which latter provision was evidently intended to protect the gas and water companies whose pipes are the subject of a much more elaborate protection in the clauses of section 8. Section 10 also will be found to provide that the depth and course of the underground works are to be agreed upon between the company and the local authority, and that, "in the event of ultimate difference between the company" and that authority, "the depth, course, and position shall be determined in England or Ireland by two justices, and in Scotland by two justices or the sheriff, while section 17 contains very stringent regulations as to "the opening of streets and public roads." It will be found that the provisions respecting overhead wires are of quite a different character. First, it is provided by section 12 that the company shall not place a telegraph over, along, or across a street or public road, except with consent of the body having the control of such street or public road. Secondly, it is provided by section 21 that in the metropolis and large towns the consent of the local bodies shall be sufficient authority, without any further consent, to place and maintain a telegraph over any dwelling-house or other building in or near a street, subject to certain provisions for the protection of owners and occupiers. Thirdly, in the case of streets elsewhere than in the metropolis or large towns, section 23 enacts that, before the company proceeds to place a telegraph " over, along, or across a street or road," they must publish notices showing that the required consents of the street or road authority have been obtained; during twenty-one days after the publication of which notices section 24 and the subsequent sections give the owner or occupier of the adjoining land power to object and to have the Board of Trade called in to settle any differences between him and the company. We have said that in the metropolis and large towns there is a special protection for owners and occupiers. Two of the subsections of section 21 are of so much importance that we extract them at length. They are as follows : "Where the company places a telegraph directly over any dwelling-house, they shall not place it at a less height above the roof thereof than six feet, if the owner, lessee, or occupier thereof objects to their placing it at a less height. "If at any time the owner, lessee, or occupier of any building or land adjoining to a building directly over which building or land the company collectively and individually, and their officers and servants, from all damages and costs in respect of such accidents and injuries." This section, which is very well drawn in the interest of the public, would not indeed render the company liable for an accident caused by a wire being blown down by an extraordinary storm of wind or other act of God (see Nugent v. Smith, L. R. 1 C. P. D. 423), but it would seem to render them liable for the act or default of contractors, and for any injury caused by the ordinary wear of a wire. The mere falling of a wire would also be probably heid to be prima facie evidence of negligence on the analogy of Kearney v. London, Brighton, and South Coast Railway (L. R. 6 Q. B. 759), in which the Exchequer Chamber affirmed the decision of the Court of Queen's Bench, that the defendants were liable for an accident caused by the fall of a brick from a bridge without any assignable cause except the vibration from a passing train. "It was the duty of the defendants," said Kelly, C.B., "from time to time to inspect the bridge and ascertain that the brickwork was in good order and all the bricks well secured. But a very large portion of the telegraph lines in this country have become vested in, and subject to, the control of the Postmaster-General under the Telegraph Act, 1868 (31 & 32 Vict. c. 110), and the powers of purchase conferred thereby, and exercised thereunder. Do the rights of owners and the public continue notwithstanding such a purchase, or does the rule hold good that no petition of right lies for a tort? This might be an interesting, and would no doubt be a difficult, question to consider if no express words having application to it could be found in the Telegraph Act, 1868. Fortunately, section 6 of that Act contains such express words, which are, so far as material, as follows:: "All Acts . . . sball. . remain in full force, and all matters to be done, continued, or completed by or against the company so selling their undertaking, their officers or servants, shall or may (as the case requires) be done, continued, or completed by or against the Postmaster-General, his officers and servants, and those Acts. shall be construed as if the Postmaster-General had been named therein, instead of the company selling their undertaking; and it shall be lawful for any person to enforce any such Act. by action, suit, or other legal proceeding against the Postmaster-General in the same court and in the same manner as if this Act had not passed." places a telegraph desires to raise the building to a greater heightsistent with, the Act of 1868 itself, but we can find no express There is an exemption for Acts expressly varied by, or inconor to extend it over such land, the company shall increase the height or otherwise alter the position of the telegraph so that the same may not variation of the clauses we have referred to in that Act, nor interfere with the raising or extension of the building, within fourteen days any provisions which could be deemed inconsistent therewith. after receiving from the owner, lessee, or occupier a notice of his intention to raise or extend the building, &c., &c." Here we observe that the rule "cujus est solum ejus est usque ad cælum" is recognized, but with the important limitation that it is recognized in cases only where dwelling-houses or buildings exist, either on or adjoining to the land, at the time of the con REVIEWS. JUDGMENTS. OF APPEAL, CHIEFLY IN REFERENCE TO ACTIONS ASSIGNED TO THE William struction of the telegraph. In such cases the owner is omnipotent, THE JUDGMENTS AND ORDERS OF THE HIGH COURT OF JUSTICE AND COURT and may displace the telegraph wire as and how far he pleases. But where there is no house or building at the time of the construction of the telegraph, and the owner wishes to exercise his building rights long afterwards, can he do so to the detriment of the wires? We very much hesitate to say that he could not; but, looking to sub-section 4, which provides for full compensation being made to the owner of any land over which the company places a telegraph, "and which may be shown to be in any way prejudicially affected thereby," we think, on the whole, that the building rights of such an owner are cut short by the wires, and that he must fall back upon the compensation clauses for redress when he wishes to exercise them over the space occupied by the wires. However this may be, the consent of the local authority seems to protect overhead wires from interference in all cases where private owners do not choose to interfere. However dangerous they may be, it is extremely doubtful whether the authorities could obtain an injunction to remove them; and it seems that the sole remedy of a person injured by the falling of an overhead wire would be by means of an action for damages under section 42, which provides that "The company shall be liable for all accidents, damages, and injuries happening through the act or default of the company or of any person in their employment, by reason or in consequence of any of the company's works, and shall save harmless all bodies having the control of streets or public roads, Then follow Mr. Pemberton states that his book has been almost entirely re-written, but that the general arrangement remains much the same. This arrangement, however, differs somewhat from that adopted in the first edition. We have now the Rules of the Supreme Court collected and annotated in the first chapter, inclu ting the rules relating to appeals. chapters relating to infants, married women, accounts, partnership, administration, injunctions, and other branches of jurisdiction, followed by a chapter devote to the statutory jurisdiction of the Chancery Division. Under each of these headings the statutes, rules, cases, and forms of orders are collected, but the three first-named contents so far predominate that the work might be almost more properly termed a digest of the practice of the Chancery Division than a mere collection of judgments and orders. The notes to the Rules of Court in chapter 1 are usually short, and might be occasionally improved by the addition of omitted cases or by explanation of the effect of the cases cited. The value of a book of practice consists largely in the completeness with which the point of each decision is indicated. In many of the note this is done well and tersely, but we meet rather too often with strings of cases prefaced with the word "see." And we think that in some cases the usefulness of the notes would have been increased if they had contained some further explanation of the practice. note on order 26, rule 4a, "Dismissal for want of prosecution." "The We may illustrate what we mean by the note to this rule is "See Litton v. Litton, 3 Ch. D. 793; Ambroise v. Evelyn, 11 Ch. D. 759; Evelyn v. Evelyn, 13 Ch. D. 138." A few words would indicate the different events to which these cases refer, and save the practitioner the trouble of taking down three volumes of reports; and a few more words would tell him how the application to dismiss is usually made (Freason v. Loe, 26 W. R. 138). Some of the notes, however, are elaborate and complete-see, for instance, those on production of documents, at p. 44, and security for costs, at p. 109. The provisions of the Consolidated Orders and the statutes bearing on the matter of the rules are inserted in the notes, and forms of orders are occasionally given. No general complaint can be made of lack of care in the collection or statement of cases relating to what may be termed the main parts of the book. Take, for instance, chapter 7, relating to injunctions. We have here an excellent digest of cases and collection of forms of orders classified under the heads of the different matters to which injunctions relate. The cases seem to be in general well stated and judiciously arranged; we should rather demur, however, to the insertion of the club cases (Fisher v. Keane, &c.), under the general head of "Execu tors and Trustees." Those cases, as well as many of the cases where injunctions have been granted or refused relating to the dismissal of masters of grammar schools and ministers of dissenting communities, come more properly under the heading of "Improper exercise of semijudicial functions." On the whole, however, we think that this, as well as the other chapters relating to the chief subjects of chancery practice, constitute a very useful digest of the cases and collection of forms. The portion of the work relating to the statutory jurisdiction is a very comprehensive annotated collection of the statutes bearing on the special juris diction of the court. The Conveyancing Act, 1881, is included, but the author has prudently forborne to express opinions as to the effect of its provisions. CORRESPONDENCE. STAMP DUTIES. [To the Editor of the Solicitors' Journal.] Sir, I send you copy of my further correspondence with the Inland Revenue Office. I have, of course, given in, as my client cannot enter on a contest with Government. RALPH SIMEY. Sunderland, June 3. [The following is the correspondence referred to : [COPY.] 59, John-street, Sunderland, 23rd May, 1882. R and others to K. Gentlemen,-In answer to your letter of 25th ulto., I have to submit the following observations, which please put before the Solicitor of Stamps : 1. The declaration substituting the rent for the land as security is really inoperative. It adds nothing to the legal effect of the other parts of the instrument, because there is no consideration for the reservation of the rent charge to the mortgagee, and the law would, therefore, imply in him a resulting trust of it for the vendors, subject to his mortgage. 2. Whether the preceding proposition be or be not accurate, the instrument is not one "containing or relating to several distinct matters," within the meaning of 33 & 34 Vict. c. 97, s. 8. On the contrary, its whole contents are intended for the accomplishment of only one object -viz., to insure security to the grantee without prejudicing the mort. gagee's rights. It has been held (Price v. Thomas, 2 B. & C. 518, and Pratt v. Thomas, 4 C. & P. 544) that a lease is sufficiently stamped with ad valorem duty, though it contain a covenant by a surety for payment of the rent. It has also been held (Wolseley v. Cox, 2 Ad. & Ellis N. S. 321) that a transfer of shares is sufficiently stamped with ad valorem duty though the purchaser covenants with the company to abide by its regulations. The question really seems to be, Is the clause in question referable to any other than the main and leading purpose of the deed? In Rushbrook v. Hood (17 L. J. C. P. 58) Wilde, C.J., observes, in delivering judgment: "The whole object of the deed is to carry out the contract of purchase, and thus the matters carried out by this deed are not separate and distinct matters, but they all form part of one and the same transaction." And, further, "It appears to me to be one indenture framed for the purpose of carrying out one single object." The case of Hadgett v. Commissioners of Inland Revenue (L. R. 3 Ex. D. 46) is not adverse to my view, for the judgment seems to have proceeded upon the fait that the Stamp Act in terms requires a duty of ten shillings for an appointment of trustee and also a duty of ten shillings for a vesting order. I trust, therefore, the solicitor will pass this deed to be stamped as originally proposed.-Yours faithfully, RALPH SIMEY. Loudon, 1st June, 1882. R and others to K. Dear Sir, We received your favour of the 23rd ult., and attended with same before the Solicitor of Stamps and urged the points you raised, and, after leaving the matter with him for some days for consideration, he contends that the officer is right in his demand for additional duty. He informs us that cases of this description have been very often and very carefully considered, and the practice which has been established cannot be departed from. The necessity for the additional duty can easily be obviated by the execution of a separate deed between mortgagor and mortgagee covering all sales, or, if it is thought of in time, such a declaration may be inserted in the power of sale in the mortgage. It seems, therefore, the additional duty must be paid.-We are, Sir, yours obediently, &c., &c.] PROVISIONS FOR SETTLEMENT OF OTHER OR AFTERACQUIRED PROPERTY OF INTENDED WIFE. [To the Editor of the Solicitors' Journal.] Sir,-The case of Williams v. Mercier, of which you give a full note in your current number (page 479), no doubt will interest conveyancers, and it prompts me to supplement my recent letters to you on Stamp Duty (ante, pp. 431, 462), by offering remarks upon points of "stamps which arise upon the said above-named clauses in settlements, one of which clauses was the subject-matter of Williams v. Mercier, and which (until it reached the Court of Appeal, and according to the decision of the latter court) was strangely overlooked and misconstrued by three judges and the counsel in the case on both sides. In view of the oversight and misconstruction occurring in this case I may venture to state that, in my dealing with settlements with reference to the stamp duty therein chargeable, I occasionally find practitioners not fully appreciative of the operation of a provision like the one in the settlement in Williams v. Mercier. I believe that the provision for securing to the trusts the wife's afteracquired property had its beginning in the not very remote past, and that the more extended provision, securing alike the lady's non-specified present property, is of still more modern origin. The ordinary wording of the clause applying to after-acquired property (only) (omitting the beginning and concluding words) is, "that all real and personal property (if any) to which the said [intended wife or the said [intended husband] in her right shall at any time during the said intended coverture become beneficially entitled shall," &c.; and to secure also the non-specified present property the clause requires only to have imported into it "now is "-as, "that all real and personal property (if any) to which the said [intended wife] now is," &c. And it is this small verbal, but in operation very important, addition that I have now and again found practitioners not fully appreciative of. As I write I have before me a book of precedents, having the two settlement clauses just named, the second one having "now is"; but the marginal note to both is (only) "to settle wife's after-acquired property." As well outside the Stamp Act, so under it, now is " is of material import, as will be presently explained. Upon referring to "Settlement," in the schedule of the Act (Stamp Act, 1870), it will be found that the charge of "settlement" (i.e., ad valorem settlement) duty is upon any definite and certain principal sum of money, or any definite and certain sum of stock, or any security. With the clause for the settlement of the lady's after-acquired property (only) no question of "settlement" duty arises, as there is not present the element of definiteness or certainty (within the meaning of the Stamp Act-merely to state this and not here support the proposition by argument), although it may, in passing, be observed that, if the settlement otherwise attracted ad valorem duty, a separate 10s. would be payable in respect of this after-acquired property clause. But the question of ad valorem duty would arise if the clause had the words now is," so securing to the trusts the lady's non-specified present property (if any), because, should she possess any of the kind named in the Settlement item of the Stamp Act, it would be no less chargeable with "settlement" duty by reason that it was not specified. Hence the practice of the Inland Revenue, in adjudication cases of settlements having the clause, of requiring a statement as to whether the lady has any non-specified property, and the nature of it. 66 These clauses, operating upon the intended wife's property, mostly occur in settlements where the lady brings in property which is specified. But I have had a case or two before me where the lady having, and known to have, present property, yet, for reasons moving the parties concerned, there was no statement of it in the settlement, but only the fuller of the two clauses named was adopted. The conveyancer knew that the clause would be effectual to secure to the trusts all the then present property, and that acquired during the coverture, but he did not contemplate the stamp question which arose upon the deed. To give another case, by way of illustration :-The lady brought into settlement money and stock therein specified, and the deed contained the clause with " now is." And, upon inquiry, I was informed that the lady did possess present (non-specified) property, she having, in fact, a vested reversionary interest, or one which would vest upon the marriage, in the whole of £10,000 consols, but that as there were three not old lives to drop before it fell into possession, counsel had deemed it inexpedient to specify the interest in the deed; but the interest was, of course, secured to the trusts by the clause named. This was chargeable with ad valorem duty, not merely on the value of the reversion, but on the market value of the consols at the date of the settlement! There are, of course, other similar, but variously worded, clauses inserted in settlements, and I will name one other which raised a nice point of stamp duty. Instead of " now is," the clause was, that "if the intended wife should, at the date of the intended marriage, possess any property," &c. This setlement was sent in for official adjudication of the stamp duty, and it was submitted that no inquiry could properly be made upon the clause, as by it no present property was settled; and the office assented. VERITAS. June 6. N.B. Since writing the foregoing I have remembered (and have re-perused) the articles on the "after-acquired" property clauses which appeared in your journal for 1869-70 (14 SOLICITORS' JOURNAL, 4, 24), and the article in the next volume on Bower v. Smith (19 W. R. 39, 15 SOLICITORS' JOURNAL, 575), the matter of which (inter alia) justifies my criticisms as to the ignoring, practically, of "now is." To those desirous to pursue the subject while it is fresh I would advise the perusal of the articles named, but if you can find space for it, I will here reproduce the first paragraph of the first article : "There are few clauses in marriage settlements of the ordinary type which give rise to so much litigation as the covenant to settle a wife's after-acquired property. This is to a great extent accounted for by the simple fact that the clause in question attempts to provide in a few words for all the various modes and circumstances in or under which property may come to the wife, so that few, or it may be none, of those which actually happen are in any particular case consciously present to the mind of the draftsIt must, however, be confessed that the latter is not altogether free from blame in the matter, for while the numerous and sometimes over-subtle distinctions which have been taken render care in this clause especially needful, it is actually the worst-drawn portion of the settlement. We propose, by a short digest of the more recent decisions on the subject, at the same time to guard our readers against negligence in framing the covenant in question, and to show the interpretations which have been given to some of the forms in which it is frequently ex. pressed." V. man. THE INCORPORATED LAW SOCIETY. [To the Editor of the Solicitors' Journal.] Sir,-On Thursday last, the last meeting of the Legal Procedure Committee of the Incorporated Law Society took place in the society's lecture-room, and it was agreed that at the meeting on the 9th inst. the question of the county courts should be brought up instead of pursuing the matter further in this committee. I now enclose the correspondence which has taken place since for publication, because I do not think the question is being fairly dealt with. A sub-committee was appointed to draft a report, and, at the expenditure of great time and labour, this was done, but when the time arrives for its settlement those members best known to the council, and the council together, succeed in shelving the matter in this way. I protest against it most earnestly. 15, Walbrook, London, June 3. [The following is the correspondence referred to : EDMUND KIMBER. 15, Walbrook, E.C., London, June 1, 1882. Dear Sir,-I understand that the meeting which is called for the 9th inst. is practically to take the place of the spring meeting which was resolved upon at our last annual general meeting; and, therefore, that other business besides that of which you have given notice can be discussed at it. I therefore beg to give notice that I shall move the resolution which I subjoin at that meeting. It arises out of what transpired to-day at the meeting of our Legal Procedure Committee, and I think will meet with the general acquiescence of the profession.-Yours faithfully, EDMUND K.MBER. E. W. Williamson, Esq., Secretary, Incorporated Law Society, Chancery-lane. "That as the tendency of recent aud prospective legislation is to extend the jurisdiction of the county courts, the whole question of their practice and procedure be referred to a committee of this society to consider it and to report to the council thereon." which it has been specially called, and that therefore the council are unable to send to the members notice of the resolution you wish to propose. The council would point out to you that your motion may be more fittingly brought forward at the annual general meeting convened for the 7th July next, in which case your notice can be sent to all the members. I am, dear Sir, yours faithfully, E. W. WILLIAMSON, Secretary. Edmund Kimber, Esq., 15, Walbrook, E.C. 15, Walbrook, E.C., London, June 3, 1882. not observe anything in the notice convening the meeting for the 9th Dear Sir, I am in receipt of your note of yesterday's date, but I do inst. making it exclusive of other business. The resolution passed by the society on the 15th of July last was in these words: "That, in the opinion of this meeting, it would be desirable that, in addition to the afternoon annual business meeting in July, two meetings should be held in the months of January and April respectively, and that these additional meetings take place at such hour as the council may appoint." Neither of these meetings has been held, notwithstanding the many subjects beyond those referred to the Legal Procedure Committee loudly calling for redress; and now I gather from your note that the council do not propose any further meeting until the annual one next month beyond that on the 9th inst., which you say is special. I do not think this is fair to the members, to the profession, or to the public.-Yours faithfully, EDMUND KIMBER. E. W. Williamson, Esq.] CASES OF THE WEEK. HUSBAND AND WIFE - DIVORCE-PERMANENT ALIMONY-SECURITY BY HUSBAND-ORDER FOR MONTHLY PAYMENTS-DIVORCE ACT, 1857 (20 & 21 VICT. c. 85), s. 32-29 VICT. c. 32, s. 1.-In a case of Medley v. Medley, before the Court of Appeal on the 6th inst., a question arose upon the construction of section 32 of the Divorce Act of 1857, as modified by section 1 of the Amendment Act of 1866. Section 32 of the Act of 1857 empowers the court on making a decree for a divorce "to order that the husband shall, to the satisfaction of the court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, ... as it shall deem reasonable." And section 1 of the Act of 1866 provides that the court may in such a case "make an order on the husband for payment to the wife during their joint lives of such monthly or weekly suns for her maintenance and support as the court may think reasonable." In Medley v. Medley a decree for dissolution of marriage had been pronounced, on the ground of desertion and adultery of the husband, and it was ordered that the husband should, to the satisfaction of the court, secure to the wife the gross sum of £7,500 within one month, or that within the same time he do secure to the wife the sum of £500 per annum for her life; "and in the event of his not doing so, then that he pay to the wife the sum of £500 per annum by equal monthly payments of £41 13s. 43., the first payment to be made on the 29th day of June, and the succeeding payments to be made respectively on the 29th day of each month." The Court of Appeal (JESSEL, M. R., and LINDLEY and BOWEN, M.R., said that in the former Act "securing to the wife L.JJ.) held that the latter alternative part of the order was wrong. JESSEL, a gross sum of money or an annual sum of money was contrasted with actual payment to the wife, and, as he read section 32, the money was not to be paid over to the wife as a gross sum, but when secured was to be paid to her from time to time. It the word 66 secure "included payment, then the second Act (29 Vict. c. 32) would have been useless. That Act, after reciting that it sometimes happened that a decree for dissolution was obtained against a husband who had no property on which the payment of any gross or annual sum could be secured, provided that the court might order mouthly or weekly payments to the wife oy the husband. This Act could not have been passed to meet any supposed difficulty that an "annual sum" could be paid once a year only, and to enable the sum secured to be paid by monthly or weekly instalments. If, as in this case, the husband had property abroad, then there was property on which the gross or annual sum could be secured, and the second Act, enabling the court to direct monthly or weekly payments, did not apply. If the husband were in this country, there would be no difficulty, as he could be attached if he failed to comply with the order. But it appeared to him to be clear that it was not intended by the first Act to order payment to the wife direct, and that being so, the alternative part of the order must be discharged. LINDLEY, L.J., was of the same opinion. At first, it might appear as it the term in section 32 of the first Act included payment, but when looked at more closely, and also when the second Act was taken into consideration, it became plain that secure did not mean payment, but that the sum, gross or annual, was to be secured in such a way as to provide a fund for the wife. The alternative part of the order, therefore, could not be sanctioned under section 32. The later Act only authorized monthly or weekly payments when the husband had such as this, where the husband had property which could be made the subject no property available for securing the money, and did not apply to a case of the security, though situated abroad. Neither under section 32 nor under the Act of 1866 could the alternative part of the order be sustained. BOWEN, L.J., concurred. Their lordships refused leave to appeal to the House of Lords. -SOLICITORS, Eardley, Holt, & Richardson; Harwood & Stephenson. 46 "secure it. 66 LIFE ASSURANCE COMPANY-INVESTMENT OF DEPOSIT.-In the case of In re Scottish Metropolitan Life Assurance Company, before Bacon, V.C., court under the Life Assurance Companies Acts, 1870, 1871, and 1872, being on the 8th inst., the question arose whether the £20,000 deposited in money under the control of the court," can be invested on mortgage instead of remaining invested on Government securities. The 3rd section of the Act of 1870 (33 & 34 Vict. c. 61) directs that the deposit shall be invested by the Accountant-General of the Court of Chancery (now the Chancery Paymaster) in one of the securities usually accepted by the court for the investment of funds placed from time to time under its administration, and that he shall return the deposit after the accumulated funds of the company amount to £40,000. The rules made by the Board of Trade under the Act of 1872 (35 & 36 Vict. c. 41), s. 1, do not contemplate investment on mortgage. Under rule 2 securities may be brought into court in lieu of money, and rule 7 provides for the payment of interest on the deposit while in court. BACON, V.C., refused to grant the application to invest on mortgage, on the ground that there was no precedent or provision for parliamentary deposits of any description being invested by the Chancery Division on mortgage, and that the court would, to a certain extent, lose its control over the fund by making such a precedent. MORTGAGOR AND MORTGAGEE-REDEMPTION ACTION-ORDER FOR SALE-LIQUIDATION OF INFRINGER-DAMAGES-BANKRUPTCY ACT, 1869, s. 31.CONVEYANCING AND LAW OF PROPERTY AMENDMENT ACT, 1881, s. 25.-In a case In a case of Watson v. Holliday, before Kay, J., on June 7, the question was of Woolley. Colman, before Fry, J., on the 6th inst., a question arose upon raised whether a patentee could prove in the liquidation of a person who had section 25 of the Conveyancing Act, 1881. The section provides that infringed his patent for the amount to be found due on taking the account of (1) Any person entitled to redeem mortgaged property may have a judg- the profits made by such infringement. The action was brought to restrain the ment or order for sale instead of for redemption in an action brought by him infringement, and an account of profits and damages were asked for. Before either for redemption alone, or for sale alone, or for sale or redemption, the defendant delivered his defence, proceedings in bankruptcy were taken for in the alternative. (2) In any action, whether for foreclosure, or for the liquidation of his affairs; he afterwards delivered a defence, but did not redemption, or for sale, or for the raising and payment in any manner appear at the hearing. The trustees in liquidation did not put in any defence, but of mortgage money, the court, on the request of the mortgagee, or of any they appeared at the hearing. They contended that the amount sought to be person interested either in the mortgage money or in the right of proved was "a demand in the nature of unliquidated damages arising otherwise redemption, and notwithstanding the dissent of any other person, than by reason of a contract or promise," within the meaning of section 31 of the and notwithstanding that the mortgagee or any person so interested Bankruptcy Act, 1869, and that it was, therefore, not proveable. The infringe. does not appear in the action, and without allowing any time for ment of the patent was proved to the satisfaction of the court. KAY, J., said that redemption or for payment of any mortgage money, may, if it thinks the amount in question was not damages, or in the nature of damages, but fit, direct a sale of the mortgaged property, on such terms as it that the patentee, by taking the account, adopted the act of the infringer, thinks fit, including, if it thinks fit, the deposit in court of a reasonable saying, as it were, that it was done on his behalf, and he claimed the profits of sum fixed by the court to meet the expenses of sale and to secure performSuch amount was, therefore, proveable in the liquidation. The trustees ance of the terms. (3) But, in an action brought by a person interested mast pay the costs of the action, they had put themselves in the debtor's in the right of redemption and seeking a sale, the court may, on the place, taking up his defence, cross-examining the witnesses to show that there application of any defendant, direct the plaintiff to give such security for had been no infringement.-SOLICITORS, Shum, Crossman, Crossman, & costs as the court thinks fit, and may give the conduct of the sale to any Pritchard, for Kidson, Son, & McKenzie, Sunderland; Carr, Son, & Thornton. defendant, and may give such directions as it thinks fit respecting the costs of the defendants, or any of them." The question was whether, in an action for redemption of mortgaged property, brought by the mortgagor against the first, second, third, and fourth mortgagees, an order for sale could be made on the interlocutory application of the plaintiff before the trial of the action. The application was made by the plaintiff by summons in chambers on the 6th of May, the writ having been issued on the 26th of April. The first and second mortgagees opposed the application, but it was assented to by the other mortgagees. It was urged that section 25 gave the court no power to make the order on an interlocutory application. And reliance was placed on the cases decided on the construction of the somewhat similar power confered on the court by section 48 of the Improvement of Jurisdiction in Equity Act of 1852, which section is repealed by the Act of 1881. That section contained the words "instead of a foreclosure," which are omitted in section 25 of the Act of 1881. FRY, J., held that there was power to make the order on an interlocutory application. He said that, under the words of the section, the only thing necessary to the existence of the power to make an order for sale was the request of a party interested. On that request being made the discretion of the court arose. It was contended that the power of the court was restricted by the decisions upon section 48 of the Act of 1852. But the power given to the court by section 48 was only a power to make an order for sale in lieu of a decree for the foreclosure of the equity of redemption. Such a decree could he made only at the hearing of the suit, and, consequently, an order for sale in lieu of it could be made only at the hearing. The words "instead of a foreclosure" were wanting in section 25, and there was no reason why the power of the court should be fettered with a limit not to be found in the words of the section, and no reason in the nature of things why there should be any such limit. In a case like the present there would be a great saving of time and expense in making an order for sale at once, and, in a fitting case, his lordship thought that the order could be made on an interlocutory application. His lordship added that he thought the powers conferred by sub-sections 1 and 2 were distinct and separate powers. In exercising his discretion to order a sale he must have regard to the interests of the first and second mortgagees who opposed the application, and he must, therefore, fix such a sum for the reserved bidding as would protect their interests, and yet not a sum so large as to render the sale abortive. His lordship accordingly fixed as the reserved price the sum of £8,000, which was a little more than the total amount due upon the first and second mortgages, and he ordered that the plaintiff should give security to the amount of £150 for the defendant's costs of the sale, and he gave the plaintiff the conduct of the sale, on the ground that he and the third and fourth mortgagees were the persons really interested in obtaining the largest possible price for the property, and the third and fourth mortgagees were willing that the plaintiff should have the conduct. The sale was to take place out of court, but the purchase-money was to be paid into court in the action.-SOLICITORS, H. W. Chatterton; Bellamy, Strong, & Baker; Nicholl Morgan; J. W. Sykes; Boxall & Boxall. PRACTICE-REVivor-Counter-claim—Ord. 19, R. 3—Ord. 50.—In a case of Andrew v. Aitken, before Fry, J., on the 6th inst., the question arose whether on the death of a defendant to an action, who had delivered a statement of defence and a counter-claim, it was necessary to obtain an order of revivor in respect of the counter-claim. After the plaintiff had served notice of trial of the original action, and the action had been set down for trial, the defendant died. The plaintiff then obtained an order to carry on and prosecute the proceedings in the action against the defendant's executors. After this the defendant's executors applied for an order of course, giving them liberty to carry on and prosecute the counter-claim against the plaintiffs in the original action. The registrar declined to make the order as an order of course, and the point was then mentioned to the court ex parte. It was urged that, having regard to the decisions in Beddall . Maitland (29 W. R. 484, L. R. 17 Ch. D. 174), and Lumsden v. Winter (L. R. 8 Q. B. D. 650), that a counter-claim is an independent action, it was necessary that the order asked for should be obtained. FRY, J., adopted this view, and made the order.-SOLICITORS, Pitman & Son. DIVORCE-PERMANENT MAINTENANCE-ANNUITY-DEED-SETTING ASIDE -DUM CASTA CLAUSE-JURISDICTION.—In the Probate, Divorce, and Admiralty Division, on the 6th inst., judgment was given in Bradley v. Bradley upon an application to set aside a deed by which the respondent had been ordered to settle an annuity of £100 upon the petitioner. In 1877 the petitioner had obtained a decree dissolving her marriage on the ground of her husband's adultery and cruelty. The respondent was then ordered to settle upon the petitioner the sum of £100 per annum, and it was referred to one of the conveyancing counsel of the Chancery Division to prepare the necessary deed. After the draft deed had been prepared, the respondent applied to the court to insert in the deed a condition that the annuity should be payable only so long as the respondent should lead a chaste life, but Hannen, P., refused to order the deed to be thus modified (Bradley v. Bradley, L. R. 3 P. & D. 47). The deed was executed on the 29th of July, 1878, and the respondent, on the 30th of April last, moved the court for an order for the delivery up of the deed to be cancelled, and for the release of the respondent from his covenant, it being alleged that the petitioner had, since the date of the deed, led an unchaste life. It was contended that it was an implied term in the deed that the annuity should be payable only dum casta, and the cases of Fisher v. Fisher (2 Sw. & Tr. 414) and Chetwynd v. Chetwynd (L. R. 1 P. & D. 39) were relied upon. On behalf of the petitioner her unchaste conduct was denied, and it was argued (1) that the words dum casta could not be implied as part of the deed; (2) that the court had no jurisdiction to cancel the deed; and (3) that the matter was res judicata, since the court had already refused to impose the condition now sought to be imported into the deed. Her counsel relied upon Gladstone v. Gladstone (24 W. R. 739, L. R. 1 P. & D. 442), and Hart v. Hart (50 L. J. Ch. 697). HANNEN, P., now rejected the application. He had already decided that the condition ought not to be inserted in the deed, and if his decision on that occasion was incorrect it ought to have been made the subject of an appeal. He held that he had no power to cancel the deed, and that, if any ground for doing so had been disclosed, the application ought to have been made to the Chancery Division.-SOLICITORS, Shaen, Roscoe, Massey, & Henderson; Nash & Field. CASES BEFORE THE BANKRUPTCY REGISTRARS. (Before Mr. Registrar BROUGHAM, acting as Chief Judge.) May 26.-Ex parte Evans, Re Ferris. Money received by a bankrupt's solicitor the day previously to the filing of a liquidation petition, and with a knowledge of the client's insolvency, ordered to be repaid to the trustee, after deducting the amount of the solicitor's taxed costs in reference to the liquidation proceedings. This was an application on behalf of the trustee of the property of John PATENT-INFRINGEMENT—ACCOUNT of Profits-Proof for AMOUNT IN Andrew Ferris, a bankrupt, for an order declaring that the payment on or about the 13th of May, 1881, by the bankrupt to Messrs. Hadden, Woodward, On the 23rd of August, 1881, the debtor was adjudicated bankrupt upon the petition of Mr. Barnard, one of his creditors, and on the 9th of September, 1881, a trustee was appointed of his estate. It appeared that shortly before the bankrupt filed his liquidation petitionnamely, on the 4th of May, 1881-he executed a bill of sale of the whole of his stock-in-trade as a surgeon, chemist, and druggist, and also of his furniture and effects, in favour of the Consolidated Credit and Mortgage Corporation (Limited) for an advance of £300. the costs incurred in that proceeding. Under the old Act, if a debtor, before COUNTY COURTS. BOURNEMOUTH. (Before Mr. SERJEANT TINDAL ATKINSON, Judge.) May 24.-Jones v. Short and another. entitled to commission. The bankrupt stated that, having received the money, he went to the office Commission on letting and sale of property-When estate agent not incurred. "Answer :-I claim to hold it as against costs generally incurred at that time and since." Messrs. Hadden, Woodward, & McLeod's costs of the liquidation proceedings had been taxed and allowed at £80 11s. 9d., and demand had been made on behalf of the trustee for payment of the balance of £69 83. 3d., and refused. E. C. Willis, Q.C., and F. C. Willis, for the trustee. The payment of the money to Mr. McLeod is a fraudulent preference, and a fraud on the Bankruptcy Act. McLeod, knowing the insolvent position of the bankrupt, and that he was about to file a liquidation petition, had no right to say, "There is an old debt of mine, you must pay me the old debt and the costs of the liquidation petition." The appropriation of the money in payment of a past debt cannot be supported. They cited Thornton v. Hargreaves (7 East, 544); Ex parte Hall, Re Cooper (L. R. 19 Ch. D. 585) ; Ex parte Halliday, Re Liebert (L. R. 8 Ch. 283). Grain, for the respondents.-The transaction does not come within the doctrine of fraudulent preference. On May 13 the bankrupt had a perfect right to deal with his property as he pleased, subject to the provisions of the Bankruptcy Act, and McLeod was justified in saying, "I estimate my costs at £150. There are certain fees which cannot be allowed in bankruptcy, and unless you pay me that sum I will not act for you." The payment was a perfectly legitimate transaction by a person not under disability, and there is no evidence that, as between McLeod and the bankrupt, the amount was an unfair amount. It is admitted that a large sum of money was due to McLeod in pending matters. If the contract be not fraudulent, how can the trustee claim the money back from a person who received it from the legal owner? Secondly, there is a sufficient demand to support the payment, and the transaction was a fair and honest one between the parties. His HONOUR, in giving judgment, said:-This is an action brought by the plaintiff, an estate agent at Bournemouth, to recover from the defendants, who are builders, the sum of £50 for commission on the letting and sale of a house at Parkstone. The facts, as proved at the trial, so far as they are necessary for the decision in this case, are, that on the 13th of January, 1881, One of the defendants, Short, called at the plaintiff's office and instructed him to let or sell the house in question. The rental asked was £110 a year, and for the purchase £1,800. The terms and particulars of the property were entered in the plaintiff's books. Orders were given to various persons to view, and the usual means employed by estate agents to give publicity to the letting and sale. A Mr. Thompson on passing the plaintiff's office saw in the window a photograph of the house, and procured from the plaintiff the particulars and terms of letting and sale. Nothing more than this was actually done in the matter by the plaintiff. Mr. Thompson having met the defendants on the premises accidentally, concluded with them to become their tenant at the rental of £110 a year. Some time afterwards the trustees of Mr. Thompson's marriage settlement having in their hands a sum of money to invest under the terms of the deed, employed it in the purchase of the house, deriving the information that it was for sale exclusively from Thompson. It is conceded that if the plaintiff is, under these facts, entitled in law to recover the amount claimed, then £50 is due from the defendants. With regard to cases of this nature the law may now be considered settled, namely, that where persons having property such as that in the present case-namely, houses and land-to dispose of, and place them in the hands of an estate agent with instructions to procure a purchaser or tenant, and the relation of purchaser or tenant has been brought about through his agency, he is entitled to his commission, although he has done nothing more than having furnished the information by which the party selling and the party buying have been brought together. In other words, where an estate agent is employed to find a buyer or tenant, he is entitled to his commission if he introduced the parties to each other, though the principals eventually settled the terms between themselves: Bray v. Chandler (18 C. B. 718); Green v. Bartlett (32 L. J. C. P. 261). Upon the authority of these cases, and the facts proved, I am clearly of opinion that as far as the commission charged by the plaintiff on the letting of the defendants' house, £9 78. 6d., the plaintiff has earned it, and is entitled to recover. With respect to the commission claimed upon the sale to the trustees of Mr. Thompson's marriage settlement, £40 12s. 6d., a question of some difficulty arises. The information given to them of the house being for sale is not furnished directly by the plaintiff, but indirectly by Mr. Thompson, who cannot in any sense be said, for that purpose, to be an agent of the plaintiff. The terms of the marriage settlement are not before me, and it may be assumed that the purchase was made by the trustees for parties other than Mr. Thompson, and if that is so, can it be said that the plaintiff introduced the purchasers to the defendants? In the case cited, Bartlett v. Green, in giving judgment Erle, C.J., said, "The question whether the agent is entitled to be paid commission on the sale is one which has often been litigated, and the rule has been to hold that there has been a sale by the agent which would entitle bim to such commission if the relation of buyer and seller has been really caused and brought about by what has been done, that is-if it can be said he was the causa causans by which the property was sold." In the present case, I apprehend proxima causa is not sufficient; it must be shown that the plaintiff was the causa causans of the sale to the trustees. This view is supported by the case of Antrobus v. Wickens (4 F. & F. 291), which is an authority to show that it is not enough to prove that a loan, for procuring which a commis sion is to be paid to an agent, resulted as a remote or casual consequence from the intervention of the party who is suing; it must be proved that the Ican was effected by means of the plaintiff's agency or by means of some subthat the party to whom he introduced the subject of the loan declines the proposal but mentions it to a third party, who of his own mere motion, knowing nothing of the plaintiff, advances the money, then the commission is not due. In that case the defendants were engaged in getting up a company, and, requiring money to accomplish their object, they were introduced by the plaintiffs to the directors of a bank who, how ever, declined the proposal, and the money was obtained by the defendants from parties who had heard of the business through the bank, and it was said Mr. REGISTRAR BROUGHAM, after referring to the evidence, said the argu-agent of his, and if all that appears ment for the respondents amounted to this, that if a solicitor received from a debtor about to file a liquidation petition the sum of £150, and the costs of the liquidation petition came to less than that amount, the solicitor was entitled to retain the balance towards payment of any costs which he might claim from the debtor. But the evidence in this case showed that the money was paid, not for past expenses, but for a specific purpose-namely, payment of the costs of the liquidation-and he thought Mr. McLeod could only take |