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which patents at present in force were granted. Wide questions of policy always arise with respect to any retroactive legislation, and a discussion of such questions would be beyond the scope of this article, which is intended only as a survey of the changes which would, as a matter of fact, be effected if the present Bill becomes law.

There are two publications whose bow to the legal profession in the New World synchronized with that of the REVIEW. They are the New York Law Review and the Texas Law Review. The latter is the joint enterprise of the Law School of the University of Texas and the Bar of the State of Texas; while the New York Law Review Corporation is responsible

Mention of our contemporaries at this place is due to the exigencies of printing, and in no wise suggests they are not of first rate importance in the field of legal literature. We wish them every

for the former.

success.

RECENT DECISIONS.

1. ENGLISH CASES.

Limitation of Actions (21 Jac. 1, c. 16)-Sufficiency of Acknowledgment to take case out of Statute.

Spencer v. Hemmerde (1923), 128 L.T. 33, was a case before the House of Lords (Lords Cave, Atkinson, Sumner, Wrenbury and Carson) on appeal from the Court of Appeal in England. On the facts it appears that H., the respondent, had borrowed a sum of one thousand pounds from one B. in 1910. No part of the principal or interest having been paid, on the 4th November, 1915, B. wrote to H. a letter in which he demanded payment of the debt, complaining of H.'s failure to carry out his promises. H. replied by letter on the same date in which he said: “I will look in and see you some day next week, but I cannot at present hold out the slightest hope of paying you the capital. I will tell you exactly how things stand when I see you." The next day B. wrote a further letter to H. threatening action unless he had some definite proposal for settlement from H. Thereupon H. wrote as follows:

“1, Hare-Court, Temple, E.C., Nov. 7. My dear Mr. Benson,-It is not that I won't pay you, but that I can't do so. It is important that I should see you and explain the situation, and shall therefore ring you up to-morrow to make an appointment. What I wrote was not that I saw no prospect at present of being able to repay the capital, but that I saw no prospect of being able to repay the capital at present. The condition of things at the Bar is such that the vast majority of us will be getting into debt rather than out of it. I have a good deal to talk to you about, and nothing can be gained by flying to solicitors. Yours truly, Edward G. Hemmerde.

B. accordingly stayed his hand. On the 22nd June, 1920, the appellant (the trustee under a deed of arrangement with creditors executed by B.) took action for the recovery of the debt. H. pleaded the Statute of Limitations (21 Jac. 1, c. 16). The appellant relied on the letters above referred to as containing a sufficient acknowledgment of the debt to take the case out of the statute. Bailhache, J., the trial Judge, sustained the appellant's contention as to the sufficiency of the letters as an acknowledgment, but the Court of Appeal, purporting to follow their previous decision in Fettes v. Robertson (37 T.L.R, 581) reversed the judgment of the trial Judge and dismissed the action. The House of Lords reversed the judgment of the Court of Appeal and restored the judgment of Bailhache, J. The reasons for judgment in the House of Lords constitute an exhaustive survey of the decisions down to date, and in the result Fettes v. Robertson (supra) is disapproved. Lord Sumner's opinion repays a very careful reading. Two of its more striking passages are quoted below:

"I do not propose to read the words used here in the light of words judicially interpreted elsewhere, for everybody agrees that comparison with the words of other debtors is of little use. Still less do I imagine it to be possible to extract anything which deserves to be called a principle from the decisions of three centuries, which have been directed to what is, after all, the task of decorously disregarding an Act of Parliament. Some' acknowledgments' save the statute and some do not. The whole doctrine is purely artificial. Acknowledgments under other statutes of limitations dealing with other subject matters than simple debts know nothing of these niceties about fresh promises. The only thing to be done is to ascertain what really are the tests, which have been applied by authority, to determine the class to which any given words belong.”

“ The decisions on the exact meaning of the precise words employed by generations of shifty debtors are, it is agreed on all hands, irreconcilable. It may, perhaps, serve in some degree to mitigate the appearance of hopeless contradiction if the theory, on which the decisions have gone, can, to some extent, be unified. I do not think it has been as self-contradictory as is generally supposed. The · Restoration lawyers, no doubt, were brought face to face with two things; a multitude of debts still unpaid but long irrecoverable owing to the Civil War, and a statute, which, in terms, left the creditor without remedy. When first new promises and acknowledgments came into recognition, and why, we do not know, but ultimately it became necessary to invent an explanation, where a simple and existing rule of practice had to be extended to complex cases. Logically, if not chronologically, a succession of courts reasoned thus. The statute is in derogation of a common law right to sue for a debt, so long as it remains unpaid. It cannot, therefore, be so universal as its words import. What is its object? To prevent a debtor, who has paid, but has lost the evidence of the payment, from being made to pay again. What if the debtor himself says that he has not paid? Why, then, he ought to pay, since he admits himself that he ought to pay. How is such an admission, firstly, to be evidenced, and, secondly, to be reconciled with the Act? As to the first, there were two schools, one saying that non-payment was non-payment, and non-payment was evidenced by saying that the debt was unpaid, no matter what else might be said at the same time. I confess that I think that there is a good deal in this. The other said that only a clear acknowledgment would do, and this has prevailed. The first school could not reconcile itself with the Act; it had to defy it. The second had the merit of appearing to do so for it is said that the original loan and the subsequent promise formed one continuing transaction; that the creditor had made the loan once and for all, while the debtor had not finished promising as long as he went on promising, and therefore his assumpsit was still in being till within six years of the action. The explanation wears an aspect of unreality, but at least it hangs together, and explains why the only practical point now is the unconditioned and uncontrolled character of the acknowledgment, and not its intention in truth or its novelty as a fresh cause of action in law."

WillHeirloomsTrustsSubsequent Voluntary DeedsEffect

on Bequest.

In re Whitburn-Whitburn v. Christie (1923), 39 T.L.R. 170, is a case (heard before Sargant, J., in the Chancery Division) where a testator bequeathed certain chattels or household effects remaining in his mansion house, in the estate of Addington Park, at the time of his death, to trustees in trust to permit his wife to have the use and benefit thereof during widowhood, and afterwards

“in trust to permit the same to be held and enjoyed as heirlooms by the person or persons for the time being entitled to the said mansion house

but so that the said heirlooms shall not vest absolutely in any person hereby made tenant in tail by purchase of the said mansion house unless he or she shall attain the age of twenty-one years."

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The testator then devised his Addington Park estate in trust so that his wife might enjoy the mansion house during widowhood, the estate being afterwards devised in strict settlement. After the will the testator executed two voluntary deeds whereby the estate, including the mansion house, was settled to somewhat different uses, so that the devise of the Addington Park estate became inoperative. Sargant, J., held that the trusts declared by the testator's will of the chattels or household furniture were not affected by the disposition by voluntary deed of the real estate.

C. M.

II. CANADIAN CASES.

(a) SUPREME COURT OF CANADA. ANGLIN, J., IN CHAMBERS.

[January 15, 1923.]

IN RE ROBERTS.

JurisdictionHabeas Corpus-Applicant in custody under Pro

vincial Act--B.N.A. Act, (1867) 8. 92 (14), s. 101– Supreme Court Act, 38 V. c. 11; R.S.C. (1906) c. 139, $s. 3, 35, 62-(Q.) 12 Geo. V. c. 18.

R., being in custody under authority of a special Act of the Legislature of Quebec for an alleged offence against the privileges, honour and dignity of that legislature, applied to a judge of the Supreme Court of Canada under sec. 62 of the Supreme Court Act, R.S.C. c. 139, for a writ of habeas corpus.

Held that, owing to the absolute limitation imposed by the concluding words of section 62 “ under any Act of the Parliament of Canada," the judge is without jurisdiction to grant this application.

Writ refused.

On appeal from Appellate Division of Supreme Court, Ont. SHAW v. MASSON.

[19th December, 1922.] Action-Specific performance Contract - Fraud

Money paid under contract-Right to rescission.

The court will not decree specific performance of a contract obtained by fraud of the plaintiff even when the defendant has not offered to return money received under the contract.

Appeal allowed with costs.

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