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Mar. iz, i887. THE SOLICITORS’ JOURNAL. 313

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in the same position as he would be if the land was situated in any other part of England and the conveyance was executed before the order was made, so that the land is not affected by the order. This conclusion is somewhat startling, but it appears to be justified by the following considerations. We propose in this article to discuss the effect of such a conveyance.

O'aveats.—A caveat may, by the amending Act of 1885, s. 3, be registered with respect to any lands “ by any person claiming to be entitled to any interest in such lands in favour of any person named therein,” and any assurance made while the caveat remains inforce by the person giving the caveat in favour of the person in whose favour the caveat is given, his heirs, executors, administrators, or assigns, and duly registered, shall have the same priority as if it was registered at the date on which the caveat was registered.

Lie pemlemr.-—It should be borne in mind that the doctrine of Zia penderis inerely states that, as it is necessary to the administration of justice that the decision of the court in an action should be _bind_ing, not only on the litigant parties, but upon those who derive title under them during the action, “pendants lite” every conyeyance of the subject-matter of the action made by a litigant during'the_ llCll011 is subject to the rights which are enforced in the action in favour of the other litigant. All that is effected by 2 & Vict. c. ll is to provide that where an action or other proceeding is not registered as a Iis pendens a purchaser pendente lilo without‘ notice shall not be affected by thc doctrine; it follows that a Zia pendans does not fall within the definition of “ assurance” in the Yorkshire Registries Act, 1883, and accordingly cannot be registered under that Act.

General remarks on registration of writs or orders.-The memorial of a writ or order must contain (Yorkshire Registries Act. l8§4,_s. 6), -infer alia, “ So much of the order as affects any lands within the _Biding, or describes or defines such lands,” and it cannot be registered (section 8) “unless . . . an ofllce Copy of such order . . . is produced to the registrar at the {"119 of such registration.” Without discussing the somewhat °b5\1_l'6 question in how short a time after an order is made or writ issued it is possible to obtain an office copy, it is evident that, between the makmg or issuing and the registration of the order or "ll. an interval of time will necessarily elapse sufficient to allow a conveyance of the land affected by the order or writ to be 9X9_cuted and registered before it is possible to register the order or Wm; The terms of the provisions as to caveats do not seem to be iiipplicable to the case of orders or writs ; but, even if they are, one

lylgaut would_hardly ever give a caveat in favour of another.

hree questions present themselves

(Ll) What is the effect of a conveyance executed after the ma "'9 °f the order or issue of the writ but registered before the order or writ is registered, and before it is carried into effect‘? mtg) hwhat is the effect of a conveyance executed or registered mes; e order or writ has been carried into effect but not regis

bugs) what is the effect of an order made after a contract for sale reglstered before the conveyance is registered? thTl1e answer to these questions may depend upon the nature of e order or writ, Yolrlli £!l_BOl1S8lllg them it is important to remember that the existing the °bl"etR°E15ll'{6s Act is merely substituted for the old Acts, wmelect 05 which was _to render purchasers and moitgagees a bmiillv to assist execution creditors or persons claiming under u pfi0]_i“l3}°_Y- It must also be remembered that the word oi Emmy 1° generally used_ in legal documents to mean priority it is mblilgtl of date, though it may be used in the latter meaning; Act E 18319» therefore, that the words in the Yorkshire Registries the re in is l4——“ shall have priority according to the date of mumgcem ion thereof, and not according to the date of such Ngismtiz 0r_ of the execution thereof "—-merely mean that, where the pfioritl} ll necessary, then, for the purposes of determining be taken as bof effect inter re, assurances, if registered, must the Act does xfotezeputed at the date of registration ; and that notoriigigteredi e eat the operation of executions completed but I r err made in an action Ii __.

t _ for I a recover: 0 land. An order of ;:l§)°i§l1T;!npr<>fduces its effect as soon as it i{ pronounced, except, regmmhonll 8W cases where some further proceeding—such as pursuant to an Act of Parliament-—is necessary. It is

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probable that priority will be obtained by a subsequent purchaser from the defendant if such purchaser registers his assurance in Yorkshire before the order is registered. But the plaintiff would, in most cases, have registered the action as a Zia pmdons in the Central Office; and, if this be done, the purchaser appears to gain no priority by prior registration in Yorkshire.

It should be observed that even if, owing to the action not having been registered as a lis pendmis, the purchaser obtains priority as against the order by the contract being made before the order is made or by the conveyance to him being registered before the order is registered, yet the person obtaining the order will generally be able to maintain a fresh action against the purchaser.

Probably most of the above remarks as to orders in actions for the recovery of land apply to orders made in all actions directly affecting specific property.

Judgment.—A judgment (since 27 & 28 Vict. c. 112, ante, p. 37) does not affect land till the land has been actually delivered in execution. As we shall point out, there are certain difficulties in the construction of the Yorkshire Registries Act as applied to writs of execution, and therefore it may still sometimes be desirable, when land has been actually delivered in execution, to register the judgment in Yorkshire. The charge under 1 & 2 Vict. c. 13 (rmle, p. 21) cannot now arise till the land is delivered in execution ; but there appears no reason against registering the judgment in Yorkshire before execution, and it is possible that, on delivery in execution being made, and on the writ being registered under 27 & 28 Vict. c. 112, the charge will have priority over the rights of a purchaser whose conveyance was made after the delivery in execution, but was registered before the registration of the writ in Yorkshire. It must, however, be remembered that, if the contract is made before the delivery in execution, the purchaser is safe, as the contract cannot be registered.

But, it may be asked, what is the effect of the existence of a contract entered into before the registration of a writ or order?

We have seen (male, pp. 9, 11, 23, 24, 33, 39) that the general principle of law is that a judgment creditor can take only that which belongs to his debtor, and that his right is subject to that of purchasers or incumbrancers who became such before the point of time at which, as against them, the judgment creditor’s right accrued. The question, therefore, is, whether that principle is _to be considered as applicable to cases within the Yorke irc gistries Act, 1884, or whether that Act overrides it and makes the rights as between the contract and the order depend entirely upon the priority of registration, although, as we have remarked, it seems impossible to register a contract. It will surely be repugnant to justice that the Act should expose purchasers, fo_r_whose protection it was framed, to a new danger without providing any _nieans whereby they may guard themselves against it. It is very d_1ffi_ci_ilt to escape from the words of the Act which make the priorities depend upon registration; but it cannot be said that a purchaser under a contract is left defenceless because he _cannot register the contract; for he may avail himself of the provision as to ¢Bvefl1i8In practice, therefore, unless and until _it is decided that after contract a purchaser of lands in Yorkshire is safe, as he would be in the case of other lands, the vendor should be required to give I1 caveat in favour of the purchaser, and in a private contract a stipulation binding him to do so should be inserted

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“ EVERY conveyance of an equitable interest,” said Lord Westbury in Phillips v. Phillips (8 Jur. N. S. 145), “is an innocent conveyance.” The law is not always happy in its choice of words, and it is curious that it should apply a term like this, directly implying moral qualities, to a transaction which is so frequently attended by disaster to those who are really the innocent parties. It is curious, too, how the law strains every nerve to ascribe an equitable interest to one party who requires its protection and then immediately uses this as_ an engine to defeat another party equally deserving. We have indeed only to get the legal estate safely_ out of the way and there is left B 01611‘ field f°1‘ equities to play hide and seek in, with results more fflvowflblfi 9° litigation perhaps than to any other interest involved. An 6109 611$

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example of this was afforded by the recent case of Ia re Vernon, Ewens, Go. (35 W. R. 225), while the opposite effect produced by the timely appearance of the legal estate is illustrated by Easton v. London Joint Stock Brmlc (35 W. R. 220).

The former was a case arising out of the bankruptcy of Messrs. Parker, solicitors. A client had intrusted them with £11,000 to invest. This they did by crediting him with that amount in money already out on mortgage. The mortgage was exchanged for a fresh one, and Messrs. Parker subsequently purchased the equity of red '.~mption in this last. The result of this was that, although the client never had any mortgage directly to himself, yet Messrs. Parker became trustees for him of their first mortgage to the extent of the money advanced, and the equitable interest which he thus acquired was transferred to the new mortgage and survived the purchase of the equity of redemption. As the legal estate was outstanding, the Messrs. Parker thus had an equitable estate subject to the equity of their client. This estate they proceeded to transfer to a company which they themselves were instrumental in forming, and when, upon their bankruptcy, the client’s administratrix sought to enforce his equity against the land, the claim was resisted by the company on the plea that they were purchasers for value without notice. Considering the manner in which the Messrs. Parker had been involved in bringing out the company it seems very doubtful whether the absence of notice could have been established ; but as the legal estate had not been got in, the question did not really arise. It is curious that the importance attached to the legal estate should appear to be on the increase. In Penny v. Watts (2 De G. & Sm. 501) it was considered by Knight-Bruce, V.C., that purchase for valuable consideration without notice would be a good defence even in its absence, and Lord St. Leonards quotes this with approval while making a violent attack on Lord Westbury’s judgment in Pliillzps v. Phillips referred to above (V. & P., 1-lth ed., p. T96). The matter, however, has now passed out of the stage of controversy, and in the case we are considering not a doubt was cast upon it. “ The case of the claimant has been put upon another ground, which is a proper grouml, that the company not having obtained the legal estate, the claim of ‘ purchasers for value without notice’ cannot alone avail them." Such was the opinion of Lord Justice Lindley.

_The only chance, then, for the company was to shew that the prior equity had been in some way forfeited, and at first sight there seemed to be something in favour of such a contention. The client had simply handed over his money to the Messrs. Parker and had then taken no further trouble, leaving it quite possible for them to deal with the resulting investment to the prejudice of third parties. This is not altogether unlike the cases in which a mortgagee parts with the deeds so as to enable the mortgagor to raise fresh money on them (Waldron v. Sloper, 1 Drew. 193) or a vendor with an equitable lien signs a receipt for the unpaid purchase-money and hands it over to someone who is thus enabled to make a good title (Hire v. Rice, 2 W. R. 139 2 Drew 73) But in such cases the mortgagee himself actually interferes in the business. In the one under consideration on the other hand the owner of the equity placed confidence froni the beginning in the M959Parker, who were in the position of trustees towaid him and he subsequently in no way took part in what they did. It may be said, of course, that, if he reposes this confidence wrongly and so puts it in the power of a dishonest man to defraud a third party, he is himself the one who ought to sufier, and on abstract grounds this is probably sound enough. But the system of trusts is fully established in this country and recognized by our law and to apply such a doctrine would be to level a deadly blow in it Thus it was said by Turner, L.J., in Cori] v. Eyre (1 De G J Sm. 169, 12 W. R. Ch. Dig. 61) =_~ The very first princi. lei r trusts is, that the ccstui qua trust places confidence in his tdlust O and, if it is to be held that a cestui qua trust is to be oat (flied upon the mere ground that he did not inquire into thii adts o conduct of his trustee, that principle would as it seems to in br in a great measure, if not wholly, destroyed ” Vet 'e"1. e language was used by Lord Cairns in Shropshire. Mnb yl’ Bljnl ‘H and Canal Co. v. Ilia Queen (23 W. R. 709 L 7 E? £111 wag/s lt had been contended that, when the absolute b-enefi '- l l 496). was in the ccatui que trust, he could no longer leav Elia Interest: of affairs to his trustee however this might be h 6 th 6 _0onduc-.

were partial, and that he was under an obligation ti» vshltch izlhdltlilditdts 8.

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l Lord Cairns said 2-“ My lords, that is a very serious proposition. l It goes not merely to shares, but it goes to land, and to every other species of property; and it goes to say that, whereas there is a large, well-known, recognized, and admitted system of trusts in this country, that system of trusts is to be cut down and moulded and reduced to this, that it is to be a system applicable only to infants, married women, or persons with limitcd interests. . . . I find no authority for such a proposition, and I feel satisfied that your lordships will not be disposed to introduce, for the first time, that as a rule of law.” Upon the above principles it was clear, then, that the client’s equity was superior to that of the subsequent purchaser's, and that in placing implicit confidence in the solicitors nothing had been done to forfeit it. This shews the course of matters in the absence of the legal estate.

The other case to which we have referred is equally instructive as to its presence. A. wished to borrow money. To enable himto do so B. executed and handed over to him, inter alia, transfers in blank of certain shares. These B. delivered to a money-lender, C., in exchange for the loan, and C., in his turn, deposited them with other securities with a bank as security for advances to himself. Clearly A.’s intention was that the shares should only be liable for the sums actually advanced to B., but the bank took them on the understanding that they should cover all sums due to them from C. The bank was wise enough to complete its legal title by obtaining a transfer of the shares into the names of trustees. They were thus at liberty to set up against A. the defence of purchasers for value without notice, and the only question was whether they had notice of the purpose for which A. had delivered the shares. Into this it is not necessary for us to go. It was held ultimately that, in the ordinary course of business, the money-lender C. had power to dispose of securities so as to raise loans to himself, although the whole of the loan on any particular security might not go to its owner, and that the bank had no notice of the special manner in which A. had been brought into the transaction.

But in this case, as in the last, the central fact is one inseparable from the present complexities of business. Property is placed by the owner in the hands of another for special purposes, but in such a manner that that other can dispose of it as his own. The injury which he can thus do to innocent parties is to be regarded as unavoidable, and the only means by which a person who has committed the first error of taking an equitable interest can retrieve his position is the old-fashioned labula in naufrayio, the legal estate.

INCOME TAX CASES.

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Ix Illa/.-e v. Lord Mayor of London the question for decision was the meaning of the words “ public school " in the Income Tax A015, 134° (5 8: 6 Vict. c. 35), and whether the City of London School was 8 “ public school” within the meaning of the Act, so as to be exempt from income tax by virtue of section 61, rule 6. There was little to guide the court. The difliculty of putting a definite meaning l1P°_l1 the phrase “ public school " may be seen in the attempt at a definition made by the learned judge-“ The words ‘ public schools’ are not to be construed here as words of art, but mean schools which are in their nature public." Yet some negative results were reached. which will narrow the issues in any future case of the kind. The expression “ public school " in the Income Tax Acts is not limited to schools which are supported by charity funds or endowments; and a school does not cease to be a “ public school” because the schollfl pay something or because they have to be “reoommended’ fol‘ admission. And the City of London School itself may henceforth hvld up its head amongst the public schools. Thefact that the G0l11l1]l8SlO.'l8l‘5 of Income Tax had decided that the school was a “ public school seems to have assisted the learned judge in arriving at his deciswll of a question which he described as “ perhaps rather one of law mixed with fact than of pure law." . We believe it has been the habit of the gentlemen who are known!!! the racing world as “bookmakers” to consider that their 5'-‘-‘"5’ though often large, could escape the meshes of that net of the ii" schedules which Martin, B., once described as large enough 9° include every description of property. They seem to have been under the impression that the law looked askance at their vocatlofh

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and would not permit the Treasury to lay hands upon their P1m5

_1est it should seem to countenance the rnerms by which they WPT9

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Mar. 12, rssy. THE SOLICITORS’ JOURNAL. g _ 315

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earned. The case of Pm-irz'(I_z/e v. Mallandaine has vindicated the I lan age of Martin, B., has dashed the hopes of the bookmakers, whiil at the same time it has afforded them the satisfaction of knowing that their calling is not an illegal one, and has put an end to the notion that disapproval of the means by which profits are earned will prevent the enforcement by the law of the Treasury’s claim to tax those profits. The case is the stronger because we think we discern a dilference in the views taken by the learned judges, who nevertheless concurredintheir judgment. Denmaii, J ., thought that bookmaking was a “vocation” within the meaning of the Income Tax Acts, and that. even if the vocation were an illegal one, profits derived from it would be taxable, as if a man “ carried on a systematic business of receiving stolen goods and made by it £2,000ayear, the Income Tax Commissioners would be right in assessing him thereon.” Hawkins, J ., holding that the vocation or calling of a professional bookmaker was an honest calling, could not see why his profits

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BX

THE Counrs FOR run YEAR 1886. Edited by ALFRED EMDEN,
ESQ., Barrister-at-Law. Compiledby HERBERT THOMPSON, ESQ-,
Barrister-at-Law. William Clowes 8: Sons (Limited).

fourth annual issue of this digest calls for a few words of

The
recognition of its value to the practitioner. It contains not merely the
reported cases in all the English courts, but also the decisions of
interest to the English lawyer reported in the Irish and Scotch
reports and a reference to oases of general interest in the American
reports and Davis’s Supreme Court Reports. There is a table of

ses followed, overruled, or specially considered ; a table of rules of
urt, with references to -the names of cases upon them and the
lumn of the digest where those cases are to be found ; and a similar

table of statutes. The arrangement of matter under the principal
headings is convenient, and the statements of cases we have

amined are accurate. Wecan speak from frequent use of the

should not be taxei preceding issues of this digest to its practical value, and we hope

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that its success will be commensurate to the labour which has

idently been bestowed upon it.

~ CORRESPONDENCE.

to the firm abroad. In other respects the circumstances were similar PRELIMINARY EXAMINATION—DISPENSING ORDERS.

tothoseiii Tfsclller v. Ap”l0’I‘pB, and the court held that the cases were practicably undistinguishable.

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_ po er? Is it not essential in the interests of the profession and E of

REVIEWS.

he public that solicitors should be men of education and gentle

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If this is so, everyone seeking to become a solicitor should be

ALLOTMENTS obliged, before he enters into articles, to undergo some educational

test. Most of us will admit that a man who is unable to pass the

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ould men of no social position—men who, not having received a

_ This is a very careful work upon a subject which has grown much g<><>d general education, never could have passed the P1‘@1imi"'“'Y °1' mimpommce of hm yea,-s_ The author gives the whole history of any similar exainination—be allowed to avoid this most_ necessary legislation and attempted legislation upon his subject from the tine educational test? S1391)’ these are the cases Where 1t 15 most

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dgmnst trustees, the whole machinery Of the Act °f 1382 has bk@“ but remained in the plaintifl“’s possession. In an action by the plaintiff Own We can cordially recommend the b°°k to an interested in its for the recovery of the bonds, it was proved that by Prussian law such

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subject. evi A THE LICENSING LAWS ff,“

bonds, without the coupons, were negotiable in Prussia, but it was also in

dence that they were not negotiable, in fact, on either th_e Prussian or
lish Stock Exchange without the coupons. A. L. Smith, J. held
t, inasmuch as by the custom of the English Stock Exchange such

s _ . ' . B _ Mssnsi. or run Law CONCERNING run RETAHJNG or INTOXI- bonds without the coupons did not pass by delivery, they were not nego

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ble instruments.

THE Cornr or APPEAL (Lord Esiisn, M.R., and Boivav, and Fin‘, bonds were negotiable in Prussia in the fullest possible sense, that in no

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made them negotiable here In order to make an instrument nego

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,3’ Q1595, and such case law as there is has been carefully sgltfltedéglth references to all the current reports) and accurately H but Hie ab e “PP9ndix contains a collection of statutes, with fooinotes, mm th 591196 of cross references here also renders the book less ,1 pmachign It would otherwise have been, especially to readers flaming Eogléehdiificult subject of licensing for the first_time.

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A-NNUAL DIGEST or EVERY REPORTED Cass IN ALL. 2s.

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10d. aton, and an agreement was come to, under section 81 of the Rail

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way Clauses Consolidation Act, 1845, for the carriage of through trafflc upon that basis. 'l‘he plaintiffs, under that agreement, received less for_ the carriage of coals to Hull from a station adjoining the defendants’ colliery, and in connection also with the Midland Railway system, than they demanded from the defendants for carriage from their colliery to Hull.

Tun COURT (Lord Esiisu, M.R., BUWIN and Far, L JJ.) held that, by the words of the statute, agreements for through trafllc come toby railway companies under sections 87 and 88 of the Railway Clauses Act of 1845 were excluded from the provisions as to undue preferi-nce contained in section 90.— Conusu, C’/aarlea, Q C., Barker, and Gould ,- Fortes, Q..U-, mid Sutton. Soucirous, Geara, Son, 4' Pause, for Wuka gt Sons, Sheflield; A. Ii. Oldman, for Lam, Moss, Q 00., Kingston-upon-Hull.

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The question in this case was whether the appellant was, by reason of a judgment, to which he hnd consented, dismissing a former action brought by him to set aside a settlement of certain estates executed in February, 1850, eslcpped from bringing an action of ejectment to recover those estates. The appeal was against the refusal by Kay, J ., of a motion by Sir Craven Goring that, notwithstanding an order made in this action appointing a receiver of the rents and profits of the estates comprised in the settlement, he might be at liberty to continue an action of ejectment in the Queen’s Bench Division which he had commenced to recover the estates. The estates were in 1826 limited in strict settlement to Sir C. F. Goring for life, with remainder to his son H. D. Goring for life, with remainder to his first and other sons successively in tail male, with remainder to the Rev. Charles Goring (another son of Sir C. F. Goring) for life, with remainder to his first and other sons successively in tail male, with divers remainders over. Sir C. F. Goring died in 1844, and was succeeded in the baronctoy by his son H. D. Goring. Sir H. D. Gorin had one son, Charles Goring, and on February 1, 1850, on the occasion of his marriage, they executed a disentailing deed, and on February 9 a resettlement, whereby the estates were limited to Sir H. D. Goring and his son Charles successively for life, with remainder to the first and other sons of Charles successively in tail male, with remainder to the daughters of Sir H. D. Goring and his son Charles equally in tail, with cross remainders between them in tail. Sir H. D. Goring died in 1859, and his son Charles then became Sir Charles Goring He died on November 3, 1884, without issue, and was succeeded in the title by Sir Craven Goring, the eldest son of the Rev. Charles Goring, who had died in August, 1859. On November 7, 1881, one of the five daughters of Sir H. D. Goring, three of them being by a second wifc, brought an action against her four sisters for the execution of the provisions of the settlement of 1850, and on November 10, 1884, an order was made appointing a receiver. In February, 1885, Sir Craven Goi-mg, who, by the resettlement in 1850, had lost the right, given to him by the settlement of 1828, of succession to the estates, brought an action (Goring v. Goring) against his cousins, the daughters of Sir H. D. Goring, and their trustees, to set aside the settlement of 1850, on the ground that Sir H. D. Goring was at the time of its execution in a feeble condition of mind, and that he and his son were induced to execute the deed through the undue influence of Sir H. D. Goring's second wife, whom _ he married in 1842. On January 30, 1886, an order was made in this action by consent, on a motion treated as the trial of the action, dismissing the action without costs. In December, 1886, §ir Craven_Goring commenced the action of ejectment against the persons interested in the estates under the resettlement of 1850 and the tenants of the estates. That act-ion was brought in ignorance of the fact that a receiver had been appointed in Goring v. Lloyd. Afterwards Sir Craven Charles Goring moved in the latter action for leave to continue the ejectment action. Kay, J., refused the motion, upon the ground that the issues raised by the action of ejectment were identical with those raised by Goring v. Goring. After the hearing by Kay, J., Sir Craven Goring filed an aflldavit, in which he said that the fraud on which he relied in the ejectment action was that the provisions in the resettlement of 1850 by which the estates were limited to the sisters and half-sisters of Sir Char;-195 Goring were introduced into that deed by a fraud practised on him by the solicitor (smce dead) who prepared it,_ in concert with the second wife (also since dead) of Sir H. D. Goring, Sir Charles havin been induced by the solicitor to execute the deed in the belief that he was thereby settling the estates to accompany the baronetcy. In support of the appeal it was urged that Goring v. Go:-mg was not founded on fraud, and that, if it was, t e fraud alleged in the ejectment was not the same. In Goring v. Goring the fraud alleged was one practised on Sir H. D. Goring by his second wife; in the ejectment the fraud alleged was practised by thpr solicitor upon Sir Charles Goring.

us Coivii-r or APPEAL C01-res, LXNDLEY, and Lora . _

the decision. COTTON, L.J(., said that G0rin_l/ v. Goring wife bridghgtiiiihniii footing that there had been no valid resettlement of the estates b the deed of 1850, and that that deed ought to be set aside wholly or in ya i; The object of the ejectment action was to set aside the settlement of Iii-E’:-0' or to get rid of some of its limitations. It was said that Gurin v G ' ' was not founded upon fraud. No doubt the word “ fraud " wlis not Urmg in the pleadings, but the case made was essentially one of fraud—\tiiet Lady Goring had induced her weak husband to execute the d d ' 11 8

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i lant intend to rely on now ‘r He said that the limitations of which he com

plained were introduced into the deed by a fraud practised on Sir Charles Goring by the solicitor, in concert with Sir H. D. Goring's second wife, Sir Charles having been induced to execute the deed in the belief that he was thereby settling the estates to accompany the baronetcy. But for the omission of any limitations in his favour in the resettlement and the insertion of other limitations, the appellant would have got the estates with the title. In his loi-dship's opinion, the case made was not against the solicitor as principal, but it was that Lady Goring by his means induced Sir Charles to execute the settlement The allegations in the statement of claim in Goring v. Gm-iny came to this—that Lindy Goring, by fraud, and with the assistance of the solicitor, induced Sir Charles to execute the resettlement in ignorance of its effect. That was really the same thing as that which was alleged now. Any evidence in support of the present allegation would have been admissible in support of the claim made in Goring v. Goring. There was no allegation against the solicitor as a principal. If the question was one of estoppel or resjudiulla it would be wrong to allow the appellant now to institute any fresh proceeding to set aside the settlement of 1850. The rule stated by Lord Cairns in T/1: P/wspfiufz‘ Sewage Co. v. Jlolleson (4 App. Cas. 801), iipplied—viz., that an unsuccessful party could not be allowed to reopen t c litigation by merely saying that since the former litigation there was another fact going exactly in the same direction with the facts stated before, and leading up to the same relief which he had asked before. The only way in which that could be admitted would be if the litigant could shew that the new fact entirely changed the aspect of the case, and that it had not and could not by reasonable diligence have been ascertained by him before. But the present case did not rest there. The appellant had in the former action every opportunity of investigating the matter, and he then submitted not to prosecute his action, if the defendants would relieve him from the payment of costs, and by consent a judgment was taken as at the trial of the action. In his lordsliip's opinion a consent order stood on the same footing as a release. If, after executing a release, a person discovered matters which were entirely unknown to him bcfore, he might be able to set up a fresh claim. But the appellant did not say that he had discovered any new fact since he consented to the jud ment, and it might well be that all the facts were knownto him then. go ought to satisfy the court, not only that he did not know the facts then, but that he could not by the use of reasonable diligence have discovered them. Lisnixv, L.J., said that the etfect of the consent judgment was that the appellant consented to treat the deed of 1850 as unimpeachable. His case for upsetting that deed was now precisely the same as it was then, with a slight variation, and there was no ground for allowing him to reopen the matter. To do so would be contrary to all principle and to good faith. Lorizs, L.J., said that in both the proceedings it was alleged that a fraud was committed by the same persons, upon the same per sons, for the same purpose, and with the same result. The only difference was that the solicitor was now more pointedly indicated than in the former action, but this was only a fresh ingredient tending to prove the some fraud which was allegedin the former action. His lordship was satisfied to rest his judgment on the question of cstoppel, without expressing an opinion on any other point.— COUNSEL, SirE. C1/rrke, S.G., Coolrson, Q,.C., Dr. Tristram, and S. Hall; Sir H. Davey, Q.C., Horton Smilli, Q.C., and Inylc Joyce. Soiiciroas, Brooks, Jenkins, Q 0'0. ,' Gregory, Rowvlmfes, J Cu.

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This was an appeal from the decision of North, J . (ante, p. 28, 34 OhD. 85). The question was as to the construction of an appoint:neut_by will to a married woman, which purported to be subject toarestramt on anticipation. The testator had, under a settlement, a power to appoint by will certain funds among his children. He had four children. By his will he, in exercise of the power, directed that £1,500, part Of the funds, should be paid to his daugher F. absolutely, for her sole and separate use, and without power of anticipation during any covei't_l1r@And he directed that £500, further port of the fund, should be paid?/0 his daughter B., the wife of 181., absolutely. And he directed that all and every the residue of the funds should go and be held upon the f0llOWllli>' trusts—viz., as to one-fourth share thereof upon trust for his daughter F. absolutely, for her sole and separate use, and without power of anticlpation during any coverture. The da hter F. afterwards married G. The question was whether she was entilled to have the capital of the one-fourth share of the residue, which was appointed in her favour bl’ the will, paid to her on her separate receipt. It was urged that the words " without power of anticipation " were repugnant to the trust 1'01F- “ab5°lt°1Y-" North, J., was of opinion that there was no such repugnancy, the direction being that the one-fourth share was to be M4’ 01‘ trust for the daughter, which, he said, meant that the trustees were to retain the share during the time she was under coverture, and 0111)’ PBY the income to her as it accrued due for her separate use.

Tun Couwr oi-' Arriuii. (COTTON, Liunier. and Lorzs, L-J-I-l “firmed the decision. They said that the question was one of intention, and that ¢l}° testator ha/d indicated an intention that only the income was to beslld to F. during coverture. She would be able to dispose of the MP“ by wi1l.~Cou.\-sr.i., Sladen; Vaughan lIawln'm; Bnunley. Soiiciroiis, 5- FLnny/mm ; Wright Q Pilley.

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brought the action in the Chancery Division, to have it transferred to the Queen's Bough lgivfisipln ll€1d:fi'i€(1 with a jury. The acglipn was brought to restrain t s e en an s, eir servants an agents, m sellin an articlfiinnot llgltfiégly thebpilaiiglifi, as tilt ‘they filer; of ‘the plaintiffs iiakd: or ho gou c pu ic a ar 'c es so t em were the some article as “Brown's Satin Polish,” of which tlie plaintiff was manufacturer, and claimed an account of profits or damages at the option of the plaigtiif. The d:egiB<(l)atr)ite submitted tp a perpesllal inlj unctionasclaimed, and pai into cour y way 0 satis action c t e c aim for an account or damages. The plaintiff did not consider this sum suflicieiit, and he now moved for an order that the action should be tried by a jury, and that it might, for that purpose, be transferred to the Queens Bench Division. His counsel waived at the bar the claim for an account. In opposition to the motion it was contended that the case did not come under ord. 36, r. 6, so as to give the plaintiff an absolute right to a trial by a jury, but that the court had a discretion, and that, under the circumstances of the case, the motion ought to be refused. Rule 6 began with the words, “ In any other cause or matter,” and in the case of The Temple Bar (3-1 ‘V. R. 68, ll I’. D. 6) those words had been held to exclude from the operation of rule 6 the causes or matters referred to in rules 4 and 5. And the question of damages, which was all that remained to be tried in the present action, came within rule 4, for it was a question or issue of fact . . . arising in a cause or matter which, previously to the passing of the Judicature Act could, without any consent of the parties, have been tried without a jury. That the present action could, previously to the Judicature Act, have been so tried, was shewn by the cases of West v. White (25 W. R. 342, 4 Ch. D. 631) and Borrlirr v. Jlmw/Z (25 \V. R. $01, 5 Ch. D. 512). %l_1e_ damages could be easily assessed in the chambers of the Chancery ivision.

Kn-, J ., said he had no doubt in the matter. It was argued that the court had a discretion, the case being within rule 4, but he could not assentto that. The rule was merely a repetition of ord. 36, r. 26, of the Rules of 1875, under which it was decided, in the case of Re illartin, Hun! v. Cluimbera (30 W. R. 527, 20 Ch. D. 365), that, in a cause not specially assigned to the Chancery Division, a party has the right, without giving any reason, to have his case tried before a jury. It was said that the case of The Temple Bar decided otherwise. But that was an action in rem and no doubt was within rule ~l, as a case which it had been the prac-Y tice of the Admiralty Court, without the consent of the parties to try without a jury. It was now sought. by means of that decision to bring within rule 4 any case in which there was an issue of fact or law which could, without the consent of the parties have been tried before the Judicature Act without a jury. That would, give the court a discretion in 9'0?! imaginable case. His lordship did not so read rule 4. He read it as he believed it had always been read, as applying to a case where therh was an issue separately ordered to be tried in the action in which case the court had power to direct how that issue should be trihd Therefore as “i Pfiflent advised, he did not think that this was a ciise in which 'the court hsd adiscretiou. But if it had he was equally of o inion on the 1"". thatasit was a question of dainagcs onl a 'ur vyas thd better Eribunal for deciding it, and he accordingly <)yi',ciergd the action to be Igmsfened t°|fl16¢tueen’s Bench l)ivision._—Copicsai., illaultan, Q.C., and

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Kn, J ., held that the defence, though commendably brief, did not in any way object to, or put in issue, the allegation in the statement of claim as to the registration. The meaning of section 16 was clear, and if he were to allow the defendant to rely on his objection the plaintiff might complain of having been surprised—-but for this, that in the aflidavit of the defendant, filed before the date of the statement of claim, the objection was suggested. Now the case of Finnegan v. James (23 VF. R. 373, 19 hlq._72) decided that, if the objection were stated in the defence, the notice in, writing was unnecessary. So that, if it were not so stated, a n_otice given at about the same time would sufllce. But he did not consider the aflidavit as a suflicient notice under section 16. Still the case was one where the court ought to enable the defendant, by amending his defence, to raise the objection; but, as the affect of the amendent might be to make the plaintiffs case fail on technical grounds, the indulgence ought to be granted on the terms that the defendant was not to raise any objection to the plaintiff proving the registration of his copyright made since action brought, nor raise any objection on the ground that such registration was not made before action.—Coc:~'snr., Aston, Q C., and Carpmaal; Jlarten, Q.C.. and Stathmn. SOLICITORB, lViIsor|, Bristowrs, Q Carpmael ,' J. C’. F. Barf/ield.

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In this case, being a summons under the Vendor and Purchaser Act, 1874, the question arose as to whether, in the case of an order by the court under the Settled Land Act, 1882, s. 60, appointing persons on behalf of an infant tenant for life to exercise the powers of a tenant for life under the Act, it is necessary that trustees for the purposes of the Act, under section 38, should also be appointed to receive notices, &c., under section 45, and the Amendment Act, 1884, s. 5. It appeared that the present Earl of Dudley, who was an infant, was tenant in tail in possession of certain settled estates, and that, under the settlement, in the events which had occurred, there were no trustees with power of sale. An order had been obtained, under section 60, appointing the guardians of the infant to exercise, on his behalf, the powers of a tenant for life under the Settled Land Acts, 1882-84, in relation to a sale of part of the settled land to the London and North-\Vestern Railway Co. at a price specified in the order, and giving the guardians liberty to receive, in the first instance, the purchase-money; and the order proceeded to give the guardians generally powers of acting for the infant iuider the Act, subject to the sanction of the judge. It was admitted by the parties that the order was wrong in not directing the purchase-money to be paid into court; and it was also submitted that a sale could not be validly made under the order unless trustees under section 38 were also appointed.

CllI"l"l‘\’, J., said that, in ordinary cases under the Act, the giving of notice to the trustees of the settlement was a condition precedent to the exercise of powers under the Act. That was so in the cases of the exercise of powers by a married woman tenant for life (section 61) or committee of u lunatic tenant for life (section 62). It was to be observed that section 60, which dealt with the case of an infant tenant for life, was incorporated iii the same division of the Act (xiv.) as sections 61 and 62, dealing respectively with married women and lunatic tenants for life. Section 60 provided that in the case of a tenant for life an infant, the powers might be exercised on his behalf by the trustees of the settlement, and, if there were none, then by such person and in such manner as the court, on the application of the infant's guardian or next friend, either generally or in aparticular instance, ordered. In his opinion the words in section G0, “ trustees of the settlement," must be he d to be larger than those contained i.u the definition clause, section 2, sub-section 8, or, in other words, that they included “ trustees for the purposes of the Act " mentioned in section 38. The result was that it was not necessary in the present case that any trustees should be appointed under section 38, and, having regard to the terms of the order conferring a power of sale as to the particular part of the settled estate, it was not necessary that any notice should _be given. Indeed, he thought that there was good ground for saying that, if trustees were appointed under section 38, the powers of such trustees would, under the first part of section 60, override or supersede the powers conferred on the guardians by the order. That particular difllculty might be got over by appointing (as would probably be done in a case like the present) the same persons to be trustees, and to exercise the powers of sale in regard to the particular lauds. He, however, held that no appointment of trustees was required.—Coussnn, A. Underhill; Rome)", Q,.C. ; W41/is Band. Soucrroiis, C’. H. Mason ; Denbow, Sallwell, Q Tryon.

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A testati-ix, by her will, after making some specific bequests and directing the sale of some leasehold houses, proceeded :—“ At my death my executors will receive £900 from N., and then my executors can pay the following legacies." She then bequeathed legacies amounting to £l,37u, and added, “All legacies free of duty, and the residue divided between the grandchildren of M." At the date of the will the testatrix was the owner in fee simple of a freehold house called , and she had entered into an agreement with N. to let the house to him for a term of fourteen years. The agreement provided that he should purchase the fee simple of the house for £900 at the end of the term, or her death, whichever should first happen. This agreement was not carried out, and after it had

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fallen through the testatrix made a codicil, in which she stated that, not

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