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whether it would do harm to grant or to refuse the injunction. Now in
this case the plaintiff had taken upon himself to do that which the
defendant said was an infringement of his patent, and in respect of
which he had warned the plaintiff's customer that he intended to take
proceedings against the plaintiff. It seemed to him, therefore, that he
should be doing more harm to the defendant by granting the injunction
than to the plaintiff by refusing it. The balance of convenience, there-
fore, was in favour of his making no order on the motion, and for that reason
only, and without expressing any opinion upon the question whether
there had been any infringement of the defendant's patent. He refused
the injunction.-COUNSEL, Ince, Q.C., and Phipson Beale; Sir R. Webster,
A.G., Renshaw, Q.C., and Carpmael. SOLICITORS, Field, Roscoe, & Co., for
Barlow, Smith, & Pinsent, Birmingham; Wilson, Bristows, & Carpmael.

Re THE DUKE OF SOMERSET, THYNNE v. ST. MAUR-Chitty,
J., 28th January.
PRACTICE-MARRIED WOMAN-GUARDIAN AD LITEM OR NEXT FRIEND-
MARRIED WOMEN'S PROPERTY ACT, 1882, s. 1, SUB-SECTION 2.

In this case the question arose as to whether a married woman could act as guardian ad litem of an infant. It appeared that the registrar had refused to draw up an order made under such circumstances. It was submitted, however, that any disability to be guardian ad litem or next friend which existed under the old practice arose from a married woman's incapacity to be sued, which incapacity was, however, removed by the Married Women's Property Act, 1882, s. 1, sub-section 2, which enacts that a married woman shall be "capable of suing and being sued either in contract or tort or otherwise in all respects as if she were a feme sole." CHITTY, J., said that it was true that the old practice was based on the incompetence of a married woman to sue and be sued and be answerable in costs, but the Act of 1882 had not made a married woman for all purposes a feme sole. Section 1, sub-section 2, had only made a married woman capable of suing and being sued in matters relating to herself personally, but did not remove her personal incapacity to be a next friend or guardian ad litem. R. S. C., 1883, XVI., 16, expressly incorporated the old practice, and shewed that the framers of the rules had the Act of 1882 in view. There were many reasons why it might not be for the advantage of infants to be represented in legal proceedings by a married woman which his lordship would not discuss, as he decided the present question on the ground that her personal incapacity had not been removed. To grant the application would be a dangerous innovation, as a married woman would not be responsible for the costs of an improper action, or liable to pay those of an improper defence, or, at the most, she would only be liable to the extent of her separate estate, which would necessitate an inquiry into her separate estate, with all its attendant inconvenience. He should, therefore, make an order that the married woman be removed from her position as guardian ad litem, and that the matter be referred to chambers to appoint a new guardian.-COUNSEL, Latham, Q.C., and Badcock. SOLICITORS, Walters, Deverell, & Co; Crowders & Vizard.

Re CURREY, GIBSON v. WAY-Chitty, J., 1st February. CONVEYANCING ACT, 1881, s. 39-MARRIED WOMEN-RESTRAINT ON ANTICI

PATION.

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be used on the hearing of the motion (an affidavit to prove the service on
the defendant of the order which he had disobeyed) was not served with
the notice of motion. On Saturday, the 8th of January, a copy of the
affidavit was served on the defendant's solicitor. On the hearing of the
motion the defendant did not appear. Rule 4 of order 52 provides that
shall state in
for attachment
notice of motion
general terms the ground of the application; and when any such motion
is founded on evidence by affidavit, a copy of any affidavit intended to be
In Whitham v. Whitham
used shall be served with the notice of motion."
(29 SOLICITORS' JOURNAL, 707) and in Schirges v. Schirges (30 SOLICITORS'
JOURNAL, 403) Pearson, J., held that this rule does not apply to an
affidavit whieh is merely to give formal proof of the service of an order.
NORTH, J., declined to follow those decisions. He was unwilling to
order the attachment of a defendant who, in reliance on the irregularity,
might have abstained from appearing.-COUNSEL, Vernon R. Smith.
SOLICITORS, Dangerfield & Blythe.

Re ROLLASON, ROLLASON v. ROLLASON-North, J.,
January.

EXECUTION-PAWNBROKER-REDEEMABLE PLEDGE.

28th

The question in this case was whether the interest of a pawnbroker in goods pledged with him, before his title has become absolute by the expiration of the time fixed for the redemption of the pledge, is of such a nature that it can be seized by the sheriff under a fi. fa. subject to the right of the pledgor to redeem. There appeared to be no express authority on the point. The goods had been seized under an execution to enforce a judgment obtained in an action in the Chancery Division. Another creditor obtained a judgment, and the appointment of a receiver of the pawnbroker's business, in an action in the Queen's Bench Division. The appointment of the receiver was made subsequent to the seizure of the goods. The question was whether the title of the receiver was ousted by the prior title under the seizure.

NORTH, J., held that the pawnbroker's interest in the goods could be
seized under the execution, and that the execution was entitled to priority.
SOLICITORS,
-COUNSEL, Macaskie; H. Tindal Atkinson; M'Clymont.
Taylor, Hoare, & Co.; Pilcher & Vertue; Belfrage & Co.

January.

Re THE OUTLAY ASSURANCE ASSOCIATION-North, J., 22nd COMPANY-RESTORATION OF NAME TO REGISTER AFTER STRIKING OFF BY REGISTRAR-"CARRYING ON BUSINESS OR IN OPERATION"-VOLUNTARY. WINDING UP-COMPANIES ACT, 1880 (43 VICT. c. 19), s. 7.

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a

In this case a question arose as to the restoration to the register of joint stock companies of the name of a company, which had been struck off by the registrar under the provisions of section 7 of the Companies Act, 1880. Section 7 provides (1) that, where the registrar "has reasonable cause to believe that a company is not carrying on business or in operation, he shall send to the company by post a letter inquiring whether it is carrying on business or in operation"; (2) if the registrar does not, within one month, receive any answer, he shall, within fourteen days after the expiration of the month, send to the company a registered letter referring to the first letter, and stating that no answer has been In this case an application was made to the court, under section 39 of the received thereto, and "that, if an answer is not received to the second Conveyancing Act, 1881, for the purpose of obtaining an order binding letter within one month from the date thereof, a notice will be published the interests of certain married women who were tenants in common for in the Gazette with a view to striking the name of the company off the life of real property under the will of a deceased testator, which contained register"; (3) “if the registrar either receives an answer from the a declaration that gifts to married women should be for their separate company that it is not carrying on business or in operation, or does not, within one month after sending the second letter, receive any answer use without power of anticipation. It was stated that the property con sisted of houses, and that no valid leases could be granted by reason of thereto," he may publish in the Gazette and send to the company notice that at the expiration of three months from the date of that the restraint on anticipation imposed on the tenants for life, and it was notice the name of the company will, unless cause is shewn to the conasked that the property be partitioned and re-settled. CHITTY, J., said that section 39 did not inform the court as to what trary, be struck off the register, and the company will be dissolved"; "At the expiration of the time mentioned in the notice the registrar were the circumstances under which it should make an order overriding (4) a restraint on anticipation, save and except that it must appear that such may, unless cause to the contrary is previously shewn by such company, an order must be for the benefit of the married woman. Therefore, if it strike the name of such company off the register, and shall publish was simply asked that leave to convey should be given without any special notice thereof in the Gazette, and, on the publication in the Gazette of such last-mentioned notice, the company whose name is so struck off reason being assigned, the court could not make an order. Each case, therefore, required to be examined by itself. It appeared to him, although shall be dissolved; provided that the liability (if any) of every director, the question was not before him, that a married woman restrained from managing officer, and member of the company shall continue, and may anticipation could make a will passing the property, because the restraint be enforced as if the company had not been dissolved"; (5) "If any on anticipation could not operate after death. He should, in the present company or member thereof feels aggrieved by the name of such company case, make an order as being for the benefit of the property, on the ground having been struck off the register in pursuance of this section, the of the difficulty which otherwise existed in dealing with the property, company or member may apply to the superior court in which the comand the desirability of a partition. Moreover, a re-settlement would be pany is liable to be wound up, and such court, if satisfied that the made under which the life interests of the married women would be made company was, at the time of the striking off, carrying on business or in subject to a like restraint on anticipation as existed in the instrument operation, and that it is just so to do, may order the name of the comunder which they took the property. The scheme proposed being a pru-pany to be restored to the register, and thereupon the company shall be dent one, he should accede to the application.-COUNSEL, Spencer Butler; deemed to have continued in existence as if the name thereof_had never been struck off." In the present case the company had, in G. S. Barnes. SOLICITORS, Currey, Holland, & Currey. March, 1879, passed an extraordinary resolution to wind up voluntarily. There being no obligation under the Companies Acts to register an extraordinary resolution, the registrar had no notice of the winding up. After the commencement of the winding up the office of the company was removed from the registered office, but no notice of the change of office was sent to the registrar, as required by section 40 of the Companies Act, 1862. The liquidation continued till the year 1886, the liquidator not having been able to realize the assets. 1881 he commenced an action against the principal debtor to the company, but the action was not set down for trial till August, 1886. The defendants then agreed to pay what was due from them, but they discovered that the company had been dissolved by a notice in the Gazette on the 1st

Re LYSAGHT, BLYTHE v. BAUMGARTNER-North, J., 1st

February.

R. S. C., 1883, LII., 4-MOTION FOR ATTACHMENT-SERVICE OF COPY OF
AFFIDAVIT.

This was a motion by the plaintiff for leave to issue an attachment against the defendant for his disobedience to a previous order of the court. The notice of motion was dated the 5th of January, and was given for Tuesday, the 11th of January. On Friday, the 7th of January, it was served on the defendant's solicitor on the record, but a copy of an affidavit mentioned in the notice as intended to

In

of June, 1886, and its name struck off the register, and they refused to pay the debt unless the name was restored to the register. On inquiry it was found that the registrar had taken the proper proceedings under section 7, because no returns had been made to him by the company, as required by section 26 of the Companies Act, 1862, since October, 1878. The registrar had sent the required notices to the registered office of the company, but, by reason of the change of office, of which the registrar was ignorant, the liquidator had not received these notices. The liquidator, who was a member of the company, now petitioned for the restoration of the company's name to the register. NORTH, J., held that sub-section 5 of section 7 applied, though at the time of the striking off of the company's name, it was carrying on business only for the purpose of the winding up, and he made an order for the restoration of the name in the form No. 314 given at page 665 of Chadwyck-Healey's Company Law.-COUNSEL, Leigh Bernard; Ingle Joyce. SOLICITORS, J. Westcott; W. Murton.

COOKES v. COOKES-North, J., 29th January. SETTLED LAND-SALE BY TENANT FOR LIFE-EXERCISE OF OPTION AS TO PAYMENT OF PURCHASE-MONEY INTO COURT OR TO TRUSTEES-SETTLED LAND ACT, 1882, ss. 21, 22.

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In this case the question arose whether a tenant for life of settled land, who had sold the land, under the power conferred on him by the Settled Land Act, 1882, had exercised the option given to him by sub-section 1 of section 22 of the Act, as to the payment of the purchase-money either to the trustees of the settlement or into court. The suit was for the administration of the estate of the testator by whose will the land was settled. The will contained no power of sale, and no trustees were appointed by it who were trustees of the settlement for the purposes of the Act. With a view to a sale under the Act, trustees for those purposes were appointed by the court. The tenant for life entered into a contract for the sale of the land, and, there being some questions raised in the suit as to certain charges on the property, the purchaser refused to complete his purchase, unless the purchase-money was paid into court in the suit. The tenant for life consented to an application made by the purchaser for an order for the payment of the money into court in the suit, and the order was made and the money paid into court under it. The purchase having been completed, the tenant for life presented a petition in the suit and in the matter of the Act, asking that the money might be paid out to the trustees, the object being that they might then invest it according to his direction. Section 21 of the Act provides that "capital money arising under this Act shall, when received, be invested or otherwise applied wholly in one, or partly in one and partly in another or others, of the following modes-namely" (inter alia) "(Ix.) In payment to any person becoming absolutely entitled or empowered to give an absolute discharge." By section 22, "(1) Capital money arising under this Act shall, in order to its being invested or applied as aforesaid, be paid either to the trustees of the settlement or into court, at the option of the tenant for life, and shall be invested or applied by the trustees, or under the direction of the court, as the case may be, accordingly"; "(2) The investment or other application by the trustees shall be made according to the direction of the tenant for life, and, in default thereof, according to the discretion of the trustees, but, in the last-mentioned case, subject to any consent required or direction given by the settlement with respect to the investment or other application by the trustees of trust money of the settlement, and any investment shall be in the names or under the control of the trustees"; "(3) The investment or other application under the direction of the court shall be made on the application of the tenant for life or of the trustees." It was argued that, notwithstanding the payment into court, the tenant for life was still entitled to the option given to him by sub-section 1 of section 22 of having the money paid to the trustees, and that the trustees were persons becoming absolutely entitled" within the meaning of subsection (ix.) of section 21.

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NORTH, J., held that the trustees did not come within that description, and that the tenant for life had exercised the option given to him by section 22 (1) when he consented to the order for the payment of the money into court, instead of insisting on its being paid to the trustees. The money must, therefore, remain in court, and be invested or applied under the direction of the court, as provided by sub-section (3) of section 22.COUNSEL, Cookson, Q.C., and Rashleigh; Napier Higgins, Q.C., and Speed, Q.C; Cozens-Hardy, Q.C., and T. L. Wilkinson; Ingle Joyce; Dauney. SOLICITORS, Gregory, Rowcliffes, & Co.; Tucker & Lake; Lidiard & Co.; Clarke, Woodcock, & Ryland.

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the case may require, a scheme for the execution of the improvement, shewing the proposed expenditure thereon. (2) Where the capital money to be expended is in the hands of trustees, then, after a scheme is approved by them, the trustees may apply that money in or towards payment for the whole or part of any work or operation comprised in the improvement on inter alia) "(iii.) An order of the court directing or authorizing the trustees to so apply a specified portion of the capital money." North, J. (in chambers) was of opinion that the approval by the trustees of the scheme ought to have been obtained before the work was executed, and on this ground he dismissed the summons. The tenant for life moved in court to discharge the order made in chambers, and that an order might be made in the terms of the summons. It was urged that if, before expending money in a permanent improvement, the tenant for life was bound, it he desired to be repaid out of capital money, to obtain the approval of the trustees, the immediate execution of a work which was urgently required -e.g., the construction of a sea or river wall to prevent the flooding of land-would be discouraged, to the possible serious injury of an estate.

A question arose in this case as to the jurisdiction of the court to order the cost of making a permanent improvement to a settled estate to be paid out of "capital moneys," which were in the hands of the trustees of the settlement for the purposes of the Settled Land Act. The tenant for life had had the work executed at his own expense, without previously submitting a scheme for the approval of the trustees, and the trustees, after the work had been completed, approved the scheme, and took out a summons, asking that they might pay the cost out of capital moneys' in their hands. Section 26 provides that"(1) Where the tenant for life is desirous that capital money arising under this Act shall be applied in or towards payment for an improvement authorized by this Act, he may ubmit for approval to the trustees of the settlement, or to the court, as

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NORTH, J., however, adhered to the view which he had already exof the trustees or the court (as the case might be) should be taken in the pressed. He thought that the intention of section 26 was, that the opinion first instance as to whether the proposed works were of such a nature that the cost of them ought to be defrayed out of capital money, and that it was only after obtaining the approval of the scheme by the trustees or the court that the tenant for life could expend the money with a certainty of being repaid. It was very important that the provisions of the Act should be complied with. Before the money had been expended the trustees might be able to exercise their judgment fairly, but after the tenant for life had spent the money it might seem an invidious thing for them to refuse to approve what he had done, and thus prevent his obtaining the repayment of the money. The Act did not intend that either the trustees or the court should be placed in such a position. His lordship, therefore, declined to allow the payment of the money out of the capital money in the hands of the trustees.

Another question arose thus. Counsel appeared for the trustees, and proposed to address the court in support of the motion.

NORTH, J., said that he could not hear the trustees' counsel in support of an application in the interest of the tenant for life. The trustees were intended to be a check on the tenant for life in the interest of the other persons who were entitled under the settlement, and they ought, at least, to maintain a neutral position.-COUNSEL, F. T. Procter; J. T. Dodd. SOLICITOR, H. P. Cobb.

Re SCHMIDT'S TRADE-MARK-Stirling, J., 17th January. SECURITY FOR COSTS-PAYMENT INTO COURT BY LITIGANT RESIDING IN GERMANY-REPAYMENT BY PAYMASTER-GENERAL-FORM OF ORDER.

In this case a question arose how repayment from the PaymasterGeneral of money paid into court as security for costs should be obtained on behalf of a litigant residing in Germany. Mr. Schmidt, a resident in Germany, had been ordered to pay, and had paid, £200 into court as security for costs in respect of an application by him for registration of a trade-mark. Upon the hearing of that application, together with another matter, Mr. Schmidt obtained an order for payment of his costs. It thus became necessary to obtain repayment of the £200. Mr. Schmidt, being in Germany, could not attend in person at the office of the Paymaster-General, and could not, according to the law of Germany, comply there with the formalities required by the Paymaster-General in regard to the execution of a power of attorney, but would have to go to Holland or Belgium for that purpose.

STIRLING, J., directed that Mr. Schmidt should give a power of attorney in the ordinary form to some person in this country, and upon his signature thereto being verified, the power should be entered in the order, and the sum in court paid out to Mr. Schmidt's nominee.-COUNSel, R. F. Norton. SOLICITORS, Ellis, Munday, & Bartrum.

Re WARDEN, BROWETT v. WARDEN-Stirling, J., 24th January. LIMITATION TO CHILDREN AT TWENTY-FOUR-REMOTENESS-RULE AGAINST

PERPETUITIES.

In this case a question arose whether a gift of a legacy in discharge of a covenant contained in a marriage settlement, and under which the limitation in default of appointment was to children at twenty-four, was void for remoteness. By his marriage settlement, dated the 28th of September, 1867, Joseph Warden covenanted that his executors would, within twelve months after his death, pay to the trustees £2,000 to be held upon trust for the wife for life, and after her death for the children should attain twenty-four, equally, and, if there should be but one such as she should appoint, and, in default of appointment, for the children who child, then for such one child. Joseph Warden died on the 9th of May, 1886, having by his will directed his executors to set apart out of his residuary estate and pay to the trustees of the settlement (to the abovestated covenant in which he expressly referred) £2,000 for the benefit of his wife, and otherwise upon the trusts of the settlement. The testator's wife predeceased him. There was only one child of the marriage, now an infant. An originating summons was taken out by the executors for the purpose of determining (inter alia) who was entitled to the legacy.

STIRLING, J., held that the legacy of £2,000 by the will was given for the express purpose of satisfying the covenant in the settlement. The limitation by the settlement in favour of children, in default of appointment, was void for remoteness, and the legacy of £2,000, being on the same footing, failed also. The £2,000 accordingly fell into residue,—

COUNSEL, W. Pearson, Q.C., and Marcy; A. Brown. SOLICITOR, G. P.
Rogers, for Powell & Brewett and Coley & Coley, both of Birmingham.

JOHNSON v. JOHNSON-Stirling, J., 25th and 29th January.
MARRIED WOMEN'S PROPERTY Act, 1870 (33 & 34 Vict. c. 93), s. 8—
DEED ACKNOWLEDGED.

The plaintiff, who was married on November 23, 1870, became entitied, in June, 1876, to certain real estate as co-heiress of an intestate. Her rights in such real estate were consequently regulated by the Married Women's Property Act, 1870, which, by its 8th section, enacts, in effect, that the rents and profits of descended property "shall belong to the married woman for her separate use, and that her receipts alone shall be a good discharge for the same." The plaintiff had purported to settle the property upon certain trusts with the concurrence of her husband, but not by deed acknowledged. The question now arose, as to this real estate. whether or not, being a deed unacknowledged, the settlement had passed any estate beyond one for the life of the plaintiff and the possible life interest of the husband as tenant by curtesy.

THE COURT OF APPEAL (HANNEN, P., and BOWEN and FRY, L.JJ.) affirmed the decision. HANNEN, P., said that the point was disposed of by express authority. He must confess that he was surprised at the decision that in such a case the relation of debtor and creditor did not exist within the meaning of section 48. But the point had been solemnly decided by the Court of Appeal in Ex parte Taylor, and the court was bound by that decision. BOWEN, L.J., concurred for the same reason, without expressing any opinion of his own. the court was bound by the previous decisions. As at present advised, he FRY, L.J., also thought that should not have come to the same conclusion as the Court of Appeal did in Ex parte Taylor. Beyond saying that, he would not express any opinion. Leave was given to appeal to the House of Lords.-COUNSEL, Tindal Atkinson, Q.C., and Sidney Woolf; Herbert Reed. SOLICITORS, Hogan & Hughes; Mossop & Rolfe.

CASES AFFECTING SOLICITORS.

Ex parte RUSSELL, Re ELDERTON-C. A. No. 1, 28th January. SOLICITOR-RIGHT OF AUDIENCE-BANKRUPTCY MATTER-COURT OF APPEAL -BANKRUPTCY ACT, 1883, s. 151.

In this case a question arose as to a solicitor's right of audience in court. Section 151 of the Bankruptcy Act, 1883, provides that "nothing in this Act, or in any transfer of jurisdiction effected thereby, shall take away or affect any right of audience that any person may have had at the commencement of this Act, and all solicitors or other persons who had the right of audience before the Chief Judge in Bankruptcy shall have the like right of audience in bankruptcy matters in the High Court." This was an appeal from a decision of Cave, J., in a bankruptcy matter, and the appellant's solicitor claimed to be entitled to audience on his behalf. THE COURT (HANNEN, P., and BowEN and FRY, L.JJ.) held that the right of audience given by section 151 is strictly limited to the High Court.-COUNSEL, Cooper- Willis, Q.C., and Kowlaski. SOLICITORS, 4. G. Ditton; Charles Rogers, Sons, & Russell.

Re HERBERT-North, J., 2nd February.

TO DISPUTE RETAINER,

STIRLING, J., in giving judgment on January 29, said that the question was, What was the intention of the Legislature in enacting this section of this public Act? Was it intended that the separate use should extend to rents and profits whenever they might arise; or that it should be limited to the rents and profits which might be personally enjoyed by the married woman? At the time of the passing of the Act the consequence of marriage upon the real estate of the wife was this, the husband acquired a freehold interest during their joint lives, and on the birth of a child capable of inheriting under the existing limitations in favour of the wife, that estate became, by the curtesy of England, enlarged to an estate for life, but, subject to this, the freehold remained in the wife and she could pass it by deed acknowledged. Now, the words of the section of the Act contained no words of limitation. Again the word "receipts" pointed to the meaning of the words "rents and profits" for which they were to be given, being the rents and profits which she would be capable of giving receipts for, that is the rents and profits during her life, and did not point to the corpus of the property. Further, this must be considered, if "rents and profits" meant "rents and profits for all time," it must have been intended to give her an increased power of disposition, and yet there was not a word in the Act to enable a married woman to deal SOLICITOR-COSTS-TAXATION-COMMON ORDER TO TAX-RIGHT OF CLIENT with the legal estate otherwise than in the ordinary way, that was by a deed acknowledged. If then, the Legislature had intended to confer upon a married woman the unfettered power of disposing of real estate descending upon her, they had conferred it upon her by very indirect means, and that intention might have been effected much more readily by such a provision as the one inserted in the Married Women's Property Act, 1882. Finally, it was obvious that the whole Act dealt with the property of married women, not in a comprehensive, but in a limited and tentative way; thus as to personal property coming to a married woman under a deed or will, the preceding section only attached the separate use to it if the amount did not exceed £200. He accordingly came to the conclusion that the better view was to hold that the object of the Legislature was simply to remove and put aside that interest of the husband which interfered with the personal enjoyment of the rents and profits by the wife, and not to give her an enlarged dominion over her property. He held, therefore, that the separate use created by the Married Women's Property Act, 1870, extended only to rents and profits which might come to a married woman so as to be personally enjoyed by her, and that it followed from this that the contention of the plaintiff was right.-COUNSEL, Baines; Willis Bund. SOLICI TORS, Hughes & Gleadow.

BANKRUPTCY CASES.

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Ex parte BALL, Re HUTCHINSON-C. A. No. 1, 28th January. BANKRUPTCY-FRAUDULENT PREFERENCE-VOLUNTARY REPLACEMENT MISAPPROPRIATED TRUST MONEY-BANKRUPTCY ACT, 1883, s. 48. In this case the question was raised, whether the voluntary replacement by a trustee in insolvent circumstances of trust money which he has misappropriated can be treated in his bankruptcy as a fraudulent preference under section 48 of the Bankruptcy Act, 1883. In Ex parte Stubbins (17 Ch. D. 58) and in the recent case, Ex parte Taylor (ante, p. 96), it was held by the Court of Appeal that such a payment could not be treated as a fraudulent preference, on the ground that the relation of debtor and creditor did not exist between a trustee and his co-trustee, cr between a trustee and his cestui que trust, in regard to money due from the trustee by reason of a breach of trust, and that section 48 applies only to the preference of a creditor. In the present case Cave, J., had refused to set aside a payment of this nature which had been made by a trustee to his co-trustees shortly before his bankruptcy, on the ground that he was bound by these decisions of the Court of Appeal. On behalf of the appellant it was urged that those decisions applied to the case of a trustee who had committed a fraudulent breach of trust in respect of which he was liable to criminal proceedings, the knowledge of which fact might well have produced an influence on his mind inducing him to replace the trust money, whereas in the present case the bankrupt, though he had committed a breach of trust, had done nothing to expose himself to criminal proceedings. Moreover, the claim of a cestui que trust against his trustee in respect of misapplied trust money could be enforced by proceedings in a court of equity, and constituted an equitable debt which could be made the subject of proof in bankruptcy, and section 48 was intended to prevent a preference of any person who, but for the preference, would have been entitled to prove in the bankruptcy.

The question in this case was whether a client, who has obtained the common order to tax his solicitor's bill of costs, can dispute his retainer of the solicitor in regard to some of the items in the bill. In the present case the clients were trustees of a marriage settlement, and they obtained the common order to tax two bills of costs which their solicitor had delivered to them. A part of one of the bills was headed, "As to the Willesden Security," and under this heading a number of items were charged. On the taxation, the trustees made affidavits to the effect that they had never retained him in relation to the matters included under that head, and that he had acted contrary to their express instructions. On this ground the taxing master disallowed nearly the whole of the items under that heading. The solicitor objected to the taxation, on the ground that "the master had not jurisdiction to enter into the question of retainer as regards the Willesden security." The taxing master replied, "A client to whom a bill of costs has been delivered by his solicitor, and who obtains a common order to tax it, cannot object to the whole bill, but can object to part, it having been incurred without, or contrary to, his directions." This was a summons by the solicitor to review the taxation, and it was urged on his behalf that the taxing master had no jurisdiction under the common order to go into the question of retainer, and that the solicitor was entitled to have that question tried by a jury. Re Inderwick (32 W. R. 541, 25 Ch. D. 279, 28 SOLICITORS' JOURNAL, 87) and Re Thurgood (19 Beav. 541) were cited.

NORTH, J., held that the case was governed by Re Bracey (8 Beav. 266), in which it was held by Lord Langdale, M.R., that "in equity, the client, in prosecuting the common order for taxation, may object, on the ground of want of retainer, to any of the items of the bill, except those as to which he has admitted the retainer by his petition." On the authority of this case North, J., dismissed the summons.-COUNSEL, R. G. Glenn; Herbert Reed. SOLICITORS, F. S. Herbert & Co.; W. Furse Neave.

SOLICITOR STRUCK OFF THE ROLLS.-January 27th, EUSTACE WILLIAM OWLES.

The Solicitor-General will preside at a dinner which is to be given to Mr. Montagu Williams by several of his friends at the bar in celebration of his recent appointment as metropolitan police magistrate, which will take place at the Holborn Restaurant on Saturday, February 19.

Lord Stanley of l'reston, the President of the Board of Trade, visited Manchester on Tuesday, and had a conference with the Trade-Marks Commitee of the Chamber of Commerce as to the working of the TradeMarks Act. Lord Stanley, who had invited the frankest expression of opinion, said he would prefer at present to make as few promises as possible, but in some points he went a long way with the committee.

A smoking concert in connection with the United Law Students' Society, will be held at Anderton's Hotel, Fleet-street, on February 23rd next, at 7.30 p.m., Mr. Wynne E. Baxter in the chair. Any member of the profession will be welcome, and tickets can be obtained on application to F. B. Moyle, 29, Bedford-row, W.C., or S. A. G. Kempster, Hastings House, Lavender-hill, S.W.

LAW SOCIETIES.

INCORPORATED LAW SOCIETY.

GENERAL MEETING.

The January general meeting of the Incorporated Law Society took place on Friday, the 28th ult., at the society's hall, Chancery-lane, the PRESIDENT (Mr. H. W. Parker) taking the chair.

PRELIMINARY EXAMINATION.

The PRESIDENT Said: Although not strictly in order, it may be agreeable to the meeting that I should say a few words with regard to the preliminary examination. The question of the preliminary examination was referred to the Executive Committee of the council in November, 1885, and again in March, 1886, and the subject has been before that committee for a very long time. It has received very anxious consideration, and I am happy to say the committee have come to a conclusion on the subject, and the council have confirmed the report. The result has been that existing regulations as to the preliminary examination no longer exist. They are repealed, and a new regulation has been devised. That regulation, in accordance with our statutes, is now before the judges. It was sent to them on the 17th of this month, and it will come into full force and effect, if within twentyeight days after it has been so sent to the judges no expression of dissent is received from them. I must ask the meeting not to press me with any questions as to the character of the alteration in the examination, because it would be inconvenient that any discussion should arise whilst the matter is before the judges. But I think I may say this much, that the alteration in the regulation as to the examination is not in the direction of lowering the

standard.

MIDDLESEX REGISTRY.

Mr. F. K. MUNTON, in accordance with notice, asked as follows: "What steps have been taken by the council in relation to the resolution passed at the last annual meeting as to the questions with the Middlesex Registry?" The PRESIDENT: The council have that subject under consideration, and have come to the determination that that question shall be raised and determined by the courts of the country. It is an important question with respect to taking the oath before an ordinary London commissioner, instead of compelling the deponent to go to the Middlesex Registry; and the council had thought it a subject which ought to be determined by the superior court, and steps will be taken accordingly.

Mr. MUNTON said that he would forthwith proceed in the matter of a personal memorial which he had kept by him for the same purpose. The PRESIDENT: It is the desire of the council that you should assist them in the matter, therefore I may ask you to communicate with us, and we will do what is necessary.

COUNTY COURTS.

Mr. MUNTON moved, in accordance with notice:-"That the Special Committees' County Court Report be remitted back to such committee for reconsideration, with the aid of the council's observations thereon, and especially in conjunction with the official rules and regulations promulgated since the report was drawn up-the committee to have power (with the concurrence of the council) to add to their number." He said that in 1883 a committee was appointed by the society to consider the question, and, as was well known, they made a report to the council thereon. The council took such report under their consideration, and sent it out to the members with some observations of their own upon it. A resolution was carried at a general meeting that a conference should take place between the council on the one hand and him (Mr. Munton) on the other, as representing at the time the County Court Committee. Two meetings took place, and there was considerable difference of opinion on some of the points. In the meantime a large number of new rules and regulations had been issued by the authorities, which, to some extent, dealt with the question. Since that time the late Lord Chancellor had brought in a Bill to consolidate the county courts' statutes; and it had been publicly announced that the present Lord Chancellor would, during the coming session, bring in a Bill to consolidate the county courts' Acts, and he (Mr. Munton) had reason to believe that the character of that Bill would be something after the style of the Public Health Act, 1875, which in effect admitted of a number of new clauses being inserted in the Bill, and he thought a very excellent opportunity would be found during the next session for any representation being made to the Lord Chancellor which will not only deal with the question of more rules, but will result in satisfactory enactments also. That was one reason why he proposed

the motion.

Mr. WEEKES seconded the motion, which was agreed to.

THE CLUB.-HONORARY MEMBERS.

Mr. SAMUEL DAY moved, in accordance with notice, "That the following be added to the existing rules of the Law Society Club:--The committee, notwithstanding anything to the contrary in these rules, shall have power, subject to the approbation of a majority of the members voting at a general meeting specially called for the purpose, to elect, as honorary member, any person not being a member of the Incorporated Law Society."

Mr. MACARTHUR objected to the motion being proceeded with, as being contrary to the rules of the society. He quoted from the rules to show that the necessary notices with regard to the motion had not been given, as the motion had for its object the alteration of the existing bye-laws, which said that the club should be confined to members of the society.

Mr. DAY urged that he was quite in order, and that it had been so ruled on a previous occasion. He had proposed a similar resolution on behalf of Mr. C. O. Humphreys, who was absent at the last general meeting, and the

same objection had been raised, but it had been overruled. The whole thing was at that time discussed.

Mr. C. FORD said that his recollection was that the point of order objected to was not the same.

Mr. W. M. WALTERS said the issue was very simple. It was quite clear that a bye-law could not be altered without giving certain notice. But it the club were bye-laws of the society. What the meeting had to do was was absurd to say that the minute details required for the management of simply to comply with the provision that any rules of the club might be

altered by the society.

The PRESIDENT: It seems to me that the motion is in order, and we shall

proceed.

Mr. MACARTHUR: Then I hand in a written protest, that there may be no mistake about it.

Mr. DAY said that all the West End clubs had the same rule. This was the Jubilee year, and many prominent people would visit London, and it would be very convenient to have the opportunity of making some of them honorary members of the club.

Mr. PENNINGTON seconded the motion. He thought it would be a great convenience that it should be passed. It was only asking the society to do what it had done upon a former occasion. One of the objects in view was to admit as honorary members the secretary and the assistant secretary. It was obviously very convenient that they should be members of the club. Of they should be able to get that refreshment conveniently and close at hand course they required refreshment, and it was much better for the society that instead of having to go out of the building when they would not be accessible to gentlemen who wanted to see them, and in other respects it was very advantageous. Therefore he hoped the meeting would feel no difficulty in agreeing to what was a very convenient and universal practice of clubs, that of admitting honorary members.

Mr. FORD said he offered a strong opposition to this most monstrous proposal. He called attention to the rather mysterious language in which it was framed. It was to be by the vote of a general meeting. He was quite sure many persons were under the impression that it was to be a general meeting of the society, but it was nothing of the kind. It was to be merely a meeting of the club. He thought he was right in saying that Mr. Day was not a member of the curious institution called a club, and it might be that he hoped to be rewarded by being made an honorary member.

Mr. DAY rose to order. He had already said that he had spoken merely as the mouthpiece of Mr. Humphreys. Therefore it was not fair that he (Mr. Day) should be subjected to these remarks.

He did not

Mr. FORD thought he was right in saying that Mr. Humphreys was one of the paid officers of the society. He was a solicitor, very largely employed by them, and it was on that account he had thought it desirable that the proposition should be brought forward by another member. The club might bring in fifty or sixty outsiders, because it was financially embarrassed, to keep it going. If the motion was defeated it would be found that within twelve months the club would find it necessary to give the society notice that they did not require their rooms any longer. He regretted that he had withdrawn the action which he commenced against the society. Mr. PARKER, as a member of the club, supported the motion. intend to answer Mr. Ford's remarks, because he did not think this a fitting time or occasion to have made them. There were several reasons why the motion should be passed. The society had this year, in return for the repeated hospitality tendered to them in the provinces, invited the country societies to meet in London. Every one would agree that it would be much to be regretted that any portion of the building should be closed to those members on their meeting at the society's premises in the summer. evident from the resolution being brought forward that there was a doubt hospitality of the society. He remembered in connection with the old club, upon the point, and a doubt which would reflect very seriously upon the that during the dynamite scare, the officers of the guards on duty at the Law Courts were made honorary members, and they appreciated the advantage there was now power under them to do this. very highly. He had looked at the rules at the time, and had thought that secretary and assistant secretary being made honorary members? Did they Who could object to the not all agree that to those two gentlemen, for their high ability, their never failing courtesy, and unwearying patience to the members individually and collectively, their warmest thanks were due, and when an occasion of this kind presented itself, and they could extend to them some recognition of their valuable services, they should warmly accept it

It was

Mr. G. B. GREGORY suggested that the words " of the club" should follow "general meeting," and that the number of honorary members should be restricted. amendment: "That such honorary members shall at no time exceed fifty in At the suggestion of the president he moved the following

number."

Mr. REEVE seconded.

Mr. MACARTHUR objected to the amendment on the ground that it was contrary to the previous resolution. He went on to object to the club as taking the rent out of the fees of the students which ought to be expended on their education, and out of the general subscriptions of members which might have been reduced. He would always protest against the injustice of apply. ing the general funds of the society to meeting the engagements which had been incurred solely to find accommodation for the club.

Mr. Roscoe, as a member of the club and society, thought it a pity that a doubtful question of this sort should be forced, even upon a reluctant minority of the society. He appealed to Mr. Day to withdraw the motion. He (Mr. Roscoe) should not support it, and he would not be alone in that respect upon the council.

Mr. WALTERS said the observations of Mr. Roscoe had rather taken him by surprise. Of course, they could expect only opposition from those gentlemen who had been consistently opposed to the club. Mr. Macarthur had given them a long speech upon the club generally, and, if he had been called

to order, the chairman would have been bound to stop him. The question was not that of the existence of the club or the appropriation of the students' fees for improper purposes. It was an unworthy suggestion, but still it was made

Mr. MACARTHUR: And persisted in.

Mr. WALTERS: Yes. The insinuation is made, and persisted in. Mr. MACARTHUR: It is not an insinuation; it is a direct charge. Use proper language. Mr. WALTERS said the statement he repelled, and the taste which persisted in insisting upon it he would leave to the meeting. With regard to Mr. Ford, what he (Mr. Ford) had said about the action brought by him against the society was not quite right. He had regretted that he did not go on with the action. He (Mr. Walters) thought Mr. Ford rather forgot that he had asked leave to withdraw that action, if the council would not press for payment of costs

Mr. FORD: I rise to order. I dispute in toto the accuracy of that statement. I say it is not correct. Mr. WALTERS did not know that his memory was worse than Mr. Ford's, and he had no doubt that if the correspondence were referred to it would be found that he (Mr. Walters) had spoken correctly. Mr. Ford complained that the club question was constantly coming up. That was due to him and Mr. Macarthur. Was it also quite consistent with dignity and fairness that Mr. Ford should constantly impute motives to everyone? When, for instance, Mr. Day had brought forward the motion, Mr. Ford had accused him of unworthy motives, in that he might be pitchforked into the position of an honorary member. This was hardly good form. He should remember that these remarks got into the papers, and the members brought themselves down to the level of a parliament of Home Rulers. Mr. Day had then explained that Mr. Humphreys really was the originator of the resolution; then Mr. Ford said that Mr. Humphreys occupied the position of a paid officer of the society. In this honourable profession did he mean to say that the members of it, by taking fees for doing business, surrendered their independence? Surely that was unworthy, and if Mr. Ford had thought so badly of his professional brethren, he ought not to have said it in public. Then Mr. Ford had said that the club wanted the motion carried to get them out of their financial difficulties. That was an unworthy motive. Did not Mr. Ford know that no club could exist upon the sale of its food and drink? Did he not know that the club was dependent, like other clubs, on the fees and subscriptions of members without which it could not go on? Let him argue the questions fairly, and not throw broadcast these insults against persons, individually and collectively.

Mr. FORD hoped the amendment would not be accepted. It followed, from the remarks made by Mr. Roscoe, that there was a serious and grave difference of opinion between the members of the club upon the subject. He (Mr. Ford) had in his possession letters from Mr. Saunders, when he was president, which would clearly prove that the statements made by Mr. Walters as regarded the withdrawal of the action of Ford v. The Incorporated Law Society were wholly incorrect.

Sir THOMAS PAINE said the motion seemed to him to be a mistake, both as regarded the substance of it and the way in which it had been brought forward. Some years ago it had been expressly stated that the club should be composed only of members of the society. There were good reasons for that, and he was not disposed to join in any motion which would be inconsistent with the determination which had been then come to. Moreover, it appeared to him that any resolution of the kind should come in the first instance from the club, and be confirmed by the society.

Mr. DAY accepted the amendment, and thought the number of honorary

members might even be reduced to twenty.

Mr. ELLERTON trusted that members who were doubtful upon the motion would not vote for it merely to shew that they did not agree with the sentiments of the members who had spoken against it.

Mr. MUNTON said he was not a member of the club, but he had been conferring with some of the members, and they thought it was desirable that the amendment should be altered by adding the words-"elected as honorary member for a period not exceeding two years.' Mr, GREGORY concurred in the alteration.

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Mr. PENNINGTON could not agree with the alteration. It would put them in a very difficult position with regard to the secretary and the assistant secretary, whom he believed every member, if the club was to exist at all, would wish to be honorary members of it. As a member of the committee of the club, he knew there was no danger that it would be swamped with honorary members.

Mr. GREGORY observed that there was nothing to prevent re-electiou.
Mr. PENNINGTON assented to the alteration.

The PRESIDENT put the motion as follows:-"That the following be added to the existing rules of the Law Society Club: The committee, notwithstanding anything to the contrary in these rules, shall have power, subject to the approbation of a majority of the members voting at a general meeting of the club specially called for the purpose, to elect as honorary member any person not being a member of the Incorporated Law Society, but the number of such honorary members shall not at any time exceed twenty, and such election shall be for a period not exceeding two years, but with power of

re-election.""

The motion was carried-69 voting for it, and 33 against it.

He

view to the assimilation of the practice in England generally with that which prevails in the North of England with regard to the employment and remuneration of auctioneers. That it be suggested to the council that a com. mittee of the society be appointed, which shall include members familiar with the practice in the North of England, to consider and report on the subject with a view to carrying the above resolution into effect." He also moved"That a committee be appointed to consider and report to the council on the measures necessary to be taken with the object of assimilating the practice in England generally to that which prevails in the North of England with respect to the employment and remuneration of auctioneers. That the committee (of whom ten shall be a quorum) shall consist of members of the society to be named at the meeting, with power to add to their number. That it be an instruction to such committee to especially invite the co-operation of members familiar with the practice in the North of England." said the purport of the resolution passed at York was that the same method of practice in relation to sales by auction should prevail all over England. He need not remind them that there was one custom in the North and another in the South. In the North a very broad distinction was drawn between auctioneers and surveyors and valuers, and that the auctioneer was merely employed to get on to the rostrum and sell. The solicitor did a great deal of the work which was ordinarily done by the auctioneer in the South of England-that was to say, the auctioneer's duties were really divisible into two, the act of selling and the act of bringing the property prominently before the notice of the public. The first time the matter had come under prominent notice was after the passing of the general order which gave solicitors a fee for conducting a sale by public auction. He thought it was within the knowledge of everyone that that order was promulgated according to the custom of the North of England, and he thought that fact by itself almost a sufficient reason for their endeavouring to assimilate their practice to that of the North of England. The matter was one which had been the subject of judicial decision upon other occasions. By one decision Vice-Chancellor Bacon had very justly allowed a quarter per cent. commission to be paid by the solicitor to the auctioneer. That did not seem to have been followed; and in another case work was done by the auctioneer which was held to have been work which could not have been done by the solicitor, and therefore the solicitor was not allowed a conducting fee; and another case was reported in the SOLICITORS' JOURNAL. He took it that it was desirable for all of them that these difficulties should be smoothed away, and he took it that a committee which could recommend one consistent course of conduct all over England would pave the way for the removal of these difficulties. Upon the resolution passed at York he had drawn the motion which was intended to embody that expression of opinion. He had been given to understand that the resolution passed at York had been approved by the council, without which he believed no resolution passed at any provincial meeting had any effect. It had been suggested to him that the resolution did not contain words enabling the committee to inquire into the merits of the Remuneration Order. He could only say that he did not think that was intended by the resolu tion passed at York, and certainly it was not his intention. He thought that an expression of opinion on the matter might have great weight; but, as he understood it, the committee was to consider any measures to be taken, but if they did not consider it necessary, he apprehended they would not take them. Therefore he thought the motion as it stood would hold good.

The PRESIDENT: I think you rather assumed that the motion passed at York had been approved by the council. It has been approved in the sense that it should go forward to the general body of members and be considered by them.

have been approved.
Mr. GRIBBLE: Oh, yes. I do not suggest that the details of the resolution

Mr. MUNTON, in seconding the motion, said that he did so principally on the footing of a communication he had just received from the Inland Revenue in reference to a sale of articles of vertu which he (Mr. Munton), as executor of a deceased relative, had effected, and where the authorities argued that a probate duty on £20,000 gross, instead of £18,500 net (the auctioneer's commission in these special sales being 7 per cent.), should be paid, the letter in question, from the Comptroller at Somerset House, being as follows: "I am not in a position to admit the amount of the net proceeds of sale of the articles of vertu is the proper measure of their value for the purpose of probate duty; nor can I admit that a valuer in appraising them would be justified in regarding the probable cost of their conversion into money as an element in his calculation." He (Mr. Munton) intended to contest the demand, but for the present he contented himself with seconding the motion.

Mr. J. WHITE did not understand whether the committee was to require such measures to be taken, or whether it was to consider as to the expediency great many country solicitors present, who were naturally in favour of their of such measures only. The resolution passed at York was passed with a distinctly against a change to the North of England custom. own practice. As far as he could ascertain, the opinion in London was

Mr. J. HUNTER suggested that the duty of the committee should be to consider and report to the council whether it was or not expedient to assimilate the practice. Having been present at York, it had not struck him that the question was prejudged or concluded by what was done there. It did not strike him that the opinion in London was that the practice should

be assimilated to that in the North.

Mr. PHILLIMORE urged that it ought to be put again as a substantive mittee be appointed to consider and report to the council whether or not it is resolution; but he was overruled.

SOLICITORS AND AUCTIONEERS.

Mr. H. E. GRIBBLE called attention to the resolution of the society passed at the annual provincial meeting held at York on the 12th and 13th of October, 1886, and subsequently approved by the council as follows:-"That the council be requested to take such measures as may be necessary with a

The PRESIDENT suggested that the resolution should run: "That a comexpedient to assimilate the practice in England generally to that which prevails in the North of England with respect to the employment and remuneration of auctioneers."

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