every probability that under an improved judicial system the courts will become even more than they have been hitherto, the arena in which many of the battles of public and private life will be fought out. Under these circumstances, it is of the last importance not only that the advocates admitted to practise before the Judges should be well educated, and well trained, but that they should be keenly alive to the peculiarities of their position, their influence for good or evil upon a mixed society, and the importance of the trust reposed in them by their clients, and by the Inns of Court to which they belong.

Of all the painful and humiliating incidents connected with the trial of the claimant to the TICHBORNE baronetcy, the most painful and the most humiliating, so far as the legal Profession is concerned, and more especially the Bar, is the ill-judged and most unfortunate line of conduct pursued by Dr. KENEALY. But in order to understand the accumulated follies which in the aggregate constituted an offence which aroused the indignation and anger of three of the most amiable Judges on the Bench, disgusted a singularly indulgent jury, and shocked the educated public, it is necessary to consider the probable influences of circumstances upon the mind of the offender. Dr. KENEALY, although widely read and liberally educated, is undoubtedly a man of extremely small mind and narrow and contracted views. The class of cases in which he had been mainly engaged was precisely suited to his peculiar temperament, and his conduct of the Overend and Gurney prosecution showed how easy it is for a doubtful case to be made utterly hopeless by ill-judged advocacy. But with all his narrowness and littleness of mind Dr. KENEALY was ambitious, and it is now perfectly plain that when he found himself leading a defence in a stupendous cause, which he more than once boasted was a State trial unparalleled since the trial of Charles I., the little discretion which he possessed disappeared before the overwhelming sense of his own importance. To him it was a great misfortune that he should have been selected to lead such a defence; and whilst we have no desire to shield him from any of the consequences of his misconduct, we think that the nature of the delinquent, and the extraordinary circumstances by which he was surrounded, should be attentively considered before his censure by the Bench and the jury is accepted as a conclusive reason why he should no longer be allowed to practise his profession.

We do not propose to go into the merits of the indictment which must be preferred against the learned gentleman; but it is necessary that we should consider how far forensic excesses are to be justified by circumstances or palliated by a mistaken sense of duty. The first point raised is, what is to be the standard of decorum, and upon what evidence is counsel to be condemned? We can see many reasons why the denunciation of a presiding Judge should not be accepted even as evidence against counsel. There may be cases in which it becomes the positive duty of an advocate to resist the control of a Judge, and even to retort upon the Bench. Under such circumstances the Judge becomes pro hac vice the opponent of the advocate, and when the Judge is summing up, no reply upon him being possible, it is only natural that he should make his assailant feel the full weight of his hand. True it is that in the celebrated cause now ended we have three Judges and a jury all concurring in one view, which renders it the more difficult to select any outside standard by which to judge counsel. But as a rule we are disposed to think that an outside standard is the only fair test which can be adopted. The voice of the Profession and of the public ought to determine whether the extreme penalty, if any, is to be inflicted.

In the present instance the public press has, with singular unanimity, called upon the Benchers of the Inns, of which Dr. KENEALY is a member, to consider the course which their duty to the public dictates. We admit that an immediate investigation is inevitable; but, dealing as we are with the subject generally, we must regret that the tribunal before which an offending barrister is arraigned to take his trial for dear professional life, is composed of non-representative men. The Benchers of Gray's Inn are gentlemen who have recently shown a disposition to elevate and improve the position of their society, but they are not the most eminent members of the Profession, and we cannot consider that they will constitute a satisfactory tribunal before which the fate of a Queen's counsel charged with grave breaches of decorum and decency should be decided. It is obviously absurd that the governing body of an almost extinct Inn of Court should adjudicate upon a matter in which the entire Profession and the public are so largely interested. The governing bodies of the Inns of Court are not representative, being self-elected, and any one body even if it represented the members of its own society, could not be taken as representing all the members of the other three Inns. There is no other tribunal, however, which can take cognizance of the alleged offences.

The next subject for consideration is the nature of the penalty which should be attached to breaches of professional propriety. Clearly this must depend altogether upon the nature of the offence. We are not, however, without precedents, one being recently furnished by a leading inn of court, the Inner Temple. Mr. EDWIN JAMES was disbarred for sins against his profession rather than against public morality. Driven by overwhelming necessity he

sacrificed his independence by accepting pecuniary aid from an opponent. This and other questionable monetary transactions caused him to be expelled from a society which his brilliant eloquence had adorned, and the decree was found to be irrevocable after years of exile and contrition. Dr. KENEALY, on the other hand, is charged with the most reckless violation of all the rules which should govern the conduct of counsel in the cross-examination of witnesses and in making comments upon their evidence, whilst it is said that the Government of the country, the impartiality of the Judges, the living and the dead who were connected with the case for the prosecution, were reviled in the bitterest and coarsest terms. These are not only offences against the Profession-that they do indeed bring dishonour and discredit upon the Bar is admitted on all hands-but they are offences against public morality, and calculated to impede the course of justice. If proved to the satisfaction of the judges to whom Dr. KENEALY is bound to answer, and if they cannot be excused on the ground of the exigencies of the case, the extreme punishment would seem to be inevitable. It is impossible to contrast such a case with the precedents to which we have alluded without feeling that we have reached the lowest depth which the Profession has experienced, at any rate within the memory of the living.

We would gladly find some excuse for Dr. KENEALY in the extraordinary circumstances which surrounded him, and the enormous and bewildering labour which was imposed upon him. He spoke the truth when he said that he had to contend with difficulties in defending his client which no counsel had ever encountered before. Virtually single handed he had to contend with an array of skill and talent of no mean order-as high indeed as the English Bar could furnish; whilst the keen intellect of the LORD CHIEF JUSTICE allowed scarcely a single fallacy advanced by him to pass without dragging it into light and almost compelling the counsel who supported it to make blind and mad efforts to produce impossible explanations, and to reconcile the irreconcileable. These, undoubtedly, are matters to be considered, and grave as the position is in which Dr. KENEALY has placed himself, he is as yet uncondemned by the constituted authority, and his case should be approached as we are certain it will be approached-with scrupulous impartiality and freedom from prejudice, with a full sense of the importance of the issue, not to Dr. KENEALY only, nor indeed to the Profession, but to law and order and the administration of justice.

THE LIABILITY OF AN EXECUTION CREDITOR TO

REFUND.

A CREDITOR before resolving to sue out execution against the goods of a trader debtor for a sum exceeding 501., should read, mark, and inwardly digest the decision arrived at by Lord Justice Mellish, on the 20th ult., in Ex parte Villars, re Rogers. In that case a creditor whose debt exceeded 501., purchased of the sheriff the goods seized in execution, and the sheriff, after retaining the purchaser's cheque for fourteen days in compliance with the 87th section of the Act of 1869, returned the cheque to the creditor at the end of that period. Within six months after the sale, a petition for adjudication of bankruptcy against the debtor was presented, on which he was declared bankrupt. The registrar con sidering that the 5th sub-section of sect. 6 of the Act rendered the seizure and sale so followed by adjudication, an act of bankruptcy, ordered the creditor to give up the goods to the trustee. Lord Justice Mellish held that the creditor was entitled to the goods by virtue of his purchase, but that he must refund the purchase money. This is a startling result. We do not say that on the true and fair method of construing the Act of 1869, the result is not a logical consequence of the language used. We do, however, say, that it is impossible to read carefully the 87th section without feeling that it could never have been the intention of the Legislature that a creditor fairly and honestly pursuing his legal remedies, was to have his common law rights under an execution interfered with to any greater extent than was expressly provided for by the section; viz., that the sheriff should refrain from paying over the proceeds of the sale for fourteen days, in order that an opportunity might be afforded for the presentation of a petition in bankruptcy. If it had been intended that the right of the creditor should not be absolute at the end of the fourteen days, or at all events as soon as the money was paid over by the sheriff, it is most difficult to understand why such a period, instead of the period of six months mentioned in sect. 6, should have been arbitrarily fixed; and if such were not the intention, nothing could have been easier than to have provided that, notwithstanding payment to the creditor, his right should not be absolute, but on the contrary, should be defeated, if an adjudication should take place within twelve months, founded on a petition If presented within six months from the time of the sale. for six months the creditor was intended to remain in a state of doubt and uncertainty whether in consequence of the possibility of a petition for adjudication being subsequently presented against his debtor he might not have to refund, some clear intimation of the design of the Legislature should have been furnished, in order that the creditor instead of dealing with the money recovered as his own, might

as a prudent man, place it to a suspense account. We observe that the Lord Justice attached considerable weight to the argument that it would be anomalous to allow validity to the sale, the fons et origo mali, which is declared by the statute to be an act of bankruptcy, and which defeats by relation all subsequent transactions between the bankrupt and persons affected with notice; and also to the argument that whereas sect. 73 of the repealed statute of 1861 expressly affirmed the rights of the execution creditor, the Act of 1869 is silent on the point. We by no means wish to underrate the force of these arguments, though we are far from satisfied that they are sufficient to outweigh other opposing considerations. However the judicial result may be arrived at, we confess that it does appear to us monstrous that a judgment creditor, whose common law rights have been expressly suspended for fourteen days by the 87th section, should, after experiencing probably much trouble and delay in recovering what he very naturally must look upon as his own money, be exposed to the action of a piece of legal mechanism in the nature of a trap, by which after the interval of many months he is to be called upon and compelled to refund it. We regret that a question of this magnitude and difficulty should be decided on appeal by a single Judge-however eminent.

SEARCHES, INQUIRIES, AND NOTICES.
(Continued from page 285.)

To complete the assignment of a chose in action, or of any equitable interest (which by the way may be effectually done by letter, Lambe v. Orton, 29 L. J. Rep. N. S. 319, Eq.), notice to the debtor, trustee, or other person owing or holding the money, fund or other property which, or an interest in which, has been assigned, is absolutely necessary. If a debt be assigned and no notice be given to the debtor, the original creditor can give the debtor an effectual release: (Stocks v Dobson, 22 L. J. Rep. N. S. 884, Eq.) If an interest in property held by trustees be dealt with, and no notice be given to the trustees, they would be justified in transferring the property to the original cestui que trust for whom they held it, and, having done so, there is no remedy against them to bring back the property: (Donaldson v. Donaldson, 23 L. J. Rep. N. S. 788, Eq.) After an assignment of a debt, and notice thereof to the debtor, he can effectually plead the assignment and notice in an action against him by the original creditor: (Jeff's v. Day, L. Rep. 1 Q. B. 372.) The effect of notice to the trustee is to convert him into a trustee for the assignee : (Dearle v. Hall, 2 L. J. Rep. 62, Ch.)

The assignee who, without notice of any assignment prior to that in his favour, first gives notice to the trustee, will have priority of title, and the fact that he has or has not made inquiries of the trustee is quite immaterial: (Loveridge v. Cooper, 2 L. J. Rep. 75, Eq.)

Notice to the solicitor to the trustee is sufficient, but the solicitor must be acting for the trustee at the time and in relation to the property in question (Rickards v. Gledstanes, 31 L. J. Rep. N. S 142, Eq.) Where there are several trustees notice to one is sufficient if he survive (Smith v. Masterman, 3 L. J. Rep. N. S. 42, Ex.), even if that one be the vendor or mortgagor (Willes v. Greenhill, 31 L. J. Rep. N. S. 1, Eq.), but if the trustee to whom notice is given die without informing his co-trustees of the receipt of the notice, a second incumbrancer, who subsequently gives notice to the remaining trustees, would seem to be entitled to priority: (Meux v. Bell Hare 73.) And where there are several executors notice of the assignment of a legacy or an interest in the residuary personalty should be given to all, or it would seem that the executors to whom notice has not been given may pay the legacy or interest to the original legatee, and, consequently, a second assignee would gain priority by giving notice to all the executors: (Timson v. Ramsbottom, 2 Keen, 35.)

In

Where there are two sets of trustees, as, for instance, where a reversionary interest in stock standing in the names of trustees becomes the subject of a settlement, upon any dealing with interests created by the last-mentioned settlement, notice must be given to the trustees in whose names the stock is standing, and an assignment of which notice is so given will prevail over a prior assignment of which notice has previously been given to the other set of trustees: (Bridge v. Beadon, L. Rep. 3 Eq. 665.) Holt v. Dewell (15 L. J. Rep. N. S. 15, Eq.), where a person entitled to a reversionary interest bequeathed such interest, and the legatee twice assigned his interest, it was held that until the executor had assented to the legacy notice to him would prevail over notice to the trustees holding the fund. And it would seem that so long as the second set of trustees have not actually received the fund, the title of an assignee of an interest in it, who had given them notice of his assignment, would not be preferred to that of a prior assignee who had neglected to give such notice (Buller v. Plunkett, 30, L. J. Rep. N. S. 641, Eq.; Somerset v. Cox, 33 L. J. Rep. N. S. 491, Eq.), but it is not prudent for an assignee to neglect to give notice to both sets of trustees.

No notice is necessary of dealings with equitable estates in realty, or money charged upon land without the intervention of trustees, as, for instance, where a testator bequeathed leaseholds charged with an annuity, it was held unnecessary for an assignee of the annuity to give notice to the trustees (Wiltshire v. Rabbitts,

13 L. J. Rep. N. S. 284, Eq.), but notice is necessary to complete the assignment of the proceeds to arise by the sale of real and personal estates given to trustees for sale (The Consolidated Investment and Insurance Company v. Riley, 29 L. J. Rep. N. S. 123, Eq.), the rule being that if the interest of the assignor be an interest in land no notice is necessary, but that notice is necessary where the interest of the assignor is confined to money to be raised on or by the sale of land: (Re Hughes, 33 L. J. Rep. N. S. 725, Eq.)

Where a creditor of a bankrupt assigns his debt, notice to the trustee in bankruptcy is sufficient, and where the debt is that of a company in course of liquidation, notice must be given to the official liquidator: (Re Breech-loading Armoury Company, Wragge's case, L. Rep. 5 Eq. 285.)

When a fund is standing in the name of the Paymaster-General of the Court of Chancery, it is useless to give the PaymasterGeneral notice of assignments of interests therein (Warburton v. Hill, 23 L. J. Rep. N. S. 633, Eq.), but priority can be gained only by the assignee obtaining a stop order, and lodging it in the Paymaster's office. Where money is paid into court by a trustee, it is not necessary for an assignee, who, previously to such payment in, has given notice to the trustee, to obtain a stop order, for a stop order would not prevail over the notice if the trustees then had the money in their hands: (Bearcliffe v. Dorrington, 19 L. J. Rep. N. S. 331, Eq.) If part of a testator's estate consists of a fund in court, notice to the executors of an assignment of an interest in the estate is sufficient without a stop order: (Thompson v. Tomkins, 31 L. J. Rep. N. S. 633.)

In Macleod v. Buchanan (33 L. J. Rep. N. S. 149, 306), it was held that a general stop order will be confined to the particular incumbrance in respect of which it was obtained, so that in case of a further charge a second stop order is necessary, and in the same case it was decided that the name of the assignor should appear in the stop order. An incumbrancer who has gained priority by placing a stop order on the fund will, without a further order, retain his priority, notwithstanding the carrying over of the fund to a new account, entitled the account of the assignor and his incumbrancers: (Lister v. Tidd, 4 L. Rep. 462, Eq.)

Previously to the passing of the Bankruptcy Act 1869, a chose in action or other equitable interest which had been assigned, but of the assignment of which no notice had been given to the debtor or trustee, was considered as being in the order and disposition of the assignor, whether the original owner or his assignee, and so liable to be sold for the benefit of his creditors in case of his insolvency or bankruptcy. It was decided in the case of Stuart v. Cockerell (L. Rep. 8 Eq. 607), that a mortgagee, prior to the bankruptcy, who had neglected to place a stop order upon the fund in court retained his priority over the assignee in bankruptcy by obtaining a stop order which the assignee did not do. As we have before stated, we do not concur in the decision, and we believe the law to be as follows: If an assignee neglected to give notice the title of the subsequent assignee in insolvency or bankruptcy would prevail, notwithstanding the prior assignee subse quently gave notice and the latter assignee altogether neglected to do so. If, however, the assignee in insolvency or bankruptcy by neglecting to give notice enabled the bankrupt to assign to another person, who had no knowledge of the insolvency or bankruptcy, and who duly gave notice, the title of the assignee lastly referred to would prevail: (Re Barr's Trusts, 27 L. J. Rep. N. S. 548, Eq.; Re Brown's Trusts, L. Rep. 5 Eq. 88.) As between an assignee in insolvency and a subsequent assignee in insolvency or bankruptcy, where the first-named assignee had not given notice to the trustees, the question to be settled would be whether the first assignee was aware of the existence of the interest, and, if not, his title would be preferred, because, although the interest was left in the order and disposition of the insolvent or bankrupt, it could not be said that it was with the consent of the true owner thereof: (Re Rawbone's will, 26 L. J. Rep. N. S. 588, Eq..)

Notice to the debtor or trustee should be distinct, and, for the convenience of proof, should be in writing, but such is not absolutely necessary. In Lloyd v. Banks (L. Rep. 3 Ch. App., at p. 490), Lord Cairns declined to lay down any rule, as to what would be a sufficient notice to a trustee, but he considered that all that was necessary was in some way to bring to the mind of the trustee an intelligent apprehension of the nature of the incumbrance which has come upon the property, upon which a reasonable man, or an ordinary man of business, would regulate his conduct in the execution of the trust. If the notice be not general, that is if a mortgage of a reversion to secure a certain principal sum and interest, contains a charge in respect of premiums on a policy of assurance, and in the notice the deed is referred to as securing the principal and interest only, a subsequent assignee will have priority over the charge for the premiums: (Re Bright's Trusts, 25 L. J. Rep. N. S. 449, Eq.)

A trustee who, after receiving notice of a charge, deals with the trust funds as if no charge had taken place, will be liable to refund to the person having the charge, and the fact of the assignee disputing the charge will of course make no difference (Hodgson v. Hodgson, 7 L. J. Rep. N. S. 5, Eq.); but a trustee who, without notice of a charge, which by reason of proper notice having been given to former trustees was complete, deals with the trust funds

as if no charge had been made, will not be liable to refund: (Phipps v. Lovegrove, Prosser v. Phipps, 16 L. J. Rep. N. S. 80, Eq.) The result of the last decision will be to occasion periodical inquiries by the assignee, and the giving to the new trustees when they are appointed copies of the original notice.

From what we have above said it will be apparent that an intending purchaser or mortgagee of an equitable interest must inquire not only of all the trustees of the fund, but also of any retired trustee, and of the personal representatives of any deceased trustee, whether notice of a charge has been given to any of such trustees. When the fund is in court a certificate of the fund should be obtained from the Paymaster-General's office, which will show what, if any, stop orders affect the fund; and, in addition, when the fund has been paid in by a trustee, inquiries should be made of him and all other trustees, as above stated: when the fund has been paid in under the Trustees Relief Acts, the affidavit upon which the payment took place should be referred to, and should show of what notices the trustee was

aware.

Solicitors neglecting to make proper inquiries are liable as for negligence, and so they are if they neglect to give notice to the trustees (Dearle v. Hall 2 L. J. Rep. N. S. 62, Ch.)

A trustee is bound to give information to a purchaser or mortgagee, he being for that purpose the agent of the vendor or mortgagor; and a trustee who, even inadvertently, gives wrong information or does not mention the fact that he has received notice of a previous dealing with the property, will be liable to recoup the purchaser or mortgagee any loss he may incur : (Burrowes v. Lock, 10 Ves. 470.)

In the case of a resale or transfer of mortgage of an equitable interest, it is unnecessary, except where the original vendor or purchaser has become bankrupt or insolvent, for the original purchaser or mortgagee to show that notice had been given, because if no subsequent purchaser or mortgagee had given notice, the point is immaterial, but full means must be afforded to the subpurchaser or transferee of inquiry whether notice has or has not been given, and therefore it is necessary to show who from time to time have been the persons representing the character of trustees : (Hobson v. Bell, 8 L. J. Rep. N. S. 241, Eq.)

As notices of assignments of policies of assurance are the subject of a special Act of Parliament we have not referred to them here, but shall do so hereafter.

THE LAW OF ALLUVION IN ENGLAND AND IN
INDIA.

By LAWRENCE BIALE, Barrister-at-Law.
(Continued from p. 285.)

HAVING now considered the principles of law which govern the subject of alluvion, and also such as govern the acquisition of land by avulsion, it becomes necessary to consider the cases which have been decided in India, and in the Privy Council, both prior to, and since, the passing of the Act of 1825. One of the first cases of alluvion decided in the Sudder Dewanny Adawlut was that of Isurchund Rai and others v. Ramchund Mothurja (1 S. D. A. 221). The case was heard on 11th Dec. 1807. The court held, that the whole of the lands claimed as having been gradually annexed by alluvion to the respondent's talook of Hilalpoor were his property. The deserted bed of a public river, which ran between the two properties of Hilalpoor and Maholah (the proprietors of the latter being the appellants), was declared divisible between the appellants and respondents, each party to be entitled to that part of it contiguous to his own estate, in compensation for loss sustained by them from the excavation of a new channel. It would seem from this case that the doctrine of English law which considers the State as the sole proprietor of navigable rivers, and necessarily of land, when deserted by such rivers, does not apply to cases where there has been an artificial divergence of the channel by State agency. After the famine now pending in Bengal, in consequence of the extension of the Soane canal, cases of a similar kind are likely to arise. The case of Rajah Griesohund v. Maharajah Tezchund (1 S. D. A. 274), decided on the 8th May 1809, was a suit for alluvion land which had accumulated on the estate of the respondent by the gradual recession of a river that formed the boundary between the estates of the appellant and the respondent, and was afterwards severed from the respondent's estate, and left united to that of the appellant, by the sudden return of the river to its former course. The Sudder Dewanny Adawlut disallowed the claim of plaintiff, i. e., the respondent. It is material to note in this case that the land adjudged to appellant was alluvial land, formed by prior encroachments of the river on respondent's estate, afterwards joined by gradual accession to the estate of respondent, and subsequently re-annexed to that of appellant by the sudden return of the river to its former channel. Had the river, by a sudden change of its course, intersected the old land of respondent's zemindary, leaving each bank still capable of being identified as the estate of respondent, the general law of alluvion, in India as well as in Europe, would not have entitled appellant to the land situate between the new and old channel of the river; and the local usage admitted by the parties with respect to Shekust Pywust (literally, broken and joined) or allu

vial land, viz., that the river flowing between the two estates should form their mutual boundary, could not have been available to appellant as constituting a title to land not gained by alluvion. It may be added that the general rule of law is that just as what is gained by gradual accession is the property of him to whose estate the recess of the river or sea has annexed it, so what is lost by the gradual encroachment of the river or sea is a loss without reparation to the owner whose estate is thus destroyed. In the next case that of Radhmohun Rai and others v. Soorujnarain Banojiah (1 S. D. A. 319), decided on 29th April 1811, the plaintiffs and defendant, were zemindars of two estates separated by a river; and the river for many years encroaching in a semi-circular form on the estate of the defendant, washed away lands from the estate of defendant, and annexed them to the estate of plaintiffs, thereby forming the chur or alluvion in question. The court held that on the established principle that land thus gained by the gradual retirement of a river, under the general rules of alluvion, is the lawfu accession of the estate to which it is so annexed, the plaintiffs were entitled to the chur in question. The next decision was that of Koonwur Hurree Nath Rai v. Mussumut Jyedoorga Burwain (2 S. D. A. 269), heard on 9th Sept. 1818. The suit was a claim to some alluvial land, the river Burrumpooter flowing on each side of the land claimed. Held, that the most equitable decision would be, to give to the parties respectively the land adjoining to their respective estates. In cases of contested alluvial land the grand channel of a river is considered to constitute the division between the estates; but in this case the evidence was contradictory on this point, each party declaring that the branch which flowed under his boundary was fordable, while the other branch was broad and deep. In Zieboo Nisa v. Persun Rai (3 S. D A. 316), heard 1st March 1824, the claim being to certain lands alleged to have been washed away by the stream from the plaintiff's estate, the judgment was given in favour of the defendants, to whose estate they had become gradually annexed. In the case of Ramkislen Rai v. Gopee Mohun Baboo (3 S. D. A. 340), the Senior Judge of Provincial Court of Dacca, held that inasmuch as the lands in dispute were surrounded by the plaintiff's zemindaree, they belonged to him conformably to established usage in such cases, and accordingly ordered that he should be put in possession, and he ordered the Aumeen to make an estimate of the profits of the above lands from the existing documents, and to deduct a reasonable sum for the payment of the expenses which had been incurred; the defendants being declared liable for any excess above such reasonable expenditure. The S. D. A. on appeal on the 26th April 1824, affirmed this decision. The principle of this decree has since been recognised in a formal enactment. Regulation XI. of 1825, sect. 4, cl. I, provides that land gained by gradual acces sion from the recess of a river or the sea is to be considered an increment to the tenure of the person to whose estate it may be annexed. One of the first cases since this Regulation was that of Mussumat Imam Bandi v. Hurgoovind Ghose (4 M. I. A. 403). Lands having been submerged, by a change of the course of the river Ganges, after several years, reappeared, each party claiming the lands to be part of his mouza; the Sudder Court held the plaintiff's claim to be barred, first, by the Bengal Regulations of Limitation, from lapse of time; and, secondly, that the lands were alluvial and attached to the mouza of the defendant. Such decree, upon appeal, reversed, the Judicial Committee holding, first, that the question of limitation not having been put in issue by the pleadings, could not be allowed to operate upon the case; and, secondly, that the court had mistaken the question, in supposing it one of alluvion, the point at issue being one of boundary only, and the question being, to whom did this land belong before the inundation; whoever was the owner then, remained the owner while it was covered with water, and after it became dry, and that the plaintiff had made out his title as such owner to possession. This case was decided by the Privy Council on 7th July 1818, but the litigation had commenced in India in 1830. The case of Sree Eckowrie Sing v. Heeraloll Seal (12 M. I. A. 136), was a case of a claim to land washed away and reformed in the bed of a navigable river, the ownership of the soil of which is not commonly in the riparian proprietors of its banks, and which was not proved in the case to have belonged to the predecessor in title of either disputant. Lord Chelmsford in the judgment says, "the reforming of land in such a stream, after a considerable interval and frequent floods, is not primâ facie to be ascribed to a loss from any particular portion of territory, nor is the land which has been removed by a sudden avulsion reclaimable unless the circumstances supply evidence of identity, which is wanting in the case before us.' Again: "The title by accretion to a new formation generally, is not founded on equity of compensation, but on a gradual accretion by adherence to some particular land. The land gained will then follow the title to that parcel to which it adheres." And "a detached chur, independent of usage, in such a stream would belong to neither riparian proprietor, and the circumstance that it was subtended by the land of one would not be enough to entitle him to it." The Privy Council therefore disallowed the claim of the plaintiffs as being not sufficiently proved, and dismissed the appeal on the 14th Dec. 1868. In the case of Rajah Burdacant Roy v. Baboo Chunder Coomar Roy (12 M. I. A. 145), decided in December of the same year, their Lordships con

sidering that the original title to the land in dispute was in the appellant's ancestors, were of opinion that they had never lost it, either by the perpetual settlement or by the revenue sale; and even if it were proved that some part of the said land had passed to the respondent at the time of the sale, they held that the land which had since been recovered from the Bheel (marsh) (and great part of the land in question was admitted to have been so reclaimed since the date of the sale) had not so passed, as their Lordships were clearly of opinion that the whole site of the Bheel was and remained under the dominion of the appellant. This is a remarkable point for the consideration of Indian lawyers, that the right of occupancy is considered to be paramount to all grants by Government or other parties, and that the settlements by zemindaries under the Permanent Settlement of Lord Cornwallis are to be strictly construed as to the quantity and area that passed under those settlements. It was held also in this case, that in a case of disputed boundaries, where one of the claimants is in possession by virtue of a magistrate's order under Act IV. of 1840, it lies on the party seeking to oust him to show a better title to the land claimed than that of the party in possession. In Lopez v. Muddun Mokun Thakoor (13 M. I. A. 467), heard on the 11th July 1870, the facts were, that the land in dispute forming part of a mouzah or estate on the banks of the Ganges, by reason of continual encroachments of that river, became submerged, the surface soil being wholly washed away. After recession and re-encroachment by the river,

PATENT LAW.

(By C. HIGGINS, Esq., M.A., F.C.S., Barrister-at-Law.) Derbyshire, and had constructed something like

INFRINGEMENT. (Continued from p. 286.) HUDDART v. GRIMSHAW. N. P. 1803.-Action for the infringement of a patent for a new mode of making cables and other cordage. Evidence was given on behalf of the plaintiff by an engineer, who was familiar with the subject of rope-making, that some rope, proved to be of the defendant's manufacture, agreed in its structure and in all its qualities with the rope made by the plaintiff's patented method. The witness knew of no other method of manufacturing such rope, which he believed to have been made in accordance with the plaintiff's patent. Held, that this was prima facie evidence, till the contrary is shown, of an infringement of the plaintiff's patent. (Dav. P. C. 288; 1 Web. P. C. 91.)

Hill v. Thompson. 1818.-Dallas, J., delivering the judgment of the Court of Common Pleas, said: "A slight departure from the specification for the purpose of evasion only, would, of course, be a fraud upon the patent; and, therefore, the question will be, whether the mode of working by the defendant has, or has not, been essentially or substantially different." (1 Web. P. C. 242; 8 Taunt. 391; 2 B. Moore 448.)

ex

Forsyth v. Riviere. N. P. 1819.-Action for the infringement of a patent for the application of detonating powder to the discharge of fire-arms. Drawings were annexed to the specification" hibiting several constructions (of locks) which may be made and adopted, in conformity to the foregoing plan and principles, out of an endless variety which the subject admits of." The defendant applied the principle of the invention by using a lock of a different construction to any shown in the annexed drawings. Verdict for the plaintiff. (1 Web. P. C. 97; 1 Carp. P. C. 401.)

Hall v. Boot. N. P. 1822.-The sale of an

article which might, during its manufacture, have been improved according to a patent process, coupled with the fact of the defendant having the machine necessary for practising such process in his possession, is sufficient evidence of infringe

ment. (1 Web. P. C. 100.)

Jones v. Pearce. N. P. 1832.-Action for the infringement of a patent for an improved method of making carriage wheels on the principle of suspension. A wheel upon the same principle, but of different construction, had been made by Mr. Strutt prior to the date of the patent. Patteson, J., in summing up the case to the jury, said: "The defendant has constructed a wheel whose construction is on the suspension principle. That alone would not make it an infringement of the plaintiff's patent, because the suspension principle might be applied in various ways; but if you think it is applied in the same way as according to the plaintiff's patent it is applied, then the want of two or three circumstances in the defendant's wheel, which are contained in the plaintiff's specification, would not prevent the plaintiff's recovering in this action for an infringement of his patent. It would be quite a

different thing if it was shown that the defendant had his communication long before with Mr. Strutt, and had taken up Mr. Strutt's invention in Mr. Strutt's without any knowledge of the plaintiff's patent, and had actually borrowed it from Mr. Strutt's, which was good for nothing; it would be the hardest possible thing to say that this was an infringement of the plaintiff's patent. The terms of the patent_are, 'without leave or licence, make,' &c. Now if he did actually make these wheels, his making them would be a sufficient infringement of the patent, unless he merely made them for his own amusement, or as a model." (1 Web. P. C. 122.)

Russell v. Cowley. N. P. 1834.-The specification having described the invention to consist in welding iron in the inanufacture of tubes by cir. cular pressure through dies or holes, the welding produced by passing the iron through grooved rollers, though not so perfect, is an infringement. (1 Web. P. C. 462.)

Minter v. Wells. N. P. 1834.-The invention claimed being the application of the self-adjusting leverage to the back and seat of a chair, any combination of that to the same subject is an infringement. (1 Web. P. C. 130.)

Minter v. Williams. 1835.-Exposing an article manufactured by a patent process for sale is not an infringement of the letters patent. (1 Web. P. C. 135; 5 Nev. & M. 647; 4 Ad. & El. 251.) Morgan v. Seaward. N. P. 1836.-Alderson, B., in summing up the case to the jury, said: "Upon that subject (infringement) the question would be simply, whether the defendant's machine was only colourably different, that is, whether it differed merely in the substitution of what are called mechanical equivalents for the contrivances which are resorted to by the patentee. . . You are to look to the substance and not to the mere form, and if it is in substance an infringement, you ought to find that it is so. If in principle it is not the same, but really different, then the defendants cannot be said to have infringed the patent." (1 Web. P. C. 171.)

Jupp v. Pratt. 1837.-Alderson, B.-"You may take out a patent for a principle coupled with the mode of carrying the principle into effect, provided you have not only discovered the principle, but invented some mode of carrying it into effect. But then you must start with having invented some mode of carrying the prin ciple into effect; if you have done that, then you are entitled to protect yourself from all other modes of carrying the same principle into effect, that being treated by the jury as piracy of your original invention." (1 Web. P. C. 146.)

Gillet v. Wilbey. N. P. 1839. Coltman, J., in summing up the case to the jury, said: "The plaintiffs must make out to your satisfaction that the whole of the improvements were new, and that some of them have been pirated. It is not necessary that they should all have been used, but they must be shown to be all new, and if they are all new, and the defendant has infringed any of them, it will be sufficient to support the action, and it is not necessary that he should have infringed them all. (9 Car. & P. 334; 1 Web. P. C. 271.)

Gibson v. Brand. N. P. 1841. Action for the infringement of a patent. The declaration, after the usual averments, assigned as a breach, “ that the defendant directly or indirectly made, used, and put in practice the said invention." Tindal, C. J., said to the jury, "If they (the defendants) have themselves sold an article of exactly the same fabric, made in the same manner as that for which the patent was taken out, such sale may be considered as a using of the invention within the terms of the declaration." (1 Web. P. C. 630.)

Walton v. Potter. N. P. 1841.-The question of infringement is one of fact for the jury. A specious variation in form, or ingenious alteration in the mode of adaptation, is an infringement of a patent. Tindal, C.J., in summing up the case to the jury, said: "Where a party has obtained a patent for a new invention, or a discovery he has made by his own ingenuity, it is not in the power of any other person, simply by varying in form or in immaterial circumstances the nature or subject matter of that discovery, to obtain either a patent for it himself or to use it without the leave of the patentee, because that would be in effect and in substance an invasion of the right; and therefore, what you have to look at upon the present occasion is, not simply whether in form or in circumstances, that may be more or less immaterial, that which has been done by the defendants varies from the specification of the plaintiff's patent, but to see whether in reality, in substance, and in effect the defendants have availed themselves of the plaintiff's invention in order to make that fabric, or to make that article which they have sold in the way of their trade; whether, in order to make that, they have availed themselves of the invention of the plaintiff. (1 Web. P. C. 586, 589.)

Neilson v. Harford. N. P. 1841.-Action for application of air to produce heat in furnaces. the infringement of a patent for the improved Parke, B., told the jury that if the invention consisted, as claimed by the plaintiff, in applying the air, heated while in transitu, then, however great the improvement which the defendant's appara tus for accomplishing that object may be on that described in the specification, it is no less an infringement. (1 Web. P. C. 310.)

Walton v. Bateman. N. P. 1842.-The doing of the letters patent, is an infringement. (1 Web. any of the acts specified in the prohibitory clauses P. C. 615.)

SOLICITORS' JOURNAL.

IN a case lately reported from an Irish Court, an affidavit sworn in the matter, by deponents residing in Canada, was said to be informal, and the officer of the court refused to file it on the twofold ground that while it was a joint affidavit, there was only a single jurat, also that the description of the commissioner before whom it was made was insufficient, on the ground that, whilst he described himself as 66 commissioner for taking affidavits in Chancery," he omitted to add "in Canada." We are glad to notice that an order has been made that this affidavit should be received and filed. It would, indeed, be unfortunate

if, on such grounds, the proceedings should have been delayed, that the affidavit might be returned to Canada to correct the alleged irregularities. It does not appear from the report but that the affidavit was sworn by the two deponents at the same time, and a reference to the Law List shows that the Canadian commissioner was what he described himself to be. Solicitors when discharging the office of commissioner of oaths cannot, of course, be too careful in complying with every formality, and that they are so in the generality of cases is evidenced by the fact that it is only very occasionally that objection is taken to those parts of an affidavit for which they are responsible as commissioners.

MR. F. H. JANSON, in his paper lately read before the Statistical Society, and to which we have already referred, observes, in reference to the compensations paid to proctors, "That it did not include the loss of office as practitioners in the Ecclesiastical Courts." Sir R. Phillimore has recently decided that they have still the exclusive privilege of practising there, and as the race is rapidly dying out the business must come to a standstill unless the Legislature applies a remedy or the litigant parties are willing to conduct their cases in person.

MR. F. CALVERT, Q.C., in his Remarks upon the Jurisdiction of the Inns of Court, observes as follows in reference to education and etiquette affecting the two branches of the Profession: "To put the examination for the Bar on the same footing as an examination for the profession of an attorney or of a medical man is quite a mistake. Persons who require the aid of an attorney or a doctor, go directly to them. They may sustain serious injury, if anyone is allowed to offer himself to the world in general, as a practitioner in either of those professions, without having proved an adequate amount of proficiency. But persons, who require the aid of a barrister, do not go directly to him. They consult their attorney, and through the attorney as intermediate agent

consult the barrister."

As yet the office of Chief Clerk to the Lord Mayor is still vacant, and we look with some anxiety for the choice of the City magistracy. That it should be bestowed upon a solicitor is beyond question, and if not so bestowed solicitors will have far more cause of complaint than the other branch could have if a solicitor were appointed to the office of Solicitor to the Treasury. Magistrates' clerks are invariably solicitors, and they bring to bear upon the discharge of their duties the utmost tact and judgment, as well as a practical knowledge of their work. The City authorities will find no scarcity of thoroughly good men if the remuneration is adequate to the responsibility of this important office.

THE apparent expedition with which some Judges of the Court of Chancery get through the business of their courts is attributable to the practice of throwing upon the chief clerks important duties which they were not originally intended to perform, says Mr. Janson in a paper lately prepared, and he adds, it has often been urged that an addition to the number of judges of this court would enable them to work out in chambers their own decrees, while the facts and circumstances were fresh in their minds, leaving the chief clerks to dispose of the administrative business, which is now too often kept waiting for the consideration and discussion of important questions of principle that would be more properly dealt with by the judges. Another great want is that of readier access to the judge. If there were the same facility of appeal from the chief clerk to the judge as there is from a solicitor's clerk to his principal, as there easily might be if a judge sat in chambers three days in each week, much valuable time would be saved. This was suggested in the report of a very large committee of solicitors to the Council of the Incorporated Law Society, so far back as the year 1851, and this report was afterwards submitted for the consideration of Parliament. See vol. xiii, "House of Commons Reports, 1852."

SOLICITORS Cannot be made parties to suits in Chancery with a view to charging them with costs, unless counsel and solicitors are found who are ready so to charge their brothers in the Profession. The practice of so seeking to charge solicitors has largely obtained of late years, but happily for the credit of the Profession there has grown up by the side of it a determination on the part of the judges of the High Court of Chancery to set their face against making solicitors, who are properly witnesses in a suit, and who are not primarily chargeable with any part of the relief prayed, parties to the suit with a view of charging them with costs only. Our readers will do well to consider carefully the case of Barnes v. Addy, reported in our present issue, as affecting this

question, the judgment in which, by the ex Lord Chancellor (Selborne) and the Lords Justices will, we feel sure, be studied with interest. It is an appeal from, and affirmation of a decision of Wickens, V.C., who concludes his judgment thus: "With a view to discouraging, as far as possible, suits of this nature against solicitors, I shall dismiss the bill against him (a solicitor), also with costs." The Court of Appeal entirely concurred with the Vice-Chancellor's desire to discourage such suits.

COMPLAINT reaches us from a solicitor who appeared for a defendant charged with felony before a country bench of magistrates, that notwithstanding his objection, the partner of the magis. trates' clerk was allowed to appear and conduct the prosecution. We think this a very bad precedent, and one which we hope will not be followed, the better opinion being that much evil may arise from such a practice. We believe the rule is that partners of magistrates' clerks never appear as in the above case. This matter and the present right exercised by clerks of the peace in the distribution of quarter sessions business among local solicitors, needs regulation.

FUNERAL OF THE LATE MR. J. C. GROCOTT.

described the property as to be sold by the direction of the proprietor, who was not named or otherwise described therein, and the memorandum of the sale, which was endorsed on the particular, and was signed in duplicate immediately after the sale by the solicitors of both parties, and was in the usual form-namely, "I do hereby acknowledge that Mr. William Sale, by Mr. Thomas Veasey, his solicitor, has been this day declared the purchaser of lots 3, 5, and 6, mentioned and described in the particular hereunto annexed, at the sum of £1242, and that he has paid a deposit of £186; and I do hereby agree that the vendor, on his part, shall in all respects fulfil the conditions of sale mentioned in the said particular." The Solicitor-General (Sir R. Baggallay) and C. Walker having been heard for the plaintiff, and Southgate, Q.C. and Dauney for the defendant, Sir G. JESSEL, without calling for a reply, said the chief question was, whether the omission to insert the vendor's name in the memorandum of sale brought the case within the Statute of Frauds. It was a question of great importance, for it was almost, if not quite, the universal practice not to insert the vendor's name in the memorandum of sale, and the form used in the present instance was one that was used by many of the most repectable auctioneers. For his own part, he did not think he had ever seen a case in which THE remains of the late Mr. J. C. Grocott, solici- dum of sale. the vendor's name was inserted in the memoranHe did not feel disposed to quarrel tor, Liverpool, were consigned to their last resting with the conclusion of the text writer (Dart's place in the family vault, St. George's church- Vendors and Purchasers, vol. 1, p. 202), that, in yard, Everton, Feb. 27, the mournful ceremony order to satisfy the statute, both parties should being attended by many gentlemen connected bo specified either nominally or by sufficient dewith the Legal Profession and numbers of the general public, who were desirous of paying this scription. It all came back to the question, "What is a sufficient description? Can you find last mark of respect to the memory of one of out from the contract who it is who is selling the Liverpool's best known and highly respected citizens. The funeral cortege started from the signed by two agents, the names of the principals property? If a memorandum of sale were residence of the deceased gentleman in Park-road, not being disclosed, parol evidence would be ada little before eleven o'clock, and reached the missible to show who the principals were; and church at twelve, where a large concourse awaited why should not parol evidence be admissible to its arrival. The chief mourners were Mr. John show who was meant by the term vendor? In Cooper Grocott, the only surviving son of the deceased; Miss Elizabeth Mary Grocott, Mrs. fact, "vendor" might be as good a description of John Hayward, Miss Catherine Bird Grocott, be admitted to show who was meant by the descripa man as his name and surname. Evidence might Miss Martha Adams Grocott, daughters of the deceased; Mr. Chichester S. Willan, nephew; and by the name of John Smith. Here the vendor mention of vendor, as weli as to show who was meant two Masters Hayward, grandsons. Invitations were sent to his worship the mayor (Mr. Alder- referred to in the particular as the proprietor, by tioned in the memorandum of sale was the person man A. B. Walker), Mr. Councillor John Pear-whose direction the auctioneer sold the property, son (ex-mayor), and Mr. Joseph Rayner (town and what more could the purchaser want to clerk), to attend the funeral; but they were prevented by official business. The mayor's know? The term "proprietor" might be thought carriage and that of Mr. Pearson followed the cortege from the house to the church. Among the gentlemen who attended at the grave to witness the last sad rites performed to their departed friend were-Messrs. J. K. Blair, late judge of the Liverpool County Court; H. Hime and J. F. Watson, registrars of the County Court;

The

John Fleet, registrar of the Court of Passage; Henry Walter, prosecuting solicitor; Henry Bremner, David Evans, R. A. Payne, Timpron Martin, T. Seddon Smith, J. B. Wilson, Charles S. Goodman, Jenkins, Charles Pemberton, Mr. Williams, William Williams, John Willox, James Councillor J. Hughes, Edward Cotton, Richard Sykes, Henry Bolland, Thomas Baker, T. Parker, J. Bromley, J. P. M'Bride, Woodburn, Roberts, R. P. Ellis, and Goode, officials connected with County Court; W. Howell, J. F. Jones, Dr. Graham, Dr. Lyth, Dr. R. Williams, J. Gilbert, A. W. Chalmers, P. B. M'Quie, E. Hampson, T. Ambler, Robertson, Seaman, Alcard, and others. service for the dead was read in a most impressive manner by the Rev. T. W. Swift, M.A., incumbent of St. George's; and those present having taken a "long last look" at the resting-place of the lamented deceased, the sad concourse separated. Although in his eightieth year, the deceased was engaged in the discharge of his professional duties almost up to the day of his death; and to his last hour his intellect retained its clearness. at-mace for the borough is rendered vacant. By Mr. Grocott's death the office of sergeantoffice will fall upon Mr. Clarke Aspinall, who, the meantime, the discharge of the duties of the according to the Act of Parliament, will have to act as the sergeant-at-mace until the office is filled up. The council at its next meeting will be called upon to appoint a successor to Mr. Grocott.

ROLLS COURT. Monday, March 2.

In

SALE V. LAMBERT. Contract of sale-Particular-MemorandumName of vendor omitted-Statute of Frauds. THIS was a suit for specific performance. The defendant was the owner of a malting and other buildings situate at Baldock, which were put up for sale by auction in the usual way in July 1872, and were knocked down to the plaintiff. There were several defences to the suit, one of which was that there was no contract within the Statute of Frauds, owing to the vendor's name not being inserted in the contract. The printed particular

an excellent description of the vendor, seeing it of opinion that the term "proprietor" was a was so used in recent Acts of Parliament. Being sufficient description of the plaintiff to satisfy the the statute, and that the other defences to the suit failed, he must make the usual decree for specific performance, with costs.

Besley for the defence.

The prisoner had been, for nine years, the managing clerk to Mr. Alexander Hemsley, solicitor, of No. 5, Albany, and in that capacity had charge of a Chancery suit, Rowland v. Bingley and Bennett, in relation to an estate estimated to be worth £60,000. The property in question included some houses in Greenwich, the rents of which, amounting to upwards of £50, were collected by the Rent Guarantee Society. In July 1872, two cheques drawn by that society, one for £38 16s. 3d. and the other for £20, in favour of the executors, fell into the hands of the prisoner, sented the net rents which the society had colwho gave receipts for them. Those sums reprelected, but the prisoner for some reason asked to have the amount remitted in two cheques instead of one, which was done. He gave a receipt for £58 16s. 3d., that being the aggregate of the two. A Mr. Jackson, a builder, had been employed to do some repairs to the property, but nothing was due to him at that time from the executors. Notwithstanding that, the prisoner got the society to make out a cheque for £20 in favour of Jackson, and afterwards, as was alleged, in a disguised hand, indorsed it in the name of Jackson. By this he was enabled to receive the money, but he never accounted for it to the estate, nor did he produce any receipt of Jackson for it.

The defence set up by the prisoner was that the accounts connected with the estate were in much confusion, and that by a mistake he was led to believe that £20 was due to Jackson, the builder. He intended subsequently to hand over the money, but had omitted through forgetfulness to do so."