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meeting only, and we have already noticed the only provision we greater attractions than the series now in progress. Mr. Pike, find in the Act of 1869 relating to transfers. It appears to us also besides giving us a good critical text, formed by collation of the best that the language of sub-section (4) is too clear to admit of being attainable manuscripts, has been at the pains to compare the report limited in the way held by the court. Indeed, the fair import of the with the record whenever the latter could be identified, and to give language does not appear to have been doubted, but the court seem specific references to the cases cited by Fitzherbert and the old to bave felt justified in putting on it a forced construction, saying “it authorities. The introduction which he has prefixed to the volume would seem unnatural to infer that previous statutory fetters upon is filled with the most interesting matter. Among the topics there disallowance or refusal were, by a side wind, to be abolished.”, treated we would draw especial attention to the dissertation upon Sub-section (5). of section 4, strangely enough, was not referred the origin and gradual spread of surnames (pp. lxxviii.-lxxxiv.). We to by the court in the judgment.
shall owe to Mr. Pike a lasting debt of gratitude for having unravelled Supposing even the court to be right in their construction of to us the mysteries of such names as Thomas Richardesheyward Pyke. 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
RATING. justices unqualified discretion. That sub-section applies, as we have THE PRINCIPLES OF THE LAW OF RATING OF HEREDITAMENTS IN
the provisions of 9 Geo. 4, c. 61, relating to transfers, and it is THE OCCUPATION OF COMPANIES. By J. H. BALFOUR BROWNE, quite clear that those provisions give unqualified discretion to the Q.C. SECOND EDITION. By the AUTHOR and D. NORMAN justices at special sessions. This sufficiently appears from The Queen M‘NAUGHTON, Barrister-at-Law. Stevens & Haynes. V. Moore and others, Justices of Hertford (7 Q. B. D. 542), before Grove, Lindley, and Stephen, JJ., a case decided in 1881, which extracts from judgments and elaborate comment and criticism upon
This work retains the leading features of the former edition—long arose upon section 15 of the Licensing Act, 1874, enabling the owner of premises, where the licensed person has forfeited his licence by 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 reason of having been convicted of any of the offences there specified, to apply at special sessions for a licence, and making applicable the decisions and not count them”; but we may venture to point out
We entirely agree with the author (p. 189) that “ it is well to weigh provisions of 9 Geo. 4, c. 61, with respect to the grant of licences that, in order to render a book of service to practitioners, the at special sessions. It was there held that the discretion of the decisions should be fairly weighed, and not considered with a view of justices under section 14 of 9 Geo. 4, c. 61 (the enactment concerning ascertaining how far there can be extracted from them some confictransfers), was unquestionable, and that the justices had not less mation of the opinions of the writer. In the discussion of the Haughley discretion under section 15 the Act of 1874. The decision just noticed is not only of value as shewing, the book, we think that this essential has hardly been sufficiently borae
case (L. R. 1 Q. B. 666), which still occupies a large space in 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 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 that it was apparently not referred to in the case we are discussing. appendix contains three unreported cases. 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
SNELL'S EQUITY. with respect to the transfer of beerhouse certificates is unqualified, THE PRINCIPLES OF EQUITY, INTENDED FOR THE USE OF STUDENTS 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
AND THE PROFESSION. By EDMUND H. T. SNELL, Barrister-at
Law. EIGHTH EDITION. By ARCHIBALD BROWN, Barrister-atsub-section (4), by which, it appears to us, the Legislature meant to Law. Stevens & Haynes. make it clear that the justices at special sessions are to have unqualified discretion.
The feature of the present edition of Snell is the omission of the 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 of the chapters. The change, we think, is judicious, and the addiannual licensing meeting in respect of a renewal of a licence by a
tions, so far as we have checked them, are useful. transferee of the licence, we inay remark that it does not seem to us that suggest, however, that if the Bills of Sale Acts are to be noticed at there is any inconsistency between the justices at the annual licensing all, it would be better to insert a somewhat fuller and more clearlymeeting being thus restricted, and there being an unrestricted dis- arranged account of them than is given at pp. 403—5; that a good cretion in the justices at special sessions to refuse a transfer; it may
deal of condensation might be usefully effected in the chapter relating well, we think, be conceived that the Legislature, while securing to
to “Trustees and Others standing in a Fiduciary Relation,” and the original licensee, or to a person who has, by the authority of the that it would tend to the advantage of students to have the leading justices at special sessions, become a transferee, the right to renewal, rules as to the duty of a trustee shortly stated in the form of submay have intended to give full discretion to the justices as to allow- headings prefixed to the different divisions of the chapter. 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
CORRESPONDENCE. 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,
THE INCORPORATED LAW SOCIETY'S CALENDAR. 34, the restrictions in section 8 of the Act of 1869, on the refusal of a certificate for an off-licence, are virtually repealed.
[ 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 REVIEWS.
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 THE YEAR BOOKS.
stamped certificate ? All that was required was a slight alteration YEAR Books OF THE REIGN KING EDWARD THE THIRD.
in the existing statute upon the matter, which the Inland Revenue YEARS XIII. and XIV. Edited and translated by LUKE OWEN Commissioners, in their official letter to me, stated they had no PIKE, Barrister-at-Law. (ROLLS SERIES.)
objection to introduce if put in motion by the society.
İf the thing is to be done so as to come into operation in 1888, now This excellent volume is another contribution towards the work of is the time to try and get the alteration introduced in some Revenue relieving us from the national reproach, that we treat with supine Bill of this session, otherwise the opportunity will be lost for another neglect our unequalled stores of historical and legal documents.
year. The design of the series is to publish those year books which have Bristol, Feb. 21. 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 Mr. Montague Cookson, Q.C., has been elected to fill the vacancy on praise, and we venture to indulge a hope that, when he has brought the Bar Committee occasioned by the promotion of Lord Macnaghten. his present arduous undertaking to a successful conclusion, his talents
On Saturday evening, at the Holborn Restaurant, Mr. Montagu may be employed in illustrating a new edition of the old year books Williams was entertained at a complimentary dinner by a large party of commonly so called. We have some reason to suppose that the hope his friends at the bar in celebration of his lately having been appointed of such a new edition may be not altogether visionary; and to the a metropolitan police magistrate. The Solicitor General (Sir Edward lawyer, as distinguished from the historian, it would present even Clarke, Q.C., M.P.) presided.
the wife. In 1873, on a petition by various parties interested, including not voidable, as regarded her, and, therefore, it was incapable of con
as well as an infant, and the interest arose under an instrument made before CASES OF THE WEEK.
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 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.
wards, or under the Infants' Settlements Act; and that, even if it was COMPANY-LIQUIDATION—MUTUAL DEALINGS—BANKRUPTCY Act, 1883, s. originally invalid, it had been confirmed by acquiescence.
THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) reversed 38-ACTION OF DETINUE-RIGHT TO SET OFF A DEBT.
the decision, holding that the petitioner was absolutely entitled to the On May 1, 1884, the plaintiffs deposited a quantity of cigars with the fund. COTTON, L.J., said that the case had been dealt with as if the defendants as security for a debt of £600 for cigars supplied by the appellant were seeking to be relieved from the settlement, but she was defendants to the plaintiffs. At this time the plaintiffs owed the defend really claiming the fund in court as the person entitled to it under her ants another sum of £280 for other cigars supplied. On the 6th of father's will. She said that she was in the position of a single woman November, 1884, the plaintiff company went into liquidation. Previously to all intents and purposes, because the reversionary interest did not fall to this date the plaintiff company had paid off £100 of the £600 debt, in till after the divorce, and that she was entitled to it as if she had surand subsequently thereto the liquidator paid off the remaining £200, vived her husband. On the other side it was said that the interest was and brought this action in detinue to recover the cigars. The defendants bound by the settlement which had been approved by the court. When contended that they were entitled, under section 33 of the Bankruptcy the settlement was executed she was an infant married woman, who had Act, 1883, to set off against the value of the cigars the unpaid debt of no power to dispose of the reversionary interest in question during cover. £280, as being “mutual dealings" within the meaning of that section, ture. The Infants’ Marriage Settlements Act of 1855 was relied on. section 10 of the Judicature Act, 1875, having applied the rules in bank- | In Re Sampson and Wall (25 Ch. D. 492) it was held that the Act applied ruptcy on this point to companies in liquidation whose Assets were
to post-nuptial settlements executed upon the occasion of marriage. insufficient to meet their liabilities. Mathew, J., found that the value of But the question now was whether the Act only got rid of the disability of the cigars was £135, and that, as his judgment would only give the infancy, or did something more. In his lordship's opinion it did no more. plaintiffs the value of the cigars, section 38 applied, and the defendants In his lordship's opinion the true construction of section 1 was that it were entitled to set off the £280 against this sum. The liquidator gave an infant the power, on marriage, to dispose of property which, if appealed.
adult, the settlor would have had power to dispose of. In other words, the The COURT allowed the appeal. Lord Esher, M.R., said the claim Act only removed the disability of infancy, but it did not give au infant was for the recovery of the cigars wrongfully withheld by the defendants power to dispose of that which an adult would have had no power to dispose from the plaintiffs. The defendants claimed that they should not be of. The whole section must be read together, and then it appeared that bound to return the cigars, but that there were mutual dealings between the this was the intention. The Vice-Chancellor had, however, relied on the parties which entitled them to set off their claim of £280 against the value inherent power of the Court of Chancery to deal with the property of its of the cigars. By section 158 of the Companies Act, 1862, any claim sound wards. But had the court power to bind the property of a ward ? There ing only in damages was provable in a liquidation. In this case there were was no statute which gave the court power to forfeit the property of a "mutual dealings" on both sides within section 38 ; on one side security ward who married without leave, and it must be borne in mind that to given for money due, and on the other side a sale of goods creating a make a settlement giving the wife's property to her children would be to debt. But the section required that an account should be taken of what take it from her, even though it might be for her benefit so to settle it. was due from one party to the other, and the balance struck. The mutual In Re Murray (3 Dr. & War. 83) Lord St. Leonards had disclaimed such a dealings, therefore, must be such that an account could be taken in the power, and Lord Justice Turner, in Field v. Moore (7 De G. M. & G. 691), way mentioned. Section 38 ought to be construed as widely as possible said there was no authority for the position that contempt gave the court so as to include all claims that would result in a money claim on both jurisdiction to make a settlement binding on a ward who had been mar. sides. Mersey Steel Co. v. Naylor (31 W. R. 80, 9 Q. B. D. 648) sup- ried without leave. Then it was said that it was a matter of course to ported this view. But the judgment in detinue at common law was for order a person who had married without leave to execute a settlement. the return of the goods if possible, and if not for their value. The value That was so ; in such a case the court was dealing with a contempt, and was only in the alternative. The writ to the sheriff, following the form of it punished the husband by making him give up rights to his wife's prop; the judgment, was that he should seize the very goods claimed and deliver erty which he would have acquired by the marriage. Against a husband them up to the plaintiff, or if he could not then he was to seize other in contempt such orders were made, but it had never been the practice of goods for their value. The Common Law Procedure Act, 1854, and the court to order a female ward to give up her property and impose on her a ord. 48, r. 1, did not alter the nature of the judgment in an action of penalty. The settlement must therefore be regarded as ineffectual to bind detinue, but gave the judge power to make a special order. That being the wife's reversionary interest. But it was urged that she had confirmed so, Mathew, J., had no right to supersede that judgment and compel the the settlement before the proceedings in the Divorce Court
But at that plaintiffs to take the value of the cigars. An account, therefore, could time she was incapable of dealing with the property. As to the £5,405 not be taken, as there was a money claim on one side and a claim to Consols, if she had taken advantage of the settlement so as to raise a cigars on the other. Hence, though there were mutual dealings, they did question of election between her and her husband the case would have not end in an account that could be taken within section 38. tiffs, therefore, were entitled to the cigars, and the defendants could only tended that, by the application to be relieved of the payment of £100 a prove for their claim in the liquidation. Bowen and Fry, L.JJ., concurred. -Counsel, French, Q.O., and T. Ribton ; Finlay, Q.C., and 'T. G. Witt. could be no question of acquiescence where the settlement was
year to her husband, the wife had confirmed the settlement; but there SOLICITORS, Smith, 'Leaver, f Lewes, for Snowball, Smith, 's Lewes, Liverpool; ineffectual. If it had been binding till set aside, acquiescence would Lumley s Lumley.
have been very important. Lastly, it was argued that the variation of the
settlement by the Divorce Court recognized the settlement as binding: BUCKMASTER v. BUCKMASTER-O. A. No. 2, 18th February. The question raised was as to the amount of the wife's income, and MARRIED WOMAN-INFANT-SETTLEMENT OF ReversionARY Interest, which has the settlement of the husband, and binding on him, anding
whether she ought still to pay the £100 a year. The settlement was CONFIRMATION=INFANTS” MARRIAGE SETTLEMENTS Act, 1855 (18 & 19 declaration of trust was made by the wife's reciting the settlemented the Vict. c. 43).
petition to extinguish the interest of the husband. She now asked the The question in this case was as to the power of the court to make a court that her property might be given to her, and there was no obstacle binding settlement of a reversionary interest in personal estate belong in her way. The order of the Vice-Chancellor must be reversed, and the ing to a female ward of court who has married without the sanction of the
Divorce Division for a reduction, under the altered circumstances, of the married 8., without the sanction of the court or the knowledge of the allowance of £120 which he was" ordered to pay her when she had a much mother and guardian. She was then, under the will of her father, the smaller income. Linpler, L.J., said that if the settlement had been died in 1848, entitled to a reversionary interest in personal estate, subject made before the marriage, it would have been operative as to the perfekte approved by the judge. By this deed the reversionary interest bene which reconciled its provisions. The dificulty arising from the fact that
That was the only construction wife was settled, on trust for the wife for life, with remaindest to the the settlement was approved by the court was removed by the considera vivor, should appoint, and in default of appointment for the thildren settlement before marriage. It was impossible to hold the settles ante equally at twenty-one or marriage, with ultimate trusts for the emelidiron binding as regarded the reversionary interest, because the lady Was id
only an infant but a married woman.
The settlement was actually void, transferred to the trustees of the settlement as part of the property was firmation by her, or tof being acquiesced in. As to the 15,105, en het on Mrs. S. thereby settled. In 1877 Mrs. S. obtained a judicialseparation had made a good disposition of it by agreeing that it should be became ene husbaiid's adultery and cruelty mam 1983 en el sorolved Oniris.countade han paimt to Thyka proceeding which she took for the sole purpe.com payqhim £100 a year. In 1882 the marriage wx ainsolitea was ordered to competent to make the new settlement. It was impossible to say that song an order varying the settlement by extinguishing all the interest of s. depriving the husband of all interest. 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
Wilkinson , Millar, Q.C., and Brabant. SOLICITORS, Purkis 8 Co.; Hudden" changed her solicitors, petitioned to have her share, amounting to £20,000
Woodward & Co.; Capron, Daltons, & Co.
Re HOTCHKIN'S SETTLED ESTATES-C. A. No. 2, 23rd February.
“ 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 This was an appeal from a decision of North, J. (ante, p. 234), the estate. The real estate, which was subject to a mortgage of the testator, question being as to the jurisdiction of the court to sanction the payment had been sold by the mortgagee, and the proceeds paid into court. By of the cost of making a permanent improvement to a settled estate out of the order on further consideration, Bacon, V.C., directed the costs of the “capital money" in the hands of the trustees of the settlement for the plaintiff and of the executor to be taxed, the costs of the executor to purposes of the Settled Land Act. The tenant for life, without first include his charges and expenses properly incurred relating to the action consulting the trustees, had executed the work, which was for the in the Probate Division, but without prejudice to the manner in which improvement of a well of mineral water on the estate, at his own expense,
the debts and costs were to be paid out of the proceeds of the real estate. and afterwards submitted a scheme to the trustees for their approval, The minutes of the order, as settled by the chief clerk, provided for the which they gave, and, after doing so, they applied to the court to sanction payment of the executor's costs, as taxed, in priority to those of the the payment of the cost of the works out of moneys in their hands, which plaintiff and to the debts. The plaintiff now applied to vary the minutes, had arisen from the subsequent sale of the estate by the tenant for life on the ground that, there being no personal estate, the executor was not under the Act. North, J., held that, as a scheme had not been submitted entitled to be paid in priority to him, and the application was supported to the trustees for their approval before the work was executed, he had by the mortgagee, who had liberty to attend the proceedings. In support no jurisdiction under section 26 of the Act to sanction the payment of the of the application, the cases of Major v. Major (2 W. R. 382, 2 Drew. 281) cost by the trustees out of “capital money.”. Section 26 provides: and Charter 1: Charter (24 W. R. 871, 3 Ch. D. 218) were referred to, as "(1) Where the tenant for life is desirous that capital money arising shewing that the costs of litigation in the Probate Court were not payable in under this Act shall be applied in or towards payment for an improve- priority to the costs of an administration action, nor chargeable against real ment authorized by this Act, he may submit for approval to the trustees estate. Kay, J., pointed out that in those cases the costs were not incurred of the settlement, or to the court, as the case may require, a scheme for by an executor, but by a creditor only, whereas the costs here were incurred the execution of the improvement, shewing the proposed expenditure by the executor in proving the will, and the real estate could not have thereon. (2) Where the capital money to be expended is in the hands of been made available for the payment of the testator's debts without the trustees, then, after a scheme is approved by them, the trustees may
executor being made a party to the administration action. In answer to apply that money in or towards payment for the whole or part of any this, it was admitted that he was entitled to priority for his costs incurred work or operation comprised in the improvement, on (inter alia) (3) an
in the administration action, but not to the costs of the probate action, order of the court directing or authorizing the trustees to so apply a
which were recoverable only against personal estate. The executor did specified portion of the capital money."
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, LJ., 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.O., and Maidlow. SOLICITORS, Pattison, Wigg, 8 Co., for Andrews, Burrett, tion to authorize the trustees to pay the cost of the improvement out of the 4 Andrews, Weymouth; Wainright f 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 Re KNIGHT, KNIGHT v. BURGESS-North, J., 17th February. be power to sanction the payment for an improvement upon land which Will–CONSTRUCTION-AMBIGUITY-MISDESCRIPTION-GIFT OF LEASE OF was no longer subject to the settlement, even if a scheme had been sub
DWELLING-HOUSE-WHETHER FREEHOLD DWELLING-House Passes. mitted 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 question in this case was as to the effect of a bequest by a testatoz the work was executed, a scheme ought to be submitted for the approval of the lease of the house in which he should be living at his death, he in of the trustees or the court, as the case might be. It had been urged fact, at the time of his death, being living in a freehold house. The testhat section 26 was only permissive. But the meaning of it was that, if tator gave all the plate, linen, china, glass, wines, liqueurs, furniture, the tenant for life wished to have the cost of the work paid out of and other effects which shall be in and about the dwelling-house in which "capital money,” he must follow the steps pointed out by the Act. In I shall reside at the time of my decease, together with the lease of such his lordship's opinion the court would be placed in a wrong position if, house, and also my park phaeton, to my wife absolutely.” The will was after the tenant for life had spent the money, he could come to the court made in 1878. At that time the testator lived in a house of which he was and ask it to sanction its repayment by the trustees out of " capital the lessee at a rack-rent for a term of seven years. In May, 1884, he money.” It was true that the court had often authorized the application bought a freehold house, to which he removed in June, 1884. He died in of money paid into court under the Lands Clauses Act in the payment of November, 1884, leaving his wife surviving him. expenditure already incurred for the benefit of a settled estate. But, in North, J., said that at the time of the testator's death there was not the present case, the court was acting under a statutory power, and cught any lease, therefore it could not be said that the words, strictly taken, to require that the provisions of the Act should be followed strictly. This passed anything. He would not be bound by the exact words if the conwas a sufficient ground for the decision. LINDLEY, LJ., was also of text, or the context taken with other passages in the will, shewed that the opinion that the court had no power to sanction the expenditure. He testator intended to give something not within the language. In that would not touch upon the point which Cotton, L.J., bad suggested. But
case he should give effect to the intention. But, looking at all the cirhe thought that the key to the whole procedure under section 26 was the cumstances, he was satisfied that there was no intention on the part of submitting of a scheme shewing the proposed expenditure. It was urged that the testator to give the fee simple in a house which he did not purchase this would be a narrow construction of the section. No one, however, who till many years after he had made his will. It had been argued that if the had had practical experience of these matters could help seeing that there testator had gone to live in a house of which he had a lease for a long term was all the difference in the world between the submission of a scheme years at a peppercorn rent, that house would have passed under the befor proposed works and asking the approval of works already executed. quest, and that there was no difference in money value between such a If a scheme for proposed works was submitted to a man he would con- long term and a fee. But the one was within the description in the gift, sider whether there was any better alternative scheme. If the work was and the other was not. There was nothing to shew that the testator had already done, he would only consider whether it was for the benefit of the the remotest idea of possessing a fee simple estate which he had not at estate. His mind would approach the matter in a totally different way in the time when he made his will. He therefore held that the widow was the two cases. The court would strain the language of section 26 if it not entitled to the house.- Counsel, Cookson, Q.C., and Vernon R. Smith; were to accede to this application, and would open the door to very Cozens-Hardy, Q.C., and Samuel Hall ; Emden; Ingle Joyce. SOLICITORS, dangerous expenditure. Under the pressure of the fact that the money G. H. Carthew ; John Burton ; Howard & Shelton. had been already expende, by the tenant for life, trustees would be ready to ratify many things which they would not have approved of in the
CONOLLY v. CONOLLY-North, J., 21st February. 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 executed without any scheme beiug approved. The object of the section
DEATH. was to give the court a control over the works, over their design and mode The question in this case was as to the effect of a gift by will of a of construction. He refrained from expressing any opinion on the point business and the stock-in-trade and other articles employed in it. The suggested by Cotton, L.J.-Counsel, F. T. Procter; T. T. Dodd. SOLICI- testator bequeathed the leasehold house in which he carried on his TOR, H. P. Cobb.
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 Re PEARCE, McLEAN v. SMITH-Kay, J., 24th February. equal shares, provided that, upon the death of cither of them (whether in PRACTICE—ADMINISTRATION ACTION--Costs, CHARGES, AND EXPENSES OF
the testator's lifetime or after his decease), the share or shares of him or EXECUTOR-NO PERSONAL Estate LITIGATION IN PROBATE DIVISION.
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 In this case a question was raised as to the right of an executor, as testator, carried on by the three sons in partnership, without any articles, defendant to a creditor's action for the administration of the real and and, for the purposes of the business, they purchased other leasehold personal estate of his testator, to have his costs, charges, and expenses premises, and used or disposed of the articles comprised in the bequest in being, in fact, no personal estate. The validity of the testator's will had the partnership, and two of them agreed to purchase the interest of the been contested by the testator's heir-at-law in an action in the Probate third in the business, &c., and the question arose whether that son was Division, in which the executor propounded the will, and judgment was entitled to receive the whole purchase-money of his interest, or whether pronounced in favour of the will, and the heir-at-law was ordered to pay the it was subject to any trust.
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 W. Harrison (20 W. R. 504, 13 Eq. 432) and
Groves v. Wright (2 K. & J. 347) were distinguishable, they being cases in
In the Goods of HUGHES-Prob. Div., 22nd February. 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
WILL-CODICIL-EXECUTION-INCORPORATION. opinion that there was no trust in favour of the next of kin which would
In this case judgment was given upon a motion for a grant of probate prevent a son from selling his share. He thought that the proviso in
under the following circumstances, The deceased, on the 23rd of October, favour of the next of kin of a deceased son did not cut down the absolute 1886, requested John Jones to make some alterations in a will which he interests given to the sons in the first instance to life interests.
had executed on the 22nd of May, 1878, and which was contained in the 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 testamentary directions on the third page of the sheet, beginning with the
first page of a sheet of foolscap paper. Jones thereupon wrote certain affecting the share of a son who sold it in his lifetime. ---Counsel, St. John words, " The following alterations have been first made," and followed by Clerke ; Chadwyck-Healey. SOLICITORS, E. H. Biggin ; Digby & Liddle.
the words, “Signed by the said testator (on the margin of) the afore.
written will and testament," &c., and concluding in the form of a regular LLOYD v. GORDON-North, J, 22nd February.
attestation clause. There were no signatures on the third page, but in WILL-CONSTRUCTION-GIFT TO WIFE FOR BENEFIT OF HERSELF AND the margin of the first page there were the mark of the testator and the CHILDREN-Joint TENANCY.
signatures of two attesting witnesses. Application was made to include
the writing on the third page to probate, either as a duly-executed codicil, A testator gave and bequeathed all his personal and real estate to his
or as being incorporated in the will by the signatures in the margin, and wife "for her special use and benefit and for the special use and benefit
In the Goods of Birt (19 W. R. 511, 2 P. & D. 214) was relied upon. and for the education and bringing up of my children.". The question
HANNEN, P., now said that he should have been glad to admit the whole 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 impossible for him to do so.
of the document to probate, but he entertained no doubt that it was
In the recent case of Margary v. Robinson property, and had mortgaged it. NORTH, J., held that, but for the words, "for the education and the enactments relating to the position of the signature to a will, and he
(31 SOLICITORS' JOURNAL, 111, 12 P. D. 8) he had had occasion to consider bringing up of my children,” the case would have been clearly governed need now only say that the Legislature had never departed from the by Newill*v. Newill (20 W. R. 308, 7 Ch. 253), and the widow and principle that the signature must be " at the foot or end” of the the children would have taken as joint tenants. And his lordship was of
instrument. He could not hold that what was written on one page of the 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 paper had been duly executed on another page, nor could he treat the the property. They, at the most, gave her the control over the whole signatures in the margin of the first page as authenticating an interincome during the infancy of the children, she maintaining and educating excluded from the probate.-Counsel, C. Å. Middleton. SOLICITORS,
lineation. The words written on the third page must, therefore, be them.-Counsel, Sir A. Watson, Q C., and Methold; Swinfen. Eady; Inilermaur g Brown, for Marston, Mold. Giffard, Q.O., and Davenport. SOLICITORS, Iliffes, Henley, f Sweet ; Cross• man, Crossman, & Prichard ; Gregory, Rowcliffes, g Co.
Re MARRETT, CHALMERS v.WINGFIELD—Stirling, J., 21st February
BANKRUPTCY CASES. DOMICIL OF CHOICE_WHEN ACQUIRED-BURDEN OF Proor.
Ex parte FEAST, Re FEAST-C. A. No. 1, 19th February. This case raised a question of domicile. The testator was born in India, BANKRUPTCY Notice—JUDGMENT Dest-AGREEMENT TO PAY BY INSTAL. and had married there a lady by whom he had had four children, and had
MENTS -Default-Second BANKRUPTCY Notice - BANKRUPTCY Act, 1883, never left that country until 1871. For two years before he left he had
S. 4, SUB-SECTION 1 (G.). been an officer in the service of the Nizam of Hyderabad. In the beginning of 1871 he left India and went to reside at Darmstadt.
In this case a question arose as to the right of a creditor to issue & 1871 (being then a widower), he asked permission to pay his addresses to bankruptcy notice in respect of a judgment debt, on the failure of the debtor a German lady, and in May, 1872, he purchased a house in Darmstadt, to carry out an agreement for the payment of the debt by instalments. and lived there continuously till his death, except that he paid three or
After the judgment had been obtained the creditor issued a bankruptcy four visits to England of about six months' duration, and in 1874 went to notice in respect of it, and an agreement was then entered into between India for a short time for the purpose of winding up his affairs there. him and the debtor that the latter should pay £100 (which was made up Two letters from the testator were produced, one written shortly before
of £37 costs in the action, £25 costs of the bankruptcy proceedings, and he left India, and the other in July, 1871, both of which shewed that he £38, part of the judgment debt) immediately, and the balance of the had a strong preference for Germany, and that he intended to reside in debt by monthly instalments, and, if default should be made in payment Darmstadt. By his will, which was made in 1874, in English form, he of any instalment, the whole unpaid balance was to become at once due. gave his property to his grandchildren. By the German law it is not The £100 was paid by the debtor, and so were some of the instalments, competent for a testator to exclude his children from all benefit in his but he then made default, and the creditor issued a new bankruptcy property. A large number of affidavits were read by persons who deposed
notice. Mr. Registrar Brougham dismissed an application by the debtor that they believed the testator was desirous of ultimately coming to reside
to set aside the notice. in England. The matter came on upon a summons to vary the certifi The Court of Appeal (Lord Esner, M.R., and Bowen and Fry, L.JJ.), cate of the chief clerk, by which it was found that the testator's domicil affirmed the decision. On behalf of the debtor it was argued (1) that the was German.
agreement had been accepted by the creditor in satisfaction of the judg. STIRLING, J., said that the domicil of origin continued until a new ment, and that, upon default, his only remedy was under the agreement, domicil had been acquired, and the burden of proving a change of domi. and the judgment debt did 'not revive ; (2) that a second bankruptcy cil lay upon those who asserted it. To acquire a domicil of choice it was
notice could not be issued in respect of the same judgment debt. Lord necessary that there should be actual residence in the country, and Esuer, M.R., said that, when a man had obtained a judgment for a that there should be an intention to reside there permanently' (Bell debt, the court ought not to hold that any agreement with the debtor was v. Kennedy, 1 Sc. App. 307; Udny v. Udny, 1 Sc. App. 441). The taken in satisfaction of the judgment, unless it was perfectly clear that letters of the testator in this case shewed a strong preference for Germany that was intended. In the present case the true construction of the as a place of residence, and, his lordship thought, also an intention to agreement was that, in consideration of the payment of the costs down, live permanently at Darmstadt. The purchase of a house there was
the creditor gave the debtor time to satisfy the judgment. A part of primâ facie evidence of an intention to reside there, although it was not the judgment debt was also paid at once, and what remained due was conclusive. There was nothing in the evidence, except affidavits of belief, part of the judgment debt. "It was to be paid by instalments, and, if to lead to a contrary conclusion. His lordship therefore held that the any one of them was not duly paid, the whole was to become due-1.com testator's domicil was German.-COUNSEL, Pearson, Q.C., and Carson ; due under the judgment. There was, consequently, a judgment debt to Hastings, Q.O., and Farwell ; Marcy.
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, PHIPPS v. JACKSON-Stirling, J., 17th February.
L.J., said that, as long as a judgment was available for execution, a bankSTIPULATION IN AGREEMENT FOR TENANCY OF FARM-INJUNCTION.
ruptcy notice could be issued in respect of it. Fry, L.J., concurred.
Counsel, Ellis J. Davis ; Sidney Woolf. SOLICITORS, Ř. B. H. Fisher; J. This was a motion by the landlord of a farm for an injunction to
Seymour Salaman. 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,
Ex parte DEVER, Re SUSE-C. A. No. 1, 18th February. and cattle. The agreement under which the defendant held contained a
BANKRUPTCY-PROPERTY OF stipulation that the tenant should at all times during the tenancy keep on
BILITY — POLICY OF INSURANCE FOR Benefit of WIFE-INTRODUCTION the farm " a proper and sufficient stock of sheep, horses, and cattle." of FOREIGN LAW BY CONTRACT–BANKRUPTCY Act, 1869, s. 15—BANKThe defendant had given notice to quit, and had recently advertised in
RUPTCY ACT, 1883, s. 44. the local newspapers and by posters his intention to sell the farming stock and furniture, including a certain number of cows and horses.
The question in this case was whether the proceeds of the surrender of the court grant the injunction asked for. To do this withid he preffect of hemofing his hireditors tonehe miquidation. esthe debtor filed a liquidatis
a policy of insurance on the life of a liquidating debtor, effected for the com per specific performance of a stipulation in a "farming Tease, cand petition hündere diher Bänktupteing acte, 11869, in October, 1883, and i behalt Rayner v. Stone (2 Eden, 128) decided that common covenants in husPeally asked to superintend the performance of this covenant during when in hewaiterie, abhied to their branche come to London, for a "Tontine
of his wife, applied to an insurance company, which carried on business remainder of the Tease, and that it could not dc.th courten, urte arboring the policy o instance or the,00 bran his owne lire, for the benefit of his wife and Methold. SOLICITORS, Walters, Deverell, & Co.
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
LAW SOCIETIES. "for her sole use, if living, in conformity with the statutē,” and, if not
INCORPORATED LAW SOCIETY. 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,
The following circular has been issued to the London members of administrators, or assigns of the husband, the sum of £6,000 sterling, at
the society :-At the meeting of the society at York, in October last, a the London office, within sixty days after notice and proof of the death
resolution was passed to the effect that the meeting usually held in the of the busband furnished to the company at their principal office in New provinces annually should, in the year 1837, take place in London, particuYork.. The policy was also expressed to be issued upon certain special larly having regard to the fact that the year 1887 (being the fiftieth of her conditions relating to “ Tontine” Policies which were indorsed on it. Majesty's reign) is to be marked as a jubilee year and celebrated accordThese conditions provided (inter alia) that the tontine dividend period for the ingly. The council have had this resolution under consideration, and, policy should be completed on the 12th of July, 1886; that no dividend after ascertaining the views of the provincial societies, they have decided Ehould be paid upon the policy, unless the life assured should survive the
that the most convenient time for holding the meeting will be in the week completion of its tontine dividend period, and unless the policy should be commencing the 6th of June next. They have discussed the best means then in force; and that, upon the completion of the fontine dividend of enabling the London members of the society to make some return for period, provided the policy should not have been terminated previously the hospitalities dispensed to them in the provinces, and for this purpose by lapse or death, the legal holder of the policy should have the option they propose that the entertainment shall consist of a dinner, a ball, and either-(1) to withdraw in cash the policy's entire share of the assets (.e., determined. Invitations will be given to all the provincial members of
some other entertainment, either theatrical or musical, to be hereafter 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
the society. As the expenses of such an entertainment cannot be thrown amount; (3) to continue the assurance for the original amount, and apply
on the general funds of the society, it is suggested that they should be the entire tontine dividend to the purchase of an annuity to reduce the 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 premiums; or (4) to withdraw in cash the share of the accumu. lated surplus apportioned to the policy, and continue the policy of the society as guarantee a sum up to, but not exceeding, ten guineas,
that the London members of the council, and such of the London members 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,
shall constitute a Grand Committee for carryirg the object in view into and in her name, to cause to be insured for her sole use the life of her guineas shall be entitled to participate in the entertainment.
effect. Also, that the members of the society who guarantee up to five
The comhusband for the term of his life, and, in case of her surviving such term, mittee will be happy to receive donations of a less amount than five 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 guineas from members who, though not able to take part in the entertain the representatives of the husband or of any of his creditors ; but when the ment, desire to contribute to the expenses of the celebration. I am premium paid in any year out of the funds of the husband should exceed
directed to invite your co-operation in this movement, and for this pur500 dollars, such exemption from such claims should not apply to so much
pose I enclose you a form which you can fill up at your discretion, indi. of the premiums 80 paid as should be in excess of 500 dollars, but such cating whether you will suscribe for ten guineas or five guineas, or for
sum, in terms of this communication; and as it is desirable that excess, with the interest thereon, should enure to the benefit of his creditors. The premiums were paid by the husband up to July, 1883;
the amount which will be at the disposal of the committee should be ascerafter that date the wife paid them out of her separate estate. In August,
tained with as little delay as possible, I shall feel obliged by your favour
As soon as the Grand Committee has been 1886, after the husband had obtained his discharge, the wife exercised ing me with an early answer. the option given to her by the above condition in the first of the four constituted it is proposed to convene a general meeting of that committee ways mentioned, and £2,959 was paid by the company in respect of the
for the purpose of appointing a small sub-committee, to whom the duties policy, which was then given up to them. The trustee in the liquidation connected with the organization and conduct of the entertainment will be claimed, under the New York Statute, the excess of the premiums paid
intrusted. 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 con SHEFFIELD DISTRICT INCORPORATED LAW SOCIETY. tract into the policy; or, in the alternative, that the sum paid for the The following are extracts from the report of the committee:surrender of the policy was not subject to the trust for the wife, and Members.--The number of members is 129. therefore belonged to the husband by his marital right. Mr. Registrar Solicitors' Certificate Duly Repeal Bill, 1886.-On the subject of this Bill, Finlay Kvight held that the whole of the proceeds belonged to the wife introduced into the House of Commons in the early part of last session by as part of her separate estate.
Mr. O'Hea, M.P., your committee agreed with the Council of the Iacor. The Court of APPEAL (Lord ESHER, M.R., and Bowen and Fry, L.JJ.) porated Law Society that it was not expedient to take any steps towards affirmed that decision. Lord Esher, M.R., said that the policy did not the repeal of this duty as suggested by the Bill. This view was adopted seem to him to have introduced any part of the American law. The by a special general meeting of the Incorporated Law Society, held in the words "in conformity with the statute” referred only to the obligation early part of the year. to pay the money to the wife for her sole use. The contract was made
County Court Rules, 1886.-It was suggested to the committee that an with the wife, not with the husband, and the money was to be paid to her alteration should be made in ord. 5, r. 9, and in Form No. 15 of the if she survived him. That contingency had not happened, as the husband County Court Rules, 1886, which seems to require the personal attendance was alive. But there was another contingency upon which the company at the court of suitors entering plaints for service out of the jurisdiction, might be obliged to pay the money to the wife-namely, if she chose, at the end under section 1 of the County Courts Act, 1867, for the purpose of exami. of the tontine dividend period, to insist upon payment to her of her share nation on oath, unless the suitors “reside at a distance from the court." in the assets. His lordship could not doubt that this money, when paid, The committee were of opinion that the rule was likely to cause incon. was intended to be for her separate use. It would be absurd to suppose venience and loss of time to suitors, without any necessity or correspondthat, if she exercised her option in that way, it was intended that she ing advantage, and that it was desirable that all suitors, irrespective of was to lose the money altogether by its becoming the property of the their places of residence, desirous of entering plaints in cases coming husband. It could not, therefore, belong to the husband or his creditors. within section 1 of the County Courts Act, 1867, should be able to verify The option was not exercised until after the husband's discharge, and at the facts necessary to entitle them to a summons for service out of the the date of the discharge he had only a mere hope or contingency which district, either by affidavit or by personal examination on oath. No could not be valued, and was not "property" which vested in his trustee. alteration has yet been made, but it is understood that at some courts the Bowen, L.J., was of the same opinion, though not for the same reasons. registrars meet the difficulty by construing the words, “evidence on The clause as to payment to the wife was not intended to incorporate the oath,” in their literal sense, and, therefore, as including affidavit, and American law for all purposes, but only as to the obligation to pay to the declining to draw from the next sentence the inference (which possibly wife under the contract. The real question, however, arose, not on that was not intended to be drawn from it) that the party residing at a dis. clause, but on the clause allowing the wife to withdraw the accumulated tance is the only one who may file an afidavit, instead of appearing value of the policy. The question was, who was entitled to the money personally. They, in effect, suggest that the word “.
shall” paid under this clause? He could not agree that it was clear from the not unreasonably be read “may.' contract that the money was to be for the sole use of the wife. The Bankruptcy.--A communication was made to the committee that the matter was left in doubt. But the husband obtained his discharge in present course adopted in the use of proxies at bankruptcy meetings is 1884, and the question was whether this could be considered as property most unsatisfactory, and that it is expedient that creditors should be at vested in him then. He had a mere chance or hope that his wife might liberty to give a general proxy to their solicitor to represent them at possibly adopt one of a number of courses which might be for his benefit. meetings of creditors. Your committee approved of this idea, and were That chance could not be valued any more than a chance that a rich willing to join in any steps to effect the desired alteration. It is under relative might die and leave his property to a bankrupt. It was a mere stood that the matter will receive the early attention of the Council of the speculation not capable of estimation. The trustee, therefore, was not Incorporated Law Society. The committee would call the attention of entitled to the money. Fry, L.J., agreed with Bowen, L.J.--Counsel, members to the new scale of costs issued in connection with the BankBigham, Q.C., and Abrahams ; Reid, 'Q.C., and Sidney Woolf. SOLICITORS, ruptcy Act, which came into force on the 25th of October last. 1. Abrahams, Son, & Co.; Alfred Howard.
** 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, CASES AFFECTING SOLICITORS.
require a lessee to take a separate lease for every two houses erected by SOLICITORS STRUCK OFF THE Rolls.
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 11th February–FREDERICK HUXLEY.
was highly objectionable and inconvenient, and might involve very im, 11th February-ALFRED ORAM.
portant legal questions. A copy of this resolution was forwarded to the