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notice is stated in the liquidation rule, the presumption being of architectural and building terms. The book seems to us a very that the notice need only be a four days' one under rule 50.

complete and satisfactory manual, alike for the lawyer as for the architect Many more instances of the useless and puzzling discrepancies and builder. between the two practices might be given, but we have quoted enough to illustrate our meaning. We cannot think that these

THE CONVEYANCING ACT, differences in practice were ever designed or intended. It would The ConveYANCING AND LAW OF PROPERTY Act, 1881, AND THE VENDOR appear as though the drafting of the rules in bankruptcy and liqui

AND PURCHASER Act, 1874, WITH Notes ; AND FORMS AND PRECEDENTS dation were given to two different draftsmen, each of whom

ADAPTED FOR USE UNDER THE ACTS; ALSO THE SOLICITORS' REMINERAperformed his task without consultation with the other, and in the

TION Act, 1881. By EDWARD PARKER WOLSTENHOLME, Barrister-at

Law, one of the Conveyancing Counsel to the Court; and RICHARD baste of getting the rules out they were not sufficiently revised so as

OTTAWAY TURNER, Barrister-at-Law. William Clowes & Song. to correct these glaring inconsistencies. This, of course, is merely a

In our review of the first edition of this work we ventured to surmise, but it is the only way in which we can account for the express some surprise that, though it of course contained many valudiscrepancies. If, without troubling the Legislature, the rules had able observations, it also contained an unexpectedly large number which long ago been thoroughly revised, so as to wipe out these anomalies, seemed open to adverse criticism. Upon the additions which have we think there would have been considerably less complaint to be been made to the notes, we have the same opinion to expressfound with the working of the present law. And the correction namely, that they contain valuable and instructive observations, but of these are not the only amendments in the law of bankruptcy not these alone. We shall notice only the following. At p. 55, in an which might be made by rules alone.

The whole system

addition to the note upon section 18, apparently by way of warning proxies, for example, might be re-modelled upon the basis of the against excluding the mortgagor's power of leasing, great stress is laid Government proposals by the making of new rules to take the should foreclose and find a common law lessee of the mortgagor in

it place of rules 85 and 86, as section 80, sub section 8, is, we possession. We must heg leave to repeat our opinion that these fears think, sufficiently wide for that purpose.

are chimerical. The mortgagor's lessee would not have accepted the lease for love of the mortgagor, but because he liked the tenancy; and he would in most cases be quite willing to continue it under the

mortgagee, if the latter did not wish to eject him. But the question REVIEWS.

does not (as the advocates of section 18 sometimes seem to insinuate) lie between having no power of leasing at all, and giving an unlimited

power of leasing to the mortgagor. If the mortgagee has a proper BUILDING LEASES,

power of leasing, he would not be likely to suffer much inconveTHE LAW RELATING TO BUILDING LEASES AND BUILDING CONTRACTS, THE

nience from the absence of a power of leasing in the mortgagor. IMPROVEMENT OF LAND RY, AND THE CƏNSTRUCTION op, BUILDINGS. With and we can easily imagine that consequences much more serious a full Collection of Precedents, together with the Statutes relating to than those depicted by our learned authors might follow from Building, with Notes and the Latest Cases under the Various Sections, leaving to the mortgagor the absurd power given by section 18, suband a Glossary of Architectural and Building Terms. By ALFRED section (1), including, as it does, power to grant building leases for five EMDEN, Esq., Barrister-at-Law. Stevens & Haynes.

years at & peppercorn rent. Large additions have been made to the This is a careful digest of a branch of law which, so far as we know, Mr. Wolstenholme makes it a delicate task for less considerable persons

precedents. The eminent position among conveyancers enjoyed by has not yet been fully treated. The subject, it will be seen, embraces to criticize precedents issued under his sanction. We shall only men. both building leases, contracts to build, and the law relating to the construction of buildings; and the arrangement of the work naturally follows range of less than half a dozen pages.

tion & very few points which have occurred to our notice within the

That an observation formerly in general these divisions. The first five chapters are chiefly devoted to made by us (suprà, p. 160) upon a form of covenant to keep up agreements for building leases and building leases. . It might have been fire insurance, in the first edition at p. 128, and now at p. 155, was not more convenient to treat of the persons by whom building leases may be

ill founded, is shown by the fact that the form is now corrected in granted, and agreements for such leases entered into, first, but the author accordance with our criticism. At p. 152 there is a form of covenant has postponed it to his fourth chapter. And the chapter on the form of for payment of interest which begins with these words :-“ And also so agreement to build might, we should have thought, have been combined long as any principal money shall remain due under these presents after with chapter 6 on “ the contract to build." Chapter 6, relating to the the day aforesaid." Wo submit that the words in italics do not contract to build, is followed by chapters on the duties and liabilities of indicate with desirable strictness the day referred to, there being more the architect, preliminary drawings, specifications, &c., approval and per- than one day aforesaid,” notably the day of the deed's date. The formance of work, and other matters relating to these subjects, including next form is as follows:a useful chapter on “extras." Chapter 16 is devoted to the subject of specific performance of building contracts and agreements for build

“[TO FOLLOW DEMISE OF LEASEHOLDS.] ing leases ; and chapters 18 to 23 relate to different branches of

"And (mortgagor] bereby covenants with [mortgagee(s)] that

principal term the subject of the rights and liabilities of the building lessee, so in mortgage

[mortgagor) will henceforth stand possessed of the premises far as they are distinct from his rights and liabilities under the

by sub-demise. comprised in the said lease for the residue of the term thereby

granted In trust for [mortgagee(s)] and to assign and dis. general law of landlord and tenant. With regard to the execution

pose of the same as he [chey) or the persons or person entitled of this part of the work we can speak favourably. The cases have

to the prinoipal money for the time being due on tbese been carefully collected, and, although they are sometimes stated at

presents shall from time to time direct, but subjeot to the greater length than we should think necessary, they are, in the instances

proviso for redemption hereinafter contained." we have examined, stated with accuracy. We are not quite prepared to state that all the author's deductions from them are the best that could be always been to make the trust of the residue of the term, in favour of

The common practice in mortgages by sub-demise has hitherto made; for instance, although he has certainly Lord Blackburn's authority the mortgagee and his representatives, apply only." after any sale made for his statement that in Lewis v. Hoare (29 W. R. 357), “all that the under the aforesaid power of sale." Messrs. Prideaux and Whitcombe plaintiff had to show was that the works had been done so as morally to (11th ed., vol. 1, p. 514) adapt this to the

Act by saying :-—"After any sale entitle the builder to a certificate," we should have preferred Lord Watson's way of putting the matter, that “if the certificate had been sale." It is seldom that anything is gained by deserting a well-estab

of the said premises or any part thereof, under the statutory power of given, it could not have made the houses more complete than they were in fact, and the fact that it was with held did not render them less so.”

lished form without any reason ; and we here see nothing in the estab. And in the statement of Marsden v. Sambell (28 W. R. 952), at p. 125, that of Messrs. Wolstenholme and Turner. We do not see how the

lished form to require such a violent departure from it as is displayed by we find no reference to Mr. Justice Fry's observations as to the able time" within which a right to rescind a building contract on the ground phrase, due on these presents,” is better than “due under these of delay must be exercised. These, however, are very small matters. In presents," appearing in the preceding form ; and still less how it is better general we think the digest of the cases has been well and carefully form before that; nor is it usually thought desirable to have in the same

than “due. upon the security of these presents," appearing it the executed, Part 2 contains precedents of contracts to build, of agreements for building leases, of building leases, mortgages, and other forms relating page several different phrases, even if they are all equally good, for exto building matters. It is suficient to say that the precedents of agroe.

pressing the same thing. pents for building leqses follow, in their general structure, the excellent forms in Davidson. The precedents of building contracts seem also to

COMPENSATION. be well framed and complete. We may, however, draw the author's THE LAW OF COMPENSATION UNL FR THS LANDS CLAUSES, RAILWAY CLAUSES attention to the form of contract adopted by Sir E. Beckett, and con- CONSOLIDATION ACTS, THE PUBLIC HEALTH Act, 1875, THE ARTIZANS AND tained in a little book published by him. We have known a modifioation LABOURERS' DWELLINGS IMPROVEMENT ACT, 1875, AND OTHER ACTS, WITH of this form adopted with vory satisfaotory results. Part 3 of the book A FULL COLLECTION_OP KORus ' AND PRECEDENTE. By Eræg LOYP, dentains the statutos relating to building, and is followed by a glosgary Barrister-at-Law. FITU EDITION. Stoyens & Haynes,

“Trust of

reason

.

The profession has sufficiently indicated the estimation in which this (9) The words of the 65t section being “ any person beneficially on. work is held, and it is perhaps superflaous to add anything to the titled in right of the term;" there cau be no doubt that an equitable praise we have bestowed on former editions of this work as a useful tenant for life is such a person. treatise on a branch of law of considerable importance and difficulty, but

FREDERICK PRIDEAUX. we may say, as the result of our investigation of the present edition, that

JOHN WHITOOMBE, we think the author is justified in his statement that great care and Lincoln's-inn, May 2. attention have been expended in its preparation. Defects in the [We reply that (1) Mr. Wolstenholme obviously would not recommend statement of, and in references to, cases have been corrected, and the the exclusion of the undertaking for safe custody if he were satisfied recent decisions have been diligently collected and, in general, very that its effect is precisely equivalent to the covenants by trustees formerly accurately stated; we may point out, however, that the important fact adopted, and no one is better able to judge on this matter. that the married woman was entitled absolutely for her separate use has (2) We are glad to and that our correspondents have now remedied the apparently been dropped out of the statement on

p. 10 of the effect of omission of forms for excluding tho power of lecsing to which we drew Peters v. Lewes, &c., Railway Company (29 W. R. 874). The work is

attention. eminently a practical one, and is of great value to practitioners who (3) On this point we need only call our correspondents' attention to have to deal with compensation cages:

the opinion of Mr. Wolstenholmė, at p. 130 of his first edition and p. 157 of his second edition, where, to the form of agreement for mortgage to continue for å time certain, he appends an express proviso that

the principal money shall, for the purposes of the Act, be deemed to CORRESPONDENCE.

becomo due on the day on which such principal money is covenanted to be paid ; and adds in a note, " This clause seems required to prevent any

question as to the date when the statutory powers of sale, &c., arise." PRIDEAUX'S CONVEYANCING.

(4) If the words "heirs and assigns" might be omitted, then they are [To the Editor of the Solicitors' Journal.]

surplusage. We did not say they were incorrect, but that their insertion Sir,- We have read your review of the new edition of this work, and was inconsistent with the rule, followed elsewhere in the precedents, of have noted a few points made by the writer in the way of adverse adopting the Act. criticism, with respect to which we should be glad to be allowed a few dent' we referred to, we also confess that we inadvertently did them an

(5) and (6) As our authors frankly confess the surplusage in the precewords in reply. The points are as follow : (1) That we make a trustee give an undertaking for safe custody of estate," &c. The words do not occur at the end of the parcels, but in

injustice in saying that the lessee is made to surrender “all other the deeds. (2) That in precedents of mortgage deeds we do not rogative the leasing why the lease is recited in this precedent, instead of the surrender being

the next paragraph. Our correspondents, by the way, omit to explain power conferred by section 18 of the Act.

expressed to be read as an annex to the lease. (3) That in a mortgage containing a provision for continuing the loan

(7) Our correspondents do not accurately quote the provision of for a fixed period, and in a mortgage to secure an existing debt and future advances, we do not insert any express provision as to when the section 2. That section provides that “conveyance” includes " assurance

on a sale, mortgage, demise, or settlement of any property, mortgage money is to be considered to have become due for the purposes of the statutory power of sale.

or on any other dealing with or for any property," not, as our

correspondents say, "any assurance or any dealing with property." (4) That in one of the precedents we add the words "his heirs and

“Surrender of a lease” is not specified ; is it an assurance on a assigus ” after the name of the covenantee, although it is unnecessary.

dealing ejusdem generis with those specified ? The doubt appears to us (5) That in an assignment of letters patent, the vendor is made to to be suficient to call for the insertion of express covenants for right to assign as beneficial owner and also to enter into express covenants for surrender and further assurance. title, which is surplusage.

(8) We may remind our correspondents that misprints of this kind in (6) That in a surrerder of a lease we make the lessee surrender all his

a book of precedents are serious matters. The mistako wo polnted out estate.

does not appear to be calculated to doceive no one. (7) That the definition of a conveyance in section 2 may not include

(9) Our correspondents affirm that un equitable tenant for life is a a surrender of a lease, in which case express covenants for titlo would be “person beneficially entitled in right of the term;" but they unfortunnecessary.

ately omit to give any reasons for their opinion. We have on previo as (8) That in form 3 of mortgage we use the expression “the aforesaid occasions alleged reasons for doubting this opinion. -Ed. S. J.] power" when there is no “aforeeaid power.”

(9) That it ought to have been explained how an equitable ten ant for life is “a person entitled in right of the term" under section 65 of the Act. We reply as follows:

CASES OF THE WEEK. (1) This is done advisedly. Before the Act it was the practice to make a trustee covenant (inter alia) for safe custody, subject to the

SOLICITOR-POWER TO BIND CLIËNT-FRAUD-APPEAL-LEAVE TO WITHqualification that his liability should continue so long only as he holds DRAW DEFENCE AND PUT IN New DeFeNCE-ORD. 58, R. 5.- In a case of the documents. This is the precise effect of an undertaking for safe

Williams v. Preston, before the Court of Appeal on the 27th ult., a question custody under the Act, and, with much deference to Mr. Wolstenholme, aroge as to the extent of the authority of a solicitor to bind his client. The who seems to take a different view, we are unable to see why a trustee's married woman to give the plaintiff a mortgage or charge upon separate estate

action was brought to enforce the performanoe of an alleged agreement by a liability since the Act should not be made co-extensive with what it was belonging to ber as security for moneys advanced to ber by the plaintiff

. The before.

plaintiff, by his statement of claim, alleged that the moneys bad been advanced (2) We do not agree with your reviewer that the leasing power ought by him on the application of the married woman's solicitor, who was her duly to be negatived, as a matter of course, in every case, although there are authorized agent for the purpose. The action was defended by the solicitor on many cases in which, no doubt, this should be done. Forms for this behalf of the married woman by her instructions, and be delivered a statement purpose (though omitted from the first copies of the new edition) will be of defence in her name which, in effect, admitted the plaintiff's case. The found in the later ones.

plaintiff then moved for judgment on the admissions in the pleadings. No (3) The time when the mortgage money becomes due clearly appears and judgment was given by Jessel, M.R., opon an affidavit of service of the

one appeared on behalf of the married woman on the hearing of the motion, on the face of the deed in both the cases put.

potice of motion on her declaring the plaintiff entitled to the mortgage which (4) The words “his heirs and assigus" might, no doubt, be omitted, he claimed. This was in June, 1881. In July, 1891, the solicitor absconded. but they are not incorrect. The precedent is expressed to be given for The married woman afterwards appealed from the judgment, and by ber the benefit of those who do not wish to adopt the Act in all respects. notice of appeal she also asked that she might be at liberty to withdraw her (5) Some surplusage here is admitted.

statement of defence, and to deliver a fresh defence, and to adduce such (6) The lessee is not in this precedent made to surrender "all his affidavit in which she said that the defence which the solicitor had delivered

eridence against the plaintiff's claim as she might be advised. She filed an estate, &c.” The words "and all other his estate, if any, &c.," occur on ber behalf was untrue, and that he had delivered it fraudulently, and that in a subsequent part of the precedent, and their insertion is quite con- she had never authorized him to borrow money from the plaintiff, and had sistent with the omission of the "all the estate" clause at the end of never received the money alleged to have been borrowed, and that she knew the parcels in the precedents generally.

nothing about the judgment until after the solicitor had absconded. It was (7) It is clear that the term “conveyance" includes a surrender, as the urged on bebalf of the plaintiff that, even if the fraud alleged by the defend 2nd section provides that "conveyance” shall include any assurance or

ant had been committed by the solicitor, still sbe, having employed him as her pny dealing with property.

solicitor in the action, was bound by the admissions which he had made on

her behalf, and that her only remedy was by means of an action for damages (8) The “aforesaid power of sale” is a misprint for the “ statutory against him. The court (Lord COLERIDGE, C.J., and LINDLEY and HOLKER, aower of {ale.” The slight mistake is an obvious one and could deceive L.JJ.), however, held that they had jurisdiction to grant the application, and po one,

that it ought to be granted if the defen laat skyld sycceed in proving her allegations, and they ordered the application to stand over for the attendance costs of the deed, to divide the proceeds of sale among the creditors rateably, of witnesses, -SOLICITORS, E, I, Lewis ; Wolferstan, Avery, Jennings. and that this was, in effect, & mortgage to the trustee to secure his debt. In

[graphic]

any event the deed would operate for this purpose, and, therefore, Fry, J.,

held that it must operate entirely. Another question was whether the reAPPEAL—DISMISSAL FOR Default OF APPELLANT TO GIVE SECURITY FOR versionary interest had passed to the assignee in bankruptcy of the husband, Costs—FORM OF ORDER.—In a case of Harris v. Fleming, before the Court of the bankruptcy (which took place under the Bankruptcy Act, 1861) having Appeal on the 3rd iost., a question was raised as to the proper form of order been subsequent to the execution of the deed, on the ground that it was in the when an appeal is dismissed in consequence of the failure of the appellant to order and disposition of the husband as reputed owner, because no notice had comply within a reasonable time with an order that he should give security for been given by the trustee of the creditors' deed to the trustees of the trust the costs of the appeal. The form given in Seton on Decrees (4th ed., p. 1614) fund. The evidence was not satisfactory on this point. But Fry, J., said is an absolute dismissal of the appeal, while the form of dismissal of an action that it was the duty of the assignee in the bankruptcy to complete his title to in the High Court for default of the plaintiff to give security for costs is the fund by obtaining, as provided by section 125 of the Bankruptcy Act of (pp. 1541-2) only a dismissal for want of prosecution. In the present case 1849, an order from the Court of Bankruptcy for the sale of the wife's the registrar had drawn up the order dismissing the appeal absolutely in interest for the benefit of the creditors under the bankruptcy. No such order accordance with the form in Seton. The appellant

moved to vary the minutes

, had been obtained, and until it had been obtained the assignee could not claim and it was urged that the form in Seton was wrong, and that the order ought the fund. If he did

not succeed in obtaining the order, the trustee under the to show that the dismissal of the appeal was, not on the merits, but only for creditors' deed would have the better title. His lordship gave the assignee want of prosecution. The appellant, it was said, would be entitled, if be six weeks to enable him to obtain the order from the Court of Bankruptcy. should be able to give the security before the expiration of the time limited A further question arose as to the Statute of Limitations. For this purpose it by the rules for appealing, to present a fresh appeal, and an order absolutely ie necessary to state the facts more fully. The trust was created by a settlement dismissing the appeal would be an obstacle in the way of his exercising this in 1835, and under it the trust fund was limited on trust to pay the income right. The court (JESSEL, M.K., and LINDLEY and HOLKER, L.JJ.) held to a mother during her life, for her separate use, and after her death to pay that the order was in the right form, and, without absolutely deciding the the income to the father during his life, and after his death the fund was to point, inclined to the opinion that the appellant would not be entitled to bring be divided in equal shares among their five children. In 1849 the fund had à fresh appeal.-SOLICITORS, Clarke, Rawlins, f. Clarke.

been invested, partly in the purchase of some leasehold property, and partly on a mortgage of other leasehold property. In June, 1849, all the persons interested

in the fund executed a deed sanctioning this mode of investment, and giving SOLICITOR-Costs—TAXATION—COMMON ORDER-RETENTION OF Costs the trustees a power of sale and re-investment. In 1854 one of the daughters AND PAYMENT OF BALANCE TO CLIENT-6 & 7 VICT. C. 73, s. 41.-On the 3rd

was about to marry the bankrupt, and D., one of the trustees of the settleinst., the Court of Appeal (JESSEL, M. R., and LINDLEY and HOLKER, L.JJ.), ment,

agreed to lend her a sum of £300. To secure the repayment of this sum, reversed the decision of Chitty, J., in a case of In re Angove (ante, p. 314). with interest, a deed was executed by which the father and mother, the The question was whether the common order to tax a solicitor's bill of costs daughter (with the assent of her intended husband), and one of her sisters could be obtained, and this depended on the question whether the bill must assigned to D. their respective interests in the trust fund by way of mortgage. be taken to have been paid by the client. On the 30th of May. 1881, the The deed contained a declaration that, as between the assigning parties, the solicitor delivered to the client' his bill of costs, amounting to £100 98. 7d., £300 and the interest thereon should be primarily chargeable on the share in and on the next day he delivered to the client a cash account, which, after the trust fund of the daughter who was then about to marry. On April 18, deducting the amount of the bill, showed a balance of £1 18s. ld. to the credit 1854, the marriage took place. On April 26, 1861, the creditors' deed was of the client. On the 24th of November, 1881, the client called at the executed. On April 30, 1861, the wife died. On January 23, 1862, the solicitor's office and requested payment of the balance due to him, which he mother died. During her life the interest on the £300 was paid by ber, it said was £1 16s. The solicitor did not remember the exact amount, and, being having been from time to time deducted by D. from her income. In December, in a hurry, did not look at his papers, but gave the client a cheque for 1862, some of the leasehold property on which the trust fund was invested was £1 163. On the 23rd of February, 1882, the client obtained the common sold,' and out of the proceeds of sale the £300, and all interest then due on it, order to tax the solicitor's bill. The solicitor applied to discharge this order, was paid to the mortgagee, and on December 23, 1862, he assigned the morton the ground that the receipt by the client of the £1 168. as the balance of gage debt to the trustees of the settlement upon the trusts of the settlement. the cash account amounted in law to payment of the solicitor's bill. Chitty, On June 2, 1868, the adjudication of bankruptcy was made. On March 12, J., refused to discharge the order. He said that in law a payment of £1 168. 1877, the father died. During the period of bis tenancy for life under the settle, was not a payment of £1 189. 10. He was of opinion that, if the solicitor ment—i.e., from the death of the mother until his own death-he in effect paid intended by the payment which he made to the client to settle finally all the interest on the mortgage debt of £300; or, in other words, no interest on accounts between himself and the client, he ought to bave drawn the client's it was paid to him or to the trustees of the settlement, and his income as attention to this at the time of payment, in order that the client might have tenant for life under the settlement was to that extent diminished, In 1879 an opportunity of having the bill of costs at once taxed, if he wished that this the trustees of the settlement paid into court the share of the bank. should be done. JESSEL, M.R., said that the only question was whether the rupt's wife in the trust fund, less the £300. The fund in court was claimed bill had been paid. So far as he knew, there was no difference between the by the assignee in the bankruptcy, and by the trustee under the creditors' payment of a solicitor's bill and the payment of any other bill, such as a deod, and a petition was presented by the assignee. The executrix of the father tradesman's bill. Did the client assent to and settle the cash account? If he also claimed to be paid out of the fund in court the interest on the £300 did, this was equivalent to payment of the bill of costs. The client's demand which he had paid during his tenancy for life. It was objected that this claim, of the balance of the cash account as such, and the acceptance by him of the or the greater part of it, was barred by the Statute of Limitations. Fry, J., £1 16s. as such, had the same effect, as showing that be accepted the account, said that as one of the trustees of the settlement was a party to the deed of as if the whole balance had been paid to him by the solicitor. If the balance 1854, those trustees must be taken to have had notice of that deed. At any had been £100, and he had said to the solicitor, Pay me half the balance of rate they had notice of it by means of the deed of the 23rd of December, £100, that would have amounted to an acceptance of the account, and, there 1862. The result was that they became trustees of the share of the bankrupt's fore, to payment of the bill. The bill, therefore, having been paid, the wife on the terms of the deed of 1854, and one of those terms was that out of common order to tax could not be obtained. LINDLEY, L.J., said that it did that share whatever should have been paid to the mortgagee by the other not follow that, because the balance had not been paid to the client, the bill assigning parties should be repaid to them. That trust was still subsisting, it had not been paid by him. If two people met together and settled an account had been in no way extinguished. Consequently, the fund which was paid between them, by setting off one bill against another, that would be payment into court was paid in on that trust. The Statute of Limitations did not of the bills. It would be a good plea of paymeut in an action at law. apply, and the executrix of the father was entitled to be paid out of the fund HOLKER, L.J., concurred.-SOLICITORS, Angove ; Emanuel : Simonds, in court the interest on the £300 which he had paid, in priority to any other

claim.-SOLICITORS, W. W. Aldridge; H. L. Pemberton ; 0. E. Dawson ; HUSBAND AND WIFE-WIFE'S CHOSE IN ACTION – REDUCTION INTO Pos.

F. Woodhouse. SESSION—" PROPERTY” - CREDITORS' DEED-NON-COMMUNICATION-BANKRUPTCY-REPUTẾD OWNERSHIP-ORDER AND DISPOSITION-TRUST FUND- Will–CONSTRUCTION-SPECIFIC OR RESIDUARY LEGACY.-05 the 3rd Notice to TRUSTEE-BANKRUPTCY Act, 1849, 8. 125-STATUTE OF LIMI. inst. the Court of Appeal (JESSEL, M. R., and LINDLEY and HOLKER, L.JJ.) TATIONS—TRUST—CLAIM BY ONE CESTUI QUE TRUST AGAINST ANOTHER. reversed the decision of Fry, J., in a ease of Broadbent v. Barrow (30 W. R. In a case of In re Biaggi, before Fry, J., on the 29th ult., a question arose 483, ante, p. 282). The question was whether a legacy was specific

, general

, as to the nature of the interest of a husband in a chose in action of his wife, or residuary. A testator bequeathed a number of pecuniary legacies, and which he has not reduced into possession-whether that interest is a mere then he bequeathed all his personal estate of wbich he should die possessed, possibility, or whether it will pass by a deed under the desoription of “property and which should not consist of money or securities for money, to R. absoof the husband. A wife was absolutely entitled, subject to the life estates of her lately. And be gave and devised all the rest, residue, and remainder of his mother and her father, to a share of a trust fand. Her husband executed a estate, both real and personal, to trustees upon certain trusts. The personal dood for the benefit of his creditors

, by which be assigned to a trustee a lease. estate was insufficient for the payment of the pecuniary legacies in full. hold bouse and his furniture, and all other personal estate and interest." Fry, J., held that the gift to R was specific. He said that he accepted the Fry, J., held that the roversionary chose in action of the wife passed by the definition of a specific legaoy given by Jessel, M.R., in Bothamley v. Sherson deed, sabject to the condition that it must be redaced into possession by the (23 W. R. 848, L. R. 20°Eq. 304) viz., that it must be (1) a gift of part of husband. Subject to the performance of that condition, his lordship was of the testator's property itself, and (2) a gift of a part emphatically as disopinion that the busband's interest in the chose in action was " property," tinguished from the whole. Fry, J., said that the gift to R. fulfilled both and that it passed by an assigoment of “property."

those conditions. Jessel, M.R., said that the will was very obscure. There A further question arose whether the creditors' deed had been in any way were, however, some principles of law which would enable tbe court to come acted on, or communicated to the creditors, and, whether, therefore, it had had to a conclusion as to the proper meaning of the words wbich the testator ang operation at all

. There was very little evidence on the point. But Fry, J., had used, though his lordship had not the slightest idea what his real meaning held that this was immaterial, on the ground that the assignment was to one of It was a curious thing that Fry, J., bad considered that he was follow, the creditors en trust for sale, and, after paying a debt due to himself, and the ing Bothamley v. Sherson, and bad based bis decision upon it. The Master

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of the Rolls thought that he could not in that_cage have expressed himself was made onder Rules of Court, 1875, ord. 50, r. 4, for the continuation of an with sofficient clearness, for the meaning which Fry, J., bad attributed to his action between the original parties thereto and the executor of the will of a words was diametrically opposed to that which ho bimself had attributed to deceased accounting party. It was stated that the proposed new party was them. He had said in Bothamley v. Sherson that a specific legacy must be a resident in Ireland, and had proved the will in Dublin, and that under those bequest of part of the testator’s property, and a bequest of a part emphati- circumstances a petition of course had been presented at the Rolls, but the cally as distinguished from the whole. It must not be a gift of the whole of secretary had declined to make the order. NORTH, J., said that he saw no his personal estate, or of the totality of the general residue efter having difficulty in making the order asked for, but required an affidavit to be filed, given legacies out of it. He did not think that the gift to R. satisfied the showing the circumstances under which the order was applied for, and gave second condition which he there laid down. He had said that it must be a gift leave for serviee of the order in Ireland.-SOLICITORS, Grover & Humphreys. of a severed or distinguished part of the testator's property. He intended to 82V that the whole of a general residue could not be given specifically, although a specifio legacy might have been given out of it. A general legacy

SOLICITORS' CASES. was not given out of it, and it followed that, if you took something out of it which was not given at all, still it could not be a specific

HIGH COURT OF JUSTICE.- QUEEN'S BENCH DIVISION. legacy. In the present case the important question (whether the legacy to R. (Sittings in Banc before Lord COLERIDGE, C.J., and GROVE, J.) was called specific or not) was, were the general legacies to be paid out of it?

April 29.-Ex parte the Incorporated Law Society, Re A Surgeon. The testator had directed his debts to be paid by his executors. What was the legal meaning of that? It amounted to a direction to his execators to pay nisi calling upon the medical man ia question to show cause why an

Willis, Q.C. .(with whom was Murray), moved the court for a role his debts out of his personal estate. Then there was a gift of pecuniary attachment should not issne against him for contempt of court in legacies. That was, in law, a direction to his executors to pay the legacies out of his personal estate. "The mere gift of general legacies carried that baving, though an, unqualified person, issued a writ and taken other steps direction with it. Then came the

gift to R., which could not be specific, for in an action of Roberts v. Smith. Roberts, a working man, bad been em. it was not a gift of a distinguished part of the personal estate. Tbe only part he had sustained personal injuries whick, as he alleged, had been due to the

ployed by Smith to do some repairs to some sbutters, and while so employed which was distinguished was that which was excepted out of the gifts. Was carelessness of a third person, who was in the service of Smitb. Roberts had there anything to except the general personal estate from its ordinary liability been attended by the person against whom the present application was made, to pay the general pecuniary legacies? It was said that the sabsequent gift

of and who was stated to carry on business as a chemist at one place and practice residue had that effect. No doubt the word "residue" would carry all the testator's money and securities for money, but would it carry anything else ?

as a surgeon at another. The latter had induced a solicitor with whom he It would do so by law, but not by the meaning of the testator's words. By compensation. The solicitor appeared to have heard nothing more of the

was acquainted to make an application to Saith on Roberts's bebalf for some the meaning of his words it would carry his money and securities for money, matter for some weeke, during which, however, a writ had been issued in his and nothing else. What he was really dealing with by the gift of the rest, residue, and remaioder of his personal estate was that which was excepted name, and several letters purporting to have been written by him sent to the from the gift to R. Did be mean that the “money and securities for money

solicitors acting for Smith, which were dated some from one place and some was to be the only fund applicable to the payment of the pecuniary legacies from another. The solicitor, hearing of this by a mere accident, at once er. The general law was that, in order to exonerate the general personal plained the matter to the solicitors acting for Smith, and they took out a estate from the payment of pecuniary legacies, there must be express name of the solicitor supposed to be acting for Roberts had been used in the

summons to stay further proceedings in the action, on the ground that the words, or something necessarily leading to that result. It was the law, not the use of the word "residae," which rendered the property

included in the writ, &c., without his authority. At the hearing of that sommons an affidavit gift of residue liable to pay the legacies, and there was nothing to exonerate in which it was stated that in accordance with an arrangement made between

sworn by the person against whom the present application was made was used, the personal estate comprised in the gift to R. from the payment of the legacies; himself (the deponent) and the solicitor, the name the latter bad been though there was a preference of the “money and securities for money as the fand for that porpose. Not only was the gift to R. not specific, but R. painted up at one of his (deponent's) places of business. It was sought to could only take after payment of the pecuniary legacies, if the “money and been unauthorized; but the latter stated that he had caused his name to be

make out that in this way the use by him of the name of the solicitor had not Becurities for money were not sufficient to pay them. In the course of the argument bis lordship expressed his disapproval of the decision of Maling, painted out there at once, and that the writ in the action had been issued withV.O., in Pocock v. Riley (19 W. R. 869, L. R. 12 Eq. 175), which he said bad

ont bis knowledge. teen approved by no one. LINDLEY, L.J., was unable to agree with Fry, J.,

The Court granted the application.-Times. that the gift to R. was specific. He did not profess to define with accuracy what a specific legaoy was. He thought it was sufficient to take as a type, though not as an exbaustive definition, the definition given in Williams on Executors (8th ed., vol. 2, p. 1163), “a bequest of a specified part of a testa. tor's estate which is distinguished from all others of the same kind." It did

NEW ORDERS, &c. not follow that, because a legacy might fluctuate, it was not specific. The gift to R. did not answer this definition of a specific legacy. It was a gift of general personal estate, not of a part sofficiently defined. The substantial

CENTRAL OFFICE, question was, In what order were the assets to be administered ? A number OFFICE RULES SETTLED BY THE PRACTICE MASTERS, 1880, 1881, 1882. of legacies were given, which, prima facie, were to be paid out of the personal Documents to be filed in the Writ and Appearance and Summons and Order estate. Prima facie all the legacies must be paid out of the residue, but, if

Departments.
that was not sufficient, they must be paid out of the other personal estate.
Tbey could be paid out of nothing else. HOLKER, L.J., concurred.- Originating sommonses ise qed from Chancery Chambers.
SOLICITORS, S. Copping ; Young, Jones, Roberts, & Hale ; Lawford, Water.

Petitions of right. house, & Lawford.

Affidavits of service.
Lower soalo oertificates (Chancery).

Schemes of arrangement under Railway Abandonment Aot.
CHARITY-BUILDING REGISTERED AS PLACE OF MEETING FOR RELIGIOUS

Pleadings left on entering jadgment (order xli. rule 1). WORSHIPCHARITABLE TRUSTS ACT, 1853 (16 & 17 Vict. c. 137), ss. 17, 62–CONSENT OF CHARITY COMMISSIONERS.-In a case of Glen v. Gregg, before of appearance.

Pleadings and other documents filed under order xix, rolo 6, in default Kay, J., on the 28th and 29th ult., the question arose as to the necessity Writs and returns to write, ordere, &o. of the consent of the Charity Commissioners to an action under the All documents required by roles or orders of court to be filed, such as following circumstances :— The action was brought by some of the trustees of warrants of attorney, and cognovits on signing judgments (rule 25, of Hilary, a deed, whereby land was conveyed opon trusts for a church for service 1853), orders for assessment of damages and masters findings thereon (rule according to the principles of the Reformed Episcopal Church, as stated in a 171, of Hilary, 1853), algo satisfaction pieces and orders to satisfy, strike declaration of their creed made at a general couocil of their body. The defend- ont, or amend any judgment or proceeding, or directing ang aot to be done ants were the minister of the church, who, it was stated, had seceded from the in the office (except Chancery orders and orders of coart in Queen's Bench general body, and started a sect of his own, and the remaining trustees. The Division). [A copy of the order marked that the original was prodaoed relief asked was an injunction to restrain the minister from performing service in the church, and to restrain the defendant trustees from allowing him to do may be taken at the discretion of the officer in cases in whioh the original 80, and, so far as was necessary, administration of the trusts of the deed. The

is required to be retained by the parties.] counsel for the defendants took the preliminary objection that the consent of

All pleadings to be entered in the cause-books are to be opened and the Charity Commissioners to this action had not been obtained. KAY, J.

, stamped on the day of filing, with the date seal at the top of the front said that this, being an action for administration, and a declaration that, page, and retarned to the General Filing Department on Monday morning according to the trusts of a deed, the minister bad no right to hold his office, was within section 17 of the Charitable Trusts Act, 1853, which requires the

Copies writs filed. consent of the Charity Commissioners to a proceeding being commenced

Præcipes for writs of execution. relating to a charity, or the estate or property thereof, He, therefore, ordered

Præcipes for sabpoenas and miscellaneous writs. the action to stand over for their consent to be obtained.-SOLICITORS, A. D.

Appearances.
Smith & Wood; Young & Sons,

Lower scale certificates.
Certificate of coste.

All these should be sent to the General Filing Department when more
PRACTICE-PARTIES TO AN ACTION_ALTERATION OF PARTIES PROPOSED than a year old,
New PARTY RESIDENT OUTSIDE JURISDICTION--EX PARTE APPLICATION- Orders of commitment and returns thereto may be filed and indixed in
Rules of COURT, 1873, ORD, 60, , 4.- In the case of Jamesa v. Maskell, the writ, &, department in the same way ay (and with writg ef exec9s
before North, J., sitting for Chitty, J., of the 29th ult., 40 fine parts motion tion,

Cause Book, Distinctive Marks, and Indexes.

Writs of summons issued before the Judicature Acts came into force may Actions and matters in the title of wbich a limited company is first must be renewed without an order. be indexed under the first letter of the first word or initial.

A female plaintiff must be described as “spinster," “ married woman," or Courtesy titles of eldest song of Peers are not to govern the distinctive

“ widow," and it an infant, as an infant. mark which is to follow the surname, viz., "Campbell” and not "Marquis friend

(duly attested) must be filed before the writ of summons can be

Where an inlapt or married woman is plaintiff the authority of the next of Lorne."

In cases, such as Mayor and Corporation of, &o., the initial letter of the issued. city or borough should govern the distinotive mark.

Substituted Service. Affidavit of Service. Owners of ships by name of ship.

Unless the order shall otherwise direct, a copy of the order and of the Overseers of parishes by names of parish.

writ shall be deemed to have been served on the day following the day on Names in which “de” ocoors as part of the surname, or is preceded which a prepaid letter oontaining such copy shall have been posted. only by Christian names, should be indexed under “D." Foreign companies should be indexed under the initial letter of the first

Subpænas. word in their name, e.g., Banco de Lima under “B," Société d'Aolimatiga- Subpoenas remain in force only till the end of the sitting or assize for tion, “g."

which they were issued. A new writ must afterwards be isssued or the Foreign titles should be indexed under the initial letter of the proper or former writ may be (at the option of the parties) altered as to date and sitting, local dame in the title, e.g., Comte de Paris under “P," Dao de Montebello or ansiza, and re-issued as a new writ. under "M."

The date of return in the writ and præcipe may, before service, be The Christian and surnames of all parties to an aotion should be entered amended without the direction of a master, and without fee, provided the in foll in the canse book.

amended date bo within the sitting or assize for which the subpæna Parties are not to be allowed to see the cause book anlegs by express leave issued. obtained from a master or an order by a judge.

A subpoena in an interpleader issue should be headed in the title of the All searobes in the cause book for writs of guinmons or otherwise are to original action, and in the title of the interpleader issue, and should be be made by the olerks in the Central Ofice, and the result oommunicated to applied for in, and løsued out of, the room in whloh the writ of summons the party applying.

In the original action was issued. When a certificate is given, and no inspection of a presipe is required, only one fee of 18. to be taken (or 48. if higber soale).

Removal by appearance to London of Actions commenced in Distriot A separate index is to be kept of writs ia administration actions and

Regislries. of administration summonses, which index the public may searoh without A fresh London distinctive mark to be given. fee.

No separate district registry cause book to be kept. Separate books are to be kept for entering returns to writs of exooution, No letter need be sent to the district registrar. index to lower scale certificates in Chancery matters not actions, and return Writs of summons issued out of a district registry cannot be amended by books and debt attachment book. No other books to be kept for entries except the cause books (and desk book appearance or otherwise.

order or fiat of master unless the action has been removed to London by for facilitating reference). The judgment books may be kept in the cause No writ issued out of a district registry can be amended in the Central book room with the cause books, or in a separate room.

Office unless the duplicate filed in the district registry has been previously

received in the Central Office. Writs of Summons, Appearances, and Amendments.

If it becomes necessary to send to London (for amendment or otherwise) Copies of writs of summons should be signed with the name of the solicitor the copy writ filed in the district registry, authority may be given to send or solicitors' clerks saing them out as under :

the copy writ to the Central Office by sealing a duplicate of the præcipe for C.D. and Co.

appearance, which shall be transmitted to the district registrar by the or A.B.

solicitors concerned. for C.D. and Co.

Distringas. The stamp is to be on the copy writ filed.

In the Chancery Division an order of course to amend a writ of snmmons as When the settlement comprises more than one sum, and the sums are in the plaiotiff may be advised will not justify an alteration that strikes out the the shares or securities of different companles, a separate affidavit and name of any plaintiff or defendant, or makes a person out of the jurisdiction a

notice should be made for each company, and the affidavit should be that party.

the funds comprise "amongst others” the sum of, &c. [specifying the sum In all the divisions an amendment of a writ of summons may be made by in the books of the one company], and a stamp of 103. will be required for leave of a master (on payment of fee) before service. A plaintiff can be struck each separate notice. ont oply by special leave given in the order to amend ; a defendant, by

If there are more sums than one, but all in the books of the Bank of special leave, or on the written statement (to be aled) of the plaintiff's solicitors England, or in the books of any one company, one affidavit and notice will that a notice of discontinuance under order xxiii. has been duly given.

be sufficient for all the sums. In Cbancory actions an amendment to a writ of summons pursuant to an

In actions not specifically assigned to the Chancery Division by the order of court or judge, may be made either on an undertaking to get the Judicature Act, 1873, s. 34 (i. e., so called common law actions brought in order drawn up, or on a separate memorandum or certificate being left for the Chancery Division), no certificate of lower scale shall be given out till filiog, signed or initialed by the judge or registrar, showing the order to have after appearance. In the cause books such actions shall be distinguished by been made.

the letters L.S. In an information, where there is no relator, the Attorney General's signa: delivered to a solicitor, on bis undertaking to return them, Le must siga

When deposited documents, or documents on the file, are ordered to be ture on the writ is not required; but where there is a relator (whether a per. Bon or body corporate) the original writ (not the copy filed) must be signed by receipt and undertaking to return (which may be indorsed on the order), the Attorney-General, and if any amendment be made, it must be authorized and leave the order and indorsement at the Central Office to be returned to by his signature on the original writ or draft.

bim on his bringing back the documents. The signature of the solicitor most In entering appearances à note should be made in the cause books “State. be witnegsed by his olerk, or by someone known to the officer delivering out mentfof claim required" or "Statement of claim not required," and in cases

the documents. where the action is for recovery of land, and the defence is limited, a furtber Dote to that effect should be added.

Pleadings and Documents filed in Default. If no time is specified in an order to amend, the amendment must be made None of these doonments will be placed in the bundles oontaining the within 14 days.

writs of sommons and pleadings filed on entering judgment, but will be No writs are to be issued in Probate Division oauses unless on a certificate made up into two sets of separate bandles. that the affidavit required by order v., rule 10, has been filed.

Tbe first containing all statements of olaim filed in default. Where appearances are entered in the Central Office in Probate and The second containing soumonger, warrants to tax, notices, and miscellaAdmiralty Division actions, a list or copy of the appearances entered shall each neous documents. day be addressed and sent to the prinoipal registrars of the Probato and All tbese documents must have the date of Aling and the name of the Admiralty Divisions. Such list to be made out at the close of the day by one defendant against whom they were filed written on them, and be entered in of the junior clerks in the writ, &c., department.

the canse books under the bead of pleadinge, each encry to show the date If a soliciior has caused an appearance to be entered by mistake, the mis- of filing, nature of document, and name of defendant against whom they are take may be rectified with the consent in writing of the solicitor for the filed. plaintiffs, and on the fiat (on the production of such consent) of a practice None of these documents will (for the present) be delivered out without master to be given on a præcipe with a 28. 8d. (search) stamp.

an order, but any defendant against whom documents have been filed may, A defendant in person may change his address for service (without order after appearance, inspect the same without fee. to change address) by leave of master, but must forth with give notice to the other side.

As to filing generally. In the case of infants the appearance is accepted without any authority or

In the Chanoery Division, jadgments, orders, notices of motion for attaoh. order; an order being obtained by the defendant's solicitor alter the appeare ment, and other documents requiring persopal'service, cannot be filed in ance bas been entered.

default of appearance without an order or leave of a master, and no ploading In the case of a married woman, an order to defend separately must be

or other doouments can be filed under order xix, role 6, uoloss an affidavit obtained before appearance is entered. If a writ of summons bas teen lost the filed copy may, for the purpose of of service under order xiii,, rules 3 and 9, or an office copy thereo', be first

produced to the officer. amendment, or for any ot!er purpose, be treated as a duplicate, but only by leave of a practice master, and on the party giving an undertaking to pro:

Orders and Judgments, Cyge the original at the Central Office whea found

W hon paștion bare not drawn up their ardere gu the day of the beerlinge

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