Vict. c. 51, s. 40.) Nor do we see any reason why it should not be applied to the collection of rates as well as of taxes, or why those who pay late should not be chargeable with interest. Unless debts due to the public be all promptly paid, those who lag behind in payment are in a certain measure being supported at the expense of those who do not. Moreover, anything which would tend to lessen the necessity of pressing visits from either tax collector or rate collector could not fail to be a boon both to the collectors and the public. As for the special claimants for relief from taxation, why one class is entitled to relief more than another, let Sir STAFFORD NORTHCOTE decide that question if he can:--whichever he singles out for relief, he is sure to offend all the others.

A COMPARISON of the Bishops' Resignation Act 1869, with the Incumbents' Resignation Act 1871, will show that the beneficed clergy are not quite so favourably dealt with by the Legislature in regard to resignation as the bishops are. By the Bishops' Resignation Act 1869 (32 & 33 Vict. c. 111) s. 2, a retiring bishop is entitled to whichever may be the greater sum, one-third part of the income of the see, or two thousand a year, irrespective of the period of service. By the Incumbents' Resignation Act 1871 (34 & 35 Vict. c. 44) a retiring incumbent is entitled to not more than one-third of the revenues of his benefice, and this amount may be cut down at the discretion of the commissioners appointed under the Act, and is not grantable at all unless the incumbent has served the same benefice for seven years continuously-a restriction which prevents allowance being made for exchanges or promotions. The Deans' Resignation Act 1872 (35 Vict. c. 8) is between the two, allowing the one-third to be made up to certain fixed sums, varying with the nature of the preferment, "if the retiring dean holds no other ecclesiastical preferment." Nothing can be more salutary than the principle of all the three Acts, but we think that it might well be extended to all ecclesiastics with equal liberality, that the beneficed clergy might be guaranteed a minimum retiring pension, and that length of service in the church, not in the particular benefice occupied before retirement, is the proper element for determining it. Neither the revenues of the vacated benefice, nor those under the control of the Ecclesiastical Commissioners would, we presume, suffice for pensions on the scale of civil service pensions-ten-sixtieths of salary after ten years' service, rising one-sixtieth every year for thirty years until the maximum of two-thirds is reached; but we should be glad to see length of service in small livings more liberally rewarded than is possible under the present law.

IN the case of Miles v. Harrison, which came before the LORD CHANCELLOR and the LORDS JUSTICES on the 2nd March, an important principle of equity was involved, any deviation from which ought to be watched with the greatest jealousy. The Rev. JOHN MILES, by his will dated July 1855, after various directions to the trustees and executors relative to the payment of debts, legacies, and annuities, immaterial to the question at issue, disposed of all the residue of his personal estate in favour of certain charitable objects, and added the following proviso: "And my will is and I expressly direct that the three last-mentioned legacies or bequests shall respectively be paid and satisfied out of such part of my personal estate, as can lawfully be applied to the payment thereof, and which shall be reserved by my trustees or trustee for the time being for that purpose." The question was whether or not these words constituted a sufficiently explicit direction to marshal the assets in favour of the charities, to overrule the general rule of law. Vice-Chancellor WICKENS held that they did not, and directed the funeral expenses, debts, and legacies to be paid out of the pure and impure personalty rateably. Upon appeal the decision of the Vice-Chancellor was reversed: (Weekly Notes, March 14.) The old rule, which, we had thought, was too well settled to be disturbed, was that nothing short of a clear and unmistakable intention appearing explicitly on the face of the instrument was sufficient to enable a testator's assets to be marshalled in favour of charities. No marshalling, in fact, could take place unless the testator had, totidem verbis, directed it. Such a rule would be intelligible and easily applicable, and would have the effect of discouraging litigation. The new principle-for so we regard it which seems to be established by the present case, that even slight indications on the testator's part in favour of marshalling will be sufficient, tends to create endless complication and difficulty; and the question of what amounts to a sufficient indication is one which it will be rarely possible to solve without an appeal to the court. The direction to pay the charitable bequests out of the pure personalty amounts to nothing, as they are words added, of course, by conveyancers in every well-drawn instrument; and the further words, "which shall be reserved by my trustees or trustee for the time being for that purpose," are merely an amplification of what had preceded, and clearly do not constitute an unmistakable expression of wish on the testator's part to have the assets marshalled. And there is no decision which justifies the result arrived at in the present case. In the cases of Sturge v. Dimsdale (6 Beav. 462) and Robinson v. Geldard (3 M. & G. 735) there were equally plain directions as to the funds from which charitable legacies were to be paid, and it was held

that no marshalling was to take place. Nor does the case of Wills v. Bourne, decided last year by the late Lord Chancellor, go to such lengths as the present, although Lord SELBORNE expressed some doubt as to Vice-Chancellor WICKENS's judgment in the present case, without, however, being fully acquainted with all the circumstances. That case differs materially from this, inasmuch as the testator by clear implication had made his real estate the primary fund for the payment of his debts; and not only was there a direction to pay the charitable bequests out of the pure personalty, but, as the LORD CHANCELLOR expressed it (the gift in favour of charities being of the residue), “there was a clear separation from the residue of what could not be effectually given to charity." We earnestly hope that this important question will ere long obtain a final and decisive settlement by a judgment of the highest court of appeal.

THE letter of Mr. Serjeant Cox in the Times of Tuesday directs attention to a very strange fact: the payment of a judge, like a labourer, by the day. It appears from this communication that the Judge of the Second Court of the Middlesex Session is not paid, like the Judge of the First Court, and like all other Judges in England, by salary, but by a fee of five guineas per day. There is no necessity to urge the impropriety of such a form of pay. ment for such a service; it will be at once universally acknow ledged, and needs but to be named to be remedied on the earliest opportunity. Such an opportunity will speedily offer itself, for a Bill is about to be submitted to Parliament by the Home Office to settle the salary of the Assistant Judge, which lapsed on the resignation of Sir W. BODKIN; and the appeal is now properly made for removing at the same time the singular anomaly in the second court. The amount of salary that should be allowed to the Judge is unimportant as compared with the manner of payment, which at present is derogatory to the court, to the Judge, and even to the administration of justice. Mr. Serjeant Cox shows that the business of the Middlesex Sessions is second in importance and quantity to that only of the Central Criminal Court. It appears that in his court alone he has tried, during the five years of his presidency, nearly four thousand criminals, a greater number, we believe, than has been tried by any other living Judge, except Sir W. BODKIN. The cases that come before the Middlesex Sessions are, as he points out, not the petty offences usually disposed of at quarter sessions in the country. Metropolitan crime has many special features. It includes a vast variety of frauds, ingeniously concocted, involving often very difficult questions of law and fact. The police magistrates sift the business and dispose of the lesser cases, and only the more important are sent to the sessions. The court sits fortnightly all the year round, with few exceptions, and is usually engaged for a week. There is no vacation. But for all this the Assistant-Judge has the very modest salary of £1500 per annum, and the Judge of the Second Court, paid by five guíneas a day, never receives more in the year than £650, which, as he says, is little more than half the salary of a police magistrate, and not half that of a County Court Judge. There can be no doubt that the Judges of both of these courts are insufficiently paid. The salary of the Assistant-Judge ought not to be less than £2000, nor should that of the Judge of the Second Court be less than £1500. But Mr. Serjeant Cox is more modest in his suggestions. He proposes only that the salary of the Judge of the Second Court should be the same as that of a police magistrate. We should contend that it ought to be more. The further suggestions of the letter are that the Judge of the Second Court should be made such eo nomine. We should prefer the title of Second Judge. He proposes, also, that the two courts should have co-ordinate jurisdiction, so that one Judge should always be enabled to act in all matters in the absence of the other. This would be obviously a great improvement. We trust that the letter will have the desired effect of directing the attention of the members of the new Parliament to the subject, or that when the Bill is before them due provision may be made in it for effecting the obviously desirable objects of payment of a Judge by a salary instead of by the day, whatever the amount of such salary may be.

THE case of Gainsford v. Dunn, which came before the MASTER of the ROLLS on the 4th inst. seems to call for comment, and to open questions of very serious moment. The decision of Sir G. JESSEL in this instance appears to establish a principle of wide application, which is perhaps scarcely warranted by the authorities. By a settlement in 1841, the trustees of certain funds were directed upon the happening of certain events (which took place), to hold the same in trust for the brother and sisters of ANN DUNN, or their respective issue, in such proportions as ANN DUNN should by will appoint. ANN DUNN made her will in 1869, in which the only words which disposed of any property were- "I give and bequeath to my brother, T. DUNN, and to my sisters, ELIZABETH, the wife of R. J. GAINSFORD, and JANE J., the wife of H. T. STAUNTON, the sum of £5 each. All the rest and residue of my property of whatever kind and wheresoever situate, and over which I have any power of appointment or disposition, I

give, devise, and bequeath unto, and to the use of my sisters, MARY and S. R. DUNN, their heirs, executors, administrators, and assigns respectively, for their own absolute use and benefit." It was contended by the plaintiff's counsel that the power being nonexclusive was not well executed. The MASTER of the ROLLS, however, decided that the legacies were, in accordance with the principle laid down by Greville v. Browne (7 H. of L. Cas. 689), charged upon the settled property, and that the appointment was valid. In the very brief report of the case in the Weekly Notes of the 14th March, it does not appear whether ANN DUNN was a feme covert, and whether she had any disposing power over any property not included in the settlement. But in the case as there stated, the novel principle seems to be established that a particular and non-exclusive power may be validly exercised without reference either to the power or to the property subject thereto. The provision in the Wills Act refers only to general powers, and, according to Lord ST. LEONARDS (Powers, 301)-though this statement is open to question-only to powers of appointment by will or deed. And the case of Greville v. Brown did not refer to the execution of a power. All that is established by that and similar cases is, that where there is a gift of legacies followed by a residuary devise and bequest of real and personal estate, the legacies constitute a charge upon the real estate; the question having been whether, upon the personalty proving insufficient to satisfy the legacies, the deficiency was to be made up out of the realty, or the legacies were to abate pro tanto. The personalty would, of course, be the primary fund for payment of the legacies. If in the present case any property whatsoever, however small, was subject to the will, other than what was settled, it seems to us that the decision cannot be supported. And, indeed, its correctness seems open to question even supposing the testatrix had no other property-as, this being a case of a particular power, according to the general rule some reference is necessary either to the property or to the power of appointment. And the words of the will clearly imply that the testatrix had other property than what was settled, in which case the legacies would be payable out of the unsettled property, and the testatrix was attempting to exclude some of the objects of a non-exclusive power.

LEGAL ASPECTS OF THE TICHBORNE CASE. THE literature of the Tichborne case has already been sufficiently voluminous, and what possible object is to be attained by publishing contradictory correspondence of the relations of a convicted felon, about whose crime no fragment of doubt now remains, it is hard to understand. When, however, commentators like Mr. JOSEPH BROWN, Q.C., and Mr. FITZJAMES STEPHEN, Q.C., deal with the subject, the sentamentalism which has surrounded it wholly disappears, and we find ourselves in the cool atmosphere of judicial contemplation. Mr. BROWN has taken the trouble to compare Orton's impostures with other great impostures of a similar kind, and he finds the main features identical. “So far," he says, "from the Tichborne case being a novelty, to those who are well acquainted with history and jurisprudence, it was but a repetition of a play acted many times before, with the same catastrophe, and generally presenting the same features of romantic interest and plausibility to the multitude, and the same indubitable marks of fraud and imposture to the jurist." And he adds: "I will only ask the reader to bear in mind the most prominent circumstances which appear to have held the juries so long in suspense. They seem to have been the following the recognition of the Claimant by his supposed mother; the number of acquaintances of the real TICHBORNE who swore to his identity with the Claimant, many of them being above suspicion of collusion; the number of circumstances related by him which had unquestionably occurred to the real TICHBORNE, and which were supposed to be known only to him, and the coolness with which he bore a long and trying cross-examination. To this should be added an argument urged by many, that an ignorant butcher would not have wit enough to invent or sustain the part of ROGER TICHBORNE with such cleverness and vraisemblance. These were the features of the case which seemed to stick in the minds of the jury, and cause them to hesitate so long. I shall now show that every one of them occurred before in reported cases of the same kind, which yet proved to be gross impostures, and bore the same marks of fraud as this case.'

This he proceeds to do by relating the incidents of several familiar cases, beginning with that of MARTIN GUERRE, and ending with the attempted personations of LOUIS XVII. Mr. BROWN closes his pamphlet with some practical suggestions. He writes: "Our statute law has provided for the crime of false personation of stockholders in the public funds, with the view of fraudulently getting possession of their dividends, and of officers and soldiers in order to get their pay and pension, or of voters at elections, in order to exercise the franchise. But there is no such crime known to our law as false personation of the lost heir to an estate, with a view to get possession of his property. The villain who attempts this part can only be reached if he commits perjury or conspiracy to promote his claims, and consequently he can neither be arrested at the outset of his career, nor punished to the full measure of his

deserts when he is convicted. He may act the part of the impostor for months or years, during which he is daily acquiring fresh knowledge of the history and habits of the missing heir, and thereby daily making fresh dupes; he may even get into possession of the property with impunity; it is only when he comesinto a court of justice and swears falsely in support of his claim that the criminal law can reach him, and even then it can only punish him for perjury. Now, when it is considered that impostures of this kind are generally attempts at robbery on a gigantic scale, and attempts to make the very courts and officers of justice the instruments of fraud and plunder, that they tend to involve innocent families in enormous expense and ruin, and even to get up a popular outcry against the ministers of justice, it may seem that perjury is the least part of such an offence. If a man falsely and wilfully swore that he saw another commit a murder, and thereby caused an innocent man to be hung, the public would think such a crime involved murder as well as perjury. Surely there ought to be a statute that if any man falsely personates another, with intent to defraud any person of any property or title, or to claim a false relationship to any family, he should be guilty of felony, and punishable as such. This would enable the aggrieved family to make an effort to arrest and convict him at the outset of his career, before he had got a crowd of dupes to follow him. The antiquated forms and precedents of our courts are also wholly inadequate to deal with such cases in their full length and breadth, and ought to be reformed, so as to do full and vigorous justice. The court ought to have power at any time to order the body of the claimant to be examined by impartial surgeons, and himself to be examined as a witness first and foremost; to order any witness to be called who could give important evidence, and to prohibit the impudent assumption of the name and title by the claimant until after the trial. And when judgment is given, it is clear that the court ought to have power to declare finally who and what the imposter is; to prohibit him from using or claiming the name to which he has no title, and not only to punish him, but to compel him to make amends, so far as possible to the injured family.' Mr. FITZJAMES STEPHEN is equally instructive, and even more practical. His letter, addressed to the Pall Mall Gazette, is too lengthy for reproduction. In it he goes through the history of the legal proceedings, and whilst admitting that the process in Chancery facilitated ORTON's design, it nevertheless was a material step towards his detection. "The cross-examination which ORTON underwent at the Law Institution was the first step towards his detection. It left much undiscovered, but it showed the other side that if they wanted to detect the fraud they must inquire in Australia and Chili. The Tichborne family might have been placed in very great difficulties if they had never been able to cross-examine ORTON at all, or to learn what his case was till he came into the witness-box on the trial of an action of ejectment; and this must not be forgotten if the proceedings in Chancery are complained of. The question how far a defendant ought to have a right to know the plaintiff's case before it is brought forward in court is a most important one, and the course taken by the Tichborne case ought to be carefully considered in reference to it by those who are now engaged in remodelling civil procedure and fusing law and equity." Mr. STEPHEN then proceeds to show that in this case the interrogation of the defendant, which Mr. BROWN, as appears by the quotation which we have made, thinks ought to have taken place, would have been a mistake. "I have always," says Mr. STEPHEN, "been in favour of the interrogation of accused persons, and I have advocated the introduction of the practice on a variety of occasions for many years; but surely if there ever was a case in which an 'interrogation by a public prosecutor' would have been simply a useless prolongation of a trial it was the Tichborne case. ORTON actually had been subjected to an interrogatory' for many days by Lord COLERIDGE and every word of it was read over to the jury on the trial for perjury. What conceivable advantage could have been gained by asking him any more questions ?" Mr. STEPHEN also differs from Mr. BROWN as to the advisability of giving the Judges the power to call and examine witnesses. "If the Judges could call witnesses," he says, "I am much mistaken if they would often think it wise to use their power. I doubt, indeed, whether they would have done wisely to use it in the Tichborne case. When a witness is called by a party he is carefully examined in private before he is put forward in court, and his evidence, if necessary, is tested by collateral inquiry. Are the Judges to be at liberty to employ an attorney to take the proofs of a witness whom they think of calling or not? If yes, they are at once mixed up in the detail of the case in a manner not easily reconcilable with the general character of their duties. If no, they expose themselves by calling an unknown witness to being the instruments of fraud. Suppose that the Judges had cailed CHARLES ORTON and his sisters, and that they had contradicted each other in the witness box as they have in the columns of the Daily Telegraph, would that have been of much use? Suppose, again, that CHARLES ORTON, being called, had shuffled and equivocated, and said in substance that he could not say whether the defendant was his brother or not, and suppose that he had been forced to admit in cross-examination on the one side that he had signed statements that the defendant was not his

brother, or at all like him, and on the other that he been receiving £5 a month from the defendant, and that he had given information to the other side when money failed, would matters have been much advanced? Or suppose, again, he had said simply, 'Of course it is only my opinion, but as far as I can judge that man is not my brother Arthur'. Practically he would have risked nothing by saying so. No jury would ever have convicted him of perjury for what might have been a mistake; but, being called as the witness of the Judges, his testimony would have had almost decisive weight." It must be admitted that there is very great force in this reasoning. It is satisfactory to find so great a master of procedure and evidence as Mr. STEPHEN Coming to the conclusion that the great length of time during which the Tichborne case lasted does not bring to light any special defect in our procedure, "except, indeed, the defect which is now universally admitted of the intricacy of real property law, and the distinction between law and equity.” "The two trials, especially the trial for perjury," he adds, "might have been shortened to some extent if the rules of evidence had been more strictly enforced, and if the prisoner's counsel and the Judge had taken a different view of their duty; but the only alteration in the substance of the procedure which would have saved much time would have amounted to a revolution in the administration of justice." A practical suggestion which Mr. STEPHEN makes is this. "Would it not be possible," he asks, "in cases in which it is obvious that there is perjury and fraud on one side or the other to empower the Judges to order that the plaintiff or any particular witness or witnesses should not be called unless before they were called they made an affidavit as to the truth of the principal matters to which they were about to depose, and that when the trial took place the jury should not only try the question whether the plaintiff or defendant was entitled to the verdict, but the question whether perjury had been committed by swearing the affidavit; and that if they found it had the court should pronounce sentence on the offender? This would be a very strong check upon a crime which is constantly committed, and which is very seldom punished." Finally, Mr. STEPHEN agrees with everybody else that the punishment of perjury is not severe enough, "and that the whole law on that subject is in a very bad state;" but he does not consider that the case is a disgrace to our system, pointing out that old Lady TICHBORNE was the real causa mali. "The law," he remarks, cannot protect people against the consequences of the fancies of a person incurably wrongheaded on particular points, but not mad enough to be locked up."

66

KNOWLEDGE BY A PURCHASER OF TENANCIES OR CHARGES AS AFFECTING HIS RIGHT TO COMPENSATION.

I

THE judgments delivered by the Lords Justices in a case of Caballero v. Henty, heard on the 11th inst., will, it is to be hoped, prevent any further development of the pernicious and, as we believe, unfounded doctrine propounded by Lord Romilly in James v. Lichfield (21 L. T. Rep. N. S. 521; L. Rep. 9 Eq. 51). That doctrine, we may remind our readers, is that a purchaser who contracts to buy land which he knows to be in the occupation of a tenant cannot succeed in a suit against the vendor for specific performance, with compensation, although it should turn out that the tenant had a lease. In his judgment Lord Romilly is reported to have said: "The case of Daniels v. Davison (16 Ves. 249) determines that as between the tenant himself and the purchaser, the purchaser was bound to inquire, and cannot dispute the tenant's rights. Does that duty apply to the case between vendor and purchaser as well as between purchaser and tenant? have found no case exactly in point, but the principle appears to me to be the same, and to be applicable to both cases. Why is the purchaser bound to inquire as regards the tenant, and yet not bound to inquire as regards his rights against the vendor? The principle is thus stated in argument in that case: 'Whatever puts a purchaser upon inquiry shall be held notice, and if, therefore, he knows that a tenant is in possession he is considered as having notice of the whole extent of his interest,'... if the purchaser chooses to bind himself by agreement with the vendor, knowing of the tenancy, but without having accurately ascertained what was the extent and character of it, and what the results of such inquiry would have led to, he must, as it appears to me, be bound in the same manner as all other persons. I think also that no distinction can properly be drawn in a court of equity, because the matter rests in contract, and the conveyance of the legal estate has not been made to him."

The whole of this ruling is, as it seems to us, utterly unsound. The analogy is faint indeed between the case of a tenant in possession at the time of a legal conveyance to a purchaser for value, asserting as against such purchaser equities of which the fact of possession is held to be sufficient notice, and the case of a vendor who, while contracting to sell in terms which imply that the subject of sale is an estate in possession free from any lease, tenancy, or charge, afterwards turns round and, while admitting the existence of these or similar incumbrances, nevertheless insists that the contract must proceed as if they did not exist, and contends that from the fact of the land being in occupa

tion the purchaser ought to have inquired, and as a consequence of inquiry might have ascertained the real nature of the occupiers' holdings and interest. Such an analogy can only be looked upon as the doctrine of constructive notice run mad. We observe, however, that even in James v. Lichfield, the case was not decided on the mere fact of the tenant's possession (which would have been sufficient to protect the tenant's own equities, whether the purchaser were actually aware of such possession or not), but on evidence that the purchaser did actually know that there was a tenant in possession. A similar remark applies to the cases of Carroll v. Keays and Keays v Carroll (22 W. Rep. 243), in which we see, with some degree of amazement, that the Court of Appeal in Ireland, consisting of two judges so experienced as Lord O'Hagan and Lord Justice Christian, thought it incumbent on them to follow James v. Lichfield as an authority, although Lord Justice Christian said that that case was "actually startling from the length to which it goes." In Caballero v. Henty the Lords Justices very clearly pointed out the absurdity of expecting that a person contracting to purchase should make preliminary inquiries on the land as to the fact or nature of occupancy, and that the interval between the contract and the time of completion was the proper period for such investigations. The facts of the case of Caballero v. Henty did not call for any decision on the question as to the effect on a purchaser of actual previous knowledge on his part of the existence of a tenancy, lease, or charge not disclosed by the contract for sale.

The suit was one by a vendor for specific performance without compensation, under circumstances rendering success hopeless, and was unhesitatingly, and without a reply being called for, dismissed with costs by the Lords Justices in affirmance of the decision of the Master of the Rolls. The value of the case consists in the opinions elicited from the court by the line of argument adopted by the plaintiff's counsel. From those opinions it seems tolerably clear that the question as between vendor and purchaser is really one of description, and not of notice or knowledge-as to what, on the fair meaning of the contract, was the subject of it-as to whether the contract was for an estate in possession, or reversion, free from or subject to tenancies, leases, or other charges.

It appears, also, that the Lords Justices were dissatisfied with the propositions of the late Master of the Rolls in James v. Lichfield.

We absolutely fail to see why a purchaser, as between himself and his vendor, is to be affected by the fact of his knowledge that there are tenants in possession; it is no business of his to make inquiries as to the nature of their holdings previously to entering into the contract. The vendor may be supposed to know his own business, and the nature of his own interest in his own estate, and if he undertakes to sell in words which imply that he is selling an estate in possession or free from charges, we think it clear that the purchaser is prima facie entitled to insist on specific performance with compensation. If the purchaser knows no more than the fact of the estate being in the occupation of tenants, he is surely entitled to assume, as against the vendor, either that they are tenants at will, or that their tenancies will expire by effluxion of time before the day fixed for completion of the purchase, or that by some arrangement between them and the vendor he will be enabled to give possession at the appointed day. Taking the case most unfavourable for the purchaser, viz., that of his having actual and precise knowledge not merely of the fact of the land being in the occupation of tenants, but of the precise nature of their holdings and equities, and that those holdings and equities are of such a nature that it is improbable or impossible that a vendor could have intended to sell otherwise than subject to them-still we say that, even in such a case, although a suit by the purchaser for specific performance with compensation would fail on the ground of mistake (and mistake of which the purchaser was aware) on the part of the vendor, it would not, generally speaking, where the contract was, or was required to be in writing, be competent for the vendor to maintain any suit for specific performance against the purchaser, and certainly not, except on the condition of granting compensation, in respect of the charges or tenancies.

On an assumption of the authority or more properly of the value and correctness of James v. Lichfield, the Appeal Court of Ireland thought themselves bound to overrule the decision of Vice-Chancellor Chatterton, and to decree specific performance without compensation in respect of yearly tenancies at the suit of a vendor who had contracted to convey an estate in possession. It was there argued that notice of a lease was notice of all its contents, or at least of such as are fairly incidental, even as between vendor and purchaser, and that no doubt is so where there has been no misrepresentation or improper concealment, and where the exist ence of the lease appears expressly or impliedly on the face of the contract; beyond this we do not think the doctrine can be carried. Lord St. Leonards has intimated an opinion that it has already been carried too far.

The courts, and especially those of appellate jurisdiction, have repeatedly declared that the doctrine of constructive notice is not to be extended, and we have on several occasions thought it our duty to remark upon decisions of courts of first instance in which

this rule of non-extension has, as we conceived, been too much lost sight of. Thus in an article Law TIMES, Vol. xlv., 157, we endeavoured to show, in opposition to a decision of Vice-Chancellor Malins in Hunt v. White (37 L. J., N.S., 326, Ch.), that clear and unambiguous covenants for title contained in a purchase deed ought not to be controlled by the fact that a particular incumbrance or defect was actually or constructively known to the parties.

So again, in articles LAW TIMES, vol. 1., pp. 154, 492, we pointed out instances in which, as it appeared to us, the doctrine of constructive notice has been unfairly and improperly strained to invalidate the title of a purchaser. There is, happily, now no reason to fear that the English Court of Chancery Appeal will countenance any attempt to extend the doctrine of notice beyond its existing limits.

CONVERSION-ESSENTIAL ELEMENTS.

THE singular case of Hiort v. Bott (30 L. T. Rep. N. S. 25), in which Bramwell, Pigott, and Cleasby, BB., have recently delivered a considered judgment, deserves notice, as well illustrating the law of conversion, and especially as laying down decisively that the animus convertendi is not necessary to constitute it. Very shortly stated, the facts were that the plaintiffs and defendant were both the victims of a fraud, whereby the broker of the plaintiff had caused goods of the plaintiff to be sent to the defendant which had never been ordered by him; and the defendant indorsed a delivery order for them to the broker, with the intention, as the jury found, to get the goods back to the plaintiff, but with the result of depriving the plaintiff of them, though the broker obtaining the goods by means of the delivery order and making away with them. The defendant, therefore, not only did not intend either to convert the plaintiff's goods to his own use or to deprive the plaintiff of them, but intended to get the goods back to the plaintiff in what he conceived to be the quickest way, and for this, for doing in complete innocence what turned out not to be the wisest thing under the circumstances, the court has held him liable in conversion. Nor is there any reason to question the correctness of the decision, but it is said in Addison on Torts, p. 320, that a man is not guilty of a conversion of goods "unless he removes the goods for the purpose of taking the goods away from the plaintiff, or of exercising some dominion or control over them for the benefit of himself or of some other person," and the intention of the defendant has been laid such stress on in so many of the leading cases on conversion, that it is no wonder that Mr. Justice Archibald had directed a verdict for the defendant at the trial. The facts of the case are not at first sight distinguishable from those in Heugh v. London and NorthWestern Railway Company (L. Rep. 5 Ex. 51; 21 L. T. Rep. N. S. 676) which was pressed upon and distinguished by the court. In that case the plaintiffs, acting upon an order supposed to be sent by one of their former customers, but in reality sent by a fraudulent traveller of their own, consigned certain goods to their customer by the defendant's railway. The defendants essayed to deliver the goods according to the address, but the person in charge of the premises refusing to take them in, the defendants took them back to the station and advised the consignees that the goods were held by them not as common carriers, but as warehousemen. Shortly afterwards, upon the traveller bringing the advice note, and also a letter signed by him for the consignees, requesting the defendants to deliver the goods to bearer, the defendants delivered them to him, whereby they became lost to the plaintiffs. It was sought to charge the defendants for a misdelivery on the grounds (1) that they had acted voluntarily in the matter; (2) that they had claimed warehouse rent; but the Court of Exchequer held that the jury had been rightly asked whether the defendants had acted reasonably under the circumstances, and, the jury having answered in the affirmative, upheld a verdict for the defendants. "Their position," said Kelly, C.B., " was that of involuntary bailees; they found these goods in their hands without any default of their own, under circumstances in which the character of carriers under which they received them had ceased." The defendant in Hiort v. Bott may, perhaps, also be best described as an involuntary bailee, and had become so by means of fraudulent orders very similar to those in Heugh's case. What then is the distinction between the two cases? The distinction is that whereas in Heugh's case the defendants were acting in the course of their business, and it became a question for the jury whether they acted reasonably, in Hiort's case the defendant went out of his way to do the act which caused the plaintiff to lose his goods. The defendant had only either to do nothing, or else send the delivery order back to the plaintiff himself, and no harm would have been done. Moreover in Heugh's case it was the plaintiff's act in giving credit to his traveller that the whole difficulty arose, whereas in Hiort's case it was the endorsing of the delivery order to the broker which caused the loss; and the rule is plain, that where of two innocent parties one must suffer by the wrong of a third he who has enabled the third party to occasion the loss must sustain it. (Per Ashhurst, J., in Lickbarrow v. Mason, 1 Sm. L. C. 690.)

The case of Hiort v. Bott is also noticeable for having produced a new definition of conversion,issuing from a court which may be

said to have an hereditary right to deal with the subject of conversion. The frequently cited case of Fouldes v. Willoughby (8 M. & W. 540); the case of Burroughes v. Bayne (5 H. & N. 296), where the whole history of trover may be found in the judgment of Martin, B.; and, lastly, the case of England v. Cowley (L. Rep. 8 Ex. 126; 28 L. T. Rep. N. S. 68), where Martin, B., dissented from the opinion of the rest of the court that the "wrongful deprivation" must be a total and entire deprivation, all proceeded from the Court of Exchequer. And we have it now laid down by that court that conversion "is where a man does an act unauthorised which deprives me of my property for an indefinite time." This is a definition which is perhaps legally rather than verbally correct, extending as it does the meaning of conversion so as to include wrongful deprivation. It is always well to bear in mind the mistake which occurs in the statutory form of declaration under the Common Law Procedure Act. "That the defendant converted to his own use, or wrongfully deprived the plaintiff of the possession of," are the words in the schedule. The mistake, which has no doubt caused much confusion, arose in this way. In the original Bill the words "or wrongfully deprived," &c., did not appear. Lord Denman inserted them, but within brackets, and when the Act came to be printed the brackets were left out: (see London and Westminster Discount Company v. Drake, 28 L. J., 297, C. P., per Willes, J; Day's Common Law ProcedureAct, p. 239.)

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It is somewhat singular that there should be but little, if any, authority on the liability of a person who finds himself in possession of an article left at his house by mistake, or by some wouldbe seller with whom he has had no communication respecting it. Is there any legal obligation, for instance, to keep a sample sent by post which one has not ordered, and if there be, how long does it exist, and could anything be recovered for the expense of keeping it? Advertisements constantly appear to the effect that if A. B. do not fetch away the property which he left behind at C. D.'s house, the same will be sold to pay expenses. It would seem to follow from Baron Bramwell's remarks that there is an authority in these cases to deal reasonably with the articles, and that it would be for a jury to say whether there had been a reasonable dealing or not. It was, however, decided in the old case of Lethbridge v. Phillips (2 Starkie, 544), that there is no obligation in these cases to keep safely. In that case a picture had been damaged which had been borrowed of the plaintiff by a third person in order to show to the defendant, who had not asked to see the picture, nor had had any communication with the borrower on the subject, and it was held that no action would lie upon an implied contract to keep the picture safely, Chief Justice Abbott observing "it often happened that articles of great value were left at gentlemen's houses by mistake, and that in such cases parties could not be considered as bailess of the property without their consent." And Story's comment on the case is that where there is a substantial mistake, or fraud, or imposition, practised by one party on the other, the common law would deem the "contract of mandate," properly so called, void: (Story on Bailments, p. 146.)

LAW LIBRARY.

The Theory of Stock Exchange Speculation. By ARTHUR CRUMP. London: Longmans and Co.

THE connections between the Stock Exchange and the Legal Profession are very intimate, and it is of great importance that lawyers should be familiar with the mysterious proceedings of jobbers, brokers, bulls and bears, and speculators generally on Change. Safe investments are not sufficiently tempting to the enormous amount of capital which is floating about the country, and hence it is that so many thousands of innocent people become involved in "settling days," and too frequently, in violent efforts to escape from overwhelming liabilities, have recourse to the law. The recent cases of Dent v. Nickalls and Maynard v. Eaton, to name two out of dozens, illustrate the important part which Stock Exchange business plays in our courts, and on this ground we think that this work of Mr. Arthur Crump on "The Theory of Stock Exchange Speculation" will prove of interest and value.

A very good instance of the utility of the work is found in the first chapter, in which the author explains certain technical terms. He says:

The members of the Stock Exchange are of two descriptions, jobbers and brokers. The jobber deals in stocks and shares, either as a buyer or seller, at the market prices. The broker deals with the jobber, and is paid a commission by his principal for transacting the business between. the two.

A bull is a speculator who buys for the settlement with a view of selling at some future date at a higher price and gaining by the difference.

A bear is a speculator who hopes to gain by the reverse operation. He sells for the settlement, hoping to buy back at a cheaper price, and gain by the difference.

Contango means continuation charge, for instance: if a bull speculator has £2000 Brighton railway stock open for the account, of which there are two in a month, one in the middle and one at the end, and the settlement which is to take place, say in the middle of the month, is approaching without the price having advanced as much as he supposed it would at the time when he bought, he wishes to carry over or keep the stock open for

PATENT LAW.

(By C. HIGGINS, Esq., M.A., F.C.S., Barrister-at-Law.)

INFRINGEMENT. (Continued from p. 324.) Gibson v. Brand. 1842.-Tindal, C.J., in delivering judgment, said: "The breach alleged in the declaration is that the defendant infringed the patent, by making and putting in practice the plaintiff's invention; and the evidence is, that he gave an order in England, which order was executed in England, for making articles by the same mode for which the plaintiffs had obtained their patent, which articles were afterwards received by the defendant. This is quite sufficient to satisfy an allegation, that he made those articles; for he that causes and procures to be made, may be well said to have made them himself." (4 M. & G. 196; 1 Web. P. C. 631; 11 L. J., N. S., C. P. 183.)

Gamble v. Kurtz. 1846.-Action for the infringement of a patent for "improvements in apparatus for the manufacture of sulphate of soda, &c." The plaintiff, in his claim, said: "I do not claim the exclusive use of iron retorts, but I do claim, as my invention, iron retorts worked in connection with each other, as above described." The defendant had used two chambers, one of ion, and one of brick, connected by an opening through which the material could be pushed from one into the other. Held, that there was an infringement. Coltman, J., delivering the judgment of the Court of Common Pleas, said: "The essence of the plaintiff's improvement in making sulphate of soda was the use of two chambers, with separate furnaces, for the two stages of the process; so that both could be kept in action at the same time, at the different temperature required for each stage; and that principle is equally acted upon, and the same advantage gained, whether both chambers are of iron, or one is of iron and one of brick. The material of which the chambers are composed, not being of the essence of the invention claimed, the patent right might be evaded, although the chambers used by the defendant were not of the material mentioned in the plaintiff's specification." (3 C. B. 425.)

Barker v. Grace. 1847.-The specification of a patent for "improvements in the process of finishing hosiery and other goods manufactured from lamb's wool, &c.," stated the invention to consist in submitting hosiery, and other similar goods, to the finishing process of a press heated by steam, &c., in the manner hereinafter mentioned. A description was then given, by letters, of a drawing which represented a press, which consisted of a box heated by steam, up to which another box similarly heated was to be pressed by means of hydraulic pressure, or by screws, or other well-known means. After describing the method of pressing the goods between these hot boxes, the specification concluded by confining the inventor's claim to the process as above described. Held, that a method of finishing hosiery goods, by

passing them through heated rollers, was not included in this patent, and therefore was no infringement of it. (1 Ex. 339; 17 L. J., N. S., Ex. 122.)

Stevens v. Keating. N. P. 1818.-Action for the infringement of a patent for the manufacture of cements. The specification states the invention to consist in producing certain hard cements of the combination of the powder of gypsum, powder of limestone and chalk, with other materials, such combinations being (subsequent to the mixing) submitted to heat. The specification then describes the method of making cement from gypsum, in the course of which alkali (for instance, best American pearlash) is to be used, and is to be neutralized with an acid (sulphuric acid is stated to be the best); the result is to be subjected to heat. The patentee claimed "the processes of mixing the powdered materials, alkalies, and acids, as hereinabove described, &c." The defendant manufactured cement by combining gypsum with borax, and subjecting the whole to heat. It was in evidence that borax is composed of an acid and an alkali. Held, by Pollock, C.B., that there was sufficient evidence of infringement. His Lordship, in summing up the case, told the jury that "if it had turned out that they (the defendants) had, by the use of borax, produced a substance very superior indeed, I think it would have been a fair question for the jury to consider, whether that was a colourable imitation or evasion, or whether it was a person travelling in his own direction, and making discoveries in the field that was not closed against him." Upon the plea of not guilty his Lordship said: "The question is, has the defendant done that which is within the claim-no matter whether the claim is good or not." (2 Web. P. C. 181.)

Sellers v. Dickinson, 1850.- Pollock, C.B.: "There may be an infringement by using so much of a combination as is material, and it would be a question for the jury whether that used was not substantially the same thing. I think it may be laid down as a general proposition (if a general proposition can be laid on a subject applicable to such a variety of matters as patent lawmatters, indeed, incommensurable with each other, for the same doctrine which would apply to a medicine would scarcely apply to a new material or a new metal), that if a portion of a patent for a new arrangement of machinery is in itself new and useful, and another person, for the purpose of producing the same effect, uses that portion of the arrangement, and substitutes, for the other matters combined with it, another mechanical equivalent, that would be an infringement of the patent." (5 Exch. 324.)

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The Electric Telegraph Company v. Brett. 1851.-Action for the infringement of a patent for improvements in giving signals and sounding alarums in distant places, by means of clectric currents transmitted through metallic circuits." The defendant arrived at the same result by using a circuit not wholly or continuously metallic throughout, but by using the earth, to

an extent nearly amounting to the half, as the connecting medium between two portions of the metal. It appeared in evidence, that after the grant of the letters patent, it had been discovered that a large portion of the wire through which the electric current returned to the battery might be dispensed with by plunging into the earth the two ends of wire which would have been joined by the parts left out, the electric current passing from one end of the wire to the other as effectually as if a continuity of wire had been kept up. Held, that though a circuit upon this principle would not be wholly metallic, yet, inasmuch as it was so in all that part which formed the substance of the patentees' claim, viz., that part which gave the signals, it amounted to an infringement of the plaintiffs' patent. The breaches alleged in the declaration were that the defendant had used and counterfeited the said invention; the evidence was, that the defendant had used or counterfeited part only. The specification described nine several improvements. Held, that the declaration, in speaking of the said invention, was to be understood as charging the using or counterfeiting of the said nine improvements, and that it was suffi ciently proved by showing that one of them had been used. (10 C. B. 838.)

Smith v. The London and North-Western Railway Company. 1853.-Action for the infringement of a patent for "an improved wheel for car. riages of different descriptions." The patentee stated, in his specification, that the "said improved wheel is manufactured wholly of bar iron, by welding wrought iron bars together into the form of a wheel, whereby the nave, spokes, and rim, when finished, will consist of one solid piece of malleable iron. The specification then described the manner in which the invention was carried out. In the claim, the patentee stated that the new invention consisted in the circumstance that the centre boss, or nave, arms, and rim of the said wheel being wholly com posed of wrought or malleable iron, welded into one solid mass, in manner hereinbefore described." The defendants used a wheel, made by welding pieces of wrought iron together so as to form a single compact piece of wrought iron; the mode of forming the nave was the same as that in the specification: the mode of forming the rim was different. Held, that it appearing that the mode of forming the nave was a material, new, and useful part of the invention, the use of it by the defendant was an infringement of the patent. Campbell, C. J., in delivering the judgment of the court, said: "Where a patent is for a combination of two, three, or more old inventions, a user of any of them would not be an infringement of the patent; but, where there is an invention consisting of several parts, the imitation or pirating of any part of the invention is an infringement of the patent." (2 Ell. & B. 69.)

Palmer v. Wagstaff. 1854. - The plaintiff's patent, obtained for "the mode of manufacture of candles by the application of two or more plaited