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to trustees upon trust for himself for life or until he should incumber the same or affect so to do, and in the event of this trust being determined during his life, then upon trust for the trustees to apply the income at their discretion for the maintenance of W. Winniairs and his family. The settlement contained a covenant by P. A. WII.I.IasIs and J. VV. \VII.I.iaiiIs that if the mortgagor should go abroad and remain for five years in some country out of Europe of which they should approve, and should observe certain other terms, they would pay him for that period the annual sum of £200.

Prior to the advance of the sum of £2,297 these last mortgagees made inquiries of the trustees of the will and were informed that no notice of any incumbrance had been received. On the 7th of July, 1896, they gave to the trustees of the will notice of the mortgage and settlement of the 2nd of April, 1896. The plaintiff gave the trustees notice of his mortgage on the 8th of January, 1897, and on the 1-5th of February he wrote to P. A. 'WII.I.Iasis and J. \V. WII.I.I.-nis offering to redeem their mortgage, but the offer was refused. The defendant TEMPLE never gave any notice of his charge at all. Prior to the action, and after the 15th of February, 1897, P. A. WILLIAMS and J . \V. W1I.i.I.-ms made several payments on account of the annual sums of £200, and in the action, which was brought by the plaintifi to obtain a declaration of priorities and to enforce his security, he claimed to have priority over these further advances and to be entitled to a charge on W. Wirmmms’ life interest under the will, subject only to the advance of £2,297.

Under the above circumstances it was clear that the mortgagees under the mortgage of the 2nd of April, 1896, had gained priority, at any rate to the extent of the sum then advanced, over the mortgage and charge of the 24th of December, 1895. The principle established by Dearle v. Hall (3 Russ.

1) is that an assignee of an equitable interest in a fund must

do all that he can to reduce the interest into possession, and so prevent the assignor from going elsewhere and raising more inonoy upon the same property; and his proper way of doing this is to give notice to the trustees by whom the fund is held. Such notice is not, as was pointed out by Lord Macrzaournw in Ward v. Duncomba (42 W. R. 59; 1893, A. O. p. 392), necessary in order to enable the assignee to “ complete ” his title, but it is necessary to enable him to protect his title, and if he neglects to give notice and the assignor carries the property into the market again, he pays for his neglect by having his security postponed to that of a subsequent incumbrancer who exercises greater diligence. In this predicament both the plaintiff in the present case and the defendant TEMPLE found themselves.

But admitting, as the plaintiff did, the priority of the advance of £2,297, there still remained the question, how far he was entitled to take the life interest under the will subject to such advance. \Vas he entitled to take it at all, and, if so, was it subject in priority to him to the payments on account of the annual sums of £200 which had been made after he had given P. A. WII.i.Iai\is and J . W. WII.I.1asIs notice of his mortgage. The latter_ point depended upon the further question whether the doctrine of Ilopkinson v. Roll (9 W. R. 900, 9 H. L. C. 514) was, under the circumstances, applicable. By that case it was decided that, where a first mortgagee takes a mortgage to cover what is then advanced or due, and also future advances, he cannot claim the benefit of the security in respect of such future advances in priority to a second mortgagee of whose mortgage he had notice before the further advances were made. But the rule depends upon the circumstance that it is within the choice of the first mortgagee whether the further advances shall be made. If made, he can add them to his security, but he is under no obligation to make them. “ The first mortgagee,” said Lord C.~_\1\lPBELL, C., “ will have no reason to complain, knowingthat this is his true position, if he chooses voluntarily to make further advances to the mortgagor. The second mortgagee cannot be charged with any fraud upon the first mortgagee in making the advance with notice of the first mortgage; for, by the hypothesis, each has notice of the security of the other, and the first mortgagee is left in full possession of his option to make or to refuse further advances as he may deem it prudent.” In the present case, however, this material element was wanting. The mortgage and the settle

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ment of the 2nd of April, 1896, represented, so Ksxnwicn, J., held, one transaction, and the mortgagees were bound by their covenant to make the annual payments, provided the mortgagor observed the terms imposed upon him. The obligation, therefore, to make the further advances arose at the same time as the security for them was created, and this security was not apparently prejudiced by the fact that notice of another incumbrance was given before the payments were actually made. This, it seems, was the view taken by KEKEWICII, J., though in the result it was unnecessary for him to decide the oint.

P The plaintiffs claim to rank after the mortgage for £2,297 was really met by the settlement of W. WII.I.IAirs’ equity of redemption effected contemporaneously with the mortgage. By the mortgage of the 2nd of April, 1896, not only was an incumbrance created which, by virtue of the notice to the trustees of the will, gained priority over the plaintiff’s mortgage, but the equity of redemption which was left in the mortgagor, and which, had the mortgage stood alone, would have been available as a security for the plaintiff, had been also assigned, and the settlement as well as the mortgage stood in front of the plaintiif’s claim. The rule in Dearla v. Hall, said KEKEWICH, J., “ applies as much to absolute assignments as to assignments by way of mortgage, and the result is that what was assigned to the plaintiff has by his own default ceased to exist.”

It might still have been possible, indeed, for the interest which the mortgagor took under the settlement to be treated as representing his life interest under the will, and so be subject to the plaintiif’s mortgage; but this last chance was cut oif by the provision for the determination of the interest under the settlement in the event of the mortgagor creating any incumbrance upon it-. No incumbrance had been created subsequently to the 2nd of April, 1896, and hence primd facia there had been no forfeiture ; but it has been held in several cases that, for the purpose of bringing such aclause into operation, it is suflicient that the event to be provided against has happened before the date of the settlement. In Seymour v. Lucas (8 W. R. 599, 1 Dr. & S. 177) a testator gave real and personal estate to trustees fora tenant for life, with a limitation over in case he should tlwecfla become insolvent. The tenant for life was already insolvent at the date of the will, and KIx1>1=.nsI.aY, V.O., held, in deference to the previous decisions, that the language of the will included past acts, and that the limitation over took effect. So in the present case the plaintiff's own mortgage operated as a forfeiture of the mortgagor’s interest under the settlement, and there was nothing left for either the plaintiff or the defendant TEMPLE to take. Each of them lost the benefit of his security through neglect of the precaution insisted upon in Dearle v. Hall.

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The fifth volume of this useful issue suffers frcm no deficiency of important and interesting subjects. It opens with an article_0n Employers’ Liability, in which Mr. A. H. B11638» Q.C., after pointing out the limitations on the common law liability of employers imposed by the doctrine of common employment and by the application Of the maxim vclenti mm fit 1'njur1'a, discusses their liability under the statute of 1890 and their approaching liability under the Act of last session. Equitable Assignment is dealt with by Mr. D. M. Kerly, and the cases on the effect of notice iii conferring riority 111:9 convcnicntly classified. An article likely to be specially useful I9 that on Execution, by Master C. Barney and Mr. F. A. StringerThe various modes of execution by writ and by order, including equitable execution, are clearly and succinctly stated, as W911 as execution in pecial cases, as against married women Bud partners. Under the writ of sequestration will be found some curious information as to the dislike of courts of law to _tl1Bl5 writ upon its introduction. Before the jurisdiction to issue the writ was fully established a sequestrator was a trespasser, and to kill him, it seems, was no murder. The subject of Executors and


Administrators is treated in considerable detail by Mr. W. Greenwood. “ Executor-y Interests ” is one of a series of articles _on real property which are contributed by Mr. J . D. Israel. Attention may also be called to the articles on Extradition by Mr. T. Barclay, on Fixtures by Mr. E. Foa, on Foreign Judgments by Mr. W. F. Craies, and on Foreshore by Mr. G. G. Philliinore. The law and practice of Foreclosure are excellently condensed by Mr. W. F. Phillpotts, and the term “Floating Security" is discussed by Mr. Frank Evans. _

The sixth volume includes among its principal contents articles on Freight, by Mr. G. G. Phillimore; Habeas Corpus, by Mr. G. B. Keni-ick; Hiring Agreements, by Mr. T. M. Stevens—including a good statement of the effect of the Bills of Sale Acts on such agreements; Husband and Wife, by Mr. C. Montague Lush and Mr. W. H. Griflith; Infants, by Mr. E. L. De Hart; Inferior Courts (Criminal and Quasi-Criminal, Civil, and Manorial, by_Mr. _W. F. Craies; and University, by Prof. T. E. Holland) ; and Injunction, by Master Bnrney. The article on Income Tax, by Mr. W. Craies gives a classified account of a diflicult and complicated subject. As far as we can see, the information supplied in these volumes is full, correct, and well arranged. Mr. Wood Renton has secured competent help in his undertaking, and by the efforts of himself an_d the publishers it is being brought out with very praisewortby rapidity. ‘When complete it will form a very serviceable compendium of English



A Digest of the Law of Agency. By WILLIAM BOWSTEAD, Barrister-at-Law. Second Edition. Sweet 8: Maxwell (Limited).

The Principles of E uity. Intended for the Use of Students and the Profession. By EDMUND H. T. SNELL, Esq., Barrister-st-Law. Twelfth Edition. By ARCHIBALD Bnown, Esq., M.A., D.C.L., Barrister-at-Law. Stevens & Haynes.

The Merchandise Marks Acts. By G. B. ELLIS, Fellow Inst. P.A. = Solicitor of the Supreme Court. A Paper read at the One Hundreth Ordinary Meeting of the Chartered Institute of Patent Agents, held on the 18th of February, 1898. Spottiswoodc & Co.

Alphabetical Table of Public General Acts in Force Relating to England, 20 Hen. 3 (1235) to 60 & 61 Vict. (i897). By_PAUL BTBICKLAND, Barrister-at-Law. William Clowes & Sons (Limited).

Parish Councils. Some Notes on the Local Government Act. 1894, and Suggestions for an Amendment Act. By J . HARRIS STONE, M. A., Barrister-at-Law. Stevens & Sons (Limited).

The Law Quarterly Review. Edited by Sir FREDERICK POLLOCK, Bart., M.A., LL.D. April, 1898. Stevens & Sons (Limited).

' CORRESPONDENCE. CONVEYANCING COSTS. [To the Editor Q/' the SoIic1'to'rs’ Jam-nal.]

Sir,-—There are two matters relating to the conveyancing branch of the profession which appear to call for some alteration.

The first is that the scale fce for a lease is held to include the cost of a preliminary agreement. In my experience there is often as much, or more, trouble in settling the terms of a lease than those of a sale and purchase, for which the scale fee is by no means an adequate remuneration. It would, I submit, be only reasonable and just to the profession to be allowed to charge a negotiation fee where the terms are arranged by the solicitor.

The other matter relates to the statutory provision which throws upon a purchaser the cost of procuring evidence to establish the vendor’s title. I have recently had a case where the vendor professed to sell as heir-at-law, to establish which involved the making out of a pedigree (from information furnished by his solicitor) and obtaining about twenty certificates—besides statutory declarations as to identity, &c.—for all of which the Gfiurchaser had to pay._ This, I submit, is very unfair on him and ls for some modification of the rule in question. _

I should hope that some other members of the profession will be

leased to express their views on the above; and if our friends on the gouncil in Chancery-lane could be induced to deal with these matters, some amendment might be obtained. S. A. RAM.

Mr. Justice Bruce, says the Globe, in presiding on Wednesday night at a lecture delivered at Newcastle to a class of coach-making students, explained his qualification for holding the reins of tho meeting by remarking that “conveyancing” was a very important branch of the law, and no man ought to have any pretensions to be a lawyer who could not drive a coach-and-six through an Act of Parliament.

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This was an ap al by the plaintiffs from the judgment of Mathew, J ., in the CommercialeCourt. The action was brought by the plaintiffs, who were the owners of the ship Ruubon, to recover balance of expenses incurred in the repair of the ship. The defendants had insured the ship. In the course of a voyage she sustained damage by perils insured against, and in order to repair the damage she was placed in dry dock. The plaintiffs took advantage of the ship being in dock to have her surveyed for the purpose of retaining her class at Lloyd’s. By the rules of Lloyd's a ship may be surveyed at any time within twelve months of the date when the survey is due. In the present case the survey took place eight months before the due date; but, if it had not taken place when it did, the ship must have been placed in dry dock for the purpose. The defendants contended that, under the circumstances, the expenses of getting the ship into and out of the dock, and the dock dues during the time when the dock was used for the purposes of the plaintiffs as well as for the repair of the ship, for which the defendants were liable, ought to be shared between the parties. Mathew, J ., upheld this contention, holding that the case came within the principle of the Marina Insurance Co. v. China Transpacific Steanuhip 00. (11 App. Cas. 573), generally known as the Vancouver care, and the learned judge therefore gave judgment for the defendants. The plaintifis on appeal contended that the Vancouver vase was distinguishable.

Ti-in COURT (Ci-iirrr and COLLINS, L.JJ., A. L. Siiirii, L.J., dissenting), having taken time to consider its judgment, dismissed the appeal.

A. L. Siirrn, L.J., in the course of a written judgment, said that the important point to be determined was whether when a ship put into dry dock (in the present case into a wet dock with a pontoon therein) in order to repair damage occasioned by a sea peril for which underwriters alone were liable, the cost of piloting, towing, and other expenses for getting the ship into dock for repair and of getting her out again when repaired were to borne by the underwriters, or whether those expenses were to be shared between the shipowner and the underwriters, if the shipowner, after the ship was in dock, took advantage of the ship being there to get her surveyed so as to enable her to keep her class, or for any other purpose of his own. It was said on behalf of the underwriters that the principles laid down by the House of Lords in the Vrmcouver case shewed that these expenses should be shared. It became, therefore, necessary to ascertain the principles laid down in that case, because unless they covered this case he had no doubt that these expenses would fall wholly on the underwriters. In his view the question of sharing the pilotage, towage, and other expenses necessary to take the ship into and out of dock was not under consideration in that case. The only question argued and determined was the sharing of the dock dues after the ship had arrived therein, which dues were incurred during that portion oi time when the concurrent operations of the shipowner and underwriters on the ship were going on. The Vancouver case, therefore, was no authority upon the question of the pilolage, towage, and other expenses of getting the ship into dock. It was said that the principles underlying the decision covered the point now raised. The dec sion in the Vanrouver can was that where a ship was insured against perils of the sea and was placed in dry dock in order to carry out repairs which the shipowner for his own purposes desired to execute (i.e., scraping and painting the ship's bottom), which expenses the shipowner alone had to bear, yet if, when the ship got into dry dock, it was discovered that by reason 0t a peril insured against damage had been occasioned to the ship which had to be repaired at the expense of the underwriters alone, the dock dues incurred during those concurrent operations for the respective purposes of shipowner and underwriters must be shared between them. It was said by the plaintiffs that The Ruaban put into dock solely to repair damage for which the underwriters were alone liable and not for any purpose of the shipowner’s, and that the pilotage, towage, and other expenses were incurred solely on the underwriters’ account. It was said y the underwriters that if these expenses had not been incurred the ship would not have been in dock and the shipowner would not have had the benefit of her being there to get her surveyed for her class. But the Vancouver case did not lay down that whenever a person incidentally obtained a benefit he must necessarily share expenses which had not been incurred on his account. As regarded the dock dues, he agreed that these must be shared, for they had been incurred by reason of the common user of the dock for the purpose of the two. If the £25 claimed in that case were for dock dues, then the

Vancouver case covered them, but the pilotage, towage, and other expenses were outside the decision and princip es laid down in the l'am.-ouvvr case. The underwriters now for the first time, so far as he knew, sot up that where there was an expenditure solely on their own behalf, this expenditure was nevertheless to be divided or otherwise shared between them and the shipowner. His lordship did not agree with that contention. The princip e upon which the Vancouver can was decided was that, if there be an employment for two purposes and expenses for these two purposes were incurred in common, then each person who utilized the occasion must bear his share of the expenses incurred; but if the employment was only for one purpose, then the old principle, that he for whom the employment took place must pay the cost, was left untouched. \Vhat he had said as to taking the ship into dock applied to taking her out. If all

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or any part of the £25 was for dock dues whilst the common user was going on, that, as before stated, would come within the decision in the Vancouver mu: ; but that was not the real point which the parties wished to have decided. He differed with regret from Mathew, J ., and the other members of this court, but in his opinion the appeal should be allowed.

Cur-rrr, L.J., read a judgment in which he said that the amount_in controversy was small, but the question was one of importance to shipowners and underwriters. It was whether the expenses of taking the steamship Ruabon into and out of the pontoon dock andplacing her there, and the dock dues whilst she was there, ought to be apportioned between the owners and the underwriters in the circumstances of this case. The particulars of expenses, amounting to £55, consisted of boat hire to and from tho pontoon and Roath basin, piloting the vessel on and off the pontoon, towing the vessel on and off the pontoon, labour taking tho vessel from the east dock to the pontoon and taking her from the pontoon to the Roath basin, and docking and undocking, including tide on and tide oil? and use of patent shoring. This last item (£25) was paid to the Cardiff Pontoon Co., and appeared to be for dock dues. The other items were paid to other persons. It was admitted that all the items were necessarily incurred in connection with the docking. The shipowners contended that tho whole of these expenses fell on the underwriters. If they ought to be apportioned it was conceded that the apportionment should be in equal shares. The ship was taken to and placed on the pontoon for the purpose of repairs, the burden of which fell on the underwriters. While the ship was on the pontoon and after she had been opened out the owners availed themselves of the opportunity of having her surveyed for the purpose of maintaining her classification, and they obtained the required certificate. The time had arrived when they were entitled, according to Lloyd's rules, to have her examined for classification, though there still remained some months to run before she would have lost her classification if not resurveyed . It was admitted that docking was necessary for the vessel to pass her survey. In the Vancouver case the ship was taken into dock by the owner for the purpose of repairs, the expense of which fell on the owner alone. \Vhile there it was discovered that she had sustained injury while at sea to her stern-post. The burden of these repairs fell on the underwriters exclusively. There were three common days while the ship was in dock during which both sets of repairs were being done simultaneously. Neither set of repairs interfered with or delayed the execution of the other. Each set required the whole of the three days. This court and the House of Lords held that, inasmuch as the dock was in fact being used for both purposes during the three days, the dock dues for those three days had to be borne by the owner and the underwriters in equal shares. The question here was whether this case was governed by the T'ancou|.'er vase. It was argued in this court for the appell-ants that, whatever the decision might be as to the pontoon dues (£25), no part of the expenses of taking the ship to and from the pontoon should be thrown on the shipowners. The court were informed that in the Vancouver case the expenses of taking the ship into and out of the dock were not in controversy in the action, and that the cost of docking and undccking had before the action been apportioned in the average statement. It appeared to him that the present case was not distinguishable from the Vmwoucer case. The pontoon dues fell within the actual decision. Ile understood that decision to be that on the question of actual uscr of the dock, while the dock was being used simultaneously for shipowners' and underwriters’ purposes, it was immaterial for whose purposes the ship was first brought into dock. That did not touch the question as to the expenses of taking her in and out. In his opinion, the principle of the decision covered those expenses. Those expenses were necessarily incurred in connection with the docking. They were strictly incidental to the operation of docking. They seemed to him to be mere accessories which ought to follow the principle. They were not in any way occasioned by the condition of the vessel or by reason of her having been disabled by sea damage for which the underwriters were liable. Had they been made more onerous in the whole or in part by riason of the ship's disability arising from sea damage, the case would have stood differently, and they would have fallen, in the whole or in part, as the case might be, on the underwriters exclusively. He agreed that, if a ship were disabled at sea at a distance from a port and required the assistance of a tug to tow her, the expenses oi any such towage would undoubtedly fall upon the underwriters. He excluded anything of the nature of a voyage, and any expense arising from the disability of the ship within the policy. In his opinion it made no difference whether the necessary expenses of getting the ship in and out were paid to the dock company or to some other person. His lordship concluded by saying that he differed, though with re uctance, in some respects from the judgment of A. L. Smith, L.J. For the above reasons, in his opinion, the appeal ought to be dismissed.

COLLINS, L.J., read a judgment to the same effect as that of Chitty, LJ. Appeal dismissed.—C0rNsur., Cohen, Q.C., and illontague Lush; Joaeph Walton, Q.C., and L. L. Batten. Soucirons, Botlerell Q Roche, for Vaughan §' Homby, Cardifi; Waltom, Johnson, Babb, Q W Imlton.

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80, and 46 \V. R 220), who had held that funds appointed by the will, exercising a general power of appointment, of a married woman who had obtained a protection order under the Matrimonial Causes Act, 18-37, were liable for a debt contracted by her after the date of the protection order. In February, 1880, Mrs. Walker (otherwise Hughes), obtained, under the Matrimonial Causes Act, 1857, an order protecting her property against her husband, Walker. The order was never discharged. By adeed dated the 6th of March, 1880, Mrs. \Valker covenanted with J . C. Stogdon, her solicitor, to pay to him the sum of £450, and any other sum which might become due on the footing of the security therein contained, on the 30th of March following, together with interest thereon in the meantime at the rate therein mentioned. Mrs. Walker died on the 24th of March, 1896, without having paid the money due under the deed of March, 1880. By her will she had appointed certain funds over which, by virtue of a deed dated the 23rd of J y, 1894, she had a general power of appointment. She left no means except the funds so appointed. An action having been brought for the administration of her estate, Stogdon's assignee took out a summons asking that his claim to prove as a creditor of Mrs. Walker's estate for (inter alia) the sum of £450 and interest due under the contract contained in the deed of the 6th of March, 1880, might be allowed. Kekewich, J ., decided that the appointed funds were liable to pay the debts due under the deed of 1880, and accordingly allowed the claim. Mrs. Walker’s executor appealed.

Tux Counr (Lrxntar, M.R., and Rrosr and Vacuum Wranrsns, L.JJ.) dismissed the appeal.

Lmonar, , said: I think the judgment of the learned judge in the court below, or the order he has made, is quite correct. The first part of the order declares that the court is of opinion that the fund appointed by the will of Agnes Ann Hughes is assets for payment of the debts of the said testatrix, including the amount (if any) due under the indent-ure of the 6th of March, 1880. That is _the first thing. It appears to me that the learned judge was perfectly right there, because when you bear in mind that Mrs. Walker had on the 9th of February, 1880, obtained a protection order, and was therefore, under the provisions of sections 21, 25, and 26, of the Divorce Act, 1857, in the position, as from that date, of a fem s0.’e, capable of contracting debts and obligations, it is plain that this case is taken quite out of the principle applied by Kay, L.J., inBe Ropvr. Roper v. Doncaster (36 W. R. 750, 39 Oh. D. 482). The ratio decidmdioi that case was that a married woman had not “debts” in any accurate sense of that expression. We start, then, with that fact, that this lady was in the position of a fame sole for the purpose of contracting debts. lt is plain that she did contract debts. Now, it you turn to section 4 of the Married Women’s Property Act, 1882, it runs thus : " The execution oi of a general power by will by a married woman shall have the effect of making the property appointcd liable for her debts and other liabilities ill the same manner as her separate estate is made liable under this Act." If she has debts and liabilities when she makes tho appointment why should not section 4 apply to the case? It would, I think, be putting far too narrow a construction on this section were we to adopt Mr. Swinfen Eady’s suggestion and to say that its provisions do not apply to debts and liabilities which the married woman alread had when t e Act came into operation, although, at the same time, tliose provisions make the fund over which she has a general power of appointment liable for her debts in general. That would be tar too napmla cQ|].str_lwtion to ut on the Act of T882. *I'h'Et.brings me to the second point, ~ a little more ditficult. The learned judge has declared that upon the true construction of the deed Of 1880, the covenants extend to all sums (if any) due from the testatrix, not exceeding the sum of £800 with interest on all such sums. She assigns certain property as a security for that debt. At first sightlt might appear that Mr. Swinten E|dy's construction was right. But 011 further considering tho view of the learned judge, I am of the some opinion, that this covenant applies only to the sum of £150 and to such sums as might become due before the 30th of March, 1880. Then come! this clause, which is somewhat unusually worded, and which follows what I have already read. It runs thus : “ And it is hereby agreed and declared by and between the said parties hereto that these presents and I118 security hereby created shall stand good and be available to secure the repayment to the said John Cole Stogdon,his executors, administrators, and assigns of all principal moneys, interests, costs, fees, and expense! which are now respectively due, or which shall or may at any time hereafter during the continuance of this security accrue due or become pig)" able by the said Agnes Ann Walker, her heirs, executors, or 8d|I11!1l5' trators to the said John Cole Stogdon, his executors, administrators, 0! assigns by virtue of these presents and of the premises, or otherwise howsoever." Then it is provided that the security shall not extend to_cover A larger sum than £800, with interest. I read that clause in this WHYThe words “these presents” are addressed to the cavcnant, and the words “ the security hereby created" to the assignment. The question is, what does the deed say about these presents and about “ the Becllflli hereby created ” P I must say I can see no reason why its plain words should be cut down so as to apply only to the £450, or to the a5818_11' ment, as distinguished from the other part of “ these presents," Whwh means the covenant. Then there follow words which I will not read. because they do not throw much light on that with which we have to 41681Kekewich, J ., held that the covenant does not apply to anyfl1l1_1B m°'° than £450, but that this declaration does; and I think he is right. I think the decision appealed against is right on both points, and that £118 appeal must be dismissed with costs. _

Rronr and Vsuorum WILLIAMS, L .IJ., concurred.-—-Cous'ssL- Swu'f"" Eady, Q.O., and Joseph Tanner; Warrington, Q.O., and A. Damwg/- 5°‘-I’ crroas, G. S. 5- H. Brandon ,- J. 0. Stogdon.

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Plnintiff’s appeal from a decision of Kekewich, J. The action was brought for an account of what was due from the defendants to the plaintiff as the legal personal representative of a Mr. Morison, under a contract entered into between him and the defendants. By that contract certain sums of money in Mexican dollars had to be paid by the defendants to Morison, and the question at issue was how the account ought to be taken in this country, and at what times the sums payable in Mexican dollars ought to be reckoned in English money, and how the equivalent sums in English money ought to be calculated. The contract was dated the 6th of October, 1891. It was in the English language, and was made between Morison, described as of the City of Mexico, of the one part, and die defendants, described as of 10, Victoria-street, Westminster, and thereinafter called the contractors, of the other part, and by it the defendants agreed to pay Morison (1) £595 17s. 6d. in English money on the execution of the agreement; (2) 1c. in Mexican currency for every cubic metre of certain excavation works mentioned in the agreement. This money was payable from time to time as and when the same should be received by the defendants from the junta or committee of management of the drainage works of the city and valley of Mexico. The £595 17s. Gd. was duly paid, and so long as Morison lived the defendants paid him all that became due to him under the contract. He died in June, 1894, and no one became his legal personal representative until May, 1896, when the plaintiff took out letters of administration to his estate. In June, 1896, the plaintiff brought this action for an account. It came on for trial on the 4th of November, 1897, and the court then declared, inler alia, that the plaintiff was entitled to have an account taken of what was due and payable to him as Morison’s legal personal representative under and by virtue of the above agreement, and in taking such an account the defendants were to be credited with a certain sum of £327, as to which no question arose. The defendants had always kept proper accounts of the sums payable to Morison’s estate in Mexican dollars, and the plaintiff accepted these accounts as correct. According to them a balance of 19,366 dols. was due from the defendants to the plaintiff. On the accounts two questions arose. First, the plaintiff contended that the dollars ought to be turned into English money whenever any dollars ought to have been paid by the defendants; whilst the defendants contended that the ultimate balance only ought to be turned into English money. Secondly, the plaintiff contended that, even if the defendants were right in their first contention, this balance ought to be turned into English money on the 31st of August, 1896, when the excavating work was finished and paid for by the Spanish Government. At that date Mexican dollars were worth 2s. 6d. The defendants, on the other hand, contended that the balance ought to be turned into English money on the 13th of November, 1897, when the amount due was first ascertained, and when the dollar was worth only ls. 10}d. In these circumstances the plaintiff served the defendants with a notice of motion to give effect to his views. The learned judge refused the motion with costs. The plaintiff appealed.

Tm: Cocnr (Lmmar, M.R., and Rronr, L.J.; diascntiente Vacuum Wrrmuns, L.J.) dismissed the appeal. .

March 23.—Lrxnr.aY, M.R., stated the facts, and continued: Before considering the questions raised by this appeal, it is necessary to ascertain the grounds on which'any judgment or order for payment in English money can be properly made in a case where the plaintiff sues upon a contract to pay in the currency of a foreign country. The terms of the contract confer no right to payment in English money. If the defendants had tendered to their creditors, either in Mexico or wherever they demanded payment, the amounts due from them in Mexican dollars at the proper times, they would have offered to perform their obligations in strict accordance with their contract. The necessity for considering what amount the defendants ought to pay in Eaglish money arises simply from the fact that the plaintiff, having the right to sue the defendants in this country for a breach of their contract, has chosen to sue them here instead of in Mexico; and, speaking generally, the courts of this country have no jurisdiction to order payment of money except in the currency oi this country. Whatever sum is ordered to be paid, whether for principal, interest, or damages. must be expressed in English money, or such order cannot be enforced by the ordinary writs of execution. Whether before the Debtors Act an order in Chancery for the payment of so many Mexican dollars could have been made and could have been enforced by attachment I do not pause to inquire. \Vith this possible exception the above statement is correct, and affords the true explanation of the necessity for considering how much money in English currency the defendants ought to pay the plaintiff. If the defendants were within the jurisdiction of any other civilized State and were sued there, as they might be, the courts of that State would have to deal with precisely the same problem, and to express in the currency of that State the amount payable by the defendants instead of expressing it in Mexican dollars. If this be the true explanation of the necessity for expressing in English money what the defendants ought to pay, it follows that such necessity does not arise until the court orders payment. But it does not follow that the sum to be inserted in the order is the equivalent at that time of the moneys payable by the terms of the contract, for the defendants may be liable, not only to pay those sums, but also damages in the shape of interest or otherwise for not having paid them at the proper time. The obligations, if any, of the defendants in this respect must be determined before the amount for which they arc liable can be calculated and expressed in any order for payment. The foregoing considerations furnish the

principles on which the present case must be decided; and that principle.


was clearly expressed by Lord Eldon in Oaali v. Kermion (ll Ves. 314). At p. 316 he sai : “I cannot bring myself to doubt that wherea man agrees to pay £l00 in London on the 1st of January he ought to have that sum there on that day. If he fails in that contract, wherever the creditor sues him the law of that country ought to give him just as much as he would have had if the contract had been performed.” The application of this principle to various circumstances is illustrated by other decisions (a._q., Oockerell v. Barlnr (16 Ves. 461), Scott v. Bevan (2 B. 8: Ad. 78), Bertram v. Duluzmel (2 Moo. P. C. 212)); but it is unnecessary to refer to them at length, and I pass to the facts of the present case. It must be borne in mind that for two years - after Morison‘s death he had no legal personal representative to whom the defendants could pay anything. During all that time the defendants did not break their contract in not making the payments which they had agreed to make, and, there being no breach of contract, damages for non-payment during that time are out of the question. Moreover, there is no evidence that interest is payable by the law of Mexico on debts in respect of which there is no contract to pay interest, as is the case here. When in May, 1896, the plaintiff became Morison’s administrator he became entitled to demand from the defendants, first, payment at once in Mexican dollars of all arrears due under the contract ;'secoudly, payment in future, in Mexican dollars, and at the stipulated times, of the amounts which should thereafter become due under the contract. Failure by the defendants to make these payments would be breaches by them of the contract, and would expose them to claims for damages in some shape or other. How these damages would have to be ascertained by an English court if it became necessary to assess them is a question of some difficulty, as will be seen by turning to Stary’s Conflict of Laws (sections 308 at seq) and Sedgwiclr on Damages (3rd ed. p. 250). But, for reasons which I proceed to state, I am of opinion that no claim by the plaintiff to damages in any shape can be supported in the present case. The order of the 4th of November, 1897, was the judgment on the trial of the action, and it limits the right of the plaintiff‘ to an account of what is due to him from the defendants under their agreement with Morison. This judgment excludes all claim to dimsges for non-payment of particular sums charged against the defendants in taking the account. If the plaintiff wanted to charge tho defendants with damages in taking the account he should have obtained some declaration or inquiry entitling him to such damages. Before the Judicature Acts no one ever heard of investigating damages in taking an account in Chancery of money due under a contract. Since the Judicature Acts damages can be given in the Chancery Division where they could not have been given before; but even now a judgment or order for an account of what is due under a contract does not involve an inquiry as to damages in taking the account. The absence from the judgment of the 4th of November, 1897, of any declaration or inquiry as to damages is easily explained by the long delay in obtaining letters of administration to Morison's estate, during which time no damages could be payable by the defendants; but even as to damages since the plaintiff obtained letters of administration the judgment pronounced is fatal to the plaintiff's first contention, that he is entitled to have all sums payable by the defendants turned into English money at the times when those sums became payable according to the terms of the contract. Such a contention can only be supported on the theory that the defendants are liable for damages for default in payment. To substitute English money for Mexican dollars every time a payment ought to have been made is not to take an account of what is due under the contract, but to give damages for every breach of it which the plaintiff can prove that the defendants committed, which is a totally different matter. Even as regards the balance of 19,366 dols. found due to the plaintiff, I sec no grounds for awarding him damages for the non-payment of that sum before it was ascertained. The plaintiff urges that it now appears that this sum ought to have been paid on the 31st of August, 1896; but how could it have been paid then when no one then knew what the amount payable was? '.[‘he sum in question is the balance due on taking the whole account. Under the judgment of the 4th of November, 1897, the defendants are not chargeable with damages for delay in accounting, any more than they are chargeable with damages for not punctually paying snms properly placed to their debit in taking the account. Moreover, no undue delay in accounting was proved, so far as we know. As soon as the balance was ascertained the defendants offered to pay it to the plaintiff either in Mexican dollars or in English currency equal to their then value, as the plaintiff might prefer. This offer the plaintiff declined. In my opinion the defendants have been in the right throughout in this particular controversy, having regard as we must to the terms of the contract and to the judgment of the 4th of November, 1897, which is not appealed against. The appeal, in my opinion, fails, and ought to be dismissed with costs.

Rronr, L.J., gave judgment to the same effect. _

Vaooiuu \Vn.r.ums, L.J.-The only question argued before us in this case has been as to what is the proper mode of taking the account ordered in an action brought in this country by a creditor to have an account taken of moneys payable abroad by the defendant in foreign currency, whether such account should be taken on the relative values of the English and foreign currencies as of the date of taking the a"count, or as of the dates when the debts became payable, or as of some other and what date or dates. It was not questioned on either side but that the total debt ordered to be paid after taking the account must be expressed in English currency and that the amount in English currency must be arrived at by the real value in English currency of the foreign currency nt the place where payable as a purchasable commodity—i.e., in practice, according to the rate of exchange existing at the particular time between the currencies. The only question has been as to what that particular time was. Now I


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will first consider the question irrespective of the form of action. It seems clear that, in an action in whatever form in the English Courts for the recovery of a debt payable in foreign currency, the amount of the English judgment or order must be expressed in English currency, and that, unless the rt lative values of the respective currencies are fixed by statute or some authority binding the English courts or by the agreement of the litigants, the amount of the English judgment or order must be based on the quantity of English sterling which one would have to pay here to obtain in the market the amount of the debt payable in foreign currency delivered at the appointed place of payment-—i.e., the amount payable according to the rate of exchange. It seems plain that this mode of computing tho value of foreign currency in English sterling and that converting tho one currency into the other is based upon damages for the breach of contract to deliver the commodity bargained fgr at the appointed timed and place, and, if this is so, it follows that the date as of which that value'must; be ascertained is the date of the breach, and not the date of the judgment. If this is the general rule in actions for the recovery in English courts of sums payable abroad in foreign currency, I see no reason why a different rule should be applied in a case where the form of action is, as it is in this case, an action for an account. It may be that in the present case it might have been troublesome to ascertain the dates at which the various sums payable as commission in dollars became payable, but this would not, in my j udgment, have been a sufficient reason for fixing the amount of the result of the account in English sterling according to the value of the dollars at the date of the completion of the taking of the account. This dilliculty, however, does not arise in the present case, because the plaintiff is willing that the value shall be taken of the dollars as on the 31st of August, 1896, the date as of which the defendants in fact rendered their account, including all the sums now claimed by the plaintiff. I think that the order of Kekewich, J., ought to be annulled by declaring that the plaintiff is entitled to have the amount of Mexican dollars, found to be due by the account of the {list of August, 1896, converted into English money sterling at the rate of exchange prevailing between the said currencies on that day. It seems to me that to hold otherwise would make the plaintilf’s remedy for the recovery of what is duo to him differ according to the form of procedure and according as he brings his action in the Queen’s Bench Division or in the Chancery Division. Appeal dlSl11lSS€d.—CJUNSEL, Henry Terrell, Q,.C., and 0:05! Walsh ; Remliaw, Q.C , Bzrdswell, and Tanm-r. Soniciroas, Angova §- Bromwicli; Jaqim 5- 00., for Samuel Wright 4- Co., Bradford.

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This case raised the question whether under the present practice of the Probate Division a husband by proving his wife's will has thereby assented to the dispositions therein contained. Mrs. Atkinson, the lady in question, died in February, 1892, having by her will dated the Gth of May, 1880, appointed her husband executor thereof, and after bequeathing a legacy of £10,000 to the next-of-kin of Lavina Waller bequeathed the residue of her property to her husband. At her death Mrs. Atkinson was interested in certain personal property, but had no power of disposition of it by will without the assent of her husband. an. Atkinson proyed the will in May, 189}, in accordance with the present prsc ica 0 the 1’ro a e i\'ision—t at is to say, administration was granted to him in general terms, without any limitation. This was an application by originating summons by the next-of-kin of Lavina \Valler against Mr. Atkinson asking for payment of the said legacy of £10,000, the contention on the part of the plaintiff being that by proving the said will Mr. Atkinson had assented to such legacy.

STIRLING, J ., stated that under the practice which formeily prevailed in the Probate Court with reference to the wills of married women it was necessary that two grants should be made-first of all, to the executor named in the will probate was granted limited not only to such property as the testatrix had a right to dispose of, but also to such property as she had disposed of by her will; and secondly, a grant of administration ueterorum was made to the husband. Aftcr the passing of the Married \Vomen's Property Act, 1882, this practice was found to be inconvenient, and in the year 1887, first by the decision of Butt, J., in Re I’ri¢'e (35 \V. R. 596), and 8[l'»(1'W8l‘dB by a rule passed on the 29th of March, 1887 (set out in 31 Soi.ici'roiis' Jot'iii~uti., at p. 409), the practice was altered, and under such altered practice the Probate Division now requires the executor to take administration in the general form. Although it was established in E: parts Fane (16 Sim. 406) that under the old practice probite in general terms by the husband operated as an absolute assent by the husband, yet the Court of Appeal in Smart v. Trrmfer (38 W. R 530) held that the new practice does not alter the rights of parties. His lordship therefore came to the conclusion that as a husband has now no choice, but is compelled to take administration in general terms, the husband ought not by so administering to be deemed to have thereby assented to the dispositions of the Wlll.—COUNBEL, Bull-Iur, Q.C., and Helholll; Jen/sins, Q C., and Slewarl Smith. SOLICITORS, Learayd, James, §~ .d{ello'r, for llmroyd §- 00., Huddersfield; Dusk, lllellor, 4- N01-1-6.1, for Sale, 18:1/J9", Q Co., Manchester.

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This was a summons which raised the question as to whether executors and trustees could, in the absence of an express power, make an effectual appropriation of any portion of a testator’s estate. The facts wereas follow: The testator, Christopher Nickels, gave all his residuary estate to his trustees upon trusts for sale and investment and to pay an annuity to his wife during her life. Then he directed ope-half of one-sixth to be invested and accumulated for twenty-one years, an uring a period to pay the income of the other halt to his son Edward Nickels, and after the expiration of the twen y-one years to pay the income of the whole to Edward N ickcls for life, and after his death to his widow, and after her decease upon trust to tl'8l1Bfcl.' the capital of the trust funds to the children of Edward Nickels who attained twenty-one in equal shares. Then came a power of maintenance and also a power to advance to any child of Edward Nickels a share not exceeding one-half of the presumptive share to which such child would be entitled. The testator also empowered the trustees to apply for the benefit of Edward Nickels any portion not exceeding o - t his sixth shar . Then came similar trusts and provisions as to four o er ix es for the benefit _of_the testat/or’s other sons. The remaining ggkgigth was given upon similar trusts for the benefit of the testator’s aughter and her children, except that there was no power to apply one-half of the daughter's share for her own benefit. The trustees were further empowered to apply any portion not exceeding gne-third part of the share or shares of the trust fundto the income of w c any of the testator’s £1! children should be entitled, for or tiiwiids putting him, her, or them in business, or otherwise advancing him, her, or them. The testator died in 1860. The period_ot accumulation came to an end in 1881 and tho sons and daughter applied for advances. The sons received one-half of one-sixth and the daughter one-third of one-half of her sixth. The trustees also set aside £300 London and Greenwich 5?; per Cent. Ordinary Stock, and £1,053 London, Chatham, and Dover 4} per Cent. Debentures, and paid the income on these stocks to the daughter during her life. In the trustees’ cash book these stocks were entered as “allotted to Mrs. Morton as the balance remaining two-thirds set aside for her children." Under the powers in the will the trustees made advances to the children of the sons and the daughter. The advances to the daughter's children were all made_o_u_t of the Greenwich Stock. On the daughter's death her share became divisible and a question was raised whether these stocks had ‘been validly appropriated towards her share.

STIRLING, J ., held that the trustees had in fact intended to appropriate these stocks towards the daughter's share, and continued: The question is whether ityaa within the powers of the executors and trustees tomake this appropriation. No authority has been cited to shew that it was not within their power. What is relied on is a statement in Lewin on Trusts, 9th ed., at p. 667. Now, that statement is merely to this effect, that where there is no express power to appropriate trustees will not act wisely in making any appropriation without the sanction of the court. But the qiestion here is, suppose a trustee does make the appropriation, istlie appropriation bad? In Lewin it is said that it is, but it is also said that the court can make the appropriation, and that seems to me to support the view that the trustees csu, because the court cannot altert e rights of the parties. But beyond that there are two cases which support the view that the trustees have power in a proper case to make a specific appropriation. The first is Re Lrpiue (1892, 1 Ch. 210, 40 W. B. puz89),and the second is Rs Richardson (it XV. R. 279; 1896, 1 Ch. ail?)What was done here was that the trustees set apirt a certain amount of the estate to put the daughter and her children on the same footing as the sons. It seems to me that they have done that in fact, and that it was in their power so to do. I think, therefore, tint the appropriation was g0Od.—GOUNSBL, Coldridga; Rawden; Galey; 8lt'lt‘fl7'l Smith; Iiuckmasllr. Soniciroas, E. G. Suimdn-.r,' T. W. Hall; Douglas-Norman 4" Co.

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On the 31st of October, 1876, a house in Wcllclosc-sqiiare, Middlesex, was leased by M. A. K. Harding to Thomas Serle (since deceased) fol‘ forty-one years, at a yearly rent of £19. The lease contained a coveuflfli by the lessee to well and sufficiently repair, uphold, and keep the premisel. and all improvements and additions, and all and cvery party and other walls and posts, &c., and other appurtenances, &c., with ail needful and necessary reparations, &c , when, whore, and so often as occasion should require. And in every third year of the term to paint all the outside wood and iron-work belonging to the premises ; and also, within the first seven years of the term, and within every subsequent seven years thereof, paint in like manner and whiten all the internal parts where ususlll painted and whitened. The lease also contained a proviso for re-entry fol‘ breach of the covenant to repair if the lessee should fail within tl11‘@° months to remedy the breach. On the llth of August, 1893, the reprosentatives of the lessor, in pursuance of the Conveyancing Act, 1881, 8- 14 (1), served the following notice on the administrators of the estate 0! Thomas Serle, deceased: " We hereby give you notice that you hsvfl committed breaches of the covenant contained in the said lease. I<_‘lrst, that you have not kept the said premises well and suili.-icntly l'6pBl1di and the party and other walls thereof; secondly, that you have apt painted the outside wood and iron-work in every third year of the slid


term; thirdly, that you have not, within each seven years of such term,

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