the jury to find verdicts before the facts were fully thrashed out. A newspaper accompanies this letter, which certainly shows that his Lordship so acted, but it is quite possible he was right. We make no observation upon the fact; but we may remark that the judges are encroaching with no uncertain steps upon the functions of juries. The dissatisfaction of a judge with a verdict should never be an element for consideration in granting or refusing a new trial. A judge ought never, unasked, to stay (xecution. He should also, we submit, be most careful not hastily to direct a verdict or withdraw a case. Further, the power to deprive a litigant of costs should be most guardedly exercised. Mr. Justice LOPES, at Westminster, on Wednesday, deprived of costs a defendant who had succeeded on the defence of the Statute of Limitations-because he owed the money! Surely this is going a long way. This jurisdiction over costs is a dangerous instrument for punishing the plaintiffs or defendants who, though successful, do not win the favour of the judge.

WE noticed in a recent issue that the Court of Appeal had affirmed the decision of Vice-Chancellor MALINS, to the effect that, in the case of title to real estate, when the Statute of Limitations operates to take away the right, the defence of the statute may be raised by demurrer. That decision has in its turn been affirmed by the House of Lords: (Dawkins v. Penrhyn, 39 L. T. Rep. N. S. 583.) The appellant insisted that the Statute of Limitations is analogous to the Statute of Frauds, and must therefore be pleaded. This, it will be remembered, was the argument in the court below. "The law," observed the LORD CHANCELLOR, "always has been, and the law continues to be, that in addition to a specified ground of demurrer, you may at the bar allege any other ground of demurrer which appears upon the face of the bill." With reference to the argument upon which the appellant insisted, his Lordship went on to say: "I conceive there can be and ought to be no doubt at all upon that point. The analogy which was referred to of the Statute of Frauds is not an analogy of any weight. . . . . If, upon the face of the bill, the plaintiff states that the period allowed by the statute has expired, he states in law that his title is extinguished," unless he brings himself within some of the exceptions. It is a very old observation that analogies, like metaphors, are dangerous. legal argument this is especially true. The question raised in this case does not in truth appear to require any great amount of learning or argument. If we consider the meaning and object of a demurrer, the conclusion seems inevitable that the Statute of Limitations may be raised by demurrer where the statement of claim or bill shows on its face that it is futile at law should the statute be raised. If A. states that he lent money to B. fifteen years ago, the fact may be admitted by B., yet it cannot be said that he would be necessarily liable to pay the sum. The LORD CHANCELLOR observed that this was one of the clearest cases which was ever presented for the decision of a court. It remains, however, to be seen whether the Masters and Judges at chambers will not have some difficulty in applying this decision of the House of Lords.

In

THAT interference with the discretion of County Court judges by the High Court, upon which we lately had reason to comment, bas already fulfilled our expectations in doing harm by raising doubts and difficulties that were not thought of before. The Queen's Bench Division was asked last week, on appeal from Mr. Justice Field at chambers, to remove an action from the County Court, where it had been commenced, to the High Court of Justice. The claim was for £4 108. only, by the owner of a fishery against the Great Western Railway for damages arising from the escape of creosote and consequent killing of the fish. The point of law raised would be that the creosote leeked through the vessels in which it was sent by the consignor, and therefore that there was no negligence on the part of the company. Counsel for the railway intimated that this was an important matter, as there were other actions likely to be brought, and hinted that the County Court judge was not likely to give a satisfactory legal decision. The LORD CHIEF JUSTICE said that could be raised on appeal, whereupon the counsel answered that as there was no right of appeal on so small an amount the judge might refuse leave, as Mr. JOSIAH SMITH bad lately done, or prefer to resign. Baron POLLOCK observed that it was a great hardship to force an appeal on a poor man who only wanted his money, in order to settle a question of law for a great railway company. The LORD CHIEF JUSTICE then took up the same text, and wanted to know why in a claim of that nature the poor plaintiff should be engaged against his will to settle the law for the company? He also observed that the point of law was a very simple one, and that in such cases the expenses of the appeal must be considered. The late County Court judge of Herefordshire will probably be pleased, and, perhaps, astonished, to hear his own arguments from the bench of the same court that so recently ridiculed them rather roughly when composed of Justices MELLOR and MANISTY. He cannot but be gratified to observe, as we are, that a stop has so soon been put to that tendency towards treating lightly our County Court judges which was lately started.

THE jurisdiction of the Court of Bankruptcy, in granting interpleader orders, has only just been decided, and although the present Act has been in operation ten years, this would seem to be the first time the point has arisen. În Ex parte the Sheriff of Middlesec, re Buck, application for an order was made to the London Court, but the registrar refused, holding that he had no power. Then came an appeal, and the MASTER of the ROLLS, with Lord Justices JAMES and BRAMWELL, have reversed this decision, holding that the Court of Bankruptcy in London has the same powers in respect of interpleaders as have the superior courts of law and equity under 1 & 2 Will. 4, c. 58. There is certainly no section in the Bankruptcy Act by which this statutory power is thus extended; but the Court of Appeal have held that it is included in the general words of sect. 65, which gives the Chief Judge all the powers, jurisdictions, and privileges possessed by any judge" of the superior courts. This is, they say, of course limited to bankruptcy purposes; and, as this court can issue executions under rules 229 & 230, it seems to follow that it ought to have some means of settling disputes arising thereunder by interpleader. Certainly the words of sect. 65 may include this power, as indeed they might include any other that was claimed for the Court of Bankruptcy, though it seems a pity interpleaders could not have been specifically mentioned instead of being thus left to chance and the development of a loose expression. This is, however, only another instance of the consequences of drawing important statutes in outline, and leaving them to be filled in by cases decided at the suitor's expense. Interpleaders are undoubtedly convenient, and they form a most proper jurisdiction for the Court of Bankruptcy. It therefore seems somewhat

strange that this should be confined to the London Court. Yet this is the result, if the power of issuing an interpleader order depends inpon sect. 65, for that relates only to the Chief Judge. This, perhaps, accounts for the decision of the Registrar, who saw the absurdity of a construction that excludes all Bankruptcy County Courts.

WHAT notice of holding goods on agency is sufficient to take them out of the order and disposition of the debtor under the Bankruptcy Act, was considered the other day by the Court of Appeal in the case of Ea parte Bright, Re Smith. The facts were, that manufactured goods had been consigned by Bright Brothers to the debtors as their agent for sale upon commission. Upon a brass plate at their place of business, and printed upon their invoices, were the words, "Merchants and manufacturers' agents," and as such they traded and sold goods for other firms. After their liquidation, Bright Brothers applied that the goods they had consigned should be delivered up to them by the trustee, but Mr. Registrar PEPYS declined to make the order, holding that the goods were in the debtor's order and disposition with the consent of the true owners. The Court of Appeal, however, thought otherwise, and decided that the use of the word "agents" was a sufficient notice to a sufficient notice to all the creditors that the goods in their possession might belong to their principals, and therefore that the clause as to reputed ownership did not apply. There is no case in which this precise point has been raised, and therefore it is worthy of note, as amongst men in business it must be frequently applicable. The transactions were here proved to be bonâ fide, or the mere putting up the word "agents" would certainly not be held sufficient. As it is, the case is in accordance with the tendency of recent decisions, which has been rather to limit than to extend the doctrine of reputed ownership. In this respect it takes the same view as that of the Legislatore when exempting goods comprised in a bill of sale registered under the last Act from the application of the clause as to order and disposition. In each case the principle is the same; that notice having been given to the creditors of the fact, they cannot have been deceived or defrauded by the debtor's apparent possession of the goods.

THE procedure by debtor's summons in bankruptcy is very short and sharp, and has, therefore, been often used to frighten debtors into prompt payment. We are, however, glad to see that the Court of Appeal is awake to the fact that this process may be, and often is, abused in practice, by being employed to obtain settlement of debts under the threat of bankruptcy. Ex parte Shepherd, which was decided last week, is a peculiarly strong case, but it shows clearly the evil that we have mentioned. Here a married woman carrying on business on her own separate account accepted bills of exchange in her maiden name. These being dishonoured the creditor issued a debtor's summons in bankruptcy not only against her, but also against her husband jointly. He applied to have the summons dismissed, giving evidence that he had never authorised his wife to pledge his credit, and that the creditor suing had had notice to this effect. This was uncontradicted, and yet Mr. REGISTRAR SPRING RICE made an order under which the husband would have had to find security, or run the risk of being adjudicated a bankrupt. Against so extraordinary a ruling he of course appealed, and the Court of Appeal at once held that upon the evidence the husband could not be liable. They also said that the summons was oppressive and vexatious, and an abuse of the procedure, and

must be dismissed with costs. If the creditor had any evidence to adduce he could bring an action. It seems somewhat strange that the registrar could ever have arrived at such a decision upon so clear a point. But the truth is that courts having a special jurisdiction, the lines limiting which are very vaguely drawn, are inclined to extend their powers in every possible direction. Here the registrar, overlooking the gross hardship of making a man give security upon a debt for which he was clearly not liable, thought the matter could as well or better be decided before him as in a common law action. We are glad to see that the Court of Appeal have so decidedly set their faces against such procedure, which, looking to the pressure of the threat as to bankruptcy by which it is strengthened, may well be spoken of as oppressive and vexatious.

THE jurisdiction of County Courts in bankruptcy depends upon that curiously-worded sect. 17 of the Act which has led to some confusion. The London Court is there put first, and the County Courts can only come in where it is clear that has no jurisdiction. A debtor's summons is to be granted in the County Court of the district where the debtor resides or carries on business, provided that he does not reside or carry on business within the district of the London Bankruptcy Court. But the question arose, which was the proper district if business was carried on in each, at least partially? And it was argued that, to give the County Court jurisdiction, it must be shown that the debtor did not carry on any part of this business within the London district. In the case of Ex parte Charles (L. Rep. 13 Eq. 638), it was first decided that the place were the debtor's real and actual business was carried on must be the guide in determining the question of rival jurisdictions. There the debtors had a factory at Sheffield, and three rooms in London used by their agent, and the CHIEF JUDGE held that their business, in the proper sense of the word, was carried on in the district of the Sheffield County Court. In this judgment it is stated that the words of the Act are "plain and precise;" but we hardly think so, nor apparently do others, for last week the CHIEF JUDGE had before him a similar case on appeal. In Ex parte Sharpe the debtor lived at Croydon, was & gunpowder warehouseman, having his magazines at Barking, and his offices at Bishopgate-street. He said in bis evidence, "I receive and pay money at this office, and transact all business there relating to the magazines." The CHIEF JUDGE held, however, that the debtor only carried on his business at Barking, because there the gunpowder was stored, and thence it was delivered," and took no notice of the office in London, nor of the debtor's statement. This case goes further than Ex parte Charles, for there the office was only used by an agent, while here it was occupied by the debtor himself for trading purposes. Some confusion may result from this ruling if a place of business is always to mean a factory or warehouse instead of an office where orders are given, and money received.

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REVIVAL OF DEBTS BARRED BY STATUTE. "THIS branch of the law does not stand upon a satisfactory footing, and affords scope for amendment by the Legislature." So spoke Lord Justice Bramwell in the recent case of Meyerhoff v. Froehlich (L. Rep. 4 C. P. Div. 63), but he gave no hint as to the kind of amendment necessary. Certainly, if a continual confusion upon a point of law is any reason why Parliament should intervene to set it right, an Act dealing with the limitation of actions for debts would be amply justified. Even the highest of our judges are not at one upon the first principles to be applied in construing the acknowledgments in writing required under Lord Tenterden's Act, as was most abundantly shown in the somewhat earlier case of Chasemore v. Turner (L. Rep. 10 Q.B. 500), which may be mentioned as a perfect monument of judicial difference upon a point of law. Here Baron Martin held that the letter in question was sufficient to take the debt out of the statute. Justices Blackburn and Archibald overruled this, holding the letter insufficient, while Justice Mellor dissented and agreed with Baron Martin. It should be noted here that the promise was clearly conditional. saying only as soon as we can get our affairs arranged we will see you paid," upon which Justice Blackburn held that the onus was upon the plaintiff's to explain, while Justice Mellor was equally clear the other way, considering that to be the defendants' duty, as they wrote the letter. In the Exchequer Chamber, Barons Cleasby, Pollock, and Amphlett, with Justices Grove and Denman, held, reversing the Queen's Bench decision, that the letter was sufficient, while Lord Coleridge differed by himself, and, in giving his judgment, said that he should have thought his view the inevitable one upon the words, but continued, "that it is not inevitable is obvious, because a considerable majority of cultivated minds have come to a directly opposite conclusion." After this no further evidence is needed to show that the point "does not stand upon a satisfactory footing."

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But it may be possible to get at some guiding principle notwithstanding these confusions and contradictions; and, though there is great force in the remark of Lord Justice Bramwell, that he does not think "much assistance is to be obtained from a perusal of the cases, for one carelessly written letter is not of

much use in construing another." In Tanner v. Smart (6 B. & C. 603), which was decided before Lord Tenterden's Act, the words used were, "I cannot pay the debt at present, but I will pay it as soon as I can," and these were held insufficient, as no proof was given that the defendant was able to pay at the time the action was brought. Lord Tenterden's Act, by merely requiring that the "acknowledgment or promise shall be made or sustained by or in some writing to be signed by the party chargeable thereby," laid down no principle, and gave no assistance in the difficulty, which it rather tended to increase by using such vague language. However, the rule drawn from Tanner v. Smart, and other like cases, is that, though an acknowledgment only is sufficient without any express promise, still if that be clogged with any condition which remains unfulfilled or at a time that has not elapsed; then it will not take the debt out of the statute. But how is this rule to be applied in practice is the question which decided cases hardly answer. In Quincey v. Sharpe (45 L. J. 347, Q. B.), the words, "send me your account made up to Christmas last," were held an unconditional acknowledgment implying a promise to pay, though there was certainly no sum mentioned or agreed. The same view was taken in Skeat v. Lindsay (46 L. J. 249, Q. B.), where the words ran, "if you will send me particulars of your account, with vouchers, I shall have it examined and cheque sent for the amount due." But in both these cases, though there was no promise, there was also no condition; and it is where something is supposed as to happen in the future that nice points arise. To show how very nice these points can be we need only place side by side the two letters in the recent cases of Chasemore v. Turner, and Meyerhoff v. Froehlich, in which the first was held sufficient, while the second was held insufficient, for the purposes of the statute. "As soon as we can get our affairs arranged we will see you paid"-this was thought unconditional. "I shall be glad, as soon as my position becomes somewhat better, to begin again and continue with my instalments," this was decided, in the latest case, to be a promise most clearly conditional. To ordinary minds there seems no difference in the meaning of the letters, while even the words are so similar as to be with difficulty distinguished. Certainly these careless letters are but little aid in construing one another, and it may be worth while briefly to see what is the principle upon which the whole practice of reviving statute-barred debts is in fact founded.

In Buckmaster v. Russell (10 C. B., N. S. 749), Justice Williams put the legal point very plainly, as was said by Lord Coleridge, who quoted the passage in Chasemore v. Turner with approval: "The legal effect of an acknowledgment of a debt barred by the Statute of Limitations is that of a promise to pay the old debt; and, for this, the old debt is a consideration in law. In that sense, and for that purpose, the old debt may be said to be revived. It is revived as a consideration for the new promise. But the new promise, and not the old debt, is the measure of the creditor's right. If the debtor simply acknowledges the old debt, the law implies from that simple acknowledgment a promise to pay it, for which promise the old debt is a sufficient consideration. But if the debtor promise to pay the old debt when he is able, or by instalments, or in two years, or out of a particular fund, the creditor cannot claim anything more than the promise gives him." This we hold to be a plain and practical principle, which, if generally applied, would save many doubts and difficulties that really arise from confusion of thought. Especially when we reflect that the policy of the law, as expressed in the Statute of Limitations, is against the revival of stale claims, it seems remarkable that the various loose letters we have quoted should ever have been considered as sufficient acknowledgments. Certainly the law as thus stated put an end to the decision in Chasemore v. Turner, while it seems impossible to reconcile this with the view taken in the more recent case of Meyerhoff v. Froehlich, which seems to us safer as well as more satisfactory.

But there is another way in which the limitation of actions may be considered especially with regard to the lines of future legislation. In the analogous case of real property, the limitation does not only bar the remedy, but it also destroys the right. Why should this distinction any longer be maintained, by which, curiously enough, the lower kinds of property are the more considered? Why indeed, and upon what principle, does it happen that a mere money claim can be kept alive or revived by a written acknowledgment, where a right to land would become wholly lost and extinguished? These are questions more easily asked than answered; and they come appropriately at the present time when the limitations of land have been shortened, and the Legislature has been asked to abolish the right to recover small sums after the expiration of a very limited period. At all events, without going so far as this, it would be well if someone would take the matter in hand with a view to early legislation. We have shown that the present state of confusion cannot well grow more confounded; and that the climax of contradiction seems to bave been reached. With the cases as they are, it is difficult to draw any conclusion; and the only suggestion we can offer towards such a bill is that the plain principles quoted from the judgment of Mr Justice Williams should be borne in mind, and nothing but a positive promise to pay allowed to prevail in taking a debt out of the Statute of Limitations.

WHAT IS A "BARE TRUSTEE?"

ONE of the greatest difficulties in all systems of law is and always must be the want of clear and precise definitions. This difficulty is tenfold greater in our law than in those in which codification has to any considerable extent been carried out. Where the substantive law itself is really to so large an extent created pro re nata by the judges deciding particular cases, and the principle has to be disentangled from a mass of concrete particulars before it can be made applicable in other instances, it is obvious that what is preliminary to every scientific treatment of a subject, namely, the settlement of the meaning of terms by definitions rigidly adhered to throughout, is apt to be altogether forgotten. In the heat of argument a happy phrase, conveying its meaning vividly enough for the occasion in hand, is struck out, and finds a permanent place in legal language and literature; it is even immortalised in an Act of Parliament, and it is only in the attempt to construe the Act that the discovery is made that wit is not science, and that an expression may be felicitous on occasion, but at the same time contain within itself the germs of ambiguity and consequent litigation.

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The term "bare trustee" has long been familiar to Chancery lawyers; but, so far as we are aware, it never made its appearance in the Statute Book until the passing of the Vendor and Purchaser Act 1874, ss. 5 and 6, by which it is provided that upon the death of a bare trustee of any corporeal or incorporeal hereditament of which such trustee was seised in fee simple, such hereditament shall vest like a chattel real in the legal personal representative from time to time of such trustee;" and "when any freehold or copyhold hereditament shall be vested in a married woman as a bare trustee, she may convey or surrender the same, as if she were a feme sole." The former section was repealed by the 48th sect. of the Land Transfer Act 1875, but re-enacted with the substitution of the words "intestate as to any corporeal or incorporeal hereditament," for the words "of any corporeal or incorporeal hereditament." Great difference of opinion on the part of competent persons has arisen with respect to this term.

is so.

Now, apart from authority, what is the most reasonable meaning to assign to this term? When you have a class name of wellascertained meaning, and a particular portion of the class is marked off by a descriptive epithet, the natural inference is that a minority, or even a small minority, of the whole class is intended, on the same principle that the smaller or less important of two towns bearing the same name is generally further described by reference to a river or other geographical feature. If this is the right test, a "bare trustee" will be a person differently situated from the great bulk of persons in a fiduciary position with respect to others. Now, for what purposes do trustees in general exist? Great labour and expense are incurred in their appointment, and a whole body of complicated jurisprudence has arisen in their regard. Their position is always spoken of as onerous and responsible. In nine cases out of ten it They bear the administration for the good of others of real and personal estate. They receive no remuneration, but yet In a are held rigidly answerable in case of loss or mistake. word, they have all the anxieties with none of the advantages of property. That being the case with the great majority of trustees, the addition of an epithet ought to mark some distinction, to some extent intelligible by the very word used, not applicable to the great bulk of the class. Now, inasmuch as most trustees, whether of settlements or wills, have both the legal estate in them, and have to administer that estate for other persons, and often for successive generations, the term "bare trustee' or "naked trustee" is, for practical purposes, sufficiently intelligible in order to indicate the possession of the legal estate without the duties which generally attach thereto. The legal estate is one thing; the investment of moneys, the purchase and sale of lands, the payment of money to the right persons, the liability for mistakes and wrong investments, and the other incidents of trust estates, are quite another, and easily separable from the first. The question, no doubt, is to a great extent one of degree, as the mere position of trustee for others necessarily involves liability. But verbally it would be a tolerably good definition to say that a bare trustee holds a legal estate for the benefit of others with the fewest duties. compatible with such a position. Every trustee is really a trustee and something else; there is always something beyond the passive inherence of a right of property; but in the case of a bare trustee that "something else is reduced to the smallest possible dimensions. We have little doubt that the term was used in the Acts of Parliament referred to in this sense; and Messrs. Dart and Barber, in the last edition of their work on "Vendors and Purchasers,' adopt the same view, which is that also of Vice-Chancellor Hall in Christie v. Ovington (L. Rep. 1 Ch. Div. 281). Unfortunately, however, there are both overstatement. and inaccuracy in expression in the definition of those learned writers. They say: "The Act does not define what is meant by a 'bare trustee in this and the preceding section, and this term is generally considered to be ambiguous; but it will probably be held to mean a trustee to whose office no duties were originally attached, or who, although such duties were originally attached to his office, would, on the requisition of his cestuis que trust, be compellable in equity to convey the estate to them, or by their direction, and has been

requested by them so to convey it." Vice-Chancellor Hall adopts this description (for it certainly does not rise to the rank of a definition), with the exception of the words " and has been requested by them so to convey it," It is certainly difficult to see how the fact of a request's having been conveyed to the trustee has anything to do with it.

It was not difficult for the Master of the Rolls in the recent case of Morgan v. Swansea Urban Sanitary Authority (L. Rep. 9 Ch. Div. 582) to show that this was neither a complete nor accurate definition. "First of all," he says, "what is the meaning of 'a trustee to whose office no duties were originally attached?' I cannot imagine a trustee who has no duties. He must be a trustee for somebody. The very notion of a trustee is that there are some duties attached to the office." He then refers to "active duties," so called, as probably having been in the minds of the writers. But the old distinction of "active" and "passive" is not satisfactory. Every trustee may be called upon to convey, and to read and execute a conveyance is certainly not a passive duty. It was equally easy for the learned judge to criticise the latter part of this description. "If cestuis que trust are competent to request, and all request, every trustee must concur.' Messrs. Dart and Barber meant the right thing, and have pointed out pretty clearly what they meant, but have used singularly vague and inapt expressions.

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But we do not think the Master of the Rolls' attempt will find favour with the profession. As is frequently the case with him, he has got hold of a good verbal distinction, but he is misled by it. "I should have thought," he says, "that a bare trustee' or a 'naked trustee' meant a trustee without any beneficial interest." Now, a trustee as such has no beneficial interest; whether he has or not is as much an accident, and as irrelevant to the purposes of the trust, as whether he is of this or that trade or profession. As we have already said, the term 23 bare trustee ought to be taken as indicating a difference from the great majority of trustees as trustees. Every trustee, as the Master of the Rolls says, is a trustee for somebody, and he might have added, for somebody besides himself; and the mere fact that a man is both trustee and one of the cestuis que trust makes no difference in his position and duties, and is not a fruitful distinction on which to found a classification. Moreover, such a definition is altogether opposed to common usage. Nobody would think of describing the trustees of an ordinary marriage settlement or will as "bare trustees." Yet they commonly have no beneficial interest. Or suppose that one of them had such an interest, would it not be ludicrous to describe the rest of them as "bare trustee" in contradistinction to the first one?

It appears to us that in consequence of this paradoxical definition, the Master of the Rolls has made the Act of 1875 of no avail in exactly the sort of case in which it was intended to apply. The case of Morgan v. Swansea Urban Sanitary Authority (vide sup.) was shortly this: Morgan contracted to sell real estate to the Sanitary Authority; the conveyance was engrossed but not executed by him; he died suddenly intestate, leaving an infant heir-at-law. His widow took out administration. The purchase-money was not paid. The question was, in whom the legal estate was vested, and who was to convey. decided that the widow, the administratrix, could not convey. If the Act was not intended to apply to a case like this, for what purpose was it passed?

It was

ACTIONS FOR DIFFERENCES-GAMBLING CONTRACTS

AND TIME BARGAINS.

CLAIMS by brokers for differences upon Stock Exchange transactions are of so frequent occurrence, that it is a matter of great moment to have well-defined rules of law with respect to the validity of such claims. The judgment of Mr. Justice Lindley, confirmed by the decision of the Court of Appeal, in Thacker v. Hardy (39 L. T. Rep. N. S. 595) will have a good effect in settling the law upon this subject.

A principle which pervades the whole law of principal and agent is that the principal is bound to indemnify the agent against the consequences of all acts done by him in pursuance of the authority conferred upon him (Taylor v. Strong, 2 C. B. N. S. 175), provided the orders are not illegal, and the liabilities are not incurred in respect of some illegal conduct of the agent himself, or by reason of his default. It has been settled, too, that, although gaming and wagering contracts cannot be enforced, they are not illegal (Fitch v. Jones, 238). Thus money paid in discharge of a bet is a good consideration for a bill of exchange (Oulis v. Harrison, 10 Ex. 572); and money so paid by a plaintiff at the request of a defendant can be recovered in an action against the latter: (Knight v. Cambers, 15 C. B. 562.)

It was held in Hibblewhite v. M'Mornie (5 M. & W. 462) that a contract for the sale of goods to be delivered at a future time is not invalidated by the circumstance that at the time of the contract, the vendor neither has the goods in his possession, nor has entered into any contract to buy them, nor has any reasonable expectation of becoming possessed of them by the time appointed for delivering them, otherwise than by purchasing them after the making of the contract.

The Court of Common Pleas decided in Grizewood v. Blane (11 C. B. 538) that a colourable contract for the sale and purchase of railway shares, where neither party intends to deliver or to accept the shares, but merely to pay "differences" according to the rise or fall of the market, is gaming within the 8 & 9 Vict. c. 109, s. 18. In that case the plaintiff was a stockjobber. The defendant, through his broker, contracted to sell and repurchase certain shares. There had been former dealings between the parties of the same character, no shares passing, but merely settlements of differences, according to the usual course of specu lators upon the Stock Exchange. The action was for differences. For the defendant it was objected that as it was evident that the sales were a mere colour for the payment and receipt of differences one way or the other, the contract was a gambling contract. Chief Justice Jervis left it to the jury to say what was the plaintiff's intention, and what was the defendant's intention, at the time of making the contract-whether either party really meant to purchase or sell the shares in question; telling them that, if they did not, the contract was a gambling transaction, and void. The jury returned a verdict for the defendant. On motion for a new trial it was argued that the transaction was not within the Act merely because it related to railway shares, any more than if it related to wheat or any other article of commerce or manufacture. Mr. Justice Cresswell distinguished the case of Hibblewhite v. M'Morine (5 M. & W. 462), on the ground that the question in Grizewood v. Blane was whether there was any contract for sale at all, and whether the transaction was not a mere bet upon the future price of the commodity. He was of opinion that each party meant to break the contract, but to give the other a remedy against him for the difference of price, according as the market might rise or fall. The rule for a new trial was refused, on the ground that the true direction had been given to the jury, and that was that if neither party intended to buy or sell, it was no bargain, but a mere gambling transaction. The Court agreed in thinking that there was ample evidence of a mutual understanding between the plaintiff and defendant that the contract of sale was colourable only. In this case it will be noticed that although the plaintiff was selling to and buying from the defendant in form, neither party intended any actual sale; but the bargain between them was as to the price of stocks on a future day upon which one or other of them stood to gain or lose on the rise or fall of the stock; in effect, there was no actual contract of purchase or sale. Care must be exercised in advising upon the authority of this case.

The decision of the Court of Appeal in the case of Thacker v. Hardy (39 L. T. Rep. N. S. 595) has settled, at least for the present, some of these questions, which are of the utmost importance to brokers and parties who enter into transactions on the Stock Exchange. The action was brought for a stockbroker to recover commission and money paid for differences on sales and purchases of various stocks effected by the defendant. The. material defence was that the plaintiff's claim was in respect of transactions that were illegal within the Gaming and Wagering Act (8 & 9 Vict c. 109), s. 18. From the facts it appeared that the defendant, with the desire of speculating on the Stock Exchange, employed the plaintiff, who was a stockbroker, to buy and sell stocks and shares for him. The defendant did not expect or intend to have to accept actual delivery of what the plaintiff bought or to deliver what the plaintiff sold for him, but know. ingly ran the risk of so having to accept delivery or to deliver, in the hope and expectation that the plaintiff would be able to arrange his sales and purchases so as to render nothing but differences actually payable or receivable by the defendant. The plaintiff accordingly made large purchases and sales of stock under contracts between himself and various stockjobbers. In making the contract, the plaintiff knew that the defendant would be wholly unable to pay for the stock purchased, or to deliver that sold. The action was tried before Mr. Justice Lindley without a jury. His Lordship took time to consider his judgment, but ultimately gave judgment to the plaintiff for the full amount claimed. On appeal it was argued that the contracts could not be enforced against the defendant, inasmuch as they were gambling transactions, and therefore void. Reference was made to the unreported case of Cooper v. Neal, to which we shall hereafter refer, and an attempt was made to distinguish the present case from that.

Cooper v. Neal was tried before Mr. Justice Lindley and a jury. There, too, the action was for differences upon the sale of certain stocks and shares transactions, which were conducted in the ordinary manner, and according to the rules of the Stock Exchange. It was in evidence that the defendant never intended, and that the broker knew that he never intended, to take up the shares. The jury found that the broker was employed by the defendant to make time bargains, and that the broker did so. His Lordship thereupon entered judgment for the defendant. This decision was upheld by the Queen's Bench Division. The Court of Appeal, however, sent the case for a new trial. The judgment of that court, consisting of Lord Justices Brett, Cotton, and Thesiger, was delivered by Lord Justice Brett, who pointed out that the contract between the broker and the defendant might be any one of three contracts: (1) that the broker should

enter into transactions on the Stock Exchange, which might end in gain or loss, but that whatever happened to the broker on the Stock Exchange he would only claim differences from or pay differences to the defendant; this, his Lordship thought, would be a gambling transaction: (2) that the contract was to make a "time bargain" with the jobbers on the Stock Exchange; if so, the defendant was entitled to succeed, because there was no payment by the broker in that case, and such bargains would be void under the statute so far as the jobbers were concerned, and they could not enforce them against the broker: (3) that the defendant employed the broker to make contracts upon the Stock Exchange with the jobbers, according to the rules of the Stock Exchange; but that the broker agreed with the defendant that he would so manage or endeavour to manage the contract with the jobbers, that the defendant should never be called upon to pay more than differences-here there would be a reasonable implication that the defendant agreed to indemnify the broker. The last-mentioned contract might be in part a gambling transaction, but the collateral implied contract to indemnify was not within the statute, inasmuch as the Gaming and Wagering Act affected only the contract that made the bet, and not every collateral contract.

In his considered judgment in Thacker v. Hardy, Mr. Justice Lindley, examined, first, the real nature of the agreement between the plaintiff and the defendant; and secondly, the principles of law with respect to gaming and wagering transactions in stocks and shares. With reference to the first question, his Lordship drew eight conclusions, which may be thus summed up: The defendant was to the plaintiff's knowledge a speculator, and employed the plaintiff to speculate on the Stock Exchange; he knew that the plaintiff would enter into some contracts to buy and sell, and into others to protect himself the only way in which the plaintiff could speculate as desired. The plaintiff bought and sold accordingly, the defendant never expecting or intending to accept actual delivery or to deliver, of which fact the plaintiff was aware; the defendant was aware of the risk, but expected that the plaintiff would arrange that nothing but differences would be payable, otherwise would be unable to pay for deliveries, or to deliver what was sold. The judgment upon the legal aspect of the question is very full and elaborate.

The Lords Justices of the Court of Appeal expressed their concurrence in Mr. Justice Lindley's judgment: "I agree with Mr. Justice Lindley in his conclusions, both on the facts and on the law as applicable to those facts," said Lord Justice Bramwell. "The question in this case is not whether there be a bargain between the jobber in the house and a broker as representing the principal. It is admitted that these bargains are what they purport to be. If I direct my broker to sell £10,000 worth of consols for next account, I am not entitled as a matter of right to insist on his buying them back for me. A jury might find that it had been agreed between the parties not that the buying and selling should go on ad infinitum, but that there was an arrangement between the principal and broker that every transaction for an account should be disposed of, quoad that account, by a transaction in a contrary sense, so that the principal would have to pay differences only. Assume the jury found this, then there is nothing in the Gaming and Wagering Act against such a transaction." His Lordship concluded by remarking that "Time bargains merely are not invalid; an agreement to purchase next year's crop of apples is a most effectual time bargain, but certainly not an invalid one. But where there is a mutual agreement for one party to pay to or receive from the other what shall be the differences between the prices at a future named day, without any real purchase or sale, that is in truth a time bargain, which is a wager." This decision will have the good effect of rendering the law far clearer than it was before, even after Cooper v. Neal was decided.

REVIVAL OF TRUST FOR SALE IN FAVOUR OF A STATUTE-BARRED MORTGAGOR-Re ALISON. A DECISION which we find great difficulty in accepting as law was pronounced by Vice-Chancellor Malins in Re Alison; Johnson v. Mounsey, on the 8th inst. The Vice-Chancellor there held that a mortgagee with power of sale, who, after being in possession for more than twenty years without acknowledgment of the mortgagor's equity, had sold, and by a deed purporting to be an exercise of the power of sale, had conveyed to a purchaser, was bound to account to the mortgagor, his assigns and representatives, for the surplus of the purchase-money. With great respect for the learned Vice-Chancellor, we cannot but think that the clear provisions of the Statutes of Limitation are not to be frittered away by trivial circumstances or distinctions, or sentimental considerations. In dealing with the Statutes of Limitation we are dealing with hard-and-fast rules, if such there be in our laws; and under these rules a mortgagee in possession without accounting to or acknowledging the title of the mortgagor or those claiming under him, at the expiration of the prescribed period, and to the very stroke of the clock, acquires a title indefeasible by any subsequent acknowledgment in any form of the mortgagor's right to

redeem. With the expiration of that period the then unexercised power of sale in the mortgage deed must surely have become utterly null and void. Such a power having been introduced to render foreclosure proceedings unnecessary, the statutory foreclosure of the limitation period must put an end to the power as distinct from the indefeasible ownership of the mortgagee. The decision of the Court of Appeal in Stansfield v. Hobson (3 De G. M. & F. 620), it is perhaps needless for us to say, cannot be treated as an authority that an acknowledgment by the mortgagee after the expiration of the statutory period, will revive the equity of redemption. Read by itself the case might bear such a construction, which would, no doubt, be utterly inconsistent with the pro visions of the 28th and 34th sections of the 3 & 4 Will. 4, c. 27. Mr. Brown, in his treatise on the Law of Limitation (see p. 575) has pointed out that it appears, from another report in a previous stage of Stansfield v. Hobson (16 Beav. 189), that the mortgagee was in fact one of several trustees of the equity of redemption,. and therefore could not (on the principle of Wynne v. Styan,. 2 Phill. 303, and cases of that class), apart from the acknowledgment, resist the redemption. The absolute nature of an estate acquired by possession under the statute has since been abundantly established by the cases of Brassington v. Llewellyn (27_L. J., 297 Exch.); Hemming v. Blanton (21 W. R. 636), and Bryan v. Cowdall (21 W. R. 693). If the mortgagee sold under any power of sale such power must, after the statutory period, have been created de novo; the power could not have been a survival, or revival, of the original power. Probably enough, the mortgagee may have thought, without much consideration on the subject, that a title derived under the power of sale, which he may have erroneously considered as existent, would be more acceptable to a purchaser than one resting on the Statute of Limitations, and so intended and purported to exercise the power. It would, however, be obviously preposterous that such an intention, based on such erroneous notions assumed or proved, should be deemed sufficient evidence of an intention to create an entirely new trust, corresponding in all respects with the trust which had been extinguished, and carrying with it to the mortgagor and those claiming under him rights to the surplus purchase moneys which the mortgagee never dreamed of. The mistaken notion of the mortgagee appears to us a most inadequate ground for the establishment of a new trust materially prejudicial to the existing legal rights of the mortgagee by whom such new trust is supposed to have been constituted.

LAW LIBRARY.

Introduction to the Study of International Law. By THEODORE D. WOOLSEY. Fifth edition, revised and enlarged. London: Sampson Low, Marston, Searle, and Rivington.

SINCE the publication of the last edition of this well-known text book in 1874, there has been almost a surfeit of new works and new editions of works on public international law. In 1876 Sir Edward Creasy published an entirely new contribution to the literature of the subject, while new editions of Kent, Wheaton, Halleck, Manning, and Travers Twiss, have appeared during the same interval. There is, however, no reason to doubt that the work of Dr. Woolsey, late Professor of Yale College, U.S., will maintain the position it has always kept on both sides of the Atlantic. In the present edition the notes of the author embodying the result of comparatively recent events and discussions,. which have hitherto been relegated to the inconvenient obscurity of an appendix, are incorporated with the text-a marked imimprovement, which only the exigencies of stereotype plates denied to former editions. Perhaps no author has succeeded so thoroughly as Dr. Woolsey in combining within moderate limits both the elements and the history of public international law— subjects upon which Wheaton published separate treatises; and in the present edition the treaty history of the world is brought down concisely and effectively to the termination of the Berlin Congress. The additional notes, for some of which the author expresses himself indebted to an anonymous hand, appear accurate and sufficiently full. Dr. Woolsey, however, professedly writes not so much for lawyers as for "men of liberal culture" generally; and it is no detraction from the merits of his treatise to say that the subject is dealt with less fully from the legal side than some classes of readers may deem desirable. It is unfortunate that the work which is strongest where Dr. Woolsey's is weakest, should be practically out of the reach of the majority of students. Dana's edition of Wheaton's Elements, containing the copious and invaluable notes of that editor, has been for some years out of print; and ordinary readers are unable, except in such libraries as those of the Inns of Court, to obtain access to it. That no subsequent edition should have reproduced these notes is probably due to the unhappy litigation in America to which the issue of that edition gave rise; but though it is difficult to say that the void thus left is entirely filled, the general student will find that Dr. Woolsey's work, within its province, leaves little or nothing to be desired.