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The Solicitors' journal.

LONDON, APRIL 8, 1882.


Ah Obdeb is in preparation transferring seventy causes from the list of Mr. Justioe Chitty to that of Mr. Justice Kay for the purpose of hearing only.

Mb. Justice Chittv's absence on circuit will, it is expected, extend over the first fourteen days of the Trinity Sittings, during which period Mr. Justice Nobth will transact his business in court.

Lord Justice Baggallay, whose health is happily nearly re-established, called at Lincoln's-inn on Tuesday to arrange with his brother judges of the Court of Appeal with reference to the Trinity Sittings.

The Masteb Op The Roils will sit with the Court of Appeal at "Westminster from the 24th of April to the 29th of April, both days inclusive; during which period Lord Justice Holkek will sit with the Court of Appeal at Lincoln's-inn.

The Usual Vacation Notice for the Chancery Division will be found in another column. It will be observed that there will be no sitting in court during the Easter Vacation, and that Mr. Justice Chitty's chambers will be open on Saturday, April 8, and on every day next week except Monday and Tuesday. It is understood that Mr. Justice Kay will attend at the Judges' Chambers on the 12th, 13th, and 14th insts., for business connected with the Queen's Bench Division.

In Commenting a few weeks ago on the case of Rayner v. Preston (29 W. R. 547), we pointed out the great difficulties which surrounded the suggestion made by the majority of the Court of Appeal in that case that the insurance office which had paid to the vendor money on the policy of insurance of the premises contracted to be sold, could recover back this money, which they had paid under compulsion of law, and were bound by law at the time to pay. It will be seen from the report of a case of Castellain v. Preston, which we print elsewhere, that the insurance company, acting on the suggestion of the learned judges of the Court of Appeal, brought an action against the vendor to recover back the money paid on the policy. Mr. Justice Chitty, however, has, as we think very properly, dismissed the action with costs. We may, perhaps, venture to remark that it is undesirable that judges of the Court of Appeal should go out of their way to throw out suggestions of this kind.

A Small Meeting of members of the bar was held on Thursday week in order, as was stated in the reports in the daily papers, "to take into consideration the new rules of legal procedure framed by the judges, among them being the proposal to abolish trial by jury, to do away with pleadings in actions, besides several other important changes materially affecting the members of the legal profession." Considering that no rules have yet been framed, and that, as we announced last week, no proposal has been adopted tampering with any existing right to trial by jury, this statement was not very happily conceived. We do not learn that anything very definite resulted from the meeting except the appointment of a committee. Although it is very late in the day,

the suggestions of such a committee may still be useful, provided they are issued at an early date, and are indorsed by a really representative meeting of the bar. But after the new rules have been promulgated it is hardly to be supposed that any external oriticism will induoe the Rule Committee of Judges to recall them.

It Appeabs that representations have been made by the United States Government to the English Government with reference to some subjects of the United States who are now imprisoned in Ireland as suspects; and it would seem, from the speeches at the New York meeting on Tuesday, that the main ground of complaint is, that the American suspects are imprisoned without an opportunity for trial. It may be worth while to call attention to the view on this subject taken by the United States Government at the time of the Fenian Conspiracy, when the Habeas Corpus Act was suspended in Ireland, and several American citizens were imprisoned without being tried. Writing to Mr. Adams, on March 10, 1867, Mr. Seward said (see the letter printed in the appendix to the Report of the Naturalization Commission, 1869, p. 48):—" It may be expected that some of our Irish-born naturalized citizens who are now sojourning or travelling in Ireland will be arrested. Americans, whether native-born or naturalized, owe submission to the same laws in Great Britain as British subjects, while residing there and enjoying the protection of that Government. We applied the converse of this principle to British subjects who were sojourning or travelling in the United States during the late rebellion." These sensible observations may be commended to the attention of the present Government of the United States.

Good Fbiday is strictly dies nan juridicus, and by the Rules of Court (ord. 57, r. 2) it is not to be reckoned in the computation of the time allowed for legal proceedings where such time is less than six days. Under 7 & 8 Geo. 4, c. 15, Good Friday is, for all purposes as regards bills of exchange and promissory notes, "to be treated and considered as the Lord's Day, commonly called Sunday," and "in all cases where bills of exchange or promissory notes shall be payable on the day preceding any Good Friday it shall not be necessary for the holder or holders of such bills of exchange or promissory notes to give notice of the dishonour thereof until the day next after such Good Friday." Under the Licensing Acts public-houses are required to be closed, except between certain hours, on Good Friday as on Sunday; and the Act of 1874 required them also to be closed at the same time of the day preceding Good Friday " as if Good Friday were Sunday and the preceding day Saturday." Persons keeping any public billiard table are (by 8 & 9 Vict. c. 109, s. 13) subjected to penalties if they allow any person to play at such table on Good Friday. The occupier of a factory or workshop must, under the Factory and Workshop Act, 1878, allow to any child, young person, and woman employed therein a holiday on the whole either of Good Friday or of the next public holiday.

We Do Not See how Sir W. Habcoubt could refuse to respite Lam Son when he was assured on the authority of the Attorney-General of the United States that important evidence was on its way from America. A respite should always be granted where necessary for inquiring into facts alleged in exculpation of a prisoner under sentence of death; and when it is stated by a responsible authority that the evidence to be adduced is such as might have influenced the decision of the jury at the trial, it would be very unjust to refuse an opportunity for its investigation. A request by the President of the United States that such opportunity may be afforded rests on the same footing as a request by any other responsible person who vouches for the importance of the evidence which is forthcoming, and is wholly different from a mere intervention by a foreign potentate on behalf of a prisoner condemned to death. It is stated in the Annual Register for 1864 that after the conviction of Muller for the murder of Mr. Bbiggs, the King of Prussia, and also one of the minor German potentates, telegraphed to the Queen to request her to save the prisoner's life. Interventions of this kind are, of course, wholly inadmissible.

Oub Beadeks may remember our remarks upon the great latitude given to judicial discretion by the Conveyancing Act, 1881. Signs are beginning to appear that, as was inevitable, different minds take different views as to what constitutes a proper exercise of judicial discretion. Last Monday an application came before Mr. Justice Fry under section 39 of the Act, which permits the court, notwithstanding restraint on anticipation, with a married woman's consent, to "bind" her property. In this ease {Hodges v. Hodges), by the will of the married woman's father a legacy was settled upon her for life for her separate use, without power of anticipation, remainder to her children, in default of children as she should by will appoint, and, in default of appointment, in trust for her absolutely. She had never had any children, and was over fifty-five years of age. A suit was long since brought to administer the will, and this summons was taken out in it by the married woman and her husband, asking that part of the fund might be sold and the proceeds paid to the wife on her separate receipt. It seems that the wife resides in France with her husband, who is a domiciled Frenchman, and that her French creditors, not understanding the mysteries of restraint on anticipation, " harass" her much, for that she does not pay her debts. Under these circumstances Mr. Justice Fey assented to the application and made the order asked for by the summons. It is an interesting fact, which was not mentioned to the court, that some time ago, a good while before section 39 of the Conveyancing Act existed, a similar order was actually made with regard to the very same fund by the late ViceChancellor Malins. But perhaps the chief interest of the recent decision is to be found in the light which it casts upon the question of judicial discretion. In Tamplin v. Miller, two or three weeks ago, Vice-Chancellor Hall took occasion to remark that he should require a very strong case to be made out before exercising his discretion under section 39. But it may be asked, if "being harassed" by creditors who cannot be got to understand restraint on anticipation constitutes a strong case, what would be a weak one? We should rather infer that the views on this point of the learned judges are not identical, and that people who have such applications to make will not, if they can help it, address them to the Vice-Chancellor.

The Decision on Monday in Ormerod v. Todmorden Joint Stock Company, in which the Court of Appeal reversed an order of a judge referring certain issues in a cause under section 57 of the Judicature Act, 1873, is one of great importance. Three questions appear to have been involved—(1) whether the particular issues ought to have been referred as a matter of discretion; (2) whether there was jurisdiction to refer them; and (3) whether an appeal lies from such an order to the Court of Appeal. Upon the two first questions we prefer to say nothing until the facts are more fully before us. The third question, whether an appeal lay, is separable into two branches. First, does an appeal lie at all? Secondly, does it lie without an intermediate appeal to a divisional court? As to the first branch, the words of the 57th section are that "the court or a judge" may order any question "in a cause" requiring " any scientific or local investigation which cannot, in the opinion of the court or a judge, conveniently be made before a jury, or conducted by the court through its other ordinary officers," to be tried before an official referee. The 19th section of the Act provides that the Court of Appeal shall have jurisdiction to hear appeals "from any judgment or order" of the High Court, "or of any judge or judges thereof," "save as hereinafter mentioned." Amongst the well-known exceptions (see sections 45, 47, and 48) orders of reference under sections

56 or 57 are not to be found, and, as was pointed out by Lord Justice Bbett in the recent case, by Lord Penzance in Walsall Overseers v. London and North- Western Railway Company (L. R. 4 App. Cas., at p. 43), and by Jessel, M.R., in In re Chennell (L. R. 8 Ch. D., at p. 501), there cannot be an implied exception, or an exception outside the statute. Moreover, sections 56 or 57 or the corresponding sections of the Common Law Procedure Act, 1854, appear to have been considered by the Court of Appeal in at least three cases since the Judicature Act, and no objection to the jurisdiction of the Court of Appeal was taken in any of them. On all grounds, therefore, we think that an appeal lies. But ought there to be an intermediate appeal to a divisional court? On this point there is much more room for doubt. The words "the court or a judge" have been usually construed to mean that application is to be made to a judge first, and to the court afterwards; and in the three cases to which we have referred (they are Clow v. Harper, L. R. 3 Ex. D. 198; Ward v. Filley, L.R. 5 Q. B. D. 427; Horle v. Burr, 49 L. J. Ch. 665) the appeal was from a judge to a divisional court, and from a divisional court to the Court of Appeal. Upon consideration of this second question we think that the words of section 19 are too strong to be got over, and that any intermediate appeal may be dispensed with. It is extremely doubtful, however, whether this was the intention of the Legislature. An amendment of the "reference sections" of the Judicature Act appears to be very much required in this and other points. It will be remembered that Mr. Mellor's amending Bill passed both Houses of Parliament in the first session of 1880, but as there was no time at the end of the session to consider in the House of Commons certain formal amendments made in the House of Lords, it did not become law.

Mr. Feancis Savage Reilly, counsel to the Speaker, has been appointed one of her Majesty's Counsel. Mr. Reilly was called to the bar in 1851.


It is probable that if the doctrine of consolidation had been confined to the simple cases in respect of which the claim first arose, no complaint would have arisen against it. But its extension to assignees and purchasers from the mortgagor, even for valuable consideration and without notice, has given rise to cases of such manifest hardship, that the courts and the Legislature have both interposed almost simultaneously to check the still growing mischief. We propose shortly to inquire how far their efforts are likely to be successful.

With regard to section 17 of the Conveyancing Act, we see little probability that it will be suffered to have any operation at all. The right to consolidate would never have been invented by mortgagees and imposed by them as a matter of positive contract upon mortgagors; but now that the Court of Chancery has invented it for them, they will never be persuaded voluntarily to loose their hold of it. Even any restrictions which mny be imposed on the doctrine by the courts will ultimately take effect only so far as their intended operation does not admit of being undone by means of a positive contract between the parties. From this point of view the recent decision of the House of Lords in the case of Jennings v. Jordan (30 W. R. 369, L. R. 6 App. Cas. 698) appears to be interesting and important.

The material facts of the case were as follows:—In 1838 one Thomas Tale settled certain copyholds, subject to a mortgage previously executed by him, in consideration of his daughter's marriage: a settlement which was, of course, in law for valuable consideration. Subsequently to the settlement he executed another mortgage over some other property; and this last mortgage, together with various others, getting into the same hands as the mortgage which affected the settled property, the incumbrancer refused to allow the trustees of the settlement to redeem the mortgage affecting the settled property, except upon condition (among other things) of also redeeming the mortgage executed subsequently to and affecting property not comprised in the settlement. The claim to consolidate mortgages executed subsequently to the settlement, bears a very different aspect from the claim to consolidate those which had been executed previously. So far' as mortgages were concerned which had been executed previously to the settlement, the rule of law, independently of section 17 of the Conveyancing Act, was too clear to permit any hope of resistance to the claim to consolidate, if the decision of the question is to depend upon the reported cases in the courts inferior to the House of Lords. But it is particularly worthy of remark, that this question was not raised by the appeal in Jennings v. Jordan; and therefore that the decision in that case by no means proves that the Lords would have sustained some parts of the doctrine which have become firmly rooted in the practice of the inferior courts. The Lord Chancellor openly avowed the difficulty which he felt in holding with Beevor v. Luck (15 W. R. 1221, L. R. 4 Eq. 537) that a mortgagee's right to consolidate, as against the purchaser of an equity of redemption, can be enlarged by the transfer to the mortgagee, subsequently to the purchase, of other previously existing mortgages; and it may be well worth the while of some enterprising litigant to carry this question to the supreme tribunal. But no attempt was made in Jennings v. Jordan to disturb the judgment of the court below, so far as regards mortgages executed previously to the settlement.

The claim to consolidate, as against an assignee for valuable consideration of an equity of redemption, a mortgage over other property executed subsequently to the assignment, rested upon the sole authority of Tassel I v. Smith (6 W. R. 803, 2 De G. & J. 713). In that case one Randall in 1832 mortgaged certain freeholds and leaseholds to certain persons who were in fact trustees of a fire insurance company, and were known to Randall to be such, though the fact did not appear on the face of the deed. In 1841 he mortgaged the same property to some second mortgagees, who gave no notice of their charge to the first. In 1851 Randall in conjunction with one Newman mortgaged certain freeholds and other property belonging to Newman, and also a policy of insurance belonging to Randall, to the then trustees of the same fire insurance company, who were not the same as the parties to the deed of 1832. Newman and Randall seem not each to have separately assigned his own property but both to have joined in making one comprehensive assignment; and it appeared on the face of the deed that Randall was only a surety for Newman. The mortgagees under this last deed had no notice of the intermediate mortgage of 1841, but it does not appear that this circumstance affected the decision. Disputes arose, and the whole of the securities were realized by consent, subject to the determination of the rival claims; and, the mortgage of 1832 having realized a great surplus, while that of 1851 showed a great deficit, the mortgagees under the latter deed claimed to be paid the deficiency out of the surplus on the other security. These two mortgages, be it remembered, were not legally vested in the same persons; the last one was vested in the then trustees of the insurance company, and the earlier one was vested in the executor of the last survivor of the trustees to whom the first mortgage had been made; but both the mortgages were held in trust for the company. Under these circumstances this claim to consolidate was allowed by the then Court of Appeal in Chancery, consisting of Lords Justices Knight Bruce and Turner. The reports are exceedingly meagre, and, at first sight, the decision would appear to be even more monstrously opposed to justice and equity than it in fact was; but it will be seen, on careful examination, that the claim to consolidate was made and allowed only as against the intermediate mortgage of 1841 and the representative of Randall, while it was allowed that Newman might have redeemed the mortgage of 1851 without in any way concerning himself with the mortgage of 1832, to which he was not a party. Even subject to this observation, the additions made to the law of consolidation by Tassell v. Smith are sufficiently noteworthy. No less than four separate and new propositions seem to be involved in its decision:—(1) That as against an assignee for value of an equity of redemption (the second mortgagee under the deed of 1841) a mortgage over other property executed subsequently to the assignment may be consolidated; (2) that a mortgage of land may be consolidated with a mortgage of a policy of assurance; (3) that, as against A. and his subsequent mortgagees, a mortgage made by A. alone may be consolidated with a mort

gage made by A. and B. jointly; and (4) that one mortgage mAffek be consolidated with another not vested in the same hands/ provided that both mortgages are held upon trust for the same person. It is seldom that a single case has been able to do so much mischief by extending still further a principle which had already (at least in the judgment of the Legislature) been carried too far. The first of these propositions has now been definitely negatived by the decision of the House of Lords in Jennings v. Jordan.

The importance of the decision in a great measure depends, as we said, upon the inability of mortgagees to reinstate the condemned doctrine by imposing it as a matter of express contract upon mortgagors. Whether the assignee of an equity of redemption, if the mortgage creating it should contain an express contract to permit this kind of consolidation, would afterwards be entitled to repudiate the bargain, of which he must have had notice at the time when he took his assignment, is a question which would be very difficult to decide. But such contracts, besides being very invidious, would be so difficult to frame that we should not expect them to become common in practice.



The total number of police and constabulary in England and Wales in the year ending the 29th of September, 1880, was 31,488, consisting of 4 commissioners and assistant commissioners, 4 district and inspecting superintendents, 56 chief constables of counties, 163 head constables of boroughs, 521 superintendents, 1,311 inspectors, 3,008 sergeants, 25,511 constables, 390 additional constables, appointed for special purposes, and 520 detective officers. In the previous year the total number was 31,047, showing an increase in 1880 of 441. The total number gives one for every 721 of the population according to the census of 1871, or one for every 811 of the population estimated for the middle of the year 1880. The total increase of the police and constabulary during the ten years ending in 1880 was 5,047. The total number given above includes 722 of the metropolitan police employed at her Majesty's dockyards, &c, and 371 paid by public offices and private individuals. The cost of the police and constabulary was £3,113,725 in 1880, and £3,050,671 in 1879, showing that there was a net increase of expenditure in 1880 of £55,054. The amount expended consisted of £2,412,935 for salaries and pay, £77,163 for allowances and contingent expenses, £165,153 for clothing and accoutrements, £119,828 for superannuations and gratuities, £46,673 for horses, harness, forage, &c.; £250,135 for buildings, station-house charges, printing, stationery, Sec.; and £41,838 for miscellaneous charges. In addition to the amount before mentioned for superannuations and gratuities, which are paid under the authority of Acts of Parliament, there was paid out of the superannuation fund, which is formed by means of deductions from pay, stoppages, and fines, a total of £142,012, making the total for superannuations and gratuities £261,840. Each man in the force costs on an average £98 17s. 8d. The expenditure of £3,113,725 on police and constabulary was divided as follows:—Borough police, £802,419; county constabulary, £1,052,583, and metropolitan police, £1,168,061 ; to which amounts the public revenue contributed the sums of £352,061, £413,763, and £451,334, or a total of £1,217,158, being 39'0 per cent, of the whole.

The Criminal Classes. Depredators, offenders, and suspected persons at large, numbered 39,465, being a decrease of 1,583 from the number of that class in 1879. Of this total of 31,047 it appears that 5,572 were under sixteen years of age, and 2,392 were to be found in London. In addition to those 39,465 of the criminal classes at large, there were 16,211 in local prisons, 10,268 in convict prisons, and 4,794 in reformatories, showing a grand total of 70,738 criminals, being a smaller number by 3,079 than in 1879.

Indictable Offences. The number of indictable offences committed in 1880 was 52,427, being only 20 less than in 1879. There were 22,231 persons apprehended in respect of these offences, being 1,427 less than in 1879. Out of this number it appears that 5,088 were discharged for want of prosecution, 1,393 for want of evidence, 122 were discharged on bail for further appearance if called on, 1,496 were bailed to appear for trial, 24 were committed for want of sureties, and 14,108 were committed for trial. Of the 52,427 indictable offences committed, 2,855 are classed as offences against the person, 6,782 as offences against property with violeuce, 39,276 as offences against property without violence, 607 as malicious offences against property, 1,109 as forgery and offences against the currency, and 1,798 as not included in any of the before-enumerated classes. There were among the offences against the person in the year

1880, 131 murders, and 70 attempts to murder, 664 cases of shooting at, wounding, &c, 257 of manslaughter, 129 of concealment of birth, 127 of unnatural offences, 244 of rape, 385 of assaults with intent, and 636 assaults. There were 3,627 cases of burglary, and 2,508 of house-breaking, &c, and 35,252 larcenies. Of the 131 murders no less than 73 were committed on children one year old and under, and there were 966 attempts at suicide. In respect of the 2,855 offences against the person, 2,916 persons were apprehended, and of this number 664 were discharged on being brought before the magistrates, and 2,252 were held to bail or committed.

Summary Convictions.

The total number of persons proceeded against summarily in 1880 was 663,404, of whom 517,373 were convicted and 146,031 discharged. This shows an increase over the previous year of 11,092 persons summarily convicted. Among the punishments imposed on these 517,373 persons summarily convicted, 53,323 were imprisoned for fourteen days or less, 91 for more than six months, and 49,222 for periods varying from fifteen days to six months; 1,293 were sent to reformatory schools, and 2,411 to industrial schools; 348,412 were fiued, and 2,621 were whipped. As compared with 1879 the summary convictions in 1880 show an increase of 11,092, bnt the number proceeded against shows an increase of 22,366, and the number discharged an increase of 11,274.

The persons apprehended for indictable offences and those summarily proceeded against are classed as follows:—19,475 known thieves, 24,513 prostitutes, 30,323 vagrants, tramps, &c, 43,579 suspicious characters, 37,940 habitual drunkards; 314,168 were of previous good oharacter, and the character of the remaining 215,637 was unknown.

Appeals Against Justices' Convictions. There were 111 appeals in 1880 from the decisions of justices in summary proceedings; in 55 of these cases the convictions were affirmed and in the remainder quashed. In 1879 there were 152 suoh appeals, of which 57'2 per cent, of the conviction were affirmed and 42'8 quashed.

Coroners' Returns. Returns sent in by coroners of the inquests held and the verdicts thereon show that there were 26,588 inquests held in 1880. In 157 the verdict was murder, in 152 manslaughter, in 6 justifiable homicide, in 1,930 suicide, in 10,807 accidental death, and in 19 " executed "; other verdicts such as "found dead," "excessive drinking," "disease aggravated by neglect," and "want, cold, exposure," &c, make up the total of 26,588. In 1879 the number of inquests was 27,056. The verdict of murder in the case of infants of one year old and under was returned in 87 instances, and 51 of this number were in the county of Middlesex, the inquests held on children one year old and under numbered 4,994, and those on children above one year and under seven were 3,131, making a total of 8,125 inquests on children nnder seven years of age. Although the number of inquests was in 1880 less than in 1879, the total cost was greater, and the average cost of each inquest of course greater. The total cost in 1880 was £86,842 13s. 5d., and in 1879 £86,333 Is. 7d., Bhowing an average of £3 5s. 3d. per inquest in 1880, and of £3 3s. 9d. in 1879.


LAW OF PROPERTY. A CoNCMB Practical Treatise On The Law Of Property. By H. W. Boyd Mackay, Barrister-at-Law. H. Sweet.

The critic of a work having so large a scope finds himself compelled to avoid details, and to speak of it in general terms. There is a good deal of freshness and originality about its style which makes it a creditable addition to the legal library. The huge extent of its subject—for the law of property, so far ss regards the purpose of which we speak, is practically co-extensive with the law—may perhaps be an obstacle to its success with those practitioners who value a book in proportion as it is a mere exhaustive list of the cases. A single volume cannot possibly treat the whole subject in the only way which is acceptable to those persons. And we should hardly suppose from its method that the book is intended to minister to the needs of students, to whom it does not seem to be very well adapted. Its length, if not more than what is good for them, is more than any but the exceptionally diligent could digest. And it contains a formidable list of addenda et corrigenda, exteuding to moro than twenty-seven very closely printed pages. Still we think that both practitioners and students might gain a good deal in the clearness and breadth of their view of the law by a perusal of the book. It possesses considerable merits, and contains a great deal of information which, so far as we have examined it, seems to be correct in its details. The great defect is a certain want of adaptation to practical needs. For example, the information given at p. 372 upon the general subject of barring entails is open to the objection that the student would not understand it, while the practitioner would prefer to j

seek it elsewhere in a different shape. And the latter very practical class of persons are not attracted by remarks of the following type:— "Restrictions on the disposing power of owners of property are discouraged for the highest political reason—namely, that if the acquisition of property were not freely permitted, anarchy would probably result " (p. 245). The language perhaps aims too visibly at originality, and its novelties are not always pleasing. The statement of the rule in Shelley's cate, p. 231, is longer than Fearne's; and such phrases as "for a terminable period, not being a chattel interest," are hardly better than the phrase "for life." We gather from Mr. Mack ay's preface that the book was intended in some degree to prepare tbe way for the formation of a code: a fact which perhaps explains its departure from the lines of the ordinary text-book. We agree with him that "a good code is greatly to be desired "; but we feel even greater doubts than himself as to the probability of our getting such a thing.



[To the Editor of the Solicitors' Journal.]

Sir,—I was present last Wednesday at the hearing of Courfield v. The Great Eastern Railway, before Mathew and Cave, JJ., when the judges decided that the act of presenting a ticket to be clipped at the barrier of a station constitutes a user thereof. From their remarks during the hearing, as well as from their judgment, they seemed to have been haunted throughout by the idea that on this occasion there was a question of the right of the railway company to clip tickets, whereas that point was not raised by the plaintiff; and this notion seems to have biassed their decision. Mr. Winch, the plaintiff's counsel, contended (rightly as I think) that this could not be, and pointed out that the result of such a decision would be that the travelling public would be placed entirely at the mercy of the railway companies, and he gave a striking example. Supposing, argued he, a man to take a ticket for a long distance, say to Edinburgh, and after having his ticket clipped and going on the platform, to discover that he had left his bag behind in the waiting room; if he went back for it and tried to return to the platform with his clipped and therefore used ticket, he would, on presenting it, come under the penal clause in the company's bye-laws, which subjects anyone trying to avail himself of a used ticket to prosecution, or, if they did not go to that length, he could be refused permission to travel without paying his fare over again. The railway companies might not choose to exercise this right, but they would have the power to do so all the same. If the learned judges ever forget things or leave bags behind, they may be able and willing to pay £2 or £3 for the privilege of recovering their property, but I assure them the general public cannot.

The learned judges refused an appeal on the ground that the case was too trivial and that it involved no prinoiple. If that be so, from which opinion I most respectfully differ, why then was a new trial directed in a question of only flvepence?

I may add that I have no personal interest in this particular case, but there is a principle in question, and that is my reason for requesting you to allow this letter to ocoupy some of your valuable space.

14, Gray's-inn-square, W.U., April 8. W. H. Stoker.

In the Court of Referees on Locks Standi in Committee Room 12 of tbs House of Commons, on Monday, Mr. Clerk, Q.C., on ths part of the Parliamentary Bar and agents, said he was charged to convey to Mr. Rickards, Speaker's Counsel, on the occasion of his last sitting there, an expression of regret at his retirement and of hope for his future welfare. Mr. Riokards had acted for more than thirty years as Speaker's Counsel, and since 1865 had also acted as permanent member of the Court of Referees, whose decisions mainly by his guidance and inflnence, had grown into something like a, code. The result was uniformity and certainty in an important class oi cases affecting the right of petitioners to be heard, where before there used to be great divergency of view among committees; now petitioners knew what principle would govern their respective cases, and muoh time and money were thereby saved to tbe parties in private Bill legislation. Mr. Pemberton, M.P., the chairman of the court, expressed the unanimous regret whioh the colleagues of the Speaker's Counsel felt at his retirement from that tribunal. Tne members of the bar and the parliamentary agents who were present rose during Mr. Clerk's address and also during the reply of Mr. Rickards, who acknowledged with deep feeling the compliment paid to him. He was retiring, he said, at a time of life when both physical and mental powers were not likely to become more vigorous. Bnt he was not retiring to a life of idleness and vacuity, and noped still to be of some little use to others. He expressed the satisfaction he had felt, after his retirement from the bar, at being brought into contact, as a member of that court, with some of the most eminent members of the bar; and he expressed also bis acknowledgment to the present members of the oourt and their predecessors with whom he had worked with inch constant harmony.


Foboed DeedFraudPersonation Middlesex Registry Act


Been Registered—Purchaser For Value Without NoticeOrder Tor Delivery Dp Of Title Deeds—PartiesTrustee And Cestui Que TrustCostsAitealOrd. 16, R. 7—Order 65.—In a case of Cooper Y. Vesey, before the Court of Appeal on. the 31st ult., a question arose as to the effect of a conveyance of land situate in Middlesex by the heir-at-law of the deceased owner, whose will, by which the land was devised on trust, had never been registered, to a purchaser for value without notioe of the will, who believed the heir to be the deceased owner, it so happening that the names and descriptions of the ancestor and the heir were identical. The question arose thus;—Thomas Frederick Cooper, who was a watchmaker, carrying on his business at No. 6, Calthorpe-street, Gray's-inn-road, died on the 9th of March, 1863. He had tome freehold and leasehold property situated in Middlesex, which he had himself purchased. By bis will, dated the 10th of October, 1861, he appointed his widow, and one of bis daughters, and also bis eldest son and heir-at-law, Thomas Frederick Cooper, the younger, and another son, C. S. Cooper (when tbey should attain the age of twenty-one), executors and trustees of his will, devising and bequeathing his property to them on certain trusts for the benefit of bis widow and children. The will was proved on the 24th of April, 1863, by the widow and the daughter alone, power being reserved to the sons to

5rove thereafter. This they never did. The will was never registered in the liddlesex Registry. T. F. Cooper, the son, attained twenty-one on the 9th of December, 1863. He carried on bis father's business as a watchmaker at the place where the father had carried it on, and he also managed bis father's trnst estate. In July, 1866, be was allowed by his mother and sister to draw XI,200 out of the father's trnst moneys to enable him to purchase some shares in a company, called the Carnarvonshire Slate Company, of which his father bad been, and of which he himself was, a director. He then signed a memorandum, which was expressed to be made between the executors of the late T. F. Cooper and himself, by which be agreed that the whole of his interest in the trnst fund Bhould be answerable for the sum thus drawn out by him. In the year 1874 he required a large sum of money to enable him to pay calls on bis shares in the slate company, but he did not make any application to his mother and sister for it. He had in his power the key of the box in which the title deeds of his father's freehold and leasehold property were kept, and in that way he possessed himself of those deeds. He obtained an introduction to a solicitor, with whom he was not previously acquainted, and took the deeds to him, telling him that he wanted to borrow £5,000 on the security of the properties comprised in the deeds. He did not inform the solicitor of bis father's death or of his will, and the solicitor believed him to be the person whom the deeds showed to have a title to the property comprised in them. The solicitor searched the Middlesex Registry and found no record of any dealing with the different properties since the respective conveyances to the father. The solicitor then agreed to lend £3,500, of whioh £2,000 was to be advanoed by himself on a mortgage of part of the property, and £1,500 by a client on a mortgage of the remainder of the properly. Two mortgage deeds were accordingly prepared—the one to the solicitor, the other to the client. The deeds contained recitals that the mortgagor was seised in fee of the freehold properties, and entitled absolutely to the leasehold properties for the residues of the terms for whioh the same were respectively held. Tbe deeds were both executed by T. F. Cooper (the son) as mortgagor, his name, as already stated, being identical with that of his father, and his desoription in the mortgage deeds being identical with that of his father in the deeds of conveyance to him. The mortgage money was paid to T. F. Cooper (tbe son), and be applied it to bis own purposes. His mother and sister knew nothing of tbe transaction till after bis death in January, 1880. The mortgage deeds were duly registered. Tbe mortgages were afterwards transferred to other persons. Tbe solioitor died in 1879. On the death of T. F. Cooper (the son) the fraud was discovered, and this action was brought by tbe mother and daughter, as executors and trustees of the father, against the mortgagees, olaiming a declaration that the mortgages were void as against them, and an order for the delivery up of the title deeds. Kay, J. held that T. F. Cooper (the son) had intended to personate his father, and that consequently the mortgage deeds were in effect forgeries, were in truth no deeds at all (except as against T. F. Cooper, tbe son, and persons olaiming through him), and passed no interest to the mortgagees. His lordship accordingly deolared the mortgage deeds void as against the plaintiffs and tbe other persons interested under the will (except T. F. Cooper, tbe son), and ordered the title deeds to be delivered up to the plaintiffs. The Conrt of Appeal (jessel, M.R., and Cotton and Lindley, L.JJ.), affirmed the deoision. Jessel, M.R., said that the question to be deoided was a very singular one—viz., whether a deed which purported to be exeonted by T. F. Cooper, and whioh was exeonted by a person of that name, was or was not a false deed, and the court was, by reason of the death of the son and the solioitor, compelled to arrive at a oonolusion upon indirect evidenoe— i.e., by inference. It was clear that T. F. Cooper (the son) knew all about the trust. The question wss whether when he signed th mortgage deeds he was personating his father. If he was, the deeds were forgeries. If he was signing the deeds in his own name, other consideration s would arise. The evidence was, to his lordship's mind, conclusive. It was plain that the son took the deeds to the solicitor as his own title deeds. The solicitor must certainly have asked him whether he had incumbered the property. He must have known that the solicitor was treating him as tbe owner. Again, it was manifest to anyone who read the mortgage deeds, or to whom tbey were properly explained, that they purported to be the deeds of the father; that it was the father, not the son, who was purporting to convey.

It bad been suggested that the son was an ignorant man; there was no proof of it; that he believed he was conveying his own interest in the property; that was not proved; and that it should be assumed that the deeds were not read over to him or properly explained to him. The evidence on this point was very vague. But there was a legal presumption that a man knew tbe contents of a deed wbioh he executed, and that presumption could not be rebutted by a mere assertion. Looking at the surrounding circumstances, his lordsbip was satisfied, not that the son knew the exaot words of tbe mortgage deeds, but that he knew that the solicitor believed that it was Ithe father who was conveying. His lordship therefore agreed in the conclusions of Kay, J., that the son did personate the father, and that tbe mortgage deeds were false deeds and forgeries, and passed nothing to the mortgagees. Cotton, L.J., said that the mortgage deeds purported to be the deeds, not of the son, but of the father, who bore the samo names, and had the same description, and his lordsbip could, on the facts, come to no other conclusion than that the son intended to represent to the solicitor that the mortgage deeds would be the deeds of the father. There was nothing to show the solicitor that he was the heir of his father, and tbe reasonable conclusion which any one wonld have drawn was that he was himself the T. F. Cooper in whom a title was shown by the instruments which were produced. And under ordinary circumstances a man must be taken to intend that which would be the reasonable conclusion from his acts. If the son had intended to act as the agent of his mother and siater in procuring the mortgages, he would not have taken to the solicitor only the muniments of title which were prior to the will. He must be taken to have executed the mortgage deeds as the deeds of the person whom be had shown to have a title to the properties by tbe deeds whioh he had produced. He must be taken to have committed a forgery—i.e., to have exeonted forged instruments for a fraudulent purpose. He may not have thought he was committing forgery, but he must have known he was doing a fraudulent act Tbe deeds must be treated as forged deeds, and could convey nothing to the mortgagees. No title could be obtained under the Middlesex Registry Act, because the deeds purported to be the deeds of the father, not of the heir. It had been urged that the title deeds which had boen deposited with the mortgagees by the son, who was a trustee and executor of the father's will, could not be taken away from tbem. But the legal owners of the deeds were coming to a court of law and equity, on the ground that an attempt had been made to dispose of their property and their deeds. It was not like the case of McLeod v. Drummond (14 Ves. 353, 17 Ves. 151), which was an application to a court of equity by two executors to compel bankers to deliver up some bonds of the testator which had been pledged with them by two co-executors of the plaintiffs, and tbe court refused to grant the application, because the plaintills had by their conduct enabled their co-executors to deal with the bonds. Lindley, L.J., said that if there had been no leasehold property, the son being heir-at-law to his father, and the will not having been registered, the mortgagees might, perhaps, have got a good title under tbe Registry Act, on the ground that the son was dealing with the property as heir-at-law. But he could not make any title to the leaseholds except through the will. The inference was, therefore, irresistible that he was passing himself off as his fsther, as the owner of tbe freehold and leasehold property comprised in the title deeds, which he could be only on the theory that he was the person whom those deeds showed to have a title. According to The Queen v. Ritson (L. R. 1 C. C. R. 200), tbe son could hive been indicted for forgery. It had been urged that the widow and daughter had been guilty of negligence in not registering tbe father's will. In one sense, no doubt, this negligence bad led to the commission of the fraud. But the authorities, such as tbe The Bank of Ireland v. Evans (6 H. L. C. 389) ; Baxendals v. Bennett (26 W. R. 899, L. R. 3 a B. D. 525) ; and Johnston's Claim (19 W. R. 457, L. R. 6 Ch. 212), showed that it was not sufficiently the proximate causa to make the plaintiffs responsible for the fraud.

A question also arose as to costs. The plaintiffs bad made some of the beneficiaries under the will defendants to tbe action, and Kay, J., had ordered the mortgagees to pay the plaintiffs' costs of the action, and also the costs of the benefioiaries. The Court of Appeal held that the beneficiaries ought not to have been made parties, and .that, therefore, the mortgagees ought not to have been ordered to pay their costs, and they varied the order of Kay, J., in this respeot. Jessel, M.R., said that under the present practice trustees represented their cesluis que trust in a litigation with strangors, and tbe que trust ought not to be made parties. Tbe allowance of their costs was not a matter iu the discretion of tbe court, and it could, therefore, be appealed from. The costs of the plaintiffs, however, were in the discretion of the court, and there oould be no appeal as to those costs. But, with all doference to Kay, J., his lordsbip thought that the present case was peculiarly one in which the discretion of tbe court should have been exercised in punishing the plaintiffs for their carelessness by depriving them of costs. For this reason, as well as because a variation had been made in tbe order, no costs of appeal would be given to the plaintiffs.—Solicitors, Newman, Jeans, <£■ Co. ; Lewis ii Lewis; Allen


Settled Estates Act, 1877 (40 & 41 Vict. C. 18), s. 4, Sub-section 3— Lease Of A MineralSalt Works—Brine.—Upon a petition presented under the Settled Estates Act, 1877, In the Matter of Dudley's Settled Estates, before Vioe-Chanoellor Hall on the 31st ult., a question arose as to the application of sub-section 3 of section 4 of the Aot, whioh provides that, where the lease to be anthorized is "of any earth, coal, stone, or mineral," a certain proportion of tbe rent or payment reserved shall be set aside and invested to form part of tbe capital of the settled estate. In the present case the proposed lease was of certain salt works in Cheshire, forming part of tbe settled estate, and the question submitted for bis lordship's decision was whether or not the salt was a mineral within the meaning of the etatnte, so as to make it requisite to provide for setting apart and investing the due proportion of royalty reserved, It appeared from the evidence

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