THE LAW TIMES. THE JOURNAL OF THE LAW AND THE LAWYERS, VOLUME 144. WHEN ADVISING A CLIENT If you wish to suggest a legacy to some object of national importance, may the After-Care of the Soldiers and Sailors who have been blinded in the War have your consideration? Such a legacy would be a tribute to men whose bravery while serving in the Army has been equalled by their bravery since. If we are to ask of the blind the courage and resolution to bear their fate patiently, and to do their work in the world in spite of all, it is for those who are more fortunate to recognise their claim to help and encouragement. At St. Dunstan's Hostel in Regent's Park the blinded Soldiers and Sailors are taught to become again self-reliant; are, in a sense, recreated to live, though it is in a world of darkness, as happy and useful citizens. They go back to their homes trained in some practical and profitable occupation, but the After-Care of these blinded Soldiers is a matter of most urgent importance. It is necessary to watch over their handiwork, to help them purchase material, to keep them in touch with the best markets, and, above all, to see that their surroundings are happy. An organisation for this purpose has been established by The National Institute for the Blind. The work is being carried out in a way that is systematic, and, above all, sympathetic. Considerable funds are needed that this After-Care of the men who lost their sight in the War may never at any time be neglected. Will you not put their claim before your clients as an object which cannot fail to appeal to those who wish to leave money in such a way that it will be of lasting benefit to a noble cause? - 290 PROBATE, DIVORCE, AND ADMI LEADING ARTICLES. &c. TO BEADERS AND CORRESPONDENTS EDITORIAL TOPICS AND LEADING ARTICLES. to Presumption as Ownership of Ditches-Reversion Duty 1 ... 297 1 THE CONVEYANCER 5 301 306 HIGH COURT OF JUSTICE. KING'S BENCH DIVISION. HARTLEY (app.) v. ELLNOR (resp.).— Vagrancy Suspected person Frequenting street or public place with intent to commit a felony REX v. ARMY COUNCIL; Ex parte RAVENSCROFT.-Mandamus- Army -Military law-Court of inquiry -Proceedings - Regularity LONDON COUNTY AND WESTMINSTER BANK v. TOMPKINS.-Banker and customer- War restrictions Mortgage-Recovery of overdraft 311 FURNESS, WITHY, AND CO. LIMITED REDERIAKTIEBOLAGET BANCO AND OTHERS.- Shipping-Foreign ship in United Kingdom KING'S BENCH DIVISION, IN BANKRUPTCY. CRIMINAL LAW AND THE JURISDIC. TION OF MAGISTRATES.-Borough Quarter Sessions LEGISLATION.-Topics OCCASIONAL NOTES IRISH NOTES...... GENERAL INTELLIGENCE. ance Notes-Defence of the Realm -Belgian Lawyers' Relief Fund 15 PROMOTIONS AND APPOINTMENTS NOTES AND QUERIES CORRESPONDENCE ... 18 19 LEGAL OBITUARY.-Private Henry Rules of the Supreme Court-Rota of Registrars THE GAZETTES ............ The Law and the Lawyers. Time for Service. 19 19 20 20 WE would call our readers' attention to the new rules (post, p. 19) making an alteration in the time of day for service of pleadings, notices, summonses, &c. It will be noticed that the rules are dated Wednesday, the 24th Oct, and that, on account of urgency, such rules were to come into operation forthwith. This being the case, one would have thought they would have been communicated to the legal Press immediately, so as to appear in the current issues. But, following a habit which seems to have become customary with all official legal announcements of importance, no communication was made until we and all our legal contemporaries had gone to press, although ample opportunity existed for earlier publication. Trustees and Trespass. MR. JUSTICE YOUNGER made some very caustic rem arks last week with reference to an action brought by trustees of an estate to restrain trespass and for After damages. Apparently the value of the land in dispute was small, and the action in fact failed. denouncing such an action at this time as a "scandal” and an "outrage impossible to excuse," the learned judge is reported to have said: "I notice that the supposed duty of the plaintiffs as trustees to protect the property in their charge is suggested as justification for their action. It is well to clear our minds of cant on such a matter." As we have stated, the action was cessful; but we can imagine the comments of some Chancery judge in the future had the plaintiffs been possessed of the rights they failed to establish and had neglected to take the necessary steps to protect the interests of the beneficiaries. unsuc PRESUMPTION AS TO OWNERSHIP OF DITCHES. THE old-time-honoured theory that the owner of the hedge or fence is to be presumed to own also the ditch was recently raised in a case before Mr. Justice Younger. His Lordship in that case-Collis v. Amphlett (ante, p. 236; (1917) W. N. 291)--found that the theory had no place in the circumstances. It would, indeed, seem that the theory ought to have worn threadbare, and that the light of day should pass through its tattered remnants. But, on the contrary, it seems that it has hardened through keeping, and is stronger now than ever it was. We suggest that it ought never to have recommended itself to practical lawyers. The agricultural community still retains the notion, but agricultural minds are very conservative in their tendencies. In this article it is proposed to consider the whole matter, and incidentally to notice the significance of the recent case to which we have referred. First let us state the theory in its full measure. It is said that where two properties march upon each other and the exact boundary between them is in doubt, and there is a physical boundary between them consisting of a hedge, bank, or fence, and also of a ditch, then the law will hold that the owner of the hedge, bank, or fence is also the owner of the ditch, always assuming, of course, that there is no sufficient evidence of ownership to the contrary. In other words, it is said that there is a presumption arising from the nature of things that the fence and ditch are in one ownership. The grounds for this presumption are said to be that the conclusion to be drawn when a man makes a fence, which is formed, at any rate in part, by the excavation of a ditch, is that he commenced his ditch at the extreme edge of his land, throwing back the excavated material on to his own land, and thus formed the ditch and fence. We must not be too flippant concerning this theory, for there are a number of authorities where it has been recognised. One of the earliest cases where notice was taken of this presumption appears to be Vowles v. Miller (1810, 3 Taunt. 137). It would seem, indeed, that this case originated the so-called presumption. In that case there was a quarrel between two adjoining owners in reference to a ditch which it was said had been widened by the defendant in the course of scouring to such an extent as to cause a trespass, and the defendant directed his evidence towards proving that the fence had been immemorially a bank with a ditch on the outside of it and not a bank only, and he contended that at common law he was entitled to 8ft. as the reasonable width for the base of the bank and the area of his ditch. The reader will observe that this was merely put forward as a claim. The actual decision of the court went off on a point of pleading neither confirming nor negativing this contention of the defendant. The case is therefore an authority for the existence of the presumption only by reason of an obiter dictum of Mr. Justice Lawrence. That learned judge in the course of the argument laid the matter down as a rule. "The rule," said his Lordship, about ditching is this: No man making a ditch can cut into his neighbour's soil, but usually he cuts it to the very extremity of his own land. He is, of course, bound to throw the soil which he digs out upon his own land; and often, if he likes it, he plants a hedge on the top of it. Therefore if he afterwards cuts beyond the edge of the ditch, which is the extremity of his land, he cuts into his neighbour's land, and it is a trespass. No rule about 8ft. and 4ft. has anything to do with it." We have cited the full passage of Mr. Justice Lawrence's dictum 66 in Voules v. Miller (sup.) for two reasons. First, it is regarded as the main authority on the point, and, secondly, in itself it contains the reason for discounting the whole theory. The first reason is orthodox, the second is far from orthodox. Let the reader remember that what the court was dealing with was the right of the defendant to widen the ditch on the plaintiff's side of it. In other words, he was seeking to show that his land extended beyond the edge of the ditch. The ditch limit was not in dispute, nor was the ownership of the ditch. It was solely a question of whether the defendant owned land which was on the far side of the ditch. Let the reader remember also that the case was heard in the year 1810. The Inclosure Acts had been in full swing for some time past. When we speak of the Inclosure Acts we do not mean the general Acts. We speak of the private or local Acts that came into being in respect of a very great number of places. The areas over which these. Acts operated were often exceedingly small. The Acts were badly drawn. In many cases they were never even printed. In many of these Acts provisions were made for fencing by hedge and ditch the lands parcelled out to severalty owners, who were required to make fences, and the ditches were often prescribed to be 4ft. wide. Hence, we think, the fixing of the so-called reasonable width of the ditch by the defendant in lowles v. Miller (sup.) at 4ft. Then let the reader remember that it was against the bold fixing of the 8ft. and the 4ft. by the defendant that Mr. Justice Lawrence's remarks were levelled. These observations, we think, dispose of Vowles v. Miller (sp.) as any authority for the so-called presumption which we are bold enough to discount. 66 Some years afterwards the presumption as a legal one received the indirect sanction of Mr. Justice Bayley in the case of Noye v. Reed (1827, 1 Man. & Ryl. K. B. 63). Where lands abutting on a ditch and a lane, on each side, belong to different owners,' said his Lordship, "the presumption is that a hedge and ditch on one side belong to the occupier of the land on that side." But the presumption has now received the approval of the Court of Appeal and, having regard to the authority of the case of Craven v. Pridmore (1902, 18 Times L. Rep. 282), we must take it that the courts will treat the presumption seriously. The Master of the Rolls called it a well-established presumption, and the Court of Appeal relied on it, coupled with other evidence, in deciding the case. Now, it was the coupling of the other evidence with the presumption that deprived the presumption again of the dignity of a well-established presumption, although the Master of the Rolls had called it such. A presumption, if it is a true presumption, requires nothing to support it once the ground is laid for raising the presumption. If other evidence is relied on in leading the court.to the conclusion that it may follow the presumption, the whole function and nature of the presumption as such disappears. For these reasons, although we do not pretend to get over the fact that the Master of the Rolls in the last-mentioned case paid the theory the compliment of calling it a well-established presumption, we contend that the theory was not in fact treated as a presumption at all. Map evidence was relied on by the Court of Appeal. There was evidence of acts of ownership which were in conflict with the presumption, if it be a presumption. But, on the other hand, there was the map evidence which supported the presumption. If a presumption be a true legal presumption rebuttable by evidence, the party relying on the presumption must first lay the ground for the existence of the presumption. Thus he would have to show that there was a fence or bank and a ditch and that the circumstances were such that it was reasonable to suppose that the bank was the excavations of the ditch, and that the two together were formed for the purpose of defining the boundary between two different properties. If the theory we are discounting was a true legal presumption, once our friend had established all this, he could "rest on his oars," and the court would find in his favour unless the other side could adduce evidence rebutting the presumption, by showing, for instance, that the ditch and bank or fence had been made by a previous owner of both properties, or by showing that there was some arrangement at the time whereby the one owner on whose land the ditch was made had allowed the ditch to be so made or had made it himself. In Craven v. Pridmore (sup.) acts of ownership were relied on by the other side. Now, the exact functions of a court trying such a dispute in such circumstances would appear, as we humbly suggest, to be to weigh the effect of these acts of ownership. If they were sufficient to rebut the presumption, then the party relying on the presumption would have to attack his adversary's evidence by further evidence. The court would decide on the whole whether or not the presumption had been rebutted. Now, that is not quite what was done in the last-mentioned case. The Court of Appeal merely took the so-called presumption into account, and would appear to have relied on the map evidence. In short, the so-called well-established presumption was not treated as such. The late Lord Alverstone in the case of Henniker v. Howard (1904, 90 L. T. Rep. 157) appears to have been impressed with this aspect of Craven v. Pridmore (sup.), and to have been embarrassed by the way in which the Court of Appeal had dealt with the matter in the last-mentioned case. 66 on In the recent case of Collis v. Amphlett, to which we referred in the opening lines of this article, Mr. Justice Younger held that there was no presumption of law that the owner of a hedge was entitled to four or any other number of feet as ditch-width the further side of his land where there was in fact no ditch, or where the former existence of a ditch could not be proved. This case may be regarded as inferentially acknowledging the existence of the so-called presumption. The position in that case may be correctly put in this way, namely, that the party seeking to establish ownership of a strip outside the hedge had failed to lay the grounds for the presumption, if it can be called a presumption. In other words, the logical consequence of the absence of any proof that there had ever been a ditch at all did away with the prospect of holding that the delimination of ownership was fixed otherwise than by the hedge line. But let us return to the foundation of the theory. Assume the existence of a bank with a fence or hedge or trees upon it and some traces of a ditch on the far side, and assume the title of the ditchwidth to be in dispute, what is the logical conclusion to be naturally drawn from this physical state of things? The only safe conclusion seems to be that the bank and ditch were made at the same time. It does not follow that the man who caused this work to be done was not at that time the owner of both fields on either side. Wherefore it seems to us that it ought to be a condition precedent to deducing any conclusion from the bare state of things that it should be established that the bank and ditch were made as a boundary between two properties. Once that be established, some ground is laid for the presumption, if it can be reasonably assumed that the ditch and bank were both made on the land owned by one of the adjoining owners. But why should even that be so assumed ? What is more reasonable than that two owners of land finding their land unfenced should both contribute part of their land to the common purpose of fencing? Passing over that point, however, and reverting to what we have submitted should be a condition precedent to the application of the so-called presumption where a bank and fence are found to exist between two owners' lands, namely, that it ought to be shown that when the work was done the adjoining properties were in separate ownership, we must warn the reader that the courts would not apparently require any such proof as any such condition precedent. The case of Henniker v. Howard (sup.) would seem to show that the court would not require any such preliminary condition as we have suggested. Wherefore it would seem that once you find a hedge and bank together between the lands of two disputing owners you draw conclusions as follows: First, conclusion No. 1, that the work was done at one and the same time-that is to say, that the bank was thrown out in excavating the ditch. This much, of course, is absolutely reasonable. Secondly, as conclusion No. 2, that when the work was done the two adjoining fields were owned by two several owners. This we consider a very bold conclusion indeed. Thirdly, as conclusion No. 3, that the work was done by one only of the owners and not by both under any arrangement between the two. This is not a very reasonable conclusion. Lastly, as the final and culminating conclusion, you are to infer that the owner doing the work commenced his digging at the extreme edge of his land to avoid a trespass and threw out the soil on to his own land. Why should we draw this final conclusion? See what it involves. A man makes a ditch, which is useless to him, only because he wants the soil to make the bank. By making the bank, if it is to be a sufficient fence, he puts the ditch out of access. He must trespass if he is to scour out the ditch. The strip representing the ditch Third Sheet becomes derelict to him and his successors in title. His neighbour's cattle tramp down the sides and graze on the far side of the bank. In other words, the 4ft. or 5ft. strip representing the ditch is thrown away. No, on the whole, it seems much more reasonable that a man setting out to make a bank and ditch boundary to his land would commence the ditch some way back from the boundary of his land and build the bank in the intervening space. This would preserve extra land for himself. The existence of the ditch thus easily accessible would be an advantage for drainage purposes, and by keeping the ditch on his side of the bank he would retain the benefit of nearly an eighth of an acre of land for every 250 yards of fence. Why should the law assume that a man should not exercise a little thought before commencing to make a ditch? Upon the whole, this so-called presumption seems based on the most flimsy of grounds. REVERSION DUTY. THE land duties imposed by the famous Budget of 1909 depend on no customs or common law, but simply on what interpretation the courts put on the Finance (1919-10) Act 1910. Consequently the Act itself and the decisions on the Act are all that we need consult to ascertain the incidence or non-incidence of the duties. The theory of reversion duty is obviously that the ground landlords obtain such an advantage when the long leases fall in that they are fair subjects for taxation at the rate of 10 per cent. "on the value of the benefit accruing to the lessor." The method of ascertaining the value of this benefit is laid down in the Act. It is "the amount (if any) by which the total value" (as defined in the Act) “ of the lands at the time the lease determines, subject to the deduction of any part of the total value which is attributable to any works executed or expenditure of a capital nature incurred by the lessor during the term of the lease and of all compensation payable by such lessor at the determination of the lease, exceeds the total value of the land at the time of the original grant of the lease, to be ascertained on the basis of the rent reserved and payments made in consideration of the lease (including in cases where a nominal rent only has been reserved the value of any covenant or undertaking to erect buildings or to expend any sums upon the property)." The lessor may thus deduct from the total value any part attributable to his expenditure during the lease and all compensation payable by him at its determination. Money paid by the lessee as a consideration for the acceptance of the surrender of the lease obviously cannot be taken into consideration, as it increases and does not diminish the value of the benefit to the lessor. Nor can money paid by the lessor for the purchase of his lessee's interest, as the purchase price is partly based upon what the lessor will have to pay when he has acquired and merged the lease, and, if he chooses, he need not merge it, and it is not within the words of the Act. In Commissioners of Inland Revenue v. Marquess of Anglesey (108 L. T. Rep. 769; (1913) 3 K. B. 62) the Court of Appeal decided that the granting of a new lease, which was the consideration for the surrender of the old, was not compensation payable by the lessor at the determination of the lease. "It all comes back to this, that a sum paid by a lessor for the purchase of the tenant's unexpired interest in the land is not compensation payable by the lessor at the determination of the lease." Lord Cozens-Hardy was of opinion that the compensation referred to meant only "a sum which is payable at the end of the lease either by virtue of a covenant in the original lease, or, which is quite possible and quite usual, by virtue of some contract during the currency of the lease by which the landlord says: 'If you like to erect these buildings I will pay the then value of them at the end of the lease.'" The greater difficulty has been felt in arriving at the total value at the time of the granting of the lease. To take a familiar example. A landlord agrees with a builder that when the latter has built a house on the landlord's property the landlord will grant him a lease of it. It is clear that the value of the property cannot be ascertained merely on the basis of the rent reserved. The words of the Act partially provide for this state of affairs, as in cases where a nominal rent only has been reserved the value of any covenant or undertaking to erect buildings or to expend any sums 66 upon the property has to be considered. But those provision do not expressly apply where the rent is not nominal or the buildings have been already erected by the lessee. There are, however, the words "payments made in consideration of the lease" to be reckoned with. In the great case of Inland Revenue Commissioners v. Marquess Camden (111 L. T. Rep. 1033; (1915) A. C. 241) a builder had agreed to carry out certain building works, and the landlords had agreed to grant to him on the completion of such works a forty years' lease at the yearly rent of £125; £6000 were expended on the buildings, and in consideration of that expenditure and of the rent and covenants on his part the premises were demised to him. It was argued that "payments" meant payments," such as a premium or fine, made to the lessor. The House of Lords held that the cost of building must be taken into consideration in deciding on the total value of the property at the date of the granting of the lease. There was, however, a divergence of views amongst their Lordships as to whether the precise sum of £6000 or the value of the buildings, subject to the lessee's rights, was to be considered. Lord Parmoor was of opinion that subsequent events could not affect the total value of the land at the time of the grant of the original lease, and that the £6000 and not the subsequent value of the buildings should be taken into account. "The buildings," said his Lordship, "may be burnt down without insurance, or may be found to be useless and unprofitable, but this could not alter either the rent originally reserved or the payments made in consideration of the lease on which the section directs the valuation to be made." Lord Atkinson was of the contrary opinion, as the benefit which the lessor gets in this case is not equivalent to that which he would receive if, the rent being the same, a premium had been paid to him equal in amount to the sum expended in the erection of the buildings." It was not necessary in that case for the House to decide which of these views was correct, and Lords Dunedin and Shaw reserved their opinions on the subject. The question has again arisen in Ecclesiastical Commissioners for England v. Inland Revenue Commissioners (117 L. T. Rep. 253), and Mr. Justice Lush has decided in accordance with Lord Atkinson's opinion, that it is the present value of the lessee's expenditure as at the date of the grant of the lease. In the view of the learned judge, this duty was imposed" to meet the not uncommon case of the owner of the land parting with the land and the usufruct of the land for a defined period, taking a comparatively small sum by way of rent for that period with a view to securing at the end of that period a property which has been greatly enhanced in value by reason of the expenditure of money by the lessee. The principle contended for by the appellants takes no account of this benefit and leaves it untaxed." There are cases where the amount expended in building the house is not known, but, if Mr. Justice Lush's judgment holds good, that will not be a serious omission, as the present value and not the actual sum expended has to be considered. COMMENTS ON CASES. Demolition of a Dwelling-house. THE enactment contained in sub-sect. 3 of sect. 18 of the Housing and Town Planning Act 1909 (9 Edw. 7, c. 44) probably leaves much scope for litigation. But the decision of Mr. Justice Astbury in the recent case of Broadbent v. Rotherham Corporation (117 L. T. Rep. 120) removes doubt concerning one question, at any rate, that might frequently be raised. The section provides for the demolition of a dwelling-house which is unfit for human habitation. And the third sub section-substantially re-enacting sub-sects. 3 and 4 of sect. 33 of the Housing of the Working Classes Act 1890 (53 & 54 Vict. c. 70)-deals with the possibility of an owner undertaking "to execute forthwith works necessary to render" it otherwise. The words of the sub-section upon which the question in the present case occurred were these: "And the local authority consider that it can be so rendered fit for human habitation." Then the local authority are empowered, if thy think fit, to postpone the operation of an order for demolition "for such time, not exceeding six months, as they think sufficient for the purpose of giving the owner an opportunity of executing the necessary works In the present case, the complaint was that the local authority had not given fair and proper consideration to the owner's undertaking "to execute forthwith the works necessary to render the dwelling-house fit for human habitation." There were several dwelling houses belonging to that particular owner which were required by the local authority to be demolished, and orders concerning them had been made antecedently to such undertaking. And, notwithstanding the owner's offer to put the property into repair, it was thought, having regard to the decision in Lancaster v. Burnley Corporation (112 L. T. Rep. 159; (1915) 1 K. B. 259), that the local authority had no option but to see the orders carried out. The decision as to the owner's dwelling-houses was, therefore, come to before her undertaking was received. Without any real consideration thereof, the orders were adhered to. It is, however, indisputable law-elementary as it is essentially reasonable-that when a discretionary power is conferred upon a court, or a judge, or where a public authority has vested in them what is analogous thereto, such power, if exercised at all, can only be so "judicia ly." That is to say, no capriciousness or want of good faith in the exercise will be tolerated. The obvious intention of the subsection is, as was pointed out in the argument in support of the owner's case, to give an owner all possible chance to preserve his property when it is threatened with demolition. If there is no possibility of repairing the same-which can only be definitely ascertained after a full consideration of what is proposed to be done by the owner in the way of executing the necessary works -the owner has little cause to repine. But without such full consideration, the owner has clearly a grievance entitling him to redress. Mr. Justice Astbury's decision in the present case is consequently of a nature to commend itself to most persons as eminently sound. In deciding that the demolition orders were requisite, without giving the owner the opportunity of endeavouring to satisfy them to the contrary, the local authority had not exercised judicially the discretion which the section vested in them, as, in the learned judge's opinion, they were under an obligation to do. Power to Extend Time for Extension of Patent. REPORTS of two important questions of patent law, which were comprised in a recent issue of our reports, are well worthy of the attention of everyone who is interested in that branch of the law. The first of them-namely, that raised in the case of Re Woodall and Duckham's Patent (117 L. T. Rep. 216)—was whether the Comptroller-General of Patents is entitled to extend the time for presentation of a petition for extension of a patent. As stated in our report, the purposes for which the Board of Trade are authorised by sect. 86 of the Patents and Designs Act 1907 (7 Edw 7, c. 29) to make rules under that Act do not relate to such a proceeding. But by the Patents, Designs' and Trade Marks (Temporary Rules Act 1914 (4 & 5 Geo 5, c, 27), the Board of Trade were empowered to make rules (inter alia) "for extending the time within which any act or thing may or is to be done" under the Act of 1907. The rules so authorised were made accordingly. And by rule 3 of them the Comptroller-General of Patents is empowered, at any time during the continuance of the rules, to extend the time prescribed by the Act of 1907 for doing any act in the cases where the facts therein referred to were shown to exist. In these circumstances, Mr. Justice Sargant, before whom the case was hea d, came to the conclusion that, by the combined effect of sect. 86 of the Act of 1907 and rule 3 of the rules made under the Act of 1914, an answer in the affirmative could be given to the question. And his Lordship was further of opinion that rule 8 of Order LII'A. warranted a reference of the application for extension of time to the court. The learned judge considered that he could deal with the matter by way of appeal from the Comptroller. General. Disclaimer by Alien Enemy Patentee. IN the other case to which we are now inviting attentionnamely, that of Re Stahlwerk Becker Ak iengesellschaft Patent (117 L. T. Rep. 216)-the right of an alien enemy patentee to amend his specification by way of disclaimer under sect. 22 of the Patents and Designs Act 1907 (7 Edw. 7, c. 29) came under discussion. It was in answer to a petition for revocation of the letters patent on the ground that there was a want of novelty by reason of prior user and prior common general knowledge, and that the alleged inventi n was not proper subject-matter for letters patent, that the alien enemy patentee applied for liberty so to amend. If the extreme doubt which Mr. Justice Sargant did not hesitate to confess that he entertained as to the order which ought to be made had not been present, it would have been somewhat remarkable considering all the circumstances and the state of the law. For the plain outcome of the decisions of the full Court of Appeal in Porter v. Freudenberg, Kreglinger v. S. Samuel and Rosenfeld, and Re Merten's Patents (112 L. T. Rep. 313; (1915) 1 K. B. 857) is this: While an alien enemy patentee who is not within the realm by the licence of the King cannot sue in this country he can be sued and when his petition has been sought to be revoked he is in the position of a defendant. But inasmuch as he cannot sue, neither is he at liberty to counter-claim, that being, as the learned judge pointed out, in its nature an affirmative and not a defensive proceeding. The defendant in an action becomes the plaintiff on a counter-claim. Whether an application for leave to amend a specification by way of disclaimer is merely a defensive application or whether it is an affirmative application is certainly a question much open to argument, having regard to the provisions of sect. 21 of the Act of 1907. It was admitted on behalf of the alien enemy patentees in the present case that they could not initiate proceedings under that section for leave to amend their specification by way of disclaimer. Did the fact that it was not under that section, but under the section following, that the application in the present case was made convert what was seemingly an initiative proceeding into a defensive one? Or was it by means of a counter-claim that the alien enemy patentees were acting? Had it not been for the intimation that was vouchsafed on behalf of the Crown that the alien enemy patentees' application was conceded to be really a defence to the petition for revocation, and not an initiative proceeding by an alien enemy, Mr. Justice Sargant would, in all likelihood, have refused it. As it was, his Lordship was constrained to acknowledge that it had caused a material change in his original view. The learned judge, however, was careful to add safeguarding terms to the order which he made, as stated in our report. Estate Duty Payable on Death of Annuitant. ས By VIGILANT the Inland Revenue authorities invariably are to discover fresh objects for taxation under the various statutes authorising the same. And very properly is that the attitude which is adopted. Although, at first sight, therefore, a good many years would appear to have been allowed to elapse before it was considered open to levy estate duty upon the cesser of an annuity, yet it is most unlikely that such a source of revenue was overlooked. In all probability, the reason for that apparent hiatus has been that such duty has always been paid without any demur, it being assumed to be chargeable. At any rate, the question whether the liability to pay it existed does not seem to have ever been expressly raised in any case previous to that of Attorney General v. Watson (117 L. T. Rep. 187), which came recently before Mr. Justice Lush. The first part of the Act of Parliament which empowers that duty to be claimed came into operation, however, as far back as the 1st Aug. 1894, the Act being intituled the Finance Act 1894 (57 & 58 Vict. c. 30). sect. 1 of that Act, it will be remembered, property which passes on the death of every person dying after the commencement of the first part of the Act is made subject to a duty called "estate duty." By sect. 2, property so passing shall be deemed to include (inter alia) “ (b) Property in which the deceased or any other person had an interest ceasing on the death of the deceased, to the extent to which a benefit accrues or arises by the cesser of such interest. In the present case, the AttorneyGeneral, on behalf of the Crown, asked for a declaration that upon the death of a certain annuitant under the will of a testator estate duty became payable in respect of the benefit which accrued or arose to the testator's residuary estate upon the annuitant's death by the cesser of the annuity. The annuity was directed by the testator to be paid out of his residuary estate, and primarily out of the income thereof, during the life of the annuitant or such less period as was mentioned in the will. The contention on behalf of the Crown was that, although the annuitant had no estate in the residuary estate, still she had an interest in the residuary estate, because it was thereout that the annuity was payable. Mr. Justice Lush, however, was of opinion that that direction made no difference, because, even if the testator had not made it, the annuity would of necessity have been payable out of the general corpus of the property which was the subject of the will of the testator. It follows, therefore, that the decision in the present case in favour of the right of the Crown to levy estate duty, as stated in our report, is of the widest and most general application. Whether or not it was assumed in the Scottish case of Lord Advocate v. Henderson's Trustees (42 Sc. L. Rep. 720) that such duty is payable on the cesser of annuities, there is now an unequivocal decision by a court in this country that such is the fact, whatever may have formerly been supposed to be the law. Executors' Retainer of Sum Paid under Guarantee. THE facts of the case which came recently before the Court of Appeal of Re Melton; Milk v. Towers (noted 143 L. T. Jour. 409) bear a singularly close resemblance to those of Re Binns; Lee v. Binns (75 L. T. Rep. 90; (1896) 2 Ch. 584), which was decided by Mr. Justice North in 1896. So much so, that if the learned judges of the Court of Appeal had been able to come to the conclusion that Mr. Justice North's decision was At right, it would practically have governed the present case. But, as appears from our note, Re Binns (ubi sup.) was regarded as wrongly decided and consequently must now be treated as having been overruled. The facts there, briefly stated, were these: A father deposited at a bank a sum of £2400 (money of his own) as a continuing security for any amount which might from time to time be owing to the bank by a firm in which two of his sons were the only partners. Interest on the deposit was from time to time paid by the bank to the father. By his will the father gave legacies and shares of residue to the two sons. the date of his death, the sons owed £8858 to the bank, and the sons were afterwards adjudicated bankrupts. The bank proved in the bankruptcy for the whole £8858. It was admitted to be improbable that the estate would realise enough to pay the bank in full, and that the bank would ultimately appropriate the deposit of £2400 towards the payment of the firm's debt. In these circumstances, Mr. Justice North acceded to the view of the rights of the parties that was presented to his Lordship on behalf of the plaintiff in that case and which was as follows: The trustees of the father's will were not entitled to the set-off which they claimed to make, as that would amount to a double proof. Accordingly, the learned judge held that the trustees were not entitled to retain the legacies and shares bequeathed by the will to the sons against the liability of the father's estate as surety to the bank, but that the trustee in bankruptcy was entitled to receive those legacies and shares. A comparison of the foregoing statement with that set forth in our note of the present case shows how trivial and altogether immaterial was the difference between the concatenation of circumstances in both cases. It became essential, therefore, to determine first of all whether Mr. Justice North had pronounced a right decision in Re Binns (ubi sup.). The learned judges of the Court of Appeal in unanimously declaring that the rule against double proof had no application to the present case disposed of the reasoning upon which Mr. Justice North had founded his judg ment in favour of the trustee in bankruptcy. The learned judge said Lord Justice Warrington, unwittingly fell into the fallacy referred to by Lord Justice Giffard in Midland Banking Company v. Chambers (20 L. T. Rep. 346; L. Rep. 4 Ch. App. 398)-that is to say, that the payment that had been made was out of the debtor's estate. Therein lies the gist of the matter. THE CONVEYANCER. Gifts by Will of "Cash." It must be conceded that, according to the dictionaries, the word "cash" is a stricter term than " money." According to Sir James Murray's Oxford Dictionary, "money" may mean "property or possessions of any kind, viewed as convertible into money or having value expressible in terms of money"; but no such wide definition is given of "cash." The decisions on the meaning of the word "money are numerous, and have been reviewed in this journal for the 29th Jan. 1916 (p. 261), the 20th May 1916 (p. 41), and the 10th March 1917 (p. 327), but the cases on the meaning of the word "cash” appear to be rare. One of the earliest was Beales v. Crisford (13 Sim. 392). There the language of the will was "Observing that Francis Beales and bis family are my residuary legatees "for all but cash or moneys so called." The testatrix's estate consisted in part of cash in her house, and at her bankers, long annuities, Columbian bonds, and a promissory note dated prior to her will, and payable to herself or order. It was decided by Vice-Chancellor Shadwell that Francis Beales and his children took the note, annuities, and bonds as joint tenants, those articles being neither "cash or moneys so called." It will be observed that in that case there was a gift of residue, which would tend to restrict the meaning of the words "cash or moneys." In Nevinson v. Lennard (34 Beav. 467) it was held by the then Master of the Rolls (Sir John Romilly) that the word "money," coupled with the word "cash," was confined to money strictly and properly so called. The question turned on the construction of several testamentary instruments. By the second of them the gift was" when all my just debts and legacies are paid, without the smallest deduction arising from any sort of taxes, I give the residue of all my money, either in my bankers' hands or elsewhere, if any such cash be remaining, in trust for, &c." The Master of the Rolls said: "There is no doubt that, although the word 'money,' standing by itself, is confined to the proper meaning of that word, yet if it be given after a direction to pay debts, legacies, and funeral and testamentary expenses, or with any words which denote an intention on the part of the testatrix to dispose of the whole of her estate, it will be construed as synonymous with property, and in the popular and inaccurate sense of the word 'money.' His Lordship said that if the second testamentary instrument stood |