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Allard, Henry, Birmingham, Furniture Dealer. Sept 8 at 3 at offices of Jaques, Temple Oliver, George, Liverpool, Pianoforte Manufacturer. Sept 12 at 3 at offices of Seaman, row, Birmingham

West Derby st, Liverpool Ash, Thomas Nevett, Wolverhampton, Stafford, Pastrycook. Sept 13 at 12 at offices of Pennell, Alfred, Liverpool, Bedding Manufacturer. Sept 13 at 3 at offices of Barrell Stanley, Washington bldgs, Queen st, Wolverhampton

and Co,

Lord st, Liverpool Baker, Daniel, and Eliza Round, Brierley Hill, Stafford, Dealers in Fancy Goods. Sept Philcox, Henry Frederick, Featherstone buildings, Holborn, Tailor's Traveller. Sept 14 at 1 at Queen's Hotel, Birmingham. Shakespeare, Oldbury

9 at 11 at offices of Hunt and Williams, Lombard st Ballard, James, Ebbw Vale, Monmouth, Grocer. Sept 11 at 12 at offices of Dauncey, Poulter, William, Plaistow, Essex, Oil and Colour Man. Bept 12 at 3 at the Masons' Commercial st, Newport

Hall Tavern, Basingball st. Martin and Banks, Queen st, Cheapside Birchenall, Edwin, Macclesfield, Chester, Milliner. Sept 14 at 11 at offices of Parrott, Prust, Thomas William, Leeds, Chemist. Sept 13 at 3 at offices of Brooko, East parade, Church Side, Macclesfield

Leeds Brewster, Charles Matthew, Blackburn, Furniture Dealer. Sept 11 at 3 at Grosvenor Rantzen, Mannas, Bridgwater sq, Furrier. Sept 25 åt 3 offices of Cannon, Wool Es. Hotel, Deansgate, Manchester. Clarke, Preston

change, Coleman st Brooks, Frederick, Leeds, Bricklayer. sept 8 at 3 at offices of Saville, East parade, Rhodes, Joseph, Calverley, York, out of business. Sept 9 at 10.30 at offices of Cross, Leeds

Parkinson's chambers, Market st, Bradford Brown, George, Hastings, Susses, Builder's Merchant. Sept 9 at 11 at Guildhall Tavern, Robinson, William, and Joseph Booth, Bradford, York, Billiard Table Manufacturers. Gresham st. Mann, Hastings

Sept 13 at 3 at the Shoulder of Mutton Inn, Kirkgate, Bradford Bushall, James, Walton-on-the-Hill, Lancaster, out of business. Sept 11 at 2 at offices Schafer, John, Philpot st, Commercial rd, Stepney, Baker. Sept 13 at 4 at offices of of Norris, Union ct, Castle st, Liverpool

Eves, Mark lane Chrispin, William, Ossett, near Dewsbury, York, Chemist. Sept 8 at 3 at offices of Sheldon, Joseph, Stockport, Chester, Innkeeper. Sept 4 at 3 at offices of Johnston, Welsh, Queen st, Huddersfield

Vernon st, Stockport Davies, David, Llandebie, Carmarther, Timber Merchant. Sept 13 at 12.30 at Dynevor Sheldon, Ralph, Sídcup, Kent, Fruit Dealer. Sept 13 at 1 at Crescent Farm House, Arms Hotel, Pantyffynon. Bishop and Childs, Llandilo

Pound p1, Sidcup. Woodard and Hood, Ingram ct, Fenchurch st Dyson, Benjamin, Dewsbury, Boot and Shoe Manufacturer. Sept 11 at 2 at offices of Slater, Arthur Webster, Leeds, Woollen Merchant. Sept 11 at 3 at offices of Turner and Simpson and Burrell, Albion st, Leeds

Hewson, Park sq, Leeds Ehrenfest, Jennet, Platifield House, Putney. Sept 11 at 12 at offices of Seeley, High Slight, William, and Christopher Boak Sparshott, Berwick-upon-Tweed, Grocers. Holborn

Sept 8 at 2 at offices of Weatherhead, Palace gr, Berwick-upon-Tweed Evans, Griffith, St David's, Pembroke, Grocer. Sept 7 at 11 at offices of Jones, Victoria Stinton, Henry, Worcester, Boot Manufacturer. Sept 18 at 11 at offices of Allen and pl, Haverfordwest

Beauchamp, Sansome pl, Worcester Francis, Richard, Aberystwith, Cardigan, Retired Master Mariner. Sept 7 at 11 at Smith, Frederick Sutherland, Sutton Coldfield, Warwick, Commercial Traveller. Sept offices of Jones and Co, Gt Darkgate st, Aberystwith

11 at 2 at offices of Marris, Waterloo st, Birmingham, Britton, Alcester Fuhr, Heinrich Carl, Mortlake, Surrey, Publican. Sept 13 at 12 at offices of Hindson Tandy, Edward, Wolverhampton, Stafford, Labourer. Sept 11 at 11 at offices of Lang. and Co, Moorgate st

man, Bilston st, Wolverhampton Galen, Michael, Fish st Hill, Restaurant Proprietor. Sept 5 at 3 at offices of Mitchell, Taylor, Ellen, and Mary Taylor, St Helen's, Lancaster, Fruiterers. Sept 13 at 3 at Thanet pl, Strand. Harrison, Pancras lane, Queen st

offices of Riley, Hardshaw st, St Helen's Gooderham, William, Monewden, Suffolk, Farmer. Sept 16 at 2 at Crown and Anchor Taylor, Robert, Ormskirk, Lancaster, Builder. Sept 14 at 12 at offices of Oppenheim, Hotel, Framlingham. Mills, Ipswich

Hardshaw st, St Helen's
Greaves, John Frederick, and Thomas Fidoe, Kidderminster, Worcester, Rug Makers. Tidy, James, Horsham, Sussex, Horse and Cattle Dealer, Sept 14 at 2 at office of

Sept 8 at 3 at Black Horse Hotel, Mill 'st, Kidderminster. Miller and Corbet, Medwin and Co, Carfax, Horsham
Kidderminster

Tuck, Walter George, Norwich, Confectioner. Sept 8 at 12 at office of Sadd and Linay,
Handforth, David, Manchester, Bacon Factor. Sept 12 at 3 at office of Addlesbaw and Theatre st, Norwich
Warburton, Norfolk st, Manchester

Valyer, Michael Pierrepoint, Folkestone, Kent, Job Master. Sept 14 at 2 a Rose Harling, William, jun., Colyton, Devon, Butcher. Sept 13 at 3 at Colcombe Castle Hotel, Folkestone. Minter, Folkestone Hotel, Colyton. Wilton, Colyton

Wait, John, Wroughton, Swindon,

Wiltshire, Builder. Sept 11 at 2 at office of Ware, Heare, John, Heckmondwike, York, Poultry Salesman. Sept 11 at 11 at Scarborough Shannon ct, Bristol. Fussell and Co, Bristol Hotel, Market pl, Dewsbury. Haigh

Wallraven, James, Old Kent rd, Ship's Steward, Sept 12 at 2 at office of Holmes, King Hill, John Ebenezer, Oldswinford, Worcester, Iron-plate Worker. Sept 13 at 3 at office st, Cheapside of Waldron, High st, Brierley Hill

Watkinson, William, Chester, Auctioneer. Sept 13 at 11 at office of Walker and Co, Hilton, Francis Ogden, Bolton, Lancaster, Licensed Victualler. Sept 13 at 3 at office Abbey gateway, Northgate st. Chester of Ramwell and Co, Mawdsley, st, Bolton

Weeks, William Burnham, Tower Hill, Carman. Sept 18 at 2 at Guildhall Tavern, Hitchman, Martha Ann, Tunbridge Wells, Kent, Coal Merchant. Sept 12 at 12 at 68, Gresham st. Beard, Basinghall st Aldermanbury. Cripps, Tunbridge Wells

Welch, Ralph, Manchester, Accountant. Sept 22 at 3 at office of Payne and Galloway, Ironmonger, John Charles, Stratford, Essex, Carriage Driver. Sept 7 at 12.30 at 49, Brazennose st, Manchester Bromley st, Commercial rd, East. Newson, White Horse lane, Stepney

West, Charles George, Bollo Bridge rd, Timber Merchant. Sept 20 at 12 at Albion Hotel, Joel, Lewis, and Gustave Deal, Coventry, Watch Makers. Sept 11 at 1 at Gt Western Aldersgate st. Howard, Southampton bldgs, Chancery lane Hotel, Birmingham. Hodgson, Birmingham

Yapp, Louisa Eliza, Aston juxta

Birmingham, Warwick, Grocer. Sept 9 at 11 at office Jones, William Tucker, Saracen's Head Hotel, Snow Hill, Commission Agent. Sept 11 of Pointon, Temple row West, Birmingham

at 11 at office of Innes and Co, Billiter House, Billiter st
Kench, Ben John, Charlbury, Oxford, Draper. Sept 8 at 2 at White Hart Hotel,
Charlbury. Rawlinson, Chipping Norton

CONTENTS.
Kyle, Robert John, Liverpool, Grocer. Sept 11 at 3 at office of Wilkinson, Victoria st,

Liverpool Lamberg, Sven Robert, East India avenue, Merchant. Sept 14 at 2 at office of James CURRENT TOPICS ....................... 677 In re Mackness (deceased), Mackness and Edwards, Coleman st. Reep and Co, Queen st pl, Cannon st

THE GOVERNMENT AND THE SUEZ CANAL

v. Mackness

692 Lee, George, Clay Cross, Derby, Innkeeper. Sept 8 at 11 at office of Jones and Middle- COMPANY .................... 078 In re The North-Western Credit Com ton, Gluman gate, Chesterfield

LIABILITY OF TRUSTER IN BANKRUPTCY pany (Limited) Lees, Robert, Nottingbam, Box Maker. Sept 14 at 12 at office of Brittle, St Peter's IN RESPECT OF LEASEHOLDS ........ 679 NEW ORDERS, &c. .................... 682 chbrs, St Peter's gate, Nottingham

REVIEWS
....................... 691 LEGAL APPOINTMENTS

692 Lockyer, George Francis, Bournemouth, Hants, Plumber. Sept 12 at 1.30 at CORRESPONDENCE ................... 681 COMPANIES

682 369, High Holborn. Sharp, Christchurch

CASES OF THE WEEK

LEGAL NEWS

................ 683 McCrerie, Alexander, Frithville grdns, Shepherd's Bush, Wood Turner. Sept 13 at 3 at

In re The Bellevue Freehold Land LONDON GAZETTES, &C., &c. ..........

693 office of Pain, Marylebone rd

Society

681 PUBLIC GENERAL STATUTES. Maslin, George Albert, Bridgnorth, Salop, Painter. Sept 13 at 12.30 at office of Hasle. In re Baker (decd.), Giddingsv.Baker 682

wood, Bank st, Bridgnorth Matthews, Robert, Lambeth walk, Lambeth, Oilman. Sept 9 at 3 at Guildhall Tavern, Gresham st

NOTICES TO CORRESPONDENTS.-All communications intended for publication Mearns, Walter Barron Robert, Chipping Norton, Oxford, Brewer. Sept 13 at 11 at in the SOLICITORS' JOURNAL must be authenticated by the name and address of Crown Hotel, Chipping Norton

the writer. Milles, Alexander, Maxilla gardens, Notting hill, Traveller. Sept 18 at 2 at offices of

Ward, Lincoln's inn fields
Mizon, George, The Grove, Hackney, Licensed Victualler. Sept 7 at 3 at the Masons' cations.

The Editor does not hold himself responsible for the return of rejected communi.
Hall Tavern, Basinghall st. White, Queen st, Cheapside
Mundy, George Matthias, Tyler st, Regent st, Cabinet Maker. Sept 18 at 4 at offices of
Yorke and Wharton, Conduit st, Bond st

The Publisher requests that carly application should be made by person s Nightingale, Thomas, Birmingham, out of business. Sept 8 at 3 at offices of Fallows,/ desirous of obtaining back numbers of the SOLICITORS' JOURNAL, as only a small Cherry st, Birmingham

number of copies remain on hand.

HEWETS0N, THEXTON, &

THEXTON, & PEART,

SCHWEITZER'S COCOATINA,

ESTABLISHED 1825.

EDE AND SON,
Arti-Dyspeptic Cocoa or Chocolate Powder.
Guaranteed Pure Soluble Cocoa of the Finest Quality,

ROBE

MAKERS with the excess of fat extracted.

MANUFACTURERS AND HOUSE FURNISHERS, The Faculty pronounce it “the most nutritious, per. fectly digestible beverage for Breakfast, Luncheon, or 200, 203, and 204, TOTTENHAM COURT ROAD, W.

BY SPECIAL APPOINTMENT, Supper, and inyaluable for Invalids and Children."

Estimates and Designs submitted free for entirely Fur. Highly commended by the entire Medical Press.

To Her Majesty, the Lord Chancellor, the Whole of the all palates, keeps better in all climates, and is four times -PAINTING, DECORATING, & HOUSE REPAIRS. SOLICITORS' AND REGISTRARS' GOWNS. Being without sugar, spice, or other admixture, it suits nishing Residences, Chambers, Offices, &c.

Judicial Bench, Corporation of London, &c. the strength of cocoas THICKENED yet WEAKENED with starch, &c., and IN REALITY CHEAPER than such Mixtures. Carved Oak Furniture, Reproductions from Ancient Made instantaneously with boiling water, a teaspoonful Designs, &c. Bedroom Furniture, including Bedstead and

BARRISTERS' AND QUEEN'S COUNSEL'S DITTO, to a Breakfast Cup, costing less than a halfpenny.

Bedding, from £7 10s. per set. COCOATINA A LA VANILLE is the most delicate, digestible,

CORPORATION ROBES, UNIVERSITY / CLERBY GOWNS,

THIRTY LARGE SHOW ROOMS. cheapest Manilla Chocolate, and may be taken when

ESTABLISHED 1889, richer chocolate is prohibited. In tin packets at 1s. 6d., 38., 6s. 6d., &c., by Chemists

HEWETSON, THEXTON, & PEART,

94, CHANCERY LANE, LONDON. and Grocers.

200, 203, and 204, Tottenham Court-road, London, W. Charities on Special Terms by the Sole Proprietors,

N.B. --Household Furniture Warehoused or Removed II. SCHWEITZER & CO 10, Adam-street, London, W.C. on reasonable termos

TO CAPITALISTS, LAND COMPANIES,

and Others.-A compact FREEHOLD ESTATE for £29,000 UPSET PRICE.-By order of the Mortgagees. SALE, on the London, Brighton, and South Coast Rail.

chapel, -office, &c., and 24 drawing, dining, and breakfast rooms, library, bath room

(near Dover), comprising 856 acres, Gentleman's

from the important market town of Horsham. It consists (hot and cold water), good servants offices, Venetian Residence, Four Farms, Sixteen Cottages, and Timber.

of 93 acres, exceedingly well situated, with a splendid blinds, every modern improvement ; gravel 'soil, good Annual value, £1,360. To be SOLD, as a whole or in Lots, frontage to main road. It is at present farmed, but drainage. Within four miles of Charing-cross, two at CANTERBURY, SEPTEMBER 30, 1882.

admirably adapted for development into small pleasure minutes

from West Kensington Station.-Apply to Messrs. For particulars, plans, and view of house, apply to farms, which would be a success. Beautiful locality : GIBBS & Flew (Limited), Cedars Estate Ottices, West the Auctioneers, Messrs. PRIOR & NEWSON, Canterbury, price £46 per acre, including timber and valuation, Kensington Station, W. and 57, Lincoln's-inn-fields, W.C.

FEBBHOLDIR, , Navarino-road, Dalston, London, E,

COMMODIOUS FAMILY RESIDENCE,

rent £85, containing five bed and dressing rooms, CHEAPEST EST ATE over offered in Kent wareneathe station, close we good village, with church.

LONDON, SEPTEMBER 9, 1882.

the paper.

CURRENT

claiming in the one way or the other are required to frame their CURRENT TOPICS.

applications; and that the whole table of fees is entirely re-
arranged, which is, indeed, none too soon, considering the number
of the alterations and additions that have been made during the
six
years

of its existence. The list for hearing before the Vacation Judge on Wednesday included fifty-five cases independently of the ex parte applications. There were three petitions and thirty-one motions on notice for the present week. "The Vacation Judge disposed of his indomitable reliance on his own powers, has been assuring bis

THE LORD MAYOR OF DUBLIN, who may be congratulated on colleagues in the municipality that the punishment of contempt

of court shall forthwith be abolished by Parliament, and that Mr. THE DEATH of Mr. MountaGUE BERNARD has deprived the Gray's imprisonment shall furnish the occasion of it. Leaving University of Oxford of an active and distinguished member. political questions entirely out of the question, it seems difficult Although, except in the matter of the Alabama question, he to understand how the legal business of the country could possibly

For hardly played any conspicuous part in the eye of the general be carried on without some such power being held in reserve. public, he was a man whose capacity was recognized in the the question to be left to a jury whether a person considered by a highest quarters. The radical alterations which have recently judge to have committed a contempt of court had in fact done so been effected in the constitution of the colleges of Oxford are would be an impossibility, and for the discretion of the judges to understood to have been mainly the work of the present Lord be fettered by statute would involve just the same kind of diffiChancellor and Mr. Bernard, sitting on the University Commis- culties as those the anticipation of which led chancery judges to sion ; and the thorough manner in which this work was carried refuse to define trusts. For a gross and corrupt act of tyranny out may be ascribed not less to the pertinacity and industry of there is a parliamentary remedy now existing, with less harsh the latter than to the authority of the former. As a draughts- decisions prisoners must be content, and Mr. Gray can hardly man Mr. BERNARD possessed great skill and patience ; he was expect Parliament to take the same view of his case as has been an accomplished lawyer; but his eminent and, in some respects, taken by the Irish office-seekers. unique position in the University was, perhaps, chiefly attributable to his remarkable practical good sense, combined with unusual firmness, industry, and public spirit.

IN THE

NUMBER of the Law Reports will be found the full report of the highly-interesting and important case of London and South-Western Railway v. Gomm,

It appears, from the THE ALTERATION in the fees chargeable by the Trade-Marks on appeal from Mr. Justice Kay. Registry, which has been brought about by the recent rules of the report, that the Court of Appeal was asked to allow the

The Lord Chancellor , seems likely to put an end to some objections reply of the Master of the Rolls contains an impressive

costs of the shorthand notes of the judgment below. principle which had been accepted was that where one trade-mark warning :-“We have not used them,” he said, “ but have read was registered a fee of £2 should be paid, and that where a second Mr. Justice Kat's judgment in the Law Journal

. If that report trade-märk was registered on the same application a fee of £1 delivered, we should not have allowed the costs of a shorthand

had appeared a sufficient length of time before your brief was should be paid, and then these sums were sub-divided by directing note; but as it was published so late as the 3rd of March, we that half should, in each case, be paid on application, and the think that costs ought to be allowed.” It seems rather hurd that other half on the actual registration. But since all that was gained practitioners should be compelled to keep themselves au courant by the expenditure of the first half of the fee was the chance of with all the reports, upon pain of losing part of their costs if docuobtaining registration, and it was found in very many cases that ments usually supplied in MS. should happen to appear in print. registration was refused, complaints were frequently made as to Besides, although we have the highest respect for the reports of scale five shillings will, in every case, be payable on application simple fact that law reporters are in the habit of materially conscale five shillings will, in every case, be payable on application our learned contemporary, the Law Journal

, we think that the for each mark, first or subsequent, and the remainder of the fee densing their matter ought to be enough to justify parties in proon registration. As the sequel of this regulation, notice is given viding an exact copy of any judgment for use upon appeal. by the registry that, for the future, the practice of allowing the substitution of a second mark on one application fee will be discontinued.

THE CURRENT NUMBER of the Law Reports contains the

report on appeal of the case of Weston v. Managers of the THE OTHER ALTERATIONS which are made by the new rules Metropolitan Asylum District, which was reported in the are not of much consequence, dealing, as they do, not so much Weekly Reporter, p.

The case raised, in

a very with principle as with the details of the procedure in the office, instructive manner, one of the familiar questions upon the but it may be noted that, for the future, applications made on effect of provisions in the nature of penalties to behalf of a firm or partnership must be made by a single member the performance of covenants. The instrument was a lease, of the firm or partnership, or a person duly authorized; that in containing a covenant against carrying on offensive trades. the case of new marks—.e., marks first adopted since the passing In addition to the yearly rent a penal rent was made payof the Act of 1875—no declaration of the right to use the mark is able in case such trades were carried on; and the lease had required; that parts of entries on the register, as well as entire a proviso for re-entry for non-payment of either of the rents, entries, may be cancelled by the registered proprietor ; that the or breach of covenant. The courts of first instance and appeal whole scheme of application by persons claiming to have succeeded held that the reservation of the penal rent did not conflict with, to the right to a trade-mark by assignment or transmission is or prevent the enforcement of, the power of re-entry on breach recast, and forms provided in accordance with which persons of the same covenant. It may be remembered that we commented

secure

course.

in a recent issue (p. 489) upon some practical bearings of the
decision. The case is, however, an interesting one from other THE REMUNERATION ORDER.
points of view than that of the landlord. A very similar ques-
tion to that which it deals with has been several times con-

II. sidered with regard to the jurisdiction of equity by injunc- We pointed out in our last article that, although a commission tion in cases where a penalty has been fixed by the parties for is provided for vendor's solicitor" for conducting a sale of propdefault in some obligation under the contract. LEONARDS dealt with this subject very elaborately in French erty by public auction, including the conditions of sale,yet it is v. Macale (2 Dru. & War. 269), holding that the court must á sale by auction shall apply only in cases where no commission is

provided, by rule 11 in schedule I., that “the scale for conducting grant an injunction unless the agreement is framed in such a paid by the client to an auctioneer.” As an auctioneer is manner as to show that the party is to be at liberty to do the act if he chooses to pay the penalty. These points are distinct commission out of the deposit, or is paid it by the vendor, it is

always employed by the vendor, and as such auctioneer retains his from the further question whether a fixed penalty is or not in any difficult to understand in what cases, in the event of the property particular case recoverable as liquidated damages, if the party being sold, this commission for conducting a sale by public auction chooses to seek his remedy in damages. The well-known rule at will be payable to the vendor's solicitor. Of course, if the explanalaw and equity on that head furnishes a striking instance of per- tion is that suggested in our previous article, and adopted by a sistent interference by the courts with the express provisions of correspondent last week-viz., that solicitors should take out an contracts; but we are far from suggesting that another course auctioneer's license—the difficulty is solved; but we can hardly ought to be taken. The reason that leads contracting parties think that a change of so great importance can be intended to be with equal persistency to agree to stipulated penalties is often, no brought about by a side-wind of this kind, and there are considerdoubt, a simple desire to save the expense of litigation ; but these able practical difficulties in the way of the adoption of this stipulations would have many oppressive consequences if the law

We have waited in vain for some other explanation of enforced the letter of the bargain.

this difficulty in answer to our request for enlightenment, and we can only conjecture that in cases in which the client pays

commission to the auctioneer it is intended that the solicitor shall WE FEAR that the case of Babbage v. Coulburn (30 W. R. 950) be paid for conducting the sale according to the present system, will not be of much value upon the vexed point of construction as altered by schedule II. But the Order carry out this prewith which it deals. The point was whether a provision for refer- sumed intention ? According to rule 2 (a), “in respect of ence to arbitration as to the amount of damages made the arbi- sales completed, the remuneration of the solicitor having tration a condition precedent to a right of action for damage. the conduct of the business is to be that prescribed in Not so very long ago (and not for the first time) the principles of Part I. of Schedule 1. to this Order, and to be subject to the construction in these cases were authoritatively laid down by the regulations therein contained.” Does this (when taken in connecCourt of Appeal in Dawson v. Fitzgerald (24 W. R. 773). There tion with the introductory words of the some rule,“ the remunerathe defendant covenanted with his landlord to keep so much tion of a solicitor in respect of business connected with sales ground game only as would do no injury, and, in case

is to be regulated as follows,'') mean that the vendor's he should keep such a number as to do injury, to pay solicitor is not to have any remuneration in respect of completed

fair and reasonable compensation, the amount of such sales except that provided by the scale in Part Ì. of Schedule I., compensation to be referred to arbitration. The action was and by the rules appended thereto—that is to say, that in the allowed to proceed. There does not appear to me,” said the case of completed sales, the commission for deducing title and Master of the Rolls, “to be any violent necessity for reading the completing conveyance is to cover all the work connected with the words

otherwise than according to their proper legal sale? If so, it would seem that wherever the auctioneer at a construction, by which there are two covenants and not one." public auction is paid a commission by the client, and the sale is Now the terms of the instrument in Babbage v. Coulburn were completed, no commission or fee can be claimed by a solicitor for that the tenant agreed to deliver up possession of house and conducting, or being present at, the sale. We have not overlooked furniture in as good order and condition as on taking possession, the provision of rule 2 (c) that, “in respect

of all and in the event of any loss, damage, or breakage, the same to other business, the remuneration for which is not hereinbefore, be made good or paid for by the tenant, the amount of such or in Schedule I. hereto, prescribed, the remuneration is to be payment, if in dispute, to be referred and settled by two regulated according to the present system as altered by Schedule valuers. This was held by the county court judge and by II.”. The remuneration in respect of sales completed is prescribed FIELD, J., and HUDDLESTON, B., noť to be governed by by the schedule, and it does not include any remuneration to the Dawson v. Fitzgerald. Questions of pure construction present vendor's solicitor for conducting, or being present at, a sale in endless difficulties; and to criticise the views taken by judges on

cases where commission is paid by the vendor to the auctioneer such matters is somewhat invidious. But, in our opinion, when —that is to say, under the present practice, in all sales by auction. the two learned judges decided the last case on the professed It is to be hoped that a construction will be adopted by which ground that it was to be distinguished from Dawson v. Fitzgerald remuneration according to the present system, as altered by because no independent covenant was to be found, but only a Schedule II., will be allowed in this case. covenant to pay the particular sum ascertained, it is open to very In case the property is sold at the auction, it is expressly progreat question whether they allowed to Dawson v. Fitzgerald vided that the costs of conditions of sale are to be included in the that authority to which, in a case of such very similar language, commission for “ deducing title and perusing and completing it was entitled on the mere point of construction.

conveyance." But in case the property is not sold, and a commission is paid by the vendor to the auctioneer, how is the vendor's solicitor to be paid for the troublesome and responsible

duty of preparing the conditions of sale ? The commission According to Kemp's Mercantile Gazette the number of failures in England on the reserved price provided by the scale in Schedule and Wales gazetted during the week ending Saturday, September 2, was 1., Part I., in case the property is not sold, of 10s. for the 169. The number in the corresponding week of last year was 190, showing first £1,000, 5s. for the second and third £1,000, 2s.6d. a decrease of 21, being a net decrease in 1882, to date, of 679. The for the fourth and each subsequent £1,000 up to £10,000, number in the corresponding week of 1880 was 227 ; tbe pambers in the pame week for Scotland and Ireland in the three years of 1882, 1881, and and ls. 3d. for each subsequent £1,000 up to £100,000, is 1880, respectively, being as follows :-Scotland, 12, 8, 17; Ireland, 4, — 14; excluded by rule 11 in schedule I., since in the case we have and the totals for United Kingdom, 185, 198, 258. The number of bills of supposed commission is paid by the client to the auctioneer. fale published in England and Wales for the week ending September 2 was The commission for deducing title and perusing and completing 829. The pomber in the corresponding week of last year was 921, showing a decrease of 92, being a pet decrease in 1882, to date, of 1,216. The conveyance will, of course, be inapplicable. The provision of rule number published in Ireland for the same week was 27. The number

2 (c), that “ in respect of business not hereinbefore provided for, the corresponding week of last year was 4, ebowing an increase of 23, connected with any transaction the remuneration for which, if being a net decrease in 1882, to date of 237.

completed, is hereinbefore, or in Schedule 1. hereto, prescribed, but

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which is not, in fact, completed,

the remuneration is to being paid to an auctioneer, or estate or other agent) to claim a combe regulated according to the present system as altered by Schedule mission of one per cent. up to the first £3,000, and one-half per II. hereto,” does not apply to the case we have put, because, as cent. thence to £10,000, in addition to the commission for deducing we have seen, the commission for conducting a sale by auction is and investigating title? Supposing the purchaser's solicitor to include the preparation of conditions of sale, and this commis- succeeds in inducing the vendor to undertake some charge or sion is not applicable in cases where commission is paid by the expense which would otherwise fall on the purchaser-he will client to an auctioneer. In this case, since the sale is not com- so far diminish the price-can he be taken to have arranged pleted, and the provision of rule 2 (a) does not therefore apply, the price, so as to entitle him to the commission for negotiating the remuneration of the vendor's solicitor for preparing the con- the sale? It is probable that the expression “arranging the ditions of sale will apparently be regulated according to the pre- price” will be taken strictly as including the whole arrangements sent system as altered by Schedule II. (see the concluding clause connected with the price, but the instances we have given will of rule 2 (c)).

show the nature of the questions which are likely to be raised. In cases of a sale by auction where no commission is paid by the The commission to the mortgagee's solicitor for negotiating a client to the auctioneer, a minimum charge of £5 is to be payable loan is to be payable only in cases “where he arranges and obto the vendor's solicitor for conducting the sale and preparing the tains the loan from a person for whom he acts.It will be observed conditions, whether the property is sold or not.

that the Order leaves it doubtful whether by these last words there Rule 2 in Schedule 1. provides that “ the commission on an is meant acts in the matter of the loan, or acts generally. It is attempted sale by auction in lots is to be chargeable on the presumed that the former must be the meaning. What is the aggregate of the reserved prices." A sale is “attempted” both meaning of arranging" a loan ? This term “ arrange," when the property is sold and when it is not sold, the attempt in which occurs, as we have seen, several times in the Order, the one case being successful and in the other unsuccessful. appears to have been inserted for the purpose of enabling We presume it is meant by this curious expression that the com- difficulties to be raised on taxation, so as, if possible, to mission for conducting a sale by auction in case the property is diminish still further the chances of a solicitor being entitled to not sold is to be chargeable on the aggregate of the reserved the commission for negotiation. The result of our examination of prices. It is also provided that when property offered for sale by the rules relating to this subject is to strengthen the opinion we auction is bought in and terms of sale are afterwards negotiated expressed previously, that for practical purposes, in considering the and arranged by the solicitor, “he is to be entitled to charge adequacy of the remuneration provided by the Order, we may altocommission according to the above scales on the reserved price gether put out of sight the commission for negotiating a sale by where the property is not sold, and also one-half of the commis- private contract; and the commission for negotiating a loan is also sion for negotiating the sale.". Is the solicitor to get both these subject to qualifications which are likely to render it delusive in commissions, although upon the abortive sale commission was paid many cases. by the client to the auctioneer? Apparently the proviso at the If, however, in spite of all these qualifications, a solicitor finds end of the rule that the provisions as to commission on sales himself entitled to charge a commission for negotiating a sale or are to be subject to rule 2 (which provides that the remuneration mortgage, or for conducting a sale by auction, and he is willing to of the solicitor is to be subject to the regulations contained in forego such commission, rule 12 in schedule I. provides that he shall part 1 of schedule I., will make rule 11 of schedule I. applicable ; be entitled to charge the rates allowed by the first column of the but the question is not free from doubt.

scale in Schedule I. Part I., on all transactions up to £2,000 It is also provided by the same rule that, “when property is (instead of £1,000), and to charge, in addition, the rates allowed bought in and afterwards offered by auction by the same solicitor, by the second column on all amounts above £2,000 and not he is only to be entitled to the scale for the first attempted sale, and exceeding £5,000 (instead of for the second and third £1,000), for each subsequent sale ineffectually attempted, he is to be entitled and further to charge the rates allowed by the third column on to charge according to the present system, as altered by schedule all amounts above £5,000 and not exceeding £50,000 (instead of II. hereto. In case of a subsequent effectual sale by auction, the for the fourth and each subsequent £1,000 up to £10,000). full commission for an effectual sale is to be chargeable in addition, That is to say, if the mortgagee's solicitor has “ arranged and less one-half of the commission previously allowed on the first obtained” a loan of £3,000, he will be entitled under the scale to attempted sale.” That is to say, the solicitor is to be entitled to charge a commission of £30 for negotiation, and a commission the reduced commission for the first ineffectual sale; to remunera- of £35 for investigating title and preparing and completing the tion on the present system, as altered by schedule II. for subse- mortgage—together £65. He may, if he thinks fit, under rule quent ineffectual sales, and to two-thirds of the full commission 12, instead of charging this commission, charge commission for for the subsequent effectual sale. But it is presumed that in this investigating title and preparing and completing the mortgage case also the provisions of rule 11 in schedule I. are applicable, at the higher scale of one-and-a-half per cent. for the first £2,000 and that in case commission is paid by the client to the auctioneer -i.e., £30, and one per cent. for the remaining £1,000-i.e., on each sale, no commission will be payable to the solicitor for £10-together £40, thus sacrificing £25. It does not seem very conducting any of the sales. In this case what is to be the probable that in the case of small loans this self-denying ordinance remuneration of the solicitor ?

will be adopted. It is probably not intended for such cases. So much as to the commission for conducting a sale of property We come now to the vendor's or mortgagor's solicitor's comby public auction. The commission to the vendor's or purchaser's mission for deducing title and perusing and completing conveyance solicitor for negotiating a sale of property by private contract will or mortgage, and the purchaser's and mortgagee's solicitor's comonly be allowed (see rule 11 in Schedule 1.)“ where the solicitor of mission for investigating title and preparing and completing a vendor or purchaser arranges the sale or purchase, and the price conveyance or mortgage. The first point to be observed here is and terms and conditions thereof, and no commission is paid by the that the amount of commission is the same in the case of the client to an auctioneer, or estate or other agent.” How often vendor's or mortgagor's solicitor, and in the case of the purchaser's does the solicitor arrange the price? Is it not usually the case or mortgagee's solicitor. In the Law Society's scale of 1873 the that the matter is put by vendor and purchaser into the hands of remuneration of the vendor's or mortyagor's solicitor was fixed at their solicitors after the price has been settled, in order that the three-fourths of the purchaser's or mortgagee's solicitor's allowother terms may be arranged? But in this case it would seem ance; and since then, as regards sales, the tendency has certainly that no remuneration by commission is payable to the solicitor for been to render conditions of sale more stringent, and the titles the negotiations connected with arranging these other terms. The abstracted shorter, and so to diminish the labour and responsibility preparation, perusal, and completion of the purchase agreement are of the vendor's solicitor. It may be suggested that the same included in the commissions for deducing and investigating title. causes also operate to diminish the labour and responsibility of the It is safe to say that numerous questions will arise as to the purchaser's solicitor; and as regards the diminished length of meaning of the expression in rule 11, “arranges the price.” title this is, no doubt, true; but stringent conditions do not greatly If the purchaser's solicitor can induce the vendor to accept lessen the labour of the purchaser's solicitor. A title fenced round £1 abatement on the price agreed on with the purchaser, with conditions has to be examined with exactly the same care as if will both he and the yendor's solicitor be entitled (no commission the contract were an open one. The defects have to be discovered,

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and means devised, if possible, for curing them. Moreover, the apparently actuated by these sentiments, made a number of reoperation of the Conveyancing Act, 1881, in shortening con- marks which will probably have the effect of settling the law veyances, is, as our readers will doubtless have discovered, very upon the subject to which they relate. limited. A few folios are saved by the omission of express The facts of that case, so far as they are material, were as covenants for title, but the longest parts—the recitals and the follows:-In 1865 the South-Western Railway Company sold parcels-remain untouched. It appears to us that if the Law certain lands in fee simple, which they no longer required for Society's principle was correct ten years ago, it is equally correct the purposes of their railway, to one Powell; and in the conveynow, and it would be interesting to learn on what grounds it has ance Powell covenanted that he, his heirs and assigns, owner and been discarded.

owners for the time being of the lands, and all other persons who With regard to the question propounded by our correspondent might be interested therein, would at any time thereafter (when“B. D. H.” last week, the limits of this article will not allow us ever the said land might be required for the railway), upon the to reach the subject to which it relates, but we may say that at request and at the cost of the company, execute a re-conveyance present we think rule 3 in schedule I. will be construed as relating on receiving back his purchase-money without interest. In 1879 solely to the case of a mortgage, and rule 6 as relating to the case Powell sold the land to the defendant, who had full notice of the of a conveyance and mortgage completed at the same time and covenant. In March, 1880, the company required the defendant prepared by the same solicitor—in other words, that, in the to re-convey according to the terms of the covenant; and upon case put by our correspondent, rule 3 must not be read with rule 6, his refusal they brought the present action for specific performand the remuneration will be full charges on the purchase-money ance. and half the commission for investigating title and preparing Since there is not the slightest ground for suggesting that such mortgage deed. We shall discuss the matter more fully here- a covenant runs with the land at law, it follows that the defendafter.

ant, as the assign of the covenantee, could be made liable, if at all, only in equity by means of the doctrine of notice in Tulk v.

Moxhay ( 2 Ph. 774) and its allied cases. And since the Court EXECUTORY CONTRACTS AND THE

of Appeal at Westminster, with the full approval of the court in

the present case, has lately decided (Haywood v. Brunswick PerRULE AGAINST PERPETUITIES.

manent Building Benefit Society, 30 W. R. 299, 8 Q. B. D. 403) The rule against perpetuities, as it is now understood, was the that the principle of Tulk v. Moxhay applies only to negative slow growth of that zeal for freedom of alienation which is covenants, it follows that a covenant to re-convey, which is plainly almost as marked a feature of English law, or at least of English not a negative covenant, could not be enforced against the defendjudges, as the zeal for freedom of personal status. Its modern

ant. Since the covenaut for this reason could not be enforced, shape is due to the efforts made by the courts to keep pace with the the question was superfluous whether it was also void as contraingenious devices of conveyancers, at a time when an annual Con- vening the rule against perpetuities; but the court thought fit veyancing Act was not within the region of practical politics. to consider this question, and the remarks which were made will A similar spirit was shown, both in the reluctance with which probably have the effect of deciding it. legal contingent remainders were suffered to establish their right “ Whether the rule (against perpetuities] applies or not,” said to exist, and in the restrictions which made their existence pre- the Master of the Rolls, “ depends upon this, as it appears to mecarious. When shifting and springing uses had for many purposes Does, or does not, the covenant give an interest in the land ?Then displaced the old-fashioned legal limitations, it seemed to be more he threw the argument against the plaintiff upon this part of the in accordance with general principles to devise a new rule re

case into the form of a dilemma:–Either the covenant is merely stricting the period within which such uses might arise, than to personal, in which case it cannot bind the assign of the covenantor; hold that uses were subject to the restrictions affecting legal or else it gives to the covenantee what is equivalent to an equitable remainders ; and the event has proved that the remedy thereby interest in the land, in which case it is void for contravening the devised was of more permanent utility.

rule against perpetuities. But he plainly intimated his opinion Since no legal remainder could take effect which was not vested that such a covenant does, in fact, give such an interest. at the moment of the determination of the preceding particular

We do not doubt that this expression of opinion will practiestate, and since a life estate could not be limited to an unborn cally settle the question; and that in future all executory conperson followed by an estate tail to the issue of such person, it tracts of this sort will be void unless the time within which they follows that the strictest“ tying up” which the common law may be enforced is expressly restricted within the limits of time allowed was effected by limiting an estate for life to a living per- allowed by the rule against perpetuities. But the adaptation to son, followed by successive estates tail to his unborn issue. And covenants of a rule which was originally designed to meet the under the most favourable circumstances that could possibly case of executory limitations is not without difficulty: The happen--namely, when, on the death of such a tenant for life, he Master of the Rolls seeins to have effected the adaptation, by left behind him a tenant in tail en ventre sa mere—this arrange- holding that an agreement to convey gives in equity an interest, ment would have prevented alienation of the lands during the life and that the arising of that interest may reasonably be made time of the tenant for life, and the whole minority of the tenant subject to all restrictions affecting interests which arise upon a in tail plus the further time which might elapse between his limitation. But there remains this distinction between the two birth and the death of his parent. It is evident that this supplied cases, that when a limitation is declared void, there is an end of the model upon which the rule against perpetuities was framed. the matter ; while in th case of the covenant, it does not follow The result was to enable the new modes of settlement to effect that, because the covenant is void for this particular purpose, deliberately, and in all cases, what, by the employment of the therefore it is void altogether. The question still remains, whether old methods, could have been brought to pass only at haphazard the company can sue the original covenantor for damages; and and by a lucky concurrence of circumstances.

this question has not been answered. The main application of the rule was to the creation of We may take this opportunity to mention an opinion which has executory limitations, arising by springing and shifting uses, and received, or seemed to receive, some degree of countenance from by executory devises without the machinery of uses, all of which, no mean authorities, and which was examined, only to its comwhen they take effect, give rise to legal estates; and also to trusts, plete destruction, in the present case—we mean the opinion that which were identical with the uses employed in executory no limitation can involve a perpetuity so long as there exists any limitations, but were not so limited as to be executed into legal person capable of releasing it. It is evident that, if this prinestates by the statute. Though this was the main application of ciple be admitted, a limitation to the use of A. and his heirs, but the rule, the reasons given for its institution, which largely take if A. or any of his issue, being entitled under the preceding the shape of violent tirades against the hatefulness of attempts limitation, shall die without heirs of his or her body, then to the to fetter alienation, are much wider in their scope. In a recent use of B. and his heirs, would be good ; since it might at any case, London and South-Western Railway Company v. Gomm, of time be released by B. or his heir for the time being: a proposi. which a full report will be found in the September number of tion which only needs naming to refute itself. The necessity for the Law Reports and in 30 W. R. 620, the Court of Appeal, the concurrence of the person entitled to the benefit of the limita

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