an action by the company seeking specific performance of the alleged agreement contained in the letters of the 8th and 13th Dec. 1886, Mr. Justice Kekewich decided in their favour; and from bis judgment the defendant appealed. The Court of Appeal beld that these two letters constituted a complete and final contract; that the statement in the letter of Mr. Scratchley of the 13th Dec. 1886, as to the preparation of the necessary documents by the company's solicitors, did not render it a conditional acceptance; and that the letter by the defendant of the 13th Jan. 1887, withdrawing his offer was ineffective as having been made after the contract was complete; and the court confirmed the judgment of Mr. Justice Kekewich.

On the other hand it appears to be settled that the Court will not grant specific performance of an alleged agreement by letters, when looking at the whole correspondence and the conduct of the parties in continuing negotiations, not on a mere matter of form, but on some substantial question involved, after the offer and acceptance, it appears they did not consider the agreement complete and final. Thus, in Hussey Horne-Payne (supra), after some preliminary verbal negotiations, the defendant, on the 4th Oct., 1876, by letter offered the land in question to the plaintiff for £37,500. The plaintiff's agent on the 6th Oct. wrote in answer accepting the offer, subject to the title being approved by his solicitors. Further negotiations, however, followed by letter passing between the parties and their solicitors and by written memoranda, as to the payment of the amount of the purchase money by iustalments, and as to the conveyance of the property as the purchase money was paid, wherein reference was made to the signing of a contract, but no such contract was signed. The plaintiff claimed specific performance of an alleged contract contained in the letters of the 4th and 6th Oct., with a declaration that the terms respecting payment of the purchase money and the conveyance of the property were also binding on the parties. But it was held by the House of Lords, that lthough the two letters, if they had stood alone, would bave been sufficient evidence of a concluded contract under the Statute of Frauds, they must be read in connection with the other correspondence and negotiations, whereby it appeared that there were to be other terms which at that time had not been agreed upon; that efforts were made to settle those other terms, and that such efforts did not result in a settlement thereof, and therefore there was in fact no completed agreement between the parties of which specific performance could be decreed. A recent case to the same effect is that of The Bristol, Cardiff, and Swansea Aerated Bread Company v. Maggs (62 L. T. Rep. N, S. 416), decided by Kay, J. The facts are briefly these: On the 29th May, 1889, the defendant Maggs wrote to the plaintiffs offering to sell his business at Cardiff, lease, and good will for £450. Fixtures and fittings and stock-in-trade to be taken at a valuation. The offer to hold good for ten days. On the first June following Colonel Guthrie, a director of the company, on behalf and with the authority of the company, wrote stating that he accepted the defendant's offer. On the 2nd June the defendant's solicitor sent to Colonel Guthrie a formal memorandum of agreement, which contained several new terms, for approval, This memorandum was altered by the plaintiff's solicitors, mainly by the insertion of a clause preventing the vendor for five years from carrying on a like business within Cardiff, or within a distance of five miles from the town hall, and returned the memorandum on the 4th June with an accompanying letter. On the 5th June the defendant's solicitor wrote sending the draft again to the plaintiffs' solicitors with a modification of the proposed additional clause. On the 6th June the plaintiffs' solicitors wrote stating that they could not themselves agree to the proposed modification; but they had asked Colonel Guthrie to call about it. On the 7th June the defendant's solicitor wrote stating that Colonel Guthrie bad not called, and by his client's instructions be begged to inform them that his cleut "declined to proceed further in the

matter." In an action by the company for specific performance of the alleged agreement by the two original letters, Mr. Justice Kay held that he was bound to look at the whole correspondence from beginning to end; and that although the two letters relied upon would, if nothing else bad taken place, have been sufficient evidence of a complete agreement, yet the plaintiffs themselves had shown that the agreement not complete by reopening the matter and stipulating afterwards for an additional term, not on a mere matter of form, but of considerable advantage and importance to them, which kept the whole matter of purchase and sale in a state of negotiation only; and that therefore the defendant was at liberty to put an end to the negotiations, as he did by withdrawing his offer, although the ten days named in his letter of the 29th May had not elapsed.-Law Times.

was

STATUTORY DISTRAINT.

It may be doubted, with all respect for the judges who decided Hughes v. Smallwood, 25 Q. B. D. 306, whether on appeal the law laid down in it will be affirmed. The case proceeded on section 160 of the County Courts Art, 1888 (51 and 52 Vict. c. 43). That section is identical in its terms with section 75 of the County Courts Act, 1856 (19 and 20 Vict. c. 108). The earlier enactment was the subject of two decisions-Beard v. Knight (1858), 8 Ell. and Black, 865, and Wilcoxon v. Searby re Foulgar and Taylor (1860), 29 L. J. N. S. Ex. 154. In Beard v. Knight plaintiffs had obtained judgment in a County Court action for £35 for debt and £4 14s. 2d, for costs. This was in September, 1857; the following October execution issued on the judgmeut against defendant's goods and chattels for the debt, costs, and expenses of execution and levy, and by virtue of the execution the County Court bailiff entered and seized. Before sale of the goods seized the landlords of the house gave notice to the bailiff that two quarters' rent were due, and the bailiff thereupon distrained pursuant to 19 and 20 Viet. c. 108, sect. 75, therefor. Prior to sale of the goods seized some of them were claimed as the property of a third person, an interpleader summons was issued and, all the goods having been in the meantime sold realizing £54 18. the County Court judge on the hearing held that £14 79. 6d. of the £54 18. consisted of monies arising from goods which were the boua fide property of the claimant and had never belonged to the defendant. But he also held that the £14 7s. 6d. might be applied in satisfaction of the rent due. The claimant appealed and the Court (Lord Campbell, C.J., Wightman and Crompton, J.J.) allowed the appeal. The reasons for this decision can only be gleaned from the observations of the judges during the arguments. It appears from the report that the seizure made under the executiou extended to all the goods and chattels, at the date of the execution, on the house and premises in defendant's ocenpation and no further seizure was made under the distress for the sufficient reason that there was nothing further to seize. Campbell, C.J., said there was hardship enough in the law which allowed the landlord to distrain the goods of a stranger, he did not feel disposed to extend it, it was a new statutable power of distress and the question was whether their Lordships were to apply it to the goods of a stranger. Crompton, J., said the grievance to remedy which the statute 8 Anne, c. 14, s. 1, was introduced was that goods taken in execution were protected from distres, under that statute goods lawfully taken in execution and not the goods of a stranger could alone be levied on for payment of rent and he intimated an opinion that the course substituted by 19 & 20 Vict., c. 108, for that prescribed by 8 Anne, c. 14, s. 1, was subject to the same conditions pointing out that the provision for return of the overplus, if any, to the defendant made strongly for such a construction. The question was between the landlord and the true owner. It had been urged that the section was for the protection of the landlord and Crompton, J., assented in the case of goods properly taken in execution." Wightman, J., asked whether it was contended that "if the bailiff has seized

the goods of a stranger aud the landlord has put in a claim, the bailiff may seize other goods belonging to the execution debtor and satisfy the landlord out of the first goods."

In Wilcoxon v. Searby (ubi supra), execution was levied on the goods of one Taylor under a County Court judg ment for £7. Taylor was tenant to Wilcoxon. Foulgar was the judgment creditor. On execution being put in, Wilcoxon, as landlord of the premises on which the goods seized were, gave notice to the bailiff that £25 was due for rent, and thereupon the bailiff seized on the said premises goods of more than the value of the execution debt, expenses, and rent, and removed the goods and sold so much thereof as was sufficient to discharge the debt due to the execution creditor the £25 due for rent and the expenses. Immediately upon the seizure and before removal of the goods oue Searby who held a bill of sale whereby Taylor had assigned all the furni ture on the premises in question to secure a debt of £60 served notice on the bailiff claiming the goods, An iuterpleader summons was accordingly issued, on the hearing of which the Judge of the County Court of Westminster decided that the bill of sale was valid, and the goods seized were the property of Searby, the claimant, as against the execution creditor. It was then contended that the landlord was entitled to be paid his rent notwithstanding the decision in favour of the vali dity of the bill of sale. Counsel urged that the bailiff making the levy under 19 & 20 Vict., c. 108, sec. 75, must be taken to be the landlord's agent the moment he received the claim aud asked why the landlord was to be deprived of his distress because an execution is put in against the goods of a third party. On the other side it was said that, under the statute of Anne, the goods of a stranger could not be taken, and it must be that under 19 & 20 Vict., c. 108, sec. 75, the same right had in effect been extended instead of a new right being introduced; that it would be strange if the legislature had really made a distinction and laid down one rule with respect to process sued out of an inferior court, and another with respect to process out of the superior courts; and moreover that the effect of adopting the construction contended for on behalf of the landlord would be to hand over the proceeds of the stranger's goods uot to him but to the creditor. Judgment was delivered on behalf of the court by Watson, B. His lordship said the whole frame of the section seemed directed to the case where the goods levied were the property of the tenant. "The overplus of the sale of the residue of the goods are to be returned to the defendant (sic); and upon full consideration of the points, we are of opinion that the judgment of the Queen's Bench (in Beard v. Knight, ubi supra) was right; and in concurrence with them, we do not feel disposed to extend further than we are compelled to do the hardship aad anomaly-that one man's property may be taken to pay another man's debt."

In Hughes v. Smallwood (ubi sup.) plaintiffs recovered judgment in the County Court against defendaut for £35, and execution issued on it under which the bailiff seized defendant's goods and chattels in and upon a public house, of which the claimants were the landlords and of which defendant's wife was lessee. Arrears of rent amounting to £43 were due at the date of the execution, and before any sale of the goods the claimants gave notice to the bailiff under section 160 of 51 & 52 Vict. c. 43, that they claimed £43 for rent in arrear, and the bailiff thereupon distrained the same goods and chattels for the amount of the rent, The goods and chattels were sold by the bailiff for £25, and an interpleader issue was tried in the County Court to deterinine the rights of the parties. The County Court judge decided in favour of the execution creditor, and the claimants appealed to a Divisional Court, consisting of Lord Coleridge, L.C.J., and Wills, J., who, with regret, allowed the appeal saying that "where the execution is rightful, where the bailiff is rightfully in possession of the goods, the landlord has a right to be paid his rent out of the proceeds of the execution, even out of the proceeds of goods belonging to a person who does not owe him anything." Wills, J., distinguished Beard

v. Knight (ubi sup.) saying it was "not possible to place any reliance on it. The facts were essentially different, the goods seized in execution were those of a stranger and the bailiff had thereby committed a trespass; this was clearly present to the minds of the judges who decided the case; for the argument being advanced that the section was for the protection of the landlord Crompton, J., pointed out that it only applied in the case of goods properly taken in execution.

Foulgar v. Taylor (ubi sup.) the facts were identical with those in the case referred to; the goods seized were those of a third persou and the bailiff was a trespasser. Reliance had been placed on the following expression used in the judgment of the Court: "The whole frame of the section seems directed to the case where the goods levied are the property of the tenant." .. But it must be remembered that in that case the tenant and the execution debtor were the same person which in the present case they are not." Their Lordships, however, granted leave to appeal. With the greatest respect for the learned judge, we have not so read the cases, nor do we think any reader, perusing them carefully, will so read them, No doubt in both Beard v. Knight (ubi sup.) aud Wilcoxon v. Searby (ubi supra) the tenant and execution debtor were the same person, but throughout the judges declined to extend the law of distress or to regard it as extended by the provisions of the Statute 19 & 20 Vict. c. 108. But if Hughes v. Smallwood (ubi sup.) was rightly decided the provisions of that statute did extend the law. Prior to 8 Anne, c. 14, s. 1, a landlord could distrain for rent goods on his premises, whether belonging to his tenant or belonging to a stranger. If tenant's goods or stranger's goods were taken in execution, they passed into the custody of the law, and ceased to be distrainable. 8 Aune, c. 14, s. 1, prohibits taking in execution and removal of goods without satisfying the landlord's claim for rent, Whether that statute extends to cases where the goods taken in execution are rightly taken, but do not belong to the tenant, has never been actually decided, but the opinion of the profession, as evidenced by text books is against such extension. White

v. Binstead, 13 C. B 304, does not decide the point. The question there was as between the claimant whose goods had been wrongfully seized in the belief they belonged to another, and the sheriff; and the Court held that the seizure of A's goods under an execution directed against B's goods, was not an execution at all. But the Sheriff's powers under 8 Aune, c. 14, s. 1, depend ou the existence of an execution. The Sheriff might be estopped from denying the existence of an execution as against the landlord, if the goods had been removed. Now 19 & 20 Vic., c. 108 provides that as to goods taken in execution under the warrant of a County Court, the 8 Aune, c. 14, s. 1, shall not apply, but the laudlord may claim the rent, and if so, the bailiff shall, in addi. tion to the levy, distrain for the rent so claimed, and costs. Does this statute enable the goods of a stranger, seized under an execution against the stranger, to be applied in discharge of rent due, not from the stranger, but from the tenant of the premises on which they were when seized? What was the evil to be remedied? That by execution goods distrainable ceased to be. But tenants' goods and strangers' goods were alike distraiuable and alike ceased to be by issue of an execution rightfully levied on them. Were, then, both within the statute? If so, why not when execution was wrongfully levied i.e., when A's goods were taken by mistake iu issuing execution against B., for in that case also the laudlord lost his right to distrain which existed against the goods that were A's. If the point made in White v. Binstead (ubi supra) is to be relied on-viz., that in such a case there is no execution-how can that dispose of Beard v. Knight (ubi. sup.), where some only of the goods sold belonged to a person other than the execution debtor. Why should the statute be read as extending to the goods of a stranger? No doubt at the time of the levy the goods were distrainable because on the premises; no doubt by the levy they have ceased to be; but it does not follow that had there beeu no execution they would have remained distrainable. Tue

stranger has a perfect right to remove them at any time or under any circumstances in order to avoid the distress. Thornton v. Adams, 5 M. & S. 38. The execution prevents his exercising this undoubted right of removal. Why should it also enure to the landlord's benefit? There is no presumption where the goods do not belong to the tenant that they would, but for the execution, have remained on the premises, and continued distrain. able. If under 19 & 20 Vict,, c. 108, the bailiff is to be treated as the agent of the landlord and entitled to distrain just as the landlord would, and, practically, notwithstanding the execution, the result must in some cases be not merely that the landlord gets paid out of goods not belonging to his debtor, but that the execution creditor does also. We assume A is tenant and also execution debtor-landlord claims rent-County Court bailiff having levied on A's goods in execution proceeds to distrain B's goods for rent because they happen to be on the premises; by these means the judgment creditor gets his debt in full, whereas he ought only to be paid so far as A's goods suffice to pay him after satisfying the rent. Why should it make any difference that the goods seized under the execution are not the goods of the execution debtor but are distrainable if the bailiff subsequently distrain on them for reut and seize others in execution which do belong to the execution debtor; is the first wrongful seizure to privilege the goods from distress? Is it because such a wrongful seizure does not constitute an execution, and does not bring with it the statutory powers; if that is the reason, then the statutory provisions would follow if some of the goods seized in the first instauce belonged to the execution debtor.-Pump Court.

NOTES OF CASES.

LAND SUB-COMMISSION.

(Before L. DOYLE, Barrister-at-Law, COLONEL BAILEY, and Mr. CRADDOCK.)

M'CARTHY, landlord, COLEMAN, tenant.

Oct. 18, 1890.-Judicial rent, determination of-Labourers' or servants' holdings-Land Law Act, 1881, s. 58 (5).

Application to fix fair rent, heard in Kanturk. In 1863 Coleman, who was a smith, took a house and forge from M'Carthy, at the rent of £2 58. Coleman was to have some privileges on M Carthy's farm, and to do all the iron work necessary on the farm except binding wheels and making axles, and was to be paid therefor the sum of £5 5s. per anuum. This arrangement continued for about 12 years, when Coleman got a field of over 1 acre, instead of some of the privileges, at the rent of £2. Coleman never got any receipt for rent and settled an account yearly with M'Carthy, the iron work, &c., and rent of house, forge, and field, being all taken into account.

Mr. Beytagh, solicitor for the landlord, contended that the holding came within sub-sec. 5, sec. 58, of the Lind Law Act, 1881, and was held by the tenant by reason of his being a hired servant of M'Carthy's; citing Hausher v. Chichester (Cherry & Wakely, Land Law Acts, p. 141).

Mr. Barry, solicitor for the tenant, contended that the holding was an ordinary agricultural oue, at a rent of £4 58., and that the tenant was entitled to have a fair rent fixed.

Held (Colonel Bailey dissenting), that the tenancy did come within the exception, and that the originating notice should be dismissed, with costs.

PRUDENTIAL ASSURANCE COMPANY, LIMITED, Holborn Bars, London, E. C. Founded 1848. Paid, £12,000,000. District DUBLIN.

Invested Funds, £10,000,000; Claims Office-11 UPPER SACKVILLE-STREET,

WILLS MADE BY MARRIED WOMEN. The well-known decision in Willock v. Noble (32 L. T. Rep. N. S. 410; L. Rep. 7 E. & Ir. 580), that a will made by a married woman during coverture will not pass property acquired after the termination of the Coverture unless it is republished or re-executed, was held by Mr. Justice Pearson in Re Price; Stafford v. Stafford (52 L. T. Rep. N, S. 450; 28 Cb. Div. 709), still to be law in spite of the Married Women's Property Act, 1882. The question then naturally arises, what is sufficient republication or re-execution? In Re Maria Smith; Bilke v. Roper (noted ante, p. 292), a married woman had exercised her testamentary power of appointment during her husband's lifetime, and after his death she executed an instrument, attested by two witnesses, in which she purported to present ten shares to a nephew, but made no reference to the will. Mr. Justice Stirling held that that was not a sufficient republication, as although it was not necessary that a particular intention to republish the will should be expressed, still there should be some reference to the will showing the intention of the testator that it should be considered of the later date, and all reference to the will was wanting here. In the Goods of Terrible (31 L. T. Rep. O. S. 318; 1 Sw. & T. 140) Sir C. Cresswell held that a memorandum, duly attested as a codicil, written immediately under the names of the attesting witnesses of a will which had been revoked by the testator's marriage, and containing the words, "I give and bequeath to my wife Martha Terrible, my wife Sarah Terrible being void by death," was sufficient to revive the will, as it could refer to uo other will.-Law Times.

"After he was called to the Bir," we are told in "Bismarck Intime," "Bismarck was often entrusted with a brief in minor cases before the city magistrates. He did his best, in this position, to maintain the demeanour befitting a court of justice, but the old roguish spirit would sometimes get the better of him, and then he would behave as if he were unaware in whose presence he was. One day he had to examine a witness who was a Berlin cockney. This gentlemau had the assurance characteristic of his kind, and his glib tongue and disrespectful behaviour had such an effect on our young barrister that he jumped up and thus addressed the witness in the box: Sir, if you are not more temperate in your behaviour, I'll turn you out." The presiding magistrate thought it was the barrister who was intemperate now, and in a quiet official tone he said: 'I would suggest to counsel that it is my place to order any person from the court.' Bismarck took the reproof quietly, and sat down biting bis lip. The proceedings then went forward, and it was not long before our barrister again lost patience. Once more he sprang

up, and annihilating the witness with his furious glances he bawled to him in a voice of thunder: 'Be careful, sir, or I'll have you turned ont by the magistrate.' The expression on the magistrate's countenance may be easily conjectured; it was his turn now to bite his lip."

LAW STUDENTS' JOURNAL.

KING'S INNS.

MICHAELMAS SESSION, 1890..

LEGAL EDUCATION.

Joseph Henry Moore, Esq, King's Inns Professor of Equity and Pleading and Practice, in the several Divisions of the High Court of Justice, will deliver his Course of Lectures in the Lecture Room, at the King's Inns, on Mondays and Thursdays, during the Michaelmas Session.

Professor Moore will lecture during the Session on Equity. The Book to be referred to will be "Snell's Principles of Equity."

The First Lectare will be delivered on Monday, the 3rd November, at half-past Four o'clock.

Dunbar Plunket Barton, Esq., Q.C., King's Ians Professor of the Law of Personal Property, the Law of Contracts, and the Law of Torts, will deliver his Course of Lectures in the Lecture Room, at the King's Inus, on Tuesdays and Fridays, during the Michaelmas Session.

Professor Barton will lecture during the Session on The Law of Personal Property. Reference will be made to "Williams' Principles of the Law of Personal Property" and "Goodeve's Modern Law of Personal Property."

The First Lecture will be delivered on Tuesday, the 4th November, at half-past Four o'clock.

The Lectures of the Professors will be delivered at Five o'clock, p.m., but all Students are to be in attendance in the Lecture Room at half-past Four o'clock, p.m.

Each Course will contain Twelve Lectures, all open to the Public.

By Order,

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John., M'ney & O'Brien, ltd Do., 5 pc, red. after 1900 Do, 6 pc Cum, Pref. Kinahan & Co., Ltd.

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25 National Assurance 9-4-7 Patriotic Assurance Pim Brothers, Limited Do.. 5 pc Cum. Pref. 10 The Official Guide, Ltd. 5 Thom & Co., Nos. 4,304 3,000

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Thwaites & Co., Pref. Tramways.

Belfast Trams

to Dublin United Tramways Do., 4 p c Debenture

to N'th Metr. Tramway, Lond. to Provincial Trams, lim. Railways.

<o Belfast and County Down

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100 Dublin, W'klow, & W'ford Great Northern(Ireland),

100 Gt.Southernand Western 100 Midland Gt. Western 50 Waterford and Limerick Railway Preference. 100 D., W, & W., 5 per cent 100 Do. do. (1860)

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BIRTHS. MARRIAGES. AND DEATHS.

PUBLIC NOTICES:

PRINTING AND

STATIONERY.

DOLLARD,

PRINTINGHOUSE,

MARRIAGES.

ELSWORTHY and LOCKHART-October 29, at the Magdalen Church, Belfast by the Rev. R. J. Brandon, LL.D., Senior Chaplain, Madras, assisted by the Rev. W. Riddall, D D., Edward Houtson Elsworthy, Bombay. to Susan Margaret, second daughter of Alexander Lockhart, solicitor, Belfast

GLEESON and ROCHE-October 22, at the Church of St. Francis Xavier, Upper Gardiner-street, Dublin, by the Rev. D. M'Namara, Toomevara, Rody Gleeson, solicitor, Nenagh, son of the late Denis Gleeson, Esq, Shallee House. Nenagh, to Annie, daughter of the late Nicholas Roche, Esq., Ballinamona, Nenagh.

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HENNIG BROS., Billiard Table Makers, 29 HIGH STREET, LONDON, W.C.,

Undertake to supply new 14 in slate bed full size solid mahogany Billiard Tables of guaranteed workmanship and finish, replete with every modern improvement and requisites of the value of £10, delivered and fixed for £60; or freight paid to any Colonial Port for £70. Undersize, French, and Magic Billiard Dining Tables from £6 68. New Billiard, Pool, or Pyramid Bails, full size, real Ivory, from 108. Supr West of England Cloths for full size Tables and Cushions. from 62s. 6d. Cues (well seasoned Ash) 18.; ditto, supr hardwood butted, 28., 28. 6d., 38, 38. 6d., 4s., 48. 6d.; Ebony butted, 58. Cue Cases, 2s. 6d. and 38. Cue Tips (best quality only), 1s., 18. 2d.. 18. 4c., and 18. 6d. per box of 100. Cue Tip Chalks, 18. per gross. Restuffing Cushions with Rubber, warranted not to get hard in any climate. £8 10s. Adjusting and Colouring Balls, 8d. Price Lists. Cloth and Cushion Rubber Samples, post free. Every kind of Billiard Work executed with despatch, carefully and at moderate charges. Billiard Rooms fitted throughout; distance no object. Colonial and Shipping Orders promptly attended Estab. 1862. Cut out and preserve for future reference

to.

173

JAMES KEOGH,

TAILOR

PUBLIC RECORD AGENT AND LAW SEARCHER, BEAUMONT TERRACE, NORTH CIRCULAR ROAD,

DUBLIN.

SOLICITORS having the Carriage of Sales of

Property in the Land Judges' Court are respectfully informed that they can have their Printing executed correctly, and with the utmost despatch by

JOHN FALCONER,

53, UPPER SACKVILLE-STREET, DUBLIN.

WANTS:

PARTNERSHIP.-Wanted by an energetic and

experienced Solicitor a Partnership in a good Dublin Office. Reply, giving particulars of capital required, &c., to "PARTNER," Office of IRISH LAW TIMES, 53 Upper Sackville-street, Dublin.

141