Chancery Division and introduce the pleasing novelty of numerous victed of an indictable misdemeanor under this Act, is liable to unopposed appeals. be kept in penal servitude for seven years." The effect of these two sections is, therefore: 66 1. That simple larceny following upon a felony may have an additional punishment; 2. That simple larceny following upon an indictable misdemeanor may have an additional punishment: 3. That a misdemeanor punishable like simple larceny, and following upoз au indicable misdemeanor, may have an additional punishment. But it is not provided LOOKING TO THE RARITY of prosecutions for blasphemous libel, much legal interest will attach to the proceedings against the Freethinker. It is beyond question an indictable misdemeanor at common law to blaspheme against God, Christianity, or Holy Scripture (R. v. Woolston, 2 Str. 834; R. v. Waddington, 1 B. & C. 26); but in R. v. Woolston the court expressly excluded dis4. That a misdemeanor punishable like simple larceny, and following upon putes between learned men upon particular points, and it may be a felony, may have an additional punishment. a question what degree of scurrilousness must be reached to conUnder a subsequent statute this casus omissus was provided for, stitute the common law offence. The statute law, however, is it being enacted by 27 & 28 Vict. c. 47, s. 2, that, "Where any somewhat more explicit. Reviling the Sacrament is punishable by fine under 1 Ed. 6, c. 1; publicly ridiculing the Prayer Book person shall, on indictment, be convicted of any crime or offence punishable with penal servitude, after having been previously also by fine under 1 Eliz. c. 2, a third conviction under the latter convicted of felony, the least sentence of penal servitude that can statute entailing imprisonment for life; and for a person who has be awarded shall be seven years," and KELLY, C.B., in R. v. been educated as a Christian to "deny the Christian religion to be Deane (L. R. 2 Q. B. D. 305), held that under this section a true, or the Holy Scriptures of the Old and New Testament to be prisoner convicted of obtaining money under false pretences, after of Divine authority," is an offence punishable, upon a first conà previous conviction for felony (the previous conviction being viction, by deprivation of any office, ecclesiastical, civil, or charged in the indictment), could not be sentenced to less than military, held by the offender, and upon a second conviction by seven years' penal servitude. Were this section still in force the disability to sue, prosecute, plead, or use any action or informagap would have remained filled. But the Legislature, wishing to tion in any court of law or equity, or to be guardian of any child, reduce the minimum penalty of seven years' penal servitude proor executor of any person, or capable of any legacy or deed of vided by this section, and labouring apparently under the impresgift," and also by imprisonment for three years, which term of sion that it merely fixed a minimum penalty, repealed the imprisonment, in addition to a fine of £1,500, was the sentence section by 42 & 43 Vict. c. 55, s. 1, and the commonly received upon RICHARD CARLILE: see Reg. v. Carlile (1 B. & Ald. impression appears to be, that the intention of the Legislature, 161), in which BEST, J. pointed out that the statute did not that of simply permitting a lesser punishment to be given, was abrogate the common law; that the Legislature in passing it "had the only effect of this fresh enactment. Its real effect was, however, not the punishment of blasphemy so much in view as the protec- clearly much more sweeping, its repeal having thrown us back tion of the Government of the country, by preventing infidels from into the position we were in before-that is, with no additional getting into places of trust," and that the Act "extends to those penalty for a misdemeanor (punishable like simple larceny) folwho, in the most private intercourse, by advised conver-lowing upon a felony. Consequently to charge a prisoner, who is sation, admit that they disbelieve the Scriptures." Other statutes bearing on the subject are 1 Geo. 4, c. 8, which empowers the court before whom a verdict against a person for publishing a blasphemous libel shall be given to make orders for the seizure of all copies of the libel; 5 & 6 Vict. c. 38, which removes blasphemies and offences against religion" from the jurisdiction of quarter sessions; and in especial connection with the proceedings against the Freethinker, which is a newspaper, the recent Newspaper Libel and Registration Act, 1881 (44 & 45 Vict. c. 60). By section 5 of this Act "no criminal prosecution shall be commenced against any proprietor, publisher, or editor, or any person responsible for the publication of a newspaper, for any libel published therein without the written fiat or allowance of the Director of Public Prosecutions; and by section 6 every libel is to be deemed to be an offence within the Vexatious Indictments Act (22 & 23 Vict. c. 17), whereby no indictment for the offences therein mentioned may be presented unless the prosecutor has been bound over to prosecute, or the accused has been committed by a justice of the peace, or the accused has been bound over to appear at the trial, or the consent of a judge or the AttorneyGeneral has been obtained to the indictment being preferred. IN A CASE of R. v. Crook, tried at the recent Dorset Quarter Sessions, a curious pitfall for unwary magistrates came to light. The prisoner was tried for, and convicted of, obtaining money under false pretences, and the bench, considering it to be a gross case, were inclined, upon the strength of a previous felony being charged in the same indictment, to pass a sentence of seven years' penal servitude. As, however, some question was raised as to whether they had power to do this, the bench eventually decided to disregard the previous conviction, and accordingly sentenced the prisoner to five years' penal servitude, the maximum penalty for a first offence. There can be no doubt that they were right in so doing. By section 7 of 24 & 25 Vict. c. 96, it is enacted that, "whoever commits the offence of simple larceny after a previous conviction for felony, is liable to be kept in penal servitude for ten years," and, under section 8, it is enacted that, "whoever commits the offence of simple larceny, or any offence hereby made punishable like simple larceny, after having been previously con indicted for obtaining money under false pretences or any other misdemeanor punishable like simple larceny, with a previous conviction for felony is no longer of any use, indeed only misleading, as it may cause a mistake to be made as to the amount of punishment which can be given for such an offence. IT IS NOT THE FACT, as has been stated in connection with the presentation of the Annual Report of Temporary Bills, that the practice of passing temporary Acts is of modern date only. The practice is a very old and frequent one, dating at least as far back as 7 Ric. 2. c. 17, whereby mainpernors shall satisfy the plaintiff for his delay, where the defendant keepeth not his day" a statute which was permitted to expire. In a long series of cases the temporary Acts were continued in a bunch by a statute differing only in form from the modern "Expiring Laws Continuance Act": see, for instance, 5 & 6 Ed. 6, c. 17; 7 Ed. 6, c. 11; 1 Mar. Sess. 3, c. 12; 13 Eliz. cautious mode of legislation confined to measures of small consec. 25; 27 Eliz. c. 11; 35 Eliz. c. 7; 39 Eliz. c. 18. Nor was this quence. The Poor Law Act of Elizabeth, the Statute of Distributions of James the First, and the Statute of Frauds of Charles the Second, were all temporary Acts in the first instance. It may be remarked, in connection with the subject, that both the Ballot Act, 1872, and the Employers' Liability Act, 1881, owe their temporary character to amendments inserted in the House of Lords. A MELANCHOLY EVENT occurred on Saturday last in the Royal Courts of Justice. Mr. MURDOCK, who was well known about the legal offices, and had been for many years in the employment of Messrs. FLADGATE, of Craven-street, Strand, fell down lifeless in the building of the Royal Courts of Justice. In spite of endeavours to find a place to which it might be removed, the body had to remain in the building until an inquest could be held. Mortuaries exist in many localities in London, but in this instance neither that at St. Clement's Danes nor that at St. Mary-leStrand were available, probably because the place of decease was out of the parish. SET-OFF IN CASE OF MUTUAL DEALINGS. un THE case of Jack v. Kipping (L. R. 9 Q. B. D. 113) illustrates very strongly the great alteration of the law effected by the Bankruptcy Act of 1869 with regard to mutual dealings between the bankrupt and persons indebted to the bankrupt's estate. Under the previous statutes relating to bankruptcy set-off was allowed in taking the account when there had been mutual credits. The expression "mutual credits," as is well known, was construed by the courts to apply only to cases where there had been mutual credits of such a nature as to terminate in debts; but this construction excluded cases of unliquidated damages. The term "mutual dealings was used in the Act of 1869, and it is now settled, by the decision in the case of Peat v. Jones & Co. (L. R. 8 Q. B. D. 147), that this term allows a set-off of liquidated damages arising under a contract against a debt due to the estate of the bankrupt. In that case the trustee in bankruptcy sued for the price of iron delivered, and the defendant counterclaimed for damages for the non-delivery of iron under the same contract. It might, perhaps, be argued that it was an essential feature in this case that the claims both arose out of the same contract. We doubt, however, whether the principle of the decision would not apply even where the claims arose out of different transactions. The language of Brett, L.J., seems to go beyond the case of cross-liabilities arising out of the same contract. He says, "It seems to me that the expression mutual debts and credits' was intended to comprise all ordinary transactions between the two persons in their individual capacities, and that mutual dealings was added to get rid of any questions which might arise whether a transaction would end in a debt or not." It may be said that the hardship would be greater if a debtor was obliged to satisfy in full his liability upon a contract while only getting a percentage upon the liability to him arising on the same transaction; but, after all, it does not make much difference in the hardship of the case whether the cross-liabilities arise on the same or different contracts, and it must be observed that the term mutual," as employed in the phrase "mutual credits" in former Acts, did not imply any such restriction as that we refer to, and it therefore can hardly be supposed to do so in the phrase "mutual dealings." It would, therefore, seem that the decision in Peat v. Jones establishes the proposition that the debtor to the bankrupt's estate can set off against his liability any liability to unliquidated damages arising upon any contract by the bankrupt with him. 66 In Jack v. Kipping, as it appears to us, a much longer stride was taken than by the decision in Jones v. Peat. The action there was by the trustee in liquidation for the price of shares in a company sold by the liquidating debtor to the defendant, and the defendant counter-claimed damages for a fraudulent representation, whereby the defendant was induced to buy the shares. It was held that he could do so under the "mutual dealings clause of the Bankruptcy Act of 1869. It seems to us that this decision is according to the obvious justice of the case. We think that the law ought to be, and we hope that it is, as laid down by this decision, but we think it nevertheless a somewhat strong decision. Cave, J., in giving judgment, said: "We are of opinion that the case is governed by Peat v. Jones & Co., and that he is so entitled on the ground taken by the Master of the Rolls, that a contract of sale and purchase is in its nature mutual, imposing reciprocal obligations on the vendor and purchaser, and that consequently claims arising out of that contract are mutual dealings within the statute. It seems to us that it would be inequitable to hold that where a purchaser has had an article, which turns out to be worthless, palmed off on him by fraudulent misrepresentations, and the vendor has become bankrupt, he should be compelled to pay the agreed price to the trustee and be left to recover back as much as he can in the shape of a dividend. It is said that such a fraudulent misrepresentation is a tort, but we think that it is not a personal tort, but a breach of the obligation arising out of the contract of sale." It is to be observed that the words thus used seem to rely to some extent on the fact that the cross-liabilities both arose out of the same transaction; but, as we have said before, it hardly seems that in the case of contractual obligations properly so called the term "mutual" can be thus restricted. Suppose a case were to arise in which the trustee sued for the price of goods sold by the bankrupt to the defendant, and the defendant sought to set off unliquidated damages for a fraudulent representation by the bankrupt on the sale of other goods. This would be a step further than the case of Jack v. Kipping. Would the same reasoning apply? It seems to us that, by analogy to the case of mutual debts and credits, it ought to do so. But it is obvious that if this be held to be the case, the alteration effected by the introduction of the term "mutual dealings" is of a very sweeping character. It was held under the earlier Acts that a liability could not be set off unless it was proveable under the bankruptcy. By the 31st section of the Bankruptcy Act, 1869, demands in the nature of unliquidated damages, arising otherwise than by reason of a contract or promise, shall not be proveable in bankruptcy. Can the liability to unliquidated damages for a fraudulent representation be said to be a demand arising by reason of a contract or a promise? It seems to us a great stretch of the words to say so. No doubt the damages would not arise but for the subsequent making of the contract, but still it hardly seems to us that such damages can, within the natural meaning of the words, be said to arise by reason of a contract or promise. If such damages would not be proveable, then the effect of the decision in Jack v. Kipping would be that proveability is no longer the test whether the liability can be set off. It may, as it appears to us, be very fairly argued that such damages ought to be proveable; the question how the liability is to be proved is a mere question of machinery, and there seems no reason why a person who has a just claim against the bankrupt for such damages should be deprived of all share of the bankrupt's assets, and left to pursue his claim against the bankrupt after he has been deprived of all means of satisfying such claim. We think it probable that various difficult questions which the decision in Jack v. Kipping suggests may turn up hereafter unless a new Bankruptcy Act is passed next session, containing provisions dealing more explicitly with these matters. ARE LEASEHOLDS WITHIN SECTION 18 OF THE CONVEYANCING ACT? THE decision of the Court of Appeal in In re Hall Dare's Contract (supra, p. 371), and the appearance of a section in the new Conveyancing Bill to amend section 65 of the old one, have made it more difficult to pooh-pooh criticism as mere hair-splitting, and the suspicion is not unreasonable that some further revelations may be in store for the profession. The question at the head of this article is one that cannot fail to be asked; and we should be very grateful to anybody who will give it a satisfactory answer. Section 18 begins with the words "A mortgagor of land"; and the powers of leasing conferred by the section upon mortgagors and mortgagees in possession are confined to mortgages of land. A mortgagor can of course only mortgage what he has got, It is part of the alphabet of the law, as the reader hardly needs to be reminded, that no one in England can possess land absolutely, as he may possess a chattel. A man can have no more than an estate or interest in the land, and this, therefore, is what, if a mortgagor, he must mortgage. The question, therefore, is, What estates and interests in land are, within the meaning of section 18, comprised under the word land? The reader will, of course, turn to the interpretation clause, section 2, where he will find these words: "(ii.) Land, unless a contrary intention appears, includes land of any tenure, and tenements and hereditaments, corporeal or incorporeal, and houses and other buildings, also an undivided share in land." That this extensive conglomeration was put together without any pressing necessity, and with no clearly formed intention of relying upon it, sufficiently appears from the following remarks, which we extract from the very friendly commentary of Messrs. Clerke and Brett: "Numerous examples of the expression" [land] "being used with a restricted meaning occur throughout the Act. Thus, incorporeal hereditaments are excluded by a reference to possession, actual occupation or entry, in sections 18, 42, and 44; copyhold or customary land' is expressly excepted power mentioned in the note might possibly be meant only the by section 34 (3), from the operation of that section; the expres- statutory power of sale, which is not in dispute. If this seems to sion freehold land' is used in sections 50, 62; land of inheri- be a forced interpretation, as no doubt it is, we can only reply, tance' in section 58; and freehold or leasehold land' in section that it is not a bit more forced than some interpretations which 26. Lastly, in sections 30, 49, part of the definition, tenements we have seen of some passages in the Conveyancing Act itself. or hereditaments, corporeal or incorporeal,' is employed, the Perhaps some of our readers may feel a general impression that words of any tenure' being omitted, probably with the intention leaseholds will have to be dragged in somehow, and that the judges of excluding copyhold and customary land from the scope of will have to invent a way to do it. This may, perhaps, be the those sections" (2nd ed., p. 23). For our own part, we are not correct view; and if it is, nothing remains for us to do but to aware of any passage whatever in the Act where the whole of await with respectful curiosity the exegetical method which is to the medley is indisputably included. solve our perplexity. And if this shall turn out to be such as, in the opinion of men of sense and discretion, may, without impropriety, be applied to the interpretation of important statutes upon highly technical subjects, this will be to us a source of no less satisfaction than surprise. But, on the present occasion, instead of complaining of its superfluity, we are doubting whether, in spite of its huge scope, it has not omitted something which, as most of our readers will probably think, ought to have been included beyond all possibility of a doubt. Does "land" include "a term of years"? and, therefore does " a mortgagor of land" include" a mortgagor of a term of years"? and can section 18 be relied upon to give powers of leasing in the case of mortgages of terms of years, commonly called mortgages of leaseholds? Let us, in the first place, ascertain what estates and interests the word "land" does include. It undoubtedly, by virtue of the REVIEWS. CONVEYANCING. CONVEYANCING ACT. FOURTH EDITION. By W. B. COLTMAN, ESQ., interpretation clause, includes all estates of freehold. For estates HAYES' CONCISE CONVEYANCER, WITH PRECEDENTS ADAPTED TO THE NEW of inheritance in possession are included under corporeal hereditaments; estates of inheritance in remainder, or reversion, are included under incorporeal hereditaments; while estates for life and estates pur autre vie, though they are not hereditaments, are included under tenements. Now what do we find in the interpretation clause to bring a term of years within the meaning of land? Can it be by virtue of the phrase, "land of any tenure"? We think not. In the first place, this phrase is commonly used to refer to freeholds, copyholds, and customary freeholds; phrases which have nothing to do with terms of years. In the second place, if we were criticising the utterances of an ordinary person, we should interpret the decree, "land shall include land of any tenure," to mean that, notwithstanding any peculiarities in the tenure by which certain lands here and there may happen to be held, and which might present some obstacles to the taking effect of parts of the Act, yet such parts shall, nevertheless, take effect in spite of the obstacles presented by the peculiariti-s aforesaid, which shall be, so far, overborne by the authority of the Act. We do not pretend to know whether this is the meaning of the Act; because it may possibly have picked the phrase up (as it seems to have picked up some others) without perhaps fully considering where the phrase came from and what it was designed to mean. But, not having any authority to insert words into the Act's tions, we must hesitate to take "land of any tenure" to mean "any estate or interest in land of any tenure"; especially as to do so would practically deprive the rest of the verbose definition of such raison d'être as it can be said to possess. [FIRST NOTICE.] The greatly reduced size of this edition of Hayes is not solely, or perhaps mainly, due to the effect of the Conveyancing Act. The whole of the long summary of stamp laws has been omitted, and the tables of former and present stamp duties have been relegated to the appendix, and cut down from fifty pages to eight pages. The long chapter on succession duties; the disquisition on composition deeds, and the precedents of those deeds which appeared in the last edition have been omitted. In this way at least two hundred pages have been saved, and the book has been brought into a very handy and convenient size, without any diminution of its practical utility. In a new edition of a work which was originally designed as a manual of concise conveyancing it is to be expected that the implied provisions of the Conveyancing Act will be adopted to the fullest extent compatible with safety. But Mr. Coltman's treatment of that Act contrasts very favourably with that of certain learned authors on whose productions we recently had occasion to comment. He does not take the simple course of adopting the Act wholesale, and stating its provisions without criticism or question. He is friendly to the Act, but, nevertheless, a candid friend. Thus (to cite only a few of his criticisms), he points out (p. 1) that the definition of the term conveyance "is not very happily expressed, as at first sight it seems that it is only a covenant to surrender that is required to be made by deed." Again, he says (p. 14) that the defini-expression in section 7, "a person who conveys and is expressed to convey as beneficial owner" "is not very happily chosen, as it would convey two distinct meanings, according as the words ' and is expressed to convey' are or are not to be read as parenthetical. In the former case, it would seem to be necessary (in order to bring the case within the statute) that the person conveying should actually be, as well as be expressed to be, the beneficial owner; while, in the latter case, it would be sufficient if a person, who purports to convey, is expressed to convey as beneficial owner whether he be beneficial owner or not." With The rest of the definition seems to give us no help whatever. Nobody, we believe, has ever pretended that a term of years is a tenement; and to style a term of years a hereditament would be a manifest self-contradiction. Nor does a term of years seem to be a house or a building; and still less, if possible, does it seem to be an undivided share of land. So that we begin to feel, with humility, that we are at a loss to guess by what process these reluctant sheep are to be dragged into the fold. We are quite aware that these doubts are not shared by (or perhaps we should rather say, have never occurred to) some eminent persons, whose deliberate judgment would be entitled to great weight. At vol. 1, p. 517, of the last edition of the Precedents of Messrs. Prideaux and Whitcombe, there is a "mortgage of property comprised in several leases by assignment," which contains an express power of sale and leasing; the insertion of the express power being explained (p. 518) by the following footnote:-"As this power of sale and leasing is somewhat special, it is retained instead of relying on the statutory power." The inference seems plausibly to follow that, in the opinion of those learned editors, the statutory power of leasing might have been relied on in a mortgage of leaseholds. But we cannot attach any great importance to so very casual an expression of opinion. Indeed, we do not pretend to be quite sure that any opinion about the power of leasing has been expressed; for by the statutory And regard to general words, he says, "It certainly would not be ferred by this Act," and if the power referred to had been inserted in the Act it would clearly have been binding on the prior incumbrancer. Mr. Coltman concludes, as the profession has generally concluded, that, "it is hardly probable that mortgagees will consent to the mortgagors exercising the statutory powers of leasing, except in very special cases.' His form of clause excluding this power contrasts favourably, in point of terseness, with some of the elaborate provisions we have seen inserted in mortgages with this object. It is as follows: "Provided always, that [mortgagor] shall not, without first obtaining the consent, in writing, of [mortgagee], his executors, administrators, or assigns, exercise any of the powers vested in mortgagors by the Conveyancing and Law of Property Act, 1881, or any other statutory power for the time being exercisable by mortgagors." The foregoing will show the judicious manner in which Mr. Coltman has dealt with the provisions of the Conveyancing Act. He has adopted the convenient plan of inserting before each class of precedents the provisions of the Act relating to them, with explanatory and critical remarks. We do not always agree with his conclusions, but his remarks are acute, practical, and instructive. The same may be said of the foot-notes throughout the work. We propose hereafter to consider the precedents and other features of the volume. REAL PROPERTY. PRINCIPLES OF THE LAW OF REAL PROPERTY. By the late JOSHUA WILLIAMS, Esq., Q.C. THE FOURTEENTH EDITION (incorporating the Conveyancing and Law of Property Act, 1881). By his son, T. CYPRIAN WILLIAMS, Esq., Barrister-at-Law. H. Sweet. son. The lamented death of the author of this unrivalled elementary treatise has thrown the whole work of editing the present edition on his We note few changes in the work, except such as are occasioned by the Conveyancing Act, the provisions of which are noticed in the proper places. A new chapter has also been added by the editor on the present form of conveyance, setting out in clear and simple language the changes proposed to be effected. The additions and alterations, so far as we have observed, have been made with accuracy and discretion, although perhaps a little explanation might have been usefully afforded to the student on some of the more obscure sections of the Conveyancing Act-e.g., sections 10 and 11. business, or residence of the person making the same, or his or her attorney, within the limits aforesaid" (ten miles of Serjeants'inn Hall). The Judicature Act, 1873, section 82, enacts that "every person who, at the commencement of this Act, shall be authorized to administer oaths in any of the courts whose jurisdiction is hereby transferred to the High Court of Justice, shall be a commissioner to administer oaths in all causes and matters whatsoever which may from time to time be depending in the said High Court, or in the Court of Appeal." Since that Act came into force I, in common, I believe, with all other commissioners, have always been under the impression that the "commissioner to administer oaths in the Supreme Court of Judicature" is empowered to take affidavits in any place where the Supreme Court has jurisdiction. Judge my surprise, however, when I was informed by a gentleman, a late clerk of mine, whom I swore to an affidavit in the solicitors' waiting-room in the Royal Courts of Justice, where we were both upon business, that the affidavit had been rejected by "the official" at the Royal Courts, with the observation "the gentleman had better mind or he will lose his commission." " Now, Sir, my obvious answer to this is, that the old commissions have already gone, and that I am now acting under the Judicature Act, which, in my humble opinion, does not limit the commissioners' powers to place of business." If otherwise, I would ask, what is the effect of all affidavits not sworn at the "place of business e.g., at liquidation meetings and the like, and which have, hitherto, been received in evidence ? Assuming "the official" is right in his contention, then is not the Royal Courts of Justice, where the commissioner was, as a solicitor, upon his lawful business, as was the deponent also, the "place of business" of both? This really seems to me to be a question of so much consequence to the profession, public in general, and commissioners in particular, that it should be, at once and for ever, set at rest; if, indeed, there can be any doubt in the matter. I am not aware that there is any decision upon the point, but perhaps you, Sir, or some more vigilant practitioner than myself, may be able to refer me to a case. The importance, to my mind, of the question will, I trust, be my sufficient apology for thus troubling you. G. B. Bedford-row, London, July 12. CORRESPONDENCE. DIVORCE SETTLEMENTS. [To the Editor of the Solicitors' Journal.] Sir,-The case of Wigney v. Wigney, reported 30 W. R. 722, suggests considerations which it may be of importance to bear in mind. According to the report a husband was by a marriage settlement given a life interest in property of the wife, which interest he afterwards mortgaged. A decree for dissolution of the marriage having been made, the registrar, upon inquiry, appears to have reported that the settled property ought to be held upon the trusts arising on the husband's decease-in other words, destroying the life interest and the charges on it. There being, however, evidence that the mortgages were created to secure moneys borrowed for the purposes of the joint establishment, before the divorce, the court confirmed the registrar's order subject to the wife's undertaking to pay the mortgages. On appeal a variation, which I need not mention, was directed to be made in the order. I only desire to quote the following observation of the Master of the Rolls :-"The court has allowed the mortgages which he created on his life interest to remain, but beyond that it has destroyed his interest under the settlement." The dilemma is this: either the court has, or has not, power to destroy mortgages and assignments for value by persons interested under marriage settlements. If it has the power, is not a danger incurred which is not taken into .contemplation by persons purchasing or taking mortgages on such interests ? whilst on the other hand, if the court has not such power, then the effect of the provisions of the Acts might be obviated by an assignment for value before the order for varying the settlement was made. I suppose we must regard the court as having such a power; and it will, therefore, be well for persons buying, or lending money on, such interests, to bear in mind a possible danger which may destroy their investment or security. J. A. COMMISSIONERS TO ADMINISTER OATHS. [To the Editor of the Solicitors' Journal.] Sir, I was appointed a commissioner to administer oaths in all the common law courts upwards of fourteen years ago. By my commissions I was assigned "to administer oaths and take and receive affidavits at my place of business, or residence, or at the place of IN RE CLEW. [To the Editor of the Solicitors' Journal.] Sir, I send you the following observations suggested by this case re ferred to in your correspondence column last week: 11 & 12 Vict. c. 43, s. 19, gives power to issue a distress warrant where the special statute provides no means of enforcing payment, and in case of its appearing to any justice, "to whom application shall be made for any such warrant of distress," that there are no goods, &c., he may commit defendant to prison "for such time and in such manner as by law such defendant might be so committed, in case such warrant of distress had issued and no goods or chattels could be found, &c." By section 22 of the same Act, as amended by 21 & 22 Vict. c. 73, 8. 5, there is power in such cases, where the statute provides no remedy in default of distress, to commit for not exceeding three calendar months. It may be noted that the proviso in section 19 appears to indicate that the discretion as to issuing a distress warrant or not might be exercised after conviction by "any justice" to whom application for a distress warrant might be made. But the form I. 1 given in the schedule to the Act, does not appear to support this view. The form indicates that it is to be determined at the time of conviction, and to be stated in the conviction, whether a distress warrant is to issue or not, and it might have been questionable whether, if a conviction adjudged distress, and application was afterwards made to a justice to enforce it, he could dispense with the distress. In practice, I believe, it was always decided at the time of conviction whether a distress was to issue or not. The next Act to be noticed was "the Small Penalties Act, 1865 " which gave power in all cases of penalties not exceeding £5 to imprison, according to the scale thereby provided, without any distress warrant. These Acts were in force when the Licensing Act, 1872, was passed, and section 51 of that Act makes 11 & 12 Vict. c. 43, applicable to the enforcement of penalties under the Licensing Act, subject to certain provisions contained in the sub-sections, one of which (sub-section 2) is to the effect that where a distress has been ordered to be made for a penalty exceeding £5, and there are no goods, the defendant may be imprisoned according to a scale there given. To ascertain exactly what this means it is proper to consider what the effect of the 51st section without this provision would have been. It is not a fact that the sub-section alone gives power to imprison in default of distress. Under the Small Penalties Act, in the case of penalties not exceeding £5, the scale there given would have applied, and under the provisions above quoted of 11 & 12 Vict. c. 43, in the case of penalties *The form of commitment given in Oke's Formulist recites the conviction es stating that it had been made to appear that there were no goods, &c. above £5, the defendant could have been imprisoned in default of distress or on its appearing that there were no goods, &c., for not exceeding three months. This would have been the state of things if sub-section 2 had not been inserted, and therefore it appears tolerably clear that the object of those who framed the sub-section was only to provide a somewhat higher scale of imprisonment. In Reg. v. Newcastle Justices (or Re Broun), 42 J. P. 598, it was decided that under section 51, sub-section 2, a warrant of distress must actually issue before commitment. At that time the Summary Jurisdiction Act, 1879, had not been passed, and the only form of conviction provided where a warrant of distress was to be dispensed with on the ground of there being no goods, &c., was the form I. 1 (in schedule to 11 & 12 Vict. c. 43) above alluded to, and the judges probably thought that by such a conviction a distress could not be said to have been "ordered to be made." But now by the Summary Jurisdiction Act, 1879, the Small Penalties Act is repealed, a scale of imprisonment is provided (section 5) which overrides that in the Licensing Act, and section 21, sub-section 3, in terms applies to all cases where a warrant of distress is "authorized to be issued." Now it is clear that by 11 & 12 Vict. c. 43, made applicable by section 51 of the Licensing Act, a warrant of distress is "authorized to be issued" for all penalties under the Licensing Act. Therefore the above section of the Summary Jurisdiction Act, 1879, applies to such cases, and it appears to override the requirement in section 51, sub-section 2, of the Licensing Act as to a distress having been "ordered to be made." CASES OF THE WEEK. WILL-CONSTRUCTION-DEVISE FOR LIFE WITH REMAINDER TO ISSUE AND THEIR HEIRS-GIFT OVER ON DEATH WITHOUT LEAVING CHILDREN.— In a case of Morgan v. Thomas, before the Court of Appeal on the 7th inst., the question arose whether a devise to a tenant for life, followed by a gift over if he should die without having any ohildren, operated to enlarge his life estate into an estate tail. The testator made his will in 1834, and died in the same year. By his will he devised all his real estate to his son L. during his life, and after his decease to his lawful issue and their heirs for ever, if any; and if he should die without leaving any children, the testa. L. died in 1881, tor gave the property to his son E. and his heirs for ever. without ever having been married. E. died in 1857, intestate. The plaintiff was E.'s heir-at-law. The defendant, on the death of L., entered into possession of the property. The plaintiff alleged that under the will he became entitled to the property in fee, and he brought the action to recover the property. The defendant alleged that L. took an estate tail under the will, that he had barred the entail, and that he had devised the property in fee to the defendant. The plaintiff demarred to the statement of defence. Cave, J., held (L. R. 8 Q. B. D. 578), though not without some doubt, that L. took an estate for life, followed by a remainder in fee to his issue as purchasers if he had children, and a remainder in fee to E. if he had no children. The Court of Appeal (JESSEL, M.R., Sir JAMES HANNEN, and LINDLEY, L.J.) affirmed this decision.-SOLICITORS, 1. H. Wrentmore ; Crowder, Anstie, & Vizard. But, even supposing that requirement to be still in force, the present-RIGHT TO SUE-RIGHT OF PERSON DEALING WITH AGENT TO SET OFF practice as to commitments in default of goods appears to satisfy it. The new form of conviction, No. 5, settled under the Act of 1879, applies to all cases where a distress is ordered; and, whatever may afterwards be done, a distress is now always ordered to be made in a properly drawn conviction where the statute provides for distress, and the conviction no longer states in any case that it appeared that there were no goods, &c. That, if done at all, is done afterwards, in the commitment (form No. 27 of the new forms), which expressly recites, as the fact is, that the conviction ordered a distress to be made, thus satisfying the terms (if they now require to be satisfied) of section 51, sub-section 2, of the Licensing Act. Then the commitment goes on to state that, appli-employed by the plaintiffs to ship goods for them to the defendants, for sale cation having been made for a warrant of distress, it appeared there were no goods, &c., and imprisonment is therefore ordered. The forms now authorized would really have been more applicable to the apparent meaning of the provisions of 11 & 12 Vict. c. 43, than the forms in the schedule to that Act; but, whatever difficulty might have been felt before the Summary Jurisdiction Act, 1879, was passed, it is very hard to see how it can be now argued that section 21 of that Act does not apply to cases under the Licensing Act, or how there can be any doubt about the power of justices, in cases of penalties above £5, to imprison at once on its appearing that there are no goods, &c. It will be observed that in cases below £5, now that the Small Penalties Act is repealed, there is no power of imprisonment at all except under the Summary Jurisdiction Acts, and therefore it is submitted that no one would deny their application to such cases. A JUSTICES' CLERK. FOREIGN MARRIAGE LAWS. [To the Editor of the Solicitors' Journal.] Sir,-Referring to the article on Foreign Marriage Laws in your issue of the 24th of June, can any of your readers inform ine whether a marriage in England between a British subject and a naturalized foreign subject is binding upon the naturalized foreign subject in his own country? No mention is made of Germany in the memorandum drawn up by the committee of the Social Science Association. Is a marriage in England between a British subject and a German valid in Germany? JUVENIS. On the 6th inst., in the House of Commons, Mr. E. Clarke asked the First Lord of the Treasury whether, having regard to the fact that there was now no prospect of a Bankruptcy Bill being introduced by the Government during the present session, and that a Bill brought in at the instance of the Associated Chamber of Commerce, which had been read a second time had been blocked by the President of the Board of Trade, he would use his influence with the President of the Board of Trade to induce him to remove the block, and to permit the Bill to be considered in Committee. Mr. Chamberlaid said: "The Bankruptcy Bill referred to by the hon. member was read the second time late at night in a thin House, and after a proposal to adjourn the debate had been lost by a small majority. The proposals of the Bill, in my opinion, offer no foundation for a satisfactory amendment of the law, and as the subject is of great importance, I cannot consent to the debate being taken at an hour when there is no time for adequate discussion." In further answer to Mr. E. Clarke, Mr. Chamberlain said the Government were not prepared to give facilities for the discussion of the Bill referred to. PRINCIPAL AND AGENT-UNDISCLOSED PRINCIPAL-PRIVITY OF CONTRACT AGENT'S DEBT AGAINST PRINCIPAL.-In a case of Massons v. Mildred, before the Court of Appeal on the 7th inst., an important question arose as to the extent of the right of a merchant in this country, to whom goods are con signed for sale by the agent of an undisclosed foreign principal, to set off, as against the principal, moneys due to him on the general balance of accounts between himself and the agent, and to retain the balance out of the proceeds of sale of the principal's goods, or, in case of loss of the goods at sea, out of the proceeds of policies of insurance effected on them by the consignee in his own name. The plaintiffs were merchants in Havannah; the defendants were merchants in London. A firm of Demestre & Co. carried on basiness in Havannah as shipping agents, bankers, and importers, and were on the plaintiffs' account. The defendants knew Demestre & Co., and corres ponded with them and had extensive dealings with them, but, although the plaintiffs knew who the defendants were, and wished Demestre & Co. to employ them, the defendants knew nothing of the plaintiffs, and when the plaintiffs sent goods through Demestre & Co. to the defendants for sale, the Demestre & Co. for them, and Demestre & Co. accounted to the plaintiffs. On goods were sent in Demestre & Co.'s name, and the defendants accounted to the other hand, the defendants acted as bankers and factors for Demestre & Co., and made them advances, upon the understanding and agreement that Demestre & Co. should remit to the defendants cash, bills, or goods to cover those advances. The defendants kept only one account with Demestre & Co., although they sometimes made advances on specific consignments. In July, 1880, the plaintiffs arranged with Demestre & Co. to forward to the defendants for sale a cargo of tobacco. Demestre & Co. accordingly chartered a ship in their own name, the tobacco was put on board, the bills of lading for it being made out in their name. In accordance with telegrams sent by Demestre & Co., directing them to insure the cargo for £11,000, the defendants effected an insurance for that amount by slips in the usual way, but the policy was not made out and signed until the 18th of September. The policy was effected by the defendants in their own names, and for the benefit of all persons interested. On August 9 the defendants were informed by a letter from Demestre & Co. that they were acting in the matter as agents for a principal, whom they spoke of as the "interesado," but whose name they did not mention. A few days before the policy was obtained Demestre & Co. failed. The ship was lost, and before the underwriters had paid to the defendants the amount insured the plaintiffs claimed to be entitled to it, and the defendants knew of this claim. The defendants received from the underwriters £11,000, and they sought to retain the whole of it, upon the ground that Demestre & Co. were indebted to them to a larger amount upon the general balance of accounts between them. The plaintiffs, on the other hand, contended that they were entitled to the whole £11,000, after deducting the premiums paid by the defendants for effecting the policies, and what, if anything, Demestre & Co. might have deducted or set off as against the plaintiffs, if Demestre & Co. had received the policy moneys and remitted them themselves. The action was brought by the plaintiffs to recover the £11,000 from the defendants. At the trial before Manisty, J., the jury found that the tobacco was the property of the plaintiffs; that the defendants were not employed by the plaintiffs, but by Demestre & Co., to sell the goods and account for the proceeds, but that the defendants knew or had reason to believe that Demestre & Co. were acting as agents for an undisclosed principal. Also that the defendants were em ployed, not by the plaintiffs, but by Demestre & Co., to receive the amount of the insurance for them, and that they received it on account of Demestre & Co. and the individual interested. Also, that the plaintiffs authorized Demestre & Co. to consign the goods in their own name, and that the insurance was effected "for all parties whom it might concern." Upon these findings judgment was entered for the defendants. The Court of Appeal (JESSEL, M.R., and LINDLEY and BOWEN, L.JJ.) reversed the decision. LINDLEY, L.J., who delivered the judgment of the court, said that the ques tions at issue reduced themselves to two-viz. (1), Could the plaintiffs sue the defendants at all? (2) If they could, were the defendants entitled to the |