question should be treated as are defences under the Summary Procedure on Bills of Exchange Act 1855, and the defendant should not be debarred his defence "except where it is plainly vexatious and groundless." This is a somewhat strong expression, and will make a great difference to defendants if carried out at chambers to any extent. Having regard to the comparison between these cases and those under the Bills of Exchange Act, we turned to Mr. Justice Lusu's Practice, vol. 2, 1030, to see what rules governed those affidavits, and find there, "It is not necessary that the affidavit should show a defence upon the merits; it is sufficient if it shows some not absolutely frivolous defence." And again, "Nor is it required that the defence should be set forth with the same particularity as a plea, and though it be denied by the plaintiff, leave to appear will be granted, for the judge will not try the matter upon conflicting affidavits." If some such rule as this is to be used in construing what is a "plausible defence," the masters' work will be lightened, and defendants will at least get more time, though with more costs than hitherto, under the new system. This decision, however, makes it clear that the principle of Order XIV. is only to stop the progress of actions which are really and entirely undefended.

THE EXTRADITION ACT 1870.

A QUESTION of very considerable importance with reference to the law of extradition was argued last week at great length in the Exchequer Division, and elicited copious and well-considered judgments from the Lord Chief Baron and Baron Huddleston. The case in question was shortly commented upon in our issue of last week, but a full report of the judgment delivered on the 3rd inst., which is now before us, and which will shortly appear in our Reports, enables us to give a more critical review of the dicta therein expressed.

One Alexandre Terras, a Swiss subject, was apprehended, on a warrant issued by Sir James Ingham, as a "fugitive criminal," for having, in Switzerland, committed "crimes against the bankruptcy laws." This warrant was issued upon a representation made in accordance with the terms of sect. 8 of the Extradition Act 1870 (33 & 34 Vict. c. 52), which enacts that a warrant for the apprehension of a fugitive criminal, whether accused or convicted of crime, who is in or is suspected of being in the United Kingdom, may be issued "by a police magistrate or any justice of the peace in any part of the United Kingdom on such information or complaint, and such evidence, or after such proceedings, as would, in the opinion of the person issuing the warrant, justify the issue of the warrant if the crime had been committed or the criminal convicted in that part of the United Kingdom in which he exercises jurisdiction." A rule nisi was obtained calling upon the Treasury, the Swiss Government, the Governor of the Middlesex House of Detention, and Sir James Ingham, to show cause why a writ of habeas corpus should not issue to bring up and discharge the prisoner, on the ground that "the warrant did not sufficiently set forth the offence which the prisoner might have committed." The learned counsel for the prisoner contended (1) that the warrant should set forth the precise offence with which the person apprehended was charged; and (2) that the warrant disclosed no offence known to the English law. The Attorney-General for the Crown, and the learned counsel instructed to watch the case on behalf of the Swiss Government, combated both these propositions, and, in the result, the Court decided (1) that it was not necessary for a warrant issued merely for the purpose of appre hension to set forth the precise nature of the offence; and (2) that the warrant did disclose an offence known to the law of this land, such an offence being constituted by the Extradition Act of 1870, which, in the first schedule, in enumerating the offences for which fugitive criminals might be extradited, sets forth the offence "crimes against the bankruptcy laws."

With regard to one point the court was divided in opinion. It appeared that, after the rule nisi was obtained, a fresh warrant was issued pro majori cutelâ, setting forth precisely the exact nature of the offence with which the prisoner was charged. This warrant was not brought under the notice of the counsel for the prisoner until the case came on for argument, and the Chief Baron held with much force that, no notice thereof having been given to the prisoner or his representative, the second warrant would not be a bar to the writ of habeas issuing, while Baron Huddleston controverted this dictum, maintaining that it was competent to show any cause why the prisoner should not be discharged out of custody, and that notice to the prisoner's legal representative was a matter of indulgence, not one of right.

The question involved was deservedly represented by the Attorney General as one of a highly important character, for upon a correct appreciation and determination of the issues raised the efficient working of the Extradition Act, and of the various and multiform conventions entered into with foreign countries, practically depends. In the great majority of cases, especially those connected with infractions of the bankruptcy law, it would be practically beyond the pale of possibility to transmit by the telegraph precise details of any given offence charged against the criminal. Expedition is of course the essence of efficiency in securing the apprehension of a fugitive criminal, and were foreign

authorities compelled to refrain from taking action until they could furnish a detailed description of the offence to be charged, consonant with the strict requirements of law, the result would inevitably be, in a large number of cases, a lamentable failure of justice. Influenced perhaps by considerations of this nature, the learned judges were very decided in their opinion that a warrant of apprehension under such circumstances, unlike a warrant of commitment, need not specifically describe the nature of the offence charged; and further, that the Extradition Act of 1870 and the Convention of 1874 with Switzerland, by describing "crimes against the bankruptcy law as crimes for which fugitives might be extradited, constituted that term, or rather that collocation of terms, a sufficient legal description of a crime to appear upon the face of a warrant.

Assuming that this was not a case comprised within the terms of the Extradition Acts, but was an offence committed within English jurisdiction, it seems more than doubtful whether "crimes against the bankruptcy laws would be a sufficient legal description to appear upon a warrant for the apprehension of a prisoner. By 11 & 12 Vict. c. 42, s. 10, it is enacted that every warrant "shall shortly state the nature of the offence." Are then "crimes against the bankruptcy laws" offences known to the English law? The Debtors Act 1869 (32 & 33 Vict. c. 62), which exclusively deals with offences of this description, enacts that any person, who commits any of the offences thereafter enumerated shall be visited with certain penalties, but there is no definition, by way of description or otherwise, of an offence as a "crime against the bankruptcy laws." Penal statutes are in all cases to be strictly interpreted, and it seems difficult to comprend how such an offence could be laid any more than an offence against "public morality" or an offence against the bye-laws of a railway company. Of course we are now speaking of "offences" in the strict acceptation of the term. It seems evident that the allegation must necessarily be of an offence known to the common law or described by statute, prohibited thereby, and for the commission of which penalties are attached. If, then, such is the case in regard to the municipal law, what is there in the Extradition Act and the various conventions above alluded to, to constitute "crimes against the bankruptcy laws a specific offence chargeable in a warrant? Article X. of the convention with Switzerland declares, "a fugitive criminal may, however, be apprehended under a warrant issued by any police magistrate, justice of the peace, or other competent authority, in either country, on such information or complaint, together with such evidence or after such judicial proceedings as would in the opinion of the officer issuing the warrant justify its issue if the crime had been committed in that part of the dominions of the two contracting parties in which he exercises jurisdiction, &c." Would an information before a police magistrate, that a person had committed "crimes against the bankruptcy laws," justify that magistrate in issuing a warrant for such person's arrest ? It is submitted, with all deference to the learned judges, that it is open to grave doubt whether the words "crimes against bankruptcy laws," contained in article 2 of the convention with Switzerland, and the similar words contained in the Extradition Act 1870, are not, for convenience sake, merely descriptive terms for the specific offences enumerated in the Debtors Act 1869, and by no means intended to constitute a specific offence eo nomine, be it of the nature of a felony or a misdemeanor.

The main argument advanced on behalf of the "criminal" in this case was, not that the warrant did not give an adequate description of the offence charged, but that it did not disclose any offence at all, and, if so, was plainly equivalent to a warrant made out in blank, which, on undoubted authority, is clearly illegal and of no force: (vide 1 Chitty Crim. Law, 110.) It would certainly be well that the Legislature should prevent future complications on this head by expressly enacting what should be a sufficient averment of a charge, appearing upon the face of a warrant for apprehension, in cases of crimes enumerated in the Extradition Act.

THE EFFECT OF A CODICIL. The recent decision of Mr. Justice Fry in Green v. Tribe (38 L. T. Rep. N. S. 914; L. Rep. 9 Ch. Div. 231) is one of the most curious instances of judicial construction which it has ever been our good fortune to meet. The facts are shortly these: A testatrix bequeathed £1000 to trustees upon trusts for her niece Elizabeth Love for life, and after her death for her children. Her real estate was directed to be sold, and of the proceeds and the residuary personal estate two-sixteenths were bequeathed upon trust for her nephew, Stephen Love; other two-sixteenths were bequeathed upon the same trusts as the legacy of £1000 in favour of Elizabeth Love and her children. The will was dated 9th Feb. 1872. By a codicil dated the 27th Aug. 1872, which referred to the will by its date, the bequests in favour of Ellen and Stephen Love were revoked, but the will was confirmed in all other respects. The testatrix made a second codicil, dated the 14th April 1873, in which she recited that "since the date of my said will" she had purchased certain real estate. That real estate she devised to certain persons by name, "the trustees and executors named

in my said will upon and for the several uses, trusts, intents, and purposes in my said will expressed and contained of and concerning my residuary real estate.' She then directed that her general residuary estate should be "divided in the same proportions, and for the benefit of the same parties as in my will is expressed and declared of and concerning my said residuary personal estate, and that each share respectively shall be subject to the same trusts," &c., as if it "had actually formed part of my said residuary personal estate disposed of by my said will. In other respects I confirm my said will." The real estate mentioned in the second codicil was purchased after the date of the will, but before the date of the first codicil.

Mr. Justice Fry delivered a long and elaborate judgment, but the conclusion is stated with sufficient conciseness, and would, we imagine, have been somewhat startling to the testatrix: "The result is, that in my judgment the second codicil was absolutely inoperative." A student would consider this to be a curious illustration of the elementary principles that the first words in a deed and the last in a will are to prevail. The learned judge based his conclusion on the rule that "The will of a man is the aggregate of his testamentary intentions, so far as they are manifested in writing duly executed according to the statute": (Lemage v. Gocdban, 13 L. T. Rep. N. S. 508; L. Rep. 1 P. & M. 57.) Consequently, when a man confirms his "said will," even if he mentions the date of the will, he will not be presumed to have revoked intermediate codicils made subsequently to the will, unless an unmistakeable intention to do so be manifest. This rule is established by the case of Crosbie v. Macdoual (4 Vesey, 610). But these authorities furnish no premises for the conclusion arrived at in Green v. Tribe. They all point to the co-existence of the whole of a man's testamentary dispositions. One codicil is not to destroy another, unless it is expressly intended to do so; but a codicil has never before been required to commit suicide in order that an earlier one may live.

There is a further observation which the learned judge ought to have borne in mind. It is one thing to revoke a will or codicil; it is quite another to revoke a gift therein contained. Hence the citation of cases from the Ecclesiastical Courts has no bearing on the question. A will may contain inconsistent dispositions; a will and codicils may, in particular provisions, so contradict each other that the greatest ingenuity may be required in ascertaining which are to stand and which to fall. But that does not hinder their all being admitted to probate, the Probate Division leaving the questions of construction for the Chancery Division. For the sake of convenience all validly executed testamentary dispositions should be admitted to proof unless a later one totidem verbis annuls an earlier. But the court of construction may so interpret the later as to destroy the effect of the earlier; as, in our humble opinion, it ought to have done in the present instance, although no one would contend that both the will and the two codicils were not properly admitted to probate.

Mr. Justice Fry attempted to reconcile his decision with that of the Master of the Rolls in Burton v. Newbery (34 L. T. Rep. N. S. 15; L. Rep. 1 Ch. Div. 234). It is difficult to imagine how two authorities could more absolutely contradict each other. The Master of the Rolls says-and this is the very point in the case"It does appear to me. that where you describe a will by its date, you do not describe the subsequent codicil as being included in that will." These words are not really inconsistent with Crosbie v. Macdoual, above referred to, because in that case the last codicil was made simply for the purpose of changing an executor, and the will was confirmed; that is, no change was intended in other respects. A codicil of this kind, which would naturally be described as a codicil to a will of such and such date, could not have been in the contemplation of the Master of the Rolls, and it is not necessary to strain his language so as to include such a case. But the decision in Green v. Tribe amounts to a decision that the clearest words of reference to a particular instrument, to the exclusion of another instrument-words precise and accurate if confined to the former instrument, but absolutely untrue if the latter is to be included; words descriptive in detail of the earlier, but utterly inapplicable to the later will not suffice to exclude or annul the provisions of the later instrument, unless an intention so to exclude it be explicitly declared. And so far is this doctrine carried that, although the documents to which it is applied are testamentary, and the later ought to prevail over the earlier, the document last in date shall be held utterly inoperative rather than that this hitherto unheard-of principle should be interfered with. Now it appeared by evidence, which was most properly admitted, that the property referred to in the second codicil had been purchased since the original will, but before the first codicil. In the second codicil, as set out in the report, there are no fewer than eight references to the "said will of the testatrix, in circumstances which show that the original will was alone intended. She had purchased property; she had contracted to purchase other property "since the date of my last will." She had in the said will appointed trustees, declared trusts of her residuary real estate, and she declared that the newly acquired property should be held upon those or similar trusts. None of these things are even alluded to in the first codicil. And the effect of this

singular decision is not only to set up a first codicil as against a second inconsistent with it, but actually to annul substantive gifts contained in this second codicil itself. This decision affords an instance of perverse and misapplied ingenuity which has rarely, if ever, been equalled, and will certainly never be surpassed.

PLEADING AND DISCOVERY-WHAT ARE "MATERIAL FACTS."

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THE rule of pleading contained in Order XIX., r. 4, which enacts that " every pleading shall contain as concisely as may be a statement of the material facts on which the party pleading relies, but not the evidence by which they are to be proved," is one by no means easy of application. What are material facts, and what is the degree of conciseness with which they may be stated, must be considered as still a doubtful matter, notwithstanding that in the case of Philipps v. Philipps and others (39 L. T. Rep. N. S. 329), which concerned these questions, Mr. Justice Mellor stated that he gave his decision at once, so that some authoritative rule upon the subject might be laid down." In that case the action was brought for the recovery of land, and in his statement of claim the plaintiff set out that he was heir male of the body of Sir T. P., who was living in 1513; that he was heir male of the body of Sir J. P., who died in 1629; that he was heir-at-law of Sir E. P., who died in 1697; that he was heir-at-law of Lord M., who died in 1823; and also that he was residuary devisee of Sir J. E. P., who died in 1873. He then claimed possession of the land, but did not set out his pedigree, or state by what devolutions the title of the property had vested in him, which it was alleged he ought to have done in order to conform to the above rule. On the other hand it was urged on the part of the plaintiff that it would have been sufficient to have alleged simply that the plaintiff was seised in fee of the land which the defendants had in their possession. The Court (consisting of Mr. Justice Mellor and Mr. Baron Huddleston) contented themselves with holding that the statement as it stood was good, but declined to go the length of saying that a mere allegation of title would have been enough.

It is clear that, under Order XIX., r. 4, two grounds of objection arise: first, undue prolixity by reason of immaterial allegations being introduced; and, secondly, undue conciseness by omission of what is material. It is, we conceive, much easier to deal with cases coming under the first head than with those under the second. When statements appear in a pleading having no connection with the matter in dispute, they can generally be immediately detected; while, whenever they can be shown to be in any way material to the case which the party pleading them intends to put forward, there has been, as there should be, considerable latitude allowed in stating them. Thus in Heap v. Marris (L. Rep. 2 Q. B. Div. 630) the Court allowed a number of paragraphs in a statement of defence, which stated the existence of matters essential to show that an agreement upon which the action was brought came within the principles on which courts of equity have granted relief against catching bargains, it not appearing that what was so stated was embarrassing in the sense of its not giving notice to the other side what the defendant's case was, or that there was any allegation which could be entirely omitted. When, however, the statement is meagre, and is objected to on the ground of the material facts not appearing, it is very difficult to say what ought to be added, or, in other words, to draw an exact line between material facts and evidence which is material to prove them. In one sense, no doubt, "material facts mean all facts relevant to the matter in dispute, and in this sense they would include every fact which a party is entitled to prove. In another sense they might perhaps be restricted to a bare statement of the cause of claim, defence or reply; and then the proposition contended for by the plaintiff's counsel in Philipps v. Philipps and others would be good; but, if that were to obtain universally, what would be the advantage of having pleadings at all? There is nothing in the new rules to show that the framing of a statement of claim in an action for the recovery of land is to be governed by different principles to those which regulate other actions, and a bare statement of the plaintiff's alleged right would, in every case, be enough as being the "material fact" upon which he relied.

It is evident that what is required by the Act is something between these two extremes, and we would now propose to consider the question whether a statement such as that in Philipps v. Philipps and others is such as was contemplated by the Legislature. With great deference we venture to think it is not. A number of facts were there set out which might or might not be material, but we think, treating them as a whole, these could not fairly be said to have been the material facts upon which the plaintiff intended to rely. Such facts, if the plaintiff intended to succeed at all, must have been such a series of facts as would go to make up his title to the land, which the facts set out did not; and the Act itself seems to indicate that in an action for the recovery of land a title should be shown in the statement of claim, when in the 25th rule of the same Order it says that no defendant in such an action need plead his title unless his defence depends on an

equitable estate or right, or he claims relief upon any equitable ground against any right or title asserted by the plaintiff. Moreover, in the forms in Appendix C, that of a statement of claim for recovery of land sets out facts showing a title in the plaintiff, and if a mere allegation of title were sufficient it would probably have been drawn in that form.

What we think is really required in pleadings of all sorts, whether in actions for the recovery of land or otherwise, is an epitome of the case which they are intended to support; and by the case we mean the series of facts which will establish the claim or defence respectively. Not only must the facts be material, but their necessary materiality should appear upon the face of the pleading which contains them, and the pleading should be confined to a statement of such facts, together with the claim for relief, and should not be extended to stating facts which are material only in the sense of establishing those facts which make up the case. These remarks are, we think, borne out by two cases, one of which shows that the material facts, and not merely the conclusion to be drawn from them, must be stated, and the other that the meaning of the word "material" is as above stated. The first is Harbord v. Monk (38 L. T. Rep. N. S. 411). There, in an action against a stockbroker by his late employer, to reopen the accounts upon the ground of fraud, the plaintiff in his statement of claim alleged that the accounts delivered were untrue and unfair, that brokerage and commission had been improperly charged, and that excessive and unfair profit had been made. The defendant was held to be entitled to an order for further and better particulars of the above charges, or in default that the paragraphs containing them should be struck out. The other case is Herring v. Bischoffsheim (W. N. 1876, p. 77). There the action was brought against a company by the purchasers of the company's bonds for issuing a fraudulent prospectus, and it was held to be unnecessary for the statement of claim to set out the motives which led to the issuing of the prospectus, or the scheme of which it was a part. In this case the facts here set out were, or might have been, all material, but they were not such as the plaintiff necessarily intended to rely upon, and therefore the material facts were not stated as concisely as they might have been if they had been restricted to such as went to make up his case. Lastly, we should observe that where material and immaterial facts, or facts only material in the sense of being relevant to the issue, are so mixed up together as to make it almost impossible to distinguish the case which they are intended to support, the whole pleading will be struck out as embarrassing. See Davy Brothers v. Garrett (38 L. T. Rep. N. S. 77), in which case Lord Justice James said that "the court could not be too strict in taking care that the pleadings should not degenerate into the oppressive character of some of the pleadings in the old Court of Chancery."

A similar difficulty as to what is and what is not "material" often occurs with respect to discovery. Immateriality is an old objection to discovery and may arise in three ways: firstly, in relation to the subject-matter of the action; secondly, as regards a party; and, thirdly, in respect of the time when it is sought. We propose to deal very shortly with the first kind only, and it is to be noted with respect to it that a similar distinction is made as in the case of pleadings between material facts and the evidence by which they are to be proved. In Eade v. Jacobs (37 L. T. Rep. N. S. 621) it was laid down by Lord Justice Cotton, who delivered the judgment of the Court of Appeal, that discovery might be had of the former but not of the latter; but it is clear that the material facts which are to be sought by interrogatories are not the same as the material facts to be stated in pleadings, for otherwise there would be no place for interrogatories at all if the pleadings were properly drawn. In Ashley v. Taylor (38 L. T. Rep. N. S. 44) the statement of claim alleged that the defendants had advertised a worthless mine by means of private newspapers and circulars containing false statements, and that the plaintiff was thereby induced to take shares. The defendants were held by the Court of Appeal to be entitled to administer interrogatories asking the grounds on which the plaintiff alleged the mine to be worthless, and that he should set out the particular papers by which he had been deceived, and the reason was, that these interrogatories, which had been disallowed in the court below, were simply directed to ascertain the "material facts; " but it is clear that the desired information was such as could not have been properly stated in the pleadings: Herring v. Bischoffsheim, sup.) As to this more extended meaning of the word "material as applied to discovery, see also Saunders v. Jones (37 L. T. Rep. N. S. 395), and Fisher v. Owen (38 L. T. Rep. N. S. 527); and in connection with these cases we would observe that, though the word "immateriality" is constantly used by the courts with respect to the objection as regards the subject-matter of the action, in the Judicature Act it is only used with respect to the objection in point of time, and that for other cases the word "irrelevancy" is used: (see Order XXXI., r. 5, and the same rule as amended by the Rules of the Supreme Court, Nov. 1878.) Whether there is any real difference between the respective meanings of the words " 'immateriality and "irrelevancy" may be doubtful; but, as the above cases show that there is a substantial difference between the objection as applied to pleadings and the objection as applied to discovery,

it might perhaps be as well if the distinction in terms were always retained.

To sum up what we have said above, we conceive that the material facts necessary to be stated in pleadings are those which make up the respective cases of the parties—or, in other words, those which raise the issue or issues to be tried; while the material or relevant facts which may be extracted by discovery are those which are in any way relevant to any issue, and are used for the purpose of deciding it.

CAN THE STATUTES OF LIMITATION BE RAISED
BY DEMURRER?

THE case of Noyes v. Crawley (39 L. T. Rep. N. S. 267), to which we referred briefly in a recent issue of the LAW TIMES, raised an important question, as our readers will doubtless remember, with respect to the right of a party to set up the Statute of Limitations by demurrer. The decisions upon that question are not uniform in respecting that right, and, as the reports of the cases stand, it is impossible to reconcile the above case with that of the Queen's Bench Division in Wakelee v. Davis (25 W. R. 60). In the former case the action was brought for partnership accounts more than six years after the termination of the partnership, such fact, as well as the defendant's repudiation of the claim appearing on the face of the statement. It was argued that the defence of the statute cannot be raised in a personal action by demurrer; that there is a distinction in this respect between a personal and a real action, for that whereas such a defence may be so raised in a real action, inasmuch as the statute bars the right as well as the remedy, it cannot in a personal action. Vice-Chancellor Malins overruled the objection and allowed the demurrer.

The 2nd rule of Order XXVIII. provides that a demurrer shall state specifically whether it is to the whole or to a part, and, if so, to what part of the pleading of the opposite party. It shall state some ground in law for the demurrer, but the party demurring shall not, on the argument of the demurrer, be limited to the ground so stated. Appendix C., Form 28, provides a form of demurrer as follows: The defendant [plaintiff] demurs to the [plaintiff's statement of complaint, or defendant's statement of defence, or of set-off, or of counter-claim], [or to so much of the plaintiff's statement of complaint as claims ... or as alleges as a breach of contract the matters mentioned in par. ], and says that the same is bad in law on the ground that. and on other grounds sufficient in law to sustain this demurrer."

It is provided by 21 Jac. 1, c. 16, s. 3, that all actions of account, and upon the case, other than such accounts as concern the trade of merchandise between merchant and merchant, their factors or servants, and all actions of debt grounded upon any lending or contract, without specialty, and all actions of debt for arrearages of rent, shall be commenced and sued within six years next after the cause of such action or suit and not after. After the passing of this statute it was ruled that it does not discharge or extinguish the debt, but only bars the remedy. Hence it was held that a lien in respect of the debt is not destroyed, though the remedy by writ, to recover the debt itself, may be gone: (Spears v. Hartley, 3 Esp. 81.) The exception as to merchants' accounts was abolished subsequently by 19 & 20 Vict. c. 97, s. 9. The limitation of actions for rent upon an indenture, actions of covenant or debt upon a specialty, was provided for by 3 & 4 Will. 4, c. 42, s. 3. All such actions of debt for rent, upon an indenture of demise or covenant, or debt upon any bond or other specialty, action of debt, or scire facias upon recognisance, were by force of the same section to be brought within the time limited, but not after. The Act for the further limitation of actions and suits relating to real property (37 & 38 Vict. c. 57), s. 1, provides that after the commencement of the Act no person shall make an entry or distress, or bring an action or suit to recover any land or rent, but within twelve years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to some person through whom he claims.

Sir Rd. Arden, M.R. expressed a clear opinion in Hardy v. Reeves (4 Ves. 479) that a demurrer on the ground of length of time to a bill for redemption would be good, if the bill was so framed as to state such a case.

In Foster v. Hodgson (19 Ves. 180) there was a demurrer upon the Statute of Limitations to a bill for an account stating that no demand was made for twelve years. In allowing the demurrer, Lord Eldon said: "Previously to the case of Beckford v. Close (3 Bro. C. C. 644) at the Cockpit, before Lord Kenyon, the universal opinion was, that it must be by plea; but the reason given by Lord Hardwick (3 Atk. 226) that the plaintiff may amend his bill, would destroy all demurrers. I was present, and I believe counsel in the case of Beckford v. Close, and I am sure that Lord Kenyon, upon the doctrine he then held, thought that advantage might be taken of a case of this sort by demurrer." The above cases were decided before the new rules came into operation.

One of the material points taken in Dawkins v. Lord Penrhyn (36 L. T. Rep. N. S. 680, affirmed 37 L. T. Rep. N. S. 80) was that the defence of the Statute of Limitations cannot be raised by

demurrer, but must be pleaded. In that case the testator, by a will made in 1779, devised freeholds to his son A. and the heirs of his body, "upon special trust and confidence," that in case he should leave no issue of his body, he would not do or suffer any act in law or otherwise to prevent the several limitations of the estates from taking effect. In case his son should die leaving no issue of his body he devised the freeholds to trustees in trust for B., the plaintiff's grandfather, for life, with remainder to his eldest son, the plaintiff's father, in tail. A. died without issue. The statement of claims alleged that, upon the death of B., in 1852, the plaintiff's father became entitled as tenant in tail and the possessor of the property. The defendant demurred, on the ground that the alleged trust contained in the will did not operate to prevent A. from suffering a recovery; that the recovery suffered by A. was valid to defeat the estates limited over in case A. should die leaving no issue of his body, and " on other grounds sufficient in law to sustain this demurrer." It was argued that the defendant could not take advantage of the statute, the plaintiff's right having accrued twenty years before action brought, upon the demurrer, because, under the new rules, a defendant cannot avail himself of anything which is not stated as a ground of demurrer. Vice-Chancellor Mallins decided in favour of allowing the demurrer, for the reason that it was plainly the intention of the Legislature that the old practice of putting in a general demurrer for want of equity should not continue, but that, when a party demurs, he must state some special ground upon which he demurs, either to the whole or part of a claim. "He must state a ground of demurrer; but then, on the argument, he is not to be restricted to that particular ground, for the rule says the party demurring shall not, on the argument of the demurrer, be limited to the ground so stated. The rule expressly says that, if the defendant states one ground of demurrer, he may state as many other grounds in argument as may suggest themselves to his mind." With the other questions raised in the case we are not here concerned.

The plaintiff appealed from this decision, and considerable argument was devoted to the two questions, namely, whether the defence of the statute may be raised by demurrer; and, secondly, if so, whether the statute should be expressly mentioned in the demurrer. The Court of Appeal answered the first question in the affirmative; the second in the negative, thus affirming the decision of the court below. Order XIX., r. 18, was referred to in the argument in support of the objection to the demurrer, but it was replied that that rule only dealt with pleadings, which state facts, and not with demurrers. Upon an examination of that rule

the Master of the Rolls came to the conclusion, "if it appears on the face of the claim that the title which once was in the claimant was passed to somebody else, that is a very good ground for demurrer." His Lordship then referred to Order XXVIII, r. 1, which provides that any party may demur to any pleading of the opposite party, or to any part of a pleading setting up a distinct cause of action. "That is," continued his Lordship, admitting all your facts to be true, you have no cause of action; your cause of action has been destroyed by the statute, which says that if the action is not brought within a certain time your title shall be extinguished." This case was decided in July 1877.

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Some months before the latter case was decided the Queen's Bench Division held, in Wakelee v. Davis (25 W. R. 60), that the Statute of Limitations must under the new procedure be pleaded, and cannot be raised by demurrer. That case was a demurrer to part of a statement of claim, which on its face showed that it was barred by the statute. It was contended for the demurrer that under the new procedure it was unnecessary for an unwilling defendant to plead, because his defence would only state the fact raised by the demurrer. Catling v. King (36 L. T. Rep. N. S. 526), which decided that the Statute of Frauds must be pleaded, and cannot be raised by demurrer was cited reference in that case having been made to Order XIX., r. 23. The Court, consisting of Chief Justice Cockburn, and Mr. Justice Lush, overruled the demurrer. "The cause of action" said the former, "remains, although the remedy may be suspended." This, it will be observed, is directly opposed to the view taken by the Master of the Rolls in Dawkins v. Lord Penrhyn, whose remarks, however, must be taken subject to the nature of the action. Mr. Justice Lush was of opinion that the issue whether the statute applied or not was not raised by means of a demurrer. The report of the case is very meagre.

A review of the above cases shows the impossibility of reconciling them. Dawkins v. Lord Penrhyn, being a decision of the Court of Appeal, necessarily overrules the others so far as they are inconsistent with that decision. Hence the debateable ques tion is, whether a demurrer can raise the defence of the statute in a personal action, under the circumstances stated. It is clear that the Queen's Bench Division and Vice-Chancellor Malins differ upon this question. The material question appears to us to be not whether the action is a real or a personal one, i.e., whether the right of action is barred, or whether the remedy is simply suspended, but whether it appears on the face of the statement that the claim cannot be enforced if the other party relies on the statute.

g V

SOLICITORS' JOURNAL.

EVERY solicitor who is anxious for the welfare of his Profession must of necessity take a deep interest in the question of legal education, for it is the solution of this question which opens up a road by which the social and professional status of the solicitors' Profession as a whole can be advanced. It is a common thing to hear a member of the Bar say-speaking of his Profession-"Most of us are University men ;" and no doubt this is so to a large extent, although not an inconsiderable number of barristers of distinction never entered a university. University men are now beginning to join the solicitors' Profession in fair numbers, but it would be much larger if the Universities students for the solicitors' Profession greater facilities than at present exist for obtaining those degrees which are most sought after. The present seems a favourable time for the council of the Incorporated Law Society to urge this matter upon the Universities, for we gather from the Cambridge University Reporter that several of the colleges, notably those of Pembroke and Clare, have been taking steps to get rid of the inconvenience and evils to which students of the University are exposed who, during their nadergraduateship, keep law terms at the Inns of Court for the purpose of being called to the bar. This inconvenience and these evils may be shortly stated to consist of an attendance in London for three days at three different times of year, at a time when University lectures and tudies are in full operation. Speaking of this enforced absence, a syndicate has thus reported to the senate of the University: Such absence Causes to him [the undergraduate] "loss of time and interruption of regular work, as well as considerable expense. Moreover, it necessitates his spending several days in a place where he is peculiarly exposed to temptation, with no real employment" [this refers to the practice of dining in Hall]" and, unless his parents live in London, free from the control and discipline to which he is accustomed ;" and further on we read

of this controversy without reproducing "two remarks," addressed by the University to the Inns of Court: "(1) It is for the advantage of the Legal Profession, not less than for that of the general public, that candidates for the bar should be encouraged to obtain a University education. (2) The Inns of Court, like the Universities themselves, hold their great privileges for public purposes; and the leading principle of their rules ought to be the advantage of those affected by them." The council of the Incorporated Law Society should make common cause with the Universities to secure needful alterations in all the regula tions of the Inns of Court about which so much complaint is made by solicitors and by the Universities; and a brisk attack should be made on the Inns of Court, as there is evidence that they have forgotten that they "hold their great privileges for public purposes."

IN another column we publish a correspondence which has taken place between Mr. Thomas Collins, the learned President of the Association of County Court Registrars, and the Incorporated Law Society U.K., in regard to the remarkable evidence given by Mr. Burton. the ex-president of the Law Society (when he was president), before the Committee on County Courts Jurisdiction (No. 2) Bill of last session. Great as was the astonishment occasioned to County Court judges, County Court registrars, and County Court advo cates, it was not so great as might fairly have been expected. To Mr. Collins much credit is due for having called forth the correspondence to which we refer; for it was as President of the Law Society that Mr. Burton was called before the committee, and now for the first time we learn from the letter of the secretary of the Law Society that the evidence Mr. Burton gave was not intended in any way to bind the society, but was What a merely an expression of his own views. pity Mr. Burton did not say so before he commenced to give expression to his mistaken notions, which have done much to estrange County Court registrars and County Court advocates from the chief law society of solicitors. The first question

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