No. 16.-Lien-Innkeeper (antè, p. 101).

There seems to have been no decision on this question since it was left open in Farrell v. Crawley. Coleridge, J., in his decision in that case, said, "The right of lien on a carriage is just the same as that which exist in the case of a horse;" and in Robinson v. Waller (1 Rolle. 449), though the court were divided as to whether an innkeeper has a lien on a horse or other chattel which is not the property of the person from whom he receives it, yet the judges who were in favour of the lien existing were of opinion that it existed only in respect of the keep of the horse, and not of the If a guest; and in Bac. Abr. tit. Inn., I find the following: horse be committed to an innkeeper, it may be detained for the meat of the horse, but not for the meat of the guest; for the chattels are only in the custody of the law for the debt that arises from the thing itself, and not from any other debt from the same party, for the law is open for all such debt, and doth not admit private persons to take reprisals." Judging, therefore, from the principle here laid down, and from the principle of lien laid down in Farrell v. Crawley, I am of opinion that an innkeeper has not a lien on a carriage brought to his hotel by a guest for the board and lodging of the guest, but only in respect of his charges for the standing room of, and labour bestowed on, the carriage. J. F. C. (Walsal!).

No. 24.-Gratuitous Bailment-Loss by Theft (antè, p. 103).

In vol. ii. of Stephen's Commentaries (p. 71) the following is one of the general rules for estimating the responsibility to which bailees are subject:-" Upon a bailment from which the bailee derives no benefit, nothing short of gross negligence will make him responsible;" and “a bailee is not liable for a robbery or other casualty in no degree attributable to his own fault." I conceive the defendant's plea in the case mooted would disclose a good defence to the action. J. F. C. (Walsall).

No. 132. Statute of Limitations.

The debt is undoubtedly barred, the exception contained in the 4 Anne, c. 16, s. 19, only extending to the case of a debtor who is abroad at the time when the cause of action accrued. If he is within the realm at that time, but goes abroad afterwards, the debt is barred at the expiration of six years from the time when it became due, for the time of limitation having begun to run, nothing stops it" (Cotterell v. Dalton, 4 Taunt. 830; Doe v. Shaen, Selw. N.P., i., 147 (n); Addison on Contracts, ii., 1330).

་་

W. P. P. is clearly mistaken in saying that it is the creditor's, not debtor's, absence from the country that takes the demand cut of the

statute; for the absence of either has that effect, provided that the cause of action accrues during such absence, the one by the operation of 21 Jac. i., c. 17, s. 7, the other by that of the above cited statute. Et ride Addison on Contracts, ubi sup.

LUCAS CORDES (Newport).

DIGEST OF RECENT CASES.

MORTGAGE.-Mortgagor in possession-Making distress on tenants-Bailiff of mortgagee.-Where a lessor, having mortgaged his reversion, is permitted by the mortgagee to continue in the receipt of the rent incident to that reversion, he, during such permis sion, is, præsumptione juris, authorised, if it should become necessary, to realise the rent by distress, and to distrain for it in the mortgagee's name as his bailiff. Where, therefore, a mortgagor in possession distrained for rent accruing due after the mortgage, but the notice of the distress described the rent as due to himself: Held in replevin that he could make cognisance as the bailiff of the mortgagee. Trent v. Hunt, 9 Exch. Rep. 14; S.C. 17 Jur. 899; 22 Law Journ. N.S. Exch. 318).

DEVISE.-Failure of issue, to what period or event referable.— When the ulterior limitations in a will are made to depend upon a failure of issue of the testator, and there are found amongst the ulterior limitations provisions which could not reasonably be meant to depend upon a general failure of issue, the will is to be construed as referring to a failure of issue at the death, and not to a general failure of issue. The fixing of the time of the death of living persons as the period of payment, is to be considered as inconsistent with the notion that the legacy was to take effect only on a general failure of issue. Re Rye, 10 Hare, 106; S.C. 16 Jur. 1128; 22 Law Journ. N.S. Chanc. 345.

DEVISE-Gift over on failure of class of legatees.-It is a rule of construction that where there is a gift to some only of a class, and then a gift over upon failure of all the class, it is to be construed upon failure not of the whole class, but of those only who are specified before. Bryan v. Mansion, 5 De Gex. and Sm. 737; S.C. 17 Jur. 202; 22 Law Journ. N.S. Chanc. 233.

MORTGAGE-Tender of mortgage money and consequences of refusal to accept it.-Upon the expiration of a notice to pay off mortgage money the mortgagees are bound to know and to state the amount due for principal, interest, and costs. And if the mortgagees refuse to receive the amount tendered by the mortgagor as due for principal, interest, and costs, they do so at their own risk. And

a sum having been tendered and refused, it was held, upon a claim to redeem, that the mortgagors were entitled to a decree for an account of the principal, interest, and costs, and that the interest (if the principal did not appear to have been lying idle) must be continued to the time of taking the account, and that if the sum tendered did not amount to the sum due, the plaintiffs must pay the costs; but if it exceeded the amount found due, the defendants must pay the costs. Harmer v. Priestly, 22 Law Journ. N.S. Chanc. 1041. : SPECIFIC PERFORMANCE.-Performance in toto, not partially. It is fully settled that a contract cannot be specifically performed in part; it must be wholly performed or not at all. Ford v. Stuart, 15 Beav. 493; S.C. 21 Law Journ. N.S. Chanc. 514.

JUDGMENT.-Enforcing in equity-Suing out elegit-General jurisdiction of equity.It was established by the case of Neate v. Duke of Marlborough (3 Myl, and Cr. 407; S.C. 1 Jurist, 939) that courts of equity would, on the ground of aiding the legal right, assist a judgment creditor to get at his debtor's land, but then such creditor must have pursued his legal remedies to the full extent, as for instance, in suing out and getting returned a writ of elegit, even though it was certain nothing would be got under it. This doctrine has lately been recognised and acted on, and the general jurisdiction of equity stated. It was decided that a court of equity will interpose to remove legal impediments out of the way of judgment creditors or for the preservation of the property, pending disputes at law as to the rights of judgment creditors; but the court does not supply or extend legal rights. In fact, the court only interferes in aid of the legal rights when the party has proceeded at law to the extent necessary to give him a complete title; and, therefore, where the plaintiff had obtained judgment, but had not sued out an elegit, it was held (comformably with Neate v. Marlborough) that he was not entitled to the aid of the court as against the freehold estate of the debtor; that he did not, under the statute 1 & 2 Vic. c. 110, s. 13, become entitled to such aid until the expiration of one year from the time of entering up his judgment, and that this being an objection that the plaintiff's title was incomplete, was therefore not removed by a resort to the jurisdiction of the court to relieve against fraud in respect to the freehold estate. Smith v. Hurst, 10 Hare, 30; S.C. 17 Jur. 30; 22 Law Journ. N.S. Chanc. 289.

NUISANCE.-Equity jurisdiction-Injunction.-The principle upon which a court of equity interferes by injunction in cases both of public and private nuisance, is the inadequacy of the remedy at common law; and it is on the ground of injury to property that this jurisdiction rests. Per Sir G. J. Turner, L.J., in Attorney-General v. Sheffield Gas Consumers' Company, 17 Jur. 677; S.C. 22 Law Journ. N.S. Chane. 811.

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NOTES OF RECENT LEADING CASES.

VOLUNTARY CONVEYANCES.-Revocation of-For benefit of creditors [Smith v. Hurst, 10 Hare, 30; S. C. 17 Jurist, 30].A recent decision has drawn attention to the doctrine of courts of equity, as to the revocability of deeds by which debtors voluntarily make provision for payment of their debts, by vesting their estates in trustees. Mr. Hayes (Introd. to Convey. p. 351, 4th edit.), referring to some of the decisions which were reported about the time of the publication of his work, observed, “A train of recent decisions has established that where a man vests property in trustees for payment of his debts, not as matter of arrangement with his creditors, but as a mode of administering his estate convenient to himself, he may at pleasure revoke or vary the trusts, either by express declaration or by subsequent inconsistent acts (Wallwyn v. Coutts, 3 Mer. 707; 3 Sim. 14; 2 Russ. and M. 452, 454; Garrard v. Lord Lauderdale, 3 Sim. 1; 2 Russ. and M. 451; Acton v. Woodgate, 2 Mylne and K. 492). Unfortunately, these decisions do not furnish the practitioner with such distinct and satisfactory tests as enable him to determine in what cases (with reference to the fact of creditors being parties or not-to dealings or communications, contemporaneous or subsequent, by or with creditors-and to other circumstances) the deed, on being repudiated by the maker, may be safely treated as a nullity. The result of the authorities, so far as it can be collected, appears to be that the trusts of a deed of this kind must be considered as created by the debtor for his own accommodation, and as liable, like directions given to a consignee or agent respecting the application of the goods or funds of the principal (Williams v. Everett, 14 East, 582; Scott v. Porcher, 3 Mer. 652; Fitzgerald v. Stewart, 2 Russ. and Myl. 457), to be countermanded at any time before an actual appropriation. The most explicit judicial exposition of the doctrine states it thus:" If a debtor conveys property in trust for the benefit of his creditors, to whom the conveyance is not communicated, and the creditors are not in any manner privy to the conveyance, the deed merely ope rates as a power to the trustees, which is revocable by the debtor, and has the same effect as if the debtor had delivered money to an agent to pay his creditors, and before any payment made by the agent, or communication by him to the creditors, had recalled the money so delivered" (Acton v. Woodgate, 2 Mylne and Kee. 492). And where several persons contract by way of arrangement between themselves for the settlement of an estate, their concurrence which

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made, may also rescind or vary, the arrangement, while it yet rests in fieri; for third persons not parties have no equity to enforce such private and voluntary contracts; but this conclusion seems to flow rather from the old and settled distinction (2 Russ. and Myl. 453) between voluntary dispositions executed and executory, than from the doctrine of the modern decisions on trust deeds for creditors; on which decisions, however, the Vice-Chancellor in a recent case (Ravenshaw v. Hollier, 7 Sim. 3), involving the point in question, founded his judgment. So, if two persons for valuable consideration as between themselves, consent to do an act for the benefit of a stranger, the stranger has not any right to enforce the contract as against the two, though each one might as against the other" (Collyear v. Countess of Mulgrave, 2 Keen, 81). It was almost of course that the principle which sustained a voluntary deed against the maker and his representatives would be considered as impugned by these decisions, which held out encouragement to every voluntary settlor to repudiate his own solemn act. Accordingly in the case of Bill v. Cureton (2 Mylne and Keen, 503), the settlor, a spinster, having vested stock in trustees in trust for her separate use for life, then for her children, and if no child for her next of kin, filed a bill against the trustees for a re-trausfer of the stock; but Sir C. Pepys, M R. (Lord Cottenham), very properly held that the author of the settlement was bound by it, inasmuch as a voluntary settlement, where the trust is actually created, is binding upon the settlor; a doctrine, he observed, not impeached by the above decisions, inasmuch as they proceeded upon the distinction which, though somewhat refined, had good sense for its foundation, that the debtor himself was the only cestui que trust, and therefore entitled to direct the application of his own trust fund (see also Page v. Broom, 4 Russ. 6). Still with respect to trust deeds for creditors, the subject is left in a state far from satisfactory, whether we regard the difficulty of arriving, through the medium of extrinsic evidence at the state of facts, as to the communication or privity, and the consequent danger of relying upon a second deed made in contravention of the first, or the difficulty of collecting the principle amidst the confusion of trusts and powers, revocation and resumption, grantee and agent. It may be thought that the "good sense" is less apparent than the refinement of a distinction which treats a conveyance upon trust for A., to whom the grantor owes no duty, as irrevocable, and a conveyance upon trust for a body of creditors composed of B. C. D., &c., to whom the grantor owes a duty of the highest obligation, as revocable,-not to insist that by making the deed ambulatory during the life of the grantor, we confound it with a testamentary disposition. It is feared that more litigation must yet arise before the locus pœnitentia with which the grantor has been