The Gazette 1961 - 64

assess the amount of remuneration and to decide whether the event had occurred on which remunera tion depended : it was for S. to assess honestly and on reasonable grounds the value of M.'s efforts. (The Times, October 12, 1961.) Criminal law—fresh evidence on appeal. In R. v. Parks (October 4, 1961) the Court of Criminal Appeal (Lord Parker C.J., Slade and Veale JJ.) held, allowing an appeal against conviction, that the principles upon which the Court of Criminal Appeal would act to allow fresh evidence, under s. 9 of the Criminal Appeal Act, 1907, were as follows : (i) the evidence which it was sought to have called must be evidence which was not available at the trial; (ii) it must be relevant to the issue; (iii) it must be credible evidence, in the sense of being well capable of belief; and (iv) the court would, after considering that evidence, go on to consider whether there might not have been a reasonable doubt raised by it in the minds of the jury. (W.I.R.—1961—I—1484.) Criminal law—murder—diminished responsibility. In R. v. Bailey (October 23, 1961) B. was charged with murder. The defence raised a plea of diminished responsibility, and called three doctors to sub stantiate that plea. No evidence was called by the Crown in rebuttal. The trial judge left the issue of diminished responsibility to the jury. The jury convicted of murder. The Court of Criminal Appeal (Lord Parker C.J., Ashworth and Veale JJ.) held, allowing an appeal against the conviction for murder, and substituting a verdict of manslaughter on the ground of diminished responsibility, that the verdict was unreasonable : a jury must act on the evidence before it; and if there was nothing to throw doubt on the evidence they must accept it. (The Times, October 24, 1961.) Vendor and purchaser—vendor's failure to answer requisitions on title—whether purchaser entitled to rescind the contract—form of action On May 5, 1961, the purchaser entered into a contract in writing to buy a 40 per cent, share in the vendor's freehold property and paid the stipulated deposit. The completion was to take place by August 6, 1961. The property was registered land and the land certificate showed an entry in the charges register relating to a covenant between W. and the vendor's predecessor in title restricting the user so long as W. was the owner of the adjoining land. In the requisitions on title the vendor's solicitors were asked about the current position of this entry to which their reply was : " We are inquiring as to this." In spite of reminders this was

not adverted to again until after the commencement of proceedings. On August u, 1961, the vendor gave notice to complete in the usual form requesting the purchaser to complete within 28 days. On September 4, 1961, the purchaser's solicitors, in answering the notice, referred to the restrictive covenant and stated : "... We, therefore, do not intend to comply with your notice to complete, and . . . rescind the contract. . . ." and requested the return of the deposit. On September 12, 1961, the vendor informed the purchaser that the deposit was forfeited. On November 15, 1961, the purchaser took out a summons seeking a declaration that the vendor had failed to discharge his obligations and claiming return of the deposit. On December 6, 1961, the vendor's solicitors, acknowledging the summons, wrote that the covenant between W. and the vendor's predecessor in title was no longer effective as W. had ceased to be the owner of the adjoining land some years previously; thus the purchaser had no right to rescind the contract. On the further contention that although failure to answer the requisition in question might have entitled the purchaser to repudiate, nevertheless the purchaser, by bringing these proceedings in this form, so far from repudiating the contract, had elected to treat it as on foot and had thereby affirmed it:— Held, (i) that by his notice to complete the vendor had made manifest his own refusal to answer the requisition in question, and that this amounted to a sufficient breach of his obligation to entitle the purchaser to rescind, who had done so in the clearest possible terms ; thereafter the parties could not revive the contract unless it was by something which amounted to a new agreement between them, because an effective rescission brought the contract to an end. (2) That the relief sought by the summons was not inconsistent with that position, since at all times the purchaser had regarded the contract as having been validly rescinded. Accordingly, the purchaser had effectively rescinded the contract and was entitled to the repayment of the deposit with interest at 4 per cent, from May 5, 1961, until repayment. (In re Stone and Saville's contract. I. Weekly Law Reports, 1962, page 460.) Trust and trustees—remuneration of trustees—professional charging clause—reasonable remuneration of professional trustees—beneficiaries right to have an account of the amount of the charges The trustees of a testator's will were his widow, an accountant and a solicitor and the will contained the usual professional charging clause. Costs amounting to £1,983 175. 3d. and £3,072 were paid 10