NOTES.

It seems convenient to repeat in a conspicuous place that it is not desirable to send MS. on approval without previous communication with the Editor, except in very special circumstances; and that the Editor, except as aforesaid, cannot be in any way answerable for MSS. so sent.

REFERRING to the article in the April number of the REVIEW on the Rio Tinto case as decided in Paris last December, it may be of interest to note that about the same time a case was decided in the Court of Session in Scotland, which is looked upon by some as tending to the opposite extreme. In Bidoulac v. McKidd (17 R. 144), A in 1880, by a lease for nineteen years, let to B a farm at the annual rent of £205, there being a provision in the lease to the effect that in the event of B's bankruptcy the lease shall ipso facto become void and null, as if the same had never been entered into and all right title or management of or in the lands competent to B or to any trustee or manager for his creditors shall cease and determine, and the same is hereby declared to be forfeited to A accordingly.' In 1886, B's estates were sequestrated, and his trustee at once wrote to A, quoting the above clause of the lease, and intimating that in terms thereof, he, as trustee, would vacate the farm at the next term. Of this intimation A took no notice, but let the farm to C at a reduced rent, and after the latter's entry claimed to rank on B's estate for the amount of the reduction of rent capitalized for thirteen years (the years to run of B's lease), under deduction of discount at 4 per cent. B's trustee rejected the claim on the ground that it was barred by the lease, and relied on the ipso facto clause of forfeiture. On appeal, the Lord Ordinary sustained this deliverance, but the First Division of the Court unanimously recalled it, and directed the trustee to rank A for the full amount claimed. The Court held that the clause in the lease was one for the benefit of A, and to be exercised in his option, and the trustee having intimated his determination to vacate the farm, thereby abandoned the lease, and rendered B's estate liable to A in damages for breach of contract.

R. M. W.

A recent judgment of the Roman Court of Cassation illustrates the limits set by Italian law to the principle that the legality of a contract is to be decided by the lex loci contractus. In the case before that Court, the plaintiff, a British subject, sued an Italian domiciled in Constantinople, in the local Consular Court, in respect of certain transactions on the London Stock Exchange which, though sanctioned by English law, are treated by Italian jurisprudence as gaming or wagering contracts, unless such transactions are carried out-which those in question were not-in conformity with the provisions (chiefly of a fiscal nature) contained in the Italian Stock Exchange Act of 1876. From the Consular Court, which gave judgment for the plaintiff, the case was taken to the Court of Appeal at Ancona, which affirmed the judgment. But the Roman Court of Cassation, which finally disposed of the case, reversed the judgment, on the ground

that art. 1802 of the Italian Civil Code, which enacts that the law accords no right of action for a gaming or wagering debt,' thereby prohibits contracts of that nature; and that as art. 12 of the 'Dispositions for the Promulgation, Construction, and Application of the Laws in general' enacts that the laws of a foreign country can in no case derogate from the prohibitory laws of the realm,' the Italian Courts could not, in the case under consideration, give effect to the lex loci contractus.

T. B. B.

We observe with mixed amusement and regret that some learned persons in America still regard that strange apocryphal work the Mirror of Justices as an historical authority. The Hon. C. Caldwell, speaking at the ‘dedication' of a court-house in Arkansas last year, gravely quoted the fable of King Alfred hanging forty-four judges for false judgments. In at least one of these cases the modern lawyer can have but little sympathy with the fourteenth-century publicist who adopted this archaic method of illustrating his opinions by imaginary examples. The crime attributed to the judge is simply that he invented (in anticipation of modern statutes) the offence of larceny by a bailee.

Those of our readers who are interested in Fustel de Coulanges' work may be glad to have their attention called to M. Rodolphe Dareste's criticism of L'alleu et le domaine rural' in the February number of the Journal des Savants. M. Dareste, who may be described as a moderate and candid follower of the Germanic school, corrects or qualifies several of the lamented author's conclusions of detail. M. Glasson has issued a separate reply to the somewhat personal strictures on his work contained in the same volume.

The decision of the Court of Appeal on the rule against perpetuities in Whitby v. Mitchell, 44 Ch. Div. 85, will be fully discussed in the leading articles of our October number.

The reckless drafting of Acts of Parliament, contrasted with the patient and careful analysis bestowed on their interpretation by the Judges, is a sight which might well make the angels weep. In Duncan v. Dixon (44 Ch. D. 211) it was again the Infants' Relief Act, the particular point being whether the Act made void a marriage settlement by an infant. If it does, the prospect is a serious one, for out of the large number of marriage settlements by infants, a very small proportion is made under the Infants' Settlements Act. Conveyancers are accustomed to rely on the infant ratifying the settlement on coming of age, it being in most cases greatly to the infant's advantage to do so. Where the settlement operates by way of grant they may safely rely on ratification. It is satisfactory to know that the Infants' Relief Act does not prevent ratification even where the settlement operates by way of contract or covenant. Putting aside Coxhead v. Mullis (3 C. P. D. 439) and cases of that class, Kekewich J. thinks the Act 'reasonably free from difficulty'; otherwise, an inscrutable mystery. So the learned Judge, in medical language, 'isolates' these cases. If Coxhead v. Mullis was a false step at starting, it is due to the Judges who decided it to observe that it was only so in the sense that we may shrewdly conjecture the Legislature did not mean what it said.

Infants are the spoilt children of English law. Readers of Mayor v. Collins, 24 Q. B. D. 361, will be startled to find that an infant, whether plaintiff or defendant, cannot be compelled to answer interrogatories. We do not dispute the legal soundness of the decision; we greatly doubt its conformity to good sense.

There have been several decisions by Judges of first instance that a banker's deposit note is a good subject of a donatio mortis causa (Amies v. Witt, 33 Beav. 619; Re Taylor, 56 L. J. Ch. 597; Re Farman, 57 L. J. Ch. 637). The peculiarity of the deposit note in Re Dillon (44 Ch. Div. 76) was (1) its being marked 'Not transferable,' and (2) having a cheque to bearer indorsed on the back to be signed by the depositor on payment, which the donor had not signed. Both these difficulties the Court treated as mere straws-being of opinion that the object of requiring the indorsed cheque to be signed by the depositor was merely that the banker might retain it as a receipt, and that as to transferability the Court would aid the donee by requiring the executor to transfer. Lord Eldon long ago stated in Duffield v. Elwes (1 Bl. N. R. 497) that the rule that the Court will not aid a volunteer does not apply to a donatio mortis causa. The Court of Appeal in Re Dillon speak of this as anomalous, but it seems doubtful whether there is any anomaly. A donatio mortis causa, unlike a donatio inter vivos, becomes absolute only in the event of the donor's death. It resembles a legacy more than a gift. It is liable to debts and legacy duty, but subject to these the executor has no more right to dispute the donee's title than the title of any specific legatee.

The other branch of the Court of Appeal discussed a long doubted point as to gifts inter vivos in Cochrane v. Moore, at present to be found only in 6 Times Rep. 296; a case to which we shall return in a future number. We note meanwhile that the Court neither decided nor said that a gift of chattels by word of mouth without delivery has not any effect at all.

The right of an executor to prefer one creditor of equal degree to another 'breaks in,' as Sir J. Leach said in Maltby v. Russell (2 Sim. & St. 228), 'upon the ruling principle that equality is equity'; but it is one of the well-established anomalies of our law (Re Radcliffe, 7 Ch. D. 733): only it must be exercised, if at all, before judgment for administration which impresses the assets with a trust for all the creditors. An order for an account under O. 15 in an administration action is not, it seems, equivalent for this purpose to a judgment and does not take away the right (Re Barrett, 43 Ch. D. 70), neither will the circumstance that one creditor has commenced an action against the executor to recover his debt prevent the executor preferring another (Vibart v. Coles, 24 Q. B. Div. 364), though it would formerly at law. (See Tolputt v. Wells, 1 M. & S. 395.) There is a fine irony in saying that the equity rule now prevails. The unlucky creditor cannot even get a receiver, for the executor is only acting within his legal rights (Re Harris, 35 W. R. 710; Phillips v. Jones, 28 Sol. J. 360). An executor's right of retainer is an analogous anomaly, but more justifiable seeing the executor cannot sue himself. As Lindley L.J. says, it has been 'so ill thought of by Chancellors and those who have had the development of chancery jurisdiction, that they have declined to follow the law where they have had equitable assets to deal with.' In Re Baker (38 W. R. 417) creditors of an insolvent estate tried to get the adminis

tration transferred to bankruptcy in the hope of defeating the right, but the Court of Appeal gave no countenance to the idea that a mere change of forum could affect it. Retainer is the only compensation left to a burdensome and thankless office.

A fiction of law is a convenient deus ex machina' where legal obligations fall short of moral. Thus given, a lunatic, who has been supplied with necessaries, elementary justice requires that the lender should have some means of getting repaid. What, then, so easy as to say that the lunatic has entered into an implied contract? A fiction of law, however, like a fairy tale, must have an air of credibility, not to say a substratum of truth, and talking about an implied contract by a lunatic has an unwholesome element of unreality. Furiosus stipulari non potest' (Bracton). It was quite time for the Court of Appeal to explain (Re Rhodes, 44 Ch. Div. 94) that this most unfortunate expression' of an implied contract which runs through the cases, means only that there is an obligation analogous to contract creating a debt from the lunatic's estate. Here we are on terra firma. The obligation having been built up we may now take down the scaffolding of implied contract. The new Lunacy Act, 1890, says nothing of contracts by lunatics, but it gives a union power to recover expenses of a lunatic's maintenance against his estate (s. 299). One of the most useful parts of the Act is that which gives the Judge in lunacy (s. 116 et seq.) the same powers of management and administration in case of persons of unsound mind as in case of lunatics so found. Hitherto the unsound have been at an undue disadvantage, inquisition being the only evidence on which the Crown exercises its protecting care and custody.

A rule of construction which generally defeats the testator's intention must be somehow defective. If, for instance, an ordinary person were asked whether a testator meant to exclude the children of a brother or sister from taking their parent's share according to the accident of a brother or sister dying before or after the date of the will, the unsophisticated mind would certainly say No. Sir George Jessel, who possessed in an eminent degree the 'genius of common sense,' being pressed in Re Smith's Trusts (5 Ch. D. 497 n.) with Christopherson v. Naylor (1 Mer. 320), declined to attribute. such a capricious intention' to the testatrix in that case. Vice-Chancellor Malins calls it (Christopherson v. Naylor) the origin of a most unfortunate construction' (Re Potter's Trusts, 8 Eq. 57), and Stirling J. in Re Chinery (39 Ch. D. 614, 621) said he should have had a strong inclination' to follow the opinion of Sir G. Jessel if he could. However, the Court of Appeal has now set the seal of its authority on Christopherson v. Naylor (Re Musther, 43 Ch. Div. 569). The distinction taken or rather recognised is a highly artificial one, viz. that what is given is the share of the dead brother or sister, nephew or niece, as the case may be, not the share which such dead brother or sister would, if living, have taken, but as Sir G. Jessel says, when the share of a dead brother or sister is given to his or her children, what can such share mean but the share which the dead person, if living, would have taken? The vicissitudes of Christopherson v. Naylor are only one more illustration of the uncertainty that attends all will construction. The oscillation of judicial opinion which it represents is the necessary result of the conflict of common sense and technical rules. It suggests the question whether technical rules should ever be applied to the construction of inarti

ficial wills. Lord Esher thinks not (Att.-Gen. v. Greene, unreported) and Sir G. Jessel, he says, shared that opinion.

Useful to Householders. Good tenantable repair is such repair as taking into account the age, the character, and the locality of the house, would make it reasonably fit for the occupation of a reasonable-minded tenant of the class who would be likely to want the house.' This definition by Lord Esher and Lopes L.J. (Proudfoot v. Hart, 6 Times R. 305) sums up the case, but perhaps is a little 'at large,' as indeed Lord Esher confesses, for the purposes of the ordinary tenant. Put practically, it means that an outgoing tenant may patch up as long as reasonable, and need not renew. He is under no obligation to repaint or repaper where such painting or papering is merely decorative. As to what is 'decorative repair' we have only Lord Esher's dictum that Appeal Court No. 1 is not in a state of decorative repair; but judging by Crawford v. Newton (35 W. R. 54), decorative repair is distinguished from substantial or structural repair, i.e. repair necessary to maintain the fabric unimpaired. Sometimes neglect to paint will cause the woodwork to rot, then the tenant must paint or whitewash. The principle is, he must not commit waste voluntary or permissive.

The plaintiff in Bank of New South Wales v. O'Connor (38 W. R. 467) tumbled into a very natural pitfall. He made the mistake of supposing that tender by a mortgagor to the morgagee of principal, interest, and costs, is equivalent to actual payment entitling him on the mortgagee's refusal to recover the mortgage deeds by action. Refusal by a mortgagee to accept a proper tender is, as Lord Macnaghten pointed out, not a breach of the mortgage contract for which an action will lie. The case of a pledgee is different, for he has only a special property. A mortgagee cannot be compelled to part with his security till he has received his money (Postlethwaite v. Blythe, 2 Sw. 256). If tender is refused, the mortgagor should, according to the modern practice, get leave to pay into Court a stated sum sufficient to cover principal, interest, and probable costs of suit, and on such payment he may recover his deeds. A mortgagee refusing a proper tender runs the risk of being deprived of his costs.

The old Court of Chancery was very strict with a mortgagee: like Shylock, he was to have his bond and nothing more. He could not clog the equity of redemption by any bye agreement or charge for his personal trouble more than a trustee; but this grandmotherly protection of mortgagors has yielded to a fuller recognition of the just rights of mortgagees as creditors (Nainland v. Upjohn, 41 Ch. D. 126; Union Bank of London v. Ingram, 16 Ch. D. 53). In disallowing a solicitor-mortgagee profit costs of realising his security, the Court of Appeal is retracing the ancient ways' (Re Wallis, Ex parte Lickorish, 38 W. R. 483). The absurdity of the thing is that the solicitor-mortgagee may employ another solicitor, though he may not employ himself, to prepare or realise his security. In London Scottish Benefit Society v. Chorley (13 Q. B. Div. 875), Brett L.J. remarked that it would be unadvisable to lay down that a solicitor-defendant shall not be entitled to ordinary costs if he appears in person, because in that case he would always employ another solicitor. We may safely predict, without the sanction of a Lord Justice's experience, that the solicitor-mortgagee will in future always employ another solicitor. The only result of 'protecting' the mortgagor will be to saddle him with a heavier bill of costs.