her will, made the day before her death, bequeathed one fourth of the residue of her personal estate to two of her sons in trust for her daughter A., then the wife of T., for her life for her separate use without power of anticipation, and on her death for her children. The testatrix left four children. In 1850 a family arrangement was entered into under which the property was divided into fourths. Her fourth was calculated on the footing of her having received £400 from the testatrix in her lifetime, which sum was accordingly deducted from her share. In 1850 A. executed a release containing a recital that the £400 had been advanced by the testatrix in her lifetime with her husband's consent “in part of and to be deducted out of any legacy or sum of money which the testatrix might leave by will to A. or her issue." A. died in 1870, and thereupon her children filed a bill against the personal representatives of the trustees of the will to make good the £400, and it was held that the plaintiffs were entitled to a decree. Vice-Chancellor Wickens in the course of his judgment said: "There is no presumption of law that the payment of a sum of money to a child, even by a father, before the date of the will is to go against a legacy to that child. If there be a contract by the child that it shall do so, as in Upton v. Prince, that contract may be perfectly valid;" and see Re Peacock's Estate (L. Rep. 14 Eq. 236). In this connection the recent decision of Mr. Justice Warrington in Re Shields; Corbould-Ellis v. Dales (106 L. T. Rep. 748; (1912), 1 Ch. 591) may be shortly referred to. There a testator by his will, dated in 1908, gave a legacy of £300 to his housekeeper, nurse, and faithful servant X. In 1909 he wrote a letter to her, enclosing a cheque for £300, and stating that this sum was to be instead of the £300 left to her in his will. In 1910 the testator took the cheque out of the letter in the presence of the legatee and resealed the letter, the contents of which were not known to her until after the death of the testator. Later in the same year the testator placed a sum of £300 in the bank in the joint names of himself and the legatee with power for either of them to draw upon it. The testator died in 1911 without having altered or revoked his will. Held, that the legacy of £300 had not been adeemed by the gift of £300, which was a clear gift unaccompanied by conditions, and that the letter could not be admitted as evidence to prove that the testator intended that the gift should be in substitution for the legacy.

CROSS-EXAMINATION OF HOSTILE WITNESSES.-An interesting point was raised, though not decided, by the Court of Criminal Appeal this week. A witness called for the Crown, in a trial for murder, when giving evidence at the assizes, gave evidence directly opposed to her statements made before the Justices, and was then, by permission of the presiding Judge, cross-examined by counsel for the Crown, on the ground that she was a hostile witness. On appeal, the question was raised whether the decision of the learned Judge in allowing this course to be taken could be the subject of an appeal under the Criminal Appeal Act 1907. By sec. 3 of 28 & 29 Vict. ch. 18, popularly known as Denman's Act, "A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the Judge, prove adverse, contradict him by other evidence, or, by leave of the Judge, prove that he has at other times made a statement inconsistent with his present testimony. ." The word "adverse" has been construed to mean hostile," and not merely unfavourable: (Greenhough v. Ecales, 5 C. B. N. S. 786). The discretion of the Judge to give or refuse leave to a party to cross-examine his own witnesses is absolute, and is not appealable, nor the subject of a ground for a new trial. This was decided in Rice v. Howard (16 Q. B. Div. 681), a case decided on a section of the Common Law Procedure Act 1834, exactly similar in terms to that quoted above. Denman's Act first applied the same principle to criminal cases, both Acts introducing an innovation into the former practice, for, formerly, a person calling a witness was bound by the evidence he gave, and could not shew that any other time he had given a different account of the same transaction: (Ewer v. Ambrose, 3 B. & C. 746). Now, of course, if a witness appears evidently hostile to the party calling him, leading questions may be put to him with the permission of the Court: (Price v. Manning, 61 L. T. Rep. 537). It was pointed out very recently in the case of Er parte Bottomley and others (100 L. T. Rep. 782) that the Court has a complete discretion as to the allowance or disallowance of leading questions in examination in chief, not controllable by any Court of Appeal. This power or discretion seems to belong to the Court independently of any statutory enactment. With regard to appeals in criminal cases, it would appear, however, that the Judge's ruling in a ques

tion of this kind might be the possible subject of appeal. Thus, sec. 3 of the Criminal Appeal Act, 1907, gives, inter alia, a right of appeal on "any other ground which appears to the Court to be a sufficient ground of appeal;" whilst by sec. 4 the Court has power to allow the appeal in certain cases, or if they think that " on any ground there was a miscarriage of justice." The question whether the Court will entertain an appeal from the discretion exercised by the presiding Judge at a criminal trial, as to treating a party's witness as hostile, or allowing the provisions of Denman's Act to be enforced, was, however, expressly left open by the judgment of the Court of Criminal Appeal.

CONSTRUCTIVE MURDER.-A recent ruling of Mr. Justice Darling at the Central Criminal Court as to the distinction between murder and manslaughter has raised some comment in the Profession. A woman charged with the wilful murder of another worman, by shooting her, raised the defence that, having received great provocation from her husband and the woman, she intended to shoot him and herself, but by mistake shot the other woman. It was contended on her behalf, and the learned Judge charged the jury to the same effect, that such facts, if proved, might amount only to manslaughter if the husband were killed, and might justify a verdict of manslaughter in the case in question. The tendency of the Courts to narrow, rather than to enlarge, the cases which come within the category of "constructive" murder is well known, but the old rule still obtains that if a person, whilst doing or attempting to do another act, undesignedly kills. another person, if the act amounted to felony, the killing is murder; if merely unlawful, manslaughter. Manslaughter is a felony, and it seems somewhat difficult to reconcile the above ruling with the old-established rule of law.

APPAREL LOST AT RESTAURANTS OR ENTERTAINMENTS. -When seeking to ascertain the incidence of the damage to, or loss of, any apparel at a restaurant or other place of entertainment, it is very interesting, and quite as important, to note incidents which a layman may consider quite immaterial; in other words, to discover whether the customary liability of an innkeeper for the safe custody of a guest's

goods, or a contract of bailment (gratuitous or for reward), or any other contract inte vivos is, in truth, at issue. It is scarcely necessary to remind the reader that one of the few positive duties known to English law is that, arising by the custom of the realm quite independently of any contract between the parties whereby an inkeeper insures the safety of his guest's chattels left within his inn (even against injury of theft by a burglar, by his servant, or by another guest), in the absence of any act of God or of the King's enemies, or of any negligence of the owner: (Robbins v. Gray, 73 L. T. Rep. 252; (1895), 2 Q. B. 501). And for our present purpose it is material to remember that this duty, onerous and extraordinary as it is, attaches notwithstanding there has been no delivery of the chattels to the innkeeper or his servants, and no food or lodging having been supplied or found at the time of the loss (Wright v. Anderton, 100 L. T. Rep. 123; (1909), 1 K. B. 209), and notwithstanding the true owner of the chattels does not pay for the food or lodging supplied: (Gordon v. Silber, 63 L. T. Rep. 283; 25 Q. B. Div. 491; Wright v. Anderson, ubi sup.). And the innkeeper's pecuniary liability is only limited by the Innkeepers' Liability Act, 1863 (26 & 27 Vict. ch. 41), which legislation, as it affects the present inquiry, amounts to this, that where the innkeeper can prove that a complete (Spice v. Bacon, 36 L. T. Rep. 896; 2 Ex. Div. 463) print in plain type of the exempting section of the Act was exhibited "in a conspicuous part of the hall or entrance of the inn," and neither the innkeeper nor the guest proves that the injury or loss was due to negligence for which the other is responsible, then, although the value of the article or articles of apparel lost be more than £30, the guest can recover no more than that sum: (Medawar v. Grand Hotel Company, 64 L. T. Rep. 811; (1891), 2 Q. B. 11).

It is, we think, so extremely important in the case of a damage or loss to discern, in the very first place, whether the remedy arises from the owner being a guest at an inn, or from a liability as bailee either gratuitous or for reward, or for some other relationship existing between the owner and another person, and then, having done so, to keep the fact ever in mind, that we will select four suggestive and typical illustrations which may further elucidate the problem, and exhibit its many undecided difficulties.

1. Suppose that a wayfarer or traveller goes to an hotel to get a meal, and on entering the dining room hangs an overroat on a peg; and that when he finished his repast, the coat is missing. Here there is sufficient evidence to establish the relation of innkeeper and guest, so as to make the hotel proprietor liable for the loss-subject, of course, to the limitation imposed by the Innkeepers' Liability Act-without proof of negligence on his or his servant's part, unless he can prove the loss arose from the negligence of the guest: (Orchard v. Bush and Co,, 78 L. T. Rep. 557; (1898), 2 Q. B. 285). And if, instead of being missing, the coat were found to be injured, the innkeeper would be liable for the injury, subject to the like limitation, as it seems clear that no just distinction as regards responsibility can be established between injury and loss: (Day v. Bather, 2 H. & N. 14).

2. Again, take the case of a man, whether a traveller or not, entering a restaurant, not attached to or part of an hotel, who finds a waiter in the vestibule or at the door of the dining room taking the customers' coats, sticks, &c. The mere fact that this waiter took the man's chattels, and disposed of them where he (the waiter) chose, would be evidence upon which a jury might properly find that the restaurantkeeper was a bailee of the chattels, and, accordingly, liable as a bailee should injury or loss occur; and this because such a practice does, or even might, add to the popularity and distinction of the establishment, and was probably adopted by the proprietor or manager with that very object in view: (per Mr. Justice Charles in Ultzen v. Nicols, 70 L. T. Rep. 140; (1894), 1 Q. B. 92).

3. Thirdly, suppose that a man (traveller or not) enter a restaurant, or a "tea shop," and a waiter, without being asked, takes his hat and hangs it upon a hook behind him, and suppose that, while he is enjoying his meal, the hat disappears. Now, a person cannot be made liable as a bailee without his consent; and it has to be confessed that these assumptions present a vexatious and troublesome question whether they shew a bailment of the hat, or merely a taking of the hat as an act of good nature, or an act of service, and without any intention of taking charge of it. Still, on the whole, they present evidence upon which a jury might find a bailment, and, if so, more assuredly, that the restaurantkeeper was guilty of negligence while the hat was in his custody, owing to want of reasonable care on his part: