to

pay the said sum of £11,500 to Mr. Philip, his heirs, executors, or assignees, at the first term of Martinmas or Whitsunday after the said company, on obtaining their Act of Parliament, shall have begun to execute any part of the said railway under the powers of the said bill, and the price to bear legal interest thereafter until paid; and the company, before taking possession of or entering on the premises, either paying or satisfying the said R. Philip for the price thereof," &c. The construction of the branch was authorized by 10 and 11 Vic. c. 151, the 14th section of which enacted that the powers for the compulsory purchase of lands should not be exercised after three years; and the 15th section enacted that the branch should be completed within seven years, and that, on the expiration of such seven years, the powers given for executing the branch should cease. The company did not commence their line within the seven years limited by the Act. It was held by the House of Lords, overruling the decision of the Court of Session, that the respondent was not entitled to insist upon the performance of the contract by the company. "The matter," observed Lord Wensleydale, "is one common to the Scotch and the English law: and it is to be decided upon principles equally belonging to both. I think our duty is to look at the terms of the contract, and to construe it according to the ordinary grammatical sense and meaning of the words, taken in conjunction with the facts and circumstances existing at the time, and which are to be looked at in order to intrepret the contract. So doing, I confess and think it is quite clear that this was a contract which was never meant to take effect unless the Railway Company determined to exercise their powers under the Act of Parliament. It is perfectly clear that it was conditional upon the company obtaining the Act. And it is clear upon the face of the contract itself, that that was to be, not an Act of Parliament obliging, but an Act of Parliament enabling them to make a branch railway from the Leith Branch to the Leith Docks.

"Now it has been very clearly settled, though in the first instance there was some doubt about it, that these enabling Acts are not compulsory. It was solemnly decided by the Court of Error, of which I formed a part, in a case in which the judgment was delivered (and an excellent judgment it was) by the late Chief Justice Jervis (Reg. v. York and North Midland Railway Company, 1 Ell. and Black., 858), that permissive words in an Act of Parliament are not obligatory. Consequently, at the time this contract was entered into, it was perfectly competent for the company to decline to make the railway, even although they had obtained the Act for carrying it into effect, if they thought it more conducive to their interests to decline to do so. Now, that

being so, are we to suppose that, at the time when they entered into this contract, they wholly abandoned the power which they had of declining to make the railway; and that they determined at all events from the first, whatever the consequences might be, to enter into this contract? I think it can hardly be supposed that they did, unless there were clear words showing that they absolutely, unconditionally, and unequivocally meant to purchase the property from Mr. Philip. Instead of that, we find words in the latter part of this contract clearly to show that the purchase was to depend upon a condition. Reading the clauses of the agreement together, finding no time stipulated for the payment, except the fixed day dating from the commencement of the making of the railway under the Act, I cannot conceive that they were bound to pay, unless they began to make the railway under the Act of Parliament."

19. DIPPLE V. CORLES. 11 Hare, 183.

Voluntary Trust-Mere Declaration of Intention to divide Property does not amount to Declaration of Trust.

The eldest son of a testator, on the day of the funeral, communicated to the family his determination to divide the estate (the whole of which he took by the will) equally between himself and his brothers and sisters; adding, that he proposed to sell every thing in order that it might not be said that he had taken more than any of the others. He afterwards sold some personal chattels, and became himself the purchaser of the house in which the testator lived, at a sum fixed or assented to by the rest of the family-the husband of a married sister having signed a document expressing such assent on her behalf.

It was held by Sir W. Page Wood, V.C., that with respect to the property remaining undivided, the eldest son had not declared a complete trust in favour of his brothers and sisters; but that his expression of an intention to divide it amounted to a mere nudum pactum, which would not be enforced in equity. "I agree," said his Honour, "that it is not necessary that the precise words 'trust' or 'confidence' should be used, in order to create a trust, and that any expressions will suffice from which it is clear that the party using them considers himself a trustee, and adopts that character. With regard to personal estate, it is not even necessary that the intention should be expressed in writing, but a trust may be created by parol. If, however, the case be one of doubt or difficulty upon the words which have been supposed to have been used, the court will give weight to the

consideration, that the words, not being committed to writing in any definite and unquestionable form, may not be the deliberately expressed sentiments of the party. Lord Eldon, in ex parte Pye, adverts especially to the fact, that the testator had in that case 'committed to writing' what he thought a sufficient declaration, that he held that part of the estate in trust for the annuitant. No authority has been cited, nor do I think can be found, that upon expressions not importing a determination to hold property upon trust for others, but importing nothing more than a determination to divide it amongst such other persons, it can be held that such expressions constitute a trust, as distinguished from a mere promise to give." After considering whether there was a declaration of trust, or a mere promise to give, his Honour added, The utmost that can be urged in behalf of the plaintiff is, that the declaration of the defendant in this case is equivocal; but that is not sufficient to establish the title which he claims. I think, however, that the evidence of what took place preponderates in favour of there being nothing more than a promise to give, and not any trust declared."

20. IN RE HODGE'S SETTLEMENT. 3 K. & J., 213. Ward of Court-Trustee Relief Act-Effect of Order on Petition. Where an order had been made upon petition, relative to money belonging absolutely to a young lady under age, paid into court under the Trustee Relief Act, whereby an allowance of part of the dividends was to be made to her testamentary guardian for her maintenance, it was held by the Lord Chancellor, after conferring with the Lords Justices, that she thereby became a ward of the court.

21. SLACK V. BUSTEED. 6 Ir. Ch. Rep., 1.

Will-Validity of Devisavit vel non-New Trial.

In this case it was held by the Master of the Rolls (Ireland), that the court may grant a new trial of an issue devisavit vel non, on the ground of misdirection of the judge, though no exception was taken to his charge at the trial.

1. Attorney-Costs-Crassa negligentia. 2. Attorney-Bill of CostsExtra Costs. 3. Counsel-Privileged Communication. 4. Counsel-Authority to compromise Cause without Client's express Authority. 5. ElegitPrima facie Evidence of Title. 6. Equitable Plea-Work and Labour-Negligence. 7. Fraud-Necessity of renouncing all Benefit from a Transaction, in order to avoid it as induced by Fraud. 8. Interpleader when Defendant claims an Interest in the Subject-matter of the Suit, or when the Question between himself and the Plaintiff cannot be tried in an Issue between the Plaintiff and the Third Party. 9. Master and Servant-Injury to Volunteer by Negligence of Defendant's Servants whilst assisting them in their Work. 10. Railway Traffic Act-Right of an Omnibus- Proprietor to enter a StationYard for the purpose of taking up and setting down Passengers. 11. Reversioner-No Action lies for an Injury to the Plaintiff's Reversionary Interest unless it is of a Permanent Character. 12. Sale of Goods-Warranty as to the Applicability of a specific Chattel to a given purpose. 13. Undermining— Surface Owner entitled to Support from Adjacent Ground-Local Act. 14. Undermining—How far Right of the Owner of the Surface qualified by Proof of the Circumstances under which the Surface and Mines were reserved. 15. Water-Obstructing Channel of Stream-Damage by Overflowing -Right by Custom and Presumption. 16. Watercourse-Rights of Riparian Proprietors to the Use of a Running Stream.

1. Cox v. LEECH. 1 Com. B., Rep. (N.S.), 617.

Attorney-Costs-Crassa negligentia.

The plaintiff's attorney received instructions to sue forty-five underwriters for particular average loss on certain policies on goods which had been shipped to Calcutta, and there sold. Having written ineffectually to each of them, demanding payment, he (under an impression that the only defence to be set up was a supposed set-off against the broker in whose name the policies were effected) sued out writs in the Lord Mayor's Court, though he knew that that Court had no power to issue a commission for the examination of witnesses abroad.

The actions (after consolidation) being defended, and a commission to examine witnesses at Calcutta being found necessary, he was obliged to abandon the proceedings in the Lord Mayor's Court.

In an action by the plaintiff for his bill of costs, the Court of Common Pleas

Held, that the attorney was guilty of crassa negligentia, and disentitled to sue his client for the costs of such abortive proceedings; and that it was no answer for him to say (upon the argument of a rule to set aside a verdict which had been found against him), that the difficulty might have been got over by the removal of the causes by certiorari to one of the superior

courts.

The Court, however, held that the plaintiff was entitled to recover in respect of the letters before action.

2. PIGOT V. CADMAN. 1 H. & N., Exch. Rep., 837.

Attorney-Bill of Costs-Extra Costs.

This was an action to recover for work and disbursements as an attorney. The plaintiff had delivered a signed bill a month before action. In it he claimed for certain extra costs in a Chancery suit, mentioning the items of the extra costs in detail, but not giving the items of the taxed costs. The other items of the bill were properly stated. The defendant pleaded never indebted, and no signed bill delivered. The jury found the defendant liable for a portion of the amount claimed; but for the work as to which the extra costs are charged they found the defendant not liable.

On a rule to set aside the verdict, and enter a nonsuit on the ground that no signed bill had been delivered pursuant to the statute, the Court of Exchequer held that the bill delivered was insufficient, inasmuch as it did not contain the whole of the items of the plaintiff's claim. That, as to that portion of the bill which related to the claim for extra costs, the bill was insufficient, as it should have contained the whole of the costs (Waller v. Lacy, 1 Man. & G., 51); and, the bill being thus bad in part, was, according to Ivimey v. Marks (16 M. & W., 843), bad altogether; and that the verdict could not be sustained, although it excluded altogether the claim on that part of the bill which was defective.