason of what had been held in earlier cases-draws, attention to the expediency of enlarging somewhat the scope of the third schedule to the Workmen's Compensation Act 1906 (6 Edw. 7, c. 58). That schedule, compiled as it is in order to meet the provisions concerning “industrial diseases" which are contained in sect. 8 of the Act, contains a list of such diseases, due to the nature of a workman's employment. He is entitled to compensation—or, in the event of his death, his dependants-as if the disease were a personal injury by accident arising out of and in the course of that employment. The schedule does not purport to furnish a complete and exhaustive list, a Secretary of State having power to make orders extending the provisions of the section to other diseases and other processes. But unless a disease appears in the list as so extended it is not an "industrial disease." Nevertheless, by sub-sect. 10 of the section, the same does not affect the rights of a workman to recover compensation in respect of a disease to which the section does not apply, if the disease is a personal injury by accident

within the meaning of the Act. In Martin's case (ubi sup.) the applicant was employed as a porter, and resided at a fever hospital. His duties took him into the fever wards and he had to clean the mortuary. He had an attack of influenza and was away from his work for a time. Shortly after his return to work, he was found to be suffering from scarlet fever. He was in hospital for twenty-one weeks; his heart was affected; and he suffered from nephritis as a result of his illness. The learned County Court judge decided that the applicant was entitled to compensation. But the court of Appeal reversed his decision on the ground that there was no evidence to support the finding that there had been any injury by accident arising out of and in the course of the workman's employment. In Broderick v. London County Council (99 L. T Rep. 569; (1908) 2 K. B. 807), followed in Eke v. Hart-Dyke (103 L. T. Rep. 174; (1910) 2 K. B. 677), a principle was laid down by the Court of Appeal which applied exactly to the present case. The workman was unable to maintain his claim to compensation solely because he could not satisfy the court that there was a particular time and place in which an accident occurred that occasioned his disease. The practical impossibility, however, of ever being able to show precisely that a disease contracted as in Broderick's case (ubi sup.), or in Martin's case (ubi sup.), comeз within the principle enunciated by the Court of Appeal renders it worthy of consideration whether an amendment of the Act is not desirable. This appears to be the first case raising the question of the liability of hospital authorities to compensate a member of their staff of "workmen " who has contracted a disease. Doubtless, serious consequences, as the Master of the Rolls pointed out, would result from such liability being made indisputable. But why a workman who breaks his leg should be in a better position as regards obtaining compensation than one who contracts enteritis, as in Broderick's case (ubi sup.), or scarlet fever, as in Martin's case (ubi sup.), is by no means readily apparent.

THE CONVEYANCER.

What is a Settlement of Land within the Meaning of the Settled Land Acts 1882 to 1890 ?

DEFINITIONS are notoriously dangerous, and even the careful and elaborate provisions of sect. 2 of the Settled Land Act 1882 do not seem to have made the answer to the above question quite clear. To put it shortly, a settlement of land is an instrument or any number of instruments, whether made before or after or partly before and partly after the commencement of the Act, under or by virtue of which any land, or any interest therein, stands for the time being limited to or in trust for persons in succession. But sub-sect. 4 of sect. 2 of the Act enacts that "the determination of the question whether land is settled land for the purposes of this Act, or not, is governed by the state of facts and the limitations of the settlement at the time of the settlement taking effect." It may be taken as settled that the time of the settlement taking effect means the date of the settlement. As pointed out by Lord Justice Stirling (then Mr. Justice Stirling) in Re Marquis of Ailesbury and Lord Iveagh (69 L. T. Rep. 101; (1892) 2 Ch. 345), it was held by the Court of Appeal in Re Birtles' Settled Estates (11 W. R. 739) (decided in 1863) that in determining the question whether or not an estate was to be treated as settled for the purposes of the Settled Estates Act of 1856, regard must be paid to the state of facts existing at the time when the provisions of the Act were sought to be put in operation, and not to that which existed at the date of the settlement. This led to the passing in 1864 of an enactment substantially identical with sub-sect. 4, and that enactment was repeated in the Settled Estates Act of 1877, s. 2. The Settled Land Act 1882 contained analogous enactments, expressed in almost identical language, and it seemed right to attribute to the Legislature a like intention with respect to powers under that Act, unless there was discovered something in the nature of the provisions of the Act to prevent such a conclusion being arrived at. Those views were followed by the Irish court in Re the

Bective Estate (27 L. Rep. Ir. 364). But according to Re Child's Settlement (97 L. T. Rep. 80; (1907) 2 Ch. 348) it is not necessary that there should be any land included in the settlement at the date of it. In that case certain mortgage debts and sums of money were settled on a lady for life, and after her death for her children; and the settlement contained power for the trustees to invest the trust funds in the purchase of land to be held by them upon trust for sale, and until sale to apply the rents in accordance with the trusts of the personal property. The trustees invested part of the trust funds in the purchase of lands which were conveyed to them upon the trusts of the settlement. The tenant for life desired to be recouped out of capital moneys for expenses incurred in improving part of the land so purchased, and the question was raised whether the settlement came within the provisions of the Settled Land Act 1882. And it was held by Mr. Justice Kekewich that, although it was not in its inception a settlement of land, it was nevertheless a settlement within sect. 63 of the Act, and that the lady must be deemed to be tenant for life within the meaning of the Act. It is noticeable that, according to the report of that case, sub-sect. 4 of sect. 2 of the Act was not cited, or referred to in the judgment. In that case the settlement contained a power to invest in the purchase of land; therefore, in a sense, the purchased land was limited by way of succession under or by virtue of the settlement. Sect. 9 of the Conveyancing Act 1911 has a bearing on this point. That section provides that where any property vested in trustees by way of security becomes by virtue of the Statutes of Limitations or of an order of foreclosure or otherwise discharged from the right of redemption, it shall be held by them in trust for sale, with power to postpone such sale for such a period as they may think proper. This seems to make the principle of Re Child's Settlement apply to every case in which the trustee of a settlement has either foreclosed, or barred the equity of redemption of land by virtue of the Statutes of Limitation. Sect. 10 of the Conveyancing Act 1911 implies a trust for sale in every settlement within the meaning of sect. 63, or other settlement of property as personal estate, containing any power to invest money in the purchase of land, unless the settlement otherwise provides; so that the principle of Re Child's Settlement seems now to apply to all settlements of land (other than strict settlements) containing power to purchase land, unless the settlement precludes a sale. Accordingly, in dealing with tenants for life, practitioners must now be careful to see that the settlement does not fall within sect. 63 of the Settled Land Act 1882.

Costs on Originating Summons.

THE recent decision of Mr. Justice Eve in Re Halston; Ewen v. Halston (ante, p. 296; (1912) 1 Ch. 435) serves to remind practitioners that they must not lightly assume that because an originating summons is issued by trustees therefore unsuccessful defendants will necessarily be allowed their costs. It is true that when a summons is taken out by trustees to guide and assist them in the administration of an estate or trust the costs of all parties are generally allowed out of the estate or trust fund. In Re Halston the summons was issued by the legal personal representatives of the testator to decide who was.entitled to the testator's freehold property under a devise to a man by a wrong name. Two out of the three co-heiresses-at-law of the testator who were interested in contending for an intestacy conceded the right of the defendant, who claimed as the person referred to in the will by a wrong name, but the remaining co-heiress contested the point, and it was held that she must pay the costs of the successful defendant. The judge, following Re Buckton (97 L. T. Rep. 332; (1907) 2 Ch. 406), held, no doubt rightly, that it was really adverse litigation, and that the unsuccessful defendant ought to pay the costs. In Re Buckton the costs of all parties were allowed out of the estate, but Mr. Justice Kekewich considered that the claim of a devisee, who was at least a tenant for life, to be a tenant in tail was very like hostile litigation. In that case the summons was not taken out by the trustees, but by the claimant. It differed from Re Halston, because in Re Buckton the question was simply one of construction of the will. It is submitted, however, that if trustees take out an originating summons to determine a question of construction, merely the costs will, as a rule, be allowed out of the estate.

Fourth Sheet.

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MISCELLANEOUS PRECEDENTS (continued). Limitations of Land by Will in strict Settlement where the Entail is continued in the Female Line.

WITH remainder to the use of all my great-grandsons and greatgranddaughters (children of sons born during my lifetime of the said A. B.) severally and successively in remainder one after the other in tail general so that the children of every elder such son of the said A. B. shall be preferred to the children of every younger such son and so that amongst the children of each such son a brother or brothers shall take and if more than one successively in order of seniority in priority over a sister or sisters and sisters shall as between themselves take successively in order of seniority with remainder to the use of all the sons born after my death of the said A. B. severally and successively in remainder one after the other in tail with remainder to the use of the first and other daughters of the said A. B. born in my lifetime severally and successively one after the other according to seniority during their respective lives without impeachment of waste with an immediate remainder after the death of each such granddaughter of mine to the use of all her sons and daughters severally and successively in remainder one after the other in tail and so that every son shall be preferred to every daughter and every elder son shall be preferred to every younger son and every elder daughter to every younger daughter with remainder after the death of all such daughters of the said A. B. and the default or failure of their issue to the use of all the daughters of the said A. B. born after my death severally and successively in remainder one after the other according to seniority in tail with remainder to the use that the sons grandsons daughters and granddaughters of the said A. B. and of every son of mine hereafter born shall take estates similar to and with the same order and priority as those herein before limited to the use of the sons grandsons daughters and granddaughters of the said A. B. in remainder after the default or failure of issue male of all my sons but so that the sons grandsons daughters and granddaughters of an elder son of mine shall always be preferred to the sons grandsons daughters and granddaughters of a younger son of mine in the same manner as if the uses herein before limited to or in favour of the sons grandsons daughters and granddaughters of the said A. B. in remainder as aforesaid were repeated with the substitution of the name of each of my sons in succession according to seniority for the name of the said A. B. with remainder to the use of my daughter C. D. during her life without impeachment of waste with remainder to the use of her first and other sons born in my lifetime severally and successively according to seniority during their respective lives without impeachment of waste with an immediate remainder after the death of each such grandson of mine to the use of all his sons and daughters severally and successively in remainder one after the other in tail and so that every son shall be preferred to every daughter and every elder son be preferred to every younger son and every elder daughter to every younger daughter and after the death of all such sons of the said C. D. and the default or failure of their issue to the use of all the sons of the said C. D. born after my death severally and successively in remainder one after the other according to seniority in tail with remainder to all the daughters of the said C. D. born during my lifetime severally and successively according to seniority during their respective lives without impeachment of waste with an immediate remainder after the death of each such granddaughter of mine to the use of all her sons and daughters severally and successively in remainder one after the other in tail and so that every son shall be preferred to every daughter and every elder son be preferred to every younger son and every elder daughter to every younger daughter and after the death of all such daughters of the said C. D. and the default or failure of their issue to the use of all the daughters of the said C. D. born after my death severally and successively in remainder one after the other according to seniority in tail with remainder to the use that my daughters E. F. and G. H. and every daughter of mine hereafter born and the sons grandsons daughters and granddaughters of my said daughters E. F. and G. H. respectively and of every such other daughter of mine as aforesaid shall take estates similar to and with the same order and priority as the estates hereinbefore limited to the use of my said daughter C. D. and her sons grandsons daughters and granddaughters respectively but so that an elder daughter of mine and her sons grandsons daughters and granddaughters shall always be preferred to a younger daughter of mine and her sons grandsons daughters or granddaughters in the same manner as if the uses hereinbefore limited to or in favour of my said daughter C. D. and her sons grandsons daughters and granddaughters were repeated with the substitution of the name of each of my daughters in succession according to seniority for the name of the said C. D. with remainder to the use that all my sisters and their respective issue (including the issue of my deceased

sister I. J.) shall take estates similar to and with the same order and priority as those hereinbefore limited to the use of my daughters and their respective issue in the same manner in all respects as if the uses hereinbefore limited to or in favour of my daughters and their respective issue were repeated with the necessary verbal alterations and the substitution of each of my sisters in succession according to seniority for my daughters respectively and as if the said I. J. had survived me but died immediately afterwards with remainder to my own right heirs in fee simple.

Power in a strict Settlement for a Tenant for Life to charge Portions by Way of Rentcharges.

PROVIDED ALWAYS and it is hereby agreed and declared that it shall be lawful for the said A. B. either before or after he shall become entitled to the possession or receipt of the rents and profits of the hereditaments hereby settled but subject and without prejudice to the uses estates and powers preceding or overriding the estate of the said A. B. and to the uses or estates limited or created in exercise of such powers at any time either before or after his marriage by deed revocable or irrevocable or by will or codicil to appoint to each or any of his younger children for their respective lives (meaning thereby any child or children other than any son or sons who before his or their respectively attaining the age of twenty-one years shall become entitled whether in possession or remainder to the hereditaments hereby settled for the first estate in tail male) a rentcharge or rentcharges not exceeding in the different events hereinafter specified the different aggregate annual sums hereinafter mentioned that is to say if there should be but one such younger child the annual sum of £75 and if there shall be two or more such younger children the annual sum of £150 [and so on] such rentcharge or rentcharges to be charged on the hereditaments hereby settled and to be an interest vested in such younger child or children or such one or more of them exclusively of the other or others of them at such age or time or respective ages or times and upon such conditions and with such restrictions and in such manner and if more than one in such proportions and with such gifts over in favour of other younger children and to be payable without any deduction therefrom and at such times and in such manner as the said A. B. shall direct and so that in case any such younger child shall attain a vested interest in any such annual sum before attaining the age of twenty-one years the moneys payable in respect of such interest of such younger child shall until he or she shall attain the age of twenty-one years be paid to his or her guardian or guardians for or towards his or her maintenance education or benefit.

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NOTES OF RECENT DECISIONS NOT YET REPORTED.

BY OUR REPORTERS IN THE SEVERAL Courts.

COURT OF APPEAL.

Sale of Goods-Goods delivered on Approbation-Contract of " Sale or Return"-Sale-Title of Purchaser-Passing of Property in Goods-Sale of Goods Act 1893 (56 & 57 Vict. c. 71), 88. 18, 7.4, 25.

In 1908 the plaintiffs, who were shipping merchants, received from a firm abroad a parcel of precious stones to be placed on view at a certain exhibition. The owners instructed the plaintiffs to sell the stones if not less than the sum of £750 could be obtained for them; but otherwise the same were to be returned to the owners. While at the exhibition the stones were not sold and therefore were restored to the plaintiffs. Shortly afterwards the plaintiffs were prevailed upon to allow B., who was a jeweller, to have the stones on approbation. B. offered £300 for the stones, but declined to give £750 for them. That offer was communicated to the owners, B. retaining the stones pending the receipt of the owners' instructions concerning them. B.'s offer was refused by the owners, but before their instructions were received B. had sold the stones to the defendants for the sum of £300, who acted bonâ fide in the transaction. Nevertheless he continued for some while to write to the plaintiffs as if he still held the stones, suggesting various terms for their purchase. In June 1909 the plaintiffs demanded an immediate return of the stones and then for the first time discovered that B. had parted with them. Thereupon the plaintiffs brought an action against B. for £750, or, alternatively, for the return of the stones and damages. Ultimately judgment for £750 and costs against B. was consented to. Subsequently B. was adjudicated bankrupt and nothing was recovered by the plaintiffs from him. The plaintiffs consequently brought an action against the defendants to recover possession of the stones or damages for their detention.

The defence was that B. as owner of the stones was in the position to pass the property in them, or that, being in possession thereof by the plaintiffs' consent, he could give a good title thereto in accordance with sect. 25 of the Sale of Goods Act 1893; or that he was a "mercantile agent within the meaning of the Factors Act 1889. It was decided by Phillimore, J., first, that there was no outstanding offer from the plaintiffs which B. could accept after he had refused to pay the sum of £750 for the stones, and that therefore the contract of sale or return was ended ; and. secondly, that the plaintiffs were debarred from recovering in their action against the defendants by reason of the form of procedure in their action against B., the judgment consented to by them not being an ordinary judgment in detinue, but one that effected a legal transfer of the stones to B. The plaintiffs appealed.

Held, that, whether or not the contract of sale or return was put an end to, the decision of Phillimore, J. was right that as between the plaintiffs and B. the judgment by consent in their action against him amounted to an affirmance of his property in the goods; and that therefore the plaintiffs' subsequent action against the defendants was not maintainable. Brinsmead v. Harrison (24 L. T. Rep. 798; L. Rep. 6 C. P. 584; 27 L. T. Rep. 99; L. Rep. 7 C.P.547) distinguished. Appeal dismissed. [Bradley and Cohn Limited v. Ramsay and Co. Ct. of App.: Cozens-Hardy, M.R., Buckley and Kennedy, L.JJ. April 23 and 24.-Counsel for the appellants, Montague Shearman, K.C. and Colam; for the respondents, Rawlinson, K.C., Morten, K.C., and Harry Dobb. Solicitors: for the appellants, Herbert Oppenheimer; for the respondents, Routh, Stacey, and Castle.] HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Conflict of Laws-Discharge in English Bankruptcy-Italian Contract to pay original Debt-Consideration-Causa-Bankruptcy Act 1883 (46 & 47 Vict. c. 52), s. 30 (3).

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In 1897 the testator B., an Italian subject, but resident in England, was indebted to M., an Italian subject domiciled in Italy, in the sum of £1350. On the 30th Aug. of that year B. was adjudicated bankrupt under the English law, M. having no notice thereof and consequently not proving for his debt. In 1901 B. received his discharge in the bankruptcy. In 1902 and 1904 B. paid M. £250 or thereabouts off the debt, and on the 15th Oct. 1906 signed in Italy a document, valid by Italian law, in favour of M. by which the amount of his indebtedness to M. was stated to be 43,959 lire (equal to about £1760), and which sum he agreed to pay by instalments in five years with interest at the rate of 4 per cent. on the unpaid balances. An order for the administration of the testator's estate having been made by the court, M. claimed payment of this sum, but the master refused in his certificate to allow the claim, and a summons was taken out by M. asking that the master's certificate might be varied by allowance of the claim. It was contended on behalf of M. that, although B.'s original debt was discharged by his bankruptcy, the document of the 15th Oct. 1906 was a new and valid obligation upon which M. could obtain judgment in Italy and could sue in this country upon that contract. On the other side it was urged that there was no consideration for this contract, and, being nudum pactum by English law, the claim should not be allowed.

upon

Held, that, assuming the new contract was valid which M. could obtain judgment in Italy, it was one in respect of the original debt which had been discharged by B.'s bankruptcy, and the claim must be disallowed.

[Re Bonacina (deceased); Le Brasseur v. Bonacina and others. Ch. Div.: Eve, J. April 16 and May 1.-Counsel: Clayton, K.C., and Maugham; P. O. Lawrence, K.C. and Greenland. Solicitors: White and Leonard; Le Brasseur and Oakley]. Contract-Memorandum-Purchaser's Name written by third Person -Statute of Frauds (29 Car. 2, c. 3), s. 4-Misrepresentation.

The plaintiff was the owner of nineteen leasehold houses situate at H., and on the 12th Dec. 1911 agreed to sell them to the defendant, and at the same time one S., the plaintiff's son-in-law, who was present at the negotiations, wrote down the following memorandum at the defendant's dictation : "12th Dec. 1911.-Mrs. Mary Bradford Brooks [the plaintiff] agrees to sell to Mr. Moses Sampson Billingham [the defendant], of 158, Hamilton-road, Handsworth, nineteen houses situated in Brewery and Brierley-streets, Handsworth, for the sum of thirteen hundred pounds (£1300).-Deposit of ten pounds to confirm the purchase settlement to be made early in January 1912. Received December 12, 1911.-(1d. stamp). £10.-M. B. BROOKS." The defendant later refused to complete the purchase and relied (1) on sect. 4 of the Statute of Frauds(29 Car. 2, c. 3); (2) on misrepresentation by the plaintiff in asserting to him that the rent collection was a good one. It appeared that the houses in question were inhabited by a very poor class of tenant, and, of the amount of rent due from

the tenants during the preceding twelve months, 20 per cent. to 25 per cent, could not be recovered.

Held, (1), following Sims v. Landray (70 L. T. Rep. 530; (1894) 2 Ch. 318), that the memorandum of the 12th Dec. 1911 was sufficient to satisfy sect. 4 of the Statute of Frauds; (2) that the misrepresentation was a representation of opinion and not sufficient to excuse the defendant from the contract. Specific performance decreed.

[Brooks v. Billingham. Ch. Div.: Neville, J. April 29.Counsel: Peterson, K.C. and C. Gurdon; Jenkins, K.C. and E. P. Hewitt. Solicitors: Webster and Webster, for Waterhouse and Son, Wolverhampton; Stow, Preston, and Lyttelton, for Pointon and Evershed, Birmingham.]

Husband and Wife-Petition for Divorce-Arrangement to dismiss -Covenant-Sum paid to Trustees--Contingent Forfeiture by Co-respondent Given Radius-Restraint of Trade and Liberty— Public Policy-Injunction as well as Fund.

By deed dated the 1st May 1911 between the defendant of the first part, the plaintiff of the second part, the plaintiff's wife of the third part, and the defendant trustees of the fourth part, after reciting the filing by the plaintiff of a petition for dissolution of his marriage on the ground of his wife's adultery with the first defendant, that it had been agreed to dismiss the petition, and that further proceedings in respect of the adultery should not be taken in consideration of the defendant's covenant thereinafter contained, and that the defendant had paid £3000 to the trustees, it was witnessed that the defendant covenanted that he would not during fifteen years come within a radius of ten miles of the residence of the plaintiff and his wife on any pretext whatsoever without their written consent, provided that the consent should not be necessary in the case of the plaintiff and his wife absenting from their residence for any continuous period exceeding fourteen days. The trustees were to invest the £3000 paid to them by the defendant upon specified securities and pay the income from the investments to the defendant unless and until he should commit a breach of his covenant, and from such breach should hold the trust premises for the plaintiff, or, if he should be dead, for his wife, and, if there should be no breach, then at the end of the fifteen years or the deaths of the parties upon trust for the defendant, his executors, administrators, and assigns. The divorce petition was dismissed on the plaintiff's application. Breach of his covenant by coming within the ten miles radius was admitted by the defendant. The plaintiff by his action claimed an injunction restraining the defendant from committing a breach of his covenant in the deed of May 1911, and payment or transfer by the trustees of the £3000 or the securities and income representing the same.

Held, that the £3000 was not damages in respect of a past wrong, but a sum the defendants' loss of which depended entirely upon his future conduct. The deed containing a stipulation not unusual in separation deeds and not being a device to bring about restraint of trade was not void on the second ground. Persons frequently bind themselves to remain in a particular locality, and, the covenant not being an infringement of the liberty of the subject, the defence on the grounds of public policy failed. The amount due under the covenant was payable notwithstanding the plaintiff obtained his injunction. Injunction granted. The trustees to pay over the £3000 to the plaintiff.

[Upton v. Henderson. Ch. Div.: Eve, J. April 26.-Counsel: Lawrence, K.C. and Frederic H. Maugham; Edward Clayton, K.C. and J. K. Young; Cann. Solicitors: Soames, Edwards, and Jones; F. G. Eun Jones; Dudley M. Paul.]

Practice Costs-Specific Performance-Equity Jurisdiction of County Court-Value of the Property-Not exceeding £500Discretion Costs on High Court Scale-County Courts Act 1888 (51 & 52 Vict. c. 43), 88. 67 (4), 116-County Courts Act 1903 (3 Edw. 7, c. 42), s. 3.

By his writ issued in Aug. 1911 and statement of claim the plaintiff claimed specific performance of an agreement to let a shop, office, and workshops for seven years, expiring on the 24th June 1911, the landlord to do external repairs, as modified by an indorsed agreement whereby the rent was reduced from £25 to £20 in consideration of the plaintiff re-roofing part of the premises and agreeing to keep the roof in repair during the continuation of the tenancy. By the original agreement it was provided that the plaintiff should be at liberty to continue the occupation of the premises upon the terms of the agreement for a further period of seven years, if desired, upon the same rental. The plaintiff also alternatively claimed damages. On the 24th March 1911 the plaintiff by written notice exercised his option to continue his tenancy, but the assignees of the freehold reversion contended that the reduction in rent applied only to the original letting. On the 12th Dec. 1908 the plaintiff sublet the premises at a yearly

rental of £30.. By their defence the defendants denied that the plaintiff had fulfilled his obligations as to the roof, and they counter-claimed for £5 in respect of repairs thereto. The reversioners applied that the action should be transferred to the County Court, alleging that the capital value of the premises was not greater than £300, and that the matter would be tried there more expeditiously and with less expense than in the High Court, but these facts were denied by the plaintiff. The master refused the defendants' application. On the question of whether the plaintiff could be given costs on the High Court scale, Angel v. Jay (103 L. T. Rep. 809; (1911) 1 K. B. 666) was referred to at the trial. Held, that the plaintiff had validly exercised his option to continue the tenancy and was entitled to an order for specific performance at the reduced rent, but the plaintiff being satisfied with damages, the court awarded him £40 in lieu of specific performance. In the absence of further evidence it could not be assumed that the value of the property was under £500. The court was not of opinion that it was a case in which the plaintiff was entitled to costs only on the County Court scale, and, in the exercise of its discretion, ordered the costs of the action to be taxed on the High Court scale.

[Okins v. Morrison. Ch. Div.: Eve. J. April 25.-Counsel: J. W. F. Beaumont; J. Fischer Williams. Solicitors: Wedlake, Letts, and Birds, agents for T. S. Porter, Bedford; Crossman, Prichard, Crossman, and Block, agents for Sharman and Trethewy, Bedford.]

Trade Mark-Special Application Surname represented in particular Manner-Trade Marks Act 1905 (5 Edw. 7, c. 15), s. 9, sub-8. 5.

A special application was made for an order directing the registrar to proceed with the registration of a trade mark, which consisted of the word "Benz" written in circular form, the letters being distorted, surrounded by a wreath of foliage within two concentric circles. The application was made to register under sect. 9, sub sect. 5, of the Act, which permits the registration of any distinctive mark," but a name or words not falling within the previous paragraphs of the section may not without the order of the Board of Trade be deemed a distinctive mark. It was contended that the device must be considered as a whole and as such was a distinctive mark, and the fact that the name "Benz," specially represented, was a feature of the mark should not prevent registration. On the other hand, it was contended that the name was the principal feature of the mark, and that a mere surname was not registrable (Re Lea's Trade Mark Application, 29 Pat. Rep. 165). If the mark was to be registered, there should be a disclaimer of the right to the exclusive use of the name.

Motoren

[Re Benz et Cie. Rheinische Automobile in Fabriken Aktiengesellschaft Trade Mark Application. Ch. Div.: Joyce, J. April 25.-Counsel: for the applicants, Kerly and F. E. Bray; for the registrar, Sargant. Solicitors: Julius A. White; Solicitor to Board of Trade.]

Trustee-Power to grant Mining Leases-Unopened MinesSettled Land Act 1882 (45 & 46 Vict. c. 38), s. 11.

By a will a residue consisting of timber, timber-like trees, and minerals was devised upon trust as to one-sixth for J. D. for life, and after his death on trust for his wife, S. D., for life. The trustees had power to let land in such manner as they thought fit. There were no open mines. The trustees let mines by a lease dated the 8th Dec. 1902, and this summons was taken out to determine (1) whether the trustees should consent to the division of the rent and royalties into sixths as heretofore and to the one-sixth of S. D. being paid to the trustees and disposed of by them as directed by the court; (2) whether the proportion of the said rent and royalties payable in respect of the share of S. D. which ought to be set aside as capital moneys is one-fourth or three-fourths of such one-sixth. For the tenant for life it was said that the mining lease was authorised, and that the will showed a contrary intention" within sect. 11 of the Settled Land Act 1882. Farwell on Powers, 2nd edit., p. 602, Clegg v. Rowland (14 L. T. Rep. 217; L. Rep. 2 Eq. 160, and Re Baskerville (103 L. T. Rep. 90; (1910) 2 Ch. 329) were cited.

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Held, (1) that the power in the will did not authorise letting unopened mines; (2) that there was no indication of. a contrary intention " within sect. 11 of the Settled Land Act; (3) that S. D. was only entitled to one-fourth of the income of the sixth. [Re James Daniels; Weeks v. Daniels. Ch. Div.: Swinfen Eady, J. April 26.-Counsel: Tomlin; Crossman; Northcote; J. Henderson. Solicitors: Seymour Williams and Co., for Lawrence and Co., Bristol; Guscotte, Wadham, and Co.]