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before 1882 the guardians (see Co. Lit., 87b., et seq., Stat. Marlbridge, c. 17, 12 Car. 2, c. 24; Bedell v. Constable, Vaug. 177; Osborn v. Carden, Plow. 293; Wade v. Baker, 1 Lord Raymd. 130; King v. Oakley, 10 East. 491) of an infant seised of a legal estate for life or of inheritance, and the trustees in whom the fee was vested where the interest of the infant was merely equitable, would be in actual possession, and would, therefore, be the persons to search against. It would generally happen where the estate was in strict settlement, that, by the operation of the usual minority clause, the trustees were directed to enter into and retain possession during the minority of the infant, so that in this case they would be the persons to search against.

After 1881, whether the estate of the infant is legal or equitable, the trustees may, but are not required to, enter into possession; so that, unless there is an express minority clause, inquiry must be made whether they entered into possession or not, and searches must be made against them if they entered, and against the guardians if they did not see the Conveyancing Act, 1881, s. 42.

Perhaps it might be safer in all cases to search also against the infant himself.

An infant landlord may acquire a charge under the Agricultural Holdings (England) Act, 1883 (46 & 47 Vict. c. 61): see sections 25, 29.

executions at the suit of the Crown or a subject, or for bankruptcies. We are of opinion that this contention is erroneous, and that the meaning of "assignee" throughout the section must be governed by its meaning in sub-section (1), so as to include "assignee by operation of law." There remains the question whether an assignee by operation of law is an "assignee for value" within the meaning of sub-section (3). Possibly a distinction may be drawn between assignees by operation of law, who become so against the will of the tenant for life, as a judgment or execution creditor, or the trustee in bankruptcy where a creditor is the petitioner, in which case the assignment is not voluntary: Doe d. Mitchinson v. Carter (8 T. R. 57); Croft v. Lumley (6 H. L. C. 672); Wadham or Woodham v. Marlow (4 Doug. 54; same case, 1 H. Bl. 438(n); 8 East. 314(n); 2 Chitty Rep. 600); Doe d. Goodbehere v. Bevan (3 M. & S. 353), and the trustee in bankruptcy where the tenant for life himself is the petitioner, in which case the assignment may be considered voluntary: Shee v. Hale (13 Ves. 404). But until these questions have been determined by a decision of the court, it appears safer in all cases to make the same searches against the tenant for life as if he were seised in fee simple.

It should, perhaps, be observed that no searches against the remaindermen can be necessary, as, even if a remainderman has sold his interest, the purchaser from the tenant for life obtains a good title to the fee simple: Wheelwright v. Walker (23 Ch. D.

Land held by A. in trust for B. in fee simple.-Searches of every description except for judgments, executions, and termin-752). able improvement charges must be made against A. Searches for judgments, executions, and terminable improvement charges must be made against B. Searches for lis pendens should be made against both A. and B. See as to the searches against B., ante, pp. 4, 42, 57, 90.

The question may be asked, What would be the effect of a sale by A. alone to a purchaser who did not know that A. was a trustee, and, therefore, could not search against B.? The effect of 2 & 3 Vict. c. 11 (ante, p. 58), was to leave a purchaser without notice of a judgment exposed only to the remedies of the judgment debtor under the old law, under which, as we have seen (ante, p. 4), equitable estates were not bound till execution, so that a purchaser obtaining the legal estate from A. without notice of B.'s equity, and, therefore, without notice of the judgments against B. and before execution sued against B., was safe: Harris v. Pugh (4 Bing. 335; same case, 12 J. B. Moo. 577). In like manner, if the conveyance is taken from B. alone, leaving the legal estate outstanding in A., a purchaser who has no notice of a judgment against B., and who completed before execution sued against B., is safe, for at the time of execution B. has parted with his interest, and there is nothing to take in execution.

On the other hand, a purchaser from B. with notice of a judgment against B. was bound under the old law: Tunstall v. Trappes (3 Sim. 286).

Tenant for life selling under the Settled Land Act.-We have already, 30 SOLICITORS' JOURNAL, 699, pointed out the difficulties occasioned by the existence of a terminable charge on the sale of a settled estate; searches for charges of this nature must therefore be made against the tenant for life.

The question whether searches must be made for charges arising by operation of law on the estate of the tenant for life, such as the charge created by delivery in execution of his estate, depends upon the construction of the Settled Land Act, and is one of considerable nicety. The 50th section of that Act, which is retrospective, provides (1) that the statutory powers "remain exercisable by the tenant for life after and notwithstanding any assignment by operation of law or otherwise of his estate or interest under the settlement"; but that (3) "this section shall operate without prejudice to the rights of. an assignee for value of the estate or interest of the tenant for life, and in that case the assignee's rights shall not be affected without his consent," except as to certain leases and (4) "in this section assignment includes assignment by way of mortgage, and any partial or qualified assignment, and any charge or incumbrance, and assignee has a meaning corresponding with assignment."

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It will be observed that "assignee," as defined in sub-section 4, does not expressly include "assignee by operation of law," and it may therefore be argued, and some practitioners contend, that "assignee" in sub-section 3 does not include "assignee by operation of law." If this view be correct, it would be unnecessary to search against the tenant for life for judgments, Crown debts,

It should perhaps be observed that the mere pendency of an action in which a decree has been made for the performance of the trusts of the settlement, does not prevent the tenant for life from exercising his statutory powers without leave of the court, the reason apparently being that the powers override the settlement: Cardigan v. Curzon-Howe (33 W. R. 836, 30 Ch. D. 531) (see also Re Mansel, Rhodes v. Jenkins, 33 W. R. 727). It follows that where such an action is registered as a lis pendens against the tenant for life it may, in the absence of a special order in the action, be disregarded.

THE TOWN-PROVINCIAL MEETING OF THE INCOR

to London.

PORATED LAW SOCIETY.

AT the annual provincial meeting of the Incorporated Law Society
held at York in October last, a resolution was passed to the effect
that the meeting for 1887 should be held in London. This course,
solicitors could be invited to London, and it was high time that some
although rather anomalous, was the only way in which the country
return should be made for all the hospitality extended to metro-
politan members of the society since these meetings were established
in 1874. With the exception of two small dinners given in the Law
Society's Hall in 1882, nothing has been done by the town members
towards the entertainment of their country brethren. The present
year is a very appropriate one in which to invite the country members
It is the jubilee of her Majesty, and also the fiftieth
year since the final examination of solicitors was instituted.
A convenient time will have to be chosen in order not to clash with
the various celebrations of the jubilee which will doubtless be
held in most of the provincial towns. It is probable that most,
if not all of these, will be held about the 20th of June.
With regard to the date of the meeting, it seems to us that it
would be very desirable, if practicable, that precedent should be
beginning of June.
broken through, and that it should be held at the end of May or the
opportunity of coming to town during the London season.
This would give the country solicitors an
We
know from experience that but a small percentage of those who
attend meetings of this kind do so for the purpose of hearing the
papers read or taking part in the discussions. After the president's
address has been delivered they drop quietly away, and are seen no
more till the banquet or the ball, as the case may be. How they
have spent the intervening time we have never been able to ascertain,
but we hope to their own satisfaction.

The next question, after deciding on the date, is that of expense. Whether it would be competent for the Law Society to expend the large sum necessary is one which we must leave to the members of ti at body whose special duty it seems to be to keep watch over the council to see that the funds of the society are properly expended. It appears to us that the expenses of the proposed entertainment should be borne by the London members, and without calling on the society London members: it would, however, be a Utopian idea to expect for any portion of the necessary amount. There are about 2,500 them all to contribute. If, say, 1,000 of them guaranteed a comparatively small sum each, it would more than cover all the expenses in connection with the affair.

!

The only question that remains is to decide what form the evening entertainments should take. A dinner will, no doubt, be the first thing, and for this purpose a very large hall will be required, as none of the rooms at the disposal of the Law Society would be large enough for this purpose. Or there might be dinners on successive nights, but this would hardly be so satisfactory. As to the other entertainments there will, no doubt, be various suggestions-a ball; a concert, at which some of the members of the society who are well known for their talent in this respect might assist; or an amateur dramatic performance. Or it has been suggested that a professional company might be engaged, which we are sure would meet with general approval, or tickets might be taken for several of the theatres, so that each person could choose for himself the performance which he would wish to see. It would seem that the excursions which form so pleasant a part of the country meetings are hardly practicable, inasmuch as there are scarcely any places of interest in the neighbourhood of London to which excursions could be arranged, which are not already well known to all the members of the society, both in town and country, but perhaps a water-party up the Thames might be arranged with success.

Whatever form the entertainment takes we wish it every success, and we trust that it will be carried out in a manner worthy of the occasion which has given rise to it. But if the meeting is to be a success, the matter of considering the arrangements should be taken in hand at once.

REVIEWS.

TRUST INVESTMENTS.

TRUSTEES' GUIDE TO INVESTMENTS. By ARTHUR LEE ELLIS,

Barrister-at-Law. Reeves & Turner.

This is an excellent little book, and none the worse for being short. It will be found useful, not only to the practitioner, but also to trustees themselves. It contains three chapters only, treating on (1) the duties and responsibilities of trustees with regard to the investment of trust funds generally; (2) the trustee's powers of investment (a.) under statute, with list of statutory investments, (b.) under instruments of trust; (3) certain kinds of investment considered, particularly real securities. The most important, perhaps a unique, feature of the book is the list of the securities now authorized by statute for the investment of trust funds. In addition to the statutes usually cited in the text-books, the author gives a list of corporations whose Acts contain an express provision authorizing trust investments, or whose stocks are issued under the Local Loans Act, 1875, with concise notes, shewing in each case what provisions in the settlement authorize trustees to invest under the Act. The discussion as to investments on mortgage leaves little to be desired. After stating that "nothing less than a first mortgage should be accepted by a trustee," the author discusses the two matters of primary importance: (1) The value of the property proposed for the mortgage in relation to the amount to be advanced; (2) the sufficiency of the title to that property.

66

After a somewhat careful examination of this book, the only case we have noticed as being overlooked by the author is Millett v. Haworth (29 SOLICITORS' JOURNAL, 555), to which we referred to last week in noticing another book on this subject, and which might, with advantage, have been cited at page 47. In that case fully paid-up shares were vested in trustees with power to sell the same by the express direction, and with the consent in writing," of the tenant for life. By a change in the constitution of the company, the liability on the shares was, in effect, made unlimited. The trustees wished to sell the shares so as to free themselves from liability, but the tenant for life would not consent to a sale. The trustees brought an action against the tenant for life asking for an order for sale, which was refused. The decision is hardly in accordance with the dictum

that "a trustee is bound to conduct the business of his trust in the same manner that an ordinary prudent man of business would conduct his own."

No one but a reviewer knows the amount of rubbish that is published under the guise of books on law: the perusal of them is a weariness to the flesh. We have derived both pleasure and instruction from Mr. Ellis's book, and commend it to our readers.

At Devizes, on Friday and Saturday, Mr. George Spackman, solicitor, late registrar of county courts, and holding a high professional and official position in Wiltshire, was charged before Mr. Justice Mathew with having misappropriated the sum of £3,214 14s. 7d., part of a trust fund of which he was a trustee under a will. Mr. Charles Mathews prosecuted; Mr. Poole and Mr. Radcliffe defended. The jury found the prisoner guilty, and he was sentenced to nine months' imprisoment with hard labour.

CORRESPONDENCE.

SCALE CHARGES FOR LEASES. To the Editor of the Solicitors' Journal.] Sir,-We observe that you have again made some comments on the case which is connected with our names.

As the master's reasonable decision, subsequently confirmed by a chief clerk-viz., that notice given after investigation of title, and before actual preparation of lease was sufficient-did not satisfy the very eminent firm who acted for the lessees, the firm in question appealed, and the Law Society took up the case, but would go no further than Mr. Justice Kay when that learned judge decided against us.

We, however, that the profession might exactly know how it stands, took the case to the Court of Appeal, and were beaten, the court declining to decide that the investigation of title, both of lessor and lessee-including, perhaps, the licence to demise-was covered by the scale fee, although it was intimated, during the argument, that it probably was.

The fee in our case was £5 per lease. This barely covered the stationer's charges and parchment, the leases being renewals and seventy-five folios long, and certainly, taking office expenses into account, the business was a dead loss.

But now we know where we are; and we recommend the profession, in every case, either to give notice at the first interview with the client or to stipulate for a fixed sum and stamps for the lease and counterpart, and a further sum for agreement. This, of course, must be done at the first interview, unless it be thought desirable formally to disclaim undertaking the business until after further inquiry.

ridiculous for the lessor's solicitor and worse for the lessee's. Take The whole scale as to leases has now been reduced to an absurdity, skins in length, as on the Paddington Estate. underleases from £50 to £100 a year, the lease, perhaps, four or five The lessor's solicitor's fee varies from £3 15s. to £7 10s.; the lessee's solicitor's from £1 17s. 6d. to £3 15s.-the lessee's solicitor's duties being generally more difficult than the lessor's.

Take, again, the lessor's solicitor's claim to the scale fee on a premium paid for a lease, no investigation of title being permitted. There would be some reason in adding, for scale purposes, say ten per cent. on the premium to the original rent. We have recently had this absurdity exemplified:-Acting for the lessee-Rent, £250; premium, £1,400; scale fee on lease, £6 5s.; on premium, £19. "What is the £19 for?" said the client. "Nothing," was the necessary reply, "the law allows it."

the scale on sales and purchases is too low in small cases and too There is a general feeling among our professional friends that high in large cases, and the sooner it is abolished and a new one substituted the better. 17, Carlisle-street, Soho-square, W., Jan. 17.

RECEIVERS.

ALLEN & SON.

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CASES OF THE WEEK.

Re AN ARBITRATION BETWEEN THE SECRETARY OF STATE
AND FLETCHER--C. A. No. 1, 15th and 17th January.
COAL MINES REGULATION ACT, 1872 (35 & 36 VICT. c. 76), s. 46-DISPUTE
AS TO WHETHER A MINE IS DANGEROUS-ARBITRATION-AWARD OF UMPIRE
-JURISDICTION OF UMPIRE TO PRESCRIBE THE REMEDY.

Section 46 of the Coal Mines Regulation Act, 1872, provides that, if in any respect (which is not provided against by any express provision of this Act or by any special rule) an inspector find any mine, or any part thereof, or any matter, thing, or practice connected with such mine, to be dangerous or defective, so as to threaten or tend to the bodily injury of any person, such inspector may give notice in writing to the owner, stating the particulars in which he considers it to be dangerous or defective, and requiring the same to be remedied; and, if the owner objects to remedy the same, the owner may send his objection in writing to the Secretary of State, stating the grounds of his objection, and the matter shall thereupon be determined by arbitration in manner provided by the Act. An inspector having given notice under the above section that Fletcher's mine was dangerous from explosive gas, and requiring him to remedy it, Fletcher sent in his objections to the Secretary of State. An arbitration followed, and, the arbitrators differing, the umpire made an award stating that the mine was dangerous and requiring Fletcher to work the mine with safety lamps and to cease working it with open lamps. Fletcher thereupon moved to set aside the award on the ground that the umpire had exceeded his jurisdiction in ordering the mine to be worked with safety lamps. The Divisional Court refused the motion.

THE COURT OF APPEAL (LORD ESHER, M.R., BOWEN and FRY, L.JJ.) held that the umpire had gone beyond his jurisdictiou in ordering the mine to be worked with safety lamps. The case, they said, was governed by section 46, and that section only gave him power to find that the matter complained of was dangerous, and to require it to be remedied. He had no power to go further and to prescribe any particular remedy. The mine-owner was to find the remedy, and if he did not find a remedy he could be dealt with under other sections in the Act. As the umpire had heard all the evidence, the proper course would be to send the award back to him to be amended in this respect.-COUNSEL, Henn Collins, Q.C., and C. A. Russell; Sir R. E. Webster, A.G., and R. S. Wright. SOLICITORS, Chester, Mayhew, & Co, for H. M. Richardson, Bolton; Hare & Co., for Solicitor to the Treasury.

OWENS COLLEGE, MANCHESTER . OVERSEERS OF THE POOR
OF CHORLTON-UPON-MEDLOCK-C. A. No. 1, 12th and 13th
January.
RATING ANNUAL VALUE-POSSIBLE TENANT.

Re WHITAKER, CHRISTIAN 2. WHITAKER-C. A. No. 2,
14th January.

MARRIED WOMAN-SEPARATE ESTATE-MARRIAGE SETTLEMENT-COVENANT
TO SETTLE AFTER-ACQUIRED PROPERTY-MARRIED WOMEN'S PROPERTY
ACT, 1882, ss. 5, 19.

The question in this case was as to the effect of sections 5 and 19 of the Married Women's Property Act of 1882 with regard to the property of a married woman who has, by her marriage settlement, covenanted to settle after-acquired property. A marriage settlement executed in 1873 contained a covenant to settle all the real and personal estate (if any) to which the wife, or the husband in her right, was or should during the intended coverture become entitled, except (inter alia) any property belonging to, or which might be given or bequeathed to or settled upon, her for her separate use, all which excepted property it was declared should belong to the wife as her separate estate. The wife's father, who died in 1884, by his will, dated shortly before his death, bequeathed to her £30,000 absolutely, but not to her separate use. The question was whether the legacy was bound by the covenant in the settlement, or whether, by virtue of the Act, it belonged to the wife as her separate property. Section 5 of the Act provides that " every woman married before the commencement of this Act shall be entitled to have, and to hold, and to dispose of in manner aforesaid (ie., as if she were a feme sole) as her separate property all real and personal property her title to which shall accrue after the commencement of this Act." And by section 19:-"Nothing in this Act contained shall interfere with or affect any settlement or agreement for a settlement made or to be made, whether before or after marriage, respecting the property of any married woman," &c. Bacon, V.C., in accordance with the decision of Pearson, J., in Re Stonor's Trusts (24 Ch. D. 195), held that the legacy was bound by the covenant.

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THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed the decision. COTTON, L.J., said that, at the death of the testator, the Act was in force, and if section 5 only had to be considered the legacy would have been the wife's separate property. Under the covenant it was doubtful whether the words, "any property belonging," &c., dil not mean "now belonging," and the words, or which might be given or bequeathed to or settled upon her for her separate use," did not mean given for her separate use by the instrument of gift. But what was the meaning of section 19? His lordship thought that the true effect of it was to prevent section 5 from adding to the exceptions from the covenant to settle. The legacy would go (after the life interests) to the children of the marriage if it was included in the settlement, but if the respondent's argument prevailed the effect of section 5 would be to withdraw the legacy from the settlement and affect the provisions for the children. It was impossible to say that, if section 19 did not prevent the legacy from being treated as a separate estate, section 5 would not interfere with the provisions of the settlement. The two sections must be read together, and the meaning of them must be that the Act was not to interfere with settlements. The decisions of Bacon, V.C., and Pearson, J., were, therefore, right. LINDLEY, L.J., said that he did not profess to understand section 19 fully, but he thought it was clear for the present purpose. It was conceded that, but for the Act, the property would be bound by the covenant, and section 19 said that the Act was not to interfere with settlements. LOPES, L.J., said that, as the testator had not left the legacy for the separate use of the daughter, it was not within the exception to the covenant. Section 5 gave the property a char acter which brought it within the exception, and gave it a different destination by withdrawing it from the settlement. But section 19 said that nothing in the Act was to interfere with settlements, and that must prevail.-COUNSEL, Farwell; Byrne. SOLICITORS, Paterson, Snow, & Co. DADSWELL v. JACOBS-C. A. No. 2, 11th January.

Special case stated under 12 & 13 Vict. c. 45, s. 11. The Owens College, having been rated in respect of their college buildings at £3,833 gross estimated rental and £3,285 rateable value, appealed from this rate. The governors of Owens College were incorporated under section 7 of the Owens Extension College Act, 1870, as modified by the Owens College Act, 1871. The property in question consisted of land acquired by the Owens College under the Act of 1870 as a site for the college buildings, and college buildings erected thereon. By section 13 the governors were empowered to hold land, not exceeding 200 acres, in addition to that forming the site. By sections 16 and 17 they were empowered to grant leases of, and sell or dispose of, any lands vested in them except the site of the college and its appurtenances. The college was erected for educational purposes, and the expenses were defrayed partly by endowments and partly by the students' fees. The college could not be carried on at a profit in a commercial sense. If the college buildings were not wanted by their present owners, they and the site would not let for more than £1,000 a year, if their use was restricted to educational purposes; or, if let for any purposes, they would not let for R. S. C., 1883, XXV., 4-STRIKING OUT DEFENCE-DEFENCE DISCLOSING more than £1,300 gross annual rental, and their rateable value would be £1,083. The Owens College (though they contended that, as a matter of law, they should be rated at a nominal sum) were willing to be rated on the gross estimated rental of £1,300, and contended that they ought not to be rated on any higher sum. The overseers contended that the Owens College ought not to be excluded as possible tenants, and that the value to be ascertained was the existing value of the occupation to the existing occupier. The question for the court was whether either of the contentions of the Owens College was correct; if so, the gross estimated rental was to be reduced to £1,300; if not, the rate was to stand. The Divisional Court gave judgment for the Owens College.

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NO REASONABLE GROUND OF ANSWER."

A question arose in this case as to striking out a statement of defence, under the power, given by rule 4 of order 25, to order any pleading to be struck out, "on the ground that it discloses no reasonable ground of action or answer.' The action was brought by a principal, a merchant in New South Wales, against his agent in England, who had bought goods for him here. The defendant had bought the goods in his own name. The plaintiff claimed an order for the production by the defendant, for inspection and examination by the plaintiff's agent or agents, of invoices, ledgers, letter-books, correspondence, and other books and documents in the defendant's possession or power, relating to the goods purchased by THE COURT OF APPEAL affirmed this judgment. Lord ESHER, M.R., the defendant on behalf of, or shipped by him to, the plaintiff, and to the said that (assuming that the college were liabie to be rated at all, payments by the plaintiff on account of the same, and generally relating upon which the court were not required to give judgment), upon to the transactions of the defendant as the plaintiff's agent. The plainthe true construction of the statutes, the college could not become tiff, by his statement of claim, alleged that the defendant had refused to tenants of the college buildings, but only the owners, subject to allow his agent to inspect the documents in question. The defendant, the conditions imposed by the statutes. That being so, in estimating the by his statement of defence, said that the agent of the plaintiff whom he rateable value, the college could not be taken into consideration as pos- had refused to allow to inspect the documents was the clerk of a rival and sible tenants of these buildings. The case was different from the School unfriendly firm, and that he was willing to produce the documents and Board for London v. St. Leonard, Shoreditch (34 W. R. 583, 17 Q. B. D. 738). allow the inspection claimed by the plaintiff, if the plaintiff would employ In that case the ground of the decision was that the School Board could for the purpose a proper person as his agent, and would not insist on be tenants of their buildings, and so they had to be taken into considera- employing as his agent the person in question. The plaintiff moved, tion as possible tenants. In this case the Owens College could not be under rule 1 of order 25, to strike out the defence as shewing no reasontenants, and so the rent that they might be expected to pay ought not to able cause of answer. Chitty, J., held that the plaintiff was entitled to be taken into consideration. The gross estimated rental must therefore inspect the documents himself, but that he had no absolute right to be reduced to £1,300. BOWEN and FRY, L.JJ., concurred.--COUNSEL, inspection by any agent he might think fit to appoint. The defendant Hopwood, Q.C., and Coghill; Henn Collins, Q.C., and Smyly. SOLICITORS, had a right to say that the agent selected for the purpose was not a proper Hopwood & Sons; Bower, Cotton, & Bower, for Aston & Harwood, Manchester.person. His lordship accordingly refused the motion.

THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.), affirmed the decision. They said that, if the plaintiff had brought an action against the defendant as his agent in the ordinary form for an account, he would have obtained, as a matter of course, an order for production of documents to his solicitor or agent, and, according to the ordinary practice, no agent of the plaintiff to whom the defendant reasonably objected would have been allowed to inspect. Instead of proceeding in this way the plaintiff, by his action, claimed an absolute right of production to any agent he might think fit to appoint. It could not be said that the defence was not a reasonable one.-COUNSEL, Romer, Q.C., and Grosvenor Woods; Macnaghten, QC., and Alexander. SOLICITORS, Harvey Samuel; H. Montagu.

Re PRICE-C. A. No. 2, 17th January. CRIMINAL LUNATIC-POWER TO DEAL WITH PROPERTY-CRIMINAL LUNATICS ACT, 1884 (47 & 48 VICT. c. 64), s. 10.

A question arose in this case as to the jurisdiction of the court to deal with the property of a criminal lunatic under section 10 of the Criminal Lunatics Act, 1884, which enables the Court of Lunacy to make orders "with respect to the property" of a criminal lunatic, "and the appropriation thereof for the maintenance or benefit of himself or his family, or for carrying on his trade or business." A criminal lunatic, who was in confinement, was entitled to a reversion of a moiety of some shares in a bank, expectant on the death of his mother, and the entirety of three other shares. His interest was mortgaged to the bank for more than its value. The petition asked that such interest might be sold and the proceeds applied towards satisfying the claim of the bank, and if there was any overplus that it might be applied towards discharging the other debts of the lunatic.

THE COURT (COTTON, LINDLEY, and LOPES, L.JJ.) held that the sale would be only for the benefit of the creditors, not for the benefit of the lunatic or his family, and that in such a case section 10 gave no jurisdiction.-COUNSEL, Methold. SOLICITORS, J. & C. Robinson & Wilkins.

moneys, the tenant for life raised the question whether he was not entitled
to have such repairs as were within the Act paid for out of the sum in
court.
CHITTY. J., said that amongst the objects of the Settled Land Act was
that of improving settled land; and it was no doubt considered that a
tenant for life was much more likely to carry out repairs and improve-
ments thoroughly if he might pay for them out of capital instead of
seriously diminishing his income. Under the powers in this will the
trustees had a very wide discretion given them as to repairs and improve-
ments out of income; but, piecing together the various sections of the
Act, he was of opinion that it was the intention of the Act to give a
tenant for life a power to require capital money in the hands of trustees
to be laid out under a scheme for the execution of the improvements
specified by the Act. If on presentation by the tenant for life of such
a scheme the trustees declined to act without the sanction of the court,
the court would, after considering the propriety of the proposed scheme,
authorize the trustees to make the necessary expenditure out of capital
moneys, notwithstanding the express trust or power in the settlement
enabling the trustees to make such improvements out of the income of
the estate. He was of opinion that, although the Act did not abrogate
the power in the settlement, yet the power of the tenant for life under
the Act was paramount to that of the trustees under the settlement. The
circumstance of the money being in court did not constitute any distinc-
tion. He therefore authorized the payment out of the sum in court of
so much of the proposed improvements as were improvements within the
Act.-COUNSEL, Methold; Maclean, Q.C., and Popham; Romer, Q.C., and
Ingle Joyce. SOLICITORS, Gregory & Co.; Wilkinson & Son.

GOODFELLOW . PRINCE-Chitty, J., 18th January.
INJUNCTION-TRADE NAME-MISREPRESENTATION.

In this case the plaintiffs moved for an interim injunction restraining the defendant from selling champagne with brands and labels, &c., bearing the name, "Lecourt et Cie," which the plaintiffs claimed as their trade name. The defendant submitted that the plaintiffs' user of

THE FUSEF VESTA CO. v. BRYANT & MAY.-Kay, J., 14th the name was a misrepresentation, inasmuch as there were no French

January.

PATENT-INFRINGEMENT-DISCLAIMER-TERMS UPON WHICH LIBERTY WILL BE GIVEN TO APPLY FOR LEAVE TO DISCLAIM-PATENTS, &c., ACT, 1883 (46 & 47 VICT. c. 57) s. 19.

The plaintiffs in an action for infringement of patent applied to the court for liberty to apply at the Patent Office for leave to amend their specification by way of disclaimer, and that in the meantime all proceedings in the action should be stayed. For the defendants it was argued that this should be granted only on the same terms as those on which the order in Singer v. Stassen (1 Rep. of Pat. Cas. 121, 32 W. R. Dig. 143) was made.

KAY, J., made the order upon the terms that no further proceedings should be taken in the action until the disclaimer had been made, and that if it were made the plaintiffs must pay all the defendant's costs up to the disclaimer as between party and party. The plaintiffs must undertake to amend their pleadings by stating the disclaimer, and if not they must dismiss their action.-COUNSEL, Moulton, Q.C., and Bousfield; Sir R. Webster, A.G, Aston, Q.C., and Carpmael. SOLICITORS, Hindson, Miller, & Vernon; Wilson, Bristowe, & Carpmael.

Re FRANCIS BUCKLAND (DECEASED)-Chitty, J., 17th January. ADMINISTRATION-IMPURE PERSONALTY-INDEMNITY AGAINST CLAIMS FOR

INVESTING IN WORTHLESS MORTGAGE.

In this case a testator, by his will, bequeathed £5,000 to found a scientific professorship subject to the life interest therein which he gave to his widow, and also declared that his assets should be marshalled in favour of charitable bequests. The testator's sole executor, who was a solicitor, had left England, and it was discovered that such solicitor had, during the testator's lifetime, invested a large sum of money belonging to the testator in a valueless fifth mortgage of an overburdened leasehold estate. The pure personalty of the testator was not sufficient to provide for the £5,000, and it was contended that a sum of £650 paid by the firm of solicitors of which the executor was a member to answer any claims against them by the representatives of the testator, was impure personalty on the ground that it represented money in respect of which there was a lien on the leasehold property. CHITTY, J., said that, inasmuch as the security was valueless and the £650 was paid on that assumption, it could not be said to represent impure personalty, and he held that it formed a portion of the testator's personal estate.--COUNSEL, Levett, Ingle Joyce.

CLARKE v. THORNTON-Chitty, J., 19th January. SETTLED LAND ACT, 1882, ss. 21, 25-IMPROVEMENTS TO BE PAID OUT OF CAPITAL MONEYS-SETTLEMENT AUTHORIZING TRUSTEES TO PAY FOR IMPROVEMENTS OUT OF INCOME.

In this case the question arose as to the power of the court to sanction improvements to be made out of capital moneys, notwithstanding a provision in the settlement enabling the trustees to pay for the same out of income. It appeared that the settlement was contained in a will which contained provisions of a very wide nature authorizing the trustees to repair and improve the settled land and buildings thereon out of income. It was proposed to lay out some £4,000 or £5,000 in improvements, but, it appearing that there was in court a sum of £37,000 representing capital

champagne growers or importers of the name of Le Court et Cie, and that the plaintiffs, by using the name, were deceiving the public. The French merchants who supplied the plaintiffs had obtained, in proceedings in France against those supplying the defendant, a judgment establishing their exclusive right to the user of "Le Court et Cie" as their trade

name.

CHITTY, J., said that he could find no fraud on the plaintiffs' part, when introducing that which was entirely a new brand the plaintiffs were not deceiving the public into the belief that the brand had a particular reputation, or that they were purchasing one thing when, in fact, they were purchasing what was totally different from what they intended to purchase. His lordship granted an injunction as asked.-COUNSEL, Romer, Q.C., and Butcher; Macnaghten, Q.C., and Maidlow. SOLICITORS, F. Romer; Ford, Lloyd, Bartlett, & Co.

THE ATTORNEY-GENERAL v. THE BARRY DOCK AND RAIL-
WAY CO.-North, J., 14th January.
RAILWAY COMPANY-DIVERSION OF ROAD-OBLIGATION TO PROVIDE SUBSTI-
TUTED ROAD-PERMANENT DIVERSION-RAILWAYS CLAUSES ACT, 1845, s. 53.

The question in this case was whether the obligation imposed by section 53 of the Railways Clauses Act, 1845, on a railway company, before interfering with a road under their statutory powers, to make and maintain, at their own expense, as convenient a substituted road, applied. In the present case the defendant railway company had permanently diverted a public road, and had constructed a new road in place of it which was alleged by the relators to be in bad order, and dangerous by reason of stones that had fallen or were likely to fall, especially after a frost, from the side of a hill. The relators sought for an injunction to restrain the company from using the part of their railway on the site of the old road till they had provided and maintained a sufficient substituted road. It was urged on behalf of the defendants that section 53 applies only to a temporary diversion of a road.

NORTH, J., held that section 53 applied to cases in which, by the railway company's special Act, a permanent diversion of a road is authorized, and that he had jurisdiction to grant an injunction. But, in order not to stop the traffic of the railway, he gave the company the option of undertaking forthwith to put the new road in a proper condition.-COUNSel, Cozens-Hardy, Q.C., and S. B. L. Druce; Cookson, Q.C., and Kenyon Parker. SOLICITORS, I. H. Wrentmore; Dowling, Holman, & Co.

JONES v. HARRIS-Stirling, J., 15th January. PRACTICE-MORTGAGE-FORECLOSURE-ORDER FOR SALE THREE MONTHS AFTER CERTIFICATE-DEFAULT OF PLEADING-MOTION FOR JUDGMENTEVIDENCE.

This was a motion for judgment in default of pleading in a foreclosure action. Two points arose. The first was as to the time after the chief clerk's certificate at which a sale should be ordered to take place. The second was as to whether any affidavit is necessary in support of a motion for judgment in default of pleading. The action was for payment of what was due under a mortgage created in 1860, and, in default of payment, for sale or foreclosure. Harris, who was the mortgagor, had not appeared in the action. The other defendants, who were second mortgagees, had appeared, but had not defended. The action now came

on upon motion for judgment in default of delivering defence. None of the defendants appeared. The application was supported by an affidavit of one of the plaintiffs in accordance with Holmes v. Shaw (29 SOLICITORS' JOURNAL, 573). STIRLING, J., gave judgment for immediate payment as in Farrer v. Lacy Hartland (34 W. R. 22, 31 Ch. D. 42). In default of payment he directed that a sale should take place three months after the date of the certificate, following the decision of Kay, J., in Green v. Biggs, W. N., 1885, p. 128. With regard to the affidavit, his lordship said he could not see that any affidavit was required, and he certainly should not allow the costs of it against absent defendants.-COUNSEL, Cutler, Q.C., and Manby. SOLICITORS, Boxall & Boxall.

Re AVERY'S PATENT-Stirling, J., 15th January. PRACTICE-PATENT-REVOCATION-PETITION PRESENTED BY PERSON ACTING UNDER POWER OF ATTORNEY FROM ONE OF THE PERSONS BENEFICIALLY INTERESTED.

This was a petition, under section 26, sub-section 4 (c.), (d.) of the Patents, Designs, and Trade-Marks Act, 1883, for the revocation of letters patent granted to T. S. Lindsay, the petitioner, holding a power of attorney from one of the persons interested in the invention, the subject of that patent. The question arose whether he was a proper person to present the petition, and whether it could be proceeded with in the absence of the persons benefically interested in the invention. The invention had been made by R. B. Avery and was the subject of patents in the United States and other places. The petitioner was acting under a power of attorney from R. B Avery. Under an agreement of January, 1885, B. F. Weeks, T. S. Lindsay, and W. F. Brewster became interested together with R. B. Avery in the invention. On the same day as that on which the agreement was made, R. B. Avery gave a power of attorney to D. F. Weeks to apply for patents for the said invention in England, and Weeks subsequently gave a similar power of attorney to F. S. Lindsay to act as his substitute in that respect. Letters patent were taken out by Lindsay in June, 1885, in England, and the object of the present petition was to obtain the revocation of these. The power of attorney to Weeks was revoked by that given to the petitioner in November, 1886. Neither Weeks nor Brewster were respondents to the petition.

STIRLING, J., ordered the petition to stand over generally, with leave to amend by making all the persons interested parties. The petitioner, who was merely acting under a power of attorney, could not present a petition in his own name. He was not the proper petitioner; all the persons interested must be brought before the court.-COUNSEL, Oswald and R. W. Wallace; Hastings, Q.C., and Yate Lee. SOLICITORS, Edmund Kimber; Neish & Howell.

R. BETHELL'S ESTATE-BETHELL v. BETHELL-Stirling, J. STATUTE OF LIMITATIONS-CHEQUE.

One of the points argued in this case was as to whether the Statute of Limitations barred the claim of a creditor against an estate in course of administration by the court under the following circumstances:-In or about March, 1878, C. Bethell gave A. J. Padgon an undated cheque for £100 in settlement of certain simple contract debts, on the understanding that it should be dated and presented for payment by the latter, upon the creditor receiving a telegram as to the success of a negotiation for a loan which C. Bethell was then engaged about, the reason for this being that C. Bethell had not, at the time, sufficient money at the bank to meet the amount. This telegram was never sent, but, apparently in February, 1878, Bethell wrote to Padgon :-". I at once put off the concern till things cool down. I will let you have some [money] the moment it is safe to do it." C. Bethell died in July, 1884. An order was made in October, 1885, for the administration of his estate, with an inquiry as to debts.

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STIRLING, J., said that the most favourable way in which the case could be put for the claimant was that the cheque was sent to him, and accepted by him, on an arrangement that he would wait a reasonable time before presenting the cheque that the loan then in contemplation might be negotiated and the drawer be in a position to meet the cheque. But the moment the above letter was received, the claimant became released from his obligation to wait, and a right of action arose. The time for the statute to run from was the time when the right of action arose, and the six years having elapsed before the order for administration, with the inquiry as to debts, was made, the claim was barred. As to the cheque being undated, that did not alter the matter, for the claimant's own case was that he was the person who was eventually to fill it up. The claim must be dismissed, with costs.-COUNSEL, W. F. Hamilton; H. Kisch; Sutton. SOLICITORS, Alexander Pope; A. R. Oldman.

BANKES v. SMALL-Kekewich, J., 11th January. COVENANT FOR FURTHER ASSURANCE-SPECIFIC PERFORMANCE OF COVENANT TO EXECUTE DISENTAILING DEED-BASE FEE-DEED TO ENLARGE BASE FEE INTO A FEE SIMPLE.

This was an action to enforce specific performance of a covenant for further assurance contained in a deed conveying a base fee, and raised the question whether the court would order a tenant in tail in remainder who had acquired a base fee, and had conveyed it to a purchaser, to execute, under such a covenant, a deed conveying the fee simple when the life tenancy had determined. By the will of one W. Small a farm in Dorsetshire, called Boyts, was, at the date of the contract next mentioned,

vested in one Martin Small as tenant for life in possession, with remainder to his two sons, the defendant Martin Lambert Small, and William Philip Rideout Small, as tenants in tail. The defendant, by a deed dated October, 1871, barred the entail in his share of the property, but without obtaining the concurrence of the tenant for life, and thus acquired only a base fee. By an indenture dated March 30, 1875, in consideration of the sum therein mentioned, the defendant and William Philip Rideout Small, as to all their estates and interests, rights and titles, under the said will in the farm, granted the farm to the plaintiffs in fee, and the defendant and W. P. R. Small, "for themselves, their heirs, executors, and administrators, and each of them for himself, his heirs, executors, and administrators, covenanted with the plaintiff, his heirs and assigns, that they, the said defendant and the said W. P. R. Small, had power to grant the estates, interests, and premises thereby granted or expressed or intended so to be, unto and to the use of the plaintiff, his heirs and assigns, in manner aforesaid, and free from incumbrances. And further, that they, the defendant and the said W. P. R. Small, and every person having or claiming any estate, right, title, or interest in or to the said premises, or any of them, through or in trust for them, or either of them, would at all times, at the cost of the plaintiff, his heirs or assigns, execute every such disentailing or other assurance, and do every such thing for the further or more perfectly assuring all or any of the said premises to the use of the said plaintiff, his heirs and assigns, as by the said plaintiff, his heirs or assigns, should be reasonably required." M. Small did not concur in this deed either as protector of the settlement or to release his life interest, though he had originally agreed to join in the sale. He died in May, 1884. The plaintiff then called upon the defendant to execute an indenture, in pursuance of the covenant above set out, for the purpose of enlarging the base fee created by the deed of the 20th of Octber, 1871, into a fee simple absolute, and submitted a deed to him with that object, but the defendant declined to execute it. The plaintiff claimed specific performance by the defendant of the covenant to further assure to him the hereditaments comprised in the indenture of March 30, 1875, and that the defendant might be ordered to execute such disentailing or other assurance as might be necessary for the further or more perfectly assuring the said heredita. ments to the use of the plaintiff. It was argued for the plaintiff that the case was distinguishable from Davis v. Tollemache (2 Jur. N. S. 1181), because the covenant contained express words which contemplated the execution of such a deed as was now required. On the other hand, it was argued on the defendant's part that in no case could a covenant for further assurance be resorted to to enforce the conveyance of an interest not in existence, and not attempted to be conveyed by the deed containing the covenant for further assurance.

KEKEWICH, J., in giving judgment, said he had come to a clear opinion on this case. The plaintiff, W. R. Bankes, had required the defendant, M. L. Small, to execute a disentailing assurance of a particular estate, and the question was whether it was such a deed as was pointed at by the covenant, or, in other words, whether the plaintiff was reasonable in asking the defendant to execute such a deed. The defendant argued that, looking at the whole document containing the covenant, such a deed as was now asked for was not pointed at by the covenant. He had come to the conclusion that it was the very thing in the contemplation of the parties. At that time the property had been the subject of several dealings. M. Small was the tenant in tail, but not in possession, and Martin Small, the father, and M. L. Small, the tenant in tail in remainder, had agreed in April, 1874, with this very man, the present plaintiff, to sell to him out and out for £3,000. M. Small declined to execute any deed, though deeds were prepared in which he was named as a party. It was evident that Mr. Bankes, thinking he might get the estate, paid off the mortgages and got the estate clear of incumbrances, and acquired the base fee. Of course, it was not a satisfactory estate to purchase, and could not be conveyed to trustees of any settlement. There was no actual recital in the deed of 1875 to the effect that they had agreed to sell the fee and, having regard to Davis v. Tollemache (2 Jur. N. S. 1181), it might be going too far to say that it was a contract to sell the fee. However, M. L. Small and W. P. R. Small conveyed, according to their estates and interest and passed a base fee, that was all they could do then. M. Small was then still living, and they entered into this covenant:-[His lordship read the covenant.] That covenant went beyond the ordinary form. What could be their purpose in putting in the extra words, perhaps they were conscience-stricken that Barnes had lost the estate he had contracted to purchase; but what it was they certainly did covenant to do was to execute a disentailing assurance, and it must have an enlarging deed. That was the construction according to honesty and the plain construction of the deed. Davis v. Tollemache had been cited. That case was on the construction of a covenant for further assurance, and counsel for the defendant had to argue this to be such a case. The covenant there was in a mortgage deed, a deed where the covenants are of a larger scope than in a purchase deed, but the Vice-Chancellor held that even a covenant in such wide terms was not sufficient to enable the covenantee to claim execution of a disentailing deed. If this covenant which he had to construe were smaller in its scope he might have had to follow that case, but the covenant clearly contemplated such a deed as asked. The plain. tiff was entitled to have a disentailing assurance executed by the defendant, and there could be no question he reasonably required him to execute it. The order would have to be very precise, and must be for the execution of a deed to be settled in chambers, so that, if the defendant refused to execute it, the 14th section of the Supreme Court of Judicature Act, 1884 (47 & 48 Vict. c. 61), could be applied and the deed executed by a person appointed by the court.-COUNSEL, Barber, Q.C., and T. Rawlinson; Warmington, Q.C., and Russell Roberts. SOLICITORS, Lovell, Son, & Pitfield, for Rawlins & Rawlins; R. Chapman.

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