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notice is stated in the liquidation rule, the presumption being that the notice need only be a four days' one under rule 50.

Many more instances of the useless and puzzling discrepancies between the two practices might be given, but we have quoted enough to illustrate our meaning. We cannot think that these differences in practice were ever designed or intended. It would appear as though the drafting of the rules in bankruptcy and liquidation were given to two different draftsmen, each of whom performed his task without consultation with the other, and in the haste of getting the rules out they were not sufficiently revised so as to correct these glaring inconsistencies. This, of course, is merely a surmise, but it is the only way in which we can account for the discrepancies. If, without troubling the Legislature, the rules had long ago been thoroughly revised, so as to wipe out these anomalies, we think there would have been considerably less complaint to be found with the working of the present law. And the correction of these are not the only amendments in the law of bankruptcy which might be made by rules alone. The whole system of proxies, for example, might be re-modelled upon the basis of the Government proposals by the making of new rules to take the place of rules 85 and 86, as section 80, sub section 8, is, we think, sufficiently wide for that purpose.



The Law Relating To Building Leases And Building Contracts, The Improvement Of Land By, And The Construction Of, Buildings. With a full Collection of Precedents, together with the Statutes relating to Building, with Notes and the Latest Cases under tho Various Sections, and a Glossary of Architectural and Building Terms. By Alfred Emden, Esq., Barrister-at-Law. Stevens & Haynes.

This is a careful digest of a branch of law vihich, so far as we know, has not yet been fully treated. The subject, it will be seen, embraces both building leases, contracts to build, and the law relating to the construction of buildings; and the arrangement of the work naturally follows in general these divisions. The first five chapters are chiefly devoted to agreements for building leases and building leases. It might have been more convenient to treat of the persous by whom building leases may be granted, and agreements for such leases entered into, first, but the author has postponed it to his fourth chapter. And the chapter on the form of agreement to build might, we should have thought, have been combined with chapter 6 on " the contract to build." Chapter 6, relating to the contract to build, is followed by chapters on the duties and liabilities of the architect, preliminary drawings, specifications, &c, approval and performance of work, and other matters relating to these subjects, including a useful chapter on " extras." Chapter 16 is devoted to the subject of specific performance of building contracts and agreements for building leases; and chapters 18 to 23 relate to different branches of the subject of the rights and liabilities of the building lessee, so far as they are distinct from his rights and liabilities under the general law of landlord and tenant. With regard to the execution of this part of the work we can speak favourably. The cases have been carefully collected, and, although they are sometimes stated at greater length than we should think necessary, they are, in the instances 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 made; for instance, although he has certainly Lord Blackburn's authority for his statement that in Lewis v. Hoare (29 W. E. 357), "all that the plaintiff had to show was that the work bad been done so as morally to entitle the builder to a certificate," we should have preferred Lord Watson's way of putting the matter, that "if the certificate had been given, it could not have made the houses more complete than they were in fact, and the fact that it was withheld did not render them less so." And in the statement of Marsden v. Sambtll (28 W. B. 952), at p. 125, we find no reference to Mr. Justice Fry's observations as to the " reasonable time" within which aright to rescind a building contract on the ground of delay must be exercised. These, however, are very small matters. In general we think the digest of the cases has been well and carefully executed. Fart 2 contains precedents of contraots to build, of agreements for building leases, of building leases, mortgages, aud other forms relating to building matters. It is sufficient to say that the precedents of agreements for building leases follow, in their general structure, the excellent forms in Davidson. Tho precedents of building contracts seem also to be well framed and complete. We may, however, draw the author's attention to the form of contract adopted by Sir E. Beckett, and contained in a little book published by him. We have known a modifioation Of this form adopted with very satisfactory results. Part 3 of the book

ba&rftta* tlti ifotuvPS rstottog to Ijuttdiafj, ml U followed, » glow?

of architectural and building terms. The book seems to us a very complete and satisfactory manual, alike for the lawyer as for the architect and builder.

THE CONVEYANCING ACT. The Conveyancing And Law Of Property Act, 1881, And Thb Vendor And Purchaser Act, 1874, With Notes; And Forms And Precedents Adapted For Use Under The Acts; Also The Solicitors' RemuneraTion Act, 1881. By Edward Parker Wolstenholme, Barrister-atLaw, one of the Conveyancing Counsel to the Court; and Richard Ottaway Turner, Barrister-at-Law. William Clowes & Sons. In our review of the first edition of this work we ventured to express some surprise that, though it of couree contained many valuable observations, it also contained an unexpectedly large number which seemed open to adverse criticism. Upon the additions which have been made to the notes, we have the same opinion to express— namely, that they contain valuable and instructive observations, but not these alone. We shall notice only the following. At p. 55, in an addition to the note upon section 18, apparently by way of warning against excluding the mortgagor's power of leasing, great stress is laid upon the inconvenience which might result to the mortgagee it he should foreclose and find a common law lessee of the mortgagor in possession. We must beg leave to repeat our opinion that these fears are chimerical. The mortgagor's lessee would not have accepted the lease for love of the mortgagor, but because be liked the tenancy; and he would in most cases be quite willing to continue it under tho mortgagee, if the latter did not wish to eject him. But the question 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 power of leasing, he would not be likely to suffer much inconvenience from the absence of a power of leasing in the mortgagor. And we can easily imagine that consequences much more serioua than those depicted by our learned authors might follow from leaving to the mortgagor the absurd power given by section 18, subsection (1), including, as it does, power to grant building leases for five years at a peppercorn rent. Large additions have been made to tha precedents. The eminent position among conveyancers enjoyed by Mr. Wolstenholme makes it a delicate task for less considerable persons to criticize precedents issued under bis sanction. We shall only mention a very few points which have occurred to our notice within the range of less than half a dozen pages. That an observation formerly made by us (supra, p. 160) upon a form of covenant to keep up fire insurance, in the first edition at p. 128, and now at p. 155, was not ill founded, is shown by the fact that the form is now corrected in accordance with our criticism. At p. 152 there is a form of covenant for payment of interest which begins with these words :—" And also so long as any principal money shall remain due under these presents after the day aforesaid." Wo submit that the words in italics do not indicate with desirable strictness the day referred to, there being more than one "day aforesaid," notably the day of the deed's date. The next form is as follows:—

"[To Follow Demise Of Leaseholds.] "Trustof "And [mortgagor] hereby covenants with [mortgagee(t)] that mmortmM° [mortgagor] will henceforth stand possessed of the premises 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 dispose of the same as he [they] or the persons or person entitled to the prinoipal money for the time being due on these presents shall from time to time direct, but subject to the proviso (or redemption hereinafter contained."

The common practice in mortgages by sub-demise has hitherto always beeu to make the trust of the reridue of the term, in favour of the mortgagee and his representatives, apply only " after any sale made under the aforesaid power of sale." Messrs. Prideaux and Whitoombe (11th ed., vol. I, p. 514) adapt this to tha Act by saying:—" After any sale of the said premises or auy part thereof, under the statutory power of sale." It is seldom that anything is gained by deserting a well-established form without any reason; and wo here see nothing in the established form to require such a violent departure from it as is displayed by that of Messrs. Wolstenholme and Turner. We do not see how the phrase, "due on these presents," is better than "due under theso presents," appearing in the preceding form ; and still less how it is better thau " due . . . upon the security of these preseuts," appearing in the form before that; nor is it usually thought desirable to have in the same page several different phrases, even it they are all equally good, tor expressing the same thing.

COMPENSATION. The Law Of Compensation Unlir The Lands Clauses, Railway Clauses Consolidation Acts, The Publjo Health Act, 1875, The Abtizans And Labourers' Dwellings Improvement Act, 1875, And Other Acts, With A Full Collection O> Biorms And PascEDBNTS.. By Eyrb Lloyp, 5arfister.ft{-Law.' Fifth Eorr:oK. 'Stevens $ Eayues,

The profession has sufficiently indicated the estimation in which this work is held, and it is perhaps superfluous to add anything to the praise we have bestowed on former editions of this work as a useful treatise on a branch of law of considerable importance and difficulty, but we may say, as the result of our investigation of the present edition, that we think the author is justified in his statement that great care and attention have been expended in its preparation. Defects in the statement of, and in references to, cases have been corrected, and the recent decisions have been^diligently oollected and, in general, very accurately stated; we may point out, however, that the important fact that the married woman was entitled absolutely for her separate use has, apparently been dropped out of the statement on p. 10 of the effect of Peters v. Lewes, tic, Railway Company (29 W. E. 874). The work is eminently a practical one, and is of great value to praotitioners who have to deal with compensation cases.



[To the Editor of the Solicitors' Journal.]

Sir,—We have read your review of the new edition of this work, and have noted a few points made by the writer in the way of adverse criticism, with respect to which we should be glad to be allowed a few words in reply. The points are as follow :—

(1) That we make a trustee give an undertaking for safe custody of deeds.

(2) That in precedents of mortgage deeds we do not negative the leasing power conferred by section 19 of the Act.

(3) That in a mortgage containing a provision for continuing the loan 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 mortgage money is to be considered to have become doe for the purposes of the statutory power of sale.

(4) That in one of the precedents we add the words "his heirs aud assigns " after the name of the covenantee, although it is unnecessary.

(5) That in an assignment of letters patent, the vendor is made to assign as beneficial owner and also to enter into express covenants for title, which is surplusage.

(6) That in a surrender of a lease we make the lessee surrender all his estate.

(7) That the definition of a conveyance in section 2 may not include a surrender of a lease, in which case express covenants for title would be necessary.

(8) That in form 3 of mortgage we use the expression "the aforesaid power" when there is no " aforeeaid power."

(9) That it ought to have been explained how an equitablo tenant for life is "a person entitled in right of the term" under section 65 of the Act.

We reply as follows:—

(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 qualification that his liability should continue so long only as he holds the documents. This is the precise effect of an undertaking for safe custody under the Act, and, with much deference to Mr. Wolstenholme, who seems to take a different view, we are unable to see why a trustee's liability since the Act should not be made co-extensive with what it was before.

(2) We do not agree with your reviewer that the leasing power ought to be negatived, as a matter of course, in every case, although there are many cases in which, no doubt, this should be done. Forms for this purpose (though omitted from the first copies of the new edition) will be found in the later ones.

(3) The time when the mortgage money becomes due clearly appears on the face of the deed in both the cases put.

(4) The words " his heirs and assigns" might, no doubt, be omitted1, but they are not incorrect. The precedent is expressed to be given for the benefit of those who do not wish to adopt the Act in all respects.

(5) Some surplusage hero is admitted.

(6) The lessee is not in this precedent made to surrender "all his estate, 4c." The words "and all other his estate, if any, &c," occur in a subsequent part of the precedent, and their insertion is quite consistent with the omission of the " all the estate" clause at the end of the parcels in the precedents generally.

(7) It is clear that the term " conveyance " includes a surrender, as the 2nd section provides that " conveyance" shall include any assurance or pny dealing with property.

(8) The "aforesaid power of sale" is a misprint for the " statutory aower of iale." The slight mittake is an obvious one and could deceive po one,

(9) The words of the 65th, section being "any person beneficially entitled in right of the term;" there can be no doubt that an equitable tenant for life is such a person.

Frederick Prideaux.

JOHN Whitcokbe.

Lincoln's-inn, May 2.

[We reply that (1) Mr. Wolstenholme obviously would not recommend the exclusion of the undertaking for safe custody if he were satisfied that its effect is precisely equivalent to the covenants by trustees formerly adopted■, and no one is better able to judge on this matter.

(2) We are glad to find that our correspondents have now remedied the omission of forms for excluding the power of lecsing to which we drew attention.

(3) On this point we need only call our correspondents' attention to the opinion of Mr. Wolstenholme, at p. 130 of his first edition aud p. 157 of his second edition, where, to the form of agreement for mortgage to continue for a time certain, he appends an express proviso that the principal money shall, for the purposes of the Act, be deemed to become due on the day on which such principal money is covenanted to be paid; and adds in a note," This olause seems required to prevent any question as to the date when the statutory powers of sale, &c, arise.''

(4) If the words "heirs and assigns" might be omitted, then they are surplusage. We did not say they were incorrect, but that their insertion was inconsistent with the rule, followed elsewhere in the precedents, of adopting the Act.

(5) and (6) As our authors frankly confess the surplusage in the precedent we referred to, we also confess that we inadvertently did them an injustice in saying that the lessee is made to surrender "all other the estate," &c. The words do not occur at the end of the parcels, but in the next paragraph. Our correspondents, by the way, omit to explain why the lease is recited in this preoedent, instead of the surrender being expressed to be read as an annex to the lease.

(7) Our correspondents do not accurately quote the provision of seotion 2. That section provides that " conveyance " includes " assurauco . . . on a sale, mortgage, demise, or settlement of any property, or on any other dealing with or for any property," not, as our correspondents say, "any assurance or any dealing with property." "Surrender of a lease" is not specified; is it au assurance on a dealing efusdem generis with those specified f The doubt appears to us to be sufficient to call for the insertion of express oovenants for right to surrender and further assurance;

(8) We may remind our correspondents that misprints of this kind In a book of precedents are serious matters. The mistake we pointed out does not appear to be calculated to deceive no one.

(9) Our correspondents affirm that un equitable tenant for life is a "person beneficially entitled in right of the term," but they unfortuiately omit to give any reasons for their opinion. We have on previous, occasions alleged reasons for doubting this opinion.—Ed. S. J.]


SolicitorPower To Bind Client—Fraud— AppealLeave To WithDraw Defence And Pot In New DefenceOrd. 58, B. 5.—In a case of Williams v. Preston, before the Court of Appeal on the 27th nit., a question arose as to the extent of the authority of a solicitor to bind bis client. The action was brought to enforce the performance of an alleged agreement by a married woman to give the plaintiff a mortgage or charge upon separate estate belonging to her as security for moneys advanced to her by the plaintiff. Tue plaintiff, by his statement of olaim, alleged that tbe moneys bad been advancd by him on the application of the married woman's solicitor, who was her duly authorized agent for tbe purpose. Tbe action was defended by the solicitor on behalf of the married woman by her instructions, aud be delivered a statement of defence in her name which, in effect, admitted the plaintiff's case. The plaintiff then moved for judgment on the admissions in the pleadings. No one appeared on behalf of the married woman on the hearing of the motion, and judgment was given by Jessel, M.R., upon an affidavit of service of the notice of motion on her declaring the plaintiff entitled to the mortgage which he claimed. This was in June, 1881. In July, 1891, the solicitor absconded. The married woman afterwards appealed from the judgment, and by her notice of appeal she also asked that she might be at liberty to withdraw brr statement of defence, and to deliver a fresh defence, and to adduce such evidence against the plaintiff's claim as she might be advised. Sha filed an affidavit in which she said that the defence which tbe solicitor had delivered on her behalf was untrue, and that he had delivered it fraudulently, and that she had never authorized him to borro* money from the plaintiff, and had never received the money alleged to have been borrowed, and that she knew nothing about the judgment until after the solicitor had absconded. It was urged on behalf of the plaintiff that, even if the fraud alleged by the defendant had been committed by tbe solicitor, stilt she, having employed him as ber solicitor in the action, was bound by tbe admissions which he had male on her behalf, and that her only remedy was by means of an action for damages against him. The court (Lord Coleridge, C.J., and Lindlet and Holker, L.JJ.), hove'er, held that they bad jurisdiction to grant the application, and that itou^ht ft be granted if the defendant sh uld succeed, in proving her allegations, and they ordered the application to stand over for the attendance of witnesses.—Solicitors, E, J, Lewis; Wol/erstan, Avery, £ Jennings.


AppealDismissal Fob Default Of Appellant To Give Security For CostsForm Of Order.—In a case of Harris v. Fleming, before the Court of Appeal on the 3rd iost., a question was raised as to the proper form of order when an appeal is dismissed in consequence of the failure of the appellant to comply within a reasonable time with an order that he should give security for the costs of the appeal. The form given in Seton on Decrees (4th ed., p. 1614) is an absolute dismissal of the appeal, while the form of dismissal of an action in the High Court for default of the plaintiff to give security for costs is (pp. 1541-2) only a dismissal for want of prosecution. In the present cafe the registrar had drawn up the order dismissing the appeal absolutely in accordance with the form in Seton. The appellant moved to vary the minutes, and it was urged that the form in Seton was wrong, and that the order ought to show that the dismissal of the appeal was, not on the merits, but only for want of prosecution. The appellant, it was said, would be ontitled, if be should be able to give the security before the expiration of the time limited bv the rules for appealing, te present a fresh appeal, and an order absolutely dismissing the appeal would be an obstacle in the way of his exercising this right. The court (jessel, M.R., and Lindley and Holker, L.JJ.) held that the order was in the right form, and, without absolntely deciding the point, inolined to the opinion that the appellant would not be entitled to bring a fresh sppsal.—Solicitors, Clarke, Rawlins, $ Clarke.

SolicitorCostsTaxationCommon OrderRetention Of Costs And Paydknt Of Balance To Client—6 & 7 Vict. C. 73, a. 41.—On the 3rd inst., the Court of Appeal (jessel, U.K., and Lindley and Holker, L.JJ.), reversed the decision of Chitty, J., in a case of In re Angove (ante, p. 314). The question was whether the common order to tax a solicitor's bill of costs could be obtained, and this depended on the question whether the bill must be taken to have been paid by tho client. On the 30th of May. 1881, the solicitor delivered to the client his bill of costs, amounting to £100 9s. 7d., and on the next day he delivered to the client a cash account, which, after deducting the amount of the bill, showed a balance of £118s. Id. to the credit of the client. On the 24th ot November, 1881, the client called at the solicitor's office and requested payment of the balance due to him, which he said was £1 16s. The solicitor did not remember the exact amount, and, being in a hurry, did not look at his papers, but gave the client a cheque for £1 16*. On the 23rd of February, 1882, the client obtained the common order to tax the solicitor's bill. The solicitor applied to discharge this order, on the ground that the receipt by the client of the £1 16s. as the balance of the cash account amounted in law to payment of the solicitor's bill. Chitty, J., refused to discharge the order. He said that in law a payment of £1 16s. was not o payment of £1 18s. Id. He was of opinion that, if the solicitor intended by the paymont which he made to the client to settle finally all accounts between himself and the client, he ought to have drawn the client's attention to this at the time of payment, in order that the client might have an opportunity of having the bill of costs at once taxed, if he wished that this should be done. Jessel, M.E., said that the only question was whether the bill had been paid. So far as he knew, there was no difference between the payment of a solicitor's bill and the payment of any other bill, suc'i as a tradesman's bill. Did the client assent to and settle the cash account? If he did, this was equivalent to payment of the bill of costs. The client's demand of the balance of the cash account as such, and the acceptance by him of the £1 l')>. as such, bad the same effect, as showing that be accepted the account, aa if the whole balance had been paid to him by the solicitor. If the balance had been £100, and he had said to the solicitor. Fay me half the balance of £100, that would have amounted to an acceptance of the account, and, therefore, to payment of the bill. The bill, therefore, having been paid, the common order to tax could not be obtained. Lindley, L.J., Baid that it did not follow that, because the balance had not been paid to the client, the bill had not been paid by him. If two people met together and settled an account between them, by setting off one bill against another, that would be payment of the bills. It would be a good plea of payment in au action at law. Holker, L. J., concurred.—Solicitors, Angove; Emanuel 4/ Simonds,

Husband And WifbWife's Chose In Action—Reduction Into PosSession—" Property " Creditors' DeedNon-communicationBankRuptcyReputbd OwnershipOrder And Disposition—Trust FundNotice To TrusteeBankruptcy Act, 1849, s. 125—Statute Of LimiTationsTrustClaim By One Cestui Cue Trust Aoainst Another.— In a case of In re Biaggi, before Fry, J., on the 29th ult., a question arose as to the nature of the interest of a husband in a chose in action of his wife, which he has not reduced into possession—whether that interest is a mere possibility, or whether it will pass by a deed under the description of " property" of the husband. A wife was absolutely entitled, subject to the life estates of her mother and her father, to a share of a trust fund. Her husband executed a deed for the benefit of his creditors, by which he assigned to a trustee a leasehold bonse and his furniture, and "all other personal estate and interest." Fby, J., held that the reversionary chose in action of the wife passed by the deed, subject to the condition that it must be reduced into possession by the husband. Subject to the performance of that condition, his lordship was of opinion that the husband's interest in the chose in action was "property," and that it passed by an assignment of " property."

A further question arose whether the creditors' deed had been in any way acted on, or communicated to the creditors, and, whether, therefore, it had had any operation at all. There was very little evidence on the point. But Fry, J., held that this Wsb immaterial, on the ground that the assignment was to one of the creditors on trust for sale, and, after paying a debt due- to himself, and. (he

costs of the deed, to divide the proceeds of sale among the creditors rateably, and that this was, in effect, a mortgage to the trustee to secure his debt. In any event the deed would operate for this purpose, and, therefore, Fry, J., held that it must operate entirely. Another question was whether the reversionary interest had passed to the assignee in bankruptcy of the husband, the bankruptcy (which took place under the Bankruptcy Act, 1861) having been subsequent to the execution of the deed, on the ground that it was in the order and disposition of the husband as reputed owner, because no notice had been given by the trustee of the creditors' deed to the trustees of the trust fund. The evidenoe was not satisfactory on this point. But Fry, J., said that it was the duty of the assignee in the bankruptcy to complete his title to the fund by obtaining, as provided by section 125 of the Bankruptcy Act of 1849, an order from the Court of Bankruptcy for the sals of the wife's interest for the benefit of the creditors under the bankruptcy. No such order had been obtained, and until it had been obtained the assignee could not claim the fund. If he did not suoceed in obtaining the order, the trustee under the creditors' deed would have the better title. His lordship gave the assignee six weeks to enable him to obtain the order from the Conrt of Bankruptcy.

A further question arose as to the Statute of Limitations. For this purpose it is necessary to state the facts more fully. The trust was created by a settlement in 1835, and under it the trust fund was limited on trust to pay the income to a mother during her life, for her separate uie, and after her death to pay the income to the father during his life, and after bis death the fund was to he divided in equal shares among their five children. In 1849 the fund hid 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 the trustees a power of sale and re-investment. In 1854 one of the daughters was about to marry the bankrupt, and D., one of the trustees of the settlement, agreed to lend her a sum of £300. To secure the repayment of this sum, with interest, a deed was executed by which the father and mother, the daughter (with the assent of her intended husband), and one of her sisters assigned to D. their respective interests in the trust fund by way of mortgage. The deed contained a declaration that, as between the assigning parties, the £300 and the interest thereon should be primarily chargeable on the share in the trust fund of the daughter who was then about to marry. On April 18, 1854, the marriage took place. On April 26, 1861, the creditors' deed was executed. On April 30, 1861, the wife died. On January 23, 1862, the mother died. During her life the interest on the £300 was paid by her, it having been from time to time deducted by D. from her income. In December, 1862, some of the leasehold property on which the trust fund was invested was sold, and out of the proceeds of sale the £300, and all interest then due on it, was paid to the mortgagee, and on December 23, 1862, he assigned the mortgage debt to the trustees of the settlement upon the trusts of the settlement. On June 2, 1863, the adjudication of bankruptcy was made. Ou March 12, 1877, the father died. During the period of bis tenancy for life under the settlement—i.e., from the death of the mother until his own death—he in effect paid the interest on the mortgage debt of £300; or, in other words, no interest on it was paid to him or to the trustees of the settlement, and his income as tenant for life under the settlement was to that extent diminished, In 1879 the trustees of the settlement paid into couit the share of the bankrupt's wife in the trust fund, less the £300. The fund in court was claimed by the assignee in the bankruptcy, and by the trustee under the creditors' deed, and a petition was presented by the assignee. The executrix of the father also claimed to be paid out of the fund in court the interest on the £300 which he had paid during his tenancy for life. It was objected that this claim, or the greater part of it, was barred by the Statute of Limitations. Fry, J., said that as one of the trustees of the settlement was a party to the deed of 1854, those trustees must be taken to have bad notice of that deed. At any rate they had notice of it by means of the deed of the 23rd of December, 1862. The result was that they became trustees of the share of the bankrupt's wife on the terms of the deed of 1854, and one of those terms was that out of that share whatever should have been paid to the mortgagee by the other assigning parties should be repaid to them. That trust was still subsisting, it had been in no way extinguished. Consequently, the fund which was paid into court was paid in on that trust. The Statute of Limitations did not apply, and the executrix of the father was entitled to be paid out of the fnnd in court the interest on the £300 whioh he had paid, in priority to any other claim.—Solicitors, IV. W. Aldridge; H. L. Pemberton; O. X. Dawson; F.

WillConstructionSpecific Or Residuary Lboaoy.—Oo the 3rd inst the Court of Appeal (jessel, M.R., and Lindley and Holker, L.JJ.) reversed the decision of Fry, J., in a ease of Broadbent v. Barrow (30 \V. R. 483, ante, p. 282). The question was whether a legacy was specific, general, or residuary. A testator bequeathed a number of pecuniary legaoiea, and then he bequeathed all his personal estate of which he should die possessed, and which should not consist of money or securities for money, to R. absolutely. And he gave and devised all the rest, residue, and remainder of his estate, both real and personal, to trustees upon certain trusts. The personal estate was insufficient for the payment of the pecuniary legacies in full. Fry, J., held that the gift to R. was specific Ho said that he accepted tho definition of a specific legaoy given by Jessel, M.R., in Bothamley v. Sherson 23 W. R. 848, L. R. 20 Eq. 304)—viz., tbat it must be (1) a gift of part of he testator's property itself, and (2) a gift of a part emphatically as distinguished from the whole. Fry, J., said that the gift to R. fulfilled both those conditions. Jessel, M.R., said tbat the will was very obscure. There were, however, some principles of law which would enable tbe court to come to a conclusion aa to the proper meaning of the words which the testator had UBed, though his lordship had not the slightest idea what his real meaning was. It was a curious thing that Fry, J., had considered that he was following Brthamky Y. tihtrw, and had based bit decision, upon it. Tho Maiter

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of the Rolls thought that he could not in that caw have expressed himsejf •with sufficient clearness, Tor the meaning which Fry, J., had attributed to his words was diametrioally opposed to that which he himself had attributed to them. Ha had said in Sothamley v. Sherson that a specific legacy mast be a bequest of part of the testator's property, and a bequest of a part emphatically as distinguished from the whole. It must not be a gift of the whole of his personal estate, or of the totality of the general residue after having given legacies out of it. He did not think that the gift to R. satisfied the second condition which he there laid down. He had said that it must be a gift of a severed or distinguished part of the testator's property. He intended to say that the whole of a general residue could not be given specifically, although a specific legacy might have been given out of it. A general legacy was not given out of it, and it followed that, if yon took something out of it which was not given at all, still it could not he a specific legacy. In the present case the important question (whether the legacy to R. was called specific or not) was, were the general legacies to be paid oat of it? The testator had directed his debts to he paid by his executors. What was the legal meaning of that? It amounted to a direction to his executors to pay his debts out of his personal estate. Then there was a gift of peenniary legacies. That was, in law, a direction to his executors to pay the legacies ont of his personal estate. The mere gift of general legacies carried that direction with it. Then came the gift to R., which could not be specific, for it was not a gift of a distinguished part of the personal estate. The only part which was distinguished was that which was excepted oat of the gifts. Was there anything to except the general personal estate from its ordinary liability to pay the general pecuniary legacies p It was said that the subsequent gift of 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? It would do so by law, bnt not by the meaning of the testator's words. By the meaning of his words it would carry his money and securities for money, and nothing else. What be was really dealing with by the gift of the rest, residne, and remainder of his personal estate was that which was excepted from the gift to R. Did be mean that the "money and securities for money" was to be the only fund applicable to the payment of the peouniary legacies? The general law was that, in order to exonerate the general personal estate from the payment of pecuniary legacies, there must be express words, or something necessarily leading to that result. It was the law, not the use of the word "residne," which rendered the property included in the gift of residue liable to pay the legacies, and there was nothing to exonerate the personal estate comprised in the gift to R. from the payment of the legacies, though there was a preference of the "money and securities for money" as the fund for tbat purpose. Not only was the gift to R. not specific, but R. could only take after payment of the pecuniary legacies, if the " money and securities for money " were not sufficient to pay them. In the course of the argument his lordship expressed bis disapproval of the decision of Matins, V.O., in Poeoch v. Riley (19 W. R. 869, L. R. 12 Eq. 175), whioh he said bad been approved by no one. Lindlet, L.J., was unable to agree with Fry, J., that the gift to R. was specific. He did not profess to define with accuraoy what a specific legacy was. He thought it was sufficient to take as a type, though not as an exhaustive definition, the definition given in Williams on Executors (8thed., vol. 2, p. 1163), "a bequest of a specified part of a testator's estate which is distinguished from all others of the samo kind." It did not follow that, beoause 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 sufficiently defined. Tha substantial question was, In wbst order were the assets to be administered P A number of legacies were given, which, primd facie, were to be paid out of the personal estate. Primd facie all the legacies must be paid oat of the residae, but, if that was not sufficient, they must be paid out of the other personal estate. They could be paid ont of nothing else. Holker, L.J., concurred.— Solicitors, S. Copping; Young, Jones, Roberts, <fc Sale; Lawford, Waterhouse, Lawford.

ChabityBuilding Registered As Place Of Meeting For Religious WorshipCharitable Trusts Act, 1853 (16 * 17 Vict. C. 137), ss. 17, 62—Consent Of Charity Commissioners.—In a case of Glen v. Gregg, before Kay, J., on the 28th and 29th alt., the question arose as to the necessity of the consent of the Charity Commissioners to an action under the following circumstances:—The action wss brought by some of the trustees of a deed, whereby land was conveyed npon trusts for a church for service according to the principles of the Reformed Episcopal Church, as stated in a declaration of tbeir creed made at a general council of their body. The defendants were the minister of the church, who, it was stated, had seceded from the general body, and started a sect of his own, and the remaining trustees. The 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 so, and, ao far as was necessary, administration of the trusts of the deed. The counsel for the defendants took the preliminary objection that the consent of the Charity Commissioners to this action had not been obtained. Kay, J., said that this, being an action for administration, and a declaration that, 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 consent of the Charity Commissioners to a proceeding bting commenced relating to a charity, or the estate or property thereof. He, therefore, ordered the action to stand over for their consent to be obtained,—Solicitors, A. D. Smith A Wood; Young £ Sons,

Practice—Parties To An Action—Alteration Of PartiesProposed Nkw Party Resident Outsipb Juxisuictids—Ex Fartk ApplicationRules Of Court, 1873, o»n. SO, u. 4,—In the cats of Javut^n V. itasktll,

was made nnder Roles of Court, 1875, ord. 50, r. 4, for the continuation of an action between the original parties thereto and the executor of the will it a deoeased accounting party. It was stated that the proposed new party was resident in Ireland, and had proved the will in Diblin, and tbat under these circumstances a petition of course had been presented at the Rolls, but the secretary had declined to make the order. North, J., said that he saw no difficulty in making the order asked for, but required an affidavit to be filed, showing the circumstances under which the order was applied for, and (are leave for serviee of the order in Ireland.—Solicitors, Qrovtr % Humphreys.


High Court Of Justice. Queen's Bench Division.

(Sittings in Banc before Lord Coleridge, C.J., and Grove, J.)

April 29.—Et parte the Incorporated Law Society, Re A Surgeon. Willis, Q.O. .(with whom was Murray), moved the oourt for a rnle nisi calling upon the medical man in question to show cause why an attachment should not issue against him for contempt of court in hating, though an unqualified person, issued a writ and taken other steps in an aotion of Roberts v. Smith. Roberts, a working man, had been employed by Smith to do some repairs to some shutters, and whileso employed he had sustained personal injuries which, as he alleged, had been due to the carelessness of a third person, who was in the service of Smith. Roberts had been attended by the person against whom the present application was made, and who was stated to carry on buainess as a chemist at one plaoe and practice as a surgeon at another. The latter had induced a solicitor with whom he was acquainted to make an application to Smith on Roberts's behalf for some compensation. The solicitor appeared to have heard nothing more of the matter for some weeks, during which, however, a writ had been issued in his name, and several letters purporting to have been written by him sent to the solicitors aoting for Smith, which were dated some from one place and some from another. The solicitor, hearing of this by a mere accident, at once explained the matter to the solicitors aoting for Smith, and they took out a summons to stay further proceedings in the action, on the ground that the name of the solicitor supposed to be acting for Roberts had been used in the writ, &c, without his authority. At the hearing of that summons an affidavit sworn by the person against whom the present applioation was made was used, in which it was stated that in accordance with an arrangement ma le between himself (the deponent) and the solioitor, the name of the latter bad been painted up at one of his (deponent's) places of business. It was sought to make oat that in this way the use by him of the name of the solicitor had not been nnauthorized; hot the latter stated that he bad caused his name to be painted ont there at once, and tbat the writ in the action had been issued without his knowledge.

The Court granted the application.—Times.



Office Rules Settled By The Practice Masters, 1880, 1881,1882.

Documents to be filed in t/te Writ and Appearance and Summons and Order


Originating summonses issaed from Chancery Chambers.

Petitions of right.

Affidavits of servioe.

Lower scale certificates (Chancery).

Schemes of arrangement under Railway Abandonment Aot. Pleadings left on entering judgment (order xli. rale I). Pleadings and other documents filed under order xix. rnle 6, in default of appearance.

Writs and retnrns to writs, order?, &o.

All documents required by rules or orders of court to be filed, snob aa warrants of attorney, and cognovits on signing judgments (rnle 25, of Hilary, 1853), orders for assessment of damages and masters findings thereon (role 171, of Hilary, 1853), also satisfaction pieoes and orders to satisfy, strike out, or amend any judgment or proceeding, or directing any aot to be done in the office (except Chancery orders and orders of court in Queen's Bench Division). [A copy of the order marked that the original was produced may be taken at the discretion of the officer in oases in whioh the original is required to bo retained by the parties.]

All pleadings to be entered in the cause-books are to be opened and stamped on the day of filing, with the date seal at the top of the front page, and returned to the General Filing Department on Monday morning in eaob week.

Copies writs filed.

Piteoipes for writs of execution.

Piesoipea for snbpconas and miscellaneous writs.


Lower eosle certificates.

Certificate of cost?.

All these should be Bent to the General Filing Department when more than a year old.

Orders of commitment and returns thereto may be filed and ind>xed in the writ, 4^,, department if) tb.e B^ine w»J as (and, with) writs gf exeoy,., tion,

Catae Book, Distinctive Marks, and Indexes.

Actions and matters in the title of whioh a limited oompany is first mast be indexed nnder the first letter of the first word or initial.

Courtesy titles of eldest sons of Peers are not to govern the distinctive mark whioh is to follow the surname, viz., "Campbell " and not "Marquis of Lome."

In oases, such as Mayor and Corporation of, &o., the initial letter of the city or borongh Bhoald govern the distinctive mark. Owners of ships by name of ship. Overseers of parishes by names of parish.

Names in whioh " de " oconrs as part of the surname, or is preceded only by Christian names, should be indexed nnder " D."

Foreign companies should be indexed under the initial letter of the first word in their name, e.g., Banoo de Lima under "B," Social d'Aolimatisation, "8."

Foreign titles should be indexed under the initial letter of the proper or local name in the title, e.g., Comte de Paris nnder " P," Dao de Montebello under "M."

The Christian and surnames of all parties to an Motion should be entered in full in the oause book.

Parties are not to be allowed to see the cause book unless by express leave obtained from a master or an order by a judge.

All searohes in the cause book for writs of summons or otherwise are to be made by the clerks in the Central Offioe, and the result oommunioated to the party applying.

When a certificate is given, and no inspection of a prseoipe is required, only one fee of Is. to be taken (or 4». if higher scale).

A separate index is to be kept of writs in administration actions and of administration summonses, whioh index the public may searoh without fee.

Separate books are to be kept for entering returns to writs of exeoution, index to lower scale certificates in Chancery matters not actions, and return books and debt attachment book.

No other books to be kept for entries except the cause books (and desk book for facilitating reference). The judgment books may be kept in the cause book room with the cause hooka, or in a separate roem.

Writs of Summons, Appearances, and Amendments. Copiep of writs of summons should be signed with the name of the solicitor or solicitors' clerks suing them out as under :—

CD. and Co. or A.B.

for CD. and Co. The stamp is to be on the copy writ filed.

In the Chancery Division an order of course to amend a writ of summons as the plaintiff may be advised will not justify an alteration that strikes out the name of any plaintiff or defendant, or makes a person out of the jurisdiction a party.

In all the divisions an amendment of a writ of summons may be made by leave of a master (on payment of fee) before service. A plaintiff can be struck out only by special leave given in the order to amend; a defendant, by special leave, or on the written statement (to be Sled) of the plaintiffs solicitors that a notice of discontinuance under order xxiii. has been duly given.

In Obancery actions an amendment to a writ of summons pursuant to an order of court or judge, may be made either on an undertaking to get the order drawn up, or on a separate memorandum or certificate being left for filing, signed or initialed by the judge or registrar, showing the order to have been made.

In an information, where there is no relator, the Attorney-General's signature on the writ is not reqaired ; but where there is a relator (whether a person or body corporate) the original writ (not the copy filed) must be signed by the Attorney-General, and if any amendment be made, it must be authorized by his signature on the original writ or draft.

In entering appearances a note should be made in the cause books "Statement[of claim required" or "Statement of claim not required," and in cases where the action is for recovery of land, and the defence is limited, a further note to that effect should be added.

If no time is specified in an order to amend, the amendment must be made within 14 days.

No writs are to be issued in Probate Division oauses unless on a certificate tba» the affidavit required by order v., rule 10, has been filed.

Where appearances are entered in the Central Office in Probate and Admiralty Division actions, a list or copy of the appearances entered shall each day be addressed and sent to the prinoipal registrars of the Probate and Admiralty Divisions. Such list to be made out at the close of the day by one tf the junior clerks in the writ, &c, department.

If a solicitor has oaused an appearance to be entered by mistake, the mistake may be rectified with the consent in writing of the solicitor for the plaintiffs, and on the fiat (on the production of such consent) of a practice master to be given on a precipe with a 2s. 6d. (search) stamp.

A defendant in person may change his address for service (without order to change address) by leave of master, but must forthwith give notice to the other side.

In the case of infants the appearance is accepted without any authority or order; an order being obtained by the defendant's solicitor alter the appearance has been entered.

In the case of a married woman, an order to defend separately muBt be obtained before appearance is entered.

If a writ of summons las teen lost the filed copy may, for the purpose of amendment, or for any cf'er purpose, be treated as a duplicate, but only by leave of a practice master, and on the party giving an, undertaking to pro»»« original at tn» CfRtral Office wjjep, found,, *

Writs of summons issued before the Judicature Acts came into force may be renewed without an order.

A female plaintiff mnst be desoribed as "spinster," "married woman," or "widow," and it an infant, as an infant.

Where an infant or married woman is plaintiff the authority of the next friend (duly attested) must be filed before the writ of summons can be issued.

Substiluted Service. Affidavit of Service. Unless the order shall otherwise direct, a copy of the order and of the writ shall be deemed to have been served on the day following the day on which a prepaid letter oontaining such copy shall have been posted.


Subpoenas remain in force only till the end of the silting or assize for which they were issued. A new writ must afterwards be isssued or the former writ may be (at the option of the parties) altered as to date and sitting, or assiz*, and re-issued as a new writ.

The date of return in the writ and prssoipe may, before service, bo amended without the direction of a master, and without fee, provided the amended date bo within the sitting or assize for which the subpoena Issued.

A subpoena in an Interpleader issue should be headed In the title of the original aotion, and in the title of the interpleader Issue, and should be applied for in, and issued out of, the room in whioh the writ of summons in the original aotion was issued.

Removal by appearance to London of Actions commenced in District

A fresh London distinctive mark to be given.

No separate district registry cause book to be kept.

No letter need be sent to the district registrar.

Writs of summons issued out of a district registry oannot be amended by order or fiat of master unless the aotion has been removed to London by appearance or otherwise.

No writ Issued out of a district registry can be amended in the Central Office unless the duplicate filed in the district registry has been previously received in the Central Office.

If it becomes necessary to send to London (for amendment or otherwise) the copy writ filed in the dlstriot registry, authority may be given to send the copy writ to the Central Office by sealing a duplicate of the precipe for appearance, which shall be transmitted to the district registrar by the solicitors concerned.


When the settlement comprises more than one sum, and the sums are in the shares or securities of different oompanles, a separate affidavit and notice should be made for each oompany, and the affidavit should be that the funds comprise "amongst others " the Bum of, tua. [specifying the sum in the books of the one oompany], and a stamp of 10s. will be required for each separate notice.

If there are more sums than one, but all in the books of the Bank of England, or in the books of any one oompany, one affidavit and notice will be sufficient for all the sums.

In aotion* not specifically assigned to the Chancery Division by the Judicature Aot, 1873, s. 34 (i.e., so called common law actions brought in the Chancery Division), no certificate of lower scale Bhall be given out till after appearance. In the cause books such actions shall be distinguished by the letters L.S.

When deposited documents, or documents on the file, are ordered to be delivered to a solioitor, on his undertaking to retnrn them, be must sign a receipt and undertaking to return (whioh may be indorsed on the order), and leave the order and indorsement at the Central Offioe to be returned to him on bis bringing back the doouments. The signature of the solioitor mnst be witnessed by his olerk, or by someone known to the offioer delivering out the documents.

Pleadings and Documents filed in Default.

None of these doouments will be placed in the bundles oontaining the writs of summons and pleadings filed on entering judgment, but will be made up into two sets of separate bundles.

The first oontaining all statements of olaim filed in defanlt.

The second containing summonses, warrants to tax, notices, and miscellaneous documents.

All tbese doouments must have the date of filing and the name of the defendant against whom they wore filed written on them, and be entered in the oause books nnder the head of pleadings, such entry to show the date of filing, nature of document, and name of defendant against whom they are filed.

None of tbese documents will (for the present) be delivered out without an order, but any defendant against whom documents have been filed may, after appearance, inspect the same without fee.

As to filing gtncially. In the Chancery Division, judgment*, orders, notices of motion fora'.taob. ment, and other documents requiring personal service, oannot be filed in default of appearance without an order or leave of a master, and no pleading* or other doouments can be filed nnder order x:x , rqle Q, unless an affidavit of servioe under order xu\, rules 3 and 9, or au office oqpy th,ereor, ba first produced to the officer.

Orders and Judgment), When parties bar* nofc town np their <#$m w <,h« day of tb« hf*^

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