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meeting only, and we have already noticed the only provision we find in the Act of 1869 relating to transfers. It appears to us also that the language of sub-section (4) is too clear to admit of being limited in the way held by the court. Indeed, the fair import of the language does not appear to have been doubted, but the court seem to have felt justified in putting on it a forced construction, saying "it would seem unnatural to infer that previous statutory fetters upon disallowance or refusal were, by a side wind, to be abolished.' Sub-section (5) of section 4, strangely enough, was not referred to by the court in the judgment.

Supposing even the court to be right in their construction of section 19 of the Act of 1869, and of section 4, sub-section (4), of the Act of 1870, it appears to us that the decision arrived at is not helped, as sub-section (5) is, we think, alone sufficient to give to the justices unqualified discretion. That sub-section applies, as we have seen, the provisions of 9 Geo. 4, c. 61, relating to transfers, and it is quite clear that those provisions give unqualified discretion to the justices at special sessions. This sufficiently appears from The Queen v. Moore and others, Justices of Hertford (7 Q. B. D. 542), before Grove, Lindley, and Stephen, JJ., a case decided in 1881, which arose upon section 15 of the Licensing Act, 1874, enabling the owner of premises, where the licensed person has forfeited his licence by reason of having been convicted of any of the offences there specified, to apply at special sessions for a licence, and making applicable the provisions of 9 Geo. 4, c. 61, with respect to the grant of licences at special sessions. It was there held that the discretion of the justices under section 14 of 9 Geo. 4, c. 61 (the enactment concerning transfers), was unquestionable, and that the justices had not less

discretion under section 15 of the Act of 1874.

greater attractions than the series now in progress. Mr. Pike, besides giving us a good critical text, formed by collation of the best attainable manuscripts, has been at the pains to compare the report with the record whenever the latter could be identified, and to give specific references to the cases cited by Fitzherbert and the old authorities. The introduction which he has prefixed to the volume is filled with the most interesting matter. Among the topics there treated we would draw especial attention to the dissertation upon the origin and gradual spread of surnames (pp. lxxviii.-lxxxiv.). We shall owe to Mr. Pike a lasting debt of gratitude for having unravelled to us the mysteries of such names as Thomas Richardesheyward Pyke.

RATING.

THE PRINCIPLES OF THE LAW OF RATING OF HEREDITAMENTS IN
THE OCCUPATION OF COMPANIES. By J. H. BALFOUR BROWNE,
Q.C. SECOND EDITION. By the AUTHOR and D. NORMAN
M'NAUGHTON, Barrister-at-Law. Stevens & Haynes.

extracts from judgments and elaborate comment and criticism upon
This work retains the leading features of the former edition-long
adoption of this method, though our own view is strongly against it.
them. We do not know that we are entitled to complain of the
We entirely agree with the author (p. 189) that "it is well to weigh
decisions and not count them"; but we may venture to point out
that, in order to render a book of service to practitioners, the
decisions should be fairly weighed, and not considered with a view of
ascertaining how far there can be extracted from them some confic-
mation of the opinions of the writer. In the discussion of the Haughley
book, we think that this essential has hardly been sufficiently borne
case (L. R. 1 Q. B. 666), which still occupies a large space in the
treated of in the book will be found stated and discussed, and an
in mind. The recent cases on the branch of the subject of rating
appendix contains three unreported cases.

SNELL'S EQUITY.

THE PRINCIPLES OF EQUITY, INTENDED FOR THE USE OF STUDENTS
AND THE PROFESSION. By EDMUND H. T. SNELL, Barrister-at-
Law. EIGHTH EDITION. By ARCHIBALD BROWN, Barrister-at-
Law. Stevens & Haynes.

The feature of the present edition of Snell is the omission of the

The decision just noticed is not only of value as shewing the effect of 9 Geo. 4, c. 61, s. 14, but also as shewing the effect of an application of that enactment in another Act, and it is remarkable that it was apparently not referred to in the case we are discussing. Indeed, the circumstances in The Queen v. Moore seem to us so analogous to those in the present case, that the decision appears to be quite in point to shew that the discretion of the justices at special sessions with respect to the transfer of beerhouse certificates is unqualified, there being nothing in the Act of 1870 to qualify the application of the provisions as to transfer of 9 Geo. 4, c. 61, except indeed sub-section (4), by which, it appears to us, the Legislature meant to make it clear that the justices at special sessions are to have unqualified discretion. Referring to section 7 of the Act of 1870, above noticed, restrict-"Epitome of Equity Practice" and the amplification of several ing to certain grounds the refusal of an application at the annual licensing meeting in respect of a renewal of a licence by a transferee of the licence, we inay remark that it does not seem to us that there is any inconsistency between the justices at the annual licensing meeting being thus restricted, and there being an unrestricted discretion in the justices at special sessions to refuse a transfer; it may well, we think, be conceived that the Legislature, while securing to the original licensee, or to a person who has, by the authority of the justices at special sessions, become a transferee, the right to renewal, may have intended to give full discretion to the justices as to allow ing a transfer; and even if there were such inconsistency, it is surely a matter for legislative interference, and not to be got over by a strained interpretation of clear enactments.

We may add that, as regards the transfer of a certificate for an off-licence, no argument for limiting the discretion of justices at special sessions can at this day be adduced, since, by 45 & 46 Vict. c. 34, the restrictions in section 8 of the Act of 1869, on the refusal of a certificate for an off-licence, are virtually repealed.

REVIEWS.

THE YEAR BOOKS.
YEAR BOOKS OF THE REIGN OF KING EDWARD THE THIRD.
YEARS XIII. and XIV. Edited and translated by LUKE OWEN
PIKE, Barrister-at-Law. (ROLLS SERIES.)

This excellent volume is another contribution towards the work of relieving us from the national reproach, that we treat with supine neglect our unequalled stores of historical and legal documents. The design of the series is to publish those year books which have hitherto remained unedited, though many of the cases reported were known to the profession by means of abstracts of them contained in the old abridgments and other early authorities. The industry, learning, and ability of the editor, Mr. Pike, are worthy of very high praise, and we venture to indulge a hope that, when he has brought his present arduous undertaking to a successful conclusion, his talents may be employed in illustrating a new edition of the old year books commonly so called. We have some reason to suppose that the hope of such a new edition may be not altogether visionary; and to the lawyer, as distinguished from the historian, it would present even

of the chapters. The change, we think, is judicious, and the additions, so far as we have checked them, are useful. We would suggest, however, that if the Bills of Sale Acts are to be noticed at all, it would be better to insert a somewhat fuller and more clearlyarranged account of them than is given at pp. 403-5; that a good deal of condensation might be usefully effected in the chapter relating to "Trustees and Others standing in a Fiduciary Relation," and that it would tend to the advantage of students to have the leading rules as to the duty of a trustee shortly stated in the form of subheadings prefixed to the different divisions of the chapter.

CORRESPONDENCE.

THE INCORPORATED LAW SOCIETY'S CALENDAR. [To the Editor of the Solicitors' Journal.]

Sir,-Why will not the Council of the Incorporated Law Society adopt the plan which I advocated in a paper I read at the Bath Provincial Meeting, and which is in print, wherein I shewed how. at no extra expense or trouble, the Society's Calendar and the Law List might both be published on the 1st of January yearly, and be evidence that there was no break in the currency of a solicitor's annual stamped certificate? All that was required was a slight alteration in the existing statute upon the matter, which the Inland Revenue Commissioners, in their official letter to me, stated they had no objection to introduce if put in motion by the society.

If the thing is to be done so as to come into operation in 1888, now is the time to try and get the alteration introduced in some Revenue Bill of this session, otherwise the opportunity will be lost for another Bristol, Feb. 21.

year.

JOHN MILLER.

Mr. Montague Cookson, Q.C., has been elected to fill the vacancy on the Bar Committee occasioned by the promotion of Lord Macnaghten.

Williams was entertained at a complimentary dinner by a large party of On Saturday evening, at the Holborn Restaurant, Mr. Montagu his friends at the bar in celebration of his lately having been appointed a metropolitan police magistrate. The Solicitor-General (Sir Edward Clarke, Q.C., M.P.) presided.

CASES OF THE WEEK.

as well as an infant, and the interest arose under an instrument made before the date at which the Infants' Settlements Act came into operation. Bacon, V.C., held (33 Ch. D. 483) that the settlement was valid, either wards, or under the Infants' Settlements Act; and that, even if it was originally invalid, it had been confirmed by acquiescence.

EBERLES HOTELS AND RESTAURANT CO. (LIM.) v. JONAS & under the inherent jurisdiction of the court over the property of its
BROTHERS-C. A. No. 1, 22nd February.
COMPANY-LIQUIDATION-MUTUAL DEALINGS-BANKRUPTCY ACT, 1883, s.
38-ACTION OF DETINUE-RIGHT TO SET OFF A DEBT.

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On May 1, 1884, the plaintiffs deposited a quantity of cigars with the defendants as security for a debt of £600 for cigars supplied by the defendants to the plaintiffs. At this time the plaintiffs owed the defendants another sum of £280 for other cigars supplied. On the 6th of November, 1884, the plaintiff company went into liquidation. Previously to this date the plaintiff company had paid off £100 of the £600 debt, and subsequently thereto the liquidator paid off the remaining £200, and brought this action in detinue to recover the cigars. The defendants contended that they were entitled, under section 33 of the Bankruptcy Act, 1883, to set off against the value of the cigars the unpaid debt of £280, as being "mutual dealings" within the meaning of that section, section 10 of the Judicature Act, 1875, having applied the rules in bank-In Re Sampson and Wall (25 Ch. D. 482) it was held that the Act applied ruptcy on this point to companies in liquidation whose assets were insufficient to meet their liabilities. Mathew, J., found that the value of the cigars was £135, and that, as his judgment would only give the plaintiffs the value of the cigars, section 38 applied, and the defendants were entitled to set off the £280 against this sum. The liquidator appealed. THE COURT allowed the appeal. Lord ESHER, M.R., said the claim was for the recovery of the cigars wrongfully withheld by the defendants from the plaintiffs. The defendants claimed that they should not be bound to return the cigars, but that there were mutual dealings between the parties which entitled them to set off their claim of £280 against the value of the cigars. By section 158 of the Companies Act, 1862, any claim sounding only in damages was provable in a liquidation. In this case there were "mutual dealings on both sides within section 38; on one side security given for money due, and on the other side a sale of goods creating a debt. But the section required that an account should be taken of what was due from one party to the other, and the balance struck. The mutual dealings, therefore, must be such that an account could be taken in the way mentioned. Section 38 ought to be construed as widely as possible so as to include all claims that would result in a money claim on both sides. Mersey Steel Co. v. Naylor (31 W. R. 80, 9 Q. B. D. 648) supported this view. But the judgment in detinue at common law was for the return of the goods if possible, and if not for their value. The value was only in the alternative. The writ to the sheriff, following the form of the judgment, was that he should seize the very goods claimed and deliver them up to the plaintiff, or if he could not then he was to seize other goods for their value. The Common Law Procedure Act, 1854, and ord. 48, r. 1, did not alter the nature of the judgment in an action of detinue, but gave the judge power to make a special order. That being so, Mathew, J., had no right to supersede that judgment and compel the plaintiffs to take the value of the cigars. An account, therefore, could not be taken, as there was a money claim on one side and a claim to cigars on the other. Hence, though there were mutual dealings, they did not end in an account that could be taken within section 38. The plain tiffs, therefore, were entitled to the cigars, and the defendants could only prove for their claim in the liquidation. BowEN and FRY, L.J.J., concurred. -COUNSEL, French, Q.C., and T. Ribton; Finlay, Q.C., and J. G. Witt. SOLICITORS, Smith, Leaver, & Lewes, for Snowball, Smith, & Lewes, Liverpool; Lumley & Lumley.

BUCKMASTER v. BUCKMASTER-O. A. No. 2, 18th February. MARRIED WOMAN-INFANT-SETTLEMENT OF REVERSIONARY INTEREST CONFIRMATION-INFANTS' MARRIAGE SETTLEMENTS ACT, 1855 (18 & 19 VICT. C. 43).

THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ) reversed the decision, holding that the petitioner was absolutely entitled to the fund. COTTON, L.J., said that the case had been dealt with as if the appellant were seeking to be relieved from the settlement, but she was really claiming the fund in court as the person entitled to it under her father's will. She said that she was in the position of a single woman to all intents and purposes, because the reversionary interest did not fall in till after the divorce, and that she was entitled to it as if she had survived her husband. On the other side it was said that the interest was bound by the settlement which had been approved by the court. When the settlement was executed she was an infant married woman, who had no power to dispose of the reversionary interest in question during coverture. The Infants' Marriage Settlements Act of 1855 was relied on. to post-nuptial settlements executed upon the occasion of marriage. But the question now was whether the Act only got rid of the disability of infancy, or did something more. In his lordship's opinion it did no more. In his lordship's opinion the true construction of section 1 was that it gave an infant the power, on marriage, to dispose of property which, if adult, the settlor would have had power to dispose of. In other words, the Act only removed the disability of infancy, but it did not give an infant power to dispose of that which an adult would have had no power to dispose of. The whole section must be read together, and then it appeared that this was the intention. The Vice-Chancellor had, however, relied on the inherent power of the Court of Chancery to deal with the property of its wards. But had the court power to bind the property of a ward? There was no statute which gave the court power to forfeit the property of a ward who married without leave, and it must be borne in mind that to make a settlement giving the wife's property to her children would be to take it from her, even though it might be for her benefit so to settle it. In Re Murray (3 Dr. & War. 83) Lord St. Leonards had disclaimed such a power, and Lord Justice Turner, in Field v. Moore (7 De G. M. & G. 691), said there was no authority for the position that contempt gave the court jurisdiction to make a settlement binding on a ward who had been married without leave. Then it was said that it was a matter of course to order a person who had married without leave to execute a settlement. That was so; in such a case the court was dealing with a contempt, and it punished the husband by making him give up rights to his wife's prop erty which he would have acquired by the marriage. Against a husband in contempt such orders were made, but it had never been the practice of the court to order a female ward to give up her property and impose on her a penalty. The settlement must therefore be regarded as ineffectual to bind the wife's reversionary interest. But it was urged that she had confirmed the settlement before the proceedings in the Divorce Court But at that time she was incapable of dealing with the property. As to the £5,405 Consols, if she had taken advantage of the settlement so as to raise a question of election between her and her husband the case would have been different, but no such question was raised. Further, it was con tended that, by the application to be relieved of the payment of £100 a year to her husband, the wife had confirmed the settlement; but there could be no question of acquiescence where the settlement was ineffectual. If it had been binding till set aside, acquiescence would have been very important. Lastly, it was argued that the variation of the settlement by the Divorce Court recognized the settlement as binding, The question raised was as to the amount of the wife's income, and valid as the settlement of the husband, and binding on him, and no whether she ought still to pay the £100 a year. The settlement was declaration of trust was made by the wife's reciting the settlement in a petition to extinguish the interest of the husband. She now asked the court that her property might be given to her, and there was no obstacle in her way. The order of the Vice-Chancellor must be reversed, and the

Divorce Division for a reduction, under the altered circumstances, of the allowance of £120 which he was ordered to pay her when she had a much smaller income. LINDLEY, L.J., said that if the settlement had been made before the marriage, it would have been operative as to the reversonary interest, the only incapacity being infancy. The Act removed the disability of infancy, but nothing more. That was the only construction which reconciled its provisions. The difficulty arising from the fact that the settlement was approved by the court was removed by the consideration that the court could not have compelled the ward to execute such a settlement before marriage. It was impossible to hold the settlement binding as regarded the reversionary interest, because the lady was not not voidable, as regarded her, and, therefore, it was incapable of cononly an infant but a married woman. The settlement was actually void, firmation by her, or of being acquiesced in. As to the £5,405, all parties had made a good disposition of it by agreeing that it should be held on the trusts of the settlement. When the wife became sui juris she became competent to make a new settlement. It was impossible to say that she had done so by a proceeding which she took for the sole purpose of depriving the husband of all interest. LOPES, L.J., concurred.COUNSEL, Fischer, Q.C., and Bickley Rogers; Marten, Q.C., and T. L. Wilkinson; Millar, Q.C., and Brabant. SOLICITORS, Purkis & Co.; Hadden Woodward & Co.; Capron, Daltons, & Co.

The question in this case was as to the power of the court to make a binding settlement of a reversionary interest in personal estate belong-fund must be transferred to her. The husband could apply to the ing to a female ward of court who has married without the sanction of the court. In April, 1862, L., a ward of court, eighteen years of age, married S., without the sanction of the court or the knowledge of her mother and guardian. She was then, under the will of her father, who died in 1848, entitled to a reversionary interest in personal estate, subject to her mother's life interest. In 1863 a settlement was made by Mr. and Mrs. S., and was signed by the chief clerk of Wood, V.C., as having been approved by the judge. By this deed the reversionary interest of the wife was settled, on trust for the wife for life, with remainder to the children of the marriage, as the husband and wife jointly, or as the survivor, should appoint, and in default of appointment for the children equally at twenty-one or marriage, with ultimate trusts for the benefit of the wife. In 1873, on a petition by various parties interested, including Mr. and Mrs. S. and the tenant for life, a sum of £5,405 Consols was transferred to the trustees of the settlement as part of the property of Mrs. S. thereby settled. In 1877 Mrs. S. obtained a judicial separation from her husband on the ground of his cruelty, and she was ordered to pay him £100 a year. In 1882 the marriage was dissolved on account of the husband's adultery and cruelty. In 1883 the Divorce Division made an order varying the settlement by extinguishing all the interest of S. therein, and also discharging Mrs. S. from the order to pay him £100 a year, and he was afterwards ordered to pay Mrs. S. £120 a year for the children. On the death of the tenant for life in 1886 Mrs. S., having changed her solicitors, petitioned to have her share, amounting to £20,000 in court, transferred to her, on the ground that the settlement was not binding on her, as she was, at the date of its execution, a married woman

Re HOTCHKIN'S SETTLED ESTATES-C. A. No. 2, 23rd February.
SETTLED LAND--PERMANENT IMPROVEMENT-PAYMENT OF COST OUT OF

This was an appeal from a decision of North, J. (ante, p. 234), the question being as to the jurisdiction of the court to sanction the payment of the cost of making a permanent improvement to a settled estate out of "capital money "in the hands of the trustees of the settlement for the purposes of the Settled Land Act. The tenant for life, without first consulting the trustees, had executed the work, which was for the improvement of a well of mineral water on the estate, at his own expense, and afterwards submitted a scheme to the trustees for their approval, which they gave, and, after doing so, they applied to the court to sanction the payment of the cost of the works out of moneys in their hands, which had arisen from the subsequent sale of the estate by the tenant for life under the Act. North, J., held that, as a scheme had not been submitted to the trustees for their approval before the work was executed, he had no jurisdiction under section 26 of the Act to sanction the payment of the cost by the trustees out of "capital money." Section 26 provides: "(1) Where the tenant for life is desirous that capital money arising under this Act shall be applied in or towards payment for an improve ment authorized by this Act, he may submit for approval to the trustees of the settlement, or to the court, as the case may require, a scheme for the execution of the improvement, shewing the proposed expenditure thereon. (2) Where the capital money to be expended is in the hands of trustees, then, after a scheme is approved by them, the trustees may apply that money in or towards payment for the whole or part of any work or operation comprised in the improvement, on (inter alia) (3) an order of the court directing or authorizing the trustees to so apply a specified portion of the capital money."

"CAPITAL MONEY "-APPROVAL OF SCHEME BY TRUSTEES-CONDITION devised real estate available for the payment of his debts, and, in answer PRECEDENT-SETTLED LAND ACT, 1882, ss. 25, 26. to the usual inquiry, the chief clerk certified that there was no personal estate. The real estate, which was subject to a mortgage of the testator, had been sold by the mortgagee, and the proceeds paid into court. By the order on further consideration, Bacon, V.C., directed the costs of the plaintiff and of the executor to be taxed, the costs of the executor to include his charges and expenses properly incurred relating to the action in the Probate Division, but without prejudice to the manner in which The minutes o: the order, as settled by the chief clerk, provided for the the debts and costs were to be paid out of the proceeds of the real estate. payment of the executor's costs, as taxed, in priority to those of the plaintiff and to the debts. The plaintiff now applied to vary the minutes, on the ground that, there being no personal estate, the executor was not entitled to be paid in priority to him, and the application was supported by the mortgagee, who had liberty to attend the proceedings. In support of the application, the cases of Major v. Major (2 W. R. 382, 2 Drew. 281) and Charter v. Charter (24 W. R. 874, 3 Ch. D. 218) were referred to, as shewing that the costs of litigation in the Probate Court were not payable in priority to the costs of an administration action, nor chargeable against real estate. Kay, J., pointed out that in those cases the costs were not incurred by an executor, but by a creditor only, whereas the costs here were incurred by the executor in proving the will, and the real estate could not have been made available for the payment of the testator's debts without the this, it was admitted that he was entitled to priority for his costs incurred executor being made a party to the administration action. In answer to in the administration action, but not to the costs of the probate action, which were recoverable only against personal estate. The executor did not appear, and eventually THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed KAY, J, directed the executor's costs in the administration action, as the decision. COTTON, L.J., was of opinion that the work was one of between solicitor and client, to be paid first; next the costs of the plainthose authorized by section 25 of the Act, as being an improvement of tiff; and lastly the testator's debts.-COUNSEL, W. B. Heath; Marten, an existing well. But the question was whether the court had jurisdic-Q.C., and Maidlow. SOLICITORS, Pattison, Wigg, & Co., for Andrews, Barrett, tion to authorize the trustees to pay the cost of the improvement out of the Andrews, Weymouth; Wainright & Baillie. money which had arisen from the sale of the estate? In his lordship's opinion it had not. Indeed, he had very great doubt whether there would be power to sanction the payment for an improvement upon land which was no longer subject to the settlement, even if a scheme had been submitted to and approved by the trustees before the work was executed. He would not, however, decide that point now, for he thought that, before the work was executed, a scheme ought to be submitted for the approval of the trustees or the court, as the case might be. It had been urged that section 26 was only permissive. But the meaning of it was that, if the tenant for life wished to have the cost of the work paid out of capital money," he must follow the steps pointed out by the Act. In his lordship's opinion the court would be placed in a wrong position if, after the tenant for life had spent the money, he could come to the court and ask it to sanction its repayment by the trustees out of "capital money." It was true that the court had often authorized the application of money paid into court under the Lands Clauses Act in the payment of expenditure already incurred for the benefit of a settled estate. But, in the present case, the court was acting under a statutory power, and ought to require that the provisions of the Act should be followed strictly. This was a sufficient ground for the decision. LINDLEY, LJ., was also of opinion that the court had no power to sanction the expenditure. He would not touch upon the point which Cotton, L.J., had suggested. But he thought that the key to the whole procedure under section 26 was the submitting of a scheme shewing the proposed expenditure. It was urged that this would be a narrow construction of the section. No one, however, who had had practical experience of these matters could help seeing that there was all the difference in the world between the submission of a scheme for proposed works and asking the approval of works already executed. If a scheme for proposed works was submitted to a man he would consider whether there was any better alternative scheme. If the work was already done, he would only consider whether it was for the benefit of the estate. His mind would approach the matter in a totally different way in the two cases. The court would strain the language of section 26 if it were to accede to this application, and would open the door to very dangerous expenditure. Under the pressure of the fact that the money had been already expended by the tenant for life, trustees would be ready to ratify many things which they would not have approved of in the first instance. LOPES, L.J., concurred. Section 26 provided that a scheme should be approved, and it was difficult to see what would be the WILL-CONSTRUCTION-CONSUMABLE ARTICLES GIFT OF STOCK-IN-TRADE, use of the approval of a scheme for works which had been, in fact, &c., TO TENANTS IN COMMON-GIFT TO NEXT OF KIN IN EVENT OF DEATH. executed without any scheme being approved. The object of the section was to give the court a control over the works, over their design and mode of construction. He refrained from expressing any opinion on the point suggested by Cotton, L.J.-COUNSEL, F. T. Procter; J. T. Dodd. SOLICITOR, H. P. Cubb.

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Re KNIGHT, KNIGHT v. BURGESS-North, J., 17th February. WILL-CONSTRUCTION—A MBIGUITY-MISDESCRIPTION-GIFT OF LEASE OF DWELLING-HOUSE-WHETHER FREEHOLD DWELLING-HOUSE PASSES. The question in this case was as to the effect of a bequest by a testator of the lease of the house in which he should be living at his death, he in fact, at the time of his death, being living in a freehold house. The testator gave "all the plate, linen, china, glass, wines, liqueurs, furniture, and other effects which shall be in and about the dwelling-house in which I shall reside at the time of my decease, together with the lease of such house, and also my park phaeton, to my wife absolutely." The will was made in 1878. At that time the testator lived in a house of which he was the lessee at a rack-rent for a term of seven years. In May, 1884, he bought a freehold house, to which he removed in June, 1884. He died in November, 1884, leaving his wife surviving him.

NORTH, J., said that at the time of the testator's death there was not any lease, therefore it could not be said that the words, strictly taken, passed anything. He would not be bound by the exact words if the context, or the context taken with other passages in the will, shewed that the testator intended to give something not within the language. In that case he should give effect to the intention. But, looking at all the circumstances, he was satisfied that there was no intention on the part of the testator to give the fee simple in a house which he did not purchase till many years after he had made his will. It had been argued that if the testator had gone to live in a house of which he had a lease for a long term years at a peppercorn rent, that house would have passed under the bequest, and that there was no difference in money value between such a long term and a fee. But the one was within the description in the gift. and the other was not. There was nothing to shew that the testator had the remotest idea of possessing a fee simple estate which he had not at the time when he made his will. He therefore held that the widow was not entitled to the house.-COUNSEL, Cookson, Q.C., and Vernon R. Smith; Cozens-Hardy, Q.C., and Samuel Hall; Emden; Ingle Joyce. SOLICITORS, G. H. Carthew; John Burton; Howard & Shelton.

CONOLLY v. CONOLLY-North, J., 21st February.

The question in this case was as to the effect of a gift by will of a business and the stock-in-trade and other articles employed in it. The testator bequeathed the leasehold house in which he carried on his business, and also all the plant, stock-in-trade, fixtures, and utensils of trade, and the goodwill of the business, to his sons, J., W., and T., in equal shares, provided that, upon the death of either of them (whether in the testator's lifetime or after his decease), the share or shares of him or them so dying should go to his or their next of kin according to the statutes of distribution. The business was, after the death of the testator, carried on by the three sons in partnership, without any articles, and, for the purposes of the business, they purchased other leasehold premises, and used or disposed of the articles comprised in the bequest in the ordinary course of business. The sons afterwards agreed to dissolve the partnership, and two of them agreed to purchase the interest of the third in the business, &c., and the question arose whether that son was entitled to receive the whole purchase-money of his interest, or whether it was subject to any trust.

Re PEARCE, McLEAN v. SMITH-Kay, J., 24th February. PRACTICE ADMINISTRATION ACTION--COSTS, CHARGES, AND EXPENSES OF EXECUTOR-NO PERSONAL ESTATE-LITIGATION IN PROBATE DIVISION. In this case a question was raised as to the right of an executor, as defendant to a creditor's action for the administration of the real and personal estate of his testator, to have his costs, charges, and expenses provided for in priority to the plaintiff and the other creditors, there being, in fact, no personal estate. The validity of the testator's will had been contested by the testator's heir-at-law in an action in the Probate Division, in which the executor propounded the will, and judgment was pronounced in favour of the will, and the heir-at-law was ordered to pay the costs of the action. These costs had not been paid. The administration NORTH, J., held that the son was entitled to receive the whole purchase. action was brought for the purpose of making the testator's specifically-money. He said that Cockayne v. Harrison (20 W. R. 504, 13 Eq. 432) and

Groves v. Wright (2 K. & J. 347) were distinguishable, they being cases in which a testator had settled a farm and the stock employed on it on a tenant for life, with a gift in remainder. In the present case he was of opinion that there was no trust in favour of the next of kin which would prevent a son from selling his share. He thought that the proviso in favour of the next of kin of a deceased son did not cut down the absolute interests given to the sons in the first instance to life interests. If there was any trust it only affected the interest of a son who might be a partner in the business at the time of his death; there was no trust affecting the share of a son who sold it in his lifetime.-COUNSEL, St John Clerke; Chadwyck-Healey. SOLICITORS, E. H. Biggin; Digby & Liddle.

LLOYD v. GORDON-North, J, 22nd February. WILL-CONSTRUCTION-GIFT TO WIFE FOR BENEFIT OF HERSELF AND CHILDREN-JOINT TENANCY.

A testator gave and bequeathed all his personal and real estate to his wife "for her special use and benefit and for the special use and benefit and for the education and bringing up of my children." The question was, what interest the wife took under this gift. She had assumed to be the absolute owner of a freehold house which formed part of the testator's property, and had mortgaged it. NORTH, J., held that, but for the words, "for the education and bringing up of my children," the case would have been clearly governed by Newill v. Newill (20 W. R. 308, 7 Ch. 253), and the widow and the children would have taken as joint tenants. And his lordship was of opinion that these words made no difference as to the interest taken by the widow, and did not give her any power to dispose of the capital of the property. They, at the most, gave her the control over the whole income during the infancy of the children, she maintaining and educating them.-COUNSEL, Sir A. Watson, QC., and Methold; Swinfen Eady; Giffard, Q.C., and Davenport. SOLICITORS, Iliffes, Henley, & Sweet; Crossman, Crossman, & Prichard; Gregory, Rowcliffes, & Co.

Re MARRETT, CHALMERS v. WINGFIELD-Stirling, J., 21st February DOMICIL OF CHOICE-WHEN ACQUIRED-BURDEN OF PROOF. This case raised a question of domicile. The testator was born in India, and had married there a lady by whom he had had four children, and had never left that country until 1871. For two years before he left he had been an officer in the service of the Nizam of Hyderabad. In the begin

ning of 1871 he left India and went to reside at Darmstadt. In July, 1871 (being then a widower), he asked permission to pay his addresses to a German lady, and in May, 1872, he purchased a house in Darmstadt, and lived there continuously till his death, except that he paid three or four visits to England of about six months' duration, and in 1874 went to India for a short time for the purpose of winding up his affairs there. Two letters from the testator were produced, one written shortly before he left India, and the other in July, 1871, both of which shewed that he had a strong preference for Germany, and that he intended to reside in Darmstadt. By his will, which was made in 1874, in English form, he gave his property to his grandchildren. By the German law it is not competent for a testator to exclude his children from all benefit in his property. A large number of affidavits were read by persons who deposed that they believed the testator was desirous of ultimately coming to reside in England. The matter came on upon a summons to vary the certifi cate of the chief clerk, by which it was found that the testator's domicil was German.

STIRLING, J., said that the domicil of origin continued until a new domicil had been acquired, and the burden of proving a change of domicil lay upon those who asserted it. To acquire a domicil of choice it was necessary that there should be actual residence in the country, and that there should be an intention to reside there permanently (Bell v. Kennedy, 1 Sc. App. 307; Udny v. Udny, 1 Sc. App. 441). The letters of the testator in this case shewed a strong preference for Germany as a place of residence, and, his lordship thought, also an intention to live permanently at Darmstadt. The purchase of a house there was prima facie evidence of an intention to reside there, although it was not conclusive. There was nothing in the evidence, except affidavits of belief, to lead to a contrary conclusion. His lordship therefore held that the testator's domicil was German.-COUNSEL, Pearson, Q.C., and Carson; Hastings, Q.C., and Farwell; Marcy.

PHIPPS v. JACKSON-Stirling, J., 17th February.
STIPULATION IN AGREEMENT FOR TENANCY OF FARM-INJUNCTION.

This was a motion by the landlord of a farm for an injunction to restrain the defendant, who was tenant from year to year, from allowing the farm to remain without a proper and sufficient stock of sheep, horses, and cattle. The agreement under which the defendant held contained a stipulation that the tenant should at all times during the tenancy keep on the farm "a proper and sufficient stock of sheep, horses, and cattle." The defendant had given notice to quit, and had recently advertised in the local newspapers and by posters his intention to sell the farming stock and furniture, including a certain number of cows and horses.

STIRLING, J., said that he could not consistently with the practice of the court grant the injunction asked for. To do so would be in effect to compel specific performance of a stipulation in a farming lease, and Rayner v. Stone (2 Eden, 128) decided that "common covenants in husbandry" were not the subject of equitable jurisdiction. The court was really asked to superintend the performance of this covenant during the remainder of the lease, and that it could not do.-COUNSEL, Pearson, Q.C., and Methold. SOLICITORS, Walters, Deverell, & Co.

In the Goods of HUGHES-Prob. Div., 22nd February.
WILL-CODICIL-EXECUTION-INCORPORATION.

In this case judgment was given upon a motion for a grant of probate under the following circumstances. The deceased, on the 23rd of October, 1886, requested John Jones to make some alterations in a will which he had executed on the 22nd of May, 1878, and which was contained in the first page of a sheet of foolscap paper. Jones thereupon wrote certain testamentary directions on the third page of the sheet, beginning with the words, "The following alterations have been first made," and followed by the words, "Signed by the said testator (on the margin of) the aforewritten will and testament," &c., and concluding in the form of a regular attestation clause. There were no signatures on the third page, but in the margin of the first page there were the mark of the testator and the signatures of two attesting witnesses. Application was made to include the writing on the third page to probate, either as a duly-executed codicil, or as being incorporated in the will by the signatures in the margin, and In the Goods of Birt (19 W. R. 511, 2 P. & D. 214) was relied upon.

HANNEN, P., now said that he should have been glad to admit the whole of the document to probate, but he entertained no doubt that it was impossible for him to do so. In the recent case of Margary v. Robinson (31 SOLICITORS' JOURNAL, 111, 12 P. D. 8) he had had occasion to consider the enactments relating to the position of the signature to a will, and he need now only say that the Legislature had never departed from the principle that the signature must be at the foot or end" of the instrument. He could not hold that what was written on one page of the paper had been duly executed on another page, nor could he treat the signatures in the margin of the first page as authenticating an interlineation. The words written on the third page must, therefore, be excluded from the probate.-COUNSEL, C. A. Middleton. SOLICITORS, Indermaur & Brown, for Marston, Mold.

BANKRUPTCY CASES.

Ex parte FEAST, Re FEAST-C. A. No. 1, 19th February. BANKRUPTCY NOTICE-JUDGMENT DEBT-AGREEMENT TO PAY BY INSTALMENTS-DEFAULT-SECOND BANKRUPTCY NOTICE-BANKRUPTCY ACT, 1883, s. 4, SUB-SECTION 1 (G.).

bankruptcy notice in respect of a judgment debt, on the failure of the debtor to carry out an agreement for the payment of the debt by instalments. After the judgment had been obtained the creditor issued a bankruptcy notice in respect of it, and an agreement was then entered into between him and the debtor that the latter should pay £100 (which was made up of £37 costs in the action, £25 costs of the bankruptcy proceedings, and £38, part of the judgment debt) immediately, and the balance of the debt by monthly instalments, and, if default should be made in payment of any instalment, the whole unpaid balance was to become at once due. The £100 was paid by the debtor, and so were some of the instalments, but he then made default, and the creditor issued a new bankruptcy notice. Mr. Registrar Brougham dismissed an application by the debtor

In this case a question arose as to the right of a creditor to issue a

to set aside the notice.

THE COURT OF APPEAL (Lord ESHER, M.R, and BowEN and FRY, L.JJ.), affirmed the decision. On behalf of the debtor it was argued (1) that the agreement had been accepted by the creditor in satisfaction of the judgment, and that, upon default, his only remedy was under the agreement, and the judgment debt did not revive; (2) that a second bankruptcy notice could not be issued in respect of the same judgment debt. Lori ESHER, M.R., said that, when a man had obtained a judgment for a debt, the court ought not to hold that any agreement with the debtor was taken in satisfaction of the judgment, unless it was perfectly clear that that was intended. In the present case the true construction of the agreement was that, in consideration of the payment of the costs down, the creditor gave the debtor time to satisfy the judgment. A part of the judgment debt was also paid at once, and what remained due was part of the judgment debt. It was to be paid by instalments, and, if any one of them was not duly paid, the whole was to become due-i.e., due under the judgment. There was, consequently, a judgment debt to support the bankruptcy notice. As to the point that a second bankruptcy notice could not be issued, there was no colour for it in the Act. BowEN, L.J., said that, as long as a judgment was available for execution, a bankruptcy notice could be issued in respect of it. FRY, L.J., concurred. — COUNSEL, Ellis J. Davis; Sidney Woolf. SOLICITORS, R. B. H. Fisher ; J. Seymour Salaman.

Ex parte DEVER, Re SUSE-C. A. No. 1, 18th February. BANKRUPTCY-PROPERTY OF BANKRUPT-CONTINGENT INTEREST-POSSIBILITY- POLICY OF INSURANCE FOR BENEFIT OF WIFE-INTRODUCTION OF FOREIGN LAW BY CONTRACT-BANKRUPTCY ACT, 1869, s. 15-BANKRUPTCY ACT, 1883, s. 44.

The question in this case was whether the proceeds of the surrender of a policy of insurance on the life of a liquidating debtor, effected for the benefit of his wife, formed part of his estate available for distribution among his creditors in the liquidation. The debtor filed a liquidation petition under the Bankruptcy Act, 1869, in October, 1883, and in 1884 he obtained his discharge. In July, 1876, he, in the name and on behalf of his wife, applied to an insurance company, which carried on business in New York, through their branch office in London, for a "Tontine" Policy of insurance for £6,000 on his own life, for the benefit of his wife. He was resident and domiciled in London. The policy was granted, and

was dated the 25th of July, 1876. The annual premium was £378 sterling, payable at the London office of the society, and, in consideration of the premiums being duly paid, the company promised to pay to the wife "for her sole use, if living, in conformity with the statute," and, if not living, to the children of the husband, or their guardian, for their use, or, if there should be no such children surviving, then to the executors, administratore, or assigns of the husband, the sum of £6,000 sterling, at the London office, within sixty days after notice and proof of the death of the husband furnished to the company at their principal office in New York. The policy was also expressed to be issued upon certain special conditions relating to "Tontine" Policies which were indorsed on it. These conditions provided (interalia) that the tontine dividend period for the policy should be completed on the 12th of July, 1886; that no dividend should be paid upon the policy, unless the life assured should survive the completion of its tontine dividend period, and unless the policy should be then in force; and that, upon the completion of the tontine dividend period, provided the policy should not have been terminated previously by lapse or death, the legal holder of the policy should have the option either (1) to withdraw in cash the policy's entire share of the assets (i.e., the accumulated reserve and surplus apportioned by the society to the policy); (2) to convert the same into a paid-up policy for the same amount; (3) to continue the assurance for the original amount, and apply the entire tontine dividend to the purchase of an annuity to reduce the premiums; or (4) to withdraw in cash the share of the accumulated surplus apportioned to the policy, and continue the policy in force on the ordinary plan. By a statute of the State of New York it was provided that it should be lawful for any married woman by herself, and in her name, to cause to be insured for her sole use the life of her husband for the term of his life, and, in case of her surviving such term, the amount becoming due and payable by the terms of the insurance should be payable to her, to and for her own use, free from the claims of the representatives of the husband or of any of his creditors; but when the premium paid in any year out of the funds of the husband should exceed 500 dollars, such exemption from such claims should not apply to so much of the premiums so paid as should be in excess of 500 dollars, but such excess, with the interest thereon, should enure to the benefit of his creditors. The premiums were paid by the husband up to July, 1883; after that date the wife paid them out of her separate estate. In August, 1886, after the husband had obtained his discharge, the wife exercised the option given to her by the above condition in the first of the four ways mentioned, and £2,959 was paid by the company in respect of the policy, which was then given up to them. The trustee in the liquidation claimed, under the New York Statute, the excess of the premiums paid by the husband above 500 dollars yearly as part of his estate in the liquidation, on the ground that the American law was imported by contract into the policy; or, in the alternative, that the sum paid for the surrender of the policy was not subject to the trust for the wife, and therefore belonged to the husband by his marital right. Mr. Registrar Finlay Knight held that the whole of the proceeds belonged to the wife as part of her separate estate.

THE COURT OF APPEAL (Lord ESHER, M.R., and BOWEN and FRY, L.JJ.) affirmed that decision. Lord ESHER, M.R., said that the policy did not seem to him to have introduced any part of the American law. The words "in conformity with the statute" referred only to the obligation to pay the money to the wife for her sole use. The contract was made with the wife, not with the husband, and the money was to be paid to her if she survived him. That contingency had not happened, as the husband was alive. But there was another contingency upon which the company might be obliged to pay the money to the wife-namely, if she chose, at the end of the tontine dividend period, to insist upon payment to her of her share in the assets. His lordship could not doubt that this money, when paid, was intended to be for her separate use. It would be absurd to suppose that, if she exercised her option in that way, it was intended that she was to lose the money altogether by its becoming the property of the husband. It could not, therefore, belong to the husband or his creditors. The option was not exercised until after the husband's discharge, and at the date of the discharge he had only a mere hope or contingency which could not be valued, and was not "property" which vested in his trustee. BOWEN, L.J., was of the same opinion, though not for the same reasons. The clause as to payment to the wife was not intended to incorporate the American law for all purposes, but only as to the obligation to pay to the wife under the contract. The real question, however, arose, not on that clause, but on the clause allowing the wife to withdraw the accumulated value of the policy. The question was, who was entitled to the money paid under this clause? He could not agree that it was clear from the contract that the money was to be for the sole use of the wife. The matter was left in doubt. But the husband obtained his discharge in 1884, and the question was whether this could be considered as property vested in him then. He had a mere chance or hope that his wife might possibly adopt one of a number of courses which might be for his benefit. That chance could not be valued any more than a chance that a rich relative might die and leave his property to a bankrupt. It was a mere speculation not capable of estimation. The trustee, therefore, was not entitled to the money. FRY, LJ., agreed with Bowen, L.J.-COUNSEL, Bigham, Q.C., and Abrahams; Reid, Q.C., and Sidney Woolf. SOLICITORS, M. Abrahams, Son, & Co.; Alfred Howard.

CASES AFFECTING SOLICITORS. SOLICITORS STRUCK OFF THE ROLLS. 11th February-FREDERICK HUXLEY. 11th February-ALFRED ORAM.

LAW SOCIETIES.

INCORPORATED LAW SOCIETY.

The following circular has been issued to the London members of the society: At the meeting of the society at York, in October last, a resolution was passed to the effect that the meeting usually held in the provinces annually should, in the year 1887, take place in London, particularly having regard to the fact that the year 1887 (being the fiftieth of her Majesty's reign) is to be marked as a jubilee year and celebrated accordingly. The council have had this resolution under consideration, and, after ascertaining the views of the provincial societies, they have decided that the most convenient time for holding the meeting will be in the week commencing the 6th of June next. They have discussed the best means of enabling the London members of the society to make some return for the hospitalities dispensed to them in the provinces, and for this purpose they propose that the entertainment shall consist of a dinner, a ball, and determined. Invitations will be given to all the provincial members of some other entertainment, either theatrical or musical, to be hereafter the society. As the expenses of such an entertainment cannot be thrown on the general funds of the society, it is suggested that they should be provided for by means of a guarantee fund, to be formed by the members of the council and the London members of the society. It is proposed that the London members of the council, and such of the London members of the society as guarantee a sum up to, but not exceeding, ten guineas, shall constitute a Grand Committee for carrying the object in view into effect. Also, that the members of the society who guarantee up to five guineas shall be entitled to participate in the entertainment. The committee will be happy to receive donations of a less amount than five guineas from members who, though not able to take part in the entertainment, desire to contribute to the expenses of the celebration. I am directed to invite your co-operation in this movement, and for this purpose I enclose you a form which you can fill up at your discretion, indicating whether you will suscribe for ten guineas or five guineas, or for any less sum, in terms of this communication; and as it is desirable that the amount which will be at the disposal of the committee should be ascertained with as little delay as possible, I shall feel obliged by your favouring me with an early answer. As soon as the Grand Committee has been constituted it is proposed to convene a general meeting of that committee for the purpose of appointing a small sub-committee, to whom the duties connected with the organization and conduct of the entertainment will bʊ

intrusted.

SHEFFIELD DISTRICT INCORPORATED LAW SOCIETY. The following are extracts from the report of the committee:Members.-The number of members is 129.

Solicitors' Certificate Duty Repeal Bill, 1886.-On the subject of this Bill, introduced into the House of Commons in the early part of last session by Mr. O'Hea, M.P., your committee agreed with the Council of the Incorporated Law Society that it was not expedient to take any steps towards the repeal of this duty as suggested by the Bill. This view was adopted by a special general meeting of the Incorporated Law Society, held in the early part of the year.

County Court Rules, 1886.-It was suggested to the committee that an alteration should be made in ord. 5, r. 9, and in Form No. 15 of the County Court Rules, 1886, which seems to require the personal attendance at the court of suitors entering plaints for service out of the jurisdiction, under section 1 of the County Courts Act, 1867, for the purpose of examination on oath, unless the suitors "reside at a distance from the court." The committee were of opinion that the rule was likely to cause inconvenience and loss of time to suitors, without any necessity or corresponding advantage, and that it was desirable that all suitors, irrespective of their places of residence, desirous of entering plaints in cases coming within section 1 of the County Courts Act, 1867, should be able to verify the facts necessary to entitle them to a summons for service out of the district, either by affidavit or by personal examination on oath. No alteration has yet been made, but it is understood that at some courts the registrars meet the difficulty by construing the words, "evidence on oath," in their literal sense, and, therefore, as including affidavit, and declining to draw from the next sentence the inference (which possibly was not intended to be drawn from it) that the party residing at a dis tance is the only one who may file an affidavit, instead of appearing personally. They, in effect, suggest that the word "shall" may there not unreasonably be read "may."

Bankruptcy.-A communication was made to the committee that the present course adopted in the use of proxies at bankruptcy meetings is most unsatisfactory, and that it is expedient that creditors should be at liberty to give a general proxy to their solicitor to represent them at meetings of creditors. Your committee approved of this idea, and were willing to join in any steps to effect the desired alteration. It is understood that the matter will receive the early attention of the Council of the Incorporated Law Society. The committee would call the attention of members to the new scale of costs issued in connection with the Bankruptcy Act, which came into force on the 25th of October last.

Cecil Estate" Leases.-It having been brought to the notice of the committee that the trustees of the late Mr. C. F. Cecil (the owners of several plots of building land in Sheffield), through their solicitors and agents, require a lessee to take a separate lease for every two houses erected by him, even when such houses were under the same roof as others which he was building, the committee passed a resolution that such a practice was highly objectionable and inconvenient, and might involve very important legal questions. A copy of this resolution was forwarded to the

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