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before 1882 the guardians (see Co. Lit., 87b., et seq., Stat. executions at the suit of the Crown or a subject, or for bankruptcies. Marlbridge, c. 17, 12 Car. 2, c. 24; Bedell v. Constable, Vaug. 177 ; We are of opinion that this contention is erroneous, and that the meanOsborn v. Carden, Plow. 293 ; Wade v. Baker, 1 Lord Raymd. ing of “ assignee " throughout the section must be governed by its 130; King v. Oakley, 10 East. 491) of an infant seised of a legal meaning in sub-section (1), so as to include " assignee by operation estate for life or of inheritance, and the trustees in whom the fee of law." There remains the question whether an assignee by was vested where the interest of the infant was merely equitable, operation of law is an “assignee for value” within the meaning of would be in actual possession, and would, therefore, be the persons sub-section (3). Possibly a distinction may be drawn between to search against. "It would generally happen where the estate assignees by operation of law, who become so against the will of was in strict settlement, that, by the operation of the usual the tenant for life, as a judgment or execution creditor, or the trustee minority clause, the trustees were directed to enter into and retain in bankruptcy where a creditor is the petitioner, in which case the
Mitchinson v. Carter (8 T. R. possession during the minority of the infant, so that in this case assignment is not voluntary : Doe they would be the persons to search against.
57); Croft v. Lumley (6 H. L. C. 672); Wadham or Woodham After 1881, whether the estate of the infant is legal or equitable, v. Marlow (4 Doug. 54; same case, 1 H. Bl. 438(n); 8 East. the trustees may, but are not required to, enter into possession ; 314(n); 2 Chitty Rep. 600); Doe d. Goodbehere v. Bevan (3 M. & so that, unless there is an express minority clause, inquiry must be S. 353), and the trustee in bankruptcy where the tenant for life made whether they entered into possession or not, and searches must himself is the petitioner, in which case the assignment may be conbe made against them if they entered, and against the guardians if sidered voluntary : Shee v. Hale (13 Ves. 404). But until these they did not : see the Conveyancing Act, 1881, s. 42.
questions have been determined by a decision of the court, it appears Perhaps it might be safer in all cases to search also against the safer in all cases to make the same searches against the tenant for infant himself.
life as if he were seised in fee simple. An infant landlord may acquire a charge under the Agricultural It should, perhaps, be observed that no searches against the Holdings (England) Act, 1883 (46 & 47 Vict. c. 61): see sections remaindermen can be necessary, as, even if a remainderman has 25, 29.
sold his interest, the purchaser from the tenant for life obtains a Land held by A. in trust for B. in fee simple.—Searches of good title to the fee simple: Wheelwright r. Walker (23 Ch. D. every description except for judgments, executions, and termin. 752). able improvement charges must be made against A. Searches It should perhaps be observed that the mere pendency of an for judgments, executions, and terminable improvement charges action in which a decree has been made for the performance of the must be made against B. Searches for lis pendens should be trusts of the settlement, does not prevent the tenant for life from made against both A. and B. See as to the searches against B., exercising his statutory powers without leave of the court, the ante, pp. 4, 42, 57, 90.
reason apparently being that the powers override the settlement : The question may be asked, What would be the effect of a sale Cardigan v. Curzon-Howe (33 W. R. 836, 30 Ch. D. 531) by A. alone to a
follows urchaser who did not know that A. was a (see also Re Mansel, Rhodes v. Jenkins, 33 W. R. 727). trustee, and, therefore, could not search against B.? The effect of 2 that where such an action is registered as a lis pendens against the & 3 Vict. c. 11 (ante, p. 58), was to leave a purchaser without tenant for life it may, in the absence of a special order in the notice of a judgment exposed only to the remedies of the judg- action, be disregarded. ment 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 Bo's equity, and, therefore, without notice of the judgments THE TOWN-PROVINCIAL MEETING OF THE INCORagainst B. and before execution sued against B., was safe :
PORATED LAW SOCIETY. Harris v. Pugh (4 Bing. 335 ; same case, 12 J. B. Moo. 577). At the annual provincial meeting of the Incorporated Law Society
In like manner, if the conveyance is taken from B. alone, leaving held at York in October last, a revolution was passed to the effect the legal estate outstanding in A., a purchaser who has no notice that the meeting for 1887 should be held in London. This course, of a judgment against B., and who completed before execution solicitors could be invited to London, and it was high time that some
although rather anomalous, was the only way in which the country sued against B., is safe, for at the time of execution B. has parted return should be made for all the hospitality extended to metro, with his interest, and there is nothing to take in execution. On the other hand, a purchaser from B. with notice of a judg- in 1874. With the exception of two small dinners given in the Law
politan members of the society since these meetings were established ment against B. was bound under the old law : Tunstall v. Society's Hall in 1882, nothing has been done by the town members Trappes (3 Sim. 286).
towards the entertainment of their country brethren. The present Tenant for life selling under the Settled Land Act.-We have year is a very appropriate one in which to invite the country members already, 30 SOLICITORS' Journal, 699, pointed out the difficulties to London. It is the jubilee of her Majesty, and also the fiftieth occasioned by the existence of a terminable charge on the sale of a
year since the final examination of solicitors was instituted. settled estatē ; searches for charges of this nature must therefore be the various celebrations of the jubilee which will doubtless be
A convenient time will have to be chosen in order not to clash with made against the tenant for life.
held in most of the provincial towns. It is probable that most, The question whether searches must be made for charges if not all of these will be held about the 20th of June. arising by operation of law on the estate of the tenant for With regard to the date of the meeting, it seems to us that it life, such as the charge created by delivery in execu- broken through, and that it should be held at the end of May or the tion of his estate, depends upon the construction of the Settled Land Act, and is one of considerable nicety, The 50th opportunity of coming to town during the London seasons
beginning of June. This would give the country solicitors an section of that Act, which is retrospective, provides (1) that the know from experience that but a small percentage of those who statutory powers remain exercisable by the tenant for life after attend meetings of this kind do so for the purpose of hearing the and notwithstanding any assignment by operation of law or other- papers read or taking part in the discussions. After the president's wise of his estate or interest under the settlement”; but that (3) address has been delivered they drop quietly away, and are seenhag “this section shall operate without prejudice to the rights of . an assignee for value of the estate or interest of the tenant for life, have spent the intervening time we have never been able to ascertain, and in that case the assignee's rights shall not be affected without but we hope to their own satisfaction. his consent,” except as to certain leases section assignment includes assignment by way of mortgage, and large sum necessary is one which we must leave to the members be
and (4) “ in this whether it would be competent for the Law Society to expend the
The next question, after deciding on the date, is that of expense. any partial or qualified assignment, and any charge or incumbrance, ti at body whose special duty it seems to be to keep watch over the and assignee has a meaning corresponding with assignment."
It will be observed that assignee,” as defined in sub-section 4, appears to us that the expenses of the proposed entertainment should does not expressly include "assignee by operation of law," and it be borne by the London members, and without calling on the society may therefore be argued, and some practitioners contend, that foondox members of ith would, however, be a Utopian idea to en "assignee” in sub-section 3 does not include "assignee by opera- them all to contribute. "It, gay, 1,000" of them guaranteeds pengers tion of law." If this view be correct, it would be unnecessary to paratively small sum each, it would more than cover all the expenses search against the tenant for life for judgments, Crown debts, I 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
CORRESPONDENCE. 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
SCALE CHARGES FOR LEASES. enough for this purpose. Or there might be dinners on successive
[To the Editor of the Solicitors' Journal.] nights, but this would hardly be so satisfactory. As to the other Sir,—We observe that you have again made some comments on entertainments there will, no doubt, be various suggestions-a ball; a the case which is connected with our names. concert, at which some of the members of the society who are well As the master's reasonable decision, subsequently confirmed by a known for their talent in this respect might assist; or an amateur chief clerk- viz., that notice given after investigation of title, and dramatic performance. Or it has been suggested that a professional before actual preparation of lease was sufficient–did not satisfy the company might be engaged, which we are sure would meet with very eminent firm who acted for the lessees, the firm in question general approval, or tickets might be taken for several of the theatres, appealed, and the Law Society took up the case, but would go no so that each person could choose for himself the performance which further than Mr. Justice Kay when that learned judge decided he would wish to see. It would seem that the excursions which form against us. so pleasant a part of the country meetings are hardly practicable, We, however, that the profession might exactly know how it inasmuch as there are scarcely any places of interest in the neighbour- stands, took the case to the Court of Appeal, and were beaten, the hood of London to which excursions could be arranged, which are court declining to decide that the investigation of title, both of not already well known to all the members of the society, both in lessor and lessee—including, perhaps, the licence to demise-was town and country, but perhaps a water-party up the Thames might covered by the scale fee, although it was intimated, during the be arranged with success.
argument, that it probably was. Whatever form the entertainment takes we wish it every success, The fee in our case was £5 per lease. This barely covered the and we trust that it will be carried out in a manner worthy of stationer's charges and parchment, the leases being renewals and the occasion which has given rise to it. But if the meeting is to be seventy-five folios long, and certainly, taking office expenses into a success, the matter of considering the arrangements should be taken account, the business was a dead loss. in hand at once.
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, REVIEWS.
must be done at the first interview, unless it be thought desirable
formally to disclaim undertaking the business until after further TRUST INVESTMENTS.
inquiry. TRUSTEES' GUIDE TO INVESTMENTS. By ARTHUR LEE Ellis, 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, Barrister-at-Law. Reeves & Turner. This is an excellent little book, and none the worse for being short skins in length, as on the Paddington Estate. The lessor's solicitor's
underleases from £50 to £100 a year, the lease, perhaps, four or five It will be found useful, not only to the practitioner, but also to fee varies from £3 153. to £7°10s.; the lessee's solicitor's from trustees themselves. It contains three chapters only, treating on (1)| £1 17s. 6d. to £3 15s.--the lessee's solicitor's duties being generally the duties and responsibilities of trustees with regard to the invest- more difficult than the lessor's. ment of trust funds generally; (2) the trustee's powers of investment (a.) under statute, with list of statutory investments, (b.). under premium paid for a lease, no investigation of title being permitted.
Take, again, the lessor's solicitor's claim to the scale fee on a instruments of trust; (3) certain kinds of investment considered, there would be some reason in adding, for scale purposes, say ten particularly real securities. The most important, perhaps a unique, per cent. on the premium to the original rent. feature of the book is the list of the securities now authorized by had this absurdity exemplified :-Acting for the lessee - Rent, £250;
We have recently statute for the investment of trust funds. In addition to the statutes premium, £1,400; scale fee on lease, £6 js.; on premium, £19. usually cited in the text-books, the author gives a list of corporations
"What is the £19 for?” said the client. “Nothing," was the whose Acts contain an express provision authorizing trust investments, or whose stocks are issued under the Local Loans Act, 1875, necessary reply, “ the law allows it.” with concise notes, shewing in each case what provisions in the the scale on sales and purchases is too low in small cases and too
There is a general feeling among our professional friends that settlement authorize trustees to invest under the Act. The discussion high in large cases, and the sooner it is abolished and a new one as to investments on mortgage leaves little to be desired. After substituted the better.
ALLEN & Sox. stating that " nothing less than a first mortgage should be accepted by a trustee,” the author discusses the two matters of primary im
17, Carlisle-street, Soho-square, W., Jan. 17. portance: (1) The value of the property proposed for the mortgage in relation to the amount to be advanced; (2) the sufficiency of the
RECEIVERS. title to that property.
[To the Editor of the Solicitors' Journal.] After a somewbat careful examination of this book, the only case
Sir,–Referring to your recent remarks as to Mr. Justice Stirwe have noticed as being overlooked by the author is Millett v. ling's innovation" in the practice of aprointing receivers by way Haworth (29 SOLICITORS' JOURNAL, 555), to which we referred to last of equitable execution, may I be permitted to point out that, if a week in noticing another book on this subject, and which might, with
summons is in future to be issued, this process will be valueless ? If advantage, have been cited at page 47. In that case fully paid-up the judgment debtor has notice of the application he can defeat its shares were vested in trustees with power to sell the same " by the object with the utmost ease-e.g., by selling or further mortgaging express direction, and with the consent in writing,” of the tenant for his equitable interest. life. By a change in the constitution of the company, the liability on the shares was, in effect, made unlimited. The trustees wished to injunction cases—that is, an interim receiver should be appointed ex
The proper practice, I submit, should be analogous to that in sell the shares so as to free themselves from liability, but the tenant parte, without security, the judgment creditor being put under an for life would not consent to a sale. The trustees brought an action undertaking as to damages. The debtor's interest would be bound against the tenant for life asking for an order for sale, which was by the interim appointment, and a summons could be issued to conrefused. The decision hardly in accordance with the dictum tinue the receivership.
J. WHITE. that "a trustee is bound to conduct the business of his trust in the
Bank-buildings, Ludgate-circus. same manner that an ordinary prudent man of business would conNo one but a reviewer knows the amount of rubbish that is pub
MIDDLESEX REGISTRY. lished under the guise of books on law: the perusal of them is a
[To the Editor of the Solicitors' Journal.] weariness to the flesh. We have derived both pleasure and instruc Sir, -The enclosed slip states the number of deeds registered in tion from Mr. Ellis's book, and commend it to our readers. Middlesex during each of the years from 1868—1886. I believe the
falling off during the last four years has been principally in building leases and transfers of public-houses, with the consequential mortgages in each case. The Kilburn suburb appears to be one of the busiest in building matters at present.
X. Y. Z. At Devizes, on Friday and Saturday, Mr. George Spackman, solicitor,
Jan. 20. late, registrar of county courts, and holding a high professional and official position in Wiltshire, was charged before Mr. Justice Mathew with
The following is the slip referred to :having misappropriated the sum of £3,214 14s. 7d., part of a trust fund
31,358 1873 ... 25,420 1878 38,116 1883 of which he was a trustee under a will. Mr. Charles Mathews prosecuted ;
29,939 1874 27,548 1879
40,494 1884 Mr. Poole and Mr. Radcliffe defended. The jury found the prisoner 1870 25,771 1875 29,530 1880 42,255 1885 guilty, and he was sentenced to nine months imprisoment with hard 1871
23,372 1876 32,704 1881 42,352 1886 ... 33,133 labour.
1872 23,937 1877 ... 36,254 1882 42,080
duct his own."
Re WHITAKER, CHRISTIAN 2. WHITAKER-C. A. No. 2, CASES OF THE WEEK.
14th January Re AN ARBITRATION BETWEEN THE SECRETARY OF STATE MARRIED WOMAN-SEPARATE ESTATE-MARRIAGE SETTLEMENT-COVENANT AND FLETCHER-0. A. No. 1, 15th and 17th January.
TO SETTLE AFTER-ACQUIRED PROPERTY-MARRIED WOMEN'S PROPERTY Coal Mines REGULATION ACT, 1872 (35 & 36 Vict. c. 76), s. 46-DISPUTE Act, 1882, ss. 5, 19.
AS TO WHETHER A MINE IS DANGEROUS-ARBITRATION--AWARD OF U'MPIRE The question in this case was as to the effect of sections 5 and 19 of -JURISDICTION OF UMPIRE TO PRESCRIBE TLE REMEDY.
the Married Women's Property Act of 1882 with regard to the property Section 46 of the Coal Mines Regulation Act, 1872, provides that, if in of a married woman who has, by her marriage settlement, covenanted to any respect (which is not provided against by any express provision of settle after-acquired property. A marriage settlement executed in 1873 this Act or by any special rule) an inspector find any mine, or any part contained a covenant to settle all the real and personal estate (if any) to thereof, or any matter, thing, or practice connected with such mine, to be which the wife, or the husband in her right, was or should during the dangerous or defective, so as to threaten or tend to the bodily injury of intended coverture become entitled, except (inter alia) any property any person, such inspector may give notice in writing to the owner, belonging to, or which might be given or bequeathed to or settled upon, stating the particulars in which he considers it to be dangerous or defec- her for her separate use, all which excepted property it was declared tive, and requiring the same to be remedied; and, if the owner objects should belong to the wife as her separate estate. The wife's father, who to remedy the same, the owner may send his objection in writing to the died in 1884, by his will, dated shortly before his death, bequeathed to Secretary of State, stating the grounds of his objection, and the matter her £30,000 absolutely, but not to her separate use. The question was shall thereupon be determined by arbitration in manner provided by the whether the legacy was bound by the covenant in the settlement, or Act. An inspector having given notice under the above section that whether, by virtue of the Act, it belonged to the wife as her separate Fletcher's mine was dangerous from explosive gas, and requiring him to property. Section 5 of the Act provides that “every woman married remedy it, Fletcher sent in his objections to the Secretary of State. An
before the commencement of this Act shall be entitled to have, and to arbitration followed, and, the arbitrators differing, the umpire made an hold, and to dispose of in manner aforesaid (i.e., as if she were a feme sole) award stating that the mine was dangerous and requiring Fletcher to as her separate property all real and personal property her title to which work the mine with safety lamps and to cease working it with open lamps. tion 19:- Nothing in this Act contained shall interfere with or affect
shall accrue after the commencement of this Act.” And by sec. 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 any settlement or agreement for a settlement made or to be made, with safety lamps. The Divisional Court refused the motion.
whether before or after marriage, respecting the property of any married THE COURT OF APPEAL (LORD ESHER, M.R., Bowen and Fry, L.JJ.) woman,'
," &c. Bacon, V.C., in accordance with the decision of Pearson, held that the umpire had gone beyond his jurisdictiou in ordering the J., in Re Stonor's Trusts (24 Ch. D. 195), held that the legacy was bound mine to be worked with safety lamps. The case, they said, was governed by the covenant. by section 46, and that section only gave him power to find that the
The Court of APPEAL (Cotton, LINDLEY, and Lopes, L.JJ.) affirmed matter complained of was dangerous, and to require it to be remedied. the decision. Cotton, L.J., said that, at the death of the testator, the He had no power to go further and to prescribe any particular remedy. Act was in force, and if section 5 only had to be considered the legacy The mine-owner was to find the remedy, and it he did not find a remedy would have been the wife's separate property. Under the covenant it he could be dealt with under other sections in the Act. As the umpire was doubtful whether the words, any property belonging,” &c., did had heard all the evidence, the proper course would be to send the not mean “ now belonging,” and the words, or which might be given award back to him to be amended in this respect.-COUNSEL, Henn Collins, or bequeathed to or settled upon her for her separate use," did not mean Q.C., and C. 4. Russell; Sir R. E. Webster, A.G., and R. S. Wright given for her separate use by the instrument of gift. But what was SOLICITORS, Chester, Mayhew, & Co , for H. M. Richardson, Bolton; Hare g the meaning of section 19? His lordship thought that the true effect Co., for Solicitor to the Treasury.
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 OWENS COLLEGE, MANCHESTER v. OVERSEERS OF THE POOR children of the marriage if it was included in the settlement, but if the OF CHORLTON-UPON - MEDLOCK-0. A. No. 1, 12th and 13th respondent's argument prevailed the effect of section 5 would be to with: January
draw the legacy from the settlement and affect the provisions for the RATING-ANNUAL VALUE-Possible TENANT.
children. It was impossible to say that, if section 19 did not prevent the Special case stated under 12 & 13 Vict. c. 45, s. 11. The Owens interfere with the provisions of the settlement. The two sections must
legacy from being treated as a separate estate, section 5 would not College, having been rated in respect of their college buildings at be read together, and the meaning of them must be that the Act was this rate. The governors of Owens College were incorporated under Pearson, J., were, therefore, right. LINDLEY, L.J., said that he did not
not to interfere with settlements. Tne decisions of Bacon, V.C., and section 7 of the Owens Extension College Act, 1870, as modified by the profess to understand section 19 fully, but he thought it was clear for Owens College Act, 1871. The property in question consisted of land the present purpose. It was conceded that, but for the Act, the property acquired by the Owens College under the Act of 1870 as a site for the college buildings, and college buildings erected thereon.
would be bound by the covenant, and section 19 said that the Act was not to
By section interfere with settlements. Lopes, L.J., said that, as the testator had not 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 the exception to the covenant.
left the legacy for the separate use of the daughter, it was not within were empowered to grant leases of, and sell or dispose of, any lands vested
Section 5 gave the property a char. in them except the site of the college and its appiirtenances. The college destination by withdrawing it from the settlement. But section 19 said that
acter which brought it within the exception," and gave it a different was erected for educational purposes, and the expenses were defrayed nothing in the Act was to interfere with settlements, and that must prepartly by endowments and partly by the students' fees. The college vail.- COUNSEL, Farwell; Byrne. SOLICITORS, Paterson, Snow, f. Co. could not be carried on at a profit in a commercial sense.
1f 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
DADSWELL v. JACOBS-C. A. No. 2, 11th January. 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
NO REASONABLE GROUND OF ANSWER." £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
A question arose in this case as to striking out a statement of defence,
under the power, giv the gross estimated rental of £1,300, and contended that they ought not be struck out, "on the ground that it discloses no reasonable ground of
by rule 4 of order 25, to order any pleading to 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 New South Wales, against his agent in England, who had bought goods
action or answer.” The action was brought by a principal, a merchant in to be ascertained was the existing value of the occupation to the existing for him here. The defendant had bought the goods in his own names tentions of the Owens College was correct ; if so, the gross estimated inspection and examination by the plaintiff's agent or agents, of invoices, rental was to be reduced to £1,300; if not, the rate was to stand. The ledgers, letter- books, correspondence, and other books and documents in
Tue Court of Appeal affirme1 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 ali, payments by the plaintiff on account of the same, and generally relating upon which the court were not required to give judgment), upon the true construction of the statutes, the college could not become tiff, by his statement of claim, alleged that the defendant had refused to
to the transactions of the defendant as the plaintiff's agent. The plainthe 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 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 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. tenants, and so the rent that they might be expected to pay ought not to able cause of ańswer. "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 and 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 5 Harwood, Manchester. person. His lordship accordingly refused the motion.
The Court of APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.), affirmed moneys, the tenant for life raised the question whether he was not entitled the decision. They said that, if the plaintiff had brought an action to have such repairs as were within the Act paid for out of the sum in against the defendant as his agent in the ordinary form for an account, court. he would have obtained, as a matter of course, an order for production Chitty. J., said that amongst the objects of the Settled Land Act was of documents to his solicitor or agent, and, according to the ordinary that of improving settled land; and it was no doubt considered that a practice, no agent of the plaintiff to whom the defendant reasonably ob- tenant for life was much more likely to carry out repairs and improvejected would have been allowed to inspect. Instead of proceeding in this ments thoroughly if he might pay for them out of capital instead of way the plaintiff, by his action, claimed an absolute right of production seriously diminishing his income. Under the powers in this will the to any agent he might think fit to appoint. It could not be said that the trustees had a very wide discretion given them as to repairs and improve defence was not a reasonable one.-Counsel, Romer, Q.O., and Grosvenor ments out of income; but, piecing together the various sections of the Woods ; Macnaghten, Q.C., and Alexander. SOLICITORS, Harvey Samuel ; Act, he was of opinion that it was the intention of the Act to give a H. Montagu.
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 Re PRICE-0. A. No. 2, 17th January.
specified by the Act. If on presentation by the tenant for life of such CRIMINAL LUNATIC-POWER TO DEAL WITH PROPERTY-CRIMINAL LUNATICS
a scheme the trustees declined to act without the sanction of the court, Act, 1884 (47 & 48 Vict. c. 64), s. 10.
the court would, after considering the propriety of the proposed scheme,
authorize the trustees to make the necessary expenditure out of capital A question arose in this case as to the jurisdiction of the court to deal moneys, notwithstanding the express trust or power in the settlement with the property of a criminal lunatic under section 10 of the Criminal enabling the trustees to make such improvements out of the income of Lunatics Act, 1884, which enables tbe Court of Lunacy to make orders the estate. He was of opinion that, although the Act did not abrogate " with respect to the property” of a criminal lunatic," and the appro- the power in the settlement, yet the power of the tenant for life under priation thereof for the maintenance or benefit of himself or his family, the Act was paramount to that of the trustees under the settlement. The or for carrying on bis trade or business." A criminal lunatic, who was in circumstance of the money being in court did not constitute any distincconfinement, was entitled to a reversion of a moiety of some shares in a tion. He therefore authorized the payment out of the sum in court of 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 Act.—Counsel, Methold; Maclean, Q.C., and Pophom; Romer, Q.C., and
so much of the proposed improvements as were improvements within the value. The petition asked that such interest might be sold and the pro- Ingle Joyce. SOLICITORS, Gregory & Co.; Wilkinson & Son. ceeds 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.
GOODFELLOW v. PRINCE-Chitty, J., 18th January. The Court (Cotton, LINDLEY, and LOPES, L.JJ.) held that the sale
INJUNCTION-TRADE NAME-MISREPRESENTATION. 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 jurisdic- the defendant from selling champagne with brands and labels, &c.,
In this case the plaintiffs moved for an interim injunction restraining tion.-COUNSEL, Methold. SOLICITORS, J. & C. Robinson & Wilkins.
bearing the name, "Lecourt et Cie," which the plaintiffs claimed as
their trade name. THE FUSEE VESTA CO. v. BRYANT & MAY.–Kay, J., 14th the name was a misrepresentation, inasmuch as there were no French
The defendant submitted that the plaintiffs' user of January.
champagne growers or importers of the name of Le Court et Cie, and PATENT-INFRINGEMENT-DISCLAIMER-TERMS UPON WHICH LIBERTY WILL that the plaintiffs, by using the name, were deceiving the public. The
BE GIVEN TO APPLY FOR LEAVE TO Disclaim— Patents, &c., Act, 1883 French merchants who supplied the plaintiffs had obtained, in proceedings (46 & 47 Vict. c. 57) s. 19.
in France against those supplying the defendant, a judgment establishing The plaintiffs in an action for infringement of patent applied to the
their exclusive right to the user of “Le Court et Cie" as their trade court for liberty to apply at the Patent Office for leave to amend their CHITTY, J., said that he could find no fraud on the plaintiffs' part, specification by way of disclaimer, and that in the meantime all proceedings in the action should be stayed. For the defendants it was
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 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. 121,9 32 W. H. reputation, or that they were purchasing one thing when, in fact, they
were purchasing what was totally different from what they intended to KAY, J., made the order upon the terms that no further proceedings Q.c., and Butcher; Macnaghten, Q.C., and Maidlou.
purchase. His lordship granted an injunction as asked.-Counsel, Romer,
SOLICITORS, F. should be taken in the action until the disclaimer had been made, and Romer; Ford, Lloyd, Bartlett, & Co. that if it were made the plaintiffs must pay all the defendant's costs up to the disclaimer as between party and party. The plaintiff; must THE ATTORNEY GENERAL v. THE BARRY DOCK AND RAILundertake to amend their pleadings by stating the disclaimer, and if not
WAY CO.-North, J., 14th January. they must dismiss their action.-COUNSEL, Moultor, Q.C., and Bous field; Sir R. Webster, A.G., Aston, Q.C., and Carpmael. SOLICITORS, Hindson, RAILWAY COMPANY-DIVERSION OF ROAD-OBLIGATION TO PROVIDE SUBSTIMiller, f Vernon ; Wilson, Bristowe, f Carpmael.
TUTED ROAD-PERMANENT DIVERSION-RAILWAYS OLAUSES Act, 1845, s. 53. Re FRANCIS BUCKLAND (DECEASED)—Chitty, J., 17th January. The question in this case was whether the obligation imposed by section ADMINISTRATION – IMPURE PersonalTY—INDEMNITY AGAINST CLAIMS FOR fering with a road under their statutory powers, to make and maintain, at
53 of the Railways Clauses Act, 1845, on a railway company, before interINVESTING IN WORTHLESS MORTGAGE.
their own expense, as convenient a substituted road, applied. In the present In this case a testator, by his will, bequeathed £5,000 to found a
case the defendant railway company had permanently diverted a public road, scientific professorship subject to the life interest therein which he
and had constructed a new road in place of it which was alleged by the gave to his widow, and also declared that his assets should be marshalled relators to be in bad order, and dangerous by reason of stones that had in favour of charitable bequests. The testator's sole executor, who was a
fallen or were likely to fall, especially after a frost, from the side of a hill. solicitor, had left England, and it was discovered that such solicitor had, The relators sought for an injunction to restrain the company from using during the testator's lifetime, invested a large sum of money belonging the part of their railway on the site of the old road till they had provided to the testator in a valueless fifth mortgage of an overburdened leasehold and maintained a sufficient substituted road. It was urged on behalf of estate. The pure personalty of the testator was not sufficient to provide the defendants that section 53 applies only to a temporary diversion of a for the £5,000, and it was contended that a sum of £650 paid by the firm
road. of solicitors of which the executor was a member to answer any claims
North, J., held that section 53 applied to cases in which, by the railway against them by the representatives of the testator, was impure personalty company's special Act, a permanent diversion of a road is authorized, on the ground that it represented money in respect of which there was a and that he hai jurisdiction to grant an injunction. But, in order not to lien on the leasehold property.
SHITE, J., said that, inasmuch as the security was valueless and the £650 taking forthwith to put the new road in a proper condition. ---COUNSEL, per paid on that assumption, it could not be said to represent impure Cozens- Hardy, Q.C., and S. B. L. Druce ; Cookson, Q.C., and Kenyon Parker. personalty, and he held that it formed a portion of the testator's personal SOLICITORS, 1. H. Wrentmore ; Dowling, Holman, $ Co. estate.--COUNSEL, Levett, Ingle Joyce.
JONES v. HARRIS-Stirling, J., 15th January.
PRACTICE-MORTGAGE-FORECLOSURE-ORDER FOR SALE THREE Month! SETTLED LAND Act, 1882, ss. 21, 25— IMPROVEMENTS TO BE PAID OUT OF
AFTER CERTIFICATE-DEFAULT OF PLEADING -MOTION FOR JUDGMENTCAPITAL MONEYS-SETTLEMENT AUTHORIZING TRUSTEES TO PAY FOR IM.
EVIDENCE, PROVEMENTS OUT OF INCOME.
This was a motion for judgment in default of pleading in a foreclosure In this case the question arose as to the power of the court to sanction 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 insion in the settlement enabling the trustees to pay for the same out of second was as to whether any affidavit is necessary in support of a motion income. It appeared that the settlement was contained in a will which for judgment in default of pleading. The action was for payment of pair and improve the settled land and buildings there one cate of income: ment, Tor sale of Foreclosure. Harris, who was the mortgagor, had not it appearing that there was in court a sum of 4:37,000 representing tea pitia mopeenges, had appeared, but had not defended. the actione now.came
202 on upon motion for judgment in default of delivering defence. None of vested in one Martin Small as tenant for life in possession, with remainder the defendants appeared. The application was supported by an affidavit to his two sons, the defendant Martin Lambert Small, and William Philip of one of the plaintiffs in accordance with Holmes v. Shaw (29 SOLICITORS' Rideout Small, as tenants in tail. The defendant, by a deed dated JOURNAL, 573).
October, 1871, barred the entail in his share of the property, but without STIRLING, J., gave judgment for immediate payment as in Farrer v. obtaining the concurrence of the tenant for life, and thus acquired only a Lacy Hartland (34 W. R. 22, 31 Ch. D. 42). In default of payment he base fee. By an indenture dated March 30, 1875, in consideration of the
sum therein mentioned, the defendant and William Philip Rideout Small, directed that a sale should take place three months after the date of the
as to all their estates and interests, rights and titles, under the said will 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 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 adminsee that any affidavit was required, and he certainly should not allow the costs of it against absent defendants.--Counsel, Cutler, Q.C., and Manby. istrators, and each of them for himself, his heirs, executors, and SOLICITORS, Boxall f Boxall.
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 Re AVERY'S PATENT—Stirling, J., 15th January.
intended so to be, unto and to the use of the plaintiff, his heirs and PRACTICE-PATENT-REVOCATION-PETITION PRESENTED BY Person ACTING assigns, in manner aforesaid, and free from incumbrances. And further, UNDER POWER OF ATTORNEY FROM ONE OF THE Persons BENEFICIALLY that they, the defendant and the said W. P. R. Small, and every person INTERESTED.
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 thea, This was a petition, under section 26, sub-section 4 (C.), (d.), of the would at all times, at the cost of the plaintiff, his heirs or assigns, execute Patents, Designs, and Trade-Marks Act, 1883, for the revocation of letters
every such disentailing or other assurance, and do every such thing for the patent granted to T. S. Lindsay, the petitioner, holding a power of further or more perfectly assuring all or any of the said premises attorney from one of the persons interested in the invention, the subject
to the use of the said plaintiff, his heirs and assigns, as by the of that patent. The question arose whether he was a proper person to said plaintiff, his heirs or assigns, should be reasonably required.” present the petition, and whether it could be proceeded with in the M. Small did not concur in this deed either as protector of the settlement absence of the persons benefically interested in the invention. The inven
or to release his life interest, though he had originally agreed to tion had been made by R. B. Avery and was the subject of patents in join in the sale. He died in May, 1884. The plaintiff then called upon the the United States and other places. The petitioner was acting under a defendant to execute an indenture, in pursuance of the covenant power of attorney from R. B. Avery. Under an agreement of January, above set out, for the purpose of enlarging the base fee created by the deed 1885, B. F. Weeks, T. S. Lindsay, and W. F. Brewster became interested of the 20th of Octber, 1871, into a fee simple absolute, and submitted together with R. B. Avery in the invention. On the same day as that on
a deed to him with that object, but the defendant declined to execute it. which the agreement was made, R. B. Avery gave a power of attorney to The plaintiff claimed specific performance by the defendant of the D. F. Weeks to apply for patents for the said invention in England, and
covenant to further assure to him the hereditaments comprised in the Weeks subsequently gave a similar power of attorney to F. S. Lindsay to indenture of March 30, 1875, and that the defendant might be act as his substitute in that respect. Letters patent were taken out by ordered to execute such disentailing or other assurance as might be Lindsay in June, 1885, in England, and the object of the present petition necessary for the further or more perfectly assuring the said heredita: was to obtain the revocation of these. The power of attorney to Weeks
ments to the use of the plaintiff. It was argued for the plaintiff that the was revoked by that given to the petitioner in November, 1886. Neither Weeks nor Brewster were respondents to the petition.
case was distinguishable from Davis v. Tollemache (2 Jur. N. S. 1181),
because the covenant contained express words which contemplated the STIRLING, J., ordered the petition to stand over generally, with leave to execution of such a deed as was now required. On the other hand, it amend by making all the persons interested parties. The petitioner, who was argued on the defendant's part that in no case could a covenant for was merely acting under a power of attorney, could not present a petition further assurance be resorted to to enforce the conveyance of an interest in his own name. He was not the proper petitioner; all the persons not in existence, and not attempted to be conveyed by the deed coninterested must be brought before the court.-Counsel, Oswald and R. W. taining the covenant for further assurance. Wallace; _Hastings, Q.C., and Yate Lee. SOLICITORS, Edmund Kimber ; Neish & Howell.
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, R. BETHELL'S ESTATE-BETHELL v. BETHELL-Stirling, J. and the question was whether it was such a deed as was pointed at by the STATUTE OF LIMITATIONS-CHEQUE.
covenant, or, in other words, whether the plaintiff was reasonable in
asking the defendant to execute such a deed. The defendant argued One of the points argued in this case was as to whether the Statute of that, looking at the whole document containing the covenant, such a deed Limitations barred the claim of a creditor against an estate in course as was now asked for was not pointed at by the covenant. He had come to of administration by the court under the following circumstances :- In the conclusion that it was the very thing in the contemplation of the or about March, 1878, C. Bethell gave A. J. Padgon an undated cheque for parties. At that time the property had been the subject of several dealings. £100 in settlement of certain simple contract debts, on the understanding M. Small was the tenant in tail, but not in possession, and Martin Small, that it should be dated and presented for payment by the latter, upon the father, and M. L. Small, the tenant in toil in remainder, had agreed in the creditor receiving a telegram as to the success of a negotiation for a April, 1874, with this very man, the present plaintiff, to sell'to him out and loan which C. Bethell was then engaged about, the reason for this out for £3,000. M. Small declined to execute any deed, though deeds being that U. Bethell had not, at the time, sulficient money at the bank to were prepared in which he was named as a parts. It was evident that Mr. meet the amount. This telegram was never sent, but, apparently in Bankes, thinking he might get the estate, paid off the mortgages February, 1878, Bethell wrote to Padgon :-". I at once put off the and got the estate clear of incumbrances, and acquired the concern till things cool down.
I will let you have some [money] base fee. Of course, it was not satisfactory estatē to pur. the moment it is safe to do it. C. Bethell died in July, 1884. An order chase, and could not was made in October, 1885, for the administration of his estate, with an There was no actual recital in the deed of 1875 to the effect that they had
be conveyed to trustees of any settlement, inquiry as to debts.
agreed to sell the fee and, having regard to Davis v. Tollemache (2, Jur. STIRLING, J., said that the most favourable way in which the case could N. 8. 1181), it might be going too far to say that it was a contract to sell the be put for the claimant was that the cheque was sent to him, and fee. However, M. L. Small and W. P. Ř. Small conveyed, according to accepted by him, on an arrangement that he would wait a reasonable time their estates and interest and passed a base fee, that was all they could before presenting the cheque that the loan then in contemplation might do then. M. Small was then still living, and they entered into this be negotiated and the drawer be in a position to meet the cheque. But covenant :-[His lordship read the covenantaj That covenant went beyond the moment the above letter was received, the claimant became released the ordinary form. What could be their purpose in putting in the extra from his obligation to wait, and a right of action arose. The time for the words, perhaps they were conscience-stricken that Barnes had lost the statute to run from was the time when the right of action arose, and the estate he had contracted to purchase ; but what it was they certainly did six years having elapsed before the order for administration, with the covenant to do was to execute a disentailing assurance, and it must have inquiry as to debts, was made, the claim was barred. As to the cheque an enlarging deed. That was tho construction according to honesty and 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
That case was on the construction of a covenant for further assurance, and must be dismissed, with costs.-COUNSEL, W. F. Hamilton ; H. Kisch ; counsel for the defendant had to argue this to be such a case. The covenant Sutton. SOLICITORS, Alexander Pope; A. R. Oldman.
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 BANKES v. SMALL-Kekewich, J., 11th January.
covenant in such wide terms was not sufficient to enable the covenantee Covenant for further Assurance-Specific Performance Or Covenant to construe were smaller in its scope he might have had to follow that cainte
to claim execution of a disentailing deed. If this covenant which he had To EXECUTE DISENTAILING Deed-Base Fee-Deed TO ENLARGE Base FEE INTO A FEE SIMPLE.
tiff was entitled to have a disentailing assurance executed by the defendant This was an action to enforce specific performance of a covenant for
and there could be no question he reasonably required him to execute it: question whether the court would order a tenant'in tail in remainder Wheexecute it, the nath Section on the supreme Court of Judicature Act, elson
The order would have to be very precise, and must be for the execution of under auch a covenant, an deed conveying the fee simples erhen the life appointed by the court. Coupliga Baber, 2.C., and T. Bawlingen had acquired a base fee, and had conveyed it to a purchaser, to execute, | (47 & 48 Vict. c. 61), could be applied and the deed executed by a persona tenancy had determined. By the will of one w. Small a farm in Farmington, Q.O., and Russell Roberts. SOLICITORS, Lovell, Son, g Pilfeld, Dorsetshire, called Boyts, was, at the date of the contract next mentioned, for Rawlins f Rawlins ; R. Chapman.