thought they did not.

Jessel M.R. (Emmins v. Bradford, 13 Ch. D. 493) thought they did. At the first blush of the thing it is difficult to see how a wife, who dies without having been married,' can have children in contemplation of law. But this is just a case for not 'sticking in the bark'; but for looking at the general intent and scheme of a marriage settlement, and so looking at it, the obvious intent, though clumsily expressed, is to exclude the husband only, even though there is not the usual trust for children earlier in the settlement. After Chitty J.'s decision in Stoddart v. Savile (8 R. August, 150), we may fairly hope the form is finally settled. Another question which would also have been 'nuts' to the Schoolmen was that raised in In re Shaw, Robinson v. Shaw (8 R. August, 208), whether an illegitimate child en ventre sa mère can acquire the reputation of legitimacy. A child en ventre sa mère can do many wonderful things, we know, but not this.

The old doctrine of unity between husband and wife is in a dilapidated, not to say ruinous condition, but it still affords good cover for a married woman who wishes to exercise her immemorial privilege of changing her mind. A male infant who executes a marriage settlement and covenants to bring in afteracquired property, must make up his mind to affirm or disaffirm within a reasonable time. So must a lady infant; but an infant wife is a more complex and more elusive persona. The daring proposition advanced on behalf of the ex-infant wife in In re Holford (7 R. August, 64), was that a married woman is incapable either with or without the concurrence of her husband of affirming her covenant made while an infant. This attempt to stultify herself did not commend itself to the Court. A married woman may have capacity to elect, though she has none to contract. She is quick enough to exercise a mature discretion when she sees her way to the benefits of independence; when, for instance, it is a case of taking possession of settled property as equitable tenant for life and managing it for herself, In re Newen (8 R. July, 129).

Ponting v. Noakes, '94, 2 Q. B. 281, 10 R. July, 283, is one more in the series of cases which show that the rule in Fletcher v. Rylands, L. R. 3 H. L. 330, is too severe a rule to be extended beyond the terms in which it was laid down. A man is answerable for any noxious or dangerous thing which he may have on his land, to the extent of keeping it within his own bounds that it may not trespass,' as one old book says. He is not bound to keep it out of reach of his neighbour or his neighbour's beasts if

6

they come to it by their own trespass. In this case the noxious. thing was a yew-tree growing on the defendant's land near the plaintiff's field, but not encroaching on it. The plaintiff's horse put his head across the boundary, ate of the yew-leaves, and died. He could get at the poison only by trespass, though a small trespass. If the defendant had been bound by contract or special custom to fence against his neighbour's cattle, he would have been liable for the natural consequence of omitting the special duty. No such duty being imposed on him, he was under no duty at all in the matter.

A by-law of a borough imposes a penalty on any person making a noise in the streets to the 'annoyance of the inhabitants.' A newspaper boy shouts out the name of a newspaper incessantly for six minutes to the annoyance of 4. The magistrates hold that since only one inhabitant of the borough was annoyed, the boy could not be convicted of an offence against the by-law. The Queen's Bench Division has set them right and has laid down that if the act complained of is of such a character as to be likely to annoy the inhabitants generally, it is not the less an offence under the by-law because only one of the inhabitants is in fact annoyed. Innes v. Newman, '94, 2 Q. B. 292, 10 R. Sept. 269. This is good sense and good law, and most satisfactory to all who hold that the inhabitants of towns have a right to be protected from the nuisance of gratuitous noise.

The alleged alarming increase of lunacy seems reflected in the number of reported cases in which lunatics figure. In re Martha Baggs (63 L. J. Ch. 613) may be usefully contrasted with In re X. ('94, 2 Ch. (C. A.) 415) as to powers of sale by lunatic tenants for life under the Settled Land Act and otherwise; but the case which will appeal most to the imaginations of business men in general is that of a lunatic partner at large, signing cheques at random in the firm's name. If this were a wrong without a remedy it would be a grievance of the first magnitude, but Stirling J. found the principles of equity elastic enough to meet the case. It is rather beside the mark to say that an injunction ought not to be granted against a lunatic because he cannot be contumacious. What the Court is concerned with is his acts not his mind, and if his mind. runs away with him as the late Lord Stuart's legs did with him, the kindest thing is to protect him against himself. Lunacy,' as Lord Bramwell said, 'is not a privilege, but a misfortune.' In illustration of the last remark, In re Winkle (7 R. July, 91) may be

cited: the Court will not allow an execution creditor to strip a lunatic of all his property and turn him into a pauper lunatic asylum, but it will not go further and provide for the maintenance of the lunatic's wife as well as his own out of the lunatic's property at the expense of creditors.

In re Bird, Bird v. Cross (8 R. July, 150) it was a question of the effect of lunacy on a condition-a condition subsequent that the legatee should return to England within three years. Lunacy had at the date of the testator's death overtaken the legatee, and had it been lunacy pure and simple, the Court would have had no difficulty in treating the condition as one impossible of fulfilment by the act of God, but the lunatic complicated matters by having lucid intervals from time to time during which he might have performed the condition. But really lunacy is a state so disturbing to the ordinary tenour of existence, that a lucid interval or two is not enough to restore equanimity. In re Stratheden (8 R. July, 175) was a more unfortunate case of condition. It is satisfactory to know that our law takes the generous view that a bequest to a volunteer corps is a gift to a charity, but in the particular instance this generous appreciation of the volunteer movement reads rather too like one of Joseph Surface's 'Noble sentiments.' The appointment of another Lieutenant-Colonel-the condition in question-might, of course, never take place within the limits of time prescribed by the rules against perpetuities. As a matter of probability we may think it would, but the law cannot listen to probabilities.

A correspondent at New Westminster, British Columbia, writes as follows:-The report of the Highwayman's case (Everet v. Williams) in the issue of the LAW QUARTERLY REVIEW of July, 1893, was both interesting and amusing. It seemed almost beyond belief that such a case could ever have been instituted in an English Court of Justice. I was also surprised to find an almost parallel case brought in this age in the Courts of the State of Washington, our neighbour on the south. The enclosed clipping which speaks for itself, and may not be without interest to you, is taken from the Daily Post Intelligencer, a newspaper published in the City of Seattle, the largest city (population 60,000) in the State. The action was brought in the Superior Court, a Court of general jurisdiction and the highest Court in the State for the trial of actions, the Supreme Court being merely a Court of Appeal. I might also remark, though perhaps it is needless, that running a gambling house is a criminal offence under the laws of

the State.' The extract has the businesslike head-line, 'Partners in Gambling can swindle each other at will,' and the first paragraph opens as follows:-'Judge Humes yesterday ruled that courts were not intended to protect partners in gambling from cheating each other'-and the suit before him was therefore dismissed. The suit was in effect for an account of the profits of a gambling house, and the plaintiff alleged embezzlement. The body of the report is in a sporting Western dialect, and mixes up the internal and the external frauds of the game (the latter were of course irrelevant as between the partners). We think it would be obscure to the majority of British readers, and are unable in vacation time to find a qualified commentator.

The evidence taken by the Gresham University Commission was published soon after the issue of our last number. Many witnesses, not only teachers of law but judges and leaders of the profession, were examined on the relation of legal studies to university education. In the result there was practical unanimity of opinion that the Inns of Court and the Incorporated Law Society might and ought to be intimately associated with the Faculty of Law in the new teaching University of London, and that there would be no difficulty in providing for this without prejudice to the existing rights of controlling the admission of students as practising barristers and solicitors. Immediate action on the report can hardly be expected in the present state of public affairs, but it is only a question of time. Will the Benchers, or the Council of the Incorporated Law Society, be wise enough to come forward while they have time to do it with a good grace? Whichever body does so first will considerably improve its position before the public.

We owe Judge Dillon and his printers an apology. In our July number (p. 278) we treated base Judean,' as quoted from the last scene of Othello, as a misprint. We still believe that Indian is the true reading and that Judean was a misprint: but it is no new one, for it is the reading of the first folio and has been supported by a respectable minority of modern Shakespeare critics. The allusion is obscure in any case.

It seems convenient to repeat in a conspicuous place that it is not desirable to send MS. on approval without previous communication with the Editor except in very special circumstances; and that the Editor, except as aforesaid, cannot be in any way answerable for MSS. so sent.

THE

CHOSES IN ACTION.

HE question raised by Sir Howard Elphinstone in a recent number of this REVIEW 1, is not an easy one to answer, for the learning on the subject has grown up in the irregular way characteristic of English law, and until within the last few years it has been treated by our text-writers rather as an incident to some other branch of law than as a subject by itself.

If chose in action' properly means nothing more than money or property which a person is entitled to recover by bringing an action, the extension of the term to such kinds of property as shares, stocks, patents, copyrights, &c., and to debts payable in futuro, is undoubtedly inaccurate. A share in a company is an interest in a certain property or undertaking; it gives a right to participate in the management, profits, and assets of the company 2, but it need not, and in the majority of cases never does, give rise to any right of action against the company to recover what the share represents. If I hold a £100 share, fully paid up, in a company, I have, as a rule, no right to take proceedings against the company to recover the £100. The company may never declare a dividend 3, and although I may object to this course, I have no remedy by action. It is true that if the company does declare a dividend, I have a right of action to obtain payment of my proportion, but that is a separate chose in action, which may be converted into a chose in possession by payment of the money; my rights in respect of the share itself continue as before. Still less is stock in the public funds a chose in action in the narrow sense of the term: no action lies to recover the interest if default is made by the government, while the principal is a purely fictitious amount; it is merely a cipher by which the interest is computed 5. Again, a patent, copyright or trademark is a kind of property which, as Sir H. Elphinstone has pointed out, is essentially negative; it may never give rise to a right of action. As regards debts payable at a future time, although it has long been settled that a certain debt

What is a Chose in Action?' LAW QUARTERLY Review, vol. ix. p. 311.

2 See the argument in Tempest v. Kilner (1845), 2 C. B. at p. 307.

3 This was one of the reasons given by Shadwell V.-C. to account for the old rule that trustees were bound to convert Bank stock: Mills v. Mills (1835), 7 Sim. 501. Dalton v. Midland Counties Ry. (1853), 13 C. B. 474.

5 Stock in the public funds is not within a statute making persons having money out at interest' liable to be rated in respect of it for the relief of the poor: Rex v. St. John Maddermarket (1805), 6 East 182.