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The Solicitors' Journal.

CURRENT TOPICS.

LONDON, NOVEMBER 19, 1881.

adjourned, the panel having been exhausted, and only nine jurors having been obtained. It is curious that objections on this ground have so seldom occurred in England. At the trial of O'CoIGLY and others for treason, one of the panel, who on looking on the

THERE ARE UNDERSTOOD to have been several recent applica- prisoners uttered the words "dd rascals," was set aside (4 tions for silk, both at the equity and common law bars.

MR. JUSTICE CHITTY will continue hearing non-witness causes until his list is exhausted. A week's notice will be given before any witness causes are in his lordship's paper.

MR. JUSTICE CHITTY will in future rise at two o'clock on Saturdays. The result of this change will be that all the courts of the Chancery Division will rise at a uniform hour on Saturday.

THERE SEEMS TO BE no good reason why on another matter the practice of the courts of the Chancery Division should not be made uniform. All the judges except Mr. Justice CHITTY take their seats in court at 10.30, while he sits at 10 o'clock. Since the court over which he presides is not now closed on one day in each week, as it was in the time of the Master of the Rolls, the gain of half-an-hour a day is no longer necessary to make up that loss, and to solicitors the advantage of the extra halfhour at their offices would be very great.

ONE RESULT of the demolitions in connection with the enlargement of the chapel at Lincoln's-inn has been to reveal the unpleasant fact that for years the learned congregation have been in peril from the insecure condition of the roof. The timbers have been found to be decayed, and in addition to the other alterations contemplated, it will be necessary to re-roof the building.

Chit. Blackstone, 354, note). But to attain this result it is not necessary that the juror should have expressed so decided an opinion, or any opinion, as to the character or the guilt of the prisoner. If there is reasonable ground for suspicion that he will act under some prejudice, a challenge may be made "for favour." In this case " the causes of favour must be left to the judgment and discretion of " two triers (Co. Lit. 157b.), who are sworn to try whether the juror challenged stands indifferent between the parties. The juror objected to may be examined before the triers as to the "leaning of his affection." And it seems that there are cases in which the court ought to excuse a juryman on the panel when called, without any challenge being made. In Mansell v. Reg. (8 E. & B. 54) the court intimated an opinion that if the judge discovers an objection to a juror, he may, of his own motion, direct the juror to withdraw.

AMONG THE

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which the lamented Lord Justice JAMES took part was the deciLAST JUDGMENTS of the Court of Appeal in sion of In re Goodman's Trusts (29 W. R. 586, L. R. 17 Ch. D. 266), which made an important step towards further lightening the traditional weight with which English law has always pressed upon children held by its rules to be born out of lawful wedlock. In that case a child who had been born abroad of English parents domiciled at the place of birth, and was legitimate by the law of that place but not by English law, claimed as one of the next of kin under the partial intestacy of a sister of the father. Lords Justices JAMES and COTTON, held (Lord Justice LUSH dissenting) that the child was entitled to take. A few days ago Mr. Justice FRY was called upon to decide (Forestier v. Buddicom) whether he would apply the same principle to a claim to take under a will. The only other difference in the circumstances was that the THE MEETING of the Incorporated Law Society to consider the parents, instead of being English and domiciled abroad, were French Procedure Committee's recommendations is unfortunately fixed for people domiciled in France at the time of the child's birth. The a day which debars us from furnishing our readers with a report learned judge held that in this case also the child was entitled to this week. It is, however, obviously impossible that any definite take. At first sight the reader might suppose that no other course conclusions can be come to on Friday, beyond a decision as to the lay open to him, unless he was prepared to dissent from the decimode in which the investigation of the subject is to be conducted. sion of the Court of Appeal in In re Goodman's Trusts. But the We believe it is suggested that a committee shall be appointed to judgments delivered in that case laid so much stress upon certain act with the council and to report to a future meeting on this sub-considerations, by no means so obviously applicable to a will as to ject; and provided the committee is made sufficiently representa- the Statute of Distributions, that sufficient ground might perhaps tive, there seems to be no better mode of dealing with the matter have been found for distinguishing the case. The balance of judicial than this. Many of the proposals of the Procedure Committee opinion, by which In re Goodman's Trusts was decided, Lords involve questions of great difficulty, requiring prolonged considera- Justices JAMES and COTTON against Lord Justice LUSH in the tion, and before they are discussed by a large meeting it seems Court of Appeal, and the Master of the Rolls in the court below, desirable that a series of resolutions should be formulated to does not lean so heavily in favour of the opinion which finally won serve as a basis for debate. After this has been done, and the the day, as to forbid all thought of nibbling at its authority. The proposed resolutions have been circulated among the members of decision of Mr. Justice FRY is, therefore, of much importance, the society, there will be every prospect of a valuable discussion as probably laying for ever certain doubts which, if once raised, at the adjourned meeting. But we would suggest the advisability, would have been troublesome to settle. in order that the expression of opinion may be general, of introducing a self-denying ordinance restricting the speeches of members on each resolution to not exceeding five minutes.

IT APPEARS, from the telegraphic accounts which have reached this country of the proceedings at the trial of GUITEAU for the murder of the late President, that "most of the jury panel, as called, said that they had formed opinions on the case, and several said that GUITEAU should be hanged"; that on the first day only five jurors were obtained, and that on the second day the court

A QUESTION OF GREAT IMPORTANCE on the construction of section 19 of 59 Geo. 3, c. 12 ("Sturges Bourne's Act"), was decided by the Court of Appeal on Friday last. That section empowers the vestry of any parish by resolution to rate to the relief of the poor owners instead of occupiers in the case of houses, &c., "which shall be let at any rent not exceeding £20 nor less than £6 by the year for any less term than one year, or on any agreement by which the rent shall be reserved or made payable at any shorter period than three months." The vestry of

the parish of West Ham passed a resolution in the terms of this section, whereupon one of the owners in the parish possessing a large number of cottages let at eight shillings a week a piece, or thereabouts, so that the yearly rent exceeded £20 a year, was assessed to the poor-rate instead of the cottagers. Against this assessment he appealed, contending that the words "at a rent not exceeding £20," governed the section, so that the cottages were not assessable under the Act. A special case having been stated, a divisional court (HUDDLESTON, B., and HAWKINS, J.) was equally divided, but gave formal judgment for the Assessment Committee. The Court of Appeal (Lord COLERIDGE, C.J., and BRETT, L.J.; BAGGALLAY, L.J., dissenting) has now reversed the judgment, but it is understood that there will be a further appeal to the House of Lords. Upon reference to the section, which is from its extreme length a peculiarly painful one to read, it will be found that the question of construction is whether the words, "at any rent not exceeding £20 nor less than £6, by the year," are what is called "governing words," so as to apply to all that follows, or whether the words," or on any agreement by which the rent is made payable at a less period than three months," are to be read independently. Grammatically this part of the section will bear either construction, but it also contains a power to the vestries to alter the resolution by a new one, so as no such [new] resolution shall extend to assess the owner of any house which shall be let at a greater rent than £20, or less than £6, as aforesaid." This proviso seems to show that the enacting part of the section extends only to houses let at a rent amounting to £20 a year, or less. On the other hand, where the letting is weekly, the tenants are more likely to have their tenancies determined at short periods, so as to come within the mischief of the section laboriously explained in the preamble. It is curious that so patent an ambiguity should have escaped legal notice since 1819, when Mr. STURGES BOURNE passed 59 Geo. 3, c. 12, through Parliament, and it is all the more curious because there has been twice legislation in pari materiâ— i.e., by 13 & 14 Vict. c. 99, and 32 & 33 Vict. c. 41. Perhaps the decision of the House of Lords on the further appeal may give rise to a consolidation of the law relative to the rating of owners instead of occupiers.

PRINCIPAL AND SUB-AGENT.

THE case of the New Zealand and Australian Land Company v. Watson (29 W. R. 694, L. R. 7 Q. B. D. 374) illustrates rather forcibly the uncertainty of law, Field, J., having, upon further consideration, given an elaborate judgment for the plaintiffs, but the Court of Appeal having unanimously reversed his judgment. The case involves first principles, and ought, one would suppose, to be easy of solution in a manner consistent with justice, but it would appear from the difference of opinion among the judges that such is not the case. The facts, which were somewhat complicated, were briefly as follows:-The plaintiffs, who were landowners in New Zealand, were in the habit of shipping wheat from New Zealand to England for sale on the London market, taking bills of lading which made the wheat deliverable to themselves in London, and indorsing these bills to M. and T., merchants and factors at Glasgow, with instructions to sell the wheat in London. M. and T. having no house or agency in London, were themselves in the habit of indorsing these bills of lading to the defendants, who were cornfactors and brokers in London, for the purpose of their selling the wheat there. When any sales were effected M. and T. delivered account sales to the plaintiffs in the usual form, deducting a del credere commission of three per cent., whilst the terms upon which the defendants were employed by M. and T. were different, being a factorage of £2 per cent., and not a del credere commission. The indorsement of the bills of lading by the plaintiffs to M. and T., and by M. and T. to the defendants, was in each case only for the purpose of selling the wheat, and without any intention of passing the property in it. The plaintiffs knew that the sales effected for them by M. and T. in London were made by brokers employed by M. and T., but the plaintiffs were in no way parties to the particular contracts of sale, nor were their names disclosed upon them. The defendants effected sales of certain cargoes of wheat which had been so consigned for sale by the

plaintiffs in the above mode, and paid the proceeds into their own account with their bankers, and from time to time made remittances to M. and T. on account of them, but on reference to the defendants' books of account the proceeds of the particular cargoes could be separated and identified. M. and T. carried on business at Leith as well as Glasgow, and they employed the defendants in respect of both businesses, and when they stopped payment, which they subsequently did, they were indebted to the defendants upon the Leith account, but not on the Glasgow account. The plaintiffs having brought an action against the defendants for the net balance of the proceeds of the said cargoes of wheat, after deducting the remittances made to M. and T. in respect thereof, but without giving credit for the amounts due to them from M. and T. on other transactions, the jury found at the trial, first, that the plaintiffs did not, through their agents, employ the defendants to sell and account for the proceeds of the wheat, and secondly, that the defendants knew, or had reason to believe, that M. and T. were acting in the sales as agents for a third person. Field, J., held that, notwithstanding the first finding of the jury, the plaintiffs, upon the admitted facts, were entitled to recover the balance claimed from the defendants without any set-off in respect of other transactions between the defendants and M. and T., and that their right to recover was both as undisclosed principals, and also as being owners of the corn, and as such entitled to follow the proceeds of their property in the hand of the defendants in their fiduciary character of agents and trustees. The Court of Appeal (Bramwell, Baggallay, and Brett, L.JJ.) reversed this decision, and held that the plaintiffs were not entitled to recover, as there was no privity of contract between them and the defendants, and that the defendants did not stand in any fiduciary character towards the plaintiffs so as to entitle the latter to follow the proceeds of their property into the defendants' hands without giving credit for the sum due to the defendants from M. and T. on their general

account.

Stripping the case of mere details, it seems to come to this. A. employs B. to sell goods for him on certain terms, consigning the goods to him for that purpose. B. employs C. as a subagent, and hands over the goods to C. for the purpose of effecting the sale upon different terms. C. sells the goods and claims to hold the proceeds as against A. as a set-off against the general balance due from B. to C. It certainly seems to us, we must confess, that, whatever the legal result may be, the judgment of Field, J., was more consistent with the justice of the particular case than that of the Court of Appeal. It should be observed that there does not appear in this case to have been any question of any prejudice to C. arising from his having been allowed to suppose that B. was a principal in the transaction and the owner of the goods, for the jury found that the defendants knew, or had reason to believe, that M. and T. were acting as agents for a third person. Of course it is a well-known doctrine applicable to cases of an undisclosed principal that the party dealing with an agent who purports to act as principal shall not be prejudiced by the intervention of the real principal where, owing to the state of the account between him and the agent, it would be inequitable that he should be so, as, for instance, when he has trusted the agent on the strength of having funds of his in his hands. But apparently no such consideration came in in the present case. And, under these circumstances, with much diffidence, we must say that, apart from technicalities, we have some difficulty in seeing why in justice C., having goods bailed to him by B., for the purpose of selling, of which he knows, or has reason to believe, that B. is not the owner, is entitled to hold the proceeds of those goods against B.'s general indebtedness to him.

We

Suppose C., instead of selling the goods, converted them otherwise to his own use. C. could, under the present state of the law, set off his debt against B. in an action of trover if B. were the real owner, but clearly not against A., the true owner. must confess we are rather puzzled to see why, if the proceeds of the goods are sued for as money had and received, the result should be different. At the same time we cannot think that it is really a question of equity, or that there is any trust imposed upon the proceeds, because they can be earmarked or identified as the proceeds of the goods. Such a doctrine would give A. a better right than C.'s trustee in bankruptcy, which we do not see that he should have. The case cannot, as it seems to us, be put

higher than that the proceeds of the goods should be money received to A.'s use, subject, of course, to the equities to which we have before alluded as common to all cases of undisclosed principals.

Field, J., in the court below, seems to have been of opinion that one who employs another as an agent ought to have an election to constitute himself principal in respect of a contract made by his agent for the purposes of his employment, though possibly, as between himself and his agent, the latter was not, strictly speaking, authorized to enter into the contract; and that the case was within that proposition. Bramwell, L.J., seems to have been of opinion that the fact that the terms as between the plaintiffs and M. and T., and as between M. and T. and the defendants, were different, was conclusive to show that there could be no privity between plaintiffs and defendants. It does not seem to us quite clear that this argument is irresistible. Assuming that the plaintiffs had the power to elect to put themselves in the place of M. and T. as principals, of course they must take to the contract cum onere. There could be no doubt that the defendants would be entitled to deduct from the proceeds the commission for which they had agreed with M. and T. Again, it was urged by the learned Lord Justice that, if the defendants were to bring an action for their commission, it must be against M. and T., and not the plaintiffs. This seems to depend on similar considerations. The plaintiffs possibly might say that they were not parties to, and repudiate, the contract made by M. and T., but if they elected to take to it they must do so for all purposes; so that there does not seem any insuperable difficulty arising out of the difference of terms.

THE PRACTICAL EFFECT OF THE
CONVEYANCING ACT.

IX.-AS TO TRUSTS (continued).

SECTIONS 31-36 of the Act are designed to take the place, with improvements, of some similar provisions contained in part 3 of Lord Cranworth's Act (23 & 24 Vict. c. 145), which is repealed. One or two beneficial changes, to be presently noticed, have been introduced.

Section 31, which is to take effect only if its operation is not excluded by the instrument creating the trust, and subject to its provisions, begins thus :—

"31.-(1.) Where a trustee, either original or substituted, and whether appointed by a court or otherwise, is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from the act therein, or is incapable of acting therein, then the person or persons trusts or powers reposed in or conferred on him, or refuses or is unfit to nominated for this purpose by the instrument, if any, creating the trust, or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee, may, by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of the United Kingdom, desiring to be discharged, refusing or being unfit or being incapable as aforesaid."

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Here we find that residence abroad for twelve months has been added to the occasions contemplated by the repealed section 27 of Lord Cranworth's Act: an addition which very well accords with the prevailing practice. The section is remarkable for its very free use of the present tense to refer to future occasions, and of A more formidable argument used by the Lord Justice is that the locative adverb where in some sense or another which is at all the plaintiffs could not have sued the defendants for misconduct events not locative. These idioms are the "common form" of in improperly selling the goods, but must have sued M. and T. We the Act; but they are here employed with more than the common confess that this argument seems to us very weighty, but we awkwardness, and perhaps with more than the common risk of should hesitate before admitting the premiss. It seems an unfor- misinterpretation. It is possible that the words "Whenever any tunate state of the law if it be so, because it would be clear shall die," of Lord Cranworth's Act, have been that M. and T. could, if damages were recovered against them, sue altered into, "Where a trustee is dead," to the intent the defendants, and therefore there must be two actions instead that the section shall apply to the case of a trustee who has died of one (except so far as the provisions for bringing in third before the commencement of the Act. If this was the desired parties might be available, which hardly affects the argument). object, it might have been better attained by adding the words Lord Justice Bramwell distinguishes the case from that of an or shall have died before the commencement of the Act." The undisclosed principal intervening and making himself party as change in this case involves a mere inelegance of expression. vendor to a contract for the sale of goods, on the ground that But ambiguities have elsewhere been introduced. Why have there the authority of the agent is to put the principal in the words "Whenever any trustee . shall privity with the vendee, whereas there is no authority given come unfit to act," of Lord Cranworth's Act, been to the agent to put the vendors in privity with a sub-agent, altered into, "Where a trustee ... is unfit to act"? There which was what was sought to be done in the case under discus- is no doubt that infancy disenables a trustee to act. This fact sion. But it occurs to us that it may throw some light on the has no application to the phrase of Lord Cranworth's Act, for case to consider what the relation of the plaintiffs to the vendee it cannot be said that an infant becomes unfit. But it might be of the defendants would be. Surely the vendee of the goods said that an infant is unfit. It sometimes happens that a testator would be in privity with the plaintiffs if the plaintiffs chose to appoints as trustee or trustees one or more children under age, intervene as principals. Could the plaintiffs, if the price of the in the expectation (not, of course, always fulfilled) that by the goods had not yet been paid over to the defendants, have inter- time of his death they will have reached majority. Are we vened and sued the vendees? If they could, then why should to infer that, by virtue of the present provision, any such infant the mere fact that the price happened to have been paid over to trustee might be removed from the trust upon the ground that he the defendants let in the defendants to set off their generalis unfit to act" in "the trusts or powers reposed in him"? balance against M. and T.? It is to be observed that the decision Under such circumstances the court has deemed it expedient to of the Court of Appeal, carried to its logical consequences, would appoint a new trustee under the Trustee Act (Re Gartside's seem to lead to the conclusion that the plaintiffs had no right to Estate, 1 W. R. 196). sue the defendants at all, not merely that defendants could set off their general balance against M. and T., and that their only remedy was against M. and T. as having received the price of the goods through their agents, the defendants.

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We may observe that in the phrase "person or persons nominated for the purpose by the instrument, if any, creating the trust," there is some uncertainty, owing to the language of other parts of the section, whether the words "if any" qualify the words person or persons" or the word "instrument." In sub-section (5) we find the phrase, “the instrument, if any, creating the trust;" and the same phrase is found in sub-section (7). It is noteworthy that in these two last-mentioned sub-sections, the same phrase gives rise to a very different surmise.

"(5.) Every new trustee so appointed, as well before as after all the trust property becomes by law, or by assurance, or otherwise, vested in him, shall have the same powers, authorities, and discretions, and may in all respects act, as if he had been originally appointed a trustee by the instrument, if any, creating the trust."

Here the only powers given are those conferred by "the instru ment, if any." If there is no instrument, there seem to be no powers. It would therefore seem, so far, that the section con

templates only trusts created by instrument; that is, (see section 2, sub-section 13, which defines the term absolutely, and says nothing about a contrary intention,) by "deed, will, inclosure award, and Act of Parliament."

But hear sub-section (7) :

"(7.) This section applies only if, and as far as, a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument, and to any provisions therein contained."

If

Here the implication seems to be exactly the other way. there is no instrument, there is certainly no contrary intention expressed in it; and the section does therefore seem to apply to trusts created otherwise than by "instrument." It is superfluous to remind the reader that trusts may be declared and created of chattels personal by parol; and of lands, by any writing sufficient to satisfy section 7 of the Statute of Frauds.

We may also observe that, though under section 31, sub-section (1), the appointment of a new trustee may be made by writing only, the new trustee will not be able to exercise the powers given by section 34, unless he is appointed by deed. The points in which the legislation of section 31 differs from that which it supersedes may be summed up as follows:-(1) The residence of a trustee abroad is made a ground for appointing a new trustee in his place; (2) it is enacted that on an appointment of a new trustee (which phrase we presume to apply also to an appointment of more than one) the number of trustees may be increased; which could not, independently of the Act, be lawfully done; nor did Lord Cranworth's Act contain any such authority, although Malins, V.C., once held that an appointment of two trustees in the place of an original single trustee, under that Act, was valid: In re Breary (W. N. 1873, p. 48); (3) the doubt which formerly existed has for the future been removed, as to the lawfulness of a trustee, not expressly authorized so to do, acting in the trusts before the trust estate has been vested in him. And a fourth change in the law seems to have been effected, which requires a few words of separate discussion :

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(3.) On an appointment of a new trustee, it shall not be obligatory to appoint more than one new trustee, where only one trustee was originally appointed, or to fill up the original number of trustees where more than two trustees were originally appointed; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the trust."

We understand the first part of this provision to mean that in cases where a single trustee was originally appointed, but the number of trustees has afterwards been increased, it shall be lawful to reduce the number of them to a single one. The latter part of the sub-section seems to provide that in cases where more than two trustees were originally appointed, it shall be lawful to reduce the number, but not below two. Section 32 introduces a wholly new principle into the law of

trusts:

"32.-(1.) Where there are more than two trustees, if one of them by deed declares that he is desirous of being discharged from the trust, and if his cotrustees and such other person, if any, as is empowered to appoint trustees, by deed consent to the discharge of the trustee, and to the vesting in the cotrustees alone of the trust property, then the trustee desirous of being discharged shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom under this Act, without any new trustee being appointed in his place."

This provision applies only "if and so far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained." It is made applicable to trusts created either before or after the commencement of the Act. The question may be suggested whether as regards trusts containing the usual power of appointment of new trustees, its operation will be excluded? We should suppose that, in the case of private trusts, where the usual power is merely that "it shall be lawful" to appoint new trustees, the section will not be excluded by its use. The form in charitable trust deeds is, however, often obligatory. We think this statutory power is a fair and proper one and ought to be allowed to come into operation. But we think that some restriction is needed to qualify the operation of the provision, that the retiring trustee shall be deemed to have retired from the trust, and shall, by the deed, be discharged therefrom under this Act." It should hardly have been

left to the court to construe these words as not relating to the case of a trustee who desires to retire in order to enable his co-trustees to commit a breach of trust. There can, we presume, be no objection to both the deeds mentioned in the sub-section being united in one deed "

Though section 33 does not contain any saving of power to settlors to exclude its operation, yet it is not declared to take effect notwithstanding (to use the Act's formula) any expression of intention to the contrary.

"33.-(1.) Every trustee appointed by the Court of Chancery, or by the Chancery Division of the court, or by any other court of competent jurisdiction, shell, as well before as after the trust property becomes by law, authorities, and discretions, and may in all respects act, as if he had been or by assurance, or otherwise, vested in him, have the same powers, originally appointed a trustee by the instrument, if any, creating the trust."

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The part of Lord Cranworth's Act for which this is substituted, does not lie open to this doubt, since section 32 of that Act contains a general power of exclusion which seems to be tion which ought to have been left doubtful. We sufficient for the suggested purpose. This is not a questhe reader that previously to Lord Cranworth's Act, all the powers of original trustees did not pass to trustees appointed by the Court of Chancery. The court refused to assume jurisdiction to intrust its own nominees with the exercise of powers which were thought to imply a relation of personal confidence with the settlor. The court also made no attempt to enable its nominees to exercise powers which operated by virtue of the Statute of Uses: a jurisdiction which, if it had been assumed, could only (in the absence of a statutory enactment to bind the courts of common law) have been enforced by circuitous means. to be doubtful whether the statutory power contained in the present section would be intercepted by the express declaration of the settlor; and this doubt may sometimes give rise to inconvenience.

It seems

The next section provides a novel method of vesting trust property in new trustees.

"34.-(1.) Where a deed, by which a new trustee is appointed to perform any trust contains a declaration by the appointor to the effect that any estate or interest in any land subject to the trust, or in any chattel so subject, or the right to recover and receive any debt or other thing in action so subject, shall vest in the persons who, by virtue of the deed, become and are the trustees for performing the trust, that declaration shall, without any conveyance or assignment, operate to vest in those persons, as joint tenants, and for the purposes of the trust, that estate, interest, or right."

This should perhaps rather have said, "without any further conveyance or assignment"; for the declaration of course amounts to a statutory conveyance. It is difficult to see what will be gained by substituting this for an actual conveyance in those cases in which a conveyance is usually by the existing practice included in the deed appointing new trustees; especially

as covenants against incumbrances on the part of retiring trustees will need to be expressly inserted. In some cases the interpretation of these privately made vesting orders might give rise to displace, upon the score of "unfitness," a trustee who should difficulty. If a tenant for life should take it upon himself to refuse submission to his decision, the question will arise whether the efficiency of the declaration to pass the legal estate is dependent upon the propriety of the exercise of the power of displacement and new appointment.

Sub-section (2) makes a similar provision applicable to the discharge of a trustee without the appointment of a new one. The section does not extend to copyholds, or mortgages upon which the trust funds are invested, or registered stocks.

Section 35, which concludes the portion of the Act which we are now reviewing, is in substitution for sections 1 and 2 of Lord Cranworth's Act. It applies only if not excluded; and only to trusts and powers created by an instrument coming into operation (in Lord Cranworth's Act the corresponding provision was contained in the word executed) after the commencement of the Act.

"35.-(1.) Where a trust for sale or a power of sale of property is vested in trustees, they may sell or concur with any other person in selling all or any part of the property, either subject to prior charges or not, and either together or in lots, by public auction or by private contract, subject to any such conditions respecting title or evidence of title, or other matter, as the trustees auction, or to rescind any contract for sale, and to re-sell, without being think fit, with power to vary any contract for sale, and to buy in at any answerable for any loss."

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LEAVE TO DISCLAIM LEASE.

(Ex parte East and West India Dock Company, In re Clarke, C.A., 30 W. R. 22, L. R. 17 Ch. D. 759.)

In this case the assignee of a lease filed a liquidation petition, and the trustee in the liquidation applied to the court, under rule 28, for leave to disclaim. The application was opposed by the landlord, on the ground that, as, by section 23 of the Bankruptcy Act, 1869, a lease, if disclaimed, is to be deemed to have been surrendered as from the date of the appointment of the trustee, the effect of the disclaimer would be to deprive the landlord of his remedies against the lessee since that date. The landlord offered to undertake not to sue the trustee upon the covenants in the lease, and not to make any claim against the estate of the assignee, but did not offer to indemnify the trustee or the assignee's estate against any claim by the lessee upon the covenant in the assignment to indemnify him. The contention of the lessor, it will be seen, was based on the supposition that the opinion of the majority of the judges in Smyth v. North (20 W. R. 683, L. R. 7 Ex. 242) was incorrect. In that case Martin and Pigott, BB., expressed an opinion that disclaimer under section 23 of the Bankruptcy Act did not effect a complete surrender of the lease, so as, in the case of a bankrupt assignee, to deprive the lessor of his remedies against the lessee on the covenants in the lease. And in Ex parte Walton, In re Levy (L. R. 17 Ch. D. 756), Lord Justice James laid it down that section 23 must be understood as saying only that the lease "shall, as between the lessor on the one hand, and the bankrupt, his trustee and estate, on the other hand, be deemed to have been surrendered." In the present case the court did not think it had jurisdiction to decide whether this was the right view, and, indeed, it was unnecessary to do so, for they held that upon an application for leave to disclaim the discretion of the court should be exercised only with a view to the administration in bankruptcy of the bankrupt's estate, and for the benefit of all persons interested in that administration, and that leave to disclaim ought not to be refused on the ground that the position of other persons would be affected by disclaimer. Since it may be assumed that leave to disclaim is never asked for unless the disclaimer will be beneficial to the bankrupt estate, and that the landlord will never undertake to indemnify the estate of the bankrupt assignee against the covenant for indemnity in the assignment, the effect would seem to be that leave to disclaim a lease will never be refused. And it may perhaps be questioned, having regard to the principle laid down in the recent case, how far in future the power of the court to impose conditions on the grant of leave will be exercised as it was in Ex parte Ladbury, In re Turner (L. R. 17 Ch. D. 532).

REVIEWS.

THE CONVEYANCING ACT.

THE CONVEYANCING AND LAW OF PROPERTY ACT, 1881 (44 & 45 VICT. c. 41), (BEING AN ACT TO SIMPLIFY CONVEYANCING), WITH INTRODUCTION, SUMMARY, AND PRACTICAL NOTES AND CONVEYANCING PRECEDENTS, AND AN APPENDIX CONTAINING LORD CRANWORTH'S ACT, 1860; THE VENDORS AND PURCHASERS ACT, 1874; THE SETTLED ESTATES ACT, 1877; AND THE SOLICITORS' REMUNERATION ACT, 1881, WITH CAREFUL CROSSREFERENCES AND COPIOUS INDEX, AND FORMS FOR USE UNDER THE ACT. By J. S. RUBENSTEIN, Solicitor. Waterlow Bros. & Layton.

This, our third book upon the Conveyancing Act, is of much slighter frame than that noticed by us last week. The plan is handy and deserves some praise. Its chief feature is a double summary of the Act;

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one very brief and broad, given in the introduction, while the other enter more into detail and is illustrated with notes. The index is arranged on a very ingenious plan, and the cross-references are useful. The Act itself

is printed without other comment than references to the summary. Mr. Rubenstein has evidently taken pains to get at the Act's meaning; and the result is a creditably clear sketch of what he takes to be the scope

of the projected alterations in law and practice. But the book makes no claim to be an exhaustive commentary, nor does it eite any cases. If it contains some propositions which we think cannot be defended, that is a cause for little wonder and less blame.

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Nothing is more remarkable in the bibliography of this Act than the manner in which successive commentators, reversing the part of Balaam, start with a declared prefatory bias in favour of praising, only to find themselves subsequently tuning their notes in a different key. Ominous sounds begin early to mingle with Mr. Rubenstein's hopeful anticipations. Turning over a few more pages, we come upon unequivocal blame. "The provisions of the section [section 18] are of a dangerous character" (p. 28). "The language of the section [section 40] is some what loose" (p. 40). "It is not easy to suggest what is the effect on the whole section [section 42] of the words quoted" (p. 42). "The wording of this section [section 58] is not very clear, and the marginal note does not tend to mend matters (p. 47). At p. 19, in a note upon his abridged version of section 3, Mr. Rubenstein makes some very good remarks showing how the common stipulation that the purchaser shall bear the expense of investigating the title, though not dangerous in its working under the existing practice, may easily become dangerous when supplied by implication in an open contract. remarks agree in their outline with those made by us (vol. 25, p. 884) upon the danger of implying a condition to supersede inquiry into the lord's title on a sale of enfranchised copyholds. The general opinion expressed upon this point by Mr. Rubenstein does not sound very encouraging. "It may be in future as rash to sign an open agreement to purchase as it now is to sign an open agreement to sell" (p. 14). Acquaintance with our columns might have saved Mr. Rubenstein from some errors, and have supplied him with some information. He explains the operation of section 13 by saying that, "on sub-demises the title to the leasehold reversion is not to be required" (p. 24). But it is now, we believe, agreed on all hands that we were right in referring the operation of this section to cases of sub-sub-demise. We have also pointed out the origin of that mysterious part 1 of the first schedule as to which Mr. Rubenstein only conjectures. We were rather startled while looking through Mr. Rubenstein's "Summary," to come upon the unhesitating imputation to the Act of something which looked ridiculous, which we had not noticed ourselves; and we turned hastily to section 14 to verify the statement (p. 25) that the covenant against assigning, mentioned in subsection (6) (i.), must be unqualified, and we are bound to say that we think that, in this instance, Mr. Rubenstein has accused the Act unjustly.

CORRESPONDENCE.

STAMP DUTY.

[To the Editor of the Solicitors' Journal.]

Sir,-In your number for October 29 last, "Inquirer" asked to be advised upon questions of duty, and in your next number (November 5) I ventured to advise him thereon.

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Inquirer's" letter also appeared in one of your contemporaries, but a week after it appeared in your columns, and a correspondent replies in this week's number with opinions quite opposed to those I had expressed.

If, under these circumstances, your correspondent "Inquirer" be plunged into doubt, I venture to say that the duties named in your con

temporary by "Z. Y. " are altogether wrong, while, on the other hand, I also venture to say, that if "Inquirer" were to submit the instruments for adjudication by the Inland Revenue, he would find that the duties I named would be adjudged.

"Z. Y.," in his letter to your contemporary, says :-" Assuming that need for assumption, for, as well that " in cases (a), (b), and (c) there was a separate instrument." I saw no Inquirer" put his cases clearly and concisely, he also sufficiently clearly, as appeared to me, expressly stated there were separate instruments.

ANSWERER.

DEFENDED PRISONER ADDRESSING THE JURY.

[To the Editor of the Solicitors' Journal.]

Sir, To the judges you name who allow a prisoner to address the jury as well as his counsel is to be added Mr. Justice Field. This learned judge's view, however, differs from those of his colleagues in the point

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