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Mr. Justice power to act as executor, administrator, trustee, and receiver. sanction. But really this was quite unnecessary. The idea of conferring on public companies power to act as trustees North had no difficulty in holding that the Army exists " for the is not a new one. As is well known, companies with such powers spread of the Gospel," and the testator knew perfectly well what exist in some of the colonies, and attempts have been previously he was about in selecting General Booth as the person to apply the made to introduce them here. Thus in 1854 there were two Bills bequest. In the similar case of Walsh v. Gladstone (1 Ph. 290) of a similar character before the House of Lords—the South Sea there was a bequest to a legatee for the use of a Catholic College. Company's Bill and the Executors and Trustees' Bill. They were The legatee died in the testator's lifetime, and the president of referred to a select committee which, after hearing the Incor- the college petitioned for payment to himself. This the Lord
ed himself as to porated Law Society in opposition, reported against them, and the Chancellor directed, but not before he had sati Bills consequently dropped. The promoters of the National Safe the respectability of the president and the permanence of the Deposit Bill propose to act as executors and trustees on the same institution. In the present case, however, General Boota vas terms as to remuneration as private individuals—that is, we pre- himself the person selected by the testator, and it might have sume, it is intended to have a remuneration clause inserted in the been sufficient to carry out his instructions simply. In going wills or other instruments creating the trusts to be administered by further than this, however, Mr. Justice North has done the Army the company i
it appears to us that the terms on which the com- the service of testifying to the regularity and integrity with pany propose to transact trust business should be shewn in the which its affairs are managed. Bill. The other Bill proceeds on different lines, inasmuch as it proposes to confer on the promoters power to charge five per cent. on all moneys passing through their hands as executors, trustees,
IT HAS BEEN DECIDED by the Covirt of Appeal in Lyell v. Kennedy &c. It may be suggested that these trustee companies, or their that old Scotch parish registers are not admissible in evidence. directors, will be subject to a conflict of duties. On the one hand, This was apon the ground that, in order to make any register alit will be their duty to their shareholders to make their profits as missible, it must have been kept by some person in pursuance of a large as possible, while on the other it will be their duty to their duty imposed upon him by the law. That is the modern rule. It cestuis que trust to keep down the expenses in connection with the is curious how diverse its effects are when it comes to be applied to administration of estates. And it may be added that these expenses ancient documents kept in the manner that was thought proper at the are likely, in the case of company trustees, to be considerably in- time. In England and Scotland the record of births, marriages, and creased, as, unlike private individuals, the company will know deaths was equally a matter which fell within the province of the nothing about the estate or the beneficiaries; will risk nothing; church, and to it our forefathers were content to leave it. But in and will require evidence upon every point to be given in the England the registers were kept in pursuance of the canon law,
way as in administration by the court. Without, which was recognized by the common law as binding on the clergy. however, "discussing at length the advisability of enabling There was, therefore, a legal duty imposed upon them. In the creation of trustee companies, we think that the question is one of too much importance to be dealt with by private Bill. If the pointed a clerk for the purpose, but this was simply in accordance
Scotland, apparently, the Kirk Session, or body of Elders, approposed change is advisable it should be effected by means of a with the prevailing practice, and not under any law, or, at least, general public Act, passed after full consideration of its probable not under any law of the State. There was, therefore, according effect. We observe that both the Bills above referred to contain a clause, the meaning of, and necessity for, which is not very to keep the register. In the one case, then, the register is evidence,
to our modern strict notions, no legal duty imposed on any person apparent. It is as follows:
in the other, not. This is perhaps as good an instance as could be shall direct that any practising solicitor shall conduct the legal business stances. In each case the registers were kept practically in the
Where, by any will codicil, or other testamentary writing, a testator met with of the effect of applying modern notions to old circumof his estate, such solicitor shall be entitled to act therein accordingly; but in such case the company shall not be liable for the negligence, mis same way, and to the ordinary mind might appear equally worthy feasance, nonfeasance, or misconduct of such solicitor, and such solicitor of credence. The church assumed responsibility in the matter;
But with us duty, to be recognized application of the company or of any person interested in the said estate at law, must be legal duty, properly imposed by the State. The upon cause shewn, and in any such case the judge may appoint the English registers are saved by the accident of the canon law being solicitor of the company, or some other solicitor if he thinks fit, to conduct the business of the estate."
recognized by the common law. In Scotland they meet with no The solicitor, whether appointed by the testator or not, could, of such good fortune ; the modern rule of evidence excludes them at course, only act on the instructions of the executor, and coulá be once, and one chief source for tracing pedigrees is gone. “ removed” for misconduct without any provision such as that above quoted, for under a direction in a will that a particular person should be the solicitor to the testator's estate and to his trustees in
The law prevailing in Germany which forbids the administration carrying out the provisions of the will, there is no duty imposed on of extra judicial oaths, and which led a learned member of the the trustees of the will to continue the solicitor as their solicitor English bar into trouble some time ago in that country, gives rise (Foster v. Elsley, 30 W. R. 596, 19 Ch. D. 518).
to inconveniences besides those relating to the examination of witnesses. In Re Schmidt's Trade-Mark (ante, p. 234) a
power of attorney for payment of money out of court was GREAT RELIGIOUS MOVEMENTS, animated as they usually are by the required, and the grantor of the power, being a German spirit of one man, naturally tend to fall under his absolute control. and resident in Germany, could not, without considerable As it happened with WESLEY a hundred years ago, so now it has expense, travel into a country where an oath could be legally happened with General Booth. But, however willingly the disciples administered to the attesting witness.
Under these cirmay submit to their self-imposed subjection, the outside world is cumstances, Mr. Justice STIRLING allowed the signature to the less satisfied and is especially disposed to cavil when absolute power handwriting of the grantor. In this case the sum was not Targeo
power to be verified in this country by a person knowing the means the unfettered control of large sums of money. nevertheless, a little difficult to see why it should have been con
but it cannot be expected that in every case judges will be so sidered necessary in the case of Lea v. Cooke that the accounts of lenient. It may be useful to suggest that, whenever it is possible, the Salvation Army should be brought before Mr. Justice Norri. in similar cases, the signature should be attested by a witness who The matter arose out of a bequest that had been made to General is coming to England-e.g;, the captain of a steamer-- who can, Boote “for the spread of the Gospel.” It was not disputed that on his arrival here, make the necessary affidavit in verification. this was a good charitable bequest, but it was doubted whether the legatee should be left to his discretion as to carrying it out, and the court was asked to interfere in order to direct à scheme. It is It is much to be regretted that the Lords Justices, in exercising fortunate, perhaps, that this contention failed. Army has devised methods of its own for the spread of the discretion, such of the Rules of the Supreme Court as are applic
The Salvation their jurisdiction in lunacy, do not adopt, in the exercise of their Gospel," and some curious questions might have arisen if these had able to that jurisdiction. In the case of Re Hume (ante, p: 232), been embodied in a scheme and presented to the court for its ) in which it was desired to use on the hearing of a petition an
affidavit which had been filed in another petition in the same of the Infants' Settlement Act is of increased importance, particulunacy matter, but relating to a different estate, the court might larly where the courts have seen their way to give a liberal obviously have permitted the evidence to be used, as asked, in interpretation to its provisions. The case of Re Phillips, an accordance with the provisions of ord. 37, r. 3, had they been infant, just decided by Mr. Justice Chitty, and reported else80 disposed, but in deciding that the proper course was to make where, has (if we may say so) carried the decision of the Court a short affidavit on the second petition verifying the affidavit of Appeal in Re Sampson and Wall (32 W. R. 617, 25 Ch. D. 482) filed on the first, it must, with the utmost respect for the learned to its only logical conclusion. members of the court, be admitted they have gone out of their The points decided by these cases may be shortly stated thus : way to impose an unnecessary condition which the rule above- By the Infants' Settlement Act (which is a short Act of only four mentioned was intended to avoid in the ordinary business of the sections) it is provided that "it shall be lawful for every infant, Supreme Court.
upon or in contemplation of his or her marriage, with the sanction
of the Court of Chancery, to make a valid and binding settlement AN AMUSING INSTANCE was mentioned in Mr. Justice CHITTY's and section 4 provides that “nothing in this Act contained shall
or contract for a settlement of all or any part of his or her property”; court on Saturday last, shewing how easily the most prominent apply to any male infant under the age of twenty years, or to any features of an Act may be forgotten by those who introduced it female infant under the age of seventeen years." It was thought for into Parliament. It appeared, from what was stated by counsel in some time that the words “ upon or in contemplation of marriage.” court, that the late Vice-Chancellor Malins, who, when member did not justify_post-nuptial settlements. By the case of Re for Wallingford, had introduced and carried the Infants' Settlement Sampson and Wall, however, the Court of Appeal decided that Act, 1850, through Parliament, had a petition under that Act the Act was wide enough to include a settlement made upon the before himself in court. As will be remembered, the age at which occasion of marriage, though made after the marriage ; and, by the a young lady can, under the Act, execute a binding settlement of more recent case of Re Phillips, Mr. Justice Chitty has decided her property is fixed at seventeen. The Vice-Chancellor, hearing that the mere fact that the infant was under the age of seventeen that the young lady in the case in question was only seventeen, or twenty (as the case might be) at the time of marriage will not said that the age named in the Act was eighteen, and, persisting prevent the court from sanctioning a post-nuptial settlement after in this opinion, would have dismissed the petition on that ground the attainment of that age, if, upon the circumstances, the settlehad not his attention been called to the actual words of the Actment could still be deemed to be made“ upon the occasion of the by the counsel engaged in the case. This case is the more re marriage,” to which terms Mr. Justice Chitty stated he was not markable as the memory of the Vice-Chancellor was usually disposed to put too narrow a limit. particularly accurate in matters having a personal relation to himself.
Assuming, as we must do for the purposes of the decision in Re Phillips, that the case of Re Sampson and Wall was rightly
decided, and that the Infants’ Settlement Act authorizes a postIN THE case of Re Herbert (ante, p. 235) a question of some nuptial settlement on the occasion of marriage, it is difficult to importance to solicitors was raised in argument, though no decision see how Mr. Justice Chitty could have decided otherwise than he was given upon it. The point decided was that, under the common settlement, we have at once suggested the mode of applying the
did; for, assuming an enabling power to make a post-nuptial order to tax a solicitor's bill of costs, it is open to the client to dispute the retainer as to some of the matters comprised in the limit of the 4th section—viz., that an infant shall not have this bill, though he cannot deny the retainer altogether. It was
enabling power if he be under the specified age and there can be argued that the ordinary rule, that the solicitor must pay the costs no logical reason (as Mr. Justice Chitty pointed out) why an infant of the taxation when more than one-sixth of the bill is disallowed who was married a day before seventeen or twenty should not by the taxing master, does not apply when the reduction is made bave as much power of making a post-nuptial settlement as an on the ground of want of retainer, and not on the ground of infant who was married the day after. overcharge. The cases of White v. Milner (2 H. Blackstone, 357)
The consideration of the facts connected with these cases and Mills v. Revett (1 A. & E. 856) were cited in support of this naturally suggest points for which further provision may yet have proposition. Those cases were decided under the Act 2 Geo. 2, c.
to be made. One important point is this : there can be no 23, s. 23, and no authority since the passing of the Solicitors Ảct question that, where the wife is entitled to property, a marriage of 1843 was adduced. Mr. Justice North declined to give any settlement is a beneficial thing, and none the less so because the opinion on the point, because it had not been raised before the tax wife is an infant; every facility should, therefore, be afforded for ing master, but it appears to be a point well worthy of consideration making such a settlement : where the property is small we doubt
whether the parties (though otherwise willing) are always inclined to meet the expense of an application to the court, and it is therefore probable that, in many cases where the husband's
covenant formerly sufficed, no settlement is now made at all. If THE INFANTS’ SETTLEMENT ACT.
this is so, it may be worth the consideration of the Legislature One indirect effect of the Married Women's Property Act, 1882, whether a statutory form of marriage settlement could not be made has probably been to increase the number of applications under the for cases under a fixed limit, say £2,000 or £3,000, and a statuInfants' Settlement Act, or, at any rate, to increase the number tory power given to infants of the ages mentioned in the Infants' of occasions on which the latter Act would afford the only means Settlement Act to execute a statutory settlement with the sanction of making an effectual marriage settlement. The way in which of parents or guardians, without any application to the court. The this has come about is not difficult to see. Before the passing of forms of settlements, when settled by the court, are, to a great the Married Women's Property Act it was often practicable to extent, common form, and substantially the same in the majority settle the property of the intended wife (when an infant), by of cases, at any rate, for small properties ; and it would not be means of the husband's covenant to settle all property acquired difficult to settle a form which would meet most requirements for by him in right of his wife ; and as the number of cases in which properties up to the value of £3,000, or even more. An applicathe intended wife is an infant must probably far exceed those in tion to the court would then only be necessary in such cases when which the husband is an infant, such an expedient was of great a modification of the statutory form might be required. The practical service, especially so in the case of wards of court settlement of properties over the fixed limit would still be carried who may have married without the sanction of the court, in out under the Infants' Settlement Act as heretofore. which case the husband's covenant could (if necessary) be obtained on pain of attachment. Since the passing of the Married Women's Property Act the method of effecting a settlement of the infant wife's property by means of the husband's covenant is no longer possible, and recourse must now, in all cases, be had to the On Monday Lord Coleridge took occasion to give notice that the return provisions of the Infants' Settlement Act if an effectual settlement of all the judges from circuit would not be awaited before the Crown of the infant's property is to be made.
Paper was commenced. His lordship said that this course was rendered
necessary by the fact that there were as many as 226 cases in the list, Such being the case, a decision upon the extent of the powers which was a greater number than he had ever known.
the same title, running with each of them; according to the opposite COVENANTS RUNNING WITH THE LAND.
opinion they must necessarily be in gross.
But when we come to the other point and inquire as to privity (II.) COVENANTS IN GENERAL.
of estate between the successive owners of the land, we find ourSo far we have treated of covenants contained in leases. The selves in the thorny paths of conveyancing, and the Statute of Uses subject becomes more difficult when we turn to covenants between shews itself in unexpected and startling effects. We have already the owner of land and some person other than a lessee. Such pointed out that, covenants do not really run with the land at all, person may himself have an interest in the land, as where he is but only with particular estates in the land. When these estates entitled to a rent-charge the payment of which is secured by are gone the covenants are gone too. But under the old form of covenant; or he may have formerly had an interest in the land, as conveyance to uses to bar dower, it was no uncommon thing for the where he was the vendor and has covenanted for title; or he may owner, upon a transfer of the land, to destroy his own estate and be the owner of adjacent land, the two plots either lying under create another in its place. Hence great care had to be taken to common restrictions, or the one enjoying some advantage by select the right person to join in the covenant. An example will covenant over the other ; or he may be a complete stranger. This, make this clear. A. conveys land to B. to such uses as C. shall of course, is merely a list of cases that must be considered, not by appoint, and, subject thereto, to the use of C. in fee. Suppose A. any means of cases in which the covenants really run with the covenants for title with C. Now, if C. conveys his estate, the coveland. We have already said that such covenants as these usually nants which are annexed to it go with it to the assign; but if he depend upon the doctrine of notice; but it would not be safe to exercises his power and appoints to D., here his estate is gone; D. discard the possibility that they may sometimes run with the land takes a new one which springs up in its place and to which the at law. This was, at any rate, important enough to be made the covenants not attached. But suppose A. covenants for subject of full discussion in Austerberry v. The Corporation of title with B.; then it appears that when the Statute Oldham (1885, 33 W. R. 807, 29 Ch. D. 750), and we shall try of Uses carries the legal estate to C., it carries with to define the present position of the question.
it the covenant also, and so when in any manner the use becomes We have already pointed out that privity of estate may be vested from time to time in other persons. As the seisin of required in the first place between the two covenanting parties B. successively serves all the uses, so the covenants with B. are and then between the successive assigns from either of them. As transferred to all the uses. Hence, whether C. appoints to D. to the former point there is much doubt. We have referred to the under his power or conveys his estate to him, in each case D. takes case where the covenanting parties have each an interest in the a use to which they are annexed. Hence there need be no diffiland, where, for instance, one is owner and the other has a rent- culty if the covenants are entered into with or by the right person. charge. This, of course, is very similar to the case of a lease, and we have said above that, when they are made with C., and he assigns just as it was necessary for the lease to have come out of the his use, they go with it. The Real Property Commissioners were of estate of the lessor, this constituting privity of estate, so it a different opinion, and held that such a covenant was in gross ; is reasonable to suppose that the rent must have come out of hence they proposed to obviate the difficulty by enacting that the the estate of the owner. Accordingly it has been so held. The covenants should run with the land in the hands of successive point arose in Milnes v. Branch (1816, 5 M. & S. 411). Here owners, notwithstanding want of privity of estate. But this A. conveyed land to trustees to the use that he himself should view is contested by Lord St. Leonards, who advocates the receive a rent, and, subject thereto, to B. in fee. B. covenanted to doctrine set forth above. The matter received an interesting pay the rent, A. demised to C. for 1,000 years, and C. sued B. for illustration in the case of Roach v. Wadham (1805, 6 East, 289). a breach of the covenant. A good deal was said in the case as to There the conveyances were in brief as follows: A. conveyed to B. covenants not running with rent-charges, but Bayley, J., based his to such uses as C. should appoint, and, subject thereto, to C. judgment on the ground that, as B. was not tắe grantor of the in fee, yielding a rent to A.; C. covenanted for the rent with A. rent-charge, there was no privity of estate between Å. and B., and Then B., by direction of C., conveyed to D. in fee, subject to the so the covenant was in gross. The same point was decided by rent, and D. covenanted for rent with C. Here the first covenant Parke, B., in Randall v. Rigby (1838, 4 M. & W. 130).
was entered into with C., and, by what we bave said above, this But when we consider covenants between an owner of land and would run with a conveyance of his interest, but not with a new other persons having no present interest in it, the case is more use under the power of appointment. Hence the only question doubtful. Is such privity required as exists between a vendor and was whether D. took by direct conveyance or under the power. purchaser, or can a covenant, to run with the land, be made with In the event it was held that he took' under the power, and the a mere stranger? The Real Property Commissioners raise the burden of the covenant did not run. This case not only illusdoubt, but state on the authority of Lord Coke (Co. Litt. 384 (6)) trates the above principle, but also shews that the burden of such a that there is no distinction. Lord Coke refers to the well-known covenant could run with the land. To this matter we shall recur. case of the prior who covenanted on behalf of his convent to per- Lord St. Leonard advises that, when a vendor intends the burden form divine service in the chapel of a manor. The question was
of a covenant to run with the land, in order to avoid its being held that it did. But Lord St. Leonards strongly disputes this pelled to take an ordinary direct conveyance. Of course, the whether the benefit of this covenant ran with the manor, and it was turned into one in gross as above, the purchaser should be com(Vendors and Purchasers, p. 586, 14th edition), and shews that importance of the matter has greatly decreased now that the old the person who sued on the covenant really sued as being a privy uses to bar dower are obsolete. Nevertheless, as long as the Statute in blood. He would indeed insist on privity of estate in all its of Uses exists to afford scope for the ingenuity of conveyancers, strictness, but he is staggered when he contemplates the actual the question may at any time arise. It is to be noticed that no consequences of this, especially in regard to covenants entered into change is niade in this respect by the Conveyancing Act. Indeed, by a vendor. The vendor is frequently a mortgagor or a mere the rule seems to be there re-enacted; as we shall hereafter see cestui que trust, and his covenants would, therefore, be covenants the covenants to which it relates run, not with the land for the in gross. Hence he advises that the vendor should always get in benefit of successive owners, but with the particular estate or the legal estate before conveying. As to certain covenants- viz., interest of the original covenantee. But as such covenantee is, under those implied under the Conveyancing Act—we shall see here- the Act, the grantee to uses, the implied covenants go with the uses after that the necessity for privity of estate has been expressly in the manner just described. abolished. But it is doubtful whether, in the sense now in Moreover, that a covenant may in any case be capable of running question, it is ever really necessary, and the opinion of the Real with the land, it must concern or relate to the land. This matter Property Commissioners is adopted in Smith's Leading Cases (Notes was dealt with at length by Cotton, L.J., in his judgment in to Spencer's case, I., p. 80); It will be safe then to assume that, Austerberry v. Corporation of Oldham (1885, ubi suprà). except in the case of rent-charges above discussed, privity of estate between the original covenanting parties is not necessary; but still to inquire whether the benefit or the burden of a covenant
But, granting that these preliminaries are satisfied, we have while one is the owner of the land, it is indifferent whether the ever does run with the land at law. As to the burden, there is other is in any way connected with it or no. that this solution lets in the possibility of covenants between the made clear by distinguishing the different kinds of covenants
It may be observed in most cases grave doubt, but the state of the law can only be owners of two adjacent plots, which have never been held under which are met with. They refer either (1) to a grant of some
interest in the land ; (2) to some special use of the land; or (3) a man who confounds the return " to " and the return “of” a writ, but to title and to title deeds. These must be treated in order: we find it hard to forgive our authors who have disfigured a good book
(1) Where the covenant refers to a grant of an interest in the by the confusion shewn in the discussion of Re Hobson, at p. 412. land.-Most of the cases arising under this head are cases of rent- taken in execution under a writ of elegit, and the sheriff held an in
They state the case and decision quite correctly, “When land was charges which the owner of the land grants, and which he quisition and delivered the land in execution to a creditor before a covenants to pay. Here we have to consider whether the benefit receiving order was made against the debtor, but did not return the runs with the rent and the burden with the land. The former writ until after the receiving order, it was held by Bacon, V.C., that point introduces a new consideration entirely-viz., whether a the execution had been completed seizure so as to entitle the judgcovenant can run with the rent. This is a matter which is by no ment creditor to hold the land against the trustee in the bankruptcy. means clear. Brewster v. Kidgill (1698, 12 M. R. 166) seems to Then follows the surprising remark, “But the correctness of this be an authority that it can; but in Milnes v. Branch (suprd) decision, appears doubtful, as the return to the writ is an essential Ellenborough, C.J., was of the contrary opinion. Lord St. | part of the execution.” We have so often explained this during the Leonards, however, shews with much force that a rent, considered last few months that we feel almost ashamed to repeat that the as a hereditament, is really no more incorporeal than an estate in under å writ of elegit, is effected by the return “to” the writ, so that
delivery of land in execution,” “the completed seizure of land” the land, and that a covenant should be equally capable of running as in this case the report states that the land was delivered in with it (Vendors and Purchasers, p. 591n (II.)). This has, indeed, execution, it necessarily implies that the return "to" the writ, which been allowed in regard to tithes (Bally v. Wells, 1769, 3 Wils. 25), i is quite different from the return “of” the writ, was made. and the same considerations apparently ought to apply to rents.
But there seems no reason to doubt that the burden of such a A CONCISE TREATISE UPON THE LAW OF BANKRUPTCY. By EDWARD covenant would run with the land, and this was practically the
T. BALDWIN, Barrister-at-Law. FIFTH EDITION. Stevens & effect of Morland v. Cook (1868, 6 Eq. 252). Here, upon a Haynes. division of lands below the sea level, arrangements were made to maintain a sea wall, and the various owners covenanted with each
This well-known book quite keeps up the character for complete
ness and accuracy that it gained by the former editions. We were other that the charges of maintenance should be raised by an acre- somewhat incredulous as to the statement by the author, "That all scot. Romilly, M.R., considered that probably the burden of this the recent decisions in bankruptcy will be found noted in their proper covenant ran with the land, but he decided the case on the ground places in the text ”; but, after a somewhat careful examination of that the subsequent assignees came in with notice. However, in the book, we find that this statement is correct. The decision Austerberry v. Corporation of Oldham (suprà, in judgment of of the full Court of Appeal in Re Morritt, Ex parte the Official Cotton, L.J., at p. 774) this last reason was not allowed, the covenant Receiver (ante, p. 141), which was delivered too late to be noticed
The author has being a positive one, and so not enforceable in equity on the ground discussed bills of sale at some length. We are much pleased with
in the book, ought to be noted up at p. 252. of notice. But the court preferred to base the judgment on the his manner of treating them, and we feel sure that this part of fact that a rent-charge was, in fact, created, and that a covenant to the book will be a very useful guide to the intricacies of pay that would run with the land.
the Acts. The author has omitted to mention that a register Somewhat similar is the old case of Holmes v. Buckley (1691, of receiving orders is kept at 34, Lincoln’s-inn-fields. We hope 1 Eq. Ca. Ab. 27), where a watercourse was granted to B. by A., that in the next edition he will discuss the very difficult questhe owner of land, and A. covenanted to repair it. A. and B. tions that may arise as to the effect of non-registration of receiving both assigned their interests, and the assignee of the watercourse orders and adjudications under the Yorkshire Registries Act, 1884. brought an action against the assignee of the land for breach of the covenant. He succeeded on the ground that the burden of this covenant ran with the land. This decision has been a stumblingblock since, but it may, perhaps, be supported on the ground that
CORRESPONDENCE. the covenant was made as part of the grant of an interest in the
RE CORSELLIS. land. In our next article we shall deal with covenants relating to the
[To the Editor of the Solicitors' Journal.] use of and here we shall find that great efforts have been
Sir,—Their lordships, in giving judgment in this appeal, say :made to shew that the burden of these can in no case run with the where his interest and his duty were in conflict,” and again “The
“The trustee in acting for the receiver had put himself in a position land at law.
same argument did not apply to steward's fees, as they were not professional charges, but were fixed by statute or custom,” and the
solicitor-trustee was held entitled to a share of the profit, and so to REVIEWS.
make a profit out of his trust.
Apply these dicta to business done for lessors or vendors under the BANKRUPTCY.
scale. In such cases the solicitor's interest and duty do not conflict, THE LAW AND PRACTICE OF BANKRUPTCY,
as the more the rent or purchase-money the better the fee, and the
Will the Law Society raise this point for the profession ?
AN OLD FIRM. The last edition of this book was published in 1884, and has been exhausted in less than three years ; considering the size of the book, this is a rapid sale, and shews that the book has been found useful. This edition contains (1) a short historical statement of the
There has been a good deal of controversy as to the proper law of bankruptcy prior to 1884 : (2) the Bankruptcy Act, 1883, with answer to the question on the Remuneration Order propounded by very full notes to each section ; (3) the General Rules under the Act, “ Juvenis ” last week (ante, p. 230).
“T. G. S.” writes :-“To me it with full notes; (4) General Rules as to Administration Orders under appears that the contract with the purchaser should be on the consection 122 ; (5) the Lord Chancellor's Orders under sections 94, ditions of sale, with a statement that they are adopted so far as they 103; (6) Judges' Orders as to bankruptcy business in the High are applicable to a sale by private treaty. This avoids the necessity of Court; (7) orders as to fees and stamps ; (8) Board of Trade Orders ; | another contract, and the charges for the conditions would, I think, and (9) the Bills of Sale Acts, with copious notes.
be covered by the scale fee on the £3,600, which, I suppose, The cases appear to have been carefully collected till the latest - Juvenis” will receive. The charge for attending at the auction possible moment; the authors have even noticed the decision of the and possibly some other charges should be according to schedule II. Court of Appeal in Re Morritt. The discussion of what property is "Juvenis ” speaks of negotiating a sale, possibly he thinks of receivdivisible amongst the bankrupt’s creditors extends to 144 pages, and ing negotiation fee also. As to this the arrangement with the is an able summary of the law on the subject, which comprises many auctioneers is not fully stated. Is not this case, roughly speaking, sub-headings; we may call attention to the dissertations on Mort covered by Re Beck, Re Cartington's Estate (24 Ch. D. 608), and Mr. gage of After-acquired Property" (page 354), and Interests deter- Wolstenholme's opinion taken by the council, March 2, "1883, and examples of the authors' method of han lling difficult subjects. It ap- writes : -" I agree with your conclusion that your correspondent's bears, however, to be most difficult for writers on law to avoid making remuneration is under schedule II. of the Remuneration Order, blunders about executions. We do not much wonder at this, because but I disagree with your reason. Your reason is, because it but few lawyers are acquainted with the practice. We can even forgive is • business not in fact completed under clause 2 (c) of
252 the order.' This, I submit, is wrong, for the business is as life is very uncertain at my time of life, and as you are, of all the world, sufficiently completed as to be an abortive sale, which is provided the person I love best, I hereby will and bequeath to you, after my death, for by schedule I., part I., of the order ; but it is thrown under the eight cottages in Peckham's-walk, occupied by C. Warren and E.
You will keep this letter as a proof of my intention, schedule II. by the fact that the client is paying an auctioneer's Neath and others.
in case of any sudden change occurring to me rendering me incapable of, charges, and, therefore, the scale conducting fee does not apply
or not in a state of mind fit for, the performance of so important a (rule 11, schedule I., part I.). The matter then becomes, in the lan- document, and making null and void any former will and bequest I may guage of clause 2 (c) of the order," business, the remuneration for have made previously. I am doing this, my dearest, as a temporary which is not hereinbefore, or in schedule I. prescribed, and is regu- provision for you in case of any emergency. I am your future lated according to the old system as altered by schedule II."
husband in its most holy sense, PATRICK VINCENT." The letter was not We are disposed to adhere to our view. The scale fee for con- attested as a testamentary instrument. After the marriage the husband ducting an abortive sale by auction is, under the circumstances stated made two wills. By the first he left all his property to his wife; by the by “ Juvenis," inapplicable under rule 11. But the “transaction" second he left her only a fourth part of the residue of his estate. This viz., the sale-is one the remuneration for which-i.e., the deducing action was brought by the widow against her husband's executors and fee—is prescribed; the attendance at, and other matters connected trustees, claiming the eight cottages under the terms of the letter. with, the the abortive auction are, therefore, “ business not herein- Stirling, J., dismissed the action, holding that the letter was not a before provided for connected with any transaction the remunera
sufficient memorandum of an "agreement made upon consideration of tion for which, if completed, is hereinbefore, or in schedule I. marriage" under section 4. He said that the consideration was not ex.
pressed to be the marriage, such consideration as was expressed being hereto, prescribed, but which is not, in fact, completed.”
the uncertainty of life and the affection of the writer for his intended wife. The language of the letter, too, was not that of agreement, but of a present testamentary disposition, as which it might have taken effect, if it had been properly attested.
THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed CASES OF THE WEEK.
the decision. Conton, L.J., said that the only question was whether
there was a contract in the letter itself. The letter was that of an Re PARKER AND BEFCH'S CONTRACT–C. A. No. 2, 4th February. ardent lover to the lady of his choice, and there could be no doubt VENDOR AND PURCHASER-SALE BY MORTGAGEES-Receipt for PURCHASE- that the writer thought he was making a present gift, and was not MONEY-SUB-DIVISION MORTGAGE-MONEY-SEPARATE Receipts BY contracting to settle the property on her. The letter did not form SEPARATE SETS OF MORTGAGEES.
part of negotiations for a settlement, and there was no question of a This was an appeal from the decision of Kay, J. (30 SOLICITORS' representation of an intention, no statement of an agreement to settle, JOURNAL, 469), upon a summons under the Vendor and Purchaser Act, ment of a gift. It would be wrong to construe the letter as a con.
or to leave property after the writer's death. There was only a state1874, taken out by a purchaser of real estate. The vendors were two sets of trustees, who were mortgagees of the property, and who had sold it tion of the testator was to make an informal'testamentary disposition,
tract. LINDLEY, L.J., concurred. Lopes, L.J., believed that the intenunder their power of sale. The mortgage was made to two persons, M. and F., and the mortgage deed contained a declaration that the mortgage COUNSEL, Barber, Q.c., and Jason Smith; N. R. Smart. SOLICITORS, G.
as a contract could not "make null and void any former will." money (£12,000) belonged to the mortgagees on a joint account... A power Robins, Belfrages Co. of sale was given to the mortgagees in default of payment of the money at the time appointed, and it was declared that, upon any sale, the receipt
CROWTHER v. ELGOOD-C. A. No. 2, 3rd February. or receipts in writing of M. and F., or the survivor of them, or the executors or administrators of such survivor, their, her, or his assigns, should be ATTACHMENT_FAILURE TO OBEY ORDER FOR PAYMENT OF MONEY-"Persos eufficient discharges to the purchasers. And it was further declared that ACTING IN A FIDUCIARY CAPACITY"--AUCTIONEER -Debtors Act, 1869, the power of sale might be exercised by any person or persons who for the S. 4, SUB-SECTION 3-APPEAL-SECURITY FOR Costs. time being should be entitled to receive and give a discharge for the moneys for the time being due and owing on the security of the mort
The question in this case was whether an auctioneer, who had received gage. By a memorandum of even date it was declared by M. and F. that the purchase money of property sold by him, and had failed to obey an the £12,000 belonged to them in the proportions of £5,500 to M. and
order directing him to pay it to the receiver in the action, was" a person $6,500 to Fr Fubsequently M. and F. respectively assigned their respec- acting in a fiduciary capacity” within the meaning of section 4 of the tive shares of the mortgage-money to separate sets of trustees, on different Debtors Act, 1869, and therefore liable to attachment for his disobedience trusts, and these trustees collectively sold part of the property under the
to the order. Kay, J., on the 28th of January last, directed the issue of a power of sale in the mortgage for £11,700, which did not cover the whole
writ of attachment against the defendant, E, an auctioneer, for disamount then due on the mortgage. The 'memorandum as to the division obedience to an order of the 13th of December, 1886, directing him, of the mortgage-money and the assignment to the trustees formed part of within a time limited by the order, to pay to the receiver a sum of £638, the abstract of title to the property. The purchaser contended that the being the balance of the proceeds' of a sale in the action which had been mortgage-money did not belong to all the trustees collectively on a joint conducted by the defendant as auctioneer. On the 25th of January; account, and that the joint receipt of the whole body would not be a good 1886, a receiver was appointed in the action to receive the rents and profits discharge for the purchase-money: He insisted that the purchase-money of certain property, and also the proceeds of the sale of certain stock and ought to be apportioned between the two sets of trustees, and the appor
effects. amounts given by the two sets of trustees respectively. He contended balance of 4.63s remained due from E. The order of the 13th of Decem tioned amounts stated in the conveyance, and separate receipts for those proceeds were received by the defendant E., the auctioneer who conducted that he had notice of the existence of two sets of trusts, and that it was his duty to see that the money was properly divided between the two sets ber was not complied with, and, E. being unable to meet his liabilities, of trustees. The vendors insisted that they, as a body, were entitled to
his creditors, on the 13th of January, 1887, resolved to accept a compania exercise the power of sale, and to receive and to give a receipt for the
sition. On the 28th of January Kay, J., on the application of the purchase-money. The summons was taken out to determine this question. receiver, directed a writ of attachment to issue against E. Kay, J., held that the money to be paid by the purchaser did not repre- the decision, cortof, 1. J., said that two points had been raised morety sent the mortgage-money, but was the price to be paid to the persons
that E. was not liable to attachment for default in payment of the money would be a good discharge to the purchaser.
The Court of Appeal (CoIron, Lindley, and Lopes, L.JJ.) affirmed exercise of his discretion, ought not to have sent him to prison. It was the decision. Lindley and Lopes, L.JJ., agreed with the view taken by argued that, although an auctioneer, as to the goods intrusted to him for Kay, J. Corton, L.J., was inclined to differ, but he concurred in di sale, stood in a fiduciary relation to his employer, this fiduciary relation missing the appeal, on the ground that, by the statement of facts sub. did not extend to the money received from the sale of the goods; and mitted to the court, the purchaser had admitted that the vendors had a that, if he mixed it with his own money, it became part of his general good title to the property.--Counsel, A. 4. Terrell; Graham Hastings, C., and Decimus Sturges. Solicitors, Ernest A. Fuller; Meredith, whether the money which the debtor was ordered to pay was trust
money, but whether he acted in a fiduciary character in the transaction VINCENT v. VINCENT-C. A. No. 2, 4th February.
in which the money came into his hands. There could be no doubt that
the appellant acted in a fiduciary character in the sale of the goods, and CONTRACT IN CONSIDERATION OF MARRIAGE- MEMORANDUM -- STATUTE OF
therefore he came within section 4, whether he still had the money under FRAUDS (29 CAR. 2, c. 3), s. 4.
his actual control or had parted with it.
As the judge had jurisdiction to This was an appeal from a decision of Stirling, J. (reported 35 W. R. 7) the mot interfere with the exercise of this discretion in ordering the attachment
make the order, and the default was proved, the Court of Appeal could question being whether a certain letter written by a man to a lady to whom to issue. he was then engaged to be married, and whom he afterwards did marry,
LINDLEY and LOPES, L.JJ., concurred.
The order for attachment was made by satisfy section 4 of the Statute of Frauds, and capable of being enforced January, the defendant, by special leave Yobtained from the Counters by the wife against the estate of her deceased husband, who hadh by this Appear, served a notice of appeal for Wednesday, the 2nd of Februari will disposed of certain property mentioned in the letter in a manner inconsistent with that letter. In the year 1890, the testator, a man then that the appellant might be ordered to give security for the costs of tea which contained the following passage.. . And now, harga dearest tingengiven, but inomas turged that, tise the respondent could not, bý reason of
In July, 1980, he wrote a letter to her, he he was in Souvend. that anotice or the application for security had been
On Monday, the 31st of