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B. and C. For this reason it was that if A., a lessor, had, by mortgage, parted with his legal estate, the covenants entered into by B., the lessee, did not bind C., his assign. Thus privity of estate may be taken to include both privities or one only. Now for covenants to run with the land at law, there have been till recently two requisites; they must relate to the land, and there must be at least privity of estate between successive assigns of each party, if not also between the original parties themselves.

But on this subject the books are full of doubts. Lord St. Leonards, in his Vendors and Purchasers (chapter 15, section 1, 14th edition), joins issue on several important points with the opinions of the Real Property Commissioners as embodied in their Third Report; and the question whether the burden of a covenant, not being a covenant in a lease, can ever run with the land at law has been a matter of keen discussion and of conflicting decisions. Some of the controversies which were too grave for argument to settle have been decided by the Legislature, and in particular the Conveyancing Act has robbed "privity of estate" of much of its potency. But more serious inroads have been made by equity, and nearly all the recent cases have depended on the doctrine of notice. When a contract has been entered into with regard to land, and a man takes that land with knowledge of the contract, then he will be restrained in equity from doing anything in violation of it. This being so, it is often superfluous to inquire if the covenant runs with the land at law; equity, which looks at the conscience of each successive owner, is careless as to whether the subtleties of privity of estate have been duly satisfied. Nevertheless, the cases are numerous in which a knowledge of the common law and the statute law is essential, and it is proposed in this and following articles to attempt a systematic view of the whole subject.

In the first place, it is necessary to distinguish covenants in leases from all others. The peculiar relation between the reversioner and the occupier renders it necessary to take them by themselves, and it has been emphatically laid down that they are governed by considerations of their own. Accordingly we shall treat of these first.

I. Covenants between lessor and lessee.-The peculiarity here lies in the fact that each party has an estate in the same land, and the covenants are entered into for the purpose of governing their respective interests in regard to it. The estate of the lessor is his reversion; the estate of the lessee is his interest under the lease; but the law here, as elsewhere, fastens on the tangible nature of the estate which involves actual possession, and while the covenants of the lessor are said to run with the reversion, the covenants of the lessee are said to run with the land. If, however, we remember that it is not with the land as such, but with a particular leasehold interest in it, that they run, the matter will become much clearer.

We must distinguish now the covenants entered into by the lessee from those of the lessor, and in each case we must trace the burden or obligation and the benefit of the covenant, inquiring whether they run with either interest into the hands of successive owners of it.

(a.) Burden of covenants by lessee.-The burden of the covenant is here, of course, upon the lessee. Originally binding on him personally, we have to consider when it will bind also those to whom he assigns his interest. This depends upon various subtleties introduced, or at least defined, by Spencer's case (1583, 1 Sm. L. C. 68), and we have to consider both the relation of the covenant to the land and its form. As regards the former, it may concern something already in existence on the land, or something only contemplated to be made or done, or it may be collateral-that is, it may not concern the land at all. As regards its form, it may be entered into by the lessee for himself and his representatives only, real and personal, or it may purport expressly to bind the assigns. The rules in each of these cases are briefly as follows:

(i.) When the covenant relates to a thing in esse, it is independent of the form; that is, it binds the assigns whether named or not.

(ii.) When it relates to a thing in futuro, it binds the assigns only when they are named. (iii.) When it is collateral, it never binds the assigns-i.e., in no way can it be made to run with the land. The reasons given by Lord Coke for these rules are not very

clear, and they led to much doubt amongst the judges in the case of Minshull v. Oakes (1858, 2 H. & N. 793). The covenant does not run as to a thing in futuro, he says, because the law cannot annex it to a thing not in existence; hence, it can only be annexed by the intention of the parties exhibited in the naming of the assigns. But the former part of this reason depends upon a material view of the relation of the covenant to the thing which will not bear examination, for the law can enforce the agreement against the assign if it so chooses, whatever be the nature of the thing to which it relates; and the latter is really meaningless, for it is clear one man cannot bind another in a contract by merely naming him. A better reason is given for the second rule when it is remarked that the assign takes the benefit of the lease and so should bear its burden. But this, as was seen in Minshull v. Oakes, proves too much; for it applies equally whether the assigns are or are not named in the covenant. In Smith's Leading Cases it is suggested that when the thing is in futuro the assign only gets the benefit of it at his own expense, and so, some special reason being wanted for binding him in this case, it is found in the use of the word assigns. But this is clearly only a good reason after the rule has been established, and when it has become the custom for intending assigns to peruse the original lease; a reason for the continuance of the rule, not for its establishment. At the present day an assign who finds himself mentioned knows that he is to be bound, and it is this knowledge which really makes him a party to the contract. The principle is, therefore, that an assign is bound as of course if the thing to which the covenant relates is already in existence for his benefit; but if he has himself to incur the cost of calling it into existence, then he is only bound because the use of the word assigns makes him aware of the obligation he is incurring.

But, however well established the distinction may be, and it has been as firmly settled since Minshull v. Oakes as it was before, its justification is not easy. The following is the opinion the Real Property Commissioners passed upon it :

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:

It appears to us that these distinctions are little else than artificial. They lead to subtleties, and, in our opinion, may be usefully abolished; and, with reference to leases and all covenants entered into by the lessees, we think it should be enacted that all such covenants, of whatever nature and for whatever purpose, unless an intention to the contrary be expressed, or is to be inferred from the instrument, should be binding on every assignee of the term" (Third Report, p. 46).

This recommendation, however, has never been carried into effect, and the rule of the common law, as settled by Spencer's case, still remains for the mystification of the uninitiated. Its application, too, is by no means easy, and it is only by a careful comparison of the cases that we can decide whether a particular covenant relates to a thing in esse or a thing in futuro, or whether it does not concern the land at all, but is merely collateral. A good example of this is afforded by Williams v. Earle (1868, 3 Q. B. 739), where, in considering whether a covenant not to assign ran with the land, it was thought necessary to emphasize the fact that assigns were mentioned, although it seems clear that this did not refer to anything on the land not yet in existence, but to be made at the lessee's expense (see, too, West v. Dobb, 4 Q. B. 637 n. (1) ).

But, after it has been settled that the covenant is capable of running, we still have to satisfy the requirement of privity of estate. It will only bind those who take the very estate of the original lessee. Another man may enter and take possession with the assent of the lessee, but till he has taken an assignment of the lease he is not bound. Thus, in Moore v. Greg (1848, 2 Ph. 717), M. leased to T. for twenty-one years, and T. deposited the lease with G. by way of equitable mortgage. Afterwards G. took possession. Here Lord Cottenham held that G. was not liable on the covenants. The mere possession went for nothing unless under a legal title. The court would not force a mere depositary of the lease to take a legal assignment, and so render himself liable on the covenants, and till then there was no privity by contract or otherwise. The same principle was enforced in Cox v. Bishop (1857, 8 De G. M. & G. 815). In this case the lessee had covenanted to work mines. He agreed to assign to B., who entered into possession, and afterwards ceased to work. It was held that, as neither possession nor an equitable assignment gives any legal right, so there was no reason for fixing the burden of

the covenants on B. An assignment of an agreement for a lease
creates no privity of contract between the lessor and the assignee,
and the equitable assignment of a lease has no greater effect. The
covenants could only run where there was privity of estate.
West v. Dobb (1869, 4 Q. B. 634) also was decided on the ground
that there had never been any actual assignment of the term.
Thus far we have treated of the matter as it stands at law;
but, as we have already remarked, equity introduces different con-
siderations, and these apply to the covenants in a lease. The doc-
trine of notice is quite independent of privity of estate. This
has been chiefly useful when a lessor has wished to restrain a sub-
lessee from violating the covenants in the original lease. Of
course the sub-lessee does not take the estate of the first lessee,
and hence, as there is no privity of estate, the covenants do not
bind him at law. But, if he has notice of them, equity will re-
strain him from violating them. It is not necessary to inquire here
into the nature of notice and what amounts to constructive notice.
The latter point was considered in Fielden v. Slater (1869, 7 Eq.
523). But it was well settled in Parker v. Whyte (1863, 1 H. &
M. 167, 32 L. J. Ch. 520) that a sub-lessee is bound to inquire
into his lessor's title and has notice of covenants contained in his
lease. In Clement v. Welles (1865, 1 Eq. 200) a distinction was
taken, on the ground that the covenant was first contained in a
mesne assignment, and not in the original lease from the freeholder.
But it was held, by Romilly, M.R., that this circumstance made no
difference, and certainly not where, as in the case before him, the
sub-lessee had constructive notice.

CONCERNING SEARCHES.

formed, notwithstanding that general liberty to apply is reserved (Re Mansel, Rhodes v. Jenkins, 33 W. R. 727), the trustees can act without leave of the court.

Conveyances by mortgagees. It will be remembered that a mortgagee in fee has a legal interest which at law can be taken under an elegit, or by process at the suit of the Crown; and that a registered judgment against a mortgagee gave a charge under 1 & 2 Vict. c. 110, s. 13, on his beneficial interest (Harris v. Davison, 15 Sim. 128; Younghusband v. Gisborne, 1 De G. & Sm. 209; Russell v. McCulloch, 1 K. & J. 313). It followed that it was necessary to search for judgments against a mortgagee or a person entitled to any pecuniary charge on land on any dealing with his beneficial interest. In order to obviate this inconvenience it was provided (18 & 19 Vict. c. 15, s. 11) that hereditaments that have become vested in a purchaser or mortgagee for value shall not be taken in execution on a judgment against a mortgagee paid off at or before the conveyance, or in execution at the suit of the Crown against a prior mortgagee who was a debtor or accountant to the Crown and was paid off at or before conveyance: see this section discussed Dart. V. & P. c. xi., s. 2.

The practical result is that, where a mortgagee sells for more than the amount of his debt, or, apparently, even if the sale realizes part only of his debt (see Dart. loc. cit.), or concurs in a sale by the mortgagor and is to be paid off out of the purchase-money, no searches for judgments, executions, Crown debts, or Crown executions against him is necessary. Searches, however, for lis pendens ought to be made against him; and, if he is not fully paid off, searches for judgments and Crown debts, where necessary, and for executions, both at the suit of a subject and the Crown, ought in strictness to be made. It is said-Dart V. and P. c. xi., s. 2-that "doubts may be suggested whether 18 & 19 Vict. c. 15, s. 11, provides for the simple case of paying off a mortgage without reference to a sale or e-mortgage, or for the case of a transfer where the mortgage is not

able even upon a sale; or for the case of judgments against a of the land, although the purchase-money is received by the first puisne mortgagee, whose concurrence is required to a sale of part incumbrancer; or for the case of a mortgagee releasing part of the land in consideration of a substituted security being given for the debt, or in reliance on the sufficiency of his remaining security." It is apprehended that these doubts are not felt by most practitioners to be of weight, and in every case of a conveyance by a mortgagee searches for lis pendens alone are usually made against him (see Wolstenholme and Turner Conv. Acts, p. 141). This practice may possibly be supported by the following considerations:In every case in which a mortgagee conveys part of the land comprised in his security, the transaction amounts to his being paid off and giving a fresh loan on the land retained by him: if he transfers the mortgage debt so as to keep it alive, he is really paid off, so that in each case the transaction appears to fall within the meaning of the Act.

(XXII.) WHAT SEARCHES ARE USUALLY MADE. SEARCHES AS AFFECTED BY THE INTEREST OF THE VENDOR. (2.) Purchaser paying purchase-money but not taking conveyance.-paid off, but the debt is assigned and kept on foot, as is often desirIn favour of a purchaser or mortgagee whose money is paid, or of a person who has contracted to purchase (ante, p. 4), the court will not allow a subsequent judgment creditor of the vendor or mortgagor to touch the legal estate: Finch v. Winchelsea (1 P. W. 278); Burgh v. Frances (3 Swans. 536n); the reason apparently being that the judgment creditor has no specific lien on the land: Averall v. Wade (Ll. & Goo., at p. 262): see ante, p. 73. Trustees for sale.-Searches for improvement charges must be made against the tenant for life. If his consent to the sale is not necessary, no other searches reed be made against him, but if his consent is necessary, the same searches, except for judgments, must be made against him as if he was owner in fee. Searches for lis pendens, and if the property is situated in Middlesex or Yorkshire, searches in the county registry, must be made against the trustees. It should be remembered that, if the court has authorized the tenant for life to exercise the powers of sale conferred by section 63 of the Settled Land Act, 1882, by an order under section 7 of the Act of 1884, which is in force only while registered as a lis pendens against the trustees, no sale can be made by the trustees without the consent of the tenant for life (see section 56 of the Act of 1882), and in this case the same searches should be made against him as if his consent to the sale was required by the

settlement.

Trustees having a power of sale.-In this case, if there is a tenant for life, his consent is necessary to the sale (see the Settled Land Act, 1882, s. 56), and therefore the same searches ought to be made against him as if he was owner in fee: ante, p. 198. On a sale by the trustees before 1883, if the consent of the tenant for life was not required, no searches had to be made against him, except for improvement charges; if his consent was required, the same searches had to be made against him as if he was owner in fee. In all cases searches must be made against the trustees for lis pendens, and, if the property is situated in Middlesex or Yorkshire, in the county register.

Trustees-Lis pendens.-It should, perhaps, be observed that, although the commencement of an action to administer the trusts of a settlement prevents trustees from exercising a trust or power of sale without the leave of the court, even if they contracted to to sell before the commencement of the action (Turner v. Turner, 33 Beav. 414); still, if the action is dismissed (Drayson v. Pocock, 4 Sim. 283), or if all the objects of the action have been per

Where the mortgagor concurs in a sale by the mortgagee as a conveying party, all the same searches should be made as if he sale no searches need be made against the mortgagor during the was the vendor. When the mortgagee sells under his power of time after the date of the mortgage deed, except for improvement. charges, which, generally speaking, take priority of mortgages in

existence at the time of their creation.

It appears advisable, however, to inquire whether any writ or which either the land or the mortgage debt can have been actually process of execution has been issued against the mortgagee under seized before completion.

MORTGAGES.

Searches on a mortgage will be same as those on a purchase, with the possible exception of those for improvement charges, &c., if the security is ample.

On the transfer of a mortgage, searches for lis pendens must be made against the mortgagee, and if thought necessary for bankruptcies, and if the mortgagor is a party the same searches must be made against him as on a mortgage by him.

It should, perhaps, be noticed that a mortgagee can safely reconvey to the mortgagor on being paid off without making any searches against him except for bankruptcies where required. The mortgagor must, however, search for lis pendens against the mortgagee.

ON SEARCHES AT THE CENTRAL OFFICE.

The searches usually made at the central office-namely, for judgments, lis pendens, Crown debts, executions, and annuitiesare confined to four books. One book contains judgments, revivals, decrees, orders, rules, and lis pendens; another Crown debts and accountantships to the Crown; another executions; and another annuities and rent-charges. Each book contains entries under the surname of the debtor, stating also his Christian name, usual or last-known place of abode, title, trade or profession, and the further particulars contained in the subjoined table:

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The Conveyancing Act, 1882 (45 & 46 Vict. c. 39), s. 2, authorizes official searches to be made in the central office for entries of "judgments, deeds, or other matters or documents whereof entries are required or allowed to be made in that office by any Act described in Part I. of the 1st schedule to the Conveyancing Act, 1881, or by any other Act." Rules of the Supreme Court for the purpose of putting this Act into operation were made in December,

1882.

Official searches are made in pursuance of a requisition by the person requiring the search, accompanied by a declaration in the prescribed form as to the purposes of the search; a certificate of search is filed in the office, and an office copy is delivered to the person requiring the same.

The principal subject-matters for which official searches can be made are (1) deeds and documents enrolled in the Enrolment Office within two years of the time of search: see R. S. C., 1883, ord. LXI. r. 13. (2) Bills of sale. (3) Certificates of acknowledgments of deeds by married women, judgments, lis pendens, &c. (4) Crown debts and accountantships. (5) Executions. (6) Annuities and rent-charges.

Provision is made by the Rules of December, 1882, for making a supplemental search in any name already searched against to a date not more than one calendar month subsequent to the date of the certificate, and for indorsing the result on the original certificate and any office copy thereof.

REVIEWS.

BANKRUPTCY.

THE BANKRUPTCY ACT, 1883. By WILLIAM HAZLITT, Senior Registrar in Bankruptcy, and RICHARD RINGWOOD, Barrister-atlaw. SECOND EDITION. Edited by RICHARD RINGWOOD. Stevens & Haynes.

This little book will be found more useful than some more pretentious works. It does not pretend to be a complete treatise on the law of bankruptcy, but appears to be intended as a handy book of reference in court. We have taken some pains to verify the statement in the preface that every decision on the Bankruptcy Act, 1883, has been inserted, and we find that it is substantially correct, the latest case cited being Re Underhill (W. N., 1886, Nov. 27). The book contains the Bankruptcy Act, 1883, and the Bankruptcy Rules of 1886 at length, with notes containing the appropriate cases; a selection from the County Court Rules, 1886; judicial orders and regulations under the Bankruptcy Act, 1883; Board of Trade orders and forms under the same Act; scale of solicitors' costs; the order as to fees and percentages under the Bankruptcy Act, 1883; the Debtors' Act, 1869, with notes; and the Bills of Sale Acts, 1878,

1882.

CORRESPONDENCE.

THE REMUNERATION ORDER.

To the Editor of the Solicitors' Journal.] Sir,-In perusing the recent decisions on the question of solicitors' remuneration for preparing leases and agreements, I have been much struck with the fact that, under the scale, solicitors may be required to carry on the business of their clients at a decided loss, without including the ordinary office and establishment expenses. I am sorry to perceive that her Majesty's judges, in the cases referred to, expressed no regret that the effect of the decisions would be to involve the unfortunate solicitor in almost certain loss.

Probably it may be thought that the scale in other cases so liberally remunerates the solicitor that he can afford to transact a large amount of business at a loss to himself. But this is not the case. Even in my somewhat limited experience it too often happens that the solicitor is practically unable to charge his client with the full scale costs, not because the scale is too high, but because the business transacted has been of a simple and brief character. A client looks at the amount of business actually done by his solicitor, and does not like to pay a larger remuneration, though warranted by the scale, than the nature of the business, irrespective of pecuniary value, really justified. Hence it comes about that the solicitor does not derive the benefit possibly contemplated by the judges.

Is a solicitor, directly a client enters his office, to thrust into his hands a notice that his charges will be made under schedule 2 of the Remuneration Order, before the solicitor has the least notion of

what the business is likely to involve? In these days agreements for leases and leases are very often of a complicated character, and be foreseen. In most cases the scale does not pay, unless there is a involve long negotiations and much trouble, which are impossible to large premium paid by the lessee, but even then the lessee's solicitor cannot claim any extra charge.

I have not long entered the profession, but I shall have to gain my livelihood by it, and I shall not be in a position to offend any clients with whose business I may be favoured, nor shall I be able to work for nothing. I have always thought that the Council of the Incorporated Law Society did their best to protect the interests of the profession, and I shall watch with interest to see whether they will go to sleep on this question, or whether they will, in a wise and vigorous manner, address themselves to provide a remedy for the grievance caused by the decisions referred to, possibly right in point of law, but absolutely wrong as a matter of morality and general practice. The council have undoubted power and influence, and I confidently hope that, supported by the countenance which your valuable journal has ever given to the promotion of the just interests of the profession, they will not be found wanting. ventured to express, notwithstanding that I am, as I sign myself, I trust that you will permit the insertion of the views I have

Jan. 25.

AN ARTICLED CLERK.

FORM OF MORTGAGE BILLS OF SALE.

[To the Editor of the Solicitors' Journal.]

Sir,-In your excellent series of articles" On the Form of Mortgage Bills of Sale," which, if carefully followed, should prove of much use to the profession, owing to the multiplicity of decisions thereon, there are a few slight inaccuracies and omissions which I happen to have noticed.

Under “maintenance of the security," at p. 196, it is stated that a covenant to deliver to the grantee the receipts for the rates and taxes of the place where the goods were, vitiates_the_instrument. It should have been said that, in the opinion of Fry, L.J., in Davis v. Burton, as reported in 32 W. R., ut p. 424, the grantee must not be enabled, by the bill of sale, to seize the goods upon the failure to comply with a verbal demand for the production of such receipts, as the Bills of Sale Act, 1882, provides for such a demand being in writing. Again, Re Morritt does, I think, decide that a power of sale may be safely inserted in bills of sale; for Cave, J., says, "The Act prescribes no particular form of the power of sale. That is left to the parties." It might have been added that, in the opinion of Bacon, V.C., in Ex parte Pearce (32 W. R., at p. 139, 25 Ch. D. 657), a power to enter on non-production of receipts for insurance premiums also renders a bill of sale impeachable, and, further, that the provision that the grantee may pay rents, rates, taxes, and other outgoings, and, if the same are not repaid, seize the goods, vitiates the bill of sale: Bianchi v. Offord (17 Q. B. D., at p. 487).

Receiver v. Tailby (35 W. R. 91, 17 Q. B. D. 88) must not be overWhen book debts are part of the subject of the bill of sale, Official looked, nor, when setting out the consideration on the substitution of a new for an old bill of sale, Ex parte Nelson, Re Hockaday (ante, p. A. R. W. Jan. 26.

***Pressure on our space compels us to hold over two letters 203). and other matter.

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This case, which was argued on November 9, raised an important question as to the right of sailors and passengers on board a ship injured by the negligent navigation of another ship, but herself guilty of contributory negligence, to recover damages from the owners of the other ship. It was an appeal from the decision of Butt, J., upon a special case. There were three actions brought under Lord Campbell's Act, by the personal representatives of John Armstrong, Thomas Owen, and Moses Toeg respectively against the owners of the steamship Bernina to recover damages sustained by the deaths by drowning of these persons in consequence of a collision between the steamship Bernina and the steamship Bushire. Both vessels were to blame for the collision. At the time the collision took place John Armstrong was one of the crew of The Bushire as first engineer, but was off duty and had nothing to do with the navigation of that ship. Thomas Owen was also one of the crew as second officer and was directly responsible for the negligent navigation of The Bushire. Moses Toeg was a passenger on board The Bushire, and had nothing to do with her navigation. The questions for the opinion of the court were (1) whether the defendants, in each of the three cases, were responsible for the damage sustained by the respective plaintiffs; (2) whether, if the defendants were liable in either or all of the cases, they were liable for the whole of the damages sustained or for a moiety only. Butt, J., considered that he was bound by the authority of Thorogood v. Bryan (8 C. B. 115), in which the principle was laid down that a passenger is so far identified with those in charge of the vessel or carriage in which he is that he is precluded by contributory negligence on their part from maintaining an action for injuries received by him from a collision with another carriage or vessel. He therefore held that the defendants were not liable in any of the three cases, and he was also of opinion that the cases did not come within the Judicature Act, 1873, s. 25, subsection 9. From his decision the plaintiffs appealed, and it was contended on their behalf that the case of Thorogood v. Bryan could not be upheld, THE COURT (Lord ESHER, M.R., LINDLEY and LOPES, L.JJ.) now delivered judgment, overruling, the decision in Thorogood v. Bryan. Lord ESHER, M. R., after most elaborately reviewing the English and American decisions on the point, said that he could not see any principle on which Thorogood v. Bryan could be supported. The proposition maintained in it was essentially unjust and inconsistent with the recognized propositions of law. The question now came for the first time before the English Court of Appeal, although from the time of its publication it had been constantly criticized. The preponderance of judicial and professional opinion (with the exception of the weighty opinion of Lord Bramwell), both in England and America, was against the case, and it must therefore be now overruled. The personal representatives of Armstrong and Toeg, who were in no way responsible for the negligent navigation of The Bushire, would therefore be entitled to judgment, but in the case of the representatives of Owen, who was himself in part directly responsible for the negligent navigation, the appeal must be dismissed. His lordship agreed with Butt, J., that actions brought under Lord Campbell's Act were not admiralty actions at all, and were not touched by the Judicature Act, 1873, s. 25, subsection 9. LINDLEY and LOPES, L.JJ., concurred with the judgment of Lord Esher, M R., but said that they considered the case so important in overruling a decision of such long standing as Thorogood v. Bryan that they had each written separate judgments, which they read, and which were to the same effect as that of the Master of the Rolls.-COUNSEL, Bucknill, Q.C., and Nelson; Sir Walter Phillimore, Q.C., and J. G. Barnes. SOLICITORS, Lowless & Co.; Pritchard & Sons.

WATKINS v. EVANS-C. A. No. 1, 26th January. BILL OF SALE-VALIDITY-POWER OF SALE-MORTGAGE-MONEY PAYABLE IN ONE INSTALMENT-CONVEYANCING ACT, 1881, ss. 19, 20-BILLS OF SALE ACT, 1882, ss. 7, 9, 13-FORM IN SCHEDULE.

The questions in this case were whether a bill of sale, given as security for money, was valid, and whether, if it was valid, the grantee had power to sell the chattels comprised in it. The bill of sale was given on the 13th of March, 1886, and it was in the form given in the schedule to the Act of 1882, with the addition of a covenant by the grantor to insure the chattels against fire, and to produce to the grantee the receipts for the premiums. The grantor covenanted to pay the principal sum secured, together with the interest then due, on the 13th of April, 1886, and also so long after that day as any principal money should remain due to pay interest thereon half-yearly on the 13th of October and the 13th of April in every year. Neither a power to seize nor a power to sell the goods was expressly given. The principal and interest due on the 13th of April, 1886, were not paid, and on the 9th of June the grantee seized the goods and threatened to sell them. On the 23rd of June the grantor issued the writ in the action, claiming an injunction to restrain the grantee from selling the goods, and on the same day an interim injunction was granted by Day, J., which was on the 29th of June extended to the trial of the action. The Divisional Court (Field and Wills, JJ.) affirmed the order. The appeal was heard in August, 1886, but judgment was not delivered till to-day.

THE COURT OF APPEAL (Lord ESHER, M.R., and BowEN and FRY, L.JJ.) reversed the decision. It was contended that the bill of sale was invalid, because it provided for the payment of the principal of the mortgage debt in one sum, whereas the statutory form provides for the payment of the mortgage debt in "equal instalments." It was also argued that the grantee had not any power of sale. FRY, L.J. (who delivered the judgment of himself and Bowen, L.J.) said that the covenant to insure and to produce the receipts for premiums did not go beyond the liberty reserved by the statutory form. And, as to the stipulation for the payment of the entire principal in one sum, the statutory form contained in brackets the words [or whatever else may be the stipulated times or time of payment]. The words "time of payment contrasted with the plural times," shewed that a single payment was admissible, and that there was no obligation to divide the repayment into any number of equal portions. No objection could, therefore, be sustained, on this ground, to the validity of the bill of sale. As to the power of sale, the decision of the majority of the Court of Appeal in Re Morritt (ante, p. 143) had laid down this rule, that the power of sale given by the Conveyancing Act, 1881, applies to a bill of sale in the statutory form, unless, under the power to add clauses for the maintenance of the security, some other provision was introduced which shewed that the power of sale given by the Act of 1881 was unnecessary, and that a power to seize, with the power of sale which thereupon arose, was such a provision, and, therefore, repelled the introduction of the statutory power of sale. In the present case there was no express power to seize, and no other provision which shewed that the statutory power of sale would be unnecessary; consequently, the bill of sale, by force of the Act of 1881, carried with it a power of sale, but subject to the fetters imposed by section 20 of that Act and by section 13 of the Act of 1882. The interest which became due on the 13th of April had, on the 23rd of June, been in arrear and unpaid for more than two months, and therefore the power of sale was then set free by section 20 of the Act of 1881. And more than five clear days had on the 23rd of June elapsed since the seizure of the goods, and, consequently, section 13 of the Act of 1882 permitted their sale. At the time when the injunction was granted there was a valid power of sale capable of being exercised, and the injunction could not be sustained. Lord ESHER, M.R., agreed in the result. But he retained the opinion which he and Lopes, L.J., had expressed in Re Morritt, that the Act of 1881 had no application to bills of sale under the Act of 1882.-Counsel, Edward Pollock; English Harrison. SOLICITORS, F. Romer; D. Jones.

Re WHORWOOD, OGLE v. LORD SHERBORNE-C. A. No. 2,
20th January.

OPPERT. BEAUMONT-C. A. No. 1, 26th January.
PRACTICE-POWER OF MASTER TO STAY EXECUTION PENDING AN APPEAL-WILL-CONSTRUCTION-LEGACY-LAPSE
R. S. C., 1883, LVIII., 16, 17.

This was an appeal by the defendants from the decision of a divisional court (Denman and Hawkins, JJ.), affirming the judge at chambers. The point raised by the appellants was whether, under ord. 58, r. 16, a master has power to stay execution pending an appeal, and it was contended that, reading rules 16 and 17 together, he has no power to stay execution unless an application has first been made to the court or judge who tried the case, since a master is not "the court appealed from or any judge thereof" within the meaning of rule 16.

THE COURT (BOWEN and FRY, L.JJ), without calling on the respondents, dismissed the appeal. They considered that very great inconvenience would result from the construction sought to be put upon the rules. In the Queen's Bench Division courts were differently constituted almost daily to hear motions, and it would be most difficult to make an application to a court consisting of the same judges who had heard the case in the first instance. Matters would be still further complicated by the fact that the judges of that division are frequently on circuit or sitting at the Old Bailey, and if it were necessary in every case to first make an application to the judge or court who had tried the case, for a stay of execution, the greatest confusion would result, and it would be practically impossible to enforce the rule.COUNSEL, R. V. Williams; Cock, Q C., and Scarlett. SOLICITORS, Harper & Batteock; Le Brasseur & Oakley.

TITLE.

- SPECIFIC GIFT TO PEER BY HIS

This was an appeal from a decision of North, J. (30 SOLICITORS' JOURNAL, 587), the question being whether a specific legacy to a peer, described simply by his title, had lapsed, by reason of the death, during the life of the testator, of the person who bore the title at the date of the will, or whether the gift was to be treated as made to the holder of the title for the time being. The will of the testator, made on the 8th of October, 1881, contained the following bequest:-"I bequeath to Lord Sherborne and his heirs my Oliver Cromwell cup, presented to our common ancestress, Dame Ursula Whorwood, for an heirloom." The Lord Sherborne who held the title at the date of the will died in the testator's lifetime, in March, 1883. The testator died in August, 1884, and by a codicil to his will dated July 6, 1883, he bequeathed "unto my faithful friend and servant Charles Rixom absolutely, all my silver and plated articles, jewellery, china, glass, books, pictures, prints, furniture, and household effects whatsoever, and all other the contents of my dwelling-house which may be in and about the same at the time of my decease, and which are not otherwise specifically disposed of by my will, except money, scrip, or any other documents relating to any other investments belonging to me, and which may be in and about my dwelling-house at the time of my death." There was evidence that the testator had no personal acquaintance with Lord Sherborne, and that his attention had been called to the announcement of his death in March,

1883. North, J., held that the cup passed under the gift in the codicil to Charles Rixom. On behalf of the appellant it was argued that there was a clear intention upon the face of the will that the cup should be preserved as an heirloom in the family, and that that intention could only be carried out by construing "Lord Sherborne" to mean the person who was Lord Sherborne at the date of the testator's death. Reliance was placed on Re Harris's Trusts (2 W. R. 689), in which Wood, V.C., held that a gift to "the eldest child of my sister" was a gift to the eldest child of the sister at the time of the testator's death, and not at the date of the will. THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed the decision.-COUNSEL, Cutler, Q.C.; Phipson Beale.. SOLICITORS, Aldridge & Co.; John Graham.

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In a partition action an order for inquiries and sale in certain events had been made, the property had been sold, and the chief clerk had certified the persons interested, of whom one had not been heard of for twelve years, and that service upon him had been dispensed with. It appeared that no attempt had been made to give notice of the proceedings to him by advertisement. It was now proposed to carry over his share to a separate account and distribute the rest of the estate. KAY, J., said that, under the Act, the court had no discretion. The order dispensing with service should have provided for advertisements. There would be no distribution for six months, and then only upon application to the judge personally, and advertisements must be issued forthwith in such form and number as should be settled by the chief clerk.-COUNSEL, Seward Brice, Q.C., and Manby; Methold. SOLICITORS, Boxall & Boxall, for Freeman, Gell, & Co., Brighton; Emmet, Son, & Stubbs.

WICKS v. WICKS-Chitty, J., 21st January. PRACTICE-ADMINISTRATION—ADDING PARTIES-INFANTS BORN AFTER ADMINISTRATION JUDGMENT-REFUSAL OF PLAINTIFFS TO ADD AS PARTIESAPPLICATION BY DEFENDANTS-R. S. C., 1883, XVII., 2, 4.

This was an ex parte application for an order under R. S. C., XVII., 4, for leave to add parties to an action. It appeared that the action was instituted by tenants for life under the will of a deceased testator against the executors and trustees of the will for administration of his estate. The usual administration judgment was made in 1881, and the chief clerk's certificate being made in 1886, the action had been set down on further consideration. After judgment, children being born who were interested under the will and necessary parties to the action, and various proceedings in the action having been taken subsequently to their births, application was made by the defendants to the plaintiffs, subsequently to the chief clerk's certificate, to add certain of the infants as parties, but this the plaintiffs declined to do. The defendants having presented a petition for an order of course under ord. 17, r. 4, for the continuance of the proceedings as between the plaintiffs and defendants and certain of the infants, an order to that effect was made by the registrar, the petition containing an allegation of the plaintiffs' neglect to apply. A similar petition having been presented by the defendants afterwards to another registrar with regard to the remaining infants, the registrar declined to make the order on the ground that such order could not be made of course on the petition by defendants after judgment in an action for account, even if the plaintiffs refused to apply for an order; but could be made only upon motion on notice to the plaintiffs, and because such an order would have the effect of giving to the defendants the conduct of the action. Peter v. Thomas Peter (32 W. R. 515, 26 Ch. D. 181), Birstall v. Fearon (24 Ch. D. 127), and Shepperd v. Hughes (21 W. R. 136) were referred to.

CHITTY, J., directed that upon the allegations in the petitions that the plaintiffs had refused to proceed, it should be referred to the registrar to make the usual order on both the petitions, with leave for the defendants to carry on the necessary proceedings, notwithstanding that they were accounting parties, and that the matter be referred to chambers if any difficulty should arise in carrying out the direction of the court.-COUNSEL, Broke Freeman. SOLICITORS, Haines & Clutton.

LAND, BUILDING, INVESTMENT, AND COTTAGE IMPROVE. MENT CO. v. MARTIN-North, J., 15th January. APPOINTMENT OF NEW TRUSTEE-VESTING ORDER-TRUSTEE OF WEAK MIND-JURISDICTION OF CHANCERY DIVISION-TRUSTEE ACT, 1850, s. 34. In this case a question arose as to the jurisdiction of the Chancery Division, under section 34 of the Trustee Act, 1850, to make a vesting order on appointing a new trustee. Section 34 provides that "it shall be lawful for the Court of Chancery, upon making any order for appointing a new trustee or new trustees, either by the same or by any subsequent order, to direct that any lands subject to the trust shall vest in the person or persons who, upon the appointment, shall be the trustee or trustees for such estate as the court shall direct." In the present case the plaintiff company had purchased an estate for the purpose of re-selling it in small lots. The estate was conveyed, not to the company, who paid the purchase-money, but to the defendant, who was their secretary, as a trustee for them, but no declaration of trust was executed by him. After some parts of the estate had been sold and conveyed to purchasers, the defendant became in a bad state of health, and incapable of attending to business, and the company petitioned under the Trustee Act for the

appointment of a new trustee in his place, and for a vesting order as to those parts of the estate which had not been sold and conveyed to purchasers. It was contended that there was an "implied trust" within the meaning of section 2 of the Act. There was evidence that the secretary was suffering from softening of the brain and general paralysis of the brain centres and loss of nerve power, and that he was, and always would be, unable to attend to or comprehend any business, but that he was not a lunatic or of unsound mind. North, J., felt a doubt as to his jurisdiction to make the appointment on petition, and suggested that the company had better bring an action against the secretary. The present action was accordingly brought by the company, as plaintiffs, against the secretary, as defendant, claiming a declaration that the defendant was a trustee for the company of all the land which had been conveyed to him, except the plots which had been sold and conveyed to purchasers; that he might be removed from being trustee and a new trustee appointed in his place, and an order made vesting the property in the new trustee.

relief claimed. He thought that the evidence as to the condition of the NORTH, J., declined to make a vesting order, but granted the other trustee's health was, in substance, the same as the evidence as to the condition of the trustee in Re Dewhirst's Trusts (33 Ch. D. 416), and in that case the Lords Justices appeared to have considered that the trustee was a person of unsound mind, and that a vesting order should be made in the lunacy jurisdiction. His lordship therefore thought that in the present case application ought to be made to the Court of Lunacy for a vesting order.-COUNSEL, S. Beddall; Micklem. SOLICITOR, F. J. Mann.

Re THE DARLINGTON FORGE CO.-North, J., 21st January. COMPANY RECTIFICATION OF REGISTER-SHARES ISSUED TO VENDORS AS PARTLY PAID-UP-OMISSION TO REGISTER CONTRACT- COMPANIES ACT, 1862, s. 35-COMPANIES ACT, 1867, s. 25.

This was an application on behalf of all the shareholders in this company to rectify the register of members, for the purpose of correcting an oversight which had been made on the formation of the company in not registering a contract previously to the issue of the shares, which were issued as partly paid in consideration of the assets of an old partnership being made over to the company. The company was formed in 1873 to take over the business of a then-existing firm. All the shares were issued to the partners or their immediate friends. No price was given for the goodwill of the business. The other assets were valued at a sum which amounted to £78 a share on the 770 shares into which the capital of the company was divided. The nominal value of the shares was fixed at £100 each, and 770 shares, with £78 per share paid up, were issued to the five partners in the old firm and three nominees, in proportion to the interest of the partners respectively in the old business, but no contract for the issue of the shares as partly paid up otherwise than in cash was registered, as required by section 25 of the Companies Act, 1867, nor was any such contract, in fact, entered into, and the result was that, in the event of a winding up of the company, the shares would have to be treated as wholly unpaid. The shareholders now moved to have the register of shareholders rectified by striking their names out, and that a contract might be registered and new shares issued to them."

But he

NORTH, J., said that the object of the motion could be obtained by a voluntary winding up and a reconstitution of the company. thought he should be able to accede to the application on two conditions. The existing debts of the company must be provided for-he did not mean actually paid; and the contract which it was proposed to register must be produced to him. The motion must stand over to allow these two things to be done, and he should probably then grant the application.-COUNSEL, Cozens-Hardy, Q.C., and E. Beaumont; Chadwyck-Healey. SOLICITORS, Munns & Longden.

TACON v. NATIONAL STANDARD LAND MORTGAGE CO.-Stirling, J., 22nd January.

R. S. C., 1883, XXVII., 11-ACTION FOR SPECIFIC PERFORMANCE NOT CLAIMING DECLARATION OF LIEN--DEFAULT-MOTION FOR JUDGMENT AS IN DEFAULT OF PLEADING.

In an action for specific performance the defendant delivered a statement of defence, but neglected to answer interrogatories. The defence was then struck out. The plaintiff moved for judgment, his statement of claim being for specific performance and ancillary relief, but not asking for a declaration of lien. It was urged on behalf of the plaintiff that he was entitled nevertheless to such a judgment as that in form 4, Seton on Decrees, 4th ed., vol. 2, pt. 1, p. 1330, which contains a declaration that the plaintiff is entitled to a lien on the hereditaments, with interest at £5 per cent.

STIRLING, J., held that, as the motion for judgment was to be treated as in default of pleading, the plaintiff was only entitled to such judgment as he claimed. This would not include a declaration that he was entitled to a lien on the property for his purchase-money and interest. There would only be the usual judgment for specific performance, with an inquiry as to damages.-COUNSEL, Edwin Ward; II. T. Eve. SOLICITORS, C. H. Moore; Saunders & Saunders.

BANKRUPTCY CASES.

Ex parte GIBSON, Re LAMB-C. A. No. 1, 21st January. BANKRUPTCY-ACT OF BANKRUPTCY-NOTICE OF SUSPENSION OF PAYMENT -BANKRUPTCY ACT, 1883, s. 4, SUB-SECTION 1 (H.).

The question in this case was whether a circular sent by a debtor to his creditors was an act of bankruptcy within sub-section 1 (h.) of section 4 of

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