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shifting property would be void as against the policy of law, OPTIONS TO PURCHASE IN LEASES AND THE RULE whether for remoteness or otherwise, a contract tending to AGAINST PERPETUITIES.

II.

In the last number it was submitted that covenants in a lease giving the option of purchasing the reversion are not exempt from the rule against perpetuities; and the reasons for holding this opinion were stated. We will now consider one or two subordinate points connected with the same subject.

Taking as our text a lessor's covenant contained in a lease for more than twenty-one years (independent of life) and giving to the lessee an option to purchase the reversion, it has been submitted that if the covenant give the option of purchasing from the lessor, without mention of his heirs or assigns, it is personal to him and enforceable in his lifetime only: Stocker v. Dean (16 Beav. 161). Such a covenant, therefore, does not offend against the perpetuity-rule. So also if the option be given to the lessee only, without mentioning his executors, administrators, or assigns. But if the covenant give to the lessee, his executors, administrators, or assigns the option of purchase from the lessor, his heirs or assigns, is it enforceable, either specifically or in damages, against the original covenantor? The case would seem to fall within the well-settled principle that, where some of the stipulations in a contract are illegal and others legal, then, if the stipulations are severable, the legal part of the contract may be enforced: Mallan v. May (11 M. & W. 653); Price v. Green (16 M. & W. 316); Nicholls v. Stretton (10 Q. B. 346). If the lessor covenant that he, his heirs or assigns, will sell, why should not the stipulation that he himself shall sell be separated from that which purports to bind his heirs and assigns? If so, the covenant, as regards this stipulation, must be performed (if at all) in the covenantor's lifetime: see Stocker v. Dean; and should therefore be enforceable against him specifically, or a breach by the covenantor himself should give rise to an action for damages. This contention appears to be further supported by the doctrine under which a gift over, following a limitation void for remoteness but expressed to take effect in one of several alternative events, of which some conform to and others offend against the perpetuity-rule, is held to be severable and to be valid, if the event conforming with the rule be that which happens see Longhead v. Phelps (2 W. Bl. 704), Evers v. Challis (7 Ĥ. L. C. 531), Miles v. Harford (12 Ch. D. 691, 703, 704), and 1 Jarm. Wills, 5th ed., 255-259.

But supposing there be no breach of such a covenant in the original covenantor's lifetime, is a breach by the covenantor's heirs or assigns a good cause of action on the covenant? If so, the covenantor's heir or devisee refusing to perform the covenant might find himself liable to an action on the covenant. It has been previously submitted that the covenant would not be specifically enforceable against such heir or assign. And it is further submitted that such a covenant, in SO far as it tends to create a perpetuity, is against the policy of the law and is therefore altogether void. In Hope v. Corporation of Gloucester (7 De G. M. & G. 647) it was held that a covenant to renew a lease, after the expiration of a term of thirty-one years, in favour of a person who would not necessarily have any interest as lessee under the old lease, was not only not specifically enforceable, but invalid, as creating a perpetuity. And that great master of the common law, PARKE, B., in delivering his opinion in Egerton v. Brownlow (4 H. L. C. 1, 125, 18 Jur. 71, 85) gave the following instances of contracts void for illegality, as being against the policy of the law: "There are other cases in which contracts or provisoes have been held to be illegal on principles long recognized by the common law, such as marriage brocage bonds, conditions or contracts not to marry, in restraint of trade, against alienation of land, including those violating the law of perpetuities." These authorities appear to be directly in point. The case is, moreover, analogous to that of an unlimited covenant never to assign land, which appears, according to the better opinion, to be void as against the policy of the law see 1 Smith L. C. 185, 2nd ed., 419, 10th ed.; Poole's case (cited Moore 810), Jervis v. Bruton (2 Vern 251, Co. Litt. 379 (b), Butl. note), McLean v. McKay (L. R. 5 P. C. 327, 334). And it is submitted that, generally, the principle laid down by PARKE, B., is correct; and where a proviso

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produce a like effect is equally void, and vice versa. An instance of this is afforded in the case of contracts and conditions in Law Quarterly Review xii. 36, where the authorities are general restraint of marriage: see Low v. Peers (Wilmot 364), collected. T. CYPRIAN WILLIAMS.

THE LAND TRANSFER RULES.

X.

Part III. (continued).—Adaptation to incumbrances prior to regis tration, and to sub-mortgages, of the provisions of the Act of 1875 with regard to charges.-Rules 118 to 123, which are made pursuant to section 22 (6) (e) of the Act of 1897, appear to be well devised for carrying out the objects in view. Thus where registration is made subject to incumbrances, those incumbrances when entered on the register will thereafter be dealt with as if they had been originally created by means of a registered charge. Where, however, the incumbrance is of such a nature that it cannot readily be given effect to by means of a registered charge, it is conceived that notice of the incumbrance in the case of an absolute title will be entered instead of registering it, and the incumbrance will continue to be dealt with off the register. The consent of the incumbrancer is requisite to its registration, and notice is to be given to the registered proprietor of the land of the application to register. Inasmuch as the registration of a proprietor with a possessory title does not affect incumbrances existing at the date of registration, notwithstanding no notice of them is entered on the register, it is apprehended that, as a general rule, such incumbrances will not be registered. The power for the registered proprietor of a charge to create a sub-charge (rules 121-3) which will entitle the sub-chargee to have a certificate, is new, and undoubtedly supplies a want.

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Transmissions of land and charges on death. The personal representative of a sole or sole surviving registered proprietor of land or a charge dying after 1897 is to be registered on production of probate or letters of administration. He is to be described as " executor (or administrator) of deceased," and if an executrix or administratrix is a married woman that fact is to be stated. The last provision is probably due to the inability of a married woman trustee to pass the legal estate in freeholds except with the concurrence of her husband and by a deed acknowledged: Re Harkness and Allsopp (1896, 2 Ch. 358), This decision would not, we conceive, apply to registered land in any other case than that of an executrix so far as regards dispositions on the register, as a transferee for value would have no notice of a trust (Act of 1875, s. 83 (1), as amended).

Personal representatives can transfer without being themselves registered (Act of 1897, s. 9 (6)), but the transfers cannot be registered until the personal representatives shew a title to be registered to the satisfaction of the registrar (rule 144). A form of assent to a devise by a personal representative is prescribed (First Schedule, Form 42). There may be a doubt whether a married woman executrix can assent without the concurrence of her husband. Two of the rules bear the number 127, the second of them deals with registration when a settlement is created by the will of, or otherwise arises in consequence of, the death of a sole registered proprietor. The personal representative is at the proper time, with the consent of the tenant for life (if of full age), to deliver at the registry a written application for the registration of a proprietor with proper restrictions and inhibitions. "The proper time" would seem to be one year from the death (Act of 1897, s. 3 (2)) or as soon thereafter as the estate is wound up. We conceive that no conveyance to uses need be executed by the personal representatives, as their assent to the registration of the tenant for life operates as an assent to the gifts in remainder: Stevenson v. Mayor of Liverpool (L. R. 10 Q. B. 81). A tenancy by the curtesy would seem to be an instance of a settlement arising in consequence of the death of a registered proprietor.

On the death of a tenant for life who is a registered proprietor, the Settled Land Act trustees are to apply for the registration of the next remainderman (Act of 1897, s. 6 (4)). They and

their solicitor are to make a statutory declaration as to the state of the settlement, and as to the proper restrictions and inhibitions to be placed on the register, or that none are necessary (rule 128). The registrar may require a certificate of counsel to support the declaration (rule 129). Where a declaration and certificate (if required) are produced, the registrar is not to require production of the settlement or any further evidence (rule 139). On the death of one of several joint proprietors, his name is to be withdrawn from the register on production of a certificate of death or probate or letters of administration with evidence of identity by statutory declaration, or such other evidence as the registrar may deem sufficient in each case (rule 132). Bankruptcy. The rules contain provisions for the registration of the official receiver or of the trustee in bankruptcy (rules 133 to 135). A transferee for value from the bankrupt before registration of the official receiver or the trustee will obtain a good title (Act of 1875, s. 30). In the case of a company in Hiquidation, any resolution or order appointing a liquidator may be filed and referred to in the register (rule 136).

Covenants for title.-The covenants for title under the Conveyancing and Law of Property Act, 1881, may be introduced into instruments of transfer or charge (rule 139). Instruments of transfer and charge are, however, retained at the registry (rule 153), so that where an acknowledgment and undertaking as to title-deeds is given, it should be taken separately. It may be doubted whether the implied covenants for title will be held to extend to matters which are declared not to be incumbrances by section 18 of the Act of 1875. To avoid the doubt, the form of transfer should contain an express declaration that the covenants for title are to apply.

Part IV-Minor entries in the register.-The Acts give no power for the registered proprietor, as such, to grant a lease by registered disposition or otherwise; notice of a lease where the term is for life or lives or exceeds 21 years, or where the occupation is not in accordance with the lease, may be entered on the register and operates as an incumbrance (Act of 1875, s. 50). In cases where an intending lessee investigates the title of his lessor (eg, where a fine is taken), he will require, in the case of an absolute title, the title off the register to be shewn since the last registered transfer for value, and in the case of a possessory title, in addition to that required in the case of an absolute title, an abstract of title to rights and interests paramount to the fee simple conferred by first registration. We conceive that an instrument creating a term to secure portions is a lease where the occupation is not in accordance therewith, so that notice of the term may be entered up.

Provision is made as to notice of a lease (rules 157-8). The notice in the register is to refer to a filed copy of the lease and is to give the term, and may include such other short particulars as may be conveniently entered.

Where the lease confers a right of pre-emption, this is to be noted in the register; as to whether such right of pre-emption or option to purchase must be limited in compliance with the rule against perpetuities, see ante, p. 628. Agreements for leases are on the same footing as leases (Act of 1875, s. 50; rules 157160). The original lease or agreement is to be marked with a note of the entry and is to be returned to the lessee.

the firm in 1867. For many years Mr. RowCLIFFE carried on the large Common Law business of the firm, and amongst several wellknown cases in which he was concerned were the Wyndham Lunacy case, which lasted over thirty days; the litigation which arose out of the American Civil War, including the flight of The Alabama; the the seizure of the Rams under the Foreign Enlistment Act, during Alexandra case, which went to the House of Lords; the question of the American Civil War; and the case of the Attorney-General v. Ryves, which involved a serious claim under the Legitimacy Declaration Act affecting the Crown.

In 1864 Mr. ROWCLIFFE purchased the Hall-place Estate, near Cranleigh, in Surrey. This estate he gradually extended and improved till at the date of his death it consisted of upwards of 1,000 acres, and the whole of this he farmed himself, taking a very keen interest in everything connected with agriculture. Besides being a member of the Royal Agricultural Society and the Bath and West of England Agricultural Society, he was a member of the local agricultural societies, at whose meetings and dinners he was a regular attendant and a speaker whose remarks were always listened to with great interest. He was also a subscriber to all the local charities and institutions, and had, in fact, arranged to preside at the annual dinner of the West Surrey Benefit Society on the 26th inst. At his own cost he erected two fountains, one in the village of Hascombe and one near the estate on the Guildford and Horsham road, which proved a great benefit to the neighbourhood. In politics Mr. ROWCLIFFE was a Liberal, but after the Home Rule split became a Unionist. He was appointed a magistrate for Surrey in 1880, a deputy-lieutenant in 1895, and he served the office of high sheriff for that county for the year 1895-6. He was a member of the Surrey and Middlesex Society, the Union and Devonshire clubs, the Surrey Magistrates and Guildford County Club, and director of the Law Fire Insurance Society, the Legal and General was a parish councillor of his parish of Hascombe. He was a Life Assurance Society, and the Law Reversionary Interest Society. He was also a member of the Incorporated Law Society and the Solicitors' Benevolent Association.

Mr. ROWCLIFFE was a staunch Churchman, and when at Hallplace was a regular attendant at Hascombe Church and a keen supporter of the rector.

Mr. ROWCLIFFE married in 1853 Caroline, daughter of the late Mr. CHARLES BAILEY, of Lee Abbey, Lynton, North Devon, and her death, eighteen months ago, proved a severe shock to him. He left Park Mr. and Mrs. ROWCLIFFE entertained a large circle of friends, no family. Both at Hall-place and at his London house in Regent's by whom, as by his relatives, his loss will be greatly felt. Mr. ROWCLIFFE was buried on Thursday, the 7th inst., in the beautiful churchyard of Hascombe, Surrey, by the side of his wife, the officiating clergy being the Archdeacon of Surrey, Canon MusGRAVE (the rector of the parish), and the Rev. Dr. MERRIMAN, rector of Freshwater, Isle of Wight. The funeral was attended by a vast concourse of people of all classes, including numerous friends from London; amongst those present, in addition to the mourners (who were the deceased's only surviving brother Mr. WILLIAM ROwCLIFFE, his nephews Messrs. WILLIAM CHARLES, EDWARD LEE, and HENRY SKIRROW ROWCLIFFE, Mr. RAWLE, General Sir EDWARD WILLIAMS, K.C.I.E., and Mr. HENRY SPARKS), being the High Sheriff of Surrey, Sir R. E. WEBSTER, A.G., Q.C., M.P., and Miss WEBSTER, Sir JOHN WHITTAKER ELLIS, Bart., Sir JOHN GOLDNEY, Mr. H. R. GRAHAM, M.P., Mr. J. HEYWOOD JOHNSTONE, M.P., General ERSKINE, Mr. and Mrs. F. E. EASTWOOD, Colonel WESTON, Mr. SKEWES Cox, M.P., Admiral MACLEAR, General STEWART, Colonel GODWIN AUSTEN, Captain FISHER ROWE, Captain HASTINGS (Chief Constable), Mr. E. C. HEALEY, Mr. CHADWYCK HEALEY, Q.C., Mr. T. T. METHOLD, Mr. CHARLES MUSGRAVE, Mr. G. F. GREGORY, Mr. ROGER GREGORY, Mr. JOHN DIXON, and many others, while many other friends were unable to attend.

A correspondent, who has had the best means of judging of the late Mr. RowCLIFFE's powers of work, has sent us the following THE LATE MR EDWARD LEE ROWCLIFFE. observations: Mr. E. L. RowCLIFFE was a "master" in every way, MR. EDWARD LEE ROWCLIFFE, to whose sudden death we briefly re- but a thoroughly good-hearted one. In his early days at Bedfordferred last week, was the second son of the late Mr. CHARLES Row-row the amount of work he got through was phenomenal. And he CLIFFE, J.P., of Stogumber, and afterwards of Milverton, Somerset, retained to the end this marvellous power of grasping and dealing himself a solicitor. He was admitted in 1847, and after working for with difficult and complicated matters in a very short space of time. some years as a managing clerk at No. 1, Bedford-row with the firm Although he rarely left his own room when in the office, one always of Gregorys, Faulkner, & Skirrow, in 1854 became a partner in the knew, without asking, whether he was there or not. If he was firm, the title of which then became Gregorys, Skirrow, & Rowcliffe, there, everything and everybody about him was going at the highest his younger and sole surviving brother, Mr. WILLIAM ROWCLIFFE, possible pressure. Everyone who came in contact with him felt now the head of the firm of Rowcliffes, Rawle, & Co., becoming a bound to do his utmost; and you would rather do anything than fail partner in 1860 upon the death of Mr. JOHN SWARBECK GREGORY, in accomplishing what he expected to be done. He was thoroughly the then senior partner and the father of the late Mr. GEORGE warm-hearted, and fully-appreciated good work from his staff, by BURROW GREGORY, so long M.P. for East Sussex. On the retire- whom he was very greatly esteemed. On the first day of last ment of Mr. CHARLES SKIRROW in 1861, in order to take up his year, on his recovery from a severe illness, a basket of flowers was appointment of Solicitor to the Admiralty, the whole business sent to him from the clerks at No. 1, Bedford-row, accompanied by devolved on the late Mr. G. B. GREGORY, the late Mr. ROWCLIFFE, a note containing their "respectful and earnest wishes for his and his brother Mr. WILLIAM ROWCLIFFE, until Mr. RAWLE joined speedy recovery and for a happy new year." In reply Mr. Row

CLIFFE wrote: "Words fail me to thank you for the very beautiful present you have sent me and for the feeling which dictated it, and the affectionate good wishes that accompanied it. I have been among you now over fifty years, and it is one of the greatest pleasures of my life to recall the many mutual kindnesses which have passed between us during that time, and I sincerely share the hope you so warmly express that we may yet be spared to one another for at least some years to come."

REVIEWS.

INSURANCE.

THE LAWS OF INSURANCE: FIRE, LIFE, ACCIDENT, AND GUARANTEE. EMBODYING CASES IN THE ENGLISH, SCOTCH, IRISH, AMERICAN, AND CANADIAN COURTS. BY JAMES BIGGS PORTER, Barrister-atLaw, assisted by WILLIAM FIELDEN CRAIES, M.A., and THOMAS SHEPHERD LITTLE, M.A., Barristers-at-Law. THIRD EDITION. Stevens & Haynes.

This book contains a statement, clear in form and concise in language, of the various classes of insurance other than marine insurance. Save in the case of life and accident insurance, indemnity is the principle which underlies the contract of insurance. This principle, which is explained in the first chapter, carries with it the result that if, after receiving payment from the insurer, the insured is reimbursed from another quarter, he must repay the insurer. In other words, he cannot use his policy so as to turn his loss into a profit. Under Rayner v. Preston (18 Ch. D. 1) it seemed possible that the vendor of a house which is burnt down after the sale might be in this fortunate position, but Castellain v. Preston (11 Q. B. D. 380) quickly deprived him of his advantage and brought out the insurance office unhurt. The person who really required protection was the purchaser who had omitted to insure. As Mr. Porter points out in the chapter on fire policies and assignments, the law on this point is not satisfactory. Not withstanding the reasons adduced by James, L.J., in Rayner v. Preston, the courts have declined to hold that the policy runs with the land. The French law, Mr. Porter says, is otherwise. There the policy is deemed to be accessory and to pass with the property. This rule is the only one that affords proper protection to purchasers, for it is usually impracticable for the purchaser to insure on his own behalf immediately the contract of purchase is made. The second chapter deals with the important question of insurable interest. The Life Assurance Act, 1774 (which Mr. Porter, notwithstanding its new title, still refers to as the Gambling Act) requires the existence of an insurable interest as the basis of a contract of insurance, but it was left for the courts to decide what an insurable interest might be. From this point the various matters incident to policies of insurance are taken up in detail and are succinctly dealt with. The chapter on lien refers to several cases of interest which have been decided of recent years as to the rights of persons who make payments for the purpose of maintaining policies. The rules on the subject were formulated by FRY, J., in Leslie v. French (31 W. R. 561, 23 Ch. D. 552), and his statement of the law appropriately forms an introduction to the chapter. The history of some of the earlier life insurance offices raised important questions on the doctrine of novation, and the chapter assigned to this subject is copiously illustrated from the decisions in the European and Albert arbitrations. The book is a useful and trustwortby manual of insurance law.

BOOKS RECEIVED.

The Employers' Liability Act, 1880, and the Workmen's Compensation Act, 1897; together with the Statutes affecting these Acts. Also the Rules of Procedure thereunder, and Forms. By ALFRED HENRY RUEGG, Q.C. Third Edition. Butterworth & Co.

CORRESPONDENCE.

SERVICE OF PROCESS IN SCOTLAND,

[To the Editor of the Solicitors' Journal.]

Sir, With reference to your comments in the last issue of the SOLICITORS' JOURNAL on the report of the Special Committee of the Incorporated Law Society on Legal Procedure, perhaps I may be allowed to mention a case of great hardship on an English litigant which recently came under my notice.

A client of mine, an English woman resident in England, while travelling on a local English railway, suffered serious injury through the negligence of the company, and I was instructed to bring an action for damages. The company was originally a purely English one, and the railway is wholly situate in England. It was afterwards

leased to one of the large Scotch companies whose southern terminus is in England, the Scotch company paying the shareholders of the English company dividends dependent on those of the Scotch company. The principal office of the amalgamated companies is in Scotland, and the secretary is resident there. A writ was issued, the English solicitors of the companies undertaking to accept service.

On subsequent instructions, however, they declined to act, and an ex-Solicitor-General advised that in order to proceed with the action the secretary of the companies must be served in England. This was impracticable, and my client was too poor to proceed in Scotland. The result was, she was compelled to compromise the claim on terms much less favourable to her than there was every reason to expect she would have obtained at the hands of an English jury. G. July 11.

REGISTRATION OF TITLE.

[To the Editor of the Solicitors' Journal.]

Sir, I have read with great interest the articles on the Land Transfer Rules which have appeared in your recent issues, but there is one important point to which I should like to invite attentionviz., the assumption, prevailing throughout, and particularly in the second article, that the statutory fee simple is not the legal estate. This assumption seems to me incompatible with the rule, referred to in the sixth article, that there cannot be two common law fees existing in the same land. Moreover, it seems to me that an estate conferred by statute must be a legal estate, being one which, before the Judicature Acts, would have been recognized by the common law courts. For this reason I should contend that any legal estate existing before registration becomes vested in the registered proprietor even where he is a mortgagor who has executed a legal mortgage and is registered with a possessory title only, the mortgagee being relegated to the position of a proprietor of a registered charge—viz., the possessor of a power only and not of an estate. This view seems to be confirmed by the fact that rule 97 specially provides for the case of a registered proprietor refusing to execute a transfer to the purchaser from the mortgagee-a provision which would be unnecessary if the latter had the legal estate. Further confirmation is afforded by the fact that a purchaser can be registered as proprietor without taking a conveyance or transfer, and that no express power to lease is given to a registered proprietor. These facts are only defects on the supposition that registration does not vest the legal estate. I shall be glad to have this view confirmed by some other reader. Manchester, July 13. JNO. T. LINGARD. [See observations in "Current Topics."-ED. S.J.]

THE INCORPORATED LAW SOCIETY. [To the Editor of the Solicitors' Journal.] of the 9th instant, and particularly to the third paragraph thereof, I Sir,-Adverting to the letter of Mr. C. H. Morton in your issue still submit that the practical effect of the Council's openly nominating candidates is to render the Council co-optative.

Whilst making full allowance for what Mr. Morton says, it is apparent the effect must be as I say, because it must necessarily follow under such a system that the chances of success of members of the society who are desirous of having a seat on the Council, but who are unable to secure the support of the Council, are very seriously prejudiced by that fact alone, besides having the whole strength of the Council opposed to them.

The fewness of the independent candidates who present themselves for election seems to confirm my view that it requires more than ordinary courage on the part of would-be candidates to present themselves to the electorate without the official stamp of approval. July 13. M.A. OXON.

The Albany Law Journal gives the following incident which occurred during the examination of a witness: "Were you in the house?" asked Assistant United States Attorney Harry Bone in court at Topeka of an old fellow who was on the witness stand in a criminal case from the Fort "Were

room ?"

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Riley military reservation. "I were," responded the witness. you in the room where these prisoners were dividing the stolen goods?" "No, I were in the other room." "What were you doing in the other Well, I was tol'ably busy." "Mr. Martin, that is not an answer to my question. I want you to tell the court exactly at what you fits, and I were in thar havin' one.' were busy." "Well you see, mister, I am subject to them 'ar epilemtic And then Judge Foster rapped should think having fits was about the busiest work any man could engage sharply to bring the court-room to order and remarked on the side: in."

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CASES OF THE WEEK.

Court of Appeal.

Re CALCOTT AND ELVIN'S CONTRACT. No. 2. 11th July. BANKRUPTCY-ORDER OF ADJUDICATION-MIDDLESEX REGISTRY-DEED OR CONVEYANCE-PRIORITIES-MIDDLESEX REGISTRY ACT (7 ANNE C. 20)BANKRUPTCY ACT, 1883 (46 & 47 VICT. c. 52) ss. 20, 54 (4), and 121. This appeal raised the question whether an order whereby a man has been adjudicated a bankrupt under section 20 and 121 of the Bankruptcy Act, 1883, falls within the words "deed or conveyance" in the first section of the Middlesex Registration Act so as to require registration in the Middlesex Registry in order to perfect the official receiver's title to land of the bankrupt in Middlesex. Under an indenture of the 7th of February, 1881, certain leasehold properties in Maida Vale, London, were demised to Michael Death for forty-one years. By two indentures of mortgage dated respectively the 4th of September, 1894, and the 25th of December, 1894, the said Michael Death mortgaged the said premises to Calcott to secure moneys advanced by Calcott. These mortgages were respectively duly registered in the Middlesex Land Registry on the 10th of October, 1894, and the 29th of December, 1894. Michael Death made default and Calcott entered into possession of the mortgaged property, and, in exercise of the power of sale conferred upon him by the said mortgages, on the 16th of November, 1897, contracted to sell the premises to Elvin. Just prior to completion of such sale Elvin, the purchaser, ascertained that Michael Death was and had been since 1887 an undischarged bankrupt, having been adjudicated bankrupt by an order dated the 28th of January, 1887, made under section 20 of the Bankruptcy Act, 1883, and that on the 29th of January, 1887, an order had been made under section 121 of the same Act for the summary administration of his estate. By virtue of those orders the official receiver became Michael Death's trustee in bankruptcy. The official receiver had registered no memorial of his title to the said premises. In view of the above facts the purchaser refused to complete his contract. The vendor insisted that the official receiver not having registered his title, had no title as against the vendor's registered mortgages, and this summons was issued by the vendor asking for a declaration that notwithstanding Michael Death's bankruptcy in 1887 the vendor as mortgagee had a good title to the property. The summons was argued before Kekewich, J., on the 31st of March, 1898, when his lordship delivered his judgment and held that the title of the vendor was good by virtue of his registration, and was prior to the official receiver's, as he had not registered his title. The case is reported in 46 W. R. 457. The purchaser appealed from that decision. THE COURT (LINDLEY, M.R., and CHITTY and COLLINS, L.JJ.) allowed the appeal, and held that the order of adjudication in bankruptcy was not a deed or conveyance within the statute 7 Anne c. 20, and therefore did not require registration; that the official receiver's title was prior to that of Calcott, and that Calcott had therefore no title to the property in question.-COUNSEL, Rowden and Carrington; Warrington, Q.C., and Muir Mackenzie; Ingle Joyce. SOLICITORS, Percy C. Ray; G. L. B. Calcott; Solicitor to the Board of Trade.

[Reported by WM. SCOTT THOMPSON, Barrister-at-Law.]

case of Baines v. Bromley (29 W. R. 245, 6 Q. B. D. 197), we are unable to see any conflict in principle between them if attention is paid to the points really decided by them. There is no decision that a plaintiff who has to pay or to receive the general costs of an action can throw on his opponent, or have thrown on himself, any part of such costs. On the other hand there are decisions that no such apportionment can be made. In Baines v. Bromley and in Shrapnel v. Laing (ubi supra) the late Master of the Rolls expressed his opinion that costs common to both claim and counter-claim should be apportioned, and he suggested that even the costs of the writ might be so dealt with (see 20 Q. B. D. 339), because the defendant got the benefit of his counter-claim by means of the writ issued by the plaintiff. But Lord Esher was careful to add that it was unnecessary to decide such questions, as they did not arise. We will make another preliminary observation before examining the decisions more closely. We have not to consider how an order should be drawn up so as to give the general costs of an action in which there is a claim and a counter-claim to that party who recovers more than is recovered from him. It is unnecessary to consider such cases as Lowe v. Holme (31 W. R. 400, 10 Q. B. D. 286) and Lund v. Campbell (33 W. R. 510, 14 . B. D. 821). In such cases the judge who tries the action without a with a jury. In the present case judgment has been pronounced and jury has greater power over the costs than a judge who tries an action drawn up, and all we have to do is to construe and give effect to it. Whether an action is brought in one division of the High Court or another, whether it has been tried with a jury or without a jury, the construction and legal consequences of the judgment when drawn up must in principle be the same, although the costs to be taxed may be different in the one case from those in the other. Now let was take the There were some separate orders as to judgment in this particular case. costs, but it is unnecessary to refer to them. By the judgment as drawn up, the plaintiff has to pay the defendants the costs of the action; not some of them or some portion of them, but all of them. There are no separate issues in the action the costs of which have to be borne by the defendants. In considering what are costs of the action, the counter-claim, the action ought to be taxed as if there were no counter-claim. Whether as distinguished from the defence, ought to be disregarded. The costs of both parties fail (as in Saner v. Bilton, Mason v. Brentini, and Russell v. Russell, ubi supra), or whether both succeed (as in Baines v. Bromley, Ward v. Morse, Shrapnel v. Laing, and Hewitt v. Blumer, ubi supra), or whether one fails and the other succeeds, can in principle make no difference. This was pointed out and decided in Ward v. Morse (ubi supra); and Baines v. Bromley and Shrapnel v. Laing (ubi supra) in no way conflict with that decision. In Baines v. Bromley the defendant recovered on his counter-claim more than the plaintiff recovered on his claim, but the order gave the plaintiff the costs of the action and he was held entitled to them No question of apportionment was raised or decided, accordingly. although Lord Esher, in his judgment, stated what, in his opinion, ought to be done as regards costs common to both claim and counter-claim. Shrapnel v. Laing and Hewett v. Blumer (ubi supra) were precisely similar cases, and are open to precisely similar observations. In Finska v. ubi supra) the plaintiff recovered on his claim more than the defendant recovered on his counter-claim. The plaintiff got the costs of the action, but he had to pay the costs of the counter-claim. He sought to escape from the foregoing rule and wanted the whole costs of the litigation; but

. Brown

ATLAS METAL CO. v. MILLER AND OTHERS. No. 2. 30th June, and the Court of Appeal, following Shrapnel v. Laing (ubi supra), decided

1st and 7th July.

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This was an appeal by the defendants from a decision of Channell, J., at chambers, affirming the decision of the taxing-master, who had apportioned certain costs of the action between the plaintiff and the defendants. The case was argued on the 30th of June and the 1st of July, 1898, and judgment was delivered on the 7th of July.

THE COURT (LINDLEY, M.R., and CHITTY, L.J.) allowed the appeal, and remitted the matter to the taxing-master that he might review his

taxation.

The judgment of the court was read as follows by LINDLEY, M.R.-In the action the plaintiff sought to recover damages from the defendants for a libel by the defendants on the plaintiff. The defendants defended the action, and by a counter-claim sought to recover damages for a libel on themselves by the plaintiff. The action was tried with a jury, who found a verdict for the defendants on the claim and for the plaintiff on the counter-claim, and judgment was entered accordingly for the defendants on the claim with costs, and for the plaintiff on the counter-claim with costs. The costs have been taxed, and the taxing-master, following what he understood to be the rule laid down in Shrapnel v. Laing (36 W. R. 297, 20 Q. B. D. 334), has apportioned some of the costs of the action between the plaintiff and defendants. The defendants complain of this, and contend that none of the costs of the action ought to be thrown on them. Channell, J., at chambers, upheld the master's decision, and the defendants have appealed to this court. The defendants rely on Saner v. Bilton, No. 2 (27 W. R. 472, 11 Ch. D. 416), which was approved and followed by the Court of Appeal in Mason v. Brentini (29 W. R. 126, 15 Ch. D. 287) and Re Brown, Ward v. Morse (31 W. R. 936, 23 Ch. D. 377), and still more recently in the unreported case of Russell v. Russell (19th of January, 1898), which was an appeal from the Divorce Court. Having carefully studied these cases and compared them with Shrapnel v. Laing (ubi supra), Heuitt v. Blumer (3 Times L. R. 221), Finska v. Brown (W. N., 1891, p. 116), and the earlier

against him. All the authorities agree so far-i.e., they all decide that a plaintiff who is to pay or be paid the costs of his action is to pay or be paid the whole of such costs as if there were no counter-claim. Next, as to the counter-claim. The defendant has to pay the costs of this, and the counter-claim is to be treated as an independent cause of action, and, to use Lord Esher's words, as if the claim did not exist (20 Q. B. D. 338). This last explanation, however, is calculated to What are costs of a mislead if not explained and properly understood. counter-claim? The answer must be, the costs occasioned by it. No costs not incurred by reason of the counter-claim can be costs of the counter-claim. The fact that if there had been no action the costs of the counter-claim would have been larger, because the defendant would then have had to issue a writ and take other proceedings, does not make costs not incurred costs incurred; and in considering what the costs of a counter-claim really have been in any particular case the costs saved by not bringing a cross-action cannot be treated as costs incurred. The introduction of counter-claims has given litigants advantages in this respect. Counter-claims, although cross-actions for all purposes of procedure and evidence, cost less than actions, and the party who has to pay the costs of a counter-claim gets the benefit of the cheaper procedure. To include in the costs of a counter-claim any costs not occasioned by its being a counter-claim, but saved by its being what it is, appears to us wrong in principle and opposed to Saner v. Bilton and Ward v. Morse (ubi supra). If Lord Esher really meant to express a contrary opinion we cannot agree with him. We are satisfied that there is no decision to that effect. But, as pointed out by Lord Esher, there may be costs brought in for taxation which have been incurred partly in support of, or in opposition to, a defence, and partly in support of, or in opposition to, a counter-claim-e.g., where there is a defence of set-off equal to the plaintiff's demand, and a counter-claim for more than the plaintiff's demand. In such cases the taxing-master must apportion the costs as best he can, and fix the amount applicable to the defence and the amount applicable to the counter-claim. Where there are no separate issues requiring special treatment the costs of the defence will be costs of the action; the costs attributed to the counter-claim will be costs of the counter-claim. Costs common to both defence and counter-claim must necessarily be dealt with in this way. But to do this is very different from apportioning what are properly costs of the action, and euch

costs when ascertained must be paid by the party ordered to pay them. They cannot have been increased by the counter-claim, and no part of them can be properly regarded as costs of the counter-claim. In the present case the master has lost sight of those principles, and has apportioned some costs which are properly costs of the action, and has thrown some part of them on the defendants. In other instances he has tried to bring about a fair apportionment by equalizing the amounts allowed to each party, so as to set one off against the other. The result is that the defendants receive less than they ought in respect of the costs of the action, and pay more than they ought in respect of the costs of the counter-claim. The case must therefore go back to the master in order that he may review his taxation in accordance with the principles above explained, which are in accordance with all the previous decisions when carefully examined. The costs of this application, both here and below, will be reserved until we know the result of the taxation.-COUNSEL, Bousfield, Q.C., R. M. Bray, Q.C., and Crane; Eldridge. SOLICITORS, Indermaur & Brown; Sugden & Harford.

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

High Court-Chancery Division.

Re RATCLIFF. Kekewich, J. 6th July.

TRUSTEE-JUDICIAL TRUSTEE-SOLE EXECUTOR-TRUST-REVERSIONER-
APPLICATION BY BENEFICIARY FOR APPOINTMENT OF JUDICIAL TRUSTEE
-APPOINTMENT BY COURT-JUDICIAL TRUSTEES ACT, 1896 (59 & 60 VICT.
c. 35), ss. 1 AND 4; RULES 1897, 2 AND 4.

Robert Ratcliff by his will dated the 11th of June, 1891, gave and
bequeathed all his property, real and personal, to his wife Hannah Jane
Ratcliff, and appointed her sole executrix of his will; and after directing
payment of various legacies after her death, he appointed Joseph Nixon
residuary legatee after all the legacies are paid after my wife's death."
He did not appoint any trustees of his will, which contained neither any
power for the appointment of trustees nor any investment clause. The
testator died, and his will was proved by his widow on the 12th of
November, 1897. On the 9th of May, 1898, Joseph Nixon, "the
residuary legatee," took out the present originating summons, as a
beneficiary, under section 1. sub-section (1), of the Judicial Trustees Act,
1896, against Mrs. Ratcliff, the widow and sole executrix of Robert
Ratcliff, asking that a certain gentleman-a solicitor, or some other fit
and proper person or company, might be appointed a judicial trustee of
testator's will either jointly with Mrs. Ratcliff or, in the alternative, as
sole trustee. The summons was supported by a written statement (1897
Rules, r. 4) verified by an affidavit (rule 4 (2)) filed by the applicant
under the Rules under the Judicial Trustees Act, 1896," made in 1897
in accordance with section 4 of that Act. It appeared from this state-
ment that the testator's property amounted in value to between £28,000
and £29,000, of which £2,500, approximately, was represented by real
estate, the balance of about £26,000 being personal estate. The greater
part of the personal estate was at the present time invested in, or repre-
sented by, securities of such a description as is not authorized as a proper
investment for trust funds. The legacies given by the will, which
included one of £1,000 to the applicant, amounted in all to about £9,000,
and the applicant claimed to be entitled absolutely, subject to the life
interest of Mrs. Ratcliff, to the whole of the balance of the property of
the testator, though, owing to the informal nature of the will, some
question might be raised with regard to the real estate. Mrs. Ratcliff
was about seventy-two years of age, and it was alleged as a ground for
the present application that, owing to her advanced age, she was unable
to attend properly to the management of so large an estate, of which
she was tenant for life, and as sole executrix had entire control. It was
alleged, moreover, that her interest as tenant for life conflicted with that
of the applicant as remainderman, inasmuch as she would, as was the
fact, naturally desire the property to remain in its present state of
investment at a high rate of interest, whereas the remainderman desired
it to be invested in securities in which the corpus would be securely
preserved, and, though the slightest reflection on the honesty of the
tenant for life was expressly disclaimed, it was submitted that the present
state of affairs was undesirable. The applicant also alleged as
"exceptional circumstances specially affecting the administration of the
trust" (1897 Rules, r. 4 (i)) that without the authority of the court no
trustees of the testator's property could be appointed; that the testator's
will was informal throughout, and it was almost certain that questions
would arise as to its proper construction, on which the opinion and
decision of the court would have to be obtained. The applicant was
willing that the judicial trustee, if appointed, should be remunerated out
of the corpus of the property. The application was opposed by the
widow. Section 1 of the Judicial Trustees Act, 1896, provides (sub-
section (11)) that, "where application is made to the court by or on
a trustee or beneficiary, the court may, in its discre-
tion, appoint a person (in this Act called a judicial trustee) to be a trustee,
either jointly with any other person, or a sole trustee
Section (4) provides (1) that "rules may be made for carrying into effect
this Act"; and (2) as to how such rules may be made. The "Rules
under the Judicial Trustees Act, 1896," made in 1897 provide: Rule 2.
"An application to the court to appoint a judicial trustee shall be in the
Chancery Division, and (a) if not made in a pending cause or matter,
shall be made by originating summons." Rule 4 (1) "Where an appli-
cation is made for the appointment of a judicial trustee by originating
summons, the applicant must, when he takes out the summons, supply
for the use of the court a written statement containing the following
particulars" (as thereinafter set out) "so far as he can gain information

behalf of

with regard to them." (i) "Any exceptional circumstances specially affecting the administration of the trust." (2) "An affidavit by the applicant verifying the statement shall be sufficient primâ facie evidence of the particulars contained in the statement."

KEKEWICH, J., said that the power of appointing a judicial trustee given to the court by the Judicial Trustees Act, was by the express terms of section 1, sub-section (1), of the Act entirely a discretionary power, and that under the circumstances, in the absence of misconduct on the part of the executrix, and the executrix being unwilling that a judicial trustee should be appointed, he did not think that a judicial trustee should be forced on her against her wish. As, however, in the present case the main portion of the trust had to be executed after the death of the tenant for life, the sole executrix, and improper securities had to be realized and re-invested, his lordship directed that the summons should be amended by making the application "in the matter of the Trustee Act, 1893," and that a trustee should be appointed under that Act to act with the widow, and ordered that the matter should be accordingly remitted to chambers with an instruction that if Mrs. Ratcliff nominated a proper person to be trustee, such nominee should be accepted. His lordship also directed that the costs of all parties as between solicitor and client should be paid out of the estate.-COUNsel, S. O. Buckmaster; Warrington, Q.C., and J. G. Wood. SOLICITORS, Merriman, White, & Thompson; Ford, Lloyd, Bartlett, & Michelmore, for Toone & Bartlett, Loughborough.

[Reported by C. C. HENSLEY, Barrister-at-Law.]

STRANGWAYS v. READ. Romer, J. 8th July.
LUNACY-COMMITTEE OF PERSON-LIABILITY TO ACCOUNT-ALLOWANCE
PAID QUARTERLY IN ADVANCE-DEATH OF LUNATIC BEFORE EXPIRATION
OF QUARTER.

The question raised in this action was whether a quarter's payment in
advance to the committees of a lunatic's person in respect of a fixed annual
allowance ordered for her maintenance was apportionable on the death of
the lunatic before the expiration of the quarter for which the advance was
made, so that her legal representatives became entitled to have a proportion-
ate part of the amount so paid handed over to them by the committees of the
person. By an order in lunacy dated the 24th of March, 1896, Isabella
R. Read and the defendant, Constance R. Read, were appointed com-
mittees of the person and the official solicitor was appointed committee of
the estate of Mrs. P., widow, a certified lunatic, and there was allowed
for her maintenance £2,500 per annum from the 29th of January, 1896.
The said order provided (inter alia) that the said defendant as one of the
committees of the person should be at liberty to reside with the lunatic
and to retain for her use her leasehold residence and stables in London
together with her furniture, horses, carriages, and other effects there,
and the said defendant resided there accordingly until the death of the
lunatic. After the date of the said order the committee of the estate paid
to the committees of the person, out of the estate of the lunatic, the allow-
ance of £2,500 per annum for her maintenance by equal quarterly pay-
ments, each payment being made in advance, and it was not disputed
that the lunatic was always properly maintained until she died. On the
26th of October, 1896, the sum of £625 in respect of the said maintenance
allowance for the quarter ending the 29th of January, 1897, was paid to
the committees of the person. On the 11th of November, 1896, the
lunatic died. The plaintiffs, who were the executors of her will, claimed
a declaration that the defendant, Constance R. Read, and the estate of
the said Isabella R. Read, who died in May, 1897, were jointly and
severally liable to repay to the estate of the lunatic the proportionate
part for the period subsequent to her death of the quarter's allowance of
£625 paid to them for her maintenance, or in the alternative to repay the
£625, less any sums properly paid for the lunatic's maintenance between
the 29th of October, 1896, and her death, with an inquiry in the latter
alternative as to such sums, and payment in either alternative of any
amount found due to the plaintiffs. For the defendants it was contended
that, the lunatic having been properly maintained, they could not be
ordered to repay any part of the said sum of £625, the committees of the
person being entitled under the scheme of the above-mentioned order to
retain any savings thereout for their own benefit: see Re Ponsonby (3
Dru. & War. 27, 31, 2 Connor & L. 30, 32), Grosvenor v. Drax (2
Knapp 82).

ROMER, J., said that the point was a novel one and of some difficulty, but he thought the plaintiffs were entitled to something. The sum fixed by the order in lunacy was clearly fixed with reference to the whole year, and not to a quarter or any other portion of a year. It was arranged between the committee of the estate and the committees of the person that payments on account should be made in advance, and that was a reasonable arrangement on the footing that the lunatic should be maintained for the whole year. But the lunatic was only maintained for nine months, and yet the committees of the person were claiming a whole year's allowance. The payments by the committee of the estate were not made on that footing. The lunatic's executors were therefore entitled to recover such part as could not be said to have been properly expended by them in her maintenance, regard being had to the provisions of the order in lunacy. His lordship thought that Grosvenor v. Drax was sufficiently dealt with by Cairns, L.J., in Re French (16 W. R. 657, L. R. 3 Ch. 317), and the observations of Lord St. Leonards in Re Ponsonby must be considered to be made with regard to the ordinary case where the lunatic was properly maintained for the whole year. One of the committees of the person had died, but the money was paid to both, and they were both accountable in equity.-COUNSEL, Neville, Q.C, and R. J. Parker; Farwell, Q.C., and S. Dickinson; E. F. Buckley. SOLICITORS, Hickin, Smith, & Capel Cure; Longbourne, Stevens, & Co.

[Reported by J. F. WALEY, Barrister-at-Law.]

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