Clause 15 is to extend Part II. of the Administration of Justice Act 1920 which relates to the reciprocal enforcement of judgments in the United Kingdom or any other parts of His Majesty's Dominions to judgments or orders given or made by a court in any revenue proceedings, whether a sum of money is or is not made payable thereby, but in such a case sect. 9 (2), (b) and (ƒ) of the Act of 1920 is not to apply. That provides: "No judgment shall be ordered to be registered under this section if (b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit, or agree to submit, to the jurisdiction of that court; or (f) the judgment

was in respect of a cause of action which for reasons of public policy or for some other similar reason could not have been entertained by the registering court." Sect. 14 is also excluded.

The transfer of funds in court held in trust for any charity subject to the jurisdiction of the Charity Commissioners or of the Board of Education or in trust for any ecclesiastical corporation in the Church of England to the Official Trustees of Charitable Funds, or the Ecclesiastical Commissioners is provided for by clause 16.

By clause 17 a very necessary amendment is made to the Guardianship of Infants Act 1886 as amended by the Act of 1925, concerning the powers of the court to make orders regarding the custody of an infant and the right of access thereto of either parent. It is proposed by the new clause to make these powers exercisable upon application by the father of the infant in like manner as they can be exercised upon the application of the mother.

Sect. 154 of the County Courts Act 1888, which regulates the sale of goods taken in execution, is amended by inserting after the words "put in possession by the bailiff" the words "or may be safeguarded in such other manner as the high bailiff directs." This section has reference to the holding by the bailiff between seizure and sale.

Certain minor amendments are contained in the First Schedule to the Bill, but so far as we can see they call for no particular comment. A curious mistake of drafting in the Legitimacy Act 1926 is remedied, for there the repealed Act the Legitimacy (Declaration) Act 1858was mentioned, and the substitionary section, namely, sect. 188 of the Judicature (Consolidation) Act 1925, is now to be inserted.

COMMENTS ON CASES Cyclists and Insurance Policies

WHEN the Oxford Dictionary was in its infancy it devolved upon the compilers to provide a definition of the word "bicycle," a means of locomotion at that time comparatively unfamiliar. The definition was as follows: "A machine for rapid riding, consisting of a saddle-seat surmounting two wheels, to which the rider communicates motion by means of treadles; a two-wheeled velocipede." In due course the Oxford Dictionary also provided the following definition : Vehicle: A means of conveyance provided with wheels or runners and used for the carriage of persons or goods; a carriage, cart, wagon, sledge, or similar contrivance.” In Harper v. Associated Newspapers Limited (163 L. T. Jour. 255) the executors of a deceased cyclist claimed under a policy of insurance in which the insurers undertook to pay £250 in case of death "if the reader while a pedestrian public thoroughfare be killed by accidental impact with a moving vehicle provided that the reader

.

in a

be not at the time of the accident in charge of any vehicle." At the time of the accident the reader stood holding his bicycle" and it was held that the word · vehicle in the policy included a bicycle and as the deceased man was in charge of" the bicycle within the meaning of those words in the policy the insurers were not liable. This point of view was

taken in the recent case of Hansford v. London Express Newspaper Limited (ante, p. 214) where the insurers undertook to make payments "provided that the reader be not

at the time of the accident in charge of any vehicle" and also “in case of death of the reader if he or she shall be accidentally killed while riding a bicycle solely for pleasure, but including journeys to and from the reader's usual place of business." In that case the deceased was returning from his work to his home and was walking, pushing his bicycle along the road, when he was run over from behind by a motor lorry and killed. In arbitration proceedings it was held that, within the meaning of the material clauses of the policy, the deceased was not riding a bicycle, but was a pedestrian in charge of a vehicle, and on an appeal from this award the finding of the arbitrator was upheld. In Simpson v. Teignmouth and Shaldon Bridge Company (88 L. T. Rep. 117; (1903) 1 K. B. 405) Lord Alverstone went so far as to say that he was inclined to think that a bicycle such as the plaintiff's was "hung on springs," i.e., supported by springs. Other cases in which the status of the bicycle is considered are Cannan v. Earl of Abingdon (82 L. T. Rep. 382; (1900) 2 Q. B. 66) and Smith v. Kinnersley (88 L. T. Rep. 449; (1903) 1 K. B. 788). The decision in Hansford v. London Express Newspaper Limited (sup.) appears to be in accordance with the intention of the policy, an intention presumably arrived at after deliberation. At first sight it might appear unfortunate for the claimant that the deceased cyclist should at the time of the accident be prejudiced by the fact that he had taken his bicycle with him, but was not seated upon it. Although the circumstances may have been assumed by the claimant to involve a casus omissus, a contingency of this kind can hardly have been overlooked by the framers of the policy. A pedestrian in charge of a vehicle may frequently be less capable of exercising the vigilance which can be exercised by a pedestrian unhampered by a vehicle or by a person riding in or upon a vehicle. Perhaps the dividing line in these cases would be reached if a similar accident occurred while a motor-cyclist was in the act of running along the highway, pushing his motor cycle in order to gather momentum before mounting it.

Set-off against the Crown

THE question whether, in a claim made against a subject by the Crown, the subject has any right to set off any debt alleged to be due from the Crown was considered by Mr. Justice Rowlatt in Attorney-General v. Guy Motors Limited (ante, p. 259; (1928) W. N. 75). In that case the Crown claimed by information to recover certain sums due as income tax and corporation profits tax, and the respondents claimed to set off certain sums in respect of refunds of tax in pursuance of an agreement with the revenue authorities. Mr. Justice Rowlatt held, however, that a plea of a set-off could not be raised against the Crown. The rules with regard to set-off are now to be found in sect. 39 (1) (a) of the Supreme Court of Judicature (Consolidation) Act 1925, and Order XIX., r. 3, of the Rules of the Supreme Court. Originally the right of set-off was created by two early statutes of Geo. II., i.e., 2 Geo. 2, c. 22, and 8 Geo. 2, c. 24, both of which were repealed and were replaced by sect. 24 (3) of the Judicature Act 1873, which is now re-enacted in the above provision in the Judicature Act of 1925. In order, therefore, to establish the proposition that a set-off might be pleaded against the Crown in the above case it was necessary to determine whether the above statutory provision or order bound the Crown. According to the general principle governing the construction of statutes, a statute will not, except in certain very rare cases, bind the Crown, if the Crown is not expressly declared in the statute to be bound thereby. There is no express provision in the Judicature Acts of 1873 or 1925, nor was there any in the statutes of Geo. II. as to set-off purporting to bind the Crown, so that no right of set-off under those statutes could have been urged against the Crown in the above case. Further, Order XIX., r. 3, could not have applied to the proceedings, since Order LXVIII., r. 1, expressly provides that subject to the provisions of that order, nothing in the rules shall affect, inter alia" (c) proceedings on the revenue side of the King's Bench Division," and Order XIX., r. 3, is not included among the orders enumerated in rule 2 of Order LXVIII. as applying to such proceedings. Indeed, it would seem from Attorney-General v. Guy Motors Limited (sup.), that neither a set-off nor a counterclaim might be pleaded against the Crown, not only in such revenue proceedings, but in any other proceedings brought by the Crown; for, as Mr. Justice Rowlatt pointed out in the above case, "A subject could not make good a

claim against the Crown except in a particular way, namely, by petition of right, and a defendant could not get round that by setting off his claim against a claim by the Crown." The proper course to be taken by the subject, therefore, in such cases, is to present independently a petition of right. This case serves to show once more the anomalies in procedure where the Crown is a party to the proceedings, and it appears to be desirable that the procedure applicable to civil proceedings to which the Crown is a party should be brought at an early date into line with the ordinary procedure which obtains between subject and subject.

Fraud of Agent

Reckitt v. Barnett, Pembroke, and Slater Limited (noted ante, p. 256) is an instance of the old question which of two innocent parties is to suffer by the wrongdoing of a third. The rule has sometimes been stated as follows: "Whenever one of two innocent persons must suffer by the acts of a third person, he who has enabled such third person to occasion the loss must sustain it." In Farquharson Brothers and Co. v. King and Co. (86 L. T. Rep. 810 ; (1902) A. C. 325) Lord Halsbury spoke of the true rule being "that when one of two innocent persons must suffer from the fraud of a third, he shall suffer who, by his indiscretion, has enabled such third person to commit the fraud." Without those words "by his indiscretion," he pointed out that a person who sold a pistol or dagger to some person who came to buy in his shop would be answerable for the use the purchaser made of the pistol or dagger. In the Reckitt case the plaintiff by the joint operation of a power of attorney and a letter, authorised T. to draw cheques in the name and on behalf of the plaintiff upon the plaintiff's bank "without restriction." T. drew a cheque for his own purposes, and paid it to the defendants in part payment for a motor car. The cheque was presented to the plaintiff's bank and paid. The plaintiff sued the defendants to recover the amount of the cheque. The fact that Mr. Justice Rowlatt and Mr. Justice Russell (in the Court of Appeal) were in his favour shows that the case cannot be so clear as it appears. But if persons receiving cheques from an attorney who has express power to draw them to an unlimited extent cannot take them without investigation, the power is largely nugatory. Anyone giving a power of attorney to draw cheques in this manner must surely contemplate that persons dealing with the attorney will not have to refer the matter to him or question the attorney's power. The confidence was misplaced and in that way the plaintiff, by his indiscretion, enabled T. to act as he did, and the majority of the Court of Appeal held that he and not the defendants must suffer. It must be remembered that the plaintiff had given an express power to T. so that the court had not the difficulty of deciding if the plaintiff had impliedly held him out as having an authority to draw cheques.

THE CONVEYANCER

Number of Administrators

SECT. 160 (1) of the Supreme Court of Judicature (Consolidation) Act 1925 (15 & 16 Geo. 5, c. 49) provides that probate or administration shall not be granted to more than four persons in respect of the same property, and administration shall, if there is a minority, or if a life interest arises under the will or intestacy, be granted either to a trust corporation, with or without an individual, or to not less than two individuals. Sub-sect. (2) provides that if there is only one personal representative (not being a trust corporation) then during the minority of a beneficiary, or the subsistence of a life interest, and until the estate is fully administered, the court may on the application of any person interested, or of the guardian, committee, or receiver of any such person, appoint one or more personal representatives, in addition to the original personal representatives. Sect. 160 applies to grants made after the commencement of the Act whether the testator or intestate died before or after that date. Sect. 162 (1) of the Act provides that where the deceased died wholly intestate administration shall, (a) unless by reason of the insolvency of the estate or other special circumstances the court thinks it expedient to grant administration to some other person, be granted to some one or more of the persons interested in the residuary estate of the deceased. In Re Herbert, deceased (135 L. T. Rep. 123; 1926 P. 109) Second Sheet

it was decided by the President of the Probate Division that sect. 160, sub-sect. (1), of the said Act must be read subject to the modification by sect. 162, sub-sect. (1), namely, that the court in the case of insolvency is to have a discretion to grant administration to some person other than those interested in the residue; and that under the latter section it is competent for the court, even during a minority, to appoint a creditor to be a single administrator, as it could formerly have done under the Probate Act 1856, s. 73. But in Re James White, deceased (138 L. T. Rep. 68) it was decided by the Court of Appeal that there was no power, during the minority of the intestate's children, to appoint his widow as sole administrator even though the estate was insolvent, owing to the prohibition contained in sect. 160 (1) which provides that in the case of a minority interest a grant of administration must be made to not less than two persons. The case of Re Herbert was not expressly overruled by Re James White, but doubts were expressed as to the correctness of the decision in the former case. The question is to be dealt with by a clause in the Administration of Justice Bill, see ante, p. 323.

Conveyances by Married Women

ALTHOUGH the acknowledgment of deeds by married women was abolished by sect. 167 of the Law of Property Act 1925, the question as to the necessity of such acknowledgment in the case of deeds executed before that Act still arises. There is no doubt that a married woman can dispose of her statutory separate estate, under the Married Women's Property Act 1882 (45 & 46 Vict. c. 75), without the consent of her husband, and without deed acknowledged, in the same way as if she were a feme sole. But there appears to be a conflict of authority as to whether she can dispose of her nonstatutory separate estate in that manner. In Pride v. Bubb (25 L. T. Rep. 890; 7 Ch. App. 64) Lord Chancellor Hatherley said, in the course of his judgment, that a married woman could pass her separate real estate by deed or will as if she were a feme sole; and in Adams v. Gamble (12 Ir. Ch. 102) the Court of Appeal in Ireland (dissentiente the Lord Chancellor) came to a decision in accordance with that dictum. But in Lechmere V. Bretheridge (32 L. J. Ch. 577) Lord Romilly, M.R. (dissenting from Adams v. Gamble) said that a married woman could not even dispose of an equitable fee limited to her separate use. That case, however, it is submitted, went too far. It was decided by Lord Chancellor Westbury, in Taylor v. Meads (5 New Rep. 248), that when real estate is given to trustees in fee, upon trust for the separate use of a married woman and her heirs, she has the same power of disposition by deed or will over the equitable fee, as if she were a feme sole. In Davidson's Precedents in Conveyancing, 3rd edit., vol. 2, Part I., p. 196, referring to the case of Pride v. Bubb and the aforesaid dictum of Lord Hatherley, the following comment is made: "the dictum must be understood as applying only to the beneficial and not to the legal estate." It is difficult to see how the express words of sect. 77 of the Fines and Recoveries Act (3 & 4 Will. 4, c. 74), requiring assurances of land by married women to be concurred in by their husbands, and requiring the deed to be acknowledged by her, can be got over in law by anything short of an Act of Parliament.

Production of Probates

THERE seems to be a great scarcity of authority as to the right of a purchaser to insist upon production of the probate of a will, for comparison with the abstract thereof. The reply, to the usual requisition that probate of a will must be produced, frequently is that it is not in the possession of a vendor, and that he cannot produce it. No doubt there is a statutory obligation on executors to produce the probate under sect. 36 (5) of the Administration of Estates Act 1925 (15 Geo. 5, c. 23), which provides that any person in whose favour an assent or conveyance of a legal estate is made by a personal representative, may require that notice of the assent or conveyance be written or endorsed on, or permanently annexed to, the probate or letters of administration, at the cost of the estate of the deceased, and that the probate or letters of administration be produced at the like cost, to prove that the notice has been placed thereon, or annexed thereto. But that only applies to assents and conveyances made after 1925. It is true that, as a rule, if there are any documents of which the vendor cannot procure production, he should protect himself by special condition (Wolstenholme and Cherry's Conveyancing Statutes, 11th edit., vol. 1, p. 209, citing Re Halifax Commercial Banking Company Limited and Wood, 79 L. T.

Rep. 536), but that does not apply to instruments of record, such as probates, of which attested or certified copies can be obtained: (Williams on Vendor and Purchaser, 3rd edit., p. 643, and Cooper v. Emery, 2 Ph. 388). If, however, the vendor has the probate in his possession he is bound to produce it, and if it was granted after 1925 it is submitted that he is bound to give the usual statutory acknowledgment of right to its production. If the vendor has not the probate, and does not know where it is, it is submitted that he is bound, but at the expense of the purchaser, to produce an attested or certified copy of it. As an alternative course the purchaser's solicitor might inspect the official copy of the will at Somerset House.

Undivided Shares in Land

PRACTITIONERS are by this time familiar, in a general way, with the provisions of Part IV. of the First Schedule to the Law of Property Act 1925, which deals with undivided shares in existence immediately before the 1st Jan. 1926, but they may not be so familiar with the provisions of sect. 34, sub-sects. (2) and (3) of the same Act dealing with assurances after that date to persons in undivided shares. No doubt a legal estate cannot be created in an undivided share in land after the commencement of the said Act, but land may be expressed to be conveyed, or devised or bequeathed, to persons in undivided shares. Accordingly sub-sect. (2) provides that a conveyance of the kind is to operate as if the land had been expressed to be conveyed to the grantees, or if there are more than four of them to the four first named in the conveyance, as joint tenants upon the statutory trusts, that is, upon trust for sale, and to hold the net proceeds, and the rents and profits until sale, upon such trusts as may be requisite for giving effect to the rights of the parties. Sub-sect. (3) provides that a devise, bequest, or testamentary appointment of the kind before referred to coming into operation after the commencement of the Act is to operate as a devise, bequest, or appointment of the land to the trustees (if any) of the will for the purposes of the Settled Land Act 1925, or if there are no such trustees, then to the personal representative of the testator, and in each case (but without prejudice to the rights and powers of the personal representative for purposes of administration) upon the statutory trusts. It occasionally happens that, when a house or land is left by will to two persons, they desire to retain it in their own possession and control, in that case it would be, necessary for the executor (or the trustees of the settlement as the case may be) to convey the same to the devisees to be held upon the statutory trusts, or upon trusts for sale corresponding with the statutory trusts. See a form of the kind in that very useful work, the Supplement to the 2nd edition of the Encyclopædia of Forms and Precedents, by J. M. Lightwood and J. Burke, p. 152.

Breach of Trust-Interest upon Income

THERE appears to be some conflict of authority as to whether a trustee or executor will be made liable for interest upon an annuity, or other income, which he has improperly retained. As a general rule he will not be so liable (see Anderson v. Dwyer, 2 Sch. & Lef. 301, and Martyn v. Blake, 3 Dr. & War. 125), where Lord Chancellor Sugden decided that the established rule of the court (which, however, is only general and not inflexible) is that interest cannot be recovered upon the arrears of an annuity. But interest will be given upon the arrears of an annuity where the person bound to pay it has been a party to the deed by which it was created, and his acts disclose a system of gross misconduct and opposition to the court for the purpose of evading payment. Mere legal delay is not a sufficient ground to induce the court to give interest, nor will a mere covenant to pay an annuity be sufficient to create an exception to the general rule. But if there is a covenant to indemnify an annuitant against the effect of incumbrances, and the perception of the annuity has been prevented by the claims of incumbrancers, and especially if this has occurred in consequence of the acts of the covenantor, a case for damages under the covenant is clearly shown, and the court in order to prevent circuity of action obtains jurisdiction to give interest upon the arrears of the annuity. That decision was cited with approval by Lord Justice Turner in the Earl of Mansfield v. Ogle (4 De G. & J. 41). In Blogg v. Johnson (16 L. T. Rep. 306; 2 Ch. App. 225), the facts were shortly as follows: The income of the trust fund was not regularly paid by an executor to a widow who was entitled thereto, although repeated applications were made to him both for

payment and accounts. Upon the death of the widow her representative filed a bill against the executor, and in 1866 the Master of the Rolls made an order declaring the widow to be entitled to the net rents and profits until sale, and afterwards to interest on the net balances realised. Subsequently the clerk found that at the death of the widow there was due to her £4380 16s. 1d. An order was made on further consideration that the defendant should pay this sum to the plaintiff, with interest from the date of the order. The plaintiff appealed. It was held (affirming the decree of the Master of the Rolls) that the executor was not chargeable with interest before the date of the certificate. But in Willcocks v. Butcher (16 Sim. 366) interest of four per cent. was allowed to the tenant for life of the trust fund on the amount found due to her for arrears of interest of the fund. That case is only very shortly reported, and see the observations thereon in Blogg v. Johnson. Having regard to the authorities it is submitted that interest will only be allowed on income improperly retained by a trustee or executor under very special circumstances.

Co-ordination of the New Law of Property Acts

THE co-ordination of the various parts of the new Law of Property Acts is one of the main difficulties presented to the practitioner. When the next amendment or Consolidation Act, is passed perhaps a further effort will be made to place like with like; for instance, in order to arrive at the conclusion that a statement, which will be found in the text-books, that a will can no longer pass or create a legal estate in land, is correct, the following enactments (if not some others) have to be perused and considered, namely, (1) clause 3 of the Ninth Schedule to the Law of Property (Amendment) Act 1924; (2) sects. 1 and 3 of the Administration of Estates Act 1925; (3) sub-sect. (2) of sect. 11 of the Law of Property Act 1925; (4) sub-sect. (1) of sect. 52 of the same Act. No doubt in time persons will be able to co-ordinate the various enactments for themselves, but it is a troublesome process. Of course, there must be a limit to co-ordination by Act of Parliament. The learned editors of Wolstenholme's Conveyancing Statutes, 11th edit., have contributed largely to it by means of numerous cross-references.

Agents for Sale-Double Commission

ALTHOUGH it is fairly well known that an agent ought not to take a commission from both sides, there appears to be very little authority on the point. It is therefore satisfactory to have a clear decision thereon by the Court of Appeal. In the recent case of Fullwood v. Hurley (138 L. T. Rep. 49; (1928) 1 K. B. 498), the facts were shortly as follows. The plaintiffs, who were hotel and public-house brokers, general business transfer agents, and licensed valuers, were the authorised agents of the vendor for sale of a public-house. They handed to the defendant an order to view, accompanied by a letter which ended as follows: "We shall be glad to know your decision in due course, and if business is done we shall act for you at the usual brokerage." The defendant ultimately entered into a contract with the owner, and the plaintiff was paid a substantial commission by the vendor. The plaintiff, however, claimed an additional commission of £66 5s. from the defendant, the purchaser, as being due upon the terms of his letter. The County Court judge decided in favour of the plaintiff, but that decision was reversed by the Divisional Court, and the latter was affirmed by the Court of Appeal. Lord Hanworth, in the course of his judgment, said: It cannot be stated too plainly that an agent must not accept commission from both sides; but if there are two commissions that are to be received it must be on the basis of the actual work being done for both parties, with the assent of both parties after full knowledge. If such knowledge is afforded, and it is made plain what position the agent occupies, then it is possible for the agent to act between the parties; but if and so long as the agent is the agent of one party, he cannot engage to become the agent of another principal without the leave of the first principal with whom he has originally established his agency." Lord Justice Scrutton said: "No agent who has accepted an engagement from one principal can, in law, accept an engagement inconsistent with his duty to the first principal, from a second principal, unless he makes the fullest disclosure to each principal of his interest, and obtains the consent of each principal to the double employment." Further, "If Messrs. Fullwood, or any public-house broker, want to get two commissions they must fulfil the two conditions of the

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law by making a full disclosure to each party of the exact nature of their interest, before they make the alleged agreement, and if they get a second commission, of obtaining the consent of each party. It is not enough to say that it is the usual or customary brokerage, because the law has held that a custom to the effect that an agent shall have double brokerage, without informing his principal, is unreasonable, and shall not be enforced; and anybody who does want to get double commission, where he has two different interests in himself which may clash, must fulfil to the strictest extent the requirements of the law."

NOTES OF NEW DECISIONS

By Our Reporters in the Several Courts

COURT OF APPEAL

Trade union-Trades association—Unregistered trade unionAction for money had and received Conspiracy-Obtaining money by duress-Threat, menace, or intimidation-Price maintenance-Breach of by-laws-Sale of motor-car below list price-Threat to put on stop_list-Legality-Payment to avoid being put on stop list-Whether recoverable.

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The plaintiffs sued the defendants for damages for conspiracy, and, alternatively, for money had and received by the defendants to the use of the plaintiffs, on the ground that the money had been obtained from them by duress. The action was tried by Avory, J. and a jury, and at the conclusion of the plaintiffs' case the defendants submitted that there was no case to go to the jury. The judge overruled that objection, whereupon the defendants elected to call no evidence, and the jury returned a verdict for £132, and judgment was given for the plaintiffs for that sum. The plaintiffs and the defendants were all members or officials of the M. Trade Association, which was an association composed of manufacturers, agents, and dealers in motor-cars, formed with the object of encouraging and protecting the motor industry in the United Kingdom, and of insuring that all members of the trade should deal fairly with each other. One of the matters it endeavoured to deal with was to prevent the agents who sold motor-cars for manufacturers from selling motor-cars at prices either above or below the manufacturers' list prices. The association endeavoured to enforce the list price by putting those who contravened it on a stop list," the effect of which would be that no member of the association would supply goods to the named person, or to anyone who supplied him with the protected goods. The plaintiffs were a firm of motor agents and dealers who had been members of the M. Trade Association for some years. In Jan. 1926 it came to the notice of the association that the plaintiffs had transgressed one of the rules of the association by selling a motor-car at a price below the list price. In fact they had been induced to do so by an agent of the association, to whom they sold a motor-car at the full list price, but included in that price a full year's tax—about £9—and some other minor matters. One of the partners in the plaintiff firm attended before the stop list committee of the association, with notice of the charge against him, and the committee informed him, by letter of the 18th March 1926, that if he would pay £200, buy back the car sold at its list price, and insert a signed undertaking in the Journal of the association, he would not be put on the stop list. He assented on the 22nd March, but got the fine altered to payment in two instalments. On the 24th March he sent the association a cheque for £332, being £225 for the re-purchase of the car; £7, the cost of the undertaking; and £100 for the first instalmentthe balance to be paid in three months. Before the second instalment became payable the Court of Criminal Appeal decided in Rex v. Denyer (134 L. T. Rep. 637; (1926) 2 K. B. 258) that to obtain money by a threat to put on the stop list was criminal. The plaintiffs thereupon refused to pay the second instalment, and ultimately issued a writ against the defendants. The M. Trade Association had no express power to demand an apology or an undertaking for future conduct from a member who under-sold.

Held, that the judge should have withdrawn the case from the jury because the evidence only showed an agreement to forbear from doing a legal act, putting the plaintiffs on the stop list, if the plaintiffs would do an act which was not unlawful, i.e., pay money which the plaintiffs might

legally pay and the association might receive; and such an agreement was not a conspiracy; there being neither unlawful end nor unlawful means. There was no evidence of lack of reasonable and probable cause for the demand. Further, there was no case of obtaining money by duress, because the only duress was a threat, in effect, not to supply goods, and such a threat could not reasonably be held to deprive any reasonable man of his voluntary power of action. Rex v. Denyer (sup.) was wrongly decided. The appeal must be allowed and judgment entered for the defendants.

[Hardie and Lane Limited v. Chilton and others (No. 2). Ct. of App.: Scrutton and Sankey, L.JJ. and Romer, J. April 4.-Counsel: Sir Patrick Hastings, K.C., and St. John Field; Sir Henry Slesser, K.C. and Harold Simmons. Solicitors: Kenneth Brown, Baker, Baker; C. S. Tomlinson.]

KING'S BENCH DIVISION

Banker and customer-Acceptance of plaintiffs' bill of exchange Acceptors' bankers instructed by acceptors to pay bill at maturity Bill endorsed in blank by plaintiffs-Bill presented by plaintiffs' cashier at acceptors' bank-Fraud on plaintiffs— Bill paid over counter-Liability of bankers—Negligence— Conversion-Bills of Exchange Act 1882 (45 & 46 Vict. c. 61), ss. 53 and 59.

Action tried before Wright, J. without a jury. In this action, which was commenced at Liverpool Assizes and adjourned to London for further hearing, the plaintiffs, who were Liverpool merchants, supplied certain goods to the N. P. Company. The plaintiffs drew a bill for £876 9s. payable to themselves in three months. The

counter.

N. P. Company accepted the bill and gave their bankers, the defendants, instructions to pay the bill at maturity, The bill became due in March 1924 and the plaintiffs then endorsed the bill in blank and handed it to their cashier, one W., with instructions to take it to their own bank, and have it collected. In fraud of the plaintiffs, W. presented the bill at the defendant bank and asked for payment over the He absconded with the proceeds, and was subsequently sent to penal servitude for this and similar frauds in regard to bills and cheques. The plaintiffs sued the defendant bank for the recovery of the money and based their claim on three grounds: (1) that the defendants had improperly parted with money which they held in trust, or as money had and received for the plaintiffs; (2) that the defendants were guilty of negligence in parting with the money without inquiry; (3) that the defendants' act amounted to conversion. The defendants pleaded a general denial, and contended that they had not been negligent, inasmuch as the person who presented the bill was the plaintiffs' servant. They further contended that the plaintiffs were estopped from denying that W. was authorised to receive the money.

Held, (1) in a case of this kind the duty to take care could arise only when there was privity of contract between the parties, and as this did not here exist the defendants were not guilty of negligence; (2) the defendants never held the money on the plaintiffs' behalf, and the plaintiffs could not take advantage of the order given to the defendants by the acceptors to pay the bill at maturity, as this matter concerned solely the acceptors and the defendants. The plaintiffs, therefore, were not entitled to claim this money as money had and received; (3) the bill being a negotiable instrument, the defendants were protected by sect. 59 of the Bills of Exchange Act 1882 unless the demand for payment over the counter were so unusual that the defendants' suspicions ought to have been aroused (Vagliano's case, 64 L. T. Rep. 353; (1891) A. C. 107, at pp. 127 and 157). Here there were no special circumstances to justify the defendants in refusing prompt payment. There must, therefore, be judgment for the defendants.

[Auchteroni and Co. v. Midland Bank Limited. K. B. Div. Wright, J. March 30, April 2 and 3.-Counsel : J. E. Singleton, K.C. and N. J. Laski ; A. R. Kennedy, K.C. and A. J. Hodgson. Solicitors: Hall, Hawkins, and Co., Manchester; Hill, Dickinson, and Co., Liverpool.] Executor-Joint debt to testator-Promissory note signed by executor and others—Action by executor against co-signatories after probate granted-Whether action maintainable.

Appeal from Swansea County Court. The plaintiff L. J. was appointed as the sole executor of one E. by a will dated the 24th Feb. 1912. On the 1st Dec. 1923 the plaintiff, the defendant I. J. and two other persons made a promissory

note by which they jointly and severally promised to pay E. the sum of £100. E. died on the 18th March 1924, and probate of his will was granted to the plaintiff on the 9th May 1924. In Aug. 1927 the plaintiff commenced proceedings, suing as executor of E. and claiming on the promissory note. The County Court judge gave judgment in his favour. The defendant appealed.

Held, that if the plaintiff were not liable in equity to pay the debt, the common-law rule applied, and it was discharged by release at the date of the testator's death (Freakley v. Fox, 9 B. & C. 130); if he were liable in equity then it was satisfied and discharged by payment at the dåte of the probate. In either case, the debt sought to be recovered had ceased to exist before action brought, and the action was not maintainable. Beecham v. Smith (E. B. & E. 442) was distinguishable, because there the debt was in existence when the action was brought. Appeal allowed.

[Jenkins v. Jenkins, K. B. Div.: Salter and Talbot, JJ. March 20 and 29.-Counsel: P. B. Morle; Roland Burrows. Solicitors T. D. Jones and Co., agents for Edward Harris, Swansea; F. C. Mathews and Co., agents for Beor, Wilson, and Lloyd, Swansea.]

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Landlord and tenant-Rent_restriction—Application to County Court for determination of certain questions—Right of appeal from County Court-Increase of Rent and Mortgage Interest (Restrictions) Act 1920 (10 & 11 Geo. 5, c. 17), s. 2, sub-s. 6. Appeal from Dover County Court. The respondents, E. Tenants Limited, were the landlords of a number of miners' cottages at Eythorne, Kent, and the appellant H. was the statutory tenant of one of these cottages. All the cottages were within the limits of the Rent Restriction Acts. On the 15th July 1927 the landlords served on H. a notice of increase of rent, purporting to increase his rent under three heads: (a) on account of rates paid by the landlords; (b) to the extent of the 15 per cent. profit increase allowed to landlords generally; (c) to the extent of the full 25 per cent. allowed, where a landlord is wholly responsible for repairs. The tenant disputed the validity of the notice, and the landlords made an application to the County Court for the determination of certain questions under sect. 2, sub-sect. 6, of the Increase of Rent, &c., Act 1920, which provides : Any question arising under sub-section (1) (2) or (3) of this section shall be determined on the application either of the landlord or the tenant by the County Court, and the decision of the court shall be final and conclusive." Sub-sect. 1 (d) deals with increases of rent permitted to landlords on account of repairs. By the time the application came on for hearing the tenant had intimated he would dispute the third head of increase of rent only, viz., that on account of repairs. The questions referred to the County Court judge were whether the notice of increase of rent was valid; whether the landlords were wholly responsible for repairs; and, if not, to what extent they were responsible. The tenant contended that a certain clause in his tenancy agreement made him responsible for repairs in part. The County Court judge decided that the notice was valid, and that the landlords were wholly responsible for repairs, and therefore entitled to charge the full 25 per cent. increase under that head. The tenant appealed. On the hearing of the appeal, a preliminary objection was taken on behalf of the respondents that no appeal lay, on the ground that sect. 2, sub-sect. 6, made the decision of the County Court judge conclusive in applications of this kind.

Held, the objection to the appeal must succeed. Although questions of law as well as questions of fact might be involved, the County Court judge had clearly jurisdiction to entertain an application of this kind, and the terms of the statute made his decision final. That view had already been expressed both by the Divisional Court and the Court of Appeal in Strickland v. Palmer (131 L. T. Rep. 648; (1924) 2 K. B. 572).

[Elvington Tenants Limited v. Hatton. K. B. Div.: Salter and Talbot, JJ. March 30.-Counsel: H. H. Maddocks; B. H. Waddy. Solicitors: V. D. De Wet, Dover ; F. A. Cloke, Sandwich.]

Licensing Special removal Refusal Appeal to quarter sessions-Finality of decision of quarter sessions-Absence of power to state a case-Licensing (Consolidation) Act 1910 (10 Edw. 7 and 1 Geo. 5, c. 24), s. 29 (5).

The licensee and the owners of refreshment rooms applied to the licensing justices under the Licensing (Consolidation)

Act 1910 for a special removal of the licence. The justices refused the application, and the applicants appealed to quarter sessions, the justices being the respondents to the appeal. Quarter sessions allowed the appeal, but at the request of the justices stated a case for the opinion of the High Court. Before the High Court the applicants took a preliminary objection that by reason of sect. 29 (5) of the Act quarter sessions had no power to state a case. That sub-section provides that on an appeal against the refusal of a special removal “the judgment of the Court of Quarter Sessions shall be final and conclusive for all intents and purposes."

Held, on the authority of Kydd v. Liverpool Watch Committee (99 L. T. Rep. 212; (1908) A. C. 327), that the finality prescribed by sect. 29 (5) prevented the statement of a case, and therefore the justices' appeal by case stated must be dismissed.

[Piper and others v. Marylebone Licensing Justices. K. B. Div.: Lord Hewart, C.J., Avory and Acton, JJ. April 2 and 3.-Counsel: du Parcq, K.C. and Christmas Humphreys; du Parcq, K.C. and Sidney H. Lamb; Mitchell Banks, K.C. and Harold L. Murphy. Solicitors: White and Leonard; I. Buchanan Pritchard; Greenwell and Co.] Vendor and purchaser-Purchase of lease-Premises to be used as garage-Knowledge of vendor-Work to be done by vendor before completion-Time fixed for completion-Delay by vendor-Whether time of the essence of contract-RescissionRecovery of deposit by purchaser-No memorandum in writing -Effect on action for recovery of deposit.

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Appeal from Croydon Count Court. On the 28th Oct. 1926 the plaintiff paid £50 to the defendant by way of deposit in connection with the proposed purchase of a lease of certain premises at Thornton Heath. On the 29th Oct. the plaintiff signed a document, agreeing to purchase the lease for a sum of £350 per annum, and a premium of £150, possession to be given on or about the 6th day of Dec. 1926." The plaintiff intended, as the defendant knew, to carry on a garage business there, and the defendant agreed to remove a hedge and trees, and to lay concrete on the space in front of the house. On the 29th Oct. the plaintiff paid a second sum of £50 on account of premium in consideration of the defendant's promise to commence the work at once. The time for giving possession was subsequently extended by mutual agreement to the 15th Dec. By the 10th Dec. it was apparent that the defendant could not do the work he had undertaken to do by the 15th Dec., and the plaintiff's solicitors then wrote to the defendant's solicitors to the effect that the plaintiff was not now prepared to proceed with the matter. The plaintiff subsequently brought an action for the recovery of the two sums of £50, as money received by the defendant to the plaintiff's use on the ground of total failure of consideration. The County Court judge held that time was not of the essence of the contract, and that it was not a condition that the work should be done by a particular date so as to entitle the plaintiff to rescind when it became impossible that the work should be completed by that date. He gave judgment for the defendant (the vendor). The plaintiff (the purchaser) appealed.

Held, (1) in the circumstances of the case, time was of the essence of the contract. Even where time is not originally of the essence, it may be made so by a later notice requiring completion by a particular day, if the time allowed is reasonable (Benson v. Lamb, 9 Beav. 502; Crawford v. Toogood, 41 L. T. Rep. 549; 13 Ch. Div. 153). When time is of the essence of the contract, an extension of the time originally fixed does not waive the condition in regard to time (Barclay v. Messenger, 30 L. T. Rep. 351), and here the substitution of the definite date, the 15th Dec., was a precise definition rather than an extension of the time. The plaintiff, therefore, was entitled to rescind the contract on the 10th Dec. and to recover the two sums of £50; (2) it was doubtful whether there was here any memorandum in writing of the contract sufficient to satisfy sect. 40 of the Law of Property Act 1925, but, assuming there to have been none, a purchaser could not in an action for recovery of deposit rely upon this, when the vendor was ready and willing to complete, so as to entitle him to rescind and claim back the deposit. Appeal allowed.

[Bernard v. Williams. K. B. Div.: Talbot and Humphreys, JJ. March 13 and 23.-Counsel: J B. Matthews, K.C. and S. K. de Ferrars; F. P. M. Schiller, K.C. and T. F. Davis. Solicitors: Gibson and Weldon, agents for Frederick Gowen, Croydon; Boustred and Sons.]