discharged. The defendant finally paid 1,620. by cheques drawn on the bank of which he was manager, and signed by himself as executor of the testatrix, who never had an account with the bank in her lifetime. The mortgagor thereupon assigned the ship to the defendant, and covenanted to pay the moneys advanced by him. At the close of 1851, the directors of the bank discovered the entries of the moneys, amounting to 1,6207., debited to the testatrix's executor; and, at their request, the defendant, in consideration of the 1,6207., assigned to the bank the 1,500l. and 1,6207. due to him, and the ship, with power to sell the ship, which they accordingly sold, but obtained only 1,1507. for the same. The plaintiffs claimed that amount from the banking company. Held, that the defendant, the executor, had not priority over the testatrix's mortgage for the moneys so advanced by him; neither could he, as agent for the bank, by advancing his money on account of the bank to the mortgagee, have obtained for his principal such a priority.

The following propositions were laid down by his Honour in the course of his judgment :

The executor was bound, before he advanced this money, to have seen that the security of the ship was sufficient to cover the additional advance. The ruling would not have been different if the executor had assets sufficient for the advance in his hands, and the present were an ordinary administration suit.

What the defendant knew, quá executor, affected the bank, whose agent he was, with notice.

Even regarding the advance as being made bona fide by the bank to the executor, for the purpose for which it was applied, it would not be allowed to the bank against the assets of the testatrix.

As an advance to the executor, it might bind the assets of the testatrix, if it had been beneficially applied for the purposes of her estate, and the cestuis que trust had the benefit of it; because there the executors would have been so entitled.

If a man, without taking any security, advances money to another who is an executor, and the executor informs the lender that he requires the money for the purposes of the testator's estate, but in fact misapplies the money, that cannot bind the persons interested in the testator's estate, but constitutes simply a general debt from the borrower to the lender.

AGREEMENT.-SPECIFIC PERFORMANCE.-LESSOR AND LESSEE. -LESSEE TAKING POSSESSION.

Simpson v. Sadd, 4 De G. M. & G. 665.

In this suit, which was for the specific performance by the defendant of an agreement to take a lease of certain premises belonging to the plaintiff, the Lord Chancellor observed," Primá facie, a lessee was entitled to call for his lessor's title; and taking possession was in itself an equivocal act, the question in such case being, whether the lessee, by taking possession, intended to waive, and had waived his right to call for a title. Such an intention might be more probable in the case of a lessee, especially a lessee at a rack-rent, than in the case of a purchaser, but the mere fact of taking possession was not in itself sufficient."

SPECIFIC PERFORMANCE.-RENEWED LEASE.-EXECUTORS.

Stephens v. Hotham, 1 Kay & J. 571.

In this case specific performance of a covenant in a lease to take a renewed lease was decreed against the executors of a lessee, they having entered and admitted assets. "I felt considerable difficulty," said Vice-Chancellor Wood in his judgment, "in compelling an executor to enter into personal covenants respecting the testator's estate, to do that which the law would throw an obligation upon him to do if the testator had entered into a similar covenant."

COMMON LAW.

FORMS OF PLEADINGS.

Wilkinson v. Sharland, 10 Exch. 724.

The declaration in this case was as follows:-The plaintiff sues the defendant for freight for the conveyance by the plaintiff for the defendant at his request of goods in ships; and for the demurrage of a ship of the plaintiff kept on demurrage by the defendant; and for money paid by the plaintiff for the defendant at his request: and the plaintiff claims 1507. Plea, never indebted; upon which issue was joined. Upon motion in arrest of judgment, it appeared that the form prescribed by the

Common Law Procedure Act, 1852, had not been complied with, and the Court, in refusing the motion, observed: "We cannot help calling the attention of the profession to the carelessness with which the forms given by this statute are followed. Forms are provided for nearly every case which usually occurs in practice; and when the work is almost done to the hands of those who profess to draw pleadings, it is to be regretted that they will not attend to the forms provided for them, but resort to others not authorized by the Act."

COUNTY COURT.-ABANDONMENT OF EXCESS.

In Re Hill, 10 Exch. 726.

The abandonment of the excess of a claim above 501., in order to give a County Court jurisdiction, must be the act of the plaintiff himself, or of some person authorized by him, and not the act of the judge. Therefore, where a County Court judge, at the hearing of a plaint, of his own accord, and against the consent of the defendant, amended the particulars of demand by reducing the claim to 50l., and gave judgment for the plaintiff for that amount, the Court granted a prohibition.

PRACTICE AT NISI PRIUS.-Right oF PLAINTIFF'S COUNSEL

TO SUM UP.

Hodges v. Ancrum, 24 Law J. Exch. 257.

It was in this case held, by the majority of the Court of Exchequer, that where, at the close of the plaintiff's case at Nisi Prius, the judge expresses an opinion that there should be a nonsuit, the plaintiff's counsel is not entitled to sum up the evidence to the jury. "It is in ease of the plaintiff," observed Parke, B.," that this course should be taken, otherwise it would be the duty of the judge to direct a verdict for the defendant. The power of summing up given by the statute comes into operation only where there is something for the consideration of the jury. In this case there was nothing, and therefore the plaintiff's counsel was not at liberty to sum up the case to the jury."

JURISDICTION OF COUNTY COURT.

Lake v. Butler, 24 Law J. Q.B. 273.

The point here decided is of considerable practical importance. Under the 128th section of the original County Courts Act,

9 & 10 Vict. c. 95, concurrent jurisdiction is given to the County with the superior Court, where the plaintiff dwells more than twenty miles from the defendant; it is now apparently settled that this distance is to be determined by a straight line drawn upon the horizontal plane from point to point,-not by reference to the nearest practicable mode of access from the one point to the other.

Admiralty Law.

We are indebted to the courtesy of a correspondent at Montreal for the following report of an important case, decided on the 3rd of July last, in the Vice-Admiralty Court of Lower Canada in connection with it should be read the American case of the Osprey, discussed at page 52 of our February Number :

NAVIGATION.-COLLISION.

The Inga.-Eilertsen.

This was a cause of collision promoted by the owners of the barque Universe, in which they claimed compensation for damage sustained by that vessel in consequence of being run into on her voyage from Montreal, on the 28th May, 1854, by a vessel called the Inga. The facts of the case sufficiently appear from the following opinion of the learned judge:

The Court (Hon. Henry Black).—The Inga, a Norwegian vessel of about 480 tons, had been lying in the harbour of Quebec, opposite the Lower Town market-place, and in the afternoon of the 28th May, 1854, got under weigh for the purpose of proceeding to the ballast-ground, from two to three miles up the river. The tide was ebbing, and the wind a light breeze from the eastward, and she went up under sail. Between three and four in the afternoon she had nearly reached the place at which she intended to come to anchor. She had come up under her fore-sail, fore-top-sail, and main-top-sail; but having decided upon the place at which she was to anchor, her maintop-sail was taken in, and she was proceeding under her foresail and fore-top-sail, the wind still light from the east, the tide ebbing, and the vessel having way enough to stem it, and to

move past the land at the rate of from half a knot to a knot an hour. At the same time the steam tow-boat, Lumber Merchant, was coming down the river from Montreal to Quebec, having the barque Universe, about 313 tons register, in tow astern of her, with about fifty fathoms of tow-rope. They were going six knots through the water, or about nine past the land with the tide. When the vessels came in sight of each other they were about a mile and a half or two miles apart, all three being somewhere about the centre of the channel: the witnesses examined on the part of the Universe saying that the Inga was a little to the north, or on the port hand of the line on which the Lumber Merchant and Universe were proceeding; and the witnesses examined on the part of the Inga affirming, on the contrary, that the Inga was a little to the south of that line, or, in other words, that the Lumber Merchant and Universe were a little on her starboard bow. Both parties, however, agree that the vessels were nearly in a straight line. As they approached, the helm of the Inga was put a starboard, which threw her head round towards the south. The Lumber Merchant and the Universe, on the contrary, put their helms aport, which threw their heads also to the south, and the consequence was that the Lumber Merchant just cleared the Inga, leaving her on the port side; but the Universe and the Inga came into collision, the Inga's bow striking the port side of the Universe about the main rigging, doing considerable damage to both vessels. At the time of the collision the tow-rope broke near the steamer's tow-post. The vessels were afterwards cleared, and to recover the damage sustained by the Universe the present action is brought against the Inga.

The only questions to be decided in order to ascertain whether the action is well or ill-founded are, whether the Inga in putting her helm a starboard was justified by the rules and customs of navigation, or whether she ought rather to have kept her course or put her helm aport; and whether the Lumber Merchant and Universe did right in porting their helms.

The great increase of trade in the river St. Lawrence, and in the inland navigation of the province, and more especially in the number of steam-vessels and of vessels towed by steam-vessels, renders it of great importance that some clear and definite rule should prevail as to the course which should be adopted by such vessels when going in opposite directions, and so placed that if each continue her course there would be danger of collision. The recognized rule for sailing-vessels has always been, that if both vessels have the wind fair, each vessel should port her helm so as to pass each other on the port hand: that if both