warehouse rent, during the delay occasioned in delivery owing to the bad condition of the timber. He suggests that possibly the ship owners might be entitled to recover over against the shippers on the principle laid down in Moul v. Garrett (1870) L.R. 5 Ex. 132; (1872) 7 Ex. 101, and cases there cited, but he does not determine that point and admits that it is open to doubt. WRIT OF SUMMONS-SERVICE OUT OF THE JURISDICTION-CONTRACT WHICH OUGHT TO BE PERFORMED WITHIN THE JURIS 66 DICTION"-BREACH WITHIN THE JURISDICTION-RULE 64(e) (ONT. RULE 162 (e)). Mutzenbecher v. La Aseguradora Espanola (1906) 1 K.B. 254. This was an application to set aside an order for service of the writ of summons out of the jurisdiction. The plaintiffs carried on the business of insurance agents in England, the defendants were a Spanish insurance company, domiciled in the Canary Islands. An agreement in writing was entered into between the plaintiffs and defendants in the Canary Islands whereby the plaintiffs were appointed the defendants' sole agents in the United Kingdom and her colonies, and for certain countries in Europe, and also for the United States, for a period of five years. Before the term was up the defendants sent an agent to England who, by letter written in London and transmitted through the post office to the defendants, terminated the agreement, and the action was brought for breach of the contract. Phillimore, J., refused the application, and the Court of Appeal (Collins, M.R., and Barnes, P.P.D.,) sustained his decision holding that the action came within the terms of Rule 64 (e) (Ont. Rule 162 (e)) as being founded on a breach within the jurisdiction of a contract which, according to the terms thereof, was to be performed within the jurisdiction. LICENSE TO SELL LIQUOR BY RETAIL-Soliciting or TAKING ORDER AT PLACE OTHER THAN THAT SPECIFIED IN LICENSE. Elias v. Dunlop (1906) 1 K.B. 266. In view of a practice which prevails in Ontario this case deserves attention. The defendants were grocers and carried on business at two shops for one of which they held a license to sell liquor by retail. They were convicted for taking an order for liquor at the unlicensed premises, which they executed from the licensed premises, and the Divisional Court (Lawrance and Ridley, JJ.,) upheld the conviction. SELLING LIQUOR WITHOUT A NATURE. LICENSE-OFFENCE OF TRIFLING Barnard v. Barton (1906) 1 K.B. 357 is a cognate case which also merits notice. An incoming tenant of a public house undertook to carry on business of selling liquor for a period of nine days before getting any transfer of the license held by the previous occupant, his excuse being that during that period no sessions sat at which a temporary transfer of the license could be applied for. The defendant was indicted and the justices held that the offence committed was of "a trifling nature," and under the provisions of an Act enabling them so to do, dismissed the complaint. On a case stated, however, the Divisional Court (Kennedy and Ridley, JJ.,) held that the offence could not be properly considered of a "trifling nature," and that the defendant ought to have been convicted and the case was accordingly remitted to the justices. EQUITABLE EXECUTION-RECEIVER-SPECIAL CIRCUMSTANCES-IMPEDIMENTS TO ORDINARY EXECUTION-DEFENDANTS OUT OF THE JURISDICTION-JUD. ACT., 1873, s. 25(8)—(Ont. JUD. ACT, s. 58 (9)). Goldschmidt v. Oberrheinische Metallwerke (1906) 1 K.B. 373 shews that what the Court will not do in the case of a defendant resident within the jurisdiction, it may do where he is resident without. The plaintiffs had recovered judgment against the defendants, a firm carrying on business in Germany, and having been unable to recover the amount under execution in the ordinary way, applied for the appointment by way of equitable execution of a receiver of all debts due and owing to the defendants in England, so far as might be necessary to satisfy the plaintiff's claim. Channell, J., refused the application, but the Court of Appeal (Williams, Stirling and Moulton, L.JJ.,) however, overruled his decision. NUISANCE NOISY NEIGHBOURHOOD INCREASE OF NOISE-RESIDENCE INJUNCTION. Rushmer v. Polsue (1906) 1 Ch. 234 was an action for an injunction to restrain a nuisance caused by carrying on a printing establishment. The neighbourhood was specially devoted to the printing and allied trades. It appeared from the evidence, that prior to the establishment of the defendant's business, though in the daytime the plaintiff must have been subjected to noise from the working of machinery on the premises now occu pied by the defendants, yet no noisy machinery had been worked at night in that house; but near the plaintiff's house were other printing establishments in which the work had proceeded at night, but no disturbance was caused thereby to the plaintiff. Since the establishment of the defendant's business the noise therefrom at night had created annoyance to the plaintiff, and a serious disturbance to himself and family. Warrington, J., in these circumstances granted a perpetual injunction restraining the defendants from so carrying on their printing works as by reason of noise to cause a nuisance to the plaintiff or to his family or to persons resorting to his house. The defendants appealed, contending that the neighbourhood being one devoted to the printing trade, and the plaintiff's being the only residence there he could not insist on its being kept free from noise incidental to that trade, and that he had come to the nuisance and could not complain. The Court of Appeal (Williams, Stirling and Cozens-Hardy, L.JJ.,) although assenting to the proposition that a party residing in a district devoted to trade is not entitled to the same standard of comfort as persons residing elsewhere, held that, in the present case, the noise and discomfort created by the defendants' operations were in excess of what an ordinary person could reasonably be expected to put up with in the neighbourhood in question, and, therefore, that the injunction was rightly granted. PATENT COMBINATION-INFRINGEMENT-REPAIR OF PATENTED ARTICLE. Sirdar Rubber Co. v. Wallington (1906) 1 Ch. 252. This was an action to restrain the infringement of plaintiffs' patent for a rim for holding a solid rubber tyre without pinching, and without wire or bands for securing it. The defendant had made and fitted a new tyre on one of the plaintiffs' rims to replace a worn out one. Eady, J., dismissed the action on two grounds, (1) that the act complained of was not an infringement and was nothing more than a repair; and, (2), because there was no patent for the tyre, and the combination of rim and tyre, was not a patentable combination (1905) 1 Ch. 451 (noted ante, vol. 41, p. 483). The Court of Appeal (Collins, M.R., Romer and CozensHardy, L.JJ.,) affirmed the judgment solely on the latter ground, viz., that the patent was bad for insufficient specification, but on the point, whether the act complained of would be an infringement if the patent had been good, Cozens-Hardy, L.JJ., expressly disclaims concurrence with the view of Eady, J. BUILDING SCHEME-PLAN-IMPLIED REPRESENTATION-POWER TO PERMIT VARIATION-BLOCKING UP ROAD-CUL-DE-SAC-DEDICATION-USER. Whitehouse v. Hugh (1906) 1 Ch. 253 was an action to restrain the blocking up of a road. The plaintiff was the owner of a house built on a plot which formed part of an estate laid out by a building society in accordance with a scheme. On the side of the plaintiff's plot a vacant space was shewn on the plan, which, though not named as a road, had been roughly made up by the society as a road leading to a railway track over which the society had a private way to lands owned by it on the other side of the track. The society had released this right of way, and the road was in fact a cul-de-sac. All the plots on the building estate were sold subject to a condition reserving to the vendors power of allowing a variation of the plans and conditions." The society sold the vacant space in question to the defendant, who proceeded to dig it up with a view to building. The plaintiff claimed to restrain the defendant from building on the vacant space or diverting it to other purposes than that of a road. Kekewich, J., held that there was nothing in the plan to indicate that the vacant space was reserved for a road and that the user of it as a road was not sufficient to constitute a dedication of it as a public highway, adopting in this respect what was said by Farwell, J., in Attorney-General v. Autrobus, viz., that in no case has mere user by the public been held sufficient to constitute a dedication to the public of a cul-de-sac; and he also held that the reservation of the power to the vendors to allow variations of the plans or conditions, qualified the plaintiff's rights under the building scheme and enabled the vendors to permit the defendants to use the vacant space as he proposed to do. The action was, therefore, dismissed. ADMINISTRATION-STATUTE OF LIMITATIONS "PRESENT RIGHT TO RECEIVE THE SAME-RIGHT OF ACTION AT LAW-INCAPACITY In re Pardoe, McLaughlin v. Penny (1906) 1 Ch. 265 shews that the distinction between law and equity is still of vital importance. In this case a sum of money to which three executors of a deceased person's estate were entitled was, in the year 1864, paid to two of the executors, one of these executors being entitled to a life estate in the fund, and the other being her husband. The husband died in 1884, having paid the whole fund into his own private banking account and had never accounted or given any acknowledgment therefor. The third executor died in 1886, and the other executor and tenant for life of the fund died in 1903. The plaintiff, who claimed to be entitled to the fund in remainder, now sued the personal representatives of the husband and wife who had received the fund, who set up the defence of the Statute of Limitations (23 & 24 Vict. c. 38, s. 13), (see R.S.O. c. 72, s. 9), and Kekewich, J., held that it was not tenable, because the executors were entitled to receive the money and no action at law would have lain against them for the money, and that although by proceedings in equity they might have been required to secure the fund, yet that did not enable the Statute of Limitations to run in their favour, and, therefore, that so long as the two executors who received the money or the survivor of them lived, there was no present right to receive the money from them in any person capable of giving a discharge therefor, and, consequently, in their lifetime the statute never began to run. COMPANY-Debenture HOLDERS' ACTION-RECEIVER-COSTS— CHARGING ORDER-SOLICITOR AND CLIENT COSTS-"PROPERTY RECOVERED OR PRESERVED"-THE SOLICITORS ACT, 1860 (23 & 24 VICT. c. 127) s. 28-(ONT. RULE, 1129). In re Horne, Horne v. Horne (1906) 1 Ch. 271 was a debenture holders' action, in which a receiver had been appointed, the solicitor for the plaintiff acting also for the receiver. In the result property was realized by the receiver and the proceeds paid into Court, there being sufficient to satisfy the claims of the debenture holders and leaving a surplus for the liquidator of the company. The plaintiff's solicitor claimed a charge on the proceeds, for his costs as between solicitor and client, and also for his costs as between solicitor and client incurred on behalf of the receiver. Farwell, J., decided that the solicitor was entitled to a charging order upon so much of the fund as belonged to the debenture holders for the plaintiff's solicitor and client costs; and, also, on the residue of the fund payable to the liquidator for the costs incurred on behalf of the receiver. WILL CONSTRUCTION GIFT TO CHILDREN AS A CLASS SUBSTITUTIONAL GIFT TO ISSUE-ISSUE OF PARENT DEAD AT DATE OF WILL. In re Gorringe, Gorringe v. Gorringe (1906) 1 Ch. 319. testator gave legacies to the children of one of his sons whom he described as "my deceased son." He gave the residue of his estate in trust for all or any of his children who should be living |