substantial distinction between a summons under an Act of Parliament originating procedure, and an Originating summons as constituted by the rules. The latter, he remembers, constitutes an 'action,' Re Fawsitt, 30 C. D. 231. The former is a summons 'in a matter not being an action.' The time for appealing from an order in the one case differs from that in the other. This distinction he now infers has now disappeared, and the word 'summons (O. 55, r. 13 A) and Originating summons' (R. S. C. Charitable Trusts Act, 1891) henceforth mean the same thing.

Whether our practitioner is correct in his inference is a question for the solution of which his client will probably have to pay.

Continuing his examination further he observes that both in No. 1 A and in No. 1 B the defendant in the one case and the ' respondent' in the other is told that he may' appear thereto, &c. Now he knows on the authority of Cotton L.J. and his grammar, that this word is potential, and that it can never mean 'must' or 'shall.' He turns to his rules, O. 54, r. 4 C, and reads, "The parties served, &c., "shall" enter an appearance.' Somewhat shaken he reads on. Appearances, say these forms, may be entered at the Central Office,' the situation of which is described with precision. Another glance at O. 54, r. 4 C and he sees that they must be entered at the Central Office, or in Admiralty matters at the Admiralty Registry, the situation of which is evidently known far better than that of the Central Office as no attempt is made to describe it.

The presumption of course is that the Rules and Forms are correctly and properly drawn, and that it is only the want of knowledge or of intelligence on the part of the practitioners that causes any difficulty. Any chief clerk would explain to our practitioner that a summons, not inter partes,' is a well-known term of art, and signifies a summons to which there is no record, not a summons to which no parties appear. It is true that to a comparatively few persons these words not inter partes' would convey this meaning. But the point is that to the great body of practitioners, to whom for the first time this procedure is extended, they will seem to mean what in fact they say, and will cause needless trouble. The distinction between Originating Summonses, which are the creatures of the R. S. C., and Summonses originating procedure, which are the creatures of various Acts of Parliament, has, in fact, become confused, although in many points it is of much practical importance (see for instance O. 58, r. 9 (n), 'Any other matter,' &c., A. P. 1894, p. 1028). But this matter cannot be dealt with in this article.

Leaving these little peculiarities, however, and looking at the new practice of originating summons broadly, it seems probable that one effect of O. 54 A will be that the equitable jurisdiction of con

struing wills, practically reserved to the Chancery Division by O. 55, r. 3 (g), is now extended, so that all Divisions of the High Court, including the Probate Division, will now become 'Courts of Construction.'

Possibly also questions of Construction arising between Vendors and Purchasers will now be determinable by all Divisions, and not by the Chancery Division alone. See Vendors and Purchasers Act, 1874, 8. 9. One other small question presents itself, does the direction given by the Judges of the Chancery Division as to lodging Certificate before sealing of an originating summons (see An. Pr. 1894, p. 978) fall to the ground with the repeal of O. 55, r. 21, or is it to be extended to all Divisions?

Pending business.-By the J. A. 1873, ss. 22 & 42, provision was made as to the application of the Rules in the Schedule to 'pending business.' In like manner the headnote to the R. S. C., 1883, provides that the Rules shall apply, unless otherwise provided to all proceedings taken on or after the day upon which the Rules came into operation. Do these Rules of 1893 apply to such business; are they to have a retrospective operation? The better opinion seems to be that they do so apply. These Rules form part of the new Code of 1883, and may be cited with reference to them (R. 32), and the general principle is that all alterations in procedure are retrospective, see Maxwell on the Interpretation of Statutes, 2nd ed. pp. 271, 273.

Arrangement. Having regard to the statement in the memorandum issued by the Lord Chancellor, that he has directed a draft consolidation of all the Rules to be made complete as soon as these amending Rules have been settled, this is not a matter of great importance, but a few remarks upon the subject may not be out of place. As the Rules are at present drawn there are certain wellknown orders which deal with such subjects as Appearance (O. 12), Default of Appearance (O. 13), Amendment (O. 28), &c. A practitioner in search of information on any of these subjects with reference to any particular process, naturally, as the matter stands at present, turns to these particular orders. If, for instance, he wishes to ascertain the procedure in default of appearance to an originating summons he would naturally turn to the Order on Default of Appearance (O. 13). And he would not be disappointed, for under O. 13, r. 15 he would find what he wanted. But if, acting on the

same principle, he were to turn to O. 12 (Appearance) to find out how he should enter an appearance to such a summons, he would find nothing on the subject; that matter being dealt with under O. 54, r. 4 C. So, again, the amendment of an indorsement of a writ, special or otherwise, is dealt with under O. 28, rr. 1 and 2. But

the new rule as to amending a writ specially indorsed is dealt with under O. 14, r. 1 (b). And, it is submitted, that O. 18 A would be more appropriately placed under one of the subdivisions of O. 36.

Other matters. Other points of practice affected by the new Rules such as the extension of O. 11 (Service out of the Jurisdiction) to other process than writs of summons or notice of writs of summons (O. 11); the shortening of the time for final appeals, O. 58, r. 15; the costs of unsuccessful claims and of inquiries as to legacies, &c. (Res. 75, 77, O. 65, rr. 14 A-14 C), do not call for special notice as they are matters upon which everyone was agreed and are likely to be absolutely beneficial.

The Authorities and Books of Practice.-Books of Practice are the principal channels by which information as to the practice and procedure of the Supreme Court reaches the great body of practitioners. It is very essential for their use and convenience that such books should contain the latest information in the most convenient form.

The authorities, it may be taken for granted, would, in the interests of the profession and of the public, desire that all changes in procedure should be brought to the knowledge of practitioners as quickly and as conveniently as possible. It is therefore respectfully submitted to them, that it would be very beneficial to all concerned if they would cause a notice of their intention to issue new Rules to be sent to the legal journals some two months or so before such intention is to be carried into effect, so that the publication of such books might, in the interests of perfection, be temporarily postponed.

THOMAS SNOW.

REVIEWS AND NOTICES.

[Short notices do not necessarily exclude fuller review hereafter.]

A Treatise on the Law of Quasi-Contracts. By WILLIAM A. KEENER. New York: Baker, Voorhis & Co. 1893. 8vo. xxxii and 470 pp. MR. KEENER has done a useful work in putting together the rules which govern the sort of obligation called Quasi-Contract. The name itself has a makeshift air, and is on the face of it a confession of juristic failure. It is hard to find any common ground or character for obligations so miscellaneous as those which are included under this one name. They were strung together by the pleader's art, and by a general application to them of the common counts, which conferred on them an outward and artificial semblance of contract. Thus they escaped a separate analysis and classification; and thus they figured for a while in books on contract as the 'contract implied in law,' and more recently have been ejected from the region of contract into a sort of limbo of obligations which spring neither from agreement nor from wrong.

If Mr. Keener had done no more than set out the incongruous group of liabilities which are held together by a common name he would have done good service to the student. But he has done a good deal more than this. He has established very clearly the distinction between the contract inferred from words or conduct, and the so-called contract implied in law, and he has given us a full and interesting account of the various obligations with which he has to deal. Starting with the principle that, apart from obligations arising by way of record or from the imposition of a statutory duty, quasi-contract rests on the doctrine 'that no man shall be allowed to enrich himself unjustly at the expense of another,' he works out the liabilities which the Courts have created in trying to give effect to this doctrine.

It may be owing to the very elastic nature of the doctrine which Mr. Keener takes as his starting-point that he is led to extend his topic so as in places to encroach on the domain of contract. Thus he places under the head of quasi-contract the liability of an infant for necessaries (p. 21); the liability to pay a quantum meruit where something has been done under a contract which is afterwards broken and discharged by the fault of the defendant (p. 309); the liability to indemnify an agent against charges not specified but contemplated in the contract of employment (p. 398). All these spring from agreement, and their introduction into the law of quasicontract revives to some extent the confusion from which we are only just emerging.

Nor is the terminology always unexceptionable. The words Waiver of Tort' are not a satisfactory description of the subject which the chapter

thus headed contains. The remedy in assumpsit, as an alternative to the remedy in tort, which was open to the plaintiff whose property had been wrongfully used or taken, did no doubt create a quasi-contractual liability: and if the plaintiff chose to sue on a fictitious undertaking to give back the value of the property so dealt with, he could not also sue the wrongdoer in tort. But the waiver of the tort did not create the liability in assumpsit, and it is not a good way of describing a right to call attention to the remedy which you do not adopt.

The difficulty of accepting so dangerously vague a principle as that on which our author would base the liability in quasi-contract is well shown by some remarkable decisions of American Courts, which he condemns with no more severity than they deserve. Thus in King v. Welcome, 5 Gray 41 (p. 234), a contract to serve for a year from a future date was made orally. The plaintiff broke his contract within the year, and sued upon a quantum meruit for such services as he had rendered. He was allowed to recover, and the defendant was not allowed to prove that the contract was for a year's service lest he should thereby charge the plaintiff' with a contract which did not comply with the Statute of Frauds. It would seem that the Court overrode the expressed intentions of the parties and misinterpreted the Statute of Frauds in order to carry into effect some equitable notions of its own. Again, in The Manhattan Life Ins. Co. v. Buck, 93 U. S. 24 (p. 346), the parties agreed that on non-payment of a premium a policy of life insurance should be void, and that all previous payments should be forfeited. Yet upon default in payment of a premium it was held unjust and inequitable' that payments already made should be forfeited, and they were recovered. After this one cannot be surprised to find (pp. 254-257) that where work is agreed to be done upon a building which is destroyed by fire when the work is only commenced, the contractor is allowed to recover damages from his employer on the ground that the latter was bound to keep on hand and in readiness the building in which the work was to be done.' If Courts of law are thus apt to disregard the plain meaning of parties to contracts, and to award sums of money in accordance with their own crude or fantastic notions of what is equitable, Mr. Keener will have done practical service to the litigant in his endeavour to define an obligation so liable to indefinite extension. In any case he has earned the thanks of the student for his effort to collect and arrange the rules which govern a difficult and somewhat neglected branch of our law. W. R. A.

Tagore Law Lectures, 1893. The Law of Estoppel in British India. In Two Parts. I. Modern or Equitable Estoppel. II. Estoppel by Judgment. BY ARTHUR CASPERSZ. Calcutta: Thacker, Spink & Co. London: W. Thacker & Co. 1893. La. 8vo. xxxix and 511 pp.

THE learned author mentions in his preface that his work contains the substance of sixteen Tagore lectures. He has devoted the first part of his work to modern or equitable Estoppel, that branch of the subject which at the present day is of the greater practical importance, and relegated the subject of res judicata to the second part. The law of Estoppel in India, as he points out, has in several particulars been laid down in general terms in chapters of the Indian Codified Law; Res judicata in the Civil Procedure Code, and Estoppel arising from representation, from tenancy, from acceptance of a bill of exchange, and from the position of a bailee or licensee, in