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to take account of the competition of mutual insurance. But if, as he says, the leading accident societies are prepared to take up the matter in a liberal spirit towards the colliery interests they will be pretty sure to get the greater share of the new business.

wife's right of indemnity does not arise. In the latter case insurance the societies, as Mr. PENNINGTON foresees, will have the wife was entitled under the will of her grandfather to a life interest in considerable property for her separate use without power of anticipation. Under a settlement made on the marriage, the husband was entitled to an annual income of £2,000, subject to its passing to the wife on his bankruptcy or attempt at alienation. In 1882 an order was made under section 39 of the Conveyancing Act, 1881, whereby the wife's life interest was mortgaged to secure the sum of £23,000, and in 1887 a similar order was made for the purpose of raising a further sum of £22,000. The money was required to enable the husband to pay debts for which he was personally liable, but which were contracted, as the Court of Appeal held, for the joint purposes of the husband and wife in order to enable them to indulge in an expensive mode of living. The orders of 1882 and 1887 were made by CHITTY, J., and they did not express that the husband was to be subject to liability to indemnify the wife, an omission which KEKEWICH, J., held to be equivalent to an exclusion of such liability. But, as we pointed out at the time (ante, p. 92), the omission of an express indemnity is not inconsistent with the preservation of an implied indemnity, and the Court of Appeal have held that the silence of the order of the court as to the liability of the husband does not necessarily exclude the ordinary rule. "We are not prepared," said LINDLEY, M.R., "to say, as a matter of law, that an order silent as to the wife's rights against her husband is fatal to the existence of such rights." Apart, however, from this consideration, there was sufficient in the circumstances of the case to prevent the inference that it was the intention of the parties to give the wife a right of indemnity against her husband, and on this ground the decision of KEKEWICH, J., was affirmed. One matter which influenced the Court of Appeal in arriving at this result was that, since the right of indemnity was assignable, it might in the hands of an assignee have been used against the husband and so have produced the bankruptcy which it was the object of the applications under the Conveyancing Act to avoid. But it seems to have been sufficient for the decision that the debts were substantially the joint debts of husband and wife.

AT THE annual meeting of the Law Accident Insurance Society on Wednesday, a very interesting statement was made by the chairman, Mr. RICHARD PENNINGTON, as to the prospects of insurance business under the Employers' Liability Act, 1897. It appears that according to the returns of the German state insurance system for last year, nearly 18,000,000 workpeople were interested, and 500,000 were actually benefited, the compensation paid amounting to over £3,000,000. The figures anticipated for this country are not so large, but they are large enough to shew that the Act will impose on employers a burden which it will be very dangerous for them to accept without the help of insurance. Mr. PENNINGTON adopts the statement that something like 6,000,000 of work people will be affected by the Act, and that since the benefits provided under the English system are considerably in excess of those provided under the German system, the sum that will be paid annually as compensation is not likely to fall far short of £1,000,000. Until the nature of the risk is better understood the terms on which it can be covered by insurance will be necessarily experimental, but the Law Accident Society has, it seems, not been slow to make preparations for the access of business which is to be expected under this head. A considerable part of Mr. PENNINGTON's speech was devoted to the comparative advantages of mutual insurance and insurance in the regular societies, and he naturally argues in favour of the latter form of insurance. This is a matter which the employers will have to settle for themselves. The regular societies are more convenient to do business with, and their employment is purely a question of probable expense. Mutual insurance clubs involve an element of risk which the employers will or will not undertake, according as they think the rates of premium charged by the insurance societies reasonable or no. In the club the members between them have to provide for any losses which may fall upon any of them, while in ordinary insurance the loss is limited to the amount of the premiums. In marine insurance the two systems flourish side by side, and in employers' liability

THE CASE of Brownscombe v. Johnson, in which the Lord Chief Justice and MATHEW, J,, gave judgment on Tuesday last, adds another to the already long list of cases in which the validity of a bye-law made under section 23 of the Municipal Corporations Act, 1882, has been called in question. The bye-law in question was made by the Kent County Council, and provided that "no person shall sound or play on any musical or noisy instrument or sing in any public place or highway within fifty yards of any dwelling-house after being required by any constable or by an inmate of such house or his or her servant to desist." The main objections taken to the bye-law were, first, that it was not made an ingredient of the offence thereby created that the act should be done" to the annoyance" of some person; and secondly, that it gave a very arbitrary power to a single constable. The decisions on local bye-laws have been so diversified that it is not surprising that the learned judges differed in opinion, Lord RUSSELL C.J., upholding the bye-law, while MATHEW, J., held it to be unreasonable and bad. The validity of bye-laws as to unseemly noise has been discussed in several cases, thanks mainly to the activity of the Salvation Army, and on comparing the cases it will be found that the bye-laws on this subject which have been upheld have been of a more restricted character than that in Brownscambe v. Johnson, while those which have been condemned have been of a wider scope: the precise words here adopted by the Kent County Council seem to lie in medio. Thus in Reg. v. Powell (51 L. T. 92) a bye-law was upheld which forbade playing or singing in a street after being required to desist by a resident or by a constable on account of the illness of an inmate of a house, or for any reasonable cause. Here the objectionable power given to any constable was present, but his action was restricted to cases where there was reasonable cause for interference: the justices, it was held, were to decide whether there actually was reasonable cause. In Booth v. Howell (53 J. P. 678) a bye-law prohibiting the use of a noisy instrument in the street to the annoyance of any of the inhabitants was held reasonable; and Innes v. Newman (42 W. R. On the other hand, where a 573) is a very similar decision. bye-law absolutely forbade anyone (except certain military persons) to play on any musical instrument in a street on Sunday, it was held to be bad: Johnson v. Mayor of Croydon (16 Q. B. D. 708).

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THE NECESSITY for words importing that the act must be done so as to cause annoyance is brought out by the two cases of Strickland v. Hayes (44 W. R. 398) and Mantle v. Jordan (1897, 1 Q. B. 248). In the former a bye-law directed against the use of obscene language and the singing of obscene songs in any street or public place or on land adjacent thereto was held bad for the want of words of such import as well as for other reasons; in the latter a bye-law directed to the same end but containing the words "to the annoyance of persons in the street was held to be good. As to the power given to a single policeman, this was not held to invalidate the bye-law in Reg. v. Powell (supra), but as already observed, his power was there restricted within reasonable limits; and in Alty v. Farrell (1896, 1 Q. B. 636) (a case relating to a bye-law under a very special power in the Weights and Measures Act, 1889, and not made " for good rule and government " under the wide terms of the Municipal Corporations Act) an objection was successfully founded (amongst other grounds) on the power given to a constable to insist arbitrarily on the weighing of coal in course of delivery to a purchaser. The tendency of the courts at the present day is to uphold bye-laws made by a representative body for the government of their area of jurisdiction, and authority is on the whole in favour of the bye-law in question in Brownscombe v. Johnson. But the whole question of the limits to be imposed on this local legislation needs discussion, and it is satisfactory that an opportunity is to be given for an authoritative pronouncement on this subject by the consideration of Kruse v. Johnson (a case arising under the same Kentish bye-law

as that in Brownscombe's case) by a full court of the Queen's Bench Division. Apart from the questions to which we have alluded, the makers of bye-laws would be glad to hear the correct solution of the following dilemma-a bye-law must not be contrary to the ordinary law of the land; if it deals with what is already an offence by the ordinary law it will be either superfluous or ultra vires; if it creates a new offence it is in great danger of being held to be bad for variance with the law.

even where these results have been avoided by the courts-as in the recent cases of Monnier (Veuve) et ses Fils (45 W. R. 449) and Ibbotson v. Ibbotson Bros. & Co. (Limited) (ante, p. 340), shareholders who have acted bonâ fide have been placed in a position of extreme peril.

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But, apart from cases where the omission to comply with the requirements of the section has arisen from oversight, there is the still more important class where the vagueness of the section has proved a trap to persons who had every desire and intention to comply with it. The section calls for the filing of " a contract THOUGH SECTION 4 of the Statute of Frauds requires a duly made in writing.' To secure perfect safety it was wise to guarantee to be in writing, and no action is therefore main- assume that this referred to the original contract providing for tainable on a verbal guarantee, nevertheless parol evidence is the issue of the shares; but such contracts are often lengthy, admissible to prove that a guarantee in writing was in fact and contain matter which there is no occasion to make public, given, where the document itself is missing and cannot therefore and the practice soon became prevalent of supplementing it by be produced. Obviously, however, there is great risk in ad- a subsidiary contract providing specifically for the issue of the mitting such evidence, and, save under very exceptional circum-shares, and then filing the subsidiary contract. The technical corstances, it ought not, we submit, to prevail. That such circum-rectness of this expedient was, however, doubtful. Assuming the stances, however, existed in the very recent case of Barrass v. second agreement to be a contract at all, it was made upon no Read is indisputable. There the missing guarantee sued upon new consideration, and the want of actual consideration was not was given to secure payment of £100 damages and costs very satisfactorily met by affixing to the agreement the seal of by the defendant in a libel action which, at the trial, the company. was settled on the terms (amongst others) that such a The question of the validity of this procedure was raised in guarantee should be given. That a guarantee of some sort the recent case of Re Kharaskhoma Syndicate (Limited) (supra), had been given was admitted, but its precise terms were in con- and its discussion resulted in a difference of opinion between troversy, and the surety moreover alleged that she had signed Lord Justice (then Mr. Justice) VAUGHAN WILLIAMS and the it in ignorance of what she was doing and of the liability thereby Court of Appeal. The syndicate had entered into an arrangeundertaken. On behalf of the plaintiff in the action on the guar- ment with the Concessions Development Co., under which the antee, evidence was given by the defendant's counsel in the libel company was to give the syndicate financial assistance and take action, and also by the plaintiff's solicitor, whose respective part in its management. As remuneration for these services statements as to the contents of the guarantee and also as to the certain preference shares in the syndicate were to be allotted to circumstances under which it was given, substantially agreed. the company, and an agreement of the 17th of August, 1892, in It was accordingly held, upon this evidence, that there must be which the terms of the arrangement were embodied, provided judgment for the plaintiff on the guarantee. that the "allotment was to be protected by a duly-registered agreement under the 25th section of the Companies Act, 1867." The contract actually filed was dated the 31st of August, 1892, and recited that by the former agreement the syndicate had "for the considerations therein mentioned" agreed to allot the shares. VAUGHAN WILLIAMS, J., held that since the company were, under the terms of the first contract, not bound to accept the shares until a further contract had been made, the second contract was good as a contract—that is, it was an independent contract, and he considered that the consideration was sufficiently identified by reference to the first contract, especially since the entering into the first contract was in itself a consideration for the second.

SECTION 25 OF THE COMPANIES ACT, 1867. WE are glad to see that an attempt is being made to procure without further delay the repeal of section 25 of the Companies Act, 1867. Such repeal is one of the proposals of the Companies Bill introduced by the Government, but the protracted proceedings before the House of Lords Committee make it unlikely that any speedy legislation will result. The Council of the Incorporated Law Society have issued a report on the operation of the section as affected by the decision of the Court of Appeal in Re Kharaskhoma Syndicate (46 W. R. 37; 1897, 2 Ch. 451), and it is at their instance that the Companies Act (1867) Amendment Bill, which has for its object the repeal of the section, has just been introduced in the House of Commons by Sir JOHN LUBBOCK. Within the last few days the Council have issued also a further report calling attention to the latest decisions on the section.

By the section it is enacted that "every share in any company shall be deemed and taken to have been issued and to be held subject to the payment of the whole amount thereof in cash, unless the same shall have been otherwise determined by a contract duly made in writing, and filed with the Registrar of JointStock Companies at or before the issue of such shares." The wording of this provision has often been criticized, and in particular the use of the expression "the same" is a striking instance of loose drafting; but the idea which the draftsman had in view is sufficiently clear, and, had it been properly carried out, there would have been no reason to quarrel with the section. It was intended to provide a safeguard against the issue of a company's capital in the form of paid-up shares without giving the public an opportunity of discovering that the capital or some part of it was not represented by cash payments. But the proper way of doing this would have been to require that returns of shares issued as fully or partly paid should be made to the registrar, and in_default to inflict a penalty upon the officers of the company. Instead, the Legislature called for the filing of a contract, which was quite unnecessary, and in case of default visited the shareholder with a penalty measured by the full nominal value of the shares. It was a clumsy piece of legislation which has led to results of extreme injustice, and

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But the Court of Appeal took a stricter view of the requirements of the section. Possibly the second contract would have been enough had it stated specifically the consideration for the issue of the shares, though there would still have been the objection that it was simply a repetition of the first contract, and the safe course would have been to register the two contracts together. It was held, however, that the disclosure of the real consideration was essential in order to make such a document as would satisfy the section. "The registered document," said LINDLEY, L.J., "must be a contract in writing, and the thing registered must disclose the consideration, whether it is a deed or a simple contract." The court carefully abstained from saying with what particularity the consideration must be stated, but it follows from the decision that sufficient must be said to show, without reference to any unfiled document, what the consideration really is, and this effect was given to it by KEKEWICH, J., in Re Maynards (Limited) (ante, p. 308). There the filed agreement recited in full the price to be paid and the manner of payment, but it described the property sold as "the businesses and property" mentioned in the first part of the schedule to the principal contract, and "the leasehold hereditaments, short particulars of which second part of the schedule. KEKEWICH, J., held that this gave no real information as to the subject-matter of the purchase, and that the filed contract was insufficient.

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The above decisions have naturally created a feeling of great insecurity with regard to the numerous issues of paid-up shares which have been made of recent years in reliance upon filing of supplemental contracts, and legislation is urgently required both to remove doubts as to past transactions and to

place the matter upon a more satisfactory footing for the future. The Incorporated Law Society's Bill deals with both these points. The second clause provides that whenever any contract or other document relating to the issue of paid-up or partly paid-up shares has already been filed with the registrar with a view to complying with the requirements of section 25, "it shall be no objection to such contract or other document, so far as regards the said section, that it does not disclose or sufficiently disclose the consideration for the issue of such shares, or that it only contains a part of the contract relating to the issue of such shares, or that it does not in law constitute such a contract in writing as the said section requires."

This clause will provide against any further decisions such as those in Re Kharaskhoma Syndicate and Re Maynards, but for the future it is necessary to get rid altogether of the necessity for filing a contract, and to provide simply for a return to the registrar of such information as is really required. This the Bill does by clause 3, which is in the following terms:

"(1) Whenever, after the commencement of this Act, a company limited by shares makes an issue of shares in its capital, such company shall, within one month thereafter, send to the Registrar of Joint-Stock Companies a notice in writing, stating

"(a) The number, class, and nominal amount of the shares comprised in such issue; and

"(b) How many of the said shares were issued on the footing that they were to be paid up in cash; and "(c) How of the said shares were issued on the footing many that they were to be credited as paid up, or partly paid up, for

some consideration other than cash.

"(2) If default is made in complying with the requirements of this section, every director, manager, or other officer of the company who knowingly and wilfully authorizes or permits such default, shall be liable to a penalty not exceeding five pounds for every day during which such default continues."

pages to 655 without having impaired its value or sacrificed anything
of real importance. On the contrary, he has been able to strengthen
the portion of the work relating to criminal procedure and to include
whether of law or of practice, with which persons frequenting
other information of a practical character concerning those questions,
quarter sessions should make themselves acquainted. In its main
features the old arrangement has been preserved. We notice, how-
ever, that what were formerly Chapters 1 and 2 have now been com-
bined, so as to form together Chapter 1 of the new edition, and bearing
the title "Of Sessions and the Commission of the Peace"; while the
chapter on "The Criminal Jurisdiction of the Quarter Sessions"
(Chapter 9), instead of being the last chapter of the work, as hereto-
fore, has, very properly, been given precedence over those chapters
which deal with the " Appellate Jurisdiction of Quarter Sessions."
generally) forming Chapter 6 of the present edition, has been con-
The scope of Chapter 7 (Proceedings of the Court of Quarter Sessions
siderably enlarged, and now covers twenty-six pages instead of two.
On the other hand, the chapter on "Civil and Administrative Juris-
diction of Quarter Sessions (Chapter 8 of the new edition) has
been reduced from 377 to 69 pages, by judicious pruning. The new
edition is well up to date, both as regards the citation of statutes
and cases.
Amongst the former, such recent statutes as the Oaths

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Act, 1888, the Lunacy Act, 1890, the Summary Jurisdiction (Married Women) Act, 1895, the Larceny Act, 1896, the Quarter Sessions (London) Act, 1896, the Burglary Act, 1896, the Juries Detention Act, 1897, and the Infant Life Protection Act, 1897, are now duly noticed; while, amongst the latter, the very recent case of Boulter v. Kent Justices (46 W. R. 114; 1897, A. C. 556), overruling Reg. v. Glamorganshire Justices (1892, 1 Q. B. 621), is cited in its proper place. The following cases, however, seem to have escaped the W. R. 127; 1897, 2 Q. B. 468), King v. Reg. (61 J. P. 663), and editor's vigilance-namely, Reg. v. Burton, Ex parte Young (46 Suffolk County Lunatic Asylum v. Stow Union (45 W. R. 620). The appendices (three in number) comprise certain matters of practical importance, such as tables of allowances to witnesses and of the principal indictable offences triable at quarter sessions, together with skeleton bills of cost on appeal and some forms of indictment. An index of forty-eight pages, containing a variety of suggestive titles, concludes the work.

COMMON LAW.

COMPRISING THE FUNDAMENTAL PRINCIPLES, WITH USEFUL
PRACTICAL RULES AND DECISIONS. By JOSIAH W. SMITH, B.C.L.,
Q.C. ELEVENTH EDITION. BY CUTHBERT SPURLING, Barrister-
at-Law. Stevens & Sons (Limited).

It is to be noticed that the above clause differs in an important point from the proposal contained in the Government Bill. Under clause 7 of that Bill the company will be bound A MANUAL OF COMMON LAW FOR PRACTITIONERS AND STUDENTS, within seven days after any allotment to make a return to the registrar stating (inter alia) "the number and amount of shares allotted as fully or partly paid up otherwise than in cash, and in the latter case the extent to which they are so paid up, and in either case the consideration for which such shares have been allotted." The Incorporated Law Society's Bill requires only a statement of the fact that the shares are issued as fully paid up and does not call for a statement of the consideration. If the Bill can be got through in this form it will be an advantage, for the statement of the consideration is sometimes a matter of difficulty, and the requirement of such statement still renders possible the contention that the consideration has not been properly set forth. The really important matter is to know whether the shares have been paid up in cash or no, and practical convenience points to the acceptance of the proposal of the Incorporated Law Society. But the form of the measure in this respect is less material than to secure in some way the repeal of section 25, and the Government will give a useful indication of their desire for the reform of company law if they secure facilities for getting this urgently-needed measure passed.

REVIEWS.

QUARTER SESSIONS.

This work has long been a favourite text-book with law students, to whom it still primarily appeals. Founded upon a number of standard works, it comprises a great deal of information, specially valuable to students preparing for examinations, or endeavouring to fit themselves for either branch of the profession. In the present edition the somewhat elaborate arrangement of the contents of the work previously adopted has been abandoned in favour of a more under the two great divisions of Torts and Contracts. There are simple one. That is to say, the various topics are now dealt with altogether three parts, each of which is sub-divided into appropriate titles, while nearly each title comprises two or more chapters.

The subjects of Guardian and Ward, Parent and Child, Divorce, and the old forms of action, are, in the present edition, kept within narrow limits. On the other hand, numerous additions to the work have been found necessary, especially in connection with the law of embodies the provisions of the Sale of Goods Act, 1893 (56 & 57 Vict. torts. We notice, too, that the chapter on Sale of Goods, which c. 71), has been entirely rewritten, while a new chapter on Corporations has been added, and the chapter on Evidence has been enlarged. Many new statutes and cases concerning the various topics dealt with have been inserted, though we do not find any reference made to the following recent cases-namely, Pearce Gardner (45 W. R. 518; 1897, 1 Q. B. 688 C. A.); Plant v. Bourne (1897, 2 Ch. 281 C. A.); Re Macdonald, Dick v. Fraser (45 W. R. 628; 1897, 2 Ch. 181), Bank of Australasia v. Palmer

V.

ARCHBOLD'S PRACTICE OF THE COURT OF QUARTER SESSIONS, AND
ITS CIVIL, CRIMINAL, AND APPELLATE JURISDICTION; WITH
TABLES OF ALLOWANCES TO WITNESSES, COSTS OF APPEAL, PRO-1897, A. C. 540), Simpson v. Hughes (45 W. R. 221). At p. 394 of
CEDURE ON APPEALS, AND OF THE PRINCIPAL INDICTABLE OFFENCES
TRIABLE AT QUARTER SESSIONS. FIFTH EDITION, THOROUGHLY
REVISED AND IN MANY PARTS REWRITTEN. By Sir G. SHERSTON
BAKER, Bart., Barrister-at-Law. Shaw & Sons; Butterworth &

Co.

A new edition of this standard work should prove acceptable to the profession, especially as since the publication of the last previous edition the long interval of thirteen years has elapsed, during which many important decisions have been given and enactments passed affecting the subject-matter. The editor of the present edition is to be congratulated on having reduced the bulk of the work from 1005

the work, the editor cites section 4 of the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), as though it were still operative, whereas it has been repealed by the Partnership Act, 1890 (53 & 54 Vict. c. 39), and is now replaced by section 18 of the last-named Act. In a work mainly intended for students (as this is) such errors should be avoided. Speaking generally, however, the editor has exhibited great care and discernment in the accomplishment of his task.

There is only one appendix we are glad to observe, which consists of two statutes-namely, the Employers' Liability Act, 1880 (43 & 44 Vict. c. 42), and the Workmen's Compensation Act, 1897 (60 & 61 Vict. c. 37). An index of over fifty pages has been added, giving

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The Law and Practice Relating to Workmen's Compensation and Employers' Liability, being a Practical Guide to the Employers' Liability Act, 1880, the Workmen's Compensation Act, 1897, the Material Sections of the Factory and Workshop Acts, 1878 to 1895, and Lord Campbell's Act. By W. ELLIS HILL, M.A., Barrister-atLaw. Waterlow & Sons (Limited).

Gibson and Weldon's Student's Statute Law, being Specially Intended for the Use of Candidates at the Final and Honours Examinations of the Law Society. Third Edition. By the Authors. The "Law Notes" Publishing Offices.

The Judicial Trustees Act, 1896 (59 & 60 Vict. c. 35), and the Rules Made Thereunder. A Short Explanatory and Critical Handbook for Professional and other Readers. By a Solicitor. Effingham Wilson.

Price 2s. 6d.

CORRESPONDENCE.

THE INCORPORATED LAW SOCIETY AND LEGAL
EDUCATION.

[To the Editor of the Solicitors' Journal.] Sir,-The Lord Chief Justice is reported to have said at Birmingbam, at the annual dinner of the Birmingham Law Students' Society, in speaking of legal education, "In London at one time the Incorporated Law Society had a number of lecturers who had classes, more or less considerably attended, and periodical examinations in relation to the teaching of those classes. All that was done away with, and absolutely the education which led up to the final examination of those who desired to become solicitors of the Supreme Court was, as regarded London, and in the main the rest of the country, carried on by a system of cramming, and not by a system of liberal and enlightened study, instruction, and education." The lectures referred to were many years ago well attended, but the attendance fell off almost to vanishing point, and the Council naturally thought it a waste of money to continue the old system. Accordingly the present system was adopted as a tentative measure. It is not, as is suggested in the Lord Chief Justice's speech, system of cramming." It was intended to be (to use his lordship's expression)" a system of liberal and enlightened study, instruction, and education." The idea was that as soon as a young man was articled he should, with the assistance of a tutor, commence a regular course of reading, and that he should be questioned at short intervals on what he had read, and that he should be prepared, without any cramming, for the examinations he has to pass.

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One circumstance which retards the progress of the experiment is that many men will not read until compelled to do so, and the assistance of the professional "coach" is invoked at the last moment. Another difficulty is that the largest number of men entering the solicitor branch of the legal profession are articled in the country, and they cannot during the whole of their articles attend classes in London. The Council have endeavoured to supply their wants by a system of postal instruction, which a most eminent instructor at one of our universities adopted with success, and I have a strong conviction that if articled clerks would avail themselves of this opportunity of being taught, then with the knowledge they should acquire in the office they would become really educated solicitors, and would pass their examinations without having recourse to the pernicious system of cramming. R. PENNINGTON.

64, Lincoln's-inn-fields, London, W.C., March 29.

A clever piece of mensural cross-examination was effected at a Parliamentary committee on Tuesday, says the Daily Telegraph, by the Duke of Richmond and Gordon, who is presiding over an inquiry respecting a Bill. One of the counsel engaged was Mr. Lewis Coward, who is exceedingly tall in stature. His exact height has hitherto been a subject of much speculation in committee rooms, and many bets have been made respecting it. During an interval in the proceedings, when the official reporter was not on duty, the venerable chairman, having apparently made an effort to take the learned counsel's measure with his eye, and being, perhaps, anxious to know how nearly he had hit the mark, observed, in almost apologetic tones, "Mr. Coward, may I ask you how tall you are?" "Six feet six, your Grace," promptly replied the counsel. "In your boots?" further inquired the Duke. " No, your Grace," was the answer, "out of my boots."

CASES OF THE WEEK.
Court of Appeal.

PAGET v. PAGET. No. 2. 22nd and 25th February; 1st and 24th
March.

MARRIED WOMAN-SEPARATE PROPERTY-RESTRAINT ON ANTICIPATION— REMOVAL OF RESTRAINT-CHARGE FOR PAYMENTS OF HUSBAND'S DEBT3WIFE'S RIGHT TO BE INDEMNIFIED BY HUSBAND, WHERE NO SUCH RIGHT EXPRESSLY RESERVED-CONVEYANCING AND LAW OF PROPERTY ACT, 1881 (44 & 45 VICT. c. 41), s. 39.

This was an appeal by Mrs. Paget, the plaintiff in the action, from a decision of Kekewich, J. (reported ante, p. 67, and 46 W. R. 232). At the date of her marriage with the defendant, in January, 1877, the plaintiff was entitled, under the will of her grandfather, to receive for her sole and separate use, and without power of anticipation, the net residue of the annual income of a moiety of certain freehold land consisting of warehouse the marriage secured to the defendant an annual income of £2,000 out of the property in Manchester, and of a sum of £100,000. The settlement made on property brought into settlement by the plaintiff. The defendant and the plaintiff lived extravagantly and got into debt, and it became necessary to raise large sums of money to avert bankruptcy proceedings against the defendant. Application under section 39 of the Conveyancing and Law of Property Act, 1881, was accordingly made to the Court; and two orders, made by Chitty, J., whereby it was ordered that the plaintiff's life interest dated respectively 28th June, 1882, and the 11th of August, 1887, were under her grandfather's will should, notwithstanding the restraint on antici pation, be charged for the purpose of raising two sums of £23,000 and £22,000. These sums were expended in freeing the defendant of debt. Afterwards the defendant and the plaintiff separated, and ever since May, 1893, they had been living apart. In the present action, the plaintiff, who sued in respect of her separate estate, claimed a declaration that the defendant was liable to indemnify her against the two mortgages for the sums of £23,000 and £22,000 already mentioned. Kekewich, J., proceeding to a great extent upon the fact that the orders of the 28th of June, 1882, and the 11th of August, 1887, did not reserve to the plaintiff any such right of indemnity, dismissed the action, but without costs. reserved judgment of the Court of Appeal was delivered on the 24th The plaintiff appealed, and the of March.

THE COURT (LINDLEY, M.R., and RIGBY and VAUGHAN WILLIAMS, L.JJ.), dismissed the appeal.

relieve

LINDLEY, M.R., read the judgment of the Court as follows: This is an appeal by the plaintiff, Mrs. Paget, against a judgment of Mr. Justice Kekewich dismissing an action brought by her against the defendant, her husband. The object of the action was to obtain a declaration that the plaintiff's husband was liable to indemnify her against two charges for £23,000 and £22,000 created by her on her separate property for the payfacts are there set out, and it is unnecessary to repeat them at length here. ment of his debts. The case is reported in (1898) 1 Ch., 47. The material It is sufficient to state that Mr. and Mrs. Paget were married in January, 1877. The husband was entitled to some reversionary property. His interest in this property was settled on the marriage, but this property produced no income to him. The wife was a lady of fortune, and the bulk of her property was settled on her for her life for her separate use without power of anticipation. The sum of £2,000 a-year derived from her property was, however, settled on her husband for life, but so that if he attempted to alienate it, or if he became bankrupt, this annuity became payable to his wife. The other provisions of the settlement need not be referred to. The husband and wife moved in good society and, large as their income was, they lived far beyond it. So recklessly extravagant were they that five them from the pressure of debts for which the husband was legally years after their marriage £23,000 was sorely needed to liable, but which debts had been contracted to defray the expenses of the extravagant mode of living which they both apparently enjoyed. It is impossible, in our opinion, to read the evidence in the case without coming to the above conclusion. The affidavits filed in support of the plaintiff's application in June, 1882, for the order to which we will refer presently, leave no doubt, in our minds, that these debts had been contracted not for the purposes of the husband with which the wife had little to do, but in order to enable them both to live in the style they both thought suitable and perhaps necessary to enable them desired. We attach more importance to what the wife said in these affidavits to maintain and enjoy that high social position which they both so greatly than we do to what she said some fifteen years later when examined in this action and when she was endeavouring to support her present claim. In the affidavits sworn by her and her solicitor in 1882 there is nothing to lead to the inference that any of the debts which then had to be met were incurred by her husband for purposes of his own as distinguished from the purposes of himself and his wife as already stated. In her affidavit of June, 1882, the plaintiff referred to the debts as contracted by her husband and herself as "our debts." It is true she said that until 1880 her attention was not called to the fact that she and her husband were getting into difficulties; but her affidavit shows that after she knew of those difficulties all that she really cared about was to increase the net income of herself and her husband, and to maintain their position in society. Her solicitor's affidavit leads to the same conclusion. On June 28th, 1882, the plaintiff applied for and obtained an order under section 39 of the Conveyancing Act, 1881, enabling her to mortgage her life interest to secure £23,000 and interest and the premiums of a policy on her life. We do not think it necessary to refer in detail to the arrangements made for raising this sum, nor to its application when raised. It is sufficient to say that the money was raised as authorised by the order, and, except as to £3,600, was applied

in paying the debts intended to be paid off by its means. The £3,600 not so applied was misappropriated by the solicitor who raised the money. Five years afterwards another sum of £22,000 was wanted for similar purposes. Another application was made to the Court, supported by further affidavits by the plaintiff and her then solicitor, and on August 11th, 1887, another order was made enabling the plaintiff to mortgage her life interest for £22,000 and interest, and for the premiums on another policy. This sum was accordingly raised, and applied as authorised by the order. The plaintiff's affidavit, filed on this occasion - July 28th, 1887 — referred to what had been done in 1882, and to the misappropriation of £3,600, and to the fact that debts had been contracted to pay off the creditors who ought to have been paid off with that sum, and to the impossibility of avoiding bankruptcy and loss of social position if the arrangements then contemplated were not carried out. The plaintiff stated her desire to raise this sum of £22,000, and she spoke of the debts as "our debts" as she had done in 1882. She represented the debts to be hers quite as much as her husband's, and she treated his income and hers as one which it was desirable to maintain as far as possible. These transactions of 1882 and 1887 having been completed, the question arises whether Mrs. Paget is entitled to be indemnified by her husband against these sums of £23,000 and £22,000 when called in, and in the meantime against the interest and premiums charged on her life interest by the above orders. The fact that the plaintiff and her husband were separated in 1893 explains how this controversy has arisen, but does not, in our opinion, affect the question of law which has to be considered. The plaintiff's rights, whatever they are, were not created in 1893, but arose in 1882 and 1887, although she might not care to enforce them whilst she and her husband lived happily together. What, then, were her rights in 1882 and 1887? In this action she has given evidence and has stated that nothing was ever said about her giving anything to her husband, that he managed all her affairs, and she did not understand them and did not want to do so; that in making her former affidavit in 1882 she ought not to have used such expressions as "our debts" and "my debts"; that she herself was not living beyond her income; that some of the debts which had to be paid were not for money spent for her and her husband's joint benefit. But when pressed on this point it seems tolerably plain that there is no reason for saying that the statement contained in her affidavit of 1882 did not disclose the true state of things, and ought not now to be believed, although she evidently wishes to minimise the effect of it. What she now says, however, is that all she knew was that her husband was in danger of being made bankrupt, and that she wished to save him from such a disaster. Her attempt to dissociate herself from her husband's racing debts was not successful. As regards the transaction of 1887, she admitted that the financial situation which needed treatment then was very much the same as in 1882, and arose from the same cause. She also stated that in 1887 her husband was in America, and that Chitty, J.,who made both orders, saw her in his private room, and was told by her how these new difficulties had arisen, what the debts were, what the money was wanted for, and so on. The learned Judge was, no doubt, greatly influenced on both occasions by her own statements as to her own indebtedness. | Bearing in mind this evidence, we have to consider the effect in equity of the transactions in 1882 and 1887, to which we have alluded. The authorities bearing on the subject, beginning with Huntingdon v. Huntingdon | (2 Wh. and Tud., 915), and coming down to Hudson v. Carmichael (Kay, 613), show that if a married woman charges her property with money for the purpose of paying her husband's debts, and the money raised by her is so applied, she is prima facie regarded in equity, and as between herself and him, as lending him and not giving him the money raised on her property, and as entitled to have her property exonerated by him from the charge she has created. This doctrine is purely equitable, and the authorities which establish it show that it is based on an inference to be drawn from the circumstances of each particular case; the prima facie inference being in such a case as that supposed that both parties intended that the wife's assistance should be limited to the necessity of the case, and should not go beyond such necessity. But even where the wife charges her property with money to pay her husband's debts incurred without reference to her, there may be circumstances which prevent any inference from arising in her favour. Thus, if a settlement is made by the husband on his wife at the time she charges her estate he is regarded as purchasing her assistance; and the inference that the parties intended that the wife's property should be exonerated by the husband does not arise (see Lewis v. Nangle, Amb., 150). Clinton v. Hooper (1 Ves. J., 173, and 3 Bro. C.C., 201) is the leading authority to show that the doctrine in question is based on an inference to be drawn in each case from all the facts of that particular case. It was long ago settled that, although under the old law a husband became liable for the anti-uuptial debts of the wife, she had no right in equity to compel him to exonerate property of hers charged with those debts, even although he had expressly Covenanted to pay them; see Lewis v. Nangle (ubi supra) and Earl of Kinnoull v. Money (3 Sw., 202n.). This shows the importance of not confounding the wife's debts with the husband's debts when considering such cases as those to which I am alluding. To say that in all such cases there is a presumption in favour of the wife, and that it is for the husband to rebut it, is, in our opinion, to go too far and to use language calculated to mislead. The circumstances of each case must all be weighed in order to see what in ference ought to be drawn; and until an inference in favour of the wife arises there is no presumption or the husband to rebut. If this is forgotten, error may creep in. The circumstances here we take to be those disclosed by the plaintiff in her affidavits, especially her representations of her own indebtedness, as well as of her husband's; and we will add to these her recent statement that nothing was ever said about giving anything to her husband. Neither was anything said about lending him anything. She had a large income, and, although restrained from anticipation, she might have accrued income in respect of which she could contract debts. There is no reason to suppose that she had no debts and could contract nne. She represented

herself as pressed by her creditors, and we see no reason to doubt the truth of her statements. The plaintiff was as extravagant and reckless as her husband, and was quite as desirous as he of maintaining her position in society. This object, so dear to both of them, might have been entirely frustrated if she had the right against him which she now asserts. That right would, in point of law, have been her separate estate, and she might under pressure have assigned it, and her assignee might have enforced it against her husband whether she liked it or not. She had plenty of debts enforceable against any separate estate she had or might have, besides income which she could not anticipate. Those circumstances, and the peculiar position of her husband with respect to his £2,000 a year, lead us to the conclusion that no inference ought in this case to be drawn in her favour of any right to be indemnified by her husband. This conclusion is arrived at apart from the orders of the Court to which Kekewich, J., attached so much importance, and the effect of which we will now consider. They are based on section 39 of the Convey aucing Act, 1881. [His Lordship read it and continued.] Unless the wording of the section is attended to, there is danger of regarding the section as merely authorising the Court to remove the restraint against alienation which 18 so frequently imposed on married women when property is settled on them for their separate use. But it is to be observed that what binds the estate of a married woman is not what she does when the restraint is removed, but the order made by the Court. The language of the section is that the Court may, by judgment or order, bind her interest. The Court is empowered to do this where it appears to the Court for her benefit so to do, and with her consent. A question at once arises whether the doctrine which is applicable to charges created by a wife to pay her husband's debts is to be applied to charges created not by her, but by an order of the Court. The learned Judge in the Court below has held that the doctrine in question has no application to such a case, and that where orders are obtained under that section charging her property with money to be applied in paying her husband's debts the order should show on the face of it that her husband is to be liable to indemnify her if he is to be under any such liability. It certainly might be convenient if such orders were so drawn as to show what was intended in this respect. But these orders are usually made without hearing the husband, and we are not prepared to say, as a matter of law, that an order silent as to the wife's rights against her husband is fatal to the existence of such rights. The circumstanc ́s under which the order was made might show that a right on her part to be indemnified by her husband ought to be inferred, although the order did not allude to it. The absence of all allusion to such right is, however, a circumstance to be considered, and in this particular case the form of the orders of 1882 and 1887 tells against the plaintiff when regard is had to the statements made by her in order to obtain them. It was urged that it could not be for her benefit that she should be deprived of her right to indemnity, but the force of this observation depends on the tacit assumption that she had the right. The question comes back to the proper inference to be drawn from all the facts, including the orders themselves. And bearing in mind that the plaintiff's paramount object was to save her and her husband's joint income, and thus, as far as possible, to preserve her and his position in society, and that this object might have been defeated if she reserved a right to be indemnified by him, the proper inference to be drawn iз, in our opinion, adverse to the evidence of such right. In our opinion, therefore, the appeal fails, and must be dismissed with costs.--COUNSEL, Renshaw, Q.C., and 4. à Beckett Terrell; Cozens-Hardy, Q.C., Warrington, Q.C., and John Henderson. SOLICITORS, Leman & Co.; Dawes & Sons.

[Reported by R. C. MACKENZIE, Barrister-at-Law.

High Court-Chancery Division.

Re GIBBS, THORNE v. GIBBS. Stirling, J. 24th March. REVENUE-SETTLEMENT ESTATE DUTY-INCIDENCE-FINANCE Acr, 1896 (59 & 60 VICT. c. 28), WHETHER RETROSPECTIVE.

imposed by the Finance Act of 1894 was, in the case of property settle i This case raised a question as to whether the settlement estate duty by the will of a person who died after the commencement of the Finance Act, 1894, but before the commencement of the Finance Act, 1896, payable out of the settled property or out of the general residue of the testator's estate. The question arose under the following circumstances. By section 5 of the Act of 1894 it is enacted (1) that where property in respect of which estate duty is leviable is eettled by the will of the deceased, or, having been settled by some other disposition, passes under that disposition on the death of the deceased to some person not competent to dispose of the property, a further estate duty (called settlement estate duty) on the principal value of the settled property shall be levied. By deceased person" and section 22 (1) (a) of the same Act the expressions "the deceased " part of that Act. The said sections 5 and 22 are both comprised in Part mean a person dying after the commencement of that I. of the Act of 1891, and by section 24 of the same the 1st of August, 1894, was defined as the commencement of Part I. of that Act. On the 26th of March, 1896, it was decided by North, J., in Re Webber (44 W. R. 489; 1896, 1 Ch. 914) that in the

Act

case of a testator who died on the 7th of March, 1895, the settlement the testator ought to be borne and paid out of the general residue of his estate duty payable in respect of personal property settled by the will of estate and not out of the settled property. On the 7th of August, 1896, the Finance Act, 1896, was passed. Part IV. of such Act comprises sections 14 to 24, both inclusive; and by section 19 it is enacted (1) that the settlement estate duty leviable in respect of a legacy or other personal property set led by the will of the deceased shall (unless the will contains

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