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power to act as executor, administrator, trustee, and receiver. The idea of conferring on public companies power to act as trustees is not a new one. As is well known, companies with such powers exist in some of the colonies, and attempts have been previously made to introduce them here. Thus in 1854 there were two Bills of a similar character before the House of Lords—the South Sea Company's Bill and the Executors and Trustees’ Bill. They were referred to a select committee which, after hearing the Incorporated Law Society in opposition, reported against them, and the Bills consequently dropped. The promoters of the National Safe Deposit Bill propose to act as executors and trustees on the same teims as to remuneration as private individuals—that is, we presume, it is intended to have a remuneration clause inserted in the wills or other instruments creating the trusts to be administered by the company; it appears to us that the terms on which the company propose to transact trust business should be sliewn in the 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, &c. It may be suggested that these trustee companies, or their directors, will be subject to a conflict of duties. On the one hand, it will be their duty to their shareholders to make their profits as large as possible, while on the other it will be their duty to their csstuis que trust to keep down the expenses in connection with the administration of estates. And it may be added that these expenses are likely, in the case of company trustees, to be considerably increased, as, unlike private individuals, the company will know nothing about the estate or the beneficiaries; will risk nothing; and will require evidence upon every point to be given in the same way as in administration by the court. Without, however, discussing at length the advisability of enabling 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 proposed change is advisable it should be effected by means of a general public Act, passed after full consideration of its probable effect. We observe that both the Bills above referred to contain a clause, the meaning of, and necessity for, which is not very apparent. It is as follows :—

“ Where, by any will, codicil, or other testamentary writing, a testator

shall direct that any practising solicitor shall conduct the legal business Of lusestate, such solicitor shall be entitled to act therein accordingly; but in such case the company shall not be liable for the negligence, misfeasance, nonfeasance, or misconduct of such solicitor, and such solicitor inay_bc_rcmoved by order of a judge of the Supreme Court upon the application of the company or of any person interested in the said estate upon cause shown, and in any such case the judge may appoint the solicitor of the company, or some other solicitor if he thinks fit, to conduct the business oi the estate." The solicitor, whether appointed by the testator or not, could, of course, only act 0n_the instructions of the executor, and could be “ removed ” for misconduct without any provision such as that above quoted, for_u_nder a direction in awill that a particular person should be the sohcitor to the testator’s estate and to his trustees in Oflfrymg out the provisions of the will, there is no duty imposed on the trustees of the will to continue the solicitor as their solicitor (Foster v. Elsley, 30 W. R. 596, 19 Ch. D. 518).


Gnnar RELIGIOUS MOVEMENTS, animated as they usually are by the spirit of one man, naturally tend to fall under his absolute control. As it happened with WESLEY a hundred years ago, so now it has happened with General B00111. But, however willingly the disciples may submit to their self-imposed subjection, the outside world is less satisfied and is especially disposed to cavil when absolute power means the unfettered control of large sums of money. It is nevertheless, a little dilficult to see why it should have been con: sidered necessary in the case of Lea v. Cooke that the accounts of the Salvation Army should be brought before Mr. Justice N0RTH_ The matter arose out of a bequest that had been made to General Boorn “for the spread of the Gospel." It was not disputed that 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 a scheme ,It is fortunate, perhaps, that this contention failed. The Salvation Army has devised methods of its own “ for the spread of the Gospel,” and some curious questions might have arisen if these had been embodied in a scheme and presented to the court for its


sanction. But really this was quite unnecessary. Mr. Justice N ourir had no difficulty in holding that the Army exists “ for the spread of the Gospel,” and the testator knew perfectly well what he was about in selecting General Boorii as the person to apply the bequest. In the similar case of Wile/i v. Glads/one (l Ph. 290) there was a bequest to a legatec for the use of a Catholic College. The legatee died in the testator’s lifetime, and the president of the college petitioned for payment to himself. This the Lord Chancellor directed, but not before he had satisfied himself as to the respectability of the president and the permanence of the institution. In the present case, however, General Boorn was himself the person selected by the testator, and it might have been sufiicient to carry out his instructions simply. In going further than this, however, Mr. Justice N ourii has done the Army the service of testifying to the regularity and integrity with which its affairs are managed.

Ir 1I.\s ass): DECIDED by the Court of Appeal in Liz/all v. Kemmly that old Scotch parish registers are not admissible in evidence. This was upon the ground that, in order to make any register admissible, it must have been kept by some person in pursuance of a duty imposed upon him by the law. That is the modern rule. It is curious how diverse its effects are when it comes tobe applied to ancient documents kept in the manner that was thought proper at the time. In England and Scotland the record of births, meninges, and deaths was equally a matter which fell within the province of the church, and to it our forefathers were content to leave it. But in England the registers were kept in pursuance of the canon law, which was recognized by the common law as binding on the clergy. There was, therefore, a legal duty imposed upon them. In Scotland, apparently, the Kirk Session, or body of Elders, appointed a clerk for the purpose, but this was simply in accordance with the prevailing ractice, and not under any law, or, at least, not under any law of) the State. There was, therefore, according to our modern strict notions, no legal duty imposed on any person to keep the register. In the one case, then, the register is evidence, in the other, not. This is perhaps as good an instance as could b6 met with of the effect of applying modern notions to old circumstances. In each case the registers were kept practically in the same way, and to the ordinary mind might i1pp"{\i‘ equally worthy of credence. The church assumed responsibility in the matter, and there our fathers left it. But with us duty, to be recognized at law, must be legal duty, properly imposed by the State. The English registers are saved by the accident of the canon law_beiug recognized by the common law. In Scotland they meet with no such good fortune ; the modern rule of evidence excludes them at once, and one chief source for tracing pedigrees is gone.

Tni: LAW prevailing in Germany which forbids the administration of extra judicial oaths, and which led a learned member of t_l19 English bar into trouble some time ago in that country, gives 1189 to inconveniences besides those relating to the examination of witnesses. In Re Schmidt’s Trade-Mark (mile, p. 23-1) 8 power of attorney for payment of money out of court W115 required, and the grantor of the power, being a GBHIW1 and resident in Germany, could not, without considerable expense, travel into a country where an oath could be legflllf administered to the attesting witness. Under these 011‘cumstances, Mr. Justice Sriannw allowed the signature to the power to be verified in this country by a person knowing the handwriting of the grsntor. In this case the sum was not large» but it cannot be expected that in every case judges will be B0 lenient. It may be useful to suggest that, whenever it is possible, in similar cases, the signature should be attested by a witness who is coming to England—-e._q., the captain of a steamer-who can» on his arrival here, make the necessary affidavit in verification.

Ir is iiucii to be regretted that the Lords Justices, in exercising their jurisdiction in lunacy, do not adopt, in the exercise of Ill?" discretion, such of the Rules of the Supreme Court as 819 "PPh°' able to that jurisdiction. In the case of Re Ilume (anle, P- 232)’ in which it was desired to use on the hearing of u petili°" 3




afiidavit which had been filed in another petition in the same lunacy matter, but relating to a different estate, the court might obviously have permitted the evidence to be used, as asked, in accordance with the provisions of ord. 37, r. 3, had they been so disposed, but in deciding that the proper course was to make a short affidavit on the second petition verifying the affidavit filed on the first, it must, with the utmost respect for the learned members of the court, be admitted they have gone out of their way to impose an unnecessary condition which the rule abovementioned was intended to avoid in the ordinary business of the Supreme Court.

AN AMUSING INSTANCE was mentioned in Mr. Justice Cnirrr’s court on Saturday last, shewing how easily the most prominent features of an Act may be forgotten by those who introduced it into Parliament. It appeared, from what was stated by counsel in court, that the late Vice-Chancellor )I.ii.ixs, who, when member for Wallingford, had introduced and carried the Infants’ Settlement Act, 1850, through Parliament, had a petition under that Act before himself in court. As will be remembered, the age at which a young lady can, under the Act, execute a binding settlement of her property is fixed at seventeen. The Vice-Chancellor, hearing that the young lady in the case in question was only seventeen, said that the age named in the Act was eighteen, and, persisting in this opinion, would have dismissed the petition on that ground had not his attention been called to the actual words of the Act by the counsel engaged in the case. This case is the more remarkable as the memory of the Vice-Chancellor was usually

particfllarly accurate in matters having a personal relation to imse .


_ IN ran case of Re Herbert (ante, p. 235) a question of some importance to solicitors was raised in argument, though no decision was given upon it. The point decided was that, under the common 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 bill, though he cannot deny the retainer altogether. It was argued that the ordinary rule, that the solicitor must pay the costs of the taxation when more than one-sixth of the bill is disallowed by the taxing master, does not apply when the reduction is made on the ground of want of retainer, and not on the ground of overcharge. The cases of White v. llilner (2 H. Blackstone, 357) and Mills v. Reveft (1 A. & E. 856) were cited in support of this proposition. Those cases were decided under the Act 2 Geo. 2, c. 23, s. 23, and no authority since the passing of the Solicitors Act of_l843 was adduced. Mr. Justice NORTH declined to give any opinion on the point, because it had not been raised before the taxing master, but it appears to be a point well worthy of consideration.


ONE indirect effect of the Married Women’s Property Act, 1882, has probably been to increase the number of applications under the Infants’ Settlement Act, or, at any rate, to increase the number of occasions on which the latter Act would afford the only means of_ making an effectual marriage settlement. The way in which this has come about is not diflicult to see. Before the passing of the Married Women’s Property Act it was often practicable to settle the property of the intended wife (when an infant), by means of the husband's covenant to settle all property acquired by him in right of his wife; and as the number of cases in which theintended wife is an infant must probably far exceed those in which the husband is an infant, such an expedient was of great practical service, especially so in the case of wards of court Who may have married without the sanction of the court, in which case the husband’s covenant could (if necessary) be obtained on pain of attachment. Since the passing of the Married _w°m8l1's Property Act the method of effecting a settlement of the ll1fantwifo’s property by means of the husband’s covenant is no l°"8§!'_ possible, and recourse must now, in all cases, be had to the provisions of the Infants’ Settlement Actif an effectual settlement Pf the infant’s property is to be made.

Such being the case, a decision upon the extent of the powers

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of the Infants’ Settlement Act is of increased importance, particularly where the courts have seen their way to give a’ liberal interpretation to its provisions. The case of Re Plailli s, an infant, just decided by Mr. Justice Chitty, and reported? elsewhere, has (if we may say so) carried the decision of the Court of Appeal in Re Sampson and Wall (32 W. B. 617, 25 Ch. D. 482) to its only logical conclusion.

The points decided by these cases may be shortly stated thus: By the Infants’ Settlement Act (which is a short Act of only four sections) it is provided that “it shall be lawful for every infant, upon or in contemplation of his or her marriage, with the sanction of the Court of Chancery, to make a valid and binding settlement or contract for a settlement of all or any part of his or her property ” ; and section 4 provides that “nothing in this Act contained shall apply to any male infant under the age of twenty years, or to any female infant under the age of seventeen years.” It was thought for some time that the words “upon or in contemplation of marriage" did not justify post-nuptial settlements. By the case of Re Sampson and Wall, however, the Court of Appeal decided that the Act was wide enough to include a settlement made upon the occasion of marriage, though made after the marriage; and, by the more recent case of Re Phillips, Mr. Justice Chitty has decided that the mere fact that the infant was under the age of seventeen or twenty (as the case might be) at the time of marriage will not prevent the court from sanctioning a post-nuptial settlement after the attainment of that age, if, upon the circumstances, the settlement could still be deemed to be made “ upon the occasion of the marriage,” to which terms Mr. Justice Chitty stated he was not disposed to put too narrow a limit.

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 postnuptial settlement on the occasion of marriage, it is diflicult to see how Mr. Justice Chitty could have decided otherwise than he did ; for, assuming an enabling power to make a post-nuptial settlement, we have at once suggested the mode of applying the limit of the 4th section—viz., that an infant shall not have this enabling power it he be under the specified age—and there can be no logical reason (us Mr. Justice Chitty pointed out) why an infant who was married a day before seventeen or twenty should not have as much power of making a post-nuptial settlement as an infant who was married the day after.

The consideration of the facts connected with these cases naturally suggest points for which further provision may yet have to be made. One important point is this : there can be_ no question that, where the wife is entitled to property, a marriage settlement is a beneficial thing, and none the less so because the wife is an infant ; every facility should, therefore, be afiorded for 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, iii many cases where the husband’s covenant formerly sufficed, no settlement is now made at all. If this is so, it may be worth the consideration of the Legislature whether a statutory form of marriage settlement could not be made for cases under a fixed limit, say £2,000 or $3,000, and a statu; tory power given to infants of the ages mentioned_in the Infants Settlement Act to execute a statutory settlement with the sanction of parents or guardians, without any application to the court. The forms of settlements, when settled by the court, are, to a great extent, common form, and substantially_the same in the ma]ority of cases, at any rate, for small properties; and it would not be diifieult to settle a form which would meet most requirements _for properties up to the value of £3,000, or even n_iore. An application to the court would then only be necessary in such cases when a modification of the statutory form might be reflulrei The settlement of properties over the fixed limit would still be carried out under the Infants’ Settlement Act as heretofore.

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So far we have treated of covenants contained in leases. The subject becomes more difficult when we turn to covenants between the owner of laud and some person other than a lessee. Such person may himself have an interest in the land, as where he is entitled to a rent-charge the payment of which is secured by covenant; or he may have formerly had an interest in the land, as where he was the vendor and has covenanted for title ; or he may be the owner of adjacent land, the two plots either lying under common restrictions, or the one enjoying some advantage by covenant over the other ; or he may be a complete stranger. This, of course, is merely a list of cases that must he considered, not by any means of cases in which the covenants really run with the laud. We have already said that such covenants as these usually depend upon the doctrine of notice; but it would not be safe to discard the possibility that they may sometimes run with the land at law. This was, at any rate, important enough to be made the subject of full discussion in Amterbervy v. The Corporation of Oldlmm (1885, 33 W. R. 807, 29 Ch. D. 750), and we shall try to define the present position of the question.

We have already pointed out that privity of estate may be required in the first place between the two covenanting parties and then between the successive assigns from either of them. As to the former point there is much doubt. We have referred to the case where the covenautiug parties have each an interest in the land, where, for instance, one is owner and the other has a rentcharge. This, of course, is very similar to the case of a lease, and just as it was necessary for the lease to have come out of the estate of the lessor, this constituting privity of estate, so it is reasonable to suppose that the rent must have come out of the estate of the owner. Accordingly it has been so held. The point arose in Zllilnes v. Branch (1816, 5 M. 8: S. 411). Here A. conveyed land to trustees to the use that he himself should receive a rent, and, subject thereto, to B. in fee. B. covenanted to pay the rent, A. demised to C. for 1,000 years, and C. sued B. for a breach of the covenant. A good deal was said in the case as to covenants not running with rent-charges, but Bayley, J., based his judgment on the ground that, as B. was not the grautor of the rent-charge, there was no privity of estate between A. and B., and so the covenant was in gross. The same point was decided by Parke, B., in Randall v. Rzlqby (1838, 4 M. & \V. 130).

But when we consider covenants between an owner of land and other persons having no present interest in it, the case is more doubtful. Is such privity required as exists between a vendor and purchaser, or can a covenant, to run with the land, be made with a mere stranger? The Real Property Commissioners raise the doubt, but state on the authority of Lord Coke (Co. Litt. 384 that there is no distinction. Lord Coke refers to the well-known case of_the prior _who covenanted on behalf of his convent to perform divine service m the chapel of a manor. The question was whether the benefit of this covenant ran with the manor, and it was held that it did. But Lord St. Leonards strongly disputes this (Vendors and Purchasers, p. 586, 14th edition), and shews that the person who sued on the covenant really sued as being a privy in blood. He would indeed insist on privity of estate in all its strictness, but he is staggered when he contemplates the actual consequences of this, especially in regard to covenants entered into by a yendor. The vendor is frequently a mortgagor or a mere cestui qua trust, and l1lS_COV811BDtS would, therefore, be covenants in gross. Hence he advises that the vendor should always get in the legal estate before conveying. As to certain covenants—viz. those implied under the Conveyancing Act—we shall see hereafter that the necessity for privity of estate has been expressl abolished. But it is doubtful whether, in the sense now ii question, it is ever really necessary, and the opinion of the R331 Property Commissioners is adopted in Smith’s Leading Cases (Notes to S1iencer’s case, I., p. 80). It will be safe then to assume that cxcept in the case of rent-charges above discussed privity of estnté bctwceu the original coveuanting parties is not necessa . but while one is the owner of the land, it is indifferent whelthér th other is in any way connected with it or no. It may be observ d that this solution lcts in the possibility of covenants betwee ti owners of two adjacent plots, which have never been held Znde:


the same title, running with each of them; according to the opposite opinion they must necessarily be in gross.

But when we come to the other point and inquire as to privity of estate between the successive owners of the land, we find ourselves in the thorny paths of conveyancing, and the Statute of Uses shews itself in unexpected and startling efiects. We have already pointed out that covenants do not really run with the land at all, but only with particular estates in the land. When these estates are gone the covenants are gone too. But under the old form of conveyance to uses to bar dower, it was no uncommon thing for the owner, upon a transfer of the land, to destroy his own estate and create another in its place. Hence great care had to he taken to select the right person to join in the covenant. An example will make this clear. A. conveys land to B. to such uses as C. shall appoint, and, subject thereto, to the use of C. in fee. Suppose A. covenants for title with C. Now, if C. conveys his estate, the covenants which are annexed to it go with it to the assign; but if he exercises his power and appoints to D., here his estate is gone; D. takes a new one which springs up in its place and to which the covenants are not attached. But suppose A. covenants for title with B. ; then it appears that when the Statute of Uses carries the legal estate to C., it carries with it the covenant also, and so when in any manner the use becomes vested from time to time in other persons. As the seisin of B. successively serves all the uses, so the covenants with B. are transferred to all the uses. Hence, whether C. appoints to D. under his power or conveys his estate to him, in each case D. takes a use to which they are annexed. Hence there need be no difiiculty if the covenants are entered into with or by the right person. We have said above that, when they are made with C.,andhe assigns his use, they go with it. The Real Property Commissioners were of a different opinion, and held that such a covenant was in gross; hence they proposed to obviate the difiiculty by enacting that the covenants should run with the land in the hands of successive owners, notwithstanding want of privity of estate. But this view is contested by Lord St. Leonards, who advocates the doctrine set forth above. The matter received an interesting illustration in the case of Roach v. Wudham (1805, 6 East, 289)There the conveyances were in brief as follows: A. conveyed to Bto such uses as C. should appoint, and, subject thereto, to Cin fee, yielding a rent to A. ; C. covenanted for the rent with ATheu 13., by direction of C., conveyed to D. in fee, subject to the rent, and D. covenanted for rent with C. Here the first covenant was entered into with C., and, by what we have said above, this would run with a conveyance of his interest, but not with a I1_6W use under the power of appointment. Hence the only question was whether D. took by direct conveyance or under the powerIn the event it was held that he took under the power, and the burden of the covenant did not run. This case not only ill"trates the above principle, but also shews that the burden of such s covenant could run with the land. To this matter we shall rec"!Lord St. Leonard advises that, when a vendor intends the bunjlell of a. covenant to run with the land, in order to avoid its being turned into one in gross as above, the purchaser should be compelled to take an ordinary direct conveyance. Of course, the importance of the matter has greatly decreased now that the old uses to bar dower are obsolete. Nevertheless, as long as the Statuto of Uses exists to afford scope for the ingenuity of conveyancers, the question may at any time arise. It is to be noticed that no change is made in this respect by the Conveyancing Act. Indeed» the rule seems to be there re-enacted; as we shall hereafter B99 the covenants to which it relates run, not with the land for the benefit of successive owners, but with the particular estate 01' interest of the original covenautee. But as such covenantee is, 1111581‘ the Act, the grantee to uses, the implied covenants go with the uses in the manner just described. _

Moreover, that a covenant may in any case be capable of ruunmg with the land, it must concern or relate to the land. This matte!‘ was dealt with at length by Cotton, L.J., in his judgment "1 Ausferberry v. Oorporation q“ Oldham (1885, ub1'eupr&)

But, granting that these preliminaries are satisfied, W9 hlm’ still to inquire whether the benefit or the burden of a coY811'"_1t ever docs run with the land at law. As to the burden» therein most cases grave doubt, but the state of the law can °111Yb° made clear by distinguishing the different kinds of covenants which are met with. They refer either (1) to a grant of some

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interest in the land; (2) to some special use of the land; or (3) to title and to title deeds. These must be treated in order :

(l) Where the covenant rqfere to a grant of an interest in the land.—Most of the cases arising under this head are cases of rentcharges which the owner of the land grants, and which he covenants to pay. Here we have to consider whether the benefit runs with the rent and the burden with the land. The former point introduces a new consideration entirely—viz., whether a covenant can run with the rent. This is a matter which is by no means clear. Brewster v. Ktdgill (1698, 12 M. R. 166) seems to be an authority that it can ; but in Illilma v. Branch (suprd) Ellenborough, C..T., was of the contrary opinion. Lord St. Leonards, however, shews with much force that a rent, considered as a hereditament, is really no more incorporcal than an estate in the land, and that a covenant should be equally capable of running with it (Vendors and Purchasers, p. 591n (II.) ). This has, indeed, been allowed in regard to tithes (Bally v. Walls, 1769, 3 Wils. 25), and the same considerations apparently ought to apply to rents.

But there seems no reason to doubt that the burden of such a covenant would run with the land, and this was practically the effect of llforlcmd v. Cook (1868, 6 Eq. 252). Here, upon a division of lands below the sea level, arrangements were made to maintain a sea wall, and the various owners covenanted with each other that the charges of maintenance should he raised by an acrescot. Romilly, 1\I.R., considered that probably the burden of this covenant ran with the land, but he decided the case on the ground that the subsequent assignees came in with notice. However, in Aiuterberry v. Corporation of Oldham (supra, in judgment of Cotton, L.J., at p. 774) this last reason was not allowed, the covenant being a positive one, and so not enforceable in equity on the ground of notice. But the court preferred to base the judgment on the fact that a rent-charge was, in fact, created, and that a covenant to pay that would run with the land.

Somewhat similar is the old case of Holmes v. Buclcley (1691, 1 Eq. Ca. Ab. 27), where a watercourse was granted to B. by A., the owner of land, and A. covenanted to repair it. A. and B. both assigned their interests, and the assignee of the watercourse 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 phedcovenant was made as part of the grant of an interest in the an .

In our next article we shall deal with covenants relating to the use of land, and here we shall find that great efforts have been miide to shew that the burden of these can in no case run with the land at law.


Tris Law AXD PRACTICE or BANKRUPTCY, COMPRISING THE S-rarcrns, GENERAL Russ asp Foinis, axn run BILLS or Sam Acrs. THIRD EDITION. By Lawronn Yarn LEE and HENRY WAGE, Barristers-at-Law. W. Maxwell & Son.

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 shows that the book has been found useful. This edition contains (1) a short historical statement of the law of bankruptcy prior to 1884 : (2) the Bankruptcy Act, lSS3, with very full notes to each section ; (3) the General Rules imder the Act, with full notes; (4) General Rules as to Administration Orders under "’°h°" 122 ; (5) the Lord Chancellor’s Orders under sections 94, 103; (6? Judges’ Orders as to bankruptcy business in the High C°‘"'t; 7) orders as to fees and stamps ; (S) Board of Trade Orders ; and (9) the Bills of Sale Acts, with copious notes.

Tlie cases appear to have been carefully collected till the latest l{0S5lbl6 moment; the authors have even noticed the decision of the l»_0\}!_t of Appeal in Re .l[<n-ritt. The discussion of what property is divisible amongst the bankrupt’s creditors extends to 144 pages, and is an able summary of the law on the subject, which comprises inany sub-headings; we may call attention to the dissertations on “ MortEifgc of After-acquired Property ” (page 354), and “ Interests determinable on Bankruptcy or Alienation " (page 342), as being good Qxlmples of the authors’ method of han lling diflicult subjects. It aplfitffl. however, to be most diflicult for writers on law to avoid making b unders about executions. We do not much wonder at this, because

lit fcw lawyers are acquainted with the practice. We can even forgdve


a man who confounds the return " to ” and the return “ of ” a writ, but we find it hard to forgive our authors who have disfigured a good book by the confusion shewn in the discussion of Re Hobson, at p. 412.

They state the case and decision quite correctly, “ When land was taken in execution under a writ of elegit, and the sheriff held an inquisition and delivered the land in execution to a creditor before a receiving order was made against the debtor, but did not return the writ until after the receiving order, it was held by Bacon, V.C., that the execution had been completed by seizure so as to entitle the judgment creditor to hold the land against the trustee in the bankruptcy.” Then follows the surprising remark, “ But the correctness of this decision appears doubtful, as the return to the writ is an essential part of the execution.” We have so often explained this during the last few months that we feel almost ashamedto repeat that “tho delivery of land in execution,” “ the completed seizure of land ” un_der a writ of olegit, is effected by the return “ to ” the writ, so that as in this case the report states that the land was delivered iii execution, it necessarily implies that the return “ to ” the writ, which is quite different from the return “ of " the writ, was made.

A CONCISE TREATISE UPON rm: Law or BANKRUPTCY. By EDWARD T. Bannwm, Barrister-at -Law. FIFTH EDITION. Stevens & Haynes.

This well-known book quite keeps up the character for completeness and accuracy that it gained by the former editions. We were somewhat incredulous as to the statement by the author, “That all thc recent decisions in bankruptcy will be found noted in their proper places in the text " ; but, after a somewhat careful examination of the book, we find that this statement is correct. The decision of the full Court of Appeal in Re Merritt, Er parte the Ofiicial Receiver (ante, p. 141), which was delivered too late to be noticed in the book, ought to be noted up at p. 252. The author has discussed bills of sale at some length. We are much pleased with his manner of treating them, and we feel sure that this p_art of the book will be a very useful guide to the intricacies of the Acts. The author has omitte to mention that a register of receiving orders is kept at 3-}, Lincoln’s-inn-fields. We hope that in the next edition he will discuss the very_ difiicult guestions that may arise as to the effect of non-registration of receiving orders and adjudications under the Yorkshire Registries Act, 1884.


[To the Editor of the Solicitors’ JournaI.]

Sir,-—Their lordships, in giving judgment in this appeal, say _:— “ The trustee in acting for t e receiver had put himself in a position where his interest and his duty were in conflict,” and again “ The 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 make a profit out of his trust.

Apply these dicta. to business done for lessors or vendors under the scale. In such cases the solicitor‘s interest and duty do not conflict, as the more the rent or purchase-money the better the fee, and the scale fees are fixed by law and taken out of the category of ordinary professional charges. _ _

Will the Law Society raise this pomt for the profession ?

Feb. 5. AN Om) FIRM.

‘,’ There has been a good deal of controversy as to the proper answer to the question on the Remuneration Order propgun ed by “ Juvenis ” last wcek (ante, p. 230). “ T. G. S. writes :— To me it appears that the contract with the purchaser should be on the conditions of sale, with a statement that they are adopted so far as_they are applicable to a sale by private treaty. This _a_voids the necessity of another contract, and the charges for the conditions_would, I think, be covered by the scale fec on the £3,600, which, I suppose, “Juvenis” will receive. The charge for attending at the auction and possibly some other charges should be according schefdule II. “ J uvenis " speaks of negotiating a sale, possibly he thinks 0 _receiving negotiation fee also. As to this the arrangement with _the auctioneers is not fully Bt9-l?@q- I5_n°§ this 935°» "°“Bl§1$f 9Pe3kmg» covered by ReBeck, _[2e Curlmyton s Estate (2:11 Cpl. D.hbga),lgip3 1:15:51 Wolsteiiholnie s _0pin_ion taken bynthe counci ,h ire d ,H.J» “H, mentioned inthcir Digest, p. 06 f O_n thehot er an hes (.méen£,s writes :—“ I agree with your conclusion t at your co t_ p Order remuneration is under schedule II. of the Remunera ion use ii: but I diwgme with» your reason. Your reaszin is. WW2 (C) of is ‘ business not m fact completed under c auso


the order.’ This, I submit, is wrong, for the business is sufficiently completed as to be an abortive sn.le,_which is provided for by schedule I., part I., of the orders but it is thrown under schedule II. by the fact that the client is paying an auctioneers charges, and, therefore, the scale conducting fee does not apply (rule ll, schedule 1., part 1.). The matter then becomes, in the language of clause 2 (P) of the order, “ biisiuess, the .l‘8l11l1I1§l'8._iZl0l1 for which is not hereinbefore, or in schedule I. prescribed, and is regulated according to the old system as altered by schedule II.

We are disposed to adhere to our view. The scale fee for conducting an abortive sale by auction is, under the circuiiistances stated by “ J uvcnis," inapplicable under rule ll. But the “ transaction ’_’— viz., the sale—is one the remuneration for which—-1111., the deducing fee-is prescribed ; the attendance at, and other matters connected with, t e the abortive auction are, therefore, “ biisiness not hereinbefore provided for connected with any transaction the remuneration for which, if completed, is bereinbefore, or in schedule I. hereto, prescribed, but which is not, in fact, completed.”

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This was an appeal from the decision of Kay, J . (30 Souciroiis‘ J OUBNAL, 469), upon a summons under the Vendor and Purchaser Act, 1874-, 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 under their power of sale. The mortgage was made to two persons, M. and F., and the mortgage deed contained adeclaration that the mortgagemoney (£12,000) belonged to the mortgagees on a joint account. A power of sale was given to the niortgagees in default of payment of the money at the time appointed, and it was declared that, upon any sale, the receipt 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 siiflicient discharges to the purchasers. And it was further declared that the power of sale might be exercised by any person or persons who for the time being should be entitled to receive and give a discharge for the moneys for the time biillg due and owing on the security of the mortgage. By a. memorandum of even date it was declared by M. and F. that the £12,000 belonged to them in the proportions of £5,500 to M. and £_6,500 to F. Subsequently M. and F. respectively assigned their respective shares of the mortgage-money to separate sets of trustees, on different trusts, and these trustees collectively sold part of the property under the power of sale in the mortgage for £11,700, which did not cover the whole amount then due on the mortgage. The memorandum as to the division of the mortgage-money and the assignment to the trustees formed part of the abstract of title to the property. The purchaser contended that the mortgage-money did not belong to all the trustees collectively on a joint account, and that the joint receipt of the whole body would not be a good discharge for the purchase-money. He insisted that the purchase-money ought to be apportioned between the two sets of trustees, and the apportioned amounts stated in the conveyance, and separate receipts for those amounts given by the two sets of trustees respectively. He contended tliathe 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 of trustees. The vendors insisted that they, as a body, were entitled to exercise the power of sale, and to receive and to give areceipt for the p_urchase-money. The summons was taken outto determine this question. hay, J., held that the money to be paid by the purchaser did not repre. sent the mortgage-money, but was the price to be_ paid to the persons who had the power of salc, and that the Jomt receipt of all the trustees would be a good discharge to the purchaser.

Tun Conar or APPEAL (C0'lT()N, Lrnntnv, and LOPBB, L..TJ.\ aflirmed the decision. LINDLEY and Loras, L.JJ., agreed with the view taken by Kay, J. COTTON, L J., was inclined to differ, but he concurred in dismmsmg the 9-PP”-ii 011 the glround that, by the statement of facts submitted to the court, the pnrc aser had admitted that the vendors had a good title to the property.—CouNsi=.r., A. A. Terrell; Graham Hastings Q.O., and Decimua Sturyas. Soucirous, Ernest A Fuller 11 '

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This was an appeal from a decision of Stirling, J . (re 1-ted 3' W 'question being whether a certain letter written by a niliiii to a iiid iwiibhe he was then engaged to be married, and whom he afterwards dd m was a sufllcient memorandum of a contract in consideration of i wary’ satisfy section 4 of the Statute f F ' mumage t°

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as life is very uncertain at my time of life, and as you are, of all the world, the person I love best, I hereby will and bequeath to you, after my death. the eight cottages in Peckh-im‘s-walk, occupied by C. Warren and E. Neath and others. You will keep this letter as a proof of my intention, in case of any sudden change occurring to me rendering me incapable of, or not in a state of mind fit for, the performance of so important a document, and making null and void any former will and bequest Imay have made previously. I am doing this, my dearest, as a temporary provision for you in case of any emergency. . . . I am your future husband in its most holy sense, PATRICK Vrxcs.\'r.” The letter was not attested as a testamentary instrument. After the marriage the husband made two wills. By the first he left all his property to his wife; by the second he left her only a fourth part of the residue of his estate. This action was brought by the widow against her husbaiid’s executors and trustees, claiming the eight cottages under the terms of the letter. Stirling, J ., dismissed the action, holding that the letter was_not a sufiicient memorandum of an “agreement made upon consideration of marriage" under section 4. He said that the consideration was not expressed to be the marriage, such consideration as _was expressed being 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.

Tm! Coriir or APl"lZAI. (Co'rro.\:, Lmnnev, and Lor-i2s,_ L.J.T.) atlirmed the decision. Coirox, L.J., said that the only question was whether there was a contract in the letter itself. The letter was that oi an ardent lover to the lady of his choice, and there could be no doubt that the writer thought he was making a present gift, and was not contracting to settle the property on her. The letter did not form part of negotiations for a settlement, and there was no question of s representation of an intention, no statement of an agreement tosettle. or to leave property after the writer's death. There was only astutement of a gift. It would be wrong to construe _the letter as a_ contract. LINDLEY, L.J., concurred. Loves, L.J., believed that the intention of the testator was to make an informal testamentary dlSp0?1h'?n1 as a contract could not “make null and void any former will. — C0|_',\'5g]_,, 1}.-&<-i-, Q.C., and Jason Sniét/i,- N. R. Smart. Souci-roas,6. Robin.» ; Belfrugc Q C0.

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The question in this case'was whether an auctioneer, who had received the'purchase-money of property sold by him, and had failed to obey rm order directing him to pay it to the receiver in the action, was ‘ 3 pew)" acting in a fiduciary capaclt-y" within the meaning of section 4 of 111° Debtors Act, 1869, and therefore liable to attachment for his disobedwlm to the order. Kay, J ., on the 28th of January last, directed the is~ue oil writ of attachment against the defendant, E , an auction_eel‘._f°Y Q15‘ obedience to an order of the 13th of December, 1886, direchn81"P:i within a time limited by the order, to pay to the receiver a sum oi £63~. being the balance of the proceeds of a sale in the action which hfld been conducted by the defendant as auctioneer. On the 25th of January. 1886, a receiver was appointed in the action to receive the rents and profit; of certain property, and also the proceeds of the sale of certain stock an effects. The sale took place on the 26th of January, 1886, and tili proceeds were received by the defendant E., the auctioneer who conduct-e the sale. A portion of the proceeds was paid over to the l‘€0€lV€l‘, but 11 balance of £038 remained due from E. The order of the l3th_ of_ Dc<_>8_I11' ber was not complied with, and, E. being unable to mcet his liabilities, his creditors, on the 13th of January, 1837, resolved to acccpfi *1 °°mPfi‘ sitioii. On the 28th of January Kay, J ., on the application of t 8 receiver, directed a writ of attachment to issue against E. d

Tun Occur or APPEAL (Ccr'ro.\', Linnnsv, and Lorna, L.J.T;l “mime, the decision. Ourros, L.J., said that two points had been raised-iirs, that E. was not liable to attachment for default in payment of the lflonil’ in K111955011; find, secondly, that, if ho was liable, the judge. 1t 5 exercise of his discretion, ought not to have sent him to prison. "5 argued that. although an auctioneer, as to the goods intriisted 110 him for sale, stood in a fiduciary relation to his employer, this fiduciary relatiopl did not extend to the money received from the sale of the goods; B111 that, if he mixed it with his own money, it became part of his Senmt estate. But the question under section 4 of the Debtors Act was, Mt whether the money which the debtor was ordered to pay ‘"5 trim money, but whether he acted in a fiduciary character in the transaclnolz in which the money came into his hands. There could be no doubt thsd the appellant acted in a fiduciary character in the sale of the gwd!» 1"‘ therefore he came within section 4, whether he still had the mullE_S find“ his actual control or had parted with it. As the 'udge had .i“1'l51“‘"°nifi make the order, and the default was proved, the Court of AI-lPe“1C°u t not interfere with the exercise of his discretion in ordering the attiwllmen to issue. LINDLBY and Lorna, L.JJ., concurred. b

Another point arose thus. The order for attachment was fl1f‘d°t 03; My. J-. on Friday. the 28th of January. on Monday. the J1. of January, the defendant, by special leave obtained from the Cour W APPER1» Berved anotice of ap cal for Wednesday, the 2nd oi F6l)l’ll3‘ When the appeal was opened) on that day the respondent’s counsel a. Z that the appellant might be ordered to give security for the costs of tea °PPe"J. 011 @119 ground that an affidavit which he had himself made shag“ that he was insolvent. No notice of the application for secunfi’ hm of Ewell, but it was urged that, as the respondent could n01» DY mason

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